Taylor v The Queen; Minogue v The Queen

[1991] HCATrans 138

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-,	.. ~'';/'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M40 of 1989

B e t w e e n -

STANLEY BRIAN_ TAYLOR

Applicant

and

THE QUE_EN

Respondent

Office of the Registry

Melbourne No M41 of 1989

B e t w e e n -

CRAIG WILLIAM JOHN MINOGUE

Applicant

and

THE QUEEN

Respondent

Applications for special leave

to appeal

MASON CJ
BRENNAN J

DEANE J

Taylor 1 6/6/91

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 6 JUNE 1991, AT 9.05 AM

Copyright in the High Court of Australia

MR G.W. MORRISH, QC: If the Court pleases, I appear with my

learned friend, MR P.A. D'ARCY, for the applicant,
Taylor. (instructed by Messrs Moores)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with my learned friend, MR N.T. ROBINSON, for the Crown

in both matters. (instructed by J.M. Buckley,

Solicitor for the Director of Public Prosecutions)

MR A.R. CASTAN, QC: If the Court pleases, I appear with my

·	learned friend, MR N.J. CLELLAND, OC, for the
applicant, Minogue. (instructed by Judge &
Papaleo)

MASON CJ: It seems convenient that these two be called on

together as they are related. Yes, Mr Morrish.

MR MORRISH: With the leave of the Court, I seek to file a

supplementary summary of argument together with

photocopies of Reg v Demirok, (1976) VR 244.

MASON CJ:  Mr Morrish, I must say that it is unsatisfactory

that the Court should receive this outline of

argument at this stage. On the face of it, it

seems to differ from the summary of argument which

was presented at an earlier stage in the matter,

and a summary of argument to which the Court has	given consideration in reading through the
materials prior to the hearing today.

MR MORRISH:  We concede that, Your Honours, that it is a

different emphasis and a different approach. It

may be that on close analysis I can direct

Your Honours' attention to various passages in the

summary of argument that forms part of the appeal

book with a view to saying that it is raised

obliquely, but I must concede that it is a

different approach.

MASON CJ: Yes, well it is highly unsatisfactory from the

point of view of the Court. It means that the time

of the Justices in preparing the case for the

Taylor 2 6/6/91

purpose of a special leave application hearing is

largely wasted, and the direction of our inquiries

is now given a different focus. All I can say is

that it is a very unsatisfactory and inauspicious

start for the new procedure. I should also say

that it is a matter for regret that in the first

case it appears that the profession has not been

able to have the case prepared in a way that

complies with the underlying policy behind the new

procedures.

MR MORRISH:  Your Honours, in that respect I must take

responsibility for that. Your Honours will see

from the appeal book there has been a change of

counsel between the time that the appeal book was

prepared and the summary of argument prepared, and

with a change of counsel there has been a new

emphasis and a new approach. Your Honours, we

cannot take it any further than that, but to
apologize and point out that it really is a result

of a change of counsel.

MASON CJ: Yes.

MR MORRISH:  May I take Your Honours to point 1 of the

supplementary summary of argument. It is submitted

that the applicant, Taylor, suffered a miscarriage of justice because he was jointly tried with other

accused and the joint trial resulted in evidence

which was inadmissible against Taylor, but highly

prejudicial to him being before the jury. And it

is submitted that the inadmissible evidence

affected the verdicts returned against Taylor.

Now, that point involves an analysis of the

evidence that was given in the trial of Taylor and

the co-accused. It is more fully developed in the

outline of argument which forms part of the appeal

book, and it is not my intention to take

Your Honours through the factual basis which

underlies that particular point.	And I want to now
go to point 2 of the summary of argument.

MASON CJ: Point 2 of the supplementary summary?

MR MORRISH:  The supplementary summary, yes. Your Honours,

I will be working from the supplementary summary

right throughout these submissions.

It is submitted that a point of general

importance is raised by grounds 2, 5, 6 and 7,

namely, is it appropriate for an appellate court

when deciding whether there has been a miscarriage
of justice to take into account the matters of

public interest referred to in Reg v Demirok,

(1976) VR 244 at 254.

Taylor 3 6/6/91

Now, in that case there are four matters

identified as being matters of public interest, and

at page 254 at the top of the page the Full Court

puts the matter this way:

The matters of public interest which must be considered in this case, and in all such

cases, may be summarised as follows. In the
first place there is the question of the
administrative matters of court time spent and

public expense incurred if more than one trial

is to be conducted. These matters will in

many cases not be of very great weight, in

others they may assume real significance.

Secondly, it is against the interests of

justice that there should be inconsistent

verdicts, and those interests require that

where the accounts of accused persons differ

or conflict their differences should be

considerations, it has always been the policy of the law to reach finality as expeditiously

resolved by the same jury at the same trial.

as possible; and no system could function if

it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the

convenience of witnesses must be considered.
The lot of a witness in a criminal trial is
not a happy one, and unless for good reason
witnesses should not be required to give

evidence of the same events at a succession of

trials.

BRENNAN J: Whereabouts in the Court of Criminal Appeal's

judgment do we find this ground of argument

considered?

MR MORRISH:	Your Honours will find this at page 160 in the appeal book, which is 112 of the judgment of the
Court of Criminal Appeal.  In the middle paragraph
on that page the Court said this:  It was said that the evidence of Paul and

Julie Hetzel was of crucial importance in the case of the applicant Taylor, that Paul

Hetzel's evidence at any rate required

corroboration and that therefore prejudicial
material inadmissible against Taylor was
especially damaging. This point is the same
or similar to the point argued on behalf of

Craig Minogue and it must receive a similar

answer. That is to say it is an inevitable

feature of a joint trial that a jury's

impressions of a witness in one case may

affect their consideration of his evidence in

another. It is a feature to be weighed

Taylor 6/6/91

against the public interest in having a joint

trial, not only when that question is raised

at the outset of the trial but also when it is

raised in the appellate Court as a reason for

setting aside a verdict returned at a joint

trial.

It is our submission that when the reasons for the Court of Criminal Appeal are examined, essentially

what the Court is saying is that the matters

complained of as constituting unfairness were

matters which were foreseeable, were matters which

apply really in all joint trials and were matters

which had to be weighed against the public interest

in having a joint trial.

Now, we would submit that for an appellate

court to approach the question of miscarriage of

justice on this basis is incorrect, and it raises a

point of public importance to have the principles

clearly set out as to what an appellate court

should consider in cases where the complaint is

that there has been a miscarriage of justice

because inadmissible evidence has been considered

by the jury against a particular accused, that

inadmissible evidence having got before the jury by

virtue of the fact that it was a joint trial.

We would submit that the only question to be

decided by an appellate court is whether or not it

could be said that the verdict of the jury cannot

have been affected by the inadmissible evidence,

and that the verdict would have been the same.

BRENNAN J: But this question of joint trials and

inadmissible evidence and prejudice has been

considered by this Court on a number of occasions,

and the Court has said that it is a question of the

circumstances of each case and the protection that

can be accorded to an accused if a joint trial

should be ordered.

MR MORRISH:  Your Honours, we have not been able to find any

reported case where this Court has considered those

questions in the context of a joint trial of joint

accused. We have found cases where the Court has

considered the problem where there has been a

single accused but multiple counts, and where the

Court has held that evidence received in relation

to one set of counts was not admissible in relation

to the other. But we have not been able to find

any statement by this Court which concerns the

position in joint trials.

And yet if the Full Court is right in the present case, it would be appropriate in a case

where the court had decided that there was

Taylor 6/6/91

prejudice to the accused because inadmissible

evidence had got before the jury as a result of

joint trials, to then weigh against that prejudice

the four matters that are considered to be matters

of public interest in holding - - -

BRENNAN J:  But whenever you have a joint trial, for

example, containing a confessional statement from

the several accused, you have this problem, have

you not?

MR MORRISH:  Yes, you may have, Your Honour, but in each

case it will be a question of whether or not the

prejudice can be dealt with by way of a direction.

BRENNAN J: Quite?

MR MORRISH:	If the court comes to the conclusion that the prejudice could not be dealt with by way of
direction, we would submit that the problem cannot
be overcome by merely referring to the expense that
may be incurred by having a separate trial, or by
pointing to the desirability of avoiding
inconsistent verdicts and so on.  But it seems to
be implicit in what the Full Court has done, in
this particular case, that the Full Court considers is appropriate to weigh against the prejudice the four matters that seemed to affect the public
interest in having a joint trial.

Now, we would submit that this is an incorrect

approach, that the only questions that the

appellate court should be considering is whether or

not the inadmissible evidence was likely to have

affected the verdict, and whether or not directions

given at the trial were appropriate to deal with

any prejudice that may have arisen from that. If

the appellate court comes to the conclusion that it

cannot be said that the inadmissible evidence has

not affected the verdict, and that it was not

possible to deal with that inadmissible evidence by

way of direction, the court does not need to go any	further. There is no additional step of then
weighing up in the balance the public interest in
having a joint trial and saying, "Well, in this
case this prejudice just has to be tolerated because the alternative is to have two trials that
are lengthy and expensive. The alternative is to
put witnesses through the ordeal of giving evidence more than once. The alternative is to run the risk
that there may be verdicts which, on the face of
it, appear to be inconsistent", and so on. We
submit that that second step has absolutely no part
to play in the appellate process.

Taylor 6 6/6/91

DEANE J: Is not the critical step in Their Honours'

reasoning on this aspect of the case in the next

paragraph there?

MR MORRISH:  Your Honour, we do not concede that it is the

critical step, but there is no doubt that it is an

important step in their reasons.

DEANE J:  Assume that fourth sentence in that paragraph is

correct. The central plank of your argument in

this case disappears, does it not?

MR MORRISH:  With respect, no, because implicit in this

proposition that commences in that last paragraph

on page 160 is that - - -

DEANE J:  161. I am looking at the

MR MORRISH:  I am sorry, we are looking at different parts,

Your Honour.

DEANE J: Yes, I have been unfairly vague. It is the

paragraph beginning, "We have given", and the

sentence I had in mind was, "Whether he was to be

believed".

MR MORRISH:  But Your Honour, the point that is made is that

whether he was to be believed or not may be a

position reached by the jury by reference to

inadmissible evidence in the case of Taylor.

DEANE J: But what I had in mind was Their Honours expressly

found that the jury were capable of following and

applying the directions of the trial judge. That

was shown by their different verdicts. Well

now

MR MORRISH:  Yes. Well, Your Honour, there is no doubt

there is some force in the argument that the jury

by their different verdicts has shown that they

were capable of following direction, but with

respect, that does not really dispose of the point

raised by this appeal.

DEANE J: Except if one accepts that proposition in this

case you then have to point to a deficiency in the

directions because the Court of Criminal Appeal has

expressly found that it is apparent to them that

the jury was capable of following and applying

directions.

MR MORRISH:  We would submit, with respect, Your Honour,

that that really raises a different question, and

that is whether or not the material which is said

to be prejudicial was capable of being cured by

direction, arid we would submit it was not. But in

order to develop that we would need to analyse at

Taylor 6/6/91

some length the particular matters which we submit

constituted the prejudice. And although it is

superficially attractive to say different verdicts

indicate that the jury were able to follow

direction, it may not necessarily indicate that at

all. It may merely indicate that the jury were

prepared to accept the proposition that Hetzel and

Taylor were bombers.

MASON CJ: Mr Morrish, what do you say about the concession

made by Mr Lovitt, to which the Court of Criminal

Appeal refers at line 5 of page 161 in these terms:

Mr Lovitt frankly conceded that no one of the

individual points upon which he relied could

on its own justify a separate trial.

MR MORRISH: Well, Your Honour, it is not a concession that

we would make, and it is not a concession we

believe Mr Lovitt, in fact, made, because it is our
understanding that what Mr Lovitt argued was that

the evidence that emerged during the

cross-examination of Hetzel that Taylor had been

involved in making a previous bomb which had

injured a person called Weeden in Pentridge was a

matter which, on its own, justified separate

trials.

MASON CJ: Mr Morrish, I must say that it is disturbing to

find attempts before this Court to go behind or to
contradict statements made in the judgments of
lower courts as to the way in which the case was

presented before lower courts. There is no basis

on which we can really go behind a statement made

as to a concession contained in a judgment of the

court below.

MR MORRISH:	I appreciate that, Your Honour.
MASON CJ:	And yet increasingly we find attempts on the part of counsel to suggest that concessions recorded are
not accurately recorded. But for my part, I am
proceeding on the footing that the judgment
correctly records the concession that was made, and
as far as members of the profession are concerned,
if they have reason to contest the accuracy of
something that appears on the face of a judgment,
they should go back to the court and seek to secure
a correction.
MR MORRISH:	If Your Honour pleases. May I move,

Your Honours, to the remainder of the outline on

point 2. It is submitted, Your Honours, that it is

no part of the appellate process when considering

whether inadmissible evidence which the jury heard

because the accused was jointly tried, has resulted

in a miscarriage of justice, to balance the

Taylor 8 6/6/91

prejudice to the accused against the public

interest in having a joint trial. It is submitted

that the Court of Criminal Appeal fell into that

error and did not apply the appropriate principles

in deciding this particular aspect of the appeal.

Your Honours, can I move on to point 3 which

is this. Although the grounds of appeal and the

outline of argument in relation to those grounds

concern the immediate question of whether or not
the inadmissible evidence.has resulted in a
miscarriage of justice, we submit that the grounds

involve a more fundamental question of law, namely,

in what circumstances and according to what

principles should a trial judge order separate

trials of jointly presented accused.

In Victoria the trial judge is required by

Victorian authority - and that is the case of

Demirok - to balance the public interest against

the interests of the accused in deciding whether a

separate trial should be ordered.

DEANE J:  Mr Morrish, can I just take you back. What do you

understand Their Honours meant by "a miscarriage of

justice" in the fourth last line on page 161 which

is the phrase you are using?

MR MORRISH: Well, Their Honours do not define what they

mean.

DEANE J: Well, you are using it all the time. What do you

mean by it?

MR MORRISH:  What I mean by it, Your Honour, is that - - -

DEANE J: That somebody did not get a fair trial, or that

somebody has been convicted when he was innocent?

MR MORRISH:  No, Your Honour. I am using it in this sense:

that where inadmissible evidence has gone before

the jury it cannot be said that the verdict was

unaffected by that inadmissible evidence, and I am

using in that sense, Your Honour, in the sense that

was explained in Marie.

DEANE J:  And is that the sense in which you understand

Their Honours to have been using it?

MR MORRISH: It is not apparent, with respect to

Their Honours, what sense they are using it in

there because we would submit that the general

approach they have made to this ground is really to

say, "Well, all the things you complain about were

things that were foreseeable. They are the things

that happen in a joint trial. You have to balance

the interests of the public against these sorts of

Taylor 9 6/6/91

things in a joint trial, and accordingly, we do not

find there has been any miscarriage."

DEANE J:  But must not the ultimate question always be

whether the effect of the joinder was that the

accused was relevantly denied a fair trial?

MR MORRISH:	With respect, yes, Your Honour, but in the context of inadmissible evidence, we would submit
that that resolves itself down to the proposition that the inadmissible evidence has affected the verdict.
DEANE J:	I understand the way you put it, yes.
MR MORRISH:	And it was really in that sense that we have

concentrated because we would submit that the
reason there has been a miscarriage of justice in
the case of Taylor is that the jury have had before

it inadmissible evidence which was highly

prejudicial to his case.

BRENNAN J:  Can you identify precisely what that evidence

was and what directions were given to the jury with

respect to its consideration?

MR MORRISH:  Yes, Your Honours. The best way I can do it is

to deal with them in topics. The first matter was

evidence which was elicited in cross-examination of

Hetzel that Taylor had previously made a bomb in the jury in the form of a videotape of a television

programme made in approximately 1976 in which

Hetzel was interviewed generally about prison life

and what it was like in "H" Division. But on the

same videotape there was film of Taylor wiring up a

television set, and this was put in by a

co-accused, of course, to further the proposition

that Taylor was the sort of man who had the

expertise to wire up a bomb. And it was part of

the Crown case that Taylor's presence at

Haros Avenue on the day that the bomb exploded was

for the purpose of providing the technical

expertise. But, of course, this was not part of

the case led by the Crown.

The next category of inadmissible evidence

that came out was allegations of Taylor's long-term

criminality.

BRENNAN J:  Made by whom?

MR MORRISH: These were made by the co-accused, in

particular counsel for Reed, counsel for

Craig Minogue, and it was designed to show that

Taylor was a hardened criminal, a very bad

character, and that his criminality had gone back

Taylor 10 6/6/91

over many, many years, and it was such that it

involved him being in "H" Division. In addition,

it was suggested that he was the associate and

friend of murderers, and there were two people in

particular named - a person called Peckmam who was

responsible for two murders with an axe, and

another person called Walker of Ryan and Walker

fame, who was responsible for two deaths as well.

DEANE J:  "H" Division is a well-known division of Pentridge

is it?

MR MORRISH: It used to be, Your Honour, yes.

DEANE J:	What for?
MR MORRISH:	It was where the most hardened and recalcitrant

criminals were placed.

DEANE J: Is the evidence about "H" Division referred to or

summarized in anything in the application book?

MR MORRISH:  Your Honour, may I ask my learned junior to

look at that. Off the top of my head, I am not

sure, Your Honour, but I do have a summary here

with page numbers where this - - -

DEANE J: It is probably in here somewhere.

MASON CJ: But Mr Morrish, my recollection of the summary of

argument presented did not identify the third and

fourth matters which you have just identified.

MR MORRISH:  Your Honour, all I can say is that it should

have.

MASON CJ:  Once again, it indicates a failure to prepare

· this matter satisfactorily in advance.

MR MORRISH:  Your Honour, I cannot answer that.

BRENNAN J:  Mr Morrish, each of the matters you have

referred to arose in the course of the presentation

of argument, or the cross-examination by counsel

for a co-accused.

MR MORRISH: That is so.

BRENNAN J:  So the problem is not one of the original

joinder. It is one of the conduct of the trial in
the course of which an event occurred, or events
occurred, in your submission, which justified a

separate trial.

MR MORRISH:  We agree with the latter part of that

proposition, but we would say that an application

should have been made. It was not made on behalf

Taylor 11 6/6/91

of Taylor at the beginning of the trial. In fact,

an application was made for joint trials, and the

reasons for that are difficult to determine. But

we would submit that at the outset there was a

basis for applying for separate trials and it

should have been an application for separate

trials. Application was made by the co-accused for

separate trials at the outset. We agree with the

second proposition by Your Honour, that as the

trial progressed the need for separate trials

became more apparent.

BRENNAN J:  And an application was made in at least one of those cases.

MR MORRISH:  Yes, Your Honour. An application was made

after the cross-examination of Hetzel and -

BRENNAN J: With reference to the making of the bomb that

blew up Weeden?

MR MORRISH:	Yes, that is so.
BRENNAN J:	Now, was any other application for separate

trial made?

MR MORRISH:  No, there was not.

BRENNAN J: Well then, in relation to that application

Mr Justice Vincent gave a ruling -

MR MORRISH: 

Yes he did.

BRENNAN J: 

- - - based upon his understanding of the

purport of the cross-examination and of the answer
given.

MR MORRISH: 

Yes.

BRENNAN J: 

So that special leave is being sought from this

Court in order to consider whether, in relation to

His Honour's impression, that impression was

correct?

MR MORRISH: That was one of the grounds, Your Honour. That

is ground 2, yes.

BRENNAN J: Well now, what other ground is there which would

justify the grant of special leave in a case where

no application save that one was made for separate

trials, and indeed where, as you say, at the

opening of the trial counsel for Taylor sought a

joint trial?

MR MORRISH:  Your Honours, it is submitted that the appeal

raises general questions of public importance.	But
to be more particular about why it sh9uld be

Taylor 12 6/6/91

granted in this particular case or why these points
of public importance arise in this case, we would
submit that the combination of what had occurred at
the trial, despite the failure of counsel for

Taylor to apply for a separate trial at the outset,

despite his failure to apply for separate trials as

the trial progressed apart from the application to
discharge the jury after the Hetzel
cross-examination - despite all of that, the
combination of what occurred here amounted to a

miscarriage of justice, and· for that reason this

Court ought to hear this application.

Your Honours, I had started to summarize the various matters which we relied upon in combination

as showing that the trial had miscarried. As the

trial developed it became clear that the defence

that was being run by the co-accused was that

Taylor and Hetzel were the bombers, and that

proposition was advanced in the course of unsworn

statements. And it was also advanced in the

evidence of a man called Brazel who was called

during the case of Craig Minogue, and the purpose
of his evidence was to put before the jury evidence

that Taylor had admitted to Brazel that he was the

bomber and had said that the others were innocent.

Now, it is our submission that that evidence was
completely inadmissible in the case of

Craig Minogue as being complete hearsay, but yet

that was put before the jury. But in addition, as

part of that evidence, it was alleged that Taylor

had admitted being involved in previous bombing.

We would submit that that coupled with various

other things that were said in unsworn statements

about Taylor's character, such as that he was
involved in a car stealing racket, he was involved
in drug running and so on, produced an atmosphere

based on inadmissible evidence in which it was

impossible for him to get a fair trial.

There is one other aspect that I ought to

refer to Your Honours. It does not arise directly

from any ruling that was made by the trial judge,

but it does arise from the fact that the applicant

was represented by a very inexperienced solicitor. The defence that the applicant put forward was one

which involved a very fine point. He had admitted

that he was involved in the burglary on the

Tryconnel mine and was present when the gelignite

and detonators were stolen. He had admitted that

he was at 15 Haros Avenue, the place where the bomb

apparently was assembled and from which the bomb
car left on the day of the bombing, on the day of

the bombing. He admitted that he saw the bomb car

and saw the gelignite in the car, saw the

detonators in the car and knew before. the bomb car

Taylor 13 6/6/91

set off that a bombing was going to occur. He

admitted that he left the premises at the same time

as the bomb car but returned to those premises at

Haros Avenue and was present at the premises when

the bombers returned after the bombing had

occurred.

The explanation he offered to the police for

being present at Haros Avenue on the day was that

he had gone to Haros Avenue because he intended to

commit an armed robbery with Craig Minogue and Reed

and that was the reason he was there. He was

invited to be part of the bombing and refused and

took no part in it.

Now, in order to give some credence to that

explanation, it was vital that he say to the jury

that he was there at Haros Avenue to do the armed

robbery with Craig Minogue and Reed, because

otherwise the fact that he was doing an armed

robbery did not explain his presence at Haros

Avenue at all. It was completely irrelevant. He

had come down from Birchip to Melbourne for the

purpose of doing the armed robbery, but it did not

explain his presence at Haros Avenue.

Counsel for Taylor was persuaded before the

trial commenced to delete from his case any

reference to the fact that he had been at Haros

Avenue for the purpose of doing an armed robbery with Craig Minogue and Reed, and all such

references in the interviews was then deleted.	So
the way it went before the jury was that Taylor
conceded he was at Haros Avenue, asserted he was there to do an armed robbery, but gave no
explanation as to why he was actually at Haros
Avenue for the purpose of an armed robbery, and
gave no explanation as to why he was still there
after the bombing had occurred.

Now, it was common ground between the Crown

and the accused that, in fact, the applicant had

committed an armed robbery that day on the Donvale

bank with Reed and Minogue. But that was never put

before the jury because it was believed by counsel

for the applicant that to do so would prejudice the

trials of the other accused, Minogue and Reed. The

result was that only part of his explanation and

the only convincing part of his explanation was
left from the jury's consideration.

But on the other hand, he had to suffer the accusations that were made in an inadmissible form

against him during the cases of the co-accused

which suggested that he was a man of extremely bad

character, an expert in bomb making and the person

who, in fact, had made the bomb.

Taylor 14 6/6/91

Now, we submit that in those circumstances

this is a case where the verdict of the jury could

not be said to have been unaffected by the

prejudice that flowed from joint trials, and for
that reason this is an appropriate vehicle for
these other matters which we submit are matters of

public importance to be considered by this Court.

Your Honours, may I return to point 3.

Point 3 concerns what are the appropriate

principles to be applied by a trial judge in

deciding whether or not trials should proceed

jointly or separately. And it is our submission

that the law applied in Victoria is incorrect.

In Victoria, trial judges are obliged to weigh

on the one hand the prejudice to the accused, and
on the other hand the matters of public interest
which are set out in Demirok.

BRENNAN J:  But there was no application for separate

trials. To the contrary, there was an application

for a joint trial.

MR MORRISH:  Yes, Your Honour. There was no application

made by Taylor. There were applications made by

the other accused.

BRENNAN J: Well, we are concerned with Taylor's case, are

we not at the moment?

MR MORRISH:	Yes.
BRENNNAN J:	So his counsel conducted it on the footing that there should be a joint trial.
MR MORRISH:	Yes, he did.

BRENNAN J: Later he sought the separate trial on the ground

of something that had occurred in the course of the

trial.

MR MORRISH:  Yes, Your Honour.

BRENNAN J: Well, how does that case give rise to a

consideration of the general problems that you want

to agitate?

MR MORRISH:  Your Honour, it is submitted that it does give

rise to it despite the fact that there was no

application made by counsel for Taylor.

BRENNAN J: How would this Court deal with it? On the

footing that some non-application resulted in a

non-order which ought to have been made?

Taylor 15 6/6/91

MR MORRISH:  It may deal with it on the basis of what duty a

trial judge has of his own motion to order separate

trials in circumstances where it is apparent that

the conduct of a joint trial is unfair to one

particular accused.	Your Honour, that is as high
as we can put it.	We appreciate the problems we

have in raising these points given the way the

trial was conducted. All we can do is say to this

Court that the Court should not approach it on the basis that this approach was a reasoned, considered

approach by experienced counsel, but rather on the

basis that this was an approach that was adopted by

a person who was inexperienced in running criminal

trials, and that Your Honours should use the

occasion presented by this application to consider

what we would submit are important points of

principle to be applied in all criminal trials.

Your Honour, I do not think I can take the matter

any further than that in relation to it.

MASON CJ: Yes.

MR MORRISH:  In relation to this ground raised in point 3,

we would submit that it is a matter of public

importance for this Court to consider what

principles ought to be applied by a trial judge in

deciding whether separate trials should be granted,

and we would submit that this matter has not been

given consideration yet by this honourable Court.

The problem with joint trials is one that is

going to be increasingly before a court,

particularly as trials get longer and more complex.

We would submit that the approach that is adopted

in Victoria is an incorrect approach; that the

matters that are put forward as public interest
matters are irrelevant to the consideration of
whether or not a separate trial should be granted.

These matters are matters which are arguments for

having a joint trial and arguments for the prima

facie proposition that jointly accused people

should be jointly tried. But once an application	is made for separate trials, we would submit they
no longer have any basis.

If the trial judge comes to the conclusion

that conducting a joint trial will result in

prejudice to the accused that cannot be cured by

direction, there is no counterbalancing argument to

be put. It should not be the position that having reached that state of mind the trial judge says,

"That prejudice will just have to be tolerated by

the accused because the cost of having a separate

trial as opposed to a joint trial is too

prohibitive; or alternatively, that there will be

inconsistent verdicts if there are separate

trials."

Taylor 16 6/6/91

It is our submission that it is in the public

interest that this honourable Court lay down the

principles authoritatively which a trial judge

should apply in deciding applications for separate

~rials.

Your Honours, may I move to point 4. This

point concerns the circumstances in which a trial

judge gives an accomplice warning to the jury. It

is submitted that ground 3 raises a point of law of

general importance to the conduct of joint trials

where there are multiple accused and multiple

counts. Where a witness may be an accomplice of one or more of the accused in relation to one or more of the counts is it appropriate for the trial

judge in the context of the accomplice warning to

leave it to the jury to decide whether or not the witness was an accomplice of a particular accused

on a particular count, and then to decide whether

the accomplice warning applies to that witness.

Now, in this particular trial, what the learned trial judge did was to give the jury

directions of law as to what in law an accomplice

was. He then identified evidence which may suggest

that the witness was an accomplice on one or more

of the counts on the presentment, and he then left

it to the jury to decide whether or not the witness

was, in fact, an accomplice. In addition, he did

give the accomplice warning. In addition, he

identified those parts of the evidence which were

capable of amounting to corroboration of various

aspects of witness's evidence.

But it is our submission that such an approach

imposes an intolerable burden on the jury. What

the jury had to consider here was a very lengthy

complex amount of evidence and their task was complicated and added to by an approach which

effectively left it to them to decide whether the

particular witness was an accomplice of a

particular accused in relation to a particular

count, and then left it to the jury then, having

made that assessment, to decide whether or not it

was a case where the accomplice warning ought to

apply to that witness's evidence.

BRENNAN J: Is the witness you are speaking of Zelinka?

MR MORRISH:  The witness I am primarily speaking of is

Hetzel, but it applied both to Hetzel, Mrs Hetzel and Zelinka. Zelinka's is, of course, more of a problem for the other accused than it is for Taylor. But effectively, the jury were left to

their own devices having been given the general
instructions as to what an accomplice is, been

given some assistance as to the evidence that may

Taylor 17 6/6/91

be available to suggest that a witness was an

accomplice.

BRENNAN J: Well, according to the Court of Criminal Appeal

on page 66, His Honour directed the jury that -

Hetzel was certainly an accomplice in relation

to counts 1 and 2 and might be regarded as an

accomplice in relation to the bombing counts.

Is that the proposition which you join issue with?

MR MORRISH:  Your Honour, it is not so much that proposition

we join issue with, but rather the general approach

that was adopted by the trial judge which

effectively left it to the jury to decide whether

or not in relation to a particular count and a

particular accused, the witness was an accomplice.

BRENNAN J: Well, whether or not in the case of Taylor,

Hetzel was an accomplice in relation to any of the

counts on which Taylor was charged.

MR MORRISH:  Yes.

BRENNAN J: Well now, 1 and 2 were dealt with by express

direction.

MR MORRISH: That is so but, of course, on 1 and 2, Taylor

had admitted his involvement in those two counts.

BRENNAN J:  Now, in relation to the other counts, it was

left to the jury to say whether in their view

Hetzel was an accomplice of Taylor, and what

evidence was there that Hetzel was an accomplice of

Taylor?

MR MORRISH: Well, in terms of the evidence given by Taylor,

none.

BRENNAN J: Well, where is there a ground for concern?

MR MORRISH:  The ground for concern arises because it was

alleged by the co-accused in their unsworn
statements and by cross-examination of various

witnesses that Hetzel was the bomber.

BRENNAN J: Well then, it was left to the jury on the

footing that the co-accused had said these things, to consider in Taylor's case whether Hetzel was an

accomplice.

MR MORRISH:  Yes, Your Honour. There is no complaint in

terms of what the judge did in that regard. The

point that we raise here is whether or not this

approach is really the appropriate approach, or

whether or not the burden on the jury ought to be

Taylor 18 6/6/91

relieved by the trial judge deciding for himself

whether or not it is appropriate to give the

warning in relation to a particular witness.

BRENNAN J:  But how could the judge give that warning except

on the footing of a finding that Hetzel was an

accomplice?

MR MORRISH: It may be, Your Honour, that the appropriate

way to do it is for the judge, if he considers that

there is a possibility on the evidence that Hetzel

was an accomplice, to give the warning in any

event, but not to put on to the jury the burden of

having to decide whether or not a particular

witness was an accomplice.

Your Honours, it can produce great

circularity. For example, if you had a witness

who, on the Crown case, was certainly not an

accomplice but who a co-accused said in his unsworn

statement was an accomplice, in fact was the prime

offender, how is the jury to approach it? Are they

to make some assessment of the weight that they

give to the unsworn statement before they begin to

consider whether or not the person is an

accomplice, and whether or not the warning ought to

be applied to that person? What standard of proof

do they apply in those circumstances?

We would submit that this creates a

complication in a trial which is not necessary, and

which can be resolved quite simply by the judge

making his own assessment whether the witness is

one to whom the jury ought to have their attention

drawn, and about whom there ought to be a warning given. It would make for a much simpler approach

and would relieve the jury of a complicated and

difficult task.	We submit that this issue of
public importance is raised in this case.	The
matter has not been considered by this Court.	The
authority that seems to apply is Davies v The
Director of Public Prosecutions, (1954) AC.	The

matter has not been considered authoritatively yet

in Australia, and we submit that this is an

appropriate vehicle to consider this particular

point.

Now, Your Honours, unless there is some other

matter that I can assist you on, they are the

matters that we put to support the proposition that

there are general matters of public importance

raised by this appeal.

MASON CJ: Thank you, Mr Morrish.	Mr Castan.
MR CASTAN:	May it please the Court, there are in substance

four areas that we would seek to draw Your Honours'

Taylor 19 6/6/91

attention to which cover the grounds upon which

special leave is sought. The first of them is

broadly headed "unsafe and unsatisfactory". It

arises out of a very difficult situation, and one

which Your Honour the Chief Justice has already, I

think, adverted to this morning, and that is that

the Court of Criminal Appeal specifically stated at

page 129 of the application book that:

Ground 33 of Craig Minogue's application was

not argued before us. Accordingly, it

follows -

and it goes on to dispose of it as the last ground.

The position is that it was argued, Your Honours,

and I have - - -

MASON CJ: But how can we determine that, Mr Castan?

MR CASTAN: Well, there is a difficulty about that,

Your Honour, and I heard clearly what Your Honour

said earlier. All we can put is that it was argued

that learned senior counsel who was there has gone

on oath because of the difficulty of this situation

and has now sworn an affidavit that has just been

filed saying he argued it. It is difficult and

highly unsatisfactory. I readily concede that,

Your Honours, but it should be treated, we would

case which occurs from time to time where a ground is simply not dealt with by a Court of Criminal	respectfully submit, as though it is the kind of responded to in the written submissions of the
Crown, and we have endeavoured to put material
although we appreciate the difficulty that has been
mentioned. ·

MASON CJ: Well, why do you not go back to the Court of

Criminal Appeal and secure a correction of the statement if it be incorrect?

MR CASTAN:  Yes, that is a course that perhaps should have

been undertaken certainly initially, and it was not

for reasons that appear to have to do with learned

counsels travelling to Darwin and other sorts of

practical reasons, and it was not done.	Perhaps
it could now be done.	The difficulty is - all I

can say is that perhaps would be a course.

That would leave the situation in which the

court presumably could not then, in effect,

undertake again - that is to say, the Court of

Criminal Appeal could not then undertake again the

task which it necessarily must on the basis of the

decisions of this Court, which is to consider the

evidence in full and come to a conclusion taking

into account all the matters that relate to it for

Taylor 20 6/6/91

the purpose of determining whether or not it was

unsafe and unsatisfactory.

MASON CJ:  Why not, if the Court came to the conclusion that

it was incorrect in making the statement that the

matter was not argued?

MR CASTAN:  Then it could then, so to speak, rehear the

whole of that matter. Is that - - -

MASON CJ: Yes.

MR CASTAN: Yes, it could do that. It could not - - -

BRENNAN J: Well, would it have to rehear it, because the

assumption must be that this was not merely a

ground that was taken, but a ground that was

argued, and therefore the argument has already been

delivered? It would only be a matter of the Court
of Criminal Appeal dealing with the argument as

delivered.

MR CASTAN: That illustrates the difficulty, if I may say so

with the utmost respect, Your Honour. If the court

has proceeded on the basis that it was not argued

and there is no record of the argument, there is no transcript taken, then the court has nothing before
it. The court has no basis on which to evaluate the argument which in the court's recollection when

it delivered its judgment, was not put to it at

all. So that it is not practical, we would

respectfully submit, to proceed on the basis that

one would go back and then treat it as though it

has been argued, and then say, "Well, it was

argued. Now please determine the argument that you

think you did not h~~r at all."

MASON C~:	Mr Castan, I must say that the impression I have from reading the materials that you have filed is
that if the point was taken before the Court of
Criminal Appeal it was not substantially argued.
Now, one knows that if a case of unsafe and
unsatisfactory is fully argued before a court, it
takes time and it requires a thorough canvassing of the materials at the trial.

Now, looking at the notes of arguments that

are referred to in the affidavit material that you

have filed, they do not convey to me that such a

comprehensive argument was put to the Court of

Criminal Appeal. My impression is that the

argument may have been noted or flagged. There was

a passing reference to Carr's case, and as far as I

am concerned, that appears to be the sum total of

it.

Taylor 21 6/6/91

MR CASTAN:  There is no question, and Mr Ross says it was

short. It is not submitted otherwise, Your Honour.

It was exhaustively analysed, but what had happened

was that that was the last ground after all the

other matters had been exhaustively analysed that

were in the various grounds. So that Their Honours

had before them and were then considering the full
range of all those matters that were encompassed in

32 grounds that had been canvassed. So at that

time, to come to the unsafe and unsatisfactory and
then say, ttNow, you have considered all those

matters. Now look at them in the context of unsafe

and unsatisfactory" is, we respectfully submit, a

potentially powerful submission.

To come back and say, "Well now, we only took

two or three minutes to put that shortly to you

last time after you had heard lengthy argument over

some days, and now say well, now some two years

later deal with it and I will put the same

abbreviated argument" is again, we would

respectfully submit, unrealistic and is not an

appropriate course. And the dilemma is that if it

is merely corrected and it is corrected on the

basis that it is then said by the Court of Criminal

Appeal, "This matter was argued", Their Honours

would have to go on and say, to correctly reflect

the situation, "but it was not considered by us."

That is, in effect, what they would be asked to determine, and it has its own difficulties, as

Your Honours will appreciate.

BRENNAN J:  The entrees were so large it is hard now to

convert this into the main course, is it not,

Mr Castan?

MR CASTAN:  Very difficult, but it is a ground which, we

. would respectfully submit, should have been

considered and the correct approach to it, we would

respectfully submit, is that it should be treated

as a ground which was simply missed, and as this

Court has said in Jones's case, (1989) 166 CLR 409,

the Court of Criminal Appeal must deal with the

grounds. Now, it must exercise the jurisdiction.

That is the way in which we put it,

Your Honours, and we would respectfully submit the

appropriate way to deal with this particular

situation is to deal with it as though it is one of

those grounds that simply was missed or passed

over. It is entirely regrettable and entirely

unsatisfactory we would readily concede, but we

respectfully submit that it is important in the

administration of justice and a matter that should

be remedied by this Court.

Taylor 22 6/6/91

I do not know that I can advance it any

further than that. The unsafe and unsatisfactory

ground is, of course, the subject of substantial

authority.

Can I take Your Honours to the question of

corroboration, and the way in which we put this is

that we do not criticize the Court of Criminal

Appeal for what they have said about this matter.

It is rather what they have not said. It is

necessary to take Your Honours briefly to

pages 66 to 68 of the application book to see how

the matter arose, particularly in relation to the

witness, Zelinka.

Could I direct Your Honours' attention to

page 67, the second paragraph where the court said:

In relation to ground 14, we repeat that

his Honour left it open to the jury to find

that Zelinka was an accomplice, although there

was very little evidence upon which such a

finding could be supported. Furthermore, his

Honour said that if the jury considered that

there was "a possibility of substance" of

Zelinka being implicated in the crime they jury should "exercise the greatest possible care" about his evidence.

In our opinion, his Honour's directions

concerning Zelinka's evidence were quite

satisfactory. The jury was only required to

treat Zelinka as an accomplice if it was

affirmatively satisfied that he fell into that

category. His Honour left that option open to
the jury but said that great care should be
exercised even if there was only a possibility

of Zelinka's implication.

As to the complaint under ground 15, we

cannot accept that, in the case of a witness

the trial Judge to identify the material which such as Zelinka, there is an obligation upon is potentially corroborative of his evidence.

The only evidence suggesting that Zelinka

was implicated in any of the charges is to be

found in the unsworn statement of

Craig Minogue. This statement inferentially

implicates Zelinka in the theft of the car.

Zelinka strenuously denied the allegation when

it was put to him during his evidence. It was

not suggested by anybody that Zelinka was

implicated in the bombing.

Now, all of that is fine as far as it goes, but it

does not address the thrust of what was being

Taylor 23 6/6/91

submitted which was that the warning should be

given about Zelinka, not only if he was an

accomplice, or if the jury was satisfied that he

was an accomplice, but if it was of the view that

he had a purpose of his own to serve.

The important matter that arises here is the

whole question of the category of cases in which

corroborative evidence is required, and in which

direction should be given about the requirement for
corroborative evidence.

Your Honours, in Vetrovec v Reg,

(1982) 136 DLR (3d) 89, the Supreme Court of Canada in a judgment in which all of Their Honours joined,

reviewed the whole of the law relating to

corroboration, and expressed the view that it was

time to do away with the technicalities, if we can

call them that, with the categories, with the

restriction that only an accomplice and certain
categories of witnesses in sexual offence cases and

the other well-known strictly defined categories, that they are the cases in which corroboration is required.

What Their Honours did was to take on board

the whole question of: what is the underlying

rationale of the reason for requiring

corroboration? What are the origins of the rule?

Why is it that a warning is given, and how has it

come to develop all of the strict technicalities

about the precise definition of what the category

of person is, that is to say in this sort of

situation, an accomplice, and then the precise

items of evidence that may amount to corroboration?

What the Supreme Court of Canada has done is say it

is time to set aside those technical doctrines.

The history in English law is examined in detail in

that decision and to set up a set of criteria that

reflect the real rationale of the rule. That is to

say that a warning should be given that in certain

be suspect, whether it be because they are an situations certain types of witnesses are going to	accomplice; whether it be because as occurred here
the witness Zelinka had a purpose of his own to
serve as it has been said.

There is a decision in an English case of R v

Prater in 1960 in which this additional category

was - - -

MASON CJ: First of all, before you leave Vetrovec, was this

notional concept of a witness having "a purpose of

his own" used as a foundation in Vetrovec for

requiring accomplice-type warnings or for requiring

corroboration?

Taylor	6/6/91
MR CASTAN:	The concept of "a purpose of his own" was not, I

think, expressly picked up in Vetrovec.	What
they -

MASON CJ:  So that the only reliance you are placing on

Vetrovec is that the Supreme Court of Canada took

the view that the existing law was unsatisfactory

and required re-examination.

MR CASTAN:  Yes, Your Honour. What has happened in

Australia is that following the English case of

Prater, (1960) 44 Cr App R 84, a category was, so

to speak, created in that case of the witness "who

has a purpose of his own to serve". That was

adopted in the Full Federal Court in the case of

Reg v Chong, (1989) 40 A Crim R 22 in which our

Full Federal Court has picked up that notion in

that particular case. We have copies. That was

not on our list and we picked it up relatively

late.

MASON CJ: Yes. Will you hand that in?

MR CASTAN:  In Chong, Your Honours will see that was a case

which was dealt with by the Supreme Court of

Christmas Island, the trial for which was held in

Western Australia, and the appeal from that court

is to the Full Federal Court of Australia.

Your Honours will observe at page 43 in the

judgment of His Honour Mr Justice Jenkinson at

approximately point 4 down the page, there is a

sentence after describing Chang's stabbing of Tan

as -

not rationally diminished by a finding that

Tan's resistance was not vigorous -

His Honour goes on:

But any evidence which tended to aggravate

Toh's offence may be thought to make it

easier, psychologically, for the jury to

exculpate Chong. In responding to the

questions put to him by Toh's counsel, Chong

was in my view a person who might be regarded

as having a purpose of his own to serve, and

he was therefore just such a witness as the

English Court of Appeal in Prater,

(1960) 2 QB 464, said should be made the

subject of a warning.

Now, what was put to the Court of Criminal Appeal

was that Zelinka in the present case had a belief

that he might be charged as an accessory, and that

on the basis of that belief the concern that he

might be charged as an accessory. We submit the

jury ought to have been charged that· he had a

Taylor 6/6/91

"purpose of his own to serve'' and the warning

should have been expressed in those terms.

It is significant in this case because, of

course - - -

BRENNAN J:  What terms are they?

MR CASTAN: Well, we submit that in the particular case the

warning should have been that he had a purpose of

his own to serve, that his evidence was suspect,

not just if the jury believed that he was an

accomplice, and the evidence as to him being an

accomplice was relatively weak. It concerned a car

and it only emerged out of an unsworn statement.

But the evidence as to his concern about possibly being charged as an accessory was much stronger.

BRENNAN J:  What were the terms of the warning actually

given?

MR CASTAN:  The terms of the warning were expressed - I

think summarized at least, at page 67 where the

Court of Criminal appeal expresses it this way in

the second paragraph:

Furthermore, his Honour said that if the jury considered that there was "a possibility of

substance" of Zelinka's being implicated in

the crimes the jury should "exercise the

greatest possible care" about his evidence.

MASON CJ:  Was there an application for a direction that the

trial judge give a warning in relation to the

witness having a "purpose of his own to serve"?

MR CASTAN:  It was not expressed in those terms,

Your Honour. The way it emerged was in rather more

general terms, and I should I think read it -

unfortunately I do not think we have copies - but I

will read the passage and Your Honours will see

what happened from the exchange.	On page 6083 to
6084 - and the way it was put by counsel was:
I put it the warning that ought to be said to
the jury to find that he was in that position - and one only needs to point to the
evidence relating to the 2.30 and the 5.30 evidence - that it can be put that that
arises, and that the jury could find that that
arises as a result of consciousness of his own
guilt and participation in the theft of the
motor car.

And then it goes on and the submission then relates to this question of implication as an accomplice in

relation to the motor car. Again it. is said:

Taylor 26 6/6/91

Those events occurred by reason of the

consciousness of guilt of association in the

theft of the motor car at the very least and

therefore the accomplice warning ought to

apply to him, Your Honour. If it is put -

and then it gets wider -

and I put it that the jury ought to be warned

in turn that persons who have a family

connection who are cl6sely associated with a

family who may be thought to be involved, it

may simply be a credit issue. It may simply

be a credit matter that could be drawn to

their attention. But whether one could extend

the accomplice warning concept beyond persons

who can properly be said on the material to be

directly involved themselves, such as Shane

Davies -

then there is a dash and the transcript reads:

No, I thought I would just give it a try. I

see the head shake, Your Honour, and I won't

continue further. Your Honour, I was simply

seeking to point to some items of evidence

from which it can properly be argued that

those people were in that position.

MASON CJ:  Look closely and you may see three heads shaking,

Mr Castan.

MR CASTAN:  It is a familiar experience. Your Honour, what

was being put with some hesitation, and relatively easily deterred we would concede, was a much wider

proposition, that a warning should be given in

respect of those persons who were associated or, to bring it closer to - and it was not put in terms of the specific way in which it was defined before the

Court of Criminal Appeal where an attempt was made

to define the proper principle by reference to the

line of authority founded on Prater, where there is

at least a category called "those who have a

purpose of their own to serve". What was really

being put to His Honour the trial judge was a much

broader proposition, the proposition that emerges
when one sees the way in which the matter has been

dealt with by the Supreme Court of Canada who said,

"We don't need to find these closely defined and

technical categories. We look to see whether the witness is a kind of witness in respect of whom a

warning should be given that their evidence must be

taken with caution, that the jury should look for

something else to support it."

Now, it was put in that general way at the

trial, admittedly very hesitantly and easily

Taylor 27 6/6/91

deterred. It was put in a much more specific way

related to the witness Zelinka at the Court of

Criminal Appeal, that is to say, in terms of "a

person who has a purpose of his own to serve".

That picks up the Prater doctrine that has been

adopted in the case of Chong that I have taken

Your Honours to.

The Court of Criminal Appeal did not deal with

that question in those terms at all, did not deal
with it in terms in which it was argued, they dealt

with it in what we might call the conventional or

traditional terms of whether or not the witness was

an accomplice and say that there was appropriate

warnings given. And what - His Honour, the trial

judge falls within what might be termed the
traditional view, and His Honour's shake of the

head, no doubt, reflected the traditional view. We

would respectfully submit two matters: one is that

in relation to this case where the witness,

Zelinka, who is a critical witness in terms of the

evidence that was brought as against this

applicant, where the warning was given only in

terms limited to an accomplice and where the

evidence of the possibility of being an accomplice

is very slight as against the evidence in relation

to the reason why great care should be taken with

Zelinka's evidence, he having a propose of his own

to serve or in putting it in broader terms, we

submit that it is relevant to the particular case,

relates to the basis upon which the jury made their

finding in specifics because it relates to the

witness, Zelinka, and it raises a question of

general principle, we would respectfully submit - I

put it this high - that the time has come for this

Court to have a good look again at the whole

question of corroboration and whether those

strictly defined categories are the proper basis on

which juries should be charged.

BRENNAN J:	Mr Castan, can you direct us to the passage in the charge where the judge gave the jury the
direction as to Zelinka's evidence?

MR CASTAN: It is at pages 7007 to 7009, Your Honours, and

in first dealing with - I will read Your Honours

part of the material dealing with Julie Hetzel
because what is said there is then adopted in

relation to Zelinka. His Honour says:

There is obviously not as much to say or

anything near as much to say in respect of her

evidence as there is in relation to the
evidence of her husband. Julie Hetzel, on her

own evidence -

BRENNAN J: Page 7007, is it?

Taylor 28 6/6/91

MR CASTAN:  Page 7007, at the foot of the page,

Your Honours, where His Honour says:

I said to you earlier that I would speak

separately about Julie Hetzel.

He says:

There is obviously not as much to say ..... as

there is in relation to the evidence of her

husband. Julie Hetzel ..... has indicated that

she went with her husband over to her son's

home at Blackwood for the purpose of securing

information .... She has also, in

cross-examination, said that she anticipated

that there might be some kind of criminal

activity contemplated. In that situation, it

would certainly be open to you to come to the

view that she was an accomplice to the

burglary of the Tryconnel Mine and of course

she has supported the evidence of her husband

in relation to that matter as well as
supporting the evidence of her husband in

relation to the number of other aspects

concerned with the bombing itself.	My
submission to you is that whilst her

situation, as far as the mine is concerned,

has a certain equivocality about it, she might

or might not, depending upon the view which

you take of the matter, be regarded as one of

those who engaged in the planning or who

participated in the guilt of the offence. Her

situation is so close to that of her husband,

so associated with that of her husband, that

her evidence should be regarded by you in

essentially the same way and that it should

not be used to provide support for her
husband. That would be so, as I have

indicated, as a matter of common sense

irrespective of any rule of law which would

arise in the circumstances.

The final witness that perhaps I should

make some comment about in this regard is the

witness Karl Zelinka. The submission has been

presented before you that Karl Zelinka was a

car thief who, it was put to him, had been

engaged in what seems to have been something

of a business of that kind. This proposition

has been repeated in the statement which Craig

Minogue has made from the dock. Zelinka, of

course, has repudiated that suggestion

entirely. He said that the first he had even

heard about it was when he was in the witness

box in this court. Somewhat a late stage, you

might think, to find out that you were a car

thief.

Taylor 29 6/6/91

Now, you will have to consider the

situation then in this context. If you decide

that a witness should be regarded as an

accomplice in the sense that I have

described - and I have spent a fair bit of

time going through this as you will

appreciate - you should apply the following

directions, as I have said. What you do is to

look for corroboration of the evidence of the accomplice. To be corroboration the evidence should be independent of the accomplice, the

evidence must tend to show, firstly, the

commission of the crime and, secondly, the

identity of the person who committed it.

MASON CJ:	Mr Castan, what page is that on?
MR CASTAN:	Page 7010, Your Honours.
MASON CJ:	Page 7010.
DEANE J:	You skipped 7009.
MR CASTAN:	Oh.

MASON CJ: Yes, it is where the trial judge tells the jury

that they should regard Zelinka's evidence with the

highest level of care and caution.

MR CASTAN:  Yes, that is the passage that apparently is

picked up at page 67 by Their Honours in the Court

of Criminal Appeal. It reads:

However, if you came to the view that there

was a realistic possibility that Zelinka was a

car thief and that he stole ..... motor vehicle,

then again common sense would indicate that
you would regard his evidence not only in
relation to the sighting of the motor vehicle
but the rest of the matters about which he

gave evidence before you with the highest

suggesting at all, as you will appreciate,

level of care and caution. I am not

that you ought to come to any such view about

Mr Zelinka. The competing arguments which

have been presented in relation to his

situation are that, on the one hand, he is a

car thief and a liar who was endeavouring to

set for himself an alibi in relation to the theft of Mr Mundy's vehicle. Against that,

Mr Morrissey has put before you that this is

simply an additional extravagant and totally
unjustified attack on the witness and that,

indeed, Mr Zelinka was extremely fortunate

that he was in Sydney on the day of the

bombing, otherwise he may well have learned

even more about himself when he came into the

Taylor 30 6/6/91

.,

court. As I said, if you consider that there

is some possibility of substance in the

contention that Zelinka was as he has been

presented or argued to be, then you would

exercise the greatest possible care and

certainly you would be reluctant to a act upon

his statements concerning the matters. These

are, as I have indicated, all questions for

you as members of the jury to decide. They

relate to your view of the witnesses in this

court.

Now, you will have to consider the

situation then in this context. If you decide

that a witness should be regarded as an

accomplice in the sense that I have

described - I have spent a fair bit of time

going through this as you will appreciate -

you should apply the following directions, as

I have said. What you is to look for

corroboration of the evidence of the

accomplice. To be corroboration, the evidence

should be independent of the accomplice and

the evidence must tend to show, firstly, the

commission of the crime, and, secondly, the

identity of the person who committed it. I

have put to you various pieces of evidence which it appears to me, dependent upon the view which you take of it, do have the

characteristic of being able to show the link

between particular accused affected by the

piece of evidence concerned and the commission

of the various crimes .....

Remember ~he warning I have given you:

it is dangerous to convict on the

uncorroborated evidence of an accomplice. You

may convict on such evidence, but you should

not do so unless you have subjected the

evidence to close and careful scrutiny and,

after such scrutiny, are satisfied of its

truth and are satisfied that it is safe to

and notwithstanding that it is uncorroborated.

convict upon it, notwithstanding its source

And he repeats it:

You may convict upon the uncorroborated

evidence of an accomplice, but you must

exercise ..... the greatest possible care - Now, Your Honours, we do not criticize that as a

charge on what might be termed "the accomplice

issue". The difficulty with it is that it does not

go to the possibility that great care should be

taken even if they came to the conclusion that

there was nothing in this car business for entirely

Taylor 31 6/6/91

separate reasons because he had the separate

purpose to be served or, for taking the broadest
view, as it would be put in the Canadian context,

that there were reasons why, for whatever reason,

great care should be taken with a particular

witness because of the circumstances surrounding

that witness's situation.

Now, His Honour was constrained by what we

might call "the traditional.rule". He obviously

was not willing as we saw in the course of the

transcript of the submissions to go beyond it. In

our respectful submission, that was in error and,

in our respectful submission, it raises the

important issue that we have outlined.

Can I turn Your Honours to the question of the

duty of the prosecution to provide information and

and call witnesses and what, we respectfully

submit, is the failure in the case of the
prosecution in this case to have properly conducted

itself in that regard? That matter is discussed at

some considerable length and in sequence and, we

would respectfully submit, a somewhat sorry

sequence of events that occurred in the course of

this trial is set out from pages 86 to 104 of the

application book. And broadly speaking, we would

respectfully submit that the picture that emerges

from what is set out - and it is set out fairly

fully by the Court of Criminal Appeal - but the

picture that emerges is that the Crown had in its
possession a very large number of statements of

witnesses. One might perhaps draw the inference

that those involved for the Crown had not fully

mastered themselves ·the totality of the material

which they had, but if that is the case, as perhaps

on one view of the material which emerges might be

· inferred, that would be no justification for not

providing statements or for providing statements

only on a basis that says, "Well, when you ask for

whose statements you want we will provide them".

What occurred, and it is set out from pages 86

onwards, is that there was a succession of

applications for a stay and a succession of

complaints, particularly by counsel appearing for

the current applicant, arising from this - what we

would respectfully submit, is properly to be

categorized as mismanagement of the prosecution's

case. The way it is expressed in the first full

paragraph on page 86 is:

Central to the matter the subject of these grounds is the contention made on behalf

of Craig Minogue and Taylor that copy

statements held by the Crown were not provided

to the defence before the commencement of the

Taylor 32 6/6/91

trial and were only provided late in the trial

and then only after the defence had exerted

pressure on the Crown for such statements to

be provided. It is therefore necessary to

have regard to what -

happened. Now, the first incident we take

Your Honours to is then set out: 10 March 1988. In

the course of:

cross examining ..... Senior Constable

Ashley ..... counsel interrupted ..... to inform

the learned trial Judge that on the

29th February 1988 a request had been made to

the Crown for it to provide statements taken

from persons who had seen the bomb car - Your Honours will see that, and then counsel

complains:

that as a result he had received a number of

statements which he had not had the

opportunity to read - - -

MASON CJ: Now, Mr Castan, is it worthwhile pursuing this

matter in detail in the light of the statement made

by the Court of Criminal Appeal at the foot of

page 98 going on to the top of 99:

that counsel for Craig Minogue in the course

of his submissions to this Court said that

there was no prejudice in fact that he could

point to flowing from the Crown's failure to furnish relevant statements at a time before

it did.

MR CASTAN: · Yes, Your Honour, because that was the wrong

questions to ask him. It is the correct answer but

the wrong question, because to ask the question

"What precise prejudice do you point to?", is to

miss the point of the rule.	The only prejudice
that occurs is one that one cannot point to which

is the entirety of one's - the conduct of the trial

is affected. That is the way in which we put it.

Of course, it is true that if one is asked about

that, "Well, what particular prejudice do you point

to?", then one has to answer, "Well, none, because

I managed to continue my cross-examination" or "I was able to run the trial", but the prejudice that

we point to is the conviction. We would

respectfully submit it is the verdict that is the

prejudice, not specific prejudice; it is the

ultimate verdict in a trial which has not been

conducted properly where the prosecution has not

provided these statements, and we would

respectfully submit that no answer to that question

Taylor 33 6/6/91

as posed can overcome the problem that we

respectfully point to.

Their Honours, in their conclusion, in the

Court of Criminal Appeal, expressed the same kind
of conclusion and Your Honour could equally put to

me, "Well, half-way down page 101 the Court says,

'We are of the view there was no unfairness or prejudice flowing from the fact that the Crown failed to furnish the statements and material to

the defence before it in fact did'". But, in our

respectful submission, the litany of problems that

are recited over the 20 pages that are there are

such that the real prejudice is the result. In our

respectful submission, the reason that these rules

are laid down is so that there can be a fair trial,
and there is not a fair trial if it is trial, in
effect, by ambush.

Now, the fact that one manages, perhaps, to escape the ambush or one believes, perhaps, that one has escaped the ambush or has continued to

cross-examine even under difficulties, is not to

the point, we would respectfully submit. This is,

we would respectfully submit, a serious case of a

failure to provide statements and, in our

respectful submission, should be regarded as such.

It is not answered by that general conclusion and
it is our respectful submission that the unfairness

is inherent in the process that occurred.

BRENNAN J:	What is the principle which this Court ought to express if special leave were granted?
MR CASTAN:	We would respectfully submit the principle is that in the course of a trial, and it has been said
in a number of cases, the prosecution is bound to
provide statements and bound to provide all the
material that is in its possession to enable the defence to prepare, and that is unacceptable, in principle, for the prosecution to be, in effect, so
to speak, holding back statements and then
providing them late and in running, or to say,
"Well, we are not sure what we have got", or to
say, "You tell us which ones you want and we will
provide them", and as it turns out, as one reads the detail of what occurred here, highly relevant material came to light.
BRENNAN J:	Now, is there any doubt about that principle?
MR CASTAN:	We think not, Your Honours, but there is doubt about it if one is to find that it can be answered
by saying, "Well, we cannot point to a specific
item.  We cannot say what the effect was in precise
terms of turning up in the middle of a trial, a
massive trial involving many, many witnesses over a

Taylor 34 6/6/91

long period and handing over statements when we

feel like it. We would respectfully submit it is a

matter of public importance for this Court to say

that that is not an acceptable way and that not

being able to point to the specific result of how

one stumbled through a particular

cross-examination, or was inhibited in a particular

cross-examination, is not to the point.

BRENNAN J:	One can understand that but if, having got the statement and looking back on what seemed like a
brilliant cross-examination at the time, one is not able to say, "If only I had had this I would have
done better", that it is difficult to see where the
prejudice is.
MR CASTAN:	Yes. Perhaps it comes down to saying, no doubt counsel can manage or can muddle through or can
say, "Well, yes, I did manage to cross-examine or I
did manage to work out how we were going to run our defence in the light of this new material that came
to light", but the highest we can put it is that
that is an unsatisfactory way of dealing with it.
BRENNAN J:	I understand that but it just seems to me that

it falls down a little on the factual basis here

because what appears, so far as it does appear from

the Court of Criminal Appeal, is that counsel says,
"Well, they really did very much the wrong thing.

They breached this principle in a dozen different ways. True it is, in the end result, it did not

make any difference to us, but they did not do it

right". Now, that does not found an application

for special leave it does not seem to me.

MR CASTAN:  Yes, in our respectful submission, that result

puts a premium on the prosecution, if I can use the
term colloquially "getting away with it", and they

get away with it better the more competent the

defence counsel are. If defence counsel come along

and say, "Well, I am not much good, I made a mess

of it because I was put in this situation" then he
is, in effect, to be in a better position.	He can

say, "Well, I suffered a prejudice because I am not

much good but because I valiantly struggled

through", then that is to be acceptable. So, it is

putting, so to speak, a premium on incompetence, if

I may say so, with respect, Your Honours.

I do not know that I can put it any higher than that. The material is there. It is, we would

respectfully submit, on the face of it, when one

reads through those 20-odd pages, a bad case. We

concede there is the concession about prejudice and

a finding by the Court of Criminal Appeal of no
ultimate prejudice. It, in our respectful

submission, begs the question to reach that

Taylor 35 6/6/91

conclusion if there has been the degree of holding

back and lack of provision of material of the scale

that is revealed in this material.

We do not press the matter in relation to the witnesses who were not called, Your Honours.

Can I go then to motive? Your Honours, we do

not press the matter dealing with the motive of the

Crown witness but we do take Your Honours to

ground 6 and the question of a motive of the
accused. This raises, in our respectful

submission, a point of general importance for this

reasons, Your Honours: the notion that evidence of

motive of an accused person is relevant is, of

course, cannot be gainsaid and is not at all

controversial. What is difficult is to know

whether there is any limit on that general

statement. It may be true that evidence of motive

is relevant but is it sufficient if the evidence of

motive is that when sitting watching a television

show one of the accused expressed an epithet about

expressing a general sentiment about police while watching the television, is there a threshold, in

other words, for evidence of motive or does the

fact that something is to be characterized as

evidence of motive enable anything at all that has been said by an accused that possibly may bear, in

some way or other even though matter how remote -

is to be admitted as evidence of motive? In our

respectful submission, the correct principle is

that there is to be some relevant threshold, the

test being whether the evidence of motive is

sufficiently prohibitive or is material from which

a jury might properly draw the relevant inference.

The matter was - and I will come to the way in

which it was dealt with here in a moment,

Your Honours - dealt with in a case of Reg v

Galway, had been heard to say that he was going to deal

an unreported decision of the Court of

with spotlight shooters who came on to his farm	and, ultimately, one of the spotlight shooters was
shot dead and the question was whether the evidence of his statements about a general animus towards
spotlight shooters was to be admissible. In
general, it was held in that particular case that the evidence about his general animus towards
spotlight shooters coming on to farms was
admissible. But His Honour Mr Justice O'Bryan, at page 11 of that particular case, after analysing
whether or not there was any limit on it, said:

It is clear from the authorities that in any

case where the evidence which is objected to

is tendered to prove a particular relationship

Taylor 36 6/6/91

of enmity or hostility existing between the
accused and the deceased at the time of the

killing, the court must look at all the

circumstances surrounding the killing and
determine whether the evidence is sufficiently
cogent and proximate to the event to make it

admissible. The question is whether the jury, acting reasonably, can infer from the evidence that the accused had such antipathy or

hostility towards the deceased that he had a

motive to kill him. ·

Now, in our respectful submission, this present

case is a case where some limit was required to be

expressed of that kind and no limit was expressed

in the course of the charge and the Court of

Criminal Appeal said that evidence of motive is

relevant and that is an end to the matter. Can I

take Your Honours to page 112 of the application

book where the matter is dealt with at that level?

The ground is set up and the evidence summarized,

and it is there set out:

(1) Paul Hetzel swore that in January 1986, at

Birchip, Craig Minogue produced a black attache case which contained two hand

grenades, packets of bullets and a .38

revolver. Craig Minogue showed Hetzel the

bullets ..... These bullets had a hole drilled

in them ..... Craig Minogue said "What hope

would the police have in a shoot out".

(ii) Paul Hetzel swore that in November 1985

at Lower Templestowe Craig Minogue, having

heard a reference on the radio to the police

air wing, said that it would be easy to shoot

down a police helicopter.

(iii) Julie Hetzel swore that at Birchip in

January 1986 Craig Minogue said that they were

carrying around high powered rifles and hand

grenades because they needed plenty to

retaliate with if they were being chased by

police.

(iv) Scott Tye swore that Craig Minogue

disliked the police because of police

harassment of his family.

(v) David Robinson swore that Craig Minogue

constantly referred to the police as "fucking
jacks".

The reference in ground 23 to Karl

Zelinka's evidence relates to remarks made by

Craig Minogue to Zelinka after the bombing

Taylor 37 6/6/91

which, if accepted, amounted to an admission

of participation .... .

The admission ..... was objected to ..... The

basis of the objection was that the evidence

was irrelevant or, if relevant, was

disproportionately prejudicial. The learned

trial Judge ruled that the evidence, taken as

a whole, was relevant to the issue of whether

Craig Minogue was a participant ..... His Honour

declined to exclude -

and then Their Honours go on:

In considering the correctness of his

Honour's ruling it must be remembered that

Craig Minogue was charged with committing a

most singular crime. An obvious line of

defence was to say "Why on earth would I

commit such a vicious, pointless crime". If

the evidence under review had been excluded,

such a defence would have seemed to be in

harmony with the general probabilities. The

evidence in question meets an obvious defence

argument and tends to explain why Craig

Minogue might commit the crime. In this way

it tends to support other evidence tending to

show that Craig Minogue did commit the crime.

In our view, the effect of the impugned

evidence, taken as a whole, is important
evidence relevant to the central issue,

namely, did Craig Minogue commit the crime.

The crime was a singular exercise in violence

aimed at the police in general ..... not a crime

aimed at a particular person. It was aimed at

members of a class.

Then there is a reference to Galway:

which contains ..... the authorities -

and refers to the rabbitter -	using a spotlight ..... the accused had
experienced trouble ..... Upon a police
visit ..... the accused was alleged to have said
"If I find anyone on my property again, I will
have to take the law into my own hands".

The accused denied responsibility .....

although there was some ballistic
evidence ..... He denied making the statement

...... The evidence of the making ..... was

admitted over an objection.

Taylor 38 6/6/91

The Full Court ...... was unanimous that

the evidence was rightly admitted to prove

that the accused was the man who shot the

deceased and his intent when he did so.

They read from a passage of His Honour

Mr Justice Lush and set out that passage referring

to persons who show an intent to do acts against

their own interest.	They refer to the older case
of O'Brien which was very similar:	a person who

had expressed an intent to do something to anybody

who came on to the land as a result of the bank

having taken possession and, ultimately:

A tenant of the bank -

which had taken possession under a mortgage -

was shot.

And Mr Justice Molesworth said:

'This is not like the case of evidence adduced

to show that a person is addicted to a certain

class of crimes, or has previously committed

such crimes. It is a declaration of intention

on the prisoner's part to avenge himself on

anybody taking possession of either

allotment.'

These words appear to distinguish proof of

general tendencies from proof of statements of

the prisoner's intentions towards persons who

are identified or will be identified by their

performing acts ..... It is easy to imagine

statements which are so wide that, while they

might come within this description, it would be difficult to regard them as relevant to a

particular event, but the present is not such

a case."

And then Their Honours say:  In our opinion, the evidence in question

was rightly admitted.

Now, in our respectful submission, none of the

evidence that is referred to is evidence linked to

a particular event or act. None of it has that

quality. It classically falls, in so far as there

is a distinction drawn by His Honour

Mr Justice Lush and drawn by His Honour
Mr Justice O'Bryan in the passage I read to

Your Honours earlier - the distinction is between

that evidence which demonstrates an intent to do a

particular act, or to act in a particular way

towards a group of people, as distinct from

Taylor 39 6/6/91

evidence which really is to be properly

characterized in the way His Honour

Mr Justice Molesworth put it in the 19th century,

evidence adduced to show a person is addicted to a

certain class of crimes or has previously committed

crimes.

Now that, of course, is inadmissible. In our

respectful submission, what the Court of Criminal

Appeal has done here and what the learned trial

judge did, was to take the test of relevance in its

broadest sense and say, "Well, it is relevant and

therefore admissible" but, in our respectful

submission, when picking up the question of motive

of an accused, it is necessary to go to more than

just relevance because the prejudicial effect may

be enormous. If we were to adopt the principles as

adopted here as a general rule, in our respectful

submission, evidence of commission of a prior

similar crime would become admissible for exactly

the same reason and that, we would respectfully

submit, obviously, is totally wrong and

unacceptable.

That is the fourth matter, Your Honours, and

those are the bases upon which the application is

made. If Your Honours please.

MASON CJ: Thank you, Mr Castan.

MASON CJ:  Now, Mr Bongiorno, we would like to hear you on

two points only: in Taylor's application, the
refusal to discharge the jury on the ground that a
mistrial may have occurred and, in the application

by Minogue, the point that the verdict was unsafe

and unsatisfactory. They are the two matters on

which we wish to hear you.

MR BONGIORNO:  If the Court pleases. I am not quite sure

that I follow Your Honour in respect of the first

the matter in relation to Taylor about discharging

the jury. This is on the basis that the evidence

of the so-called Pentridge bombing was admitted?

MASON CJ: Yes.

MR BONGIORNO:  Your Honours, that is, in our submission,

a - - -

DEANE J: Which, as I understand it, also involved evidence

that he was in, what was it 'H' section?

MASON CJ: 'H' Division.

DEANE J:  'H' Division at Pentridge.

Taylor	40	6/6/91
MR BONGIORNO:	Yes. page 108, 109 of the - it is 156 of the appeal	If I could take Your Honours to

book, it is 108 of the judgment of the Court of

Criminal Appeal. It is important to understand in

our submission just what it was, what this

so-called Pentridge bomb incident or episode was,

and it is dealt with at the bottom of page 108 of

the judgment:

"The learned trial judge ought to have

discharged the jury after evidence was led

suggesting that the applicant had been

involved in a previous bombing incident at

Pentridge Gaol."

The evidence referred to occurred during the cross-examination of Hetzel by counsel for

Craig Minogue. It was suggested to the

witness that he had made a bomb which injured

a man named Sid Weeden and tried to lay the

blame on Taylor. It was also put to Hetzel

that he claimed in relation to Sid Weeden's

bomb that Taylor had told him that he (Taylor)

had done it, to which Hetzel replied, "That is

correct."

Upon application being made for the jury

to be discharged the learned trial judge in

refusing the application pointed out that he

was paying careful attention to the

cross-examination and did not gain any
impression at the time from either the form of

the questions or from the manner in which they

were asked that any allegation was being made

that Taylor ha9 been engaged in any such

criminal activity.

So, that there was not in fact any allegation, in

our submission, that Taylor had been engaged in

making a bomb.

What was clear, His Honour said, was that it

engaged in the construction and detonation of

a bomb and that when a problem arose

concerning the matter he was prepared to

attribute responsibility to someone else -

was being put to the witness that he had

namely, Taylor.

His Honour thought it was equally clear that

Hetzel understood that that was what was being

put to him.

And the Full Court have reached the same conclusion

on their own independent view of the transcript. In

our submission, that puts an end to the matter.

Taylor 41

There was not, in fact, any allegation that a bomb

had been made. It was an allegation that somebody

had suggested on another occasion that Taylor had

made a bomb, so that there was no suggestion.

The page of the transcript that I can take

Your Honours to is 2697, and the cross-examination

went like this - this is a suggestion to Hetzel by

counsel:

I suggest to you that you in fact made the

bomb but tried to lay it on Stan Taylor?---You

are incorrect.

You remember me asking you about conversations

in gaol and about getting revenge on the

police?

And there is some further questions.	Then on the
next page:

You claim, don't you, that in relation to

Weeden, Sid Weeden's bomb, that Stan Taylor

told you that he had done it?--- That's

correct.

So, it is not a suggestion that Taylor made the

bomb but simply that Hetzel had on another occasion

said that Taylor had made the bomb, and I do not

think there is anything further that I can add to

that. In our written summary, we have adopted the

alternative position of saying that in any event,

confined to those two or three questions at that
time, that even if it was an allegation of such a
kind, it would not have led, in this case, to a

miscarriage of justice, or would have simply given

rise to a ground of unsafe and unsatisfactory which

we would suggest has not been argued in any event.

I do not think there is anything further that

we can say about the matter that Your Honours

raised about not discharging the jury and we would

respectfully adopt the judgment of the Full Court

on that point.

So far as the second point that the Court

raised and that is the question of the ground not

having been argued before the Court of Criminal

Appeal, in our submission, there is no way in which

this Court can deal with an application for special

leave in circumstances where there are contested

issues of fact as to what occurred in a court

below, particularly when what occurred in the court

below has been pronounced upon by that court, and

we would respectfully adopt what Your Honour the

learned Chief Justice said in argument with

Mr Castanon that, that the only remedy that the

Taylor

applicant has is to, in some way, have the Full

Court deal with the matter again notwithstanding,

in this case, that one of the judges is no longer a
full-time judge.

There is no basis, in our submission, for the

reception of affidavit material in this Court on a
contested issue of fact and the issue is contested.

We contest it in our summary. We deliberately did

not file an affidavit although we received the

affidavit of Mr Ross last night only because, it

would be our submission, that this Court would not

have been in a position to determine, as between

two competing affidavits, what in fact occurred

nor, indeed, in our submission, should it do so

having regard to the clear statement by the Court of Criminal Appeal that the matter was not argued.

It would be, in our submission, at least

inappropriate for this Court to embark upon that

fact-finding exercise in anything other than a full

trial of the minor point which one would submit it

would neither be appropriate nor possible to

undertake.

MASON CJ: If one assumes that the applicant was entitled to

a review of the conviction on the unsafe and

unsatisfactory ground, how is the applicant to

achieve his entitlement?

MR BONGIORNO:  And also assuming that the Court of Criminal

Appeal is incorrect in its statement?

MASON CJ: Yes.

MR BO.NGIORNO:  Yes. by Your Honour, that the applicant go back to the In our submission, the remedy suggested

Full Court and have the matter corrected there.

Alternatively, that this Court could in an

appropriate case - and we would not say that this

was an appropriate case - even at this stage, one

would have thought, and I am thinking without

the moment or two available, give an appropriate	having given the matter any more thought than in
direction to the Court of Criminal Appeal to deal
with the contested issue as to whether a particular
matter was or was not argued.

MASON CJ: But how do we give a direction to the Court of

Criminal Appeal when we are hearing a special leave

application?

MR BONGIORNO:  Yes. The difficulty that Your Honour now

enunciates was the one that was running through my

mind even as I was putting the proposition. But

certainly, Your Honour, perhaps the steps ought to

be that it is firstly in the applicant's hands to

make the application to the Court of Criminal

Taylor 43 6/6/91

Appeal and if the Court of Criminal Appeal refused to hear the application, that would give ground for

relief from this Court then on the basis that there would then be a finding in respect of which special

leave could be sought, and this Court might then

have to deal with the question of what occurred in

a circumstance where it was satisfied the events,

as are alleged here, might have occurred.

BRENNAN J:  The question really is whether or not the Court

of Criminal Appeal would refuse to entertain an
application. If the Court of Criminal Appeal
refused to entertain an application then it may be

necessary for this Court to grant special leave

and, however distasteful, to endeavour to determine

whether or not the applicant's rights have been

transgressed by the course taken in the Court of

Criminal Appeal.

MR BONGIORNO:  Yes.

BRENNAN J: But one would expect that the Court of Criminal

Appeal would entertain the application and

determine for itself whether there had been some

misapprehension of the argument.

MR BONGIORNO:  Yes, with respect, I agree with Your Honour.

So the initial step must be in the applicant's

hands.

MASON CJ: Could I take that a step further? You would not

stand in the way of the applicant making such an

application and asking the Court of Criminal Appeal

to deal with it?

MR BONGIORNO:  No, I would not stand in the way of the

applicant making such an application to the Court

of Criminal Appeal to have that matter brought up. issue of fact that the Crown would not have

material to put before the court on the issue.

But, no, I would say to this Court that I would not

the applicant if such application was to be made.	stand in the way of that position being taken by
The difficulty of Mr Justice Gray being no longer a
full-time judge of the court may create some
problems, but that would be a matter for the Court
of Criminal Appeal itself to determine.

DEANE J: Is it implicit in your reference to the contested

questions of fact that the Crown's approach is that

the statement in the judgment of the court below is

correct?

MR BONGIORNO: 

Yes, it is, Your Honour, and I might say,

without wanting to further agitate the issue of
fact, that is not a statement made simply on the

Taylor 44 6/6/91

basis of what is in the Full Court judgment.	The
prosecutor, of course, was - - -

DEANE J:	I did not want to take you further.
MR BONGIORNO:	I think there is nothing further that I can say to Your Honours.

MASON CJ:  Thank you, Mr Bongiorno. Mr Morrish, do you want

to say anything in reply on. the cross-examination

of Hetzel and the application for discharge of the

jury?

MR MORRISH: Yes, I do, Your Honour. It is our submission

that both the learned trial judge and the Court of

Criminal Appeal misunderstood the effect of the

evidence. The point was not - what point counsel

was attempting to establish by his

cross-examination which was clear enough that blame someone else falsely for making the bomb.

The point was the effect of the evidence as it finally came out. At page 2696, counsel suggested

this to Hetzel:

I suggest to you you boasted in gaol about
your ability to make bombs out of all sorts of

things?---You are incorrect.

And further, that you made a bomb which

accidentally caused an injury to a man by the

name of Sid Weeden?---You are incorrect, sir.I

know who made that bomb, I know very well who
made that bomb.

I suggest to you that you in fact made the bomb but tried to lay it on Stan Taylor?---

You are incorrect.

Now, the cross-examiner comes back to it again on

page 2697 where he says this - this is after the

witness has said that he knows very well who made

the bomb that injured Weeden in gaol:

You claim, don't you, that in relation to Sid

Weeden's bomb that Stan Taylor told you he had

done it?---That is correct.

Now, it is our submission that the effect of that

evidence, whatever the cross-examiner's intent may

have been in this line of cross-examination, was to

put clearly before the jury evidence from Hetzel

that Taylor had admitted that he was the person who

had made the bomb that injured Weeden in gaol.

Now, this - - -

Taylor 45 6/6/91

DEANE J:  Was it common ground that evidence of Mr Taylor's

expertise as a bomb maker was inadmissible?

MR MORRISH: No, it was not. Well, yes, Your Honour,

because the Crown made no attempt to lead such

evidence.

DEANE J: That does not mean it was inadmissible.

MR MORRISH:  Maybe not, Your Honour, but the problem just

did not arise in the trial because the Crown did

not attempt to lead it, so that it was never an

issue between the defence of Taylor and the Crown

as to whether or not such evidence was admissible.

So, it was never argued and accepted as common

ground between them that it was not admissible.

DEANE J:  The question was never investigated whether, in

the circumstance of this case, evidence that his

expertise was admissible?

MR MORRISH:  No, it was not. No, the Crown never alleged

that it was and so the problem just did not arise

as between the Crown and the accused, Taylor.

DEANE J: It is a bit hard to see why it was not admissible?

MR MORRISH:  I suppose the problem with it is that it may

suggest that he has committed offences with bombs

on previous occasions and it may well be that even

though his expertise in bombs may have some

prohibitive value, that prohibitive value would

have been outweighed by its prejudicial effect.

DEANE J: Well, that would go to discretion?

MR MORRISH: 

Yes, and it may be that the prosecution

appreciated that and for that reason did not
attempt to do it.

Now, it is submitted that the prejudicial

effect of that cross-examination I have just read

to the court is re-enforced by what happened when a

prisoner called Brazel was called by

Craig Minogue's counsel and was cross-examined by

the learned prosecutor, and this appears at

page 5946. The learned prosecutor cross-examined

Brazel along these lines:

I want you to listen carefully to this and say

if this is what you allege Taylor said about

the bomb?---Yes, Your Honour.

He said that you took the face, the face off

the clock, took the minute hand off and bent

the hour hand up, connected a wire to it,

secured it to a piece of wood that had another

Taylor 46 6/6/91

wire and some metal attached to it and a nail

and when the hour hand touched the other bit

of metal that completed the circuit that

forced the bomb to explode?---Yes.

And that is how you say Taylor said he would

construct this bomb?---That was one of the two

things he said.

Then the learned prosecutor goes on to this:

What is the other half?---He was talking to

Glen Nash and they were referring to an

incident that happened at Pentridge some years

ago. It was a different circuit where you had

two bits of metal connected with wire and you
put it in a drawer and you opened the drawer
and when the metal touched it causes the

explosion the same way.

Now, we submit, that that evidence that was
elicited during the cross-examination of Brazel

tended to underline and emphasize the material -
this is during the cross-examination of Hetzel that

we referred the Court to.

Now, in relation to the evidence concerning 'H' Division that Your Honour mentioned to the

learned Director of Public Prosecutions, this is

one example of that sort of cross-examination. It

appears at page 2487 of the transcript, and this

was put to Hetzel:

Mr Hetzel, you in the early 70s were one of a

number of people from gaol who were very

active to bring forward to the public

knowledge the conditions of Pentridge?

And Hetzel agrees with that proposition.

And the people or some of the people who were

involved in that activity were, apart from

yourself, a man by the name of Peckman -

Harold Peckman?---Yes, sir, I know
Harold Peckman very well.

He was involved in that activity to bring to

the public knowledge the conditions in the prisoners in gaol were, sir.

Let us talk about Mr Peckman. He was one of

them, wasn't he?---Yes, sir.

And a man by the name of Peter Walker was

involved in it?---Yes, sir.

Taylor 47 6/6/91

And the accused man Taylor, is that right?

Mr Peckman's claim to fame was a double

murder?---That is correct.

Mr Walker was a man who killed two people or

involved in the killing of two people?---Yes,

sir.

Now, I do not intend to take the Court to every

example but that would give, in our respectful

submission, the Court some idea of the flavour of

the way in which the cross-examination was

approached and the effect of the prejudice that

flowed on to Taylor because of that approach.

DEANE J:  Am I correct, Mr Morrish, just going on page

numbers, that seems to have taken place a long time

before the application, on behalf of your client,

to discharge the jury was made?

MR MORRISH:  Yes, Your Honour, it occurred prior to that,

but it continued after that as well. That was not

an isolated example.

DEANE J: Except once it is out it does not get worse or

better by repetition?

MR MORRISH:  I suppose it only gets re-enforced in the

jury's mind what sort of mind they are dealing with

with Taylor.

DEANE J: But it is well after that that the application to

discharge the jury is made on the basis of the bomb

suggestion?

MR MORRISH: Yes, Your Honour, yes. If the Court pleases

that is what we wish to say in reply.

MASON CJ: Thank you, Mr Morrish. The Court will take

a - - -

BRENNAN J:

Does Mr Castan want to say anything?

MASON CJ: Yes, I am sorry, Mr Castan, I overlooked your

right of reply. Do you want to say anything on the

unsafe and unsatisfactory point in reply?

MR CASTAN:  No, Your Honour, only perhaps to say and perhaps

I had omitted to say that it is obvious from the

way in which it appears in the material, it was not

abandoned, it is not suggested it was abandoned.

MASON CJ: Yes, the Court will take a short adjournment in order to consider the course it will take in this matter.

AT 11.10 AM SHORT ADJOURNMENT

Taylor 48 6/6/91

UPON RESUMING AT 11.27 AM:

MASON CJ: Subject to what we are to say later in relation

to the ground that the verdict in Minogue's case

was unsafe and unsatisfactory, we are not persuaded

that these cases raise any question of general

principle or general importance such as would, in
the circumstances, warrant the grant of special
leave to appeal. In reaching this conclusion we

have taken into account the way in which the trial

was conducted. We would add that we are not

persuaded that in either case an appeal would enjoy

any real prospect of success.

Accordingly, we refuse Taylor's application

for special leave to appeal. We also refuse

Minogue's application for special leave to appeal,

except in so far as it relates to the ground that

the verdict was unsafe and unsatisfactory. As to

that aspect of that application, we stand it over

to a date to be fixed so as to enable the

applicant, if so advised, to apply to the Court of

Criminal Appeal.

AT 11.28 AM THE MATTER WAS ADJOURNED SINE DIE

Taylor 49 6/6/91