St Clair v The Queen

[1989] HCATrans 298

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JA

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A22 of 1989

. .

B e t w e e n -

GRAHAM PETER ST CLAIR

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

St Clair

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 DECEMBER 1989, AT 10. 43 AE

Copyright in the High Court of Australia

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MR B.R. MARTIN, QC:  May it please the Court, I appear

with my learned friend, MR A.J. CROCKER for

the app 1 icant. (instructed by Ward & Partners)

MR J. J. DOYLE, QC, Solicitor-General for South Australia. If the Court

pleases, I appear v,,-ri_th r.ry learned friend, IvR S. MiusrEED, for

the respondent. (instructed by Crown Solicitor for South Australia)

MASON CJ:	Mr Martin?
MR MARTIN:	If the Court pleases, I hand up an outline

of our submissions.

MASON CJ:  Thank you. Mr Martin, it would be of assistance

to us if you dealt first of all with the case

for special leave.

MR MARTIN: If Your Honour pleases.

MASON CJ:  The outline of argument seems to have been

drafted on the footing that it goes to the
appeal itself rather than to the application

for snecial leave.

MR MARTIN:  Your Honour, the application is based upon,

as we put it, errors of principle by the
Court of Criminal Appeal and the learned trial

judge in a number of respects. Dealing in the
first nlace with the severance, the similar
fact issue, the error is in the court in

assessing the significanceof dissimilarities

and exculpatory evidence which goes to the very

heart of the admissibility of that evidence.

MASON CJ: Yes, but as I read the similar fact submissions,

the submission is that there was an error in

the application of principle rather than an

error of principle itself.

MR MARTIN:  Your Honour, we would say that the learned

trial judge fell into an error of principle by

taking the Crown case at its highest in order

to determine the issue of admissibility rather

than considering the issue of whether the

dissimilarities and the exculpatory evidence

raised as a reasonable possibility the existence

of another offender or more than one assailant.

So that the learned trial judge fell into that

error and we would say that although the Court

of Criminal Aooeal referred to HOCH's case and
that issue, they must have fallen into an error

in consideration of that princiole when one looks at, in fact, the similarities and the

dissimilarities and the exculpatory evidence.

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MR MARTIN (continuing):  We will also put to the Court, in

support of the application for special leave,

that this is a matter where a substantial miscarriage

of justice has occurred and that that is apparent

on the reasoning of the trial judge and the reasoning

of the Court of Criminal Appeal. That is sufficient

in itself to warrant the grant of special leave in

this case. That is in respect, if the Court pleases,

to the first paraeraph.

The second matter deals with the use of the similar fact. In our submission, there was an error

of law - or there were two errors of law - made by

the learned trial judge in his summing up. It is

paragraph 2, it is actually page 3 where the errors are set out, (i) and (ii), that they were errors of law in the summing up that themselves have led to

miscarriages of justice including an error on the

onus of proof where His Honour permitted the jury

to have recourse to other attacks if they thought

it was improbable that more than one offender was

involved and that, with respect, is an error of

law. In our submission, the Court of Criminal

Appeal really failed to appreciate - so we cannot say

that the Court of Criminal Appeal was not considering

the proper principles, but that they erred in their

assessment of those errors.

The use of the victim's statements I would

acknowledge is not a matter that if it stood alone would warrant the grant of special leave. It is a matter where, we say, it adds to the fact that a

miscarriage of justice has occurred. Similarly,

in one sense, dealing with paragraph 4 - the

re-examination, the identification issue did not

involve a special principle but we say that the

Court of Criminal Appeal and the learned trial

judge erred in not applying or giving consideration

to the principle that tainted identification

evidence should not be admitted.

Paragraph 5 deals with a conglomeration of matters that led to unfair prejudice. I would

acknowledge that those matters were for the

assessment of the Court of Criminal Appeal and in

themselves, would not amount to any special point of principle but rather come within the rubric of

the substantial miscarraige of justice. The

warning concerning the disputed confession: the

principle is clear from CARR's case. We do submit

that although CARR's case on its surface is

restricted to confessions in the absence of any
corroboration, that that principle - the submission -

was made to the learned trial judge and the

Court of Criminal Appeal that notwithstanding the

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existence of some corroboration on some counts,

that a warning was required so that does involve,

potentially, an extension of the principle in

CARR's case. There were a couple of attacks

where, effectively, there was no corroboration and

His Honour declined to give the warning and the Court of Criminal Appeal took the view that the

warning was not required. So, in the circumstances,

in our submission, there is a point of principle

in issue under paragraph 6 and an error of

principle by the Court of Criminal Appeal and the

learned trial judge on a most important matter going right to the heart of whether there is a miscarriage of justice because the Crown relied
very substantially on the confession.

BRENNAN J:	Mr Martin, could I take you back to the second point where there- was sar-e · reference IT'ade to the use by the
trial judge of the word "improbable".
MR MARTIN:	Yes, Your Honour.

BRENNAN J: That was not by way of direction as to the standard

of proof which the Crown had in relation to the

ultimate issue, was it?

MR MARTIN:	No, it was not, Your Honour.
BRENNAN J:	It was really by  way of saying that this was

evidence which could be looked at as evidence tending

to show.

MR MARTIN:  Your Honour, that is not quite the way the learned

trial judge put it. He gave the jury a direction that said they were not to have recourse to other

attacks except in a manner in which'he -directed. He

then directed that if they thought it was improbable
they could then have regard to it. Now, it is in
the category of circumstantial evidence and, with

the greatest of respect, in our submission, you

cannot have regard to another attack unless you are	satisfied beyond reasonable doubt that there is
establish beyond reasonable doubt that only one assailant is involved.

one assailant involved; that the similarities

(Continued on page 5)

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BRENNA.i.1 J: That is the issue for determination, is it not?

MR MARTIN: Well, yes it is, Your Honour, but if the jury

are told, ''Well, you can use that evidecnce if you think

it is improbable that another assailant was involved,"

then, in our submission, that fails to give the proper

direction. That is using evidence which, in itself, is

potentially doubtful.

BRENNAN J: All I want to see was that so far as the ultimate

direction to the jury was concerned, no challenge is

made to them.

MR MARTIN:  No challenge at all. His Honour's directions on

that issue generally, on burden of proof, were

exemplary and very clear indeed.

If the Court pleases, in order to understand

the issue of how it was approached by the trial judge
and the Court of Criminal Appeal, in terms of the

admissibility of each attack upon the other, it is

necessary to briefly examine the surmning up with

respect to the similarities and the existence of the

dissimilarities. It may assist the Court if I hand

up copies of exhibit Pl, which was a map in which

the various localitites are marked, and I will perhaps
explain those to the Court, and I apologize for the
fact that the numbers do not accord with the order

in which the attacks took place.

The Court will see that the applicant lived at

point No 6, towards the bottom left-hand side. The attacks occurred in the order of Mrs Vendramin, who

is nominated as No 5, in the bottom left-hand of the

plan; then Mrs Munn, No 3; the third attack was on

Mrs Fox, No 2; the fourth attack was on Mrs Lines, who

is No 1 in the top right-hand corner, and the fifth

attack upon Mrs Crawford, who is No 4 in the numbering.

MASON CJ:  And Vendramin and Munn were the same day, were they?

MR HARTIN: Yes, they were, Your Honour, and that is what we

will refer to as the exculpatory evidence; that the

timing of their attacks rendered it impossible for

the applicant to have cormnitted both of them, because

the first attacker was wearing jeans, and very casual

clothing, and within 15 minutes, the second attack was

taking place by a man wearing a brown suit and a tie,

and it was clearly established in the case that the

applicant was a person who walked everywhere. He did

not have a car, he did not have a licence, and he

walked everywhere, and it would have been impossible to

have cormnitted both the attacks on Mrs Munn and

Mrs Vendramin, and also attended at his home to get

changed. The distance was just too much. The distance

was 2.8 kilometres.

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TOOHEY J:  I do not want to take you away from the thread of

your argument but presumably that depends upon

an assumption as to when each of the assaults took

place.

MR M.ARTIN: Yes,it does,Your Honour,and I will come back

to the evidence that demonstrates that the timing

was tied down with some certainty by the witnesses

concerned~ But if the Court pleases, the similarities

pages~l83 to 133, voli.li::le one. as su!!lIIlarized by the learned trial judge at

BFENNAN J: This is in the summing up?

MR MARTIN: Yes,it is,Your Honour.

BFENNAN J: To what extent did the evidence in the trial

alter the situation which faced the trial judge at

a time when he had to rule upon admissibility?

MR MARTIN:  Not a great deal,Your Honour, although I would

suggest that the timing of the two attacks upon

Mrs Vendramin and Mrs Munn- what we have called the

e:r.culpatory evidence - was not as clear before the

learned trial judge at the commencement of the

evidence.

And perhaps the other factor, I am

instructed, that was not apparent to him at the

commencement, ~as the existence of a known criminal who was seen in the vicinity of Mrs Munn's premises

at about the time that the attack took place, a man

called Karen who was seen by a patrol officer, who

was also wearing a brown suit and a tie which matched

the description of the person seen leaving Mrs Munn's

premises. So they were perhaps the two factors

that were not fully apparent to the learned trial

judge at the commencement of the trial when he made

the ruli..~. If the Court pleases, the similarities are

identified in His Honour's summing up from half-way

down page 183, and beginning at line 24 in particular

His Honour refers to the fact that each was : an elderly woman

Each -

lived alone -

Each -

in a house situated on -

a -

corner.

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The Crown suggestion as to the reason for that.

Feature number four is at line 8 on page 184:

Each of the victims was hit about the head, although also in other parts of the body as well.

Factor number five : a method of entry was through the back door in three of the cases and in the

window in two of the other cases. Tha4 of course,

His Honour suggests might be a point of similarity

Wa would suggest it is also, in general terms, a

dissimilarity or an absence, if you like, of a

similarity. His Honour refers to the times of the

day as a similarity, that they generally appeared

to have been in daylight hours. With the greatest

of respect, those hours of the day really did not

amount to a similarity. They were spread across

the better part of the day and if regard was had
to the statements of the victims, there was one of

the attacks that occurred at dawn. But His Honour told the jury they had to disregard the statements

and it does not appear that His Honour took any

account of the statements of the victims who were not
called for these present purposes other than in

respect of their descriptions of the assailants.

So,His Honour refers to the time of the day as point

number six, which we challenge. Point number seven

is at 185, line 6, the geographical area, and

the Court can see that there was one case, we suggest,

Mrs Lines, who was outside the close geographical area

and she was the only one who was on a main road,

crossroad, at a main arterial road, carrying a lot

of traffic and she was on the corner of a main road.

(Continued on page 8)

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MR MARTIN (continuing):  We acknowledge that in some

situations, a geographical area, for example,

south or south-east of the centre of the city

might be regarded as sufficient, but if one

takes a group of attacks in a close area and

then moves out of that area we say the

geographical location for similarity purposes

is tightened. I mention, just for the sake of

mentioning it now, that in respect of Mrs Lines,

not only was she outside the close area of the

others but in her case gloves were worn - she

identified gloves being worn by the attacker -

and that a stocking was over the head disguising

the attacker. Those two features are oresent

only in her case and in particular, of.course,
the existence of gloves is quite inconsistent

with the pattern of the attacker who entered

Mrs Fox's oremises and left, on the Crown case,

the fingerprint on the window when he was

entering the premises. So they are quite

striking dissimilarities between Mrs Lines and

the other attacks.

His Honour then discusses the question of the distances that were walked. His Honour

then refers at page 186 line 20 to the fact

that telephone cords were cut in two of the

premises and explains that in two other oremises

that was not possible anyway. With the greatest

of respect, that is not really, in our submission,

proper to refer to it as a similarity. It may

not be properly classed as a dissimiliarty but

it is not a similarity for these purposes of

persuading the Court that there is positive

probative value. At page 187 His Honour refers

to some intention of theft, but that only existed

in relation to some attacks, not all.

The evidence of attacks of a sexual nature,

line 16 on page 187, was the next factor His Honour

referred to. We would Put to the Court in fact that that is a dissimilarity because there was

not evidence of any attacks in all cases. Perhaps	to clear UP one matter, the statement of Mrs Lines
did refer to an attack of a sexual nature. That
part of the statement was withheld from the jury.
I hand up to the Court a page that we have
numbered page 187a because there is a page of
the summing up missing, following page 187.

MASON CJ:	Thank you.
MR MARTIN:	That ~age completes the examination by

His Honour of the sexual assaults and His Honour

refers at line 6 to the fact that if:

there was an indecent assault on Mrs Vendramin

and or Mrs Crawford, it would mean that there

was some dissimilarity between those attacks

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and the attacks on Mrs Munn, Mrs Fox

and Mrs Lines where there is no evidence

of sexual assault.

His Honour goes on:

However, if you were to reject the evidence

of a sexual nature of any assaults on

Mrs Vendramin and Mrs Crawford you could

then, if you thought proper, find a

oattern between the five attacks that there

was no sexual motive -

That is not a realistic proposition, with the

greatest of respect.

BRENNAN J: 

How was the evidence established either of the

existence of a sexual assault or the non-existence
of a sexual assault in the cases other than

Mrs Vendramin?

MR MARTIN: 

Mrs Crawford, there was semen found on one

of the swabs, the labial swab.	So that was
evidence of a sexual assault.

BRENNAN J: Yes.

MR MARTIN: That, in fact, stood to be contrasted with the

applicant's alleged admission to the police that

he had ejaculated all over her, all over the

bed.

(Continued on page 10)

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Jv1R MAR.Tm ·(continuing):  Mrs tines in fact rra.de an unspecified allegation

of sexual assault but that part ot 1t was not admitted

so it was the absence of any medical evidence to

suggest that there was a sexual assault.	I think
that was - Dr Moody examined Mrs Lines.

BRENNAN J:  But are you saying that there was no evidence of

a sexual assault in the other cases?

MR MARTIN:	Yes, that is so, but - - -
BRENNAN J:	Not that there was evidence that there was no

sexual assault, but that there was no evidence one

way or the other?

MR MARTIN:  In the case of Mrs Lines I have to concede that

Dr Moody said there was a complaint of genital soreness.

BRENNAN J:  And that is the evidence that wrongly got in,

according to the view that was taken?

MR MARTIN:	Yes, Your Honour, that is so, but Your Honour is correct that there was an absence of any evidence of
a sexual assault.  So that is why I have been at pains,
if the Court pleases, to say that some of these are not, as such, dissimilarities but they are the absence of similarities and this is one of those areas where we would perhaps say that there is an absence of a
similarity.  Mrs Fox, in her statement, said,
11 He did not touch me sexually" but, again, that
statement was not before the jury for that purpose
but if it had been used by His Honour for that purpose
initially then that would be a dissimilarity in the case of Mrs Fox, but not positively proved the
way His Honour refused to allow that statement to
go to the jury for that purpose.

His Honour then, at page 188, starts to discuss

the dissimilarity in respect of one particular attack

concerning the knife.	So they are the similarities,
combination of features that His Honour relied upon,

some of which were valid and some were not, in our

submission. The dissimilarities are summarized at

the top of page 2 of our outline and the references

to the summing up are given. His Honour refers to

what we put to the Court was the primary dissimilarity,

and that is the differing descriptions, beginning at

the bottom of page 188. He classes this as a

significant point for the jury's consideration:

The descriptions given ..... of their

attackers vary dramatically between

them, and in a number of respects did

not fit those of the accused.

BRENNAN J:  How was that evidence before the jury?

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MR MARTIN: 

His Honour permitted the statements of each of the

victims not called to be used by the jury in so far
as it related to what information the police had of
the interview and, secondly, in so far as the
descriptions of the assailant in each case was

concerned.	That was done with the consent of
the Crown.	So the statements were admitted for the

limited purpose.  So the jury were able to have

regard to those statements and the descriptions, as

His Honour said, vary dramatically and did not fit,

in some instances, the features of the accused.

His Honour refers to Mrs Fox "blonde, wavev hair",

Mrs Crawford "dark aboriginal", Mrs Lines "a man with red hair",

although there was a red stocking that interfered

. .	there, Mrs Vendraminwith "short, blonde or fair hair".
If I may just give the Court a little more information
because, in our submission, the summing up is inadequate to convey the actual differences in the
descriptions. Mrs Fox described a man and at page 93 is the transcription of her statement.

(Continued on page 12)

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MR MARTIN (continuing): In fact it begins at page 92 but

page 93 is where she refers to the man as:

Not young.

It is about line 11:

Not young.

Perhaps -

30. blonde wavy -

hair -

over the ears ..... normal voice - not deep not

soft. Educated - no accent. Biggish build.

And that, if the Court pleases, will find quite a

distinction between her description and a couple of

the others in terms of the build and the speech.

She told Mrs Cotton, a neighbour, that the man had

curly hair and was big. So that was Mrs Fox.

Mrs Crawford: her statement, in fact, came through, by consent, the evidence of a Constable Daly at

page 66. She referred to an Aboriginal - line 32 -

and then line 37 she said she was:

three-quarters blind -

but evidence was given that when someone was close

enough, within a short distance, she was able to

see them.

He was dark, I think Aboriginal, he was tall

and thin, in his twenties, had dark hair but

I can't remember how long. I did feel he had

some whiskers around his chin -

Quite different, obviously. Mrs Lines: page 98

is the transcription of her - it begins at page 94 but

the particular passage is at page 98, at about line 9 or 8:	he might have been in his 30s but I couldn't
see his face clearly ..... He would be taller
then me.  His build was fairly small .....
small head of hair and it was reddish, but
that could -

have been the stocking.	She said he had a red
stocking.	The correct transcription should read:

"He did not have a beard or a moustache." The

actual exhibit is earlier in the appeal book so

it is "did not have a beard or a moustache." She

refers to him having:

gloves on.

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And, at the bottom of the page, the last half a dozen

lines:

I remember him shouting at me when he left not

to ring the police. I think he was Australian.

He seemed a bit rough - certainly not educated.

Of course, that is quite the opposite to the view of

Mrs Fox of her assailant. That was the description given by Mrs Lines. Mrs Vendramin was the victim

who gave evidence,at page 18 of the ~ppeal book is

the main part of her description, line 19:

Fair hair ..... a little taller than -

her and she was five foot six -

Slight build ..... in his late 20s -

and she said his hair was long - at the bottom of the

page. Over at page 687, an important feature of the

person she identified and, if the Court pleases, this

is the man who attacked her in, I think, the back

verandah and she was with him for some time and got a

good look. Line 5 on page 19:

He had an impediment in his speech. Like a

faltering slow speech, he had a tooth missing

in the upper jaw, on his righthand side.-

and no facial hair - line 15. She identified the

applicant but the applicant did not have an

impediment in his speech, nor did he have a tooth

missing. I am sorry - a missing tooth but not in

that spot.

(Continued on page 14)

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MR HARTIN:  But her description is, again in terms of the

impediment in the speech, quite different from any

of the others. Mrs Munn, the transcription of her

statement at page 91: this is the lady who had the

knife held in front of her face; she is the only

one. The description is, in the last paragraph,

"sandy hair, not very nice looking".

Mrs LeRaye is the lady who identified the person

leaving Mrs Munn's premises at about the time of the

attack, and she identified the accused as that person,

and it was the Crown case that it was the accused who

was leaving.	She gave her evidence at pages 37 and 38
on the issue of the description.	She was, in fact, to

get her position in correct, page 37 line 28: she

was 20 to 25 feet away and she was observing the person for 10 seconds or more. Page 38, line 6:

He was around 35-40 years of age .....
5ft 10-6 ft, and he was wearing a dark

brown suit -

his hair was dark brown, he was of a "medium build",

and, she said, I think, "about eleven and a half

stones", line 7. She was cross-examined to establish

that she told the police that he had had dark brown

short straight hair, and that the man was about

six foot tall.

So, if the Court pleases, that is the evidence

that was before the jury of different descriptions,

and in our submission, those in themselves, were

sufficient to create the reasonable possibility that

more than one assailant was involved, and therefore

to destroy the probative value of the alleged

similarities.

BRENNAN J:	Do we have a description of the applicant?
MR MARTIN:	Your Honour, I am not sure that there is actually

a description on the - I think there may be, if

Your Honour will permit my junior to find it, and it
may be appropriate if - we had sent over from Adelaide

been brought to the Court, but I can hand up

photofits that were prepared by Mrs Vendramin and have

our copies: on the back it indicates the identity of

the lady who prepared the photofit, and the Court will

see that they are quite different in terms of the

colour of hair, et cetera. So these are Mrs Vendramin

and Mrs LeRaye who identifies the person coming from

Mrs Munn's premises.

It may be preferable if I hand up our copies which

have the names on the back. They were exhibits Pl0 and . Pl4. In answer to Your Honour Justice Brennan, page 855

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of the eviaence is not in t~e afpeal tooK.

Mr St Clair was measured as 170 centimetres,

medium build, approximately 66 kilograms in weight.

At that time when he was arrested, which was

10 October, I think it was the day of the last

attack, he has a rather tanned complexion with brown

hair, blue eyes, there was a spot on the top of his

nose, which was a cancer spot, and the second joint

on the left ring finger was missing.

(Continued on page 16)

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BRENNAN J: Anything about a black spot on the thumb?

MR MARTIN: Not from that. I think Dr McCleave spoke

of that. He examined the applica~t and

there was a spot seen obviously by Mrs Vendramin.

Dr McCleave thought that the spot, at page 1527

not in the appeal book, would have been three

or four weeks old at the outside and Mrs Vendramin's

attack was June 30 and this was October 10 or

thereabouts. So sore question arose, a genuine issue

as to whether there would have been a spot there

at the time that Mrs Vendramin saw her assailant.

If the Court pleases, the other factors

were the methods of entry, which have already

been referred to; the sexual aspects; telephone

cords. The knife was used in only one attack.

That is mentioned by His Honour at page 188

at the top of the page. There is a knife used in only one attack. The stocking disguise was

used only in the attack on Mrs Lines and we

have the geographical areas which have been

canvassed, the variation in times which have

been canvassed, and if regard was ha.cl to tr.e statements

of the victims, the transcriptions - ?arts -

of which I have read, thenthere were some other,

if not dissimilarities at least the absence of

any striking similarities in the particular

methods of attack upon the elderly ladies.

In addition to the dissimilarities we

refer to the exculpatory evidenc~ namely the

question of time and clothing meant the attack

by the same offender was highly unlikely unon

Mrs Vendramin and Mrs Munn.

BRENNAN J:	Where was the fingerprint found?
MR MARTIN:	The fingerprint was found on the premises

of Mrs Fox.

His Honour dealt with the question of the timing at pages 189 and 190.	He said, at
line 14:

Mrs Vendramin said that she first met

her attacker at around 11.30 a.m.

I add to that her evidence, I do not need to

read it, is at pages 13, 18 and 19 where she
says it was about 11.30, the whole incident

lasted about a quarter of an hour and the man

was wearing jeans, a pullover and sneakers. That

is pages 13, 18 and 19.	She was getting ready
to go out.	So, to answer Your Honour, that was

the way she was able to fix the time with some

certainty, that she was getting ready to go out

to an appointment that day.

C2Tl8/l/JM 16 5/12/89

St Clair

BRENNAN J: Well, to the shop.

MR 11ARTIN:  I am sorry, Your Honour, if I have misread

that.	To the shop, I am sorry, that is
correct.

Mrs LeRaye saw the man come out at 12.15

and her evidence is at page 35 where she said

she was seeing her husband off, or had seen

him off. She remembered distinctly looking

at the clock - page 35 - and she describes the

man in the "dark brown suit" at page 38. So

her timing is quite precise. And if one did

have regard to the statement of Mrs Munn,

the transcription at page 91, she said that

it was "about 12.00 noon" when she was attacked.

That, of course, tended to line up with the evidence of Mrs LeRaye about the man leaving

the premises at 12.15.

His Honour points out that if they

accept that Mrs LeRaye saw the attacker leaving,

this is the bottom of page 189, then the jury

would have to ask themselves:

how could the accused have left Mrs Vendramin's

home at about 11.45 a.m., travelled the

2.8 kilometres to Mrs Munn's home, appatently

on foot, changed his clothes, completed his

attack on Mrs Munn and have been out of

her home by 12.15 p.m. In other words,

all within the space of half an hour.	If
the evidence of times is correct, that
would seem to make it unlikely -

(Continued on page 18)

C2T18/2/JM	17	5/12/89
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MR MARTIN (conti:tuine;): That i. -:.:i;;ally, ,,,rith respect.,	not putting the onus in the correct way.
the evidence of times is a reasonable possibiiity,
it would make it unlikely. So that was the exculpatory
evidence that, in our submission, was most significant
in considering whether the evidence of similarities
had the sufficient probative force to be admitted and
we have already made mention of the fact that there
were fingerprints in ~rs Fox's premises and glove
used in the premises of Hrs Lines, which again was
a significant dissimilarity. If the Court pleases, the learned trial judge's ruling originally or his
reasons appear at volume two .· pages 263 and 264.
His Honour referred to HOCH's case and quoted from it, page 263, and in our submission at page 264
fell into error when he said:
Taking the Crown case at its highest - and that,in our submission, is not the correct approach -

I was satisfied that while there was some

prejudice to the accused -

and with the greatest of respect, we submit there

was quite great prejudice -

in revealing to the jury that he may have

committed other attacks, nevertheless, if accepted by the jury, the evidence of the

similar acts, had such probative force on

the issue of whether the accused was the

assailant of the five elderly women because

of the striking similarities between the

attacks that it was proper to admit the evidence -

and His Honour refers to the summary of his similarities

in the summing up - - -

GAUDRON J:  Mr Martin, what do you understand by the expression "taking the Crown case at its highest"?

MR MARTIN: That is accepting the Crown evidence that there

are these striking similarities.

GAUDRON J:  I would have read it quite differently. I would

have read it to be allowing for the dissimilarities.

The highest you can put it allowing for all

dissimilarities et cetera. It is a matter of

ambiguity - - -

MR MARTIN: Well ,.it is. At the very least I would say it is

ambiguous.

C2Tl9/l/CM	18	5/12/89
St Clair

GAUDRON J:  But that does not take you all the distance though.

MR MARTIN: No,it does not, I acknowledge that, Your Honour, but

I would submit that our - - -

GAUDRON J: And in any event it is probably irrelevent because

the question is was it or was it not admissible, not

whether or not the reasonL--ig processes 0£	the
trial judge are admissible,	I certainly would not have
read it the way you did.

MR MARTIN:  I accept that. I accept that there are possibly

two interpretations. We would contend that ours

is the appropriate one and indicates that the

reasoning of His Honour was an erroneous reasonin;.

GAUDRON J: Well it does not matter because the question still

is , is it admissible?

MR MARTIN:  His Honour did say, line 25, that he:

did not consider that the undoubted features
of dissimilarity were such as to deprive
the similar fact evidence of its strong

probative force -

and, with respect, we disagree. His Honour then

went on to say:

although if the jury had taken certain views

about some of the ambiguous matters the

probative force of the similar matters would

have been significantly reduced.	However,
that was a matter for the jury.

Now, with respect, in our submission,His Honour really

has not properly come to grips with the assessment

of the significance of the dissimilarities and the

exculpatory evidence and how that affects the

probative value. The learned - -·-

BRENNAN J:  i;.]hy do you say that though, Mr Martin? I ~ean surely

what His Honour must have been referring to there are

questions, for example, about time t Was

Mrs Vendramin quite accurate about che 11.30 time,

for example, or was the lady who was three-quarters

blin~ accurate when she said it looked like an

Aboriginal?

C2Tl9/2/CM	19	5/12/89
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MR MARTIN:  Your Honour, with respec~ what we suggest His Honou~

has not asked himself is the question that is posed by

Justice Dawson in SUTTON's case and adopted by the

majority in HOCH's case, namely is there a reasonable

explanation consistent with innocence or, in this case,

consistent with the existence of more than one assailant;

is there a reasonable explanation? His Honour has

rather just said, "Those matters are questions for the

jury" and has not come to approach the test of

admissibility himself by asking the question and

making his own assessment of it. Now, I acknowledge

that His Honour says that he did not think the features

of dissimilarities were such to deprive the evidence

of its strong probative force but he has not directed

himself to that specific question which is the one

that this Court said in HOCH's case should be posed by
the judge in considering the admissibility of this
type of evidence.

So I acknowledge that he has actually used some

words which come close to it but, in our submission, when
he says "These are just matters that really have to be
assessed by the jury", His Honour has failed to make

his own proper detailed assessment of it. If the Court

pleases, Justice White began his assessment at page 291

of volume two. His Honour agreed with Justice Bollen

generally and His Honour, at line 11, indicated that

in his view:

the strikingly similar features .....
overrode any apparent dissimilarities
and anomalies ..... the overwhelming force
of the combination of a number of features
of the attacks, when each feature in itself

almost attracted the description of

"strikingly similar".

Well, that is a matter of assessment, with respect.

In our submission, His Honour is just in error in taking

that view, and His Honour acknowledges the existence of
some apparent dissimilarities.	His Honour then - and

I will not read it - at pages 292 and 293, examined the

similarities and then referred to a matter which, in
our submission - and it is dealt with in paragraph 1.4

of our outline - referred to mattes which are irrelevant,

namely line 20 on page 293 that in his view:

the size of the class ..... of the
attacker tends to shrink down to a "class"

with a membership of one person.

And that issue, in the features that he looked at, 1n

our submission, is irrelevant to this question.

His Honour says at page 294, line 26:

the character ..... he is a man ..... he 1s a

loner -

there is no real evidence to suggest that he is a loner -

C2T20/l/HS	20	5/12/89
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he will readily beat old ladies ..... he

is a coward; he has time on his hands in

the day time; he is a walker -

with respect, that is wrong because that assumes that the

applicant was the attacker. There is no evidence

independent of the view that the applicant was the
assailant, that the assailants in each case was a
walker, no evidence to suggest that there was no car

parked around the corner, or anything of that nature.

So His Honour has fallen into the trap, in our submission,

of assuming that the applicant was the assailant in this

paragraph. His Honour refers on page 294 to an:

interest in this quite small geographical

locality and since he walks he takes his

time to watch homes -

again assuming the applicant is the assailant

and a person accustomed to intruding.

I suppose whoever it was did so. With respect, in our

submission, those matters were irrelevant to the present

question. His Honour then at page 297, we acknowledge,

did, in the last paragraph, make his assessment that the:

dissimilarities and anomalies ..... tend to pale

into insignificance. Separately and in combination

they do not, to my mind, constitute a reasonably

possible explanation consistent with the

appellant's innocence nor tend to show that

the verdicts were unreasonable -

et cetera.

(Continued on page 22)

C2T20/2/HS	21	5/12/89
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MR MARTIN (continuing):  But His Honour then, with the

greatest of respect, falls into error, in our

submission, and he goes on and says:

The victim's descriptions -

or the variations -

may well be due to their poor recollection.

He says, at line 10:

Differences in clothing may be due to

a change of clothing.

His Honour, in our submission has not posed the correct

test. It is the wrong test to ask whether they may be

due; the correct question is whether or not those
explanations, or those variations, can be excluded

as reasonable possibilities.

BRENNAN J:  Why do you say reasonable possibilities, when the question is admissibility?

MR MARTIN: Well, because, Your Honour, the question is - the issue -

if there is a reasonable possibility, on the evidence,

that more than one assailant was involved, then, in our

submission, the test of admissibility is not past. This

was the approach taken by Justice Dawson in SUTTON's case

and by the majority in HOCH's case, to pose that question.

I can refer the Court to the relevant passages: in

HOCK V REG, 165 CLR 292, Your Honour the Chief Justice and Justice Gaudron and Justice Wilson discussed the

criterion of admissibility et cetera, and probative

value, the traditional terms, and this was, of course,

a case of concoction, but the principle remains sound,

and at page 296 in the judgment of Your Honours in

the majority, having referred to BOARDMAN's case,

Your Honour said:

His Lordship there posited that the

possibility of concoction - not a probability
or real chance of concoction - served to render

such evidence inadmissible. Indeed we think

that must be right. 3imilar fact evidence is

is circumstantial evidence, as is implicit

in what was said by Dixon Jin MARTIN and as

pointed out by Dawson Jin SUTTON. In SUTTON

Dawson J expressed the view, with which we

agree, that to determine the admissibility
of similar fact evidence the trial judge

must apply the same test as a jury must apply

in dealing with circumstantial evidence, and

ask whether there is a rational view of the

evidence that is inconsistent with the guilt

of the accused.

C2T21/l/FK	22	HR lw---.TIN, QC	5/12/89
St Clair

And that we transpose to this case: is there a

rational view of the evidence that is inconsistent

with the view that only one assailant was involved?

And, if that is so, if the answer to that question is "yes", then the evidence does not possess the necessary probative value to be admissible.

McHUGH J:  But when you weigh up the factors of sioilarity,

are they not so overpowering that any doubts that

might be raised by the dissimilarities disappear

Look at them: first they are all - the victims are women

between the age of 75 and 85. Secondl½ they live

alone. Thirdl½ they live in a house in a corner block.

Fourthl½ they all live within a few kilometres of each

other. Fifthly, they are all beaten about the head with

fists, or perhaps an open hand, and sixthly, offences

all take place in the daytime. Now, it would be an

absolutely remarkable coincidence if the one person was not responsible for each of those five attacks.

MR MARTIN:  Your Honour, with respect, in our submission, we

acknowledge the force of those similarities but, in

our submission, the dissimilarities, and the

exculpatory evidence completely dissipate the

probative force of those similarities. We acknowledge

again, that is a matter of judgment, but in our

submission, the danger that occurs is to look at

them totally and say, "One in, all in", rather

than - - -

McHUGH J: But you see, the point is that they are objective

factors. The matters that you rely on in terms of

dissimilarities are matters which consist of
evidence which is always of dubious reliability:

identification evidence, and times.

(Continued on page 24)

C2T21/2/FK	23	5/12/89
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MR MARTIN:  But those matters, with respect, must be assessed

by the learned trial judge - - -

McHUGH J:	Of course they have got to be assessed.
MR MARTIN:	- - - and if he cannot exclude them as a reasonable

possibility then, in our submission, the evidence is

not admissible because he has, for the test of

admissibility, not excluded as a reasonable possibility

the existence of more than one assailant. We only

need one case where that applies and the differences,

for ,example, in the case between Mrs Lines and the

others may be greater than between the others but

if there is one of those attacks - and Mrs Lines

perhaps is the best one, from our point of view -

where the dissimilarities are so great as to overcome

the similarities then we have made out our case.

Mrs Lines, perhaps, is the peg that we should hang

our hat on in that regard because of the geographical area; the use of a stocking; the use of gloves. Now,

all of those matters are just quite dissimilar from

anything associated with the other persons.

GAUDRON J: Well, I have some difficulty with the way you put

it, Mr Martin. I would have thought the rational

hypothesis, inconsistent with guilt, was a rash of

granny bashEt'S not that there were different offenders -

I mean, if you say, yes, it is true that it is

different offenders, but when you are looking at it

what you are looking at is as improbable is that at

the one time in the one vicinity you have got an

outbreak of people who go around doing this sort of

thing. The question, I would have thought, is then

whether the dissimilarities which you point to

substantiate an outbreak of people engaged in this

particular criminal activity?

MR MARTIN:  Your Honour, with respect, I only have to

substantiate as a reasonable possibility the

existence of one other assailant; not that there

is an outbreak of a number, but one other assailant

and in respect of only one of the attacks; not

necessarily in respect of four out of five or three

out of five, but just one of those attacks and we

would say that Mrs Lines is perhaps the best example,

as I have just mentioned. So, I accept what

Your Honour puts to me with the qualification that it relates to only one other person and possibly

one other attack. That is all that is needed for us

to make out our case that the joinder of all of these

charges should not have been permitted. If the

Court pleases - - -

GAUDRON J: Or that the joinder of Mrs Lines' charge should

not have been admitted.

MR MARTIN: Well, i~ Your Honour, Mrs Lines' charge should not

have been joined then we would say there has been a

miscarriage.

C2T22/l/DR	24	5/12/89
St Clair

GAUDRON J: Well, one would have to look to see whether in

the circumstances of the case that was so; whether

there was inevitably a miscarriage with respect to

the others. I do not think it would follow.

MR MARTIN:  In our submission, it would follow but we would

say Mrs Lines, if you like, first at the top of the

tree, then comes the question of Mrs Vendramin and

Mrs Munn because of the problem due to the timing

which was a real problem for the Crown and one could

understand if the jury had acquitted of one of those

charges - perhaps Mrs Lines or acquitted of Mrs Munn -

then one could say they had applied the directions very

carefully but we would also say that Mrs Munn and

Mrs Vendramin cannot stand together.

But, we would put to the Court that these

matters were not properly assessed at trial and
that that is the place - back to the trial judge -
for them to be properly assessed the second time
around. If the Court pleases, back to page 298, in

our submission, His Honour has approached the

question, therefore, the wrong way. He has not

asked whether that reasonable possibility can be excluded. Rather, he has looked at it the other way, "Well, it might be due to this or it might be

due to that." So, that is a reversal of the proper

approach.

(Continued on page 26)

C2T22/2/DR	25	5/12/89
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BRENNAN J:  But when you are saying "has to be excluded",

that really must be looked at in the way in

which the doctrines relating to admissibility

of this evidence have emerged and the source

of them is MARTIN V OSBORNE.

MR M.ARTIN:  Yes, it is, Your Honour.

BRENNAN J: If one looks there one sees that what

Mr Justice Dixon was saying there is that

'The class of acts and occurrences that

may be considered include circumstances whose

relation to the fact in issue consists in the

probability or increased probability. Judp.:ed

rationally upon conunon experience they would

not be found unless the fact to be proved

also existed". Then he goes on to say that

"The petition of acts or occurrences is often

the very thing which makes it probable that

they are accompanied by some further fact.

The frequency with which a set of circumstances

recurs or the regularity with which a course

of conduct is pursued may exclude as unreasonable

any other explanation or hypothesis than the

truth of the fact to be proved." What His Honour

was saying there, is it not, and I would not have

thought that the later cases would have been

minded to depart from it, was that one looks

at the cogency of the evidence to see whether the likelihood is such that the fact whicr. is

sought to be proved exists when the facts which

are sought to be adduced in evidence exist

and it depends upon the extent of the nrobative value
of that trat one has to determine whether or not the

evidence is admissible.

MR MARTIN:  Yes, Your Honour, but His Honour was talking

there in terms of perhaps the ultimate probative
value and quite clearly, in this case, if the

similarities were such to establish that there

was only one offender, then it was highly

probative. There cannot be any argument about

that.	We are going back one step from there and
asking the question:	was the evidence canable

of supporting that inference and capable of
excluding the innocent - or the possibility of

more than one offender. If the answer to that

is no, it was not so capable, then the evidence

was not admissible.

BRENNAN J: That must be answered in the context of the

whole of the case.

MR MARTIN: Yes, it must. I acknowledge that, Your Honour,

but, in our submission, it is not correct in

looking at the dissimilarities to see whether

they can be put aside to say they might be due

to some other explanation such as eyesight, or

whatever.

C2T23/l/JM	26	5/12/89
St Clair

BRENNAN J:	But why not, if - - -
MR MARTIN:	Because, with respect -
BRENNAN J:	- - - one looks at them in the context of

the whole of the case?

MR MARTIN:  In the context of the whole of the case the

test must be: can they be put aside - the

differences in description - can they be put

down as not a reasonable possibility; not that

they might be due to something else. His Honour

has approached it by saying, "Well, they may be

due to poor recollection." Our suggestion

is that His Honour should have said, "They must

be due to poor recollection. I am satisfied

of that." If he is not satisfied of that, then

he has not excluded the dissimilarity as a basis

for our proposition and, Your Honour, I cannot out

it any better than trat. He cannot exclude it

as a reasonable possibility by saying, '~ell,

it might be due to poor eyesight." That does

not exclude it as a reasonable possibility.

You have to say, "It must be due to poor

eyesight" in order to so exclude it.

We point out, of course, that the observation

was made by the former Chief Justice Gibbs in

SUTTON's case. In that case, for example, if the descriptions had have been different there

would have been no question of the evidence

being admissible. His Honour considered

in SUTTON's case that a difference in description

would have destroyed the probative value of any

other similarities.

(Continued on page 28)

C2T23/2/JM	27	5/12/89
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MR MARTIN (continuing): If the Court pleases, Justice Bollen

dealt with the matter and Justice Prior effectively

agreed with him. Page 347 is where His Honour began,

referring to it as certain type of circumstantial

evidence. His Honour referred to HOCH's case and

distinguished HOCH's case at page 348 as a case

involving concoction. ·;nth respect, it does not alter

the fact that the principle stated therein is

applicable. At page 348 His Honour adopts Your Honour

Justice Brennan's test as to whether it would be

an affront to common sense to exclude it. That, with

respect, is the test, assuming that the facts that

the Crown seek to prove arise from it or the

inferences. The inference if it was one assailant,

it would be an a£fro.:1.t - if that inference is properly there it would be an affront to common sense to exclude

it at the earlier stages is that inference of

properly available. And His Honour then discusses

the time span and the similarities at page 349.

His Honour says at the bottom of page 349:

There must be proof of the commission of one

offence. Here the fingerprint gives the

starting point.

It is correct. His Honour then says that once they

found he was:

guilty of the assault of Mrs Fox -

where he left the fingerprint -

That opened the door to receipt and use of

each set of evidence on each count. The fact

that there were sexual attacks on some

women and that there are other dissimilarities

does not matter. Absolute perfection of

identity about each "set" of evidence is

not required.

With respect, His Honour, in our submission, simply

has not come to grips with the true extent of the

dissimilarities and the effect that that will have

on the admissibility. His Honour ~ites the

submissions for the applicant at pages 350 to 355

and comes to his conclusion at page 355 that:

the idea that more than one man committed

these attacks in all the circumstances presses

coincidence beyond belief.

And refers to, at the bottom of page 355,

the submission being built around -

"sufficient dissimilarities".

C2T24/l/CM	28	5/12/89
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And His Honour only just touches on the issue of

the times and says that is a matter for the jury, nage 356, line 3. It was not, with respect, just a matter for the jury. It was a matter for the

trial judge and the Court of Criminal Appeal to

assess the significance of that exculpatory evidence
or dissimilarity. His Honour says, at the bottom

of page 356:

we are concerned mainly with the judge's

view of the evidence in considering admissibility.

The time and distance point was not sufficient

to taint the receipt and the use of "similar

fact" evidence.

If the Court pleases, we can do no more than say that,

arising from those passages in the trial judge and

the Court of Criminal Appeal's reasonings, there

were errors in their processes of reasoning that

the dissimilarities do carry such weight,together

with the exculpatory evidence, that it destroyed

the probative value of this material. I move then

to the paragraph two in summing up, as it dealt with

the use of the similar fact evidence.	The summing
up appears at pages 181 to 183 in book one.	At line
22 His Honour says:

(Continued on page 30)

C2T24/2/CM	29	5/12/89
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MR MARTIN (continuing):

So far I have discussed the evidence

on the basis that the charges ..... should

be considered only in the light of the

evidence which relates specifically to the

attack about which it may speak. I now

need to tell you about the use you may make

of the evidence in respect of any one

attack as evidence that the accused may

have been guilty of another attack on

another victim with which he is now

charged. It is called the use of similar

fact evidence.

His Honour then gives the warning about propensity

and disposition. His Honour says, at line 17 on

page 182:

It is only permissible to use any

conclusion which you reach that he is guilty
of one or more of the attacks on the

victims to lead you to be satisfied that

he is guilty of attacks on any of the

other victims if there is such a

substantial, strong or marked similarity

between the attacks as to make it improbable

that the attacks were committed by different

people.

Now, we submit that that is an erroneous direction.

It is not sufficient, if it was improbable. It must

be beyond reasonable doubt.

In other words, there must	not merely
be common features between	the attacks,
but striking similarities.	I suggest
that it would be dangerous -

and this is a passage that the Court of Criminal Appeal

relied upon and we point out this is a suggestion, not

a direction -

I suggest that it would be dangerous for you to rely on such similar fact evidence

to convict the accused of any offence

unless you were first satisfied by evidence

other than similar fact evidence that he

was guilty of at least several of the attacks

from which the charges arise. In this

event you should still not convict him

of the offences relating to other victims

unless you are satisfied about the striking

similarity between the attacks which you do

find proved through other evidence and the

attacks on which you may rely upon similar

fact evidence in convicting the accused.

And he refers to the totality of the evidence.

C2T25/l/PLC	30	5/12/89
St Clair

So, in our submission, as we point out in

paragraph 2 at the top of page 3, there were two errors: the failure to tell the jury - direct the jury that they

must find guilt by evidence connected with one attack

alone before recourse to the balance of the evidence

and, secondly, the error as to the onus of proof. And

those errors, in our submission, were so significant as to cause a substantial miscarriage in themselves.

Justice White agreed with Justice Bollen

and Justice Bollen dealt with the matter at book two, pages 358 through to 360. His Honour observes at the

top that:

It is one thing to permit evidence .....

It is another to explain to the jury how it

may be used.

Page 358.	The applicant's submission before the Court
of Criminal Appeal is set out.	The Court will appreciate,

in this particular instance, at the request of the

Chief Justice, the submissions were presented to the

Court of Criminal Appeal in writing.

His Honour, having referred to the submissions,

says at line 32:

The answer is, as I repeat, the accused's

fingerprint at the home of Mrs Fox.

That is fine as far as it goes but it does not go to the issue of whether the summing up is adequate. His Honour then quotes from the sununing up and at the bottom of

page 359 says:

In two places His Honour's remarks negate

Mr Martin's submissions. Early in the

directions His Honour referred to the "first

thing". He postulated the jury's satisfaction

of proof of guilt of one or more attacks.

That passage, if the Court pleases, is at line 5 at the

top of page 359 and that passage,"the first thing" is
the context of a warning not to use guilt of one as
evidence of propensity. It is not a direction that you

can only use other attacks if you are satisfied he is

guilty of one attack first on the evidence affecting

that attack alone.

So, with respect, Justice Bollen has picked on

a passage and misread it in terms of the context in

which it is said. So, that does not answer the applicant's

contention.

C2T25/2/PLC	31	5/12/89
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MR MARTIN (continuing):  His Honour then goes on at the bottom

of page 359 to say:

More pointedly he spoke the sentence

which I have underlined -

and that is the passage where he said:

it would be dangerous for you to rely on -

it. Again, with respect, that is not a direction.
It does not tell the jury that they cannot use it and
in the context of this case where it was so important,
in our submission, that that failure to tell the jury

that they must first be satisfied on evidence affecting

a particular count alone is a - - -

MASON CJ:	Was a redirection sought at the trial?
MR MARTIN:	I do not think it was, Your Honour, on that issue.

If Your Honour will just pardon me - I do not think it

was sought. I will just have that checked, but my

recollection is that it was not.

MASON CJ:	Thank you.
BRENNAN J:	What is the problem about the passage that 1s

underlined there?

MR MARTIN:  Your Honour, there is no problem as far as it goes

but, in our submission, it does not go far enough.

What the jury must be told, not just that it is dangerous

to rely on one until you are first satisfied by evidence

other than similar fact that he is guilty of at least

one or more of the other attacks - - -

McHUGH J:  But is not the vice of the passage that is underlined

that it suggests that nevertheless it is open to the

jury to do it, even though the judge is suggesting it

is dangerous?

MR MARTIN:  Yes, it is. Thank you, Your Honour. Yes,

His Honour should have told the jury, "You must find

guilt by referring to evidence affecting a particular

count alone, and disregarding all other evidence of similar fact,

before you can go on and use the similar fact and,
as Justice McHugh has just pointed out, not only has

His Honour not told the jury that, but he has left it

open to do just that, even though he said it would be

dangerous to do so. He has left it open for them to

use a forbidden line of reasoning.

BRENNAN J:  That is rather taking the emphasis away from the

words which I would have thought were at the heart of what

His Honour was saying, that is:

at least several of the attacks from

which the charges arise.

C2T26/l/HS	32	5/12/89
St Clair

Is not His Honour saying, "Look, if you find that there

was one similar fact, you can look at that evidence of

similar fact but really I suggest that you should not
do it unless there are" - to use my sister Gaudron's
observation - "a rash of granny bashing. You should

see whether there is several".

MR MARTIN:  With respect, we disagree with that. What

His Honour has said to the jury is that, "Until you are satisfied by looking at the evidence affecting

a particular count in isolation, until you are

satisfied he is guilty of those, perhaps in several

of them, it would be dangerous for you to rely upon

the similar fact to convict of other offences". Now,

in our submission, that is a misdirection because it

is impermissible for the jury to have regard to

similar fact until they are satisfied of guilt, for

example in Mrs Fox's case, because of the existence of the fingerprint. They must be told that they have to

ignore the similar fact and consider guilt on a particular

count with the evidence affecting that count alone.

Once they have found that - and this is

discussed in VAITOS' case - once they have found that,
then they may, if they are satisfied of the similarities
that only one assailant was involved, use the similar

fact evidence.

BRENNAN J:	To do what?
MR MARTIN:	To conclude that he was guilty on one, he was

guilty on the others where they are satisfied that

the similar fact proves that it was the same assailant

between, for example, Mrs Fox and the others.

BRENNAN J:  I am not following what you are putting, Mr Martin.

The proposition with regard to similar fact evidence

is that it is admissible to prove the fact in issue.

MR MARTIN:  Yes, Your Honour.

BRENNAN J:	Are you saying that you can only look at similar fact evidence once you are satisfied of the fact in
issue?

(Continued on page 34)

C2T26/2/HS	33	5/12/89
St Clair

MR MARTIN:	Your Honour, the fact in issue is identity.
BRENNAN J:	Yes.
MR MARTIN:	Before you can take this - you cannot use

all these similar facts to say the identity is

that of the accused. Before you get to that

stage you must link him with a particular attack.

All the similar fact evidence does is identify

that there is one attacker involved.

BRENNAN J: Yes.

MR MARTIN:  You first have to then link him to one of those five attacks. Now, in this case, for

example, the fingerprint would be satisfactory

to do that. The jury must be told to do that,
to first link him to one of the attacks by

evidence related to that attack alone, before

then concluding that he is the attacker on

all of them because there is only one assailant.

That is what the jury have not been told in

this case. They have been told that it would be

dangerous to do that but impliedly, as

Justice McHugh has pointed out, they have been

told, "Look, it is permissible to look at all
the similar fact evidence" to decide identity of

the applicant, the accused, not just to decide

whether it is one attacker. They have not been

taken back to the grass roots, if you like, of

the process of reasoning that they must follow.

McHUGH J: It strikes me that is reinforced by the last

sentence in the passage that is set out in

that long passage.

MR MARTIN:  Yes:

Of course, you are at liberty to consider

deciding upon the f.Uilt or innocence of

the similar act evidence in the case in

the accused.

Yes, Your Honour, thank you.	I am obliged to
Your Honour.	He has left it sort of at large

totally and said, "You look at the totality of

the evidence". But that is not permissible.

It is a very dangerous process of reasoning

because the particular accused must be linked
to one or more offence by some specific evidence
before they are allowed to have that process of

reasoning, "Well, he cormnitted Mrs Fox. We are

satisfied that it is the one assailant of all

the other attacks as well, therefore he must be

the assailant." That is the logical process

that they must follow and they have been misled

and misled, in our submission, in a very serious

C2T27/l/JM	34	5/12/89
St Clair

manner by the directions of the learned trial

judge and, with respect, the Court of Criminal

Appeal have failed to grasp that. His Honour

Justice Bollen says, at the bottom of page 359:

But in the context of the whole of
His Honour's remarks on this issue I
have no doubt but that the jury would

have understood that satisfaction beyond

reasonable doubt of guilt on one count was
necessary before they could use the
evidence of "all for all". In fact the

jury would have understood a need to be

satisfied of guilt on at "least several

attacks" before using similar fact evidence.

This was undly favourable to the accused.

If that is correct, if in fact they had been told

they had to be satisfied of guilt on at least

several before using similar fact, we agree

it would have been 1.m.duly favourable.	But that is
not what they were told.	They were told that it

dangerous, but nevertheless impliedly, that it

was permissible to do so.

TOOHEY J:  But what of the passage between line 20 and

line 30 on page 359, Mr Martin? I know you

complain about the use of the expression "improbable"

but if it is legitimate to put that to one side

for a moment, is that not a more conventional

direction than perhaps the one at the foot of that

passage?

MR MARTIN: Yes, it is more conventional, Your Honour,

that is so.

TOOHEY J:  I suppose all I am saying is that you really

need to look at the entirety of the surmning up.

MR MARTIN:  Yes, Your Honour, we accept that. Fe agree

that is the more conventional way to put it.

But, of course, when you combine then the

subsequent error and you add in also the

difficulty with the onus of proof, that whole

passage is just grossly misleading to the jury,

in my submission, and the Court of Criminal Apneal

has failed to properly assess- and in fact they

failed to find any error and therefore, of course,

they failed then to consider the significance of

the error.

(Continued on page 36)

C2T27/2/JM	35	5/12/89
St Clair

MR MARTIN (continuing): Justice Prior dealt with the matter

at pages 386-387. Of course, Justice White agreed

with Justice Bollen - indicated that at page 291 -

Justice Prior, at pages 386-387, and, in effect,

agreed with the view taken by Justice Bollen that

the directions were, if anything, more favourable.

So, His Honour has fallen into the same error - it

is the bottom of page 386 - with respect, that

Justice Bollen has fallen into.

If the Court pleases, I move then to

paragraph 3, the use of the victims' statements.

I acknowledge at the outset that His Honour the

trial judge made a ruling on the matter: the evidence

would have been admissible subject to the exercise

of a	discretion pursuant to the provisions of the
South Australian EVIDENCE ACT.	The provision

effectively says that a statement may be admitted

under certain situations. We acknowledge that the

provisions of the EVIDENCE ACT were not brought to

His Honour's attention during the course of the

argument and in the passages referred to there,
in the Court of Criminal Appeal, Justice Bollen took

the view that in view of that fact that was the end

of the matter, that the EVIDENCE ACT could not now

be invoked. In our submission, that was not an

appropriate view of the matter notwithstanding the

failure to refer to it -

GAUDRON J: But, cannot we go back a little bit. We have to go

back, do we not? You said earlier that these

statements went in as to certain parts by consent?

MR MARTIN:  Yes, Your Honour.

GAUDRON J: All right. Did you tender the rest?

MR MARTIN:  Your Honour, the whole statements were read to

the jury with the exception of certain allegations of sexual assault by Mrs Lines. They were read to

the jury in their entirety for two purposes: to

tell the jury what knowledge the police had at the

time of the interview; and for the purposes of the

descriptions given. The learned trial judge told

the jury to use them for those purposes but to ignore

what they had heard of the rest of the statements.

So, in fact, the whole statement was presented to

the jury but they were given careful directions - - -

GAUDRON J: So, you were, therefore, in a position, by your

cross-examination, to draw out any dissimilarities

upon which you might wish to rely, were you not?

MR MARTIN:  No, Your Honour, because the statements were

admitted for limited purposes and in - - -

C2T28/l/DR	36	5/12/89
St Clair

GAUDRON J: Well, did you seek to have them admitted beyond

that?

MR MARTIN:  Yes, Your Honour. The application was made to use

them, in effect, at large and that application was

declined by the learned trial judge. He said, "No,

they will only be used for these very limited

purposes" and directed the jury accordingly. He

was perfectly at liberty to do so, of course, and

his statement in accordance with the authority of
this Court in HUGHES V NATIONAL EXECUTORS, TRUSTEE CO.

that was the proper course, if that is the view that

His Honour took. But, His Honour, in our submission,

was in error. The statements were admissible under

the EVIDENCE ACT even though it was not brought to

His Honour's attention and because - - -

GAUDRON J:	But you did not tender them?
MR MARTIN:	No, I think they were tendered by the Crown. Yes,

the defence called for production of them and they

were tendered by the Crown.

GAUDRON J: Yes, well you could have tendered them yourself

if you had wished.

MR MARTIN:  No, Your Honour, even if the defence had sought to

tender them, His Honour would not have permitted

the tender of them for any purpose other than the

two limited purposes that I have mentioned.

His Honour simply said, "Well, they may have been

admitted but their use will be restricted to these

two particular matters", and that is what we

complain of.

(Continued on page 38)

C2T28/2/DR	37	5/12/89
St Clair

GAUDRON J: In a sense, the direction was aimed at protecting

your position, or the position of your client.

MR MARTIN:  No, Your Honour, with respect. I suppose there

are always two sides to the coin. There were good
features of them and bad features, from the defence
point of view, but, in our submission, they would
have brought out, in effect, other dissimilarities,

or absences of similarities, and also, perhaps

some inaccuracies in the record of interview, but -

GAUDRON J:  But you were in a position, were you not, to take

steps to call evidence which would have exposed

those matters?

MR MARTIN:  No, Your Honour, by virtue of His Honour's ruling.

GAUDRON J: Well, you could have called the witnesses, perhaps,

the victims, yourself, if you wanted to take that

risk -

MR MARTIN:	With rer,pect, I acknowledge that.
GAUDRON J:	- - - and if they could not - and then you would

proceed under the EVIDENCE ACT.

MR MARTIN:  Yes. The defence could have taken the steps of

trying to call those victims, but there are obvious

difficulti·es. The Crown led evidence about their

ill health to explain why they were not being called.

And, with respect, that was not a realistic position

to put the defence in. The statements were

there, they were tendered and, in our submission, they

should have been permitted to be used at large.

BRENNAN J: .i\notheJ:....p~lem. you face here :i.s that if you had

only uttered the words "45b", ~- you are uttering now,

all would have been saved, is that right?

MR MARTIN:  Yes, Your Honour, that may be the case. I acknowledge

that is a difficulty, but, in our submission,

His Honour should have been alert to the existence of

the provisions of the EVIDENCE ACT, notwithstanding that counsel failed to appeal to that provision, and

therefore, we do not have, I acknowledge, His Honour

exercising the discretion under that Act because he

did not think of it and nor did counsel, at the

time. I appreciate the difficulties, but our position

is set out in paragraph 3.

The particular, perhaps,differences, if you like,

that would have been apparent, in terms of the modus

operandi between each attack, are apparent in the

transcriptions of the statements that I have already

referred to. And, just for completeness, I should

indicate that His Honour's view at the trial is at

C2T29/1/FK	38	5/12/89
St Clair

page 99; I will not read it, that is just where His Honour makes his view plain - yes, page 99,

where His Honour gives the first direction to the

jury about the matter and then his other directions

are referred to in paragraph 3, the passages in

the summing up.

If the Court pleases, I move to paragraph 4, and the issue of the identification by Mrs LeRaye.

This ground raises the question of the admissibility

of tainted identification evidence. In brief, the

situation was this: Mrs LeRaye was presented, by

Detective Mcfarlane, with a group of photographs.

She came down to a choice between two and the

detective said to her, according her evidence, "You

can forget the one on the left", and she, in fact,

then made the identification of the applicant, who

was the other photograph that she was tossing up.

That was a matter that was considered on the

voir dire. His Honour accepted the evidence of

Mrs LeRaye that that had occurred; Detective Mcfarlane, as one would expect, denied that he had improperly

prompted her, and His Honour believed Mrs LeRaye

and rejected the evidence of Mr Mcfarlane.

His Honour's ruling on that matter is at pages 54

and 55 of book one.

(Continued on page 40)

C2T29/2/FK	39	5/12/89
St Clair

MR MARTIN (continuing):  The police officer was then, in due

course, cross-examined about that episode. Obviously

counsel wish to bring out in evidence conflict between

Mrs LeRaye and Mr Mcfarlane because Detective Mcfarlane',

evidence about the interview was hotly challenged.

It was said that he had improper motives, had

verballed - verballed is the common expression that is

used, but that was what was talked about, he had made

up the c on f e s s i on, and the re fore i f the de fen c e c o u 1 d

establish that he was in conflict with Mrs LeRaye

and had behaved improperly that was an important issue.

His Honour took the view that defence by

cross-examining along that line opened up the fact

that Mrs LeRaye had identified the applicant in the

photo. In our submission, two matters: one is the

cross-examination did not open up the fact of

identification by Mrs LeRaye. Cross-examination was

aimed purely at the improper behaviour of the police

officer. Whether or not Mrs LeRaye then went on and

identified the photograph was quite irrelevant to the

issue that was being cross-examined upon. The second

matter is this, that, in our submission, that

identification evidence was tainted. It had been tainted

by the conduct of the police officer, the mind of the

witness had been tainted and the evidence should not

have been permitted for that reason alone.

Now, in our submission, the references are set

out in paragraph 4 where His Honour allowed it. The

Court of Criminal Appeal, Justice Bollen, at pages 364 and 365 simply said, "His Honour was right". Well,

with respect, in our submission, His Honour was wrong

and the Court of Criminal Appeal is in error in the view

that it took of the matter and failed to come to grips

with the proper principles of re-examination and also
the issue of the admissibility of tainted identification

evidence.

If the Court pleases, I move to paragraph 5.

This concerned a conglomeration, if you like, of

material that we have referred to briefly in the outline

and if the Court pleases, the opening was to the effect

that there were two attacks involving sexual assaults,

according to the opening. There may have been others,

said the Crown prosecutor, in the passages we

referred to. So right from the very beginning - and

defence stood up and said, "What is the position?",

and the Crown said, "Well, we don't know" - so right

from the beginning there was this aura of other

sexual assaults. Then we had the evidence of

Dr Moody who said that she was the head of the sexual

assault referral centre and had conducted a genital

examination of Mrs Lines. So again, this was not one

that was charged and, again, there was this aura of

sexual assaults that had not been charged.

C2T30/l/HS	40	5/12/89
St Clair

Mr Millsteed, in his closing address at those passages read from part of Mrs Lines statement that

had been edited 1 had not been placed before the jury,

in which she said the offender got on top of her.

That is pages 113 and 144, book one. This was against

the background of the way the case had been introduced.

At line 33 on page 113 - Mr Millsteed here was dealing
with the question of the record of interview and

fabrications, and so on:

why did they not record in that record
of interview that the accused had tried
to have sexual intercourse with Mrs Lines

because she said in her statement that

at one stage the offender got into the

position, to use her words, that people

are usually in when they have sex.	'He was
on top of me at some stage.	I think he tried

to put his penis in my fanny, but I don't

think he could do that.'	That was
Mrs Lines' allegation.

Now, that, in fact, that whole passage that

Mr Millsteed has referred to, had been excluded from

the jury's consideration. When the statement was read

to the jury that passage was not read to them because

it was considered to be unfair and prejudicial.

(Continued on page 42)

C2T30/2/HS	41	5/12/89
St Clair

MR MARTIN (continuing): That having been read to the jury,

His Honour told the jury, at page 187, to ignore -

I am sorry, at pages 125 and 126, I think His Honour

told the jury at the time - I will just check that.

Yes, told the jury to ignore the complaint - the bottom

of page 125 - top of page 126 - and in his summing up

he repeated the warning to the jury at page 187, line 25.

Now, our short point is this: that they were

allegations of a sexual nature. This Court has recognizec
in SUTTON's case and other cases that allegations of a

sexual nature carry with them a particular prejudice

and we would say more so when they are allegations of

sexual assaults on elderly women, and the learned

trial judge and the Court of Criminal Appeal have

failed to recognize that principle in their dealing
with the matter and, in our submission, those references
were sufficient in themselves to cause a miscarriage of

justice because they were so highly prejudicial.

I move then to paragraph 6 and the failure to

give the direction in respect of the reliance upon the

record of interview. In our submission, in this case,

there were a number of factors that called for a warning,

and the Court will appreciate in CARR V REG, particularly

in the judgment of Your Honour Justice Brennan, it was a

question of looking for factors in the case which might
give rise for concern about the reliability of the record

of interview. If those factors exist, in our submission,

then even if there is some corroboration, but more

particularly when there is no corroboration, CARR's

case requires that the jury be warned about the dangers.

The factors that we rely upon are effectively referred

to by His Honour at pages 151 to 157 of his summing up.

That is in book one. Those factors are, in the first

place, the improper prompting of Mrs LeRaye by

Detective McFarlane. His Honour refers to that at

page 151.

While His Honour says that you should have regard prepared to stoop to improper practices, His Honour	to that, whether it indicates that Mr McFarlane was
also fails at that point to say, "Well, it might just cause you to scrutinize the rest of Mr McFarlane's evidence with special care if you find that he has
lied about this particular matter." And, of course,
at line 10 on page 151 His Honour said that if they accept the evidence of Mrs LeRaye on the point in preference to McFarlane, with respect, His Honour
really should have said, "If it was a reasonable
possibility then the defence had made their case."
His Honour then refers to the fact that:

The police officers readily conceded

that they had discussed much of their proposed

evidence with each other.

Point 2. Page 152, the third matter, line 10, His Honour

refers to discrepancies between police witnesses.	Now,
that is the third factor that we point to.

C2T31/l/PLC	42	5/12/89
St Clair

His Honour then, in the context of dealing with

various significant matters, refers to,

if you like, the counter side of the argument, the

matters which were adverse to the applicant which do

not reflect on this issue of whether the warning should

have been given.

The fourth matter that should give rise to the

warning is at the bottom of page 153. This concerned

the finding of some keys, and this is an important matter,

if the Court pleases: the question of:

whether Detective Brennan did locate the back

door keys to Mrs Crawford's house under the

tank stand as a result of Detective Lockwood

ascertaining during the course of the interview -

that is from the accused where the keys were.

Regrettably, the evidence on the point has been
complicated because the written record of
interview did not contain the accused's

alleged statement to Detective Lockwood as

he was leaving the room -

that is, as Lockwood was leaving the room.

The allegation ..... is only of recent origin.

(Continued on page 44)

C2T31/2/PLC	43	5/12/89
St Clair

MR MARTIN:  If the Court pleases, to exolain that

is this: the poiice say - thev said in evidence

that they were told by the applicant that he

had thrown the keys in a gap between some

bricks, at page 271. That was said in evidence

but this was supposedly during the course of

a formal typed record of interview. It did not

appear in the typed record of interview, in

that passage. The police did not mention it

in the lower court; it did not appear in their

statements. The first time the police mentioned

this supposed admission was in proofing with

the Crown prosecutor shortly before the trial. So the allegation not only was not recorded in the formal interview where the police officer

was there typing, but it did not come up, it

did not surface, until just before the trial.

So those circumstances must have given rise to

great concern about the reliability. So that

is another factor that gives rise to concern

about the reliability of this confession, factor

number four.

The fifth matter was the question of how

the story hangs together, page 154 ooint 6.

His Honour refers there to:

A glaring example of inconsistency -

what the accused said about the stocking did not

really add up with what was found at the scene

in terms of the nature of the stocking. We would

point out to the Court, just as a general observation,

this whole confession was very vague. There were

a number of errors, if one took the objective facts

and compared the record of interview. Of course,

one interpretation was that the accused was a vague

person. The other was that the police had

inadequate information and were making up a vague

confession accordingly. Factor number six, page 156, was that previously,

and it was only s:i.ortly before, I think

the interview was 10 October and on 28 September

the accused had been questioned by another

police officer on other matters and had refused

to answer, and Detective Sheridan was in the

same team that was involved in investigating

these attacks under consideration. That was

the sixth factor, he previously, or shortly

before, exercised his right. The seventh matter

that we say gives rise to cause for concern

is the issue at page 157, line 21, the fact

that the police were "under .... pressure to solve"
the crime and it was acknowledged during the
course of evidence that they knew that the

applicant was a criminal and that they believed

that he was the offender. So that was the state

of mind of the police when they came to interview

him. In our submission, those factors in

MP MA l")O'T'T-..T ,...,..

C2T32/l/JM Li. Li.

combination required the CARR warning. While

His Honour mentioned each of the factors he did

not do so in the context of a warning about the
dangers of acting upon the confessional material.

If the Court pleases -

BRENNAN J:  What was the warning that was sought at the

trial?

MR MARTIN:  Your Honour, that was sought at page 160.

In the break, during the middle of the

summing up where His Honour had just referred

to all these factors, Mrs Shaw referred to

WHITEHORN's case and CARR and sought the

direction.

(Continued on page 46)

C2T32/2/JM	45	5/12/89
St Clair

MR MARTIN (continuing):  The nearest His Honour got to a

warning - and it is page 193, line 9 - His Honour

says that they:

should exercise care in relying upon any

admissions which you might find to be in

the record of interview in respect of

attacks upon victims who have not given
evidence where there is no other evidence

which you accept which would implicate the

accused in the attacks in question.

That is not the type of warning that, in our submission,

was required and the mere reference to the factors was
not sufficient; it was not put in the context of "these

are factors that might give you cause for concern; I ~ive

you a warning in accordance with CARR's case".

GAUDRON J:  There is no warning in accordance with CARR's case;

at least, CARR's case makes that quite specific.	There
is no magic formula; it is a question of what is

adequate to draw the jury's attention to the problem

in the circumstances.

MR MARTIN:  I acknowledge that, Your Honour.' I ohrased that

?Oorly.

GAUDRON J:  And you have to establish if you wish to rely on

this point, I should have thought, that there is

some inadequacy in circumstances where every
conceivable feature which might detract from the
reliability of the record of interview was brought
to the jury's attention, and a warning was, in fact,

given that there was a danger in relying on admissions

where there is no other evidence.

MR MARTIN:  Your Honour, I can do no more than say this, that

the factors I have referred to were sufficient to give

cause for concern about the reliability and are the

type of factors that were acknowledged in CARR's case

as would generally give rise to the need for a warning.

GAUDRON J: But then, the point I am putting to you is, the

drawing to the attention of the jury of those factors

may itself be the equivalent of a warning.

MR MARTIN:  In our submission, it was not so in this case.

What was required in the circumstances of the case

was a warning that, "Because of those factors, you

should exercise care. It may give you cause for
concern about the reliability"; not s~lyto refer

to, if you like, the factors or arguments one for

each other. I just say, in the circumstances, it

was insufficient in this case. If the Court pleases,

the particular passages of the way the Court of Criminal Appeal dealt with the matter are cited

C2T33/l /SH	46	5/12/89
St Clair

at 6.3 of our outline and, in our submission, the

Court was wrong when it said that there was no

occasion for any special warning. If che Court

pleases.

MASON CJ: Yes, Mr Solicitor.

MR DOYLE: If the Court pleases, I hand up the outline of

submissions.

MASON CJ:  Mr Solicitor, what we want to hear from you on

is point 2 in the applicant's submissions. That
is the directions given by the trial judge with

respect to the similar fact evidence.

MR DOYLE:	And only that, Your Honour?
MASON CJ:	Yes.
HR DOYLE:	I think Your Honours will find a cryptic submission

at paragraph 11 of my outline, which is all I have

deigned to say there in a not very informative fashion.

(Continued on page 48)

C2T33/2/FK	47	5/12/89
St Clair

MASON CJ: Well it certainly in confidence submission, butit is not

particularly informative.

MR DOYLE: _·!es, Your Son.our. Well, we are vecy UlSUbtle i...7. 3outh Australia

~~ Honour, we just crash thr~ or crash. ~our Fonours, · pe~p~

ir I could go to the st.lIILlling up because my submission i~

that in the end the judge really did put it very

clearly to the jury how they should approach the

matter and .if I could start at page 183 or thereabouts.

Your Honours, this is in the context where, in
my submission, the issue for the jury is relatively

clear and one that they should not have too much

difficulty understanding, namely - and I will not

put it in very precise terminology, but, the

similarity is such that they are satisfied that one attacker is responsible for all offences. And then

the other issue for them is are they prepared,

looking at the offences in isolation, or are they

satisfied beyond reasonable doubt, looking at the

offences in isolation,that he committed one or some

of them. And the process of reasoning, in our

respectful submission is~hat if_t~ey are_sat.isfied

beyond reasonable doubt that he committed one or

some, and if they are also satisfied beyond reasonable

doubt that the one offender committed all offences

then, satisfaction on one particular offence enables

you, as it were, to mesh the two together and conclude

that he committed all.

So it was not a complex concept that the judge

was putting to the jury, although clearly one that

required some care. As I understand it, Your Honours,

the complaints really were that he perhaps did not

direct them to the requisite degree as to their

satisfaction that one offender committed all offences

and then, secondly he left it open to them, it is

suggested, to say, "Well, we are not actually satisfied

beyond reasonable doubt of any one, but the judge has

not told us that we cannot, having decided one person

did them all, move from there to guilt." They were
the two complaints, as I understand it.	Your Honours,

His Honour first of all had started with a very clear

and simple direction on proof beyond reasonable doubt.

That appears earlier in the piece in the sunrrning up.

At the bottom of page 129, where he says about line 28:

It is not enough if the evidence has convinced

you that the accused is probably guilty.	You
will not bring down any verdict of guilty

against him in respect of any particular
offence unless you are satisfied beyond

reasonable doubt that he is guilty of that offence.

C2T34/l/CM	48	MR DOYLE, QC	5/12/39
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MR DOYLE (continuing): Then, over the page at 130, about

line 15:

If I should say to you during the course

of my summing up that any particular point

must be proved to you, or that you must be

satisfied about some matter, then you will
understand that the point is to be proved

to you beyond reasonable doubt, or that you are to be satisfied upon that matter beyond reasonable doubt.

Now, going back then perhaps to page 181,

as he says to the jury at the bottom of that
page:

So far -

he has been looking at the offences individually,

and he says:

I now need to tell you about the use you may make of the evidence in respect of any one

attack -

and a very clear warning about propensity. Then,

at about line 17 and, of course, it depends just

a little bit how it was spoken and how the emphasis

was put but:

It is only permissible to use any conclusion

which you reach that he is guilty of one or
more of the attacks on the victims to lead
you to be satisfied that he is guilty of

attacks on any of the other victims if -

et cetera. So, he really introduces it by saying

"It is only permissible to use any conclusion which

you reach" so the framework of it is, "If you

have reached a conclusion of guilt of one or more

of the attacks then there is something more you can

do" and so, in my submission, the framework or the

lead-in is very clearly in the terms that if you

have been satisfied beyond reasonable doubt of

guilt of one or more of the offences looked at in

isolation then something else arises for your

consideration. So, I submit that that introductory or context point is inconsistent with the complaint that he has left it open to the jury to use the

similar fact evidence even if not satisfied on any
one count.

Then he says, "All right, well then you can use the evidence:

if there is such a substantial, strong or marked

similarity ..... as to make it improbable.

C2T35/l/DR	49	5/12/89
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MR DOYLE:  Now, I agree, with respect, that that can be

criticized but we have to look at it in context and

if I could just jump from there for the moment, although

I want to come back to that page, to the passage where

he left this topic of similar fact evidence at page 188.

This is really his conclusions on this starting at

line 8:

In considering this similar act evidence

you should bear in mind all that counsel

have said about it. You must look closely

at the dissimilarities as well as the

similarities. You need only resort to the

similar fact evidence in relation to any

count on which you are not otherwise

satisfied of the accused's guilt. If you

are satisfied that the similarities are

so striking ..... you may convict on that

count if you are satisfied beyond reasonable

doubt that he is guilty of that count.

So the reference to improbability, in my respectful submission, has to be balanced by that warning that even as you are going through the similar fact process

of reason you still have to be satisfied beyond

reasonable doubt that he is guilty of that count and, in my respectful submission, that very much

counteracts any suggestion that the judge left the
jury with the idea that in deciding the one offender

issue mere improbability was enough, something less

than satisfaction beyond reasonable doubt.

Now, I do not suggest for a moment that it might

not have been better, with the benefit of hindsight,

if he had said to them quite specifically on this

issue of whether it is one offender, or not, "Are

you satisfied that there is no other reasonable
hypothesis than that there was one offender?", but,

in my submission, bearing in mind the way he has put

it to them, the stress on the substantial, the strong

and the marked similarity and then balancing those

leaving words, if I can call them that, against the

use of "improbable" there, no real complaint can be

made about "improbable".

If we could go on, back to page 182, then when he says at the very bottom of the page:

it would be dangerous for you to rely

on such similar fact evidence to convict

the accused of any offence -

1n my respectful submission,the matter is correctly put,

as one of Your Honours put it, that really here the

stress is now not so much "Here is a mere suggestion"

but rather, "Don't embark on this process of reasoning

unless you are satisfied as to more than one of the

individual offences".

C2T36/l/HS	so	5/12/89
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MR DOYLE (continuing):  We have to bear in mind that

only about 10 lines before he said:

It is only permissible to use any

conclusion -

of guilt of one offence -

if -

So he has introduced it by saying, "Here's what you can do in the area of similar fact

evidence if you're satisfied of guilt on one

or more of the attacks", and then he just

reinforces it, in my submission, by saying,
really, "And I suggest that what you really

ought to be looking for is to be satisfied

of.at least several of these", and he is

rather dangerous to say, "I'm satisfied of guilt	really just saying to them it would be
of one looked at isolation and therefore I'll
apply this similar fact process of reasoning."
I would respectfully submit that the way in
which my friend approached the matter very
much detracted from what seems to have been course and don't move from guilt on one offence
to the similar fact process. Be satisifed
of guilt of several".

TOOHEY J:  Mr Solicitor, how do you fit into that

submission the passage on page 183 that begins

about line 9, which really is the farewell

message, as it were, to the jury in relation

to this aspect of the matter?

MR DOYLE:	I understand His Honour - - -
TOOHEY J:	There is sort of a sense of circularity

about that, is there not?

MR DOYLE:  Yes. I understand His Honour to be saying

that if they are satisfied he is guilty of

several, and if they are satisfied that the

one offender committed all, they can then

measure it together. But what he is saying

to them is that in the process of meshing

you can look at the similar act evidence

in the context of the totality. So at that

stage matters such as where the accused lived

could come into play because the jury could

say, "Well, the fact that he lived where he

did is confirmatory evidence, even though we

are satisfied that it was the one offender

who committed all, we also draw some

confirmation, or some added comfort,when we

lool<-. at the thing in the overall context, from

C2T37/l/JM

51   5/12/89

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the fact that the accused lived where he did'',

because, I agree, on the issue of admissibility

you certainly would not use the place where

the accused lived because that assumes he

is implicated in the offence.

(Continued on page 53)

C2T37/2/JM	52	5/12/89
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MR DOYLE (continuing):  But on the other hand, in my respectful

weighing it all up, they can look at the evidence	submission, at the end of the day when the jury is
in that wider context and, while agai~ with respect
to His Honour -and it may be a counsel of perfection -
it might have been a good thing to say to them, in
effect, by way of a reminder, "But do not lose sight
of the fact that you have got to be satisfied
that it is one offender, be satisfied of that beyond reasonable doubt, and all I am telling you that yo_u=~ay do here is you may get some confirmatory
comfort", in my respectful submission, that seems
to be what he was really doing - - -

McHUGH J:  But does not the last sentence get some emphasis,

Mr Solicitor, from the previous sentence, where His Honour does not say, "In this event you must not convict him

of the offences unless", he says:

In this event you should still noc

convict him -

and then he goes on to say:

Of course you are at liberty to consider

the similar act evidence.

MR DOYLE:  Yes. Your Honour, again,I accept that. Technically

it should be, "In this event"~· it is line 4 -"you

must not convict him unless you are satisfied about

the striking similarity", but -

BRENNAN J: Well,that depends very much on what His Honour was

saying to them there, does it not?

MR DOYLE:  Yes.

BRENNAN J: For my part, I do not have slightest difficulty

with this passage for this reason: it seems to me that

it is introduced by a direction of His Honour of what
it is permissible to use a conclusion for.	He is

saying, the first thing is, can you look at this

evidence at all? He tells than you can look at it i£ it is

so cogent, i£ it is so markedly s:inilar that it is improbable that

they were dealt with in different pieces. And that

is in relation to any of the other victims. The

next sentence goes on to dealing with cases where

there are several, as distinct from any , where he_ says
"I suggest you should not act on it even though you

can on one, unless you find several". Then he goes

on again and says, "Even in that event you should

still not convict", and then, correctly, he says,

"You look at the totality". Now that is all dealing with

the evidence which is open to them for consideration.

His direction about the proof is to be found at page 188.

C2T38/l/FK	53	5/12/89
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BRENNAN J:  Well, as a matter of what they can consider,

is there any error in any of that?

MR DOYLE:  Not, Your Honour, in that context of material

which is available to them for consideration and, with

respect, I am happy to adopt the point Your Honour

puts to me and it is really the point I was about to

make, that when one goes back to page 182 line 17

that the framework within which he introduces this to

the jury, in my submission, is clearly correct and we

have to bear in mind that the jury are listening to

this,not reading it later and, in my submission, in

that context he introduces it clearly and well and in

a way that would not have left them thinking that they

were permitted to follow an impermissible process.

And so, I really rely basically on the introductory

message at page 182 line 18 and the concluding passage

that I pointed to a moment ago at page 188.

Your Honours, it may be of some significance

that no redirection was soup-,ht on this. We are dealing

with an aspect of the matter where the manner in which

it was communicated to the jury is important and defence

counsel at the trial did not seek any redirection on

this aspect of the matter at the time. Yes, I am

indebted to Mr Millsteed; he reminds me that there was

yet another concluding message at page 193 starting

at line 16:

Although, for convenience sake

et cetera. Then, at line 20:

The issue for your decision is not whether the version of events put forward by the

Crown that the accused is correct. The

question for your determination on each
count is has the Crown proved that the

accused is guilty of the offence charged

beyond reasonable doubt.

And so, a very clear reminder yet again.

(Continued on page 55)

C2T39/l/JH	5/12/89
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MR DOYLE (continuing):  So I do submit Your Honours,

because they are realiy the only additional portion

of the summing up that I can usefully refer to, that

in the end beyond reasonable doubt was reinforced very

clearly at the very beginning of the summing up, at

the very conclusion, and also in the middle the only

criticism being that use of the word "improbable" and

that on the other issue, namely, were they left thinking
that even if they were not satisfied examining the

evidence individually of guilt on a particular count

that they could, nevertheless, reason from the thesis

one offender to guilt, in my respectful submission, is

introduction to the topic at page 182 line 18 and his

concluding message on the tooic at page 188 make that

quite clear too.

Your Honours, on that particular point, they are

the only submissions I wish to put. I am not implying

there are other points that I am anxious to talk to

Your Honours about. If the Court pleases.

MASON CJ:	Thank you, Mr Solicitor. Yes, Mr Martin?
MR MARTIN:	Nothing in reply, Your Honour.
MASON CJ:	The Court will adjourn until 2.15 pm.

T40	AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
MASON CJ:  What I am about to say represents the view of the

majority of the Court. ·we are not persuaded that the

actual dee:i:-sion of the Court of Criminal Appeal reflected

any error of principle or that there has been any

miscarriage of justice arising from the grounds argued

on behalf-of the applicant. The application for special

leave to appeal is therefore refused.

AT 2.18 PM··THE MATTER WAS ADJOURNED SINE DIE

C2T41 /1/CM	55	5/12/89
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