Green v The Queen P27/1998 [1998] HCATrans 378 (20 October 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P27 of 1998

B e t w e e n -

GRAEME WILLIAM GREEN

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 19 OCTOBER 1998, AT 2.15 PM

Copyright in the High Court of Australia

MR D. GRACE, QC: If the Court pleases, I appear with MS M.A. HARDHAM for the appellant. (instructed by The Office of David Grace QC)

MR J.R. McKECHNIE, QC: If your Honours please, with my learned friend, MS J.A. GIRDHAM, I represent the respondent. (instructed by the Director of Public Prosecutions (Western Australia))

GLEESON CJ: Yes, Mr Grace.

MR GRACE: Your Honours, our submission is that that the effect of the failure of the learned trial judge to properly direct the jury in this matter is to give rise to a substantial miscarriage of justice. This was not a case for the application of the proviso because it could not be said that with proper direction conviction was inevitable. Therefore, we contend that the appellant has been deprived of a fair trial and a real chance of acquittal.

At page 586 of the appeal book his Honour Chief Justice Malcolm, with whom the other members of the court agreed, whilst accepting that error had occurred, applied the proviso, and he does so at line 3 where his Honour says:

It was not a fundamental error of a kind which would exclude the application of the proviso. In the result, I am not satisfied that any deficiency in the direction resulted in any substantial miscarriage of justice.

The court below did not analyse the effect of the failure to direct or the misdirection on the possible reasoning process of the jury.

GLEESON CJ: There were a couple of failures to direct, were there not?

MR GRACE: Yes, your Honour.

GLEESON CJ: Should the trial judge not have directed the jury that if they rejected the explanation of the appellant for the payment, what was corroborative of Mr Radalj was not the lie that the appellant told about the payment, it was the fact of the payment itself?

MR GRACE: There were two aspects to it. What your Honour says is correct but, if the jury rejected the explanation, then the corollary of that would be an acceptance by the jury that what the appellant had said was a lie. It would be a short step for the jury then - and this is in accordance with their directions - to find that the appellant had lied out of a consciousness of guilt.

GLEESON CJ: Where did he direct the jury that the fact of the payment was corroborative of Radalj?

MR GRACE: It is in appeal book 2, your Honours. Perhaps it is easier to refer to the judgment of the court below at page 579.

GLEESON CJ: I was really looking at pages 520 and 521 where he directed them about corroboration.

MR GRACE: Yes. That extract is, in fact, set out at 579.

GLEESON CJ: He seems to have told them that there were two things that were corroborative: one was the telephone call on 5 August and the other was the lie that was told about the payment.

MR GRACE: Yes.

GLEESON CJ: What he should have told them was, was it not, that what was corroborative on the second aspect was not the lie about the fact of the payment, it was the fact of the payment itself?

MR GRACE: But the lie was also significant on that aspect as well as the other aspect of corroboration and two other aspects. One, the credit of the appellant as a witness in the first place, that is, if the jury accepted the lie as such but without going the step as finding it was based upon a consciousness of guilt, then it would affect credit only - so, therefore, his credibility was an important aspect to the issue - and, of course, the outcome if the jury found that the lie was evidence of a consciousness of guilt. So, there were three different ways in which the jury could use the lie or the evidence that surrounded the fact of the investment.

If I could take your Honours to page 521 at line 15 - and that is the passage where your Honour the Chief Justice just referred me to - and just read that paragraph or parts of it:

The crown says not only can you rely upon that as corroboration but if you find that the evidence in relation to Mr Green and the Virginia Standardbreds syndicate was evidence of a sham and that the real purpose of that was to hide the trail, then Mr Green spoke to the police about that. He was telling them lies because he knew that that was a sham and not a legitimate transaction and was a sham adopted to hide the money trail from himself to Radalj for the payment of the contract killer. In relation to the matter of lies and the use of lies in corroboration, you must be very careful because this is a criminal trial and because Mr Green is presumed to be innocent of this offence in using and deciding that the lies can be used to corroborate the evidence.

And then the court went on to give the type of lies direction in respect of details of the lies, the fact that there may be different explanations for the telling of lies in accordance with this Court's judgment in Edwards. Those aspects were the subject of challenge in the court below but the court did not find error in respect of those aspects.

GLEESON CJ: I just wondered whether the simple explanation of why Mr Miller did not object to this direction was that if he had asked for and received an accurate direction, it would not have been materially more favourable to your client.

MR GRACE: Our submission is that it would certainly have been very favourable to our client because it would have highlighted the error that the court below accepted as being relevant to the jury's deliberations on the issue of the credibility of the appellant as against the credibility of the crucial and main Crown witness, Radalj.

McHUGH J: I do not understand that proposition. I can understand the argument about using lies as to corroboration but I do not understand the argument about using lies as consciousness of guilt. Surely, even though the principal Crown witness, Radalj, was a conspirator himself on his own admission, in determining whether or not the accused was lying, the jury were entitled to act on his evidence, were they not? You do not have to have corroboration to determine whether or not somebody is telling lies.

MR GRACE: The lies direction was given in the context of the need for corroboration.

McHUGH J: I understand that but you were seeking to make two other points about it, one in relation to consciousness of guilt and one in relation to credibility.

MR GRACE: Yes.

McHUGH J: Now, in respect of both those matters, the jury were perfectly entitled to take into account Radalj's evidence, were they not?

MR GRACE: Not in respect of the first, with respect, your Honour.

McHUGH J: What do you mean by "the first"?

MR GRACE: The consciousness of guilt aspect.

McHUGH J: Why not?

MR GRACE: Because in order to establish the consciousness of guilt they would first have to establish that there was a lie.

McHUGH J: Well, if you are going to rely on consciousness of guilt as corroboration, that may be so but, if you are talking about consciousness of guilt standing on its own as evidence of guilt and not as corroboration, why do you have to reject the tainted person's evidence or determine it without regard to the tainted person's evidence?

MR GRACE: Because of the circumstances of this case where it, by necessity, involves some sort of circular reasoning to come up with the answer that the statement about the investment given by the appellant in evidence was a lie and establish that lie in part on Radalj's evidence.

McHUGH J: Let us test it this way: supposing the judge had said, "I don't think this is a case for a direction concerning corroboration", if he had said that, Radalj's evidence could be used to take into account whether or not the accused was lying and as indicating the consciousness of guilt and as also going to his credibility.

MR GRACE: With respect, no, your Honour, because the determination about whether the accused was lying depended upon the jury rejecting the explanation of the appellant given in evidence about the investment in the syndicate and the acceptance of what Radalj had to say that that so-called investment was a sham.

GLEESON CJ: Not only that. Let us test it this way: what did the evidence show was the benefit that your client actually received for what you keep calling the investment? Did he get some horses?

MR GRACE: Thirty two per cent investment in a syndicate that was - - -

GLEESON CJ: What did that amount to? Did the syndicate own any horses?

MR GRACE: At that stage there were four horses, I believe, set out in the exhibit, that was forwarded by Radalj to the appellant on 30 or 31 August 1993, by fax.

GLEESON CJ: So, what was the defence case as to the benefit that your client obtained for this payment of $16,000?

MR GRACE: He would obtain, via that payment, a 32 per cent share in a horseracing syndicate which then had the present availability, or certainly immediate prospect, of having control over a number of horses which would be of course used for thoroughbred racing. In addition, he gave evidence that there was a tax advantage in making an investment of that nature.

GLEESON CJ: Did the evidence show that the $16,000 matched the amount of payment, the undercover police officer, set as his price?

MR GRACE: No, it did not.

GLEESON CJ: What was the relationship?

MR GRACE: The undercover set a price of $18,000 in total as being the amount but of the 16,000 that was placed in the account on or about 23 August 1993, 5,000 of that was withdrawn by Radalj on or about 31 August to pay some moneys that were due by Radalj to the undercover. So, not all the moneys were used, even on the Crown case, for the purpose of effecting the conspiracy but only part.

CALLINAN J: Was there any evidence of what the tax advantages were supposed to be and how they could have been exploited?

MR GRACE: No, there was not.

CALLINAN J: Was your client's accountant called to give evidence?

MR GRACE: There was an accountant called but he gave evidence solely in relation to a meeting that occurred in relation to civil litigation between the parties in an attempt to resolve the civil litigation and as to whether a particular tape evidencing an arson threat had been discussed at that meeting, but he was not called for any other purpose, nor was there any evidence given in the trial about what the tax advantages might have been.

GLEESON CJ: What was the evidence of your client as to where he was at noon on 5 August? We know that he was in the building, and that was his evidence, but was he with Mr Radalj?

MR GRACE: Yes. He said he went to the building to either present an invoice or collect a cheque for payment for invoice for work that had been legitimately done. There was no quarrel with the fact that the appellant had been doing work as an electrical contractor for Patrick Sleigh Shipping where Radalj worked. So, he said he used to go there, it was common for him to drop in there. Radalj was a friend of his, he would often have lunch with him. Indeed, he went in there on that day - - -

GLEESON CJ: By appointment?

MR GRACE: By arrangement, yes, with Radalj. And he says for legitimate business purposes; left soon after - I think the surveillance evidence indicates he arrived shortly before or exactly at 12 o'clock noon and left at 12.11 pm; was seen exiting the building and went into his car, taking Radalj, and they went off to a restaurant that they commonly frequented.

GLEESON CJ: But there was no dispute, was there, that Radalj received a phone call from the undercover police officer at 12?

MR GRACE: No dispute.

GLEESON CJ: Now, was your client with Radalj when that phone call came through?

MR GRACE: The appellant denied any knowledge of the phone call.

GLEESON CJ: Yes, but what was the defence case? The defence case accepted that there was a prearrangement for a phone call at 12.

MR GRACE: Yes.

GLEESON CJ: It accepted that your client arrived at the building at about 5 to 12 and left the building at about 11 minutes past 12 and it accepted that your client went to the building to see Radalj.

MR GRACE: Yes.

GLEESON CJ: Well, what was the defence case as to where your client was when Radalj handed the telephone to somebody named Greg?

MR GRACE: The defence case was that the appellant was not in the presence of Radalj at any time that he spoke on the phone whilst the appellant was in the building and the appellant denied any knowledge of the phone call, certainly denied taking part in it, and - - -

GLEESON CJ: Did the appellant say he did anything in the building between 5 to 12 and 10 past12 except go to see Radalj?

MR GRACE: Can I take your Honours to page 366. This is in examination in-chief and this will answer your Honour's question. At the top of the page:

In fact I was going to ask you that. During the month of August 1993 was it necessary to do a particular job at the premises themselves?---Yes, it was.

Did that necessitate your being there on the day of 5 August, which has been central to the crown case against you in this court?---Yes, I had been there on 5 August. I had to go and inspect the work and provide them with a verbal quote to proceed.

Now, he says he was there in the course of his profession as an electrical contractor and was there inspecting works and doing those sorts of works, and that he left the building after completing that work in the company of Radalj and went to lunch with him.

McHUGH J: So, he was the victim of an extraordinary coincidence, or was his case that he was lured there by Radalj to set him up?

MR GRACE: One cannot speculate on what the motive of Radalj may have been except to say that Radalj did concede in his evidence - and his actions indicate this - that he acted unilaterally in continuing with this plan with the undercover after receiving pressure from the undercover, after being in fear of the undercover and after he had been specifically told by the appellant that he did not want to have anything to do with this.

McHUGH J: Well, is that what he said, that he did not want anything to do with it?

MR GRACE: Not in those exact words but in more colourful language.

GLEESON CJ: Mr Grace, the defence accepted, did they not, that at 12 noon on 15 August Radalj, the undercover police officer and a man named Greg had a conversation in furtherance of a conspiracy to murder?

MR GRACE: Well, not in furtherance of a conspiracy necessarily to murder but certainly in furtherance of some plan to murder.

GAUDRON J: Was it accepted? If on the defence case the phone call was not made while he was there, was it accepted? It seems to be irrelevant to talk about acceptance of something which you do not know anything about.

MR GRACE: Well, certainly not a conspiracy with the appellant, if the phone call occurred.

GLEESON CJ: No, that is why I said "a man named Greg". The defence did not dispute the phone call or the terms of the conversation, did they?

MR GRACE: The defence could not. The defence position was it was not a party to any phone call. It was not present when any phone call occurred. The defence said the appellant was in the building at the time - conceded that - but said he was there for legitimate professional purposes.

McHUGH J: It would be an extraordinary coincidence when you look at the sequence of facts. Your client admits that he knew that Radalj had made some sort of an agreement with a contract killer. He had been told what the price was. He was aware that the contract killer was in Perth. On the Crown case, there is a prearranged phone call to be there at 12 o'clock when the undercover officer talks to the man called Greg, and by an extraordinary coincidence your client with that background, at least having had some initial connection with a proposal to kill this man, just happens to be there during the few minutes that the telephone call takes place.

MR GRACE: It is no coincidence, your Honour. It is no coincidence because we say that Radalj deliberately arranged for the appellant to be there so that he could comply with the directions and orders of the undercover, that the undercover speak to the main man, as the other co-conspirator was referred to.

McHUGH J: So, your case was, as I put to you earlier, that Radalj had lured your client there at midday to make the call.

MR GRACE: That is not inconsistent with his evidence either.

McHUGH J: Why would Radalj have lured him there?

MR GRACE: Because Radalj was under fear of death of the undercover unless he proceeded.

McHUGH J: No, he gets in there at 12 o'clock, but Radalj had no idea that the matter was under surveillance.

MR GRACE: No. But the prearranged plan between Radalj and the undercover was that the undercover would ring at a certain time.

GLEESON CJ: And speak to the main man.

MR GRACE: And speak to the main man.

GLEESON CJ: But why would Radalj select your client as the main man?

MR GRACE: Because Radalj had had some discussion with the appellant concerning the man, Chesson, and the commercial relationship between the Green family and the Chesson family. Radalj was aware of the general relationship and the acrimonious nature of the relationship.

GLEESON CJ: But that is why I was interested in what the defence case was at the trial about who spoke on the phone. You are telling us that the defence case was that Radalj deliberately arranged for your client to be in the building at 12 o'clock.

MR GRACE: Yes.

GLEESON CJ: And he did that because he had an arrangement with the undercover man that he would put him in touch with the main man.

MR GRACE: Yes.

GLEESON CJ: Well now, was the defence case that Radalj then put the undercover man in touch with your client or was the defence case that he selected some third party from around the office?

MR GRACE: He could have done. He certainly did not put the appellant in touch with the undercover on the defence case.

McHUGH J: That is why I cannot understand what your point is on this point because why would Radalj even bother to get your client to come into the building? On your theory, if he was terrified of the undercover man he either would have disguised his voice or got some friend - if some third party spoke, why would he even call your client to get there? What was the purpose of arranging for your client to come to the building if Radalj had no intention of getting your client to speak to the undercover officer?

MR GRACE: To give his version or his actions veracity.

McHUGH J: How was that going to give it veracity? If your client was not going to speak to the hit man, how was it going to advance Radalj in any way? Some third person, on the Crown case, spoke to the undercover officer. Now, there would seem to me only three possibilities: one, it was Radalj disguising his voice; two, it was your client; three, it was somebody who either had been brought into it by Radalj to play this role or who in fact genuinely wanted Chesson killed as well. It seems to be a pointless exercise bringing your client in on your case.

MR GRACE: Except this, that by doing so, Radalj could then point at a subsequent time if necessary to the fact that the appellant was in the building.

McHUGH J: What, so that Radalj at this stage was plotting against your client even though, at that stage, he had no awareness of the fact that he was under surveillance himself?

MR GRACE: No, that is true. No, not that he was plotting but to give him insurance.

McHUGH J: What sort of insurance and against what?

MR GRACE: He had to satisfy the undercover's demands to produce the main man. The undercover had constantly given him pressure to produce someone who was involved with him. Radalj had steadfastly refused to identify the person or to arrange any meetings between the two.

McHUGH J: I understand that, Mr Grace, but what I do not understand is how it was going to advance Radalj's relationship with the hit man, or the supposed hit man, by simply getting your client to come into the building at 12 o'clock and then not having him anywhere near the phone at the relevant time, because that has to be the theory of your case. It does not seem a very plausible theory.

MR GRACE: That is the way the defence was put.

McHUGH J: I understand that.

MR GRACE: It does not make it certain, whichever way you look at it - because this case has some very bizarre circumstances attaching to it - that that circumstance could have been excluded by the jury.

Now, could I take your Honours to the cross-examination of Radalj which will make it clear, we submit, as to the state of mind that Radalj was under at the time. Your Honours will have an exhibit which comprises a letter that Radalj wrote to the learned trial judge who had sentenced him, and this letter was the subject of cross-examination. Could I take your Honours to page 243 of appeal book 1. At that stage, in cross-examination Mr Miller on behalf of the appellant had asked Radalj to look at a document and he identified it. In fact, that document became exhibit C; it was tendered at page 247. But at page 243 parts of that document are set out in questions and I will take your Honours over the page to page 244. Mr Miller refers to an extract set out at line 3:

I do not dispute the fact that I contacted an associate of mine, namely, Steven Lun with what at the time was nothing more than an inquiry into the possibilities and costs of such actions.

And then later:

At that time I had no plans to have any further involvement than make inquiries. To this day I have no idea why Mr Lun made such a deliberate enthusiastic effort to actively encourage my further involvement.

And he agrees that that was the truth. He then goes on to say:

I can only presume it was a personal grudge resulting from an altercation over payment of an account from some years before.

Then some comments are made about Lun.

The next thing I knew Lun rang me on the following Monday and announced he had engaged a professional to do the job, that he had already flown to Perth and was waiting to see me. At no stage had I made any commitment or given Lun any authority to make such a bold assumption as to engage such a person on my behalf let alone have him fly to Perth. I was completely stunned that I had been committed this far without having any further say in the matter and no opportunity to make my own decision, as was my co-accused when I told him.

At the bottom of the page:

In hindsight I realised this was the time I should have ended my involvement. However, as Lun had a fairly savoury -

probably should have been "unsavoury" -

and violent reputation himself I immediately felt involved over my head. I most certainly still believe that had I been given the proper opportunity to make a decision before having it forced upon me in this way, that I had neither the courage or reason to get involved, the matter would never have passed this stage.

Is that the truth?---That's what I believe, yes.

I then made the massive mistake of agreeing to meet with Gary who I now realise was an undercover police officer. I cannot possibly convey to someone else on paper the extent of fear and intimidation that this man instilled in me from that day on.

Is that true?---Yes.

The next page:

My clearest recollection of that first meeting was his heavy breathing. I remember thinking I did not want to look at his face and trying to appear cool and businesslike so as not to upset him in any way. The following day I had lunch with the co-accused -

you are talking about Graeme Green, right?---Yes.

And then there is a quote again:

"Between us we decided the situation was ridiculous and we wanted no further involvement", and then you go on to say how it was agreed you would contact Lun and end the matter. Right? Now, all of that's true?---Yes, I have already stated it.

I needn't take you to the fine detail but you then recount how you contacted Lun, you did everything you could to get out of it but to your dismay Gary called you and insisted that you meet with him. correct? Just keep turning the pages?---Yes.

It has got page 19 on the top right corner:

I succumbed to meeting with him again and started by making excuses about money problems. However, Gary was most aggressive. . . . . . . . .go through your mind, most of which revolve around preserving your own safety.

Is that all correct?---Pretty well.

Then towards the bottom of the next page:

Basically from this point I made my own safety my only concern -

"my only concern"

and had no thought for Mr Chesson, his family or anybody else. This selfish and weak capitulation on my behalf is something I will have to live with for the rest of my life.

Correct?---Yes.

Well then, is it not the case that what you were saying was, "It was me and me alone"? Is that not what you were intending to convey? You got sucked in, to use my words, to this situation and could not get out of it?---I am outlining my case to the judge there, so - - -

But you are not saying there, "I was driven to do this by Graeme Green", are you?---Well, there was no point in referring to Graeme in my own - - -

Just answer my question. You have not said in that letter, `I was driven to this by Graeme Green", have you?---Not in those words, no.

You have accepted the responsibility for what happened as your own weak, cowardly behaviour in not backing out. Isn't that what - the essence of what you are saying to his Honour?---On the matter of my own guilt, yes. That's what - the letter is specifically for my - - -

But I have just read passages from it, and I hope I have done it fairly as a representative sample from the letter, you are not saying anywhere in there, "It was Graeme Green who told me to do all this." You are saying, "I made the inquiries, I contacted Lun, Lun brought over the painter and decorator or whatever he was, I told Green and Green said, `Let's having nothing to do with it', I couldn't get out of it." That's the essence of what you are saying in the letter, isn't it?---Yes.

And that I suggest to you, Mr Radalj, is the truth and the whole truth; that it was you who allowed this matter to escalate and it was not Graeme Green who was the driver behind the wheel in relation to this so-called hit man. Now, is that not the truth?---No, that's not correct.

GLEESON CJ: Was he cross-examined about this telephone call?

MR GRACE: Yes, he was.

GLEESON CJ: Was he cross-examined about where he and the appellant were at noon on 5 August?

MR GRACE: Yes, he was at page 236, your Honours. At the bottom of page 236 he is asked about 5 August, which is the relevant date. I will not read the bottom of page 236 but over the page on 237:

August 1993; the fact that Green was at your premises, in fact doing an electrical job at Patrick Sleigh's building in Fremantle, and then you going to lunch with him?---Not particularly, no.

He is asked about his recollection.

You say that on a day, although you don't know what day it was, you handed him the telephone and he spoke to this fellow whom you knew to be Gary?---Yes.

And you're quite certain that he did that?---Yes.

You haven't just implicated him in that because to do so was to put you in a more favourable light with the police, was it?---No.

He denies that he ever spoke to Gary on the telephone. What do you say?---I say he did.

Where there any other staff there?---There would have been other staff in the office.

So people would have seen, presumably, you handing the phone to Green to speak on it?---It would have been possible that other people saw it, yes.

You, yourself - where do you say you went to during this so-called telephone call? Where were you?---I can't recall exactly. I think I just walked around and walked to the door.

Walked to the door for what purpose? Pardon? No purpose?---No.

Was it an open office or was it a closed office in which the telephone was contained?---It's an open office.

S other people - there were presumably other employees at Patrick Sleigh who would be able to tell us, presumably, if they saw Graeme Green on the phone?---It would be possible, yes.

Did, to your knowledge, the police ever interview anybody in Patrick Sleigh's office?---I have got no idea.

In fact, there were no witnesses from Patrick Sleigh's office called to give evidence.

Now, the undercover was extensively cross-examined about the fear that he had instilled in Radalj and he accepted that it was part of a pseudo-assassin's or actual assassin's role to instil that sort of fear.

McHUGH J: But where does this take you? After all, this conversation that you are talking about when your client, on his version and on Radalj's version, wanted to get out of it, was on 29 July.

MR GRACE: Yes.

McHUGH J: It was 5 August that your client went to the building. It was some date after that, perhaps towards the end of August, when your client is alleged to have produced a photograph of Chesson.

MR GRACE: No, your Honour, I believe that is earlier.

McHUGH J: It was on the 3rd that he was asked for the photograph. On 3 August Radalj was asked for a photograph of Chesson and it was supplied to him - I could not quite ascertain when that photograph was furnished but it must have been some time between 3 August and 30 or 31 August.

MR GRACE: Well, there were only one or two meetings after 3 August.

McHUGH J: There was one on 5 August.

MR GRACE: On 3 August was the time the photograph was provided.

McHUGH J: Provided? I thought it was asked for.

MR GRACE: Could I take your Honours to page 303. There is a discussion on page 303 generally of a meeting on 3 August and over the page on page 306, exhibit 10 is shown. I presume that is a photograph. At line 3 on page 306, question:

At the time on the tape that that appears handed to you there is a lot of zipping and noise. Is that the photograph that he gave to you?---Yes, that's the photo.

It appears to be cut out from something. Was that the state in which it was provided to you or did he cut it out?---No, that was how he handed it to me.

And then later down the page, about line 34, he is asked:

On 4 August, the following day, did you again contact Radalj?

So, it seems clear that the photograph was provided on 3 August. The request had been made - it is at page 301, and the request appears to relate to a - - -

McHUGH J: It was on 2 August he was asked for the photograph?

MR GRACE: No, on 30 July. You have to go back to page 299. Your Honour is correct when you refer to 2 August because on 301 the next contact date was 2 August.

McHUGH J: It had not been supplied by 2 August.

MR GRACE: No.

McHUGH J: And he asked him again.

MR GRACE: At line 17, question:

On that day did you make -

this is 2 August -

a further telephone call to Steven Radalj and ask him about something?---Yes. I asked him how things were going, basically the photograph, if he had that organised.

Now, I want to take your Honours to extracts from the learned trial judge's summing up to the jury where his Honour emphasised the crucial significance of Radalj to the Crown case. This is by no means meant to be an exhaustive summary but nevertheless highlights some significant parts of the summing up. At page 494, at line 44, his Honour says:

It is the crown case there is a conflict of evidence there between the evidence of Mr Radalj and Mr Green and you must make a decision as to who is to be believed in relation to that. Even if your decision is adverse to Mr Green that doesn't necessarily mean that the prosecution has proved its case beyond reasonable doubt.

Even if you prefer the evidence of Mr Radalj you should not convict unless you are satisfied beyond reasonable doubt that Mr Radalj was a truthful and honest witness in this courtroom. Even if you don't positively believe Mr Green's evidence, that he was not involved in this conspiracy, you could not find him to be guilty of the conspiracy if, on the whole of the evidence, you had a reasonable doubt that he was guilty.

At page 500, when referring to the Crown case:

They put that before you as a background -

this is the alleged motive evidence -

as to why Mr Green may have entered into this conspiracy but as to the actual entering into the conspiracy, the only direct evidence in relation to that is from Radalj himself because there was no -in the nature of these types of crimes of conspiracy you would find it very unusual that the conspirators plot in front of people who are not part of the conspiracy or reduce their conspiracy to writing -

and so on. And the next paragraph:

Here all the crown have in the light of Mr Green's denial of entering into such conspiracy is the evidence of Mr Radalj. That's the only direct evidence in relation thereto. The crown also rely upon certain circumstances which they say point to Mr Green being involved with the conspiracy and I will identify those circumstances for you and tell you what use you make of them later in my remarks. The crown also rely upon the telephone call which the undercover officer had with the person -

et cetera. Next paragraph:

The crown would ask you to find on all the evidence before you that that person at the other end of the line during that conversation was Mr Green and nobody else although the undercover officer didn't see him and no-one else has come along to say that they saw Mr Green speaking in the office on the phone at that time apart from Mr Radalj. In addition to what I have just said to you in relation to the circumstances; where you're looking at the circumstances, the evidence of those circumstances led by the crown must negative any other reasonable hypothesis except that of the guilt of Mr Green.

Page 508, line 52. This is after summarising the Crown case:

I suppose that brings us then to the central plank of the crown case, namely, the evidence of Radalj himself. You have heard a lot of things about Radalj and you have heard that I have had dealings with Radalj because I was the judge before whom he pleaded guilty and who sentenced him to the term of imprisonment which he has begun to serve -

et cetera. And then his Honour, in the next paragraph, refers to:

Radalj is a type of witness referred to as an accomplice.

He gives an accomplice warning and explains the accomplice warning to the jury. For instance, in the third substantive paragraph on that page, he outlines to the jury that:

The accomplice might be acting out of the desire to reduce the punishment which he faces or for some other reason which may only be known to him and will never be disclosed to anybody else -

and at line 36, his Honour says:

Because in this case you're dealing principally - the crown case relies heavily on the evidence of Radalj. Although you may convict Mr Green upon the evidence of Radalj alone it would be very dangerous for you to do so unless Mr Radalj's evidence is corroborated in some way. You should not convict Mr Green on Mr Radalj's evidence unless you weighed his evidence with the most extreme care. In a case such as this it's always very dangerous to convict a person such as Mr Green on the evidence of an accomplice unless that evidence is corroborated in some material way which duplicates -

well, it should be "implicates" -

the accused man.

At page 516 at line 10, his Honour again refers to the phone call, that it is only the evidence of Radalj who was called as to who was on the phone, and summarises the Crown case and the defence case in relation to that telephone call in that paragraph, and at line 23 says, when talking about Green, the appellant:

He was not there as any part of this conspiracy at all, he was there simply on legitimate business purposes as he had been on many occasions before and arranged his business contacts with luncheon meetings with Mr Radalj as he had done on many occasions before.

McHUGH J: I am still not clear as to what the evidence was as to the circumstances in which your client went to the building. Did he go there just simply to check on this invoice and there was then an arrangement to go to lunch or was he expressly brought there, on your case, at midday?

MR GRACE: We do not know why he went there at that time. We say there was no prearrangement to go there for the purposes of speaking to any undercover on the telephone. He went there in the normal course of legitimate commercial dealings.

GLEESON CJ: But did he go there because Radalj asked him to be there at midday?

MR GRACE: Yes.

McHUGH J: Did he say that?

MR GRACE: At page 418. This is in cross-examination, and he is shown a photograph of him being shown to go in the building five minutes before. At line 20 your Honour will see a question in relation to that. At line 26, question:

It is an occasion when you met Radalj inside, isn't it?---It was an occasion when I went there to - I would have been there for either business or to go off to lunch with Steve, yes.

So you met Radalj inside? That part is true?---I would have had to have been inside, yes.

Yes?---Because I went to lunch with him afterwards.

Because you left with him at 10 past or 11 past 12, just 15, 16, 17 minutes later?---Yes, thereabouts.

So you must have been with him inside?---With him inside?

Yes?---I haven't diarised the day. I can't say on that particular day if I was with him or what I was doing. At times we do electrical work in that place and I would walk around by myself inspecting the work that had been done by our guys and also talking to, at times, other staff members in there.

Were you with him inside at any time?---We were both on the premises at the time and went off to have lunch. I know what you're heading to but all I can tell you - - -

And he is asked questions about where he was heading. At the top of the page:

What do you think I'm heading to?---You're trying to say that I was side by side with Radalj.

Well, were you together with him at any stage?---When we left the building we went off to lunch. We were together, yes.

Where did you meet him to go out to lunch?---We went to Banners Restaurant.

Was it just a coincidence that you walked out the door at the same time or did he come and speak to you beforehand?---I would have gone in there.

Right?---I wouldn't necessarily have gone there to go straight to Radalj. We were doing electrical - I could have been - at the time, in the couple of days preceding that, we had had staff there doing electrical work and I probably could have been going to inspect it, gone and grabbed Radalj when he's finishing whatever he's doing and gone off to lunch.

You actually went in to see some inspection work but you went and saw Radalj also, didn't you?

Now, I do not know whether by that question the Crown is accepting that he went in there to do inspection work.

GLEESON CJ: But you do not seem to be supporting the answer you gave to my question. I understood you to be telling us that he arrived at that building on that day pursuant to a request by Radalj that he be there at noon. The evidence that you have just read does not bear out that.

MR GRACE: No, it does not bear that out and it may not be the case that that is correct.

GLEESON CJ: That brings you back to a question Justice McHugh asked you about half an hour ago. Was this a coincidence or was he lured there by Radalj so as to be there when the undercover man called?

MR GRACE: Either. It was either a coincidence or he was lured there. One cannot say what is more likely, on the evidence, other than to refer again to those passages I read in the cross-examination of Radalj which is supported in part by the cross-examination of the undercover officer as to the instilling of fear in Radalj.

McHUGH J: Mr Grace, did your client ever put forward any theory as to why Radalj would falsely incriminate your client in this?

MR GRACE: Yes, to protect his life.

McHUGH J: To protect his life against what?

MR GRACE: The undercover.

GLEESON CJ: How did Radalj get into it in the first place, on the defence case? Radalj and Chesson were total strangers, were they not?

MR GRACE: Yes.

GLEESON CJ: How did, on the defence case, Radalj find himself in conversation with some hit man about doing harm to Mr Chesson?

MR GRACE: Radalj had a conversation with his friend, the appellant, about problems that the Green family had been encountering with Chesson and there was some general discussion which was common ground as to the appellant suggesting words along the line, "How do you get someone bashed?" or, "How do you arrange some violence towards an individual?", words to that effect. Radalj then goes off of his own volition and relays that conversation to a man, Steven Lun. Steven Lun was a friend of Radalj. Lun in turn spoke to a person who was a policeman, and this operation was conceived and established.

GUMMOW J: What operation?

MR GRACE: The operation using an undercover policeman to pose as a hit man to ascertain as to who was involved in this conspiracy, if there was one. It is a common enough occurrence in various police forces around Australia for that to occur.

Now, I urge your Honours to look at exhibit C, which I understand is in the Court's possession, which contains the letter.

GLEESON CJ: Yes. It is not reproduced but we have access to it, no doubt.

MR GRACE: Yes. I understand all the exhibits were provided.

McHUGH J: I am still not following why you say Radalj falsely incriminated your client.

MR GRACE: Because of fear of his life, your Honour.

McHUGH J: I do not understand it. How? What did he have to fear?

MR GRACE: Because the undercover conveyed to him that unless he proceeded with this matter his safety would be in jeopardy.

McHUGH J: I can understand that. I can understand that but I do not see how that explains why the accused would falsely incriminate the appellant to the police.

MR GRACE: Because of the original conversation between Radalj and the appellant, the appellant was the likely suspect.

McHUGH J: How do you mean, "the likely" - nobody knew about the appellant's existence, apart from Radalj.

MR GRACE: Yes, but there was a conspiracy on foot, according to Radalj, to do away with Chesson. Green had the motive, in the Crown case, to pursue violence against Chesson. So, the most likely customer as to be the prime mover behind the conspiracy would have been someone on Green's side and who more likely than the appellant who was a mate of Radalj and who had in fact a conversation with Radalj about exactly this topic - maybe not in the detail that later developed but certainly, in its preliminary stages, had a discussion with him.

McHUGH J: But why would he falsely incriminate him? On your client's case, it might be said it is common ground that your client was in it up until 29 July and after that he desists. Now, why would Radalj when he is arrested then not only incriminate your client to the police but then complete the course of deception by going into the witness box and swearing as to these events that took place after 29 July?

MR GRACE: Because, firstly, to protect his own skin - - -

McHUGH J: His own skin against what?

MR GRACE: Against the maximum penalty, which is a common enough motivation for prisoners to give evidence against others.

GAUDRON J: The trial judge told the jury that in fact he had received a lenient sentence because he had agreed to co-operate in giving evidence against Green.

MR GRACE: Yes. The evidence was that his sentence was reduced from 12 years to seven years as a result.

GLEESON CJ: You wanted us to look at exhibit C.

MR GRACE: Yes.

GLEESON CJ: Is the whole of this exhibit C?

MR GRACE: Exhibit C is a handwritten letter.

GLEESON CJ: Now, what was it in this that you wanted to draw to our attention, Mr Grace?

MR GRACE: The pages are not numbered.

GUMMOW J: It is said to be a letter but it is not really, is it? If you look at 242, line 40, it never got to the addressee.

MR GRACE: It never got to the addressee because it was withdrawn.

GUMMOW J: By whom?

MR GRACE: By the writer.

GUMMOW J: What does "withdrawn" mean?

MR GRACE: He wrote the letter to the associate and then after writing it to the associate requested that it be not conveyed to his Honour. The reason he gave in evidence for writing this letter was because he believes the whole story was not told to the trial judge at the time of his plea in mitigation. Can I take your Honours to the fourth page.

GUMMOW J: This was put against him in cross-examination?

MR GRACE: Yes.

GUMMOW J: I understand that.

MR GRACE: And the jury had this letter.

GLEESON CJ: Who tendered it?

McHUGH J: The Crown.

MR GRACE: Yes, I understand the defence tendered it. It was exhibit C.

GUMMOW J: Is that right?

MR GRACE: I will just check that, your Honours.

GUMMOW J: Page 247, line 27.

McHUGH J: I do not know. Maybe they mark things differently in Western Australia? Exhibit A is usually a Crown document and exhibit C is a Crown document.

MR GRACE: It was defence, yes.

McHUGH J: It was the defence, was it?

MR GRACE: Yes. At page 247 - - -

GLEESON CJ: What is it about this that you want us to take particular notice of?

MR GRACE: At first blush, as your Honour Justice McHugh has repeatedly brought out, why would Radalj act in this way towards the appellant? This letter explains, in essence, why he acted in the way he did.

GLEESON CJ: And what do you say the explanation is?

MR GRACE: The explanation is that he is a weak and manipulated individual who succumbed to the terror instilled in him by the man posing as an assassin, who later turned out to be an undercover police officer. It was that terror that compelled him to continue with the arrangements after receiving, even on his own version, a countermand from the appellant on or before 29 July that he did not want to have anything further to do with it. Now, the cross-examination of the undercover is illuminative of the type of terror that was being instilled in Radalj by the undercover. Could I take your Honours briefly to that.

GUMMOW J: Now, there are markings on exhibit C in various colours. Who put them on?

MR GRACE: I have no idea, your Honour.

GUMMOW J: Green, red, yellow.

MR GRACE: I have got no idea.

GUMMOW J: It is not very satisfactory.

MR GRACE: It may have been counsel, it may have been the judge, it could have been the jury.

GUMMOW J: Is it exhibit C with additions or is it exhibit C? Which one is it?

MR GRACE: I cannot say; maybe Mr McKechnie can. The undercover is cross-examined commencing at page 317. At line 38 he is asked:

But you said earlier, "I did everything to try and be authentic." You used that word. You tried to be an authentic assassin?---In my demeanour, yes.

That's exactly what I'm talking about. Presumably you discussed that with your senior officers, "How should I go about this? I have got to convince this guy I am a genuine hit man." That must have been part of the discussion with your senior officers?---Yes.

Yes, and so you would agree with me then when I put the question to you again: you did everything you could to act like an appear to be what you believed a genuine assassin would be, how he would look and how he would act?---I suppose so.

You talked tough, didn't you? When you spoke to Radalj you can hear - we heard it on the tape ourselves - you adopted a - you have got a hard voice anyway, if you don't mind me saying so, but you talked tough, didn't you?---I didn't change my tone at all.

Don't you think?---No.

Perhaps you're not using the same language in this court but we heard you on the tape saying, "Don't fuck me around" and things like that. They were the sort of words you used, weren't they?---I may have used that expression once or twice.

Yes, and that's what I call talking tough. There was a degree of that, wasn't there?---A very small degree, yes.

Now, I might add those tapes went in to the jury room. And then, line 25, referring to a transcript of a tape:

You say about four or five lines from the bottom, "Well, like I said, that depends on what I find" and Radalj says, "Yeah, and, as I say, if it's too difficult, well, we will bail out." And then you jump in and say, "Oh, there's no need to bail out because, ah, nothing is that hard." See that?---Mm.

He says, "Yeah." You say, "If it doesn't take - if it's not done in 2 weeks it will be done in a month." And it was your job to keep him in, not to bail out at all, wasn't it? It was your job to keep him well and truly in hiring you to do what he believed to be the killing. That was your job ; to keep him in it, not let him bail out. Correct?---If I was given a day, yes, I would say that was correct but as you are aware it happened over almost 2 months.

Yes, but this is towards the end. You're making sure you're keeping him in there.

By the way, two months was not the correct answer, but, nevertheless:

Look at the final page. At the top of the page this is you, "Yeah, but like I said, you know what I'll do if I don't get paid. I'm trusting you blokes that you've got your shit squared away." You're talking tough there, aren't you?---One may say that.

Don't beat around the bush. You are, aren't you? You're talking tough and acting ruthless. That was the intention. "I'm a ruthless man. Like I said, you know what I'll do if I don't get paid." What did that mean? "I will do you away if I don't get paid," did it?---Not at all.

What did it mean?---It didn't mean anything.

You tell the jury. What did that mean?---It was a line I threw in there just to basically see what reaction I would get.

And then he agrees that he was acting as a hit man. His intention was to get the job done. He said he was using lines like that to authenticate his position. At line 18 on page 320:

But you did - and just to follow it up - you did, Mr X, didn't you? You did intend to engender fear in Radalj?---Yes.

And all contact you had in this matter was with Radalj except for one and a half minutes when you spoke to a person, who you say was a different person, on the phone. Is that correct?---That's correct.

And he denies that he had Radalj frightened, at line 31. At the bottom of page 320:

Well, why did you demand the extra five?

This extra 5,000 that he demanded from the original contract price of 13,000 -

As I said to him earlier on that there had been people following Mr Chesson - so, to make it as authentic as possible, that's why the demand for the $5000 was made.

Yes - make it authentic because hit men are dangerous people, aren't they? In the world of assassinations, they are dangerous people?---Not being one - but I suppose, yes, they are.

And you were acting the part of being one. We know you're not one, you don't have to keep telling us that. You were acting the part of not being - of being one. Correct?---True.

GUMMOW J: What is all this going to, Mr Grace?

MR GRACE: This is going to the issue as to why Radalj would act in a way to inveigle the appellant into a conspiracy when the appellant had expressed a desire not to have anything to do with it and Radalj was under fear of his life, on his own evidence, before the jury; that if he did not continue with it he would be in grave danger.

GLEESON CJ: But what Radalj actually had to do to keep the hit man happy was have the main man in Radalj's office at 12 noon on 5 August for the hit man to talk to.

MR GRACE: Or have a person talk to the undercover or, in fact, Radalj himself in a disguised voice talk to him.

GLEESON CJ: Now, one of the possibilities you advance is that against that background, by a coincidence and without any prearrangement with Radalj, your client turned up in Radalj's office at 12 noon on 5 August.

MR GRACE: It is not such a coincidence when one considers - and there was evidence of this before the jury in the form of invoices and cheque payments from Patrick Sleigh Shipping to the appellant's company and invoices from the appellant's company to Patrick Sleigh - - -

McHUGH J: It certainly seems a coincidence when the time is only 13 minutes. He arrives about 1 minute past 12 and he is photographed outside at 11 past 12. It does not look like he is there on an inspection.

MR GRACE: There is no quarrelling with the fact that he is there for, I think it was 17 or 18 minutes, on the Crown case, but let us not quarrel with it.

GAUDRON J: And he had arranged to have lunch with him he said, in evidence?

MR GRACE: Yes. Now, it is not such a coincidence if he was regularly there for the purposes of legitimate business. But these are one of the matters that the jury had to consider. Does it defy belief that this coincidence occurred?

GLEESON CJ: I do not want to be too repetitive, and this has been raised with you by Justice McHugh a little bit before, but bearing in mind that at the time Radalj did not know that this was an undercover police officer he was dealing with and he did not know that there was any surveillance on the premises, if he did not actually put your client on the telephone to talk to the undercover officer, what was he achieving by having him there?

MR GRACE: It may have been that he did not arrange for him to be there through any plan of his own. It may just have been an unfortunate coincidence on the part of the appellant that he was there.

GLEESON CJ: The only person Radalj had to fool at that stage was the person who was on the other end of the telephone?

MR GRACE: Yes. We have no real way of knowing why Radalj acted in the way he did except from his evidence which indicates that it was based upon fear.

McHUGH J: Not necessarily fear. After the conversation of 29 July events happened. A photograph was produced after 2 August. Now, if your client is the source of that, and that is the Crown case, it would seem that whatever pressure may have been put on by the undercover officer, both Radalj and your client were prepared to go along with it.

MR GRACE: Yes, I appreciate that is part of the Crown case but there was evidence called on the defence side which explained how it was that Radalj may have had that photograph from a time well prior to 2 August, and that was a matter for the jury.

GLEESON CJ: Could you just remind us, in summary form, of what that explanation was?

MR GRACE: The evidence was given by the appellant's sister who said that she met Radalj at a restaurant called the Left Bank, which is somewhere in Perth, on a Sunday afternoon sometime in 1993, at an event that is common to Perth called A Sunday Session, and that during the course of discussions with Radalj at that restaurant or bar she got to talking about troubles that her family was having with Chesson and Chesson interests, and in the course of the discussion Radalj inquired of her or asked questions to the effect, "Well, I don't recall Chesson. I don't recall what he looked like; who he is" and the witness then showed him a photograph that she had in her handbag or in her possession that she was carrying at the time. The reason she had it in her possession was because she was fond of seeing a clairvoyant and had shown the clairvoyant the photograph for the purposes of trying to get some prediction as to the outcome of civil litigation between the Chesson family and the Green family. She showed the photograph to Radalj and, on her evidence, Radalj said, "I'll hang on to this because I may want it in the future", words to that effect.

Could I take your Honours to pages 441 to 443. The photograph had come from a wedding at which all of the parties had been present. That wedding was actually the appellant's wedding, and Chesson was there. At the top of page 444, question:

After you showed the photograph to Mr Radalj did he indicate whether or not he was going to do anything with it?---We sort of finished the conversation and I went to walk off and Steve said something tome like, "I'll keep this if you don't mind and if you ever want to get serious about the bastard give me a ring."

Was that the end of your discussion with Steve Radalj at the Left Bank on that day?---It was.

GLEESON CJ: What month was this?

MR GRACE: This was in 1993, probably about February or March, she says at line 25 in cross-examination. Now, Radalj was questioned about that and - - -

GUMMOW J: You seem to be retrying this case as an ultimate Court of Appeal.

MR GRACE: I appreciate this Court is not a Court of Criminal Appeal, your Honour, but the Crown seeks to defend the application of the proviso on the basis that conviction was inevitable and I am seeking to put forward arguments why conviction was not inevitable in this matter and it is, by necessity, that I have to refer to these passages to highlight the submissions that I seek to make.

GLEESON CJ: Perhaps you might also need to address the submission that if the trial judge had directed the jury accurately in relation to the question of the use of this lie as corroboration, he would have given them a direction that was no less unfavourable to your client than the direction that was actually given. He would have said to them, "If you reject or disbelieve the evidence about why the payment was made, then you may treat the fact of the payment as corroborative of the evidence of Radalj."

MR GRACE: Yes, but in doing so it gets back to the essential thought process that is involved, the line of reasoning that is involved. How does the jury establish the fact that the evidence given by the appellant concerning the payment was false?

McHUGH J: They can accept Radalj, as I put to you at the beginning. It may be another question altogether as to whether they can then use it as corroboration but as far as I am aware there is no rule that says they cannot use Radalj's evidence to determine whether or not he is lying. You might be entitled to a special direction about the way you look at his evidence but they can use his evidence to determine whether or not he is lying.

GLEESON CJ: Suppose they looked at it this way, Mr Grace: the fact of the payment is established and, let me put it no higher than this, at that stage it is not looking too good for the appellant, and they then say to themselves, no doubt, "We'd like to hear what the appellant says about this payment", and what he says about the payment, he says on page 362 and page 363, and suppose the jury say, "That explanation of how he came to pay this money, we regard as quite implausible.", not just because it is contradicted by the evidence of Mr Radalj but because it is inherently implausible. The implausibility consisting, for example, in part, in the fact that the other members of the syndicate did not know about the payment.

MR GRACE: They did not know about the payment but they knew he was in the syndicate.

GLEESON CJ: Suppose that for any one of a number of reasons they came to the conclusion that his explanation of the payment was implausible, then why were they not entitled to treat the payment as corroborative of the evidence of Radalj?

MR GRACE: One can readily accept that an inherently implausible explanation can, by itself without any other evidence, result in a finding by a jury that a lie has been told and they can use that lie to - - -

GLEESON CJ: No, I am not inviting you to using the lie or using the implausible explanation as corroboration, what I am suggesting is that a payment has been made which looks as though it corroborates Radalj and he tries to explain it away, and they do not accept the explanation. Then why do they not say, "What corroborates Radalj is the payment.", unexplained?

MR GRACE: Yes, that could be so, your Honour, but one does not know whether the jury adopted that line of reasoning and, in fact, they were directed to adopt a completely different line of reasoning.

GLEESON CJ: Is it very different from that, because what the judge told them was that they could use the lie as corroboration only if they were satisfied beyond reasonable doubt it was a lie? It strikes me as at least a possibility worthy of consideration that there is a very marginal difference, indeed, between the direction he gave them and the direction that he ought to have given them.

MR GRACE: Well, we submit that it was not so marginal. We submit it was greater than that description. To follow up what your Honour Justice McHugh said to me earlier, the jury could certainly have formed the conclusion that, "If this man lied in relation to the payment, we are not going to believe anything else he has to say about anything", and that would have purely been a matter going to his credit without any issue of corroboration involved at all, or consciousness of guilt. But that is not the way the Crown went to the jury in this case. The Crown went to the jury on the basis that the lie about the investment had a three-fold effect. First of all, it destroyed his credit as a witness, so, therefore, nothing he said could be believed. Secondly, it corroborated an essential part of the Crown case, a crucial part of the Crown case, that is, Radalj, and the source of funds at least, in part, to pay the hit man; and thirdly, he exhibited a consciousness of guilt. Without more and without any other explanation for the telling of the lie that was inherently plausible, which was not given because it was never conceded it was a lie, it would be a small step from finding that if he lied in relation to the investment he must have been guilty.

That is how the Crown went to the jury and that is how the judge directed the jury. In those circumstances, we say that he did not have a fair trial because the jury were never told that they could not use the evidence of Radalj to establish the lie that was to be used to corroborate Radalj.

McHUGH J: But counsel never took any point about it. Maybe he did not take any point about it because he realised that it was the worst part of his whole case and the less said about it the better. He did not want the judge giving specific directions about that issue.

MR GRACE: There are two answers to that, your Honour. The first is it is hard to see, in the circumstances of this case, any tactical advantage whatsoever in counsel taking that view.

GLEESON CJ: It is not so much an advantage. It is a tactical consideration that if the judge had expressed the direction accurately it would not have done the accused any good.

MR GRACE: That perhaps leads me to the second basis and that is with the greatest respect to counsel - and there was senior counsel involved - his understanding of the law in this area seemed to have been deficient at the time that the matter was discussed with the learned trial judge prior to the summing up commencing, when his Honour raised the issue of corroboration and lies, and it seemed to be, from reading that discussion, which is set out in the appeal book - it is in volume 2 - that learned counsel did not seem to come to grips with the issue at large. That may have been the basis for him, at a later stage, not taking exception.

McHUGH J: What is the page, Mr Grace?

GAUDRON J: Pages 481, 482?

MR GRACE: Yes. It starts earlier, your Honour, at 475. His Honour, at 475, line 15, clearly indicates that he would clearly give a corroboration warning in relation to Radalj. Then at line 44, on page 478, Mr Miller says:

Your Honour, I respectfully accept everything that you have said, save I have just got two concerns. The first is this question of lies. I am not at all sure, with respect, that this is a case that calls for any lies directions because is it not the case, really, that the accused simply denied the allegations that were put to him by investigating detectives? It doesn't seem to me, with respect, that there is any independent evidence that there was any lie told about any single matter. It is all dependent upon whether Radalj's evidence is the truth.

There's no independent source that says what he said was a lie over any particular issue, so I would respectfully seek to dissuade your Honour from giving lies directions. It's simply the case that when questions and when the propositions were put to the accused as to what Radalj had said the accused denied them. It seems tome that's the end of it.

And then he goes on to another matter. The learned trial judge, at line 30, on page 479, says:

Just in relation to the question of lies, you say what you say in relation to there simply being a denial and that doesn't bring into force a lies direction but, say, in relation to the question of the telephone call, the jury accept Mr Radalj's evidence that it was Mr Green who was speaking on the phone at that time, and there's a denial in relation to that, does that require a lies direction?

MILLER, MR: No, I don't think it does, with respect, because it's central to the case throughout that he has maintained consistently that it was never he who spoke on the phone, and so one can't - - -

The judge says:

It no more requires a lies direction than any of the other matters that Mr Radalj raised?

MILLER, MR: No. It's stark. It's either Radalj's evidence is accepted, it was him, or it's not. That's the way I see it, your Honour.

McHUGH J: But just stopping there, you see, perhaps that is the explanation as to why counsel was not interested in this lies direction. His case was, "We didn't tell any lies. We were never part of it. That is what this case is about. This case is about whether or not I made the statement; don't worry about lies. If you accept that I didn't make the statement then that is the end of the case against me."

MR GRACE: Precisely, your Honour.

GLEESON CJ: "Once you get to the stage of considering this as lies, I'm gone."

GAUDRON J: But can the jury consider it as lies simply on the basis that they do not accept the evidence of the accused? It seems to me, when you are talking about evidence of lies, you are talking about something positive - positive evidence - where it is not in doubt that a lie was told, and that requires a further step than not accepting the evidence.

MR GRACE: Yes.

GLEESON CJ: Let us take one small aspect of the account for the payment. On the defence case, why was it necessary for the $16,000 to be paid into the syndicate account by way of a bank cheque? We know what the Crown case about that was but what was the defence explanation?

MR GRACE: The defence explanation was that this was the moneys that were the proceeds, in part, of a term deposit that the appellant and his wife had invested in. The maturity date was 23 August. It could not be redeemed earlier. The moneys were simply the proceeds, in part, of that redemption. The evidence indicates that simply the redemption occurred, the cheque was paid for at the bank and then paid into the syndicate account.

GLEESON CJ: And was it just a coincidence that the timing of this payment was at about the same as the timing of the payments to the undercover person?

MR GRACE: Yes, your Honour. There had been significant payments to the undercover operative prior to this payment, and the only recourse that Radalj had to those moneys was to pay the undercover officer on or about 31 August the extra $5,000 that the undercover officer had demanded. Otherwise, Radalj did not have recourse to those moneys, and one would have expected that Radalj would have immediately withdrawn those moneys if, in fact, it was the case that he had used his own moneys to pay the hit man, which he was known. The trouble about that evidence - - -

GLEESON CJ: So, it was Radalj who manipulated the timing of these payments?

MR GRACE: Yes.

McHUGH J: The first payment was in cash, was it not?

MR GRACE: To the undercover?

McHUGH J: Yes.

MR GRACE: They were all in cash.

McHUGH J: But I thought it was in cash out of his own - Radalj's - what was called his "punting float" or some such thing?

MR GRACE: Yes, it was all out of his own funds. All the payments - the $13,000 that Radalj had paid to the hit man, and prior to the cheque being received into the syndicate account on 23 August - that Radalj had made were cash and from his own funds.

McHUGH J: What intrigues me about this case, on your theory: let it be assumed in your favour that Radalj was terrified of the hit man; they paid the hit man what he had asked for. Why, unless there was pressure from some third party behind, would not Radalj have said to the hit man, "Look, sorry, we don't want to go on with this now, here's your money. Take your money. Take the money and off you go back home."? One would have thought the hit man would say, "Well, this is the easiest $16,000 I've earned for a long while. I didn't even have to kill anybody for it." I mean, it strikes one as extraordinary, even if you accepted Radalj is terrified, that he would still go on and pay the money and still demand that the killing take place.

MR GRACE: Explanation is to be found in that letter, exhibit C, which I urge your Honour - - -

McHUGH J: Well, I have read that letter and I do not see anything in that letter that would explain that. I do notice in that letter that he said that he was telling the truth in his deposition to the police. You have to face up to the fact as well that Radalj goes along, agrees with your client about it being called off. Having gone that far with your client, why does he take it further? Why did he not deny that initial calling off of the deal?

MR GRACE: At page 191 he answers that question, your Honour. He is asked general questions about his phone call to Lun who was the intermediary to the undercover. At line 25 he details a meeting he had with the appellant, and they had made a decision at the meeting:

What decision was that?---That the proposition was ridiculous and that we should end it, go no further with it.

In order to effect that decision he then had a contact with Lun and he told Lun of the decision that he did not want to go ahead, and neither did the appellant.

McHUGH J: I understand that.

MR GRACE: At the bottom of the page:

Did he indicate there would be any problems with that?---No. He went out of his way to guarantee me that it wouldn't be a problem; that he could fix it up and that I wouldn't have to contact - - -

probably, the undercover.

Did you make offer of any money?---I offered to pay any expenses that Gary had incurred in coming across.

And that was said to be okay?---And he said that wouldn't be a problem.

Shortly after telephoning Lun did you receive a phone call from Gary?---Yes, I did.

And then he goes on to say that he met with the hit man, and at line 38 on page 192, he asked the hit man whether he had spoken to Lun and the hit man denied. In fact, the evidence at the trial was that the hit man lied to him and, in fact, he had spoken to Lun. And then he met with the hit man who insisted upon seeing him, and he made up a story which he sets out at page 194, around about line 40, and says:

I think I commenced with telling that we may have to cancel or put off the job because of money problems. That was the most convenient story to use at the time.

How did you feel? Were there in fact any money problems or was that the story?---Well, it was a convenient story rather than tell him that I didn't want to deal with him and I had wasted his time.

His manner with you - did he actually physically threaten you in any way at any time?---Physically?

Yes?---He didn't physically.

But did you feel threatened by his presence?---Yes, I was terrified of the man.

This is examination in-chief.

McHUGH J: Yes, I know.

MR GRACE:

Why?---For what I believed him to be and his appearance.

Did he appear convincing?---Very convincing.

When you mentioned that there were money problems, you might have to put it off to another time, did he indicate - his tone change?---Yes. He became quite annoyed on that occasion.

Did you persist nevertheless to discuss the job?---Yes. I think we arranged a partial payment before and after and I know we discussed that on the - - -

McHUGH J: Yes, but none of this answers what I was putting to you, Mr Grace. Let it be assumed he was terrified of the hit man and he had an intimidating appearance. Why would not Radalj, unless there was pressure being put on him by the third party at the back of this, say, "Look, I'm sorry, we're not going on with this now. Here's your money, here's your 16,000; off you go"? That was the simple way out of it.

MR GRACE: Yes, it was.

McHUGH J: But Radalj goes on with it and your client is photographed coming into the building on 5August. The inference, a very strong inference, is that your client was pushing for the job to be completed, or at least agreeing to be completed.

MR GRACE: That was the Crown case.

McHUGH J: Yes, I know.

GAUDRON J: On that day in which he makes part payment, that is the day on which apparently your client has said he does not want to go on with it, is that right? Do I read that correctly? They have lunch and agree that they are not going to go on with it. Radalj contacts Lun and within an hour the undercover officer contacts Radalj and at that same meeting before he has got back to your client, on his account, he has agreed to pay him some money. Is my reading correct?

McHUGH J: Well, 3,000 was paid on 30 July, the following day.

MR GRACE: Yes, 30 July was the first payment of 3,000.

GAUDRON J: What day did they have lunch and decide it was a stupid idea?

McHUGH J: 29th.

MR GRACE: The 29th, the day before.

GAUDRON J: And there is no evidence to say that by that stage he has got back to your client, is there?

MR GRACE: No, there is no evidence. Can I go back to the stage where your Honour Justice Gaudron had made some comments in respect of the conclusion to be gained from reading the passage where I read Mr Miller's and the trial judge's discussion about the lies issue. Your Honour Justice McHugh said that might explain why Mr Miller took the position he did and perhaps did not take any exception. I assume that by implication that is what your Honour was getting at. That is all very well but the problem is that you have the Crown telling his Honour that a lies direction is appropriate, in effect, you have the Crown going to the jury on the basis that I earlier indicated and you have every prospect that the jury will apply its reasoning along the lines that his Honour directs. One must presume that the jury will follow directions, and this Court must assume that that occurs.

So, at the end of the day you have the real possibility of the jury adopting a faulty line of reasoning in coming to their conclusion by reliance upon what his Honour has told them. It would be hard to imagine circumstances where counsel would fail to object to that possibility, even given earlier utterances that it is a case of oath against oath, where the Crown is insisting upon that - that is the telling of the lies, about the phone call and about the Virginia Standardbreds - as being crucial to the acceptance of Radalj as a witness of truth and therefore the acceptance of the Crown case.

So that, whatever one may think of the proper use the jury should have made of the alleged lies, the reality is that they may have adopted a faulty line of reasoning in this case. If the lies direction was not appropriate in this case, how could it be said that the jury were not diverted from their task in considering oath against oath if that be at the end of the day how the real result would have to be determined in accordance with his Honour's directions that I have read to the Court today? How could it be said that it would inevitably have resulted in a finding of guilt? We submit it could not.

I was interrupted in the course of the learned trial judge's summing up to the references to the significance of - - -

GUMMOW J: Are these in your outline of submissions? They seem to play no part in this.

MR GRACE: They are generally referred to in the outline, yes, your Honour.

GUMMOW J: Whereabouts?

MR GRACE: Just in a general form, but I was merely highlighting those parts of his Honour's summing up, that his Honour highlighted the crucial significance of Radalj. If I could give your Honours the page numbers, perhaps that would suffice: pages 494 to 495, 500 - - -

GLEESON CJ: You earlier gave us 494, 500, 508, 516 and 522.

MR GRACE: Yes. There is 525. Then I refer to the comments of the court below in its judgment at 576, 584 to 585. Could I just refer your Honours to what the court below said at the bottom of page 584 at line 23:

It was submitted that in this case the jury were told that if the lies were found to exist they could be used to corroborate the evidence of Mr Radalj. This was impermissible because the lies could only be established by evidence independent of Mr Radalj, otherwise he would, in effect, be corroborating himself. It was submitted that the evidence of Messrs Strachan and Richardson was not sufficient evidence independent of Mr Radalj to prove the lies. That may well be so -

Then the court goes on to discuss other circumstantial evidence.

There are two cases which I wanted to draw the Court's attention to which have considered the effect in relation to the application of the proviso where issues of jury lines of reasoning and credibility have arisen. Those two cases are Prasad and Glennon. If I could take your Honours firstly to Glennon - - -

GUMMOW J: Is this mentioned in your outline? There is a reference to Glennon at pages 9, 12 and 13, is that right?

MR GRACE: There is reference to Glennon at 7 - - -

GUMMOW J: I am looking at paragraph 32 of your submissions.

MR GRACE: Yes, your Honour, but I wanted to take the Court to the specific issue of cases which involve credibility and lines of reasoning. The first is Glennon at page 8 in the joint judgment of his Honour Chief Justice Mason and Justices Brennan and Toohey.

GUMMOW J: This passage is not in your outline, is it? Why do you have outlines? You come along here and refer to other things. I just do not understand the process of reasoning that is involved.

MR GRACE: It is in the outline, with respect, your Honour.

GUMMOW J: Whereabouts?

MR GRACE: Paragraph 6 of the supplementary written submissions dated 15 October 1998.

McHUGH J: Supplementary?

MR GRACE: Yes. Do your Honours have those submissions?

McHUGH J: Yes.

GUMMOW J: Yes. What more do you want to say about them?

MR GRACE: I wanted to read your Honours short extracts.

GUMMOW J: Very well. It is 4 o'clock, you know.

MR GRACE: Yes, I appreciate that, your Honour. Perhaps I could highlight passages. At page 9 in the joint judgment of their Honours, there is reference at about point 4 on the page as to the specific facts of that case. Issues of credibility were central to their Honours' conclusion that there had been a lost chance of acquittal which was fairly open. Although the Court provided a caveat which is at the bottom of page 9 and over to page 10 as to whether there ought to be wholesale acceptance:

that the proviso will never be applied where the misdirection goes to the accused's credibility -

the Court said that:

the proviso should be applied depends on the circumstances -

The question:

whether a proviso should be applied depends on the circumstances of each case -

But in a joint judgment of Justices Deane and Gaudron at page 13, at point 6:

the central issue in the case depended entirely on whether the applicant or the complainant was to be believed. In these circumstances, a direction which wrongly detracted from the applicant's credibility and that of his witness must be viewed as having deprived him of a chance of acquittal that was fairly open. Or to put the matter another way, it is impossible to say that the jury would inevitably have convicted if there had been no misdirection affecting credibility.

In Prasad where the issue concerned the effect of evidence given by a number of boys who had witnessed an event, at page 195, column A, paragraph B, halfway down:

Nevertheless, the earlier misdirection might have led the jury into an entirely false line of reasoning. It is impossible to be satisfied that the jury did not convict in reliance upon the direction that the fact of the presence in the street together of the applicant and the deceased could be found on the evidence of the boys alone. If the jury so found and the finding was used as a foundation for the drawing of the ultimate inference of guilt, there was a miscarriage of justice.

And then in column B:

The error was in truth a positive misdirection. Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded. It is impossible to be satisfied that the accused did not lose a reasonable opportunity of acquittal: Mraz v The Queen.

Now, in Krakouer your Honour Justice McHugh emphasised the point that the application of the proviso has a very high threshold. Your Honour quoted from the judgments in Mraz and Wilde, and perhaps other cases.

It could not be said in this case that the jury did not adopt the line of reasoning that is set out at paragraph 22 of the appellant's submissions. We submit that it is not necessarily to the point that the jury, if properly directed, could ultimately have reached the conclusion of the appellant's guilt on some different basis. The fact is that the jury were presented with a Crown case which relied in part at least, if not wholly, upon a line of reasoning that is set out in paragraph 22, and his Honour so directed the jury in accordance with that.

In those circumstances, we submit that it could not be said that the appellant has not lost a real chance of acquittal. Those are the submissions on behalf of the appellant.

GLEESON CJ: Thank you, Mr Grace. Yes, Mr McKechnie.

MR McKECHNIE: If your Honours please, while we rely on the written outline of submissions, there are just some matters to which we would draw your Honours' attention. First of all, the explanation which the appellant gave for being at the premises on the day appears at page 366 in volume 2. He gives there the explanation in the course of examination in-chief at point 5 about why he was there.

I had been there on 5 August. I had to go and inspect the work and provide them with a verbal quote to proceed.

In answer to your Honour Justice Gaudron, I have not seen in the evidence that it was as a result of a prior luncheon engagement, although they did go to lunch after.

GAUDRON J: A passage we were referred to in Mr Green's evidence said, "I had arranged to have lunch", but he does not say whether he had arranged it before.

MR McKECHNIE: Yes. My reading of the cross-examination was that they often had lunch and if he was there they would often go to lunch.

CALLINAN J: At 418 there is some evidence, Mr McKechnie.

MR McKECHNIE: Yes. In the course of cross-examination at 25, as your Honour says:

I would have been there for either business or to go off to lunch with Steve, yes.

It is not a day that he particularly remembers. It was not diarised.

GAUDRON J: But I am looking at 419, line 25.

MR McKECHNIE: Yes, your Honour is quite right; that is the passage. So, the evidence is variable. The significance of the call, however, is that it must have been with somebody who knew about the conspiracy and was a part of it. It could not have been any stranger. That becomes clear at page 308 which is the evidence of the undercover officer. I am sure your Honours have been made aware of this but, firstly, the voice "was distinctly different to Radalj's voice". That is at line 15. He then described it. He then speaks to Greg and at the bottom at line 45:

Did you ask Greg anything else about Chesson?---Yes. I asked him about his family, how many children he had and what schools they went to. I also asked him about whether or not he had a girlfriend.

.....he didn't have a girlfriend.

He nominated something about the children at the top of page 309, all of which shows some knowledge of Chesson. He talked about the amount and then particularly, at lines 15 to 20:

I asked him how he wanted me to carry the killing out - - -

GLEESON CJ: Mr McKechnie, I do not think you need to persuade us that it is unlikely that when he received this call from a person he thought was a contract killer, Mr Radalj handed over the telephone to his personal assistant.

MR McKECHNIE: Yes, that is the point, your Honour.

GLEESON CJ: So, the two realistic possibilities are that he handed the telephone over to the appellant or that he disguised his own voice.

MR McKECHNIE: Those are the two realistic possibilities, and the undercover officer's evidence was that the voice was distinctively different.

McHUGH J: Well, there is a third possibility, that some other person was also interested in getting rid of Chesson and he joined the conspiracy later.

MR McKECHNIE: I would not put it as high as a possibility, your Honour, in respect of all the evidence. I am not quite sure what I of that.

I would just mention to your Honours, in relation to exhibit C, without taking your Honours to it, that in fact most of the re-examination of Radalj in relation to exhibit C should have been put - which appears from page 248 - most of the re-examination was about the letter.

In relation to the payment itself, the Chief Justice at page 577 - and I will not read it to your Honours - sets out some of the factual difficulties in the way of acceptance of the appellant's explanation for the payment, independent of Radalj's but just on the fact of the payment itself. In relation to that, when the trial judge was speaking about the payment and referred briefly to the Crown Prosecutor, did not refer to Radalj's evidence about the payment but to, in broad speaking, the factual circumstances which the Chief Justice has outlined as indicative of the lie.

GLEESON CJ: Just a moment. The Chief Justice's conclusion that there was a misdirection or a failure to give an appropriate warning must have proceeded upon the assumption that you needed the evidence of Radalj to establish the lie. That is the hypothesis upon which the whole discussion is deceiving, is it not?

MR McKECHNIE: That is the hypothesis, your Honour. It has not, with respect, appeared to us open to us to challenge that hypothesis.

GAUDRON J: That was the hypothesis at trial, in any event, was it?

MR McKECHNIE: The hypothesis at trial was that the payment was a sham but not particularly for the reasons that Radalj advanced. Radalj advanced in his evidence the fact that it was a payment for the conspiracy but that it was done by a medium of the horse racing syndicate.

GLEESON CJ: That is what I am trying to get clear in my mind and I am not entirely clear, I am afraid, at the moment. You have a payment of an amount of money from the appellant to Radalj in the sense that it goes from the appellant to the syndicate and then to Radalj. On the face of it, that payment appears consistent with the account Radalj is giving of their respective dealings with the hit man. Then you have an explanation, first to the police and later to the jury, of the payment given by the appellant. What I am not entirely clear about in my own mind at the moment is the extent to which the jury would have had to rely on Radalj to reject the appellant's explanation of the payment.

McHUGH J: And before you answer that, can I just add to the Chief Justice, because it is also part of my problem in the case: both as a result of what the Full Court found and some rather skilful advocacy on the part of Mr Grace, the part that Radalj plays in this tends to be glossed over or what connection it has. If you look at the direction on 521 of the judge, there is not a mention of Radalj in that particular section, and that is the critical section. The judge spoke about the evidence in relation to the Virginia Standardbreds being a sham. The complaint is not so much a misdirection, that in some way you did not go on and tell the jury, "Well, you could not take Radalj's evidence into account in relation to this issue".

GLEESON CJ: Yes, it is a failure to give a warning. That is the way Chief Justice Malcolm put it.

MR McKECHNIE: Yes. Well, as I say, we did not feel able to challenge the findings of the Court of Appeal and nor would I particularly want to.

McHUGH J: But I do not know that we can avoid some analysis of it in terms of applying the proviso in any event without understanding precisely what it is and what s conduct, it is not easy to weigh up.

MR McKECHNIE: And what was, in fact, said in a strong direction in relation to lies that was made. Your Honour has highlighted the point I mentioned in passing earlier, namely, that when the trial judge spoke about the question of lies, the evidence to which he referred, or he referred to the Crown case, was not about Radalj.

GLEESON CJ: The proposition seems to have been - and this is the proposition that was accepted in the court below - that there was not anything wrong with what he actually said but he should have gone on to warn the jury that they could not take the evidence of Radalj into account in reaching a conclusion that there were lies available for corroboration.

MR McKECHNIE: I agree with that with one qualification, your Honour, possibly because it is late, is that my recollection of it is that his Honour, after speaking of the need for corroboration for Radalj, did, in fact, positively say, "One aspect is the question of lies".

GLEESON CJ: What you might think about overnight is this question: in the circumstances of the present case, to what extent did the rejection by the jury of the explanation of the payment given by the appellant depend upon their acceptance of the evidence of Radalj. Is that a convenient time? We will adjourn until 10 o'clock in the morning.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 20 OCTOBER 1998