Standley v The Queen

[1990] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A41 of 1988

B e t w e e n -

JOHN FRANCIS STANDLEY

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J
TOOHEY J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY 22 AUGUST 1990, AT 12.47 AM

Copyright in the High Court of Australia

Standley 1 22/8/90

MR G. WENDLER:  If the Court pleases, I appear with my

learned friend, MR s. MacFARLANE, for the

applicant. (instructed by Fardone & Co)

MS A.M. VANSTONE:  May it please the Court, I appear for the

respondent. (instructed by the Crown Solicitor for

the State of South Australia)

BRENNAN J: Yes, Mr Wendler.

MR WENDLER:	If the Court pleases. I understand a short outline has been produced to Your Honours. This is
an application for an extension of time in which to
seek special leave to appeal against conviction.
It is also an application for special leave to appeal against sentence. The practice of this
Court in matters which suffer from a time problem has been to allow counsel for the applicant to
develop the merits of the application before
finally ruling on the time problem.

That is what this Court did in Van Der Meer v

Reg which was a matter which was almost two and a

half years out of time. There the Court allowed

counsel for the applicant to develop the

application for special leave to appeal and it was

only at the end of that particular matter that the

time problem was confronted. In the end it was not

confronted because, of course, in Van Der Meer the

special leave components were not satisfied.

If the Court pleases, that is the approach,

subject to anything that Your Honours may say, that leave o~ extension of time in which to seek special

leave to appeal.

BRENNAN J:  How far out of time are you for the special

leave in relation to - - -

MR WENDLER: Approximately 11 months, Your Honour.

BRENNAN J:	And in relation to the sentence?
MR WENDLER:	For the sentence it is not out of time, if the

Court pleases.

BRENNAN J: Not out of time, yes. Ms Vanstone, what is your

attitude to the question of extension of time?

MS VANSTONE:  I oppose the grant of an extension of time, if

the Court pleases.

BRENNAN J:  You can proceed to present your argument, Mr

Wendler, and we will reserve the question of time and we will hear from Ms Vanstone, in due course,

what she has to say in opposition to the extension

Standley 2 22/8/90

of time. But you should, in the course of your

argument, present whatever arguments you wish in

favour of the application for an extension of time.

MR WENDLER:  If the Court pleases. The special leave

components, or the section 35A components are,

broadly, in two areas: first, they concern the
adequacy of the directions in relation to two very

important Crown witnesses in the case against the

applicant; second, they concern an evidence ruling

which, in my respectful submission, had a

devastatingly prejudicial effect on the overall

trial or case that was presented against the

applicant.

In relation to the directions that were

delivered by the trial judge this application

necessarily attracts a consideration by this high

authority of whether it is correct and useful in

law to maintain a category system of witnesses that

necessarily attract a special instruction from a

trial judge in relation to their testimony.

The common law position today is that unless a

witness comes within a particular category, no

obligation attaches to a trial judge to give a

special instruction. That, to a certain extent, in

this country, has been modified, firstly, by

statute in relation to sexual offences in

particular or complainants in sexual offences and

also in relation to witnesses who, by their very

nature, their testimony may well be suspect.

The invitation to this Court is twofold:

first, to expunge or eliminate from legal language

the word "corroboration"; second, to eliminate

completely the necessity to have categories at all.

This, it seems, is the direction in which this

Court is heading, certainly in relation to suspect

evidence, as I understand the judgments of this

Court in Carr v Reg.

In my respectful submission, that is the

specialness that arises in this particular

application: the invitation to this Court to

consider the correctness in law of maintaining a

category system of witnesses. In the special

circumstances of this case, the two witnesses, who

in many ways were the foundation of the Crown case,

attracted an inadequate direction in relation to

the nature of their testimony.

In order for the applicant to develop this

particular submission, I am going to invite to the two witnesses that I have just mentioned.

Before I do that, it is important that I describe

Standley 22/8/90

the position these two witnesses had in the trial

and my submission will be that it was necessary, in

the circumstances of this case, for a special

instruction to be given in relation to their

testimony.

Can I invite Your Honours then to application

book No II, at page 56, which contains the summing

up in its entirety. On page 56, between points 1

and 5, is the direction by the learned trial judge

concerning how the jury should treat the evidence

of the witness Murtagh.

I am going to read out a part of it, if the

Court pleases. What His Honour says is this:

You might think though it was a little vague

and those matters you should take into account

in considering what you make of Murtagh's

evidence. Remember Murtagh was given immunity

from prosecution in respect of a charge for

being involved with Indian Hemp providing he

gave evidence in this court, not provided what

he gave evidence about, but providing he gave

evidence. That is a matter you might want to
take into account in considering Murtagh's

evidence.

And that is, really, all the learned trial judge

says about this witness.

Mr Murtagh's position in the trial was this:

he had spent a period of custody in a Tasmanian

gaol after pleading guilty to some involvement in

cultivating Indian hemp.	He was released on
parole.	He returned to the State of South

Australia and was employed on a part-time basis by

the applicant. His evidence was important because

his testimony concerned an occasion where he went

to the State of Victoria, allegedly met a person by

the name of Moon who showed him a motor car. The

reason that Murtagh went to Victoria was to drive

this car back, it was alleged, for the applicant. Murtagh's evidence went that when he arrived

in the State of Victoria he saw this motor car but

did not drive the car back because he considered
that he was taking the car in suspicious
circumstances. The evidence then went that he
returned to the State of South Australia and

confronted the applicant about being compromised by

the applicant for being put in this position when

he, himself, was on parole. In other words Murtagh thought that he was being set up in some way by the

applicant.

Standley 4 22/8/90

The applicant gave sworn evidence and denied

that that confrontation ever took place between

Murtagh and himself; he denied it. Murtagh was

offered or, rather, received an immunity from
prosecution in relation to a separate Indian hemp

offence not connected to the one that he spent time

. in gaol for. He was clearly a witness who had an

interest in assisting the prosecution with his

testimony.

In my respectful submission, he was a witness

which, in the circumstances of this case, should

have attracted some caution from the learned trial

judge. Put simply, that direction is inadequate in

its terms. It carries no caution, it carries no

explanation as to why his evidence should be

treated in a special way.

BRENNAN J:  Was there any application for redirection?

MR WENDLER:  I am glad Your Honour has asked me that. No,

there was not and there was no application, either, in relation to the witness Sunman who was even more

important than Murtagh. But that is not fatal. In

Carr v Reg, as I read it, no application was made

by counsel for Carr for a special direction in

relation to the circumstances that surrounded the

obtaining of that unsigned confession.

If the Court pleases, it is important that I

confront this and can I invite Your Honours to the

booklet where the authorities are reproduced? Do

Your Honours have that? Carr v Reg is the fourth

case which is reproduced. The Commonwealth Law

Report is reproduced as the fourth case in the

booklet at page 323 of Carr v Reg.

BRENNAN J: Perhaps we could consider this further at 2.15,

Mr Wendler. The Court will adjourn now until 2.15.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

BRENNAN J: Yes, Mr Wendler.

MR WENDLER: If the Court pleases. Just prior to the

luncheon adjournment Your Honour Justice Brennan

Standley 22/8/90

asked me the question whether any special

instruction was requested by counsel for the

applicant at trial and my answer was, "No, there

was not". I then proceeded to invite Your Honours

to Carr v Reg where it is clear or at least an inference can be drawn from that judgment that

counsel there asked for no special instruction from

the trial judge in relation to the circumstances of
the obtaining of the record of interview.

That was not held to be fatal in Carr v Reg because this Court ordered a retrial on the basis

that no special instruction had been given in

relation to the circumstances of that record of

interview. So, if the Court pleases, could I

invite Your Honours to Carr v Reg which is the

fourth case reproduced in the booklet of cases,

165 CLR, at page 323, point 3, in the joint

judgments of Justices Wilson and Dawson, there is a

statement which reads:

At the conclusion of the summing up Mr Kable

was asked whether he had any submissions but

there was no request for any redirection.

And, certainly, this Court did not consider that to

be an impediment for holding, eventually, that the

verdict was unsafe and unsatisfactory in the

circumstances of that matter.

If the Court pleases, I want to return again

to the nature of the case that was presented

against the applicant in the district criminal

court. The applicant was arraigned on 74 charges

of receiving. Broadly, the case against him was

that he was involved in a racket - to use a

convenient expression - whereby cars were being

stolen in the State of Victoria, driven to South

Australia and on each occasion the applicant

received a motor vehicle knowing at the time he

received the motor vehicle that it was stolen; that

he was aware of its status each time he received 74

different motor cars.

The applicant, who gave sworn evidence, admitted that there were irregularities in relation

to the registration of the vehicles but he admitted
to the jury that this was done on the directions of

his supplier interstate and also done to avoid

stamp duty on registration. He admitted that in

sworn evidence. His case was that he had been

duped, that his suppliers interstate had informed

him that they had a special arrangement with the

manufacturers that they could obtain these cars at

a special price and deliver them to him so he could

then sell them. He was always under the impression

that his suppliers had some underhand - not

Standley 6 22/8/90

necessarily underhand in the sense that it was

illegal but a special back-door arrangement with
the manufacturers. That was in broad terms his
defence but at no stage when he received any of the

motor vehicles had he known of their true status.

I began to describe the position of a very

important witness, Mr Murtagh, in the case. It is important that I now, if the Court pleases, invite

Your Honours to the nature of the evidence that he gave and in due course I will connect that up to

the nature of the direction concerning his

testimony.

Can I begin by inviting Your Honours to the

first application book, application book I, which

contains the evidence taken from Mr Murtagh in its

entirety at the trial. On page 20 of that book, if

the Court pleases, there is a short introduction in

the examination in-chief as to his relationship

with the applicant. On page 21 - it is an

important page - is evidence concerning his plea of

guilty in a Tasmanian court in relation to his

involvement in the cultivation of an Indian hemp

crop and there is a description there where he

received a period of imprisonment, he was

eventually released on parole, came to the State of

South Australia and then was employed on a casual

basis by the applicant.

At page 34, point 2, if the Court pleases, is

his significant answer concerning what allegedly

occurred when he was instructed by the applicant to

go to the State of Victoria and pick up a motor

vehicle.· Mr Murtagh said that he came back without

the car and confronted the applicant; he had been

embarrassed in the circumstances he found himself

in in Victoria. The applicant gave evidence

denying that that confrontation ever took place in

the way described by Mr Murtagh.

The answer is important and I will read it, if

the Court pleases. He suggests that:

I was on parole and what the hell was he

sending me over there for to pick up a car

when everything wasn't right and I said I

would look good if I got caught with a bum car

and me on parole and they wouldn't believe my

story, something like that.

That piece of evidence, of course, was relevant in

the sense that it went at least to the mens rea of

the offence so far as the applicant was concerned.

That is further developed at page 43 - if I could

invite Your Honours to that page - it was in the

Standley 22/8/90

cross-examination of Mr Murtagh, at point 8.	The
question is put:

On 5 February this year -

That date is significant because the trial of the

applicant was proceeding at the time the police

approached him in relation to a discussion about

another Indian hemp crop and it is put to him -

On 5 February this year you were arrested by

Det Stalker on a charge of taking part in the

production of a prohibited substance, was that

so.

And he agrees with that and it is further developed

that this cultivation was not in the order of a

couple of plants but a significant enterprise.	On
page 44, at point 3, the question was:

The allegation against you was that you had

taken part in the production of a prohibited

substance, namely, a cannabis crop.

And then it is put:

You were told, were you not, that if you gave

evidence for the Crown in this matter that

that charge would be withdrawn.

That's right.

So here was a witness who was involved in a

significant trial involving dishonesty who himself

had a criminal conviction who was confronted by the

police during the course of the trial against the
applicant with another allegation of being involved

in the taking part of growing cannabis and his

testimony was being relied upon in relation to the

circumstances of the reception of motor vehicles or

at least one motor vehicle from interstate. So

here was an important witness and he clearly had

some interest in the outcome, certainly of his

testimony.

So, in my respectful submission, his position in the trial warranted a special instruction to the

jury. He was not a witness that came within any of

the accepted categories and therefore no obligation

attached to the trial judge to give an accomplice-

style warning. And right from the outset of this

application I have indicated to Your Honours that

my invitation is that this category system be

removed or, indeed, abolished. It serves no useful

purpose, in my respectful submission, in logic or

in law.

Standley 22/8/90

BRENNAN J: What do you say was the duty of the trial judge?

MR WENDLER:  In the particular circumstances of this case,

in order to answer Your Honour completely, can I

just come back to page 56 of the summing up and I

will add on what, in my respectful submission,

should have been said in addition to what was said

by His Honour the learned trial judge. In

book No II, page 56, there is that very short

description of the nature of Mr Murtagh's evidence

and his position in the trial and all it says is

that:

Murtagh was given -

this -

immunity from prosecution -

and then His Honour says -

That is a matter you might want to take into account in considering Murtagh's evidence.

It is not explained why they should take that into account nor is there a powerful caution in these terms, "Be careful of Mr Murtagh's evidence; be

careful, it is not supported by independent

confirmation in any way" - and Your Honours will

note that I am not going to use the word

"corroboration" throughout my submissions as part

of this application as an invitation to

Your Honours to consider the value of that word in

the law of evidence - and, in that sense, that

direction is inadequate. The jury could not, in my

respectful submission, usefully handle in an

informative fashion the position of this person in

the trial.

That is the complaint the applicant makes in

relation to that direction. It is the complaint

that the applicant makes because the Full Court of

the Supreme Court of South Australia sitting as a

Court of Criminal Appeal has embraced, in its judgment, that direction as being adequate in the circumstances of the case. In my respectful submission, I invite Your Honours to hold that it

is not.

BRENNAN J:	Now, do you contend that the warning should have been given as a matter of law or was it a matter of
practice?
MR WENDLER:	In my respectful submission, in this case, as a

matter of good practice.

Standley 22/8/90

BRENNAN J: And what is it that gives rise to the practice

in this case?

MR WENDLER:  The special circumstances of this witness, that

he was a witness giving evidence, carrying an

immunity against prosecution and having been

confronted with this quid pro quo arrangement at

the time the trial was proceeding against the

applicant.

BRENNAN J: Is there any general principle which enlightens

the trial judge as to whether the case is one in

which a warning of the kind for which you contend

should be given?

MR WENDLER:	No, there is not, Your Honour, it is a matter of fact and degree and that is my submission.	I am
not attempting to pigeon-hole myself into any

category.	The obligation arises only from the
circumstances of this case.	I am making no

submission that we create a special category and

call it "witnesses who have been offered immunity"

which attract a special instruction. I am not

trying to create a category; in fact I am trying to

eliminate them. I am focusing upon the reasons

behind the categories, if you like.

BRENNAN J: And what are those reasons which are behind the

categories?

MR WENDLER:  That witnesses who have been given an

advantage, that is, non-prosecution in return for

evidence, are suspect - could be suspect

witnesses - because they have an interest of their

own to serve. That is the position in relation to

the witness Murtagh. It becomes more important in

relation to the witness Sunman. It is important

that I say a little bit about his position in the

trial because it was an important one.

In my respectful submi~sion, the witness

Sunman was the foundation of the Crown case.

Sunman was a partner of the applicant during the

relevant period that the applicant was in business

as a dealer in second-hand motor vehicles. He had

an intimate knowledge of the running of the
business; he had a day-to-day appreciation of the
nature of the business; he had been charged himself
with 40 counts of receiving but those charges were

discontinued before he gave evidence at the trial.

They were, in fact, discontinued at the committal

stage. He was, in many ways, the linchpin of the

Crown case.

Can I invite Your Honours then to the way the learned trial judge treated his evidence, at

page 60, point 5, of the summing up. The second

Standley 10 22/8/90

paragraph is the entirety, really, of the learned

witness Sunman. His Honour the learned trial judge	trial judge's instruction in relation to the
mentions that he had been originally charged.
His Honour then goes on to invite the jury to
consider what counsel in their closing addresses had said about Mr Sunman and then in the last four
lines on page 60 are these words:

The prosecution say you just look at Sunman's

evidence as it stands with no adverse

inferences like that to be taken from it, that

he -

is -

an honest witness doing his best to recollect.

There again it is for you to decide what view

you take of Sunman's evidence.

That is it. In other words what His Honour has

done there is simply invite the jury to consider

the arguments put by counsel on both sides and make

up their minds as to which one they are inclined to

choose beyond reasonable doubt.

In my respectful submission, that direction in relation to Sunman is wholly inadequate. Sunman

had been a person who had been charged; the charge
had been discontinued; he gave long and detailed

evidence of the running of this business, evidence

which also contained - or rather, he was the source

of the evidence which the Crown relied on in a

conversation between Sunman and the applicant that

the applicant had said to Mr Sunman that he had

grown a quantity of Indian hemp at some stage and

that was his reason for his justification for his

apparent new found wealth. This conversation was

denied by the applicant on oath.

Sunman gave evidence about irregularities in relation to registration; he gave evidence to

suggest that the applicant had said to him that the

applicant had a friend in the motor vehicles

department in Adelaide working for him. These are

all matters which the applicant denied ever took

place.

So Sunman's position, if the Court pleases,
was very important in this trial and there is no

caution at all in relation to Sunman's evidence. Further, His Honour the learned trial judge does not go on to explain what the jury should do if

they accept the submissions about Mr Sunman's role

in the trial put by defence counsel.

Standley 11 22/8/90

BRENNAN J:  Am I right in understanding you to be submitting

that a similar warning to that which you say should

have been given in the case of Murtagh should have

been given in the case of Sunman?

MR WENDLER:  Of course, if the Court pleases, and more so.

BRENNAN J:. And for the same reason?

MR WENDLER:  For the same reason and more so for Sunman

because he played a greater role in the trial and

he was the source of this very damaging
conversation in relation to the growing of an
Indian hemp crop by the applicant. That evidence

ruling is a matter which it is convenient to now invite Your Honours to, if the Court pleases, at page 152 in book I in the examination in-chief of

Mr Sunman, between point 1 and point 4 essentially.

If the Court pleases, I propose to read some

of this. This was how this evidence was introduced

over objection:

I then asked 'How do you account for about

$200,000 that you have spent during the last

six months?'

Q. Where did you get that figure of $200,000

from.

A. I just sat down and added up in my head the money that I knew he spent.

Of course, Mr Sunman is relating a conversation

between him and the applicant.

TOOHEY J:  Mr Wendler, before you go on, that does not

quite set the scene for the evidence, does it,

because if you look at line 2 on that page, Sunman

says:

I asked Standley to come clean with me and

tell me what his involvement was with these

cars.

In other words, the reference to 200,000 just did

not come out of the blue.

MR WENDLER:  Yes. I beg your pardon, I was not trying to

mislead Your Honours.

TOOHEY J:  No, I am not suggesting you were, but it does

explain why or how the amount of 200,000 came to be

mentioned.

MR WENDLER:  Yes, quite so. The applicant, when he gave

his evidence, said that that conversation just

never took place and on top of that he said he had

Standley 12 22/8/90

increased his wealth by virtue of selling his house

and that is why he had extra money at that time.

TOOHEY J:  The fact that it was denied does not determine

its admissibility.

MR WENDLER:  No. I entirely agree with Your Honour. What

I am submitting is this and no more than this:	I
do not disagree that that exchange had some
probative value.	It went clearly to the mens rea

of the offence, but a proper exercise of the

judicial discretion should have not allowed that to

be introduced into evidence because it gave the

impression not so much that he was involved with

Indian hemp but that he was making money dishonestly and this was a case of dishonesty.

BRENNAN J:  Is not that why it was probative?

MR WENDLER:  No, it was not, if the Court pleases. It was

probative because the Crown argued that he had

given, in fact, this false explanation in order to

hide the fact that he was making extra money

through the sale of cars illegally obtained. That

is why it was introduced and that was embraced by

the Court of Criminal Appeal as being a correct

evidence ruling in law. That had a devastating

effect on the trial, if the Court pleases, because

as that was developed, not only at page 152 -

BRENNAN J:	What do you mean, "a devastating effect"?
MR WENDLER:	Well, if the Court pleases, its prejudicial

value can be identified in this way: first, it is

suggested that he, the applicant, was making money

via another illegal fashion; on top of that it
strengthened the apparent relationship the jury may

have speculated about in relation to the witness

Murtagh who had pleaded guilty in another State to

being involved in Indian hemp. So that

strengthened, to a certain extent, this red herring

involvement with Indian hemp.

TOOHEY J:  I would have thought its significance was rather different to that. The jury is likely to have

regarded this explanation about the marihuana crop

as a complete furphy and that in fact the applicant

was not providing any sort of an answer to the

suggestion that the $200,000 might have come from

the sale of stolen cars.

MR WENDLER:  It is very difficult, if the Court pleases, to

really speculate exactly how they treated it

because I remind Your Honours, not one

verdict - - -

McHUGH J:  Well, you just said it was devastating.

Standley 13 22/8/90

MR WENDLER:  It was for its prejudicial value, if the Court

pleases. My response is that it is very difficult

to appreciate as to whether the jury considered it

to be a complete red herring or whether they

considered it to have some substance.

BRENNAN J:  But most evidence which is inculpatory has a

devastating effect and prejudicial.

MR WENDLER:  Not of this quality, if the Court pleases,

where an evidence ruling is made suggesting that

the accused has committed very serious criminal

offences which have no connection with the matter

that he is being tried for.

McHUGH J:  But that was not the suggestion at all. From

beginning to end of the Crown case there was no

suggestion that the answer given by your client to

Sunman was true. The whole suggestion was that it was false and that it represented a conscious

attempt by him to provide an explanation of

life-style which could not be explained by the

legitimate business which was run by Sunman and

your client.

MR WENDLER:  That is indeed the basis that the Court of

Criminal Appeal held it to be a correct evidence

ruling but, in my respectful submission, it still

carried with it an enormous amount of prejudice.

We just do not know the amount of prejudice that it

carried with it.

TOOHEY J:  If he had said by way of answer, "Well, it was

left to me under my great aunt's will", you would

have had·no complaint about that sort of answer

being admitted in evidence?

MR WENDLER:  I am sorry, Your Honour, I missed the - - -

TOOHEY J: If the explanation for the $200,000 had been that

it was left to the applicant under a distant

relative's will, you would have had no complaint

about that sort of evidence going in, presumably?

MR WENDLER:  If the Court pleases, I would always have a

complaint with that sort of evidence.

TOOHEY J:	But even if it could be demonstrated that the explanation was clearly false?
MR WENDLER:	If the Court pleases, I do not dispute that it

had a probative value. My confrontation in this

matter was that it had - - -

McHUGH J:  What was its probative value?

Standley 14 22/8/90

MR WENDLER:  Well, if the Court pleases, as I have

explained, to show that the accused had invented

this story about the marihuana crop in order to

hide his apparent increase in wealth.

McHUGH J:  Well, it was relevant because he had told a lie

about his source of income and it can make no

difference that he had proffered the fact that he

got it illegally or if he said he won it at the

races every Saturday and it was proved he never

went near a race track.

MR WENDLER:  Yes, but, if the Court pleases, the public do

not have any problems accepting racing but they
have a lot of problems accepting people obtaining

tax free money from growing illegal drugs.

McHUGH J:  But that is not the point. The Crown did not

allege that he got it from growing marihuana crops.

The Crown said it was false, it was just a false

explanation.

MR WENDLER:	If the Court pleases, it is the prejudice that is inherent in the answer it was alleged that the
applicant made.  On page 152 in that answer at
point 3 the applicant was alleged to have said in
response to Mr Sunman:

'I don't believe that you grew a Marihuana

crop, prove it to me.' He said, 'I can't

prove it to you, it was done a long way away'.

And then he talks about "Naracoorte". It suggests

that in the answer, or the alleged answer, that

there may be some credibility in that, some truth

in that, because of the facts contained in it.

Naracoorte:

I cannot prove it to you -

and so on.

GAUDRON J: But if it were true it would be to your

advantage.

MCHUGH J: Exactly.

GAUDRON J: If it were true - - -

MR WENDLER:	Not in the circumstances that the - - -
GAUDRON J:	- - - it was your answer to this case.
MR WENDLER:	Not in the circumstances of this particular

trial, a trial for receiving motor vehicles. if

that were his defence one wonders how far he would

have moved with that.

Standley 15 22/8/90

McHUGH J: But your client had to explain spending of money

over and above his income, did he not?

MR WENDLER:  If the Court pleases, the Crown never ever as

part of its case proved that the applicant was, in fact, living way beyond his income. The applicant

gave evidence to say that he had sold assets and

his house in relation to money that came into the

business. During the course of the Crown case

financial experts were not called to prove that

this man was living way beyond his income, nothing

like that happened at the trial. This was just a

piece of evidence which was prohibitive so the

Crown said to the mens rea of the offence.

BRENNAN J: Well, I think we understand the point you are

making, Mr Wendler.

MR WENDLER:  If the Court pleases, my submission is really

that that evidence ruling, coupled with the

inadequacies in relation to the directions together
have produced a miscarriage of justice and warrant

the intervention of this Court. The special leave

issue really concerns the usefulness in law of

maintaining a category system of witnesses that

attract a special instruction. That can be caught

up, this application be used as a vehicle to

examine that particular proposition.

BRENNAN J:  You have a second aspect to address, is that

correct? Have you said everything you wish to say

on the -

MR WENDLER:	Yes, I have, if the Court pleases.
BRENNAN J:	And you have a second aspect to address with regard to sentence?

MR WENDLER:  Yes, if the Court pleases. The only complaint,

in relation to sentence, concerns a miscarriage of

justice in relation to the applicant's application

to a single justice of the Supreme Court of South

Australia for an extensions of time in which to

seek leave to appeal against the sentence.

The applicant gave evidence at the hearing for

an extension of time and, essentially, he suggested that he had been misled by his legal advisers. The

applicant also called his father who, to some

extent, cooperated corroborated the applicant's

complaints. The learned judge who heard the

application really provided no reasons for refusing

it, he simply disbelieved the applicant. In my

respectful submission, that was unfair in the

circumstances. The applicant gave an undertaking

to the court that he waived legal professional

privilege and invited the Crown - - -

Standley 16 22/8/90

McHUGH J: But you got an adjournment on the basis that you

were going to call the legal adviser.

MR WENDLER: If the Court pleases, I could not cross-examine

my own witness.

McHUGH J: Well, you did not have to you could call him

in-chief.

MR WENDLER: 

If the Court pleases, it was never put to the

applicant that what he said about the circumstances
for an appeal against sentence were untrue, he was

never confronted about it.  The judge that heard

the application just dismissed it out of hand

because he decided he did not believe the

applicant.

McHUGH J: Well, it was one of these cases where the judge

took the view that, despite the absence of

cross-examination, the story told was so inherently

improbable.he would not accept it.

MR WENDLER: Well, if the Court pleases then, in my

respectful submission, the learned judge should

have given some extensive reasons so that the Court

of Criminal Appeal could base its own decision for

upholding the refusal of an extension of time

against the applicant. It was just unfair, if the

Court pleases, in the circumstances to knock this

man out who had made a complaint about he had been

treated by his former legal advisers.

McHUGH J:  But why did you not call the legal adviser? We

had something to say about this in a case last week

when we dismissed it, or two weeks ago, Smith when

we dismissed a special leave application, about the

failure to put on evidence from the legal adviser.

MR WENDLER:  You invited the Crown to call the legal

adviser. It was the Crown did not call the legal

adviser not the applicant and that was the

appropriate party to do so, in my respectful

submission.

TOOHEY J:	Why do you say that?
MR WENDLER:	Because that would have allowed the legal

adviser to be cross-examined extensively because he

would, of course, deny the circumstances as

proposed by the applicant. There were serious

allegations made by the applicant against - - -

TOOHEY J: That is a curious statement to make, "He would,

of course, deny it."

Standley 17 22/8/90

MR WENDLER: Well, there were serious allegations made by

the applicant as to his treatment by his former

legal advisers.

BRENNAN J:  If it was a matter of course that he would have

denied it, why did you get an adjournment in order

to call him?

MR WENDLER: Well, because it was then considered that the

proper course was to give an undertaking to the

court to waive legal professional privilege and

invite the Crown to do so since they were opposing

the application. They did not do it.

BRENNAN J: My question to you is:  If it was a matter of

course that the legal adviser would deny the

allegations why did you seek the adjournment in

order that you could call him?

MR WENDLER:	Because at that stage it was considered that he would give evidence supporting, in some way, the
applicant.
McHUGH J:	What do you mean, "It was considered"?

MR WENDLER: If the court pleases?

McHUGH J: What do you mean by, "it was considered that he

would give evidence"?

MR WENDLER: Well, his former legal adviser had been

supplied with the affidavits sworn by the applicant

and responded by essentially saying, that he would

assist in some fashion and then later when

approaches were made it just did not develop in

that fashion and the invitation was then left to

the Crown to call him.

The order the applicant seeks, in relation to

this branch of the application is, simply, that the

matter be remitted to a single justice of the

Supreme Court of South Australia with direction
that there be a further hearing, essentially.	I am
not asking this Court to resolve this aspect of - - -

GAUDRON J:  But you must go a bit beyond that because you

have actually had a hearing. It is the result you

do not like. You have had as much hearing as you

wanted in terms of the evidence you wanted to call

and the Crown wanted to call and the submissions

you could put.

MR WENDLER: Well, technically, the hearing has been before

a single justice of the Supreme Court of South

Australia, it has not been before the Full Court of course because it has been heard in private.

Standley 18 22/8/90

McHUGH J: But what about, on page 36 of volume III of the

book, when you were asked about this you said, the

judge asked you:

Why haven't you got an affidavit from

Mr Chapman?

and you said:

He went away on holidays for many weeks and a letter was sent to him and attached to the

letter was Mr Standley's affidavit asking for

him to comment on it. He has made various

comments on it, but it doesn't take the matter

so much further because he really has to be

called .

~qw, what was the situation at that stage, had he

d~ied it at that stage?

MR WENDLER: ,No, I do not think he had at that stage, at

that stage he had simply responded by letter. If

the Court pleases, yes, he had in fact denied it.

He responded by letter to the solicitor who had

sent it and had made denials in relation to various

paragraphs of the affidavit. .

McHUGH J: Well then, why did you say that it does not take

the matter so much further?

MR WENDLER: Well, because my memory is that the nature of

his denials were not in the ?..'!:'ea that concerned his

mistreatment, if you like, at the hands of his

legal advisers. If the Court pleases, I have

really come to the end of it, unless there is

anything else •

BRENNAN J: The Court will adjourn briefly to consider what

course it should take.

..

AT 2.54 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.00 PM:

BRENNAN J:  We need not trouble you, Ms Vanstone. The

application for special leave to appeal against

conviction is founded first on an alleged failure

by the learned trial judge to give to the jury a

warning that they should be careful in acting upon

the evidence of either of the witnesses Murtagh and

Sunman without independent confirmation in any way.

Standley 19 22/8/90

No application for redirection was made by counsel

for the applicant when the judge concluded his

swnming up. No rule of law or practice required a

warning to be given. There is no reason to doubt

the correctness of the view of the Full Court on

this point.

The second ground of the application is that

the evidence of the applicant's admission that he

had been involved in the cultivation of Indian hemp

was wrongly admitted. The evidence was relevant

and probative and the prejudice it effected was not

gratuitous or undue. It was properly admitted. In

relation to the application for special leave to

appeal against sentence, we do not see any error in

the conclusion at which Justice Millhouse arrived,
in deciding to refuse an extension of time in which

to file an application for leave to appeal against

seritence. This view was upheld by the Full Court

and" there is no ground which warrants our

interference. Accordingly, special leave will be

refused.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE

-

-

Standley 20 22/8/90