Sorby v The Queen

[1988] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M49 of 1986

B e t w e e n -

DARRYL 'LEIGH'SORBY

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ

WILSON J

BRENNAN J

DAWSON J

Sorby

TOOHEY J

TRANSCRIPT OF PROCEEDINGS.

AT CANBERRA ON TUESDAY, 6 DECEMBER '1988 ,· 'AT 11 ;51 ·AM

Copyright in the High Court of Australia

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MR D. O'DOHERTY: If the Court pleases, I appear for

the applicant, Darryl Leigh Sorby. (instructed

by s~v. Winter)

MR P. FARIS, QC:  If the Court pleases, I appear with my

learned friend, MR-R.F. JOHNSTON,for the

Director of Public Prosecutions· (Victoria)) respondent. (instructed by Solicitor to the

MASON CJ: Yes, Mr O'Doherty?

MR O'DOHERTY:	If the Court pleases, this is an application for special leave to appeal against a decision
of the Court of Criminal Appeal in the State of against conviction and sentence on 13 July 1984.
The background is contained in.the application
book, Book One. -
MASON CJ:	Mr O'Doherty, do you have an outline of
argument?
MR O'DOHERTY:	Yes, I do.

MASON CJ: Would you present that to us? I am not sure

what is involved in this motion of due process.

Is this some endeavour to inco·rporate American law into Australia?

MR O'DOHERTY:  No, it is not, Your Honour. It, in fact;, incorporates -

it relies, I should say, on the provisions of the

IMPERIAL ACTS APPLICATION ACT 1980 of Victorian

legislation, which picks up a number of English

Acts and in particular, 28 Edward III, ch III and 42 Edward III, ch III.

MASON CJ: This submission was not put to the Court of

Criminal Appeal, was it?

MR O'DOHERTY:  It was not put to the Court of Criminal Appeal, Your.Honour.

MASON CJ:	Why should be concerned with it?
MR O'DOHERTY:	Your Honour, it, in my submission, is a matter

that ought to be dealt with by this Court because

it does raise an issue of law which has not

hitherto been raised before a Court of Criminal

Appeal. It was not certainly raised on the appeal

before the Court of Criminal Appeal in Victoria,
but, notwithstanding that, it is of sufficient

significance, in my submission, that the Court ought

to in this instance entertain it.

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MASON CJ:  But we have constantly said that we are entitled

to the benefit of the consideration of the courts

below of points that are sought to be ventilated in

this Court.

MR O'DOHERTY:	Indeed, I agree with that comment, Your Honour. However, in this case, for reasons which I am
not able to explain or, indeed, proffer to you,
it was not raised before the Court of Criminal
Appeal. It is, in my submission, an important
matter of law that, in these circumstances,
should be raised and it is a matter that ought
to entertain this Court, with respect.
MASON CJ:	You had better outline the point to us briefly

so that we can ascertain, in the first instance,

precisely what is involved in it.

MR O'DOHERTY:  Yes. By the provisions of Division 3,

Part II of the IMPERIAL ACTS APPLICATION ACT

a number of English statutes have been incorporated

into the law in Victoria. These provisions,

it is submitted, provide a fundamental right for citizens to be dealt with by due process

of law. If I may refer you to the first statute
of 28 Edward III c.III:

Item, that no man of what estate or condition
that he be, shall be put out of land or
tenement, nor taken, nor imprisoned, nor
disinherited, nor put to death, without

being brought in answer by due process

of the law.

And by 42 Edward III c.III:

It is assented and accorded, for the good

governance of the commons, that no man

be put to answer without presentment before

justices, or matter of record, or by due

process and writ original, according to

the old law of the land; And if anything

from henceforth be done to the contrary,
it shall be void in the law, and holden

for error.

The prime submission, Your Honours, in this

application for leave is that the applicant

has been denied due process of law and, as such,

the conviction and the subsequent dismissal

of the appeal is void in law and it is holden

for error.

DAWSON J:  you " 1"';!" .... the "denial of due process"

involves?

MR O'DOHERTY:  I believe it does involve that, Your Honour.

DAWSON J: What was the denial of due process?

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MR O'DOHERTY:  The denial of due process that is complained

of in this appeal are those matters which are set

out commencing at page 26 of the first application

book, Book One, starting at paragraph 47 of the

applicant's affidavit and going through to

paragraph 84. Those paragraphs that I have referred

to in the application book in effect deal with the

the time of his arrest right through until the time	treatment that the applicant was subjected to from
of the commencement of - - -

MASON CJ: Well now, this all depends on statements made by

the applicant in an affidavit which he has sworn.

MR O'DOHERTY: That is so, Your Honour, yes.

MASON CJ:	And there never has been any trial of the issues
raised by these assertions of fact; there are no
findings of fact that support the claims he makes.
And, how is this Court going to deal with it?

MR O'DOHERTY: That is the dilemma, Your Honour, that this

application faces, I suppose, because it has not been

any other court. the subject of testing in any jurisdiction or in

(Continued on page 5)

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MASON CJ: There is no way it can be tested here.

MR O1 DOHERTY:  But if this Court were to come to the

conclusion that he has been denied due process

on the material that is before it - - -

MASON CJ:	How could it come to that conclusion?
MR O'DOHERTY:	Your Honour, if you look at this material that he deposes to, looking at that as against
the background of the authorities to which I would
have referred you that are set out in the summary
of authorities, it is clear that if the things that he contends for have occurred in the way in
which he alleges, then the argument, in my
submission, is made out, that there has been a
denial and that the whole proceeding against him
is void.

BRENNAN J: Mr O'Doherty, this is a Court of Appeal and from

what finding of fact or ruling of law are you seeking

to appeal?

MR O1 DOHERTY:  What we are attempting to appeal from,

Your Honour, is the Full Court's refusal at the

appeal to make a finding that the applicant was

denied due process. The difficulty is, of course,

as has been already raised, that was not the

specific subject of a point of appeal. When one

takes the points in total, some 4O-odd points in

to.tal, it would be my submission that in ca:nbination

they outline a denial of due process and it is not limited necessarily to the conduct that he
was subjected to but also the treatment that was

alleged to have been dealt to various witnesses

who were called.

So it is put in very broad terms that this

is a competent application on the basis- of the totality of what was put before the Full Court in the criminal appeal.

WILSON J: What order would you seek, Mr O'Doherty?
MR O'DOHERTY:	That the matter - there are two possibilities,

Your Honour. The first one would be that the

conviction and sentence be quashed, set aside.

(Continuing on page 6)

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MR O'DOHERTY (continuing): Alternatively, that the matter

be sent back for retrial and at that stage the

applicant would then be in a position to raise

these matters.

WILSON J:  But many of these matters to which the applicant

testifies or deposes can never be cured by a new

trial.

MR O'DOHERTY:  I am taking up the point, Your Honour, that

was perhaps raised, that if these points have not

been put before a criminal court as an objection

to its jurisdiction to hear the matter or as an

objection to the matter proceeding, then by remitting	it it could be done rather than as has.xbeen said.often,
this. Court is a Court.of. Appeal-.anc;l.it· .i.g:,not;to. ,decide· these· matters
but that is one option.:· Tri the sunnnary I have just
pointed out at point 8 - - -

WILSON J:	Do you say these matters that occurred prior to trial preclude your client being put on trial?
MR O'DOHERTY:	Yes.
WILSON J:	So that he cannot be tried for the offence?
MR O'DOHERTY:	Because of the denial of the due process

in the process of bringing him to trial.

WILSON J:  And it cannot be rectified?

MR O'DOHERTY:  It cannot be rectified. I can direct

Your Honours to an abundance of authority for that

proposition. There is no authority in this country

that I can refer you to but I can certainly refer

you to quite a number of decisions of the
United States Supreme Court that stand for that

proposition.

WILSON J:	But that flows from a· constitutional guarantee?
MR O 'DOHERTY:	Well, the Constitution that deals with ... ·the

provisions of the American Constitution that enshrine
the right to due process are in fact the identical

provisions to the two Edward III Acts of Parliament

that I have referred you to. They are in identical
terms to those sections and they have been picked

up by the Amendments, the Fourth, the Fifth and

the Fourteenth Amendment of the United States

Constitution.

WILCOX J:	Are there any decisions in England upnn which you would rely?
MR O'DOHERTY:	No, I have not been able to find any.

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MASON CJ:  Mr O'Doherty, the Court's view is that it would

be a waste of the Court's time for you to embark on

a lengthy submission in relation to the matter of

due process when,having regard to the way in which

the matter comes before the Court, the Court.would just be incapable of dealing with it and providing

any kind of remedy of the kind that you envisage.

MR O'DOHERTY:  If Your Honour pleases. I will move now to the first matter - - -

MASON CJ: Yes, if you proceed with the other submissions

you wish to raise.

MR O'DOHERTY:  The matter of corroboration was dealt with at

the trial and also at the appeal and it is submitted
that the problem that has arisen has occur~ed because

the learned trial judge misdirected the jury on the

elements of corroboration and that misdirection was

not corrected by the Court of Criminal Appeal.

His Honour directed the jury in what perhaps might

be described as a fairly connnon way,however he failed

to outline to the jury the evidence which they may

look to in order to find corroboration. It is

important to note that this was a trial of a conspirator

who was tried alone and his co-conspirators had all

been granted indemnities and they all gave evidence

against him. And at the trial, in directing the jury,

His Honour quite correctly told the jury that it was

not capable for accomplices to corroborate each other

and there is no complaint made about that.

But this trial went for some 63 days, many

witnesses were called, many exhibits were tendered

and it was a complicated and complex trial involving

five separate conspiracies. The need to carefully direct the jury in respect of the evidence that is available to them to support a particular witness in

a trial that is as involved and complicated as the

Sorby trial,in my respectful submission is fairly clear. (Continued on .page 8)

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MR O'DOHERTY (continued):  But His Honour failed to do that

and the Full Court, when it dealt with the matter,

indicated that it was not necessary in its view

that the evidence that could lead to corroboration

should be pointed out to the jury. And the

Full Court, in fact, relied on the rule which they

found in REG V MATTHEWS AND FORD. It is cited

in the second application book at page 199 and

there is an extract from it. And it simply reads:

Then it was said that the judge failed to

instruct the jury adequately as to what

particular parts of the evidence were capable

in law of constituting corroboration and failed

to instruct them that except for the evidence

which he directed them was in that category

it was not open to the jury to find that any

other evidence was corroboration.

And the court referred to a number of other authorities

and, in particular, they referred to the authority of ROSEMEYER, (1985) VR 945. This was a case that

involved indecent assault and rape and it was before

the Court of Criminal Appeal and His Honour the

Chief Justice at page 949 said, in connection with

corroboration - this is about four-fifths of the

way up from the bottom of the page in the last

paragraph, half-way through it:

Where a judge decides to do so he must, of

course, avoid error but he is not obliged

in my opinion, to go any further than he
considers necessary for the purpose of

acquainting the jury with their task and

assisting them to come to a proper conclusion

on the evidence.

And further on, at page 950, after reviewing an

unreported decision, His Honour said:

What matters in the long run is that juries

should be told enough of the law to enable

them to fulfil their task, be warned against

improper use of evidence, and be assisted

where appropriate and within the limits allowed
by law to a proper conclusion upon the

evidence by the trial judge's superior
experience of the sifting and analysis of

evidence. The task of a trial judge summing

up to a jury is already difficult enough without

imposing upon him the necessity to use

particular words to describe ordinary concepts.

What it is submitted His Honour was saying in

ROSEMEYER was that in the case where a direction

as to corroboration is given, and in that case

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it was given, it is necessary for the trial judge

to acquaint the jury and to assist them to come

to a proper conclusion on the evidence. Now,

His Honour also went on and said that that was

important because the concepts should be explained

in simple terms and the evidence should be explained

on the basis of the judge's superior experience

of sifting and analysing the evidence. In my

submission, that in a case that is complex, that

involves the necessity for corroboration and involves

five conspiracies being heard at the one time,

it is imperative that a trial judge direct the

jury directly to what evidence is available to

it to support corroboration of any particular witness,

particularly the witnesses in this case who were

accomplices and who were giving evidence subject

to indemnities. In such a case, it is submitted

that it is of paramount importance to ensure that

a jury is not left to wade through the enormous

material that was presented to it. That proposition - - -

WILSON J:  You do not derive a great deal of help from

ROSEMEYER for that proposition. I am not saying it

is wrong, Mr O'Doherty, but the thrust of the

ROSEMEYER decision is that a judge is not obliged to go any further than he considers necessary.

It is really demonstrating the fact that the trial

judge is not obliged to go further than is necessary

in the particular case.

(Continued on page 10)

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MR O'DOHERTY:  Yes, Your .·Honour. With respect, in ROSEMEYER's

case, as I understand it, it was not even necessary

for him to direct them as to corroboration, but once

he does, all that he is required to do is to outline

the basic principles of corroboration and the

authorities, as I understand them, support that

proposition that there is no hard and fast rule that

has to be followed in directing juries as to what

corroboration is and that each case turns, reallyr

on its own facts.

WILSON J:	But in this case you are not complaining that he
tell them enough.  told them too much - you are complaining· he did not

MR O'DOHERTY: That he told them not enough. And if I can direct

Your Honours to REG V SPENCER, (1986) 3 WLR 438; this

was a case that involved criminal charges arising out of the treatment of patients in a hospital by those persons charged with their supervision. At

page 358, this passage is cited, from REG V PRATER,

(1960) 2 QB 464, and. it fs cited. v.1ith approval.

"While we in no way wi'sh to detract from

the obligation upon a judge to advise a jury to proceed with caution where there is material to

suggest that a witness's evidence may be tainted

by an improper motive, and the strength of that
advice must vary according to the facts of the

case, we cannot accept that there is any

obligation to give the accomplice warning with

all that that entails, when it is common ground

that there is no basis for suggesting that the

witness is a participant or in any way involved

in the crime _the subject matter of the trial.

Now, in this case there was no need, really, to give

a warning because this particular witness did not fit

within the three categories that the courts have said

a corroboration warning is required for and one of

those categories is the category of accomplices and

it is well-established that when you are dealing with

accomplices' evidence this warning as to corroboration

must be given. And the court made that distinction;

it went on to say:

The Phrase, "with all that that entails," requires perhaps further explanation. Where there is no corroboration, the rule of practice merely requires that the jury should be warned of the danger of

relying upon the sole evidence of an accomplice

or of the complainant in the sexual case, or

upon the evidence of a child. The warning to be

sufficient must explain why it is dangers so to

act, since otherwise the warning will lack

significance. The jury are, of course, told that

while as a general rule it is dangerous so to act,
they are at liberty to do so if they feel sure that

the uncorroborated witness is telling the truth.

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Where, however, there is evidence before the jury

whi~h they can properly consider to be

corroborative evidence the position becomes less

simple. The trial judge has the added obligation

of identifying such material, arid.explaining to

the jury that it is for them to decide whether

to treat such evidence as corroboration. He

should further warn them against treating as

potential corroborative evidence, that which

may appear to them to be such, but which is not

so in law -

and there is an example given -

evidence of a recent complaint in a sexual

offence.

What is being put in this application, Your Honours,

is that because the evidence that was required to be

corroborated was that of the accomplices, a special

warning had to be given and there is no doubt that

His Honour the trial judge gave a warning to the jury

which no complaint is made of. The Court of Criminal

Appeal were likewise satisfied with that warning. However, neither the learned trial judge.nor the

Court of Criminal Appeal, in my respectful submission,

turned their minds adequately enough to what was

required in connection with identifying the evidence
that was capable of corroboration, either in

fact or in law and, secondly, neither the learned trial

judge nor the Court of Criminal Appeal directed their

minds to what evidence was not capable of corroboration

save and except the connnents that His Honour made

to the jury when he told them that the evidence of
the co-conspirators or the accomplices could not

amount to corroboration.

(Continued on page 12)

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BRENNAN J: What was the risk involved in this non-direction?

vhat evidence might the jury have wrongly treated as

corroborative which they ought not to have?

MR O'DOHERTY:  The evidence, Your Honour, that they had before

them, in my submission, was so complex and so

voluminous that they were not in a position to fairly

or accurately sift through it and isolate what, as

a matter of law, was capable of amounting to

corroboration. Now - - -

BRENNAN J: What I was wondering is, taking out the evidence

of the accomplices, which was the subject of a

specific direction, was there any of the rest that

was not capable of amounting to corroboration?

MR O'DOHERTY: 

Your Honour, I cannot answer that question. I

do not believe that the rest of the evidence was
incapable of amounting to corroboration-; Th.ere may well

have been parts of that evidence that would have

amounted to corroboration but - - -

BRENNAN J: Are there any parts which were not?

MR O'DOHERTY:  There were parts of that evidence, Your Honour,

in my submission,that would not have amounted to
corroboration. For example, the evidence that Sorby's

wife gave, that should have been dealt with by the

trial judge because there were very special circumstances

surrounding the way in which he.came to give evidence

ancl the lead up to. her giving ·that~evidence. She in fact -

well,that is another matter of complaint later on in

this application~ B~t her evidence went before the jury

without any warning or any direction by the trial judge

and - - -

BRENNAN J:  Was not her evidence inculpatory of him?

MR O'DOHERTY: Yes, it was, Your Honour.

BRENNAN J: Well why was that not corroborative?
MR 0 'DOHERTY:	Because,. Your Honour, it. would· be my sucmission that iE she were

to fit into the class of an accomplice.- and there is

good argument that that may have been the case - then

a special warning ought to have been given in

connection with that.

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

MR O'DOHERTY: Yes, it is.

BRENNAN J: Let u~ assumP. that she is not in the accomplice

range because the accomplices have already been the

subject of a specific direction. Is there any part of

her evidence which might have been wrongly regarded

by the jury as corroborative when it was in truth not

corroborative?

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MR O'DOHERTY:  I am unable to identify any specific part of her evidence that would fit into that category of - - -

BRENNAN J: Are you able to point to any part of any evidence

which might have been wrongly regarded by the jury as

corroborative when it was not?

MR O'DOHERTY: Yes, Your Honour, I believe I am in a position to do that. There is evidence from one witness, Catherine

Louise du'Val Hitchcock, for example, whose evidence appears at page 1210 of the transcript.

MASON CJ:	Now we do not have that, do we?
MR O'DOHERTY:	No, the transcript is in court butiI am sorry,

you do not have those passages in the app ication

book or as an exhibit to any affidavit in that book.

The application book that contains this reference is at

Book One·, Your Honour, and it is page 78 that I refer

to. And you will see that the application book is

prepared on the basis that it is simply makes references to various parts of the transcript, Your Honour, without

actually exhibiting those passages to the affidavit.

(Continued on page 14)

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MR O'DOHERTY (continuing): That is a passage that I would

submit is not corroborative and was not the subject

of any special direction by His Honour or, indeed,

any attention by the Court of Criminal Appeal. There are other passages and I suppose I could summarize it in this way: there was evidence before

the jury of dealings between the co-conspirators

and other named persons who refer to the applicant

or, in fact, refer to another person who may have

had some dealings with the applicant on another

occasion. And the warning that I am concerned
about is this, that when the trial judge came to
direct the jury as to how they ou~ht to deal with
evidence that related to co-consp1rators dealing

with other people who were not charged and were not

indicted, who had dealings with the applicant,

there should have been a special direction given

in connection with the way that evidence was to

be treated.

You have an accomplice for which a warning

was given giving evidence of conversations that
took place with other persons and it is the

conversation with the other person that the learned

trial judge, in my submission, was required to

direct the jury's attention to.

BRENNAN J:	Take the instance that you have given us, was Glen Anderson theperson who gave evidence in this
case?  He was an accomplice, was he not?
MR O'DOHERTY:	He was one of the accomplices and he did g1ve

evidence, Your Honour.

BRENNAN J:  And I take it that in the course of his evidence

he said that he got supplies from the applicant

and he provided heroin to customers.

(Continuing on page 15)

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BRENNAN J:	One of his customers was Catherine Louise du'Val Hitchcock?
MR O'DOHERTY:	Yes.
BRENNAN J:	Who then gave evidence corroborating the

fact that she got supplies from Glen Anderson.

MR O'DOHERTY:  Your Honour, her evidence is that she

got supplies from an accomplice.

BRENNAN J: Well, according to this she gave evidence

that she was dealing with Glen Anderson.

MR O'DOHERTY:	Yes, who was an accomplice.
BRENNAN J:	Why is her evidence not corroborative of his?
MR O'DOHERTY:	She can corroborate Anderson.

BRENNAN J: That is right.

MR O'DOHERTY: Yes, there is no complaint about that,

but that is a matter, Your Honour, that ought

to have been pointed out to the jury, that that

was capable of amounting t~ corroboration.

BRENNAN J:  I thought you were instancing it as an instance

where there was evidence which was incapable

of amounting to corroboration?

MR O'DOHERTY:  The evidence that she gave, Your Honour,

indicating that she had·a dealing with

Anderson, is evidence implicating him in a

conspiracy, but it cannot be used to

corroborate him in his evidence that he bought

the materials from the applicant. However, that

is the complaint that is made, Your Horiour.

If I could move to the next matter complained

of, and I refer you to page 3 of the summary,
paragraph C.	The complaint is that the applicant

lost any chance basically that he had of a fair

trial or an acquittal because of the incompetence

of counsel who appeared for him at the trial.

(Continued on page 16)

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MR O'DOHERTY (continuing): The matters that are complained

of are referred to at pages 39 and 118 of the application
book. Page 39 deals with the complaints that the
applicant had during the course of the trial and

the complaint which, it is submitted, is of the

most significance is the complaint that he makes

that in the course of presenting his defence there

was no documentary evidence led which would, or

could, tend to explain his financial position and
the circumstances which explain the apparent wealth

of the applicant at the relevant time.

He complains that he attempted in a l~ngthy unsworn

statement which he made to the jury to introduce

documentary evidence as part of his defence and the

learned trial judge excluded that documentary evidence

in the course of the applicant's unsworn statement.

There is no complaint made that His Honour was wrong

in excluding the documentary evidence at that stage,

it was quite correct not to permit it to go in because

it was not being put through a witness	in an
appropriate way.

MASON CJ:  Well, that complaint is not now made but it was,

in fact, one of the grounds of appeal to the

Court of Criminal Appeal, was it not?

MR O'DOHERTY:	Yes, it was, and they dealt with it, Your Honour.
MASON CJ:	Yes, and the point now raised was not raised before

the Court of Criminal Appeal?

MR O'DOHERTY:  The point of the incompetence of his counsel,

Your Honour, was raised at the trial, with respect, in an oblique way I suppose, by him trying to get

the material in, but it is a matter of complaint now

any way certainly and it is something that the Court of

Criminal Appeal were not specifically asked to deal

with. But.:it is a matter of such significance in this

case, Your Honour, that I would submit that it is

something this Court ought to consider in determining

the question as to whether or not special leave

will be given.

(Continued on page 17)

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MASON CJ: Again, you see, the Court is very reluctant to grant special leave in relation to a matter not

raised in the courts below.

MR O'DOHERTY:  I know that only too well, Your Honour.

MASON CJ: It has been pointed out to you this is a Court

of Appeal, it is not a court of original jurisdiction.

MR 0 1 DOHERTY:	Your Honours, that is a well-entrenched proposition and, I mean - I am continually reminded
of LIBERATO's case and the Court has pronounced on
this many times before.  I am acutely aware of
that difficulty but there are circumstances where
a matter is of such grave importance that some
intervention is required and, in my submission,
this is a case where such intervention is required.
And it is, in my submission, a case which is on
all fours with KNOWLE~ case, .in RE KNOWLES,
(1984) VR 751.
BRENNAN J:	But do we have any evidence on which we can make any findings which will be necessary?
MR 0 1 DOHERTY:	The only matters I can refer you to,

Your Honour, in connection with that are the comments

made by the trial judge during the course of the

trial, the Court of Criminal Appeal looked at

it, page - there are a number of passages cited

at page 118 of Book One of the application book

which do not deal with this particular point but

deal with the general conduct of the defence by

counsel which all form part of the complaint under

this particular heading.

Those matters of complaint, coupled with the

failure of his legal advisers to properly advise

him as to how to present his documentary evidence,

in my submission, brings the case within the sort

of circumstances that were contemplated in KNOWLES'

case. (Continuing on page 18)

C2T33/l/ND	17	6/12/88
Sorby

MR O'DOHERTY (continuing): In KNOWLES' case the petitioner

had been convicted for murder of his de facto wife

and he had presented a petition for mercy to the

Attorney-General which was referred to the Full Court,

and the complaint that was made in that case was

that his counsel had failed to turn their mind

to the admissibility, or otherwise, of certain

evidence that would have shown a propensity on

the part of the deceased towards violence. And

in that case the defence counsel had been made

aware of the availability of the evidence that

the petitioner claimed would have been of assistance

in that case. But they had, for reasons which

are not clear, decided that that evidence would

not be called on the basis that it would, perhaps, not

be admissible. At page 771, in summary, under

the heading "Whether a miscarriage", the court

said:

We turn to the ultimate question, which is

always whether there has or has not been a

miscarriage of justice .....

We consider that, by reason of the

fundamental error by counsel to the effect
that the evidence of the earlier conduct of

the deceased. was inadmissible and was without

prospect of being admitted, evidence of

fundamental importance to the petitioner's

defence was not called and that this in

the circumstances of this case brought about

a miscarriage of justice.

MASON CJ:  But that is the problem here, is it not? You

have got to show that if there was incompetence

on the part of counsel it resulted in a miscarriage

of justice.

MR O'DOHERTY:	Yes.
MASON CJ:	Now, how can we arrive at such a conclusion unless

we have, in detail, all the materials that are

involved in this case before us?

(Continued on page 19)

C2T34/l/AC	18	6/12/88
Sorby

MR O'DOHERTY:	The task is difficult, Your Honour.
MASON CJ:	I would have thought it is impossible.
MR O'DOHERTY:	The materials that you have are, as I have

indicated, set out in the affidavit to which I

have referred at 118. They are also set out in the complaints that the applicant makes but there is no transcript material before you which refers directly

to that point. But you see one of the difficulties

with that point that I have just raised is that it
never gets on to the transcript, it is not the sort
of point that one would find being debated before

a criminal court, as to whether or not this particular

evidence ought to be led during the course of the
defence or in an unsworn statemmt., arid in IQOUS' case the

complaint was not made during the running of the

case because obviously the petitioner in that case

had no idea that what was happening was going to

prejudice his chances of an acquittal and, similarly,

in this case it is not until the trial is over, as

it were, and the applicant is making an unsworn

statement that he realises for the first time that

the trial judge is not permitting him to lead the

sort of evidence that he intended to lead. As I

said earlier,there is no complaint made about

His Honour's ruling inthat regard but that is the

only evidence that you have before you, that it was

intended to introduce that evidence. That cannot

be challenged because that is what happened. But

he is in the hands of his advisers and they have

gone about it the wrong way.

There is no suggestion that the evidence that

he wanted to rely on would have been inadmissible

if it had been introduced in the correct way, through

witnesses, bank managers, accountants and people like

that:_ It is perfectly comp en tent to introduce it. It is clear it cannot be done the way he intended

it to be done and in his affidavit, ·on which he relies,
that is the complaint that he makes.	It is not

until then that he becomes aware of it for the

first time.

(Continued on page 20)

C2T35/l/MB	19	6/12/88
Sorby

WILSON J: But all this emphasizes the difficulty you confront, Mr O'Doherty, that

if this sort of question is raised and agitated in

the Court of Criminal Appeal, they are seized
with a record of the proceedings and they can deal

with it as it was dealt with in KNOWLES?

MR 0 1 DOHERTY:  In KNOWLES.

WILSON J: The problem when you get to this Court is that we

look for a point of general importance to ground the
grant of special leave and quite apart from the
difficulty of our embarking on it on the basis of an

inadequate record, there is the further problem of

what is special about a difficulty such as you elude

to on this ground of the application?

MR O'DOHERTY:	Your Honour, I accept it is well established that this is not a Court of Criminal Appeal as such,
it is not - - -
WILSON J:	But you ar.e rather forced to treat us, as such

when you take up matters that were not eluded to in
the Court of Criminal Appeal and attempt to make them

special?

MR O'DOHERTY:  Barristers are forced to do all sorts of things

from time to time, Your Honour, but it is a point

that, in my submission, is of sufficient importance

that this Court ought to be troubled by it. That is

the proposition I put, but I hear what Your Honour says

about it and it certainly was not raised at the
Court of Criminal Appeal and one could only speculate as to what may have happened if it were taken up at

that particular point in time. But simply we restate

that in my submission it is on all fours with

KNOWLES' case and KNOWLES being a decision of the

Full Court of the Supreme Court of Victoria, Your Honours,

is authority for the proposition and it would be my

submission that this Court ought to give its

imprimatur, as it were, to that particular approach

and that particular point.

(Continued on page 21)

C2T36/l/SR	20	6/12/88
Sorby

MR O'DOHERTY (continuing): Bearing in mind, I suppose,

since GIANNARELLI's case has been decided by

this Court, on the question of negligence

in respect of criminal trials, the matter does

take on a special significance, with respect.

MASON CJ:, It certainly does, but there are countervailing

factors. For example, we do not know what the

detail of this evidence was that is said to be partly documentary and partly oral. We do not

know what cogency it had. Now, presumably,

counsel at the trial was in a far better

position to appreciate its cogency, its weakness,

than we would ever be and it may very well be that

he exercised a deliberate judgment not to call the evidence as such, but to endeavour to get it in

in connection with the accused's statement, because

he did not wish to subject the oral witnesses to
cross-examination; he did not wish to see the

totality of the evidence exposed for consideration

by the jury.

MR O'DOHERTY:  There are all of those considerations, I concede,

Your Honour, that may have played on his mind when

he made the decision not to call the evidence but

clearly, he has made the wrong decision in trying

to get it in in the particular way it was done

by - and the applicant deposes that he - - -

MASON CJ:  It was a strategy that did not work, but maybe,

of the strategies available, it was the one that

perhaps was the wisest to pursue at the time.

MR O'DOHERTY: 1~at is a possibility, Your Honour. It is

certainly not the way the applicant deposes to it

having occurred, of course.	He has a different
view of it from that.

MASON CJ: Yes, but he seems to have regarded counsel as

his agent. His view of counsel seems to be that

counsel ought to do whatever the client instructs

him to do.

(Continued on page 22)

C2T37/l/JM	21	6/12/88
Sorby

MR O'DOHERTY: Well, in connection with leading the evidence,

Your Honour, it would be my submission that he was

clearly in the hands of counsel because, if one

accepts what he has deposed to, the decision was

made for him to incorporate that evidence in his

unsworn statement, but I cannot put the matter any

higher than that; I have made the comments that I

think are relevant to it, Your Honour.

MASON CJ: Yes. Well, Mr O'Doherty, we may adjourn now and

we will resume at 2.15.

T38 MR O'DOHERTY: If Your Honour pleases.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18:

MASON CJ: Yes, Mr O'Doherty.

MR O'DOHERTY: If the Court pleases, the next matter in the

summary that I will take the Court to is

paragraph D. The applicant was charged with

five counts of conspiracy to traffic and sell.

The conspiracies are alleged to have taken place between 8 April 1978 and 31 May 1980. The charges

are set out at page 125 of the application book.

They are all charges that deal with the same

subject-matter. They are five counts of conspiring

"to sell a drug of addiction namely heroin".

Ar the trial the applicant's counsel took

objection to the fact that conspiracy charges were

being proceeded with as opposed to substantive

charges of selling or trafficking in a drug of

addiction.

(Continued on page 23)

C2T 39/1/AC	22	6/12/88
Sorby

MR O'DOHERTY (continuing): That objection was not upheld and the learned trial judge directed that the trial of the five conspiracy charges proceed. That

direction had been preceded by an application to

sever the presentment and to deal with the conspiracy

charges one at a time. That application was also

rejected. The complaint that is made in this

application is that the learned trial judge should

have stayed the proceedings. Irt addition to that,

the Court of Criminal Appeal, on reviewing the matter,

should also have done the same. The argument that is

put on behalf of the applicant is simply this: that

the charges relate to one course of action that took

place between 1978 and 1980; in effect, it was one

conspiracy and not five conspiracies.

When dealing with the matter on appeal, the Full Court

on page 158 of the applicatioh book, made some observations

concerning the director's attitude in charging conspiracy

as opposed to the substantive offences and referred to

VERRIER's case and made this comment, that:

the Judicial Committee observed that as a

general rule, when there are effective and

sufficient charges of a substantive offence,

the addition of a charge of conspiracy is

undesirable because it will tend to prolong and

complicate the trial. However, it may be added

that Lord Pearson made it clear that in some

circumstances a conspiracy charge would be
more appropriate than the substantive offences

in order to show the criminality of the accused.

And reference was made to HUMPHRIES'case. Further on,

the Court of Criminal Appeal at 159 of the application

book, made this comment:

When the learned judge refused to order a stay of the trial, his ruling indicates that he did

so on the ground that the criminality of the

applicant would not be revealed by laying some

20 substantive counts of selling heroin and

far more criminality would be revealed through

conspiracy charges.

(Continued on page 24)

C2T40/l/VH	23	6/12/88
Sorby

MR O'DOHERTY (continuing):

The learned judge was also of the view that

the trial would not be lengthened by the

inclusion of conspiracy counts.

It is clear the question called for the exercise

of judicial discretion and in our opinion the ruling does not show a wrong exercise of discretion by the learned judge.

What is submitted on behalf of the applicant here

is that the learned trial judge, quite correctly,
identified the principles that are to be followed

when dealing with such an application and he was

quite correct when he indicated that the criminality

of the accused person would be perhaps better

revealed by conspiracy charges, in this instance -

or a conspiracy charge, rather the substantive

counts being some 20 or more substantive counts

that were co~tended for.

It seems that the trial judge took the view

that to run 20 substantive counts would certainly

complicate the trial, would prolong the trial and

no doubt would make it very difficult for the jury.

However, it is submitted that both the-learned

trial judge and the Court of Criminal Appeal fell
into error in proceeding on the basis that they

did because whilst the principle is correct its

application,. it is submitted-; was not correct.

True it is that if the objective was to lay

before the court the totality of the criminal activity

of the accused person then that could have been

achieved by one conspiracy charge and the charge

would simply have been that between the dates 1978

and 1981 the accused conspired with the named

conspirators. There was no need to duplicate the

conspiracy charges. That simply meant that the	jury in this particular case were burdened with
looking at five separate conspiracies. It all
arose out of the one - - -

MASON CJ:  But it is not clear to me that this submission

was ever made to the Court of Criminal Appeal or

at any stage in the proceedings below.

MR O'DOHERTY:  I think Your Honour is right. What was really

being put to the Court of Criminal Appeal was that
the trial ought to have been stayed because of

the preference of laying ~ubstant.ive charges

rather than the conspiracy charges.

MASON CJ: Is it:not rather late in the day to raise this

point now when the courts below never had an

opportunity of considering it?

C2T41/l/ND	24	6/12/88
Sorby

MR O'DOHERTY:  Your Honour, I refer back to what I said

before, in making a concession, that it

is an importanc matter and I again make

the concession. I am mindful of this

Court's function in these cases. But, as

far as this applicant is concerned, it is

important that it be raised, and it is a

substantive matter; it is an important

matter.

MASON CJ:	It seems that it is high time :for us to
emphasize that matters brought to this Court should involve questions that have been raised
in the courts below.
MR O'DOHERTY:	Indeed, Your Honour, that has been my

understanding of the practice and the way in

which it proceeds normally, but where there are

exceptional circumstances, where a matter of

such importance is raised at a late hour, then

in all the circumstances and the justice of the

case, the Court should look at it. It is simply

my submission again that this is another one

of those areas where this Court should look at

it because it deals with the sort of issue that

the Court was grappling with in VERRIER's case,
that is the practice of the Crown to lay

charges which suit its convenience and prejudice

accused persons, and this is a classic example

of that.

MASON CJ: But, I mean, to consider your submission properly,

it would be necessary for us to evaluate all the

evidence to see whether or not it was

appropriate to frame this indictment in terms

of one count of conspiracy. At the moment,

not having, as it were, a close appreciation
of the evidence given by each of the witnesses,

it is impossible for us to conclude that all

these matters could be brought properly within

the framework of one count.

MR O'DOHERTY: Well, Your Honour, I accept the difficulty

that the Court is faced with without the
background of the material in the evidence,

but if I could just re-emphasize the point,

if I may, that the Court of Criminal Appeal

seemed to be simply saying that as a matter of

practice courts should not - the director should

not lay charges which complicate the matter, which

be: lf".i<L ':'1 ::,e count0r argument to that is that	cloud the matter, when substantive charges can
conspiracy charges will enable the court to deal with the total criminality.

C2T42/l/JM	25	6/12/88
Snrhv

MR O'DOHERTY (continuing):  I simply put this argument, that

in this case when one looks at the charges they are

identical charges, the co-conspirators are all the

same, the only difference being that some of them

leave the conspiracy. They are all in it together

at the beginning and as the conspiracy proceeds some

of them drop out of it.

BRENNAN J:  Or is it a case of five chains of distribution?

MR O'DOHERTY: Well, that is not my understanding of it,

Your Honour, it is simply one conspiracy with a

number of different co-conspirators all starting

in it together but some of them leaving it on the

way through. It is quite common to have conspirators

coming in and out of the one conspiracy. If one

looks at the charges that have been laid in recent

times in the tax evasion area where conspiracies to

cheat and defraud the Commonwealth have been laid

against persons - - -

MASON CJ: Well, I am not sure that it is wise to look to

them for guidance in terms of acceptable precedence,

after all they are relatively recent phenomenon.

MR O'DOHERTY:  They are certainly, Your Honour, but in terms

of the actual charge itself of conspiracy, it is

invariably one charge of conspiracy over a period

of time involving, in some instances, hundreds and

hundreds of overt acts, hundreds and hundreds of

different participants and three or four, or half

a dozen co-conspirators charged.

MASON CJ:  Yes, but they are rather different from this class

of case •.

MR O 'DOHERTY:  One conspiracy. Under paragraph D __ of the

summary I do not propose to say any more about the

arguments for severance of the presentment or whether

That matter was looked at by the Full Court and it has	or not substantive offences should have been charged.	decided that. The only point that is raised in this
application is that in the circumstances there should
have only been one charge of conspiracy. Paragraph E
of the summary deals with the question of the applicant's wife beirig called to give evidence against him. The applicant, in the application book
at page 17 and on, sets out preliminary matters which
dealt with the obtaining of evidence from his wife.

(Continued on page 27)

C2T43/l/MB	26	6/12/88
Sorby

MR O'DOHERTY (continuing): Those matters arose prior to the

trial commencing. The applicant served a notice

of alibi and this notice of alibi was dated

7 July 1983 and it was served pursuant to section 399

of the Victorian CRI:MES ACT. In that notice of

alibi he said that he intended upon his trial to

adduce evidence in support of an alibi and the

notice did not at that stage disclose the name of

the person who he was going to call. The following day a letter was received by the Director of Public Prosecutions in which the applicant's solicitors

notified the director that they intended to call

Marilyn Sorby and two other persons and the residence

of those persons was given. No other notice of alibi

was given to the director pursuant to section 399A.

Now at the trial the Crown took exception to the

alibi notice, for reasons which will become apparent

in a moment, and they argued that it was defective and

that if that be so the prohibition that attached to the

Crown approaching a named alibi witness did not apply.

And upon the service of an alibi notice the Crown is precluded from approaching that witness and in this case whilst that alibi notice was on foot the Crown

were not and did not make an approach to Mrs Sorby,

the applicant's wife. The question of the validity or

otherwise of the notice was argued before the Court

of Criminal Appeal and it held that the learned trial

judge was correct in ruling that it was defective.

In my submission, both the learned trial judge

and the Court of Criminal Appeal were wrong in that

ruling.

(Continued on page 28)

C2T44/l/SR 27 6/12/88

Sorby
MR O'DOHERTY·(continuing): If I could take you to the

section: it ·is section 399A and subsection (4)

provides that:

Notice under sub-section (1) shall either

be given in court during or at the end

of the committal proceedings, or -

within a certain time -

to the Director of Public Prosecutions.

The notice has to be in a prescribed form which

is set out in the Crimes (Alibi Evidence) Regulations

1976, regulation 6 form 1. The learned trial

judge took the view that, because the notice

did not name at the particular time the witnesses to whom the ablibi referred to, it was defective.

It is my submission that the defect was

rectified the following day when the letter

from the solicitors was sent and there can be

no doubt whatsoever that within a very short

space of time after the receipt of the notice
the director knew precisely who the people were,

who the witnesses were, that the accused person

intended to rely upon; and they were named.

TOOHEY J: Where do we find the letter, Mr O'Doherty?

MR-O'DOHERTY:  The letter is referred to, Your Honour,

at page 168 of the application book.

WILSON J:  I do not see where the particulars of the alibi

as required by section 399A(l) are provided?

(Continued on page 29)

C2T45/1/SDL 28 6/12/88

Sorby
WILSON J (continuin~): "Particulars" does not rest simply

in the naming of the persons by whom the alibi

will be proved, does it?

MR O'DOHERTY:  No. What is being put, Your Honour, is that

what was given to the director in this particular

case was sufficient for the purposes of the director

to identify the persons and where they lived.

WILSON J:  But is not the primary thrust - I may be wrong -

of subsection (1) that he must give notice of

particulars of the alibi? That is not just confined

to the persons by whom the alibi will be proved,

is it?

MR O'DOHERTY:  No. The particulars that are sought are

simply the particulars of - leaving aside the formal

parts - what it is that this particular witness is being called for. That is a matter that has

to be - - -

MASON CJ:  It means - who he was with, where he was, when,

that sort of thing.

MR O'DOHERTY:  The difficulty in this case with complying

with that, of course, is that there was no particulars

given as to what overt acts involved any particular

person, and you will see from the list of overt

acts here that it is simply just a whole lot of

dates and quantities of heroin that are referred

to. There is no possibility for a particular alibi

notice to contain any further details than were

provided in this case and that is the - - -

MASON CJ:  How was the accused able to nominate the three

alibi witnesses? I would suggest that whatever

the case was against him, these people would be

giving evidence to support any alibi.

MR O'DOHERTY:  These three people named as alibi witnesses

were simply witnesses that he intended to call

to give evidence on his behalf which would support

his case, Your Honour, and the notice that is complained

of, as I say in my submission, is not defective.

It gave everything that was available to be given

at that time bearing in mind the particulars that

had been given to the applicant.

(Continued on page 30)

C2T46/l/AC	29	6/12/88
Sorby

MR O'DOHERTY (continuing):  When one looks at the particulars

that the notice or that the Act requires, they are

the particulars of times, places, and each particular

offence alleged by the .. proEecution when the defence

had the opportunity to exgmirte the depositions and

ascertain dates and places. That was a preamble

that was contained in the notice and, of course, it is clear

that there were no particulars given; the only

particulars were of overt acts which did not relate

to names, dates or places.

WILSON J: Well, that just simply put it beyond the capacity of

the applicant to provide an alibi. If he 'did not know

the critical time in respect of which the offence

was alleged against him, then he could not give an

alibi.

MR O'DOHERTY:  He is simply putting on notice, yes, Your Honour,

that these are three witnesses that he proposed to

call to support his case.

WILSON J: Yes. I mean, it is very helpful, perhaps, but it is

just not an alibi.

MR O'DOHERTY:  Both the trial judge and the Court of Criminal Appeal

took the view that that notice was defective because

there were particulars omitted from it and I simply

make the point that in so far as he was able to provide

all the particulars at the time, that was done, and

it is on that basis that it is argued that it was not

a defective notice. Now, whether or not these

witnesses were, strictly speaking, alibi witnesses or
not, was something that would have to emerge in the

course of the trial and it never happened because the

Crown called the applicant's wife as a witness.

MASON CJ:  Yes, well, he did not know at the time this notice

was given whether he had an alibi: or not for the

simple reason that he was unaware of the particular
times and, places which were rP1.evant to the charge;

so how can it be an alibi notice under the- section?

MR O'DOHERTY: 

Your Honour, the fact that it does not provide

those particulars that the section requires to be
provided, in my submission, does not render it not

an alibi notice, it simply - - -

(Continued on page 31)

C2T47/l/VH	30	6/12/88
Sorhv

MASON CJ: It is not an.alibi notice in the form required

by the section.

MR O'DOHERTY:  And that, Your Honour, we say is, through

no fault of his, simply on the basis that it could
not be done but it has been complied with in

substance and - - -

MASON CJ:  But it is a mandatory requirement, is it not?

You cannot construe the subsection as stating matters

that are directory only.

MR O'DOHERTY: It is certainly mandatory provided that those

matters are available to the person supplying the

notice. If no dates and places are supplied by

the Crown then obviously it cannot be complied

with in that respect, Your Honour. That is correct.

WILSON J:  I do not understand what your criticism is of

the Court of Criminal Appeal or the trial judge

at this point. I give you credit, your client

was unable to provide particulars but the fact

remains it simply was not an alibi notice.	What
is it?

MR O'DOHERTY:  Put simply, it may not have strictly complied

with the requirements in so far as the particulars
were concerned and the reasons I have already
outlined for that. I would simply argue that

notwithstanding that it was an alibi notice.

WILSON J:	And what is the complaint?
MR O'DOHERTY:	We have no complaint about it, simply that

His Honour the trial judge and the Court of Criminal

Appeal says it was a defective alibi notice, that the argument is that - - -

WILSON J:	And what flowed from that?
MR O'DOHERTY:	What flowed from that was this, that by virtue

of the provisions of section 399B of the CRIMES

ACT, the authorities are not permitted to approach

or speak with a witness who is named as an alibi

witness.

WILSON J:  I see. So your case is that by nominating the

names of these people he put them beyond the reach

of the police?

MR O'DOHERTY:  Yes, they wer~ his wftnesse~.~~ be called

as alibi witnesses on the basis of the notice and

once the notice was struck down then section 399B

had no application and the Crown were at large

to interview the witnesses and, in fact - - -

C2T48/l/ND	31	6/12/88
Sorby

WILSON J:	And they interviewed his wife.
MR O'DOHERTY:	That is what happened and what flows from

that is the next part of the complaint under

paragraph E and that is that the applicant's wife

was called to give evidence against her husband

and the complaint made is that the provisions of

section 400 of the CRIMES ACT, which deal with

the competence and compellability of husbands and

wives to give evidence against one another, not

being strictly complied with.- section 400(1)

provides that:

Nothing in this section shall operate

to compel any person charged with an offence

_(in this section called "the accused") to

give··evidence in any proceedings wherein such

charge is heard.

(2) Subject to sub-section (3), the wife,

former wife, husband or former husband of

the the accused shall be a competent and
compellable witness for the prosecution at
every stage of the proceedings against the
accused, including proceedings for the grant,
variation or revocation of bail, as if the

marriage had never taken place.

(3) In any proceedings against the accused,

the presiding judge or justice shall exempt

the accused's wife ...... from giving evidence

on behalf of the prosecution, either generally

or in relation to a particular matter, if,

but only if, he is satisfied upon application

made to him in the absence of the jury (if

any) that, having regard to all the
circumstances of the case, the interests of

the community in obtaining the evidence of

the proposed witness is outweighed by -

/and then there is a list of considerations. And

subsection (4) provides:

(Continuing on page 33)

C2T48/2/ND	32	6/12/88
Sorby
MR O'DOHERTY (continuing):

Without restricting the generality of the
phrase "all the circumstances of the case"
in sub-section (3), such circumstances shall

include -

and there are set out another set of circumstances.

Now, in this case, once the trial judge

directed that the alibi notice was defective,

the applicant's wife was approached and she gave

evidence. The Court of Criminal Appeal looked

at the matter, and it is set out in page 171

of the application book. I read:

Before Mrs Sorby was allowed to give

evidence, the learned judge enquired

of her whether she was aware of her

rights to apply for an exemption.

Mrs Sorby indicated unequivocally that

she was aware of her rights and that

she was willing to give evidence. She

was then allowed to and did give evidence

for the prosecution. An application

contemplated by S.400(3) was not made

to the learned judge by or on behalf of

Mrs Sorby for an exemption from giving

evidence. It is clear that when

Mrs Sorby was called to give evidence she was under considerable pressure and may

have been motivated by fear. Nevertheless

by s.400(3) is only to be exercised if	the discretion conferred upon a trial judge
an application for exemption. is made by
or on behalf of the witness. The statutory
right to apply for an exemption is given
to the witness not to the accused. This is clearly so when one has regard to the language of sub-section 6 "that the person
so called is aware of his or her right to
apply for an exemption."
It is my submission that the learned trial

judge, and later the Court of Criminal Appeal,

approached this matter incorrectly. What should

have happened, with respect, is that the learned

trial judge should have satisfied himself,

under . sub section ( 4~- of those other matters and

that it was not sufficient simply to say to a

witness whom the Full Cour.t obv:Lc . ..1:>J.y COL::-:· .·c"! . .-ed

''was under considerable pressure and may have
':)-2en mot.:.va.ted by fear". - and one ·takes· that to rrean
rootivated to give evidence against her husband by fear -
sinply to ask her whether she was aware of her rights to

apply for an exemption.

TOOHEY J:	But, Mr O' Dohe~, the judge is not required to go to the
circumstances of the case as .they are~

O2T49/2/JM 33 MR O'·f'OHERTY 6/1 ?/88

outlined in subsection (4) unless an application

has been made to him. It is only then that he

is required to look to those matters. But, is

not the point here that no application was

in fact made?

MR O'DOHERTY: Well, there is certainly no application

made by the wife for exemption, that is true.

TOOHEY J: Well, could it not have been made by anybody

else?

MR O'DOHERTY:  It.could be.made, in my

submission, by the husband and if one - - -

TOOHEY J:	Was it made by the husband?
MR O'DOHERTY:	No.

TOOHEY~:, Assuming that it could have been made by him?

MR O'DOHERTY:  No.

TOOHEY J: Well then, what is · the point - - -

MR O'DOHERTY:	The criticism -
TOOHEY J:	- - - of the submission?
MR O'DOHERTY:	The point of the submission, Your Honour, is this, that in taking the circumstances as a
whole, and I say that in doing that you look
at the way in which the alibi notice was struck
down, the approach then made to the witness, the
concern expressed by the Court of Criminal
Appeal that she was under considerable pressure
and probably motivated by fear, it is simply
my submission that it was not sufficient for
the trial judge simply to make an inquiry, "Are
you aware of your rights to apply?" One should do,
in those circumstances, having regard to the
whol~ background of this case, something more,
to perhaps suggest, or ask, or direct somebody
to give her some advice about this matter, and that was not done.

(Continued on page 35)

,"{ ... .., ·~. ,..,

C2T49/2/JM	34	6/12/88.
Sorbv

TOOHEY J: No, I understand that,that the decision not to

seek exemption might well be one that the judge need

inquire into in the circumstances, but that does not

take you to subsection ( 4 ), does it?

MR O'DOHERTY:  I appreciate Your Honour's point and it is

contained in subsection (3), it has to be on an

application before one looks at the implications of

these other criteria that are set out in subsection (4).

But my point is that the learned trial judge should

have, in this particular case, not permitted this

witness to give evidence.

WILSON J:  It could have been very damaging to your client,

could it not? Are you suggesting that the trial _iudge

should have denied the cCXTipetence of Mrs Sorby of-his own IIDtion

and prevented, therefore, the defence counsel from

cross-examining her?

MR O'DOHERTY:  No, what he should do,as the Act provides,in the

absence of the jury. he should make these inquiries,

but that was not done.

WILSON J:	He did ask if she knew of her right.
MR O'DOHERTY:	He asked her, yes, Your Honour.

WILSON J: Yes, I can appreciate the difficulty that you are

confronted but it begins with the failure of the

Crown to particularize the overt acts or sufficiently

for the purposes of an alibi. But having said that,

it does appear on the events as they happen, that the

applicant secured the advantage of being able to

cross-examine one of those witnesses that he had

intimated he would call himself?

MR O'DOHERTY: Yes, Your Honour, although it may be the

damage was done by then. One does not ~now and when

one reads the words of the Court of Criminal Appeal -

WILSON J: It is highly speculative though, is it not?
MR O'DOHERTY:	Yes, although the court expressed the view that

she may well have been motivated by fear into not

taking the protection of section 400. That brings me to

the end of the submissions on behalf of the applicant.

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

to consider the course it will take in this matter.

AT 2.50 PM SHORT ADJOURNMENT

C2TS0/l/SR	35	6/12/88
Sorby

UPON RESUMING AT 3.12 PM:

MASON CJ:  The Court need not trouble you, Mr Faris.

The case which is presented on behalf of the

applicant raised two grounds, the want of due

process and miscarriage resulting from the manner
in which the defence was conducted by counsel,

which were not raised before the Court of Criminal

Appeal. Whatever might have been said in favour

of these grounds if the issues had been canvassed

below and if findings of fact had been made, these

grounds cannot be considered unless the facts are

known. The material facts cannot be found by this

Court on the affidavit material advanced in their

support.

The third ground is that the presentment

wrongly charged a single conspiracy as five

separate conspiracies. This ground also was not

argued before the Court of Criminal Appeal. It

is impossible to evaluate this ground without an

appreciation of the facts of this complex case
which is not available from the application books
and which this Court ought not to attempt to obtain
without the assistance of the Court of Criminal Appeal.

A fourth ground is that the learned trial judge

did not give the jury a sufficient direction as

to corroboration of the evidence of co-conspirators

in that he did not discriminate between the evidence

which the jury might properly regard as corroborative
and the evidence which the jury might not regard

as corroborative. However, it is not possible to

identify any evidence which might have been wrongly

appreciated by the jury or to see that any real

prospect of acquittal was lost by the absence of

the direction contended for.

Two further grounds can be briefly disposed of.

The applicant gave what purported to be an alibi

notice under section 399A of the CRIMES ACT so as

to restrict prosecution access to named alibi
witnesse·s. The learned trial judge held that the

notice did not comply with the section and the

regulations. In this His Honour was clearly right

and the supposed restriction did not apply. Next

was aware of her right to apply for an exemption

the applicant's wife was called to give evidence.

pursuant to section 400. She made no such application.

It is submitted that the learned trial judge should

have advised her to obtain independent legal advice.

Whate:ver a t-:.:..al judge may think appropriate for

the protection of a witness is one thing, the
obligation to admit the evidence tendered from

a competent witness is another.

C2T51/l/MB	36	6/12/88
Sorby

The Court of Criminal Appeal dealt correctly

with this ground.

In the circumstances, therefore, the application

for special leave to appeal is refused.

AT 3.15 PM THE MATTER WAS ADJOURNED SINE DIE

C2T51/2/MB	37	6/12/88
Sorby