Yougarla & Ors v WA

[2000] HCATrans 341

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P12 of 1999

B e t w e e n -

RAYMOND MICKELBERG

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P13 of 1999

B e t w e e n -

PETER MICKELBERG

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 JUNE 2000, AT 10.53 AM

Copyright in the High Court of Australia

______________________

MR M.J. McCUSKER, QC:   May it please the Court, I appear with my learned friend, MR G.H. LAWTON, for both of the applicants.  (instructed by Lawton Gillon)

MR S.P. PALLARAS, QC:   May it please the Court, I appear with my learned friend, MR G. MIGNACCA-RANDAZZO, for the respondent.  (instructed by Director of Public Prosecutions (WA))

McHUGH J:   Yes, Mr McCusker.

MR McCUSKER:   May it please the Court, this matter has had a long history.  Your Honours will no doubt be aware that it goes back to 1983 when the appellants, together with their brother, Brian Mickelberg, were convicted of a series of offences relating to what had been called the “Mint swindle”.  The indictment appears at page 3
and following of the application book and the appellants, together with their brother, as I said, were convicted on all counts.

There followed an appeal in that conviction by Peter.  There was, subsequent to that, a reference back to the Court of Criminal Appeal by the Attorney-General for the State of Western Australia and that was dealt with as on an appeal by the Court of Criminal Appeal in Western Australia in 1987.  There was then an appeal to this Court which granted special leave to Peter Mickelberg and referred the case back to the

Court of Criminal Appeal for a consideration of the whole of the case. That decision of this Court is reported in (1989) 167 CLR 259.

The reference back to the Court of Criminal Appeal resulted in no success for Peter but, following that, there was a second reference by the Attorney-General to the Court of Criminal Appeal and that reference was dealt with by the Court of Criminal Appeal in 1998.  It was a reference of the case of both Peter and Raymond.

The reason for decision of the Court of Criminal Appeal are in the second volume of the application book and as, your Honours will see, are very lengthy.  The main issues on the second reference, so far as Peter was concerned ,essentially concerned the fingerprint evidence against him.  There was, on one of the three cheques used in the Mint fraud, a fingerprint on the top towards one of the edges but not, I should stress, in the corner of the cheque.

KIRBY J:   Now were these the same fingerprints that your client had said in the trial he was tricked into placing on the document by being asked to handle the document by the police?

MR McCUSKER:   No, your Honour.  I was about to mention the significance.  Raymond’s evidence at the trial was that he picked up – bear in mind, your Honours, that he knew, of course, where the fingerprint was located on the cheque but his evidence was that he picked up the cheque by the corners of the cheque so that his evidence did not go to suggesting, from that evidence, that the print must have got there when he handled the cheque because the fingerprint was not at the corners and he knew that.  So, there was no suggestion on his part that he had been tricked into handling the cheque and thereby had placed the fingerprint on the cheque.

Before the Court of Criminal Appeal on the occasion of the first reference, the evidence of the experts at that time or one of the experts, a Mr Warboys, an eminent fingerprint expert from the United Kingdom, was that he was fortified in his conclusion that the fingerprint on the cheque was genuine in that there were no other such prints discernible.  He explained that by saying that if the work was that of a forger one would expect to see a couple of attempts.

McHUGH J:   On the second reference the Crown experts agreed that there was more than one attempt.

MR McCUSKER:   Yes, but they had not discerned on the first occasion.

McHUGH J:   Yes.

MR McCUSKER:   They agreed that there were and Peter Nesbitt, who was an expert former federal police fingerprint expert called on behalf of the appellants, gave evidence that, although it was impossible to tell from the, what was called, morphology of a print itself whether it was genuine or a forgery, by reference to matters extraneous to the morphology he considered that it was a forgery.

One of the matters that he considered was relevant for that conclusion was the fact that there were indeed two other prints which he had discerned and the other experts had failed to pick up previously on the cheque in a place where, as he said, it appeared as though they had been placed there as a kind of experiment and had not been removed.

The circumstances surrounding Raymond’s fingerprint are somewhat extraordinary and the Court of Criminal Appeal has referred to the fact that, although this was the single most important piece of evidence which the investigating officers had on their evidence, because it was a print on one of the cheques used when all other prints – there were, of course, other prints – all other prints, being those of Mint employees, et cetera, had been eliminated, so it was truly referred to as the crime mark.

Despite the fact that that was such an important piece of evidence, no photograph was taken of it, as the evidence of the expert said, contrary to all accepted practice and, more significantly perhaps, although that is a very important and significant factor in itself, we say the fact that on 15 July 1982 there was no attempt to compare Raymond’s fingerprints which were then taken on midday of that day ‑ ‑ ‑

McHUGH J:   Was not a comparison made later that day?

MR McCUSKER:   Yes, your Honour, it was, but the circumstances of that comparison were, of themselves, somewhat extraordinary.  The evidence was that on the morning of 15 July 1982 it was known that Raymond Mickelberg, who was regarded as a prime suspect, and understandably so, I should say at once, was to be brought in for questioning to police headquarters.

Mr Gaspar who was, contrary to the finding that the Court of Criminal Appeal made or the observation it made, Mr Gaspar was, on uncontradicted evidence before the court in the form of documentary evidence, an expert capable of comparing prints which, in itself, is a comparatively simple matter for someone who has some training in fingerprints.

McHUGH J:   The Court of Criminal Appeal seemed to think that he was not properly qualified.

MR McCUSKER:   Yes, your Honour, they seemed to think that but that was not the evidence.  That was not the evidence at all.

HAYNE J:   Does this not begin to highlight a central difficulty?  Let it be assumed that the arguments you now are making are powerful arguments.  What is the consequence of their acceptance?  How is this Court, if it takes the matter, to judge on these issues given the way in which the Full Court disposed of the matter having regard, for example, to the evidence of Mrs Holz and Mr Kucera?

MR McCUSKER:   Yes, your Honour.

McHUGH J:   Could I just add to that?  The highest relief you could get out of this Court would be for us to send it back to the Court of Criminal Appeal to reconsider, is it not?

MR McCUSKER:   We have asked, of course, that this Court consider the evidence and reach a conclusion which we say should be reached as a matter of principle.

McHUGH J:   But having regard to the evidence of Kucera and Mrs Holz and the Court of Criminal Appeal’s conclusions about that evidence, it seems to me it would be impossible for us to find that there was a significant possibility that a jury would acquit one or both of the applicants.  We could only send it back.

MR McCUSKER:   Your Honour has raised, of course, a very important point there as part of the application today and that is whether the evidence of Mrs Holz and Kucera should have been admitted by the Court of Criminal Appeal.

McHUGH J:   That again is a general matter, is it not.  They have power to admit it, have they not?  It is a question of whether, in the circumstances, it should have been admitted.

MR McCUSKER:   Your Honour, Mrs Holz’s evidence was clearly not fresh on any view of the matter.  It was not relevant to any of the issues, that is, it did not go to attack the cogency or credibility of the evidence that was given on behalf of the applicants so the question then is, whether, as a matter of principle, evidence of that nature which, in effect, starts to convert the Court of Criminal Appeal into a trial itself rather than for the determination of whether, on the evidence before it, there is a significant possibility that a reasonable jury might be left in reasonable doubt.

McHUGH J:   Mr McCusker, you would be more familiar than I am with it, but does not section 697 of the Code provide for the admissibility of evidence if it necessary or expedient?

MR McCUSKER:   It does, your Honour.

McHUGH J:   Yes.

MR McCUSKER:   This does, however, raise a very important question as to the function and role of the – that is true that the Code does provide for that.  The question is, in what circumstances should evidence which is not new and which is not related to the cogency of the evidence introduced before the court, be admitted?

HAYNE J:   What then do you say is the issue that was before the Court of Criminal Appeal?  Was it the ultimate issue of whether there had been a miscarriage of justice?

MR McCUSKER:   Yes, it was.

KIRBY J:   On that basis, why is not Mrs Holz’s evidence relevant to determining that ultimate issue?  I think the strength of your argument is that to get to that the Court has to ask itself not whether we would acquit, but whether a reasonable jury might acquit on all of the evidence.

MR McCUSKER:   That is so.

KIRBY J:   Presumably all of the evidence at a further trial would include that of Mrs Holz.

MR McCUSKER:   That raises yet another question, your Honour, as to whether one is to look at it in terms of a further trial which would include the evidence of Mrs Holz perhaps, or whether the jury at the trial, with the evidence adduced by the applicants, was likely to acquit.

KIRBY J:   But how could you say that?  The Court of Criminal Appeal saw Mrs Holz and she deposed to a boastful admission so how could they usurp the function of a jury?  The matter would have to go back to a retrial.

McHUGH J:   And it would be absurd if the Court of Criminal Appeal could not take into account her evidence.  Assume her evidence is so powerful that at a new trial you would conclude that no jury could possibly not accept her evidence.  It would just make a mockery of this administration of justice then to order a new trial in this case.

MR McCUSKER:   I will not pursue the point then.

HAYNE J:   Especially would that be so where, as here, the accused have served the whole of the sentence imposed on them, have they not, and the prospect of new trial is theoretical entirely.

MR McCUSKER:    Not necessarily so, your Honour, but perhaps in practical terms it is highly unlikely.

KIRBY J:   I think you are going to jump out of that boat and into another boat.

MR McCUSKER:   I am, your Honour.

KIRBY J:   Yes.

MR McCUSKER:   One further matter relating to the fingerprinting or the failure to compare on 15 July, there is no explanation that has been given by the police for the failure to compare Raymond’s fingerprint with the crime mark on 15 July at the earliest opportunity which was about midday on that day.

Your Honours, could I put it this way?  If a jury were told, and they were not told at the trial, that the crime mark which allegedly had been located since about 25 June and therefore should have been fully matured, as it were, by 15 July, the crime mark which is the single most important piece of evidence and was in the office, it is alleged, of police headquarters where Raymond was taken, Gaspar was told that morning, on the evidence, to stand by to fingerprint a prime suspect.  That was Raymond Mickelberg. 

Mickelberg was interviewed and questioned according to Hancock in his office in the headquarters that day.  Part of the way through the interview, Hancock broke off the interview to take him to give voluntarily his fingerprints to Gaspar.  The question then is, surely if the crime mark existed, Gaspar would have immediately proceeded to compare it.  He did not, nor was he directed to.  Hancock then resumed the interview and later, as a result of the interview, Raymond was taken to the East Perth lockup and much later that day his fingerprints were taken there as part of an ordinary routine with a number of others who were taken to lockup by a Mr Van Den Elzen.

KIRBY J:   Now, Mr McCusker, all of this, if I were in the Court of Criminal Appeal again and listening to this, it has a very strong forensic power but it does not seem to raise any question of principle.  It is simply a matter of evaluating the significance of a particular argument based on particular facts.

MR McCUSKER:   The difficulty, your Honour, we have is this.  Apart from the Court of Criminal Appeal’s consideration of this there has been no other consideration of the facts and, with great respect to the Court of Criminal Appeal, it got it completely wrong in its conclusion or its explanation which was not given by the police.  No one from the police explained why the comparison was not made so the Court of Criminal Appeal simply hypothesised that Mr Hancock, the detective who was in charge of the investigation, would not have wished to break off the interview because things were going well.

But the fact is, on the evidence, he did break off the interview for the purpose of taking the fingerprints.  The question then is why was not the examination made.  So in that regard we say we can point to clear errors of fact by the Court of Criminal Appeal in its explanation or hypothesis as to why the crime mark was not compared with the fingerprints taken from Raymond.

McHUGH J:   I am not sure you can say there were clear errors of fact apart, perhaps, from the statement as to Gaspar’s qualification.  Can you put your case any higher than to say that on certain aspects they were weak conclusions of fact, given the evidence, or the evidence was against them?

MR McCUSKER:   In the course of the hearing, your Honour, it was put to me by the court that probably the most powerful evidence in support of the application so far as Raymond was concerned was the failure to compare the crime mark at midday on 15 July.  There was no explanation given ‑ ‑ ‑

HAYNE J:   That is to say that of the choices of inefficiency, indolence, stupidity and fraud, the court should prefer the conclusion fraud.

MR McCUSKER:   No, your Honour.  What we say is that a reasonable jury – if the matter were before a reasonable jury there was a significant possibility that that would cause the jury ‑ ‑ ‑

HAYNE J:   That the jury would conclude fraud.

MR McCUSKER:   Or left a reasonable doubt as to whether there was fraud, indeed, given the importance - the high profile nature of this investigation.

McHUGH J:   But your case itself about forgery depends, does it not, on the fingerprint being forged some time between, perhaps, 3 or 4 o’clock in the afternoon and 6 pm that day?

MR McCUSKER:   That afternoon.  Yes, your Honour.  Can I mention there that before the Court of Criminal Appeal on the last occasion it was put to each of the expert witnesses called by the Crown and they were asked whether they were prepared to participate in an experiment to determine whether they could, in fact, distinguish between a genuine fingerprint and a forged fingerprint.  None was prepared to do so.

The evidence was that in laboratory conditions, so called, it is possible to forge a fingerprint.  The problem that the appellants have had throughout from the time of the first reference is that they have never been able to produce a plaster cast or a silicon cast which was capable of producing - that was, was in existence at the time, in July 1982, that is – capable of producing a fingerprint.  We say that was putting the onus wrongly on the appellants given, which the jury before at the original trial was not given, given the undisputed fact that a crime mark, a fingerprint, can be forged so it is impossible to tell the difference between a genuine crime mark, a genuine fingerprint, and a forged one which the jury was not told ‑ ‑ ‑

McHUGH J:   But given other considerations in the case, given evidence about the bank account, the number on the cheques and so on, perhaps there was an evidentiary onus on you to produce one of these casts and say, “Look, here is the cast and here is a piece of paper and we have forged the fingerprint on it”.

MR McCUSKER:   We sought to do that by testing the experts but they would not take part in it.  But, your Honour, what we are saying is before the trial judge the trial jury was told by the judge, wrongly as it turned out, that the fingerprint, they could take it, was an unforgeable signature.  Now, the trial jury did not have the benefit of the expert evidence that that is simply wrong.  A fingerprint can be forged in various ways.

McHUGH J:   I appreciate that but given the context of the case was that really a significant error?  I mean the question was not whether they could be forged but whether or not the police had manufactured it.  That was the issue.

MR McCUSKER:   Your Honour, it goes in this way by steps.  First, there was no evidence before the jury.  In fact, the jury was told it cannot be forged so that closed off the issue.  There was some evidence that there was the taking of plaster casts.  Raymond had a peculiar hobby of doing exact replicas of hands, including his own, taken by the police.  That was disputed by the police.  The evidence of what were the events of 15 July show that there was this opportunity between midday and about 7 pm, I think, that day to have created a forged fingerprint.  The opportunity existed.  The question is, after all, why take Raymond’s fingerprints at midday if it was not for the purpose of comparing with the crime mark if it existed.

McHUGH J:   Mr McCusker, the red light is showing but I think you should disregard that because you have two applications.  So you take a further 20 minutes.

MR McCUSKER:   I am grateful, your Honour.  Thank you.  So if the jury had had, first of all, the information that contrary to the judge’s direction a fingerprint may be forged so it is undetectable, if they had had the information that there was no attempt to compare Raymond’s prints on midday, 15 July, no explanation by the police as to why that was not done, simply as I say the Court of Criminal Appeal’s hypothesis that, perhaps, Hancock would not wish to break off an interview but that is, in fact, what he did in order to have the prints taken from Raymond, then he resumed the interview.  A hypothesis that it was careless or stupid is, of course, always open and it seemed highly unlikely to be one which would be readily accepted by a jury.

McHUGH J:   But does not this question of the manufacture of the fingerprint by reason of the cast involve the assumption that those who executed the search warrant, seeing these casts, then decided to speak, I assume, to somebody who was capable of carrying out this technique.

MR McCUSKER:   Yes, your Honour.  There was an officer within the part of the investigating team who had been, not very long before this, to a school in the United States where it had been explained how fingerprints may be forged.  It was known by the fingerprints experts that it could be done.

Indeed, I should mention that in fairness to the detective concerned, he did not give evidence at the trial that a fingerprint could not be forged.  He simply gave evidence, which was repeated by the trial judge, that is that there had never been an occasion where there had been found to be two identical prints from different people.  The judge took it from that, it appears, to direct the jury that it was an unforgeable signature and that really was quite wrong.

So, your Honours, what we say in relation to these events of 15 July is that they were significant, extremely important.  The Court of Criminal Appeal acknowledged that and in explaining it made what we say is a demonstrable error, two errors.  First, in saying that Gaspar was not an expert.  He was as much an expert as Muhleisen who actually did the comparison in a somewhat casual way, coming back with the prints from the East Perth lockup and said, “Shall I compare them?”

Then we have the hypothesis, it is no more than that, as to what the jury might accept and that is that the failure to compare was due to Mr Hancock not wishing to break off the interview when, in fact, that is precisely what he did.  If one advances a further hypothesis of stupidity or carelessness, then the question then is would a reasonable jury, given all the circumstances, be likely to accept that?

Your Honours, that is dealing with the fingerprint evidence but, turning to Mrs Holz, if I can just briefly, given that Mrs Holz, as your Honours take the view, Mrs Holz’s evidence could be admitted, the question is then how was it to be dealt with by the Court of Criminal Appeal?  The court treated her evidence as being cogent, compelling and so on.  With respect, that was to usurp the jury’s function.

Our submission is that as far as it should and could go, the Court of Criminal Appeal should have said no more than that there was counter evidence which might be introduced at the trial.  But how would it be so compelling and powerful as to overcome the problems which have been identified in the police or prosecution case and if I come to that now, because her evidence was directed to Peter, can I just remind your Honours that Mrs Holz’s evidence was available at the trial, presumably, but she never gave evidence and it was never explained why she did not.

HAYNE J:   The Full Court concluded, did they not, that her evidence was properly described as fresh?

MR McCUSKER:   I do not think so.  They concluded it was new evidence, but hardly fresh.  It certainly was not fresh because it was evidence that would have been available at the time.  Her evidence was that she heard Peter boasting after he had been charged, not quite admissions, but boasting from which one could infer that he was a party to the offence in her earshot.

Mr Holz who was supposed, on her evidence, a direct participant, was not called by the Crown before the Court of Criminal Appeal.  He did give evidence of the trial.  He made no mention of this.  The Crown chose not to call him before the Court of Criminal Appeal.  The explanation given without really any support, in our submission, was that the Crown did not regard him as a credible witness.  So the Court of Criminal Appeal said that was really of no particular significance.

In our submission, before a jury the court simply wrongly viewed this.  Before a jury it would be of great significance that Mr Holz did not give evidence to support that of his ex‑wife, that evidence being given many years after the event, some 16 years after the events and that being from a witness who, on her own account, and, no doubt, this would be more fully explored at trial, had undergone a nervous breakdown and had been under treatment for nerves due to unfortunate circumstances concerning her son.  In other words, there is a real question as to whether a jury would take the same view as the Court of Criminal Appeal took of her evidence at the time.

Turning to the case against Peter, it has always been accepted that the case against Peter, but for this, as it were, deus ex machina that the Crown produced, we say in somewhat a desperate move, to counter the new evidence that Peter introduced, the case against Peter was put to the jury as, essentially, a contest between the police and Peter, the reason being that the main evidence against Peter was alleged verbal admissions which were recorded, according to Lewandowski at the trial, recorded faithfully verbatim in the course of a lengthy interview.

The police account of what occurred in that interview, which was, remarkably, at Belmont police station, well away from the central headquarters and Belmont police station had been cleared, the police account was that he responded to questions, gave answers which were of an incriminating nature, although this Court, on the previous occasion, has referred to the statements, if they were made, as consciousness of guilt but not admissions. 

However, the police evidence was to that effect.  They denied totally that there had been any mistreatment of Peter.  Peter’s evidence to the contrary was that he had gone there, having been forewarned, forewarned by an insider in the police force that he was likely to be picked up by the CIB and beaten, had gone there with, in his pocket, a letter from his lawyer, Mr Cannon, a criminal lawyer, saying that he had been advised that if he was apprehended and questioned by the police his rights were to simply give his name and address and to say nothing and that is what he intended to do, say nothing.

The police referred to that at one stage as “Cannon’s joke” according to Peter and threw it in the corner when they found it in his clothes, he having been stripped before he was questioned, according to Peter.  The other piece of paper he had in his pocket which caused, on Peter’s evidence, considerable anger was a medical certificate of recent date because he had taken the precaution, as had his two brothers, of getting a physical examination, fearful that they were likely to be subjected to physical mistreatment by the police and when the police found this medical certificate from a Dr Guy saying that he was without any bruises, et cetera, according to Peter that caused great anger.

He, nevertheless, gave evidence to the jury that he had been physically mistreated but not so as to cause severe bruising over his body.  He said he was slapped around the face ‑ ‑ ‑

McHUGH J:   Mr McCusker, the evidence of Mrs Holz and Kucera, did that affect only Peter Mickelberg or did it affect both?

MR McCUSKER:   Only Peter Mickelberg, your Honour.

McHUGH J:   Yes.

HAYNE J:   Well, is that right?  See application book 325 line 3.  Really 324 to 325 where Mrs Holz is said to have given evidence of confessions by Peter and Raymond.  At the foot of 324 over to the top of 325.

MR McCUSKER:   This was her statement.  Yes.  Your Honour, I had in mind her evidence that, according to her, earlier at that page Peter had said or:

boasted that the police would never be able to prove that they had stolen the gold.

This is at line 10:

She testified that he said that “He had bought the car through the Sunday Times from a couple and that when he did so he had used a wig and given a false name”.  According to Mrs Holz, Peter said that this was a lot of fun and, particularly when he referred to the wig, “He was having fun out of it.  He was laughing about it.”

She did say in addition that Peter and Raymond “talked about creating alibis” but that is as far as I think it goes against Raymond.

HAYNE J:   And her evidence was classed by the Court of Appeal as “fresh” at 227 line 20.

MR McCUSKER:   Your Honour is perfectly correct and I apologise for that.  With respect, the evidence was not fresh on any accepted view of what fresh evidence is.  It could not be classed as fresh because it was in existence and discoverable at the time.  The fact that it was not, in fact, discovered, according to her, until later is beside the point.  It still was discoverable.

If I can go back to the evidence regarding Peter, however, significantly the court found, having heard evidence from a Dr Guy, the man who had examined Peter after he had been arrested and, according to him, mistreated, the court found that there was a significant possibility that a jury would find that he had been assaulted but then these are, we say, significant and extraordinary words, then only “slapped and cuffed”.

McHUGH J:   I know, but I am a bit troubled about the evidence of the doctors.  If the issue had been voluntariness, then the evidence of the doctor would plainly have been admissible on the issue of voluntariness but it seeks to be put in another way and is it not evidence sought to be used to discredit the police officer and, therefore, strictly inadmissible…..only goes to credit.

MR McCUSKER:   It was led to go to the credit of Peter because at one stage before the Court of Criminal Appeal Peter, who was giving evidence in rebuttal of that of Mrs Holz, was asked by the Court of Criminal Appeal a series of questions about the medical examination so, in response to that, Dr Guy was called.  But, at the trial, your Honours, and this is taken up in volume one page 69, the trial judge’s directions to the jury put it in terms of who do you believe; either you believe the police officers or do you believe Peter.  It starts at line 10 where the trial judge refers to the evidence of Peter as to how he had been maltreated and goes on:

If his evidence in that regard is true then the police officers behaved in disgraceful fashion – there are no two ways about it – and their evidence should be rejected out of hand.

Then his Honour went on to deal with the police officers and asked the jury to consider whether they thought they were honest and reliable and fair.  That appears about line 28 and over the page the same kind of approach was taken.

Now, the fact is that Peter, on the Court of Criminal Appeal’s view, the evidence before the court established that there was a significant possibility that he had, in fact, been maltreated.  That is very significant where the evidence of the police officers is in stark contrast to that of Peter.  If they were lying this is not simply general credit.  If the police officers were found to be lying about the events surrounding the interview, then we submit there was a significant possibility that they would be found to be lying about the interview itself, particularly having regard to the fact that Peter had been arrested with the statement from his lawyer, so he knew his rights but nevertheless ‑ ‑ ‑

McHUGH J:   Yes, I know, but voluntariness was not an issue in it and all this evidence could ‑ ‑ ‑

MR McCUSKER:   No, your Honour.  It was not.  What was at issue was whether he had made any statement.

McHUGH J:   So it is really evidence that seeks to contradict the denials on matters going to the credit of the police officers.

MR McCUSKER:   It gives a completely different version of the events.  If, indeed, Peter, contrary to the police evidence, was assaulted and so the jury were asked to believe, to say, in effect, “Do you believe Peter or do you believe the police?  The police seem honest and reliable.”  Part of the police evidence was they had not touched Peter.  No maltreatment.  The fact that Peter gave evidence that he had been maltreated, if the jury disbelieved that, would tend to support a view by the jury that they could accept the evidence of the police as to the verbal interviews, the verbal statements because none of it was signed, contrary to the evidence of Peter that he had said nothing and no notes were taken.

That was the real issue.  Peter was not saying, “Yes, I made those statements but they were not made voluntarily.”  Peter said, in his evidence, that he made no statements to the police whatever because he was mindful of his rights and he simply sat there, stripped and handcuffed, and taking a beating, but not a beating in the sense of a savage assault but, nevertheless, taking these physical blows and waiting for it to all end and had said nothing at all to the police.

Now, in support of his assertion that he had not made any statement to the police and that there was no note taking in the course of the interview, evidence was called from two eminent experts, forensic experts, Mr Radley and Mr Baxendale.  Your Honours will have seen, I think, reference to their evidence.  That evidence showed that three of the pages of the notes of interview said to have been made contemporaneously and verbatim by Lewandowski at the trial were, in fact, rewritten.

Now, the Court of Criminal Appeal said the rewriting, of itself, has been the subject of various explanations by the police which have been inconsistent, although consistent as between Lewandowski and Hancock, they have been given explanations and that throws some doubt on the veracity of the police evidence, that is Hancock and Lewandowski.

Each time Radley and Baxendale, who were doing a series of tests, came forward with a report and it was seen by the police, they would come forward with a different explanation and there is reference to that view both in our outline of argument and, indeed, in the Court of Criminal Appeal’s findings.

So if a reasonable jury had that before it, the question then is what would a reasonable jury think of it given all of the other evidence that I have referred to, and given that there is a significant possibility it would find that Peter had, indeed, been assaulted.

The Court of Criminal Appeal, however, placed little reliance upon that evidence of the rewriting because it said - it referred to the various things that appeared to have been written that could be discerned, not all could be, the words underneath lifted by this ESDA test did not always show but one thing which the Court of Criminal Appeal thought was of no particular significance but which we say they wrongly took that view was this, that initially, in one of the rewritten pages it could be discerned that what had been written was that Peter said, “I’ve been told to say nothing”.  That was altered ‑ ‑ ‑

McHUGH J:   To sign, was it?

MR McCUSKER:   Rewritten to read, “I’ve been told to sign nothing.”  Now that might seem, of itself, not particularly important until one thinks, well, if a person is writing notes, allegedly of an interview with false notes, and writes “I have been told to say nothing”, he might then think, “That looks a bit odd because he’s saying things, according to our evidence, as I’m writing.”  To change to “sign nothing” takes on a totally different complexion.  In our significance, it was very important and the Court of Criminal Appeal simply glossed over the significance of that. 

So what is this Court to do about it if we are granted special leave, your Honour?  We accept that probably it would have to be referred back to the Court of Criminal Appeal for reconsideration.  We would prefer, obviously, for the matter to be dealt with by this Court, that is to finality, but we can see the problems perhaps inherent in that, although it was an option which, on the previous appearance before this Court, Justice Deane tended to favour but in the end it was referred - Peter’s appeal on that occasion was referred back.

What we do stress, your Honour, is that putting aside for a moment the evidence of Mrs Holz, which would be subject to all kinds of criticism before a jury, the only evidence against Peter of any real importance was the alleged verbal interview and considerable doubt has been thrown upon the significance of that or the veracity of the police evidence as a result of what I have said.  The significant possibility that a jury would find he was assaulted and the experts, Radley and Baxendale, who had been used, as a result, in the Guildford Four and, I think, the Birmingham Six matters and show the police there had falsified their records of evidence, the evidence of Radley and Baxendale shows that contrary to police evidence they had, in fact, rewritten some of the pages. 

McHUGH J:   Yes, I know.

MR McCUSKER:   The evidence of Kucera, your Honour, really ‑ ‑ ‑

McHUGH J:   I think your time is up, Mr McCusker.

MR McCUSKER:   Thank you, your Honours.  Could I just say in conclusion that this is a matter which clearly is of high public importance.  I am not aware of any other case where there has been an appeal followed by two references by the Attorney-General due to a concern about the nature of the evidence.

McHUGH J:   Thank you, Mr McCusker.  The Court does not need to hear you, Mr Pallaras.

These applications raise no questions warranting the grant of special leave to appeal.  The relevant questions of law are not in doubt despite Mr McCusker’s attempt to suggest that they are or might be.  The other issues are essentially concerned with the evaluation of the evidence given at the trial and the new and fresh evidence now put forward by the applicants in the prosecution.  At its highest, if leave were granted, no more would be involved than this Court substituting its opinion for that of the Court of Criminal Appeal as to whether, in the light of all the admissible evidence, there was a significant possibility that a jury would acquit one or both applicants.  However, Mr McCusker concedes that, given the findings of the Court of Criminal Appeal as to the credibility of two witnesses, it would seem that the maximum relief which the applicants could obtain from this Court, if special leave were granted and the appeal upheld, would be an order that the Court of Criminal Appeal reconsider the matter because it had made one or more errors of fact in assessing the evidence.  That being so, the case is not one for the grant of special leave to appeal.  The application must be refused.

The Court will now reconstitute.

AT 11.37 AM THE MATTER WAS CONCLUDED