Penney v The Queen A18/1997 [1997] HCATrans 420 (11 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A18 of 1997

B e t w e e n -

MICHAEL ROSS PENNEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 11 DECEMBER 1997, AT 10.42 AM

Copyright in the High Court of Australia

MR K.V. BORICK: If the Court pleases, I appear with MR A.J. REDFORD for the applicant. (instructed by Scales & Partners)

MR P.J.L. ROFE, QC: If the Court pleases, I appear with MS J. McGRATH for the respondent. (instructed by the Director of Public Prosecutions (South Australia))

TOOHEY J: Yes, Mr Borick.

MR BORICK: There are five matters which I raise in support of the application. I will first list them and then deal with each one briefly. First, there is an important and significant conflict of authority between the South Australian Supreme Court, on the one hand, and the Western Australian and Northern Territory Supreme Courts, perhaps also the Federal Court, on the other hand. Second, given the degree of incompetence of the investigation in this case, it is a suitable vehicle for this Court to decide on that conflict. Thirdly, this case sets an important precedent and, I would submit, a dangerous precedent that proof of an unhappy relationship is in itself sufficient to prove a motive to kill.

Fourthly, there is a real potential for a miscarriage of justice to have occurred in that the accused lost irretrievably a chance of being acquitted due to the incompetent investigation, and, fifthly, if special leave is granted the applicant would have a chance of success. In summary, there is a conflict of authority; the case is a suitable vehicle; it sets an important precedent; there is a real potential for a miscarriage of justice and the applicant has a chance of success.

Dealing with the issue of conflict of authority, in our submission, and supported by authority, cases of Wyatt, Williams, Hallett and Boyce v Nunn, where there has been an incompetent or a deficient police investigation, the appropriate test for an appellate court is to inquire whether there has been a risk of prejudice. The test proposed by the Court of Criminal Appeal, which is set out in paragraph 2 of the outline of oral argument, namely, that the relevance of demonstrated inadequacies in police - - -

TOOHEY J: Can you direct us to the page, Mr Borick, please?

MR BORICK: It is on the first page of my outline of oral argument.

GUMMOW J: No, the application book.

TOOHEY J: In the application books, where are we to go?

MR BORICK: It is at application book 782, 783 starting at line 35:

The criticism of the failure to retain the objects referred to and the failure to examine the appellant's clothing appear to be well based and it was appropriate for counsel to bring them to the attention of the jury. However the relevance of these matters is limited. If expert evidence called as part of the prosecution case had been controversial, as may have been the case if the technical services branch officer expressed opinions, then these shortcomings may have been relevant to the quality of that evidence and the extent to which the jury could rely on the investigations and opinions of someone who had performed such an investigation. However this was not the case. If further investigations had been carried out and the objects referred to retained there is a possibility, although it is not certain, that the experts who did give evidence could have provided further information to the court. But speculation on what evidence might have been is unhelpful. The jury's function was to assess the evidence which was before it.

And further down in the next paragraph:

Nor was the trial made unfair by reason of the investigation. Mr Borick's submissions to the jury are of some relevance to this court when considering all the evidence and circumstances to determine whether the verdict of the jury is unsafe and unsatisfactory.

Now, that comes down to the proposition that the relevance of demonstrated inadequacies of a police investigation is limited to those circumstances where the inadequacies can be shown to have affected the quality and reliability of the evidence which is actually before the jury and the court held the jury's function was to assess the evidence which was before it. The submission is that that test is too limited and the test suggested by the respondent which is at application book 819 in paragraph (a)

It is only in exceptional circumstances where the investigation has distorted or falsified the evidential basis on which the trial was conducted that an appellate court would need to intervene. Such was not the situation in this matter.

It is suggested that that is even more limited, particularly with the reference to "exceptional circumstances". A difficulty with both of those tests is to work out what they actually mean. The respondent's test appears to imply the need for bad faith or improper conduct on the part of the investigators. Neither that test nor the Court of Criminal Appeal's test, which requires an assessment of the effect on the quality and reliability of the evidence actually presented, permits an investigation of the impact or effect of the absence of evidence.

TOOHEY J: Mr Borick, if you try to bring this down to the circumstances of the particular case, there was a match that was missing. Now, does your submission go so far as to say that whether or not there was any evidence to indicate that that match had anything to do with the circumstances giving rise to the charge that there is a risk of a miscarriage of justice and, therefore, the application for special leave should be allowed?

MR BORICK: The match was not missing. The match was thrown away, as were the contents of the can in which the match was found, as was a rag which was found at the scene and the submission is that if those items had been kept then the defence forensic experts would have had the opportunity to test and examine them further. Whether that test or examination would have provided important and additional information, it is impossible to say because the items have been thrown away, but the submission is that the applicant lost the opportunity to assess that because the investigator incompetently threw away evidence which he himself in his evidence at the committal, particularly in relation to the rag, was vital evidence. That is at application book 63.

KIRBY J: Your client did not dispute that the three items of evidence did exist: the match, the can and the rag?

MR BORICK: No.

KIRBY J: Well, what other possible explanation could have existed for their presence in the motor vehicle? I mean, who else - was it suggested that the wife herself had put them there?

MR BORICK: No.

KIRBY J: Well, who else would have put them there? This was your client's motor vehicle, was it not, this particular one?

MR BORICK: Yes. Well, there were two motor vehicles and both owned in the family.

KIRBY J: But this was the one he normally used, but on this occasion the wife used it.

MR BORICK: That is right.

KIRBY J: Now, how did they get into the car? It is a mystery.

MR BORICK: It is a mystery as to the match. The importance of the match was that it was broken and only the tip of the red head was burnt. That is an extremely difficult thing to do. As soon as you light a red-headed match, the tip almost automatically disappears. Somehow this match got into the car in that state. The investigating officer looked in, saw that and in a tin of what he said was methylated spirits, but he threw that tin away or the contents away, and assumed that is where the fire started. The prosecution case at trial was that the accused lit the match and threw it in.

There are two difficulties with that. Firstly, how did it get in the situation where only the tip was burnt and, secondly, if he had, it is almost certainly there would have been an explosion and there is a great deal of evidence in the case, particularly the soot marks, which the investigator did not examine, which indicated that there would have been an explosion. If there had have been an explosion, then the applicant would have been injured or at least there would be evidence on his clothing. So we cannot explain how the match was there. We can only say that if we had the opportunity to subject that match to a proper forensic examination we may have been able to produce additional information to the court which may have assisted the applicant's case and it is worth remembering - - -

TOOHEY J: But can you be a bit more precise. I appreciate that what you are saying is you did not have the match and, therefore, there are limits to what an investigation might have produced, but is it not incumbent on you to at least indicate that the availability of the match for examination might have - even putting it as low as that - produced some evidence which was favourable to the applicant?

MR BORICK: The difficulty is that we say it might have, but we do not know because we were never given a chance to test it, nor were we given a chance to look at the rag, nor were we - - -

KIRBY J: Presumably these matters were pressed upon the jury. The jury has convicted your client and you are now seeking the intervention of this Court, intervention having been refused by the Court of Criminal Appeal. So you have got to somehow (a) elevate it, if you can, to some general matter of principle or (b) show that there is some miscarriage that has occurred. So really it is up to you to show this. You have got to tantalise us with speculation of what might have flowed from the presence of the match, the can and the rag for your defence, your client's defence.

MR BORICK: Yes. It was before the jury and there is no question about that, but put by the defence in submissions. The trial judge simply referred to the deficiencies as something the defence talked about. The Director of Public Prosecutions said there was nothing really in it. So the jury were left with just a defence saying these things about this investigation, but to come back to the mainstream of my argument, if it is argued there was a risk of prejudice as a result of an incompetent investigation, the Court of Criminal Appeal has suggested one test, which is that you have got to show that the inadequacies could have affected the quality and reliability of the evidence, and the prosecutor says that:

It is only in exceptional circumstances where the investigation has distorted or falsified the evidential basis -

and if either of those tests are accepted, especially if they are extremely limited, and, secondly, an accused in South Australia is not protected if potential evidence standing against a conclusion of guilt is unavailable due to an inadequate police investigation.

KIRBY J: What is the alternative test on offer? What is the alternative test that you are propounding?

MR BORICK: The alternative test is to ask whether there has been a risk of prejudice. An appellant claiming to have been prejudiced by an incompetent investigation ought at the appellate stage not be limited to an inquiry whether it affected the reliability of the evidence or whether it falsified the evidence, because they are matters that go to admissibility. He is entitled to have at least two issues considered. Firstly, is there a basis for the claim to prejudice and, secondly, if that exists, is there a risk that there has been a miscarriage of justice and neither of the tests - - -

TOOHEY J: What about the first? You are not really facing up to the first of those propositions, are you? I mean, you say that the match was thrown away, the contents of the can were emptied, the rag - what happened to the rag? It disappeared, did it?

MR BORICK: Thrown away or lost. What happened was the rag was found - - -

TOOHEY J: Now, one could easily imagine a situation in which an expert called could say one of a number of things, that had that one or more of those objects been available, it is possible that an examination might have shown - well, let us say a case of spontaneous combustion, for instance. Now, that might be enough to raise a possibility of miscarriage of justice, but it seems to me you are not really facing up to the real question as to what prejudice might the applicant have suffered by reason of the unavailability of this material.

KIRBY J: Mr Borick, can I just put what I understand to be what you are trying to say to us, that you have lost the opportunity of advancing the defence that your client had nothing to do with this, that your case was that if he had been guilty of lighting the rag, that that would have caused immediate spontaneous combustion, it would have damaged him, it would have damaged his clothes, it would have risked him and that if you had only had the rag and the can and maybe the match that they would have been available to you to demonstrate that there was no lighting of the match - of the rag by your client. Is that how you are trying to put it?

MR BORICK: No, not quite, but in part. It has to be said against the background that the evidence of the three experts called was that this fire could have started accidentally but it was not possible for the defence to eliminate human intervention. That was the crux of it. It could and was very likely that the fire started as a result of a spark from the boot light switch. All three experts, including the - - -

KIRBY J: Do you say that if you had only had the rag, that that would have helped you establish that it could not have been by the human intervention of the rag and the can?

MR BORICK: At trial we came very close to showing that this was an accidental fire. If we had had the additional information from the match, the rag and there had been a proper examination of the clothing, that may have got us to the point where we could have shown that this fire was accidental and that was the end of the prosecution case. The prosecution case survived - - -

TOOHEY J: Mr Borick, did your experts say this? Did they say - and I appreciate that one or more of them said that this fire might have started accidentally, but did any of them then go on to say, "Our opinion in that respect might have been strengthened had we access to the match, the contents of the can and the rag"?

MR BORICK: That was the effect of the evidence given and it is spread over a large part of the transcript because their evidence was quite lengthy where they were saying that if the matters - talked about the match, the rag, the examination of the clothing had been there, we would have had additional information which may have affected the opinion that we gave and it was - may I just return to the argument I am putting in relation to getting special leave, that the two tests posed, one by the Court of Criminal Appeal and one by the respondent, do not permit an examination of the sort we are talking about now.

You forget about that on their tests and you simply say look at the quality and the reliability of the evidence which was actually before the jury. Now, in Wyatt and Williams and Hallett and Boyce v Nunn, in each instance there was incompetency shown. In Williams there was a failure to check the accused for his alcohol content. In Wyatt a failure to test for bloodstains under fingernails. In Hallett eight witnesses were not interviewed by the police who should have been. In Boyce v Nunn, a judgment of the Chief Justice of the Northern Territory, there was a fight in a caravan park, the accused said to the police, "There is a witness who saw this. He lives over there." The police said, "Don't worry. We are locking you up now. We will get the statement." They never did.

Now, no one knows what that witness would have said and, in fact, in each of those cases the evidence was speculative, but the test that the court applied in each instance, with the exception of the Federal Court who assumed it, was the test that I proposed, namely, the risk of prejudice - - -

KIRBY J: Did you ask the judge to direct the jury along these lines?

MR BORICK: Yes. We said that we had asked the judge to, first of all, say there was no case to answer and we asked the trial judge to direct the jury on the dangerousness of the situation where an incompetent investigation had, in our view, distorted the evidence.

KIRBY J: So you say you reserved this point at the trial?

MR BORICK: Yes, your Honour.

TOOHEY J: I am not clear what you are saying. Are you saying that in the course of some preliminary discussions with the trial judge he was invited by the defence to direct in that regard or that at the end of his direction he was asked to give a redirection? Which is it?

MR BORICK: Invited before to direct the jury and also in redirection, but his Honour made his view quite clear. He simply said to the jury that, "You have heard the - - -"

TOOHEY J: Can you take us to the page where the application for redirection was made?

MR BORICK: It is page 761, the passage in the middle. I said to him:

it is a misdirection of the facts to say the scientific evidence properly summarised gives rise to this conclusion - there were three possible causes: One, human intervention; two, spark or arcing; three, a hot particle. That is not a fair summary of it, particularly putting human intervention first. None of them put it that way. They simply said you cannot eliminate human intervention. They were all strong and consistent on the fact that a spark mixed with petrol vapour would cause a fire or explosion.

My third point is in the course of the direction, just in passing, you referred to the difficulties occasioned to the defence and the jury by the failure to investigate the matter properly. In my submission, that should be pointed out clearly to the jury. This was an inadequate investigation that has caused a real problem for all who came after Mr Carger.

GUMMOW J: You have got to read on, I think.

KIRBY J: The judge says - he picked up your words and he said that:

You were highly critical of what you called a totally inadequate investigation -

did the judge lend his own authority to expressing a test that the jury should take into account in giving weight to the mishaps in the investigation?

MR BORICK: No, your Honour.

TOOHEY J: I rather got the impression from the Court of Appeal's judgment that what was mainly being urged upon the court was that given the evidence of the expert witnesses as to the possibility that the fire had occurred without the intervention of the applicant, that the verdict of the jury was, therefore, unsafe or unsatisfactory. Is that a fair assessment of the way in which the case was argued before the Full Court?

MR BORICK: No. We were putting the argument to the Full Court that they had to consider whether there was a risk of prejudice and we argued that all that happened at trial was that the defence had pointed out all these deficiencies and we never had the support of the trial judge. He simply directed the jury that the defence had raised these, but never added his imprimatur to it at all.

TOOHEY J: Mr Borick, your time is actually up but if you wanted to complete any response to the questions that any of us have just asked you, particularly in relation to the question redirection or, indeed, the direction of the judge, you may do so.

MR BORICK: I have really, I think, put my submission in relation to the special leave point on the incompetent investigation. The investigation is a critical part of the criminal trial process. It is the foundation and if that goes wrong, and it very often does go wrong, then it can be dealt with at trial level to a certain extent, but if it is there - and it is in this case - it exists throughout the case, then appellate courts across the country should know what the test is. Is it the test proposed by the Court of Criminal Appeal in South Australia or is it the risk of prejudice test which we propose and, in our submission, this case - - -

TOOHEY J: Mr Borick, I am not inviting you to continue with your argument because the allotted time has expired. I do not want to cut you off if you were in the middle of answering any of our questions.

MR BORICK: I have not dealt with the issue of motive, which, in my submission, is extremely important here, where motive was treated as being proof simply from an unhappy relationship and my argument, of course, is in the outline but it is the combination - - -

TOOHEY J: We have your outline, yes. We do have your outline, of course, and we have read it.

MR BORICK: Anyway, my time is up.

TOOHEY J: Yes, thank you, Mr Borick. Mr Rofe.

MR ROFE: If the Court pleases, it is my general submission that there is no point of general importance involved and that in effect what the Court is being asked to do is to substitute the view of the Court of Criminal Appeal with a different view of the evidence and the effect of the summing up which without a question of law is not a basis of special leave. As to the adequacy of the police investigation, I submit that there is no conflict between the cases cited by my friend and the approach taken by the Court of Criminal Appeal. His Honour Justice Duggan in the Court of Criminal Appeal at page 783 said at line 8:

This was not a case in which the history of the investigation was such that the evidence actually given was clearly unreliable. Nor was the trial made unfair by reason of the investigation.

In my submission, that is the general test and the application of the general principle that was applied in the cases - - -

KIRBY J: But do you agree that there was propounded an alternative theory of the combustion, namely, the sparks, and that if you throw away the items which are alleged to be the vehicle by which human intervention occurred and by which this accused made the attempt of murder, then you make the position of the defence in establishing that it was not - or throwing doubt on the proposition of human intervention much more difficult, much more difficult just as a matter of practical reality before a jury?

MR ROFE: Certainly that can happen in certain situations. In this case the criticisms of the police officer at the scene were, first of all, that he threw away a broken match found in a tin of methylated spirits in the boot after he had photographed it in situ and after its removal in close up; secondly, that he threw away the contents of methylated spirits in a tin after he had taken a sample of the same and it was analysed as such; and, thirdly, that he failed to keep separated pieces of rag located at the scene and in one case put them together with other rags and raised the possibility of contamination. All those things were raised in evidence. The only - - -

KIRBY J: I realise that, but the lower the point of the instruction to a jury as to how they are respond to it, the more courts condone and maybe even encourage this sort of incompetence.

MR ROFE: With respect, I think if the evidence disclosed that there was any possibility of any cogent evidence resulting from such an examination of those items, then the court would be obviously minded to direct differently or perhaps in an appellate sense interfere.

GUMMOW J: It seems to me the real problem in a way is this hypothesis that on the one hand it was an accident because the spark was fired from the mechanism that shut the boot. That is one theory, is it not?

MR ROFE: That is so.

GUMMOW J: Yes, and the hypothesis that if there was a human intervention, in particular by lighting this substance in the can in the boot, that that was not really of any strength because there would have been an immediate explosion and the human actor would have been in an unhappy situation straightaway.

MR ROFE: That is covered by the Court of Criminal Appeal at page 782 at lines 8 to 16. The point I was making, with respect, your Honour, is, for example, in the defence experts called, Mr Gudmann - 561 - was asked:

Are you aware of that that match had been destroyed by officer Carger.

TOOHEY J: Mr Rofe, before you take us to evidence can you identify on page 782 the particular passage you had in mind in answer to Justice Gummow's question?

MR ROFE: I am sorry. Mr Borick at line 12 - I understood Justice Gummow was saying that the explosion and, therefore, evidence on the person of the accused:

Mr Borick made the further point that the throwing of a lighted match into the boot would have led to injury being caused to the person who threw the match. However, the evidence of Mr Gudmann was that it was a dangerous activity which involved a risk of injury through explosion.

In a sense that went both ways because the evidence as to when the - - -

GUMMOW J: I cannot see at the moment how the vanished match would bear upon that.

MR ROFE: Well, that was the prosecution case, that either way, either the spark from the switch or a match, there were risks involved of an explosion and, therefore, either injury or debris on the accused. The fact was the prosecution said, "Look, this is either human intervention or it is an accident by virtue of the boot light switch." That was what the prosecution expert and the two defence experts came down to. Neither could eliminate either. Neither could be more certain of one than the other. What the Crown said was that the prosecution case, the rest of it, was what ruled out accidental ignition as a reasonable possibility, but the police investigation as to the disposal of the match or the failure to retain it, the defence expert Mr Gudmann was asked at page 561:

Q. Would it have been important to keep that match.

A. Yes.

Q. For what reason.

A. For the reason, to my way of thinking, in my opinion, there is a forensic science premise that basically says `If there is a critical piece of physical evidence or a critical exhibit to a matter, then it should be retained for the purpose of examination by another interested party in the matter'.

Or, alternatively, Mr Kutek, the other defence expert, at 639, in respect of the placing of the rags together at line 11 was asked:

Is that a good practice or a good idea.

A. That's not good practice, no.

Then gave the reason of cross-contamination which was clearly before the jury. So, in my submission, the prosecution case was, whilst we could point to the match, we certainly had no evidence to say that match was the match used to spark the explosion, spark the fire.

KIRBY J: Well, that was the inference clearly that the jury was asked to draw, that such a suspicious thing as a match would be the human intervention that you were looking for to establish the Crown case.

MR ROFE: Yes, it could well have been.

KIRBY J: The bottom line appears to be Mr Borick reserved this. He said it is one thing for the judge to say to the jury, "Well, the defence has said that this is an incompetent investigation", that what ought to have been done was that the judge - and Mr Borick asked this - should lend his office to instruct the jury that they should consider whether or not, given the errors in the investigation, the throwing away of the exhibits, that raised a real doubt as to the case that was essential for the Crown to establish, namely, that it was human intervention and not the other possibility, which apparently was established as a real possibility, namely, sparks.

MR ROFE: If your Honour pleases.

KIRBY J: That is the question: is the judge required to give such a direction?

MR ROFE: In my submission, no in this case on its facts because there was never any evidence and none of the experts could come up and say, "Retention of the match would have enabled us to do X, Y or Z", and it was never disputed - - -

KIRBY J: It is not just the match. It is the rags, the can and the clothing.

MR ROFE: Well, the can, the contents were sampled and then disposed of and it was never established that there was any relevance as to the keeping of the contents. The question of the rag, again, never established any relevance as to what retention of a rag or the placing of a rag in a different position would have established. It was clearly before the jury.

KIRBY J: Might it not have helped an expert to differentiate between a forensic possibility of human intervention in this particular case and the spark theory?

MR ROFE: In my submission, no.

KIRBY J: Because otherwise all the accused had going for him was that if you throw a match into a can there is going to be spontaneous combustion and it is going to be rather dangerous to the thrower.

MR ROFE: With respect, the Crown case was this was a result of an arrangement made by the accused that morning occurring on a deserted road, a pretext of pulling his wife over, a parking of his car so the young son could not observe what the accused was doing at the boot of car and within one to two minutes of the accused's attendance at the boot a fire being observed by an independent driver who pulled over the wife and really all the scientific evidence came to - and the Crown did not rely on the scientific evidence to establish anything more than there were two possibilities, human intervention or accident, and none of the scientists, defence or prosecution, could add anything to that and certainly could not say, "If we had retained the match, we would have been able to do whatever." Simply that it was not good practice for the police officer to dispose in the way he did.

So the strength of the Crown case was - the scientific evidence was called simply to enable the jury to understand the full situation and it was certainly never used either positively or negatively and, similarly, the defence could not take it any further in asking their scientists, "Well, what would the retention of the exhibits have achieved?" They said, "Well, it is just not good practice in these sort of situations to not retain those sorts of things." But it was never disputed that there was a match in the boot of the car found after the fire and all the defence could say was, if there had been either accidental ignition by the boot light switch, there still would have been a gap because that switch operated with a gap before the boot was opened or closed and it operated both ways, so the risk of explosion theory applied to both possibilities, namely, human intervention or accidental ignition from the spark.

KIRBY J: But it did not explode whilst the accused was at the scene and that seems to contradict the throwing of the match into the can because it was observed - - -

MR ROFE: Well, no, only that there was a risk.

KIRBY J: - - - it was observed and that rather suggests that the rag was a sort of a fuse or a wick, a conduit - - -

MR ROFE: The rag had been placed in - - -

KIRBY J: - - - and if that were so then the form of the rag as distinct from the spontaneous combustion at the point - I mean, that is excluded by the fact that the passer-by saw the wife in the car driving, pulled her over, so it did not occur as a spontaneous outburst of fire. It occurred with some sort of slow lead and that, it seems to me, at least potentially, makes the nature of the rag and the nature of the wick or the conduit for the ignition extremely important, at least arguably so.

MR ROFE: With respect, your Honour, that was all thoroughly covered in evidence about external ignition points, internal ignition points. The external rag was the one that had been stuffed in the petrol filler pipe by the accused previously leading back into the boot and all that was explored with all the experts about whether the fire could have travelled externally to internally or the other way around and, of course, if it was the accident of the boot light switch, it would have had to have gone from internal to external within that one to two minutes and there were strong arguments both ways, but, as I said, the case was left as, "Look, there are two possibilities. The experts can do no more for you than that." And my submission to this Court is that the instructions by the trial judge and the examination of the evidence by the Court of Criminal Appeal did not leave them with any suggestion that any miscarriage had occurred either by the failure to direct in other terms or otherwise.

The so-called tests proposed by my friend about police investigation, in my submission, are simply no more than an application of the general principles relating to fairness and reliability to the admission of evidence or, indeed, to the question of whether a fair trial, indeed, could be had and did, in fact, or was in fact had by the accused. It was the presence of the accused in the minute or two before the fire was observed external to the car that was the crucial factor, in my submission, in the prosecution case and that could have been achieved in any number of ways and the only indication that lent positively to human intervention, if you like, was, indeed, the match, but, as the experts said, the fire could have been lit by a cigarette lighter or a match that was never recovered externally and then travelled through to the internal part of the boot.

Of course, the independent motorist only saw the external fire outside the boot on that piece of rag and certainly there is no suggestion in the evidence that retention of any piece of rag or the match itself could have given rise to any cogent evidence that may have assisted either the defence or the prosecution for that matter and in that circumstance the trial judge, in my submission, did direct correctly at page 750 and in his response to Mr Borick on his request for a redirection and that point was covered by the Court of Criminal Appeal on a review of all the evidence. Does the Court wish me to go to the other parts of the oral argument?

TOOHEY J: It is a matter for you, Mr Rofe.

MR ROFE: If the Court pleases. In my submission, Mr Borick's submissions in relation to motive and intent simply reflect what is well settled law in this Court through the cases of Plomp and Wilson, that evidence of possible motive, background relationship is always relevant and as an explanation of conduct or an event and that these were, in fact, simply items of circumstantial evidence which were properly regarded as so by the trial judge at pages 733 to 736 and pages 750 to 755 and regarded as such or as properly regarded by the Court of Criminal Appeal at pages 780 to 781 and pages 789 to 790.

In that respect there was no apprehension - as his Honour Justice Duggan said in the Court of Criminal Appeal, that there was no apprehension of any miscarriage of justice arising. Indeed, in his review of the evidence in respect of whether the verdict was unsafe and unsatisfactory, his Honour Justice Duggan again went back to the criticisms that Mr Borick had made of the inadequacy of the police investigation. If the Court pleases.

TOOHEY J: Thank you, Mr Rofe. Mr Borick, we do not wish to hear from you in reply.

The Court is prepared to grant special leave to appeal in this matter. Could I just raise one matter with you, Mr Borick. There is a mountain of material here in support of the application for special leave to appeal. Can we suggest perhaps that you approach the Registry with a view to seeing to what extent that material could be the material in support of the appeal itself rather than perhaps just reproduce yet again these various volumes in some different form, but that is a matter which you could perhaps take up with Registry.

MR BORICK: I will do that and that would assist us certainly, thank you, your Honour.

TOOHEY J: Very well.

AT 11.28 AM THE MATTER WAS CONCLUDED