Stone v The Queen

[1989] HCATrans 177

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A6 of 1989

B e t w e e n -

ANTHONY WESLEY STONE

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J
DAWSON J
GAUDRON J

Stone

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 21 AUGUST 1989, AT 2.45 PM

Copyright in the High Court of Australia

A1T9 /1/PLC 1 21/8/89

MR S.W. TILMOUTH: May it please Your Honours, I appear with

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

applicant. (instructed by Ward & Partners)

MR D.H. PEEK:  If it please the Court, I appear with my

learned friend, MS R. STEEN, for the respondent.

(instructed by the Crown Solicitor for South

Australia)

MR TILMOUTH:  I hand up the written outline, Your Honours.

BRENNAN J: Yes, Mr Tilmouth?

MR TILMOUTH:  May it please Your Honours, the focus of this

appeal concerns directions that His Honour gave to

the jury in relation to a basis on which it could

approach its assessment of the Crown case and,

in particular, the basis in which it could deal with

certain alibi evidence which was given at the trial.

Now, before coming to the relevant parts of the

sunming up which I shall do shortly, the basis that

His Honour put to the jury which was different than

the Crown case arose in this way: Your Honours,

in the end result the applicant was charged only

on three counts - there was an order for severance

of the others - and that appears from the endorsements

on page 5. And those three counts related to a time

period between 21 April 1987 and 30 April 1987,

obviously nine days.

The case for the Crown was substantially based

upon a confession, a typed confession which was

signed by the applicant and which the Crown said it

could support by proving that certain things that

the applicant had said in that confession were true

and hence that the confession was a reliable basis

upon which the jury could find him guilty beyond

reasonable doubt. And in further particular the

basis of the Crown case here was, with respect to

each of the three armed robberies, that the applicant

drove a get-away vehicle which he had stolen earlier

on the day of the robberies. The evidence was that

each of the three get-away cars were stolen, probably

in the morning; each of the robberies was in the

early afternoon; and each of the vehicles in question

was a Commodore motor vehicle of a certain age - I
think it was about 1979 - which had been interfered
with and driven away in the same way. There was a

method of entering the car and interfering with the

steering mechanism which enabled the ignition to be

started.

Now, what the Crown said was that that disclosed

a similar fact basis on each of the thre~ counts
which it was put to the jury on that basis and we

do not quarrel with that.

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Stone

McHUGH J:  Was there evidence independently of the accused's

confession that the three cars had been involved

in the three robberies?

MR TILMOUTH:  Yes, there was.

McHUGH J: There was?

MR TILMOUTH:  There was no doubt that the three cars were

involved in the robberies. When it comes to our

complaint about the fourth vehicle, the Antoniw

vehicle, that was never ever involved in any last count. I will come to that in a moment. But
robbery and it was outside the period in question.

the three core robberies, there is no doubt that
those vehicles were used as get-away vehicles and

there is no doubt that they were stolen in the same

kind of fashion. We are not disputing that.

Now, what the Crown said was, if I could take

Your Honours to the record of interview, that it

was reliable, when the applicant had said that, "I

stole the cars". And the record of interview,

Your Honours came through Detective Patterson and it commences at page 50 where Patterson - this is simply a transcript, it is not a document in its

own right where he read from a typewritten version,

and Your Honours will see from page 50 that the

record of interview was signed, lines 27 and 28.

It was taken by Detective Patterson in the presence of Detective Chamberlain and it was signed by

Stone himself and the evidence was, Your Honours, although it is not this page, that it began at

about 2.15 am on the morning of the applicant's

arrest, that arrest being on 25 May 1987.

With respect to the three counts and the cars,

the confessional material was as follows: page 53,

which was count three, the first one on which he

was tried.	The record of interview proceeded, line 3,
page 53:

'The first one I will ask you about is the

State Bank at Royal Park. The bank was

held up by two men on 21 April 1987 at about

1.55 in the afternoon, a third person was

driving the get away car, a blue Commodore, which was abandoned in Deakin Avenue, Royal

Park. My information is that you drove the

vehicle and Bronco Mihailov and Rob:rt

Rodwell went into the bank and did the job,

is that correct?'

He said 'Yes.'

I said 'Where did the car come from?'

He said 'Stolen from a railway station somewhere.'

AlT9/3/PLC	3	21/8/89
Stone

I said, 'At Brighton?'

He said 'Yes'.

I said 'Who stole it?'

He said 'I did. '

I said 'How did you get into it?'

He said 'Tape to pop the window up on one

of the front doors.'

So, it was said by the Crown that that was reliable

for reasons I will mention in a moment.

Likewise, on count four, which was the second count on which he was tried for relevant purposes, at page 58, again a long question was put to him about

the core features of the robbery, the second one on

28 April. I do not read it, Your Honours: lines 13

to 21. And then the applicant is alleged to have

said at line 25:

'What can you tell me about it?' He said,

'I got the car from the back of the Social

Security down the Bay. I knockad it, picked

up the other two. I drove them to the Building Society, I let them in on the

street side. Some old guy stuck his nose

in the car and started talking and then they

came out, he started screaming -

et cetera. Now, the reference, obviously, at line 26

and line 27 is again a reference to the fact that he

stole the car for the purposes of using it and driving

it as a get-away vehicle for the robbery.

And finally, Your Honours, the third count which was tried and the fifth count on the information in

number, there was a similar alleged confession at

60-61 and the critical line is at 61, line 20:

We got the car from the Parafield Gardens

railway station. I stole the car on my own.

So, essentially, what the starting point is is that

there is an alleged confession where the applicant has

said, "I stole the cars" and what the Crown wanted to

do was to prove that that was a reliable confession

by means of using other material. Now, that other

material was the theft of yet another Connnodore which

was broken into, it is conceded for the purposes of

this appeal, in a similar way but on 21 May 1987

which is outside the relevant period of the

robberies. It is 21 days later. That is three weeks

after the last count and it is four days before the

applicant was arrested in the motel at Glenelg.

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Stone

Now, the basis of the admission of the theft of that vehicle was generally this: when the applicant

was arrested at about 1.45 am on 25 May, that is

four days after the theft of the Antoniw car, he had

in his possession personal documents coming from

Mr Antoniw's vehicle. There is no question about

that. They included bank statements, bankcard and

things of that nature.

The Crown led the evidence - sought to lead

and were granted permission to do so over objection,

this evidence about the possession of the documents

so that the jury might infer that the recent possession

of Mr Antoniw's personal docum~nts could lead to the

inference that the applicant had stolen the car.

That car, in turn, had been stolen in a similar way

and was a similar make and model. And, hence, if the

jury accepted that he stole that car beyond reasonable

doubt, it could be used to confirm that what the

applicant said to the police in the passages I have

just read, "I stole the cars" was, in fact, true.

McHUGH J:  But why was it not admissible on another basis,

namely, that if he was involved in the stealing of

the fourth car, it was evidence that he was implicated

in the robbery itself independently of his confession?

MR TILMOUTH:  It would never have gone that far, with respect,

because this fourth car was never involved in any

robbery.

McHUGH J:  No, but the method of taking the fourth car was

identical with the method of taking the other three

cars, was it not?

MR TILMOUTH:  Yes, it was.

McHUGH J: Well, why was it not admissible on that basis?

MR TILMOUTH:  It may have been, perhaps, if the jury had

properly reasoned backwards: recent possession

indicates theft; or it indicates involvement with

other cars which they may infer is the next step

were involved in the robberies, but our point is

had summed up to the jury and then only by the

that this basis was never put before the jury by the

learned trial judge in the course of his summing

up towards the middle and the latter part of the case

and counsel were denied, it follows, the opportunity

of addressing the jury on this alternative basis,

that that material could be used for some other

purpose. Never was it put to the accused that he

had, in fact, arranged or was connected in some other

way, in his evidence. It was never really put to the

alibi witness, Clifford, who was a good witness - I

will come to that in a moment - and it was really a
new basis. Assuming, for the moment, it was admissible

on an alternative basis and the reasoning process was

AlT9/5/PLC	5	21/8/89
Stone

properly left to the jury, it was put too late,

in my submission, by the learned judge when counsel

had been deprived of the opportunity of addressing

on it, and perhaps there being evidence on it.

That is our point.

BRENNAN J: What was the basis on which it was admitted

precisely? I know you say it is to confirm,

but confirm how?

MR TILMOUTH:  If the jury could infer that the applicant's

recent possession of the Antoniw documents that

he had stolen the car, if they could find that

beyond reasonable doubt, then the jury might

infer as the next step that if he stole that car, because it was stolen in a similar way,

that what he said when he said he stole the

other cars in a similar way was the truth.

Your Honours, it is not in the anneal book,

the exact basis on which counsel sought to have

it admitted, but we do have copies of the

transcript on this basis, if I could hand up

up to Your Honours.

McHUGH J: While that is being done, could you just help

me on this: was he asked in his record of

interview as to whether he was involved in

the stealing of the fourth car, or the documents?

MR TILMOUTH:  From recollection, not, no. I will stand

corrected on that, but I do not think that is

right; I do not think he was.

Your Honours, what I have just handed to

Your Honours is a copy of the original transcript

which is not in the appeal book and it is selected

passages only, but hopefully it fairly summarizes

the basis of the Crown case. Your Honours can see

at page 918, Mr Peek, at about point 2, and this

is in relation to this matter, Your Honours:

Let's deal with it on that basis for

the moment. Other evidence apart from
confessional evidence on any one -

count, I think that should be -

is highly relevant for a number of reasons;

to show that the Crown case is correct and

that the surrounding circumstances are

consistent with the confessional statement

said to have been made and that, which is

certain to be the confessions, were not

fabricated and evidence was not manufactured. That is a little generalized, I know. At the bottom

AIT9/6/JM	6	21/8/89
Stone

of that page - my friend says that should read
instead of "that which is certain to be the

confessions" should be "certain to be the

contentions,were not fabricated" and that may be

right. At the bottom of the page, Your Honours,

Mr Peek said this:

Antoniw will give evidence that there was

exactly the same damage to his ignition

system and the steering lock by reference

to the photos of the actual cars before

your Honour. His car was stolen, then

documents from that car were found in Stone's

possession. That is very important, because

it links Stone with an actual theft of a

vehicle taken in that very way, which is

exactly the same as the theft of each vehicle
in each of the robbery counts. That is

primarily important in relation to Stone as

distinct from Rodwell.

Then, later down, at about point 7, Your Honours, and I am skipping over some of this for brevity,

Mr Peek again:

The fact of the matter is he is linked

very strongly with that car by a documentation

and that that in turn links him to the other

robberies in relation to the cars used always,
of course, going back to the central matter

of the confession, because that is the whole

nub of the Crown case, because you see I

specifically nailed colours to the mast there

at p.6 -

I am not sure what that refers to, Your Honours; it may be a written submission, I am not sure -

and I say it will be conceded and I will be

asking your Honour to direct the iury that

if the jury has a reasonable doubt as to

the confessional evidence they snould acquit. confessional question to one side. This case is primarily about confessional evidence and

that if the police are believed by the jury
then that will go a very long way to drawing

the inference that when the respective

accused made these admissions - ·

and then it went on to something else. At page 937,

at about line 14:

The next point is his car is stolen in a strikingly similar way to the four Commodores

that were stolen and used in each of these

holdups and Antoniw will describe the way -

AIT9/7/JM	7	21/8/89
Stone

he refers to the papers at 31 and 32. At page 938,
Your Honours, line 15:

What I am saying is this case primarily concerns confessional evidence and it is

on that which we rely and we call that other

evidence to confirm as soon as possible the

likelihood that Stone did confess and did

make a truthful confession and the surrounding

circumstances are confirmatory of the
confession.

So, Your Honours, with respect, there can

be no doubt that what the Crown was saying was

''Th.is case essentially is based upon those confessions.

When the applicant said, 'I stole the cars', that

was truthful and the way we can confirm it is

truthful is we can link him with this other

Antoniw car and provided you reason properly that

he stole the car beyond reasonable doubt, you may

then reason beyond reasonable doubt that if he was involved in that, he was involved in these

other cars."

McHUGH J: It seems a very involved way to go about it.

I would have thought on the principle of

O'MEALLY's case from Victoria, that if you proved

he was involved in the theft of the fourth car,

and that was said to prove that he was involved

in the theft of the other three cars, then that

implicated him in the robberies.

MR TILMOUTH:  In a more general way, yes. But the point

here was, Your Honours, that is true as a

circumstance but it still would have only left

the Crown essentially with the confession, and

whilst the Antoniw documents were capable of

being relevant in that way, far and away what

the Crown were wanting to do was to say that
the confession was reliable and it therefore had

that extra and particular effect.

BRENNAN J:  But the fact in issue on each count was

whether your client had stolen the get-away car.

MR TILMOUTH: Yes.

BRENNAN J: And the evidence of stealing other cars,

whether in other offences or not, is similar fact

evidence.

MR TILMOUTH:  It was put to the jury on that basis and we concede that for the current purpose.

BRENNAN J:  So that if they can prove that he has stolen

two other cars, which were the other counts, five

and whichever the other one was, that is some

assistance to find it in relation to count three,

AIT9/8/JM	8	21/8/89
Stone

If they an ]J[Th"= Antoniw' s car as well, that is one

more similar fact. Now, if that evidence is

admissible on that basis, does it matter that

there might be some other way in which it can

be put?

MR TILMOUTH:  Yes, it does, with respect. Firstly, there

was no evidence on each of the three counts

linking the applicant with any other cars

except the confessional material.

BRENNAN J:	Be it so, but - - -
MR TILMOUTH:	And all you had, therefore, was this

fourth Antoniw vehicle and accepting that it

was admissible on a similar fact basis, the

Crown led it on the basis that it confirmed the records of interview, albeit that it might have

been relevant in some more general way.

If the Court pleases, we complain about

two things arising out of that in particular,

and they are procedural matters, and substantive

matters as well. Firstly, the learned trial

judge gave the jury no directions at all as

possession and hence theft of Antoniw's car - let

to how they should use the Antoniw material.

us exclude the other three counts for the moment -

the jury would obviously have to be directed that

firstly they have to be satisfied the documents

were in possession - which they were, there is

no doubt about that - and from the possession of

those documents the four days later, they could

infer, or should infer beyond reasonable doubt that the car was stolen, or perhaps that Stone

was involved in the theft in some way.

Next, Your Honours, once having proceeded to

that step, the jury would then have to be told

that they could only use that material in a

similar fact way if they were satisfied beyond

reasonable doubt that Stone had stolen the

vehicle to confirm the confessions. The judge

gave the jury no directions about the use of
the Antoniw documents as it led to the inference

of theft at all and when he put the alternative

basis to the jury, what he did was, irrespective
of Your Honour Justice McHugh's point about its

admissibility on some other basis, it completely

undermined the basis on which that evidence was

originally received. If it was otherwise admissible

on some other basis, there ought to have been

proper directions about itsproper and improper use

and there were none.

McHUGH J: It is strange that this evidence could only have

been admitted, that ie,the evidence of stealing

the Antoniw vehicle, if its probative value

AIT9/9/JM	9	21/8/89
Stone

outweighed its prejudicial value, and it would be

an affront to common sense not to let it.

MR TILMOUTH:	Indeed.
McHUGH J:	Did the evidence go that far? In your submission

have you got any point about the admissibility

of this evidence of the fourth car being admitted

at all?

MR TILMOUTH:  We made that point originally; we made it

in the Court of Criminal Appeal which ruled against us. For the moment our argument is predicated on the fact that it was admissible.

We do not take the point that it was prejudicial

because, as the court below said, Stone put his

own character in issue, but I will come back to

that later. But what we do say is that once

having been admitted, if the judge was going

to put an alternative basis to the jury,

either Antoniw's evidence should have been

ignored altogether, because it was not admissible

on the original basis, or if it was admissible on
some less and alternative basis as suggested by

Your Honour, it warranted proper directions

about the reasoning process involved before it

could be used, and a warning against impermissible

use. This applicant received none of thern.

Finally, of course, if the Court pleases,

and what is at the centre of this appeal in this

respect is that had counsel been notified of

this alternative basis, there was a great deal

that counsel could have said to the jury,which

opportunity they were denied, or she was denied,

in Stone's case. Your Honours, apart from the

fact, as I have already mentioned, that Stone

was never cross-examined on this basis at all,

on the alternative basis, which is a procedural

unfairness in its own right, the rule in

BROWNE V DUNNE et cetera , t he fact is that

counsel could have had a great deal to say about, "Well, if you look at this evidence

on this supposed alternative basis, what about

the confession?", and so on and so forth. I

do not want to elaborate, unless I have to, because

I would be making essentially jury points. But my

Doint is that there were substantial matters and

not merely incidental or inconsequential matters

that counsel clearly could have had the opportunity
to address the jury on, which was denied and in

the end result that is our point, Your Honours.

McHUGH J:  Once the trial judge put this alternative basis,

what use was the jury to make of this alternative basis?

MR TILMOUTH:  On his alternative, none, because it was never

admissible on his basis at all. That is a further

answer with respect to Your Honour. Even it was

AIT9/10/JM 10 21/8/89

admissible on some third basis, it was never

developed or properly explained to the jury

that it linked Stone in a general way, rather

than in a particular way which the Crown have said.

McHUGH J: Yes.

MR TILMOUTH:  May I make this point, Your Honours, as well:

we are not saying that the trial judge is bound

by the conduct of the case of the defence.	We
acknowledge that that often is not the case.	But
what we are saying, if a judge wishes to depart

from the way in which the issues are fought before

the jury, he should notify the parties and give

them their opportunity to make submissions and

before the time has been reached when they have

finished their addresses to the jury.

McHUGH J:  Mr Justice Matheson was for you on this point

but thought there was no miscarriage. Is that right?

MR TILMOUTH:  That is right. The reason why we say that is

wrong, with respect, is this: His Honour talked

about other confirming evidence, guns for example,

but Your Honours will see when I come to the

sunn:ning up that His Honour in this case actually

lumped the guns in with the Antoniw vehicle

and said perhaps somebody else got the guns as

well. His Honour Justice Matheson also said that

he applied the proviso because the alibi evidence

was completely undermined. With respect, we do

not accept that either. We submit that the very

basis on which the alternative basis was put

predicated the strength of the alibi evidence

as far as it went. Your Honours will see,when

I go to the summing up, His Honour mentioned that

the alibi witness Clifford - if I can paraphrase

for a moment - was an impressive witness. His

whole alternative basis assumed the strength of

the alibi evidence, but it tried to explain it

in some other narrower way,not litigated until

that point.

BRENNAN J:  Was there any request for redirections on

this matter?

MR TILMOUTH:  No, what counsel asked for, Your Honours,

was that page 353 - it is not in the appeal

book because it is in Justice Matheson's -

what counsel said was, in effect, if you put

that basis, the Antoniw material was inadmissible, counsel

said - this is in Justice Matheson at paee 353, point 3:

"The other matter that I wish to raise

concerns your Honour suggesting to the jury

that another explanation might be that the

accused had an agent who was to steal cars,

AIT9/ll/JM	11	21/8/89
Stone

in particular to steal the Antoniw car

from which the Antoniw documents emerged.

There are two criticisms that I should make

of that. First of all the defence contention

has always been that the Antoniw documents were
not admissible because it was not the only

inference that the accused stole the car in

a particular way and the only relevance of the

Antoniw documents was to suggest, on the

Crown case, that because the accused stole

the Antoniw car in a particular way that
therefore allowed the jury to draw the inference

that he had also stolen the three getaway cars.

Your Honour has put to the jury a different

scenario. That is a change in tack, if you like,

of what the Crown case is and only serves to

make the Antoniw documents and the inferences to

be drawn from the stealing of the Antoniw car

even more unreliable.

So counsel would essentially put the objection. We

have the original passages in the transcript where

that is if Your Honours wanted it. It is pages 171

and 172. Perhaps I will hand it up without reading

it to Your Honours, for the record.

McHUGH J: Mr Tilmouth, was this method of stealing these

cars unique so that it was obvious that only the

one person could have been responsible, or was it

just a connnon method of car theft that just happened

to be used in relation these four cars?

MR TILMOUTH:  As I understand it, Your Honour, there was

nothing unique - there was no evidence at all that

this was particularly unique to these offenders.

It happened to be a range of Connnodore cars which were peculiarly susceptible to entry in this way,

but there was simply no evidence that this had been

unheard of in other quarters.

McHUGH J: That is why I raise the question of the admissibility

of evidence. I must say that when I read the

judgments in the Court of Criminal Appeal and the

judge's summing-up, it did not strike me that there

was anything terribly unique about the method of stealing.

MR TILMOUTH:  There is no evidence to say, Your Honours,

that these are the only Connnodores the police have

heard of being broken into in this way. The evidence

was that they were all similar in the four respects;

we do not shy away from that. But there was no

evidence to say that this is so unique that it we

have only heard of it in relation to these robberies.

There was no evidence of that kind at all.	In fact
the evidence was - - -

McHUGH J:  I mean, if the question was whether the accused

had broken into one house by using a jennny at the

AIT9/12/JM	12	21/8/89
Stone

bottom of the window

MR TILMOUTH: That is right.

McHUGH J:  and had found three others with it - - -

MR TILMOUTH: It would be wholly corrrrnon.

McHUGH J: Yes.

MR TILMOUTH:  The evidence was, I think, and again I stood

to be corrected, that this particular range of

vehicles over about a two-year production period

had a particular mechanical fault which rendered

them susceptible to interference in this way,

in the steering colurrm or the ignition mechanism. I do not know the particulars, but that is as far

as it went. Nothing to say that this was so

unusual that it has only been heard of in relation

to these robberies.

(Continued on page 1/4)

AIT9/13/JM	13	21/8/89
Stone

BRENNAN J: I confess the descrii: '...On of it to me is the

description of an art-form. Perhaps you can tell

me not simply whether it is the same defect in all the vehicles but is the modus operandi all

that simple or does one need to have a certain

apprenticeship to acquire these skills?

MR TILMOUTH:  Again, I think the evidence was not that you

needed to be a qualified mechanic or an expert

electrician to break in in this way. The evidence

was that the windows were - there was black tape

used apparently to get in without breaking them

and then, as I understand it, something simply like
a screwdriver could be used to break off part of
the steering column casing which gave access to

the ignition system and then it was a matter of

- it was not exactly this, not hot-wiring exactly

but something like that which, of course, on its
face was nothing wholly remarkable or peculiar

only in the sense that each of these four cars

was· broken into in that way but one would assume

th a t the - the e v i de nee ~-lo s g i v en about i t by a

Mr Bailey who was a police auto electrician and,
perhaps, I can have copies made, Your Honours,

but what I would say about it in a word is, there

is no evidence that it required a unique skill

or a particularly sophisticated method of getting

into the vehicles or any highly developed apparatus

for that purpose.

What I would say is it was perhaps as

common as - well, not as common as but nothing

more remarkable than the break-in situation in

an ordinary common house, jemmies or whatever.

Yes, in fact, Bailey said, at 1,731, he was asked:

What sort of article would you need to move

the rod forward?

Answer:  A screwdriver or something very similar.

And that reminds me, Your Honours, in fact, I think it was just a rod in the ignition mechanism which,

once pushed into a certain position, activated

the electronics of the car which saved you from
needing the ignition key.

So, it was not anything sophisticated or expensive at all. Now, Your Honours, that is - - -

BRENNAN J: But, none the less, are those who are familiar

with this a relatively small class?

AlTl0/1/SH	14	21/8/89
Stone

MR TILMOUTH:	There was no evidence about that, Your Honours.
BRENNAN J:	What inference does one draw from the technique

that was adopted? What inference could reasonably

be drawn I should say?

MR TILMOUTH:  Only that the four cars may have been stolen

in the same way but not, by any means, necessarily
the same persons or group of persons. There was
nothin& in our submission, specifically relating

it to the group of persons involved in this offence

and no others. It was general; it was not that

specific.

Your Honours, could I summarize the evidence

this way: the defence case, as we have noted in

the written outline, was an alibi that the applicant

was in Melbourne and, Your Honours, without reading -

his evidence is 70 and 74 of the appeal book - he

came over to the Barossa Valley on one day but

not a day related to the offences.

The evidence of his sister with whom he did not have a particularly close relationship is at

pages 126 right through to 148 to 149 but, again,

to summarize it for convenience, _ she furnished

an alibi for the applicant that he was in Melbourne

during relevant periodsbut that she was not able

to necessarily say what he did during the day.

Her evidence was that she would leave for work

in the morning and she would come home latish at

night, about 7 or 8 but, apart from that, her
evidence was to the effect that otherwise he was

in Melbourne in the house which she rented, I think.

McHUGH J:  Was her evidence attacked by the Crown, her

credibility as to - - - ?

MR TILMOUTH:  Well, her evidence was attacked but her credibility

in the sense of having a record or aligning herself

with Stone because of some feeling or affection

may have been put but as Your Honours will see

in a moment from what His Honour put to the jury, not seriously. His Honour, in effect, put to the

jury after criticizing the generality of her evidence

in the hours that I have just mentioned, that they

might have thought she was a pretty reliable witness.

She had a good job; she had no reason to side with

Stone. As it turned out, Your Honours, as well, when she gave evidence she had not been told in

advance what the critical or relevant dates were.

She had given evidence, as it turned out, without

knowing what dates were relevant to the charges

and, all in all, what we would say, and we submit this

is implict from what the trial judge said that she was

an impressive witness and that is why we say the

AlTl0/2/SH	15	21/8/89
Stone

trial judge in fact developed the alternative

theory it seems.

Your Honours, the critical passages of the

summing up are as follows but might I simply point

to paragraph 4 of our outline for the passages

in which the learned trial judge reminded the jury

of the Crown's basis; namely, that the Crown says

you can rely on the confession and you can rely on it because we have proved these other things

which confirm its truth and those passages are

mentioned right at the bottQnof page 1 and I
mention that in that way to save reading them.

Then I go to the summing up in its critical

respects, Your Honours. At pages 174 and 175,

His Honour mentions - and this is one of the passages

in that paragraph 4 - at the bottom of 174, the

last two lines:

With regard to Stone, the Crown case

is that Stone did ot go into any of those

premises but was the driver of the get-away

car. It is alleged he confessed in his

confession that he took his share of the

money, his share of the profits, of the illegal

enterprises. If you doubt his confession

you will acquit him, but if you are satisfied

beyond reasonable doubt about his confession

you will convict him.

Now, of course, that is against us in a way but

I mention that that came before His Honour developed

the alternative basis. His Honour then said:

I come now to deal with the alibi

evidence and to say something about the principles attaching to alibi evidence.

Stone's defence was that he was not the	driver on any of the occasions; and he has
supported that.... He says, and he called
evidence in support of it, that he was elsewhere,
in Melbourne, on each of the three days of
the robberies. He further says that the
alleged confession was fabricated and, in
effect, the black bag and the two guns were
unknown to him and were "planted" on him.

Now, Your Honours, what follows is a substantial

direction to the jury about alibi evidence, the importance of alibi notices which was important but I skip over it, again, to get to the heart

of the complaints that we state here and go to

page 185 which is really where His Honour first
puts the alternative basis and His Honour begins

by summarizing the defence case - page 185, line 3:

AlTl0/3/SH	21/8/89
Stone	16

Mrs Shaw -

Mrs Shaw was counsel for the applicant in the

trial -

argued that her evidence was convincing -

that is Clifford -

that as a woman she would know, or sense,

that he was in or about the house.

This is where His Honour then criticizes her in

terms - not in terms of credit:

Now, is that so? Do you think it is not

reasonable practical, if he wished it to be

so, as a resourceful man (and, you might think,

a man who does not want to disclose too much

about his movements) that he could be absent

from the River Street home from 8 a.m. on

one day until 7 or 8 that night, without her

knowing? She might not happen to see him

in the morning before she left and she might

not happen to see him that night, but still

firmly and honestly believe that he was at

20 River Street. Is it a reasonable practicable

solution of the apparent contradiction between

the confession. and the alibi that Stone was

using her and her address as his alibi, as

his cover, and that he did come to Adelaide

on each of the days of the three robberies?

This could be done by flying here or by driving

if he wanted to stay overnight or driving

over in the early morning of the day and driving

back at night. This could be done without

her being aware of his absence. For example,

if he left the home after she left for work,

left his car outside to give the appearance

of being home, took a taxi to the airport

which is half an hour away, flying to Adelaide
after making a phone call -

et cetera. So, His Honour first develops this

alternative basis which, as I submit, it was never

put to the jury up until this point of time at

all.

McHUGH J:  I see His Honour, on 186, about line 10, comments

on - - -

MR TILMOUTH:  Yes, I was coming to that and this, if the

Court pleases, is critical because this supports

my submission that the alternative basis is

predicated upon, to a certain extent at least,

the reliability of Clifford as a witness:

AlTl0/4/SH	17	21/8/89
Stone

Miss Clifford, you saw her in the

box. She holds down a responsible job.

She seemed to be a sensible, intelligent woman. It is for you to make what you

will about her being a witness of truth.

It is not for me. You might be reluctant

to say that she would come here to court and

tell lies just to save her brother's skin.

They are not as close as all that. She

referred to Stone's white car being left

outside the house. Well, you might think

that Stone might have been thoughtful

enough to leave the car outside the house,

even if he was not there, to give the

impression that he was. It was not - this

carwas a white car that he had taken over

from Adelaide to Melbourne when he went away. It was not the blue Ford which was ultimately

driven around the country. It was not the

blue Ford UHB-483, which was later driven around Victoria and up to New South Wales and brought back by the police from Broken

Hill. She did not, incidentally, mention

that when he came back about 8 May or so on,

he came back with this blue car -

and I skip that - there is some incidental detail

there - and go to line 9 at 187:

I mention these matters at this stage,

when dealing with alibi evidence and the

comments to be made on belated alibi evidence,

to indicate to you that the existence of a

Melbourne address does not mean that it was

insurmountable for him to be in Adelaide -

if, in fact, he was in Adelaide on the days

of the robberies, and if, in fact, he made

the confessions which the Crown say he did.

Once the alibi evidence has been introduced .....

it is not upon the defence to prove the truth
of the alibi. The onus of disproving the alibi
remains upon the Crown.
Et cetera.	Over on to page 188, His Honour gives

a perfectly proper direction about satisfaction

beyond reasonable doubt.

Now, my point in all of that is, Your Honours,

that it is implicit especially at the critical

passage at page 186 that the alternative thesis

is developed around Clifford being an impressive

witness.

His Honour then came later to this again and

in connection with the Antoniw vehicle at page 280.

This is a passage which His Honour Justice Matheson

read, in part, in his judgment. His Honour said this:

AlTl0/5/SH	21/8/89
Stone	18

He is careful about his identity.

For example, he wanted the Antoniw

identity for another car. there is a lot

of mystery about that car, as to whether he

came and stole it himself, whether he arranged

for somebody else to steal it for him or,
as he said, at least arranged for somebody
to get false identification papers and this

is what they came up with. It is not necessary
for you to really solve that mystery fully.

Now, with respect to those last two lines may it please Your Honours, we say it may not have been

necessary to resolve the mystery but that His Honour
should have given some and proper directions about

the use of the Antoniw material and, as I mentioned

earlier, he gave them none.

So, what you have now is the Antoniw documents

submitted on one basis on which His Honour has

undermined the original basis of reception and

as to which His Honour has further not given the

jury any direction about the proper use of that
material, how they should reason from the possession

of the documents backwards to theft or connection with the car at all and, in fact, what His Honour

says is, "It is not really necessary for you to

resolve!' Now that, we submit, is also an error.

At page 281, Your Honours, His Honour then develops again the alternative explanation.	He
says, at line 1:

Mr Peek argued that he said in the in the interview -

that is, Stone -

that he "stole" each of the three cars himself,

he took each of the three get-away cars himself.

That might be your view; he might have said

it and truly said it. So he might have taken

those cars. There is an alternative explanation,

however, which you might think is equally

attractive -

and I point out there that the quality of this

alternative explanation is one now that His Honour

is · elevating as an alternative basis on an

equal footing with the original theory of the Crown -

that he was not telling the truth in his

interview when he said he actually stole

them himself, he was giving a bit of

"misinformation", as he really had a contact

man in Adelaide whom he could ring from time

to time to arrange for a stolen car; because

AlTl0/6/SH	21/8/89
Stone	19

we know afterwards (much later, when it came

to the Antoniw car) he was able to ask a man
to get him a false I.D., and that man could

get him some fale I.D. That might have been

from a man who already had the fale I.D.

in his possession.

Then, His Honour goes into further details and at the bottom of page 281, at line 23:

He says he did not steal it himself; but it

was stolen on short notice.

That is, Antoniw's car -

His contact man was able to steal, or arrange

for the stealing of, the Antoniw car and the

getting of the I.D. he wanted -

p:ige 282 -

In that time, apparently, that contact man

was able to arrange for the purchase of jerry

cans and things like that ..... So he had somebody

useful here in Adelaide who can do these things

for him.

Now, in his record of interview, Stone

says that he stole the Messenger gun - "I

done the bust somewhere down near Oaklands

Road". "Somewhere". He seemed pretty vague

about that. Was that due to him having no

memory? Or was it due to the fact that he

knew from his contact man, that the contact

man had "done the bust" for him, got the

guns -

and so on.	Now, I went on to read that portion
about the guns, may it please Your Honours, for

the reason mentioned by Your Honour Mr Justice McHugh

earlier that one of the reasons Justice Matheson

used for applying the proviso was that there was other confirming material and one of the matters

His Honour referred to was the independent evidence

of guns and my point about that was the guns' theory

was postulated in with the theory about him arranging

somebody else together. The two went together

on the Antoniw car, in other words, and the guns did not stand independently and separately, apart from His Honour's alternative explanation to support

the reliability of the confessions~

McHUGH J:  Can I just ask you this.· Was it the _Gr.own case that

it was only by reason of his confession that they

found out about the gun?

AlTl0/7/SH	20	21/8/89
Stone

MR TILMOUTH:  I would think that would be their argument,

yes.

McHUGH J: And then they went to the person who had had the

gt.I'l~ stolen?

MR TILMOUTH:  Yes, I think that is right and, of course,

what His Honour is doing is putting something different

at that last page I mentioned about that.

In effect, what the Crown were doing so far

as they could were proving subsequent events which

tended to emphasize the reliability of the confession.

I may be speculating here but it seems an obvious

inference that they linked the Antoniw car later

and hence it was not put to him during the record

of interview that way.

McHUGH J: Well, it certainly does seem at first glance an

extremely powerful point, does it not? The police

say, "Here was this man. He confesses to us and

he tell us that he stole a gun from a place down

near Oaklands Road" and, as a result of that, the

police go and they find out that there has been

a robbery down at Oaklands Road.

MR TILMOUTH:	There was some dispute about that but if the subsequent events prove that true, of course it
is powerful confirmation.
McHUGH J:	Yes.
MR TILMOUTH:	But what His Honour is doing in relation to

the guns is putting them aside and linking with

his alternative theory about Antoniw and, in our

submission, that shows the force of what our complaint

is about this and also shows, with respect, that

His Honour Justice Matheson who was with us on

the main issue but against us on the consequence,

was wrong in applying the proviso for reason of

the confirmation of the guns because His Honour,

the trial judge, linked the guns with this theory.

McHUGH J:	Yes.
MR TILMOUTH:	I point out, Your Honours, that the evidence

was equivocal. There are arguments both ways about
whether they were stolen in the place mentioned.

On one view of the facts, they were; on another,

they were not. It was generally consistent but

it was not entirely consistent, if I can put it

that way but there were points both ways on that.

It was not conclusive by any means.

Now, Your Honours, without reading the rest

of it, His Honour dealt with this issue on the

AlTl0/8/SH

Stone 21 21/8/89

preceding_ pages, about arranging for somebody

else - at 283 - to do it; arrange by telephone -

lines 14 and 15, at 283, and at page 284,

His Honour said this - and again, this passage

was referred to by Justice Matheson - line 6 at

page 284:

You see, if a man can get a car at

short notice, as in the case of Antoniw, get

some false I.D., Antoniw's false I.D. and

Antoniw's licence, for Stone, get the jerry

cans and petrol and get the car filled up

with petrol and so on, it seems (if Mr Stone's

account is right) that he did have a contact
man in Adelaide, who might be the thief, or
who might have employed the thief to steal
the Antoniw car. And, of course, you might

be satisfied by the evidence that the thief

of the Antoniw car used a very similar method

of stealing cars, breaking into cars and stealing,

as the method of used by the thieves of the

three cars used in the three robberies.

Could all this be arranged, therefore, with

a contact man in Adelaide -

et cetera. Now, again, His Honour is emphasizing

this.alternative basis and can I emphasize,in turn

may 1t please Your Honours, that statement at

line 10:

And so on, it seems (if Mr Stone's account

is right) -

and the reason why I emphasize that is again to

make the point that His Honour's alternative theory

is based upon the fact that Stone and Clifford

may well have been right when Stone said he was

in Melbourne, at least up to a point and that,

again, I submit, underlines the error in applying

the proviso on the basis that the alibi evidence

was destroyed.

On the contrary, the alternative basis was

put on the very predicate that the alibi evidence

had strength, at least so far as it went on the

hours that I have already mentioned. So, I would

submit again, if the Court pleases, that the basis

of applying the proviso on that ground at least

is not available.~.Arid again, Your Honours, at

page 285, to complete the references on the Antoniw

car, at line 4:

I have dealt with the possibility (and

it is for you to say whether it is a practical

possibility) which could explain how

Miss Clifford could say one thing and Stone

AlTl0/9/SH	21/8/89
Stone	22

could say another.	I do not want to deal
with that again.	I do not want to deal again

with the detail of the evidence about the

plastic covers coming off all the cars, the

Antoniw car -

the plastic covers, I think, is the steering column

reference, Your Honours -

and the three other stolen cars, the breaking
of the lock on the steering wheel of the column,

and the apparent starting of the car without

an ignition key by pressing down on an exposed

bar which leads to the ignition. You have

heard all of that evidence and you have heard

all the arguments about it. It is for you

to draw your own conclusions about it. But

it is not necessary to prove, I suggest to

you, that Stone himself stole the cars even
though he said he did. It would be sufficient

if he arranged for somebody to steal them.

Again, I submit, although that might have been

a possible third alternative, it required further

directions on the chain of circumstantial evidence

and a proper direction on reasoning from recently

possessed documents as they may indicate either

theft or, alternatively, a link with the original

property, in this case, the Antoniw car.

McHUGH J:  What does His Honour when he says:

It would be sufficient if he arranged for

somebody to steal them.

MR TILMOUTH:  I think what His Honour is saying there is

if you were satisfied that Stone was linked - what

the possession of the documents indicates is that

Stone arranged for somebody to obtain those documents

for him. That may be enough.

McHUGH J:  What? To convict him of the offence or

MR TILMOUTH: Well, it seems to be saying that, if the Court

pleases. His Honour is leaving it in an indefinite

way without giving the jury some help as to the

proper reasoning process and I have made my points

about that.

So what you have in the end result, if the

Court pleases, not only an alternative basis which
counsel were denied the opportunity of putting

but the evidence about this Antoniw material which

was put on one basis and, on that basis, the original

similar fact basis His Honour gave no directions

but left it in some kind of alternative and general

AlTl0/10/SH	23	21/8/89
Stone

way without any help in traditional terms as to

the proper reasoning process that should be

entailed. So, eit:ha.r way, if the Court pleases, we

submit there is an error, even if you accept it

might be admissible on (a) similar fact confirms

the evidence; (b) Clifford only provides an alibi

to 8 in the morning and 7 at night or, (c) that

it is a general link. Either way, there are no

directions at all about that and either way, if

the Court pleases, apart from option (a), counsel

never had any opportunity of making submissions

which clearly they could and would want to make

on this important issue.

GAUDR0N J: While you are still on that issue, Mr Tilmouth,

can you refer me to the objection to the end of

the Antoniw documents?

MR TILM0UTH:  Not without going back to the original trial

evidence, Your Honour, but could I say this: there

was a long argument about it and the original objection

was that it was not even similar fact evidence and,

perhaps, we can get out the relevant pages on that but

there is no doubt that counsel made the preliminary

objection but it was not admissible, even on

proposition (a).

McHUGH J: Well, she has said that when she took the objection.

MR TILM0UTH:  Yes. There was a long argument about severance

and other matters. I have a reference here to

1613' of the original trial evidence, Your Honours,,and

I think there was some extensive argument about
that, as do the passages which I handed up when

I referred to Mr Peek's arguments to His Honour

clearly imply and, in fact, I think there is, in

those very pages that I handed up - Mrs Shaw, at

919 point 5 and, at 939, Your Honours, line 20:

I can give Your Honour an authority on

my objection to the car business -

meaning, clearly, the Antoniw documents and

Your Honours - again, I can check the page references but I think there was quite a deal of argument

about the admissibility and there is no doubt that
counsel raised it and it was fully argued.

McHUGH J:  At page 64 of our appeal book, which is 1613,

of the transcript, she objects to the evidence

of Mr Antoniw.

MR TILM0UTH:  Yes. There are a number of passages. I have

another reference at 940 of the original transcript -

I do not know if Your Honours want all these references but if Your Honour Justice Gaudron was

only concerned whether the objection was made, it

AlTl0/11/SH	24
Stone

undoubtedly was and, on option (a), as I have

already mentioned it, the similar fact basis.

GAUDRON J:  Yes, that is quite sufficient for my purposes,

thank you.

MR TILMOUTH:  Yes. In fact, at pages 940 and 941, Your Honours,

Mrs Shaw says:

I have raised it now. Does Your Honour

want me to argue it again later?

HIS HONOUR: No, you can repeat it later

but I cannot really rule on it until the

evidence is tendered. I indicate now that

when it is tendered I will make these

circumstances that exist at this time,

then I will allow it.

There was proper objection at the trial and it was

properly argued, there is no doubt - - -

DEANE J:	But if it is alleged that he confessed that on
three occasions he stole this particular type of
car using this particular method, why would it not be admissible that he had in his possession documents obtained from another car of precisely the same kind stolen, using precisely the same
method?
MR TILMOUTH:	Well, if the Court pleases, our original

objection was that it was not sufficiently

particular to be similar fact evidence in the

classical sense and largely what I would - - -

DEANE J:	But that seems to have been a question of fact
that was disputed at the trial. I notice that
Mr Peek referred to the modus as being strikingly
similar.

MR TILMOUTH:  Yes.

DEANE J: Well, unless you really want us to get involved

in the question whether the modus was strikingly

similar, what do you suggest we do about it?

MR TILMOUTH: If the Court ~leases, perhaps I should be

plain if I have not been; our argument now is

predicated on the admissibility of that material

as I have been calling it more recently, option (a)

although there were arguments otherwise. We argued

those:  They were argued at the trial and argued

in the Court of Criminal Appeal.

DEANE J: Well, that answers my query. I thought we were

getting off on to the suggestion that it was not

admissible.

AlTl0/12/SH	25	21/8/89
Stone
MR TILMOUTH:	No.	The arguments we mainly put in the

Court of Criminal Appeal were largely what had

passed between Your Honour Justice McHugh and

myself that, although it went to a certain extent

of the similarity, there was no evidence about

how unique it was but - - -

DAWSON J:  Your argument is, if it was admitted as similar

fact evidence and it was, then, the judge ought

not have done certain things.

MR TILMOUTH:  That is right and he ought to have dealt with

it properly in any event and given adequate directions

about its use.

DEANE J: Well, what if he had said to the jury what I, in

effect, said to you and that is, regardless of

whether he actually stole the last car or was

involved in it, the evidence is important because

it shows that having confessed that he stole this

type of car in this strikingly similar way, we
then find that he was involved somehow in the theft

of exactly the same model car in exactly the same

striking way. Would you then have any objection?

(Continued on page27)

A 1 T 1 0 /1	3 /	26	21/8/89
Stone

MR TILMOUTH:  No, provided there were proper directions

about that and provided counsel had notice so

that counsel could deal with it in their address

to the jury because - - -

DEANE J:  But, if nothing had been said, I would have

thought 12 jurymen or jurymen and women sitting

down and being sensible would have discussed it

themselves which means there would be something

for counsel to deal with anyway.

DAWSON J:	And, can I add to that. It is always for the jury to determine whether the similar fact
evidence or so-called similar fact evidence is, in fact, similar fact evidence; is it not?
MR TILMOUTH:	O]:,, yes, as a threshold issue, that is true.

DAWSON J: So that, it is something for them to consider.

MR TILMOUTH: True. But, if the ·Court_ pleases,, I am in pains to

point out there were no adequate directions about

even that preliminary basis and the whole Crown

case up till half-way through the sunnning up was

based on simply this option(~.

DEANE J:	Were directions asked for?
MR TILMOUTH:	Only in the passage that I have read where - - -
DEANE J:	Well, they seem to be directed to a rather

different matter, do they not?

MR TILMOUTH:  Well, it was directed to the alternative basis

undermining the admissibility of the evidence in

the first place on the original basis. And, of

course, what that implicitly means is, well, you now

have inadmissible evidence about that particular

issue.

But, Your Honours, the Crown had emphasized __ again

and again without any advertence at all to thi~

alternative theory or any other that we say the

confession - and we can confirm it because of these

subsequent objective facts - His Honour as I have

mentioned - and the passages are relevant in paragraph 4 - dealt with all of that and it all

went on that basis until His Honour developed this

alternative basis before the jury without notice

to counsel.

DAWSON J:  Why did it make the evidence inadmissible? It

was a different modus operandi but it was none the

less a system and none the less a system showing the

same striking similarities.

AlTll/1/JH	27	21/8/89
Stone

MR TILMOUTH:  Well, it rendered it inadmissible on the

original basis at least on directly confirming the

record of interview because it was predicated on

the fact that Stone was giving to use His Honour,

'a dis or misinformation to the police." His Honour
said that, that may be Stone was doing those kind of

things for some reason best known to himself.

DAWSON J:  It only confirmed the interview because it in one

aspect proved that the robberies were carried out in

the same way as he said they were in the interview.

But, it also went to show that the robberies were

carried out by the accused because it was he that

confessed at an interview. It did not just go to

credit is what I am putting.

MR TILMOUTH:  Yes, well, I understand that, of course, it

went to the - well it was probative material.

DAWSON J:  Yes.

MR TILMOUTH:  Exactly. And, incidentally, taat is another

reason why we complain of the application of the

provis.o;.

DAWSON J:	Well, then it was equally probative even though there may have been a shift if the jury
accepted it according to the suggestion of the judge
because it was equally a system which was equally
unique,  the only thing was that the stealing of the
cars was actually done by someone else at the behest of the accused.
MR TILMOUTH:	Well, if it had been properly presented on

that basis, it may well be that it was admissible on

that alternative theory. But, as I have pointed

out, Your Honours, none of this was put to Stone in

his evidence. Stone was found with a large number

of documents in his possession which were basically

receipts or bankcards and the like which indicated
his movements and whereabouts at relevant times.	He
was found in his possession with a note which had

this address where he was staying at Melbourne with

telephone numbers and the like on it which tended

to confirm his alibi materia~, to a small extent but

an important extent. There was no evidence

whatsoever of any regular use of airlines or any way

linking him with this theory; there was nothing of

a direct kind in the evidence at all which gave any
credence to this theory except simply and purely the

hours which Clifford could more conclusively say

he was there.

Now, if the Court pleases, we submit it is

basic and fundamental that if this alternative

theory was to be developed, even if after all the evidence was given, that counsel should have been

notified so they could address on it.

AlTll/2/JH	28	21/8/89
Stone
McHUGH J:	But, your point is this - maybe	I am

misunderstanding you - I thought your point was this:

t'hat the Crown said in his confession, he said, "I

stole these cars" and then the Crown said, "He also

stole Antoniw's car".

MR TILMOUTH:	Exactly.
McHUGH J:	That proved that the confession was true when

the police said that he had said he had stole the car.

MR TILMOUTH:	Yes.
McHUGH J:	But, then the trial judge said, "Well, it doesn't

matter whether he stole the car or not; as long as

he is implicated in it, that is sufficient for you".

Well, that seems to throw out the confession theory,

does it not?

MR TILMOUTH:  Exactly. The point is, Your Honours, if you

were addressing as counsel - and I do not want to get

into jury points - but, you could say, "Well, look,

if that's the basis, how about this confession?".

Then, that goes out and if the jury only has this

other circumstantial material, albeit probative, it

really was still a great gap between that kind of

evidence and convincing proof beyond reasonable doubt. And, my point simply is that there were matters of substance which counsel could have

addressed at length which they were denied the
opportunity of doing here.

DAWSON J:  The Crown cannot change its case in mid-stream

at such a point that it puts the accused at a

disadvantage and a fortiori the judge cannot

change the nature of the Crown case.

MR TILMOUTH:  That is right. Yes, Your Honours, if I am

not clear, I am not pretending at all that the

judge was bound by the conduct of the parties; or

let us assume for the moment that it was

admissible as well as (a) on (b) or (c); (b) being

His Honour's theory and (c) being, if I may call

it this way, Your Honour Justice McHugh's theory.

Assuming all of that counsel should have been given

notice somewhere or somehow so they could address

those issues if not in the evidence - and I have

already indicated perhaps some evidence could have

been directed at that - but certainly at the stage

of final address. And, Your Honours, this jury was

out - I know it is dangerous to reason from
verdicts what happened - but this jury was out

overnight for a long time.

McHUGH J:  23 hours, was it not?

AlTll/3/JH	29	21/8/89
Stone

MR TILMOUTH:  Yes, and they delivered a majority verdict.

Now, I do not make much of that but clearly the jury was troubled by the case.

BRENNAN J:  Mr Tilmouth, I am having difficulty in

identifying what precisely is the special leave

point which you are seeking to agitate. I

understand entirely that there might have been

several arguments that would be delivered as

of the way in which the trial judge proposed to	counsel to a jury, if you had been apprised beforehand
deal with the evidence and, indeed, the kind of
complaint that you might make to a Court of Criminal Appeal. But, could you put into as precise
words as possible, the special leave proposition
that you - as distinct, if it is possible, from the
general reference to the facts of the case. In other words, what is the proposition that the
facts of the case throw up?

MR TILMOUTH:	Well, what we would ask the Court to do in this case, which it has not gone so far as to do
in PANTORNO or KING or indeed, instead, in the SGIC, is this; to state that in the conduct of a criminal
trial, if the judge is to embark upon an alternative
basis of liability as here, that he should notify
the parties in sufficient time to enable them to
make their addresses to the jury accordingly.
Now, I acknowledge to an extent that that has been
dealt with in PANTORNO but that was a sentence case
where there was a shared bu- wrong view about the
sentencing basis and  to .. : extent it has been
dealt with in KING' s case bt.:.c KING was a different
basis of liability on the way the case developed.
Whereas here, what we say is a special component is
the very point that counsel made in the objection,

"Well-, look, it was admitted on basis (a)". Now, you

are putting a theory which undermines and

completely does away with that and, in our submission

that series of events gives rise to the special

leave point in a criminal case.

BRENNAN J:  Now, there is a problem,.is there not, and that is that

if evidence is admitted and is properly admitted in

a criminal case the weight and the inferences to

be drawn from that evidence are essentially matters

for the jury and the jury cannot be constrained in

the way in which they view that evidence by the

arguments that the parties put upon it. Why do you

say that the trial judge in this case did more, as

it were, than ruminate upon all the evidence that

was before the jury; did he actually put a case that

was not put by either party on the evidence before them?

Was it a new case or was it really just a reflection

on all this mass of facts that was before them?

AlTll/4/JH	30	21/8/89
Stone
MR TILMOUTH:	No, with respect, it was a new case.	The case

was fought on alibi, essentially, "I was in

Melbourne". He called a good witness, the judge said

as much as page 186 and in order to overcome that or

explain it His Honour, in my submission, developed

this theory for the first time. And, in our

submission, on the issue of weight, true it is that

if the original material is properly admissible on

one or another basis, it is a matter of weight. But,

that would only be an answer, with respect, where

there were proper and adequate directions on the use

of that material and I have endeavoured to submit to

this Court that there were no such directions about
the reasoning process which must be gone through

before Antoniw's evidence could be used.

McHUGH J:  On the alternative basis your alibi was much

weaker because some of the cars were stolen the day

before, were they not? Were they all stolen the

same day?

MR TILMOUTH:	Yes, all on the same day.
McHUGH J:	I see.
MR TILMOUTH:	They were all left at parking lots or in the

streets perhaps near the railway stations and the like.

But, they were all stolen between the hours of about
7.30 am and about 6.00 pm at night; obviously

cormnuters had left them in the morning and picked

them up at night. So, the answer is, yes, our case

was the weaker but it was still a fairly tight

exercise for Stone to have got over to Adelaide, stolen the cars, driven the get-away car in the

robbery and get back. It was theoretically, or

perhaps slightly stronger than that, available but it

was still straining things. But, I agree, if the

Court pleases, our alibi material as presented on the case as it was developed against us up until

that point was much stronger because we had this

general alibi and it did not confirm the record of interview; it was weaker on the alternative theory.

BRENNAN J:  But, once the alibi evidence was in the jury

had to consider, I should have thought, one of three

possibilities,:  one,, that the alibi evidence was

false beyond reasonable doubt; two, that the alibi

evidence was true and carried innocence as its

consequence; or, three, that the alibi evidence was

true but was consistent with guilt. Now, they

were bound to consider the third in any event, were

they not?

MR TILMOUTH:  Maybe they were, if the Court pleases, but the

whole evidence in the trial to that point had been
directed at (2), shaking the basis of the

confessional material. And, on the basis as the

AlTll/5/JH	31	21/8/89
Stone

trial developed up to the close of evidence,

although theoretically there was room in the

Clifford evidence, it was not really a practical option for the jury to that point. If Clifford

was believed or if the jury had a reasonable doubt

on the basis of her evidence as the trial had

developed up to that point the jury would have had

to acquit.

BRENNAN J:  Are you in a position to demonstrate that by

reference to anything that the Crown put or said?

MR TILMOUTH:  Only the material I have put already in the

handup where Mr Peek's argument clearly was, "we are

relying on the confession" and only that.

BRENNAN J:  Well, of course, but that really is not the

point, is it?

MR TILMOUTH:	No.
BRENNAN J:	The point you are making is

that the prosecution accepted the proposition that

the confession could not be true if the alibi

evidence was true.	Now, did the prosecution ever
say that?

MR TILMOUTH:  I would need to check the page references, I

think, Your Honours but I think as the Crown

developed it was that if they had a reasonable

doubt about the alibi evidence then they would

acquit. Mr Peek said as much in the earlier parts

of his submissions to His Honour at trial.

BRENNAN J:	That is about the truth of the lady's evidence?
MR TILMOUTH:	Yes, and that picked up the quotation I read,

I think,. at - .it might have been page 285.

Your Honours, I think I would need to check the

transcript on that but Mr Peek did, as I recall it

in his final address to the jury, put the Antoniw

evidence on a proper basis, namely, a direction

original facts beyond reasonable doubt and so on and so forth. But, substantially the case was: paragraph 4 again of our outline - the Crown case was confession as confirmed.

such as that one approved by this Court in

DEANE J:  Did he say anything about the Antoniw car in his

record of interview?

MR TILMOUTH:	No.
DEANE J:	It was not mentioned at all?

AlTll/6/JH	32	21/8/89
Stone

MR TILMOUTH:	No and as I emphasize~ that was never used as a get-away car; it was outside the period by
three weeks and it was never ever linked with
any robbery.
GAUDRON J:	You have, Mr Tilmouth, by way of convenient shorthand, referred to option (a), (b) and (c)
for the admissibility of the Antoniw evidence.
What I wonder is, did the trial judge leave it to
the jury on the basis of a further option (d)?
That is, did he leave it on the basis that even if
the jury were satisfied that the Antoniw documents
came into the possession of the accused by virtue of his having asked somebody to organize ID papers
they could still conclude that he was somehow
involved in the robberies.  And, if he did, it seems
to me that that really does take a very big divergence -
MR TILMOUTH:	Yes, it is a sweeping view._
McHUGH J:	That is why I asked you about those words, "It

would bE> sufficient"; what did His Honour mean

by that view?

MR TILMOUTH:  Well, I was looking back at those passages,

Your Honour. One was at pa~e 285 at lines 16-19

and the. "It. would be· stlffic1.ent" 1 I think, was at

page 280, where he said:

It is not necessary for you to really

solve that mystery fully.

Page 280 is one reference where it is left in a

general way, namely, that "You do not have to

solve that mystery".

GAUDRON J:  I think the real reference is at page 284 in

so far as it says: 

( if Mr Stone's account i.s right) -

that is in parenthesis in the middle of the page -

that he did have a contact man in Adelaide,

who might be the thief, or who might have

employed the thief to steal the Antoniw

car.

And, on that basis, one seems to be moving

further away from anything that would link this

accused to the cars.

MR TILMOUTH:  Well, the highest I can put that, Your Honour,

is this and the answer to Your Honour is, there is

a danger 'With an option ( d) and that danger- c·omes

AlTll/7/JH	33	21/8/89
Stone

from that passage at page 284.

It is not necessary for you to really solve that mystery -

passage at page 280 and the passage at page 285: But it is not necessary to prove, I

suggest to you, that Stone himself stole

the car ..... It would be sufficient if he

arranged for somebody to steal them.

That is, Your Honour Justice McHugh's passage. So,

there is a real danger, in my submission, that

this evidence was left in a generalized way without

any adequate directions and, of course, in that

sense it was also prejudicial as well as probative.

It clearly was probative in the way it was put.

Indeed, on any of the options it was led as

probative material and that is the very point about

it.

GAUDRON J:  Well, on option (d) it might not be.

"MR. TILMOUTH: It might be simp_ly credit and that is another

danger with it, of course. There was no direction

about impermissible use as distinct from permissible

use. Your Honours, the error that we submit,

therefore, in the Full Court is this and

Their Honours dealt with it in different ways - by

the way, Your Honours, could I mention as an

alternative to Your Honour Justice Brennan the

presiding Judge on the special leave point, we do

have an argument, of course, on the SUMMARY OFFENCES ACT

and if constrained to do so we would ask this Court

as a third option to reconsider, or consider its

role as an appellate court in criminal matters

whether LIBERATO's case is right; there are

comments from Your Honours in recent times in

FISHER's case and also in MORRIS' case about the

role of this Court. And, what we would say about

this is, that if· the CourtW!iiS with us on the merits but

felt that it did not raise a special leave point,

our argument is that the justice '.Jf the case would

require this Court to intervene in any event. So,

I did not complete my answers to Your Honour the

presiding Judge but I would add those as well.

But, what we submit the error is, giving rise

to the special leave point on this issue, begins

with Justice Jacobs at page 314 where His Honour

said, towards the bottom at about point 8 that:

The jury ..... was clearly entitled to infer that the same person was responsible for,

or at least had a hand in, stealing the

three cars. Stone, in his record of

AlTll/8/JH	34	21/8/89
Stone

interview by the police, and upon which

the Crown relied, admitted that he was

that person, but in his defence he

sought to deny that fact, and to deny

making any such admission.

So, His Honour is saying, generally speaking that

it was admissible. And, over to pages 315 and 316,

Your Honours, His Honour said at page 315, again

at about point 6-7:

The learned trial Judge felt obliged to deal with this possibility, in case the jury could not reject it, but in my

opinion he was fully justified in dealing

with it in a way which was not fatal to
the Crown case and in a way which pointed

to the probative value of the Antoniw

evidence, even on this alternative

possibility, for it was a possibility

that did not destroy the significance of

an identical 'modus operandi' that could not

reasonably be mere coincidence. It was in

that context that the learned Judge said -

and His Honour quotes a passage which is at page 284,

page 316:

In short, it was open to the jury to conclude

with respect to the stolen cars used in the

robberies that if Stone did not himself steal

them for the purpose of committing the

offences charged, he was at the very least

implicated in the robberies as an

accessory before the fact. There is in my

opinion no sound basis for challenging the

impugned direction.

Now, what we say about that in a word is, if the

Court pleases, we argue the procedural irregularity

as well, as we have argued it here, and His Honour

has simply not dealt with that.

DAWSON J:  I am not sure what the procedural irregularity was.

The judge made a comment - whether it was ill advised

or not is another thing - and presumably he gave the

ordinary direction as to comments of his; it was

a speculative comment but it was a comment; the jury

could take it for what it was. Where is the

procedural irregularity?

MR TILMOUTH:  Well, in denying counsel the opportunity at all

to address the jury on any of the alternative bases.

DAWSON J:  I suppose you could say that about any judges

cmmnent.

AlTll/9/JH	35	21/8/89
Stone

MR TILMOUTH:  Well, it depends how material, of course, it

is, if the Court pleases. If it is of no material
difference or a matter not of substance but of mere

conjecture or comment, well then, of course, the

Court 'WOUld dismiss an appeal. But here, clearly,

it was a substantial new basis of liability which,

if I could speak colloquially, pulled the rug out

of the entire defence case by finding a way around

what was obviously prima facie convincing evidence

from Miss Clifford.

DAWSON J:  Well, you put it that way but, on the other hand,

it may be said to be just a comment that was open

on the evidence, no one else chose to make it but

the judge did and left it to the jury.

MR TILMOUTH:  It was more than a comment, with respect. It

opened up a completely new basis of liability.

DAWSON J:  But they have got a new way of looking at the

facts but if that was available on the facts, what

is wrong with that?

MR TILMOUTH:  Because counsel were not notified, if the

Court pleases, and it was a substantial point -

DAWSON J:  That brings to the point, if the judge sees

a different way of looking to the facts from those

which have beeen put by counsel, is he bound to

mention it to them beforehand?

MR TILMOUTH:  If they are likely or they could have a

material difference on the outcome of the case. detail small points that will be made but here this

was a new basis of liability, if the Court pleases,
which the parties had not addressed until that point

of time. It was sought ;- the issues were tried on

the reliability of the confession.

BRENNAN J:  I can understand that if you could demonstrate

that the Crown had acknowledged that the evidence

of Miss Clifford was inconsistent with the truth of
the confession. But, if not, then the compatibility

of the confession with Miss Clifford's evidence must

have been a live issue.

MR TILMOUTH:	Well, that is true. There was a problem, of course, with notice because Stone would not give an
alibi notice and he was severely criticized for it
and I have not argued about that. But, at the end
of the day, if the Court pleases, the strength of the alibi still resides in the power of the witnesses
who were called or their value or their demeanour
or their credit worthiness.  Now, the Crown possibly

AlTll/10/JH	36	21/8/89
Stone

could have sought an adjournment to check the

alibi; there are a number of options of a
procedural kind which would overcome that kind of

objection. But, my point is, if the Court pleases,

agai~ the theory that His Honour developed is based

upon the value of Clifford's evidence; that it was

credit worthy and there is nothing about that credit

worthiness,which is a new matter despite Stone's

failure to give alibi notice. It stood or fell on

its own value as she was as a witness in the box.

DAWSON J:  This is just saying· the sa~e thing.. in · .

another way, perhaps I should not labour it, but, if there is a view of the facts which is clearly open on the evidence and counsel had neglected to put

it but it is open to the jury because it is a fair

view, the judge would be neglectful of his duty if he

did not point it out to them, would he not?

MR TILMOUTH:  He may be but, with respect, the authorities

say that he should notify the parties so that

they - - -

DAWSON J:  Well now, should we not have a look at those

authorities?

MR TILMOUTH:  Yes, I will come to those, if the Court pleases.

The first of them is the civil case of

STEAD V STATE GOVERNMENT INSURANCE COMMISSION, (1986)
161 CLR 141. This was a damages case, Your Honours,

in which,to summarize it, I hope not inaccurately,

the trial judge told counsel that counsel need not

address any further on the evidence of a particular

doctor and then His Honour went on in a reserve

judgment to find adversely to the submission that

counsel was about to make and this Court held that

that was a procedural irregularity which required a

retrial and the relevant passage is at page 145 and

it is a judgment per curiam. The Court said at

about point 3 after the indented passage:

The general principle is, however, subject to

an important qualification which Bollen J

plainly had in mind in identifying the

practical question as being: Would further

information possibly have made any difference?

That qualification is that an appellate court will not order a new trial if it would

inevitably result in the making of the same

order as that made by the primary judge at

the first trial. An order for a new trial in

such a case would be a futility -

and I miss the next passage and go on to point 6 -

AlTll/11/JH	37	21/8/89
Stone

Where, however, the denial of natural

justice affects the entitlement of a

party to make submissions on an issue of

fact, especially when the issue is whether

the evidence of a particular witness should

be accepted, it is more difficult for a

court of appeal to conclude that

compliance with the requirements of natural

justice could have made no difference. True

it is that an appeal to the Full Court from

a judgment or order of a judge is by way of

rehearing and that on hearing such an appeal

the Full Court has all the powers and duties
of the primary judge, including the power
to draw inferences of fact ..... However, when
the Full Court is invited by a respondent to

exercise these powers in order to arrive at

a conclusion that a new trial, sought to

remedy a denial of natural justice relevant

to a finding of fact, could make no

difference to the result already reached, it

should proceed with caution. It is no easy

task for a court of appeal to satisfy

itself that what appears on its face to have

been a denial of natural justice could have had

no bearing on the outcome of the trial of an

issue of fact. And this difficulty is

magnified when the issue concerns the

acceptance or rejection of the testimony of

a witness at the trial.

Now, we submit all of that applies here. What I

would submit about that passage is this: firstly,

there is no difference in principle between criminal

and civil cases, perhaps a fortiori in criminal

cases where liberty is at stake.

DAWSON J:  But, in that case the judge stopped counsel.

MR TILMOUTH:  Oh yes, I agree the facts are distinguishable

and stronger.

DAWSON J:	Well, quite different.
MR TILMOUTH:	Well, they are but here counsel was not stopped; counsel did not know and in the end result the
consequence is the same.
BRENNAN J:	To make the analogy appropriat~ one has to find in the present case the situation where counsel was
led into abstaining from making a submission by
reason of something that was done during the course
of the trial.

AlTll/12/JH	38	21/8/89
Stone

MR TILMOUTH:  Counsel did not make any submissions on

alternative bases.

GAUDRON J: Neither counsel.

MR TILMOUTH: Neither counsel, neither Stone nor Rodwell because - - -

GAUDRON J:	Nor the prosecuting counsel.
MR TILMOUTH:	No, nor the prosecution indeed, exactly, on the

basis that it was here as the confession it is

reliable.

GAUDRON J:  And, do you not go further and say on the basis that

it was left there may have been submissions that could

have been put to the effect t11at on that basis there

were hypotheses other than guilt available.

MR TILMOUTH:  With respect, I am obliged to Your Honour,

because, of course, that is so. If Stone had

arrange, for example, another person, why could not
the driver of the get-away car as a reasonable

hypothesis consistent with innocence,for example,

have - - -

McHUGH J:  Well that is what I was going to put to you. That is

why it seems to me to be a totally different case

because the alternative case, when it is analysed

must come to this: your client got somebody to arrange

the stealing of a car. Now that is all it does.

MR TILMOUTH:	Yes.
McHUGH J:	The fact that your client got somebody to steal
Antoniw's car and give the contents of it to your
client does not seem to me to prove anything.
MR TILMOUTH:	No, but - - -
McHUGH J:	But your client was driving any of those other
three cars that were stolen by somebody who ex hypothesi
is not your client, took it.
MR TILMOUTH:	That is right. Yes, and there was some evidence-

again there are arguments both ways about this, of an identification kind, which on balance, we would

say was rather contra-indicative of the applicant

as the person involved. But that is really a jury

point. But,with respect, Your Honour Justice Gaudron

is quite correct, this new theory or any of the other

basis open up in their turn a series of other

hypotheses which are consistent with innocence.

GAUDRON J:  And on which not even the prosecutor had

addressed.

A1Tl2/l/FK	39	21/8/89
Stone

MR TILMOUTH:  Exactly. Now it is true~ may it please

Your Honours, that I cannot say or point to a page

in any of the materials or the original trial

evidence where counsel was actively misled or

stopped or whatever, but sub silentio the whole case

was fought on the strength of this confession, an

alibi was produced to try and refute it and it was

prima facie a reasonable alibi. It was not

conclusive, but it was far more conclusive than

any on any of the alternative bases.

DEANE J~ Was an argument any way similar to what is now being

put to us put to the Court of Criminal Appeal.

MR TILMOUTH:  Yes.

DEANE J: Because the Court of Criminal Appeal seems to have

thought that what was being put to them was what was

put to the learned trial judge, and that is this

alternative simply was not open because if it were

accepted the evidence was not

admissible.

MR TILMOUTH:  That is why, with respect, I started reading

Justice Jacobs and said, with respect, he missed the point.

DEANE J:  That is what Mr Justice Matheson says also and

that is what counsel said at the trial.

MR TILMOUTH:  Yes. But,with respect, Hid Honour Justice Matheson -went

further:thah that and really picked up the procedural

consequence at 353 where His Honour said, at the

bottom of 353 after the objection of counsel which I have

read:

I think it was unfortunate in this case, that His Honour put this alternative possibility to the jury without previously discussing it with counsel (see the remarks of Starke J. in

THE QUEEN V TORNEY.

Now the very point that I have been arguing here again and again we argued in the Court of Criminal

Appeal. Counsel was denied notice and we cited

TORNEY's case to that effect, it is a Victorian

Court of Criminal Appeal decision.

DEANE J: Except that point was not taken at the trial, was it?

MR TILMOUTH: Not in terms.

DEANE J: Well, not at all.

MR TILMOUTH: Well, only so far as that passage at 383 is concerned.

But what Mrs Shaw was saying implicitly, Your Honour,

was, ''Look we have got a new basis of liability here.

AlT12/2/FK	40	MR	TILMOUTH	21 / 8 / R9
Stone

We have argued about Antoniw and you have undermined the original basis of it." But I agree

she did not say in words,"Well look, what about all

these things I could have said to - - -"

GAUDRON:J:	She just put it differently.
DEANE J:	She set a new tack, but she set it. on that basis

it was not admissible, and that is the point that

Justice Matheson comes to at the bottom of page 353.

MR TILMOUTH: Yes he does. Yes,at 353:

But, be that as it may, in my opinion,
his Honour's hypothesis completely

undermines the reason for the admission of

the evidence in the first place.

His Honour agreed with us, and at 354:

If the evidence was to be admitted, the

trial Judge should have told the jury,

that it could be used in the way the

Crown Prosecutor put it to them, but then

only if they were satisfied beyond reasonable

doubt of these facts, namely that Stone

entered Antoniw's locked Commodore without

causing damage, that he started the car

without an ignition key, after interfering

with the car in the vicinity of the

steering column and that he stole the car.

Now, all of that addresses the submission that I

put to the Court of Criminal Appeal when I put here

that there were no directions on any alternative basis

or the original basis of how to use the Antoniw
evidence, and in the Court of Criminal Appeal we

read parts of PERRY's case and SUTTON's case and

I do not bother this Court with that. But what

we said, in effect, in the Court of Criminal Appeal

with a direction like that that this Court approval in

SUTTON should have been given and that is what

His Honour is saying at the top of 354.

And finally, Your Honours, while dealing with

Justice Matheson on the application of the proviso,

His Honour said at the bottom, or the third part of

page 354, that any prejudice to the appellant was

minimal in light of the appellant's own evidence

of bad character. Now we accept that the applicant

did put character in issue, but our point about

that is that the Antoniw evidence was used as

probative. If this was only an application about

the prejudicial effect outweighing probative value,

we would be out of court, but the Antiniw

evidence was let by the trial judge on a probative

basis and bad character only ever goes to credit,

A1Tl2/3/FK	41	21/8/89
Stone

it does not go to probative material. Secondly,

His Honour says, there was evidence of which

the police could not reasonably have been aware at the

time, which was true, but to a limited extent,

which could not have been fabricated. And the

example His Honour gives is the example of stealing

the shotgun used in the robberies from the witness

Messenger.

Now, as I have mentioned already, His Honour

lumped that shotgun issue in with his alternative

basis, so, with respect, His Honour was wrong there

because the shotgun was used as part and parcel of the

alternative theory.

BRENNAN J:  I am not following that I am afraid, Mr Tilmouth,

what do you mean by that?

MR TILMOUTH:	Your Honours, His Honour partly applied the proviso on the basis that there was confirming
evidence of the confession independently of the
Antoniw material, and the particular he gives there
is the stealing of the shotgun.  Now, at 282, in a
passage I have read, His Honour said, line 11 -
or perhaps line 6 :.

Now, in his record of interview, Stone says

that he stole the Messenger gun - "I done the

bust somewhere down near Oaklands Road".

"Somewhere"	He seemed pretty vague about
that.	Was that due to him having no memory?

Or was it due to the fact that he knew from

his contact man, that the contact man had

"done the bust" for him, got the guns for

him.

etc. And what I am submitting is the very material

on which His Honour has - or some of it - he has

used to apply the proviso was, in fact,the very

material which the trial judge lumped in the

alternative theory basis, and His Honour, also,

Your Honeurs, at 355 said, finally, after referring

to the summing up - His Honour said about that

summing up, incidentally at the bottom of 354: Moreover, it is relevant to notice that

His Honour did say to the jury towards the

end of his summing up (p. 105) -

and His Honour then refers to a generalized passage

which is unexceptional, but that occurred at page 105,

Your Honours, of the summing up of 150 pages~ Although,

true,it is on the same morning that His Honour sent the

jury out, but it was not at the end of the summing up

with respect, it was about almost, exactly, two-thirds

of the way through.

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BRENNAN J:	Mr Tilmouth, could I take you back then to page 282
and  what you say the judge lumped in

together with the alternative basis. The

ground of your attack on the alternative basis

is, as I understand it, this, that be it so

that there is a contact man who might acquire cars in Adelaide for the accused, it does not

follow that the accused used those cars to be

a get-away man in the robberies. But if you have
got evidence which, on one view of it, is that he

has a contact·man who has get-away cars and he

has a contact man who has guns and the gun was

used in the robberies, well, it is a different

kettle of fish,is it not?

MR TILMOUTH: 

That may be true, but my point was that His Honour

was applying the proviso partly because he said
elsewhere the record of interview is safely confirmed

and my simple point was on the gun issue which
His Honour uses to evidence that, His Honour the

trial judge in fact uses the gun issue on the

alternative theory.

BRENNAN J: 

Be it so, but whichever way you look at it, if your

client told the police that which they did not know,

that the gun used in the hold up had been acquired

by him directly or indirectly, from a place outside of

central Adelaide, how is it that that is not

cogent evidence justifying the application of the

proviso?

(Continued on page 44 )

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MR TILMOUTH:  Well, it could be cogent evidence on the

original basis but it does not answer the alternative

basis, with respect.

BRENNAN J:	Why not?
MR TILMOUTH:	Because His Honour put it to one side at

page 282 and said, "Well, the fact that we have

confirmed this gun theory is neither here nor

there so far as my alternative basis is concerned.

Perhaps he arranged for somebody else to get it".

And, on that theory, it does not confirm the record of interview, with respect.

BRENNAN J:  But the relevant implication of your client is

not in the ''bust job"when the gun was acquired but

the utilization of the gun when acquired.

MR TILMOUTH:  Well, that may be so, but it does not confirm

the record of interview as originally it stands.

It confirms it on an alternative basis.

BRENNAN J:  Well, it puts it on the basis that once he said

that in the record of interview, that is original

evidence which is cogent to establish your client's

guilty involvement in the crime charged.

MR TILMOUTH:  Yes, I can accept that but, with respect, His Honour is applying t

proviso- to a piece of evidence which His Honour

the trial judge has used on a different basis

altogether.

BRENNAN J:  Forget that for the moment. The proposition is

that the trial judge has erred in the conduct of the

trial so that it is a case for the application of

the proviso. The question is whether the evidence

is so cogent against your client that the proviso

should be applied.

MR TILMOUTH:	Yes.
BRENNAN J:	Here is evidence in which your client tells the

police for the first time that the gun used in the

bank robbery or the robberies was acquired by him,

it matters not how, from South Adelaide. Now, why

is that not cogent evidence justifying your client's

involvement in the crime?

MR TILMOUTH:  It is cogent evidence, I suppose, but the

same points that could be made as could be made

about Antinow.

McHUGH J:  But is not your point that your client denies he

ever made the confesssion?

MR TILMOUTH:  That is right, thank you, Your Honour.

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DAWSON J:  But, is not this independent evidence proving

he did?

MR TILMOUTH:  Well, it can do, but if it is put on the

alternative basis it tends to prove he did but

he is liable for some other reason.

McHUGH J: Yes, but it is not on the alternative basis

because	in the confess ion he said, "I broke
into the place and I got the gun".	Now, the trial

judge is saying, well there is a contact man who

may have broken in and got the gun. The

contact man theory does not support the confession

theory.

MR TILMOUTH:  Your Honours, perhaps I am putting it

clumsily. Could I put it colloquially? What I am

saying, with all due respect to His Honour

Justice Matheson, he is having an each way bet on

the gun issue; perhaps that most clearly,

perhaps .... -puts it, but that is what I am saying.

Either it is admissible on one basis or the other

but you cannot have it both ways.

BRENNAN J:  Well, the question is whether or not there is

a dividend payable on that horse.

MR TILMOUTH:  Well, I am not a betting man, Your Honours,

especially when it comes as the High Court.

McHUGH J:  But, why is there not a stronger point against you?

After all, this is a case of a typed confession

signed by your client and his defence is that he

was too drunk and under the influence of drugs?

MR TILMOUTH:	Yes.
McHUGH J:	Well, the evidence against that was pretty

telling, was it not, apart from - - -

MR TILMOUTH:  It was but if the Court pleases,if all of this

alternative bases is right, then all of it in one

respect tends to undermine the value of the

confession and who is to know, if the Court pleases,

whether the jury might not have otherwise thought

that Clifford was a very impressive witness and

acquitted nevertheless? Now, this Court would have

to be convinced, or rather the prosecution would

have to show, that this alternative basis could not

have affected the jury result. And, once you accept

the basis on which His Honour had put the alternative

theory, that is that Clifford was a good witness, in

my respectful submission,the Court cannot say that.

And, that gets to my final point on the proviso,

Your Honours. Justice Matheson said at page 355,

in those last three lines:

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Stone's alibi defence was virtually,

if not wholly, destroyed for the reasons

put to the jury by His Honour -

and my point about that is, as I have endeavoured to

outline already, that the alternative basis rather

was put on the fact that the alibi evidence, so far

as it went, had great strength.

DEANE J:  Mr Tilmouth, could I just ask you this and I am

taking you back, I am sorry, but what if the trial

judge had said to the jury, "Look, the Crown has

put the worse possible case and the defence has put

the best possible case but you might in your wisdom

decide that while most of the confession should be

accepted in one respect it's questionable and that

is he may have been protecting a contact man whom,

for reasons of fear or some other reason, he wanted

to protect in the confession. Now, even if you

decide that, the evidence that the other car was

stolen and the evidence that the gun was stolen is

strong corroborative evidence of the substance of
his confession". What objection would you have had

to those comments?

MR TILMOUTH:  On the basis of the original thesis of the

Crown, probably none because that is the way, in fact,

the Crown was saying the case had developed; that it

was corroborative, it did confirm, it proved the

truth of what he had said. But, that was not what

the alternative theory was all about. Implicit in
the alternative theory was that the record of

interview was unreliable; it was disinformative, as

His Honour - that is not quite the word but it meant

the same, "disinformation;'

DEANE J:  But in that it protected the contact man.

MR TILMOUTH:  Yes, but the point was, Your Honours, whilst

on the one hand I accept entirely that all those

objective subsequent matters in so far as they

confirm or tend to confirm the confession was true,

they are probative and they are corroborative.

But, on the other hand, you had an alibi which on the

face of it as the case was presented to the point

at the close of evidence and the close of counsel

addresses 1 was getting very close to- I hasten to not

say 'total', but it certainly was capable of raising a

reasonable doubt in the mind of the jury. And my

point is at bottom that His Honour's basis of putting

the alternative theory to the jury was on that very

thesis, that the alibi evidence was fairly strong so

far as it went. And, that is why Justice Matheson

was wrong in saying, with respect, that His Honour

had mentioned that the alibi evidence was destroyed;

it was not. His Honour mentioned in at least two

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passages, Your Honours will recall 186 to 187,

where he talked about Clifford, as I have put it,

being a good witness and later where he put that

passage about, "If Stone is right" et cetera,

the very a priori basis of the alternative

explanation was that the alibi evidence was sound

so far as it went and obviously there was a great

deal that counsel could have said about that if

evidence could not have been called. And that must be

borne in mind, in my respectful opinion, accepted

that there may have been confirming evidence but

Stone fought the case on the basis of alibi and that

was pulled out from under him without notice or

advance warning.

Your Honours, two other references, if I may:

there is PANTORNO's case - - -

DEANE J:  Well, can I just ask you one final thing? Was it

put to the Court of Criminal Appeal that His Honour

suggested that the alibi evidence was consistent with the accuracy of the confession rather that

His Honour should never have suggested that?

MR TILMOUTH:  By the Crown, Your Honour?

DEANE J:  By you. Was it put that His Honour should never

have suggested that the substance of the

confession could be reconciled with the alibi

evidence, that is as qualified by the contact man?

MR TILMOUTH:  No, I do not think it went that far. Our main

point was originally inadmissible on a similar fact

basis. Secondly, if it was admissible the basis of

that admission went with the alternative theory; and

thirdly, well, why did he not tell counsel about it

and the procedural unfairness. I have got my

written outline here, I can check that, but our whole

point was, I think, that in the way it developed we

were denied procedural fairness. I have put here, and if it stayed in on any basis I am reminded, as	there should have been appropriate directions
according to that basis.

In PANTORNO, (1989) 84 ALR 390, and

Your Honours, I will try not to deal with the facts

in order to save time, but it was a sentencing case

in which counsel had taken a wrong view of the basis

of sentencing - that is very bluntly put - and the

Court said this at page 395 and this is in the

judgment of His Honour the Chief Justice and

Your Honour Justice Brennan, line 28:

When the parties to an adversarial proceeding

agree on a proposition of law and conduct

their case on that basis, their agreement does

not bind the trial judge. If the judge

A1Tl3/4/JH	47	21/8/89
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determines the law to be different, he may

apply the law as he determines it to be,

but he must inform the parties of the view

he has formed when that is necessary to

give them an opportunity to address new
issues arising from the judge's

departure from the proposition of law on

which the case was conducted. Otherwise

both parties are taken by surprise .....

Especially in the criminal court -

I underline this sentence -

there is a need to ensure that the accused

or convicted person is not taken by

surprise: he must be given a fair

opportunity of meeting the case against

him so far as that case has not already

been put to him for answer. The concession,

if accepted, places a different complexion

on the proceedings in the County Court.

Now, I do not argue the facts of PANTORNO,

Your Honours, and at pages 401-402, there were

statements to like effect by Your Honours

Justice Deane and Gaudron with His Honour Justice Toohey.

At the bottom of page 401, line 50:

As has been said, the applicant's present

claim is that the effect of the

combination of events and circumstances is

that he has been denied procedural fairness.

The applicant submits that the Court of

Criminal Appeal should not, when it overruled

BRIDGES, have simply acted on the basis of the applicant's failure to call evidence

before the sentencing judge "to enable him to be satisfied as required" when the basis upon

which the proceedings at first instance had

been conducted and the then state of authority

were that such evidence was unnecessary to

bring the case within s.73(l)(b). Once BRIDGES

was overruled, procedural fairness required

that the applicant be given some subsequent

opportunity of calling evidence to make good
his claim that the small quantity of heroin
found in his possession had been for his

own use.

And, at line 19, Your Honours:

In all the circumstances, it was incumbent

upon the sentencing judge to indicate to

counsel his lack of acceptance of the

underlying assumption upon which the

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submissions upon sentence had been made.

This was particularly the case when counsel

had asserted, without dissent from the

Crown or comment by the sentencing judge,

that the small quantity of heroin found in his client's possession had, in any event,

been for the applicant's personal use.

In the result, the conclusion is unavoidable

that the applicant was effectively denied any

adequate opportunity at first instance to
call the evidence which it was necessary to
call in a context where the sentencing judge
inadvertently failed to follow BRIDGES.

The denial of that opportunity to call

evidence constituted a denial of procedural

fairness which vitiated the sentencing

judge's finding that, by reason of absence

of evidence, he was not satisfied of the

absence of any purpose relating to

trafficking.

I acknowledge on the facts of that case that it was

a little stronger because it goes back one stage

through addresses to evidence but the principle, in

my submission, is just the same. And, I have also

submitted as well that it may well have been that

counsel wanted to call further evidence on the

alternative basis if there had been notification.

The other case, Your Honours, is KING V REG, (1986)

161 CLR 423. Again, I avoid reference to the facts,

Your Honours, to save time and go to the principles.

At page 429 at the bottom, Your Honour Justice Deane

said - and Justice Mason, as he then was, and

Justice Murphy agreed with you - the second to last line:

Put differently, the jury's verdict of

guilty against the applicant on the basis of

a Crown case which was not raised against

him until the evidence had been completed,

addresses had been made and the summing up

was in progress was a miscarriage of

justice. That miscarriage of justice occurred

because the learned trial judge wrongly

acceded to the Crown's request to leave to

the jury a case that had never been made

against the applicant and that he had had no

proper opportunity of answering. But for it,

the applicant would have been finally

acquitted of the charge of murder. It would

be to compound that miscarriage of justice to

treat the verdict of guilty which was wrongfully

obtained as the basis for subjecting the applicant to a new trial on that charge.

A1Tl3/6/JH	49	21/8/89
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Again, Your Honours, the facts can be distinguished and perhaps in KING it is stronger but the

principle is just the same and there were like

comments, in my respectful submission, by

Your Honour Justice Dawson at page 432 at about

points 6-7 and at the bottom third of page 435

and perhaps over to page 436.

Now, Your Honours, what we submit, putting

aside the issue of the SUMMARY OFFENCES ACT, or any
question of LIBERATO's case,is this; that this

case does require the intervention of this Court because although there are cases in the criminal

jurisdiction, namely PANTORNO and KING of this

Court which establish the general principles, we

submit in this case there clearly has been an

unfairness ·of a substantial kind. We submit it is

compounded by the uniqueness of the fact that you had evidence admitted originally on one basis and

then late in the piece an alternative basis was put

which undermined the reception of that evidence as

originally put and, in our submission, therefore, this is a case where this Court should intervene

even if it considers that no special point arises.

If the Court pleases, they would be my submissions

on the merits but if the Court was against us on the

merits, of course, that would be the end of the

matter. But, if it thought there was merit in the

argument but it doubted that there was a special

leave point or, more particularly, that this Court

should interfere, I would ask to be heard on the

SUMMARY OFFENCES ACT point, if the Court pleases, and

the role of this Court as pronounced in

LIBERATO's case.

BRENNAN J:  Perhaps you should do that tomorrow morning in

any event, Mr Tilmouth, because the conduct of the

proceedings are necessarily in your hands and the

question will arise at the end of your argument as
to what course this Court should take.	So that, if

you have some argument of substance you wish to

present, perhaps that will be the time to do it.

MR TILMOUTH:  If the Court pleases.

AT 4.43 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 22 AUGUST 1989

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