Connell v The Queen P2/1995 [1995] HCATrans 71 (16 March 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P2 of 1995

B e t w e e n -

LAWRENCE ROBERT CONNELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 MARCH 1995, AT 10.28 AM

Copyright in the High Court of Australia

MR R.V. GYLES, QC: If your Honour pleases, I appear with my learned friend, MR S.J. ARCHER, for the applicant. (instructed by Clayton Utz)

MR J.R. McKECHNIE, QC: If it please your Honours, I appear with my learned friend, MS S.M. DEANE, for the respondent. (instructed by Director of Public Prosecutions (Western Australia))

DAWSON J: Mr Gyles.

MR GYLES: Your Honours, it is our submission that the three questions which have been isolated all relate to basic issues of a fair trial. The first is that an accused must know the case which he has to meet and must be given an opportunity of meeting it; the second is that an accused is entitled, both by statute and common law, to trial by an indifferent jury, and it is that right which is impinged upon; and the third issue relates to the right of an accused to give evidence at his trial without being subjected to prejudicial cross-examination.

Your Honours, as to the first, that is knowing the case to meet, it is, in our respectful submission, abundantly clear that the Court of Criminal Appeal in Western Australia have said that, although the way a case is pleaded, opened by the Crown, closed by the Crown, and the way the evidence is led, notwithstanding those things and the way in which the judge sums up, a jury is entitled to convict by itself going to parts of the evidence and constructing a case for itself never put to the accused. As it happens, your Honours, that case, the only case which has been suggested by the court below, was a case which would have been, if pleaded, flawed, the facts not supporting the charge.

TOOHEY J: Could you be more specific, Mr Gyles.

MR GYLES: Yes, your Honour. May I take your Honours to the relevant portions of the Court of Criminal Appeal decision to show the hypothesis upon which they have said that the conviction could be supported. If your Honours go to page 439 in volume 2 of the book, their Honours say at line 19:

The earlier directions given by the learned trial judge had raised the possibility of another question, namely: "Had the appellant arranged for Hobby to leave the country and to remain outside the country in order to keep him as far away as possible from an investigation which might result in allegations that the appellant himself was involved in the fixing of the race?"

Now, the difficulty with that, your Honours, is that that was never, as your Honours go on to say immediately, was never put by anybody. Your Honours will have in mind that the accused gave evidence and this hypothesis was never put to him. At the foot of the page, line 47:

In our opinion, it was also open to the jury to consider whether the interest shown by the appellant in Hobby was to ensure that the appellant himself was not implicated, albeit falsely, in the alleged race fix.

And then, your Honours, at 443, line 31, after referring to the fact that we had submitted that there were insuperable difficulties with a count based upon that sort of hypothesis, their Honours said:

In our view, there was material which formed part of the appellant's own case which provided an answer to the question repeatedly put to the jury that they should consider why it was that the appellant would have paid Hobby to stay out of the country for so long. The appellant himself said that he could not afford to be implicated or involved in the alleged race fix. The steps he admittedly took, including leaving the State when tipped off about a police raid in October 1983, were quite striking. In our view, it was clearly open to the jury to find that paying Hobby to keep him out of the country to prevent the investigation from proceeding to a prosecution in which he might be implicated, even if innocent of involvement, was part of the exercise in "damage control".

Your Honours, at page 474, line 11, your Honours will find the basis upon which the accused was sentenced:

"Clearly, you were determined to keep Hobby out of the easy reach of those who were likely to investigate the fixing of the horse race. For present purposes at least I accept that at least in the beginning your objective was not the concealment or protection of your guilt. I am inclined to think that it was to protect you from the damage to your reputation which would result from a full investigation of the fraud and perhaps from a prosecution of yourself as well as others.

In the early part of 1983 you had been negotiating large business deals with the Government of Western Australia. One of the deals related to the Argyle Diamond Mine. Your $5,000,000 success fee depended upon its outcome. The situation was sensitive. You were concerned that the rumours and the publicity surrounding the horse race would prejudice your standing with the Government and others. That concern prompted you to act as the jury found you did."

Your Honours, that hypothesis was never part of the Crown case, never put to the accused and not summed up to the jury.

TOOHEY J: But there is an element of reconstruction, no doubt, in those remarks and perhaps in what the Court of Criminal Appeal said, but is the argument that the indictments as such demanded either conviction or acquittal on both counts or that the way in which the trial was run demanded such a result? I am not sure that I really understand the way in which this is being put.

MR GYLES: Your Honour, the way it is being put, and the way it was put is this: the way the case was pleaded - and perhaps I should take your Honours to the form of indictment - - -

TOOHEY J: The indictment is on 115.

MR GYLES: Yes. Your Honours will see that the indictment was to, as far as count 2 is concerned:

to pervert the course of justice, namely a possible prosecution of LAWRENCE ROBERT CONNELL

The way the case was pleaded and presented and put depended upon Connell being the instigator of both the fixing of the horse race and - - -

TOOHEY J: That does not emerge from the indictment, does it?

MR GYLES: No, I concede that, with respect, but it was a fundamental part of the Crown case and the case summed up to the jury.

TOOHEY J: It was really the way in which the case was run that is the basis of your complaint, is it, rather that the indictments demanded a particular result?

MR GYLES: Yes. Indeed, your Honour. Although we note that the indictment pleads the prosecution of Connell and others, not Connell or others, and it relates to the actual defrauding which is in the first count. So that the indictment would most naturally be read as relating to that very fraud in which Connell was implicated. We submit it would be. Our point is a more basic point than that. That is, you cannot run a case on a particular basis which - perhaps to clarify your Honour's thinking: if the accused was found guilty on the first count he could certainly be found guilty on the second count, or he might be acquitted on the second count. But, if the accused were acquitted on the first count on the way the case was run there was no practical possibility of a proper, rational verdict convicting on the second count.

DAWSON J: Is the jury bound by the way in which the case was run?

MR GYLES: Yes, your Honour, I would submit so. The accused is entitled to the benefit of that. You cannot be convicted on a basis which was never put. Can I give your Honours an illustration? There was a case which we have referred to in the submissions of King v The Queen in which, on the last day of the trial the judge had summed up to say that it was a two count case, you would have to either convict or acquit consistently. The Crown Prosecutor complained about that and asked the judge for a direction that you could acquit on one and convict on another, which the judge gave - there being another hypothesis suggested. The Court of Criminal Appeal said that cannot be done. You cannot, at that stage of a trial, after evidence has been led, people cross-examined, jury addressed, change the essential hypothesis which you are putting to the jury.

DAWSON J: That was in a direction to the jury?

MR GYLES: Yes, your Honour, because - - -

DAWSON J: While I am interrupting you, did the trial judge here direct the jury that if they acquitted on count 1 they must acquit on count 2?

MR GYLES: He did not put it that way, he said that you may acquit on one count and convict on the other.

DAWSON J: That was left open to the jury?

MR GYLES: That is all he said, it was left open. Your Honours, in the case of King it was said you cannot change your case, your hypothesis as you put it to the jury, at the heal of the hunt. The Court of Criminal Appeal set the verdict aside and this Court said, of course, that was inevitable. There are many other examples of it. Your Honours, what happened here is, of course, much worse, where the only case put against the accused is that he was covering up his own guilt. That was negatived by the verdict on the first count. It must follow, with respect, on the way the case was put that he should be acquitted on the second count.

The fundamental difficulty which also remains, your Honours, is that if that case, and after all the applicant is now in gaol, considering what two courts have said as to why he is in gaol, if that had been pleaded we submit it would have been demurrable. It could not have been put because to pay somebody not to make false accusations to the police is certainly not perverting the course of justice. It may be other things, but it is not that as the decision in Rogerson would make it plain.

TOOHEY J: But that seems to involve getting inside the mind of the jury somehow. We do not know what influenced the jury, it may well have simply had a reasonable doubt, and apparently did, that this meeting which was really the basis of the first indictment did not take place, or did not take place according to the principle Crown witness. Do you then say that the jury is nevertheless obliged to acquit the applicant in respect of the second count?

MR GYLES: If the Crown went to the jury on that footing, your Honour, yes; if the Crown went to the jury and said, "This is a case in which Connell was covering up his own guilt." There were good forensic reasons for that because they wished - and the passages are in the submissions - to say to the jury, "If you're satisfied as to his guilt on the second count, that will assist you very much in finding guilt on the first, because why would he be paying money and doing these things to cover up something unless it be his own guilt? Therefore you can safely conclude that if you convict on the second, that will help you come to the conclusion you should convict on the first." In other words, the Crown had a very good technical reason for doing it that way.

Having chosen to do that, your Honours, we respectfully submit that they are bound by it, as they are in every other - if this were an administrative law case, it would be said: what a terrible thing; no natural justice has been afforded. This is a criminal trial. The case of Wilkes to which we refer in our submissions, and referred to by the Court of Criminal Appeal, is almost on all fours with this case. King v The Queen, as I have said, is a more benign case than this. Here the accused never had the opportunity of meeting it. The only real question in King v The Queen was whether there should be a retrial or not.

So, your Honours, what is to be made of what has happened? One must conclude from this judgment that the Crown is not bound by the way it conducts the case. We do not have to get into the mind of the jury, your Honours, because we know their mind: they acquitted on the first count. Therefore, the applicant is entitled to, and was then entitled to, every benefit of that acquittal. You cannot say that he was guilty of the fraud alleged. If your Honours go back to page 115, it refers to actual defrauding. That defrauding was not by the applicant.

Your Honours, the other two points - the trial by indifferent jury raises the question of challenge for cause. The Western Australian provisions are similar to, although not identical with, provisions elsewhere, but it is not doubted that the basic principles would be essentially Australia-wide. This case is probably the best case which one could imagine for having the clarification of this Court as to the principles to be applied. In Murphy's Case, in the passages to which we have referred, this Court made it clear that media publicity could amount to a proper factual basis for challenge for cause.

There seems to have been, in the decision of Bush in the Full Federal Court to which we have referred and in the decision in this case, some reading down of that to say you must conclude that the individual juror is affected. In other words, before you can ever ask any questions about it, you have to have proof beyond reasonable doubt that the particular juror is affected or, at least, a proper base for saying that particular juror is affected. The findings of fact in the present case, your Honours, go beyond any findings of fact in other cases, including Cray or Murphy. In those cases, by and large, it was the trial judge who was making an assessment of what the impact would be.

In this case, the trial judge has made a finding of fact that probably a majority of the jury would actually believe that Connell was guilty of the crime as charged. In addition, the trial judge referred to the massive publicity over a number of years which had painted the accused in a very bad light. Now, in our respectful submission, to say that, on the one hand, this Court has said that pre-trial publicity may be a proper basis of a challenge for cause and after all, that repeats what was said in the Court of Criminal Appeal in England in Kray but to say this is not a sufficient basis for opening up the question, we submit, gives rise to a proper special leave point which affects a basic right.

Your Honours, the third point is again, we submit, a fundamental question of criminal procedure. Again, the Western Australian Act in this respect is, in conventional terms, so far as the permissible cross-examination of an accused is concerned. The point at issue, your Honours, has not, so far as I can see, ever been taken up or examined and that is: can an accused who puts his character in issue be cross-examined, not as to any conduct of his own, not as to general reputation, but as to the findings of a domestic tribunal.

DAWSON J: That must go to reputation, must it not?

MR GYLES: I would submit not, your Honour, not in the sense that the authorities would indicate in this area of the law. Granted for the purposes of the argument it may be permissible to ask about the actual involvement of the accused in the incidents themselves and that is, with respect, highly controversial and would require reconsideration of Ratten's Case.

DAWSON J: But even if you are right, the accused was acquitted on the first count, which is where you would expect to see the effect of the cross-examination.

MR GYLES: Well, perhaps not, your Honours, because what we are faced with is that the prejudicial material was let in. It is impossible to know what effect it had on the jury because, with the very greatest of respect, the decision is irrational. There must be some reason for it. Why would the jury take such a widely divergent view of the situation? We submit that it may well have been the prejudice occasioned by the admission of this evidence. We submit it was not admissible, it does breach the rules. Attwood's case, Maxwell's case and so on do not give any warrant for the admission of this evidence, and it presents a very bad precedent.

TOOHEY J: But you really have to go further than to say that the questions tended to show that he had been committed or convicted or been charged with an offence, and I appreciate your argument that this is not an offence, but the proviso to the section also lets in bad character in general terms.

MR GYLES: It does.

TOOHEY J: So you really have to go one step further and say that this evidence was not relevant to bad character.

MR GYLES: Correct; that is the finding of a domestic tribunal about somebody is not evidence which can be led in a criminal trial to establish bad character. That is the point, your Honours, and we submit there has never been any suggestion that that could be led, it has never happened as far as we can tell, and we submit that it is a very bad principle to have somebody cross-examined as to what might have been said about them by somebody else. That is not general reputation.

TOOHEY J: Well, we are not talking about reputation, we are talking about character.

MR GYLES: I agree, your Honour, with respect. That is our point, that you cannot tender as evidence of character what somebody else has said about you. Now, we submit it is a neat point, it is an important point, and it is a point which would demand special leave, with respect.

DAWSON J: Thank you, Mr Gyles. Yes, Mr McKechnie.

MR McKECHNIE: If your Honours please, my friend opened up the first point to this Court as saying it relates to the accused's basic rights to know the case against him and be given an opportunity to meet it. That, in our submission, does not emerge clearly from the grounds before the Court of Criminal Appeal or, indeed, it does now but for the first time.

The issue before the Court of Criminal Appeal was the inconsistency of the verdict, having regard to the way that the case was pleaded, the issue that the Crown joined and the way that the judge summed up to the jury. Now, in our respectful submission, the two verdicts are not, as the Court of Criminal Appeal held after a careful review of the way in which the Crown conducted the case, the issues and the way in which the judge left the case, the verdicts are not inconsistent. My friend referred to King's Case. Their Honours also referred to King's Case. At page 433 they compared King's Case against the facts in this case.

DAWSON J: King's Case was the case in which the direction to the jury was actually changed.

MR McKECHNIE: Indeed, and I would not have thought anybody had a problem with King's Case but their Honours, as I say, say:

This possibility was opened up by the manner in which the trial was conducted on behalf of the appellant himself.

Your Honours, it was not put clearly in any ground to the Court of Criminal Appeal that the real difficulty was that the verdict was a different verdict from the way in which the case had been conducted. On the indictment there is no inconsistency and, as the court has found in going through the Crown opening, the conduct of the case and the evidence, there is no inconsistency in the verdict.

The court specifically rejects the submissions that were made and my friend also made here at page 17 of our outline. At page 441 at the bottom paragraph, having outlined the case, the evidence and the way in which the judge put this case:

In this respect, we are unable to accept the submission of counsel for the appellant that the "practical reality" of the case as pleaded and presented to the jury was that if the appellant was guilty on the first count, that would not necessarily involve a verdict of guilty on the second count, but if the appellant was found not guilty on the first count he would necessarily have to be found not guilty on the second count. While that may have been the way in which counsel for the appellant put the case, it was clearly not the way counsel for the Crown put it, nor was it the way the learned Judge left it with the jury.

Your Honours, I have not the time to go into the facts. It is sufficient only to say that in the end count 1 depended for acceptance on the jury on a meeting on a particular day at a particular time and the evidence of, essentially, an uncorroborated accomplice. The jury was specifically directed to return separate verdicts and look at the evidence separately.

Count 2, on the other hand, depended not only on accomplice evidence but on a wide amount of evidence which a jury might regard as corroboration. All we say that the verdict is consistent with is, in fact, the proper application of principle by a jury, properly directed - there was no complaint about the direction in relation to this - that they had to be satisfied beyond reasonable doubt on each case bearing in mind the way in which the judge left count 1 and the need for corroboration.

Your Honours, really what we say in relation to the inconsistency is their Honours reviewed the evidence very carefully and applied the principles which have been laid down which are clear enough and came to the view as a matter of fact, in this case, that the verdict was not inconsistent with the way that the case had been pleaded and all the evidence in the case.

McHUGH J: But what do you say about the point that is put at page 439 and which Mr Gyles says is a new point: never part of the Crown case and never put to the accused? At the bottom of page 439 the court says that it was open to them to consider because the accused himself had raised these matters.

MR McKECHNIE: They go over and say:

In our view, this issue was in fact raised by the learned Judge in the following passage -

and there set out the issue that was raised by the judge, and then continue on at page 441:

In our opinion, the case was clearly left to the jury on the basis that they could -

It was the way that the case was left; it was the way that the case was fought. The accused gave evidence of the fact. It was a case that he considered important enough to give evidence in relation to that. His evidence in essence was that he engaged in a form of damage control, not amounting to a conspiracy, but having regard to his reputation.

McHUGH J: But that was not the Crown's case. Was it the Crown's case at any stage that the interest shown by the appellant in Hobby was to ensure that the appellant would not be implicated falsely in an alleged race fix?

MR McKECHNIE: I do not know about the "falsely", your Honour. The motive - and I say "motive" quite distinctly - which the Crown put forward as a possibility for count 2 was the accused's involvement in count 1. They put it forward as motive very clearly for good forensic reasons.

McHUGH J: I can understand that, Mr McKechnie, but, as Mr Gyles says, there are real questions as to whether or not that would constitute the offence of perverting the course of justice. But it also strikes me as strange that the Crown can have such a case put to the jury simply because of something the accused says in the witness-box. On that basis the Crown would be able to call evidence in reply to open a completely different case.

MR McKECHNIE: If that had occurred, your Honour, that might be one thing. I come back to where I started, that the issue raised before the Court of Criminal Appeal was the question of whether the verdicts were inconsistent or not perverse - that was denied - whether the verdicts were inconsistent with them.

McHUGH J: I understand how you put it in terms of the generality of the two verdicts, but what concerns me at the moment is this particular point as to whether or not this may not be the reason why the jury did find for the Crown on the second count but not on the first.

MR McKECHNIE: Once we get into the speculative area, your Honour, you can speculate anything about what the jury might have found.

McHUGH J: I know that.

MR McKECHNIE: But what we would prefer to say is that the accused was cross-examined at various stages concerning damage control and the issues that he had taken in relation to damage control. There are passages here which show how the Crown used that in its final address. This is not a case, as there sometimes are, where the playing field goals are moved towards the end of the case by the Crown. The Crown case was as pleaded and, in our respectful submission, wide enough to actually take into account this. It was not narrowed by the Crown. Certainly the Crown suggested count 1 as a motive for count 2 but did not put that to the exclusion of all else and nor, with respect, did the trial judge ever leave it that way to the exclusion of all else. So that when you look at the verdicts, as the Court of Criminal Appeal have found, when you look at the conduct of the whole of the trial, then these verdicts were not inconsistent.

TOOHEY J: Was there any complaint made at trial about that particular direction to which Justice McHugh has drawn attention?

MR McKECHNIE: There were a number of complaints made. I am not sure whether there was a complaint made in relation to the passage of the judgment at page 440. Might I say, before coming back to your Honour's question, that the passages my friend quotes at page 442 and page 474 are, of course, both passages arising afterwards in sentence, and, in our submission, it is irrelevant to take those into consideration.

TOOHEY J: Yes, I was not thinking of what was said subsequently.

MR McKECHNIE: I am not sure of the answer to that, your Honour. I know considerable points were taken following the charge, but I am not sure whether they were taken in relation - - -

TOOHEY J: At page 439 where the Court of Criminal Appeal refers to something which, I take it, is a quotation - well, no, it cannot be, because it uses the word "appellant". It must be a paraphrase of some sort.

MR McKECHNIE: They do say:

In our opinion, in the light of the early directions, that was a question for the jury to consider.

The argument that we come along to meet here is the question of were the verdicts inconsistent. In our submission, a clear answer to that by the Court of Criminal Appeal is no. They looked at this question of whether the way that the Crown conducted its case confined the wide ambit of the indictment, and came to the view that it did not. In the end, all I think I can say to your Honour is to read that passage at the bottom of page 439 together with the rest of the reasoning which their Honours go on to - come to the view at page 445 that ground 53 fails.

Your Honours, in view of time, can I briefly deal with - we say really that paragraphs (b) and (c), which I think touch on this, were not really argued as part of the inconsistency ground at all. I do not think my friend has really argued them orally. They were arguments directed at ground 54. whether there should be a retrial. In our submission, grounds 3 and 4 in the draft notice of appeal were not grounds before the Court of Criminal Appeal. They are essentially new matters.

As to the challenge for cause, in our submission, the trial judge did not, in fact, accept the belief in guilt. If your Honours go to volume 1 at page 228, your Honours see that the submission at the bottom of the page, line 48, was that:

The learned trial Judge had held that a high proportion of potential jurors would regard the appellant unfavourably and that many, perhaps a majority, had the tentative view that he was guilty of the charges which he faced.

It was common ground that Murphy's Case provided the clarification that the learned trial judge had a discretion. Their Honours reviewed what the learned trial judge had done, and that included - there were a number of jurors who, in fact, did come forward and indicate that they were not indifferent to his Honour, and I think his Honour excused some and others were challenged.

So, in our respectful submission, there is no point of principle arises in ground two. It is an application of settled principle to the particular facts as, indeed, ground one is. The inconsistency point is no more than an application of principle to the particular facts in this case. As to the character evidence, one can quickly say two things about it. In our respectful submission, there is no real point of issue. It is a question of character; their Honours defined character in accordance with Attwood's Case and applied it. More particularly on a practical basis, after the cross-examination was allowed, the applicant called evidence to respond to that particular point and the judge effectively took the point away from the jury and said, "Well, if it was as the evidence has been given and it appears that it was, it seems to be very unfair and you wouldn't pay much regard to it".

So, in fact, the judge took that point away from the jury and, of course, they acquitted in respect of count one. Your Honours, in the end what we say in response to the question that your Honour Justice McHugh raises in relation to any inconsistency is that this was a submission made before the Court of Criminal Appeal; they rejected it after a thorough review of the evidence and the way in which the Crown ran its case. There is no point of special principle in it. There is no real difficulty in the law. It is a question of how the particular facts of this case panned out and, in our respectful submission, the Court correctly isolated it, went through the evidence and reached the correct conclusion.

It was not a case in which the Crown sought to change the case on the accused and certainly it was never put forward before the Court of Criminal Appeal as a ground that the accused had an unfair trial by reason of that.

DAWSON J: The trial judge did tell the jury that they must consider each count separately.

MR McKECHNIE: He did, on several occasions.

DAWSON J: Would it be possible to have a doubt on count one considered separately, or to have no doubt about it when considering it in the context of count two?

MR McKECHNIE: Yes, your Honour. In the manner in which the case was actually put, his Honour confined the Crown, or the evidence confined the Crown, to a meeting on a particular day about which there was evidence that that meeting did not take place. That was the uncorroborated evidence of an accomplice as well. So, in our submission, in fact - - -

DAWSON J: Did he direct the jury to consider the counts in any particular order?

MR McKECHNIE: I do not believe in any particular order, but he dealt with them, count one and then count two. But throughout, he separated them and he separated the evidence in relation to one and the evidence in relation to two. This is, in fact, in our submission, not an inconsistent verdict; it is an affirmation of the jury system of a jury considering a trial judge's directions carefully and not being satisfied beyond reasonable doubt as to a particular matter because of defects in the areas and being satisfied as to another matter where those defects were not there, but rather there was corroboration. Your Honours have our written submissions and unless there is any other matter, those would be our submissions.

DAWSON J: Thank you, Mr McKechnie. Mr Gyles?

MR GYLES: Just a couple of points, your Honours. My learned friend put several times that the matter was not put to the Court of Criminal Appeal - that is the first matter - as I am now putting it. Your Honours, that, with respect to my learned friend, is just simply wrong. We do not have in the books the submissions, written or oral, of the Court of Criminal Appeal but I can read to your Honours from the written submissions, paragraph 49, point 2:

The perversity arises because of the way in which the Crown case was pleaded and put to the jury by counsel for the Crown and the trial judge -

and that was developed at some length. There was then a supplementary submission put in which dealt with all of the cases which establish that you must put to the accused the gist of the case that dealt with changes of case and so on and so forth.

TOOHEY J: I notice you use the term "perverse" in the notice of appeal to the Court of Criminal Appeal, but not in the proposed grounds of appeal in this Court; does anything turn on that?

MR GYLES: I have not considered - - -

TOOHEY J: I think I am right in what I say.

MR GYLES: I have not considered that particularly, your Honour; it may just be two different people putting the thing a slightly different way.

TOOHEY J: Well except that you have not really talked about perversity, I think, until now, have you, as opposed to inconsistency?

MR GYLES: No, your Honour.

DAWS0N J: What you are saying is that it was not open to the jurors.

MR GYLES: Yes, we are saying that on the way the Crown case was put, that is they put that the conspiracy to pervert the course of justice was the conspiracy to hide Connell's own guilt, and that was the only case put by the Crown. That being the case, once Connell was acquitted, it followed in this case that he must be acquitted on the second charge. Now that was put, your Honours, very clearly to the Court of Criminal Appeal, all of the relevant authorities were cited - and I have not wearied your Honours with those - and it ended by saying, in conclusion we point out that in addition to the way in which the Crown opened and closed its case, and the way in which the learned trial judge summed up to the jury, the accused was called to give evidence, but was never cross-examined, et cetera. It was put that the verdicts were - they are not technically inconsistent, for the reasons Mr Justice Toohey put to me earlier; they are inconsistent in the way they operated in the context of this case, and so, to that extent, perverse.

Your Honours, a question was asked as to the correction of what was said at page 439. Your Honours, the problem is, there was no such direction to the jury. If the judge had summed up along those lines, then there would have been an immediate application for a mistrial, and according to King v The Queen and a whole line of other cases, it would have been inevitably granted. The Crown could not, or the judge could not, at that point, raise a different hypothesis.

McHUGH J: Well, the court seems to have been saying that that was implicit in the directions and that explains the jury's verdict. Is that the way they reason or am I wrong?

MR GYLES: Your Honour, with respect, what is said by their Honours does not say that, they nowhere say this was put. All they say was there was a general direction that you can convict on one and acquit on the other.

McHUGH J: Well they said the earlier directions had raised the possibility of another question.

MR GYLES: They do not, your Honour, with respect. They say, there was another question which we have framed for ourselves, but it was never put. I think they said that precisely, did they not, your Honour, at page 439, and that is the heart of the difficulty.

DAWSON J: They say it was not expressly put.

McHUGH J: They said it was not expressly put, but they seem to say it was implicit in the directions. Just correct me if I am wrong, but my reading of it was that this is the basis on which they really say, there is no inconsistency in the verdicts, because they say, on the directions there was this question which was open to the jury to consider. Have I read that wrongly, is that what they are saying?

MR GYLES: Your Honour, what they have said is that there was another question which they thing was available to the jury. The trial judge never put it to the jury. That is why your Honour is having difficulty because the Court of Criminal Appeal cannot - with respect, they have done their best. They have got all the passages which might support that hypothesis and none of them implicitly or explicitly raise the issue.

McHUGH J: They say that also in respect of the second question down at the bottom of page 439 as well.

MR GYLES: Which is another way of stating it, again, your Honour .That was never put.

McHUGH J: Does not that mean, Mr Gyles, that your real complaint is that there is defective reasoning in the Court of Criminal Appeal's judgment?

MR GYLES: Yes, it is, your Honour. I suppose that is a better way of putting it and I suppose that is, I suppose, the special leave point if I could adopt that. Your Honours, as to the second point I should say that what the trial judge actually held about publicity is to be found at page 199, lines 40 to 50 and they do support - the trial judge finds what we say he found. It is probably the strongest case your Honours will have to test the proposition.

May I just pick up on one point on the third issue, your Honours, that is the evidence led in relation to the race club finding. It is correct, as my learned friend said, that that cross-examination having been let in, the accused called, amongst other people, his solicitor who had appeared for him to say it was a kangaroo court, in effect, I think in terms. Is that a proper way to conduct a criminal trial?

McHUGH J: It seems more inadmissible than the first - - -

MR GYLES: But, your Honour, once the first step is taken on to the slippery slope, where does one stop? The solicitor is called to say it was a kangaroo court. Do the Crown then call the chairman to say we have always conducted this very fairly? Is a rugby league player now to be cross-examined as to character in a criminal trial because a Sydney silk sitting on an appeal tribunal has said that he had hit somebody on the head with a deliberate tackle?

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

Mr McKechnie, what do you say about the proposition that the real defect here is in the Court of Criminal Appeal's reasoning on this particular matter.

MR McKECHNIE: If I can just find the passage, your Honour.

McHUGH J: It is at page 439.

MR McKECHNIE: Yes, there are two points on that page.

McHUGH J: They seem to be saying, do they not, that the verdicts are not inconsistent because it was open to the jury to take this view of the - - -

MR McKECHNIE: And that the judge put it that way. In our opinion, at the bottom, it was also open for the jury to consider whether the interest shown by the appellant, Hobby, was to ensure that the appellant himself was not implicated albeit falsely. In our view, this issue was, in fact, raised by the trial judge in the following passage.

McHUGH J: You can only spell it out by implication from that next passage if it is open at all.

MR McKECHNIE: It is fairly explicit.

McHUGH J: You would have to read that fairly closely to draw a conclusion that the judge is putting to them that the appellant was interested in Hobby to ensure that the appellant was not falsely implicated. It just seems to be a very general statement.

MR McKECHNIE: What his Honour was putting appears at the first paragraph on page 440 and on page 441 on the passage there as well:

If you are satisfied beyond reasonable doubt that the accused had money paid to Hobby to keep him out of Australia or to keep him from assisting with the police investigation, you will find him guilty on the second count.....As Miss Dean has pointed out to you -

it does not involve a -

look at the evidence -

and the like.

All I can do, your Honour, for a special leave application is to point in very, very short form to their Honours' reasoning. To actually develop the point about inconsistency necessarily of course would take a long time and go through the evidence which, in my submission, I do not need to do. In my submission, the full treatment by the court of the inconsistency point, does not lead to a flaw in reasoning. They are not in fact suggesting ways by which the jury might have convicted that were not, in our submission, fairly before the jury. I repeat again, this, in our submission, perversity was in fact expressly disavowed by my friend in the court below. That is picked up at some point in the judgment, he said, as inconsistency in the verdict. In my submission, questions of the fairness of the trial, while they are important questions, are not questions squarely raised by this, not questions squarely raised and resolved by the court. The court saw a way in which these two verdicts could properly and comfortably sit together and are not inconsistent. If your Honours please.

DAWSON J: The Court will take a short adjournment.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

DAWSON J: In relation to the first ground upon which the applicant seeks special leave to appeal, there is no sufficient reason to doubt the conclusion of the Court of Criminal Appeal that the acquittal of the applicant on the first count and his conviction on the second count were verdicts which were open to the jury. Likewise, in relation to the second ground, there is no sufficient reason to doubt that the Court of Criminal Appeal was correct in upholding the trial judge's decision to limit challenges for cause to those prospective jurors in respect of whom evidence of bias was to be adduced individually.

In relation to the third ground, the Court is of the view that in all the circumstances, including the acquittal of the applicant on the first count, there can have been no miscarriage of justice. Accordingly, special leave will be refused.

AT 11.29 AM THE MATTER WAS CONCLUDED