Thomas v The Queen

[1990] HCATrans 80

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M77 of 1988

B e t w e e n -

JEFFREY ALAN THOMAS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

BRENNAN J

DEANE J

DAWSON J

Thomas

TOOHEY J

GAUDRON .J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 APRIL 1990, AT 11.57 AM

Copyright in the High Court of Australia

ClT 27 /1/FK 1 11/4/90

MR C. DANE:  May itplease the Court, I appear on behalf of

the applicant, Thomas, with my learned friend,

MR O.P. HOLDENSON.	(instructed by Haines and
Polites)

MR L.W. FLANAGAN, QC:  May it please the Court, I appear with

my learned friend, MR G. SILBERT, for the respondent.

(instructed by by J.K. Buckley, Solicitor to the

Director of Public Prosecutions)

MASON CJ:	Mr Dane.
MR DANE!	May it please the Court, this is an application for
special leave.  An outline of argument has been
prepared and I. hand that up.

MASON CJ: Yes.

MR DANE:	If the Court pleases, this was a murder case in which
the issue of an accomplice warning to the jury arose. The learned trial judge decided, and the Court of Criminal Appeal confirmed,the witness was not strictly
an accomplice and therefore the full BASKERVILLE
warning was not given.  The supreme court authorities
are not uniform upon the issue, and there are
judgments expressing dissatisfaction about the issue
generally.  We call on this Court to settle and
restate the true law of Australia. Indeed,the Court of Criminal Appeal in this instant case - - -

MASON CJ: Well, it might be better if you requested, or submitted

that we should do so, rather than calling upon us to do

so, Mr Dane.

MR DANE:	I have called into the Court, and now do submit that
this Court should.  The Court of Criminal Appeal in the
instant case has described the present law as
unsatisfactorily rigid. This case, we submit, provides
an opportunity to declare that the rigidity should be relaxed; that the categories of witnesses about whom
the warning be given is not closed and that common
sense, wedded to the special knowledge that practice in courts provide, be the guide to judges as to what witnesses require special warnings.

(Continued on page 3)

ClT27/2/FK	2	11/4/90
Thomas

MASON CJ: · Now in what respects do you say that rigidity

should be relaxed?

MR DANE:  The identification of the witnesses. There

should not be anymore, it is submitted, a series

of pidgeon-holes into which a witness either

falls into or out of, and it is to that point

that these submissions go in particular. It is

the identification of witnesses who are suspect,

rather than looking at the charge and then

identifying the personalities or witnesses that

appear in a case, as to whether or not a warning

should attach to them. It is the witness that
should be looked at and when a witness is

identified as being somebody who may be suspect or,
for whatever description is required, then a
category arises - a broad category - without any

closure and it is to that point that I say this.

MASON CJ: Then you say rigidity sets in: that the warnings

must be given; that there is no discretion in

the judge, as it were, to tailor the warning to

the particular circumstances of the case.

MR DANE: Yes. That is what I would be submitting, but later on

in the argument we provide two alternatives to

that firmness. We would seek to argue that it is

appropriate that once a witness falls into the

category that we would ask be declared the category -

and I use that somewhat advisedly - but, we say that

for good reason then the rigidity then sets in

and that is for both the Bench and for practitioners,

but I seek to defer further argument as to that,

if the Court pleases.

(Continued on page 4)

CIT28/l/CM	3	11/4/90
Thomas

DAWSON J: And may the traditional witnesses in respect of

whom a warning is required not fall within your

category, or fall within - - -?

MR DANE:	Yes, it is assumed that those who attract the traditional
warning now equally attract the warning. All we ask
for - - -

DAWSON J: It is not a case that they may or may not fall within

your category?

MR DANE:	No, that is not the case.
MASON CJ:	You are trying to expand the category?
MR DANE:	Yes.

V.iASON CJ: In reality, you are retaining rigidity but endeavouring

to expand the category of witnesses falling within the

description attracting the rules.

MR DANE:	Yes, by saying that those who already fall into the category should be retained within the category, to that extent I do retain the rigidity but that is because, with respect, those witnesses will fall within the test that I submit is an appropriate way to
determine these, as to whether there is an expanded
category.
BRENNAN J:	Mr Dane, do you say anything different from this,

that a warning is necessary to be given whenever - or

a warning should be given whenever it is necessary

to avoid a perceptible risk of miscarriage of

justice arising from the circumstances of the case?

MR DANE:	That is an exceedingly wide area but, of course, when
a judge does have the perceptible - sees the perceptible -
perceives the,risk, then, yes.
BRENNAN J: You do not put it any wider than that anyhow?

MR DANE~ Oh, no.

BRENNAN J: Well then, that is taken from a passage of the joint

judgment of Justices Dawson, Toohey and myself in

LONGMAN V REG, (1989) 89 ALR 161, at page 167. Is

there anything else you wish to say?

MR DANE:	What I submit, sir, is that this Court should provide
the Australian jurisdictions with a test as to witnesses,
the witnesses that we say should be called either
suspect witnesses or impugned witnesses or unreliable witnesses in order to deal with the warning.

ClT29/l/LW	4	11/4/90
Thomas

MR DANE (continuing): With respect, the definition that

Your Honour referred to in LONGMAN - - -

MASON CJ: It is hardly a definition.

MR DANE:	The perception of a risk would attract a warning
in any event now and what it is argued here is
that where judges are faced with whether or not
a witness falls within the category as expressed
in DAVIES case and the risk is as to another matter, then the warning might go as to another matter but the witness will not get the specific warning.

I would be grateful if Your Honour

Mr Justice Brennan could again direct me to the

precise part in LONGMAN.

MASON CJ:	167 in the report in 89 ALR.
DAWSON J:	At the bottom of 166.
MASON CJ:	166 to 167.
MR DANE:	The Court there, at the bottom of page 166, do
I take it thAt that is the matter:

In practice, the warning given under

warning are adapted to the particular

the rule of practice varies from case to case.

circumstances·-

reference to HESTER and SPENCER.

Of course, a warning might be needed not only

to avoid the risk of miscarriage of justice

which the rule of practice seeks to avoid

but a risk·of miscarriage arising for reasons

other than the suspicion attaching to the
evidence of any alleged victim of a sexual

offence. Apart from the special rule, the

general law requires a warning to be given	whenever a warning is necessary to avoid a
perceptible risk of miscarriage of justice
arising from the circumstances of the case -

and, of course, BROMLEY and CARR are referred to.

(Continued on page 6)

C 1T30/1	/ND	5	11/4/90
Thomas

MR DANE (continuing):  It would be to the point that there

can be a perception of risk that might not necessarily

attach to a witness. The category of witness about

whom I would urge a warning should be given would be,

for example, the wife or spouse of an accomplice to

an accused. Now, clearly, that spouse would not be

within the pigeon-holes and the restrictions of

DAVIES case but, clearly, the spouse would have her

own or his own interest to pursue and may be

motivated by that interest, whatever it might be.

Accordingly, a court might perceive that to be a risk that there be some fabrication or exaggeration,

inculpation, exculpation.

MASON CJ:	Would you really need to warn a jury in a case like this? Is it not obvious that a jury would view the
evidence of the witness with grave suspicion? It
would be a statement of the obvious to warn them, would it not?
MR DANE:	In the example that I provided to the Court?
MASON CJ:	No, in this case, in the instant case.
MR DANE:	Well, yes, we say that it is merely self evident,
but the way in which a jury should deal with that
self-evident point should have been the subject of
an appropriate warning, not the warning that was given,
and that is the reason why we put it that one is driven
to say that a judge should be provided with a
predictable response when it is as obvious as it
has been in this case, or was in this case.

This man, Bell, is the closest thing, we would

submit, to an accomplice, when his position is examined,

as one could possibly imagine, save for the fact he

does not fall within the pigeon-hole defined by

Lord Simonds.

(Continued on page 7)

ClT31/l/HS	6	11/4/90
Tho"i.nas

McHUGH J: Well, do you submit you should have got a

warning, in any event, equivalent to what

Their Honours said at page 170 in the report

of LONGMAN as was required in that case,

line 36?

MR DANE:  LONGMAN page, I am sorry?

McHUGH J: Page 170 in the ALR.

MR DANE:  And line, I am sorry,sir?

McHUGH J: Around about line 37 "The jury should have been

told" that because of the certain circumstances:

it would be dangerous to convict on

that evidence alone unless the jury,

scrutinising the evidence with great -

MR DANE:  Yes, most decidedly that a mention of danger to

convict is what, I would submit, as being an

essential feature of a warning in a case such

as the present one and it would be submitted that

when one looks at the sort of warnings that was

approved in SPENCER's case - there is another

authority, not to this Court, but in another

statement by the Full Court of the Court of

Criminal Appeal in New South Wales in a case

called CHECCONI .., in a position to provide that,

but something more was required of the warning in

this case than what was provided by the learned

trial judge and approved by the Court of Appeal.

TOOHEY J: What was it, Mr Dane, that that was required, or

put another way, in what way did the direction

fall short of what you submit should have been

given? Is it in the absence of any reference to

the danger of convicted?

(Continued on page 8)

ClT32/l/JL	7	11/4/90
Thomas

MR DANE: -Submitted that the warning lacked a reference to

that, a danger of convicting on the uncorroborated

evidence of Bell. That is, of course, putting

the argument that we advance here at its highest.

It, of course, lacks reference to corroboration.

The - - -

DAWSON J: So, that really the argument you are putting is

what was said in LONGMAN is not enough. You are

saying that it is not just a case of a suitable

warning being given. You say there are some cases

in which a suitable warning will be nothing less

than the traditional warning that corroboration

should be required.

MR DANE:  Yes, that is so.

DAWSON J: That is what you say?

MR DANE: Yes, that is so, but the bottom point - the bottom

line, if I could borrow that awkward phrase - is

that a judge should have that in his armoury

and it also should be available to an appellate

court to assess that that was the appropriate

weapon to use. Now, it may be that if there is

a drop in relaxation of the rigidity of the warning

then the appellate court would not be able to see

where an error had occurred because it will be the

exercise of the discretion as to whether or not he

- the learned trial judge - uses the full warning

or a tapered warning.

DAWSON J:	I am just trying to understand your submission. You say that the judge should warn the jury that
there is a requirement of corroboration, not only in those categories of cases where that now applies
but in an additional category - - -
MR DANE:	Yes.

DAWSON J: - - - and nothing less than the traditional warning

as to corroboration will do in those categories

and in the extended category. That is what it

amounts to.

MR DANE:	Should that succeed, that will more than adequately cover the point that we seek here, the complaint about the Court of Criminal Appeal saying that no warning greater than that which was provided is needed. But, we say that even put - taking the other end of a warning to be vigilant as to the
matter of credit of the witness that I ask you
to scrutinize - even if the warning is put at that level and then add there is - by reason of the
experience of the courts, the trial judge can warn
a jury that you may not appreciate how serious this
is and, accordingly, there is a danger to convict.

ClT33/l/DR	8	11/4/90
Thomas

MR DANE (continuing):  Now it is the sort of thing that

judges warn juries about in identification cases,

which the most simple proposition,"! say X rob

the bank',' always, with respect, the judge will
~-:i;1.J!t,.Iry__, ::hec.ause of the experience and the sort

of matters that have been referred to in the

cases -cir BROMLEY in particular, the sort of experiences.

DAWSON J:  But that is putting the argument on a very broad

basis. You are not saying, as I understand you,

just,"Well look, what was said in LONGMAN;	the
flexibility to which that passage in LONGMAN
ad:pits . of, we are not complaining about.	We are
just saying that in this particular case the

appropriate warning was one which should have
included a warning with regard to the need for

corroboration~' You are not saying that. You are

trying to put it higher than that, are you not?

MR DANE:	Well,my concern is that if one leaves LONGMAN in
this state, the rationale and the examination of when warnings are given will not be addressed.

DAWSON J: You do not trust appeal courts with as much

discretion as that - ~ -

MR DANE:	I certainly do not say that, but there is always an apprehension in those who are practising at
the initial level of trial as to having '-. a .very
broad discretion resting with the trial judge. What I am concerned about, we submit, is that the
examination of the dual question of witnesses,
some of whom are now called "accomplices'~ and
the law as to warning juries has become intertwined
and it is rigid by reason of the starting point,
namely the presentment and when the examination of the problem starts with the presentment, this man,
for example, is charged with murder,unless the
witness falls within the same intent as the
accused, then there is no warning. What is submitted
is that the appropriate way to look at it is that
witnesses are driven by their own considerations
not as to what is written down by a prosecutor on
a piece of paper and that all the matters that
cause the problems or the characteristics, as I have termed them:-and they are enumerated in 2 -
the fear of incrimination; spite; a motive to
fabricate evidence;  a motive to exaggerate the
role of a material participant;  a motive to
inculpate the accused and a motive to exculpate themselves; they are all matters, with respect,
that are personal. It is the witnesses perspective
as to whether or not they will do any of those things; whether they will inculpate the accused or
whether they will exculpate themselves.

CIT34/l/CM	9	11/4/90
Thomas

Now that was recognized in the Western Australian case of KHAN.

BRENNAN J:	Can I understand what proposition you are contending for? Is there some rule you are contending for? What is the rule?
MR DANE:	Yes. The rule that I contend for is that the warning, as we presently understand it - - -

BRENNAN J: That is the traditional accomplice warning?

MR DANE:	The traditional warning is applicable to a larger
category of witnesses.
BRENNAN J:	A larger category.
MR DANE:	A larger category than those defined - for want
of a better description - the DAVIES rules.
BRENNAN J:	Well how do you describe the larger category?

MR DANE:  The larger category has three parts to it. The

first part are those witnesses that may have some

interest or purpose of their own to serve by

telling a false story or misrepresenting the truth;

also those that are mentally unstable in the

circumstances as indicated in BROMLEY; also

children; also police officers as to certain

evidence as in CARR. One ends up with those that

have some interest or purpose of their own to

serve by telling a false story or misrepresenting,

the intellectually deficient and those that

fantacize either by propergating mischief or

through intoxication, be it alcohol or drugs,or

fail to understand the meaning of their words.

b

(Continued on page 11)

CIT34/2/CM	10	11/4/90
Thomas

MR DANE (continuing): In my respectful submission, that is

the broad category that could be called either

suspect, or impugn or unreliable.

DAWSON J: In that last category, perhaps we could include

complainants in sexual offences?

MR DANE: .. ' Well, I have left that to one side, simply because

it has such a refinement upon it but, broadly, yes,

subject to the respective limitations.

BRENNAN J: Within these categories there is no discretion

as the terms of the warning that must be given?

MR DANE: Well, that is the point at which I put it at its

highest but, under paragraph 5 it is submitted

that there are three alternatives provided. The

attention and the scrutiny of the jury must be

directed to the evidence of such an impugned witness,

be it called impugned, unreliable or suspect, and

the first proposition in 5.1 is the proposition put

at its highest. The second proposition is that in

the alternative, the trial judge must exercise a

discretion as to whether he direct the jury that

there is a danger of acting upon the uncorroborated

evidence of the impugned witness, or warns the jury

of the danger of basing a conviction on his evidence.

That alternative would require, in my

respectful submission, a redrafting of what would be

required in a warning. It would also require a

redrafting of the sort of procedure that is well
understood by trial judges: the sort of procedure

that they go through when the issue of self defence

or provocation arises; asses&- whether the issue is

there, determine that as a matter of law, and if the

issue is there it is given to the jury.

(Continued on page 12)

C1T35/l/FK	11	11/4/90
Thomas

MR DANE (continuing): Here, the exercise of the discretion

would be that type of proces~ decide whether

or not the witness is capable of being in the

enlarged category and then hand that matter, if
the answer is in the affirmative, to the jury.

And then, that, of course, would require some guiding

of the sort of things that would guide the discretion.

DAWSON J:	What is the magic in referring to corroboration? I mean, if a judge tells a jury that this witness
is interested in the outcome and "You ought to
scrutinize his evidence very carefully because
it may be that he is telling lies", the jury -
the members of the jury are not idiots, they would
know that th~refore it would be much stronger evidence
if there was something to corroborate it. Why
do they have to be told tha~expressly?
MR DANE:	The jury system has regularly been applauded for
getting it right most of the time and many appellate
propositions are contained on the basis that juries are told it must be assumed they get it right.
If juries have been getting it right and they get
the acclamation for that they have also been getting
the warnings at the same time and it is upon that basis that the juries may not get it right and
it is implicit in Your Honour's question that "They're
all grown people, they'll be able to assess it",
but one of the grounds upon which the perceptible
risk arises - the perceptible risk of unfairness arises is that juries are not always alive to the
reason why there is a risk and by jettisoning the warnings that have been given in a time-honoured way and ignore the foundation of why the warnings
are sometimes given when it is not apparent to

a jury that they need to be given, in my respectful

of the perceptible risk.

submission, requires more than the warning that

DAWSON J: Well, the sort of warning that the judge gave

in this case at page 174.

MR DANE:	Yes .. The warning in this case, in my respectful
submission, would not comply with what was approved
in SPENCER's case and certainly not on the authority
that we hoped to be able to draw to the Court's
attention or the pronouncement of the Court of
Criminal Appeal in CHECCONI's case, but that is
a matter for later on.
C1T36/1/ND	11/4/90
Thomas

MR DANE (continuing): In my respectful submission, when there

is a case such as this where it is either/or and a

man who has an indenmity, an indenmity that is very

carefully drawn, that enables him to be described

as an accomplice for all things that are not in
dispute and leaves only the part about which there is

a dispute and which, clearly, would motivate him to

reverse the roles, then, in my respectful submission,

a warning of the dangers of that should be drawn more

forcefully to a jury than they were in this case,

because this man, Bell, was able to establish an

enormous amount of credit in his evidence because

he was on very firm ground up to the point of causing

injury, intentionally or recklessly causing injury,

from common assault through to that charge.

After that charge of intentionally causing serious

injury, which would be the intention necessary to

sustain a conviction for murder, and murder, then he

was not supported by the indenmity at all and it is

there that the critical evidence arises and he can

just do the reversal and put all that which he has done

on to the shoulders of the applicant.

That is then incumbent upon the learned trial judge

to draw that very fine point firmly to the jury's

attention because he has been able to fill in all the

background evidence, of leaving Regines and walking

up and down the street, crossing over, getting a light

from the chap, speaking to the group, seeing whether

the pizza shop was open or closed, walking down the

street, who lead, which side of the street -

all agreed to by the accused, the applicant. And so
he gains an enormous credit. His credit looks good

and it is fully supported by the indenmity.

DAWSON J: Well that is rather a narrower argurrent, is it not?

That is really the argument that this man really

ought to have been regarded as an accomplice

but if the strict rules did not have him regarded

as such, then, nevertheless, the warning ought to have

been given because he was so close to it?

MR DANE: What, McNEE and - - -?

DAWSON J: Yes, that is a much narrower argument, is it not?

ClT37/l/LW 13 11/4/90

Thomas
MR DARE: .Yes, but for a moment if one could contemplate an

indemnity as to common assault alone, he would then

be an accomplice in the assaults concerning the

kicking and punching that preceded the death of

this man. Then, as an accomplice for the assaults,

the learned trial judge would be obliged, under

the rules as they presently pertain, to give an

accomplice warning as to the assaults and that the

evidence should be scrutinized, saying it is

dangerous to convict of the assaults but he would

not require such a warning in relation to the

murder. That was observed to be a problem by the

Court of Criminal Appeal in Western Australia in

the case of KHAN V REG, (1971) WAR 44 and, in

particular, the judgment of the Senior Puisne

Judge Virtue at page 49. At line 25 - I seek to go

to the foot of the page and just over -

His Honour there says, after examining the rule

in DAVIES' case, at about line 23:

It would appear to be completely inconsistent

with the purpose of the rule if this

restricted definition should be accepted

because it would exclude the judge's duty

of warning the jury in respect of many

people who might be directly implicated in

the accused's actions giving rise to the

crime, and who would have a clear motive

to give false testimoney.

(Continued on page 15)

ClT38/1/DR	14	11/4/90
Thomas

MR DANE (continuing):

It would result in the application of

the rule in a homicide case being dependent

on the choice by the Crown of the

particular type of homicide with which

the accused should be charged. It would

create absurdities in the application of the
rule which would emerge in the judge's

direction in that in this class of case while

he need not direct the jury as to the need	for corroboration in considering the
accused's guilt or innocence of the crime of
wilful murder or murder, he would be required
to warn them in respect of their consideration
of the accused's guilt or innocence of the
crime of manslaughter.

.

There is no need to continue that. There is reference

again to that difficulty by Mr Justice Burt as he

then was on page 54 at line 31:

The definition, if it be so accepted, raises

a difficulty in the present case and for the

following reason. The accused was presented
on an indictment charging wilful murder.

Evidence was led from which it could be

concluded that the witness, Taylor, and the

accused had planned that Taylor would lure

the deceased to a position in which he could

be and would be attacked by the accused and

robbed. But there is nothing in the

adapting to the case the words of the	evidence upon which a reasonable jury could,
reasons of the High Court in BRENNAN V R.
(1936), 55 CLR 253, at p. 253, find "that
the plan on which [her] confederate [the accused] acted included [more than] some physical interference with [the deceased]
amounting to an assault". Specifically it could not be held that it was of the plan
that the deceased be killed and such an
intention in the accused was negatived by the
verdict. But if the finding as to the plan
which was open on the evidence be made, as
that plan did involve any intention to do
grievous bodily harm or the doing of an act
of such a nature as to be likely to endanger human life, Taylor could be guilty of manslaughter but not of either wilful murder
or murder. Hence, she would not in the words
of the reasons in DAVIES's case be within the category of "persons who are participes criminis in respect of the actual crime
charged [emphasis mine] whether as principals
or accessories before or after the fact ... ",
the "actual crime charged" being wilful murder and the verdict being guilty of murder.

ClT39/l/JL	15	11/4/90
Thomas
MR	DANE	(continuing):

Is it for this reason to be held

that she cannot be held to be an accomplice?

If the answer to that question be in the affirmative, it would seem to me to have extraordinary consequences, not the least

of which would be that a trial judge upon

the trial of an accused person presente~

upon an indictment charging wilful murder would

be obliged in a case such as the present one

to tell the jury that it would be dangerous

for them to convict of the crime of

manslaughter upon the uncorroborated

evidence of the witness, Taylor, but it

would not be required of him that he so

direct the jury with reference to the crime

charged - wilful murder - or with reference to

the other alternative verdict of murder.

Such a conclusion would turn "modern rule

of caution" upside down and whatever be accepted
as the basic policy of the rule, and many

formulations of it have been suggested -

and the authorities are there referred to -

that conclusion would not give effect to it.

And it is to that proposition that I draw this

Court's attention to the need for the stern warning in this case because of the way in which, in particular, the indemnity was drawn.

DAWSON J: Would LONGMAN's case not cover that situation

now ~ and alleviate that problem?

MR DANE:	We would submit that the answer to that is, no,
as the warning is insufficient to draw the attention
of the jury to this particular problem.
DAWSON J:	I would have thought LONGMAN's case in that situation

would have required the warning to be given.

MR DANE:	Yes, the warning would have been given, but the warning
in LONGMAN - it should be a stronger warning than in
LONGMAN.

DAWSON J: Well, a warning as to corrobora.tion.,,.,or danger of

convicting~ without -

MR DANE:  Danger of convicting, yes.

C1T40/l/FK	16	11/4/90
Thomas

BRENNAN J~:· Does that not depend, if you take the avenue

through LONGMAN~, does that not depend on the

apprehended risk of miscarriage? In other words,

does the jury need to be told that it would be

dangerous to convict on the uncorroborated evidence

of this person or is that something which the jury

can be left to understand for itself?

MR DANE:	No, with respect, the jury must be told and that would go - - -
BRENNAN J:	Why?
MR DANE:	That would go in determining where a judge would
pitch his warning in the exercise of his discretion,
given that the BASKERVILLE warning is not obligatory,
that he has a discretion to tailor his warning.
Where, as in this case, there is a critical Crown
witness, if one was to not give a stern warning,
where the witness is a head to head situation,
the either/or situation of where if it is not the
man that is giving the evidence that is guilty
of the offence then it must be the accused, when
it is that critical and the Crown clearly relies
upon that level, then a very stern warning must be given.

DAWSON J: To take you back to LONGMAN's case, if I might,

the trial judge would reason through in this way:

he would say, "Well, look, this particular case" -
this is KHAN's case - "if it were a question of

manslaughter I would be required to give a direction

as to corroboration; he is actually charged with

murder but manslaughter is an alternative offence;

it is an appropriate case, obviously, to give a

warning and having regard to that fact the only
appropriate warning is the traditional one with

resoect to need for corroboration so I'll give.

it."'"" There would be no other reasoning process which would

be applicable.on the basis of LONGMAN there, would

there?

MR DANE:. No.	(Continued on page 18)
C1T41/l/ND	17	11/4/90
Thomas

BRENNAN J:· The problem of what warning is to be given is

rather highlighted, is it not, by your reference

to this case as being a head-to-head case?

MR DARE: Yes.

BRENNAN J: In other words, there is no question of

accomplice here because there is no question of

two people being involved in the murder here.

MR DARE:  It took me some time but that is right.

BRENNAN J: Well, is not the problem here that, obviously -

at least obviously to the judge - either the

accused or Bell committed the murder - - -

MR DARE:  Yes, sir.

BRENNAN J: - - - and e?'l.ef:!Uestionis then, "If I don't tell the jury something about this the jury might convict

the accused on the uncorroborated evidence of

Bell. What do I need to tell them in order to

ensure that they properly appreciate the gravity

of acting upon his uncorroborated evidence?"

Is there any formula needed for that? Now, I can

understand that you might say that this is not

a satisfactory warning in this case - that is

another question - but as a matter of formulae

it does not seem to me that you can drawa formula

that cover head-to-head cases here, accomplices

there, children in the third case; it depends on

the circumstances.

MR DARE:	The matter that Your Honour puts to me is the matter of the certainty that trial judges have and
the certainty that practitioners have. In the
present circumstance when one has an accomplice then one can confidently enter a trial knowing that
at the end of the day the judge will give a warning.
When there is an open discretion to tailor a
warning the judge may not pitch the warning
be tested in an appellate circumstance because the accurately to fit the case and that can never then
flavour and circumstance of the trial can never be
fully exposed and explained to an appellate
tribunal.

So, the only area where one could attack the

open circumstances of the warning would be by way

of attacking the discretion as to whether or not

His Honour made some error in the exercise of his discretion to charge in that way because there is

no rule, there is no precision, that is predictable

and against which it can be tested on appeal.

ClT42/l/DR	18	11/4/90
Thomas

MR DANE (continuing):  I am mindful of the difficulty that

trial judges have in dealing with fixed principles

and rules that inhibit their free expression to deal

with the particular case and tailor the particular

warning, especially if the - - -

BRENNAN J:  Is not your argument really saying that a criminal

trial is something which is designed to produce what counsel for a defence calls appeal points? It is as

though it is some sort of a game.

MR DANE:	Well, perhaps I have expressed myself badly, but
surely I sincerely do not put that proposition
forward.
• BRENNAN J:	Perhaps the particular problem that you will have

to address is the proposition that, at least in the

House of Lords, it has been said that there is no

fixed formula.

MR DANE:  Yes. At present there is perceived to be a fixed

formula of witnesses and warnings and, in my

respectful submission, this case presents an opportunity

to recast that perception if it is not already law,

that the class of witness about whom the warning

should be given should be greater, but there should

be, with respect, some guidelines so that the warning

can be predictable and can be tested on appeal.

Now, to say - in the instant case it is relatively

easy to point out how significant the warnings should

be and the level of the warning and I submit that it does not measure up on any view but, as Your Honour

points out, that is a different question.

But what is said is that if one turns the

trial judges to their own discretion, then the

predictability in criminal trials is that much

more diminished and, in my respectful submission,

our respectful submission to the Court, that

predictability is an essential part of knowing what

will happen if an event occurs.	Somebody makes a
statement that is clearly exculpating themselves and

inculpating another for their self interest, then

the counsel on both sides should know what to

expect.

(Continued on page 20)

C1T43/1/HS	19	11/4/90
Thomas

MR DANE (continuing): And if it is always in the discretion

of the trial judge as to whether he will or

will not then, in our respectful submission, that

is an inappropriate way in which to leave the

state of warnings.

While it is in this case said that the warning

was inappropriate, insufficient and, we will even

say, inaccurate, it is submitted that this is not
a case about warnings. This is a case that raises

the issue of Bell as to his status and the central

feature of this case, it is submitted, is not so

much concerned with the issues of warning but

issues of the identification of who should get

whatever the warning - - -

MASON CJ: Maybe, but would you not be better advised to

direct some argument to the question whether the

warning actually given in this case was insufficient

having regard to its circumstances?

MR DANE: Well, I have indicated that in the circumstances,

because it was an either/or situation, that the

warning should have been of the highest order and

it - - -

MASON CJ: Well, now, I think we will adjourn at this stage,

Mr Dane, but just to take up what I have said to

you, it seems to me that unless you can persuade

us that the warning given, in this case, was

inadequate having regard to the circumstances,

there is little point in us embarking upon the

broader submissions that you want to make. So,

you might return to that when we resume at 2.15.

MR DANE: If the Court pleases.

AT 12.54 PM LUNCHEON ADJOURNMENT

ClT44/l/JL	20	11/4/90
Thomas
UPON RESUMING AT 2.15 PM:
MASON CJ: Yes, Mr Dane?

l1R. DANE:	May it please the Court, taking the guide that Your Honour the learned Chief Justice has given
I would, first of all, draw the Court's attention
to the two warnings that were approved of; the
first one in REG V SPENCER, (1987) AC 128, and the
warning appears at page 137. The warning is in these terms:

"You must, ladies and gentlemen, approach the

evidence of Mr Hosein, Mr Firth, Mr Evan Glyn

.~,Hughes, Mr William Hughes, Mr Alldred, and

Mr Nugent with great caution. Why? Well for

three reasons. Firstly, becasue they are all

persons of bad character. The law, in rules which

are formulated over many years, requires me to

tell you even if they were merely persons of

bad character and nothing else, that you must

approach their evidence with great caution. It

goes further than that of course in this case.

The second reason is this, that at the time of these events they were all persons suffering from

some form of mental disorder. Thirdly, they may

of course have all conspired together to make

false allegations. People make false allegations

as we know for all sorts of reasons, some of which

have been suggested in this case, but apart from

that your own experience no doubt tells you that

people do on occasions make false allegations.

So therefore I must tell you that as far as all

those patients are concerned you must approach their

evidence with great caution. You would be wise to

look for support for their evidence for those

reasons. I tell you at once, Mr Steer is right,

and Mr Roberts does not argue to the contrary,

that there is no support for their allegations at.all

because as far as they are concerned even where

you have two or three of them giving evidence upon

one particular count, one witness of this type

cannot support another. But, if, ladies and
gentleman, having seen them and having heard them

and borne in mind the warning which I have given

to you, you come to the conclusion that you are
-sure in all or any of their cases they are telling
the truth, then you may convict upon their evidence

without there being any support at all. It is,

as I say, for you to judge the facts. When I say

the facts I mean also the importance which you
attach to any particular witness and whether or

not he is tell the truth."

ClT45/l/LW	21	11/4/90
Thomas

MR DANE (continuing): In our respectful submission,_ in

the middle of that warning the trial judge gave, in

effect, a corroborati.on warning without referring to

the word "corroboration". We make- no submission to

the need for the use of the word, when the trial

judge said:

You would be wise to look for support

for their evidence for those reasons.

The next warning was the warning of the learned trial

judge in BROMLEY, (1986) 161 CLR 315. The warning

appears at the very foot of 319, and the bulk of it

on 320:

"Whilst on the subject of witnesses,

I want to ·say something about Gary Carter.

He undoubtedly has a mental illness; undoubtedly,

as Mr. Bo rick said, he was ::1ore affected by that

illness on the night in question than he was when

he gave evidence before you. You must, therefore,

approach Gary Carter's evidence with considerable

caution, especially bearing in mind as the Crown,

Mt Martin, put to you that his evidence is so

crucial to the Crown case. You must scrutinize

his evidence with special care. It is open to

you to act on his evidence if you are convinced

of its accuracy, and you should not do so

without first giving careful heed to the warning that

I am now giving you. There is no doubt that in some

important respects he is mistaken. I say

'mistaken' because I do not think that anyone

seriously suggests that he was lying. He was clearly

mistaken, you may well think, in believing that all

of Docoza's clothes were removed. He was clearly

mistaken in believing that the accused, Bromley,

laboured Docoza with the barbell. You may decide

that he was right in saying that Bromley picked it

up, that he may have been struck one or more glancing
blows, but the fact remains that Dr. Manock's

evidence undoubtedly proves that Carter was

mistaken as to the use made by Bromley of the barbell. Counsel mentioned other matters as well and

you will bear them in mind when considering whether
you can accept any part of Carter's evidence.

Mr. Martin argued that notwithstanding all that the defence has put to you, and some of which I

mentioned, Carter was supported by independent

evidence to a substantial extent, and I direct

you that if after scrutinizing his evidence, and

bearing in mind the warning I have just given you,

if that support, if you find it exists, persuades

you to accept some or a great deal of what he has

said, you may do so."

ClT46/l/FK	22	11/4/90
Thomas

MR DANE (continuing): In our respectful submission, the

warning that was given by the learned trial judge

in this case lacks the strength and direction

that those two warnings contain and each of those

two warnings, of course, were proved and at

page 174 of the appeal book the warning is there

set out.

We also draw this Court's attention to the

fact that as appears the warning was given following

an exception taken during the running of the direction

to the jury:

"What I should also say to you before I examine

how each side puts its case" - - -

MASON CJ:  Mr Dane, before we leave BROMLEY V REG, what about

the passage at 324, in the paragraph commencing

half-way down the page:

The rules of practice requiring the

giving of a warning owe their existence, as

Lord Hailsham acknowledges in SPENCER "partly

to the inherent dangers involved, and partly

to the fact that the danger is not necessarily

obvious to a lay mind". If the danger is

equally obvious to the lay mind, a failure '

to warn of its existence is much less likely

to result in a miscarriage of justice and
thus much less likely to provide a ground

for quashing a conviction - - -

MR DANE:	To that, the Court's attention is drawn to the drafting of the indemnity in this case and, clearly,
the indemnity was not explained and its part and significance and the care with which it was drafted,
or apparently the care with which it was drafted
explained to the jury  and the point that I made
earlier on -

DEANE J:· Except that the learned trial judge suggests that

the defence put the matter in the opposite way

to which you put it in that he says in the extract

quoted on page 173:

The defence is putting its case on the basis

that having been given an indemnity, which

Bell understood protects him from any charge,

murder or any charge in relation to this case -

You say the significance is that it did not protect

him from murder?

ClT47/l/ND	23	11/4/90
Thomas

MR DANE:  It did not, the fact is that it did not - - -

DEANE J: But the defence apparently took the line that that

was immaterial, what mattered was what he believed

and he believed that it did not. That is if

the trial judge has accurately stated it.

MR DANE:  I would not endeavour to persuade Your Honour that

it did not happen the way Your Honour has

interpreted it, what I do put though is because

the indemnity, in fact, does not so protect it

was incumbent upon the judge to draw the jury's

attention to that matter. There is an

:inponderable in here, There is reference to the

indemnity being provided at the office of a

Mr Burrows, as a senior solicitor with the

Legal Aid Cormnission in Victoria and the

imponderable is that did Mr Burrows advise him as to what was said on the indemnity or did he mislead him in some way and so, I can hardly

address the Court on the imponerable albeit that

one would imagine that Mr Burrows told him

exactly what was and what was not in the indemnity,

especially as it was not in the usual form, but

I do not stand by that, what I submit is that when one

has an indemnified witness then it would be

incumbent upon the learned trial judge, in a

warning about him, when the issue is specifically

raised,to at least go to the reference of the

indemnity and that is lacking. To answer

Your Honour the Chief Justice,albeit that Bell

may well appear to the most simple-minded juror
to have a real interest in this matter, the

foundation of Bell's evidence and the way in which he

might give good evidence and reliable evidence to

one extent and may give unreliable evidence to

another extent should, in our respectful submission,

have been drawn in the warning to the jury's attention.

(Continued on page 25)

C1T48/l/JL	24	11/4/90
Thomas

MR DARE (c,ontinuing):  I trust I have addressed the point

raised on page 324 of BROMLEY.

TOOHEY J:  Mr Dane, the application book that I have contains

the charge up to page 153 and then that suddenly

comes to an end and on page 154 is the application

for leave to appeal. I take it there is nothing

in the remaining pages of the charge that is in

any way relevant to this application.

MR DANE:	We have copies of those, if the Court would care
for them.

TOOHEY J: Well, it is just that at the foot of page 153

there is some reference to Bell and something that

he admitted to without it being in any way

apparent what it was that he admitted.

MASON CJ: Can you tell us what the balance of the sentence

was?

MR DARE: At the moment - yes:

He pointed to the fact that Bell, who was the main witness for the Prosecution, admitted to being the first aggressor. That you should

accept his evidence that he then desisted

and wanted to have no more to do with it but

the accused continued. He put to you that

Mr Arter's evidence that it was the taller

man using the rock is an error.

MASON CJ: Well, there is no need to go on but can you

answer the question put to you by Justice Toohey,

that is, was there any further warning given by
the trial judge to the jury in the balance of

his charge to the jury?

(Continued on page 26)

ClT49/l/DR	25	11/4/90
Thomas

MR DANE:  As to this point, we say no.

TOOHEY J: Could I put a question to you in a slightly

different form? In recapitulating the

defence case, which presumably His Honour did

after he recapitulated the Crown case, was there

anything said that might remind the jury of the

need to treat Bell's; evidence with some care?

MR DANE:	If the Court would just bear with me on that.
lt does appear and if the pages are subsequently
provided to the Court, it appears at page 256
of the trial transcript.  Now,Mr Montgomery - he
is the counsel that appeared - started his
address by saying:

the same sort of accusation could be made

against Bell; that is, that he is a

self-interested person, who is blaming

the other, so really you do not get much

comfort out of Bell blaming the accused_ anymore

than you would the accused blaming Bell.	It is
a matter for you to be satisfied.

Mr Montgomery relied on the incident at Regines Disco,

at the door, only to the extent that it shows that the man Bell was the aggressor from the start and continued to be throughout, and he has argued:

"Well, why the charge?". The accused was not

the aggressor, either in word or in action

throughout. He joined in later on when

Bell started hitting and kicking the deceased, but it is more likely that the person who is the ag?;res,,or throughout, continued to be the aggressor and not the accused who was not the aggressor at the

beginning. So that is the way that the argument is put.

A little further on in page 257, Mr Montgomery then

made the very obvious comment about Mr Bell's

evidence and attacked his credibility. First of

all he talked about his:

hands being covered with blood_. -

w·hich was, after all, Mr Bell's own expression and - _

that you should take the view that the only

way that could happen, plus the blood on the

shoes and trousers, is if he was involved in

the rock incident and not simply in the previous

assault.

Mr Montgomery argued that:

There was nothing that occurred earlier to

CIT50/l/CM	26	11/4/90
Thomas

produce blood or certainly not so much

blood as to amount to his hands being

covered.

So he says:

it had to be from the dropping of the rock.

And that was just an attack on an issue between

the defence and Bell. The address of Mr Montgomery

was covered. Clearly counsel highlighted the lies

that were told by Bell and they were reiterated

and the third and next lie that is relied on is

the lie that Bell told, namely that he lay on top

of the deceased on the ground to protect him and

Mr Montgomery again asks:

Why would you tell such a lie if it were not

to better your own position and transfer

guilt to the other person?

So the-,. argument is that those sort of lies are

not the product of confusion or upset, but told for a particular reason. And the issue of Bell

shaving his moustache is then referred to and

then the next matter was the explanation of flight

by the accused.

(Continued on page 28)

CITS0/2/CM	27	11/4/90
Thomas

MR DANE (c6ntinuing):  We submit that the repetition of

counsel's submission, unless they gain the

imprimatur of the trial judge, adds little by way

of warning. Turning then to the warning that was,

in fact, given, that follows and appears on page 174

of the appeal book. What I should also say to you

before I examine how each side puts its case is that

when you look at the evidence of the witness Bell

about the incident it is obvious common sense that

you should treat his evidence with some care for a

number of reasons; one is that he has admitted to

telling lies about some aspect of it, although

he -

MASON CJ:  We have read it, Mr Dane. We have read what is on

page 174. You·can make whatever submissions you want

to about it but there is no need to read it again.

MR DANE:	If Your Honour pleases.	The first direction to the
jury is:

treat his evidence with some care -

and then he provides two reasons; one, lies, and,

two, the special position that he is in:

a person closely connected -

or -

not a disinterested party.

Now, the learned trial judge tells them why to exercise

care. He provides them with two reasons why the c3re

should be exercised but, with respect, does not tell

them how to exercise that care.	He then continues
and the next matter is:

a matter of common sense ..... scrutinize

..... very carefully and examine the matters

that were put ..... and the whole of the
surrounding circumstances.	Look at
everything.

Now, in our respectful submission, that is the attempt to say how they go about their business.

(Continued on page 29)

ClTSl/1/HS	11/4/90
Thomas

MR DANE (continuing): He fails, as I have indicated, to draw

their attention to the indemnity at that stage

and he fails to draw their attention to the inconsistency

of his evidence with Trevor Arter's. Arter was the

man that looked through the window - the eyewitness. one was taller than the other and the taller man

performed the act and,between the two, Bell was taller

than the applicant.

Now being directed to the whole of the surrounding

circumstances and everthing and not directing them to
the evidence that would assist them in determining the

credibility, even taking the VETROVEC point as to

just sustaining.the credibility of the relevant

witness, the warning, in our submission, is defective.

BRENNAN J:  I presume the judge gave the usual direction as to the

onus and standard of proof.

MR DANE:	Yes, sir, at the beginning. Further, he gave then
no assistance in how to use this critical evidence or what to do with any conclusions they might come
to on the evidence, be it surrounding circumstances or everything that they were asked to look at. When one examines the direction to look at everything,
that necessarily would include the police officers
who travelled back with Mr Thomas, the applicant, from New South Wales, in the plane where what was said to h'a~en: a damning admission, which was denied
by the applicant,was made and would now, with
respect, fall squarely within the terms of CARR's case, and further an indication - a direction to look
at everything would also encompass looking at the witness Ambrosini who, himself, acknowledges that the conversation, the critical conversation where it is
said there is an out of court admission by the
applicant in the Crest Hotel in Sydney.

(Continued on page 30)

C1T52/l/LW	29	11/4/90
Thomas

MR DANE (continuing): Clearly, the witness Ambrosini has

had a considerable amount of drink during that

day and would, as would the police evidence, fall

within - those two witnesses, the policeman and

Ambrosini would fall within the category that we

would submit is a category about which a warning

themselves attract. And so, the warning that was provided was inadequate, insufficient and did not

direct to the dangers of convicting when relying

upon such a critical witness and when one compares

the satisfactory warnings in SPENCER and BROMLEY then it is submitted that this falls well short.

There is one further matter that we would desire to bring to the attention of this Court

about that warning and we submit that it is inaccurate

in a gramatical way which causes a confusion or

is at least open to a confusion.

There are two parties referred to in the warning:

the first party appears in line 3, that being
the witness Bell; the second party referred to

in that warning is the accused; and that is referred

to five lines from the foot of the warning.

Other than the identification of the witness Bell and the accused pronouns are used to identify

the party and while I appreciate that the Court

has all read this warning I feel it incumbent upon

me to read it once more; "What I should also say

to you before I examine how each side - "

MASON CJ:  But why, Mr Dane? Why read it again?

MR DANE:	If Your Honour pleases. I wanted to highlight
the pronouns that are referable to Bell and what
we submit is that the last two pronouns "his" and
"his" that appear in the second-last and fourth- last line that are after the words "the accused"
refer to the evidence of the accused and that all
between the words "the witness Bell" and the words
the "hims", "hes" and "himself" that precede and
"the accused" refer to the evidence of Bell.

(Continued on page 31)

C 1T53/l	/ND	30	11/4/90
Thomas

MR DANE (cbntinuing): The effect of that is that the jury has been invited to :· ·

·- ""·"

- be -carer'til-when -

acting on the accused's -

evidence, but remembering, of course,

that it is up to you to decide what

parts of his -

the accused's -

evidence you accept, what parts, if any

you reject.-

and that direction is absent in relation to the

witness, Bell. We submit that if the jury was

listening - listening carefully - they would have

been directed to scrutinize carefully the accused's
evidence and, in our respectful submission, it is

an inaccuracy that also brings this warning to a state where it is inappropriate for a conviction

to be founded upon it in light of the class of

warnings that were approved _in SPENCER and BROMLEY.

With the benefit of the adjournment a

misapprehension may have been left with this Court
as to the submission as to warnings that we urge

upon this Court. While we say, for the point - and the point being, we submit, that this is a

witness case, an identification of a witness

rather than a warnings case, we say, accordingly,

we are not here to argue about warnings and

therefore the central traditional warnings should

be given. However, we do not wish to be seen or

heard to argue that that is the only way that one

can go and, clearly, if we can draw the Court's

attention to our paragraph 5.2 and 5.3, we

submit that there are the alternatives that we

concede could be applied to the category that we

submit should be made open. (Continued on page 32)

ClT54/l/DR	31	11/4/90
Thomas

:MR DANE (continuing): At pa~e 167 of LONGMAN as the Court

has drawn my atten .on to that again, the second

line:

Apart from the special rule, the general

law requires a warning to be given whenever

a warning is necessary to avoid a perceptible

risk of miscarriage of justice arising from

the circumstances of the case.

And the two authorities there, BROMLEY and CARR, are

clearly cases about witnesses, not about some other

problem about the myriad of difficulties that arise

just at the sheer administration of a case that all

require warnings, and some of them might produce

perceptible risks, and the authorities,BROMLEY and

CARR,are concerned about witnesses who are not in

the classic category as set by DAVIES's case. And
so, we are content to abide by that rule, but the
proposition that we contend for is that it has got

to be applied, and a warning tailored to the

expanded suspect/witness category. So, if any

misapprehension was perceived, or any perception
that we asked that the BASKERVILLE warning be the

only way to go, that is not the way in which we

desire to argue this point. I might then return - - -

DEANE J:	Mr Dane, at the end of the sunnning up, was any point
raised by counsel for the accused that even on the basis that Bell was not an accomplice, the warning
was inadequate?
:MR DANE:	No, sir.

DEANE J: Nothing at all was said again?

(Continued on page 33)

ClTSS/1/FK	32	11/4/90
Thomas

MR DANE: There was not, as I recall, an additional exception

taken.

DEANE J:  Tl;le appeal book is unsatisfactory in that

the summing up ends - that we have got - ends

with the request for the warning. It does not

contain the warning and does not tell you what

happened at the end of the summing up.

MR DANE:  I will endeavour to assist Your Honour with that.

DEANE J: What I said is wrong, the appeal book does contain

the warning but stops -

MR DANE:  The warning is contained, of course, I beg

your pardon.

DEANE J:	I have not found it.
MR DANE:	I beg your pardon Your Honour, that is at page

174.

DEANE J: That is in the Court of Appeal book.

MR DANE:	I do apologize, I beg your pardon.
DEANE J:	It is pointed out to me it is in 152 to 153.
MR DANE:	It is 152, yes, of course, I was using that

conveniently. If I may say so, again, referring

to the trial transcript,another exception was

taken but that was as to the differential and

height between Bell and the accused. But at the

adjournment where His Honour provided the opportunity

before he completed his directions to the jury,
the exception was taken and the authority, of course,

of McNEE which we seek to embrace and urge upon this

Court as deserving of approval, was drawn to the

court's attention. Unfortunately, BROMLEY and

SPENCER were not and they had been decided at

that time, but the exception having been taken and

it been ruled upon, the Crown's contribution in

that may be of some assistance; the Crown conceded

that a warning be given but not the full warning,

I think is the words that the learned prosecutor used.

(Continued on page 34)

ClT56/l/JL _	33	11/4/90
Thomas

TOOHEY J:  Mr Dane, I am not clear what you are saying

about the question of height. Are you suggesting

that that was raised during the luncheon adjournment

when the warning was raised or raised at the end

of the charge?

MR DANE:	No, at the end of the charge.
TOOHEY J:	And that was the only matter raised at that time?

MR DANE:  That was the only matter, yes. All I was endeavouring

to identify was that there were two opportunities

provided for an exception. At the first opportunity the issue of the accomplice warning and McNEE's case

was raised, determined and resolved with the result

that the warning that we have been dealing with was

given.	At the conclusion of the directions it is not
as if he was shut out, the counsel was shut out.	He
was provided with another opportunity.	He took the
opportunity but did not raise this issue.

If I might return to the outline briefly and

at proposition 2, it is - - -

MASON CJ:  But surely we have made more progress than that,

Mr Dane. After all, this is a special leave

application.

MR DANE:	I beg your pardon.
MASON CJ:	I did ask you to put your submissions to the Court

on the insufficiency of the directions given to the jury. Now, I take it that you have concluded doing

that.

MR DANE:	I have, sir.	I submit that the - - -
MASON CJ:	We follow what· your submission is.	Apart from that,

have you got any other independent grounds of

challenge? What about paragraphs 7 and 8? Are they

merely consequential?

MR DANE:	No.
MASON CJ:	If they are not merely consequential, can I ask you

this~ were either of those points put to the

Court of Criminal Appeal?

MR DANE:	No.
MASON CJ:	Well why should we entertain them now?
MR DANE:	We submit that this Court, when it sees a fundamental
miscarriage that arises in the way that we submit it has, it is permitted to deal with this matter, especially in light of the fact that CARR and, of course, LONGMAN, has been decided since the

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Thomas

Full Court had an opportunity to deliberate

on them.

MASON CJ:  But we have constantly taken the view.that we are

not a court of criminal appeal and we have regularly

declined to entertain points that have not been taken in the courts below. Now, is there any reason why we

should depart from that practice in this case?

MR DANE:	This case does not produce an exceptional matter,
save and except that it is in the - the conviction
stands in the face of a witness Arter who is an
eyewitness, who identifies the taller man - must be Bell -
as performing the act that took the man's life and, with respect to the Court, we appreciate the tenuous
jurisdictional point that we are on, but it is our
submission that when a witness of the class of Trevor
Arter, who is an eyewitness and who has none of the characteristics that would cause him to be
suspect or unreliable in any way, is measured against the evidence of Bell and all that inhibits him, it
is our respectful submission that the absence of
the satisfactory warning produces an unsafe and
unsatisfactory circumstance.

I am endeavouring not to frame this in the form

of an argument to the Court of Criminal Appeal but

this, clearly, is our last opportunity and when an

appellate court can stand back and look at the overall

evidence, which we submit this Court can do, and see

where there is an unimpugned witness - evidence against

an impugned witness and the unimpugned witness

implicates directly the impugned witness in the

offence, it is our respectful submission that it is

an unsafe and unsatisfactory verdict.

(Continued on page 36)

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MR DANE (continuing): It is perhaps the MORRIS point in

paragraph 8 to which I am directing the Court.

TOOHEY J: Except, so far as that is concerned, Mr Dane,

you are asking this Court, in effect, to review

the entirety of the evidenc~ no such review having

been carried out or asked to have been carried

out by the Court of Criminal Appeal.

MR DANE:  That is so. I give the same answer on - namely that

CARR and LONGMAN had not been decided but I add

to that, of course, that this is a pretty short

trial - it is a one or two-day trial - and the

evidence is not at all extensive; in fact, it is an

extremely simple matter. It is not as if I am

asking the Court to examine a six-week conspiracy

trial.

I would draw the Court's attention to the

actual -

DEANE J: It would be a somewhat selective review of the

evidence because lots of it is not before us.

Looking at the witnesses, more than half of them

are not reproduced.

MR DANE:	That is so. There is a summary provided that went
to the Court of Appeal and that appears - - -
MASON CJ:	But if we were reviewing the evidence we could

not possibly review it on the basis of a summary.

MR DANE:	At page 154 of the appeal book the second ground,
ableit as the Court will have seen it was not argued,
that the ground was in fact taken.
DEANE J:	Mr Dane, while you are being diverted, a point
of curiosity:  what was the evidence about
fingerprints on this bit of rock?
MR DANE:	As I understand it, that was - none was available
to -

DEANE J~ What, there was not any evidence?

MR DANE:	No, not in my recollection of it, at all, but it
was a porous volcanic rock - - -
McHUGH J:	Not the sort of surface that would yield

fingerprints very readily, is it?

MR DANE: Often argued when one needs it to be the right

surface but Your Honour is right.

DEANE J: Do not take time, I was just interested.

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MASON CJ:  And Mr Dane, while I am drawing attention to the

shortcomings in these points might I also observe

that points 7 and 8 are not included in the draft
notice of appeal and they are not mentioned in

the affidavit in support of the application.

MR DANE:	Your Honour is correct but Your Honour will also
appreciate that the drawing of the appeal documents takes place at one stage and the careful preparation
for the argument takes place at another and - - -
MASON CJ:	Maybe, but it seems clear that careful preparation

of the appeal documents ought to take place in

such a way that all the potential grounds are covered

and included in the affidavit in support of the

application. The members of the Court take time

to read these papers to endeavour to understand

the points that are being raised and it is quite
unsatisfactory if all the points intended to be

raised are not identified and dealt with in the

supporting materials.

MR DANE:	Clearly I do not have a response.	I clearly hear
Your Honour - - -

MASON CJ:	I hope you understand as well.
MR DANE:	It had been anticipated that Your Honour may well draw that shortcoming to my attention. It was
hoped that the significance of the diversity between
Arter's evidence and Bell's evidence may carry the day. inasmuch as being such a clear conflict
and if we are permitted to expand upon the category,
the opportunity to put at least three witnesses
into that category and they therefore produce a
circumstance where they are unable to provide
corroboration as between the three of them - that
is if the cateogy is as broad as we say then
Ambrosini and the police officer would both fall
into it, they then would not be able, we submit, to corroborate one another and then the strength
of the case has gone.  (Continued on page 59)

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MR DANE (continuing):  They then would not be able, we submit,

to corroborate one another and then the strength

of the case is gone and it is only when we

thoroughly prepared the matter as we have that

the position of Ambrosini and, of course, the

police officer, after CARR was decided, came

. within what, we submit, is the :µnpugned· category

and accordingly · point 7 and 8 emerged from that.

It is, of course -perhaps even borrowing from

LONGMAN, we submit that this Court is not precluded

from avoiding a perceptible risk of the

miscarriage of justice, just like a judge is not,

and if it can be perceived by this Court that there

is a perceptible risk then this Court might act

and conclude that there has been an unsafe and

unsatisfactory verdict.

Accordingly, we submit that the court below

should not have decided the case the way it did

inasmuch· -- as it affirmed the restricted class~ It followed thereby that the warning fell to be regarded as adequate and we perhaps conclude at the point where I began and draw attention to

the concluding page of the judgment, beeinning

perhaps at the foot of page 176:

In RV READY (1942) VLR 85, Chief Justice Mann

said at page 93, "that a witness would not be

an accomplice unless she was privy to the

criminal intent of the principal offender."

This limitation was criticised by

Mr Justice Sholl in McNEE V KAY (at pp.531-2)

but still stands as the law for Victoria.

And this is the point that we seek to make:

The present case provides an illustration of

the unsatisfactory rigidity of the law in

this area.

We are encouraged to come to this Court on that

part of the judgment and we respectfully agree with

that part that it is unsatisfactorily rigid. The

part which we, in particular, complain about is

the part of the compartmentalization of the witnesses
which takes its strength from the drawing of the

presentment. We submit. that witnesses have their

own agenda and it is to that that the courts should

look and it is on that basis that a larger group

than those now presently covered by the - - -

MASON CJ: Well, I think you are descending to repetition

because you have made this point.

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MR DANE: If the Court pleases. I was concluding with

that point. If there is anything further?	If
the Court pleases.

AT 3.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.24 PM

MASON CJ:  The Court need not trouble you, Mr Flanagan.

Points? and 8 in the applicant's outline of

submissions were not argued in the Court of

Criminal Appeal and this Court does not propose

to entertain them. Putting those points aside,

the Court, in the light of the directions

actually given to the jury at the trial, the

way in which the trial itself was conducted and

the issues involved in the defence, is not

persuaded that there was any miscarriage of justice.

The application is therefore refused.

AT 3.25 PM THE MATTER WAS ADJOURNED SINE DIE

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