Thompson v The Queen

[1988] HCATrans 308

~

~ --.-~~

IN THE HIGH COURT OF AUSTRALIA

Registry No C21 of 1986

B e t w e e n -

ALLEN DOUGLAS THOMPSON

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

Thompson

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 DECEMBER 1988, AT 10.27 AM

Copyright in the High Court of Australia

C2T4/l/HS 1 8/12/88

MR B.J. SALMON, QC:  May it please the Court, I ~opear wir~

my learned friend, MR K. CRISPIN, QC,

for the applicant. (instructed by Legal Aid Oftice)

MR M.S. WEINBERG, QC:  May it please the Court, in t~is ~atte~

I appear together with my learned friends,

MR T.J. HIGGINS, QC, and MR J. SABHARWAL, on behal:

of the respondent. (instructed by the Director

of Public Prosecutions.

MASON CJ:	Yes, Mr Salmon.
MR SALMON:	I hand up an outline of the applicant's submis s io,Is.

Your Honours. it is proposed that I will deal with the
first point, the jurisdiction point, and my learned
junior will deal with the similar facts point.

Your Honours, the point raised first in this

application, it is submitted, goes right to the

heart of criminal proceedings, particularly in a

federation. So far as our researches go, in

what, President Reagan would say we anticipate, is
the greatest federation of modern times, the point has

not been authoritatively determined by the

Supreme Court. Amongst the authorities which we

have provided copies to the Court is a case of

STATE V BALDWIN, 67 ALR 3d 979 and, Your Honours,

there have been in the various courts of the States

of America many cases dealing with venue and with

what is called in America, appropriately enough,

"territorial jurisdiction".	This case deals with
both.

I really only want to draw Your Honours'

attention to what appears on the second last page,

page 986, where the Appeal Court of the State of Maine,

in the judgment in this case say, at point 2:

(Continued on page 3)

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MR SAL'-ON (continuing):

We are aware there is a split of

authority in the courts of this country

as to the quantum of proof required to

establish both venue and jurisdiction.

It is our submission, Your Honours, that whilst

this matter comes before the Court as a facts

issue, it raises, as a threshold point, for

determination by this Court, we submit, exactly

what the onus of proof should be in a case where

the question of where the crime was cormnitted is

raised; that is, it is raised in the sense that

there is material which would raise the issue of

whether or not the crime was cormnitted, if it was

committed at all, within the jurisdiction of the

court trying the case.

Your Honoum, as a starting point, it is

submitted that the Federal Court, in its decision, was

not guided by MOFRIS V REG, a case, if I nay say so,

of great value in cases such as this, in the

Federal Court, although the court were asked and

specifically said in their judgment, that the

question of the verdict being unsafe and

unsatisfactory because of the state of evidence

as to jurisdiction, the Federal Court did not

proceed to do as was required, in our submission,

by MORRIS V REG, examine the evidence itself and

determine whether or not it was open to the jury

to be satisfied beyond reasonable doubt.

Perhaps if I could take Your Honours to the

actual point in the judgment where, we submit,

that is made clear, at page 599 point 1.

(Continued on page 4)

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MR SALMON (continuing):

It is argued under ground 3 -

in the ,federal Court notice of appeal -

that the verdicts were unsafe and

unsatisfactory because there was insufficient

evidence that either the deaths or the acts

which caused them occurred in the A.C.T.

What we have said already disposes of this

ground.

And, Your Honour, what the court actually said is on

the preceding page. The court said:

The directions of the trial judge as to

jurisdiction were very clear and there was

evidence upon which the jury could find

as they must have done that the deaths

occurred in the A.C.T. and not in

New South Wales.

BRENNAN J: What is wrong with that?

MR SALMON: It is our submission, Your Honours, that in doing

that all the court did was what the Supreme Court of

Queensland did in MORRIS V REG, in that they only

applied the test on an appeal where it was argued

that the verdict was unsafe and unsatisfactory of

examining whether there was evidence on the point and did not examine whether that evidence was of a quality which would enable the jury to be satisfied beyond

reasonable doubt - that evidence, of course, added

to the other evidence in the case.

It is our submission, as I indicated in point 2,

that the majority judgment in MORRIS V REG requires

a careful and independent assessment of the critical

evidence, as distinct from merely identifying it.

BRENNAN J:  But the evidence which bore upon this subject - if

the evidence was sufficient to justify the finding, was

there anything that cast any doubt upon its quality?

(Continued on page 5)

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MR SALMON:  It is our submission, which I was going to ~c::-.e

to later, Your Honours, that the evidence, as

it stood, was not sufficient to be satisfied

even on the balance of - - -

BRENNAN J:  That is a different question. You are saying,

then, that there is no evidence which can support

the finding. As I understand it, what your

proposition is is that although the court said
there was evidence which would support the finding

they failed to perform a function which was to evaluate the quality of that evidence in order to determine whether it was open to a jury to

convict.

MR SALMON: 

Yes, Your Honour, perhaps that is what I put

but I added that they failed to consider all
the evidence on the point of jurisdiction. It

is our submission - and I will come to it later -

that the only bit of evidence available to the
court at all was the finding of the dead bodies

and I concede that that is a bit of evidence.

I would then hope to be able to take Your Honours
to some other aspects of the matter to point
out that in the circumstances that bit of evidence

was not sufficient.

DEANE J: Is not your point this: that once the jury's

verdict that death occurred through shooting

and not through the car accident is accepted,

no reasonable jury properly instructed could

find beyond reasonable doubt that the shooting

took place in the ACT?

MR SALMON:	That is it, yes, Your Honour.
DEANE J:	Does that not raise another question, and that
is this:  can the law in a Federation such as
this be that if somebody confesses that he murdered
somebody near the boundary between the ACT and
New South Wales but does not know on which side
of the boundary, he cannot be convicted of murder
unless it is established beyond reasonable doubt
on which side of the boundary the crime occurred.

(Continued on page 6)

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MR SAL\.fON:  That is, in our submission, the result of the

law in this country at present.

DEANE J:	You would need to convince me that such an absurd of affairsdid, in fact, exist and that on questions	_:, - ..::
of jurisdiction one would not of necessity resort to the probabilities.

MR SAL\.fON:  Your Honour, if that is the case, we submit

that the matter needs clarification because as

it turned out in this case both the court below

and the Federal Court, as I apprehend their

judgment, agreed that the matter should be determined

beyond reasonable doubt.

DAWSON J: Mr Salmon, is it clear that it is a question

for the jury? I notice that in the American case

it was the judge that decided it.

MR SALMON: It was, but in the BALDWIN case that was, as

I understand the case, a case where the appellant had waived the right to a jury to determine the

point of jurisdiction, Your Honour. There was

in this case, as Your Honours probably noticed,

some discussion and it was argued before the

Federal Court and before His Honour, that there

should have been a special verdict on jurisdiction.

That is not a matter which we need to raise to

win this appeal, we say, but clearly the matter

is, if I may say so - Your Honour Mr Justice Deane

raised the matter which we say brings this case

properly before this Court for determination.

If the standard which was applied in the

directions of His Honour the trial judge was correct

then, we say, the appeal must be upheld once you

anlayse the evidence. If there is some other method

of determining jurisdiction then we submit this

Court should speak, as it were. And, Your Honours,

we accept that it would be possible for each State

and territory to pass legislation dealing, at least

as far as it can, with this issue so as to avoid

the absurdity which we say is capable of arising. (Continued on page 7)

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MR SALMON (continuing):  My learned junior, in fact,

suggested I put examples to Your Honour with

refrigerated trucks with bodies in them going

around over the boundaries. I do not think

that is really necessary but it is part of our

submission to Your Honours that this issue is

a matter of significance;that there is scope for - at the present, if it follows from what

we say is the law, that somebody could be in

a position where not only could he not be

tried in the State where the body was fou~d but

that the same argument would apply in the State

which was the State about which the problem

arises. So that a mere acquittal in one State

would not necessitate, assuming one could get

over difficulties of double jeopardy, a conviction

in the other.

If I could just briefly return to the -

DAWSON J: Well, now, in answer to my question, you submit

that it is a question for the jury, do you?

MR SALMON:  Yes, Your Honour. As our law is currently, it

is a matter which goes to the issue of whether or

not the crime - - -

DAWSON J: It is not an element of the crime.

MR SALMON: Well, certainly that was what BALDWIN says, also,

Your Honour; that is, that it was a matter outside

the determination of whether it was part of the

crime or not.

DAWSON J: All the jury has to try is whether the elements

of the crime have been proved beyond reasonable
doubt, is that not so? Why would they be required

to determine this issue?

MR SALMON:  Your Honour, at some point, there has to be,

we submit, once the point of jurisdiction is raised, a determination on the issue. If the

matter is before the jury, that is if the a~~u~cd

has been arraigned, then at some stage, we say,

the jury would have to be directed, either direced

or would have to bring in a verdict.

DAWSON J:  Why?

MR SALMON: Well, if it is accepted, Your Honour, that a

State can only try, under the CONSTITUTION and going back beyond that, matters connected with

its Territory, then - and I might interpose there,

it has never been suggested that the mere finding

of a body in the Territory of itself gives

jurisdiction to try -then it flows from that, we

sucmi.t that, at scma point, a determination has to be ma.de as to

'whether the State has jurisdiction.

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DAWSON J: That is true, but why by the jury?

MR SALMON:  I suppose I am not really answering Your Honour's

question except to say that that was what was done he~e

and it was done here with the judge conceding that i:

was a live issue and putting it to the jury,

notwithstanding an application by the counsel who

appeared for the accused that there be a special verdic:

taken on jurisdiction - - -

DEANE J:  But is it essentially a matter of jurisdiction? I

mean the law of the Eerritory only applies in the

Australian Capital Territory and the question for the

jury is whether the facts prove beyond reasonable

doubt, subject to this question of where, establish

murder under that law?

MR SALMON:  Yes, subject to this question. It is our submission

that at some point the question, once it is raised, must

be determined. If it is not to be determined by a

jury then what does one do when the point arises after

the accused has been arraigned and is before the jury.

DEANE J: Yes, in a way it is a sort of a mirror question: in

one sense it is jurisdiction, but in another it is not?

MR SALMON: 

It is conceded that there is a perfectly

respectable, if I might respectfully say so, line of
argument that the issue of jurisdiction is not an

element of the crime. On the other hand, running
along beside that - - -

DEANE J: But that is not what I am putting to you.

If, for

example, what was alleged was that the accused killed

somebody in the State of Western Australia, then

obviously the Supreme Court of the Australian Capital

Territory would say, "We have not got jurisdiction".

But if what is alleged is that there has been a murder which is a crime under the law of the Australian

Capital Territory, that is not a question of jurisdiction, the question is whether there has been

such a murder or not? (Continued on page 9)

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MR SALMON:  I accept what Your Honour says, unreservedly, ~~t

if the issue is then -

DEANE J:	I was not saying that, Mr Salmon.	If I sounded
dogmatic I did not mean to be.

MR SALMON:	But if that be the case, then once the issue is raised as to whether or not the offence alleged
to have been committed was in the Australian
Capital Territory then it is our submission
it must be determined.

The indictment itself - I confess I have

not looked at it but I am familiar with indictments

in the territory - - -

BRENNAN J:  It is at page 9.

MR SALMON:  - - - page 9 - includes, as one of its - I

am glad to find that it includes, as it invariably

does, that an allegation that the offence charged

was committed within the territory.

BRENNAN J: What was the plea to that indictment?

MR SALMON:  The plea was merely "not guilty". I suppose,

with respect, there may have been other procedures

that could have been followed at the time but

it was always clear from the very earliest part

of the evidence - and it was always clear to the Crown, one apprehends, because the Crown

said that the accused's version was not true

and the Crown also was aware of other aspects of the

accused's version - that is, that he went to

Bredbo and that the issue of jurisdiction was

capable of arising - and in just taking the

hypothetical example of somebody unrepresented

on these proceedings who pleaded not guilty and

then the evidence came out exactly as in this

case, it is our submission the matter would

have to be disposed of by the trial judge on

some basis or other. (Continued on page 10)

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MR SALMON (continuing):  We are not, for the purposes of

this appeal, quarrelling with the notion that it

be a jury question. If it was some other

question, then the trial miscarried in any

even 4 but we are prepared to argue the matter

before this Court on the basis that it was a

jury question, on the basis that it had to be,

like elements in the crim~ proved beyond

reasonable doubt and in those circumstances

the verdict is unsafe and unsatisfactory.

Your Honours, the rest of the submissions

go to the facts.	I will just briefly relate
them and deal with them.	As I have already

indicated, the decision of the Federal Court

suggests that a jury may be satisfied beyond

reasonable doubt that a victim died within

the jurisdiction if the body was found within

the jurisdiction. The court also refers to another aspect which must be true, that is,

that the accused:

is probably the only person who knows

where the -

victims -

died.

That is set out at page 596 point 9, where

Their Honours refer to section 25 of the CRIMES ACT, whic~ we say, really has no bearing in this case, although, of course, it does deal with the situation where the act causing death occurs in New South

Wales, but the death occurs outside New South

Wales. So far as New South Wales is concerned,

it has given itself, by section 25 - and, of course,

the territory, because section 25 applies in the

territory - jurisdiction in those circumstances

and the problem does not arise when that is the

issue.

(Continued on page 11)

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MR SALMON (continuing):  The court then went on to say:

The evidence as to this is sparse. The

appellant is probably the only person who

knows where the girls died. He says

that they died in the A.C.T. when the

car driven by him collided with the tree

and burst into flames. It is not disouted

that this tree is in the A.C.T ·

Then the judgment goes on to deal with the Crown

case and makes it clear, of course, that the

Crown case necessarily involved - not accepting

the fact that the girls died when the appellant's

car hit the tree. As is set out in 1.4 the

Crown in the Federal Court rely on the fact that

the accused said that the deceased died in the

Australian Capital Territory when the car driven

by the accused collided with the tree and burst

into flames. It is submitted that as the whole

Crown case depends on the argument that this

statement was untrue and that the appellant killed
the victims and then staged the accident, the
accused's own statement that the victims died
in the Australian Capital Territory in the way
he described and the location of the bodies in

the Australian Capital Territory is of absolutely

no weight at all in the circumstances, the

circumstances of course being that it was accepted

that the New South Wales border was within 40 metres

and that as I have tried to indicate by the little

diagrams which are enclosed with the papers, there

were various ways in which New South Wales was

clearly relevant in the circumstances.

We would not be here on a case such as this

if the relevant tree had been in the middle of

Queensland - right in the middle of Queensland

or Western Australia and the factual situation

would not enable it to be argued. The factual

situation here not only enables it to be argued,

in our submission, but is such that it establishes

that the verdict was unsafe and unsatisfactory.

(Continued on page 12)

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BRENNAN J:  Is the relevant fact that it was 10 to 12

kilometres from where the Monaro Highway crosses

the border?

MR SALMON:  It is a relevant fact. It was one of the facts,

certainly.

BRENNAN J:  Was there anything to suggest that the car had

not travelled on the roadway rather than across

country across the border?

MR SALMON:  The difficulty about that, Your Honour, is there

is nothing - the only material on that comes from

the accused himself. There was very stron3 evidence

to suggest that the car started at Queanbeyan,

and perhaps I could - - -

BRENNAN J:  Was that 10 to 12 kilometres, is that the accurate distance if it did start from Queanbeyan?

MR SALMON:  No, Your Honour. The 10 to 12 kilometres is the

point south of the - could Your Honour, perhaps at

this stage, go to the coloured diagram which is

attached to a map. The map itself is unfortunately

only a photostat map but, as was proved in the

evidence and accepted throughout, the relevant

boundary is the railway line.	On the map it is
shown in red.

BRENNAN J:  It is about two-thirds of the way between

the Queanbeyan crossing of the border and the

southern crossing of the border, is it?

MR SALMON:  I just did not catch what fraction Your Honour used?

BRENNAN J: Two-thirds, half?

MR SALMON:  A bit beyond half, somewhere between half and

two-thirds, if one assumes that the route was the

Monaro Highway.

BRENNAN J: The hypothesis on the version of the killing is

that either the killing took place across the border

and the dead bodies were transported by car along

that distance of the ACT highway to the point

where the car was ultimately found, or that they

were killed within the ACT closer to the point where

the car was fotmd.

MR SALMON:	Your Honour, they are two of the possible hypotheses.
BRENNAN J:	Are there any others?

MR SALMON:  Yes, Your Honour. I think I have set them out in

point 1.6.	I will just briefly summarize the
evidence without taking Your Honours to it.	There

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was evidence from the girls' mother that the two

girls were in the ACT at one point and that they were

on their way to Queanbeyan, and there is also evide~ce

that the older of the two girls and the accused were

living together at Queanbeyan at the time. The

younger girl frequently stayed at the Queanbeyan

flat in which the older girl and the accused lived.

The car left the ACT and on all the indications at least went towards Queanbeyan at about 9.30 at night.

Going now to point 1.6, the first possibility

was that the accused - the first that I have listed

is that the accused killed the victims in Queanbeyan,

or at least before entering the Australian Capital

Territory at all, and if one starts at the junction

of the three blue lines there are three possible
ways in which the - three likely and relevant ways,
and the maps were in evidence, maps of the relevant

areas were in evidence, and they are set out there.

Assuming that the accused was telling the truth

when he said he was going to Bredbo, then by far

the most likely route would have been to take the

middle of the three blue routes, cross into the ACT

at Tralee by crossing the railway line there, that is

the border, proceed down the Federal Highway where,

at various points, he becomes very close to the

boundary of the Australian Capital Territory because

the road runs along beside the railway line and

the railway line is the relevant boundary.

(Continued on page 14)

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MR SAL~ON (continuing):  He then would cross the border,

if he went to Bredbo, and continue down the blue

route. As 1 started to say in relation to l.6(a),

there are three ways; one would be to go towards

Canberra City, that is the most northerly of the

three routes, drive around in the Australian
Capital Territory and stay in the Australian Capital

Territory for whatever distance was appropriate

on the Monaro Highway. The second way would be

to take the direct route, which I just mentioned,

crossing the border at Tralee. The third was to

take a road which was, admittedly, a dirt road,

on the evidence,for a good part of its length and

that is the most southerly of the three blue routes

shown.

1 have set out, 1 trust without argument, the distances at the top of this diagram which

Your Honours may think irrelevant to this issue

of fact. The first was that the location is, in

each case, the location of the vehicle - the location

where the dead bodies were found. Via the Monaro

Highway it was 11 kilometres. The location of

the junction of the Monaro Highway and the old

Cooma Road is 350 to 400 metres, and the junction

of the Monaro Highway and the old Cooma Road to

the border is 40 metres.

There was a view taken, and as His Honour

pointed out there was a secluded and lonely spot,

which was used counsel for the appellant in his

argument and which had been established on the

evidence, some few hundred metres up the old Cooma

Road. The old Cooma Road was only 300 to 400 metres

from the accident and it only involved 40 metres on bib.mm

to cross into New South Wales at that point.

Just going back to the 1.6. The first theory

was that the accused killed the victims in Queanbeyan,

or at least before entering the Australian Capital

Territory at all, and I have now at some length

described the three possible routes from Queanbeyan
to the Australian Capital Territory.	When I say

11 possible", there are absurd other routes but the

ones that are clearly open on the evidence.	The
accused drove the victims alive through the

Australian Capital Territory to either the turn
off to old Cooma Road, or the border south of

Williamsdale, and killed them in the State of

New South Wales, then returned to the scene of
the staged accident. The accused drove the victims

from New South Wales through the Australian Capital

Territory along the Monaro Highway into New South Wales

again, to, or towards, Bredbo. And that was his

evidence. He said they went for a drive to Bredbo

and they were coming back from Bredbo when the

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accident happened, and then back into the ACT,

killing them in the ACT somewhere between, assuming

he is still on the Monaro Highway, where the red

line and the green line cross to the south of the

diagram.

And the last one is that the accused drove the victims from New South Wales into the

Australian Capital Territory and killed them in

the Australian Capital Territory which, I think,

was the suggestion that Your Honour made as being

open on the evidence and we concede it was open

on the evidence.

Your Honour, I do not need to deal with 1. 7

any more in the light of the discussion we have

already had.

DAWSON J: In WARD's case the question was left to the jury,

was it not, the judge instructing them as to the

law - that was the banks of the Murray murder?

MR SAL~ON: Yes, that is so. It was left to the jury in

WARD's case.

DAWSON J: Instructed wrongly, as it were, as to the law.

MR SALMON:  Yes, as to the law as to where the border was,

but it was left to the jury and I understand,

Your Honour, that in GRAHAM's case the same thing

happened. But there has certainly been no

High Court authority dealing with the propriety of that course.

(Continued on page 16)

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MR SALMON (continuing):  WARD's case only deals, with my reac~~~

of it at least, with the correctness of the

direction of law as to the position of the boundarv.

DAWSON J: Yes, that is right.

MR SAL~ON:  That is what I think Your Honour was indicating. Your Honm;:-s

that concludes the submissions that I wish to put to

the Court. I just conclude by submitting that the

issue is a matter of considerable potential importance.

It is not a matter that is insurmountable but it is

our submission that to deal with the absurdity which

Your Honour Mr Justice Deane raised right at the outse:

it would be necessary either for this Court to make

a ruling as to what is required when this issue of

jurisdiction arises different from that which was

assumed by His Honour Mr Justice Gallop and the

Federal Court or, alternatively, that legislation is required by the States and territories to deal with

the possible absurdity which, we submit, presently

exists.

DEANE J:  Where is His Honour's direction to the jury on the

onus of proof in terms of where the murder took place

or death occurred?

MR SALMON:  His Honour's ruling on jurisdiction I can take

Your Honours to now because His Honour gave some

thought to the matter overnight and that is at page 496.

The matter had been a source of considerable

discussion between counsel in the actual summing up

itself. At page 517, in the second paragraph

beginning on that page:

I turn to that other matter that I

mentioned to you about the place where the

offences, if any, were committed. The Crown

must satisfy you beyond reasonable doubt in

each case that the act causing death or the

death occurred in the Australian Capital

Territory. I have got to give you some

directions of law about this important matter.

And he goes on from there.

DEANE J:	On what basis is the alternative or the"death occurred'brought in there? Is it that here the burning
of the car was, as it were, part of the actual
series of events and that death had obviously occurred
by that time, or is the thesis that if A shoots
B  who is then put in an ambulance, A commits
murder in whatever State the ambulance happens to be
when B dies?
MR SALMON:	Your Honour, so far as the second part of what Your Honour put to me is concerned, because of
section 25 there is no problem, if it can be proved that

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A shot B within the place; and if there is no

problem about establishing that then the place whe~e

he dies is quite irrelevant. Because of section 25

the Crown could have succeeded if the death had

occurred in the Australian Capital Territory.

DEANE J: There is a statutory answer to my question.

MR SALMON:  Yes, Your Honour, I referred to it briefly

earlier and I will - as I understand WARD's case this

section did not apply in Victoria at the time of

WARD's case.	I am sorry, my more experienced opponen:
tells me I am wrong about that.	But in any event - - -

DEANE J:  Yes, that answers my question, thank you, Mr Salmon.

(Continued on page 18)

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MR SAI..M)N (continuing):  As I say, that completes the matters

I was planning to put to the Court.

BRENNAN J:  Can I come back to your opening submission with

regard to the performance by the Full Court of its
appropriate function in this case, on this issue.

Given the evidence is sparse on the question of

where the act was done which caused the death or

the place where the death took place, if there was

any evidence which might support that finding, was

there anything about the evidence which might

support that finding which would throw doubt upon

its quality in any way?

MR SALMON:  Yes, Your Honour. The only evidence, we submit,

was the finding of the bodies in the car. On the

Crown case, they were in a position that they got

to after, as a matter of time - after the two girls
had been killed; that is, after both the act causing

it is accepted by the applicant that, on a view reasonably available from medical evidence in the

death and the death had occurred and I did not put

1.5 to Your Honours, but I will briefly remind·

Crown case, the act causing death and the death

itself occurred simultaneously or so close to
simultaneously, it makes no matter. That is because

the Crown case was that they were shot in the head at

close range with a 22 gun.

DAWSON J:  Well, you are really saying there was no evidence as to where the girls were shot.

MR SALMON:  No, Your Honour, not quite. I am saying that

there was evidence - - -

DAWSON J: Well, there was no evidence that they were shot in

the ACT.

MR SALMON:  No actual evidence that they were shot in the

ACT.	As to the locus, the evidence,in our submission,
leaves it absolutely available without, in any way,

atretching the credulity, that they were shot

somewhere in New South Wales either because they were shot and secreted in the car before the car

ever left Queanbeyan or they were shot in some

roore secluded place, not on the Monaro Highway

but some other place, and then taken to the place

where the accident was staged.

Both those theses are, in our submission, abundantly available on the evidence. They were,

certainly, the subject of references by His Honour

in the summing up and, particularly, the secluded

place somewhere between 400 and 500 metres from

the locus of the accident and that is the place

that was just along the old Cooma Road.

C2Tl7/l/SH	18	8/12/88
Thompson

DAWSON J: Just to complete that, really, it amounts to:

there is no basis for the inference that they

were shot in the ACT. That is the submission

you put.

MR SALMON:  No, Your Honour, there were a series of

circumstances and when all those circumstances

were taken together, there are quite reasonable

conclusions from those circumstances that the

death occurred in New South Wales. Equally,

there are parts of the evidence which give some

evidence that the death:;occurred in the ACT.

BRENNAN J: Well, so that we can understand precisely the

nature of these circumstances, there is the
likelihood of death within a moment or two of

shooting, assuming that shooting caused the death.

MR SALMON:  Yes, Your Honour.

BRENNAN J: There is the statement that he went to Bredbo

and was on the Bredbo road coming back. There

is the proximity of the site to the New South Wales'

border via the Cooma Road and the existence of a

secluded place in New South Wales close to the

border. There is, I suppose, the time at which

things took place.

MR SALMON:	Yes.
BRENNAN J:	Is there any other fact which bears, or what

might have been regard by the jury as a fact which

bears upon the inferences that might be drawn?

(Continued on page 20)

C2Tl7/2/SH	19	8/12/88
Thompson

MR SALMON:  The only other one I would add to what

Your Honour said was the fact that the three of them had been at Queanbeyan to

start with and there is no way beyond the

likelihoods that they had not been killed
in New South Wales before the car trip really
started, or certainly before the car came

across the border into the ACT.

BRENNAN J: If the course of the trial, was anything said

by the accused which might have affected the

inferences that were avail~hle to be drawn from

the facts that I have already referred to plus their

presence in Queanbeyan which you have just

mentioned?

MR SALMON:  No, Your Honour. His statement to the jury

of the evidence for the accused was a brief

statement which does not deal with jurisdiction

at all and the only other evidence was some

forensic evidence which dealt with whether

or not the girls had been shot.

GAUDRON J: There was some forensic evidence, was there

not, from the doctor who did the first post

mortem which suggested that there may have been

inhalation of carbon monoxide before death, which
might suggest that the firing, if you like, on

accused's version, and the shooting were almost

simultaneous?

MR SALMON:  I think Your Honour is correct, but the

difficulty about that is that that particular

witness also said that he, having examined the

skulls, saw no sign of any bullet wound at all.

I must admit, I - it is Dr Jankus Your Honour

is referring to, I think. He was the pathologist

who examined the - certainly he referred to various

material which suggested that the cause of death

had been burning.

If I could just take Your Honours to page 109 -

I have found the passage, I think, to which
Your Honour refers. It is at page 108:

did you notice anything about the tissues

that you could observe?---Well, some of

them were pink and it can occur with carbon

monoxide inhalation, but not necessarily so.

Well, is it indicative of that, or is it -

what is the connection between that and

carbon monoxide inhalation?---It can occur

with carbon monoxide inhalation but

sometimes the pink tissues also occur if

the body is just burnt.

I would submit that, bearing in mind that the

Crown relied on other medical evidence and in fact,

C2Tl8/l/JM	20	8/12/88
Thompson

as I apprehend it, suggested that Dr Jankus had

erred in failing to notice bullet holes, it would

really not be enough to tilt the facts away in any

way from the matters which I have just been

dealing with with His Honour Mr Justice Brennan.

Subject to any other matters that the Court

would like to put to me on the jurisdiction

point, those are the submissions for the applicant

on jurisdiction, Your Honours.

MASON CJ:  Thank you, Mr Salmon. Yes, Mr Crispin?

(Continued on page 22)

C2Tl8/2/JM	21	8/12/88
Thompson

MR CRISPIN:  Your Honours are perhaps familiar with the

story of the person returning home after some months

overseas and asking his spouse whether she had been

faithful to him during his absence and receiving

a reassuring smile and the answer, "Yes, dear, often.''

The reply, of course, was not reassuring because he

was concerned with the totality of the situation

and not merely isolated features and instances.

In my respectful submission, the task of the learned
trial judge in approaching the issue of similar

fact evidence was, firstly, to begin with a

considerable caution about admitting it, as I

would subMit the authorities show and, secondly,

to ask himself whether, on a comparison of the

totality of the evidence relating to the two

incidents in question, his concern was assuaged

and not merely to look for isolated points of

similarity which might suggest that there were

some common features but that overall the transactions

had a very different complexion and, in our submission,

really the similar fact in this case fell into that

category.

It had some isolated features of similarity

but the features were, in the main, without

significance and overall a comparison of the

different incidents reveals incidents of a very

different nature. If I could take Your Honours,

firstly, to the evidence, or to Mr Temby's opening

concerning the nature of the evidence which was admitted

to show that the accused had committed four murders

on 28 March 1984 which was, of course, something

approaching two and a half years after the events

which led to the charges before the court.

A convenient synopsis of that appears in

Mr Temby's opening at page 318 of the appeal book, and if I could perhaps take Your Honours through

it in a rather sketchy fashion because it is not

necessary to become immersed in detail. At about

point 5 on that page Mr Temby opened with these

words: 

Your Honour, the evidence the Crown wishes to lead from this witness commences on the night of Saturday, 31 March 1984 on which night at

about 10.30 pm he went to 56 Hemmings Crescent,
Richardson, the house occupied by Peter Baker,

known as Tony Baker; his de facto wife, Radmilla

Milosevic, a sister of these two deceased;

and their two children, Danny Baker aged 4,

and Lisa Baker aged nearly 2.  He will say that

on that night, having gone to the house and

having made certain arrangements, he entered

the house and found those four persons in a

deceased state. Three of them, Baker, Milosevic

and the little girl in a room, and the little

boy in another room.  He will say that each

C2Tl9/1/MB	22	8/12/88
Thompson

of them had various wounds including in
each case a gunshot wound to the head.

He will also say that in the kitchen of the

house there was found evidence consistent

with an attempt having been made to burn do-wn

the house and that will be developed further

by another police officer named Nelipa who

I will come to in a moment.

There then follows, Your Honours, some narrative

about what I would suggest is not particularly

relevant. If I could take Your Honours then over

to page 321 and picking the thread up at the

beginning of the second paragraph on that page

where,having outlined the course of a record of
interview or the admissions made by the applicant
in the course of a record of interview, Mr Temby

returns to the theme and says:

Thompson then related an incident when he and

Tony had gone shooting up in Tumut -

and, again, the passage that next follows is not

particularly important.

(Continued on page 24)

C2Tl9/2/MB	23	8/12/88
Thompson

MR CRISPIN (continuing):

The gun was identified as being the gun

that had been taken away from his house

in the early hours of the morning of the

same day. It was established that he had

also taken bullets to the house. It was

established by an admission by the accused

that the silencer was attached to the rifle

when it was fired in Tony's house.

The accused said that he then went home

taking the gun with him, that the next day he

went back to the house.	He sprayed petrol all
over the place.	He turned the stove on and

then left. He was asked about the shooting

of Danny ..... he was found in another house

he said "another house" and then he was corrected -

Another room, and was not dealt with in the

admissions made to that stage, and the accused

said, "I must have done it on the Wednesday

night but didn't realize it then. When I

went back there I seen Danny and I realized I'd

done it." Reverting to the - what the Crown

says was an attempt to set fire to the house,

he explained that he got petrol from a garage,

that they were procured in petrol, oil bottles,

and there was some detail gone into in that

regard.	He was asked what he had done to try
and light the petrol.	He said he put some

paper on the stove and turned it on.

Your Honours, there is some further information about

that over the page at about point 5 on page 322 where

Mr Temby opened:

The Crown will call evidence from a Sergeant

Nelipa who was in charge of the scene.

Sergeant Nelipa will describe what he saw in

the kitchen of the house.

the house one of the hot plates was turned on

When he entered

and there was newspaper, most in a charred or

ashed state leading away from the the hot

plate, and there was at least one, I think there
were two, containers which were in the kitchen.

Nelipa will say that various samples of carpet and other items were taken from the house and

passed on to a Mr Smith for examination.

Nelipa will also say that there were taken from

the house seven .22 calibre cartridges and five

I think is the correct figure, projectiles as

the police call them, fired bullets, which were

found in various places like walls and so on.

Smith will give evidence that the samples he received were found to contain variously

C2T20/l/HS	24	8/12/88
Thompson

petrol, or kerosene, or dieseline and

sometimes more than one of those inflammable

materials in combination. The samoles I

refer to are samples such as pieces' of carpet

and also the containers that were found at

the house. Prior will give evidence that

the cartridges which were seized from the

house had been fired from the rifle which
the accused had surrendered to Lanham and

which the accused had said he had at the

house on 28 March and used to shoot these
four people.

Your Honours, the admissibility of that material was said to be supported by a number of points of similarity which the Federal Court set out on

pages 599 to 601.	If I could take Your Honours to
those points of similarity.	At page 599, Your Honours,

the point is dealt with in the large paragraph on that

page where Their Honours said:

We deal next with grounds 1 and 6 concerning

the similar fact evidence admitted by the

learned trial judge. Sergeant Lanham,

a police officer, was permitted to give

evidence of admissions made to him by the

appellant that he had shot to death the four

persons in the house at Richardson.

Circumstances surrounding these four murders

were proved and there was evidence arising out

of the post-mortem examination of the corpses

of the two deceased in the present case from

which the jury could, if they were so minded,

draw certain conclusions.

(Continued on page 26)

C2T20/2/HS	25	8/12/88
Thompson

MR CRISPIN (continuing):

The account of the deaths of the two girls given by the appellant was that they had

died in a fire after the car in which they

were passengers had hit the tree just off

Monaro Highway. The Crown contended that the

appellant had shot the two girls and then

staged a collision of the vehicle with a tree

and the burning of the vehicle in order to

cover up evidence of the shooting. The issue

therefore was whether the girls had died in
a motor accident as the appellant said or by

being shot as the Crown said. If the appellant

were to be convicted it was necessary for the

Crown to prove not only that the girls were

shot, but that the appellant shot them. It is

argued by the Crown that the evidence of the

Richardson killings was relevant to prove both

that the girls were shot and not killed in a

motor accident and also that the appellant was

responsible for the shooting and that this was

not accidental.

A voir dire hearing was conducted by the

learned trial judge. In order to enable him to rule on the admissibility of the evidence

proposed to be led concerning the Richardson

murders, the Crown Prosecutor gave details of

this evidence and, in the absence of the jury

after hearing argument, his Honour decided to

admit the evidence upon the ground that there

was "a striking similarity" between the facts

of the Richardson murders and the present case

and that the "similar facts" were relevant as

tending to show otherwise than via propensity
that the accused conn:nitted the acts forming the

basis of the charge because on other occasions

he had conn:nitted a crime in a particular somewhat

unusual manner.

The points of similarity mentioned by

his Honour were as follows:

(1) the family connection between each set of

victims.

Namely that the mother in the Richardson family,

Mrs Baker, was the sister of the two deceased girls

who formed the subject of the proceedings before the

learned trial judge:

(2) each of the six victims involved in the

four Richardson murders and those for which

the accused is being tried, was shot;

C2T21/l/SR	26	8/12/88
Thompson

(3) each such victim was shot with a similar

calibre rifle;

(4) each shot was through the head of the

victim;

(5) each Richardson victim was shot at close quarters and it was highly likely that the t~o

victims of the present charges were also shot

at close quarters;

(6) in respect of the Richardson murders the

accused had attempted to destroy the evidence

and he had done likewise in relation to the

present offences;

(7) the attempt to destroy evidence was in both

instances by fire;

(8) in both instances the fire had been set by

using petrol; and

(9) the accused was present at the scene of
each set of killings shortly before they occurred

and was the last person to see the victims

alive.

Now, if I could just break off there for a moment,

Your Honours, and I will come back to what the Federal

Court had to say shortly. It is submitted that when one looks at the points of similarity they fall into

in fact four categories rather than the three I have

listed in the precise of submissions. Firstly, there

was the family relationship. Secondly, there was the

assertion that the girls were in fact shot, as alleged,

and the various matters which flowed from that.

Thirdly, there was the points which all proceeded

upon the assumption that petrol had been used to burn

the car. And, finally, there was the proposition that

the accused was the last to see the girls alive.

Now, just taking those four categories one at a

time. Firstly, we would submit that the family

relationship was perhaps a matter of interest but in the

circumstances of this case it really added nothing to

the Crown case because this was not a case where the

issue was whether somebody had been poisoned accidentally

or whether it was suicide or whether it was murder.

The issue here was whether there was a car accident

which led to their death or not.

C2T21/2/SR	27	8/12/88
Thompson

MR CRISPIN (continuing):  One would have thought that,

by definition, there is a greater likelihood that

the occupants of one's car at any given time will

be people who are drawn from one's immediate circle

of contacts. And so that scarcely gave rise to

any significance as :ar as striking points of

similarity are conce~~ed.

It was not a case such as NOOR MOHA.~ID V R,

or PERRY or SMITH, in which there were said to

be some significance in the relationship. In the

SMITH case - the famous brides in the bath case,

of course - where all the wives were heavilv insured

and it was open to a prosecutor to suggest that

to lose one heavily insured wife by drowning in
the bath-tub may be merely unfortunate but to lose

three in that fashion smacked of carelessness at

the least. One could see that there was some

significance in the relationship which indeed did

cast some light upon it. But, in our respectful

submission, the mere fact that people who were

killed in a car accident at a time when the accused

was driving the vehicle bore some relationship

to a person later murdered in a family-type

situation was of little value.

Thirdly, the use of petrol to burn the car,

we would submit again, added little of itself.

One would have thought that had there been a motor

vehicle collision and any attempt made to conceal

evidenc~ one proceeds upon the assumption that

motor vehicles are powered by petrol and that that

would be the accelerant available for that purpose -

difficult to imagine any other way of concealing

the evidence by the destruction of the bodies - - -

DAWSON J:  There was evidence that the car had been burnt by

the use of petrol, was there?

MR CRISPIN:	Your Honour, there had been a series of experiments conducted by police officers which
were designed to demonstrate that it was not likely
that when a car hit a tree head o~ at the speed
suggested by the accused, the petrol tank would spontaneously burst into flames and that it was
more likely that additional petrol had been applied
in some manner and then ignited to cause the fire.

DAWSON J: Well, it need not necessarily have been petrol,

that is all I had in mind. It could have been

anything, could it not?

MR CRISPIN:  And, indeed, Your Honour, when one then goes

to compare it to the other case, there the evidence

was that not merely petrol had been used but dieselene ·

and kerosene. And, also, the evidence was

C2T22/l/AC	28	8/12/88
Thompson

that it had not been lit immediately after the

fire but he had come back the next day in order

to light it. So that whilst one can, perhaps,

say superficially that there is some similarity

there, when one looks at it carefully one sees
that there are also points of dissimilarity which

are, perhaps, more striking than the points of

similarity for which the Crown contended.

Then, Your Honours, one comes to the last

point, namely, that he was the last person co see the girls alive; well, of course, that was common

ground and it was equally going to be the case

whether it was an accident or whether it was murder.

So, again, Your Honours, we would say that that

really added very little to it. One therefore

came back to the proposition that the girls were,

in fact, shot as the Crown alleged and it was,

essentially, contended by the Crown that one made

that assumption and then used that to create a

series of strikingly similar facts which justified

the admission of the similar fact evidence and

one therefore used that to confirm the fact that

they had been shot.

There was, of course, some medical evidence

which, if accepted -and there was some dispute

among the experts about it -provided some

extraneous evidence, of course, to support the

Crown case that the girls had been shot. But it

none the less created this situation that the admission

of those facts was dependent upon making the

assumption, albeit supported by extraneous evidence,

essentially, that the accused was guilty of murder,

in precisely the manner contended for by the Crown,

in order to warrant the admissibility of the similar

fact evidence on that kind of basis. In the

Federal Court, if I may make this submission, with respect - - -

(Continued on page 30)

C2T22/2/AC	29	8/12/88
Thompson
BRENNAN J:	I did not quite follow what you said then about the assumption that was made.	Would you just - - -

MR CRISPIN: Yes, Your Honour. This was a case, Your Honour,

of stark alternatives. It was either an accident

or it was murder by shooting and what was contended

by the Crown was, essentially, "Well, you assume

that we will establish that it was murder by

shooting in various circumstances." The Richardson

case was also murder by shooting in somewhat

similar circumstances. Therefore, there is a

striking similarity and, therefore, one can rely

upon the fact that the Richardson murder was murder

by shooting to prove that this was a murder by

shooting.

So, there was a measure of circularity about it albeit relieved to some extent by the presence

of some extraneous evidence and, Your Honours, the

Federal Court, in our respectful submission, displayed

some equivocation about whether or not that was

legitimate in the circumstances.

BRENNAN J: If there was a circularity about it, of course,

then it would be impermissible.

MR CRISPIN:  Yes.

BRENNAN J: But, is that an accurate way to describe each of

the features that was relied on?

MR CRISPIN: It is not entirely accurate, Your Honour, because,

as I have indicated, there was some extraneous

evidence. There was evidence, for example, from

a witness to the effect that the skulls contained

holes or marks which were consistent with the

infliction of bullets, although another expert

gave evidence for the defence that, in his view,

they were not. So, there was some other material there but it would be overstating it, perhaps, to

say the argument was entirely circular but, in

circumstances where that was, as it were, the

crucial and, indeed, the only issue in the trial - - -

DEANE J: But, if you look at the evidence, it was this: that

the girls had been shot and that their bodies had

been damaged by a fire in the car. The accused

conceded he was the driver of the car immediately

before the bodies were damaged by fire. The primary

question was did he destroy the bodies by fire or

was it the result of an accident. Assume the jury

are against him on that, you have the immediate

inference that he destroyed the bodies by fire.

The question then arises, does the fact that he

destroyed the bodies by fire warrant the conclusion

C2T23/l/SH	30	8/12/88
Thompson

that he murdered the girls. Well, now, having

reached that stage, what stronger similar fact

evidence could you have?

MR CRISPIN:	In my respectful submission, Your Honour, the matter cannot be put quite as simplistically as
that and I say that with great respect because
what one has in the second incident is, firstly,
an incident occurring some two and a half years after the event and, secondly, an incident where
the bodies were destroyed by fire using different accelerants and the like, in different circumstances
and on a different day to that upon which the murder was concerned and if one goes through the process
of asking oneself, "Well, how does that go to prove
that the incident in 1981 was murder?•; in my
respectful submission, one encounters some
logical difficulties.

It may have been a stronger case had the cases

been in reverse chronological order but it is equally

consistent, in my respectful submission, that somebody,

that the applicant, in 1984, may have committed a

murder, gone home and thought about it, having had

the whole night to do so and then to have thoueht

back to the incident in 1981, realized that, on

that occasion, the bodies had been consumed by fire

and, having had a chance to consider his plight, came

back the next day. By the process of reasoning

backwards and saying, "Well, because that occurred

to him albeit when he had had a whole night to think

about it, o.o and a half years later, that I!llSt necessarily raise
a strong inference that two and a half years earlier

he adopted the same or a substantially similar means

of concealing the crime which occurred to him, perhaps,

on the spur of the moment''- one simply does not know

but, certainly, without the opportunity for overnight

reflection in totally different circumstances - would

lead one, in my respectful submission to say, "Well,

it is a point of similarity but it is not a point of

such striking similarity as to colour the two incidents

with the quality of underlying unity and to warrant

its admissibility."

(Continued in page 32)

C2T23/2/SH	31	8/12/88
Thompson

BRENNAN J:  Once you put it like that, there is no

quest:Jn of principle involved here; it is just

that you think that the established principles

were not properly applied to the facts of this

case?

MR CRISPIN:  Your Honour, the difficulty about the matter

is, in my respectful submission, that there

seemed to have been - and I say this with great

respect - equivocation among the members of the

Federal Court in applying them.

Firstly, just before coming to that point,

if I could just make this point, that there was

never any suggestion by the applicant in this

case of any accidental shooting of either of the

girls. The case was a very stark one where they were either shot -in which case it was murder by the accused -or they died as a result

of the collision with the tree.

Their Honours, after setting out the points

of similarity - if I could take Your Honours to

the judgment, pick it up at the foot of page 601 -

said this:

It was argued by counsel for the

appellant that points (2), (3), (4) and (5) -

they being the points relating to the shooting,

as distinct from the concealment by burning -

should not be relied upon because, if the

Crown wished to prove that the girls were

shot, it is a faulty reasoning process to assume this fact for the purpose of

proving it. It was further said that if the

girls were shot then no one other than the

appellant could have shot them. The answer

to this contention is, we think that the

appellant has always maintained and maintained

at the trial that the girls died in a motor

accident. He never admitted shooting them

so that this fact remained to be proved as well

as the basic fact of the shooting. Another

answer is that whereas there was evidence

apart from the similar fact evidence from

which the jury could find beyond reasonable

doubt that the girls were shot, the evidence

was not so strong that they must so find. In

these circumstances the evidence of the

Richardson murders, as it seems to us,

strengthens considerably the existing evidence
tending to prove that the girls were shot.

Then Their Honours refer to the authorities and

at the foot of the page continued:

C2T24/l/JM	32	8/12/88
Thompson

In the present case the murders at

Richardson and the killing of the two

girls and the circumstances surrounding each

were so strikingly similar that the jury coulc	reasonably conclude that the appellant was
guilty of all six murders.

Just pausing there for a ma:nent, that appears to indicate. fi:-scl·:.

that Their Honours are relying upon a.1.1 nine points of s i:;::~ la::-: ::1

and, secondly, of course the test was not, in
our respectful submission.whether they could

reasonably conclude that the appellant was guilty

of all six murders because that was really not

the issue at the trial. The issue at the trial

was whether these two deaths had been murders or

accident.

Their Honours then continued:

The admissibility of the similar fact

evidence could be supported in another way

and that is to negative the proposition

should it be put, that the shooting of

either of the girls was accidental.

Now, just pausing there, that, we would submit,

is a classic example of crediting the accused

with a fancy defence in order to rebut it with

a damming piece of prejudice. One does not

need to put the point very floridly; one

could simply imagine the response if one were to

go to a jury and say, "Well, perhaps the gun went
off by accident twice and just happened to shoot
two different people through the forehead before

I could get it under control." The learned

trial judge, in putting the case to the jury - - -

DEANE J: That might be so, but if it were not for the

other incident, it would not be so fanciful to

say "Perlla.ps he was covering up for somebody else".

MR CRISPIN:  Your Honour, again that was not a matter which was ever put in any way.

DEANE J: Perhaps the similar fact evidence excluded it

ever being put.

(Continued on page 34)

C2T24/2/JM	33	8/12/88
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MR CRISPIN:  Well, Your Honour, there is always, of course,

a degree of speculation in those things, when an

appellate court looks at the matter with the

benefit of hindsight. One can only say that nothing

of that sort ever emerged as an issue in the trial.

So far as the possibility that there may have been

separate - one accident and one murder was concerned,

the learned trial judge dealt with that in his

directions to the jury at page 513 of the appeal

book where at about the middle of the pa~e

His Honour said:

Whilst theoretically you are supposed to

consider them separately, it seems to me that

you can consider both counts together. There

is no case made by the Crown that he killed

one girl and that there is a separate case as

to whether he killed the other one or not.

There is no case made by the accused that he

killed one girl and the death of the other girl

was an accident. So it seems to me that you

can look at both counts together for the

purposes of this case and nobody has suggested

to you otherwise, all for very good reason.

Then if I could take Your Honours back to page 603,

Their Honours then put the matter on an alternate

basis:

It could also be supported in order to negative the defence of the appellant that the girls died as a result of the

vehicle's collision with a tree and a subsequent

fire. For this purpose points (2), (3), (4)

and (5) should be disregarded as it would

be wrong to assume that the girls were shot for

the purpose of proving this fact.

There, Your Honours, one encounters some

degree of difficulty in working out precisely

how Their Honours approached the matter because

are saying, "Well, so far as the admissibility	it is not entirely clear whether Their Honours
of this evidence generally was concerned, points
(2), (3), (4) and (5) should be disregarded", or whether Their Honours are saying, "You have to draw a distinction in this case on the basis of
whether you view the evidence as going to prove a shooting or whether you view it rather as
simply going to negative an accident." Now,
if Their Honours were coming to the second view
then, in our respectful submission, it would be
a somewhat tortuous exercise to justify that in
terms of logic because if it would be wrong to
assume that the girls were shot for the purpose of proving that they did not die by an accident,
one would have thought that it was even more
difficult to assume that they were shot for the

C2T25/l/MB	34	8/12/88
Thompson

purpose of proving that they were shot. But perhaps

the better construction of what Their Honours have

said is that they have accepted - and that the

words, "for this purpose" perhaps relate generally
to the admissibility and that they are dealing with

the matter on the basis of the remaining points of sinilarity. Indeed, Their Honours continue:

However the remaining points of similarity would, in our view, together amount to

sufficiently striking similarity as to tend

to prove that the girls who died in the appellant's

presence did not die as he said they did, but

were shot by him. It is also put that even

if the evidence were technically admissible the

learned trial judge should have declined to

admit it on the basis of the exercise of his

discretion.

Now, Your Honours, with great respect, we would submit,

that it really does not do anything to rebut the

proposition that there was an accident. One could

put it perhaps that in 1981 the applicant carried

around with him the seeds of some sort of murderous

disposition which was to blossom in two and a half

years time but in what way, one would have to ask,
does that make it any less likely that he might

have been involved in a motor vehicle accident and

that the girls in the car with him, or people in
the car with him, might be killed when they were,

in fact, related to somebody whom he would like

to shoot.

(Continued on page 36)

C2T25/2/MB	35	8/12/88
Thompson

MR CRISPIN (continuing):  The problem, of course, about t~e

family relationship is that by definition one has ~ere

contact with relatives of one's family, certainly
relatives of one's wife or de facto wife which was :~e
case in this case, than with other people and there:ore

the chances of them being occupants of a car become

greater. But it is. in our respectful submission, a

case in which when the facts and circu.:.--nstances are ana:..::~

they lack any real underlying unity, system or pattern

and really evidence of what occurred in the Richardson

house two and a half years after the event offer little

of probative value as to the question of whether the

deaths of the two girls in 1981 occurred as a result

of an accident or by shooting. And that is, of course,

the issue to which the evidence must go.

In our respectful submission, it is a case which

is in stark contrast to most of the authorities which

deal with what were in a very real sense system cases.
In MAKIN, of course, the system of the baby farmers,

as they were called, of accepting children on the basis

of a remuneration which was grossly inadequate to

provide for their upkeep over a long period of time

and then the bodies being found. In PERRY, of course,

one had a suggestion of husbands and family members,

with fraudulent intent; a similar type of situation in the 13.RIDES LN THE BATH case and so on. In HOCH,

of course, one had there a similar system-type approach

in relation to the indecent assault of various people

and likewise in BOARDMAN and KILBOURNE and a number of

other cases.

But this is really a case which is not a systems

case at all, save in respect of, we would submit, the

possibility that fire was used. And that, in our

respectful submission, taken of itself would not be

sufficient to give rise to that kind of underlying

unity. Here there was never any suggestion that there

was any correspondence of motive. There was never

any suggestion that there was any correspondence of

location or even type of location. There was never any

contrived accident, alleged in relation to this case,	suggestion that the kind of complicated scheme of the
was ever applied in the Richardson case. The evidence
was, for example, on this occasion no cartridge cases were found, but two and a half years later there were
cartridge cases in the Richardson house, where one
might have thought that if this was a systems case the
applicant had had the opportunity to brush up his act and improve the system, rather than the reverse.

It was just a case, in short, Your Honours, in

which we would submit that really when one looked at

the matters overall it could not possible be contended

that there was that kind of underlying unity, system

or pattern of a kind which has warranted the admission

of similar fact evidence in earlier cases. And,

C2T26/l/SR	36	8/12/88
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Your Honours, finally it was a case in which the

probative force of the evidence was, in our submissic~,

incapable of outweighing the inevitable prejudice

caused by its -admission. We rely, Your Honours, on

the comments of Your Honour Mr Justice Wilson in

PERRY V REG and, of course, Mr Justice Brennan. It

is a question of law and not discretion, we would

submit.

Your Honours, in my respectful submission, have

only to pose the question, what were the respective weights of those two factors? One looks firstly

at the prejudice because here is a case in which the

evidence established not merely that the applicant

was guilty of four murders but that he had shot two

children aged four and two and then gone back to the

house the next day and tried to burn it down. The

prejudice inherent in that must have been enormous.

And when one then asks, "Well in contrast to that enormous prejudice, where did this very strongly

probative value lie?"; one in my respectful submission

looks for it in vain.

Unless there are any matters that Your Honours

would wish me to deal with specifically those are our
submissions.

(Continued on page 38)

C2T26/2/SR	37	8/12/88
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MASON CJ:	Thank you, Mr Crispin.	Yes, Mr Weinberg.

MR WEINBERG: If the Court pleases, may we hand to the Cocr:

an outline of our submissions?

MASON CJ:	Thank you. Well, we are not concerned with paragraph 9 as a matter of submission
on behalf of the applicant.
MR WEINBERG:	It does not seem to have been argued, wi.th respect. ~

the Court pleases, we would, with the Court's leave.

propose to adopt a similar format to that adopted

by our learned friends and I will be putting

submissions to the Court in relation to the matter

of jurisdiction. My learned friend, Mr Higgins,

will address the Court in relation to the similar

facts issue.

If the Court pleases, in relation to the matter of jurisdiction, my friend commenced his submissions

by putting to the Court that a point had not been

determined; that there was some uncertainty about

the law relating to findings of jurisdiction, if

one can so describe the matter, in the United States

and he said that even the United States Supreme Court

has not dealt with that particular question. We

say, with respect, that no point is raised for

the consideration of this Court at all. Had the

learned trial judge directed the jury that they
could be satisfied on the preponderance of

probabilities in relation to the matter of the

location of the death of the deceased then that

might have raised a point - indeed, a point which

we would be hard pressed to argue was not important
and should not warrant the grant of special leave.

But in this case.what the learned trial judge did was to leave to the jury the question whether they

were satsified beyond reasonable doubt that the

deaths of the two deceased had occurred within the Australian Capital Territory. That was as

favourable a direction on that aspect of the case

as anyone could conceivably have hoped for.

The alternative version of the law, or the

correct statement of the law, which might in full

argument before this Court be arrived at, would

be that some lesser standard would be required,

namely, the preponderance of probabilities and, perhaps, puttin~ it that way really we would say

my friend's position could scarcely be improved.

There is no legal submission that he puts to the

Court that could advance the argument that there

has been a miscarriage of justice, so it may be -

DAWSON J:  You say it is a matter for the jury, do you,

Mr Weinberg?

C2T27/l/AC	38	8/12/88
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MR WEINBERG:  We do, Your Honour. Yes. It was put that

way.

DAWSON J:	Why do you say that?
MR WEINBERG:	We say that, Your Honour, because it is a

matter which is contained within the count; that

death occurred within the Australian Capital Terri:cr~.

We say that the jury must make a finding that this

death did occur within the Australian Capital Territcry.

DAWSON J:	In a sense as an element of the offence in the sense that Justice Deane put it to Mr Salmon.
MR WEINBERG:	Your Honour, it is questionable whether it

is appropriate to describe it as an element of

t he o f f enc e . I f . I rec a 11 c or re c t 1 y Coke ' s s t a n d a rd

definition of murder went something like, in the

King's peace or something along those lines,

so that in one sense the death had to occur within

the jurisdiction in England going back to the common

law position. And some writers have taken the view

that that is a separate element, if one wishes
to put it that way, although not an element that

arises very often and one that usually passes,

as it were, without any direction required to the

jury. It is very seldom that an issue as to where

a death occurred positively arises.

DAWSON J:  A murder that is charged is an ACT murder and

therefore it is alleged -

MR WEINBERG:  Yes. It is alleged to have occurred in the

ACT and the jury would have to find, we say with

respect, that it occurred in the ACT. And we say

that from our reading of the American authorities,

from our reading of WARD's case, from our reading

of GRAHAM's case, no case that we have found has

ever suggested that on a question of the locus

of a crime that that is a matter for a judge to

determine simpliciter. The judge makes those findings

and then directs the jury, as it were, on other

aspects of the case but not on that aspect.

DAWSON J:  And yet, curiously, in most cases the location

is never significant and not mentioned to the jury.

MR;WEINBERG:  There are cases of jurisdiction which do involve

questions for a judge. For example, whether a

consent by a relevant law officer has been

forthcoming; that would be a question of law and

that would be a matter for a judge, in our respectful

submission. But this kind of jurisdictional question,

if one can so describe it, we say i~ where it is

appropriately raised, a matter for a jury.

C2T27/2/AC	39	8/12/88
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MR WEINBERG (continuing):  In the United States the approac~

that has been adopted in most American States is

a preponderance of probabilities and absent any	it is a matter for a jury but it can be resolved on
positive evidence to the contrary, anything positive,
suggesting that there is not jurisdiction, a jury is well entitled to infer ~hat the location where a
body is found was the place that death occurred.
There is almost, dare one say it, a presumption to
that effect, absent rebutting or positive evidence
to the contrary, and there are numerous American
authorities which adopt that approach rather than the
main approach which is the approach reflected in the
case drawn to the Court's attention.

DEANE J:  Have you a reference to the best of them?

MR WEINBERG:  We have, Your Honour. We have supplied some of

them to the Court in our list of authorities.	Some
of them include the cases, STATE V BATDORF, (1977)
238 SE 2d 497, PEOPLE V PEETE, (1921) 202 P 51,

COMMONWEALTH V COSTLEY, (1875) 118 Mass 1 - there are

a number of others which we can supply to the Court

if the Court believes that it would be of assistance,

but almost uniformly the approach has been

preponderance of probabilities with the inference

being drawn, absent positive evidence to the contrary,

that death occurs at or near the vicinity of where a

body is found. Almost every American State adopts a similar territorial requirement as that which the ACT adopts by virtue of section 25 of the - - -

BRENNAN J:  And a similar evidentiary approach?

MR WEINBERG:  No, Your Honour. The evidentiary approach is as

I have put it, that one can infer, absent evidence to

the contrary, that death occurred at or near the

vicinity of the finding of a body.

BRENNAN J:  Does that appear in the cases to which you have

just referred?

MR WEINBERG:  It does appear in a number of those cases and

other cases that we can supply to the Court, and we

will do that, as an inference, if one can put it that

way, that one can draw absent evidence to the contrary.

An analogy might perhaps be said to lie in relation to

the defences of provocation and self-defence, if one

wants to put it that way. They arise for

the Crown to rebut and to prove beyond reasonable

doubt as not having occurred only when there is some

evidence which raises them fairly before the jury,

for the consideration of the jury, something positive

which suggests that the accused may have been

provoked, something positive which suggests that he

may have acted in self-defence. There is in this

case nothing positive which suggests that these deaths

occurred other than in the ACT.

C2T28/l/HS	40	8/12/88
Thompson

BRENNAN J:  What is the best case you have for the clarity

of expression of this evidentiary principle?

MR WEINBERG:  In the United States, Your Honour?

BRENNAN J:	Either there or elsewhere?
MR WEINBERG:	Your Honour, I would have to, with respect,

look at those cases again. I do not know whether

the matter will proceed beyond lunch, but if it does

not, then I would certainly supply the Court with a
note about what we say the best case is, but certainlv

my reading of them supports the proposition that ,

virtually all of them say preponderance of probability,

virtually all of them say one can infer from the

finding of a body that that is where death

occurred absent circumstances indicating a contrary

view being opened.

DAWSON J:  Whilst you are being interrupted, Mr Weinberg,

there is legislation, is there not, providing for the extension of the State's jurisdiction across the

border?

MR WEINBERG:	In relation to murder, Your Honour?
DAWSON J:	Yes.

MR WEINBERG:  Yes. Your Honour, it stems originally from the

English OFFENCES AGAINST THE PERSON ACT 1861, section 10, which in turn goes back to a Statute of George II

in 1729, which is the first occasion that it was

enacted. In New South Wales section 25 of the

CRIMES ACT raises the point and it has been picked up and applied in the Australian Capital Territory.

It says in effect that where either the act causing

death, or the death, occurs within the jurisdiction,

one or the other, then there is jurisdiction to try

the case. That is quite different from the general

theory of jurisdiction which Professor Glanville

Williams has written about. (Continued on page 42)

C2T28/2/HS	41	8/12/88
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DAWSON J:  Yes, but I rather have in mind some provision

which says that any crime which occurs within

25 miles of the border is triable in Victoria

or in New South Wales, is the case I had - - -

MR WEINBERG:	I am not aware of - - -
DAWSON J:	Do you know - - -

MR WEINBERG: - - - that provision, Your Honour, no. It

would have meant that WARD's case would have been

DAWSON J: It would have been subsequent to WARD's case.

MR WEINBERG:  I am sorry, Your Honour. I am not aware of

any legislation enacted subsequent to WARD's case

which expands the jurisdiction in that way.

Certainly, section 9 of the VICTORIAN CRIMES ACT

was in direct accordance with section 10 of the 1861 - -

DAWSON J:  There were discussions about it but the discussions

may still be going on.

MR WEINBERG:  Well, I have not seen the legislation, Your Honour,

but that might be the legislative solution that my

friend is talking about but we say no such

legislative solution is required because we say

the common law provides an answer and that is that

unless there is some positive evidence adduced in

the case, whether by the Crown or by the accused -

we accept that - suggesting that the deaths occurred

positively outside the jurisdiction, then a finding

of a body within the jurisdiction of itself would

enable a jury, absent such other evidence and,
particularly in circumstances where the only person
who knows where death occurred is the accused himself

and he does not contravert that death occurred within

the jurisdiction, then a jury may, in those circumstances

infer that jurisdiction exists and that the deaths did

occur in the AC~ But we say the evidence in this case

went well beyond simply the finding of the bodies

within the Australian Capital Territory. There

was a lot of evidence, in our submission, which

would have permitted this jury to be satisfied beyond

reasonable doubt.

We say that the Full Federal Court did, within the meaning of the judgment of this Court in MORRIS,

independently assess that evidence and conclude that

the verdict was neither unsafe nor unsatisfactorv

and if we could take the Court to some of the items of

C2T29/l/SH	42	8/12/88
Thompson

to safely draw this inference because it must	evidence that we say would have enabled that jury
be a matter of inference. It must be a matter
of circumstantial evidence. No one gave direct
evidence as to where the alleged shooting occurred.
The first point that we have itemized in our paragraph 8 is that the vehicle in which the bodies
were found was located within the Australian Caoital
Territory and, on the only evidence, the uncontradic:ec evidence, if one wishes to put it that way,of the
accused himself in his statements, that vehicle
had travelled a distance of 10 to 12 kilometres
along a road within the Australian Capital T8~ritory
heading in a northerly direction. So that, for some
very considerable period of time and for some very
considerable distance prior to the car colliding with
the tree, on the accused's uncontradicted account -
though his account was, of course, challenged in
respect of the circumstances of the deaths but, on the only evidence in the case- those persons
were alive within the Australian Capital Territory
and met their deaths within the Australian Capital
Territory. 1he significance of 10 to 12 kilometres
is not to be underestimated because, in our submission,
that leads to point (b):  we say that a jury, applying
its common sense would be entitled to infer, as a
matter of its understanding of ordinary human nature,
that a person with two dead bodies in his car would
not be likely to want to drive an enormous distance with those bodies in the car but would be, rather, inclined to alter that state of affairs as quickly
as possible and if he wished to dispose of those
bodies the soon it were done the better it would be and that is a matter of inference which a jury,
we say, would be entitled to draw.

Our third point is, there would be no particular

reason why the accused should elect to drive the

vehicle into this particular tree rather than any
other tree en route	between the point at which

they were killed and the point at which their bodies

were found. The jury went out and had a view. They

were able to see the location and, thereby, better

understand the evidence. They would be able to

evaluate whether this was an isolated tree or

whether there were other trees along this stretch

of road in both directions and they would be able,

in our submission, to assess whether an accused

who had killed two people in New South Wales, 10

kilometres away, would have driven all that distance passing other suitable trees before he collided into

this tree.

C2T29/2/SH	43	8/12/88
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MR WEINBERG (continuing):	Why should that occur;	why

would he not immediately drive into some tree

that was set closer to the border? In our

respectful submission, that is another strand

which of itself, we would concede, would not

be sufficient but taken together with all the
matters would have entitled the jury to draw

the inference they were invited to draw.

The fourth matter, point D, is one that

was not adverted to by our learned friend but,
we say, is very significant. Three witnesses
turned up moments after the car was incinerated.

Two of them, the first two who turned up, gave

a description of stopping their vehicles, getting

out, see this car burning, approaching the

car and seeing no one, no one at all, in the

vicinity of the car. That is quite contradictory

of the accounts given by the accused who said, in

his evidence - or in his answers to the police,

that what he did after the collision was immediately

to get out of his side of the car and run round
to the other side in an effort to rescue the

passenger, then run back to his side and open the

door and then he was blown down by the flame and

then, he said, another person approached, a person

named Britton; no evidence, no explanation which

was consistent with the description by the two

independent witnesses that they were there. One

of them said he was there for between five and,

I think, seven minutes and there was nobody

else around in the vicinity of the car. Now,

the jury could well have been invited to draw the
inference that the accused was away from the
car at that point, disposing a murder weapon,

disposing of a gun which, of course, was never

found. We say that that would have been a

fact, a primary fact, which if the jury accepted

the evidence of those two eye witnesses would

have entitled the jury to draw that inference.

Again, even further, the evidence of

Mr Britton, another witness, who said that he

saw the accused emerging from the area of a.

bush about 20 metres north of the motor vehicle;

totally inconsistent with the account given

by the accused. Again, a jury, if it had accepted

that evidence, would have been entitled, we say,
to infer that the accused had gone 20 metres

away in the vicinity of that bush to conceal

a murder weapon and again, that in turn would

have entitled the jury to draw the inference

that that weapon had been used at or about that

point.

DEANE J: It does not take you far, really, though, does

it? I mean, the more likely thing is he was

concealing the containers of the petrol.

C2T30/l/JM 44 8/12/88

Thompson
MR CRISPIN: There was a container of petrol found

in the vehicle, Your Honour.

DEANE J:  Was there?

MR CRISPIN: That is the difficulty. He first said

that that container had been empty, but four
years later - or three years later when

questioned, he said, no, it had had five litres

of petrol in it.	So, we, with respect, say
it does take us that degree further.	We again

do not say that on its own it is sufficient,

but it is another factor.

One then goes to point E, which amounts

to this, that the accused has always contended
that both these women died within the Australian

Capital Territory.	The Crown has never contended
otherwise.	We understand the difficulty of that

submission. The accused can scarcely contend

that there is an accident and that has caused
the death of these two women and at the same
time say further, or in the alternative, if they

were shot, they were shot outside the Australian

Capital Territory, but, with respect - - -

DAWSON J: That means there was no issue as to jurisdiction.

MR CRISPIN: There was no issue raised as to

jurisdiction by the accused and we say he is

the person who is in a position to raise it
if there is an issue to raise. If he chooses
not to raise it, for perfectly sound forensic
reasons, none the less, the fact remains that
the only evidence before the jury is that the

deaths occurred within the Australian Capital

Territory. It remains uncontradicted evidence.

My friend raises a number of speculative

possibilities. He says they could have turned

off the road, gone up the Cooma Road and just

crossed the border and there was a nice,

quiet spot there and that would have been a

very suitable spot to shoot the women and then

come back and stage the accident. There is

no evidence whatever to support that as an

hypothesis. It is not even an hypothesis, we
say; it is nothing more than speculation. Nothing

along those lines was ever raised throughout the

entire case.

Significantly enough, during his unsworn

statement the accused did not even assert that

he had ever been outside the Australian Capital

Territory. He simply said he had not killed

the two women, there had been a car acciaent.

C2T30/l/JM	45	8/12/88
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MR WEINBERG (continuing):  Finally, there comes the point (f)

which is a modified version of what we say perhaps

common sense dictates and that is that really if

there is no evidence at all raised to suggest that

deaths had occurred outside the Australian Caoital

Territory, the fact that the bodies recently.killed

are found within the territory of itself permits

an inferefice to be drawn, perhaps not of

itself sufficient but in conjunction with the

multitude of other factors which we have adverted

to, an inference which can safely be drawn by a

jury, properly directed as to inferences,

circumstantial evidence and the need to negate all

rational hypotheses consistent with innocence,

putting the whole thing together, in our respectful

submission, adding to it, as we say, the fact that

personal knowledge in this case exists only in the

mind of and in the accused's own mind. We say

in those circumstances a jury would be well entitled,

well entitled, acting reasonably, to be satisfied

beyond reasonable doubt and the Full Federal Court,

in our submission, was well aware of all of these

factors because this is the basis upon which the

case was argued before the Full Federal Court.

Their Honours did not condescend to spell out

in the kind of detail that I have the factors that

were present, but if one goes to the argument that

was put before the learned trial judge about this

jurisdictional point on a no case submission,

virtually all of the points that I have raised

before this Court were addressed to His Honour and
it is inconceivable that they would not have been
addressed to the Full Federal Court. It is

inconceivable that the Full Federal Court would not

have directed its mind to those matters.

DEANE J:	Except the force in what Mr Salmon says is really this: if one reads all the evidence in this case
it is obviously open that the two bodies were in
the car before it hit the tree.  Now, you would
not dispute that, would you?
MR WEINBERG:	No, Your Honour.

DEANE J: Well, now, having reached that stage,if one then

says, "Where did the killing take place?" there is a lot to be said for the view that the only answer

is, ''Who knows.''

MR WEINBERG:  Well, the only answer is that only one person

knows and that is the accused; he knows. But a

jury must do its best with the material and the

evidence before it and it can draw inferences.

DEANE J:  Yes, but if on a proper assessment of the evidence

the answer to the question, "Where did the killing

take place?" is "Who knows", must you not really

C2T31/l/MB	46
Thompson

go beyond approaching this as if the fact of

where the death took place is just an ordinary

a reasonable doubt before they can properly convict? fact of which the jury must be persuaded beyond

MR WEINBERG:  If at the end of the day, Your Honour, there

is no evidence capable of so satisfying the jury

beyond reasonable doubt then we fail, obviously,

and this Court would - assuming it granted special

leave, assuming it saw some point of general

importance which we do not concede, we say it is
simply a matter of weighing the evidence and this

Court would simply be saying, "We have a different

view of the strength of the evidence than that

apparently taken by the trial judge, apparently

taken by the jury and apparently taken by the

Full Federal Court." If that is the position

this Court adopts at the end of the day, that it

was not open to a jury to be so satisfied, then

subject to what we have said about this not being a

suitable case for the grant of special leave we

would, of course, concede that the conviction could

not stand in those circumstances.

DEANE J:  Unless one took the view that if it is proved -

if the body is found in a particular place one

simply acts on the basis that that is where

death occurred unless the contrary is suggested?

MR WEINBERG:  Your Honour is inviting me to put, as a

submission to this Court, that there is a - - -

DEANE J:  Well, I am not inviting you, I am just trying to

understand what the issues the case raises are.

MR WEINBERG:  We have not put before that there is a rebuttable

presumption of law that where a body is found,

absent evidence to the contrary, a finder of fact

must find that the death occurred at or near

the body.	We have not put that below and we do
not think on the state of the authorities that

we can put that submission to this Court.

(Continued on page 48)

C2T31/2/MB	47
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MR WEINBERG (continuing):	What we do put is that it does :-:ave

evidentiary weight -that is the fact that the body ~s

found without controverting evidence as to the

possibility or probability that it was found somewhe~e

else -that fact of itself carries weight and in

conjunction with other factors, we say, is perfectly

capable of satisfying a jury, not just on preponderance

of probabilities but beyond reasonable doubt.	Thac
was the approach - - -

BRENNAN J:	Then you do say that there is a presumption in the relevant sense, it is a presumption of fact?
MR WEINBERG:	A presumption of fact, Your Honour, not a

presumption of law not one which needs to be rebutced

and which must be accepted absent evidence, but

certainly a presumption of fact in the true and
technical sense of that description. But absent

any positive evidence to suggest that death did not

occur within the jurisdiction, the finding of a body

recently deceased within the jurisdiction can give
rise, not must, but can give rise to a finding of

satisfaction by a jury that the death occurred within

that jurisdiction.

BRENNAN J:  Does that presumption of fact owe anything to the

jurisdiction of a coroner?

MR WEINBERG:  Your Honour, I cannot assist on that, I simply do

not know enough about the coroner's jurisdiction to be

able to assist the Court. Sorry,

my learned friend, Mr Higgins, reminds me that the

coroner's jurisdiction within the Australian Capital

Territory arises from a mere finding of the body within

the Australian Capital Territory. I do not know whether

one could take that further and infer, therefore, that

a jury has jurisdiction or that a court has jurisdiction	to try an offence presL1I1ptively or_ presunably carmitted within
the jurisdiction merely by virtue of a finding of the
body. We say it is not necessary for this Court to
resolve that question or to erect such a presumption
or to recognize such a presumption, because we say
in the circumstances of this case, there is a multitude of other evidence of high persuasive value which would
satisfy this Court that there is nothing unsafe or
unsatisfactory about this particular verdict.

In other words, the point that my friend wishes

this Court to decide is unnecessary for this Court
to decide. If he is asking the Court to write a

treatise on the subject then no doubt it is an important

subject and a proper case may arise where a treatise

should be written but not, we say, upon the facts of

this case and not in the circumstances of this case and not

in the way that this case was run below. We do note

that Lord Mansfield who had a great deal to say about

other branches of the law, generally not very much to

C2T32/l/SR	48	8/12/88
Thompson

say about the criminal law, but His Lordship did say

in a commercial matter, a case that we have put in o;_;,::-

list of authorities, the passage which we do not

think we are quoting out of context, BLATCH V ARCHER,

(1774) 1 Cowper 63 and also at 98 ER 969 at 970,

His Lordship had this to say:

It is certainly a maxim that all evidence

is to be weighed according to the proof

which it was in the power of one side to

have produced, and in the power of the other

to have contradicted.

And we say that is a passage which is applicable to

the circumstances of this case if anyone had it within

his power to adduce evidence which raised a doubt

about jurisdiction, and I do not mean - - -

DAWSON J: It is a bit hard to apply that here, that is to

say that you can ass.ume something to the detriment of
the accused because he did not produce this evidence -
he would have been in great difficulties in producing

evidence of this - - -

(Continued on page 50)

C2T32/2/SR	49	8/12/88
Thompson

MR WEINBERG:  There may have been positive evidence wh1ch

could have been led, objective evidence, which
suggested that he had spent a good deal of time,

for example, outside the Australian Capital Terri.t-:::::-·:

rather than the description which he gives of merel;

a drive down to Bredbo and a drive back with the

bulk of the time, as it were, during the intervening hours having been spent in, or around the territorv.

Now, we accept what Your Honour puts. It

is difficult for an accused but it is also difficult

for the Crown on a question of jurisdiction where

no direct challenge is made to the jurisdiction;

where one gets to the kind of example that

His Honour Mr Justice Deane raised earlier. You find a body at or near a border; an accused comes

forward and admits - signs a confess ion saying,

"Yes. I murdered that person but I am not going

to tell you where.", and no court in this country

has jurisdiction, if jurisdiction be the point,

to try that person. Because, certainly, if he

could not be tried in the ACT for this offence,

it is far less likely, we would say, that he could

be tried in New South Wales; it would be difficult

to see how Mr Blanche, Director of Public Prosecutions

in that State, could put any sort of case to suggest

that the death occurred in New South Wales.

DEANE J:  He does not have to say, "I am not going to te 11

you where.". He can say, "But it was just at the

border and I cannot say where."

MR WEINBERG:  Indeed, Your Honour. And if that be the state

of the evidence the logical consequence would be

that the person could not be tried for that offence.

And we say that if that is so then the common law

has been sadly remiss for many, many hundreds of

years. This doctrine of venue and territoriality has

existed for hundreds of years.	We know of no case
where the position has been reached where that	is the situation. WARD's case is nothing like
this case because we knew exactly where everything had occurred in WARD's case.

DEANE J:  But that raises - and I do not want to take time

unduly - but that is the very problem I was putting

to you. I mean, assume that you have got those

circumstances and somebody comes forward and says,

"I murdered X four years ago near the border.

I am quite unable to say which side of the border

it was because it was terribly close to it. I'll

take you to where I buried him which is 500 miles away from where I killed him". Now, what, on the

current state of the law would you say - - -

MR WEINBEG:  Your Honour, one could make it worse from our

point of view and say, "which is not only 500 miles

away but in a third State totally unconnected with

the border.

C2T33/l/AC	so	8/12/88
8/12/88

DEANE J:  Now what, on the current state of the la~ would

you say was the position there if there was no

other evidence establishing on which side of the

border the - - -

MR WEINBERG:	Your Honour, we would say that if the body was found in a third State, and it is perfectly
clear that death did not occur Ln that State,
and the act causing death did not occur in that
State, that person could not be tried because there
is no presumption of any kind; no inference of any kind that could be invoked to enable that person to be tried. We would certainly say it would be a highly artificial presumption which says that, even though all the evidence points to the fact that death occurred on the border of New South
Wales and Victoria, none the less the body was
buried in Queensland, therefore, he can be tried
in Queensland. We say the law has never gone so
far.

DEANE J: Now assume, in that context, that there is just

a small degree, or a small amount, of evidence

which points to the crime having taken place in

one or other, as you see the current state of

authorities that just would not be enough.

MR WEINBERG: If there is not sufficient evidence to enable

a jury to be satisfied beyond reasonable doubt

that would not be sufficient, Your Honour.

DEANE J:	Beyond reasonable doubt - I see.
MR WEINBERG:	But that is not this case, we say.

(Continued on page 52)

C2T33/2/AC	51	8/12/88
Thompson

MR WEINBERG (continuing):  I do not know that I can

usefully assist the Court. We do have the

other American authorities which were not in

our list but if the Court believes it would be

of assistance, we would be happy to supply a full

list of the American authorities on this aspect.

We would certainly do that in writing at an

appropriate time.

BRENNAN J:	Not an undiscriminating list?
MR WEINBERG:	I am sorry, Your Honour?
BRENNAN J:	Not an undiscriminating list.

MR WEINBERG:  No, Your Honour. It is a list of about a total

of seven or eight cases that we have been able to

find. It is not a list of exhaustive -

BRENNAN J: With the relevant passages indicated.

MR WEINBERG:  We would even highlight the relevant passages,

Your Honour.

BRENNAN J:	Yes.
MASON CJ:	I think you might do that, Mr Weinberg.

MR WEINBERG: If Your Honour pleases.

DEANE J:	Mr Weinberg, can I just ask you one more thing and
that is, did the evidence as to the running into the
tree indicate where the car would have been coming from; that is, from -

MR WEINBERG:  Yes, Your Honour. It indicated it was coming from

the south and heading north.

DEANE J: So, from Bredbo?

MR WEINBERG: Yes, Your Honour.

DEANE J: I see. Thank you.

MR WEINBERG:  If there are no other matters, then those are

our submissions.

MASON CJ:	Well, thank you, Mr Weinberg.
MR WEINBERG:	My learned friend, Mr Higgins, would - - -
MASON CJ:	Yes, we will hear Mr Higgins now.
MR HIGGINS:	If the Court pleases. On 28 March 1984,

Alan Douglas Thompson committed four murders,

C2T34/l/SH	52	Wt WEINBERG, QC	8/12/88
Thompson

a man, a woman and two children. Evidence was

later found that the house had been burnt but

not badly enough to conceal the crimes.

If one adds to that fact that, on 30 December 198:,

and I pass over the details associated with those lac:e~

latter offences, but if one then assumes that on
30 December 1981, as here, there was a motor vehicle
accident apparently in which two bodies had been

consumed by fire, as to which there were some

suspicious circumstances, as to which evidence

later disclosed that the manner in which the car

struck the tree was inconsistent with the account

given by the person who was to become the accused,

if there was evidence that there might be - and I

will put it no more highly than this - bullet wounds

in the heads of each of the two victims, then, it

is submitted it is permissible to look at the

circumstances surrounding the second,and undoubted,

four murders to see whether any question can be

resolved in relation to the first two deaths to see

whether it strengthens the evidence as to the bullet

wounds or purported bullet wounds, putative bullet
wounds in the heads of those two girls, to see

whether it can be inferred from that that there
was an attempt to conceal relevant evidence of

murder by fire because there was no doubt that

there was an attempt in the second case to conceal

evidence of murder by fire.

When one adds to that the family connection, the connection between the accused and that family
that, in turn, further strengthens the inference

that might be drawn.

GAUDRON J:  What do you say that the similar fact evidence was

relevant to in this case?

MR HIGGINS:  In this case, Your Honour, we say it was relevant

to two issues primarily - perhaps three, but
certainly two.	The first was whether there had
been a deliberate shooting.	Now, that contains

two elements: firstly, bearing in mind that the

evidence of the pathologist, Dr Verzosa, was itself

the subject of question, it strengthened the inference

that his findings were correct. There was undoubted -

GAUDRON J:  Does similar fact evidence depend on - it does not

become admissible simply because it strengthens an

inference, does it? I mean, there is a criterion of
probative value which would require something more

than that, perhaps.

C2T34/2/SH	53	8/12/88
Thompson

MR HIGGINS:  If we take the threshold question first~ and

first a relevance in the evidence to an issue

this seems now to be established quite clearly from be

of course, of the accused to commit murder.	that needs to be proved beyond mere propensity, outweigh the improper prejudicial effect or the
inappropriate prejudicial effect to the fact that
four murders have, in this case, been committed.
So the evidence must be also cogent - that really means
cogent in two respects:  one is that an inference
clearly arises from it, and the second is that the
evidence itself is sufficiently clear as to the similar
fact itself to render it admissible. HOCH is a
case in point as to that.  There the question arose
as to whether the similar fact evidence itself was
so clearly established as to be a similar fact in
respect of which an inference could be drawn.

If it were established then the inference was

obvious, but the question was whether there was such

a likelihood or possibility of conspiracy between the
various witnesses to make up a story that their

separate accounts would fail- one to corroborate

or support the other. But absent that particular

question about the similar fact evidence in HOCH,

then quite clearly it would have been admissible to

establish in respect of any one or other of the

offences that the offence had been connnitted in a

strikingly similar manner as it is put.

GAUDRON J:  And what is it that gives it cogency in relation

to a deliberate shooting, that being the first matter
that you said it is relevant to, and I think you have

not told me the second matter?

MR HIGGINS:  Yes. As to the deliberate shooting - firstly,

there was no doubt, of course, about the evidence in

respect of the second series of shootings. That was

not challenged at all. There had been a conviction.

There was no challenge to the evidence of the

circumstances.

(Continued on page 55)

C2T35/l/HS	54	8/12/88
Thompson

MR HIGGINS (continuing):  In that case, there had been

the use quite plainly of a firearm to inflict

the fatal wounds on each of the four victims.

There had then been an attempt to cover up

the evidence of those shootings by fire.

In the case which is then to be proved, which is

of 30 December 1981, there had been a consumption

of the vehicle by fire. There had been the

same person involved in relation to that fire.

One did not need to assume a shooting in

order - taking that evidence along with the other

evidence of the vehicle in effect hitting the

tree, the fact that the vehicle appeared

deliberately to have been set on fire, and that

is, of course, a necessary step in the process

of reasoning - to infer that the deliberate s~tting

on fire of the vehicle was to conceal evidence

of gunshot wounds, and if gunshot wounds, gunshot

wounds deliberately inflicted

GAUDRON J:	I understand what you say are the similar aspects, but I am wondering what it is that
gives it cogency in relation to the question of
deliberate shooting? For example, let us say that
there had been a series of murders, all having
a particular feature, what gives  cogency
of similar fact evidence is the unlikelihood of
any person other than one having committed those
series of murders.  Now, what is it about the
similar fact evidence that gives cogency to
the deliberateness of the shooting?
MR HIGGINS:	Your Honour, can I answer that question by coming at it in a slightly different way than
that? If one had a series of killings where the
evidence was concealed, or attempted to be concealed by fire, and if one then found the accused doing what the Crown would allege is
another of those murders and at.tempting to conceal
a shooting by fire, there would be a difficulty
in that particular instance of linking the
accused with the previous murders, that is to say, to identify the accused as the person who
perpetrated them. But if, in relation to those
previous occasions,there was no difficulty about linking the accused with the occasion of the death· but rather it was another issue to which
the evidence was sought to be directed, namely
whether the shootings were deliberate or not, as opposed to identifying the accused as present or not, then there is a different question as to
cogency.

C2T36/l/JM	55	8/12/88
Thompson

MR HIGGINS (continuing):  The number of times on which a t~i~g

has happened might be relevant when one is talking

about identification .. It becemes a different

question when one is talking about accident and it

is a different question again depending on what

the precise nature of the alleged accident or the

precise nature of the alleged deliberate shooting is.

Just take the BRIDES IN THE BATH proposition; fro~

the fact that a bride dies in the bath, albeit as

Mr Crispin noted, heavily insured, it might create

suspicion, but of itself it does not argue murder.

Had it happened previously in the same circuwstances.

however, it might well be cogent enough to say that

accidental drowning can be regarded as excluded.

GAUDRON J:  "When you say,"deliberate shooting'here, do you

wish to do more than negative a defence of accidental

shooting?

MR HIGGINS:  The Crown would wish to do that. The proposition

that there might have been a claim of accidental

shooting in relation to at least one of the victims
and then a theory of deliberate shooting in relation

to the other, but there being no evidence to

indicate which was the deliberate and which was the

accidental shooting was a possibility, was not one

raised by the accused in his statement, needless to

say. But granted that his statement was false, that

is the statement that nothing happened to inflict

death on these two young women other than the

motor vehicle accident, then the possibility remained

that one of them had been shot accidentally and the

other deliberately to conceal evidence of that

shooting.

So that one might have, for example, have been manslaughter or less and the other murder, but

you could not say which. So that was a possibility

certainly, but beyond that the evidence of the

subsequent killings, which were undoubtedly deliberate,

although motiveless, as indeed is the case with

the first two because no motive was suggested for that

killing either or those killings either, that

nevertheless, the very fact of shooting needed to be

established.

GAUDRON J: That is the problem I have with this, if I could

tell you, Mr Higgins, and that is this: in so far as

one wishes to establish the fact of shooting and the

deliberate character of the shooting, it seems to me

the cogency of the evidence is simply that he did

it afterwards to other members of the family, therefore

it is more likely than not, perhaps, that he did it

on that occasion?

C2T37/l/SR	56	8/12/88
Thompson

GAUDRON J (continuing):  If that be right, unless there

is some other cogency aspect, then it seems to

me common experience would not allow you to reason

more likely than not in that fashion?

MR HIGGINS:  Your Honour, had it been merely the fact that

two members of the faffiily had died in circumstances
which were more particularly unknown than that

but yet you knew that he had murdered four members

of the - we .will call them members of the same

family relevantly, subsequently that would be so.
In this case you add to the fact of their death

the fact of the attempt to burn the vehicle deliberately.

Now that is quite an unusual feature.

GAUDRON J:  Well, it was a successful one too, on your case.

MR HIGGINS:  Indeed. One might say that the accused got

away with murder, indeed, at least for two and

a half years and but for the second series of

murders might have got away with the first two

as well. One might go further, indeed, to say

this, the congency of it plainly is the similarity

in the manner in which it was attempted to cover

up evidence. It is as if - - -

GAUDRON J:	And what does that then take you to?
MR HIGGINS:	The similarity of the method by which the

evidence was sought to be concealed, or there was

sought to be a concealing of evidence in the second

case, leads you to suppose that the deliberate

setting fire to the vehicle in the first was to

cover up evidence of a similar kind, namely, of

shooting.

GAUDRON J:	And then that question is - if you put it on that limited basis surely the question is whether there
is such a striking similarity about the attempt
at burning two and a half years later and the earlier
burning?

(Continued on page 58)

C2T38/l/MB	57	8/12/88
Thompson

MR HIGGINS:	Yes, that would be so and I might add to that that there is no evidence that the accused in
the intervening two and a half years had murdered
anybody else where he had to conceal the evidence
of his crime by fire, nor was there any other
evidence that he had been involved in any
unexplained fires for other reasons. So that
on the assumption that the accused would be
involved in murders at least no more frequently than every two and a half years, this was the
first opportunity, one might have thought, for
him to employ the same method of concealing the
evidence.  Indeed, the connection between the
two events becomes even more striking when one
takes the view that there was a pause in this
case between the shooting and the attempt to conceal by fire in the second event.

GAUDRON J: That does not do a lot of good for your

jurisdictional argument.

MR HIGGINS:  There was a pause, but no taking of the

bodies over the border; only a short pause,

Your Honour and certainly not enough to transport

the deceased to the realms of Queanbeyan where

they might be discovered by the Queanbeyan

constabulary.

MASON CJ: This goes to show it is unwise to allow a

second counsel to follow.

MR HIGGINS:	I was not trying to undermine Mr Weinberg, I do hope he will forgive me.	I trust I have
not undermined him too badly.

Your Honour, can I just also illustrate

the point that was just being made? I think

Your Honour's point really is that there is

only one previous incident.

GAUDRON J: No.
MR HIGGINS:	But if it is not only that, if it were so, then, of course, in PERRY's case some of the
judgments there regarded it as sufficient that
there was a previous incident of poisoning. in question was really the extent to which they
had been established as being similar to that
which the Crown alleged to have taken place in
the instant matter.  Here there is no question about
that. But, in that case, one would have been sufficient
in the judgment of some of the members of the Court.

C2T39/l/JM	58	8/12/88
Thompson

GAUDRON J:  I think you did answer me, but I take it that

the second - I am sorry. Perhaps you would tell 8e

again what you say the second issue to which it is

relevant is?

MR HIGGINS:  The second issue to which it is relevant is to

corroborate the evidence of the pathologist that

wounds found, which he identified as gun-shot wounds,

were indeed such.

BRENNAN J: Whose evidence is that?	Could you just - - -
MR HIGGINS:	That, Your Honour, is the evidence of a doctor

called Dr Verzosa.

MASON CJ:  But it is not reproduced in the application books,

is it?

MR HIGGINS:  I think that is so, Your Honour. It is not,

although it was referred to by, I think, my learned

friend, Mr Salmon, in the course of his outline of
the evidence which there was in relation to the
question of death. Dr Verzosa gave evidence of
examining the decomposed remains in the coffins of

the two girls and perceiving what he then identified

as .22 calibre bullet wounds, either exit or entrv

wounds as the case may be, one in each of the tw;

skulls.

If one wishes to put evidence contrary to that,

Dr Jankus, the pathologist who gave evidence at the

time, or of his examination at the time, gave evidence

that he noticed no such bullet wounds, although it

was a matter which he did not exclude as a possibility.

He could not exclude the hypothesis that they were

present but not noticed by him.

MASON CJ:  Was Verzosa positively able to identify the

bullet wounds, the bullet holes in the skull?

MR HIGGINS:  He put it in the form that he expressed the opinion that they were.

BRENNAN J: And did he have any experience?

MR HIGGINS:  Yes, he was a very experienced pathologist.

In fact he was the New South Wales Government

pathologist, if I recollect correctly, so that his

opinion would plainly be of some considerable weight.

As against that, there was a Mr Bardwell called bv

the defence who had some experience in

identification of bullet wounds and bullet marks,

T41	had conducted a number of experiments, was a Fellow
of the Institute of Chemistry and had been a police
inspector in the State of Queensland, and his
evidence was that he had examined the same skulls
and formed the view that it was not possible to say that the marks in question were in fact bullet marks.

C2T40/l/HS	59	8/12/88
Thompson

He rather thought that one could not identify then

one way or the other. So that there was an issue

in the trial about whether the marks which Dr Versoza
observed and as to which he expressed the view cha:

they were bullet marks were indeed such.

BRENNAN J:  Did Bardwell say that there were any marks which,

even if not identified as bullet marks, were

indentations in the skull of a kind that would be

inflicted by external force not to be accounted for

by a car going into a tree?

MR. HIGGINS:  No. Your Honours, the second, and perhaps

the more important point which we make on this

appeal, apart from submitting that the evidence

was sufficiently cogent, the evidence of the second

happening was sufficiently strikingly similar in

relevant respects to the first incident as to "w'hich

the Crown alleged there was a deliberate shooting.

The second question which arises is whether

there is a question of general principle and

application raised by this ground of appeal, and

as to that it might be noted that there has been

no discussion of any of the principles which have

been involved in PERRY, SUTTON or HOCH and for the

very good reason that there is no challenge to any

of those views, there is no suggestion that those

views were misunderstood or_ misapplied by either

the trial judge or by the Full Federal Court.

In this case the trial judge, after a voir dire

hearing, expressed the view and formed the view that

the evidence was admissible, that it had sufficient cogency. An appellate court, consisting of three

experienced judges, came to the same view. With

all due respect, the issue that is raised here is

a question of opinion as to the degree of cogency

which the undoubted evidence raised.

(Continued on page 61)

C2T41 /2/HS	60	8/12/88
Thompson

MR HIGGINS (continuing):  There is no point of law, no

point of principle, merely a question of the

assessment of the strength of evidence, of

inferences which might be drawn from it in a

situation where minds might, it is suggested,

differ, about whether an inference should be

drawn or not. There is no suggestion that there

arises from this any obvious miscarriage of

justice. The evidence certainly was - the Crown

case was proved in many way to establish the guilt

of the accused and it is certainly not the case

that without the similar fact evidence the

innocence of the accused would have had to have been acknowledged. But having said that it is simply the case that no question of general
principle or importance is raised. This Court

has stated now on numerous occasions what the

principles are in relation to similar fact

evidence. Those principles were not departed

from, they were acknowledged and, in our submission,

there really is not a special leave point. Those

are the submissions we put on that.

MASON CJ:  Yes, thank you, Mr Higgins. Mr Salmon, are you

or Mr Crispin going to reply?

MR SALMON: 

Probably more properly Mr Crispin. Well, I

was going to reply on my point and Mr Crispin
was - - -

MASON CJ: 

I think we ought to hear one counsel only in

reply.

MR SALMON:  If Your Honour pleases. Could I just briefly

deal with what my learned friend said about the finding of the body within the jurisdiction and

what one could infer from it. He, in our

submission, said that with no positive evidence

against that then a jury was entitled to infer

beyond reasonable doubt. We submit that that is	from the finding of the body, and be satisfied
merely another way of changing the onus of proof
and what really amounts to positive evidence.
There were maps before the jury, there was evidence
before the jury of the nearness of the border,
the routes, et cetera. The mere fact that there
was no positive assertion by the accused is
surely, in our submission, not to say that
there was no evidence of the relevant kind to
raise a reasonable doubt.

C2T42/l/MB	61	8/12/88
Thompson

t,,R SAI..MJN (cont:inuing):  The case of BATDORF, copies of which

were handed up, is one of those cases in which it

would seem to us that the Supreme Court of North

Carolina did tend to use the reasoning which my

learned friend says is available; that is, that

even though the jury has to be satisfied beyond

reasonable doubt, without some positive assertion

contrary to the finding of the body, it is entitled

to be satisfied beyond reasonable doubt.	I will not
trouble Your Honours by reading BATDORF.	A copy of

it was handed up and I could just indicate that it

seemed to be accepted in BATDORF that the accused

.had been well and truly out of the State in a heavy

lorry of some description and that, at all times,

he had asserted that the death had occurred outside

the State, albeit in circumstances making it
non-culpable or less culpable than murder and it

would seem to us that there was ample evidence for a jury not to be satisfied beyond reasonable doubt

but the court, in that case, appeared to accept the

sort of submission that was put by my learned friend;

that is, that the finding of the body within the State

was enough.

We submit that, on the BATDORF facts, in Australia, on the basis that the matter of

jurisdiction has to be proved beyond reasonable

doubt, the BATDORF facts would not allow that to

be found but I just draw the case to Your Honours'

attention.

DEANE J: But, Mr Salmon, accepting on your approach that the

trial judge had to direct the jury and it was something

they had to deal with, was there any issue between the

parties at the trial in relation to where death had

occurred?

MR SALMON:  Yes, there was, Your Honour. I was going to draw

Your Honour's attention to that.

DEANE J: Well, do not let me take you out of your course.

MR SALMON: It was 5 - no, it was the next point. It was put

by my learned friend, as I understood him, that it

was never raised by the accused.

(Continued on page 63)

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MR SALMON (continuing): Clearly for the reasons that

His Honour Mr Justice Dawson pointed out, the accused

personally could not have suggested that he killed them outside the territory or not reasonably. Eut

Mr Richardson made it a substantial part of the

accused's case and it is dealt with at pages 517 to 5:9.

I did start to read some of this to Your Honours

before but I do not wish to read it at length at this

stage of the day but I would draw it to Your Honours'

attention that in the trial judge's summing up,

apart from at other times when he is - there was an
application for a verdict by direction on the

question of jurisdiction. I may have misunderstood

my friend when he said that it was not raised by the

accused, clearly he meant merely what His Honour

SR	Mr Justice Dawson said, and perhaps I need not go further than I already have in pointing out the
extent to which the matter was in issue.
Some of the evidence, for example, as to the nearness of the border, was referred to by His Honour
at page 518. Then he refers to the maps,and during
his summing up of the defence case he refers to the submission that the hidden place on the Old Cooma Road
had been referred to by Mr Richardson for the accused - -

MASON CJ:  At 521, the first paragraph commencing on that

page quite clearly refers to a positive submission

made by Mr Richardson during the course of his

address.

(Continued on page 64)

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MR SALMON:  On the similar facts point, could I just

draw Your Honours' attention to some references

on the similar facts issue. The evidence of Mr Verzosa, which I concede should have been

contained in the appeal books, was satisfactorily

surmnarized by His Honour in his surmning up

at pages 528 and 529. The question of experience

on the number of cases where bodies had been

shot and incinerated is also referred to there,

where it was one or two previous cases, perhaps
more.

The evidence of Bardwell, he was the accused's expert, is set cat at page 541, where the trial

judge said that this was a case of a choice of

exrsrts and at page 514, the Crown case was said by His Honour to be killing by gunshot

wounds or blows to the head, or both.

Apart from drawing Your Honours' attention

to those references in His Honour's surmning up
to the existence of the issue about the head wounds,

there is no other matterswe want to put to the

Court on similar facts.

MASON CJ:  Yes, thank you, Mr Salmon. The Court will

consider its decision in this matter.and

will adjourn until 9.30 am tomorrow in

Sydney and Melbourne.

AT 12.58 PM THE MATTER WAS ADJOURNED SINE DIE

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