Wakeley v The Queen; Bartling v The Queen

[1990] HCATrans 76

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B40 of 1989

B e t w e e n -

STUART REGINALD WAKELEY

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Brisbane No B41 of 1989

B e t w e e n -

ANTHONY DAVID KEITH BARTLING

Applicant

and

THE QUEEN

Wakeley

Respondent

Applications for special leave

to appeal

MASON CJ

BREJ.\lNAN J

J~ANE .---:r-

TVOrt.t Y"	J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA.ON-MONDAY, 9 APRIL 1990, AT 10.21 AM

Copyright in the High Court of Australia

C2T2/l/JH 1 9 /4/90

MR W. CUTHBERT:  May it please the Court, I appear with my

learned friend, MR D. CAMERON, on behalf of the

applicant, Wakeley. (instructed by the Public

Defender)

MR W. McMILLAN:  May it please the Court, I appear with my

learned friend, MR P. ALCORN, on behalf of the

applicant, Bartling. (instructed by the Public

Defender)

MR B.J. BUTLER:  May it please the Court, I appear with my

learned friend, MR J.R. HUNTER, for the
respondent. (instructed by the Director of

Prosecutions)

MASON CJ:	Mr Cuthbert?
MR CUTHBERT:	An outline of submissions has been prepared

and I hand those to the Court.

MASON CJ:  We do have an outline of submissions which, I

imagine, is an outline of your submissions, Mr Cuthbert.

MR CUTHBERT:	By the applicant and - - -
MASON CJ:	There is also a summary of relevant material.

MR CUTHBERT:  A summary of relevant material. My learned friend

has just pointed out to me, on page 2 of the summary
of relevant material, under police activities

following completion of the investigation, the detail

that is contained in the first paragraph commencing,

"that evening the police officers returned to the unit"
is, I understand, correct but in its full detail

does not appear in the transcript either before the

Court of Criminal Appeal or before this Court. The

detail contained therein is correct but it did not

appear. It was gleaned from passages in the

transcript and from material given by the Crown and,

I believe, from certain evidence given at the inquest

into Mr Horton's death. (Continued on page 3)

C2T2/l/JH	2	9/4/90
Wakeley

MR CUTHBERT:  This is an application for an extension of time

in which to make application for special leav~ and an

application for special leave. If I might indicate

briefly;the basis on which this application for special

leave is made is this: that evidence was wrongly

excluded by the learned trial judge and as a result

thereof the applicant may thereof have lost a chance,

which was fairly open to him, of being acquitted. The learned trial judge ruled that evidence and

cross-examination as to the presence of heroin in Detective Horton's bloodstream was inadmissible. Detective Horton was the leader of the drug investigating

team of four and he was found dead in the unit

occupied by the four investigating officers about

8 o'clock on the morning following the investigation.·

There was evidence that he had been alive in the unit at about 3 am that morning. The pathology

report, as disclosed by the learned Crown prosecutor at

the trial, showed that the level of alcohol and

opiates, which included heroin, also cocaine and

tertahydrocanabinol, at the level of alcohol in

heroin derivatives, found at the post mortem was

sufficient to cause Detective Horton's death. As I

say, that evidence was excluded and it is our submission

that it should have been allowed on the basis that

the access or possible access of Horton - because so

far as Wakeley was concerned the material was supposed

to have been found in a shoe belonging to him in

mid-afternoon, so the access, or possible access

of Horton to heroin at a time proximate to the

finding of the heroin in the shoe, in our submission,

went to the issue of the planting of that material by

the police officers and was relevant in the sense that

it might have made the defence of the planting more

acceptable to a jury, but certainly it could have

been used by the jury in considering the defence

that was rais_ed of planting, that it would have

provided - that is the pathologist's report would

have provided objective corroboration of access

or possible access by Detective Horton to heroin

at the relevant time, and finally that it might

well have created a realy doubt in the jury's mind

- -about the police evidence of finding the heroin in

the applicant, Wake]ey's, shoe.

(Continued on page 4)

C2T3/l/FK	3	9/4/90
Wakeley

MR CUTHBERT: That two of the learned judges of the

Court of Criminal Appeal held that the evidence

did not go to an issue, touched on collateral

matters affecting the credit or probity of

Horton. Those were Justices McPhetson. and Williams.

His Honour Mr Justice Dowsett dissented and the

broad nature of his ruling on the matter is

twofold and can be found at pages 110 to 115 of

the record. At page 110, line 43, he said:

Evidence of circumstances surrounding

Horton's death -

that is the presence of opiates in the body - was relevant in this case in my view.

Evidence as to the presence of opiates

in Horton's blood would have been relevant

as going to show that Horton had access to

heroin at a time near to Bartling's

apprehension.

And the same would apply so far as Wakeley is

concerned.	He was there dealing with Bartling's
appeal.

Obviously, there were other explanations for

the·presence of opiates in his blood including,

I suppose, that he had misappropriated

some heroin found in the possession of

Bartling or Wakeley.

MASON CJ:  Mr Cuthbert, as I understand it, you are submitting

that cross-examination should have been permitted

into the cause of Horton's death.

MR CUTHBERT:  The cause being the presence of opiates - - -

MASON CJ: Yes, now as I understand it, Mr Justice Dowsett

thought that evidence as to the cause of death

was not admissibl~ but evidence to the circumstances	surrounding death was admissible, ie to show,	for example, that Horton had access to opiates.	Now
is that the way you are putting it; that is

surrounding circumstances rather than cause of death?

- -

(Continued on page 6)

C2T4/l/CM	4	9/4/90
Wakeley

MR CUTIIBERT: Rather than the cause of death. Why the term "cause of death" has been used to date is that the cause of death was given as alcohol and

heroin toxicity but, strictly speaking, it was

the presence of the opiates in Horton's bloodstream

as shown by the post mortem which is the relevant

matter.

MASON CJ:  Yes.

MR CUTHBERT: That, in fact, was one of the causes of his

death.

BRENNAN J: Mr Cuthbert, when the raid took place and the

possession was allegedly taken of heroin, was

there evidence as to where that heroin was taken

to by the police officers after the raid?

MR CUTHBERT: Yes. There were two raids, Your Honour;

one on Bartling's business premises where a

satchel was found containing a Strepsil tin

with small quantities of heroin and also some

money and some needles, I think. That was in

relation to Bartling. He was taken back to

the police station; left there and the four
police officers then went out to visit his home,

his residence, where Wakeley also resided;

that is the place at Tallai. That was the

second raid.

Now, on the second raid a quantity of heroin

according to the evidence of the police officers

was found by police officer Gray in a shoe belonging

to Wakeley. That was also taken possession

of. So far as the evidence at the trial was

concerned, Your Honour, all of those materials

were then placed in a brief-case which, I think,

belonged to Horton but was in the possession

of one, McDonnell. It was a locked brief-case

and he had the lock to it at all times. It

was in the unit which was occupied by the four

of the police officers. Precise evidence as

__ t0-..;_~ there is in the transcript, I believe,

some evidence that it was opened at one stage

because Horton wanted - - -

BRENNAN J:  Was it taken back to the unit?

MR CUTHBERT: It was taken back to the unit where - it

was still there the next morning when Mr Horton

was found to be dead.

MASON CJ:  Where is the evidence of that, Mr Cuthbert?

MR CUTHBERT: It is not in the record before Your Honours

but it would be in the record that was before

the Court of Criminal Appeal.

C2T5/1/SH	5	9/4/90
Wakeley
MASON CJ: Thank you.

MR CUTHBERT:  I have necessarily summarized the evidence

without going into great detail. So the first

ground on which Mr Justice Dowsett held that it

was relevant, in that it showed that he had

access - if it did not show access it showed,

certainly, the possibility of access - it

certainly goes that far - and therefore, in the

manner that I have described, could add support to or, certainly, was fit to be considered by a

jury in relation to the defence allegation by

Wakeley's counsel that the heroin had been

planted in his shoe.

•• I have dealt with and I will take the Court

to some of the cases on that first ground of

relevance, however, in the record from pages 111

to 115, Mr Justice Dowsett considered what he

called, atpagelll line 12:

A wider and more ill-defined basis upon which such evidence was relevant. The

presence of heroin in the body of a
police officer involved in drug investigations

shortly after the completion of such an

investigation must be seen as highly

unusual, not to say shocking. It may cast
doubts upon the reliability of that officer

in the way in which he has been performing

his duties. It may also cast doubts upon

the powers of observation and reliability of his colleagues, either because they have not detected his possible illegal use of drugs

or if they have, they have done nothing about

it. Thus a particular investigation may be

tainted.

His Honour considers that in some more detail in

the following pages and at page 115 he comes

back to it in these terms - page 115 line 5:	In the end, the extent of the possible impact
of this evidence upon the jury's assessment of the whole of the Crown case is very much
one of personal judgment. Once it is
conceded that it would be appropriate for the
jury to assess the conducb of the raids on
Bartling and Wakeley and the subsequent record
of interview -  ,.

I should state Bartling.made and signed

a record of interview. Wakeley- so-called- record

of interview were merely notes taken in a police

officer's notebook which he refused to sign and which,

at the trial, it was suggested were completely

fabricated.

C2T6/l/JL	6	9/4/90
Wakeley
MR CUTHBERT (continuing):

or more particularly the evidence of the

police officers concerning these matters,

in the light of Horton's subsequent
ingestion of heroin, it is not appropriate
to limit the extent to which they could draw

inferences from that evidence.

It goes on:

It seems to me to be not at all far-fetched to concede the possibility of an inference

that the whole investigation may have been
tainted by the involvement of its leader with
the illicit use of heroin. This may have been

with or without the knowledge and concurrence

of the other members of the investigating team.

It was for the jury to determine whether that

matter caused them to have a reasonable doubt

as to guilt.

So His Honour has placed the admissibility upon a

wider ground which I will also deal with in my
submissions. And it is our submission that the

evidence was admissible on both grounds posited

by Mr Justice Dowsett, firstly, that showing

Horton had access to - possible access to, at an
approximate time to the finding of the heroin
in Wakeley's shoe, was admissible to the jury on
the issue of whether or not it had been planted

there by the police officers; and, secondly,

on the broader ground which His Honour refers to

as a taint on the whole prosecution which I would

put in the terms that it affects the integrity

of the prosecution.

I might then take the Court to ground 4 in my

outline of submissions and this deals with the more limited - grounds 4 to 9 deal with the more limited

ground of admissibility, that is, that it was

- relevant to the defence issue of the heroin having

been planted. Item 10 deals with the broader ground

that I have already indicated to the Court.

DEANE J:	Mr Cuthbert, what was there in the trial to support the suggestion that the heroin had been planted in the
shoe?

MR CUTHBERT: There was very little in the Crown case.

DEANE J: W:18 there any defence case?

C2T7/l/LW	7	9/4/90
Wakeley

MR CUTHBERT:	No, neither Bartling nor Wakeley gave evidence.
DEANE J:	And, was any evidence called on their behalf?
MR CUTHBERT:	No evidence was called. There was this

evidence, Your Honour: the police officer, the female

member of the group, Bunton - police officer Bunton -

gave evidence that she had searched the shoes and when,

on the third search of the room occupied by Wakeley,

Detective Gray allegedly found the heroin in the shoe,

she made and admitted making a comment, "Well, that's

funny because I searched those shoes before". Now,

it was put to her that, in fact, she had searched

them even to the point of knocking the shoes on the

floor to see if there was anything stuffed up the toe

of them. She said that was so but that was in relation

to other shoes in another room, not in relation to the

shoes of Wakeley in which the heroin was found, and

that, in fact, that remark by her had been a silly

remark because it did not relate to the shoes in

which Gray allegedly found the heroin.	So, there was
that in the Crown case.	She said she made that remark

also not in the presence of the applicant, Wakeley, yet she agreed that that had been put to her at the

committal proceedings by Wakeley's counsel and she

was asked, "Well, how do you explain that Wakeley's

counsel at the committal could have knowledge of that

if you say he wasn't present when you made that

statement?".	She said, "Well, he may have overheard
it".	So, that was about as much -

DEANE J:  Was there any cross-examination of any of the

detectives to suggest that they had had access to
heroin which could have been planted or as to

whether there had been drug-related activities in

the flat that they were all sharing?

(Continued on page 9)

C2T8/l/JH	8	9/4/90
Wakeley

MR CUTHBERT:  So far as I am aware, no, Your Honour and

that - you see, the judge had ruled - the only

evidence of any illicit drugs, if

I might use that term, in the unit they were

sharing were the drugs in Horton's body and

His Honour had ruled that any inquiry into

that by way of cross-examination or by way of

calling of evidence was not admissible but,

to answer Your Honour's question directly,

there was no such cross-examination. I

perhaps have given Your Honour the reason as

I see it why there was not such cross-examination.

MASON CJ: There was not any cross-examination apart from

this matter of the previous search of the shoe
to suggest that the police officers had actually

planted heroin in the premises, was there?

MR CUTHBERT:  I do not think there was, Your Honour, and

indeed it is difficult to see how that could
be so. It was put to them that the heroin was

not found in the shoe. It was put - if I go

back to the - and this goes back to the Court

of Criminal Appeal transcript - this is as far

as it went. Counsel for Wakeley, in the

cross-examination of McDonnell, said:

I suggest while you were in the bathroom

Detective Gray said loudly to the effect,

"Here it is. I've got it" whereupon

Ms Bunton and my client walked out of

the bathroom?---They may have said that

but Wakeley was with Gray and I in the

room at that stage.

I suggest at one stage he was alone with

Bunton during the search?---No, that's

not correct.

He was not with you when this heroin was

produced by Gray?---He was.

And I suggest that the room had been

thoroughly searched in my client's
presence including those black pointed

shoes and nothing had been found?

That was incorrect. So, it was put that a search

had been made of the shoes; that nothing had

been found and later it is alleged that there

is a finding in them. So, indirectly, and as

far as, I suppose, counsel's instructions could

go, it is difficult to see how counsel could

directly put it or how he could get instructions

from his client unless his client actually saw

the planting in the shoe but he was indirectly

able to put it that the shoes had been searched;

C2T9/1/SH	9	9/4/90
Wakeley

I.Uthirg had been found in them and then, at a

later stage, Gray calls out, "Here it is; I've

found it", in circumstances where it had been

put, as I say, to Bunton that she expressed

surprise and she gave what the jury could well

regard as an unsatisfactory explanation of why

she should express surprise and why she should

have mistaken the shoes. Those, in my submission,

were jury matters.

(Continued on page 11)

C2T9/2/SH	10	9/4/90
Wakeley

McHUGH J: Counsel from one of the defence seemed to have

suggested in his or her address that it had been

planted.

l1R CUTHBERT: That is counsel for Wakeley ,Miss Dick,that is - - -

McHUGH J:	Mr Justice Williams refers to it at page 83.
MR CUTHBERT:Yes. That oc.curr.e<l in this fashion:	at the

conclusion of the first day of the trial which

was interrupted because of the attempted deal
that was going on between Bartling and the

Director of Prosecutions, which is the subject- matter of my learned friend's - one of his

grounds of appeal, I understand.-but at page 42,

Mr Feeney raised a matter at line 25.	Mr Feeney
was the Crown Prosecutor.	He said:

Your·,Honour, there is one minor matter.

I propose to speak to the pathologist who conducted the post-mortem examination of

Detective Horton.

Evidently,Mr Feeney had spoken to the counsel for the defence and told them something about

the pathology report, because we find in the

voir dire that had pr,eceded it at page 27, line 25,

Mr Hardcastle for Bartling gets in a bit of hearsay

evidence, which in fact is true, but it is hearsay

I take it you're aware as to Mr Horton dying

from what appears to be an overdose of

drugs?--I believe it was a contributing

factor to his death.

Do you know the type of drugs that were involved?-- I was told it was a

combination of THC, cocaine- and heroin.

THC, that's cannabis isn't it?-- Yes.

How long after these events was it that

Detective Horton died? -- - 8 a.m. the next day,
Your Honour.

In fact that combination was found and the material,

though hearsay, is correct. Mr Feeney then

raises it at 42. He said:

I propose to speak to the pathologist who conducted the post-mortem examination of

Detective Horton and it may be that I

will be calling him in the course of the trial.

His Honour said:

If he can give relevant evidence.

C2Tl0/l/CM	11	l1R CUTHBERT	9/4/90
Wakeley

At 43,Mr Feeney said:

Yes, that's why I raise it now, Your Honour.

On one view I can see that it may be an

important matter to the defence and one

that should properly be considered by the

jury.

And Mr Feeney obviously had the access in mind as he makes clear later. His Honour said:

I do not know whether defence counsel are

in a position at this stage to express any

view as to whether they would desire such
evidence called because, as I say, as I

see it at the moment, I fail to see it is

relevant. The fact of death is relevant

because it explains the absence ..... If it is

considered by either of the defence counsel

that there would be a possible relevance

in the evidence going any further than that,

please say so, otherwise I would rule that the

evidence as to the cause of death would be

irrelevant.

Well nothing much more transpired and they went away overnight to think about it.

DEANE J: Was the learned trial judge told of the involvement

of the detectives who gave evidence in the events

on the night on which Detective Horton died?

MR CUTHBERT: That is the passage - - -

DEANE J: That they were all sharing a flat together.

MR CUTHBERT:  No, that does not appear, Your Honour in the - - -

DEANE~J: That the two males had come home and found him

unconscious on the floor at 3 am.	and just left
him there or could not rouse him until 8 am

WEen they found him dead.

MR CUTHBERT:  So far as I am aware the details of that were

not gone into. as far as I can ascertain,

Your Honour.

DEANE J: Well then, how do we look at it in the context

of all this material that you have handed us, which

tends to demonstrate a degree of relevance in terms of people who were giving evidence in a

context where nobody told the trial judge about it?

MR CUTHBERT:  Your Honour, even on the evidence before

His Honour, that was indicated by Mr Feeney,

I submit there was sufficient there to demonstrate

the relevance of this evidence, perhaps not as

strongly as we could now demonstrate it having

had the benefit of the inquest behind us and having obtained

the detailed material fran that.

C2Tl0/2/CM	12	9/4/90
Wakeley

DEANE J:  The inquest was after the trial, was it?

MR CUTHBERT: After the trial, yes, long after the trial.

Mr Feeney did - at page 48, line 10, His Honour

said:

I think we should know what evidence the

Crown would seek to give were it permitted to do so.

He said:

The circumstances were that Sergeant Horton was alive at about 3 am on the 3rd of

February. He had been drinking.

The circumstances there, as we now know, Your Honours, was that he was talking on the phone to his wife in

Brisbane and she said the line went - he just stopped

talking - that is what Mr Feeney:

The circumstances were that Sergeant Horton was alive at about 3 am on the 3rd of

February. He had been drinking -

it was shown that he had over .20 in his

blood as we know -

He had been out to dinner and had drinks,

and was significantly affected by alcohol.

Now the details, as I say, of their coming back to

the unit and so on, evidently were not before

His Honour:

That by 8 o'clock the next morning he

was dead. The post-mortem examination

discovered levels of alcohol and

opiates sufficient to cause death. The

opiates included the metabolised products

of heroin.

_He~goes on at 24: 

There was no injection marks. There were

no signes of any violence having been done

to him and the levels of opiates were
consistent with them having been ingested

by being sniffed up the nose some hours before death. He was at a unit and the

circumstances were such that it could be

assumed that he was in a secure place.

HIS HONOUR: Would there be any evidence

available ..... to indicate that he was or

had been an habitual user.

C2Tll/1/FK	13	9/4/90
Wakeley

MR FEENEY:  The medical evidence was that he was

not. There were no signs of prolonged use of

opiates or other drugs. Evidence would be
available that those who worked with him

considered him to be a person with strong

views against drugs -

et cetera -

there is nothing to suggest he was a user of

drugs, and the contrary medical evidence is that

he was not.

That is about as far as Mr Feeney went in disclosing the type of evidence but, even on that material

along, Your Honour, I submit there is sufficient

on which His Honour should have made a ruling that

the evidence was admissible.	The weight of it,
of course, is another matter.	If it had rested with

that alone and cross-examination had brought out none

of this other material or their all being in the

one unit, of them arriving home at different times

during the night - then if cross-examination had

brought that out, that combined with the fact of

the heroin in the blood of Horton, could have had

a significant impact on the jury so far as the two

issues of relevance that I have put to the Court are

concerned.

DEANE J: Is there any evidence to suggest where Detective

Sergeant Horton got the cocaine and the marihuana?

MR CUTHBERT:  It was not gone into, Your Honour. No issue

of drugs in Horton's body was gone into at all

after the ruling by His Honour, and certainly if - - -

DEANE J:	Is it accurate that the only basis on which defence counsel said the matter was relevant was that
it is indicated that Detective Horton may have had access to heroin?
MR CUTHBERT: That is so, Your Honour. That was done by -	DEANE J: Weil now, if that was all, it does not mean much

in that context, does it? I mean, one would assume

any detective in charge of a drug unit would have

access to heroin.

(Continued on page 15)

C2Tll/2/FK	14	9/4/90
Wakeley
MR CUTHBERT:	Yes, but this is not an assumption.	This was

objective, corroborative evidence by the presence

of it in his bloodstream that he did, certainly,

within a proximate time to the investigation, he did

have access to heroin,,not an assumption or a

possibility, Your Honour.

McHUGH J:  It is not access so much as that he has got access

for his purposes.

MR CUTHBERT:  But access for any purposes, Your Honour. If

he has access then it could well affect the way

a jury looks at an allegation of planting which,

after all, is a rather scandalous accusation to make

against a police officer.

BRENNAN J:  Mr Cuthbert, I presume there is nothing here

which shows whether Detective Bunton was in the unit

during the time that the other two male detectives

had left Horton alone in the unit after they had - - -?

MR CUTHBERT:  There is nothing there, Your Honour. The

evidence at the inquest shows, in fact,she was but

there is nothing here. The evidence in the inquest

shows that she retired about 11 pm and the others

did not get back until the early hours of the morning.

BRENNAN J:  Is it right to say that the allegation that

Horton was brought home and stayed there while the

other two went away depended solely on the

evidence of the other two?

MR CUTHBERT:  Yes. This comes from the inquest that

Miss Bunton was asleep.

BRENNAN J:	Yes.
DEANE J:	But, the trial judge was not even told that the

four were sharing a unit, was he?

MR CUTHBERT:  Not that I am aware of, Your Honour. Not that

I can find in the transcript. It was merely put that

he was in a secure place and, I must confess, until

- I read the inquest material I was not aware of that.

DEANE J:  What would you say this Court should do if, after

all the argument is heard, we were of the view, or a

member of the Court was of the view, that on the

basis on which it was put to the trial judge it could

not be said that he had gone wrong in preventing an

examination of the circumstances of Detective Horton's

death but on the basis of all these other things that

you simply say in the document you have handed us, the

circumstances of the death were certainly relevant to

any cross-examination of the detectives.	I mean, is
that before us?

C2Tl2/l/JH	15	9/4/90
Wakeley

:t:1R CUTHBERT:  Your Honour is proceeding on the basis that on

the material before the trial judge there was

insufficient fur a proper ruling that it was relevant.

DEANE J:  Where the only basis suggested for this diversion

of the trial was to show that the detective in charge

of the drug unit had access to heroin for his own

purposes .

MR CUTHBERT:  Well, if the Court, contrary to my submission,

were to rule that on the material before His Honour

the evidence of heroin in Horton's blood was not
relevant, now that the defence post-inquest is in
possession of the full facts, I would seek leave to

place further.material before the Court if that

. further material - - -

DEANE J:	Before this Court?
MR CUTHBERT:	Before this Court, Your Honour.
DEANE J:	Well, did you seek to do so before the Full Court

in Queensland?

MR CUTHBERT:	The inquest had not been held at that point.
BRENNAN J:	Do you not need to put the evidence in a

petition to the Governor?

:t:1R CUTHBERT:  Your Honour, only if I am wrong in the

submission supporting the conclusions of

Mr Justice Dowsett. If Mr Justice Dowsett is, as in

our submission he is, if he is right that the

evidence on the material before the trial judge was

relevant and admissible, I submit at the very least
the applicant should have a new trial. If this Court

rules the evidence is, as I submit it is,relevant

and admissible, then all of this material can be gone

into at a new trial of Wakeley.

(Continued on page 17)

C2Tl2/2/JH	16	9/4/90
Wakeley

DEANE J:  Was there anything to stop counsel saying to the

three detectives the question, "You now know~
do you not,that Detective Horton had access to

heroin for his own purposes?." or is it said

that His Honour's ruling that they could not

coldly cross-examine on Detective Horton's

death would have also precluded that suggestion

being made in questioning?

MR CUTHBERT:  Your Honour, I would submit that his ruling

would have prevented even that because it was -

DEANE J: Well, if that is so and they wanted to ask the

question, surely they would have told him?

• MR CUTHBERT: Well, he had already ruled, Your Honour.

Mr Justice Dowsett points out the unsatisfactory

way this arose, through the Crown prosecutor

seekingas it were guidance from the trial judge before he opened his case and His Honour making

a ruling in the broad terms that His Honour did,

at pages 50 and 51. At page 50, line 3, he said:

I am not persuaded that cross-examination on the cause of sergeant Horton's death

should be admitted.

Now, the cause of his death was, of course, the

presence - the relevant cause the presence of

heroin in the blood. He said:

I think that stops it.

So, he is speaking there of cross-examination, at

page 51, Mr Feeney said, line 9:

Although I would find it of assistance if

Your Honour were prepared to rule on the

admissibility of that evidence ..

HIS HONOUR:

to make any ruling, really.- I don't think I am called upon

Mr Feeney insisted -

I would find it of assistance if Your Honour were prepared to rule on the admissibility

of that evidence.

Now I take that, Your Honour, to mean the presence

of opiates in the blood because that is the only

relevant cause of Horton's death that we are

concerned with Mr Feeney went on:

Of course, if you were to rule that it was

admissible I would then ask for a brief

adjournment to get further instructions from

the Director .....

C2Tl3/l/JL	17	9/4/90
Wakeley

HIS HONOUR:  I am prepared to rule and I

do so that evidence as to the cause of

Sergeant Horton's death is inadmissible -

Now, as I say, the only relevant cause is the

presence of heroin in the blood. Mis Dick then

made one last try, she said:

I am sorry, yesterday the learned Crown

Prosecutor indicated that one of the drugs

found was what is called THC.

Now, that may have been a private conversation, or

it may have been that evidence of Miss Bunton that

I referred to earlier, I do not know:

I am instructed that that is something that

has to be in fact smoked,. so if that is the
case that that was found, then that would have

had to have been voluntarily on my

instructions done.

And Miss Dick, at page 52, suggested that:

it was indicated in open Court that that was

one of the drugs .....

HIS HONOUR:	But we are dealing with heroin
here.
MISS DICK:	Yes, Your Honour, but ..... in my

submission if it is so that Mr Horton

voluntarily ingested THC and also was found

to have heroin ..... it then weights the

proposition that that was ingested voluntarily

as well.

HIS HONOUR: Doesn't alter my ruling.

Now, His Honour is ruling at page 50, Your Honour,

and 5.1, as I say was that evidence, in cross-

examination or in-chief by either of the parties

as=co the cause of Horton's death,and the only

relevant cause being the heroin cause, is

inadmissible.

DEANE J: But if you look at page 49, from line 30 on, it is

apparent that the trial judge was working on the

assumption that the only line of cross-examination

to which the death could be made relevant on what

was put to him was wide open to the defence.

MR CUTHBERT:  To investigate that, but without referring,

Your Honour, to the presence of the heroin - - -

C2T13/2/JL	18	9/4/90
Wakeley

DEANE J:  No, but at line 40, His Honour makes it clear that

he was not precluding the suggestion that Detective

Horton would have had access to drugs which he could

plant if he was so minded. Now, if the other

detectives had been cross-examined on that and had

denied it, it would have created a completely different

situation, one would speculate, in His Honour's mind,

as to the admissibilility of the evidence of how

Detective Horton had died.

(Continued on page 20)

C2Tl3/3/JL	19	9/4/90
Wakeley

MR CUTHBERT:  Your Honour, except that all parties, all counsel

in the case from that point on,proceeded or

appear to have proceeded on the basis that

His Honour had made a definitive ruling that the

cause of death so far as the heroin in Horton's

body was concerned was inadmissible. Whether

they were right or wrong in doing that, Your Honour,

is another matter and it is discussed in the

judgments.

TOOHEY J: Well that appears to have been the ~iew taken by

Mr Justice Dowsett.

MR CUTHBERT:  Yes, well he said that -

TOOHEY J: That is at the foot of page 115, Mr Cuthbert, over

to the top of page 116.

MR CUTHBERT: In point of fact affidavits were

tendered	by the two defence counsels involved
saying that that is what they thought.	They were
ultimately received by Mr Justice Dowsett.	They were

not by the other two members of the court who ruled that

the evidence was not relevant in any event. But he said:

I would, in the circumstances, think that the

failure to lead that evidence was probably the

result of the belief by all concerned in this case

that his Honour had finally determined the

question of admissibility of evidence on the issue

for all purposes in the trial.

TOOHEY J: Are you suggesting that that conclusion was arrived at

by Mr Justice Dowsett by reference to the affidavits?

MR CUTHBERT:  He does refer earlier, Your Honour, if I can get the

answer~ at the bottom of page 112, about 35:

In the event, the Crown called no witness to

give that evidence or to whom questions in

cross-examination touching such matters could be

properly directed, nor did the defence seek to call

evidence on the issue. Before us, affidavits by

counsel below were read, to the effect that counsel's

understanding of His Honour's ruling was such that

they considered that it was not open to them to
lead evidence of the presence of opiates in

Horton's blood. They did not seek to do so.

It is most unsatisfactory that appeals should

proceed in this way. Points for ruling should be

raised before the trial judge in a clear way so

that there can be no doubt as to the issue being

raised for determination. If this is done, the

appeal court can determine any appeal on the

record. Once we commence to determine appeals

C2T14/l/LW	20	9/4/90
Wakeley

having regard to what counsel thought a trial judge had rules, then there will be no end to

the circumstances which will apparently justify
appeals. Further, we will move closer to the very
unsatisfactory situation in which questions of

the credibility of counsel are regularly raised

for determination in appeal courts. Thus I

would be very reluctant to act upon such

affidavits. However the principal function of this court is to ensure that there has been no miscarriage of justice below and for that

reason, I have taken into account the assertions

by counsel that they so understood His Honour's

ruling. To be fair to them, it would seem that

His Honour would have so ruled had he been

asked to do so. In any event, by excluding
cross-examination on the issue, His Honour

effectively prevented evidence-in-chief in the

defence case because that evidence was not "uut"

in the usual way. ·

Perhaps that goes a little bit too far but His Honour

took the view that the passages I have quoted

could be fairly taken by those involved in the case

as a definitive ruling by His Honour on the issue of

heroin in Horton's blood and they stopped there.

TOOHEY J:  Well, for the purposes of your submission, Mr Cuthbert,

do you seek to rely upon the affidavits or do you take

to stand on the record?

MR CUTHBERT:  I take to stand on the record, if the Court pleases.

TOOHEY J: Thank you.

BRENNAN J: Mr Cuthbert, I notice that on the bottom of page 50

His Honour regarded the evidence about the cause of

death as necessarily being a matter of:

hearsay on the part of any of the police officers.

H~ says: 

I think that stops it.

Now, if the facts as you told us of them are correct,

the ingestion of these three drugs by Horton must have

taken place either in the unit where Bunton was,

in the absence of the other two police officers, or,

if their view of their evidence that the inquest was

incorrect, the three police officers in company, one with

the other, somewhere else that evening. So that there

would be a prospect, would there not, that the police

officers who were called to give evidence would be able

to give direct evidence as to the ingestion of, not only

of heroin, but of cocaine and THC?

C2Tl4/2/LW	21	9/4/90
Wakeley

MR CUTHBERT:	That possibility must be admitted, Your Honour.
BRENNAN J:	Now, is it appropriate if those significant

facts are available for proof that we should

consider this case in the blinding darkness

which affected the trial judge,rather than

your taking the material before the Court of

Criminal Appeal in the usual way and having

that court consider it afresh?

MR CUTHBERT:  Your Honour, the only way that the matter

can come back before the Court of Criminal Appeal

would be by the application for - - -

BRENNAN J:  By a petition.

MR CUTHBERT:  By a petition, yes. We have exhausted our

ordinary right of appeal to the Court of Criminal

Appeal. Your Honour, I had considered the position

of such a petition but it seemed to me proper

to exhaust what rights I had before this Court

before making such a move and, on the reasoning

in the dissenting judgment of Mr Justice Dowsett

and on the authorities that I have referred

to, it is our submission that there is sufficient

for this Court to hold that the evidence was

relevant and admissible, was wrongly excluded
in circumstances which caused a miscarriage

of justice and that a new trial should be ordered.

It seemed to me and it is my submission that

it was proper to exhaust our rights in that

regard in the first instant and it is still,

of course, my position that this evidence, on

the material placed before His Honour the learned

trial judge, should have been ruled admissible

by him.

I would concede certainly, as has been

put to me by His Honour Mr Justice Deane,that

certainly if we were in a position to place

the material that we are now in ·possession of

be:fore the learned trial judge we could have

- ·made our submissions with more force and effect.

I concede that but, nevertheless, even on the

material that was before the trial judge, it

is our submission that his ruling was wrong

in law and that this Court should correct it.

BRENNAN J: Perhaps it is a matter for you, Mr Cuthbert, and

if that is the view that you have formed and

adhered to then we shall deal with it, no doubt,

accordingly.

MR CUTHBERT:  Yes. Your Honours, on the question of the

evidence being relevant to the defence and the

consideration by the jury of the defence that

the material was planted on Wakeley, I would

refer the Court to BURNS V REG,(1975)	132 CLR 258,
in the list of authorities.

C2Tl5/l/SH	22	9/4/90
Wakeley

BURNS was a case of armed robbery where the

impecunious nature of the accused before the

robbery and the fact that he was able to pay off

debts after the robbery was allowed in evidence

and the question arose as to the relevance of

that to an issue. The Court held:

That the change in the accused's financial

position went to the issue whether he was

truthful when he said that he was not

questioned at all -

by the police.

(Continued on page 24)

C2Tl5/2/SH	23	9/4/90
Wakeley

MR CUTHBERT (continuing):  The police claim that he was

questioned by them and in a statement from the dock

he denied that any such questioning took place and,

at page 264, it was put in these terms in the

joint judgment of Chief Justice Barwick and

Justices Gibbs and Mason with whom Mr Justice Jacobs

agreed:

In the present case the fact that after the
crime the applicant to the knowledge of
the police officers was in possession of
newly acquired wealth made it probable that
the police officers, who had formed
suspicions as to his guilt, would have

questioned him as to the source of his

comparative affluence; it was therefore

relevant to the issue whether the applicant

was truthful when he said that he was not

questioned at all.

At about point 6 of the page, they say:

In this case, as we have said, the change in the applicant's financial position had special significance in that it went to the

issue whether the applicant was truthful when

he said that he was not questioned at all. excluded from the jury's consideration.

It is pointed out at point 5 of the page that:

if the jury hadbeen told that they might

consider that evidence on this issue the

trial judge should have warned them of the

danger of giving it undue weight.

So, it is not that these matters, being impecunious before and

in a position of comparative affluence after, proved

the robbery but they go to, in a fashion, subject to

had~<lone these things was contained in the alleged	questioned about things because the evidence that he a direction as to we±gfrc,, as to whether he had been
admissions he made to the police. The police said he had
been questioned about when they put the new found
affluence to him, he broke down and confessed. He
said he was never questioned at all about it and this went
some way, was relevant to that issue.

So, it is on the basis of cases like BURNS, that

we submit that the presence of the opiates in Horton's

body at the proximate time go in the same fashion to
the defence allegation here that the - the defence case

that the heroin was not Wakeley's and was not in

Wakeley's shoe and, therefore, could well have been

planted by some of the police officers concerned in

the matter and would add weight to Wakeley's defence

C2Tl6/l/JH	24	9/4/90
Wakeley

abut tlie truth of the ~rown allegations tat the	or6 at least, could cause the jury to haveh· doubt
heroin was found in Wakeley's possession.

TOOHEY J:	But, in the ordinary case, Mr Cuthbert, the question of relevance does not arise until the issue
has been defined.  I am not entirely clear how you
define the issue in the present case. I know you have
used the e:x:press-ion that "the heroin was planted".
Can you be more precise than that? Planted by whom, when, or in what circumstances?
MR CUTHBERT:	Planted by the police; Wakeley's case being

that it was not there when the police first searched

point in the search being conducted of his premises

the shoes and that was the case put and there was
some evidenc~, as I have indicated in the

cross-examination of Bunton, to support that.

he saw one of the police officers plant this in his

shoe. At the best, the question of planting in the

shoe would be an inference to be drawn from the

circumstantial evidence that it was not there when
the police first and secondly searched the shoes;

they claim that it was there on the third occasion

when they searched and Bunton expressed surprise that

they had found it because she had already searched

and her excuse was not an acceptable one.

(Continued on page 26)

C2Tl6/2/JH	25	9/4/90
Wakeley

TOOHEY J: Well then, if I can ask you this: it is not

entirely clear to me whether you are saying, on

behalf of your client, that the issue of planting,
in the way that you express it, was an issue at

the trial, or whether it would have been an issue

had it not been prevented from becoming an is sue by

reason of the trial judge's ruling?

MR CUTHBERT: Well, I am sorry, it was an issue at the trial because those matters were raised and, so far as I

am aware, Your Honour, raised further in address

so far as Wakeley was concerned, the point being

that evidence to support - what we submit supports such

a defence was not allowed to go to the jury.	So it
was an issu~_in the trial so far as Wakeley was

. . concerned.

TOOHEY J: And you mean continued to be an issue even

after the ruling - - -

MR CUTHBERT:	Yes, Your Honour.
TOOHEY J:	- - - although a limited issue by reason of the

inevitable consequences that the ruling had.

MR CUTHBERT:  That the defence case on that was considerably

weakened or would not have had the impact before
the jury that it would have had if the evidence

of Horton's access to heroin had been allowed

to be given. And this was not, as I stress, just

a question of saying, "Well, police officers in the

drug squad, it can be assumed they would have

access". This was, as I say, objective corroboration

of the fact that a short time afterwards he must

have had access because he had it in his body.

MASON CJ: Let us assume for the moment that there was

avidence that Horton had access to heroin. What was

there in the case that made it likely, probable

or possible that the police would use the heroin in

this way: to plant it on the applicants, as you

suggest?

MR CUTHBERT:  Your Honour, it is difficult on the material

in the case to ascribe to the police officers a

specific motive why they would do it in this case.

All I can do is - - -

MASON CJ:  Wa_s_ there no suggestion put in

cross-examination at all, as to motive?

MR CUTHBERT: Well, none could be put to Detective Horton,

Your Honour, and he was the one involved, and so far

as I am aware, no question of motive - no suggestion

of motive - was put to the other police officers.

C2Tl7/l/FK	26	9/4/90
Wakeley

DEANE J: Well, was it ever put to any of the police that it

had been planted? I know it was - - -

MR CUTHBERT: In the fashion that I have indicated,

Your Honour, that it was put - - -

DEANE J: Well, you have told us that Detective Bunton was

cross-examined about a statement she had made, and

said she had been mistaken, or she had been

inaccurate in what she said.

MR CUTHBERT:  I cannot find that it was put to Bunton, Gray

or McDonnellspecifically, "But you planted the heroin" - - -

DEANE J:  No, that anyone planted it.

MASON CJ: Well, Justice Williams says, in his judgment, "No

suggestion of that kind was made".

MR CUTHBERT: With respect, Your Honour, it is difficult to

see how counsel could put such a matter in such blunt

terms without instructions because one can point to

the evidence, as I have done, which would indicate
the likelihood of it being planted, but one could not
put to a witness that he has engaged in that conduct
unless one had some instructions, or a very strong

inference indicating the particular witness was the

one involved.

McHUGH J:  There is a passage, page 85 of Mr Justice Williams's

judgment, where he suggests there may have been an

implied suggestion it was planted: line 40 on page 85.

MR CUTHBERT:  That would probably be the evidence that I have

referred to, Your Honour.

BRENNAN J:  Is it a question of an allegation of planting, or

is it a question of whether the Crown had proved

beyond reasonable doubt that the material was found

there?

MR CUTHBERT: In Wakeley's possession?

BRENNAN-J: rfow, if that was the issue, if you have got the

bare fact that one of the raiding party was found

dead the next morning with heroin metabolized in

his bloodstream, it could be relevant to that question,

namely, whether or not it was in the possession of

Wakely, it seems to me in only one of two ways: one is

if it tends to make it more likely than not that the material was found in the shoe,and for the moment it escapes me to see what the connection is, or the

other and far more significant, is the question of

whether the police officers who actually gave the

evidence were telling the truth.

C2Tl7/2/FK	27	9/4/90
Wakeley

Now, that, in turn, would depend not upon

the fact that Horton died with some metabolized

heroin in his bloodstream, but whether they were

all involved in a durg party.	But that is not
before us.	So that, where is your foundation

for challenging the rejection of the evidence below? What

was it supposed to do? Was it supposed to make

something more likely than not, or is it going

to credit?

(Continued on page 29)

C2Tl7/3/FK	28	9/4/90
Wakeley

MR CUTHBERT:  Your Honour, it was to show, not merely

that Horton as a member of a drub sqad might

be assumed to be able to get hold of heroin,
but it was to show that within a proximate time
of the finding in Wakeley's possession, Horton

did have heroin in his possession and therefore

was fit evidence - not conclusive evidence,

Your Honour, but was evidence to be considered

by a jury as to whether or not he had access

to heroin at the time he, it is alleged,that when

he is there making the search, the heroin is

supposed to have been found by Gray.

BRENNAN J: That is the link that I do not see at the

moment. Why is it - let us assume that the

evidence was given; t·hat back at the CR branch

in Brisbane they had two kilograms of heroin.

Would that have been relevant or admissible?

They could have brought it with them.

MR CUTHBERT: With respect, Your Honour , they could have

done a lot of things, but the evidence we are

speaking of here is that within a short time

of the raid, the evidence indicates that Horton had ·-·as I say, there is objective corroboration
through the pathology report that Horton must have

had access to heroin because it was in his body.

Not that he could have brought it from Brisbane,

but he had access to heroin within a ·proximate time.

BRENNAN J:	But where does that lead you?
MR CUTHBERT:	Because that then could enable a jury more

readily to have reasonable doubt about the

police allegation that they found the heroin in

Wakeley's possession.

McHUGH J: Is this the way you put it, that the Crown case

was that youwere in possession of this heroin. It

was your heroin.	Your plea of not guilty
denied that allegation and evidence that Horton

h§.d access to heroin for his own illegal purposes

contemporaneously or close to the time when the

police found it, was evidence from which the

jury might think would raise a doubt as ·to - - -

MR CUTHBERT: Might raise a doubt as to whether the police

evidence of finding the heroin in Wakeley's

possession was true or not, because his case as put was a denial that it was found in the

circumstances that the police said it was found.

TOOHEY J: It does not seem to me that laying stress on

acce.ss to heroin really advances the case very

far, Mr Cuthbert. If anything,it is Horton's

possession of heroin, apparently which he was not

required to account for to the police authorities,

C2Tl8/l/CM	29	HR CUTHBERT	9/4/90
Wakeley

in the sense that it was not simply heroin that

was held by the police as a matter of record, but

rather, however he came into possession of it,

that he had heroin in circumstances where he was

able to use it for his own purposes. Now I am

not saying that that necessarily closes the link

that is troubling Justice Brennan, but it is

really the possession of the heroii.7. in ·circumstances

where he could use it, apparently for his own

purposes, or, it might be said, for other purposes.

MR CUTHBERT:  In response to Your Honour and Mr Justice Brennan,

is it necessary, I pose the question, for the

defence to show such a link or, can it not be said

rather that the mere fact of possession of heroin

by Horton is proper material to be considered by

a jury in determining whether Wakeley had heroin

in his possession in the circumstances alleged by

the Crown witnesses?

(Continued on page 31)

C2Tl8/2/CM	30	9/4/90
Wakeley

BRENNAN J: Mr Cuthbert, is not this the reality: if you

had possession of that information at this trial

and if t±-e cross-examination would be allowed, that

question of having the heroin in his blood would

only be the first question in cross-examination?

MR CUTHBERT: This is what would come from it, Your Honour.

BRENNAN J:  You would then go to pursue where it came from,

what were the circumstances and so forth.

MR CUTHBERT:  Yes, then into all the events of the police

officers on that night and - - -

BRENNAN J: That is right. You would ultimately build

a picture, I would think, having regard to the

circumstances that you have outlined, which would

throw the gravest doubts on the integrity of
the whole exercise. That would be the object

of the cross-examination.

MR CUTHBERT:  Yes.

BRENNAN J: Now, that being so, it seems to me that we

have not got that material; there was no

cross-examination of that kind, of course, before

the trial judge and all we have is the bare

refusal to admit evidence of the cause of death.

MR CUTHBERT: That, Your Honour, was a significant starting

point if His Honour had allowed evidence as

to, if I might borrow the phrase of Your Honour -

of the possession by Horton of heroin, the other matters which I have now indicated to the Court became available to us after the inquest. Certainly
matters could then well have been gone into.

questions, I suppose, could have been asked

about those at the trial itself if they could

have been shown to be relevant. I would fail to

see the relevance of them apart from the evidence

of possession by Horton of heroin. If that
had been allowed to be given,	other matters

- could have been gone into at the trial to establish

either a possibility of planting or, at least,

evidence from which the jury could have a

reasonable doubt about the police allegation

of finding the heroin in the circumstances or

could go further to what Mr Justice Dowsett

described as tainting or, perhaps, as

Mr Justice Brennan suggested, to show that the

police, themselves, some sort of a drug party

but it all depended -

BRENNAN J:	I am not suggesting that, Mr Cuthbert.
MR CUTHBERT:	No, but, Your Honour, those are matters which

could well - depending on the quality of the

evidence or nature of the evidence that comes

C2Tl9/l/SH	3 1	9/4/90
Wakeley

out - could well be made matters for address by
the defence quite legitimately but they all

depend upon the initial admission of possession

of the heroin by Horton.

That fact - Your Honour, I am repeating myself but that fact in itself, I submit, is sufficient to

go to a jury on the issue of whether Wakeley had

possession of the heroin as the police claimed

or whether it was placed in his possession by the

police officers for some purpose. It is not

conclusive just as was said in BURNS' case; the

evidence there is by no means conclusive but it

goes to show the greater likelihood or possibility

of the police having asked those questions. Since

that was the factual situation, outside evidence

was called to show that he was inpecunious and he

was affluent or paid off his debts and so, since

that was the situation, it is likely the police

asked him about it and they said, "Well, it is

relevant to the issue whether he was asked when

he says he was not". As you point out, it is

not conclusive and it is - Your Honours, the

next case on the list is shown as R V THE QUEEN;

it should be REG V COLLINS, Your Honour.	I do
not know how that came about.

(Continued on page 33)

C2T19/2/SH	3 2	9/4/90
Wakeley

MASON CJ:	Are these cases really going to help us, Mr Cuthbert?
MR CUTHBERT:	Your Honour, some of the expressions in them

do in the sense that COILlliS speaks of where you had "objective

corroboration" which I claim the objective

corroboration would be here in this case in the

pathologist's evidence of the presence of heroin

in Horton's body after death. The reference to that,

Your Honour, is - this was a case where a man

was charged with possession for the purpose of sale.

He wanted to show he was an addict; gave evidence

he was; called a doctor and it was held that

evidence from the doctor that, in fact,he was an addict

was relevant and admissible, it should have been

allowed. The relevant passage at page 506 in the

judgment of Chief Justice Bray, point 7:

The appellant had said that he was an addict,

but that could have been considered in the

circumstances of this case as a self-serving

statement. Objective corroboration was, in
my view, clearly admissible and highly important.

BUCHANAN's case, Your Honour, involved as to whether evidence of driving some 35 or 40 minutes before

an incident of driving which was the subject-matter

of the driving charge was relevant.	At the top of
page 12 it was submitted:

In other words, it was an incident -

that is the earlier driving

which was quite irrelevant to the driving with

which the applicant was charged -

that having occurred some 35 to 40 minutes later -

If one were to look at this issue merely from

the point of view of the speed at which the

applicant was driving at the time of the fatal

collision, or merely from the point of view of the

part of the road on which he was driving at that

time, there would, in my opinion, be much to be

said for the argument -

However, if the connecting link was liquor, and it

was said at point 7 of the page:

In other words, there was, in my opinion, a

connecting link between the incident to which

the Lewises referred -

that is the earlier one -

C2T20/l/LW	33	9/4/90
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and the driving of the applicant at the time of

the accident, and that connecting link was,

if the jury accepted the evidence, that the applicant was affected by alcoholic liquor, and the earlier incident could be used by the

jury as an indication that the applicant was

affected in his judgment and his management and

control of the car.

So, here, we submit, that the presence or the possession

by Horton of heroin could be used by the jury, apd

the possession of it at the time of the visit or the

raid upon the appellant's place, could be used by

the jury in considering whether or not the police

evidence as to finding it in the applicant's shoe

should be accepted by them or whether this evidence,

that the police were in possession at that time -

themselves in possession - could cause them to have

a reasonable doubt.

TOOHEY J:  But the proposition is not really assisted by the

authority, is it, Mr Cuthbert? It stands or falls on

its own merits.

MR CUTHBERT:  It does. I merely referred to them, Your Honour,

to show that it is not necessary that the defence

demonstrate that the evidence subjected to would

necessarily lead to a conclusion that the material

had been planted by the police officers.

(Continued on page 35)

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MR CUTHBERT (continuing): It is Sufficient if it could be

used by the jury, if it would render it more likely, if it would give some point to their

consideration. Therein lies the element of

relevance, in my submission, and for that reason

should have been allowed.

BRENNAN J:  Mr Cuthber~ you have taken us to cases where

evidence that might have been adducedin-chief has been rejected or allowed - or has been allowed at

least, but your problem here is not so much

evidence in-chief which might tend to incriminate

the accused, as disallowance of a line ~f

cross-examination.

MR CUTHBERT:  Your Honour, I appreciate that is the way it

started, as a disallowance of a line of

cross-examination, but His Honour's ruling went

further than that, when His Honour ruled not

only at page 49, I think it was, he speaks of

cross-examination - at the bottom of page 50

he speaks of cross-examination:

I am not persuaded that cross-examination .....

should be admitted -

BRENNAN J: Now, is the test for cross-examination the same

as the test for admission of evidence in-chief?

MR CUTHBERT:  Your Honour, in respect of relevance it is

but, of course, cross-examination to be allowed

as to credit, but we are not speaking of credit

here, Your Honour, but it is at page 51,

Your Honour, where he goes further than the

mere	cross-examination, line 15, and he
said:

evidence as to the cause of ..... Horton's
death is inadmissible in these

proceedings.

And it is from there that the trouble in the trial

- really started, in my submission, that that was

taken as the end of the matter, rightly or wrongly, and no attempt then was made to traverse the ruling

made by His Honour.

BRENNAN J: Well, is the test for cross-examination whether

the question may open a fair line of relevant

inquiry, or is it whether the answer to the question

will itself be relevant as tending to prove or

disapprove the facts in issue?

MR CUTHBERT: Well, considering the latitude that is allowed,

I would submit the first of Your Honour's

propositions would be the correct one there. That

C2T21/l/JL	35	9/4/90
Wakeley

one does not, necessarily, have to show that

each separate question is, in itself, relevant

if it is leading towards an area of relevance

· that - - -

BRENNAN J: Well, one does not know, perhaps, where it is

leading?

MR CUTHBERT: Well, I suppose there comes a time when the

court says, "Well, if it is not coming to

something that is relevant very soon, you

will have to get on to another topic". But, I would

submit that it is not each individual question,

a latitude is allowed in order to develop the

line which would indicate the issue of relevance.

.. %.

The ruling by His Honour at page 51, I submit,

just shut all of that out in his case. At least that

was the view that was taken by those and I submit

that they were so justified in taking that view,

as Mr Justice Dowsett said.

BRENNAN J: Well, let me ask you one further question and then

I shall leave ·it. If the test in cross-examination·

is whether the· question may fairly open a line of

relevant inquiry then, in this case, was there anything

indicated to His Honour, apart from what you have

thus far showed us, which might have indicated to

him what the relevance of the line of inquiry might

have been?

MR CUTHBERT:  The only indication to His Honour or by Miss Dick,

at pages 45 - this was when they came back on the

following day, 45 line 35, she said she was not

going:

to make any submissions -

Line 41, His Honour said:

I propose to put the matter beyond doubt

by giving a ruling.

Miss Dick then rethought and said:perhaps she

should make some submission, He then went on to

speak about the shoe and at page 46 line 50:

In my trial it may be that I will have to
lead to the jury that either that heroin was

Bartling's or it had been planted by the

police officers. It would be important, in

my submission for a jury to know if a police

officer involved ..... had inn:nediate access to

heroin thereby enabling him, perhaps, to

plant such a substance. In my submission,

left untouched a jury might well think, "How

C2T21/2/JL	36	9/4/90
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could police officers obtain heroin to

plant it?" I do not at this point know

what the evidence would be as to Mr. Horton's

use -

and so on.

(Continued on page 38)

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MR CUTHBERT (continuing); She said, at the top of page 47:

Your Honour, in my submission, it would be

essential for me to exhibit to the jury

that one of the police officers had access

to heroin -

perhaps not phrased but it would be certainly helpful.

Mr Feeney, at page 47, line 6, says:

As my learned friend, Miss Dick said, her case is that it is either Bartling's or

it has been planted, which really comes down

to saying that her case is that no-one can

be identified as the person responsible and

looking at the depositions -

and goes on. That is as much as was put in the
argument as to the use which the defence would make

of this evidence of Horton's possession of heroin

and, in my submission, that was sufficient.

A phrase used in STEPHENSON which is referred

to there is - and STEPHENSON involved a collision

between two vehicles and there were four people in the

second vehicle,which was not the driver, three of

whom were killed and one of those three had been the

driver - it was not known which of them. The driver

of the other vehicle was the person charged with the

driving offence and his counsel wanted to call

evidence as to the alcoholic condition of those three

persons. In relation to two of them, it would seem

that there was evidence they were affected. In

relation to one of them, the evidence would not have

helped him at all. The court in following the

reasoning through, at pages 379-380, at the top of

page 380, said:

The condition of the driver -

that is the one in which the four people were involved

~- in itself could obviously not touch any of

these questions.

He sets out the questions j:hat are_ the _ is sues in the

trial, that is, whether the applicant was negligent,

whether his negligence was of the quality required

by the charges and whether his negligence caused the

death:

The condition of the driver

that is the other vehicle

in itself could obviously not touch any of
these three questions but the manner in which

the driver of the Fiat -

C2T22/l/JH	38	9/4/90
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that was the other vehicle -

handled his car at the relevant time might

well touch upon them, and if and in so far

as any evidence as to the way in which the driver handled his car might have the more

readily been accepted or rejected if there

was evidence as to his condition, the

latter evidence would be logically relevant.

I dwell upon the phrase "might have the more

readily been accepted or rejected" as indicating it

has not got to be conclusive; it bas jyst ~ot to touch

upon a matter which, I submit, that the evidence

of possession - in the final result here they ruled

it out as being too tenuous. One of them at

page 380 point 8 gave no evidence to the suggestion

that the condition of one had been detrimentally

affected so all of the evidence was ruled out.

I have made the proposition before that the evidence need not conclusively - prove that - - -

MASON CJ:	There is no need to take that any further.
MR CUTHBERT:	Thank you, Your Honour.
MASON CJ:	That point has been made.
MR CUTHBERT:	Criticism is made in the judgments in the

Court of Criminal Appeal about the admissibility of

evidence of collateral issues causing a trial within a

trial and reference is made to that in TOOHEY's case

and I will merely give the Court the reference to

TOOHEY's case, at page 604 and page 608.

(Continued on page 40)

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MR CUTHBERT (continuing): And in BURNS case, to which I

have already referred, the fact of a trial within

a trial did not prevent the reception of the

evidence in that case. Mr Justice McPherson put

it on the basis that if Detective Horton had

lived and had gone into the witness box and

when asked, denied that he had ingested heroin,

could evidence have been called in rebuttal of

that. He ruled that evidence could not be

called in rebuttal, because it would be collateral.

But of course the whole issue here is whether it was relevant or not. Then the classic statement

occurs in HITCHCOCK, the one to which reference

is given, that occurs at page 42 in the reports,

where he said:

that the test, whether the matter is

collateral or not, is this: If the

answer of a witness is a matter which

you would be allowed on your part to

prove in evidence - if it have such a

connection with the issue, that you would

be allowed to give it in evidence - then

it is a matter on which you may contradict him.

He goes on to say -

Or it may be as well put, or perhaps better,

in the language of my Brother Alderson -

Which is a slightly different and it would seem a slightly more liberal test than what he is

proposing. HARRIS V TIPPETT that was a case of:

A witness for the defendant was asked in

cross-examination, whether he had not
attempted to dissuade a witness examined

for the plaintiff, from attending the trial.

He swore positively, that he had not.

The evidence to contradict that was not allowed.

Justice Lawrence said:

I will permit questions to be put to a

witness as to any improper conduct of which

he may have been guilty, for the purpose of

trying his credit; but, when these questions

are irrelevant to issue on the record, you

cannot call other witnesses to contradict

the answers he gives.

Those two :o.ld_ cases,I submit,.indicate what

might be regarded as the last century view on

this and it is interesting to note that the latest

Australian- in Cross, Third Edition, refers

to this at page 461 and 483 to 484, that a different

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view might these days be taken of a case such

as HARRIS V TIPPETT.	I leave the Court with
Cross's comments on that.	We then come to a line

of more recent cases, the first to which I would

refer the Court is BUSBY:

The appellant was charged with offences

of burglary and handling stolen goods.	He
was alleged to have made certain remarks
to the police when interviewed about the alleged offences which were not specific

admissions but were very damaging. At his trial he did not give evidence, and on his

behalf two police officers were cross-
examined to establish, inter alia, that the

appellant -

there is a mistake in the headnote. It should read

"had not" -

made the remarks aforesaid and also that one

officer, in the presence of the other, had

threatened a potential witness for the

defence to stop him giving evidence. Both

officers denied that they had threatened

that witness. The witness was then called.

Thereupon the Crown objected.

Objection upheld.

Held, that for the above reasons the trial judge had been wrong to refuse to admit the

witness' evidence, for the statements said
to have been made to the police were of
outstanding importance and the defence should

have been allowed to investigate the matter .

..... in the judgment, then briefly

at page 82, said:

(Continued on page 42)

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MR CUTHBERT (continuing):

It is not always easy to determine

whether a question relates to facts which
are collateral only, and therefore to be

treated as final, and when it is relevant

to the issue which has to be tried.

He refers to HITCHCOCK:

We are of the opinion that the learned

judge was wrong to refuse to admit the

evidence. If true, it would have shown

that the police were prepared to go to

improper lengths in order to secure the

accused's conviction. It was the accused's

case that the statement attributed to him

had been fabricated, a suggestion which

could not be accepted by the jury unless they thought that the officers concerned

were prepared to go to improper lengths

to secure a conviction.

Your Honours, I pause here to say that we are

getting a slightly different concept of relevance

in a case such as BUSBY than we find discussed
in cases such as HITCHCOCK and HARRIS V TIPPETT

but the evidence is admitted to show that they

were prepared to go to improper lengths in order

to secure the accused's conviction.

For what it was worth, the evidence was

there allowed in. Here one might say if the

jury had heard the evidence about Horton's

possession of evidence, they might more

readily have had areasonable doubt about the

confession being fabricated and about the

finding of the heroin in the way alleged by

the police officers.

t\~RSH - the re evidence that a complainant in an

assault charge had previously made threats against

the accused was held to have been wrongly excluded.

The headnote is that:

evidence for the defence of threats made

to the appellant by A. was wrongly excluded

since it was germane not only to the

credibility of A. -

who was the complainant -

but also to the primary issue, namely, whether

the appellant or A. was the aggressor.

At the bottom of page 169 they make reference to

BUSBY's case and at the top of page 170, they say

this:

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The present case is stronger. In

BUSBY the excluded evidence was material

to the quality of the testimony adduced

in relation to the central issue; on the

one side to the alleged admissions and on

the other to the reliability of the officers

who had sought to establish them.

In the case now under appeal, what

Mr James had to say was germaae, not simply

to the credibility of Armstrong but to the

single most important issue in the case,

namely whether it was the Armstrongs or

the appellant who were the aggressors. The

whole thrust of the appellant's case was that

his entire course of conduct had to be viewed

in the light of a legitimate fear of attack.

Evidence that Armstrong had previously

threatened him with violence would have reinforced his own evidence to the same

effect. As such, it was admissible - ~ -

(Continued on page 44)

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MASON CJ: Well, there is a limit to the assistance we can

get from going through all these cases.

MR CUTHBERT: There is, indeed, Your Honour. I am the

first to concede that. MENDY's case to which I

have referred, was a case involving a runner taking

notes from the court and being seen outside the

court discussing the evidence with the appellant's

husband. The husband, when he gave evidence, denied

that such an event had occurred, and it was held

that the evidence of the runner taking notes in

court, going out speaking with thep:ospective

witness could be given, and it was put in these terms -

or rather I suppose on more a question of bias,

they said:

the object was to show that he was so far

affected towards the party accused as to

be willing to adopt any corrupt course in

order to carry out his purposes.

He is referring to an earlier case. So, it is another

example of evidence that, it might be said, strictly

does not go to an issue as defined in the case. It

refers to HITCHCOCK and STAFFORD's case, and a quote

from STAFFORD and said:

Those words apply almost precisely to the

facts in the present case.

He was:

willing to adopt any corrupt course in order

to carry out his purposes .... The witness

was prepared to cheat in order to deceive the

jury and help the defendant. The jury were

entitled to be appris=d of that fact.

I have included the case of PIDDINGTON V WOOD,

decision of thi~ Court, but if one looks at the

reasons of the majority, Mr Justice Dixon at 553,

Mr_Justice Evatt at 559, one sees there they

-dec1.ded the case that the evidence had no logic or

relevance and went to credit only and should not

have been allowed. It is our submission that the

allegation of the planting of the material as against
the finding of it in circumstances described by the

police officers, went to the very root of the defence

and any evidence touching on that should have not

been regarded as a collateral matter.

In relation to the suggested rule of finality as

it is described in the text books, it is pointed out

and I submit that it is a rule of convenience

in order to limit within proper bounds what is

considered by a court of trial, and in a situation

C2T25/l/FK	44	9/4/90
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such as occurred here where, if it can be said

that the possession by Horton had some relevance to

this proposition of the finding, and I submit that
that can be said, it had some relevance to it, then

in a criminal trial that should be allowed to go and

be weighed by the jury and should be allowed to
be explored in front of the jury, and the jury
should, as is said in TOOHEY's case -they were the
best opportunity then of arriving at the truth of

the matter.

Your Honours, I come then to the second basis

on which Mr Justice Dowsett allowed the evidence which he described and I have referred the Court

to that alr7ady.

(Continued on page 46)

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MR CUTHBERT (continuing): Reference is made, Your Honour -

I have described it in my summation as going

rather to the integrity of the Crown case,an

expression, I may say,which is not mine,	I borrowed
it from the late Mr · Dan Casey	but I see that he

could well have borrowed it from one of the cases

that my learned junior found, although I doubt it.

It is similar to the proposition described in

Wigmore, evidence - that is at article 278 -

conduct as evidence of consciousness of a weak cause.

Now, such evidence as is pointed out does not go to

any specific fact in the cause or matter. So it is

not relevant to - one cannot say it is relevant
to this iss~e or to that issue in the matter but,

as he puts it:

but operates, indefinitely though strongly,

against the whole mass of alleged facts

constituting his cause.

Now, one of the early English cases on that is

MORIARTY's case. That is where Moriarty and the

solicitor's crooked clerk, it would appear, went

around attempting to bribe witnesses together

and then the clerk took off on his own, was held

with the authority of Moriarty to attempt to give

evidence about the occurrence of this accident,

and it was held that such evidence, both by

evidence against Moriarty and evidence against the
clerk acting as his agent, was:

rightly received, as amounting to evidence of

an admission, by conduct, of the plaintiff that

he had a bad case.

Mr Justice Cockburn, Chief Justice, said:

The conduct of a party -

this is page 319

-·

·-

to a cause may be of the highest importance
in determining whether the cause of action in which

he is a plaintiff, or the ground of defence, if he

is defendant, is honest and just

he says:

Anything from which such an inference can be

drawn is cogent and important evidence -

as he describes it -

with a view to the issue -

C2T26/l/LW	46	9/4/90
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not, as I point out, going to one of the specific

issues involved in the case but with a view to the

issue. He points out that it is not conclusive,

at the bottom of the page,

that the evidence was admissible, inasnruch

as it went to shew that the plaintiff thought

he had a bad case.

There was a considerable line of English authority

following on that, some of which are referred to

in part B. It received a considerable development

also in the American jurisdiction and that is

referred to in Wigmore. There is just one case to

which I would refer there and that is the case of a corporation to go and interview witnesses and it

is said in the headnote:

if he attempts to bribe witnesses to testify

falsely in favor of the corporation, evidence

of such act is admissible against the

corporation, though there is no proof that it

expressly authorized the act.

I refer then to page 33, the first colunm, point 7:

The leading authority in support of such evidence is an English case -

and he refers to MORIARTY. At page 34, the first

colunm, at point 3 of the page, he said:

His declarations dum fervet opus were acts -

referring to the agent -

Those acts, if shown, would have reflected

upon the integrity of the defendant's case

as presented in court through the medium

of witnesses, and would have tended to prevent

the verdict which was rendered in his favor.

They would have afforded "a presumntion

against the whole of the evidence" for the

defendant, which has served it so well.

(Continued on page 48)

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MR CUTHBERT (continuing):  At point 6 of the page, it is said:

If an honest man by mistake employe a

dishonest one to look up witnesses for him,
and the latter, through excess of zeal,

resorts to bribery, although it was never

thought of by his employer, it is better for

the cleanliness and purity in the
administration of justice, that the facts

should be shown with the fullest opportunity

for explanation, than to exclude all evidence

of the evil acts upon the ground that they were not authorized ..... In such a case all doubt should be resolved, if possible, in

the interest of clean evidence and the

exposure of foul practices.

Now, it is my submission, that we are in that ill-defined

territory mentioned by Mr Justice Dowsett here but

on the second ground that the proper attitude of the

court should have been to allow this matter to be fully

explored before the jury and, indeed, such an

approach, in my submission, is supported by those cases

of MARSH and BUSBY, to which I have already referred

the Court, as cases where the evidence does not go to

a specific issue but goes to the root and when one

looks at the textbook writers on the matter, Cross

indicates that those cases certainly carry the matter

much further than previously had been the case.	I have
given the Court earlier the references to Cross. In conclusion, my submission to the Court is

that evidence should have been admitted on the first

basis as put forward by Mr Justice Dowsett in that

the possession by him might have made the defence

of planting and the non-possession by him more

readily acceptable; that it could have been used by

the jury in considering this allegation of the defence of planting; that it certainly would provide objective corroboration of the possession and that it might have created a real doubt about the police finding of the

heroin and that the accused was denied, as I say, the

oppa.rtunity fairly open to him if that evidence had

been admitted, of an acquittal.

I have nothing further.

TOOHEY J:	Mr Cuthbert, could I just raise one matter with you?
MR CUTHBERT:	Yes, Your Honour.
TOOHEY J:	You are seeking an extention of time, are you not?
MR CUTHBERT:	Yes, Your Honour.
TOOHEY J:	There is a delay, it would appear, of five months which is sought to be explained by paragraph 15 of
the affidavit on page 128.

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MR CUTHBERT:  Your Honours, I understand the processes is in

the department of - - -

TOOHEY J~	Well, I have not asked you a question yet, but I was simply going to draw your attention to the
language at paragraph 15 which is fairly ritualistic
and does not really tell the Court very much by way of events that occurred or did not occur. In other
words, it says nothing as to times when counsel is
consulted or when counsel's opinion was furnished.
MR CUTHBERT:	Your Honour, I have obtained details of that

but I have not got it in affidavit form. If the

matter is still going after the luncheon adjournment,

I can prepare it.

TOOHEY J:	I simply make it as a matter of comment at the moment.
MR CUTHBERT:	Yes, I appreciate -
MASON CJ:	What are the details? Can you give us the details?

MR CUTHBERT:  Yes, Your Honour. The judgment of the

Court of Criminal Appeal was 17 May 1989. Application

for public defence assistance for an application to

this Court, 1 June 1989. Advice was sought by the

Under Secretary of Justice from the Public Defender

whether to grant legal aid on 7 June 1989 and on

21 June 1989, counsel were briefed as to the prospects

of proceeding, that is evidently required by the

Under Secretary of Justice.

(Continued on page 50)

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MR CUTHBERT (continuing): On	6.	July counsel's advice

was received recommending an application; at

the end, 28 July legal aid was then granted; in August then counsel were briefed to draft the

application documents; they were received on

7 · September; on 21 September attempt was made

to file the application and supporting material

by way of a joint application, however, the

deputy registrar in Brisbane refused to accept it.

So it was reworded by separate applications and

eventually filed on 4 October.

I do appreciate that there has been some time

lost, but those are the circumstances that have

been outlined to me. I would ask the Court to

grant the indulgence if it thinks that a special

leave point is involved.

BRENNAN J:  Mr Cuthbert, could I just ask you one further

question. If planting there was, -it. was_ a

planting by Detective Gray, is that correct?

MR CUTHBERT: That is a likelihood, Your Honour; I say

not necessarily. Certainly, Gray was the one
who found it and said, "Look I have found it, here

it is". So, it certainly could be put that of

the four of them, and all four were there, that he

was the one who first drew attention to it.

Perhaps it could be put that that would be the most

likely planting, but would not exclude participation

by each, or some, of the others in it.

BRENNAN J: Otherwise it would be one person putting it there and

one person pulling it out?

MR CUTHBERT: Well, Horton - as it turned out Horton and

Bunton were the two that interviewed Bartling. Gray
and O'Donnell were the two that interviewed my

client. The material would seem to be relevant to

the interrogation of my client, it may well have

been that they had sorted out who was going to

interrogate who, and that since this was in

Wakeley's case,it were to be found by Gray, I do not know, Your Honour, those are all matters that could

well be traversed before a jury in address.

MASON CJ: Yes, thank you,Mr Cuthbert.

MR CUTHBERT:  Thank you, Your Honour.

MASON CJ: Yes, Mr McMillan.

MR McMILLAN:  Your Honours will have before you the submissions

by Bartling.

MASON CJ: Yes, we have those.

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MR McMILLAN:  I would also seek to, perhaps when the Court has finished perusing those, make an application.

MASON CJ: Yes.

MR McMILLAN:  Your Honours, I would seek leave to read and file

an affidavit of Peter Joseph Feeney, sworn 6	April.
Mr Feeney was the prosecutor, as the Court has

heard, and he gives a short affidavit to which is

exhibited the statement which was handed up on the

morning of the second day.

(Continued on page 52)

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MR McMILLAN (continuing):  And, of course, that statement

forms the basis of our application in respect

of proposed ground 2(a).

MASON CJ:  Yes. What is the attitude of Mr Butler to this

application?

MR BUTLER:  Yes, I have no objection to tha 4 Your Honours.

It seems to me not in the nature of fresh evidence

but rather an affidavit illuminating what occurred

before the learned trial judge.

DEANE J: This was not before the court below?

MR BUTLER:  No, it was not before the Court of Criminal

Appeal.

MR McMILLAN:  The statement which is the exhibit was

before the Court of Criminal Appeal but the

affidavit, Your Honours, was not. I was

counsel in the Court of Criminal Appeal and

Mr Feeney could not be contacted in the short

period of time before then. Defence counsel

could not assist, I might say, in how the
statement came to be produced but they were

aware that it was in the possession of the trial

judge and particularly counsel for Bartling,

of course, makes reference to it and it is on

the record.

MASON CJ:	You say it was before the Court of Criminal
Appeal?

MR McMILLAN:  The statement was but not the affidavit

of Mr Feeney.

MASON CJ:  Yes. We will receive the affidavit.

MR McMILLAN:  Thank you.

TOOHEY J:  Does it do more than identify the statement,

Mr McMillan?

MR McMILLAN:  Ne, not really.

TOOHEY J: Well -

MASON CJ: Well, when you say "not really" - - -

MR McMILLAN:  No, it does not; it is a shorthand expression;

no,it does not. It merely puts the affidavit before

the Court; that is all it does.

DEANE J:  Puts the statement.

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Wakeley

MASON.CJ:	The statement before- tbe Court.
MR McMILLAN:	The statement,I should say.
TOOHEY J:	In other words, the statement could go in for
all practical purposes without the affidavit?
MR McMILLAN:	It could, yes, Your Honour. As Your Honours would see from the outline, the applicant,
Bartling, is seeking to have this Court extend -
MASON CJ:	Can I ask you, where is the affidavit?
MR McMILLAN:	Your Honour, I understand it was before the

Court.	I understand it has been handed up in
a folder.

MASON CJ:  We do not seem to have it, Mr McMillan.

MR McMILLAN:  Yes, I hand it up, Your Honour. I do apologize.

I understood it was with papers.

MASON CJ: Mr McMillan, I think we ought to make it clear that

we are receiving the statement as a result of the

affidavit.

MR McMILLAN:	Yes, Your Honour.
MASON CJ:	Of course, the affidavit seems to go beyond merely identifying the statement.
MR McMILLAN:	It does depose to matters which were indicated.

to the Court of Criminal Appeal, Your Honour, which

was not in - - -

MASON CJ:	Yes, but we have considered this on the footing
of your answer which you have said that the
affidavit, after using the equivocal expression
"not really" only identified the statement.

MR McMILLAN:  Yes, Your Honour. (Continued on page 54)

C2T29/2/SH	53	9/4/90
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MR McMILLAN:	Yes, Your Honour.	I would still stay with

the statement itself. I will not seek to have

the affidavit read by the Court.

MASON CJ: Very well, let us proceed with your argument.

MR McMILLAN:  The circumstances surrounding ground 2(a) are quite brief. On the morning of the second

day the statement was handed up to the court.

Immediately thereafter - and this appears at

page 6 of the record, the counsel for Bartling

sought to have a separate trial application

dealt with and that was dealt with by the learned

trial judge by ruling that there would not separate trials. However, commencing at page 9,

counsel foreshadows that there will be an

application for a voir dire in relation to an

alleged confession which had been made by Bartling
to Detective Horton in the presence of

Detective Bunton. The text of that confession,

which was recorded in the notebook of Detective Horton,

is exhibit 1 in the record from page 53 onwards.

That record of interview, which is not signed

by Detective Horton but only signed by

Detective Bunton and Mr Bartling at the foot of the

record, that is at page 58, and was initialled later

by Detectives Gray and McDonnell in relation to

the events that took place at the shed, that appears

at pages 53 and 54 of the record. At page 10 of the

record counsel then says, at line 10:

As I say with the greatest of respect,

Your Honour has in your possession a further

statement which has been supplied to the

Crown and you have knowledge of that

statement. Obviously it enlarges on the

information given to the police in the

first instant and in my submission justice

wouldn't seem to be done under those

circumstances.

TOOHEY J: _ What does that mean, Mr McMillan; justice would	not be done to whom by reason of what?
MR McMILLAN:	Counsel appears to be saying there, and I submit

the only inference that can be drawn in that the

trial judge who was about to embark upon a voir dire
has in his possession a statement which has just

been handed up to the Court.

TOOHEY J: Statement furnished on behalf of the defendant

at whose instance the voir dire is to take place.

MR McMILLAN:  That is so, and he is saying to His Honour, "Well

look, it would not serve the interests of justice

if you embark on this voir dire";, you, the judge mo has

C2T30/1/FK	54	9/4/90
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just had put into his possession this statement,

because His Honour takes it that way and says:

I can't see that. The Crown would

properly supply me with a copy of material

which has been supplied to counsel. If I'm

asked to consider matters on a voir dire

I will consider tham, as I always do, on the

evidence placed before me on the voir dire

and not on the basis of anything else I have

read.

To which counsel rejoins:

That i_s why I said with. the greatest of respect.

(Continued on page 56)

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MR McMILLAN (continuing):  And, His- Honour goes on

furt:r:er, at line 30:'

You may be quite sure that any application

I have to consider will be considered on the sworn material before me on voir dire.

I will disregard anything else I may have read.

Counsel:

I had no doubt in my mind but I felt I

should put that on the record.

That is the eKchange that takes place and the judge's attitude to the submission made by counsel. There was

. '

then a voir dire conducted. The only witnesses were

Uetective Bunton and the applicant, himself, gave

evidence. If I could take the Court to the ruling

of the trial judge - that is at page 40 onwards and,

in particular, if I could take the Court to page 41

at approximately line 42. He has canvassed the fact

that Detective Horton cannot give evidence; he is not

there:

So I am left simply with the evidence of the

accused and Detective Bunton. Of the two

I accept the evidence of Detective Bunton in preference to that of the accused.

I have had regard to the fact that the

allegations by the accused of threats are made

against a man whose version the court is now

unable to hear and was said to have been made

at a time when only the accused and that

deceased police officer were present and that,

of course, is a matter which I have found not

to be so.

He is dealing there with the threats made, so the

accused said, by Detective Horton in the absence of
Detective Bunton.	What had happened, Your Honours, was

-that~Bartling was taken back from the shed to the

Broadbeach CIB with his girlfriend. They waited

downstairs whilst those two police officers and the

other two went to the house at Tallai. When the
police expedition returned, Bartling was taken
upstairs to an interview room and he says, in the
course of his evidence on the voir dire, whilst

Detective Bunton was out of the room, Detective Horton

made threats and the threats were that he would either

lay on him some heroin or he would involve his

girlfriend in the matter and the accused admits that

he made the statement so the sole question which the

trial judge had to decide was the voluntariness of

the confession. He did that, as I have shown to the

C2T31/l/JH	56	9/4/90
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Court, by assessing the relative evidence of

Bunton and Bartling.

TOOHEY J: 

But, is the mischief that is said to have been

caused, or does that mischief lie in the contents
of the statement as being at variance with

evidence given by your client on the voir dire?

MR McMILLAN:  No, not at all, Your Honour. The mischief

is this: that the trial judge when conducting a
voir dire is only concerned with whether the

confession,alleged to have been induced by threats or promises, was voluntary or not. Now, to arrive at that, the court must assess the credibility of the

witnesses before it on the balance of probabilities

with the Crowh having the onus to discharge.

(Continued on page 58)

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MR McMILLAN (continuing):  Now, if there is before the Court,

albeit quite unusually a statement given by
Bartling within the previous 24 hours, in which he
confesses to the alleged offence and goes over

some of the material contained in those notes,

which is the subject of voir dire, it is our

proposition that in those circumstances, the trial

judge should have retired from the trial itself,

because he should not have proceeded to conduct

the voir1::. dire. And we would rely, principally,

on the line of authority that has developed in this Court in the last 10 years or so, that no bystander could have, or a fair-minded observer,I should put

it, might entertain an apprehension of bias, in

those circumstances.

TOOHEY J:	I am not sure that you have yet answered the question
I have put to vou Mr McMillan.  I am not asking
you to take us, for the moment of the detail of the statement, but what is it that is said of the statement that somehow. made it unacceptable for
His Honour then to conduct the voir dire?
MR McMILLAN:	Because, in that statement, the accused is

admitting to these offences and admitting facts

which inculpate him that goes against the truth

of his evidence, which he is about to give on

the voir dire, because when the judge comes to

assess, it is our submission, the truth or

otherwise of the witnesses, he has before him this

very statement· in which there is no suggestion

of threats having been made.

We do not take issue with any variance there

may be betweenthe statement and the notes.

MASON CJ: But the occasions are legion in which a judge

excludes from his consideration knowledge that he

has of material that is not admissible and is

inconsistent with the case presented by one side.

(Continued on page 59)

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MR.McMIT.I.AN:  Well, that is the attitude, Your Honour, taken

by the court below.

MASON CJ: Well why is it wrong?

MR McMILLAN:  We say it is wrong because the circumstances

which were exemplified in the judgments are

nowhere ~ear as mischievious as this situation.

That is our submission. That court judges are -

MASON CJ: Well it is all a matter of degree.

:MR McMILLAN:	What is a matter of degree? I mean these matters of perceived bias are all matters of
degree.

McHUGH J: But this statement does not say anything about

whether the confession was voluntary or not, does

it? It does not touch on that subject.

MR McMILLAN:  It is very similar to the confession which the

Crown was seeking to put before the court in

exhibit 1, Your Honour~ The only difference is

this that, in respect of the confession, exhibit 1 -

we will call it that- was, according to the

accused, induced by threats. The statement which

-wasput before the court that morning was not

induced by threats and was voluntarily given.

There was no argument about that. So that is the

distinction. The judge is called upon to embark

on an assessment of the credibility of witnesses

and he has before him, a matter of minutes before,

a statement, not induced or tainted in any way

and he is required to embark upon this inquiry.

That is, we say, quite distinctive from the every-

day occurance in our courts where judges hear

submissions on evidence. They must hear what it

is first and then rule on its admissibility and

then proceed with the trial.

(Continued on page 60)

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McHUGH J:	But even if the statement was identical, what
difference would that make? I mean, if threats had been made they may have got a true confession

· out of him but it does not throw any light on

whether or not the statement was voluntary, does

it?

MR McMILLAN: Well, it affects the assessment, we say, of

the judge in arriving at the credibility as he

did do.	He said, "I prefer the evidence of Bunton
to that of the accused".	So, he had made an

assessment and we say that an impartial observer

would say, "Yes; but it was an assessment made

immediately following the receipt of this

statement".

McHUGH J: Is it because the statement was made by the

applicant? Is that where you say the problem

lies or would it be equally true if the statement

had been made by someone else bearing on relevant

issues?

MR McMILLAN:  Yes. Peculiarly so by the applicant because

the applicant is addressing the very matters that

are before the judge in relation to exhibit 1. He

is saying, "Look, I did commit these offences." He

goes into greater detail.

It is our submission that questions could not

have been directed to the applicant as to whether

he had committed the relevant offence. In other

words, he could not have been asked by the

prosecutor, "Did you in fact commit the offence?

Is, in fact, the document true or not?" If that

is so, then there is jeopardy to the applicant

in having his account of what happened on the

day concerned, when the exhibit 1 was taken,

assessed by the trial judge.

(Continued on page 61)

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MR McMILLAN (continuing):  I will take the Court to authorities

later on that but, in particular, in the article of

Mr Neasey as he then was, in (1960) 34 ALJ 110,

the author of the article addresses this very point.

McHUGH J: There is a Privy Council decision on this point,

is there not? Why are you taking us to this

article?

MR McMILLAN:  I am taking the Court to the article at

page 111 for the purpose of showing the quandary

in which the trial judge was placed when arriving

at his assessment. I take the Court to half-way

down the first column on page 111:

It is submitted however that the result

of the accused being liable to be asked, and

bound to answer questions of this type -

that is, questions as to the truth of the confession

itself -

may be most unfortunate in its results, for the

following reasons: -

1. If the accused admits that the confession

is true, reasons of public policy will place

an undesirable burden upon the mind of the trial

judge when he addresses himself to the question

whether the confession is voluntary or not.

And that underscores our submission that when the

trial judge came to make up his mind, then it was

an undesirable burden which had been placed upon

him by this document coming into his possession

a matter of an hour or so prior to the voire dire.

(Continued on page 62)

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MR McMILLAN (continuing): The applicant says that the correct

testforthisCourt to approach the matter is that

enunciated by the Court in LIVESEY, (1983) 151 CLR

288, especially at page 293.

MASON CJ:  We are familiar with LIVESEY.

MR McMILLAN: Yes, Your Honour.

MASON CJ: You do not need to take us to that.

MR McMILLAN: Is this an appropriate time?

MASON CJ: We may go on for a little, I think,

Mr McMillan.

MR McMILLAN: If I could take the Court particularly to the

judgment of the Court in LIVESEY at page 198,

at the foot of it, and this bears, particularly,

on the approach taken by the court below because

the court below, in the three judgments delivered,

was concerned to show that judges by training
would be regarded in the connnunity as being persons
who can put to one side, matters such as the
statement when they embark upon the consideration

of the voir, dire, and I take the Court to that

passage starting with:

It was submitted on behalf of the Association that a reasonable observer would be aware

of the ability of any judge of the Court of

Appeal to put from his mind evidence heard and

findings made in a previous case and to decide

the case at bar impartially and fairly on the

evidence led in that particular case. As we

have already indicated however, we do not
consider that a case such as the present is
to be resolved by reference to the ability
of the members of a particular court or the

public confidence in the integrity of the

judiciary. What is in issue in the present

case is the appearance and not the actuality

of bias by reason of prejudgment. The
reasonable observer is to be presumed to
approach the matter on the basis that

ordinarily a judge will so act as to

ensure both the appearance and the substance
of fairness and impartiality. But the
reasonable observer is not presumed to reject
the possibility of pre-judgment or bias.

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MASON CJ:	But that was a previous adverse finding by the judge.
MR McMILLAN:	That is so, Your Honour.

TOOHEY J: Well, does that mean that if& before the trial begins

or shortly after the trial begins, counsel seek

some ruling from the trial judge as to the admissibility

of evidence contained in the depositions, that having

given that ruling the trial judge must thereafter

disqualify himself?

MR McMILLAN:  It depends on the circumstances, Your Honour,

as to what the ruling is directed to. Now, there is

always a safeguard here of matters of necessity.

Now, one could envisage a situation,and it is referred

to by Mr Justice McPherson,that the applicant here

could just keep on going through the supreme court

judges. It is submitted that that would not happen in this case because this statement should not find

its way ever again before a judge presiding at a

criminal trial, so the judge would not be affected

by this particular statement.

Now, the circumstances as postulated by

Your Honour Mr Justice Toohey really need some refinement.

It depends on what the judge is being asked to rule on.

This is an unusual case. The circumstances probably may

not arise again in this. form but the principle that we

seek to have this Court accept is in relation to the

peculiarity of the statement getting before the

court a matter of hours before and dealing with the

same issues raised in exhibit 1.

(Continued on page 64)

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MR McMILLAN (continuing):  We say that the issues in this

case throw up the special leave point referred to

in the affidavit filed seeking leave and that this

Court would so hold.

Your Honours, as to the second ground,

ground 2(b), it raises the similar issues raised by our learned friend earlier and we do not believe we
can advance the Court's knowledge any further than

what is already before it on that point. Unless there

is anything else that the Court requires assistance on,

those are our submissions.

DEANE J:  Was Detective Bunton cross-examined in the trial

to the same effect as on the voir dire? That is, to

say, was it suggested that the confession had been

induced by a threat?

MR McMILLAN:	Yes, that is so.
DEANE J:	So, the evidence, for practical purposes, was the

same?

MR McMILLAN:  It was the same. So, the jury had the same

cross-examination before it.

MASON CJ:  Thank you, Mr McMillan. Mr Butler, we might call on

you at this stage to obtain from you your outline of

submissions.

MR BUTLER:  Certainly, Your Honour. I hand up my outline of

submissions, Your Honours.

MASON CJ:  The Court will now adjourn until 2.00 pm.

AT 12.53 PM LUNCHEON ADJOURNMENT

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UPON RESUMING AT 2.02 PM:

MASON CJ:  Mr Butler, we need not trouble you on the point

relating to apprehended bias.

MR BUTLER:  Thank you, Your Honour. May it please the

Court, if I may first refer to the _summary of relevant

material that my learned friend has handed up. I would

particularly direct Your Honours' attention to page 2

of that document in the paragraphs which both precede
and follow the heading, 'police activities followir:g

completion of the investigation." As I understand it,

Your Honours., the information in both those

paragraphs was not either before the trial court

nor, indeed, before the Court of Criminal Appeal.	I
understand that it has been obtained by the
applicants from a subsequent inquest.	I was not

provided with a copy of this surmnary until just before

the appeal commenced this morning.

In my submission, the material in those two

paragraphs is of the character of fresh evidence and should not be received, in my respectful submission,

by this Court. It is material which, if it comes

from the inquest and, in fact, I myself have no

instructions in relation to this and I have not had an

opportunity to examine when an inquest was held or,

indeed, what the evidence was before the inquest, but

if it comes from that, it seems it comes from a source

later in time than both the trial and the hearing
before the Court of Criminal Appeal.

In my submission, it would seem that the decision

of this Court in MICKELBERG V REG, 167 CLR 259,
would prevent the reception of this material.

(Continued on page 66)

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t-R BUTLER (continuing):  The fact of this material no~ it

seems,being available really highlights the

position in which the learned trial judge found

himself and I would direct my submissions in

relation to the ruling of the learned trial

judge on the basis of the material that was

before him.

Your Honours, if I could, just firstly

before I go to the body of my submissions, indicate

how this matter first came before the learned

trial judge. It was first raised in the

cross-examination on the voir dire by counsel

for Bartling and the passage has already been

referred to·~our Honours at page 27 of the appeal

book where counsel for Bartling at lines 25 to 30

put to Detective Bunton:

I take it you're aware as to Mr. Horton

dying from what appears to be an overdose

of drugs?

And she answered:

I believe it was a contributing factor to

his death.

He asked her:

Do you know the type of drugs that were involved?

And she says:

I was told it was a combination of THC,

cocaine and heroin.

It is clear from the nature of her answers that

what she was saying was not from her own knowledge

and presumably she had some knowledge of the

pathologist report in relation to this matter.

~ That cross-examination upon the voir dire,

Your Honours, preceded the application by the

Crown prosecutor to have His Honour consider the

admissibility, as he put it, of the evidence of

the pathologist. The learned Crown prosecutor

would have, in my submission, gathered from that

cross-examination that it was most likely, indeed,

certain that similar cross-examination would be

directed to Crown witnesses upon the trial.

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MR BUTLER (continuing):  He, in that situation, was

entitled, I would submit, to seek a ruling as

to the permissibility of such cross-examination.

Indeed, simply on its face, the cross-examination

here would seem to have been impermissible,

because it was directed to adducing what was

clearly hearsay evidence. Now the - - -

TOOHEY J: But if the matter itself was relevant, might

there not have been an obligation on the Crown,
once it had been raised, even in the form in

which it was raised, to have called post-mortem

evidence?

MR BUTLER: Yes, that may well be so, Your Honour, and in

fact that no doubt was a factor bearing upon the mind of the Crown prosecutor, when he raised with

the learned trial judge the fact that he had the

information available from the pathologist's

report and indicated that he would be speaking

to the pathologist and foreshadowed that he may

call the evidence, if indeed it was admissible,

and it was from that ~hich appears at page 42 of

the appeal book at about line 25 that the
discussion before the trial judge preceded. The
learned trial judge expressed a preliminary view
that, although the fact of death was admissible,

the cause of death was not, but he specifically

invited defence counsel to make submissions upon

that and the matter was adjourned to the following

morning to hear those submissions.

In that argument which preceded on the

following morning, Miss Dick, who was counsel for

Wakeley, advanced her grounds for the admissibility

of this evidence. At this time I would remind

Your Honours that. really what was being spoken

about was the admissibility of the evidence upon

the Crown case. There seems to be no suggestion

anywhere that the defence was specifically seeking

to lead it upon their case and indeed, at this

point in the trial there would be no need for them - t~ indicate that.

(Continued on page 68)

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MR BUTLER (continuing): But it did go beyond that eventually

because the issue arose as to whether

cross-examination should be allowed on that

specific point, but prior to that the judge asked

the Crown prosecutor to outline the facts that

were available and that was done at page 48 of

the record book, commencing at about line 10, and

it seems, Your Honours, that those are all the facts

that were made available to the learned trial

judge in relation to the matter. The facts really

were that Sergeant Horton had died some time between

3 am and 8 am on the following morning and that he

had, in his blood, levels of alcohol and opiates,

and that those included the metabolized products

of herion.

TOOHEY J:	Mr Butler, on the basis which seems to be
uncontroversial that questions asked of the other
detectives could only have produced hearsay
answers, how would the question of cross-examination
really arise, unless questions were directed at
the pathologist?

MR BUTLER: Yes, well that is so, Your Honour, unless in

some other way the evidence of the other officers

became relevant to these issues and, in fact, the

learned trial judge did, in making the rulings

upon these matters and I will come to it in a

moment, Your Honour, allow a degree of scope to the

defence to cross-examine on issues such as the

to
alleged planting of the drugs. But, answer the pathologist were called, if, in fact, no more

was available then the bare facts which were

presented here by the Crown prosecutor, then

questioning of any of the police witnesses would

have been simply inviting hearsay responses.

(Continued on page 69)

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DEANE J: Except the evidence did indicate that Detective

Bunton had found the body and, if you read the

question and answer at the top of page 28, there

seems to be a pretty clear information once one

has the benefit of facts that one does not know

about, apparently, that they were all engaged

in the same premises together, so the answer is

not quite as frank as perhaps one would have

hoped.

MR BUTLER:  She says here; "We just packed up and were

taken down to the police station".

DEANE J:	But the questioner is assuming Mr Horton was
staying in a room somewhere.
MR BUTLER:	Yes.
DEANE J:	She does not correct that, but she indicates that
they were all in together.
MR BUTLER:	Yes. Well that, as Your Honour says, with the

benefit of the other information that appears

clearer.

DEANE J:	You see, may it not be that if cross-examination
had not been blocked off in advance, the first
question in the trial may well have been, "What part did you play in the detective's death?"? And if it had then emerged that, again not paying regard to facts we do not know about, there had been
a party the night before; that two of them had come
in and found the man on the floor at 3 am and just left him there, and another had found him dead from
a drug overdose and alcohol at 8 am, the trial would
have taken on a completely different aspect?
MR BUTLER: Well, that is so	.. Certainly I do not contend that

that additional intormation is not conceivably

relevant. In fact, my submission really would

be this, Your Honours, that relevance is a matter

of_degree. It is trite to say that evidence is

-admissible if it is evidence of a fact in issue,

or evidence of a fact relevant to a fact in issue,

but nevertheless evidence of a bare fact which taken

alone may not be relevant to a fact in issue, may

become relevant if taken in conjunction with other

facts. Now that, I suppose, is stating the

obvious, but in my submission, really that is what

the position was here, that the fact that this

officer has the products of heroin in his

bloodstream when he died, taken alone was not

relevant to a fact in issue, and the two issues

really which seem to mear-ise upon the trial,

Your Honours, are, one, the liability of the confessions,

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which were terribly important, and two, whether or
not the police properly found the drug at

the house.

DEANE J: Is that the practical way of looking at it? I mean,

here we have the man in charge of a drug squad

raid dying from a combination of drugs and alcohol

on the very night of the raid and we have the trial

judge effectively saying,"Not only need the Crown

not lead evidence of that·, but I will not allow

cross-examination about the cause or circumstances of

his death". Now, how can that be justified as a

blanket proposition at the beginning of this

criminal trial?

(Continued on page 71)

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MR BUTLER: 

We are at a point where the questions had been

asked in the way in which appears from the voir dire.
It was not raised, in my submission, in argument
with the learned trial judge, that a cross-examination

of the type Your Honour has outlined was to be

proceeded with.  It seems to have been put on the basis

that this fact should have been available to be placed

before the jury, namely, that the drug was in the
bloodstream of the deceased.

DEANE J: But, you see, you say that but one reading of what Miss Dick said was, "I do not want to be committed

at this stage until I see how the trial is going but

if you insist on making a final ruling now, I will

put some matters before you as to how it may become

relevant". Now, it may well be that counsel should

have contested the ruling later if they thought it was important and so on but the plain fact remains

that the judge at the beginning of the trial had

said this is forbidden territory.

MR BUTLER: Well, with respect, Your Honour, my submission would be

that the learned trial judge did not go that far in

what he ruled.

DEANE J: Well, that may well be.

MR BUTLER:  And, in fact, in relation to the specific matters

that Miss Dick raised as matters she wished to pursue,

namely, the alleged planting of the drug, the presence

of drugs in Horton's room, the disposition of the

briefcase which had some drugs in it, His Honour

specifically said that cross-examination was

permissible in relation to those matters.	I take
Your Honours, firstly, to - - -

BRENNAN J:  If those matters were relevant, would not the fact

that Horton died with metabolized opiate in his blood

be material particularly to what you have outlined in

4(c) and (d)?

MR B~~R: ~Xt may have become relevant, in my submission,

Your Honour, if those lines of investigation had been

pursued in cross-examination. There was certainly

the potential and with the information that is now

available to us I suppose that potential may well

have been fulfilled, to make it relevant. My

submission really is that the bare fact of the drugs

in the deceased's blood was not of itself

sufficiently relevant.

TOOHEY J: But that rather points up some of the difficulty

that arises here, I think, by focusing on

cross-examination. I appreciate that that is the

way in which it arose but cross-examination may not

have got very far, depending on the answers, of course,

that the cross-examiner got from the detectives,

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but may have got a lot further had evidence been

available from the pathologist from which, for

instance, it might have been possible to draw some conclusions as to when the drug and alcohol taking

began, over what period it continued and other factors

of that sort. It seems to me, although this is not the
way in which it is put by the applicants, that there

is another problem which is not related - in a sense

is related to cross-examination but it arises from

the shutting out of the evidence of the pathologist

which I do not suggested was done directly by

His Honour, but it may well have been thought in the light of his ruling about cross-examination that

it was both unnecessary and inappropriate to call

that sort of evidence.

MR BUTLER:	Yes. Really, my submission would be that it was not shut out by His Honour and that is clear from
the circumstances of His Honour's ruling, particularly
at page 50,  because two of the matters which
were raised, that is, the presence of drugs in the
room and what happened to the briefcase were raised by Miss Dick there at about line 40 and thereafter on page 50, where, in fact, Miss Dick, herself,
raised the matter of the ruling on the matter of
cross-examination.

(Continued on page 73)

-;.._,.

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MR BUTLER (continuing):	His Honour, at that staae,
•  II 1 t:,

~eeme d . to_'. e __ say1.n~, b W~l , . no ruling

is necess.ary at this stage", a:nd she raised

that and His Honour immediately said:

I could see that you could properly

cross-examine on - in relation to the
presence of drugs and what happened to the
brief case - to follow up your suggestion,

the possible planting.

His Honour had earlier said - and it appears on the

page before this - that an alleged planting was a

topic that could be pursued in cross-examination.

He said that at about line 32 on page 49 of the appeal

book. So, His Honour made it clear that all those

matters relating to the planting could be pursued

and then he immediately went on to say:

I am not persuaded that cross-examination on the cause of sergeant Horton's death

should be admitted -

and that was the ruling he made.

McHUGH J:  But, does that not raise the problem? You see, there

seems to be an emphasis in what was said by the trial

judge and by the majority in the Court of Criminal Appeal

that no question is relevant unless you can directly

point to it is relevant to some issue but one of the

most useful aspects of cross-examination is the

probing cross-examination. You have got this fact that this

sergeant, having died in these circumstances - now,

the capable cross-examiner can see all sorts of

possibilities from that which he will explore - no doubt,
you have done ·it yourself on numerous occasions - mat

leads on and leads on. And, if this whole picture had

been revealed before the jury of these detectives

being out that very night drinking. the deceased

detective with .2· alcoho~ in his blood; a

comb-ination of marihuana, cocaine and heroin in his

blood; people bringing him back. The whole aspect of

the case would have changed dramatically.

Everybody's credibility would have been up for grabs.

But, instead, you have a case going to the jury on the

basis; "Police say the accused confessed and that is it."

MR BUTLER:  Yes. Well, it is true if all those matters were

placed before a jury that theycould have considerable

impact, Your Honour. The difficulty was and, in

fairness both to His Honour and all the parties, none

of that material was probably available to any of them.

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McHUGH J:	But, it seems to have risen, really, out of the

procedure adopted. I mean, no doubt, there is some types of evidence which a preaddress ruling is very

helpful but there are other cases and, particularly,

questions about cross-examination, it is very

difficult to see how you can rule in advance except

by on concrete questions, specific questions.

You lead yourself into this terrible mess that this

case has got into.

MR BUTLER:  The learned trial judge had before him a specific

piece of information and that is really all he had

before him. He had no basis other than a general

assertion that the planting of the drugs may be an

issue upon the defence cases yet no basis advanced

as to why that specific piece of information should be

admissible. He was in a situation, in my submission,

and it is not an irrelevant situation and, in my

submission, not an irrelevant consideration when

looking at relevance and admissibility, that taken

alone the information could have led the jury off on to

a false course. Now, it clearly may have a degree of

emotional impact to say that the police officer
involved in this matter had heroin in his blood when

he died the following morning.

(Continued on page 75)

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MR BUTLER (continuing): That may be an emotional impact

that has no probative value or logical value in

relation to the issue of the propriety of the

investigation on the previous day and it is

really necessary, in my submission, for courts

in considering relevance to analyse the fact

which is said to be relevant to a fact in issue
to determine whether it truly is as opposed to,

with respect, taking a more broad-brushed approach

and saying, "Well, it may have tainted the

investigation if one knew that this was so".

There are very many inferences which were

available given that one had only the bare fact

that there ~ere the products of heroin in this

police officer's blood. There are very many inferences which were available as to how it

might have got there.

BRENNAN J: Quite, but if you look at the propositions

again in your 4(c) and (d) which were legitimate

areas for inquiry, if counsel for the accused

had had possession of evidence available before

the jury that Horton had died with heroin in

his blood or metabolized products of heroin

in his blood, the first question that could

have been asked of any of the police witnesses

is, "Where could Horton have got heroin?" Now,

one can think of a variety of answers each one
of which, I would have thought, might well have

been a rich vein to mine for counsel for a

defendant.

MR BUTLER: Yes. Well, the learned sentencing judge asked

or attempted to answer that question, in fact,

Your Honour, at page 50, at line 10, where he

said:

There were at least three possibilities:

self administration, deliberately; self

administration, accidentally, or
_,_	administration by some other person.

That:is going to how he might have had it in

his blood but, of course, it has repercussions

for what Your Honour posed and that is where
he might have got it from and there are a number

of other assumptions which one has to draw if one is to say that the fact of his having the

heroin in his blood :is relevant to whether or
not an issue in the trial - specifically whether

or not the police had properly found the drugs

in the house the previous day. The sorts of

things one really must assume are that he had

knowlingly ingested heroin. I mean, if it is

going to have any relevance to the planting,

it must have been something he did with self-

awareness,not something that happened accidentally.

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McHUGH J: Well, the suggestion is that he must have smoked

the THC because that is the only way it could

have got into his body. I must say, speaking

for myself, I regard the THC and the cocaine

in his body as perhaps even more important than

the heroin because it indicates that he had

some other source to get hold of these things quite

independently of this material that ultimately

found its way into the brief-case. I mean,

he must have taken it there or got it from

somewhere, somewhere independently of these

particular accused.

MR BUTLER:	Your Honour's proposition is based upon the assumption that he has ingested it improperly.
McHUGH J: Yes. Well, that is a matter for the jury.	I

know there are other - - -

MR BUTLER: Yes.

DEANE J: Except His Honour's ruling was really on that

basis when you look at page 52. When I say

"his ruling", His Honour stuck to his ruling.

MR BUTLER:	Yes, although one - - -
DEANE J:	I mean, His Honour accepts that the THC had been
voluntarily ingested and says that does not make
any difference.
MR BUTLER:	With respect, His Honour had earlier said, "Well,

there are at least three possibilities for how he

might have got it in his blood" and he accepted

that this was one of them and he said that made

no difference to his ruling.

(Continued on page 77)

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DEANE J: But if we look at page 52, Miss Dick says, in

effect, that the THC must have been voluntarily.

BRENNAN J: "If it was not voluntary, who administered it?"

would have been the next question and the prize

candidates for that, or the answer to the

prize candidates for that would not have advantaged

the prosecution case one little bit.

MR BUTLER: Well that is if one assumes that the people

he was mixing with were the other police officers

involved in the investigation. That is another

assumption, of course, that one has to make and,

really my submission is that it becomes much

easier to make all these assumptions now that we

are being told certain things, but that, with the

benefit of hindsight and the information of the fresh

evidence, the assumptions seem much stronger than

they must have seemed to the learned trial judge.

There are other assumptions that must be considered

and that is presumably, as was said by the Crown

prosecutor, the pathologist's report suggested

he had sniffed this up his nose, it may not have

been a very large quantity of heroin at all. A

very considerable quantity was found in the shoe -

two oun.ces - so one must make the assumption

that if he has improperly had a source of heroin, that in fact it was not the source of heroin that

he improperly came into contact with subsequent

to the events of the previous day, earlier in
the night, but rather something that he had prior
to the occasion at the house, and that is another

assumption that is necessary, that it must be a

large quantity of heroin that he had access to at

that stage, that he had the opportunity or someone

in league with him had the opportunity to place

that in the. shoe. There are a lot of assumptions

that must be made in order to draw the relevance

between the subsequent finding of the drugs in

his bloodstream and the earlier incidence at the

house the previous day.

Now, m¥ submission must simply be this that

taking it alone the fact that he had this substance

in his blood, just was not capable of supporting

the logical conclusion that there had been an

impropriety at the house or, indeed that - if I can

put it in a way it should have been put in the

Crown case, I suppose - the finding by the police

of the heroin was a genuine finding as opposed to

a non-genuine finding,because it had been planted

by somebody. I think it was raised earlier as

to who the planting might have been by, whether it

was Gray or Horton, and I think it was said that

it must be Gray but that probably does not follow if you look at all the alternatives. Gray, on the

evidence, was said to have gone back to the room and

searched these shoes at a later stage in the search

C2T47/l/CM	77	9/4/90
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and I think there was no cross-examination on

opportunity but there may or not have been an opportunity for Horton or for someone else to

have placed those drugs in the shoe, I suppose,

before Gray found them there, but that seems to
me to resolve nothing going to the arguments that

really ~feet the outcome of this appeal.

I think I have really addressediYour Honours,

the arguments which appear in my out ine in

response to the questions directed to me by the

Court .

(Continued on page 78)

...;:._

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MR BUTLER (continuing): I would simply like to make

this further submission in relation to relevance,

and to refer Your Honours to a case in doing

so - the case referred to by my learned friend,

REG V STEPHENSON, (1976) VR 377. It is said

by the Full Court of the Supreme Court of Victoria

in that case, at page 380, at the very bottom

of the page, the paragraph that starts about
line 50:

Although logic is the test of relevance, not all evidence which is logically

relevant is legally admissible. The

logical connection between a fact and the
issue to be determined may be so slight

that the fact is treated as too remote and

evidence of it as inadmissible. In some

cases, such evidence is described as being

irrelevant, an expression which must be taken to indicate that its weight is so

minimal that it does not serve to add to

or detract from theprobability of the

principal issue being established.

And, Their Honours, went on to say that itmight be: described as insuficiently relevant or

too remotely relevant.

But, this concept of remoteness is one that one

finds in the text books also.

BRENNAN J:  Mr Butler, it can be accepted, I would have though½

illlIIl.ediately that the question of whether Mr Horton

died with with substance in his blood, or any

other substance in his blood, does not illlIIl.ediately

prove one thing or the other about the prosecution

case or the finding of the heroin. The real

problem here is the scope or the rule which applies if

it is capable of enunciation - the rule which

applies to determine the scope of cross-examination

on a matter of inquiry that can lead somewhere.

"-·

I mean if, for example, the death with this

substance in the blood leads back to an inquiry

as to what had happened that night and led to a

lifestyle of those who were involved in this raid

together, it may have had a most profound effect

on the inquiry that the court was making. On the

other hand, it may have led nowhere. It depends on

the connecting links between the death of Mr Horton

and the events which were in issue. How does a

judge determine whether the cross-examination is

legitimate or not, before those connecting links

are found?

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MR BUTLER: Yes, my submission, Your Honour, is that a trial

judge is entitled to limit cross-examination so

that the connecting links can be established

without the conclusion being put bluntly before

the jury and my submission is that is really what

His Honour was doing here, that he was confronted with the situation where it was being suggested

that the question would be put, "Are you aware that
there was heroin in the blood of this police officer

when he died early the following morning?" and he

upon the issues that they said were relevant to the trial, namely, whether or not there had been a planting of the drug and it is

ruled that that was not available for cross-examination. cross-examination

clear, particularly in that what His Honour says

about that is within a few lines in one passage

there from his final ruling, that His Honour

was quite prepared to allow counsel to explore all
the issues that might flow from the alleged planting

of the drug.

Now, if counsel had taken the opportunity

which was indicated by His Honour to be available

to them there, well then they may well have reached

a position where they could have renewed the

submission that the heroin in the blood of Horton

was relevant to the issue of the planting.

BRENNAN J: ~e piece of hard evidence that counsel could seize

upon was the death of Horton. In other words, from

the point of view of the cross-examiner, they had

their launching paid. It is no good saying, "You

can cross-examine on these various areas if you

have got a launching pad but I will not let you have

the launching pad", and that is really the problem

here, is it not?

(Continued on page 81)

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MR BUTLER:  Yes, but there are countervailing factors, in

my submission, that must be considered and the

courts, with respect, from an early time have

recognized that and the old English authority of

HOLLINGHAM V HEAD, is one where it is recognized

and, in fact, the passage that I have referred to

from that authority appears on page 381 in

REG V STEPHENSON, (1858) 27 LJCP 241 at 242. It was said there:

"It may be often difficult to decide

upon the admissibility of evidence, where it

is offered for the purpose of establishing

probability, but to be admissible it must

at least afford a reasonable inference as

to the principal matter in dispute. No

doubt the rule, confining evidence to that

which is relevant, is one of great importance;

not only with regard to the particular case to
which it has to be applied, but with reference

to saving the time of the Court, and
preventing the minds of the jury being
prejudiced, and distracted from the point

of issue."

That raises a number of aspects that I respectfully

submit a court should have regard to in determining

relevance. One is, whether a matter is logically

probative; secondly, it is sometimes put in terms of

remoteness but perhaps that is just talking about the

strength of the probabilities that follow from the proposition. Secondly, the concept of restricting the issues contesred before the court and the

finality principle in relation to collateral issues

andcross-examination as to credit is an example

where the law has recognized the necessity of that.

And then, the final proposition is this difficulty

that a jury might be distracted from the true issues

by something that is, although not logically

probative, has a motive impact and that was the

danger in this case, in my respectful submission,

that taken alone there were just too many

ROsaibilities arising from this one piece of

evidence and it had this danger that it might distract

the jury.

Now, the opportunity was there for counsel to

explore the connections including the whereabouts of
the other police officers, the whereabouts of the drugs

that were setzed.·and so on. If they had explored

those possibilities, they may have been in a position,
for example, to say, as now seems to appear from this

other material, that the deceased was for a large

part of the night with other officers. It is still

not clear from the material to what extent that is

exclusive but - - -

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DEANE J:  Except, if you look at page 48, there are two

statements by the Crown there which would be

likely to put any such inquiry off. I am referring

· to the question and answer at line 12 and the

question and answer at line 39.

:MR. BUTLER:	I am not certain why Your Honour says that.
DEANE J:	Well, you see, it spells out the detai1 leaving

out on what is now suggested that at 3 am he was

left unconscious on the floor by two of the other

three police officers and then goes on to assert in

unqualified terms that those who worked with him

considered him to be a persorr with strong views against

the use of drugs. If it emerged that two of the

three people concerned had seen him in his state at

3 am and apparently simply left him, it would have

created a diametrically opposite impression to that

that those two statements give.

(Continued on page 83)

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MR BUTLER: Well, with respect, I am not certain if I would

entirely agree with that, Your Honour an~ of course,

I am not certain of the source of the learned

Crown prosecutor's information here, but - - -

DEANE J:  I was not suggesting anything against the Crown was the picture that was conveyed. prosecutor, I was just simply pointing out that that

MR BUTLER: It simply follows, and I accept this fully, that

further information could give added relevance to

what was presented to His Honour here and that

really takes me back to my original submission that

a fact which is not of itself relevant to a fact

in issue may become relevant to a fact in issue when

seen in conjunction with other facts, and - - -

DEAN J: And it also, I suppose, takes you back to you original

proposition that I, at least, am asking you questions which take account of information which we should not properly have before us on the authority of MICKELBERG?

MR BUTLER:  Yes, Your Honour, and that makes it very difficult,

but obviously, if Your Honours accept my submission

that this is fresh evidence which should not be

properly before this Court, it is something which

Your Honours will have to put aside and determine

this matter upon the information as it was available

to the learned trial judge. My submissions really

are that when you look at it as it was available to the
learned trial judge, that relevance, seen in the

light of the concepts which are mentioned, including

this danger of distracting the jury from their true

purpose, and that was determining the issues on

the trial, existed and the way in which His Honour

dealt with it at this point in the trial was an

appropriate response.

BRENNAN J:	I suppose you could say that the proposition put to the trial judge was, ''.Is evidence of this fact
relevant to the facts in issue?" And he correctly
gave an answer in the negative to that proposition,

- and:- that would govern by the admissibility of

evidence in-chief and of evidence in cross-examination.

The only problem about it is that it does not, if that

is the way in which it was approached, address the

question of cross-examination by way of probe.

MR BUTLER. Yes. My submission really is that His Honour did

not restrict that when one reads his ruling in its

full context, including what he said about the
issues raised by counsel, namely the planting and

the whereabouts of the drugs, particularly in the

room. I would submit that His Honour, in ruling,

was not intending to restrict probing on all those

matters. I suppose it must go with that as to what

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weight should be given to the affidavit material

which was placed before the Court of Criminal Appeal

from counsel in the trial. That was rejected and

not accepted by the majority . and,,in my submission,	that was proper in the circumstances of this appeal
that one should consider the ruling of the trial
judge upon the material as it occurred before him
and that his ruling should not be interpreted in the
light of the impression that counsel drew from it.

If that were to be the case, it really would

leave open a rather confused situation on appeals

with counsel saying they had misunderstood ·a

judge's ruling.

(Continued on page 85)

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1'1R BUTLER (continuing): The other thing that I would refer

Your Honours to, simply just by the reference to

the evidence, is that the defence never perceived these

issues at all. I suppose my submission really is

that His Honour had left the issues and in my point 4

available to be cross-examined upon, and, of course,

the defence could have led evidence. They could

have led the evidence of the pathologist if they
had have sought, or at least they could have made

an application to the learned trial judge at a later

stage to do that, particularly if they had followed
some of these lines of cross-examination. It is

not really possible to say why they did not do that

except, perhaps, that they may have been mistaken

as to His Honour's ruling. Alternatively, there

may have been tactical reasons why they did not

proceed with it.

But His Honour Mr Justice Williams, in his

judgment, has canvassed this and he points out -

and this is information which does not appear in the

appeal book but he points out at page 80 of the
appeal book and page 81 that there was no suggestion

for the defendant,Bartling,of planting of the drug	·
in cross-examination and that there was no

cross-examination on these other issues, including

the presence of heroin in Horton's room. It does seem,

though, that in submissions by counsel and in the

addresses of counsel for Bartling, a suggestion of

planting was raised at that stage.

Also in the judgment of Mr Justice Williams

at pages 85 and 86 of the record, once again he

indicates that there was no specific suggestion of

planting although, as has been pointed out before

in the passage at the bottom of page 85, there was

a suggestion from which an inference could be drawn

that heroin was planted contained in the question

and answer shown at about line 45 to 50 at the

bottom of page 85. That seems to be as far as it

was taken. There was no suggestion anywhere

o~ the source of that material or who might have been

.~ re-sponsible if it found its way there without the

accused being involved. And once again there was

no cross-examination and His Honour pointed that

out at the top of page 86 of the appeal book, lines 8

to 18. There was no cross-examination as to the

presence of heroin in the room or the whereabouts of

the briefcase.

I would not wish to take my submissions any further

except to simply say in a general sense in relation to

my learned friend's reference to authority that all

of the cases referred to really are cases where -

in those where evidence has been admitted are cases

where it could be shown that the evidence did go

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to an issue in the trial, for example, in BURNS V REG

and then REG V BUSBY, it went to the issue of whether

or not the confession had been made. And this Court,

in JACKSON V REG, (1962) 108 CLR 591, said that:

all the circumstances surrounding the making -

of an alleged confession and -

which tend to show either that it can safely

be relied upon or that it would be unwise to

rely upon it are admissible.

(Continued on page 87)

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MR BUTLER (continuing): And so some of these cases are

cases that really go to that point.

DRISCOLL V REG;' 13-7 CLR, was an example of

the application of that principle, where

evidence was allowed as to a conversation that

had passed between a solicitor and the police

officer, which had bearing upon the reliability

of the confession. Of course, on the facts of

this case, in my submission , this evidence of the
opiates in the bloodstream does not bear upon
the reliability of the confessions at all.
Other cases referred to by my learned friend
are cases where there is a specific issue in
the trial that logically can Le demonstrate~ to be

relevant to the evidence which was admitted and

if I could.very briefly just say in REG V

BUCHANAN, which was referred to by my learned friend,

it is pointed out there at page 12, that the

evidence which was admitted was evidence of

driving much earlier in time in a fatal accident,

but it was said by Their Honours that there was

a connection between the two because of other

evidence admitted to by the accused as to his

affected by liquor, so that the earlier

driving was relevant to how much he was affected

by liquor. So there was a specific issue that was

addressed there. In REG V COLLINS, the
specific issue before the ·court was whether or

not the drug was in the person'spossession for the

purpose of sale and proof that he was an addict

was directly relevant to that issue. So my

submission in general,reall¼ is that when one

analyses these cases that the courts have rather

carefully identified the issues in the trial.

The one case where the great difficulty

which is involved is seen, in my submission, is

PIDDINGTON V BENNETT AND WOOD PTY LTD, a decision

of this Court, (1940) 63 CLR, page 533. In that

particular case the High Court by a 3 to 2 majority

held that the fact that a witness would give in

evidence that he had seen an accident and claimed

,~ Ke-was in the vicinity in order to conduct some

banking business for another person, the Court,

by a majority, held that that was something that

went only to his credit _a:i..;,;d could not be refuted. In

other words, it did not go to a fact in the issue~

Even though there was evidence that the banking

transaction, which he said he had carried out, had

not been carried out. The bank manager was called

and said that no such banking transaction occurred on that day according to the records of the bank.

And nevertheless, the Court said that the calling

of the bank manager should not have occurred , that

that evidence was simply going to a matter of

credit and thus was collateral.

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One can see the great difficulty that is

faced in determining these matters of admissibility

in some of these cases. In that case I would

page 553, the last paragraph on that page, where

particularly refer Your Honours to the judgment of

he states his conclusion as to admissibility.

Those are my submissions, if it please the Court.

MASON CJ: Thank you, Mr Butler. Yes, Mr Cuthbert.

MR CUTHBERT:  If it please the Court, on three matters~ my

learned friend referred to STEPHENSON; HOLLINGTON V

HEAD; in PIDDINGTON, and in respect thereto might

I merely give the Court the reference to Cross

on Evidence, Third Australian Edition, 461 and

483 to 484 and to Gillies, Law of Evidence in

Australia, 132 to 134. In respect of my learned

friend~ submissions on fresh evidence might I

point out to the Court that our submissions do not

rely for their acceptance upon the receipt by this

Court of any further material than that which was

before the trial judge.

(Continued on page 89)

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MR CUTHBERT (continuing): Certainly, in the summary of

facts that I handed to the Court this morning,

additional material is contained therein, but

we do not rely upon that fact in our submissions.

The third point,made by my learned friend,

was that the defence, he said, could have led

evidence from the pathologist. Your Honours, that

would mean, with respect, a traversing of

the ruling made by His Honour the trial judge at

page 50 and 51 where he said, well I rule the

evidence is not admissible, and it is proper when -

at least, I have followed the procedure that when

a judge has ruled upon a question you do not come

back and have another bite at the cherry, you

abide by the ruling that is there made, and the

ruling was clearly made.

In relation to point 7 in the written outline

of submissions, I do submit that if this Court

finds that the evidence, indeed, was wrongly

excluded, would find that the denial of the accused

of the opportunity of securing an acquittal does

raise a matter for special leave.

MASON CJ: Yes, thank yo½ Mr Cuthbert. Do you have any

repl½ Mr McMillan?

The Court is of opinion that the decision of

the Court of Criminal Appeal in Bartling's case,
in so far as it relates to the conduct by the trial
judge of the voir dire,. is not attended with

sufficient doubt to justify the grant of special

leave to appeal. Bartling's application, so far as

it rests on that ground, is therefore refused.

Otherwise the Court will consider its decision in both applications.

AT 3.04 PM THE MATTER WAS ADJOURNED SINE DIE

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