Shepherd v The Queen - [1990] HCATrans 224

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S79 of 1989
B e t w e e n -
JAMES WILLIAM SHEPHERD
Applicant

and
THE QUEEN
Respondent

Application for special
leave to appeal

MASON CJ DAWSON J TOOHEY J GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 OCTOBER 1990, AT 10.19 AM

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MR G.R. JAMES, QC:

May it please the Court, in that matter,

I appear with my learned friend, MR T.A. GAME, for

the applicant. (instructed by Gilson Patch &
Richardson)

MR F.S. McALARY, QC:

I act for the Crown, Your Honour, with

my learned friends, MR P.S. HASTINGS and

MR G.J. TABUTEAU. (instructed by the Commonwealth
Director of Public Prosecutions)

MASON CJ:	Mr James?
MR JAMES:	May it please the Court, I hand up the outline of

argument on behalf of the applicant. I should,
perhaps, indicate to the Court that we would seek
to commence the application with ground 4 that
appears on page 2 of the outline, that concerning
the application of the proviso by the second
reconstituted Court of Criminal Appeal to the
ground found established by the first court.
May it please the Court, at page 436 of the

appeal book which is to be found in volume II, the
third reconstituted court set out the history of
the appeal and how it came about that two

reconstitutions were necessary. Commencing at
line 4 on that page, the court set out that the
appeal had commenced before the Chief Justice
Sir Lawrence Street, Justices Lee and Campbell,
that various grounds were dealt with and on the
following day there was dealt with ground 7 in the
grounds of appeal which referred to an inadequacy
in the summing up arising from the failure to give
what has been called the Chamberlain direction.
More specifically, that the case being a case in
which there was a circumstantial evidence problem,
the direction commonly referred to as the Plomp/
Peacock direction concerning the necessity to rebut
any inconsistent hypothesis had been given, but no
direction had been given for the necessity for the
jury to find established primary facts beyond
reasonable doubt. It appears at line 17 - perhaps

I should go back to line 14:
What the appellant contended was that the
failure of the trial judge to give a
direction, which is referred to in the
judgments as a Chamberlain direction, resulted
in a miscarriage of justice. The court was
essentially concerned with the question
whether, in the circumstances of the case, it
was incumbent upon the trial judge to give the
jury such a direction in his summing-up. At
the end of the argument on this submission the
court delivered its judgment. Street CJ and
Campbell J were of opinion that a Chamberlain
direction had been called for and that the

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Lee J took the contrary view. trial judge had erred in failing to give it.
I should indicate, Your Honours, that as

Mr Justice Roden in his judgment pointed out, it
does appear that there is merely a difference of
emphasis between the view taken by the
Chief Justice Mr Justice Campbell and the view
taken by Mr Justice Lee. That is to say, the
Chief Justice would have been of the view that that
direction should ordinarily be given in a case to
which the Plomp/Peacock direction is appropriate.
Mr Justice Lee was of the view that in such a case
it would only be given in special circumstances.
The court continued at page 437:
In the ordinary course of things the

court would then have proceeded to hear the
other grounds of appeal against conviction
before finally corning to consider whether the
proviso appearing in section 6(1) of the

Criminal Appeal Act 1912 should be applied so
that, notwithstanding the trial judge's error,
or errors, the appeal should nevertheless be
dismissed. This did not, however, occur. It
would appear that when the court delivered its
reasons for its conclusions in relation to the
ground of appeal concerning the Chamberlain
direction counsel for the Crown indicated that
he wished to argue that the proviso could be
applied but wished to have some time to
consider the significance of the fact that the
first count concerned a conspiracy to commit
offences against laws of the Commonwealth. At
the end of the discussion which then took
place the Chief Justice indicated that the
Court would adjourn the further hearing of the
appeal to a date to be fixed and requested the
parties to bring the matter back before the
court as quickly as po~sible once they had
clarified the matters to which attention had

been drawn. The appeal was then adjourned for
further hearing.
Unfortunately, it was not re-listed for

further hearing on a date prior to the
retirement of the Chief Justice with the
consequence that it became impossible to
reconvene the same court. In these difficult
circumstances both the Crown and the appellant
consented to a new bench being constituted for
the purpose of determining the outstanding
grounds of appeal and the question whether the

proviso could and should be applied. It was,
no doubt, considered that this was a more
convenient arrangement than recommencing the

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hearing of the appeal de novo. A court
constituted by Justices Roden, Finlay and
Newman was convened for that purpose. That
court did not, however, embark upon a hearing
of the outstanding grounds of appeal. For
reasons which are not entirely clear, and
which it is presently unnecessary to explore,
the court directed its attention to the sole
question whether, there having been a
misdirection - as found by the Court on 15
June 1988 - the proviso in section 6 of the
Criminal Appeal Act 1912 should be applied.

MASON CJ: What was the reason for that course being

pursued in advance of the hearing of the other
grounds of appeal?

MR JAMES: Essentially, if the proviso was not successful,

if the argument put by the Crown as to the proviso
being unsuccessful, there would have been a new
trial, and in addition the sheer time involved in

the hearing on both days. On the first occasion it
was at the end of the day that the question was
first raised as to whether the proviso could apply,
and indeed in Mr Justice Campbell's judgment
appears the relevant reference to that. If I might take the Court to that very shortly, it can be seen
that what was left to be argued was really the
question of whether the proviso could have
application. And that appears only in the judgment
of Mr Justice Campbell which can be found at
page 386 of the appeal book in which he says:
I agree with the conclusion of the
Chief Justice upon this ground of appeal and
his reasons therefor. I have nothing to add other than to note a question of whether the proviso should be applied remains to be
argued.
The Crown sought fairly late in the day to

activate the proviso on the basis that no reference had been made to it specifically in the argument of the appeal itself on that ground. And, of
course, as was pointed out by the third
reconstituted court in answer to our submissions,
section 6(1) of the proviso does not go to grounds

of appeal as it were. Section 6 provides:
The Court on any appeal under section 5(1)
against conviction shall allow the appeal if
it is of opinion that the verdict of the jury
should be set aside on the ground that it is
unreasonable, or cannot be supported, having
regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any

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question of law, or that on any other ground
whatsoever there was a miscarriage of justice,
and in any other case shall dismiss the
appeal; provided that the court may,
notwithstanding that it is of opinion that the
point or points raised by the appeal might be
decided in favour of the appellant, dismiss
the appeal if it considers that no substantial
miscarriage of justice has actually occurred.
The court turned to that, that is, the third

reconstituted court, because of the further events
that happened following the application as it were
of the proviso by the second reconstituted court.
The court, comprising Mr Justice Roden,
Mr Justice Finlay and Mr Justice Newman -
decided, in a judgment delivered on
21 December 1988 that the proviso should be
applied to the misdirection -

in the summing up, and that the ground of appeal
should therefore be dismissed.
The court then adjourned the further hearing of the outstanding grounds of appeal.
Unfortunately, Mr Justice Roden retired from

the court before the hearing resumed and it was
necessary to constitute a further bench to dispose
of the outstanding grounds of appeal. Both
Mr Justice Roden and the further bench spoke of the
difficulties confronting the court in those
circumstances. At page 438 Mr Justice Clarke,
delivering the judgment of the court, the third
reconstituted court, said at line 23:
Those difficulties focused upon his Honour's
belief that the majority decision of
15 June 1988 was erroneous. Notwithstanding
this belief his Honour treated that decision
as binding upon him although he spent some
time pointing out the difficulties confronting

a court which was required to consider whether
the proviso should be applied when that court
had not itself concluded that there had been a
misdirection or other miscarriage of justice.

And the court goes on to point out that in the hearing of further grounds of appeal:
The difficulties of which Mr Justice Roden

spoke were, in a real sense, compounded. The
majority of the remaining grounds of appeal
involved challenges to various aspects of the
summing-up -

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and the contention was that those grounds -

either taken alone or in conjunction -

with others -
revealed significant deficiencies -

and -
that it was inappropriate to disregard the -

decision of the first court, notwithstanding the
application of the proviso and that decision should
be taken in conjunction with other grounds which,
in due course, were found not to have substance,
for the purpose of considering whether the
summing-up as a whole was deficient. And the
course that, in the practicality of the matter, was
decided upon notwithstanding that the court's
attention was drawn to the Reg v Lewis and what
this Court had said, at page 440, line 19 to 30, is
set out at page 441 of the appeal book:
The course which the court was asked to

follow had the consent of the parties but the
question remained whether it may not be
inimical to the proper adjudication of the
matter to adopt as correct the majority
decision of 15 June 1988 when a majority of
the following bench did not agree with that
decision and the members of the present bench
may itself have had reservations about it. In
all the circumstances, and bearing in mind the
tim~ and expense already taken in the hearing
of the earlier stages of the appeal and the
wishes of the parties, the court decided to
embark upon the hearing of the additional grounds upon the understanding that if it
concluded, after hearing argument and further
deliberating upon the matter, that the
requirements of justice dictated the
consideration of all the issues raised by the

grounds of appeal it may require the parties to re-argue the grounds which had already been
determined or, at least, ground 7 which,
because of the application of the proviso
could be regarded as connected with the
following grounds.
The court went on to point out that if the

summing up was deficient, leaving aside the
omission of the Chamberlain direction, the Crown,
at least implicitly, took the view that a new trial
should be ordered and in those circumstances it was
only necessary for the court to determine, as it
were, those grounds which remained for

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determination by it. And, in due course, and this
appears at the conclusion of that judgment, the
court was of the view that there was no substance
in the remaining grounds and, hence, was able
itself to apply the proviso to the whole of the
appeal treating, as it were, the decision of the
first court as a point that might have been in the
favour of the appellant.

TOOHEY J: But if there was no substance in the remaining

grounds of appeal, how did the question of the
proviso arise?

MR JAMES: It arose in this way, Your Honour: the first

court was of the view that the failure to give a

Chamberlain direction tainted the summing up. As
such, the second court was of the view that
although there may have been a miscarriage of
justice in the finding of the first court that
miscarriage of justice was not substantial such as
to enable it to apply the proviso were that to be
the only ground that showed success.
The third court was then able to say, since it

was the only ground that showed success, the only
way in which it could abide by the decisions of the
two prior courts was to dismiss the appeal. Thus
the appeal came to be dismissed on the proviso by
the court as a whole.

DAWSON J: But the second court, really, it is quite evident

from the judgments, thought that the proviso
applied because it did not see any substance in the
point in which the first court saw substance?

MR JAMES: Precisely. Notwithstanding that Mr Justice Roden

expressed the view that he was able sufficiently to
discriminate between miscarriage and substantial
miscarriage for the purposes of application of the
proviso it is our submission that on an analysis of
that decision that decision was an effective
overruling of the first court.

Indeed, Your Honours, from the point of view

of the grant of special leave it raises an
interesting aspect of section 35A of the Judiciary
Act in that amongst the criteria to which the Court
may have regard, which include, of course, any
matter that the Court considers relevant, is the
criteria:
whether the proceedings in which the judgment
to which the application relates was
pronounced involve a question of law .....
(ii) in respect of which a decision of the
High Court, as the final appellate court, is

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required to resolve differences of opinion
between different courts, or within the one
court, as to the state of the law -

and there was clearly enough -

MASON CJ:

You say it was in the one court in the one

matter?

MR JAMES:

One might well be forgiven for saying that one

might never have thought that this would never
arise, but it arose pragmatically because of the
coincidence of two retirements, the age of the

matter and the state of the lists. I should
indicate at the outset that the accused was dealt
with on two counts, one to which he pleaded guilty
invo.l ving a conspiracy to supply drugs under the
Poisons Act of New South Wales, a common law
conspiracy, and for that he was sentenced to a
period of 20 years.
There was before the Court of Criminal Appeal

in respect of that sentence only an application for
leave to appeal against that sentence which was
unsuccessful. The dispute in the present case
turned on one of the two counts alleging against
him conspiracies pursuant to section 86 of the
Commonwealth Crimes Act to breach the Customs Act.
Those conspiracies differed really only in

ambit rather than being different in nature and,
indeed, one of them was to be regarded solely as an
alternative to the other dependent on what view of
the evidence the jury took and how much of the

evidence the jury accepted. As a result, no
verdict was found necessary on the second of the
Commonwealth conspiracy charges and in respect of
that he was sentenced in due course to 25 years
imprisonment to be served concurrently with the
State sentence and in respect of that the
application for leave to appeal against sentence

was unsuccessful. No application is brought here in respect of
either of the two sentences and indeed the only
three matters we would seek to argue in this Court
are the three matters referred to in the outline.
The first, whether the Commonwealth conspiracy was
an offence known to the law; the second, the ground
that I have just opened and the third, whether or
not the trial judge erred in failing to discharge
the jury in certain circumstances and whether that
amounted to a miscarriage of justice. But as to
the present ground, it arose in that rather
peculiar way but, none the less, the way in which
it arose exposed most starkly a division in the
Supreme Court of New South Wales and indeed a

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division throughout the Commonwealth of Australia,
on what is the effect of the decision of this Court
in Chamberlain for the purpose of instructing a
jury in a circumstantial evidence case and indeed
we have prepared, simply by way of a simple note -
and perhaps I should hand these up - simply a
schedule of various cases where, on this point, in
the various jurisdictions of Australia,
the so-called Chamberlain direction to a jury has
been applied or has been distinguished.
Your Honours will have seen in the appeal papers references to Dominguez and Sorby, at the
very least, in which differing attitudes are taken.
The differing attitudes appear to be that of the
Chief Justice and Mr Justice Campbell that have
taken the view that where a circumstantial evidence
direction is necessary for the summing up to be
appropriate to the particular case, that is the
traditional Plomp/Peacock direction. In some
cases, and in their view the usual run of cases, a
direction called the Chamberlain direction perhaps,
referring to the necessity for proof of primary
facts beyond reasonable doubt, may have to be given
for the summing up as a whole to be adequate.

MASON CJ: Now, do the cases listed in A in the document you

have handed up, follow that line of thought?

MR JAMES:

They follow that line of thought more or less,

Your Honour. The cases listed in B take the view
more consistent with that of Mr Justice Lee, that
is that it is rarely appropriate, although it might
be appropriate in some cases, to give such a
direction. Mr Justice Roden, Mr Justice Finlay and
Mr Justice Newman, subject to what I might say in a moment about Mr Justice Newman's decision, appear
to take the view that the direction in Chamberlain
is inappropriate except as in so far as they are
constrained by authority to give such a direction,
there is no such authority requiring such a
direction to be given, referring to it as a
direction and indeed, it is pointed out that the

reasoning of the majority in Chamberlain (No 2) was
really an instance of the exposure by judges of
their own reasoning process, though we would
submit, as referred to in the outline of
submissions, that when judges sit to examine
questions of fact for the purpose of deciding
whether a conviction is unsafe or unsatisfactory,
the process by which they do it is really the same
sort of reasoning process as a jury might well
adopt and indeed, one could say, that it is
essential for the judicial reasoning process and
the jurors' reasoning process to be the same thing,
particularly because of what the Court has said in

Chamberlain and Morris on the function of the

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Court of Criminal Appeal when examining factual
matters on an unsafe and unsatisfactory ground.
Mr Justice Roden, however, was of a differing

view and with him, of course, the balance of that

bench agreed. He was of the view that any such
direction, in effect, so overly complicated matters
before jurors and sought to limit their reasoning
process that it could be said that that direction should never be given. Indeed, he went quite far in both what he did say and what he did not say
concerning that direction. At page 408 of his
reasons he said this, commencing at line 14 under
the heading "A More Fundamental Objection":
Leaving on one side arguments of that

type, to which lawyers, logicians and
philosophers have subjected and will continue
to subject the argument about the Chamberlain
proposition, there is a much more fundamental
objection to making the direction yet another
"Must" for judges to tell juries in
"appropriate cases". Were it not that I feel
constrained by my office not to use such
language, I would say that to require such a
direction would be to add philosophical
gobbledegook to the legalistic gobbledegook
with which we already assail jurors, in a
well-meaning but misguided and futile effort
to shackle their minds and force them into a
pattern and method of thought which is likely
to be foreign to the vast majority of them.
We would be doing that in a language which
most would not understand; those who did
understand it, might not agree with it. In
less colourful language, I would regard it as
an unwarranted encroachment upon what is
properly a jury function -

and His Honour then referred to what
Mr Justice Deane in dissent said in Chamberlain in
the passage at page 626 of the Commonwealth Law

Report: "If a primary fact constitutes an
essential element of the crime charged, a
juror must be persuaded that that fact has
been proved beyond reasonable doubt before he
or she can properly join in a verdict of
guilty. Whether or not a juror must be
satisfied that a particular fact has been
proved beyond reasonable doubt will, however,
otherwise depend not only on the nature of the fact but on the process by which an individual
juryman sees fit to reach his conclusion on
the ultimate question of guilt or innocence."

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Your Honours, whatever - - -

MASON CJ: That seems to demonstrate that he went very far

in what he said. How did he go far in what he did
not say?

MR JAMES:

Mr Justice Roden, Your Honour?

MASON CJ: Yes.

MR JAMES:

What he says he was not saying is contained at

page 408. It is that passage about legal

gobbledegook. He says he is not saying that.

MASON CJ:	I see, thank you.
MR JAMES:	Your Honours, His Honour continues that there

are:
many cases ..... in which it is desirable that
the trial judge point out to the jury that a conviction can only properly result from the jury being satisfied beyond reasonable doubt
as to a certain fact or facts -

and refers to the example of a confession. He goes
on, at line 26 to say:
Similarly in some cases in which reliance is
placed upon circumstantial evidence, it may be
helpful and desirable to explain that unless
satisfied beyond reasonable doubt of
particular alleged circumstances, the jury
could not properly convict. But the
circumstantial evidence case, I apprehend, is
no different from any of the others. There
should be no requirement, or prima facie
requirement, of a direction along the
Chamberlain lines.
If the direction is not universally valid, it ought not to be given, at least in
general terms. If it is universally valid,

then it adds nothing by way of law, and
precious little by way of guidance, to the
heretofore traditional circumstantial evidence
directions, which were properly given in this
case.
His Honour goes on to say that if there is

such a rule of law:

it is really a ritual. It will not in any
real sense be part of the communication from
trial judge to jury -

nor assist and:

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It will be a performance by the trial judge of
yet another part of the ritualistic procedure
through which he or she must go in order to
protect any resultant conviction from being
quashed on a legalistic ground.

And His Honour further refers to what he had said
in dissent in Petroff in the passage appearing at line 19 to line 31, and deals with problems which
His Honour says were created almost, in effect,
imposing an impossible task on a judge by the
formulation in Viro and that having been laid to
rest in Zecevic and:
would hate to see Chamberlain used to reverse
the process.

His Honour goes on to say that he did not:

believe that the majority in Chamberlain
intended to lay down a requirement that any
particular form of words be used by trial
judges in explaining to juries how the
requirement that guilt be proved beyond
reasonable doubt impacts on circumstantial
cases. Their Honours were simply describing
their own thought processes as they considered
the circumstantial evidence in the case then before them, for the purpose of deciding the
"unsafe and unsatisfactory" ground.

Further down the page under the heading The Proviso to section 6(1), His Honour, says:
What has all this to do with the

application of the proviso in the present

appeal? That is a very good question. The
purpose - or one purpose at least - of these
observations, has been to highlight the
difficulty which arises with a change of
personnel -

and His Honour continues: Everything that I have said about my views on

the ground of appeal, applies equally to the proviso question, and in other circumstances would of necessity lead to the conclusion that

the proviso should be applied. The truth of
the matter is probably that the effect of not
giving the direction, was to leave the jury
less befuddled than they would otherwise have
been. But as I explained very much earlier in
this judgment, I must proceed on the basis of
an acceptance that the grounds of appeal has
been properly made out, and indeed that it has
been properly made out on the basis of the

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of 15th June, 1988, with which Campbell J reasons set forth in the judgment of Street CJ
concurred.

And His Honour then discusses the view of

His Honour the Chief Justice on the balance of

that page and at page 413 refers to the view of
Mr Justice Lee and points out that it appears the
differences between the two:
seems to be one of approach and emphasis.

And at line 16:
Whichever view is taken, and wherever the emphasis is placed, the critical factor - if
the rule is to make any sense at all - must be
whether the giving of the direction, or the
failure to give it, could affect the jury's
assessment of the evidence, and ultimately
their verdict.

Pausing there, Your Honours, that, in our
submission, is the question that the first court
decided in favour of the appellant:
That in turn is not sufficiently
distinguishable from the test to be applied
when the proviso is considered. Accordingly I
am of the view that in practical terms it
would be extremely difficult to conclude that
this is an appropriate case for the
application of the proviso, without
effectively reversing the majority decision of
15th June, 1988.
The Crown answer is set out at pages 413

to 414. There was a concession that as a matter
of logic the arguments that were advanced in favour
of the application of the proviso would lead to the
conclusion that this was not a case which called
for the Chamberlain directi'on and there was a

concession that it was not so open to argue before
the second court. However, it was also argued that
logic should not stand in the way of the law and
that if the first decision was to be accepted so
should also be the proposition that it was still
open to argue the proviso.
His Honour then went on to discuss the nature

of the evidence and whether or not that evidence
was evidence that could be categorized, as it were,
appropriately as evidence such as to require such a
direction. That was done in terms of examinations

of segments of evidence in the Crown's submission,
as appears from page 416, but as Mr Justice Roden
points out, and as Mr Justice Street had pointed

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out in his judgment, it was not the examination of
individual segments of the evidence which gave rise
to the circumstantial evidence direction, but the
fact that the Crown sought, as it were, a second
string to the bow, that is the combination of those
segments, or any combination of some smaller number
of them and the portion from Chief Justice Street's
judgment on that question is set out at page 416

through to page 417. What Mr Justice Roden says,
appearing at line 5, is:
What Street CJ. seems to have had in mind, is
that the Chamberlain direction ought to have
been applied in this case, treating what might
have been proved by each of the three
categories of evidence as a "primary fact",
and treating the appellant's guilt as the
inference which might be drawn by the jury
from all three, or from any two of them.

The submission made on behalf of the appellant to
the Court of Criminal Appeal is there recorded,
that is that the Crown had sought the benefit of
having the combination of circumstances arising
from the three segments of evidence, as well as the

impact of individual segments. His Honour was of
the view that - line 21:
It was open to the jury to consider all the evidence that was properly before them, and to
make their own assessment of the way in which
any part of it might bear upon some other
part, and to make their own assessment on the
ultimate question whether the evidence as a
whole satisfied them beyond reasonable doubt
of the appellant's guilt.

Pausing there, Your Honours; often enough in a
summing up it is incumbent on a trial judge, the
purpose that the summing up may sufficiently draw
the jury's attention to relevant matters, to
instruct a jury on how some part of the evidence

may bear upon the acceptability of some other part
of the evidence and how parts of evidence may
relate to each other such as to establish ultimate
guilt.
Indeed, the corroboration direction is

customarily given. The direction concerning how
some evidence might strike at other evidence may
well be an essential direction to give by way of
assistance to the jury such that the summing up as

a whole may serve its purpose. His Honour goes on
to discuss that question when he deals with that
evidence at the bottom of page 417 commencing at
line 30:

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Any part of the evidence may have been used by
appellant's guilt as a matter of inference and the jury to assist another in establishing the
if the want of the Chamberlain direction was
capable of having the jury wrongly apply evidence or give inappropriate weight to evidence, that could apply to any of the evidence in the trial.

His Honour then goes on to examine the possible
effect of the absence of the Chamberlain direction
and for that purpose looks at the directions that
were given and the various ways in which the bodies
of evidence might be considered in their
interrelation if the jury failed to accept as
established beyond reasonable doubt some matter
that it was sought to establish by those bodies of
evidence, in particular at page 419. There, at
line 31, His Honour says:
In the absence of a Chamberlain direct,

the third of those steps might not be taken,
or might not be consciously taken.

What His Honour is referring to is that the
combination of fact one and fact two may operate to
remove doubt which had existed in relation to fact
one independently and fact two independently. And
His Honour goes on to say, at page 420, in regard
to that, that line of reasoning which he describes
in this way:
The jury might simply consider the combined Fact No 2, and decide that on the basis of that materials as a whole they were satisfied beyond reasonable doubt of guilt.
effect of all the evidence going towards
I cannot see that that approach would be any less reliable, or less appropriate, than
the approach required by the Chamberlain
direction. If the proposition underlying the

direction is logically valid, then the jury
could only be satisfied beyond reasonable
doubt of guilt, in circumstances in which, if
they were to turn their minds to the question,
they would find that "at the end of the day"
they were also satisfied beyond reasonable

doubt of Fact No 1 and Fact No 2. The
significant part of the inference-drawing
function, takes place when they are
considering the combined effect of matters of
which, at that stage, they are not yet

satisfied beyond reasonable doubt. The
purpose of their consideration of the combined
effect of that material is to determine

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whether the evidence as a whole satisfies them
beyond reasonable doubt of the accused's
guilt.

And His Honour goes on to refer to that portion of
the Chamberlain direction taken, with respect, out
of context which says that:
"the jury can draw inferences only from
primary facts which are proved beyond
reasonable doubt; facts which are not so
proved must be disregarded" -

without reference to the balance of what was said
by the majority in Chamberlain, that each fact has
to be so considered in the light of the whole of

the evidence. And His Honour goes on to say -
In considering the application of the proviso, our concern is not merely with the
effect that giving the Chamberlain direction
may have had; we have to look at the effect
of the "failure" to give it, within the
context of the directions that were given.

These directions are - and His Honour refers to
some of them - those to which the first court gave
attention in its judgment; that is, the directions
on onus and standard of proof and including the
direction involving the Peacock rational reasonable
hypothesis.

TOOHEY J:

Mr James, while there are grounds of appeal

outstanding, is it ever appropriate to apply the
proviso to the particular ground of appeal?

MR JAMES:

Your Honour, within the meaning of the section,

no, it is never so appropriate. However, what
happened in this case was that since the court was
of the view - the first court - that there had been
a misdirection by the omission of a direction
essential to a full summing up and because that

would have disposed of the whole of the matter, when the question came to the argument for the
proviso that question was dealt with separately as
to that ground.
In a sense this was one of the consequences of
the sort of pattern of thought that underlay Jones'
case which came to this Court from Tasmania. It is
not on our list of authorities but Your Honours
will recall that what had happened in that case was
that one ground of appeal was allowed and a new
trial granted whereas on a consideration of all the
grounds it might have been that there might have
been an acquittal ordered and the practical
necessities in the case minded all of those

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concerned in it to seek to dispose of that proviso
point. But it was never sought that it be disposed
of upon the basis that there be, as it were, a
reargument of either Chamberlain or the decision of
the first court.
Much of what Mr Justice Roden says in his

judgment commencing at page 396 through to page 411
consists of an examination of the correctness of the decision in Chamberlain, both as a matter of
law and logic, and its utility in relation to a
reasoning process. And he forms the view for
himself, although the rest of the bench appeared to
announce their agreement with the whole of his
reasons, that the direction is inappropriate in
law, wrong in logic and, in effect, impossible for
a jury to understand; therefore should not be
given.

MASON CJ: Mr James, can you identify for us where is the

decision which, as it were, took the leap forward
from Chamberlain and said that Chamberlain requires
a direction to be given?

MR JAMES:

Your Honour, there is no decision that says that

Chamberlain requires a direction to be given as far

as I am aware. However, there is a decision which
says that when there is a circumstantial evidence
case, in assisting the jury with how they might
appropriately reason to deal with the evidence, it
may be appropriate to direct the jury not so much
in terms but in a way which indicates to them that
they should not utilize material about which they
have doubt on the whole of the evidence to find
establi~hed primary facts beyond reasonable doubt.

McHUGH J: In the link-in-the-chain case, or generally?

MR JAMES:

That is the precise distinction between

Mr Justice Lee and the Chief Justice. The
Chief Justice says generally, unless there are
exceptions, Mr Justice Lee, certainly in the

link-in-the-chain case, but most unlikely in other
cases.
Really what happened in the first court in
this case was a simple enough examination of the
whole of the material in the case in the summing up
and to say that in the light of the absence of such
a direction in this case the jury were not assisted
adequately. As to that, it seems difficult to see
how the proviso could apply once there has been a
finding that the summing up is inadequate.
Further, of course, as Mr Justice Roden points

out, what the direction really is is an
amplification necessary for the particular case and

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considered necessary in this case by the first

court, or at least the majority in the first court, of the instruction to the jury that they have to be
satisfied beyond reasonable doubt of guilt. It is
really an instruction concerning the onus and
standard of proof. And interestingly, the majority
of this Court in Wilde's case referred to an
absence of an accurate explication suitable for the
purposes of the case of the onus and standard of
proof implicitly as one of those matters that might
well be a fundamental error to which the proviso
cannot go, when this Court cited Hildebrand,

(1963) 81 WN (Pt 1) NSW 143, to be found in Wilde, (1987) 164 CLR 365 and the relevant passage can be found in the judgment of the majority at page 373,
point 4:
Errors of that kind may be so radical or
fundamental that by their very nature they
exclude the application of the proviso -

and Hildebrand is cited. Hildebrand was a case
which involved an explication, or a different
formulation, of the onus of proof, and the trial
judge directed the jury that they must be satisfied

to a point of reasonable certainty. It was held
that that was not the same as satisfaction beyond a
reasonable doubt, and Thomas and Head and Warrener
were cited.
In reliance on the famous passage in Mraz, the

Court was of the view that no proviso could apply
to it on the basis that the error was a fundamental
one.
Your Honours, really, this case presents in a

sense a novel circumstance to the Court. Were
there to have been two successive Courts of
Criminal Appeal in different cases seeking to

decide the question of whether or not a summing up was or was not adequate for presence or absence of
a particular direction, then an examination in this

Court might well yield the proposition that neither case was an appropriate vehicle for special leave
since each solely concerned the exigencies of the
particular summing up and, indeed, there have been
many cases in this Court in which this Court has
said that special leave would not be granted solely
for the purpose of examination of the adequacy of a
summing up in a particular case which did not
include an error of a fundamental kind since such
matters are peculiarly for the local Courts of
Criminal Appeal. But, in this case, what has
happened has been a complete conflict within the
Court of Criminal Appeal in New South Wales as to
the degree of assistance to be afforded, if any -
and I add, if any, because of the secondly

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reconstituted court - to a jury as to the reasoning
process they should adopt when confronted with a
case that may be, as this one was, exceptionally
complex and difficult.
The judgment of the second court is really a

judgment in very general terms. It is not merely a
judgment, in our submission, that turns upon the
facts of the particular case. It is a judgment
which examines the entire basis of the reasoning
adopted by the majority of this Court and, indeed,
the reasoning of Mr Justice Deane in Chamberlain as
an appropriate mode of reasoning.

MASON CJ:

Mr James, the Court is of opinion that you should

present the substance of your argument at this
stage. That is not to say that the Court is
indicating that it will grant special leave. After
all, we have not heard from Mr McAlary, but we
think it would be convenient if you presented the
substance of your case now.

MR JAMES:

I should indicate to the Court that as to that,

my friend has filed a notice of contention in the
event that the Court should grant special leave in
respect of the matters that might arise on the
appeal and, in particular, that notice of
contention reawakens this same question of
Chamberlain.

MASON CJ: Yes, well we are conscious of that.

MR JAMES:

Ypur Honours, in our submission, the judgment of the Court of Criminal Appeal constituted by

Sir Lawrence Street, Mr Justice Campbell and
Mr Justice Lee was plainly right in the exigencies

of the particular case.

The appeal book sets out

the form of the summing up and we would not seek to take Your Honours, here, right through that form of

summing up.

None the less, it was· a case which required the trial judge in his opinion, and without dissent

from the Crown, to direct the jury on a number of

occasions about the onus and standard of proof and,

in particular, to direct the jury on the

amplification of the onus and standard of proof
appropriate to circumstantial evidence cases, the

so-called Plomp/Peacock direction.

Now, Your Honours, to direct a jury that they

must be satisfied that there is no
rational/reasonable hypothesis inconsistent with
the guilt of the accused is to direct the jury in
quite complex words in describing what may be a
simple concept but a concept that may be hard to apply. To afford the jury further assistance if

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that direction is called for by directing the jury,
particularly in a case such as this, where the
evidence is in complex form because of its
interrelation and subject to complex challenge that
they might have to be satisfied beyond reasonable
doubt of certain facts, does not seem to be a thing which any of the justices disagree with in specific

cases. Even Mr Justice Roden accepts the
proposition that there may be cases in which the
jury should appropriately be addressed on the topic
of whether they could be satisfied beyond
reasonable doubt that a particular fact existed
before finding an ultimate conclusion of guilt or

before finding the element of an offence. One

example of it arises dramatically in this case. It
was said that the accused, in the cells of the
Brisbane watch house in the presence of undercover
police officers, said words to the effect that, "He
would take over the reigns of the conspiracy from
the head conspirator" and evidence was given of
that by two police officers.
Now, if that statement was made and if it was

truthful and reliable it may have constituted proof
in itself of the conspiracy charged, but it might
also have supplemented proof that otherwise was
advanced including the statement of the various
accomplices and persons under immunity and, in
addition, the financial transaction evidence.
Where the jury required assistance, in our
submission, was plainly enough on the interrelation

of those three. If the jury were minded to accept
the evidence of the police officers and the
accomplices such that they were persuaded beyond
reasonable doubt of the commission of the offence
then it would never have been necessary for them to
be befuddled or in any way confused by the
direction. They would not have to go to that.

McHUGH J: But the jury would certainly become befuddled if

you had to give them precise directions about all
the combinations in this case because, in weighing
up whether or not the conversation took place in

the police cell, surely the jury would have to take
into account that Allison Dine gave evidence that
Shepherd had told her that he was taking over the organization and then later in the same month he

told Stephen Muhary that he was taking over. Now,
what do you do, do you direct the jury that you
take one or two in combination with other evidence?
How do you - - -?

MR JAMES:

No, with respect, I am not suggesting the

direction is appropriate for use in matters of
detail, but what I am suggesting is that when it
comes to seeing how various particular stands of
evidence can interrelate, the jury should know that

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if they disbelieve the police officers on the
conversation in the watch-house, in the light of
all the evidence given in the case, then they
should not add in a fact, that is that Shepherd
said he was taking over the conspiracy in the
presence of police officers, to such other body of

evidence as they accept it. Now, it may be - - -

McHUGH J: It seems it raises the whole problem about trying

to give a Chamberlain direction in this type of
case. A jury would not know how to go about their
task. I would not know how to go about it myself.

MR JAMES:

Your Honour, if that is the case, then

Your Honour one is taking the view that the
Justices of the High Court, in the reasoning they
set out in the majority in Chamberlain, was setting
out a mode of reasoning that, at least one of the
Justices, is of the view, cannot be comprehended.

McHUGH J: Well it depends on the facts of the case.

MR JAMES: Certainly, this is no more complex than

Chamberlain.

McHUGH J:

Chamberlain ..... isolate.

Was there blood in the

car? Was it foetal blood? Different issues; this
is a very different sort of case.

MR JAMES:

This is no more complex than Chamberlain and

indeed, to try to regard Chamberlain as a chain
case or a wheel case, to use the former terminology
used in conspiracy cases, is in our submission, to

put it in far too narrow a category. It was the
interrelation of the various items of evidence in
Chamberlain that the Court was considering for the
purpose of deciding whether the verdict was
factually sound. In this case, one has the duty as
the jury has the duty, not just to be intuitively
of the view, well I have sat there and listened to

all of this; it seems overwhelming to me; I do

not have to think any more about it; I can leap to
my conclusion by intuition, but to examine the

evidence and to see what it leads to.
Now our submission is not that the jury must always embark on a computer or logical analysis of
the evidence, but their attention should be drawn
sufficiently to the necessity, where it arises in a
particular case, for certain facts to be
established to the appropriate degree of
satisfaction, before they can say to themselves,
well our conclusion is established to the requisite
degree. In a complex case it may be more important

than in a simple case. In a simple case it may not
be necessary to give the direction, but - - -

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DAWSON J: But is that not exactly what the reasonable

hypothesis direction gives. Now you say that that

is complex. It does not seem to me to be at all
complex, once you perhaps eliminate the word
"hypothesis" and use the word "explanation" and
that is what the trial judge did.

MR JAMES: Precisely, but in this case, in our submission,

it was necessary to go a little further. That is
simply to say, take these facts; take the
confession or statement, I will call it that; take
also what the various accomplices said; take also
the complex of financial arrangements; examine the
Crown case; was he guilty of count one?; was he
guilty of count two?, because there is the
necessity to distinguish between the various
conspiracies and further, you might well be of the
view, as urged by the defence, that the explanation
he advances that he was performing a different role
to being a conspirator, might raise a reasonable
doubt and I appreciate I am reversing the onus for
the purpose of putting that in argument here, but
without indicating to the jury that there may or
there were in this case some facts of which the
Crown says you will be satisfied beyond reasonable
doubt, such that they add substance to the heavily
challenged assertions of the accomplices to the
argument that was put in relation to the financial
transactions, that is that they were ambiguous, and
to the hotly contested evidence of the police
officers, the jury could, as it were, simply mass
the Crown evidence without working out directly how
it related in the three parts, each to the other,
and disregard the defence. That is why the first
bench held that it was an inadequate summing up, in
our submission and indeed the argument was put
directly by the Chief Justice at page 371,
commencing at line 5:
The question that arises for a

determination on this appeal is whether the
failure to give the Chamberlain direction
constitutes an error in the summing up leading

to a miscarriage of justice.

And at line 19:
The short question that arises for determination on this ground of appeal is
whether this case did require a Chamberlain
direction. The question is to be approached
bearing in mind that the Crown evidence fell
into the three broad headings that have been

mentioned. The evidence of the police
officers was a separate and self-contained

body of evidence. It was strongly in contest.
Depending upon whether or not the jury was

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satisfied of that evidence the jury might or
might not have been assisted both in
evaluating the other two bodies of evidence
and in drawing the ultimate inference of
guilt.

And I should indicate that the trial judge did give
directions that the various bodies of evidence were
available to corroborate other bodies of evidence.
In one sense we are only seeking the counter- balance to that direction.

DAWSON J:

Does His Honour anywhere point out what the so-

called Chamberlain direction should have been in
this case?

MR JAMES: He.does in the sense appearing at pages 372

to 373 although he does not go to the extent of
prescribing the precise words.

DAWSON J: What do you say the direction ought to have been?

MR JAMES:

Your Honour, I fell into that trap before the

second court when Mr Justice Roden procured from me
a draft of a Chamberlain direction - - -

DAWSON J:	I saw that.
MR JAMES:	- - - appropriate to all circumstances and

appropriate to this case. I would not seek,
Your Honours, to attempt to set out precisely a
form of words since that turns on the individual
judge's appreciation of the particular case. It
may be a very simple formula. It may simply be,
"In dealing with this strand of evidence, in its
relation to the other two strands of evidence in
the Crown case, you may well decide that you are
not satisfied beyond reasonable doubt that the
statement alleged to have been made to the police

officers was made. Should you be of that view
after considering the whole of the evidence in the
case then you will put that statement to one side."

I give that by way of an example. It can be given
as a simple direction and it, of course, has to be
adapted to the individual case. Indeed,
Chief Justice Street says, at page 373, line 19:
Chamberlain's case was, in my view, an

enunciation by the High Court made for the
purpose of resolving the philosophical
disputes that exist in relation to this topic.
The law as laid down by the High Court is
clear and specific. In the view that I hold,
in a circumstantial case there should
ordinarily be given a Chamberlain direction,
drawing such direction from the terms of the
judgments in that case and phrasing it as may

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be appropriate for the particular case in
hand.
As a general proposition it can be said

that in a circumstantial case the jury should
be instructed consistently with the judgments
in Chamberlain on the approach that they are
required to make to the evaluation of the
evidence. That proposition or that view of
the law is not necessarily inflexible. There
may be cases where the facts relied upon
by ..... are so plain or so closely related as
not to call for differentiation -
I should say in answer to what

Mr Justice McHugh put to me some moment ago about was this a chain case that, in our submission, if
one is to draw that sort of analogy, this was a
strand case, it involved the combination of three
strands to the rope, and if those strands were
fatally flawed the rope is not sufficient to enable
one to hang a conviction on it.

McHUGH J:

No, but most circumstantial cases are rope

cases. Each strand in itself may be weak;
combined together they make a rope of great
strength.

MR JAMES:

We accept that and indeed where they are weak

and combined together then it is then that it is
most important for the jury to consider whether

they are fatally flawed or not. It is not merely a
matter of saying one can combine a number of weak

strands to make a strong rope. The question is
whether one can combine strands that are flawed, in
our submission.

McHUGH J:

You see, in practice you just cannot look at it

in that way, can you, because there might be 40
facts, some are conceded, some are proved beyond
reasonable doubt, others you may even think
standing alone were not even proved and yet taken

about them. in combination with other facts you are persuaded

MR JAMES:

Might not, yes, but that is part of the complex

of deciding a complex case. It is, in our
submission, of no assistance to a jury to make it a
simplified summing up in a complex case for the
sake of allowing the jury processes to be, as it
were, untrammelled by guidance as to how they
should go about their task.

McHUGH J: But it is of no assistance to a jury to given

them instructions which divert them from their
natural processes of reasoning.

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MR JAMES:	It, with respect, is of such assistance when

their natural processes of reasoning may well lead

them into error. We point out that often enough
juries are instructed as to particular items of
evidence and how they can be used in the context of
a particular case. Indeed, some evidence may be
available for some purposes but not for others.
Often enough that arises in that much disputed area concerning character or reputation evidence and
juries need to be advised because their natural
process of reasoning leads them into utilizing that
evidence for a purpose that this Court has often
enough said they should not use it.
Often enough there may be a statement by way

of hearsay that goes in in a criminal trial for a
particular purpose but which can only be used for
that purpose. There may be evidence as to the
absence of a witness, there may be evidence as to

certain kinds of prior conduct; all of those
things involve instruction to the jury in an
appropriate case as to how they should reason, and
indeed - - -

DAWSON J:

That is not reasoning. Either the evidence is

admissible or admissible for a limited purpose.
They are told how they can use it but it does not
involve a reasoning process. In the end all that
you can say is, when the jury are asked to draw an
inference, all you can say is, "Well, you must, in the end, be satisfied beyond reasonable doubt that
you can draw that inference on those facts. That
means, of course, that if, in the end, there is a
reasonable explanation consistent with innocence
upon those facts, you will not be satisfied beyond
reasonable doubt as to the inference".
Now, you cannot make it any more explicit than

that in a complex case. There may be cases in
which the inference depends upon one clear fact in
which case you can say, "Well, you have to be
satisfied beyond reasonable doubt about that fact

or you cannot draw the inference", but once you get beyond that simple situation the direction which I gave to you is the only possible direction to give
without confusing utterly.

MR JAMES: Well, Your Honour, one may be able to say to the

jury, "Well look, you have facts A, B, C and D from

which you are asked to infer fact x. You have
other facts from which you are asked to infer fact
Y and other facts from which you are asked to infer

fact z. From the combination of X, Y and z, you
are asked to infer guilt". That is not an unusual
situation.

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DAWSON J: That is entirely artificial and it was not this

case.

McHUGH J:	And, in addition, it treats the reasoning process as though it is always like the leg supporting a chair, that if you remove one leg, the chair falls
over. That is not the way most cases are decided.
The verdict has got all sorts of levels of support
in the evidence, not some piece of evidence to
support it entirely if it is accepted and
others - - -
MR JAMES:	I am not suggesting, Your Honour, that such a

direction is always appropriate to all cases.
Indeed, I have gone so far as to say that we are
submitting that in this case it was appropriate because of what the Chief Justice detected with
whom Mr Justice Campbell agreed, that is, that the
Crown sought to have the advantage of also a
circumstantial case by combination of the various
elements together each to support the other and on
a reading of the summing up and the application for redirections, there is clearly in the trial judge's estimate, a necessity to give the reasonable or
rationale hypothesis direction because of that
combination. In those circumstances, given those circumstances, the jury might, and indeed, in our submission, should have appropriately been directed
that when they came to consider that combination -
not the Crown's segments but the combination of
those segments together - if they were of the view
that they were considering that question of whether

the weak strand of the police conversations, the
weak strand of the accomplice evidence, the weak
strand of the financial transactions evidence -

DAWSON J:

Why do you put it into categories?

It may be

convenient to do it for certain purposes, but the
jury were not required to do so.

MR JAMES:

Maybe not, but that is the way the Crown put its

case and given that, when the jury comes to reason,
the defence is entitled to have such a direction,

in our submission, because of the Crown putting
what seems like a most powerful argument, not only
do we say that "What was said to the police
officers is sufficient for you to base your verdict
on", not only do we say that "What the accomplices
said is sufficient for you to base your verdict on,
but if you take these three together, even if you
are not fully satisfied of any of the three, you
can still be satisfied of guilt at the end of the
day".

DAWSON J: Provided that there is not a reasonable

explanation of what was said to be the accused's
conduct.

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MR JAMES:

Yes. That, in effect, Your Honour, does almost a

sort of recent possession-type emphasis for the
jury on "Where's the defendant's explanation?" and
the real question that needs to be looked at is
whether the Crown has proved its case beyond
reasonable doubt. It concentrates, as it were, the
jury's mind on explanation from the accused or as
advanced -

DAWSON J: Well, it does not, because the word "hypothesis"

was used which takes it out of that -

MR JAMES:

Yes, but the difficulty is the word "hypothesis"

to a jury. If all we are concerned about is
whether the proof in the Crown case is sufficient
in the absence of an alternative hypothesis, the
jury are embarking on an even more logical and
analytical function, in our submission, than that
simple function here in dealing with the particular
way in which the strands of the Crown case were put

and seeing how they interrelate. To put together
all the premises to see whether the argument
excludes all other hypotheses is, in our respectful
submission, to require the jury to embark on more
detailed analysis than simply whether they are
satisfied beyond reasonable doubt of particular
segments of evidence which it sought to combine.

DAWSON J: But the jury cannot be required to follow a

particular reasoning process and it is not true to
say that they have to look at the three categories
of evidence separately.

MR JAMES:

No, Your Honour, we are not seeking to say -

DAWSON J: And it. would be a quite a wrong direction to say

that, "Taking each of the three categories
separately you have to be satisfied beyond
reasonable doubt of the contention that the Crown
makes before you can draw the further inference."

MR JAMES:

No, one can say, Your Honour, that that direction

would be appropriate if the jury was to reason in a particular way and, in effect, that is what the Crown asked them to do. There is no suggestion
that a trial judge in his summing up has to confine
a jury's reasoning process to one particular line
but if that line is urged as one of the party's
preferred positions or submissions to the jury, a
trial judge might well have to give the jury
appropriate assistance on how it should regard that
form of argument.
Indeed, were the defence to put forward some

entirely logically inadmissible argument it might
well be incumbent on a trial judge to point out a
logical flaw and, similarly, when one comes to deal

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with questions of corroboration, or categories of
evidence that might be suspect, then it might well
be, for the sake of having a complete summing up
and a proper and adequate summing up to the case,
necessary for the trial judge to point out how the
evidence relates each to the other and whether, in
fact, it does corroborate or does not, and I am
using "corroborate" in the popular sense of support
when I put that proposition.
All we are talking about is not a rule of law

that requires such a direction in every case but a
piece of assistance to the jury to make a summing
up in this particular case, given that a particular
argument was advanced, an adequate summing up to
enable the jury that assistance when it comes to
choose what process of reasoning it will itself
adopt. That is about as well as I can put it,
Your Honour.

GAUDRON J:

Mr James, I wonder if you can help me, I heard your answer as to what it was about this case that

required the direction.

I wonder if you can tell

me what it is that will mark the case on your argument that does not require the direction?

MR JAMES:

The classic was the unsuccessful attempt, in this

Court and in the Court of Criminal Appeal, to seek such a direction in Loveday. That was a case in
which Mr Justice Roden had sat as the trial judge.
He had given a direction as to the necessity for
corroboration or the danger of convicting on the
uncorroborated evidence of accomplices but had
given it, not in the classic form, in such dramatic
form in the particular case as to say that,
effectively, unless the jury accepted the evidence
of the accomplices beyond reasonable doubt then

they might well be minded to acquit. That was that
case.

GAUDRON J: That is in effect giving the direction but in

different language.

MR JAMES:

That is so, that was that case, that is one

classic example.

GAUDRON J: That is not really a case in which the direction

is not required, it is the case where it is, on
your argument, satisfied albeit in different
language.

MR JAMES: Well, another case may well be where the

circumstances are very direct and simple, where you
have three witnesses giving evidence of three
different events, the combination of which - that
is the combination of the three events - lead to
the inference of guilt, and where you have only one

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witness as to each event. That is one clear
example where there might well not need to be such
a direction.

McHUGH J:

I would have thought that was the one case where

it might be appropriate to give a direction.

GAUDRON J:

I would have thought so too.

I would have

thought that was precisely the case where you
needed it because in such a situation what you are
talking about is a case where the absence of any
one fact destroys the hypothesis of guilt.

MR JAMES:	I had not actually gone on, I think, to say that yet, Your Honour.
GAUDRON J:	No, but what you have in your chain and rope

dichotomy, if you like, are situations in which the
hypothesis of guilt is destroyed, becomes
impossible, if one fact disappears. That is your
Chamberlain type case. And in your rope case, you
have the situation where any hypothesis other than
that propounded by the prosecution is improbable in
the extreme by reason of the unlikelihood of all

those circumstances combining. I would have
thought it was in the first case that you had to
have the direction.

MR JAMES:

That is a very good analogy for one of the modes

of jury reasoning in this case. That is to say, if the jury were not persuaded beyond reasonable doubt of the statement in the cells; if the jury were
not persuaded beyond reasonable doubt of the
accomplices put together, and it was conceded that
the jury could not have been persuaded beyond
reasonable doubt by the financial transactions
evidence, the necessity came to look at the three
facts, the three events arising from those three
bodies of evidence and see whether they in
combination could properly produce guilt. And it
is our submission that in those circumstances and
in precisely those circumstances this direction
should be given, and the Chief Justice indeed

pointed out at page 374, line 19:
There were three heads of evidence or three
categories of evidence, each of which required
evaluation and all of which were in contest.
The jury ought to have been told that they
should approach their final determination of
guilt by considering each of these three
categories of evidence in relation to the
others, and if they found it necessary to rely
on all three, then they must be satisfied
beyond reasonable doubt of the facts proved by
all three.

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McHUGH J: Well, with great respect, what does that mean?

Does it mean that you had to find - what are the
facts that must be proved beyond reasonable doubt,
every individual fact that falls within that
category - - -

MR JAMES:

No, Your Honour.

In fact, the facts that were

sought to be proved in each segment fell within

very narrow compass. By way of example, that he
made the statement in the cells, that he told the
various accomplices that he was, in effect, running
importations and paying the money, and on the
financial statements that he received, in effect, a
50/50 split of the proceeds.
Now, from those three facts the jury could

move quite easily to a finding of guilt, and
indeed, if they were established beyond reasonable
doubt - the three in combination - it is hard to
see that the jury would not have moved to a finding
of guilt absent a reference to a reasonable
hypothesis or rational explanation or whatever.

McHUGH J: Yes, but that is the point, is it not, in this

sort of case, that each of the three facts build on each other so that the three of them coming in from
three different directions, although you might not
be convinced of each one of them beyond reasonable
doubt, when you put the three of those facts in
combination you then draw the inference beyond
reasonable doubt.

MR JAMES: But, Your Honour, with respect, that is not what

Chamberlain says. Chamberlain does not say, "You
consider them in isolation."; it says that when
deciding whether or not he made the statement in
the cells you have regard to the whole of the
evidence in the case but if, after having had
regard to the whole of the evidence in the case you
are not satisfied he made the statement in the
cells, you put it to one side.

The importance of that is otherwise - indeed, as was pointed out in Chamberlain, that a jury
might well, if treating it on a segmented approach,
take the view, "Well, this proposition looks pretty
good to us so we add it to that proposition which
looks pretty good even though we, overall,
considering the whole of the evidence, do not
consider either proposition to be proved and we can
say, making an illogical leap, 'Well, overall, the
evidence is good enough'."

McHUGH J: It is not an illogical leap because it excludes

the reasonable hypothesis of innocence.

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MR JAMES: But, Your Honour, with respect, it does not if,

after consideration of the whole of the evidence in
the case, the jury is not satisfied that a fact
essential for guilt is proved beyond reasonable
doubt.

McHUGH J: But you use the word "essential" to guilt?

MR JAMES:

And it is essential if all three are to be relied

on as combining each to support the other in the
strand of rope analogy or in one of the ways in
which the Crown put its case in this case. I am
not dealing with all the ways in which the Crown
put its case in this case. It may well have been
that the Crown might have been content to put its
case another way but it did not. And given that it
put its case that way, in our submission, it was
necessary that the jury be properly instructed if
the reasoning of the majority in Chamberlain is

valid. I put to one side those objections to the
validity of its reasoning. If that reasoning is
not valid then it may be necessary for there to be
a re-examination of Chamberlain.
Your Honours, Mr Justice Lee dealt with the

opposing view of the way in which the jury could
reason and he, too, was of agreement that the Crown
case had these three facets, as appeared from page
376, and at page 377, line 6, he says:
The question whether the appellant was

party to a crime with Clark was thus to be
answered by reference to the evidence
consisting of a multitude of incidents and
events in which witnesses deposed to the
appellant's conduct and words on those
occasions. If the jury accepted that the alleged conversation with the police took place, that in itself could have satisfied the
jury against the background of the multiple
importations by couriers that the conspiracy
existed. Alternatively, the jury might have
considered the evidence of the split-up of the

sufficient. funds, with or without the police testimony as

I interpolate here, Your Honours, that the Crown
has taken the view, quite consistently, that the
mere split up of the funds could not, itself,
derived as it was from the financial evidence
material, have been sufficient to have established
the particular conspiracy charged.
Alternatively, the jury might have considered
the evidence of the couriers alone showed the
appellant's involvement in the importation.

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All of these, Your Honours, were ways in which the
Crown put its case, except for that one way
concerning the split up of the funds. And,
undoubtedly, there are ways in which the jury might
appropriately have reached a verdict, but:
Or, the jury may have taken from the totality
of the evidence, the conclusion of guilt, or,
they may have rejected some of that totality
and relied on parts of the testimony of the
various witnesses.
We have no quarrel with that. That is a

further way, or two ways, in which the jury could
have reached a conclusion of guilt, but there was,
in our submission, the additional way to which
Mr Justice Street refers, and which appears from
the summing up, that one way which required that
Grant/Peacock direction, and that was the
combination of the three different facets and
consequently when one turns to this question of how
Mr Justice Lee saw the case, he does not mention at
that point or indeed on his discussion of
Chamberlain where he deals with the chain analogy
at page 380, the question of whether or not in this
case there was that combination of strands which had been detected by the judges of the majority.
He points out at page 382, line 16, the

critical matter:
In the present case, the critical matter

was whether the appellant had been shown to be
a party, that is, had agreed with his co-
conspirator, Clark, and the others to import
heroin, and there was both direct evidence by
the police of the conversation already
referred to between him and Clark as well as
direct evidence from couriers as to what the
appellant did and said and direct proof of a
sharing of money.

I am not too sure about the word "direct" there.

All that material was before the jury for its consideration and determination of the question whether it was satisfied beyond reasonable doubt that the appellant was a
member of the conspiracy charged and I do not
consider that any further directions were
necessary than those given by the learned
trial judge.
It is because His Honour came to a different view
of the nature of the summing up and the Crown case,
that His Honour is expressing the views that he did
here and says that it was, in general, evidence of

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the same kind as one gets in cases involving drug

conspiracies. He says the Chamberlain direction
will be called for in cases which are:
always readily identifiable, and this will be
the case whether the Crown case or only part
thereof is proved by circumstantial evidence.

And His Honour says that:
the very process of reasoning adopted by a
juror,

in the present case would -
involve an intuitive or automatic acceptance
of many many facts together -

and that he should not be called on to analyse and
that:

the whole sweep of the evidence -

may be -
accepted by a juror -

at page 384 point 4. Now that may well be the case
and it may well be the case in relation to all the
cases to which His Honour refers and to all but an
exceptional case, but if the Crown wishes to make
it an exceptional case by advancing that further
argument to suggest a dissection of strands and a
combination then, in our submission, the summing up
does call for a counterbalance. That is the basis
on which His Honour dissented, as can be seen at
page 385 line 29, although there is no further
analysis than I have taken Your Honours to in
His Honour's judgment.
Now, Your Honours, I do not seek to take

Your Honours through to the summing up and read
Your Honours the passages. The passages to which

we refer as to onus and standard of proof have been
set out by Chief Justice Street in his judgment.
However, might I indicate that if Your Honours were
to go to the summing up and look at the complexity
of it and the various ways in which the case is put, it is our submission Your Honours will see
that a clear case is made out, because of the Crown
seeking to put the particular circumstantial
evidence argument for appropriate directions.
Often enough the Crown may choose, and a trial
judge may well choose, in a case where the majority
of the evidence is direct or where direct evidence
may be conclusive, to put the case in a simple

fashion to the jury. An example of that came to

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this Court in Annikin & Ors where Mr Justice Roden
was confronted with that difficulty of directing in
quite a complex case involving the 42 persons

charged with murder. The Crown may choose that,
but if it does not, if it chooses to avail itself
of the more complex argument, then in our
submission there should be the more complex
countervailing direction given.
Your Honours, on this ground, there is perhaps

little more that I can say and, Your Honours, I
should say that, on the question of the proviso, it
is perfectly clear that what the court did was to
find the summing up, in its view, inadequate after

consideration of the summing up itself. I can give
Your Honours references if that would be of
assistance, but I apprehend from what Your Honours
have put to me that it is the merit question
Your Honours wish to examine and there is little more perhaps I can add to that.
Your Honours, we do have other grounds and in particular that ground that the offence alleged was
unknown to the law and also ground concerning the
failure to discharge the jury after some rather
bizarre events in the trial and I am really in
Your Honours' hands as to whether at this point
Your Honours would wish me to turn to those grounds.
There is some dispute as to whether this Court, if
special leave is granted, is a Court prepared to
entertain all grounds of appeal, and I am in
somewhat of a difficult position bearing in mind the
Court has not granted special leave and has asked me simply to turn to the merit of one ground.

MASON CJ: Well, of course, the Court generally has a power

to grant special leave to argue one particular
point in a case so that I think you had better turn
your attention to the two remaining grounds and
deal with them.

MR JAMES:

May it please the Court .. If I could deal,

Your Honours, with ground 6 first. The events that

occurred were quite bizarre. The appeal book,
page 457, commences to set out the factual

circumstances. On the eighth day of the trial
which, in our submission, was not too far into the
trial, the trial judge received a note from one of

the jurors advising that the juror's father had
died and her necessity to make funeral

arrangements. The juror was discharged after
having written a note to the trial judge. On the
tenth day of the trial the trial judge received a
letter from the foreman of the jury and that note
is set out at page 458 of the appeal book. What
had happened had been that discharged juror had
sent a note to the trial judge on 19 March and 19

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March was within three or four days of the trial
commencing. She said that yesterday afternoon she
had been driven to court in a taxi and the taxi
driver had indicated to her that he knew that she
was a member of the jury in the Shepherd case and
that he was the half-brother of the accused and
that he was to be a witness later in the case.
There was apparently no other conversation, nor did the taxi driver attempt to question her about the trial, but after that juror was discharged
following the death of her father, the trial judge
received a note from the foreman which enquired:
"As a member of the jury, I am concerned about
the recent happenings to -

that person, namely -
(i) her being spoken to by a taxi driver
claiming to be the accused's half-brother, and
(ii) the sudden death of her father last
weekend for whom (I was told) there is to be a
post mortem.
If your Honour is satisfied that there is no
connection between these events, could you
please convey this reassurance to me.
In view of the fact that the said taxi driver
has been seen in the court since -

and how, Your Honours, the foreman is able to come
to identify the taxi driver whether on what has
been put to the foreman or not, it can only be a
matter for speculation -
I request that this matter not be raised in the presence of the accused or the public."

And the trial judge made inquiries through the
police and obtained some information which is set
out at page 459 by way of an extract from the

occurrence entry at the police station, showed the
juror's note to counsel and indicated that he was
going to respond by note and that there was an

application for discharge of the jury. The trial
judge gave to counsel a copy of the letter he
proposed to send to the jury; there was objection;
there was a request that the proposed note be
expanded and it was finally sent to the jury in the
form, at page 460, and after the note was sent
counsel for the accused again applied for a
discharge of the jury and the application was
refused.

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The trial judge's exercise of discretion was

upheld in the Court of Criminal Appeal and that
court turned to the authorities at pages 461 and
the question arose as to whether or not the trial
had been conducted in an atmosphere of heavy and
obvious security and intense publicity. This was
disputed as a factual matter by the Crown and it
was put there was negligible publicity and security
arrangements were discreet and the court, in
dismissing the ground, took this view at page 463:
The terms of the foreman's note as above

set out do indicate his concern but obviously
the trial judge considered it sufficient to
alleviate this concern in the manner in which
he did and we do not consider it appropriate
to disturb the approach which he took.
What the jury received from the learned

trial judge was a written assurance that the
death of the juror's parent was from natural
causes and that this death was irrelevant for
the purposes of their deliberations.
Thereafter the jury conveyed no further
concern about the matter although the trial
continued for some weeks and there is no
reason to suspect that the jury did other than
to heed the content of the note communicated
by the trial judge.

Now, I should indicate that that note simply says that the deceased was aged, died from natural
causes with no suspicious circumstances, "His death
had nothing to do with this trial, put it out of your mind, it is irrelevant to the issues before
you and in no way reflects adversely on the
accused". Not only does the juror evince a concern
concerning the death, but also about being spoken
to by the taxi driver person who has been seen in
the court since and the request is made that that:
matter not be raised in the presence of the
accused or the public.

Your Honours, with the greatest respect to the
trial judge, he dealt with part of the problem but
not all of it. That note was a clear indication
that there were circumstances to which at least the
foreman of the jury was privy which weighed upon
his mind causing him to seek to draw assurance that
there was no suspicious connection between a death and a conversation with a person who may well have
been the brother of the accused.
Now, the trial judge went some distance to

seeking to reassure the jury. In our submission,

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however, when such a serious matter as that appears
to be weighing upon the minds of jurors or a juror
during the conduct of a trial where a reasonable
bystander could apprehend quite reasonably that the
jury is worried that the accused or a witness in
his camp may or may not have some responsibility
for a death, in effect, affecting a member of the
jury, then such a note does not go at all far
enough - - -

McHUGH J:

Is that right? I mean, what the foreman asked

was whether there was a connection between the two
events, namely, the death of the father and the
speaking of the taxi driver, that is what his
concern was and the trial judge answered it by
saying, "There's nothing suspicious about the death
of the father".

MR JAMES:

Yes, but it is the connection and the conversation in the cab.

Now, obviously, on the

face of it, there could be no connection between a
comparatively innocuous conversation in the cab
which arose on its face presumably out of
coincidence and a juror's death, but it is clear
enough that the juror had further information that that person who had spoken to the discharged juror
had been seen in court since and that that was
causing some apprehension such as to suggest that
the usual course of dealing with the matter in
public or in the presence of the accused was not
appropriate.
Whether it was a well-founded and logical

apprehension is not our point. Our point is that
there appeared to be there an atmosphere in that at
least the foreman's mind - and, of course, the
foreman is a member of the jury and also speaks for
the jury - that indicated at least there had been
some discussion between that juror and, at the very
least, the discharged juror, and who is to know

more? It was a note that, in our submission, was
redolent of the suggestion that an atmosphere of
prejudice to the accused was at that stage about in

the jury room; not a logical attitude perhaps,
arising perhaps from a sheer coincidence but given
that, in our submission, it is one of the matters
to which it was necessary for His Honour to go and
to go further than he did in the delivery of that
note.
Now, the relevant passage from .Marie is set

out in the judgment of the Court of Criminal
Appeal, being a portion of the judgment of
His Honour Justice Gibbs, as he then was, at

page 520 of the report. It can be found set out at
page 462 lines 4 to 27, and that is that in the
event of a jury problem which may or may not have

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required a discharge the appeal is appropriately
brought only on the basis of a miscarriage of
justice, but there is little guidance or assistance
to be had as to what those words "miscarriage of
justice" mean in such a case.
In our submission, they do not mean that the

accused has to show that the trial thereafter
miscarried to the point where a wrong verdict was
entered but merely has to show that the events are
such that an independent and reasonable bystander
examining what went on and the whole of the trail
would say that in this event that bystander could
not be sure that the accused had received a fair
trail from an impartial and unbiased jury.
There have been two cases in which there have

been similar problems arise, far more dramatically in the local jurisdiction and less dramatically in
New Zealand in which an examination of the
principles have been embarked upon. Might I hand up to Your Honours the local case, which does not
appear on our list of authorities; that is Emmett
and Masland, (1988) 14 NSWLR 327 - I have a copy
for my friend - and Your Honours we had rung
through, in addition to the cases on our list, Reg
v Burney, a decision of the Court of Appeal in New

Zealand. Emmett and Masland, of course,
involved -

MASON CJ:	Are you handing up Reg v Burney?
MR JAMES:	I understood Your Honours were to be supplied with a copy of Reg v Burney.

MASON CJ:

Yes, you are right.

We have it.

MR JAMES:

Your Honours, Emmett and Masland concerned the

wrong intrusion into a jury's deliberations of a
sheriff's officer. In that case it was in fact
possible to prove by affidavit what course the
sheriff's officer had undertaken and much of the
case is concerned with that but there could be

little disagreement that on the facts of the case,
whether the jury was or was not influenced, the
conduct of the sheriff's officer so impugned the
integrity of the jury as to indicate that there had
been a procedural irregularity such as to deprive
the accused of a fair trial. Indeed, the court
went on to discuss the relevance of such things as
attempted bribes of jurors.

At page 335, just below point D,

Mr Justice Lee, after looking at the question of
whether evidence could be received from the jurors,
returned to the evidence in the present case:

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The affidavits of the two jurors do not
present evidence going to the deliberations of
the jury in the jury room in retirement, but
present evidence establishing that a sheriff's
officer wrongly intruded into the jury's deliberations, took part therein and put pressure upon the jury to come to a verdict
and even expressed an opinion that the accused

were guilty. None of the policies which
support the rule that a juryman cannot impugn
a verdict in which he has participated can
possibly be urged to support a proposition
that the verdict be allowed to stand if those
allegations are true. For the court not to
inquire into the matter would be for the court
to condone the exposure of the jury to
influence in arriving at its verdict by the
very persons entrusted to ensure that the jury
shall conduct its deliberations only with all

jurors present, in secrecy, in private and free from opinions or pressure from anyone whether connected with the trial or not.

To
say that jurors could not reveal misconduct by
sheriff's officers in the jury room would for
all practical purposes be to say that no one
can reveal misconduct of sheriff's officers in
the jury room.

And His Honour goes on to review the evidence
before the Court of Criminal Appeal concerning what
did or did not take place in the jury room and at
page 336, point E, says:
The fundamental consideration is that it

has been shown that the sheriff's officer did
interfere (although he may not have seen it as
such - it was a juror who asked him his
opinion as to whether he thought they were
guilty) directly in the jury's deliberations,
and that that conduct did influence the

resulting verdict. On any view that
constitutes a miscarriage of justice so as to
require that the verdict, infected as it is by

outside influence, be set aside. Whether that same result would follow if Mr Sand Mr B had claimed that they were not influenced need not
be inquired into here, but the very nature of
the misconduct alleged, with its strong
inherent tendency to influence, would no doubt
be a significant matter for consideration
resolving that question.

And His Honour then turned to the conduct of the

sheriff's officers. Mr Justice Enderby agreed with
the thrust of what Mr Justice Lee had said and, at
page 338, point F, sets out some general remarks
upon the jury system and prejudice or influence in

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respect of juries. And at page 339, just below A,
he says this:
It has been proved beyond doubt that

serious irregularities took place. The
appearance of a proper and fair trial is just
as important as a fair trial itself and I
accept the proper statement of principle to
be - that there must be no communication or
risk of communication, between outsiders and
the jury once they have entered upon their
deliberations. The test where that rule is
transgressed is whether the incident was of
such a character that if the verdict were
allowed to stand justice would not appear to
be done or give rise to a reasonable suspicion
concerning the fairness of the trial.

And refers to Choauk and Woolcott Forbes. His
Honour goes on to say, at C:
In my judgment it is not essential to

prove that the jurors, or some of them, were actually influenced by what happened. It is enough for there to be a real suspicion that
they have been so influenced.

And Mr Justice Grove agreed with Mr Justice Lee.
On some matters of detail he did not share his
view.
Your Honours, in Burney, the Court of Appeal

in New Zealand was concerned with another case of
influence in an extraneous sense, this being
whether or not a court officer had, as it were, in
court, bobbed up and down, made gestures, facial
gestures, and so forth, seeming to approve of the
Crown submissions from time to time in the conduct
of the case.
The court held that in the instant matter they

were not satisfied that there was sufficient in it

to uphold the appeal, but did turn to some very
general questions concerning the role of juries and
the question of the jury remaining an unprejudiced
and apparently unbiased body. At page 734, the
court, in a passage commencing at line 3:
The right to a fair hearing in the Courts

is an elementary but fundamental principle of
British justice. It reflects the historical
insistence of the common law that disputes be
settled in a fair, open and even-handed way -

and goes on to refer to various matters by way of
application of those principles. At line 13:

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A jury decision reached in circumstances where there has been a material breach of natural
justice or other material circumstances
reflecting on the integrity of the jury's
verdict is likely to be unsafe and so to be
seen as giving rise to the risk of a
miscarriage of justice -

and I apprehend the words that are referred to
there as the risk of a procedural miscarriage, that
is, the denial of a fair trial. And, goes on to
say:
This case is concerned with the potential

impact of a jury, and in that way on the
administration -

I am sorry, it should read:
This case is concerned with the potential

impact on a jury, and in that way on the
administration of justice, of conduct in the
courtroom.

There is reference to the conduct being:
that of the Judge, or of a Court officer, or
counsel, or a witness or a spectator -

being -
material in determining whether there has been
a breach of the right to a fair hearing such

as to vitiate the verdict. The answer must
depend in the end on an assessment of the
nature and significance of the irregularity
and so involve consideration of fact and
degree.

At the same page, line 35:
An associated consideration is that it is

of fundamental importance that justice should

not only be done but should manifestly and
undoubtedly be seen to be done -

and there is reference there to the Sussex
Justices, Ex Parte HcCarth and Racz in New Zealand
and Smith in New Zealand, for instance, a
conviction was quashed in Smith:
where a member of the Bar who was a pupil in
Chambers had discussed the case with the
appellant and, the prosecution brief having
subsequently been delivered to counsel in the
Chambers in which he was a pupil, he attended
Court and during the greater part of the trial

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sat behind prosecuting counsel ..... no
information obtained by the pupil was divulged
to prosecuting counsel or used in the trial,
but held that it was impossible to say in the
circumstances of the case that justice was
seen to be done, and concluded for that reason
that the material irregularity in the course
of the trial required that the convictions be
quashed.

The New Zealand Court of Appeal continues:

In that case it was not the impact on the

jury of the pupil's conduct which was the
governing consideration, for the members of
the jury were no doubt unaware of his previous

association with the accused and his case. Rather it was how it would appear to those
reasonable members of the community knowing of
that background. Here both aspects are of
importance and in assessing the possible
influence of the impugned conduct on the jury
it is not possible to ask the jurors
themselves: it is well settled public policy
that the Court will not receive evidence from
the jury as to their deliberations ..... In
these circumstances the Court must assess the
potential impact on the jury of the conduct
relied on as demonstrating partiality in this
case against the accused.
Leave aside the question of what the court

clerk did, Your Honours, we would submit that the
further material aspect is the attitude of the
accused's counsel. At page 736, line 45, the court
was of the view that they could assist the impact on
the case of what went on in the time-honoured
fashion by reference to whether objection was raised

by the accused's counsel. No such objection was
raised in that case. And the court was therefore
not satisfied that there was any conduct which might
have influenced the deliberations of the jury in
reaching their verdict or that it would be proper to

conclude that justice had not been seen to be done,
putting the two heads.
In this case, in our submission, the Court of

Criminal Appeal have erred in failing to consider
that relevant matter, and that is why Livesey's
case appears in our outline in the argument, that
is the question of the perception of the public, a
reasonable bystander as representing the public, of
what went on, particularly in the light of the
necessity for an open trial and, further, in the
light of what really, in our submission, would have
persuaded any reasonable and impartial bystander
that at least the foreman of the jury was

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apprehensive in such a way as to fail to come to
the balance of the trial with an open mind.
In that sense, in our submission, the Court of

Criminal Appeal fell into error and also did the

trial judge on this matter of discretion. The
miscarriage, in our submission, when an event of
such degree of seriousness as this occurs, is made
out unless one is positively able to say that it
could not have influenced the jurors and a
reasonable bystander would have regarded it as
immaterial.
Now, it was not that it was so late in the

trial as not to have enabled the obtaining of
another jury. The events were only a complex

leading up to the tenth day of the trial. It was
about, effectively, half-way, something of that
order, into it that this total period arose.

McHUGH J: But the time when it took place has got nothing

to do with it, has it? The real question is
whether there was any reasonable suspicion that the
verdict of guilty was influenced by the jury's fear
of contact between the taxi driver and a juror?

MR JAMES:

And whether an impersonal bystander might

consider that. Your Honours, indeed, often enough
it is said in discharge cases, bearing in mind how
long into the trial it was, we would not interfere
with the trial judge's discretion. In our
submission, what Your Honour has put to me is
perfectly correct, that is it does not matter how
long the trial has gone because if the trial judge
is of the view that there is a substantial danger
of the absence of a fair trial then the jury should
be discharged and it matters not how long the case
has gone.

McHUGH J: Well, the first jury was discharged in this case

because the accused pleaded guilty to count 4

almost straight away. ·

MR JAMES: That is just one illustration. And, Your

Honours, in our submission, the Court of Criminal
Appeal and the trial judge have fallen into error
and on that ground, in addition to the earlier
ground, in our submission, the special leave should be granted and the appeal upheld or, alternatively,
if special leave is to be granted on any ground
that ground should be upheld in the appeal and we
make that on the alternative basis that if special
leave is granted then it is open to argue all
matters of appeal.
I perhaps could hand to Your Honours, simply

in passing, two other cases in which similar sort

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of problems have been dealt with in different
context. There is: Reg v Accused,
(1989) 3 NZLR 27; and, interestingly, there was,
in New Zealand at just about the same time as this
trial, a similar trial involving persons also said
to be associated with the Mr Asia conspiracy in
which there was an event in that case where a juror
sought to obtain some extra information as to
matters that might have gone to the prejudice of
the accused and, indeed, there were trials, as
becomes clear from looking at Sorby's case and
Norton-Bennett, (1990) 1 NZLR 559, going on more or
less simultaneously in Victoria, New South Wales
and New Zealand. Might I hand to Your Honours a
copy of Norton-Bennett. That is where the jurors
sought to embark on some research of their
own -

MASON CJ: But we do not want to bog down looking at all

these particular instances, Mr James.

MR JAMES:	No.
MASON CJ:	We are only concerned with the matter of

principle.

MR JAMES:

I am merely indicating that that is a matter of

principle that has received international
recognition and if the events of this case accord
with that matter of principle then this matter has
never been considered on a proper basis by the
trial judge or the Court of Criminal Appeal.
Consequently, the discretion is assailed - or the
exercise of discretion is assailed and we would ask
the Court to intervene.
It would lead to the same remedy in any event as a misdirection type remedy would lead to, except
for the proposition that, bearing in mind the lapse of time and that the accused has already received a sentence of some 20 years imprisonment, as can be
seen for examining the sentence judgments in the

very great extent the events which also found the Court of Appeal, for events which encompass to a substantial portion of the culpability for the
importing case, it might well be said that it would
be inappropriate to direct a new trial, after such
a lapse of time, in those circumstances.
Your Honours, the remaining point is the

question of whether the offence is an offence known to the law. Your Honours that, if I might take the
Court to it, is ground 1 appearing in the outline.
The form of the indictment, the first indictment is
to be found at pages 1 to 3. In respect of that
indictment it can be noted that he pleaded guilty
to the offence set out on page 2 at lines 19 and

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subsequent and that was a conspiracy between 1
January 1976 and 31 December 1979 to conspire with

Terrence John Clark. It can be seen that count 1,
which appears at page 1, is that he conspired
between the same dates with the same person, to
commit offences, namely to import into Australia
the heroin and it is the same heroin that he is
effectively supplying or conspiring to supply in
the count to which he pleaded guilty.
Because of that plea of guilty a further form

of indictment or a substitute form of indictment

was presented. That appears at page 4. The
backsheet of that indictment, for such assistance
as it might be to identify the offence charged,
appears at page 3 and that refers to
section 233B(l)(b) of the Customs Act and
section 86(l)(a) of the Crimes Act, conspiracy to

import prohibited imports. I am sorry, Your
Honours, it is at page 5:
Conspiracy to import prohibited imports -
Section 233B(l)(b), Customs Act 1901 and
Section 86(l)(a), Crimes Act 1914.

The offence is an offence of conspiring -
to commit offences against a law of the
Commonwealth, namely to import into Australia
prohibited imports to which Section 233B of
the Customs Act applied, to wit, narcotic
goods consisting of ..... heroin, being not less
than the trafficable quantities applicable to
the said narcotic goods in contravention of
the provisions of Section 233B(l)(b) of the
said Act.
The second count, Your Honours will note,

deals with a different date period and that, in
consequence, that the jury may or may not have
accepted the whole of the evidence on the first
count.

At the time at which the offences were committed the Customs Act did not contain what now
appears, in that Act, as a specific offence under
section 233B(l)(cb), the offence that any person
who:
conspires with another person or other persons
to import, bring, or cause to be brought, into
Australia any prohibited imports to which this
section applies -

and also relates to conspiracy to export. What did
appear in section 233B, at that time, were a number
of offences for which penalties were provided as

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set out in section 235 as it then existed.
Section 233B(l) provided in paragraph (a) for possession offences, importing or attempting to import offences - I leave aside, if Your Honours please, export offences - offence of having possession of prohibited imports without reasonable
excuse where those prohibited imports "have been
imported into Australia in contravention of this
Act" and that was the offence considered by this
Court in Milicevic v Campbell which appears on our
list of authorities; the offence of having
prohibited imports reasonably suspected "of having
been imported into Australia in contravention of
this Act"; the offence of aiding, abetting,
counselling, procuring -
or is in any way knowingly concerned in, the
importation into Australia of any prohibited
imports to which this section applies -

and an offence of failing -
to disclose to an officer on demand any
knowledge in his possession or power
concerning the importation or intended
importation.

Various defences are set out in sections (lA),
(1B), (lC) and by 233B(2) the offences are limited
to "prohibited imports" which "are narcotic goods"
and section 235 provides for a calculous of
penalties dependent, at that time, on trafficable

quantities or less. The Act was amended in 1977 to
provide a substantial amendment to section 235, in
particular, by Act No 154 of 1977 and by section 10
of that·Act the previous section 235 was repealed
and the more recently familiar calculous introduced
of:
narcotic goods in relation to ..... trafficable
quantity -

with a penalty of 25 years and a distinction

between cannabis and other narcotic substances
introduced. Schedule VI, as it had formerly
existed, was repealed and the schedule set out in
that Act was substituted.
In 1979 far more dramatic amendments were made. Act No 92 of 1979 substantially amended the
definition section by section 3. In addition, the
provisions of the Act in section 196 for searches
were inserted, were added to by section 196A and an
entire new division, in relation to listening
devices for narcotics offences was inserted by
section 8, with complex provisions relating to

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warrants and the interrelation with the Telephonic
Communications Interception Act.
Section 229A was amended and by section 9

proceeds of drug trafficking were made liable to
forfeiture. Section 233B was amended by section 11
to insert the offence of conspiracy in
paragraph (cb), and to add in "attempting to have
possession" in paragraphs (a) and (b) with a
consequential amendment to paragraph (d).
Section 235 was amended to provide for the present calculus involving commercial quantity and
traffickable quantity by omitting paragraphs (c)
and (d) of section 235(2) and substituting the new
paragraphs.
A new division was inserted by section 13 in relation to recovery of pecuniary penalties for

dealings in narcotic goods. And all in all,
Your Honours, wholesale amendments were made to
that portion of the Customs Act which dealt with
narcotic goods and their prohibition.
At the time of introduction of Act No 92 of

1979 in the second reading speech of which notice
had been given, Mr Fyfe, the Minister for Business
and Community Affairs, moved the speech and
referred to what was intended to be accomplished by

that Act. We point out to Your Honours that all
the overt acts in the present conspiracy were
committed prior to (cb) being inserted in 233B(l),
so that the charge of the offence was not the
charge ot an offence of conspiracy under
section 233B. It was the charge of an offence of conspiracy to breach the laws of the Commonwealth under section 86 of the Commonwealth Crimes Act.
Might I hand up to Your Honours copies of the

second reading speech on the amendment?

MASON CJ: This amendment came into operation when, on

14 September 1979? It is the 1979 amendment.

MR JAMES:

Yes, it is, I think that is the case,

Your Honour, but certainly after all the overt acts
in this case - 14 September.
At page 795, the minister says at the third

paragraph in the right-hand column:
Finally, this Bill seeks to tidy up

several important technical matters that are
now pressing. First, the Bill amends the
present provisions of the Customs Act dealing
with personal body searches to ensure that

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when an internal search is necessary, the
responsibility for that search is placed
solely in the hands of qualified medical
practitioners. Secondly, the Bill provides
for a specific offence of conspiracy in
relation to drug offences. In addition to
completing the natural armoury of offences in
this area, the inclusion of this particular
offence will significantly improve the
investigatory powers relating to narcotics
offences.
Your Honours, earlier he had said that it was

intended to introduce by the amendments powerful
weapons which were to, as it were, exhaust all
avenues in order to put paid to the drug traffic.
Now, Your Honours, it is our short submission in
relation to that, that it could hardly be thought
that the Commonwealth was introducing this
provision, if it was thought that there was already
in existence a perfectly adequate general
conspiracy provision applicable to offences under
section 233B.

GAUDRON J:

Why not?

It might have been thought that the

phone tap provisions did not apply to section 86 of
the Crimes Act conspiracy whereas they would apply
to this one.

MR JAMES:

It might, because of the specific drafting.

However, the phone tap provisions, I had pointed
out to Your Honours to when they were introduced,
and the events one is dealing with here commence
in 1976.

GAUDRON J: But when you read that last sentence,

particularly speaking about the investigatory
powers, the first thing you would think that they
thought they might have been doing was extending
these phone taps to cover conspiracy.

MR JAMES:	And body searches and the whole regalia?
GAUDRON J: Yes.
MR JAMES:	Yes, and for that purpose it was thought that -

or it may have been thought - it was necessary to
introduce a specific offence of conspiracy
under 233B since none of that armoury would have
been available for an offence of conspiracy to
breach a law of the Commonwealth which happened to
be section 233B. But, if that were so, that is
merely a matter of drafting in relation to how the
ambit of searches, of phone taps and so forth,
there would have been no reason to elect any
particular form of drafting to confine things to

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the Customs Act if it had been thought that 86 was
wide enough to take up the 233B offence.

McHUGH J:

Well, it has nothing to do with what the minister thought in 1979. It has not got the

slightest thing to do with it.

The question is

whether when section 233B was passed there was an

intention to specially repeal section 86 so far as

it might apply to it.

MR JAMES:

Or whether the language of section 86 was ever

adequate to adapt itself to a provision drafted in
the fashion that section 233B and section 235 were
and indeed this Court looked at an analogous
question in Beckwith v Reg, (1976) 135 CLR 569 when
it had to consider not only the historical background of the Customs Act but also the
adaptability of drafting of certain general
provisions of the Customs Act to the particular
provisions in that portion of the Act dealing with
narcotic goods.

McHUGH J:	But Beckwith was an attempt case.
MR JAMES:	It matters not, in our submission, your Honour,

whether it be an attempt case, an accessory case or
a conspiracy case; the question always remains as
to the adaptability of the language and the history
of the statute to see whether the concepts sit well
together and Beckwith examined attempt and dealt
with a general provision of the Customs Act in a
section that was simply in terms of relationship a
close section to section 233B and whether that was
applicable to the various offences set up by
section 233B.

McHUGH J:

Yes, but it was within the statute. All it

decided was if you looked at the history it was as
clear as daylight that section 233B was intended to
operate independently of section 237.

MR JAMES:

Yes, Your Honour, but in our submission it goes

further. When one looks at the history of the

statute one can say that it is intended that
section 233B would operate independently of such
provisions of the Commonwealth Crimes Act as
introduce aid, abet, counsel and procure, knowingly
concerned, and indeed conspiracy.

McHUGH J: It does not mention conspiracy.

MR JAMES:

It does not have to, with respect.

The argument

in Beckwith was not so - - -

McHUGH J: It mentioned aids and abets, counsels and

procures, so it deliberately dealt with that part
of it.

Shepherd	49	3/10/90
MR JAMES:	Would section 86 applied to an offence of counselling and procuring an importation?	On the

language of it, in our submission, it would not.
Section 86 was never intended, in our submission,
to catch up all or, indeed, any of the provisions
of 233B and simply to apply section 86 to
paragraph (d) would lead to the same sort of
incongruity as was argued for in Beckwith about
attempt to have in possession.
In our submission, while Beckwith was confined

to that purely factual circumstance, the way in which the court set about its task of examining
whether or not 237 applied to 233B is instructive
on whether or not the provisions of the Crimes Act
were meant to have application to 233B or
whether 233B was intended not to be a code but
whether those provisions of the Customs Act were intended to create offences in relation to drugs
which were to be the totality of those offences.
Your Honours, there were different views in

the court in Beckwith as to how that task should be

examined. Mr Justice Gibbs in his judgment which
commenced at page 570 looked to the question of
whether the provisions of - at the bottom of
page 572, the last two lines, whether section 237
was applicable in the context of section 237 being:
quite generally expressed and they appear on
their face to be intended to be applicable to
an attempt to commit an offence against any
other provision of the Act - including
s 233B(l)(ca).

Now, in ·our submission, section 86 is not even in
as general terms as is section 237.
However, the question is whether the provisions of s 233B are inconsistent with those of s 237 and reveal an intention to
exclude the application of the latter section.
The question is by no means an easy one.

And the proposition was put that 233B was a code
and that proposition was rejected by His Honour on
the basis that there was specific provision in 233B
that you could be prosecuted for other offences but
they are other offences against other sections of
the Act, section 233B(4).
Other offences~ .... are created by the Act -

by the Customs Act itself; 231, 233A are referred
to.

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There would appear to be no reason why some
other sections of the Act, which are quite
generally expressed but which do not
specifically refer to narcotic goods, should

not apply to the offences created bys 233B. And His Honour refers to certain of them.
However, it is unnecessary for the appellant
to establish that section 233B is exclusive
and self-contained. It is enough to show that
it reveals an intention that an attempt to
commit an offence against the provisions of
paragraph (ca) of sub-section (1) shall not
itself be an offence.

Stopping there, Your Honours, there is nothing that
with such matters as are expressed within
is said there to suggest other than that the dealing
it or, at the very least, that the Customs Act is
in effect to be a code for dealing with narcotics

offences at the Commonwealth level. And may I say,
Your Honours, that that is consistent with the
attitude later adopted on the introduction of the
Telephonic Communications Interception Act
reference in the Customs Act to specific
Customs Act interception provisions and to the very
matters that Her Honour Justice Gaudron mentioned
to me. That is to say that it was thought

appropriate to have these matters all contained
within the one statute, rather than to provide for
specific kinds of searches that might be available
for offences created otherwise than under the
Crimes Act, such as section 86.
His Honour went on to discover within the

Customs Act two provisions which might be revealed
as revealing such an intention and the prohibited
imports and exports provisions in 233B(l)(b) are
referred to and the absurdity that Parliament would
attempt to make it an offence to attempt to

Mr Justice McHugh in relation to aid and abet, would submit, to that that I put to attempt, a precisely analogous proposition, we counsel and procure and similarly, if the general
provisions of the Crimes Act relating to aiding and
abetting, counselling and procuring, section 5 and
so forth, were applicable, in our submission, there
would be no need to have provided for one specific
kind of offence in 233B(l)(d) and indeed there is
an intent apparently to limit the circumstances to
which aid and abet, counsel and procure or
knowingly concerned shall be available, to actual
importation, rather than to have in possession of
various kinds, which speaks strongly against the
suggestion that the more general provisions of the

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Crimes Act are to have applicability to offences created by 233B.
His Honour goes on to refer to the second

consideration at page 574 point 3 in the paragraph
first commencing on that page, where he deals with
the various defences referred to for specific
offences of having in possession and deals with it
in these terms, that such defences are not
available on a prosecution for a charge of attempt,
whereas under section 237, nor would they be
available in respect of a conspiracy under
section 86.
His Honour goes on to say:
That section itself creates an offence -

that is section 237 -
it does not merely have the effect that an
attempt to commit an offence against another
section of the Act becomes an offence against

that other section of the Act. It would
therefore not be a defence to a charge of the
kind laid in the present case for the
defendant to prove that the narcotic goods
were not imported into Australia or were not
imported into Australia in contravention of
the Act. Similarly, it would not be a defence
to a charge of attempting to commit an offence
against the provisions of section 233B(l)(c)
to prove that the offender did not know that
the goods in his possession had been imported
into Australia in contravention of the Act.
It is unnecessary to decide whether the
inclusion of subsection (lB) was necessary to
render section 233B(l)(ca) a valid enactment.
I expressed my own tentative opinion on the
subject in Milicevic v Campbell, but the Court
did not finally decide the question.

That was, Your Honours, the case in which the
constitutionality of (ca) was upheld amongst other

reasons on the basis that whoever had the onus,
there could not be a conviction at the end of the
day unless the goods were prohibited imports. But,
His Honour goes on to point out that 233B set out
for these various offences special defences and:
It would be expected that similar safeguards
would be provided if -

there were to be the extension to 233B of 237.
There was also an argument that:
such an offence as attempting to have in
possession -

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could not exist in the nature of things but that was not such as to mind His Honour to uphold the appeal on that basis.
His Honour dealt with an oft quoted passage at

page 576 concerning the interpretation of penal
statutes by the ordinary rules but where ambiguity
or doubt arises, the traditional rule that doubt
may be resolved in favour of the subject by
refusing to extend the category of criminal
offences, and that is peculiarly applicable, in our
submission, when one comes to look at section 86
and its relationship with section 233B. His Honour
then goes on to look at the various constructions
available at page 577 in reviewing the various
offences set up by section 233B and reaches the
conclusion which appears at page 578 that on an
examination comparison of the two statutes basis,
there was a contrary intention or, at least, that
it was doubtful, in which case that doubt should be
resolved in favour of the subject.
Mr Justice Stephen was of the same view.

Your Honour Mr Justice Mason resorted to the
history of the statute as well as a comparison of its extant provisions, and in that regard pointed out at page 578:
The history of the Customs Act indicates quite
persuasively that s.233B was intended from its
very inception to operate independently of the

provisions of s.237.
So much, we say, can be said of section 237,

but that historical review demonstrates, in our
submission, in summary with great clarity that
those provisions of the Customs Act were not
intended to catch up the general provisions of the

Crimes Act. And Your Honour reached the
conclusion at page 581 that particularly when one
came to look at the aiding and abetting provision,
the attempt provision, that there one could say
that it was clear that section 233B had an

operation independent of sections 236 and 237, even
within the same statute.
Your Honour went on to examine the various

defences. Mr Justice Jacobs treated the matter as
a matter of clear statutory construction.
Mr Justice Murphy appeared to treat it as though it
came close to being a code, and in particular
adverted to some of the problems of penalty that
later were adverted to in Kingswell and Heaton in
this Court.
Your Honours, section 86 of the Crimes Act is

one of the complex of sections which extend to
various Commonwealth statutes and which provides

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for an offence created by that section. The
Crimes Act indeed sets up various sections, some of which are mirrored in the Customs Act, some of

which are not. As the Crimes Act presently stands,
it has been substantially amended since 1976, but
if Your Honours were to turn, for instance, to
section 5 dealing with aiders and abettors, aiding
and abetting, counselling or procuring -
or by any act or omission is in any way
directly or indirectly knowingly concerned in,
or party to, the commission of any offence
against any law of the Commonwealth -

the provision in the Crimes Act as to penalties
which does not sit well with the section 235
calculus; provision as to accessories after the
fact, section 6; the provisions of the Crimes Act
relating to searches, warrants and so forth.
Your Honours, section 86 in itself presently
prescribes an offence:
A person who conspires with another person -
(a) to commit an offence against a law of the
Commonwealth;
(b) to prevent or defeat the execution or
enforcement of a law of the Commonwealth;
(c) to effect a purpose that is unlawful under
a law of the Commonwealth; or
(d) to effect a lawful purpose by means that
are unlawful under a law of the Commonwealth
shall be guilty of an indictable offence.

The penalty prescribed is imprisonment for three
years, but notwithstanding the penalty thus
prescribed -
(b) where the offender conspired with another
person to commit an offence against a law of
the Commonwealth that is punishable by

imprisonment for a greater period than 3 years
the offender is punishable as if he had
committed that offence.
Those words "that offence", when one comes to
consider section 235 and the penalties prescribed
there and their relationship to section 233B,
almost go so far as to involve one in an
examination on a section 86 conspiracy of whether
the same questions that were looked at in Kingswell
and Heaton could be applicable to a section 86
conspiracy as opposed to an offence under
section 233B.

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The application of section 86 to 233B and of

235 of the very, very general provisions of
section 86 is a matter, in our submission, of some
very great difficulty and the very short point is that the legislature did not intend when the 233B narcotics provisions were enacted, to enact those on the basis that conspiracy to commit a breach of
the laws of the Commonwealth was applicable to
them.

McHUGH J: That is not the question, is it?

MR JAMES:

I am sorry?

McHUGH J: That is not the question, what they intended to

do, the question is whether they intended to appeal
section 86 in so far as it applied to them?

MR JAMES: With respect, no, Your Honour. In our

submission, it is matter of a question of reading
both provisions to ascertain whether the language is such as to exclude the operation of section 86
when 233B and its provisions are introduced or,
alternatively, to construe them both to see where
they sit together because one only gets to the
question of repeal if one can say that 86 did apply
and then a subsequent measure took away that
application.
The true question is, in our submission, how

well do they sit together and, of course, that may
be, at the end of the day, the same test as
deciding whether there was or was not a
repeal - - -

McHUGH J: But 86 lies there in wait for any offence

promulgated by the Commonwealth and creates the
offence of conspiracy?

MR JAMES:

Not for Mr Unger, Your Honour.

MCHUGH J: Not for?

MR JAMES:

Not for Mr Unger and not, we would submit, on the

analogy of Hallan v Lee for certain offences
against the laws of the Commonwealth where the
language of the offence itself is such as to speak
against section 86.

McHUGH J:

??? the provisions of the substance of an offence

indicate a legislative intention to exclude
section 86.

MR JAMES: Well, it is not just that, Your Honour. In

Cahill, a New South Wales case, Mr Justice Reynolds
examined the applicability of section 86 to
conspiracies, in effect, to prevent the execution

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of the Migration Act by what was said to be sham
marriages and perhaps if I could take Your Honours
to Reg v Cahill, (1978) 2 NSWLR 453.
There there was some examination of whether or not there was a conspiracy -
to prevent the enforcement of the law of the Commonwealth, to wit the Migration Act 1958.

Leave aside that His Honour the Chief Justice
Mr Justice Street was of the view that getting
married was not by itself an attempt to prevent the
enforcement of the Migration Act and that people
married for all manner of reasons and that the
Migration Act did not make it unlawful to marry migrants on the basis that·they might thereby
obtain residence in Australia, Mr Justice Reynolds
embarked on quite a detailed discussion of the
ambit of the section 86 power and the ambit of the
offence. That appears in his judgment which
commences at page 459 and the relevant portion of
it appears at page 462 immediately below point B.
Your Honours, I note the time. Are Your Honours
minded to sit beyond 1 o'clock?

MASON CJ:	No.
MR JAMES:	I would rather, Your Honours, turn to this, as it

is a discrete aspect of my argument - - -

MASON CJ:

Yes, very well. We will adjourn now until 2.15.

AT 12.58 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ: Yes, Mr James?

MR JAMES: Prior to the luncheon adjournment, I was taking

the Court to Mr Justice Reynolds' discussion in
Cahill of the nature of a section 86 crime. In that case, a ruling had been reserved by way of a stated case for the Court of Criminal Appeal, a ruling of the trial judge, and the question was

whether it was erroneous in point of law. It
appears at page 461 of the report which is to be

found at (1978) 2 NSWLR at 453. On page 461, just
below F:

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The question reserved for the
determination of this Court was whether a
ruling was erroneous in point of law. That
ruling was that there was evidence fit to go
to the jury as to whether the agreement
between the accused contemplated conduct so
offensive to public morality that it could be
said to be unlawful; and, if the jury did so
find it to be unlawful, the jury would be
entitled to convict the accused on the first
count of the indictment, in that they
conspired together to achieve a lawful object
by unlawful means.

His Honour was of the view, leaving aside problems
as to what was the lawful object, at 462 point B:
For reasons which will appear, I would

hold that the second part of the ruling was
erroneous in point of law, because it poses a
question which is, in my view, irrelevant to a
consideration of the crime charged.
The offence charged is a statutory one,

created by the Australian Parliament pursuant
to its incidental powers under
section Sl(xxxix) of the Constitution, and
there has to be a connection between the crime

and a Commonwealth power. The Parliament of
the Commonwealth has no power to legislate
generally as to the crime of conspiracy; and
it could not, for example, legislate validly
to provide for a crime of agreeing to achieve
a lawful purpose by unlawful means.
That this is so is plainly acknowledged by section 86(l)(d) of the Commonwealth Crimes
Act -

If I might stop there, Your Honours. Our point
here is not a point of constitutional invalidity,
it is a point of construction of the provision
itself and we pray in aid what His Honour says here

as imposing a natural limitation on the language of a Commonwealth crime created in such a fashion:
That this is so is plainly acknowledged by section 86(1)(d) of the Commonwealth Crimes
Act, which provides that it is an indictable
offence to conspire with another person to
effect a lawful purpose by means that are
unlawful under a law of the Commonwealth. It
would seem that the jury have been invited to
convict of a Commonwealth offence of
conspiracy in respect of the employment of
means which are not unlawful under a law of
the Commonwealth, but are only unlawful

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because they are repugnant to concepts of
morality.
Section 86 accepts the notion that the

gist of the common law crime of conspiracy is
an agreement to effect an unlawful purpose or to effect a lawful purpose by unlawful means.

Again, pausing, the traditional Denman antithesis.
Under the relevant head of power the
Parliament can declare conduct to be unlawful
by creating offences or by declaring it so,
and it can do so in this penal statute or in
another statute. Whether it be the purpose or
the means which is the necessary unlawful
ingredient, it must be unlawful by reason by
the provisions of a law of the Commonwealth.
The effect of s 86(l)(b) is to provide,

in effect, that the preventing or defeating of
the execution or enforcement of a law of the
Commonwealth is an unlawful purpose. It is
akin to the common law conspiracy to prevent
or defeat the course of justice, and is an
extension of the Commonwealth counterpart of
it which is found in ss 42 and 43 of the
Commonwealth Crimes Act.
The use of the word "conspires" in the

definition of the crime has occasioned much of
the difficulty. It cannot mean "commits the
offence known to the common law as conspiracy"
or some part of that offence, for that would
be an unacceptable way to prescribe the

ingredients of a statutory offence. The word
must have the same meaning when applied to
each lettered paragraph, and it cannot have
that extended meaning when applied to pars (c)
and (d) in particular. In my opinion, in this
context the word "conspires" simply means
"agrees", as in one usage specified in the

concur, co-operate as by intention (so as to Oxford English Dictionary: "(b) To combine,
effect a certain result)."
Thus viewed, the relevant question becomes one of whether the evidence can support a finding that an accused person
agreed to effect the unlawful purpose of
preventing the enforcement of a law of the
Commonwealth.

Your Honours, His Honour is there concerned to distinguish between section 86 and the common law

crime of conspiracy. The common law crime of
conspiracy, of course, extends more broadly than

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the enumerated paragraphs of section 86 and,
indeed, in our submission, there is implicitly
contained in section 86, and particularly when one
has resort to section 86(l)(a), a requirement that
there be a capable adaptation of the language of
section 86 without stretching to the crime as it is
created by the Act of Parliament which creates it.

DAWSON J: What is it that you say makes it difficult to

apply section 86 to section 233B(l)(b)?

MR JAMES:	The whole of 233(l)(b), Your Honour.
DAWSON J:	No, not the whole.
MR JAMES:	Not just the particular individual paragraph.

The law of the Commonwealth as we see it - - -

DAWSON J: Yes, but why do you go to the whole of the

paragraph? Why cannot you just look at (b)? It
may not be applicable to other paragraphs?

MR JAMES:

Because to do that, Your Honour, would be to take

one subparagraph of an enactment - of the section
and apply 86 to that particular paragraph rather
than applying it to the section as a whole.

DAWSON J:	Why cannot you do that?
MR JAMES:	Well, it might be able to do that but we say that

when one considers the whole of the enactment,
which is what one is about when one is considering
the section, there is evinced an intention,
overall, that it should not be, as it were - - -

DAWSON J:

Why cannot you have - if you are going to evince

an intention it might be evinced in a particular
paragraph and not in another; aiding and abetting,
for instance, but not in relation to (b),
importing.

MR JAMES:

Yes, and what one would do, in those

circumstances, Your Honour, is to take the section

separate from the Customs Act history as a whole

and the interpretation of that section. One can
perhaps find an applicability for 86 on a natural
construction of language if one takes it only
segmentedly but, in our submission, that is to
require of the legislature an intent that goes
beyond what they had intended the Customs Act, and
particularly these provisions, to do in a
particular part of that Act which appears to set
out or intend to set out exhaustively the offences
to be committed in relation to narcotic goods.

DAWSON J:

On the other hand you could look at section 86

and say it was intended to apply where it could.

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MR JAMES:	Yes.
DAWSON J:	And it can apply to (b).
MR JAMES:	It can apply to (b) but, in our submission, to

take (b) out of that context - and I am just
repeating myself really, Your Honour - is to
negate, as it were, the history and the drafting of
the whole section but, Your Honour, it is a
different thing, in our submission, to common law
conspiracy and its applicability to common law
crimes and it is a real question of statutory
construction as Beckwith suggested. The same
principles apply and very much the same

considerations. Mr Justice Mahoney, in fact in
very short form, in the same case at page 464 says
at below point D:
Section 86(l)(b) creates a statutory

offence, and effect must be given to it
according to the proper meaning of its terms.
If the terms of the paragraph be given their
ordinary natural meaning, it may be that, as
the Crown in the present case accepted, it
would render unlawful things which, prima
facie, it might be thought could not have been
intended to constitute crimes under the
Commonwealth Crimes Act. The Crown has,
properly in accordance with this view, argued that the ordinary meaning of the terms of the
paragraph are to be limited, and submissions
have been made by it as to the limitation
which should, for this purpose, be adopted.
Thus, it was submitted that, under the general
law of conspiracy, two things are to be taken
as established: first, that there is a
criminal conspiracy where parties have, in the
relevant sense, conspired together to do a
lawful thing by unlawful means; and, second,
that there will be unlawful means for this
purpose, if that which the parties conspired to do involves either deception or something
which is, as it was pout to the jury in the

present case, offensive to public morality;

And there is reference to Bhagwan and Boston.
In the present case, the Crown's argument
proceeded, the parties conspired to enter into
marriages which, having regard to their
context, purpose and intention, were offensive to public morality and involved the element of deception sufficient to give rise to a
criminal conspiracy. What they were to do,
the argument proceeded, operated to prevent or
defeat the enforcement of the Migration Act

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and, therefore, the facts fell within the
paragraph.

And His Honour draws at the top of page 465 the
distinction between the common law offence
ofcriminal conspiracy generally and the charge of
conspiracy to prevent the enforcement of the
Migration Act.
Your Honours, there is little law on the ambit

of section 86. There have been controversies in
various of the tax cases, including such cases as
Forsyth and ..... concerning the ambit of section 86 as it might relate to an effective scheme for tax

avoidance; a scheme which might be outside the

contemplation of an Act. The words of the section
are very very general indeed, particularly where
they relate to prevention or execution, but where
there is, in our submission, a statute which
provides a particular series of offences, all to
deal with a subject-matter of a particularly
defined kind, in a part of the Act specifically set
up to deal with that matter and provides a specific series of penalties, those penalties dependent upon
what quantities of a substance have been involved
in the commission of the offence, it becomes very
difficult to apply the section 86 language and
calculus to the section, particularly, in our
submission, where since section 86 had existed ever
since Kid.man's day, and similarly concepts such as
aid and abet, counsel and procure and knowingly
concerned had existed for a very long time before,
the Commonwealth has seen fit to enact those
specific concepts as part of the section, but not
any offence of conspiracy.
That really, Your Honours, is all that I can

say on this aspect and Your Honours have, on one of
the grounds, invited me to deal with the merits of
that particular ground, but I should before leaving
my argument turn to Liberato, (1985) 159 CLR 507,
and referring to the judgment of the majority when

it comes to the question of the grant of special
leave and whether this Court would embark upon the
merits of an appeal, at page 508 where the Court
has examined what occurred in that case appears in
the judgment of the majority, the second
paragraph:
There is no dispute that there were

defects in the summing up given by the learned
trial judge and that these defects were
correctly identified by the Court of Criminal
Appeal. That Court, however, reached the
conclusion that there was no substantial
miscarriage of justice within the meaning of
the proviso to s.353(1) of the Criminal Law

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Consolidation Act Act 1935 (S.A.) that would
conclusion which is the subject of complaint justify an order for retrial. It is this
in this application.
It is not suggested that the Court of

Criminal Appeal fell into any error of law in
its consideration of the summing up or that it
failed to recognize any inaccuracy or insufficiency in the directions given.

Your Honours, we would submit that we have the
benefit of a finding that the trial judge fell into
error in relation to the consideration of the
summing up and there was an insufficiency in the
directions given and nor is it suggested that the
Court misconceived the principles governing the
application of the proviso. In our submission, the
Court second constituted is that it did fall into that error, but the Court goes on to say:
The Court reached its conclusion after an
examination of the summing up as a whole and
of all of the evidence given at the trial.
There is nothing before us which would
indicate that this material is incapable of
supporting the view taken by the Court.
It has been repeatedly affirmed by this

Court that it is not a court of criminal
appeal and that it will not grant special
leave to appeal in criminal cases unless some
point of general importance is involved -

and in particular the Court goes on to say that -
It would not be in accordance with that
practice to grant special leave to appeal in
this case where no question of law is involved
and where this Court is merely being asked to
substitute for the view taken by the Court of
Criminal Appeal a different view of the evidence and of the effect of the summing up:

cf. Reg v Howe.
Your Honours, in essence, what happened when

the proviso was applied by the second court was
that that court, wrongly interpreting the proviso
in our submission, did embark on a substituted view
- a different view of the evidence and the effect
of the summing up and in that sense, as is pointed
out by the minority in Liberato, we have, as it
were, only one avenue of appeal and have been
deprived of that by the way in which the court, by
coincidence, reconstituted itself. In those
circumstances, we would submit special leave should
be granted generally for the three points that have

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been argued. Unless I can assist the Court further
they are the submissions we would make on this
application.

GAUDRON J:	Mr James, you do not make any point about the period 14 September to 31 December 1979 by
reference to the amendments.

MR JAMES: Practically no, Your Honour.

GAUDRON J: Because, in effect, it is the same offence, is

it not?

MR JAMES:

Yes.

GAUDRON J: Yes, thank you.

MASON CJ: Yes, thank you, Mr James. Yes, Mr McAlary, the

Court need only trouble you on the Chamberlain
point.

MR McALARY: If Your Honour pleases. Your Honours, in the

Court of Criminal Appeal the major issue which was debated was whether or not this Court in
Chamberlain had laid down - I am sorry,
Your Honours, I forgot there are two sets of
submissions that I need to provide to Your Honours.
One develops the notice of contention and the other

deals with my friend's submissions. I am sorry
that I did not hand them up immediately,
Your Honours, but in the Court of Appeal in
New South Wales now you are forced to file them
24 hours beforehand which makes an impression on
one 24 hours beforehand, so they are read by the
court in the day before.

MASON CJ: Yes.

MR McALARY:

Your Honour, I will start with the notice of contention because logically that is where one

would need to start, as Yoµr Honour will

appreciate. In the Court of Criminal Appeal the

issue was whether this Court laid down in

Chamberlain a principle to be observed in relation

to directions to juries. That was the major issue

which was debated and Your Honours will appreciate

that the Chief Justice took one view and the

dissentient, Mr Justice Lee, took the other view.

The cases that I refer to in the first

paragraph of the notice of contention, that is
Sorby's case, Matthews case and Dominguez, are
decisions of the Supreme Court of Victoria, South Australia and the Federal Court in which the view
that I have just been propounding was accepted.

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I do not propose to take Your Honours back

through Chamberlain though I might ask Your Honours
to take a note of the references because I submit

it is clear that if one looks at what fell from
Your Honour the Chief Justice at page 539; what
fell from Mr Justice Deane at 611 and subsequently
at 622 and 629 and Mr Justice Brennan at 600, what
this Court was doing in Chamberlain was examining
the evidence to see whether or not a jury
approaching it by reference to the criteria that
would have been formulated for the approach to
evidence could have been satisfied from that
evidence, beyond reasonable doubt, about a number
of matters.
But Chamberlain was not laying down any rule

that any particular direction should be given to
juries in relation to this evidentiary feature.

Indeed, the evidentiary feature is really a

matter which arises in aid of the general
obligation of the Crown to prove its case beyond

reasonable doubt. Your Honours will appreciate the
long-standing direction which Your Honour
Mr Justice Dawson formulated that you can draw an
inference if it is the only rational inference
available, does not have to be given in every case
of circumstantial evidence. This Court so held in
Grant v Reg, (1975) ALR 503.
If there is any obligation to give what has

been referred to as the Chamberlain direction, then
the need to give it must flow out of the necessity
to ensure that the Crown has fulfilled its
obligation of proving its case beyond reasonable

doubt. Now, in some circumstances there could be
an obligation, we concede, to give a Chamberlain
direction, but it would be only in the cases where
a Chamberlain direction was appropriate to the
circumstances which were before the trial judge.
There is no point in giving it unless it is going
to achieve some purpose.

My friend does not refer to any case where

this matter is actually dealt with by this Court.
I think Your Honour the Chief Justice asked him
that question earlier and he was unable to give any
answer affirmatively on some case. So, one is
driven back to first principles to see in what
circumstances a direction of the Chamberlain type
would be appropriate and we would concede that
there can be circumstances where such a direction

would be appropriate. You would reach that
conclusion if you were looking at it as a matter of
principle by reference to general considerations as
to the way people reason. There is a well
recognized distinction of a philosophical character

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between deductive reasoning and inductive
reasoning. The deduction situation arises where
you seek to reach a conclusion by reference to a
series of existing propositions. In a formal way,
in Greek or Aristotelian logic it would be by the
use of the syllogism or the sorites.
Now, in those circumstances there are two

matters which need to be kept in mind in deciding

whether the conclusion reached is valid. The first
is whether the reasoning used is valid, that is,
whether the mood of the syllogism or the sorites is
valid, but the second is whether the propositions
contained in the premises are established.
Chamberlain says nothing about reasoning itself.
What it talks about is the level of proof to be established in relation to a series of facts from
which one is going to deduce a conclusion.
If you look at Chamberlain as a case, one would conclude that it is a linked case. It is a
case of deductive reasoning. Let me say that it
falls, in our submission, within precisely the same
categorization as the decision of this Court in
Plomp.

Can I just pause to deal with Plomp for a moment. Your Honours will remember Plomp.

It was

a woman who was drowned in the surf. She was a
good swimmer. It was a light surf such as would
not normally lead to a good swimmer to be drowned.

She was close to her husband. He was the only

person who could have interfered with her. He had
a powerful motive for wanting to get rid of her
because he had already contracted liaison with
another woman and he offered her marriage and
matters of that character.

So in Plomp's case there were some five interlinked facts:

a good swimmer in a quiet surf
whose husband wanted to get rid of her; he was the
only person who was near her and she drowned. Pull
out any one of those facts and the case against

the - - -

DAWSON J: That strikes me as inductive reasoning.

MR McALARY: Well, I would call it deductive, but -

DAWSON J:

It does not seem like that to me.

MR McALARY: Well, I bow to Your Honour's view, but - - -

DAWSON J: Perhaps it does not matter.

MR McALARY:

It does not matter.

I realize that we probably

had different philosophy teachers, because

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certainly in Sydney University it would have been
regarded in the 40s as a case of deductive
reasoning.
But whatever label you wish to put on the

category, what I am saying is you have a series of
interlinked propositions. If one of those
propositions falls out, then the whole chain is
destroyed and it opens and the accused goes.

Now, in such a case there could be every

reason to tell the jury in amplification of the
obligation of the Crown to prove its case beyond
reasonable doubt, that if the Crown could not
establish each of those facts beyond reasonable
doubt, then the Crown case must necessarily fail.
Mr Justice Roden makes the same sort of point in
relation to some cases of confession where the only
material before the court is the confession. If
you are not satisfied about that beyond reasonable
doubt that it was obtained voluntarily, then the
Crown case fails, and there could be proper reason
to give such a direction to the jury.
But, Your Honours, it could not be the case

that one could be required to give a direction to
the jury which would be useless to them in carrying

out their function. And to give the direction
which my friend sought in this case would be simply
confusing and would place the jury in a situation
where they would not be able to work out precisely
what they were expected to do.
Now, Your Honour, I am happy to concede that in appropriate cases - and I would have regarded
Chamberlain as one of them - that it might well be
the case that a direction of the Chamberlain type
would be given to the jury because it would
emphasize the need of the Crown to prove each of
the facts which tie together to reach the
conclusion. But that is because they are all
interlinked. And when Your· Honours were examining

and Your Honour was arguing Chamberlain, it must
have been the case looking at that sort of
situation one would, in examining the approach that
Your Honours would take looking at the jury's
verdict and whether it could be regarded as safe
and satisfactory, because there was adequate
evidence to support in the important links in the
chain, that you would approach it that way. But when you move to the sort of case that we
are now dealing with, a case in which you have a
whole variety of facts coming from a whole variety
of sources, it is impossible to understand how the
Chamberlain direction could operate.

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Can I stop for a moment and spend a minute or

two on the factual background to the case? There
was firstly evidence that when Clark was arrested
in Brisbane in June, I think, of whatever the year
was, 1978, he and Shepherd were in the one cell and
a conversation was overheard by two police
officers. That was direct evidence. And it stood
by itself as a separate and discrete fact.
Then there was evidence that shortly after this conversation when Shepherd had been released
from gaol, in the next week or two he spoke to two
of Clark's employees, the woman Dine and
Stephen Muhary, and told them that he had now taken
over the running of the organization. Both those
pieces of evidence stood separate from each other.
They were discrete. They were not interlinked in any way.
Then there was evidence of Shepherd's

participation in a number of importations of heroin
through a series of couriers who gave evidence
involving Shepherd to a lesser or greater extent.
One, for example, gave evidence that he paid her
beforehand. When she came back with the heroin he
received it off her and then he paid her off.
Others gave evidence of different levels of
involvement. None of them were supported really by one another except perhaps those the subject of the
alternate counts.
Finally, Your Honour, there was evidence - and

this was of a documentary character - showing a
split of some $2 million Hong Kong between
Shepherd, using his attorney Wynn, who held a power
of attorney from Shepherd, on the one hand and
Clark on the other, through a man Scott. That evidence came from independent sources no way
involved with any of the others.
So you had a series, not of strands which were

interlinked but you had a series of discrete

separate isolated facts, proof of none of which

would make more probably the next. In other words,
Your Honours, proof that there had been a division of $2 million Hong Kong in May 1979 did not make
more probable the claims of the police officers
that they heard a particular conversation in
the ...... in June 1978.

McHUGH J:

I am not sure though that you can isolate the
police officer's conversation so readily as you

appear to do.

In a real sense, the other evidence

to which you have referred and other evidence in

the case gave it colour or in fact explained the

police officer's evidence, did it not?

I mean, the

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police officer's evidence was quite narrow, was it
not?

MR McALARY:

Yes, it was, indeed, Your Honour.

McHUGH J: Just to take over or keep the organization going,

was it not?

MR McALARY:

Yes, I think it says, "I'm going into gaol for

a period, you'll have to take over the reins and

run it. I don't want to close it down.", or
something.

McHUGH J:

You see, when you get evidence from Allison Dine

that she visited Clark in gaol and he told her that
the organization was to keep going and she was to
meet Choo in wherever it was, Singapore or
somewhere, and get money.from Shepherd, it is all
tied in with that, is it not?

MR McALARY:

Your Honour, only in the sense that if you look

at it it is a quite logical development of what was
occurring. In other words, Clark was originally
importing heroin and that was common ground;

Shepherd was buying it off him. When Clark was
arrested and sent to New Zealand on his trial the

police officers overheard the conversation. One
would expect then something to happen in accordance
with that and one was able to find material from
Dine and other people. But you either believe Dine and Muhary and those people or you did not? You
could not get any justification or support for
their evidence from the fact that the police had
claimed they had heard a conversation some months
before.
What I am seeking to say, Your Honour, is that

as a matter of logic one discrete fact does not
become more probable by reference to other facts
that are just not connected with it. And that is,
perhaps, the essential point. But, Your Honours,
what I think I should do is to read to Your Honours
the way in which the trial judge saw the Crown case

because my friend has sought to assert - he not
being at the trial and therefore having a second-
class knowledge of it - a whole series of matters
about the way in which the Crown case was
conducted.
Although I conducted it I do not claim to have

that good memory of it five years afterwards but
what I do suggest, with respect, is that one should
look at what the trial judge said about the Crown
case at several different places because in no way could one say my friend's strand analogy where you are interplaiting a number of strands to make a
rope is correct.

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Could I take Your Honours to 59 and 60 in the

first appeal book? If you go to about line 12,
His Honour is directing the jury:
It is a question of looking at the evidence
from both aspects, both the Crown and the
defence case, in order for you to determine
whether you accept that the Crown has proved

its case beyond reasonable doubt. I repeat
again: it is not a question of comparison in

that sense. The Crown has the onus and the

accused has no onus at all. So please bear
that in mind, members of the jury.
The Crown puts its case on the first

count in two ways, as I understand it, and you

will recall Mr McAlary, senior counsel for the
Crown, in his address to you described the
primary way he put his case -

I am -
summarising it - of course in summarising it
is not possible for me to go to every point or all the evidence otherwise you would be driven
mad and that would be unreasonable, but what I
am doing is giving you a summary - if I did
not mention something -

do not worry. And then, down at 30 -
In summary form, the Crown's primary case

is this: the Crown says that on the
uncontradicted evidence it would appear that
Clark and certainly Choo prior to June 1976
were involved in the importation of heroin
into this country on a large scale. Next, the
Crown says -

that there is an organization which results in
crime and they go through the historical sequence.
And then, at line 25:

The Crown then says there is the evidence of
the two police officers, the Queensland police
officers, Legros and Robson who, on the
instructions of a superior officer of the
Crime Intelligence Bureau in Queensland, were

placed in the cell acting as watchhouse prisoners; that a conversation is then
overheard between Clark and Shepherd when
Shepherd is placed in the cell. There is

evidence that you must bear in mind that Clark had, apparently, absconded from bail on a drug charge in New Zealand and had come to
Australia.

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And then at line 25:
As a result of Clark's arrest he would not,
therefore, be in a position to continue his
part of the operation and that contrary
arrangements had to be made -

and then if I could move over to, I think, about
page 64 at line 16:
The Crown then goes on to submit to you

that in addition to the direct evidence that
they say follows thereafter there was a flood
of heroin coming into the country and that
this continued and because of Clark's
unavailability, Shepherd was forced by
circumstances to display himself more than
previously and the Crown says that when you
look at the evidence of the Jacka run that the
reason why Shepherd was in a position, the
Crown submits, or paid Jacka was because Clark
was not there and that he had stepped into the
breech.

That is an important factor. And then we run
through a number of couriers going backwards and
forwards, but if one goes to page 69 at line 15:
The Crown then says that looking at that overall, the evidence of the couriers and Dine
and others support the accused's involvement.
He says, further, of course, that a further
matter of primary importance that you would have regard to in assessing the evidence of the. various witnesses is the financial

matters. I am not going to go into them in
great detail at the moment -

line 25:
The Crown's case is that the only inference you can draw is that there was a

power of attorney -

and then he goes on to examine that; deals with
the splitting of the profits at page 70 and I need
not read that to you. At the bottom of page 72:
The Crown relies very heavily on that

evidence to say that here was a split of the
proceeds -

and then, Your Honours, at page 75 at line 11:
That is, as I understand it, the primary way

in which the Crown puts its case. It also
puts its case another way: ie if you reject

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tracing those acts and the combination of those acts, the overt acts, leaving aside the
the police evidence, that you would have
regard to the acts of the accused and what the
police evidence, you would conclude that a
conspiracy is clearly established.

So the primary way we put the case was through the
police evidence, but then there is another way. If
you reject the police evidence you go to the acts
of the accused. His Honour continues:
Perhaps there is one matter that I should

come to now and give you a direction about.
In this case when you come to consider the evidence of certain of these witnesses in the
manner in which you have been asked to, and
you will recall that Mr Van Aalst in his
address to you, and this is not being critical of him in any way, please do not misunderstand me, made great emphasis to you on the
credibility of the various witnesses,
including the police officers. In fact, as
the Crown has put it, when you examine the
manner of the putting of the defence case, it
is all a fabrication; all witnesses here in
every respect where they come into contact, so
they say, with the accused, they have
fabricated their evidence. That is quite
clearly, putting it in a nutshell, what the
defence said.
Mr Van Aalst puts the case on a number of
bases, but fundamentally, it is on

fabrication. You will recall the Crown
enumerated a number of instances, but it
happened on every occasion that where the
accused was personally involved, the question
was put; you have made that up, that is not
true, you fabricated it.

That is the form of question. That was invariably

so of all the witnesses - all the queries and the
police fabricated their evidence.
Now, Your Honour, what the case put by the

Crown was, the primary case, was based upon the
police evidence. Then, as His Honour says, at
page 75, at line 15:
It also puts its case another way: i.e. if
you reject the police evidence, that you would
have regard to the acts of the accused and
what the Crown described as the
co-conspirators and by tracing those acts and
the combination of those acts, the overt acts,

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leaving aside the police evidence, you would
conclude that a conspiracy is clearly
established.

Now, if I could then take Your Honours to 193 where
His Honour purports to offer a summary on, I think,
the second or third day of the summing up, at
line 6:
May I just very shortly sum-up the way

the Crown puts their case. Here you have this

large scale operation. You have a close
association between the accused and all the
participants. You would conclude from the
police evidence and what happened with the
couriers moving backwards and forwards and
what they say happened, that clearly the

accused was involved. He says further that if
you then look at what happened - where they
went, their movements, the assumed names,
moving around and living in America that they
are all important pieces of evidence and when
you look at the financial evidence, it is
very, very strong evidence of a splitting up
of the funds. That is, very shortly, the way
the Crown puts its case. They say that if you
were to reject the police then you would look
at the activities, the overt acts, of the
various accused and the other persons and by
those acts and his association and connection
with the activities in combination with others
who obviously engaged in it, you could only
come to one conclusion. Even if you reject
the police evidence, he says you would accept
the financial evidence which would assist you
in that regard.

Your Honours, we would submit, that this was not a
case in which a Chamberlain direction should be
given. It would not have assisted the jury in
discharging their function. Indeed, one cannot
quite understand how you could do it in relation to

such a complexity of material which consists of,
firstly, direct evidence of the conspiratorial
agreement if the police were to be accepted.
Secondly, statements by the accused himself as to
what function he was fulfilling. Thirdly, evidence
from couriers and others who showed the accused -
if they are believed - carrying out certain parts
of the activity of importing heroin. All that
evidence said by the accused to be fabrications.
The defence - and I can give you another passage
where His Honour said, in arguing with Mr Van
Aalst, that invariably and to every witness - at
217, there was an argument between His Honour and
Mr Van Aalst; at line 45, His Honour says:

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The only thing about that is that in your
cross-examination you put to all the witnesses
that they were fabricating their evidence - to
every witness.

Now, Your Honour, that was the basic defence case and it was ultimately - - -

McHUGH J: That is except for the - the United States

detective was not cross-examined at all.

MR McALARY:

But he did not give any evidence that mattered,

Mr Fea.

MCHUGH J: Yes.

MR McALARY:

Yes, but he gave really no evidence.

Can I

just inform Your Honours also that at the same
page, at line 25, you will see the request for the
Chamberlain direction. Now, it is framed in terms
which gives the judge no assistance as to how it is
said that the direction should be tied into the
evidentiary material. What was Mr Van Aalst asked
for, at line 25, was:

I hope I am not going to have to repeat
myself, but we would ask for directions to the
jury in line with Chamberlain's case, in that
so far as primary facts are concerned from
which the jury is asked to draw inferences
which implicate the accused, the jury is to be
directed that before any inference can be
drawn from such facts, they have to be
satisfied beyond reasonable doubt about such
facts. If they have a ,reasonable doubt, then
no inference can be drawn adverse to the
accused from such facts. That will flow
through to the following matters, and I will
not repeat that proposition.

Well, Your Honours, the evidence of the police - perhaps I am wandering backwards and forwards and
the argument, but so be it. The evidence of the not standing strictly to a logical development of

police was direct evidence. Ex hypothesi
Chamberlain did not apply to it.
The evidence of the two accomplices who gave

evidence about admissions made by the accused was
direct evidence of admissions, ex hypothesi,
Chamberlain did not apply to it. The evidence of
the financial matter was documentary evidence
supported by an officer who was employed by Bain &

Co in Hong Kong. The documentary material showed
the TT-ing of $900,000 Singapore from Singapore to
a bank in Hong Kong, the receipt by that bank and

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the passing of it to Bain; Bain holding it in an
account in the name of Sinclair, which was Clark's
other name. Ultimately, on a particular day, your
money is split 50/50, half of it goes into the
Sinclair account, half goes into an account in the

name of Wynn. Wynn was holding Shepherd's power of

attorney. Now, Your Honours, with all respect, a
Chamberlain direction could not really apply in

relation to that. The only answer to that material
was given by Shepherd in his statement from the
dock that it had nothing to do with him.
If you go to page 24 of the accused's statement, at line 22:
I deny ever having any other access to this
split that we have heard about in Hong Kong in
the Malcolm Wynn account. That money had
nothing to do with me whatsoever.

What I am really seeking to say, with respect, is
that the Chamberlain direction did not have to be

given to any of those three features. If it was to
be given at all, it would be related to whether
inferences could be drawn in relation to any
particular courier. But, the evidence of each
courier was direct evidence and it was not linked
with the evidence of any other courier to form a
chain, so there was little point in giving it and,
indeed, with respect, Your Honours, it would, in
our submission, have tended to fail to bring to
account the need to make what the case was all
about clear to the jury. Your Honours will have
read the summing up. One may well wonder whether
the jury had as clear and precise a picture of it
as, perhaps, has been put to Your Honours but
His Honour covered the material and recovered the
material and if he had been required to then
analyse and place the evidence of each of the
accomplices into a setting where it had to be
dissected in terms of primary facts, those had to
be established beyond reasonable doubt and any

inference that is to be drawn from them can then be
drawn.
This case is really a duplication of Sorby's
case and I would refer Your Honours to that because
in Sorby's case what one is dealing with is the
Mr Asia syndicate in Victoria. In Victoria, Sorby
was a lieutenant for Clark and he was engaged in
the distribution of heroin on Clark's behalf. He
was charged with a conspiracy charge and the only
evidence of his participation in the conspiracy
were the various sales that had been made. So, if
one was to conclude that he was a party to that
conspiracy, it would be by an inference drawn from
those sales.

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If I could take Your Honours to the discussion

about this which commences at page 785 of the

report. I need not read page 785 because that is
simply setting out the history of the grounds of
appeal. Ultimately at page 786 there is a
reformulated ground of appeal which requires a

Chamberlain direction. Then there is a discussion
at page 786 line 50 as to whether or not this Court
was, in Chamberlain, laying down a principle as to
directions to be given to a jury. That is
discussed at page 787 in some detail.
Then at page 788 what fell from Your Honour

the Chief Justice and the former Chief Justice is

dealt with. Grant's case is referred to as an
exemplification of the principle that you do not
have to give these sort of directions which are
directions in amplification of the obligation of
the Crown to prove its case beyond reasonable doubt

in every case. As they say at page 788:
In Grant's case, the High Court,

affirming a decision of this Court, held that
there is neither a rule of practice nor a rule
of law that, when the Crown relies on
circumstantial evidence, the jury must be
instructed that, before they can convict, the
evidence must be not merely consistent with
the guilt of the accused, but inconsistent

with his innocence. The Court acknowledged
that there will be some cases depending on
circumstantial evidence when such an
instruction will be proper and indeed,
necessary. In others, a direction of that
kind will be unnecessary and -

indeed even confusing. I take the same stance.
Then if I could go over the page, Your Honours,
page 789 deals with a series of propositions and
the part that I am concerned and interested in is
the material right at the bottom of page 798 and at
the top of page 790 and I just pick up the last

paragraph: In the present case the inference that
the Crown invited the jury to draw was, as we
have said, that the applicant conspired to

sell heroin. The invitation was to draw the
inference from a series of sales of heroin
that the jury might have found by evidence to
have been directly and positively proved.
Having regard to the way in which the Crown case was put, there was no evidence of conspiracy, or of the applicant's
participation in it, except the circumstances
of the various sales by the applicant or on

his behalf. The evidence offered of the facts

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of the various sales was direct. The facts
themselves, if accepted, constituted indirect
and circumstantial evidence of a conspiracy to
sell and of the applicant's
participation ..... It was therefore necessary
that the jury should be satisfied that the
primary facts, i.e. the various sales, were
established beyond reasonable doubt before any
inference could be drawn from them; and it
was plainly necessary that the jury should be
under no misapprehension about that necessity.
The circumstances of the case were such,
however, that if in respect of any particular
count the jury were satisfied to accept the
direct evidence of the primary facts, or some
of them, and to conclude beyond reasonable
doubt that the sales had been made, the
inference of a conspiracy to sell heroin to
which the applicant was a party was
inescapable.

Now, Your Honour, I would adopt every word of that
because here, in so far as what I would call the
third class of evidence, that is the evidence of
the accomplices who were bringing heroin into
Australia was concerned, that evidence established,
if accepted, that heroin was being brought in by

them and that they were being paid. Some were
being paid by the accused himself directly, others
were being paid by agents of people who said that
they obtained the money from the accused.
That evidence, if accepted, led to the

inescap~ble inference that the accused was a party
to the bringing in of that heroin and it is only in
that area that there could be any room, in our
submission, for the application of this principle.
But to seek to apply it in this isolated piece of
the case, in our submission, would be more
confusing to the jury bearing in mind that it did
not apply elsewhere so they would be forced to draw
a distinction in their mind·, which seems, with

respect, to be an illogical distinction, between
direct evidence which you can rely on, even
although it is not established beyond reasonable
doubt - you can rely on it, if you accept it, as
tending to prove a fact, so you can ultimately
prove from direct evidence guilt by reference to
facts that you say are established and which add up
to a conclusion of guilt - but in relation to this
evidence from the accomplices you would have to
have that established beyond reasonable doubt
before you could draw an inference which seemed to
be inescapable, that is that if the accused was
paying over $10,000 to the woman Jacka when she
handed over 2 kilos of heroin that he was in it.

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But, Your Honour, none of this gets debated in the application for a direction. The passage that
I have referred you to is the discussion about it.
There is no amplification of the way in which the
direction is said to apply, how it will assist.
We submit, with respect, that the conclusions

that the Court would reach are: firstly, that
Chamberlain itself is not directed to the type of
direction that should be given to the jury; that
it is dealing with another subject-matter

altogether. Secondly, that the direction called
the Chamberlain direction can in some circumstances
be appropriate, but certainly not universally
appropriate, and if that be right there is really

no special leave point. The third conclusion is
that Chamberlain just would not be an appropriate
direction to give in this sort of complexity of
facts. And so far as my friend is seeking to use
the analogy of a chord where you have a series of
strands wound together, these strands if they were
pulling at all, were all independent of each other.
There is nothing - and I know Your Honour
Mr Justice McHugh disagrees with this - but I would
say, with respect, logically you cannot prop up a
disparate fact by reference to another disparate
fact.
You may be able to prop up - I should not say

prop up - you may be able to subsume from a series
of disparate facts a conclusion, but you cannot
improve a probability by pointing to other type similar facts which do not bear upon the first,
unless you get into the true similar fact area.
Your Honours, may I just say that in what I

call inductive reasoning - with due deference to
Your Honour Mr Justice Dawson, what I call
inductive reasoning is the second category which
Mr Justice Roden dealt with in his judgment.
Doubtless Your Honours have read the judgment of
Mr Justice Roden from pages 405 and 406, but

perhaps I might just read it again because it does

take up what, in our submission, is the crucial

issue of principle or logic. So from that
discussion as amplified in a later passage one can
see when it would be appropriate and useful to give

such a direction. At 405:
An answer to the philosophical dispute

may be found in a recognition of the
difference between the impact of imperfections
in the proof of primary facts when all -

and one should really emphasize and underline
"all", or circle it, because that is the
distinction -

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the primary facts are required for the purpose
of the inference, and -

on the other hand -
the impact of such imperfections when fewer

than all the primary facts would suffice. Two
valid propositions appear to be:
1. When primary facts are accumulated for the
purpose of drawing an inference, and all must
be established to give rise to the inference,
the links-of-a-chain analogy applies, and the
inference can be no more probable than the
primary facts falls below proof beyond
least probable of the primary facts.
reasonable doubt, the inference has not been
proved beyond reasonable doubt. Further, if
there are imperfections in the proof of more
than one of the primary facts, they will have
a cumulative effect, and the degree of
probability of the inference being correct
will be less than the degree of probability of
the least probable primary fact. In this
situation, the Chamberlain direction would
apply.

We would adopt that.
2. Where, however, it is the jury's
assessment of the situation that not all the
primary facts are necessary in order to
justify the inference so that, say, any eight
of 10 relied upon the Crown would suffice, the
position is otherwise; and the effect of the
availability of the alternative primary facts,
will be to make it possible for the degree of
probability of the inference being correct, to
be higher than the highest degree of

probability of any of .the primary facts. That
means that an inference could be established

beyond reasonable doubt, even though some (perhaps all) of the primary facts have not

been proved beyond reasonable doubt. In this
situation, the Chamberlain direction would not
be correct -

that is, if the direction is that before you can
use what is said to be a primary fact, that primary
fact must be established beyond reasonable doubt,
otherwise it is stood aside.
May I read on:
This can most easily be explained by

referring to the mathematical degrees of

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probability; and I do so, referring to the
situations described in the numbered
paragraphs above as situation No 1 and
situation No 2 respectively.
First take situation No 1. Assume that

there are three primary facts, and that in the
assessment of the jury, all three need to be
established before the inference can be drawn.

If two of the primary facts are regarded as
certain, and the third as having a 90 per cent
probability of being correct, then the degree
of probability of the inference being correct
will be 90 per cent. If each of the three
primary facts has only a 90 per cent
probability of being correct, then the degree
of probability of the inference is less than
73 per cent.

I think it is 72.9 actually.
Add a fourth 90 per cent probable primary fact
as necessary to the inference, and the degree of probability of the inference being correct
falls to below 66 per cent.

It goes to 65.61. In that circumstance the
Chamberlain direction is to be given.
Now take situation No 2. Assume that the
Crown contends for 10 primary facts as
warranting the drawing of the inference, and
that in the jury's assessment the inference
would be established if any eight of those 10
primary facts were true. Assume that seven
are treated as certainly true, and that there
remain three, any one of which will suffice to
provide proof. If each one of those three
remaining suggested primary facts has a 90 per
cent probability of being correct, then the
degree of probability that at least one of
them is, so that there are eight established

primary facts and the inference follows, is
99.9 per cent.

Now His Honour seeks to amplify that in a flesh and
blood setting, as he says, at pages 422 and 423.
At page 422 at line 6:
As the discussion inevitably became more

philosophical than legal, I put flesh and
blood into the illustration I have called
"situation No 2" earlier in this judgment, and
invited counsel to consider a hypothetical set
of circumstances along the following lines. A
person is charged with conspiracy to commit a series of robberies. There is evidence which

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conspiracy, and the remaining question is satisfied the jury that there was such a
whether they are satisfied beyond reasonable
doubt that the accused was party to it. The
jury have, and accept, evidence of association
between the accused and others who are proved
to be parties to the conspiracy; and there is

other evidence, including perhaps evidence of conversations between the accused and others,
couched in slightly ambiguous language, but
very probably implicating him in the scheme.
The jury might take the view that that body of
evidence almost satisfied them beyond

reasonable doubt that the accused was party to the conspiracy - but not quite. They look for
something more. There are three overt acts,
or primary facts, relied upon by the Crown.
They are alleged acts of actual participation
by the accused in three robberies committed

pursuant to the conspiracy. The attitude of
the jury is that if the accused were actively
involved in any one or more of them, that
would be enough to satisfy them beyond
reasonable doubt that he was a part to the
conspiracy. These allegations of
participation are really the facts eight, nine
and 10 in what I called situation No 2.
Mr James agreed that even if the jury, viewing
the three matters in isolation from one
another, were not satisfied beyond reasonable
doubt that the accused participated in any
particular one of those robberies, although in
each case they regarded it as highly probable,
they nevertheless could combine those three
"highly probables" and be satisfied beyond
rea·sonable doubt that he was party to one at
least of them, without necessarily knowing
which, so as to be able to draw an inference
of guilt and properly to convict.

In that example, if the evidence relating to each of the three robberies was entirely

distinct from and independent of the evidence
relating to the other two, then even "at the
end of the day" there would be no one of the
three in respect of the accused's
participation in which the jury would be

satisfied beyond reasonable doubt. To allow
the inference of guilt to be drawn in that
situation would appear to conflict with the
Chamberlain direction.

As expanded by my learned friend.
Well, Your Honours, I need not continue to

read the material, with respect. We suggest that
it is contrary to logic; contrary to recognized

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processes of reasoning to say that where you have a
large number of discrete facts you can improve the
degree of probability of any one of those facts by
reference to another discrete fact in no way
related to it. And indeed, if that principle is to
be laid down and to be applied, not in the
link-type case, it would run counter to the
development of the empirical approach to scientific

method. Can I just go to one matter that appeals

to me for a moment. If one is seeking to establish
that thalidomide produces deformed children, one
starts by finding a case where there is thalidomide
and deformity. If you find a number of other cases
of thalidomide and deformity, you would not be
satisfied in relation to any one of them that it
was established beyond reasonable doubt, yet one
would be prepared to construct such a hypotheses.
If on further investigation you start finding cases
where there is deformity, but no thalidomide, you
would be faced with the problem that you had cases
which supported the inference and cases which did
not.
In relation to all the cases that support the inference, you really cannot draw the inference
itself because they may simply be examples of the
situation where there is deformity and no
thalidomide; in other words, the causal
relationship may be wrongly attributed.
But if you go on and you find, as you move

ahead, hundreds of cases of the relationship then
you might well say, "Although in relation to every
one of these I cannot be satisfied beyond
reasonable doubt, one thing that I can infer is
that there is a relationship." You would be able
to say, "I can subsume all these separate ladies
who produced deformed children and say that
although I look at any one and I cannot be
satisfied clearly in her case yet I can reach the
conclusion", and if he reached the conclusion then,
of course, you might start to try and reason back

the other way. You might start with the universal
proposition - it would be a statistical proposition
not a true universal but even statistical
propositions are true universal so that is a class
of 98 - I am sorry, I cannot do it now, it is too
many years ago - but you would get a proposition
where you would say, "All thalidomides are
producers of deformity", then you have, "This is a
case of deformity" - - -

DAWSON J: That is to slip from inductive to deductive?

MR McALARY:

I was about to say that. Actually, what you

have done is induce a conclusion and then you go
and deduce from the proposition that you have

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induced. Your Honours, with respect, we say that
read carefully Chamberlain was not dealing with a
jury situation. But one can understand the
structure of the reasoning because it was a linkage
case.

McHUGH J: Could I just go back to your illustration just to

show one fact: supposing there were two critical
facts in each case? Mother said she ingested
thalidomide between the fifth and eighth week of
pregnancy but in each case you were not certain
that was the particular time and there was
resulting a thalidomide child, you have a whole

series of that sort of evidence. You are not
certain beyond reasonable doubt that she took the
thalidomide during that period of pregnancy but
then, from all those instances, why do you not
conclude, A, that taking thalidomide between the
fifth and eighth week of pregnancy does produce a
thalidomide child and that each of these mothers -
and you were convinced beyond reasonable doubt then
that each of these mothers -

MR McALARY:

If I may put it this way to Your Honour,

bearing in mind that you can have deformed children
without thalidomide, when you come to any
particular case the first thing you start with is a

deformed child. That is the starting point. Now,
you have to make up your mind whether or not that
deformity is a consequence of taking thalidomide
which is quite possible or, alternatively, of some
other non-thalidomide cause.
In relation to any particular case, you cannot

be certain. You cannot - be established beyond
reasonable doubt. But when you look at a very
large number of them you then induce the
conclusion, you say, "Well, looking at all these,
although in none of them is it established beyond
reasonable doubt yet I am prepared to draw that
inference. "

Can I give you another example - - -

McHUGH J:

The critical thing in the Thalidomide case, it

turned out, was the ingestion of the thalidomide in
the fifth to eighth week.

MR McALARY:

Yes I know.

Let me give you another example

which gets away from thalidomide: there was a
great argument in the academic world as to whether
or not there was a significant trade between
Mycenae and Haran on the Upper Euphrates at the end
of the second millennium. When you dug down into
the - - -

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MASON CJ: This is all very impressive, Mr McAlary.

Aristotle and now ancient history.

MR McALARY:

Your Honour, we are not in law. All I am going

to say is that when you dug down into the
excavation you could not tell where the tenth level
was but when you found 3000 pieces of Mycenae
crockery you could reasonably conclude - although
you could not conclude any one of them but you
could reasonably draw the inference as to the lot.
Your Honours, I probably have said things

several times. I beg Your Honours' pardon for
addressing you like a jury rather than like a
tribunal of law.
I have really nothing further to say on the

major issue which is the issue you asked me to
address you on.

MASON CJ: Yes, thank you, Mr McAlary. Mr James.

MR JAMES:

May it please the Court.

The argument that has

been presented to this Court is the segmented
argument, that is, look at the facts separately,

they are separate and distinct. The case was a
case of separate and distinct facts, therefore, no
circumstantial evidence problem ever arose. That
was never said to the jury; what was said to the
jury is that the various facts proved added
support, indeed, the trial judge used this concept
of supportive evidence as well as corroborative
evidence and I can give Your Honours a list of the
reference in the summing up in which there were
various of these supportive corroborative evidence
references in the summing up. Pages 81 to 82, they
are appeal book references, pages 38, 42, 46, 50,
51, 52, 91, 94, 95-96, 97, 106, 114, 119, the whole
of pages 120-125, 127, 129, 138, 156, 166 and at
page 193 is exactly how the Crown puts its case
concerning the splitting up of its funds and there appears at line 17, in relation to the Crown case:

They say that if you were to reject the police

then you would look at the activities, the overt acts, of the various accused and the
other persons and by those acts and his
association and connection with the activities
in combination with others who obviously
engaged in it, you could only come to one
conclusion. Even if you reject the police
evidence, he says you would accept the
financial evidence which would assist you in
that regard.

Now, there His Honour is referring to the Crown
argument that the financial evidence constitutes

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supportive or corroborative evidence of the
evidence of the accomplices such that you can put
those two strands together.
Your Honours, indeed, when one comes to look

further at 194, Mr Van Aalst's position is set out
and it can be seen that what the defence case was
in this case was an attack on the truth of the
premises. In effect, what appears to be, if we are
going to deal with arguments about what is
inductive and deductive and logical in the context
of this case, some suggestion that a defence case
based on an attack on the truth of the premises
should not be permitted if the Crown contends that
the premises are to be considered separately.
That sounds rather strange when it is put in

that way but really what, if one translates into
logical terms, the so-called Chamberlain direction
is, is that if the truth of the premises considered
in the light of the whole of the premises in the
argument is a relevant matter, as it must be in
most conspiracy cases and as it will be where the
jury reject any of the premises as establishing the
conclusion in themselves, then the truth of the
premises has to be proved. In that sense there is
nothing novel, illogical, irrational, peculiar
about the reasoning of this Court or the majority
of this Court in Chamberlain. It is a mode of
reasoning that a jury,might well properly adopt;
it is one amongst the many modes.
Indeed, the reference that my learned friend

took the Court to in the judgments of
Mr Justice Roden, in one respect, could be called
ad hoc reasoning. Hoch itself is a case that permits of a line of reasoning to the jury in respect of which there may have to be given some
cautionary word.
In Sutton, Mr Justice Brennan examined the

necessity to give juries special caution in

relation to particular lines of reasoning lest they
might reason, from a general conclusion, towards

the truth of particular premises. To state it in
that form is to emphasize how necessary it might be
to avoid the problem that the jury might, because
of a combination of circumstances and because of
the rational hypothesis direction, seek to reason
from some examination of the Crown's case being
that he is guilty and that would support the truth
of the various items of fact sought to be proven.
Your Honours, there is little I would seek to

add to what we have said except that really on an
examination of the summing up as a whole which was
undertaken by the Court of Criminal Appeal in the

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first court they reached the conclusion that the
summing up took a particular form and in that
regard reached the conclusion that the absence of
the direction was material.
What my friend is arguing here, and argued

before Mr Justice Roden, is an assault on the

Chamberlain reasoning as such, really. Not that
the question does not arise in the particular case
because when one looks at the particular case it
can be seen how the Crown sought to derive a
powerful case from the combination of proved facts.
Given that, in our submission, the defence should
not be deprived of the opportunity to attack the
premises as was done in this case.
Your Honours, the Oxford English Dictionary deals with "induction" and "deduction" for the
purposes of the logical processes and page 890 as
to "induction", meaning 7, appearing at point 6 in
the right-hand column:

Logic. The process of inferring a general law
or principle from the observation of
particular instances (opp to deduction) -

and deals with "deduction", meaning 6 at page 357:
To derive or draw as a conclusion from

something already known or assumed. To derive
by a process of reasoning or inference to
infer.

"Deductive" is referred to at page 358, in the
logical sense:
Reasoning from generals to particulars (opp to
inductive) -

and "inductive" in the logical sense:
Of the nature of, based upon or characterized

by the use of induction or reasoning from
particular facts to general principles.
Your Honours, to attempt to embark on that

sort of analysis as to whether or not a summing up
does or does not require a particular direction, in
our respectful submission, is to be too fine in
terms of categorization.
Chief Justice Barwick did, however, say in

Grant's case, which is to be found at 11 ALR 503
at 504 in the second-last paragraph on that page,
in dealing with the Plomp/Peacock direction and
whether it should be given:

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Where the circumstances of the case seem to require that some such direction be given, the
summing up regarded as a whole may prove to
be, and generally may be likely to be,

inadequate. On the other hand, having regard
to the circumstances of the case and the
nature of the summing up, the failure to give
the special direction may not in a particular
case result in an inadequacy of the summing up

as a whole.

In the particular case, His Honour was of the view
that it was not inadequate, but in this case, the
Court of Criminal Appeal was of the view that the
summing up was inadequate.
On the question of the applicability of the proviso, to which my friend referred, although
Your Honour Justice Gaudron dissented in Wilde,
there is material in Wilde that, in Her Honour's
judgment there, commencing at page 381 - Wilde is
to be found at (1987-1988) 164 CLR 365, commencing
at page 380, last paragraph and proceeding through
to page 385, at the conclusion of the first
paragraph, dealing with the proposition that although the Crown had and it might claim an
overwhelming case, it is not for the court applying
the proviso to try issues of fact and, indeed, in
matters in which trial by jury is a constitutional
necessity under section 80, Offences Against the
law of the Commonwealth, the application of the
proviso - - -

GAUDRON J: Well, that is clearly a dissenting view, though.

MR JAMES:

I am sorry, Your Honour.

GAUDRON J: That clearly is a dissenting view in Wilde.

MR JAMES:

It is a dissenting view, Your Honour, but none

the less, it is raised here - or the question of

that view is raised here far more explicitly than it was in Wilde because in Wilde, one was dealing

with the question of separate trials or not. What
is put here is, in effect, where one court has said
there is a failing in the summing up, the other
court has said, in effect, there was not, that the
proviso overcomes the problem in the event that
there is an overwhelming mass of evidence on the
Crown's contention in the Crown's case and the
direction which might have attracted the jury's
reasoning processes, that is to say, that the
assault on the truth of the premises may have some
validity, need not have ever been given.
I need not take the Court in detail through

what was said there, but none the less there is a

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great deal, in our submission, to be gleaned from
the proposition that wha~ is often enough said,
besides it was an overwhelming case, which is what
Mr Justice Newman said in the instant case when he was asserting the proviso is, in our respectful
submission, in error.
Your Honours, that is perhaps as far as I

could take the matter. Unless there is any further
assistance I can give the Court, that is what we
put in reply.

MASON CJ:

Yes, thank you, Mr James.

In so far as the

application for special leave to appeal rests on
the contentions that the jury should have been
discharged and that the offence charged was not an
offence known to the law, the application is
refused on the ground that the decision of the
Court of Criminal Appeal with respect to these
matters is not attended with sufficient doubt to

justify the grant of special leave. In other
respects, the Court will consider its decision in
the matter.

MR JAMES:

May it please the Court.

AT 3.45 PM THE MATTER WAS ADJOURNED SINE DIE

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Lee J took the contrary view.	trial judge had erred in failing to give it.
I should indicate, Your Honours, that as

grounds of appeal it may require the parties	to re-argue the grounds which had already been
determined or, at least, ground 7 which,
because of the application of the proviso
could be regarded as connected with the following grounds.
The court went on to point out that if the

Chamberlain direction tainted the summing up.	As
such, the second court was of the view that although there may have been a miscarriage of
justice in the finding of the first court that

and refers to the example of a confession.	He goes
on, at line 26 to say:

of 15th June, 1988, with which Campbell J	reasons set forth in the judgment of Street CJ
concurred.

through to page 417.	What Mr Justice Roden says,
appearing at line 5, is:

impact of individual segments.	His Honour was of
the view that - line 21:

would have disposed of the whole of the matter,	when the question came to the argument for the
proviso that question was dealt with separately as
to that ground.
In a sense this was one of the consequences of the sort of pattern of thought that underlay Jones'
case which came to this Court from Tasmania. It is
not on our list of authorities but Your Honours
will recall that what had happened in that case was
that one ground of appeal was allowed and a new
trial granted whereas on a consideration of all the
grounds it might have been that there might have
been an acquittal ordered and the practical
necessities in the case minded all of those

court, or at least the majority in the first court,	of the instruction to the jury that they have to be
satisfied beyond reasonable doubt of guilt. It is
really an instruction concerning the onus and
standard of proof. And interestingly, the majority of this Court in Wilde's case referred to an absence of an accurate explication suitable for the purposes of the case of the onus and standard of
proof implicitly as one of those matters that might
well be a fundamental error to which the proviso
cannot go, when this Court cited Hildebrand,
(1963) 81 WN (Pt 1) NSW 143, to be found in Wilde, (1987) 164 CLR 365 and the relevant passage can be found in the judgment of the majority at page 373,
point 4:

Court might well yield the proposition that neither	case was an appropriate vehicle for special leave
since each solely concerned the exigencies of the
particular summing up and, indeed, there have been many cases in this Court in which this Court has
said that special leave would not be granted solely
for the purpose of examination of the adequacy of a
summing up in a particular case which did not
include an error of a fundamental kind since such matters are peculiarly for the local Courts of
Criminal Appeal. But, in this case, what has happened has been a complete conflict within the Court of Criminal Appeal in New South Wales as to
the degree of assistance to be afforded, if any -
and I add, if any, because of the secondly

before finding the element of an offence.	One
example of it arises dramatically in this case.	It
was said that the accused, in the cells of the
Brisbane watch house in the presence of undercover

hypothesis direction gives.	Now you say that that
is complex.	It does not seem to me to be at all

or you cannot draw the inference", but once you get	beyond that simple situation the direction which I	gave to you is the only possible direction to give
without confusing utterly.

would be appropriate if the jury was to reason in a	particular way and, in effect, that is what the	Crown asked them to do. There is no suggestion
that a trial judge in his summing up has to confine
a jury's reasoning process to one particular line
but if that line is urged as one of the party's preferred positions or submissions to the jury, a trial judge might well have to give the jury appropriate assistance on how it should regard that
form of argument.

outside influence, be set aside. Whether that same result would follow if Mr Sand Mr B had	claimed that they were not influenced need not
be inquired into here, but the very nature of the misconduct alleged, with its strong inherent tendency to influence, would no doubt
be a significant matter for consideration
resolving that question.

very great extent the events which also found the	Court of Appeal, for events which encompass to a	substantial portion of the culpability for the
importing case, it might well be said that it would be inappropriate to direct a new trial, after such
a lapse of time, in those circumstances.

import prohibited imports.	I am sorry, Your
Honours, it is at page 5:

further.	When one looks at the history of the
statute one can say that it is intended that

Mr Justice McHugh in relation to aid and abet,	would submit, to that that I put to attempt, a precisely analogous proposition, we	counsel and procure and similarly, if the general
provisions of the Crimes Act relating to aiding and
abetting, counselling and procuring, section 5 and
so forth, were applicable, in our submission, there
would be no need to have provided for one specific
kind of offence in 233B(l)(d) and indeed there is
an intent apparently to limit the circumstances to
which aid and abet, counsel and procure or knowingly concerned shall be available, to actual
importation, rather than to have in possession of various kinds, which speaks strongly against the suggestion that the more general provisions of the

concur, co-operate as by intention (so as to	Oxford English Dictionary: "(b) To combine,
effect a certain result)."
Thus viewed, the relevant question becomes one of whether the evidence can support a finding that an accused person
agreed to effect the unlawful purpose of
preventing the enforcement of a law of the
Commonwealth.

separate from the Customs Act history as a whole
and the interpretation of that section.	One can

avoidance;	a scheme which might be outside the
contemplation of an Act.	The words of the section

Can I just pause to deal with Plomp for a moment. Your Honours will remember Plomp.	It was
a woman who was drowned in the surf.	She was a

She was close to her husband.	He was the only
person who could have interfered with her.	He had

separate isolated facts, proof of none of which
would make more probably the next.	In other words,

that sense.	The Crown has the onus and the
accused has no onus at all.	So please bear

name of Wynn.	Wynn was holding Shepherd's power of
attorney.	Now, Your Honours, with all respect, a

take up what, in our submission, is the crucial
issue of principle or logic.	So from that

than all the primary facts would suffice.	Two
valid propositions appear to be:

method.	Can I just go to one matter that appeals
to me for a moment.	If one is seeking to establish