Tait v The Queen; Yooyen v The Queen

[1993] HCATrans 127

Jal.

~ -,~·i-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl48 of 1991

B e t w e e n -

DONALD ROY TAIT

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S229 of 1992

B e t w e e n -

PARAPHASSON YOOYEN

Applicant

and

THE QUEEN

Respondent

Applications for special leave

to appeal

Tait 1 20/5/93

MASON CJ
DEANE J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 MAY 1993, AT 2.05 PM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC:  May it please the Court, I appear

with my learned friend, MR S.J. ODGERS, for the

applicant, Donald Tait. (instructed by Marsdens)

MR M.J. NEIL, QC:  May it please the Court, I appear for the

applicant, Yooyen.	(instructed by John Bettens &
Co)

MR M. WEINBERG, QC: If the Court pleases, I appear,

together with my learned friends,

MR P.S. HASTINGS, QC, and MR T. BUDDIN, on behalf

of the respondent. (instructed by M. Rozenes,

Director of Public Prosecutions (Commonwealth))

MR L. ROBBERDS, OC:  Your Honour, the Commissioner of the

Australian Federal Police seeks leaves to intervene

on the public interest immunity point only. If

leave were granted, I would appear with my learned

friend, MR J.V. AGIUS, for the Commissioner.

(instructed by the Australian Government Solicitor)

MASON CJ: Yes, Mr Robberds. What do the counsel for the

parties have to say in relation - - -

MR BELLANTO:	We have no objection.
MASON CJ:	You have no objection?
MR BELLANTO:	No, Your Honour.
MR NEIL:	No objection.

MASON CJ: Leave will be granted for you to intervene,

Mr Robberds.

MR ROBBERDS:  Thank you, Your Honour.

Tait	2	20/5/93
MASON CJ: Yes, Mr Bellanto.
MR BELLANTO:	May it please the Court.	Your Honours, in

this case there were three issues which merit the

grant of special leave. The first concerns the

concept of relevance and the application of public

interest immunity. The second concerns the need to

review the practice of the trial judges in criminal

trials in New South Wales in directing juries in

terms of Jones v Dunkel, and thirdly the

application of the stay of proceedings in

circumstances where the prosecution do not call an

important witness whose absence renders the

accused's trial unfair.

Your Honours, I acknowledge that in relation to this point, we need to overcome a hurdle in that

the point was not specifically raised at the trial.

However, we seek to adopt the submissions that are

in the application of Yooyen which I understand

will be advanced by Mr Neil in due course. If I

can defer addressing that question until I raise

that specific point in the course of my

submissions.

MASON CJ: Yes.

MR BELLANTO:  Your Honours, in relation to the first point,

this point concerns the course taken by the Court
of Criminal Appeal with respect to the relevance of

the terms of engagement and remuneration of

Bunjong, an agent provocateur, not called by the

Crown, in circumstances where the defence alleged

he falsely implicated the applicant in a conspiracy

to supply a large commercial quantity of heroin.

Further, the course taken by the Court of

Criminal Appeal in not upholding the trial judge's
decision on the ground of public interest immunity

to permit cross-examination of a federal police

officer concerning these questions with respect to

the agent provocateur.

The Court will recall that Badgery-Parker J

considered this question and granted a declaration the applicant's co-accused appealed to the Court of
at the instigation of the Australian Federal

Appeal. The same bench sat as the Court of

Criminal Appeal in the appeal of the applicant.

This issue is important because there are

numerous cases like the present, including

indemnity and informer cases, where an applicant

may be falsely implicated and there is a motive to

do so, either financial or personal. In indemnity

cases, of course, the defence is entitled to know

Tait 20/5/93

the terms of the indemnity. Foreign agents used by
the Australian law enforcement authorities who do

not go into the witness-box to be tested can expose

an accused to an unfair trial, we would argue. In

these circumstances, an applicant is entitled to know the terms on which the agent agreed to take

part in the operation.

It is also submitted in relation to this

ground that there is a need to correct a

miscarriage in the particular case. The questions

sought to be asked of Bunjong were formulated and

are at page 16 of Badgery-Parker J's judgment and

are also summarized in the Court of Criminal Appeal

decision at 182 point 10. The Court of Criminal

Appeal finding is at 190 point 20 to 191 point 5.

Do Your Honours wish me to go to the specific

passages?

MASON CJ:  We are aware of them, but -

MR BELLANTO: If Your Honour pleases. In this case the

subjective facts lend support to the applicant's claim that he was set up by Bunjong. It was the Crown's case that the applicant joined the

conspiracy after the control delivery sample had

been prepared and at a time when the original

recipient could not provide the funds and the deal

fell through. This was after Bunjong had of course

imported the heroin into Australia.

We would like to know whether it was in

Bunjong's interest to see that as many people as

possible take delivery of a large amount of heroin.

His role is important to the defence for a number

of reasons. May I giv~ the Court the references in

the appeal book to the relevant passages: at 110
point 12 he admits co-operating with the Thai and

Australian authorities.

These are a summary of the transcript in

His Honour's summing up to the jury: he was not a

member of any law enforcement agency of the Thai

Government - 110 point 20; he had assisted the Thai

and Australian authorities in the past - 111

point 2, and, we would argue, possibly for reward;

the Australian Federal Police heavily relied on
information supplied by Bunjong - 111 point 11; he

was to receive $75,000 on delivery of the

control delivery sample - 112 point 10; Thai police

officers were the controllers of Bunjong - 114

point 25; he had an arrangement with the police

that he would not give evidence in this case - 114

point 30 and 115 point 3; he was a practised

deceiver - 115 point 7; he was not to be arrested

and he would not make a statement, according to

Tait 20/5/93

Detective Doszpot; he might be making money out of the operation - 116 point 16.

It was the applicant's case that he was

involved in the transaction only to the extent of

the purchase of heroin worth $20,000 for his son, a heroin addict, and there was never any agreement to acquire almost 10 kilograms. In fact, the $20,000

was found in the motel room at the time of the

applicant's arrest. It may have been, of course,

that Victor Tait, the applicant's son, may have

reached a private agreement with Bunjong - and we

would refer the Court to 160 point 5 - because

Bunjong took part in various meetings and

discussions at which the applicant's co-accused

were present.

He was present at 80 Bayswater Road,

Rushcutters Bay, in the presence of

Poompiriyapinte, Victor Tait and Yooyen. On this

occasion the applicant was waiting outside the

premises in a motor vehicle. He was also present

the following day, 2 January, at the same premises

at a meeting between Victor Tait and

Poompiriyapinte, and again the applicant was waiting outside the premises in a motor vehicle.

The applicant was introduced to Bunjong for the

first time on this occasion, and thereafter the

three men drove to the Travelodge at Rushcutters

Bay.

It therefore became important to pursue whether Bunjong was being paid by result. His

terms of remuneration and engagement was a

threshold question, we would argue, which should

have been decided by the Court of Criminal Appeal

in the applicant's favour before considering the

question of public interest immunity. The trial

judge was uniquely placed to determine this

question of relevance.

The Court of Criminal Appeal considered this

question without identifying the case against each

accused as to the way in which Bunjong could have

prejudiced their respective cases. Special weight,

we would argue, should be given to the fact that

the information was necessary to support the defence of an applicant whose liberty was in

jeopardy.

The role of Bunjong was vital to the initial

agreement, the importation and the arrangement for

delivery in Sydney, particularly the change of

circumstances that implicated the applicant. The

Crown case against the applicant is summarized by

the learned trial judge at 59 point 11 to 60

point 10 and 148 point 26 to 149 point 25.

Tait 20/5/93

The case of Wakeley illustrates how

cross-examination may expose relevant facts which

initially may appear without nexus to a fact in

issue. We would refer Your Honours to pages 86 and

87 of the decision of the court. If I can take

Your Honours to the foot of page 86 in the ALR

report. The passage commences at point 50:

However, looking back to the circumstances

known at the trial, the subsequently
discovered information merely emphasises the

necessity for a trial judge to abstain from

too ready an intervention in cutting off lines

of cross-examination. The curiosity of the

circumstances surrounding the death of Horton

was a sufficient indication that some

connection might have been uncovered between

those circumstances and the dispute about the finding of heroin in Wakeley's shoe. Even if

cross-examination failed to establish any real
connection between Horton's ingestion of

heroin and the alleged finding of heroin in

Wakeley's shoe, the opening up, by ·

cross-examination, of the general conduct of the detectives on the evening before and the

early morning of Horton's death may well have

thrown some light on the reliability of the

entire investigation. It was impossible to

say, in advance of the cross-examination which

counsel sought to conduct, that the logical
connection between a fact which might have

been elicited and the issue to be determined

was "so slight that the fact is treated as too

remote and evidence of it as inadmissible".

MASON CJ:  I notice that Mr Justice Badgery-Parker took the

view that answers to the questions would not have

precluded an adequate exhibition of the defence at

the trial. Can you indicate to us precisely what

use could have been made of answers to the

questions that were sought to be directed at King.

MR BELLANTO:  Yes, Your Honours. First of all, it may have

been a line of inquiry to interview Bunjong by the

defence. That could not be done of course if his

identity was not known. The defence of Donald Tait

was based upon an allegation that he was set up by

Bunjong. In other words, Bunjong had a purpose to

serve by ensuring that somebody or some people

received a large commercial quantity of heroin.

If Bunjong was being paid by result, if he was

being paid according to what he delivered, then of

course it was certainly in his interests to

implicate falsely a person who would be arrested in

these circumstances, and of course he would have

served his role; he would have carried out his part

Tait 6 20/5/93

in the operation. Of course, it was the

applicant's defence here that that is exactly what

took place.

They are two important examples of why it was

necessary to address this question. The complaint

we advance is that these matters were overlooked by

the Court of Criminal Appeal in the sense that it

was determined they were not relevant to the

applicant's defence, whereas when one looks at the

facts of the case, the objective facts, and

appreciates that it went to the very heart of the

applicant's defence that Bunjong had a purpose to

serve and if he was a person who, not being a

police officer, was simply on the payroll and who

was being paid by result, then he really did have

an interest in embellishing, implicating,

exaggerating, however one describes it, implicating

a person such as the present applicant.

DEANE J: Except, you had all that except for the "by

result" bit. You had the evidence that he was not

a member of a regular police force, that he was

working for them, it was obvious he had been

involved in setting up the transaction, and you had

the evidence he was being paid. Except the extent

that "by result" might add, there is nothing

missing, is there?

MR BELLANTO: Well, it was important that the evidence came

out in an indirect and, we would say,

unsatisfactory way through the evidence of the

police officer in a limited extent.

DEANE J:  It pretty well all came, though. Once you have

got it, you have got it.

MR BELLANTO:  The fact that he had perhaps a history of

assisting the authorities in the past does not mean

that the role that he was adopting was without

criticism or that he was not perhaps doing it for a purpose known to himself and for an advantage known to himself. One can postulate the fact that he may

have been supplying incorrect information or false

information in the past; one does not know. But

without testing him, without having him available

for cross-examination or -

DEANE J: But you are going on to a different point, are you

not?

MR BELLANTO:  Yes, but without knowing the terms of his

engagement, there is an area here which goes to the

heart of the case which is just very much up in the

air.

Tait 7 20/5/93

DEANE J: There are two aspects of this. One is: I follow

what you say about wanting to know his name. at first instance and the Court of Appeal were

perfectly entitled to reach the conclusion that

they reached in terms of public interest immunity

in the identification when he has not been called.

You move into a different area when you come

to the questions about the arrangement and so on in that, for my part, I have trouble seeing how public

interest immunity has much to say to that, which

means in that area we must be pushed directly,

subject of course to what is said about public

interest immunity, to seeing what practical impact

did this have. Reading it as carefully as I can,

it just seems to me that it is restricted to the

"by result" bit, and that does not seem to me to

take you very far.

MR BELLANTO:  Your Honour, the difficulty is that if it was

in his interest - if he was - one just does not
know what the arrangement was; that is the problem.

To start from the premise that he was receiving

money for his role in this is the beginning, I

suppose, but if he was being - - -

DEANE J:  We start with it being out and obvious that he was

not an official member of any police force, he was

being paid money and he was very actively involved

in what, on any approach, was a rather distasteful exercise. To add to that that, "He's been paid by result", instead of, "He's just doing what he's

doing to get money", does not really seem to me to

take it very much further down the road.

MR BELLANTO:  We would say that in the circumstances of this

case, when his motive is very much in

question -

DEANE J: If he had been called as a witness, that may well

have been essential, but when he is not called as a

witness, how is his motive very much in issue

except for putting a general colour on everything?

MR BELLANTO:  It may be that his remuneration is contingent

upon the amount of narcotics that he delivers.

DEANE J:	And that was no doubt put to .the jury.
MR BELLANTO:	The difficulty is that these things are put to

the jury as speculative propositions whereas, if he

was called, there may well have been some hard

evidence on the point.

DEANE J: But you are getting now on to the obligation to

call him, as you put it.

Tait	20/5/93
MR BELLANTO:	But even if he was not called, it still raises

the speculative propositions that are put to the

jury without really knowing what were the terms of

his engagement. Of course, the jury, not having

seen him, would obviously, one would have thought,

speculate in this area and the defence are left
without any evidence on which to assert their

claim.

DAWSON J:  Was it ever made clear why there was public

interest in the immunity of his terms of engagement

as opposed to his identity?

MR BELLANTO:	We do not know.
DAWSON J:	We do not know either.
MR BELLANTO:	The Court of Criminal Appeal had the material,

as did His Honour Judge Badgery-Parker.	I think
the material is before Your Honours.	I do not know
whether Your Honours have seen it.

MASON CJ:	No, we have not.
MR BELLANTO:	In relation to Your Honour Mr Justice Deane's

question, I think I have addressed the point as
well as I can in the circumstances. If I may move

to the second point, the Jones v Dunkel point.

There are criminal cases where a direction in terms

of Jones v Dunkel does not adequately meet the prejudice suffered by an accused and the wider

direction is appropriate.	We submit this is such a
case.

We would urge this Court to hear argument on

this question. It is a matter of general

importance in view of the practice in New South

Wales of directing juries in terms of Jones v

Dunkel. The trial judge's view was made clear in

the course of proceedings at 76 point 16. If I can

take Your Honours to that, it was put by

Mr McClintock that the direction His Honour gave

was in fact stronger than Jones v Dunkel. That is

a submission with which we do not agree. However,

His Honour then went on to say:

That was the trade-off for the judge not being

able to direct a witness to be called.

Then His Honour, in the next passage down at 23,

said:

I will not say that but I think it is clear

from my direction that those at the Bar table

know my position in relation to Bunjong and

the evidence pertaining to Bunjong.

Tait 9 20/5/93

Then His Honour's direction is at 70 points 10 to

15, which is the commonly accepted, we would argue,

Jones v Dunkel direction. His Honour gave a

further direction at 82 point 10 which appears to

have either been transcribed incorrectly or

His Honour inadvertently made a slip, because it

does not really seem to make a great deal of sense, but we would start with the premise that His Honour at 70 point 10 gave the Jones v Dunkel direction in the narrow form.

No redirection was sought, presumably because counsel could not ask for a direction that was not

in accordance with the accepted practice in New

South Wales.	The Court of Criminal Appeal dealt
with the issue at 196 point 25.	The court there

referred to it quite briefly but felt there was no
error in relation to His Honour's direction.

The current practice, we would argue, needs

review, and we advance three reasons. In
Apostilides, guidance is provided for trial judges

and comment is permitted as appropriate on the

failure of the prosecutor to call a particular

person and the effect this would have on the course

of the trial. However, Apostilides has not been

interpreted in New South Wales as extending or

qualifying Jones v Dunkel or the case of

Buckland. Can we take Your Honours to proposition

4 at page 575 of Apostilides where this Court said:

When charging the jury, the trial judge

may make such comment as he then thinks to be

appropriate with respect to the effect which

the failure of the prosecutor to call a

particular person as a witness would appear to

have had on the course of the trial. No doubt

that comment, if any, will be affected by such

information as to the prosecutor's reasons for
his decision as the prosecutor thinks it

proper to divulge.

So that we would argue firstly that Apostilides

perhaps paves the way for comment on the failure to

call a particular witness, particularly where no

explanation is given and, more particularly, where the witness is pivotal to the investigation of the

Crown and an important part of the Crown case.

Secondly, we advance the reason that by reason

of overseas authorities, there is clear precedent
for the broader direction in the appropriate case.

For example, in the United States and Canada,

Wigmore's wide direction is followed.	We refer the
Court to the case of Rooke, a Canadian case.	The

relevant passages that we would invite the Court to

consider are at pages 510 to 511. At the foot of

Tait 10 20/5/93

page 510, Esson JA refers to Lederman and Sopinka

on The Law of Evidence. It is clear there from the

learned authors' extract that the wider view is

preferred. That is that a comment could be made to

the jury that the failure to call the witness can

lead to:

the inference that the evidence of ..... witness

would have been unfavourable to the party to

whom the failure was attributed.

At 512 His Honour refers to Wigmore on Evidence and

a similar principle is to be found in that work.

At 530 the court refers again to and affirms the

wider view, that is that comment can be made that

the evidence would have been unfavourable to the

party who did not call the witness.	That is at the
foot of page 530.	The court there referred to the
case of Koffman.

In the case of Charles, a United States

decision, there is a short passage at the end of

the judgment at page 698, paragraph 15 to 17.

Again, we do not propose to read the passage but we

invite Your Honours' attention to it because it

simply reiterates the principle referred to in

Rooke, that is the broad approach.

We would also invite the Court to consider

this Court's decision of course in Jones v Dunkel. There are three judgments that we propose to refer

the Court to, albeit briefly.	The first is the
judgment of Mr Justice Kitto at 308 point 7.	The

significance of this passage is to be found in the

reference by His Honour where he says:

The jury should at least have been told that

it would be proper for them to conclude that

if Hegedus had gone into the witness-box his

evidence would not have assisted the

defendants by throwing doubt on the

correctness of the inference which, as I have

explained, I consider was open on the

plaintiff's evidence.

So His Honour there is acknowledging that as a bare

minimum, the narrow view was necessary. His Honour

Mr Justice Menzies at 312 point 5 referred to a

proper direction requiring three things to be made

clear:

(i) that the absence of the defendant Hegedus

as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence

which might have been contradicted by the

defendant can be accepted the more readily if

the defendant fails to give evidence; (iii)

Tait 11 20/5/93

that where an inference is open from facts

proved by direct evidence and the question is

whether it should be drawn, the circumstance

that the defendant disputing it might have

proved the contrary had he chosen to give
evidence is properly to be taken into account

as a circumstance in favour of drawing the

inference.

Then finally, the judgment of Mr Justice Windeyer

at 317 point 8, where His Honour refers to the

Wigmore view. I do not propose to read that

passage. Also relevant in this regard is a passage

at 320 point 8 where His Honour again refers to

Wigmore and the broad view. At 321 point 1

His Honour, in quoting Wigmore, refers of course to the broad view and "facts unfavourable to the

party." His Honour at 321 point 3 refers to the

fact that this really is plain common sense.

His Honour at 322 point 1 acknowledges of course

that:

Every case is different; and standardised

directions are not necessary.

This leads to the third reason why we argue that

the current practice needs review. This involves

the consideration of fundamental principles.

DEANE J:  Mr Bellanto, did the jury know that the identity

of Bunjong was being concealed for what were

claimed to be public interest reasons?

MR BELLANTO:  Not that I am aware of, Your Honour; I am told

that they did - I do not know.

DEANE J: They did? Well, you would think the defence would

have proclaimed it from the rooftops.

MR BELLANTO:	Yes.
DEANE J: But if that is so, and it was before the jury that

it was said he was not being called because - or

that his identity was being kept secret for public
purposes, and it also emerged that the whole plan

from the beginning was that he would not be called and an undertaking was given to him, is there much

room for even Jones v Dunkel anyway. I mean, the

defence had all the grounds for attacking what had

happened, but it was not a matter of inference as

to why he was not called. It was pretty obvious

why he was not called; that he was somebody who

could not be trusted, who was accustomed to deceive

people, that his identity was being kept secret
because he was an informer, and that for reasons
best known to themselves from the beginning, an

arrangement had been reached that he would not be

Tait 12 20/5/93

called. I mean, surely that is much more powerful

ammunition than the sort of Jones v Dunkel

inference.

MR BELLANTO: Well, Your Honour, in a submission perhaps to

the jury, yes; however, it did not come from the

trial judge and His Honour felt constrained

by - - -

DEANE J:  It came pretty close to him in those pages you

referred us to.

MR BELLANTO:  But that was not to the jury, that was not in

the form of a direction; it did not have the

imprimatur of the bench. And that, of course, to a

jury is vital and although, with respect,

Your Honour, we acknowledge the force of what

Your Honour has said, however, we say in the

circumstances here, His Honour did not go beyond

Jones v Dunkel and we say he should have.

DAWSON J: 

What should he have said?

MR BELLANTO: 

He should have said that the jury could take

the view his evidence would have been adverse to
the Crown, if called.

DAWSON J: Well, his evidence would have been, rather than

may have been, is that the - - -

MR BELLANTO: Well, may have been.

DAWSON J: Is that not Jones v Dunkel?

MR BELLANTO:  It does not go that far; it would not have

assisted.

DAWSON J:  No, there is a subtle difference - it is pretty subtle.

MR BELLANTO: Well, this Court in Brandi v Mingot, of

course, acknowledged there were two views: there is

the broader view and the narrower view; the

narrower view being the Jones v Dunkel view and the

broader view being the American, or Wigmore, view.

So that we would argue that there is a practical

difference, quite significant in some respects.

The authorities have streamed along with those two

views. So that we would argue for the broader view

here, acknowledged by this Court in Brandi v

Mingot, as an alternative view.

Can I take Your Honours to Brandi, (1976) 12

ALR 551. At the foot of page 559 the Court, in the

final paragraph, at 33:

Tait 13 20/5/93

The third comment we would make is that,

in our view, the learned trial judge's

direction to the jury, in the terms summarized

above was, in any event, correct and is to be

preferred to the somewhat different statement

of the position by the Full Court.

And the Court there referred to O'Donnell v

Reichard and to the expression:

would not have helped that party's

case" ..... With this may be contrasted the view

expressed in the judgment now under appeal,

that the proper inference is that the absent

witness's evidence would have exposed facts
unfavourable to the case of the party failing

to call that potential witness. This latter

approach reflects the views of Wigmore as

Street J observed in Dilosa v Latec Finance

Pty Ltd. Like Street J, we too regard a

narrower view, as expressed in the joint

judgment in O'Donnell v Reichard, as that

which has come to be accepted in Australia -

And then this Court referred - - -

MASON CJ: Well, it decides the point against you, does it

not?

MR BELLANTO: Well, Your Honour, we would argue that

Brandi v Mingot, of course, is a civil case, as

were the cases cited at the foot of page 559 and 560 and argue that the point has not really been

addressed in the light of the comments in present where it is the Crown who has failed to

call the witness. And ·the New South Wales case of

Buckland followed the Jones v Dunkel authority.

DAWSON J: In fact, really, it is not so much a matter of

not giving evidence which would assist the party

who has not called him, but really what you are

seeking to rely on would be cross-examination of

the particular person to elicit evidence which

would assist you in your defence.

MR BELLANTO:  Yes.

DAWSON J: In other words, if the Crown had called Bunjong,

it would not have led the sort of evidence you were
wanting to elicit from him at all; you would have

done that in cross-examination, would you not?

MR BELLANTO:	Yes.
DAWSON J:	And in that sense, it was really evidence as to, in a sense, credit, was it not, or character?

Tait 14 20/5/93

MR BELLANTO:	Well - - -
DAWSON J:	Not the payment for results, perhaps, but otherwise.

MR BELLANTO: Well, he may have given answers in

cross-examination that were consistent with the

defence that was being advanced.

DAWSON J: Yes.

MR BELLANTO:  And of course, Buckland, the New South Wales

case, can be distinguished again because it was

there a failure by the defence to call a witness

and - - -

DAWSON J:  May I just go back - it would be evidence as to

credit; he would give his evidence as to what

happened or to merely support the evidence of other

witnesses as to what had happened; you would seek

to discredit his objectivity in giving that

evidence by pointing out that he had an interest
and by pointing out that he was involved in shady

deals and so on, would you not?

MR BELLANTO: That may well be part of it.

DAWSON J:  So it would not be directly relevant, but would

go to his credibility.

MR BELLANTO: That would, yes, but it would also bear upon

the defence. I mean, one can foresee a number of

courses that would develop under cross-examination;

he may firm up, he may break down, he may do both.

DAWSON J: Perhaps the only point I am making is that one

would think that what was being referred to in

Jones v Dunkel, whatever formulation is used, was evidence in-chief really, but the evidence in-chief

of the witness would not have assisted the party

who has failed to call him. It really does not

have reference to cross-examinations.

MR BELLANTO: That is right.

DAWSON J: Well, you cannot say that about this man, because

the evidence in-chief would not have mentioned any

of the things that you would want to elicit from

him in cross-examination in all likelihood. I

mean, I do not know, but it would seem to be his

problem.

MR BELLANTO: It is all rather speculative unfortunately,

but because we were denied the opportunity to raise

these matters with him in the witness box, we say

that we should have been entitled to a broader

direction.

Tait	15	20/5/93
DAWSON J:	But you cannot just put it as simply as that.	I

mean, the cross-examination would be designed to

show the unreliability of his evidence, would it

not?

MR BELLANTO:  Yes.

DAWSON J: But you cannot really say, "We wanted a witness

called so that we may cross-examine him to show his

unreliability", when he is not called at all.

MR BELLANTO: Well, Your Honour, that is part of why we say

he should have been called; another part is that he

may well have given evidence that would assist the defence, not under cross-examination. I mean, one

just does not know, and the decision not to call,

unexplained, entitles the defence to a direction

that his evidence would have been adverse to the

Crown, we would argue.

DAWSON J: Well, I do not want to labour the point, but that

is what at the moment I do not see. His evidence

probably would not have been adverse to the Crown;

his evidence would have established the facts which

were otherwise established by the Crown anyway.

What would have been established, in all

probability, by cross-examination was that he was a

tainted witness, he was a suspect person.

MR BELLANTO: Well, of course - - -

DAWSON J: It may go further than that, as you say; it may

say, well look, if this is the way the Crown goes

about things, it throws doubt on the rest of the

evidence, but it is a somewhat different situation.

MR BELLANTO:	If Your Honour pleases. Your Honours, the decision of this Court in Whitehorn, Your Honour
Mr Justice Dawson, I think, delivered the decision
in that case and the then Chief Justice and
Mr Justice Brennan agreed.  Your Honour emphasized
witness when the only other evidence was that of the consequences where the Crown fails to call a the applicant's confession. And Your Honour there
said that:

A reasonable jury must, I think, have required

strong evidence to be led by the Crown to

overcome the doubt necessarily engendered by

the absence of any satisfactory explanation

for the failure to call the complainant.

May I refer the Court there to a short passage at

pages 690 and 691. And, in relation to Whitehorn,

we would submit that this Court clearly

acknowledged that serious consequences can flow

adversely to the Crown, where a failure, without

Tait 16 20/5/93

explanation, to call an important or crucial

witness occurs.

In relation to the failure to call Bunjong in

this case, we would argue that the accused should

not be put in a worse position than he might

otherwise have been or, more positively, the
accused must receive a fair trial. If the

prosecution choose not to call a person at the

centre of the events, then the accused must be put

in the same position as he might have been if

Bunjong was called and assisted the defence.

Your Honours, if I can then move to the third

of our main points, the question of the stay

application. As I mentioned at the beginning of

our submissions to Your Honours, this point was not

specifically raised before His Honour the learned

trial judge. It was raised in the Court of

Criminal Appeal in the form of an additional ground
of appeal in the following terms. If I can hand

Your Honours up the further grounds, ground 3 is

expressed in the following terms:

In failing to permanently stay the proceedings if such questions were to remain unanswered on

any ground of public interest immunity.

And a reference is made to various passages of the

transcript.

We seek to rely on the submissions advanced on

behalf of the applicant, Yooyen, and in the oral

submissions we understand Mr Neil will make to this

Court shortly, and there was little reference to

this matter by the Court of Criminal Appeal.

Reference is made at page 192 point 6. The court

considered at point 12 that it did not consider

that there was any unfairness in the refusal to

grant a stay.

However, we would submit that, in the

circumstances where the obligations of disclosure

cast upon the prosecution are not met, the Court

should conclude that the applicant did not receive

a fair trial in the circumstances and that a stay

was appropriate, and that the majority of the

decision of this Court in Dietrich in recognizing

that unfairness can flow where legal representation

is not present, the court recognized that

unfairness, in certain circumstances, can have the

effect of the court permanently staying the

proceedings until, in these particular

circumstances, the witness is called so that the

accused can have a fair trial.	Your Honours, they
are our submissions.

Tait 17 20/5/93

MASON CJ: Yes, thank you, Mr Bellanto. Yes, Mr Neil.

MR NEIL:  May it please the Court, I would like to rely on

the matters in our written submissions, to adopt

the submissions of my learned friend, Mr Bellanto,

and to then briefly add, firstly on the question of

relevance - I have two application books, of

course, Your Honour, the Yooyen one and much of

what I have to refer to is in the Tait one, by

arrangement. But His Honour

Justice Badgery Parker, whose judgment I understand

is before Your Honours - - -

MASON CJ: Yes, we have it.

MR NEIL:  At page 26H, His Honour said:

it would be open to counsel for the accused to

invite the jury to infer that he would have

done so only with a view to securing some

benefit to himself. Counsel does not need the
benefit of answers to the questions to put

that submission. It does not appear to me

that answers to the questions or similar

questions are necessary to enable this accused

to adequately place his defence before the

jury nor that answers to the questions would

advance his defence in any way.

And that.at page 32, His Honour repeated, in fact,

the same point at G:

It appears to me therefore that there is no

practical purpose to be served in advancing the

cases of the respective accused -

Now, that view was taken up by the Court of

Criminal Appeal.

Your Honours, at page 182 at line 10 in the

judgment, the Chief Justice outlines what he

understood to be the way in which it was sought to

proceed:

The questions said to be in contemplation

included questions as to Bunjong's real name,

previous matters in which he had assisted the
police authorities in relation to drug
importations, the amounts of money that he was

paid in such previous matters, and the terms,

and in particular the financial terms, on

which he might have agreed to assist the

police authorities in the present case.

I have to say, Your Honours, that I would certainly
be open to correction by my learned friend,

Mr Weinberg, if there were particular evidence of

Tait 18 20/5/93

the payments in the particular case, but I rather

thought it was by inference from previous matters,

and of course the particular financial terms and

conditions did not come out.

Further, at page 190, His Honour at line 20

says:

For my part, like Badgery-Parker J, I am unable to see the practical purpose to be served in advancing the cases of the

respective accused at the trial by requiring

answers to be given to the questions

formulated before Judge Solomon.

But bearing in mind, Your Honour, that it was clear

that it was anticipated that a line of questioning

would be followed.

DAWSON J: You might be able to help us, Mr Neil. That is

the problem, is it not? What you really were

wanting the witness to be called for was to destroy

him.

MR NEIL: Or, Your Honour, to get enough out of him to throw

doubt on his evidence.

DAWSON J: Well, that is the same thing. Well, perhaps not

in any matter of degree.

MR NEIL: Well, nearly; it varies. They hardly ever say,

"I'm terribly sorry; that is all lies".

DAWSON J: No,but you would be able to say to the jury, "He

is a man who says these things; now, you couldn't

rely on a word that he said; he's paid, according

to results, he's a marr who is willing to resort to

deception", and all of this would be what comes out

in cross-examination.

MR NEIL: It could well be, Your Honour, but you see, the

problem, particularly for Yooyen's point, the

original plan fell through and then they decide,

according to the evidence of the Crown, to get

someone else. Now, if Yooyen is to be convicted on

that, she was entitled to be able to explore the

terms and conditions to see why it would be that he

was so desperate to find someone else. If he is

going to be paid for what he was doing, and it fell

in, he could go home, but if they have got to find

someone else and start a new plan, it is important

to find out just what is going on, and to be able

to say to the jury, "There is evidence of it; not what we are submitting." Then the judge does not give it the imprimatur of his own directions to the

jury. The jury is perfectly entitled to say, "They

are submitting all this; they would say that about

Tait 19 20/5/93

this fellow, the judge has told us nothing, we have

got no evidence on it, we will just forget about

that, go on with what we have heard, because we

have got to try the case on the evidence".

And the gravity of the matter and the

relativities of the conduct should be evaluated by

the jury. And the defence should be able to get it

out themselves. It should not be said that, "Well,

in these circumstances, a bit has come out here and

a bit has come out there, and you can tell the jury

various things, and somebody told the jury he was

bounty hunter and so on". You should be able to

conduct your own case, because there is a statutory

right to full and free defence; not to be inhibited

and have the questions framed for you, not to be

stopped from asking them and not to be stopped from

drawing the point out in such a way as to the

maximum advantage of a person in peril on a very

very serious charge.

So those are practical reasons, Your Honours,

why, in our respectful submission, this line of

questioning ought to have been allowed.	The trial
judge had no difficulty with allowing it.	He
invited submissions from the police.	Then the

problem arose by this unusual intervention

that - - -

MASON CJ:  We are familiar with the history of how -

MR NEIL: Yes. Now, Your Honours, in my respectful

submission, there cannot be, just to go ahead one,

one can hardly imagine how that form of

questioning, at least perhaps controlled in some

intermediate fashion, would harm anybody in terms

of the general public interest. If there is

something in those documents that have so impressed

Justice Badgery-Parker that the questioning should

not have been allowed, then at least we do not know

about it, it is hard to imagine, and at least the

venture should have gone ahead and in some way be	controlled with a voir dire or something; not to
just be blocked out.

MASON CJ: Well, there may be a real question about this

claim to public immunity in the circumstances of a

case like this, but the real problem confronting

you is to demonstrate the relevance of the answers

to these questions and the importance of the

answers to the questions to the defence at the

trial.

MR NEIL: But we would submit that, in a jury trial, they

are manifestly relevant to know whether a person

has an interest in the evidence he is giving. If

Tait 20 20/5/93

he is going to gain from giving the evidence and -

DEANE J: But he did not give evidence.

MR NEIL:  No, but the police can give evidence as to whether

he is going to give - or his conduct or his corning

into Australia on the plane, his being part of the

whole venture and his discussions and his inter-

relationship with the client.

DEANE J: But is it not a bit like this: say, for example, x

goes to the police and makes allegations against Y,

which the police follow up and they bring

proceedings against Y and provide a waterproof case

on phone taps, admissions, what have you, and they

do not prove X, and the defence are there waiting

for X with knowledge that he is a blackmailer, a

thief, a liar and everything else. If the Crown

does not rely on X's evidence, even though that

evidence has motivated the police and had a great

deal of influence on what they did, for the defence to have a proper cause of complaint about not being able to destroy Yin the witness box, they have

really got to fit it in to the defence and show how

it fits in exactly. Well now, that is what the

questions we are asking are really directed to.

MR NEIL: Well, Your Honour, there are some cases where the

police get information, no one ever hears about the

informer, all right. But in a case where there is

some information and the evidence is given by

police officers of the part played, or a good deal

of the part played, by that person and it comes to

light before the jury, and some questions are asked

by the cross-examiners which, as I understand it,

are either not objected to or the objection was

overcome, about what he had done in the past and so

on, so half the picture comes out.

We are in a totally different arena. Once you

are in that arena, in our respectful submission,

the cross-examination should not be chopped off

half-way through; it should be permitted to proceed

to the most relevant feature, namely, the actual

terms and conditions to throw light on why he might

be doing what he did and in particular, assisting

in a new plan when the first plan had fallen in,

and whether or not he is just telling a whole pack

of lies about it, or about one particular

individual, as to whether or not, for example, the

more heads on the plate, the more money.	So
Ms Yooyen is just thrown in.

DAWSON J:  He is not telling lies about anything; he is not

there.

Tait 21 20/5/93

MR NEIL:  No, no; asking the police, Your Honour, to divulge

the terms. They gave evidence about some matters,

and my point is that once you go down that road,
and they give evidence of this, if they wanted to
say, "We are not going to talk about him at all, we

take Cain v Glass at the outset, say nothing about

any informers or anything; the information was

received and we went on". Once the arena is

entered into and the jury has got some picture, but

only half-painted, then the cross-examiner should

not be stopped, as happened here, from proceeding,

unless there be something in the documents of which

we are unaware that definitely requires it. I

cannot take that any further other than to say it is hard to imagine. Unless that be the case, you

have the right to go on and ask questions and

elicit matters and make as much as you can of it in

the trial. We say it is just manifestly relevant

to whether the man be believed.

DAWSON J:	Which man?
MR NEIL:	The police would be believed in terms of what they

have said about what he did and whether or not,

therefore, the conduct said to be alleged against

us, I should say, is proven to have been an

involvement in the conspiracy which is said to have

been committed, including the unidentified man.

So, in our submission, Your Honours, it is just inextricable, with great respect to the

justices below, and manifestly relevant. You would

want to ask those questions of those police

officers, at least once you had got half-way down

the road. You would want to do it all along, but

if you are stopped at the outset, as I say, it may

be you do not get into the arena, but once in it

you must be allowed to proceed in the interests of

justice and the presentation of the defence, so

that the defence has the opportunity to continue,

and I am talking about the witness who was there.

In terms of the man, Bunjong, it is a

different question, that I will address briefly

when I deal with the stay question, because I

accept that there are difficulties in saying that

we have got a right to have a man called who - one
would hope one would have the right - and if he is

in the country under Apostilides, another case,

perhaps he should be brought and presented for

cross-examination. It is difficult when he is not

in the country and apparently there has been some

arrangement made with the authorities not to bring

him. It makes it more important that the witness

who does go to the witness-box and goes half-way

down the road on the point, is allowed to be cross-

examined fully on the matter.

Tait 22 20/5/93

Now, Your Honours, if I could just go to the

next point that Mr Bellanto dealt with, Jones v

Dunkel, we do not have a specific point on about

it; it is interwoven into some of our material.

All I would wish to ask is that if the Court

thought special leave should be granted to Tait on
that point, we would submit it would be only fair
to grant it to Yooyen, because the matter affected

her, obviously clearly. On that point,

Your Honours, the direction to the jury was a very

simple one, in terms of the Jones v Dunkel formula

that my learned friend read at page 70:

Where a party fails to call a witness who can

give material evidence and gives no

explanation for that particular failure then

you are entitled to draw the conclusion that

that evidence would not have assisted the party who you feel should have called the

witness.

Now, Your Honours, to a jury in this type of case,

that could mean something very very little; it

could mean, "Oh well, it wouldn't add anything to

the case, therefore we don't need it"; it could

just mean that. It could mean, "Oh well, where is

the problem, we'll forget about it"; it could mean,

"What is the issue anyway", because, in my

submission, the Court should look at this whole

question of Jones v Dunkel. Once in the Jones v

Dunkel arena, we submit this is not enough

direction, but it may be that in light of the

ordinary principles that allow a judge to deal with

problems at a trial as he sees fit, some other way

of grappling with these difficulties should be

found.

I would submit that what should have happened

is that if the judge went down the Jones v Dunkel

road, as he did, he should have told the jury that

the evidence he would have given would have harmed

the Crown case, and he should have also said to the

jury, "You should assume that he had a high level

of interest and involvement personally in the
outcome of this case and that he had a past record

of being involved and you should assume that he

could have had some rewards, particularly related

to Yooyen or the other particular people".

It may be that we are in a new arena and have

to look at what directions should be given in these
types of cases where, for whatever reason, and it

is said in the public interest, the witness does

not come. And there are some restrictions,

particularly in this case where there was

restriction on cross-examining the police on the

Tait 23 20/5/93

matters. Some other way of handling this serious

problem should have been found.

DAWSON J:  Did the accused give evidence?

MR NEIL: A statement, Your Honour; my accused, and I think

all accused.

Now, Your Honours, in Jones v Dunkel, the underlying rationale is cases where an inference

that you might otherwise draw, you may more

confidently draw if the witness is not called. It is really a separate style of problem than this in these unusual, but becoming more common, criminal

cases. Your Honours, in terms of a point about

duress, which we do press, in the appeal book at

page 120, there is the statement of the accused,

Yooyen. There has obviously been some difficulties

in getting her message across.	The interpreter
intervened at one stage at page 121.	The relevant
portions on this, at line 10:

So I was dragged into this affair.

The next ·paragraph, she said:

I was angry -

at Poompiriyapinte -

that he used my telephone.

She said she originally helped him out, not

thinking she was involved in any problem - did not

think there was any danger to her or any harm.	But
then she said at line 20:

I did not want to get involved, but I did

because I didn't see any harm.

And then, at line 24, about the pictures:

I just understand what he had told me and then

I felt worried about my elder brother;

according to the message I got from the phone.

I realised that there might have been a crime

and I just made a guess that there might be

drugs or something.

Line 25:

I also felt worried about Mr Poompiriyapinte

who is an old man. I told him that JJ used to

give me money. If my brother - according to

what Mr Poompiriyapinte had told me - my

brother was in danger so I felt worried about

him very much.

Tait 24 20/5/93

Line 30:

I cannot describe why I felt worried about

him.

And line 10 on the next page:

I felt worried about my brother, but I did not

want to get involved with any crime.

Line 20:

the second time I went up I met Mr Bunjong

too. Mr Bunjong wanted to see money. He

threatened me that if I could not get money my

elder - her elder brother will be in a great

danger.

The trial judge at page 156 pointed out some things

put in submission on behalf of Yooyen at line 25:

Yooyen became involved, but not in the agreement but became involved in this matter

at all because of threats made regarding her

brother. He said Yooyen did not know the

quantity of the drug, she was confused as to

the quantity of the drug.

And at page 157, counsel:

refers you to the threats that have been made

in telephone calls number 62, 64, 72 and 83.

So the judge treats them as threats and tells the jury they are threats.

Now, Your Honours, in the submissions, in our

MASON CJ:	What page did you just read that last - - -
MR NEIL: Page 157, line 15, Your Honour.
DEANE J:	Were those telephone calls with Bunjong or with

the man with the long name?

MR NEIL:  Your Honour, I think they were mostly with Poomp,

I will just check something. There was one in particular in exhibit AD, which I do not think is referred to in my learned friend's written

submissions, that was between Yooyen and Poomp.

DEANE J: Well, it would be more relevant from your point of

view if any of them were between your client and

Bunjong.

Tait 25 20/5/93

,l

MR NEIL: Yes, Your Honour, it was put in the written

submissions to the Court of Criminal Appeal by the

respondent that they agreed that, in terms of the

matters that had been said by the applicant in her

statement, that she was saying that in the meeting

with Bunjong, he had threatened her; that if he

could not get money, her elder brother would be in

great danger. An inference would be open, we would

submit, that she was talking about some of these

threats in discussions with Poompiriyapinte. In

other words, not necessarily that he was

threatening her, but that it was corroborative of

having been threatened by Bunjong, there being a
reference in AD 20 to a lot of trouble if they

returned to Thailand without funds, and so on.

Now, Your Honours, having made those

references to threats, His Honour the trial judge -

and we submit all credit to him - my learned

friend, I think, Mr Hastings, raised with the judge

at page 166, line 15:

Your Honour did make mention to particularly

Miss Yooyen's case the question of threats,

would Your Honour consider it appropriate to
give a direction in relation to duress,

similarly the question of entrapment arose.

His Honour:

Yes.

Crown Prosecutor:

Similarly a question of withdrawal.

His Honour:

I gave the direction about withdrawal, but in

relation to defences there is no defence in

our law of entrapment and there is no defence

in our law of duress.

You might use the material to determine
whether or not the accused person was involved

in the alleged agreement.

Crown Prosecutor:

I would not have gone so far as to suggest

there was no defence of duress but in the

circumstances of this case it does not seem to

be available.

His Honour:

Tait 26 20/5/93

In relation to this case it has not been argued by Mr Mcclintock that there is a defence of duress and so I will not give any

direction in relation to that.

Now we have this problem. I certainly do not mean

any disrespect to ':r Mcclintock at all, but let us

set that aside, his position. If the Crown raised

it and was sufficiently concerned about it, and if

His Honour had described these things as threats,

and counsel had put to the jury that she only got

involved in whatever she was involved with because

of threats then, in my respectful submission, the

directions on duress that the law provides should

have been given. The Court of Criminal Appeal at

page 194, line 20, there is obviously a misprint.

It says "In his unsworn statement". They mean:

In her unsworn statement the appellant Yooyen

claimed to have become involved out of concern

for her brother and for Poompiriyapinte. She

said she was told her brother was in danger if

Bunjong could not get the necessary money for the heroin. Counsel for Yooyen at the trial did not argue duress, but the Crown raised

with the judge whether a direction about

duress should be given. The judge took the

view that no specific direction on duress was

called for and counsel for Yooyen did not

disagree. I do not consider that such a

direction was called for or that any

miscarriage of justice arose from the failure

to give it.

Now, Your Honours, in my respectful

submission - - -

MASON CJ: Actually, counsel for the Crown said that it

seemed that, in the circumstances of the case, a

defence of duress did not seem to be available.

MR NEIL: Yes, Your Honour, I did read that. Now however,

difficult though it may be, we are in, in my

submission, the Pymble line of country, that where

something comes up, the authorities are clear, of

such importance, and there has been some material

that raises it, and you only have to raise some

material for duress, then it is over to the Crown

to negative it beyond reasonable doubt, and there

is the subjective element and the objective

element; the judge should have explained those

matters to the jury. There is a real prospect, in

our respectful submission, that the decision may

have been different, may have been, but to say

that, in effect, on what we would submit is a

relatively short and cursory dealing with this

matter as one of the miscellany at the end of the

Tait 27 20/5/93

judgment, after dealing with the major matters as

perceived by the court earlier, there has been a

devaluation of the point, because they have

effectively said, "Well, we would have applied the

proviso anyway". Now the authorities indicate

there is much less likelihood that the provisoes

ought properly to be applied in a case where an

error of law, or failure to give a direction that

ought to be given in the circumstance of the case,

than in other types of cases.

Now, Your Honours, having described them as

threats to the jury, the jury must be taken to have

considered them to be threats, having heard that

counsel had said that she got into this because of

threats, likewise, but then, what were they given

to deal with it? Nothing.	And in our submission,
it is a serious problem.

Your Honours, dealing with the question of a

stay, we have found today - and I apologize for not

having it before, but there have been a lot of

documents and the Crown authority has been good

enough to search through - there is available the

judgment of Judge Solomon on the stay application.

It is of some interest on the other points that I

have just raised with Your Honours, and it was a

ground of appeal by Yooyen before the Court of

Criminal Appeal, both as to the question of

entrapment and unfairness generally, and the court

rejected the application.

Your Honours will see that Mr Mcclintock

fought hard. He said that he tried to get

His Honour, on the second page, to reverse Mr

Justice Badgery-Parker. Of course, that could not

be done nor would I suggest that His Honour was

wrong in not following Mr Justice Badgery-Parker.

He argued:

that his client cannot be properly defended by

him. He argues that section 402 of the

Crimes Act gives his client a statutory right

to "make full answer and defence" and that the

effect of the declaration of

Mr Justice Badgery-Parker is to deny his

client that right.

He argued:

that because he does not know Bunjong's true

identity that he is denied the opportunity of

obtaining a statement from Bunjong.

Mr McClintock further argues that he is unable

to cross-examine witnesses as to what rewards,

if any, Bunjong was to obtain from the Crown

obtaining a conviction of his client,

Tait 28 20/5/93

Miss Yooyen. Mr Mcclintock argues that the

terms of Bubjong's involvement are relevant to

the issues in the case and that as the terms

of his involvement cannot be disclosed through

cross-examination I should stay the

proceedings.

He refers to cases. His Honour says:

A stay of proceedings should only be granted

in exceptional circumstances.

Now, Your Honours, we would submit that was a case

for something to be done, either letting as much of

this story and background come out as possible, or

staying or finding a middle course, but not for

having this unsatisfactory situation be perpetuated

in the circumstances in which Yooyen, and

particularly when the duress problem is faced, that

there is both important matters for consideration

by this Court, as matters of general principle, and

the important possibility of a miscarriage of

justice that cannot be ignored: If it please the

Court.

MASON CJ: Yes, thank you, Mr Neil. Mr Bellanto.

MR BELLANTO:  Your Honour, may I just address one point

Your Honour Mr Justice Dawson raised with me about

the Jones v Dunkel question?

DAWSON J: Yes.

MR BELLANTO:  As Your Honour would be aware, the defence was

that we agreed to purchase $20,000 worth of heroin.

If Bunjong was called, he may have agreed that that is in fact what was the arrangement with Donald

Tait. Now if he admitted that, then, of course,

that would be evidence unfavourable to the

prosecution.

DAWSON J: That would establish your defence.
MR BELLANTO:	Yes, and that would be evidence unfavourable

to the prosecution, which is the broader direction

rather than the Jones v Dunkel direction that we

would seek. Thank you, Your Honour.

DAWSON J:	I follow.
MASON CJ:	The Court will take a short adjournment to

consider the course it will take in this matter.

AT 3.26 PM SHORT ADJOURNMENT

Tait	29	20/5/93
UPON RESUMING 3.40 PM:

MASON CJ:  The Court need not trouble you, Mr Weinberg, nor you, Mr Robberds.

In so far as the application in the case of

Yooyen relates to a possible defence of duress, we

agree with the Court of Criminal Appeal that no

factual basis for such a defence existed. In

relation to the matters raised in each of the two

cases, and once a possible defence of duress has

been put to one side, we do not consider that an

appeal would enjoy sufficient prospects of success

to warrant the grant of special leave to appeal.

The applications for special leave are

therefore refused.

AT 3.41 PM THE MATTER WAS ADJOURNED SINE DIE

Tait 30 20/5/93