Conway v The Queen C11/2001 [2001] HCATrans 486 (3 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Registry

No C11 of 2001

B e t w e e n -

JOHN TERENCE CONWAY

Appellant

and

THE QUEEN

Respondent

GAUDRON ACJ

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 OCTOBER 2001, AT 10.18 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC: If the Court pleases, I appear with my learned friend, MR J. PAPPAS, for the appellant. (instructed by pappas j. - attorney)

MR P.S. HASTINGS, QC: If the Court pleases, I appear with my learned friends, MR S.J. ODGERS, SC and MS P.J. de VEAU, for the respondent. (instructed by the Director of Public Prosecutions (ACT))

GAUDRON ACJ: Yes, Mr Tilmouth.

MR TILMOUTH: If the Court pleases, if I could commence my submissions and deal briefly if I may with the facts and, if the Court pleases, in our submission it is quite important to appreciate at the start that there was very little direct evidence against the appellant, Conway - - -

KIRBY J: I am not entirely clear what the theory of the case that your client ultimately propounded was. There was a question which apparently suggested that Ms McFie was the sole actor in instigating the murder, but was that ultimately your client's case, can I ask you that?

MR TILMOUTH: It was partly that, your Honour. First of all, it was not involvement and, secondly, it was, if McFie was involved, it was a frolic of her own, if I can put it that way. It is certainly true that at one point counsel for the appellant did cross-examine McFie to suggest that and that led to what was called in the courts below but not pursued here, the judge's intervention, but there is no doubt that one aspect of his defence was that it was a frolic of his own, if I can put it that way, in which he was not involved at all. The prime part of his case was simply a denial of the relevant events and, if the Court pleases, in my submission, there was very little against him, at least directly, in the matter.

Could I summarise it, if I may, in this way first generally and then a little bit more specifically. The Crown case relied heavily, as the Crown Prosecutor acknowledged in his address to the jury and was clear on the evidence of Williams and Steer, in sum, your Honours, Williams gave evidence of the killing of course but, in the events leading up to it, he gave evidence about a conversation or conversations involving McFie and Conway - and I will identify these briefly in the papers in a moment - that he wanted his wife "knocked", was the word used, that he needed it done soon and that there would be a payment of $15,000 and it was to look as if it was a heroin overdose.

As regards Williams, they were the main events which were alleged against him in relation to the matter. If the Court pleases, it was not clear whether those conversations were one or two or perhaps three occasions. Without going into the detail, there was a lot of evidence and a lot of contradictions as between initial statements to the police, a later statement upon which they agreed to plead guilty and give evidence against the appellant and McFie and so on but, in the passages I am about to identify, I deal with them as three separate occasions putting the Crown case at its highest, as it were, but wishing to make the point that it was not at all clear that there were necessarily three or four separate occasions where these things occurred.

Could I identify the key passages, if the Court pleases, by the summary of them in the appeal book, which is volume 7, of the Full Court's judgment at 1515 to begin with, which is paragraph 26 of the media neutral references and at this stage, if the Court pleases, you can see from the first line that all the Full Court here is doing is summarising the evidence in-chief of Williams. It is not necessarily purporting to deal with all the nuances and the number of conversations.

The key conversation, your Honours, to begin with, the initiating conversation is at lines 18 and follows. It is the indented passage in italics and the third line was:

I want her to be knocked' -

and, more or less, there was some evidence of, perhaps, earlier conversations but, in essence, it was the Crown case, in our submission, that that really was the initiating conversation in which it was said that McFie was present and those words were said by Conway to Williams. That incident, your Honours, was what was called the "number plate incident" and how that came about was that - - -

HAYNE J: Sorry, can you go back a stage? You said McFie was present at this conversation?

MR TILMOUTH: Yes, your Honour.

GAUDRON ACJ: A little further up, though, it says she went into the bedroom with Alexander.

MR TILMOUTH: That is true as well. There are a lot of these little side issues about who was present and so on. Another example is at later stages, on the defence case, Williams attributed these words to McFie and so on. There are a lot of reasons to doubt this, but, as I say, I am just dealing with it at its highest at the moment.

This was what was called the "number plate incident" throughout the trial and the appeal. Very briefly, the reason was that Williams had a bicentennial number plate and the appellant was a collector of them. On the Crown case, McFie approached him about getting the number plate, and that was, as it were, a lure to get Williams up into the flat to speak with him about this particular matter.

Your Honours, although it is indefinite in time, that number plate incident probably occurred on 27 April 1997, although it could have occurred as early as 11 April 1997. We submitted a revised chronology yesterday and that incident is referred to at the top of page 4, the first item, 11 April 1997, and that is because the witness Ulanowicz, as I understand it, identified that date. It is also identified at the bottom of page 4 as 27 April 1997 as "The number plate incident" and I think it fair to submit that the gravamen of the evidence suggested the latter rather than the former date, although it was by no means certain.

Your Honours, can I explain the chronology just briefly. The items marked in red, looking at page 4 for example, were simply references added to the chronology originally filed. We added some more appeal book references. If you look at the top of page 4, the underlining - which should be blue or black underlining - that simply identifies items, three of them, that the judge directed the jury were strong corroboration. If you look alongside that item of 11 April as well, you will see an (E). That is the item (e), that recurs as corroboration No (e). So where you see numbers (a) to (r), they refer to items that were put by the jury and referred to by the Full Court as the identified items of corroboration.

KIRBY J: From your client's own mouth, the only inculpating evidence was the recorded conversation that took place in the car between himself and McFie. Is that correct, or not? From his own mouth, as distinct from what other people put it?

MR TILMOUTH: Yes. Part of my point is, your Honour, that if there is any corroboration it came with subsequent events. It might have come on 28 July when Steer and Williams were wired and there was a discussion about payment of the money promised. The Crown would also say that there was some corroboration in lies that he told to the police about his relationship with McFie. On another view of events, your Honours, there was a subsequent event on 18 June where there was an accident near these flats - Stuart - and Williams was a bystander. The Crown case was that the appellant suspiciously tried to distance himself from Williams and that it was also put as an item.

KIRBY J: And he said to McFie, "Guess who I saw?".

MR TILMOUTH: That is right, and the subsequent telephone conversation which - - -

KIRBY J: It is pretty inculpating though, is it not?

MR TILMOUTH: Not necessarily, if the Court pleases.

KIRBY J: Anyway, you take your own course.

MR TILMOUTH: Yes. But those items are conceded. Their weight is quite another matter. But our point, at the end of the day, would be, if the Court pleases, if the four items which we concede went to the jury only, it would be a lot different complexion in the case than the 18 that the judge did put to the jury. But, may it please your Honour Justice Kirby, the point that you did make is, in our submission, a good one. The only material against Conway that was in any way confirmed, was material subsequent to 3 May, when the death occurred. None of it beforehand, in our submission - - -

KIRBY J: What does that matter? I mean, you can have corroborative evidence after the event.

MR TILMOUTH: If the Court pleases, on my initial point, that the direct evidence against him, as opposed to indirect evidence - - -

KIRBY J: That is direct evidence, it is from his mouth.

MR TILMOUTH: That is true in that sense, but direct evidence of overt acts, if I can put it that way, very little indeed and none of it confirmed at all, in our submission.

Your Honours, may I proceed just for a moment to piece together the next two or three items. The next matter said to be either the same event or the different event was said to be about three days later than the "number plate" incident, and that was what was called the "boxes" incident. The appellant was passing boxes up to a flat, I think on the first floor, and that is referred to, if the Court pleases, also at page 1515 of the appeal book, in paragraph 27:

About thee days later Williams met McFie and Conway whilst Conway was lifting boxes up to McFie on her balcony -

that is line 27, paragraph 27:

On that occasion Conway said to him "keep it to myself.

Two lines down:

"I'll need it done soon".

Then your Honours will see proceeding on, which may be a third incident, this is line 29:

the next day or two there was a further conversation at which both Conway and McFie were present when the question of money was discussed, and Williams nominated a figure of $15,000. At some point in the discussions, the timing of which Williams could not specify, Conway said to him that he wanted it to look like an overdose of heroin given by needle.

Now, as I said, it is not accepted that those are necessarily separate conversations, but I deal with them just putting the Crown case in its best light, but the evidence was really very contradictory about them being separate.

The fourth incident, if it was such, may it please your Honours, was perhaps on 3 May and one may see that on the following page of the appeal book in paragraph 28 of the Full Court's judgment, line 2:

The day after the sum of $15,000 was mentioned Williams said a further conversation occurred in McFie's flat between him, Conway and McFie. McFie said they had the money and "it has to be done by this Saturday".

And the first line of the indented piece, your Honours, the direct evidence "this is the perfect time to do it" was alleged to have been attributed to the appellant.

Now, if the Court pleases as to that and as to the question of making it look like an overdose, as to the former, there was no confirmation or corroboration at all. As to the issue of overdose, the learned trial judge put that matter to the jury as corroboration as item (q) and the Full Court held he was wrong in that. As to the boxes incident - - -

KIRBY J: It was a massive injection. There was no evidence of any other punctures and there was no indicia of suicide. I mean, it is a very bungled attempt to show a suicide or - - -

MR TILMOUTH: Well, not in our submission, simply because what happened later coincided with what was alleged would not confirm Williams because Williams was party to the killing itself so he knew exactly what happened. So it would not have been in any sense independent of him.

KIRBY J: So you accept that Williams was the instrument? You simply deny that you have anything to do with it and Williams was in some way acting all off his own bat?

MR TILMOUTH: Off his own bat or in combination with McFie, yes. But, if the Court pleases, that was item (q), which the Full Court held was wrong - - -

KIRBY J: This is why I asked you about the theory of McFie. If that had been your case all along, that you are innocent, I could understand that, and even the conversation in the car could be an ex-post acknowledgment, "Guess who I saw?", knowing then what she had done and, as it were, not distancing himself, but not being guilty of it. But it seemed to have been a belated theory that came upon you in the midst of the trial.

MR TILMOUTH: Not necessarily, if the Court pleases, any more belated than would be the case coming first time in the defence case itself, although it did come through the cross-examination of McFie, it is true. But the fact remains, whether rightly or wrongly, and, in our submission, rightly, the court held below that item (q) was wrongly left. I may have said it, but I just repeat it for surety, that as to the boxes incident there was no confirmation or corroboration at all and as to the number plate incident, if the Court pleases, his Honour put corroboration as item (e) as strong corroboration, but the Full Court also held that that was wrongly put.

GAUDRON ACJ: How was that admissible, item (e)?

MR TILMOUTH: Well, that is quite another question, may it please, your Honour, and something perhaps I might be better to address later, but, in our submission, it was secondary hearsay at best, because it was Ulanowicz reporting something that Williams had said, but, as we understand it, if the Court pleases, how it eventually went to the jury was both reporting what Williams has said, which, of course, would not be independent of him and it was not a primary representation, of course, because it was not Williams who was saying it.

The other attribute was that Williams is supposed to have been shaken, agitated and fidgety, which of course was not independent of Williams either. He could have been agitated or fidgeting for any number of reasons, including his large heroin addiction. So, either way, it was clearly wrongly put to the jury and, of course, having gone to the jury, those matters are important, because these were really the only items of direct evidence against Conway at all.

The next matter, may it please the Court, is this: one also has to distinguish the evidence of Williams from the evidence of Steer, which stood in quite a different light. The evidence of Williams related to those pre-killing matters, if I can put it that way. As for Steer, if the Court pleases, Steer, in our submission, gave no material evidence of any relevant conversation to the charge as against Conway at all. In our submission, the only relevance of Steer's evidence as against Conway as an accomplice was a post-killing conversation, which was said at times to have been at a funeral or in a stairwell, and really this evidence was questionable as well because of various things that Steer had said about it and not said about it beforehand, but again, putting the Crown case at its highest, it appears, your Honours, at page 1520 of the appeal book, in paragraph 47 in the middle of the page, the gist of which, line 3, it was:

About ten days after the murder -

in time, ten days later, and the last two lines Conway is alleged to have said:

"What went wrong? Why didn't you make it look like suicide?"

That is really in sum, in our submission, all that Steer himself said of material importance in evidence for the Crown against the appellant himself. As to that, may it please your Honours, there was no corroboration or confirmation in any respect and, without going into the detail, there was reason to doubt that much because there had been different versions, putting it very summarily, by Steer in previous statements he had made to the police. In his first statement he said nothing about it; in the second he did.

If the Court pleases, the next category of evidence - and I have partly addressed it in answer to your Honour Justice Kirby, so I will be brief - was subsequent events. Just to summarise them, the accident, which has already been discussed, was on 18 June 1997. That is summarised in paragraph 38 of the appeal book at page 1518 at about line 11. "Don't look at me, don't talk to me" was that part, plus a subsequent telephone conversation with McFie, "Guess who I saw at the accident".

Can I just remind your Honours that, although that went as corroboration, there was a direction by his Honour the learned trial judge that what Williams said had happened at the accident, "Don't look at me, don't talk to me", was not confirmed at all. That direction is in appeal book 6 at 1269. I do not read it but that is the reference. So, of course, if there was any attribute of confirmation, it was in the subsequent telephone call, "Guess who I saw". In our submission, that was fairly, if I can put it this way, intractably neutral because there are all sorts of reasons why he would want to distance himself from Williams at that point.

The next item - and this has been dealt with as well - was the lies. Both the appellant and McFie, when spoken to by the police initially, maintained that they did not have any relevant relationship, close relationship, and both of them said in effect that she was a babysitter, which was acknowledged by them of course at the trial to have been untrue. That was the item (r) of corroborative material.

Finally, if the Court pleases, there was the incident on 28 July 1997 after Steer and Williams had been arrested and had given a statement to the police implicating the appellant and McFie in various ways. They later gave a statement in August, by the way, which they agreed to give evidence against the appellant and McFie according to that later statement in effect in order to secure more favourable treatment on the sentence, and they had their sentence reduced by one third on that account.

In any event, they went to the Gollan Street house on 18 June at 4 am in the morning, I think, or very close to, and it was bugged. It was recorded, although the recording is indistinct in parts, but the Crown would say it was very incriminating because it involved them, Steer and Williams, seeking the money that they had been promised and had not been fully paid and because there was evidence, particularly of McFie, toting up in effect what the balance was owing. That was put by the Crown as very strong material of guilt.

KIRBY J: Is this the recording that the Full Federal Court listened to itself?

MR TILMOUTH: Yes, it is.

KIRBY J: Should we listen to it?

MR TILMOUTH: It can be made available, if the Court pleases.

KIRBY J: It is said, I think, in the respondent's submissions, or maybe even in yours, that it had a powerful effect on the Full Court.

MR TILMOUTH: Yes, it did. The Full Court regarded it as "devastating", I think was their word, and they certainly regarded it as quite strong.

KIRBY J: Perhaps we should listen to it.

MR TILMOUTH: Well, that could be made available, if the Court pleases, but can I make this point about it if I may at this stage of my submissions. The Full Court dealt with it, your Honours, by the way, at 1577, at least in part. That is item (m), the corroborative item (m). If it assists your Honours, the gravamen of the recording itself, the transcript that is to say, is recorded at 1528 of the appeal book when the court is earlier discussing the items without discussing their corroborative effect. Now, your Honours, as to this, could I say this. We have conceded, as your Honours know from the outline, that it is capable of being evidence against the appellant. But, your Honours, an important point I would seek to make about it - - -

GAUDRON ACJ: Are we talking about the car accident or 28 July?

MR TILMOUTH: 28 July, your Honours.

GAUDRON ACJ: The transcript at 1528 seems to relate to the car accident.

MR TILMOUTH: I beg your pardon, your Honours, I am quite wrong - - -

GAUDRON ACJ: As does item (m). It is item (o), I think.

MR TILMOUTH: I withdraw (o) and put (m), I am very sorry. That is summarised, I am sorry, at 1578 and the line is devastating is at line 27 and the transcript, at least in part, is from 1529 to 1531. They are the material parts.

KIRBY J: How long does the recording last?

MR TILMOUTH: About 10 minutes or so, if the Court pleases. It is very hard to hear. But, your Honours, the important point I seek to make about that is this. Conway and McFie's evidence was that Conway was out of the room, particularly when there was discussion about what amount of money was owing. Conway's evidence was that he did give $50 and, your Honours, the evidence was that Steer and Williams left the house and they were met by police straightaway and the $50 was there and then the police went into the house and arrested the appellant and McFie straightaway.

Conway's evidence was that he realised during the conversation that Steer and Williams had done this and he was simply going along with the story at that stage with the intention of reporting it afterwards, and that is why he gave them the $50, but if the Court pleases, the evidence of himself and McFie - - -

HAYNE J: Sorry, did he say why he was going along with it?

MR TILMOUTH: As I understand it, he was going along with it while they were there and as soon as they left it was his intention to report the matter to the police later that morning.

HAYNE J: Yes, and did he say why he went along with it?

MR TILMOUTH: I am not sure, your Honour. I will have to get that checked, if I may. I might have to deal with that later. But, as I understand it, the gist of it was that he had a realisation at that time of the enormity of what they had done and the situation was one that had confronted him at 4 o'clock in the morning.

HAYNE J: His explanation is surely critical. Saying simply, "I went along with it", provokes more questions than it answers. What did he say about why he went along with it?

MR TILMOUTH: I will have to get that checked, if the Court pleases, because I might be inaccurate in my summary. But, your Honours, there is no doubt, of course, that the Full Court regarded his explanation as implausible, I think - or akin to, anyway, if they can use that word. But the important point is that not only did McFie and Conway say he was out of the room particularly when the critical counting-up of what was owing went on, but the evidence of Steer and Williams supported that view. Without reading it, Steer's evidence in book 2, at pages 336 and 339 to 340, said that he was out of the room for at least one or two minutes. Williams' evidence, in book 4 at 431, was that Conway was out of the room from about three minutes near the end.

Your Honours, if I can translate that in a way which relates it to the interview itself. The full transcript is in book 6, at 1325, and the effect of the evidence, in our submission, on all counts strongly suggests that if one goes to 1333 in the appeal book, at the bottom of that page where the male says, "Thanks John", the evidence, in our submission, the references I have just given the Court to, suggests that Conway then left the room after "Thanks John", at point 9 of that page, to get the $50, and did not return until about the middle of 1336 or shortly thereafter. Your Honours will see in the middle of 1336, Williams says, "Was that a yes John". Now, in between, there is, in our submission, no reference to Conway, or John, or anything that refers to him direct. All of the evidence was, in our submission, suggestive of the fact that he was out of the room in that period.

KIRBY J: Well, I do not know where you are looking. A 1327, about point 2, it is, "Meanwhile John". So he is apparently addressing him.

MR TILMOUTH: Yes, he is there then, your Honour. The suggestion is - - -

KIRBY J: Where do you suggest he leaves?

MR TILMOUTH: At 1 - - -

KIRBY J: Further down the page, at point 7, there is, "John", and down the bottom - - -

MR TILMOUTH: Yes, there are references there, your Honour. At 1333, down the bottom, the third to last line, "Thanks John", is where we submit he left, on all of the evidence of all four, and he returned at about the middle of 1336. He was away in that period in the next room or elsewhere getting the $50.

Your Honours, the significance of that is, in our submission, that at 1335, from about point 3 to halfway down the page, there is McFie and Williams and Steer discussing:

WILLIAMS: Actually how much do yous owe us now?

STEER: I'm at eleven.

McFIE: Mmh, four,

STEER: So you're saying ten eight.

That, of course, is what the Crown said was quite incriminating because it is evidence confirming the fact that there was a promise earlier to pay money and some of it remained unpaid.

Our point for the purpose of this appeal is, in our submission, that whatever else one may say about the conversation and Conway's involvement, that, in our submission, on the whole of the evidence, he probably - - -

KIRBY J: It is pretty damning evidence against Ms McFie at 1335, is it not?

MR TILMOUTH: Yes.

KIRBY J: So you really have to have the theory that it was Ms McFie with her infatuation that has led to the deal with these two people who were the instrument - - -

MR TILMOUTH: Indeed.

KIRBY J: - - - and that your client was the innocent victim of her wrongdoing.

MR TILMOUTH: Yes.

KIRBY J: Yet that theory only emerged very late in the trial.

MR TILMOUTH: But, with respect, you would not necessarily expect it to come earlier. It could have, of course, it could have in his interviews, but that fact alone, in my submission, is not of much weight.

The other thing I would put to the Court, if the Court pleases, on this particular conversation is that, of course, it is perfectly consistent with the appellant simply wishing to protect McFie and it is also perfectly consistent with him being merely an accessory after the fact.

HAYNE J: Can I understand that. Can I take you back to 1326. Towards the bottom of 1326 Steer is addressing:

John, John. Can I have quick sec mate.

From the transcript it seems that that is a conversation at the doorstep. Page 1327, he is coming in, the door is closing, about line 4 or 5. The question put by Steer is:

I need you to pay me.

We then go on with various conversations towards point 8 of the page:

STEER: I, I really got to go, can you understand what I'm doing John, I really got to go, okay . . .

STEER: I need ya, I need you to fix me up mate, I don't like coming here I, I can't -

et cetera. Page 1328, Steer makes plain that the subject is murder. What do you say is the explanation of what is happening at this point? "You've got to pay me", followed by explicit discussion of the fact that a murder investigation is under way. What is going on?

MR TILMOUTH: Well, your Honours, the appellant's evidence - and this is in book 4 - - -

HAYNE J: No, not what the appellant says. What do you say the jury might properly make of this tape?

MR TILMOUTH: That they might think that this is a situation of surprise in Conway's mind and that he is simply going along with it because of the enormity of the situation that has been revealed to him at that time.

HAYNE J: "You've got to pay me."

MR TILMOUTH: Well, your Honour is quite right, of course, the subject matter is murder and I understand what your Honour is putting, but if your Honours look carefully at what is going on in those pages your Honour Justice Hayne has referred to and, indeed, earlier, Conway is doing and saying very little at all and the only pregnant thing perhaps that might come out of it is at all, in my submission, the failure to express surprise or refute it. But, in my submission, really all that Conway does in the end result which could be regarded as incriminating is at 1333 before he leaves the room, when asked about getting some money he says at about point three, "Definitely some."

KIRBY J: He says at 1329:

I can get it within a couple of days.

MR TILMOUTH: That is true, that is true.

KIRBY J: Well, that is pretty devastating stuff.

MR TILMOUTH: Well, if the Court pleases, I understand that it is incriminating - we accept that - but, if the Court pleases, that really is a question for the jury to decide, absent all the matters that got muddled up with all of this which, in our submission, were clearly not corroborated - - -

KIRBY J: Yes, but you are here asserting a miscarriage of justice.

MR TILMOUTH: Indeed, I understand that, your Honour, but, in my submission, on the miscarriage of justice issue the Full Court really accepted that if there were only a few items of corroboration that they would undoubtedly have applied the proviso. Our case is that there are only those few items. One may regard this conversation as incriminating, but it is a very large question, in our submission, and one for the jury, just how incriminating and it is one that it deserves to consider free of the other matters which should never have been put to it as corroborating other material events.

HAYNE J: Let us take the tape in isolation. What do you say a jury could make of this tape, the conversation thus recorded? Strip it away from all the other incidents that have been said to them are corroborative.

MR TILMOUTH: There are two extremes, of course. It could simply say it was a situation that was sprung on him and in the surprise of the moment his reaction was unusual but not incriminating. The other - - -

KIRBY J: Yes, but the reactions are not just that of surprise. They are reactions of complicity, "I can get it within a couple of days", and alarm of their arrival, "Where did you get the taxi from?", obvious concern, taxi records which would show that these people came to his place and that that could be checked and proved.

MR TILMOUTH: Yes.

KIRBY J: Therefore, the concern of Mr Conway was not to say, "What the hell are you talking about?", or, "This is something I am completely innocent of". It is complicity and agreement to pay and concern about the evidence that they were providing.

MR TILMOUTH: Yes.

KIRBY J: It is devastating.

MR TILMOUTH: Well, in my submission, it is not that strong, or not necessarily that strong, and, in my submission, it is a matter for the jury to consider.

KIRBY J: Of course it is a matter for the jury, but you are here seeking our intervention, which we would not ordinarily give simply to clarify an interesting legal proposition if there is no miscarriage of justice.

MR TILMOUTH: Well, I understand that, may it please the Court, and, of course, I accept it, but if the Court pleases, the Full Court in the court below accepted that if we were right, but for the co-conspirators' rule, it would not have applied the proviso.

KIRBY J: In the end I assume that the Full Court must have approached the matter in a proviso way, because they found that there were a number of matters identified as corroboration but which would not have represented corroboration and should not have been said to be corroboration. So there was an error of law in the direction and therefore the issue of the proviso, at least at that level, must have been in their minds.

MR TILMOUTH: Exactly, and, in our submission, the question of the proviso was dominated by the court's view that even though there were four items wrongly left, the remaining 12 were all admissible against Conway under the co-conspirators' rule, and that was enough. One of those 12, of course, included this very subject matter. But, your Honours, in the appeal book 7 at page 1574, where the court was considering this particular matter, in paragraph 225, line 4, counsel:

submitted that the trial judge had wrongly identified all save one, or perhaps two, of these items of evidence as being capable of constituting corroboration when he summarised the case against Conway. If that submission were correct, there would undoubtedly have been a miscarriage of justice.

Now we concede three or four, but two of those four are very minor and, in our submission, we got the court to the point where in fact it agreed with us, save for the point of law in issue in this case.

HAYNE J: Was there any challenge at trial to this tape being an accurate tape of a conversation which, subject to the caveat you have entered about Conway's presence for part of it, included conversations to which Conway was a party and which Conway heard?

MR TILMOUTH: No, there was not. The main point made was that Conway was absent at the critical time and your Honours accepted that as an exception.

KIRBY J: Well, you say it is critical, but there are some pretty critical times where he was present and participating and speaking.

MR TILMOUTH: That may be. Once again I acknowledge that, and I am driven back to the point that really that is a matter for the jury and I am driven back to the point - I drew the Full Court to the water trough, but I did not make it drink for a reason, which we say is quite erroneous. They would have allowed the appeal had they not been against us on the co-conspirators' issue. And, could I also make the point, if the Court pleases, if one put it as high and as strong as this is, the whole summing up was dominated by not only four items which were clearly erroneous, but by another eight, which, in our submission, should never have been put against Conway.

HAYNE J: I understand all that and there is a lot of issues that were agitated at trial and, at least for the moment, I see considerable force in what you say about the directions that were given about corroboration, but at some point where we have a tape of this kind, the content of which is not disputed, there is a real and lively question in my mind about the proviso. At the moment, it seems to me it is plainly arguable that there was a misdirection of law. There was probably misreception of evidence. To me, at the moment at least, the case seems to have come down to a proviso question and you have this tape, in which case the explanation of the tape becomes the critical element. But I am anticipating and you should take the course that you think best.

MR TILMOUTH: Yes.

KIRBY J: The only way that you, consistent with the innocence of Mr Conway of the murder, can advance the point, is to say, "Everything he said, and everything that is attributed to him in the conversation, is consistent with a theory that McFie had committed the murder, planned it, arranged it, agreed to pay for it, and that he got sucked into it after the event out of loyalty or affection for her", and that if you look at what he actually says about paying, and finding the money, and concern about the taxi, that is consistent with that theory.

MR TILMOUTH: Yes.

CALLINAN J: Could you just confirm for me, Mr Tilmouth, was the appellant there when McFie said what she did say at page 1334, the second statement on that page by her?

MR TILMOUTH: No, we say he was out of the room at that stage.

CALLINAN J: He had left by then?

MR TILMOUTH: Yes, that is what we say. Your Honours, can I try and answer two questions in what has been put to me about this? The first is, in my submission, in general, the law or appeal courts have been slow to apply the proviso where corroboration has been wrongly left. Of course, the usual principles apply. But, your Honours may remember Lord Simon in Davies Case said that the evidence otherwise properly available to be left had to be convincing, cogent or irresistible, and whatever one says about this 28 July matter, in my submission, it is not that high.

I have already made the point, of course, that it was mixed up with a great deal more other material. Could I also make the point, your Honours, that in three places, although this was not one of them, his Honour put to the jury that evidence was strong corroboration, you might think. Those items are outlined in our reply. One of them, item (e), was wrongly put altogether, and if one considers all of that together, in my submission, even if one wanted to take a very stern view of the 28 July conversation, one could not, in my submission, safely apply the proviso in those circumstances.

HAYNE J: Can I test it in this way. Would the proviso be engaged if the Crown had gone to the jury relying wholly on the tape of the events of 28 July 1997 as evidence of admission by Conway and it would have been perverse for the jury, given the absence of dispute about its content, to return a verdict of not guilty?

MR TILMOUTH: It clearly would have been open to return that verdict, assuming otherwise proper directions.

HAYNE J: But the proviso would be engaged, would it not, if it would be perverse to return a verdict of not guilty in face of this tape if that were the only evidence against Conway?

MR TILMOUTH: Assuming it would be perverse, which is where I disagree.

HAYNE J: And that is the field for debate: would it be perverse?

MR TILMOUTH: In principle, with respect, that is right but, in my submission, it is quite wrong, for the reasons I have identified, to look at this in isolation because the case was dominated by the other matters which one way or another wrongly went - 18 of them. This is just one of them. The jury might have taken a different view of these 28 July matters if it did not have all those other considerations on top of it to consider. One cannot say, in my submission, confidently that the jury inevitably would have had to come to the same conclusion. That is where it would be wrong, in my submission, to apply the proviso.

KIRBY J: Allowing that there are several bodies of evidence and that the jury may have chosen one body and went along that line and that that would sustain a verdict that the jury returned, it still remains for us on the appeal to consider whether or not there is such evidence that made the conviction of your client inevitable.

MR TILMOUTH: Yes, I accept that, but the test really is whether the appellant lost a fair chance of acquittal reasonably open to him. In my submission, it must follow that he did if it is accepted that 12 items of evidence wrongly went to the jury.

HAYNE J: No, that is a proposition that any misdirection of law requires reversal of the conviction. That proposition is not what the appeal statute provides; there is the proviso. Barely pointing to misdirection or misreception of evidence does not suffice.

MR TILMOUTH: I accept that of course. The point I am making is not the point of law but a question of fact. So much material wrongly went to the jury under the same rubric of corroboration that if the Court is considering applying the proviso because the corroboration eventually left was strong enough anyway, it would be to ignore the interrelation or the interaction of the wrong items on the items that were correctly left. In my respectful submission, the Court cannot confidently say if it was only the 28 July, the jury would have come to the same view.

GAUDRON ACJ: And that is because you say the conversation is capable of being construed on the basis that he found out about it subsequently?

MR TILMOUTH: Indeed. It is capable of being construed in an innocent way.

GAUDRON ACJ: Well, I do not know that that is innocent but it is not quite the offence with which he was charged.

MR TILMOUTH: No, indeed. What I put earlier, your Honour, was it is capable of being construed as protecting McFie. It is equally consistent with him being an accessory after the fact, or even in the old common law a misprisioner, and it is consistent as well with him simply being stupid, doing something in panic out of fear or surprise.

KIRBY J: That is pretty rich. I find the last of your theories pretty hard to swallow. I mean, suggesting that he is saying, "I can get the money in a few days", that is not surprise, that is volunteering.

MR TILMOUTH: Well, it is. Now, can I answer that as well - and this answers your Honour Justice Hayne a little as well - what the appellant said about the situation is in book 4 at 927 in cross-examination. This is the prosecutor cross-examining about this particular issue. Perhaps I should go back to the bottom of 926 to put it in context, the last question at line 29:

In any event, Mr Williams asked you if he could get a couple of grand or something off you and, if you turn over the page, you said you can get it within a couple of days?---That's correct.

What, going to give him a couple of grand in a couple of days?---No, that's what I told him.

Was that just to keep the conversation flowing was it?---That was to keep them basically quiet as far as any demands and such like were concerned. I just wanted to - I had enough information at that time to go to the police later that morning and if they wanted something I was just going to agree to it just to keep it - keep the situation quiet.

KIRBY J: So he disclaims the McFie theory?

MR TILMOUTH: Yes, at that point at least, but may it please the Court and your Honour Justice Hayne, that is what I had in mind when I made the earlier reference to the explanation.

HAYNE J: Can I, at the risk of unduly delaying you on this, point to some particular features of the transcript that trouble me? Page 1327 line 8 or so, Steer, "I need you to pay me". Page 1328, last three lines:

well stuff it I've got to go and see you people and get some money.

Page 1329, line 2, Conway, "I can get it within a couple of days". Page 1331, point 5 or a little under point 5 of the page, Steer, "They" - meaning thereby the police - "didn't believe me. They" - that is the police - "they believe that John" - meaning Conway - "and yourself" - meaning McFie - "employed me to murder". Page 1333, line 2, Conway, "I'll give you a ring". Line 4, "I'll give you a ring later today". Williams, "So we should be gettin our money in the next coupla days". Conway, "Definitely some".

MR TILMOUTH: Yes. Your Honour, there is perhaps one missing as well - and this is against me, of course - 1332, your Honours, about point 8 or 9, Conway:

Kaths got your phone number hasn't she.

HAYNE J: Yes.

MR TILMOUTH: But, if the Court pleases, that is it, if I can put it that way.

McHUGH J: Well, what about 1337, right at the end - at the top of the page:

just a quick question for you, yous have got rid of all the evidence that could . . (inaudible) . . Yeah, just so if they should come your way that's all.

. . .

the key thrown away shit like that -

et cetera, et cetera. I mean, what would a jury think against all this background, a statement at 1329, they will get "twenty years for murdering this woman", and as to Conway, it is his wife that is being murdered.

MR TILMOUTH: Yes.

McHUGH J: It is a pretty strong case, Mr Tilmouth.

MR TILMOUTH: May it please the Court, I understand what the Court is putting to me, of course. In the end result I would only be repeating myself, but those matters are quite important and, with due respect, given the errors it is really a matter for the jury, and they may well have come to a different conclusion if they had proper directions on proper material.

Your Honours, could I return, if I may, to the argument and very briefly make this point, without hopefully reading very much. The next point is that when the evidence went to the jury, by dint of the corroboration directions and by dint of the co-conspirators' directions, every overt act or word by Steer, by Williams and McFie, went to the jury as evidence against the appellant without qualification or exception, and without any direction which, in the case of the corroboration distributed it as it were, as between him and McFie, and under the co-conspirators' principle, in my submission as well, it was important under the principle in Ahern, to distinguish between evidence which was capable of supporting a combination or a common purpose to murder, as distinct from the appellant's participation in it.

In my submission, in general terms, there were two layers of error. There were the corroborational errors of failing to point out which went to the case against McFie and which went to the case against Conway, but there was also further error in failing to identify what got in under the co-conspirators' principle for what purpose. In other words, did what something McFie said in his presence merely support a combination, or did it go further and support Conway's participation in it.

The distinction under Ahern, in my submission, is quite important because if it goes in as to the former; ie, combination in general or the crime in general, it does not go as to the truth. It is what the United States cases call "verbal acts". If it goes in because it includes an implied assertion, or something is said or done with the implied authority of Conway, of course it goes in as to the truth.

KIRBY J: It is a very subtle distinction.

MR TILMOUTH: It may be, but it one that the law makes, if the Court pleases.

KIRBY J: You wonder whether juries appreciate these extremely subtle points when, if you look at what his Honour did, he did give a number of warnings about accomplices.

MR TILMOUTH: He did.

KIRBY J: They were quite strong warnings.

MR TILMOUTH: They had to be in this case, may it please the Court.

KIRBY J: So that once you have that, you wonder whether this very fine subtlety is really very effective in a true trial setting.

MR TILMOUTH: It is, in my submission, because once you give the warning that it is dangerous, as the warning was in this case, once you start identifying evidence that can confirm or corroborate, to use the old language, it tends to be a subterraneous issue, as it were. In other words, it is not dangerous or it is safe. Of course, the more items that are pointed out as potentially confirming, the more prejudice there is if they are wrongly put to an accused, and that was the case here, in my submission.

If the Court pleases, the point is, for the moment, just generally: everything went in, on every issue, without discrimination, whether it was required under the corroboration principle or the co-conspirators' principle. Now, can I point out those directions, your Honours, without reading them. The corroboration directions, first of all, commence in book 5 at 1239. I do not read it. It is in the standard common law language. Your Honours will see at line 25, it was:

dangerous to convict either accused upon the evidence of those accomplices or one of them, unless it is confirmed in some material way by other evidence.

At 1240, his Honour directed the jury, at lines 6 and 7:

And you do not need any corroborating evidence before you could convict these two accused of the murder of Mrs Conway.

That was typical, in my submission, of the directions. It was general: it went against both accused without any discrimination. His Honour repeated that it was "dangerous" at line 9, and his Honour went through the material that they pleaded guilty and actually directed them, at line 14, that the "risk" of the danger might have dissipated, because they had been sentenced. Now, as your Honours know, at the request of counsel there was a redirection, and the Full Court held the redirection saved what was plainly otherwise a misdirection at this point. That is not the subject of this appeal. But what his Honour went on to say in the next paragraph, at line 18, he defined "corroboration" in a passage quoted by the Full Court, and your Honours will see at line 21, his Honour said to the jury:

but it was these accused who were a party to it.

Again, non-discriminating, or non-separating. And at line 29, his Honour repeated:

not only was the crime committed, but these two accused were part of it.

There were similar directions in the next volume, volume 6, after the redirections, to correct the error in relation to the risk being removed. At 1261 to 1263, his Honour repeated the reasons at 1261, from 15 onwards, why it was dangerous. At lines 37 and 38, he put it compendiously:

as a result of some contract between them and the two accused.

And at 1262, there were further directions. The word "dangerous" was repeated at line 21. At line 28, his Honour put it generally:

against these two accused, as long as it is some evidence in the chain of circumstances inconsistent with the innocence of either -

and then his Honour gave a mutual corroboration warning according to, at least, common law.

Over to 1263, his Honour then commenced to deal with each of the items which were ultimately marked (a) to (r) by the Full Court - the first one, (a), commences at the top of that page - and I do not trouble the Court with that. So, the situation is, in my submission, to this point, as submitted in paragraph 16 of our outline - without reading it - that corroboration was put in general terms as available against both accused without discrimination. And that particular direction was repeated in the passages I have mentioned already. Now, as regarding the co-conspiracy directions, perhaps the directions are best summarised in the appeal book, volume 7, at 1587, where the main body of directions on this issue are quoted in full by the Full Court -1587, your Honours, paragraph 252.

If your Honours wanted to check the directions themselves, in context, they are in volume 5 at 1199 to 1200, of the learned trial judge to the jury, but the gist of them is as on 1587 and your Honours can see, if I may paraphrase, perhaps, to save a bit of time, that in these directions, his Honour, in the first paragraph, talked about the "pursuit of an unlawful object" and that fact, at line 9:

will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the actual words, that the accused was also a participant.

By the way, as your Honours will have read, there is no contest about that fairly low threshold. The evidence of Williams alone would have been enough for that. His Honour proceeded to direct the jury, at about line 17:

everything that Steer and Williams said and did in furtherance of that common purpose is evidence against both these accused. And there has not been any argument put to you by anybody that when something was done, if you found that it was done, it was not evidence against these two accused.

I will come to Conway's defence later on that anything that McFie did with the two assassins was not done with his knowledge, but if you are satisfied that there was a combination, then anything that McFie said to Steer and Williams is evidence against Conway because it is something done in furtherance of the common purpose. But the question for you is, was there a common purpose? Both accused say that they were not a party to any such common purpose.

So all the evidence was left as a whole, as it were, and not divided in any way.

Now, if the Court pleases, bearing in mind those two sets of directions, corroboration on the one part and co-conspiracy on the other, the Full Court dealt with the matter in this way. At 1579, your Honours, at paragraph 226 at the bottom of that page, the Full Court, as your Honours know, determined that four items, line 29, (b), (e), (g) and (q) were wrongly left. Twelve items were correctly identified as being capable of corroboration. So that dealt with the corroboration issue in general.

May it please the Court, the court then went on to deal with the next submission at 1582, that although those remaining 12 items might have been corroboratives, they were not against Conway, the appellant, and this is dealt with in the second to last line of 1582, paragraph 38:

The final matter to be considered regarding the trial judge's directions to the jury concerning corroboration is Mr Tilmouth's submission that the trial judge erred in failing to direct the jury that they were required to consider each item of evidence said to be capable of constituting corroboration separately in the case of each accused. Mr Tilmouth submitted that in any case involving more than one accused a direction of this type was required to be given as a matter of law.

Their Honours went on to deal with Checconi and Kalajzich.

Now, to shorten my submission, your Honours, can I do it this way - Checconi and Kalajzich are cases 9 and 10 respectively in our list of authorities. Both of them are clearly authority for the proposition, Checconi being a conspiracy involving drugs and Kalajzich being a murder and conspiracy to murder, ie, a substantive offence - I do not intend to read them, your Honours, because the quotes are in the judgment - are clearly authorities, both of them differently constituted Court of Criminal Appeal of New South Wales, stating that whether it is a substantive offence or it is conspiracy, the rule, in effect, in Baskerville adopted by this Court in Doney still applies and that the judge must identify the evidence which is admissible against one accused and separated from that which is admissible against another. In my submission, to accept the respondent's argument, those authorities which have stood for some time, although not a great deal of time, would have to be disapproved. Kalajzich was in 1989 and your Honours can see Checconi was in 1988.

Your Honours, I would also add, without reading that there are other authorities to exactly the same effect, R v Chai (1992) 27 NSWLR 153 at 198 to 199. I have copies for your Honours without reading it now, but exactly the same principle is applied which derives back to Baskerville and Doney. That is also Court of Criminal Appeal, New South Wales. R v Mathews & Ford [1972] VR 1 at pages 19 to 20, your Honours, which is case No 8 on the list of authorities.

There is a relatively recent application of the same principle in an English Court of Appeal case of Donat (1985) 82 Cr App R 173 at 178 where in a case of conspiracy the very same issue arose and Baskerville was applied to require a corroboration direction to distinguish between the two accused. So, if the Court pleases, in my submission, quite apart from Doney, to which I will come in a moment, there is a formidable body of case law which demonstrates, in my submission, that whether it is conspiracy or a substantive offence based on preconcert that the Doney/Baskerville principle applies that the corroboration must not only be evidence showing the crime was committed, but that the particular accused committed it.

If the Court pleases, having dealt with those two cases and accepting that they supported the proposition for which I contended in the court below, as the Court knows, at 1584 the court went on in paragraph 241:

It is important to note that Mr Pappas did not seek any such direction from the trial judge.

I will come back to that if I may in a moment. The co-accused did.

It was Mr Thomas, counsel for McFie, and not Mr Pappas, who raised the question whether such a direction should be given.

Then their Honours talk about that:

On any view, virtually every item of evidence identified by the trial judge as being capable of constituting corroboration involved McFie's own conduct. Obviously each of these items of evidence was admissible in the case against McFie, and clearly each of them, save for those which were intractably neutral, was capable of corroborating the accomplice evidence in her case.

That is right, if the Court pleases. But their Honours went on at 242 to state that:

A number of the items of evidence which were identified by the trial judge as being capable of constituting corroboration consisted of acts and declarations on the part of McFie which took place in the absence of Conway. These acts and declarations were admissible against Conway provided that they fell within the ambit of the "co-conspirator rule", ie, provided there was "reasonable evidence", independent of McFie's acts and declarations . . .

243 There seems no reason in principle why such evidence, if admissible against Conway, could not also be capable of constituting corroboration of the accomplice evidence in his case.

That of course is where we say the error occurred completely.

Your Honours, without reading it, in our submission, that cannot be right not only because of the authorities that I have put to your Honours already but because, in my submission, it is totally unsupported by any authority and, indeed, their Honours cite none. Their Honours say, "There is no reason in principle why such evidence", et cetera, but they do not identify the principle which drives the exception to what I submit is clearly a rule of law. In my submission, when one goes back to the authorities and, indeed, the textbooks, all of the textbooks where this issue is confronted are driven back to Baskerville's Case in the end result.

Baskerville, as your Honours may know, goes back to at least Jenkins' Case (1845) 1 Cox CC 177. All of the academic texts which we can locate are summarised in paragraph 22 of our written submission. All the standard works, Cross, Archbold, Wigmore and Williams, a Canadian treatise, in the pages or paragraphs we have mentioned there, if your Honours read them, they all cite Jenkins and/or Baskerville to support the proposition that even in a conspiracy or common purpose type case where you have multiple accused, the court is still required to direct which piece of evidence goes to which accused.

The other point we make, may it please the Court, is this, that not only is the principle driven by longstanding and well-established authority, but it is authority specifically adopted by this Court in Doney's Case. The reference and the quotation from Doney is in paragraph 21 of our written submission, your Honours, and Doney, of course, specifically adopted Baskerville.

In Baskerville, of course - I do not intend to ready it, your Honours, it is in paragraph 21, the bit I would read, of our outline. Of course, the issue that Baskerville settled and why they sat five judges in 1916 was the very question of whether or not evidence confirming the witness to be corroborated simpliciter was enough, or whether it had to go further and identify that the particular accused was involved. As the Court knows, Baskerville resolved unanimously for the latter.

That, in our submission, was expressly adopted by this Court in Doney. The reference is in paragraph 21 at 211. Your Honours, can I also suggest, although perhaps it was not strictly necessary for these decisions for the Court to adopt Baskerville, it was certainly cited with approval in Chidiac by this Court, BRS and Pollitt. Chidiac [1991] HCA 4; (1991) 171 CLR 432 at 456 and 460, three judges expressly referred to it there; in Pollitt [1992] HCA 35; (1992) 174 CLR 558 at 600, and in BRS [1997] HCA 47; (1997) 191 CLR 275 at 283, 291, 297 and 324.

KIRBY J: Can I just ask you, you plunged into these common law principles, but this was a trial governed by the Evidence Act 1995 .

MR TILMOUTH: It was.

KIRBY J: What are the implications of the Evidence Act, both for their direct application and for moulding any common law principles to ensure that they are consistent with the principles of the Evidence Act?

MR TILMOUTH: Yes. What happened, in a word, was that the Evidence Act rather became overlooked.

KIRBY J: I am sorry?

MR TILMOUTH: The Evidence Act was overlooked at the trial, and the Full Court acknowledged this. In effect a - - -

KIRBY J: This is always the case. Lawyers hate statutes. They love judge-made law.

MR TILMOUTH: That may be, your Honour, but, in fact, of course, overlooking the statute worked to the detriment of the appellant because if the statute applied and something less than the standard common law warning was given and perhaps a short sharp warning, as the Supreme Court of Canada said in Vetrovec for example, was given, it would have been more advantageous to the appellant. Of course, the more the court goes into each item of corroboration, the more it stacks up as against the appellant in this case. In the end result that does not, in my submission, help the respondent.

GAUDRON ACJ: Well, the question though, at the end of the day, in relation to each of these items that are allegedly corroborative, must be whether they have got probative value against a particular accused.

MR TILMOUTH: Exactly, and the court - - -

GAUDRON ACJ: And, I suppose, if they do not directly relate to the particular accused, they will only have probative value - I am leaving aside the hearsay matter, I suppose, which seems to raise problems of its own - if there is some logic that says evidence against one is evidence against all.

MR TILMOUTH: Yes, but, in my submission - - -

KIRBY J: But is this the relevance gateway of the Evidence Act?

MR TILMOUTH: Well, that is what is argued.

KIRBY J: I mean, I want to know what I am doing here. Am I supposed to be applying the Evidence Act or am I supposed to be, like everyone else, ignoring it and just applying common law principles as though it never had been enacted?

MR TILMOUTH: Well, the trial judge - at trial it was ignored and, by the way - - -

HAYNE J: Well, that is as may be. It should not have been, should it, and we cannot?

MR TILMOUTH: No, you cannot, and the Full Court - - -

HAYNE J: Well, what are we talking about the common law for? Why are we beginning there? For it to be ignored at trial is, at the very least, unfortunate.

MR TILMOUTH: That may be accepted, but we would, with respect, be driven back to what, with respect, your Honour Justice Gaudron put to me. We are still driven back to these items of evidence and looking at them and see what they do.

Now, to answer your Honour Justice Kirby further, it is put in the outline for the respondent that some of this material was relevant under section 55. That may or not be accepted, but let us accept it for the moment. The real question is, "Relevant for what?". As I have endeavoured to point out earlier, one then has to start thinking about, "Well, does this confirm and, if it does, what does it confirm, and if it does confirm an event, how does that throw any light on what the appellant did or what McFie did or anything else?". And furthermore one has to ask the question, as I put earlier, "Well, does this simply show there was a combination or does it go further and show, for relevant purposes, the appellant's involvement in it?", in which case the use is different and the directions that the jury would need on them are quite different. So, in my submission, it just, as it were, goes around in a circle and drives us back to each of the items to consider - - -

KIRBY J: Yes, but that is then driving us back, you say, to each of the items to be judged by the common law, when everybody knows that the real test was the statute.

MR TILMOUTH: Well, the result would be exactly the same in this case, in our submission. It would not reveal any different outcome whatsoever.

KIRBY J: Why, because of the relevance test in the Evidence Act?

MR TILMOUTH: Indeed, or because, in effect, Ahern is picked up by section 87. I forget the words of 87 offhand.

KIRBY J: The Evidence Act does permit you to, as it were, override it, or parties to agree. Does that affect the criminal trial?

MR TILMOUTH: Yes.

KIRBY J: So, even in a criminal trial are we therefore to infer that your clients and the prosecutor agreed that this trial would be conducted outside the requirements of the Evidence Act and that this is the paradigm in which we have to test what happened? The statute is a command from Parliament, it is a higher law. If you sat here, you would be surprised at how many cases come up every sitting where lawyers have ignored or forgotten statutes and then they come here and argue the cases as if the statute has not been enacted. It is happening all the time. It has to stop.

MR TILMOUTH: I can accept that, your Honours. The real question is why. Could I try and make good my point that it would not have mattered anyway by stating this. First of all, under section 87(1)(c) of the Evidence Act, it permits giving in to evidence:

a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

. . .

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

That is just another way of stating Ahern, in my submission. There is no relevant difference. If one then talked about, "Well, what does the Evidence Act say about corroboration and the accomplice's warning?", one would be driven back, initially, to 164 of the Evidence Act which, in general terms, abolishes the old rules, but provides in subsection (3) that:

Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:

(a) warn the jury that it is dangerous to act on uncorroborated evidence . . . , or

(b) give a direction relating to the absence of corroboration.

So the old standard direction of "dangerous" is abolished. But, your Honours, under 165(1) - - -

HAYNE J: That, surely, is to speak in absolute terms. The Act says what it says. Directions by a trial judge are not simply a ritual. Directions by a trial judge are intended to identify for the jury the issues and the law which bears upon them but also, importantly, to warn them of impermissible chains of reasoning and the like. Why was this not a case in which an accomplice warning was called for, whatever the Act said, in order that justice might be done?

MR TILMOUTH: With respect, it undoubtedly was, and it was the sort of case that a trial judge could have reasonably have adopted the old language, and that is my point, if the Court pleases. Even if the Evidence Act had been addressed, a judge could quite reasonably in this case, because of the records of Steer and Williams, because of what they did, because they had the statutory sword of Damocles hanging over them - by that I mean that they got a third off their sentence; their sentence was reduced from 27 to 18 years - Justice Crispin said that in his remarks. Under section 449 of the Australian Capital Territory Crimes Act, if they did not undertake to keep their promise to give evidence in accordance with the subsequent statements they gave the police, the DPP could bring the matter back to court and have them re-sentenced. So there was a statutory sword of Damocles hanging over them.

GAUDRON ACJ: In any event, their evidence was evidence of a kind that the Act recognises as potentially unreliable, 165(1)(d) - - -

MR TILMOUTH: Precisely.

GAUDRON ACJ: - - - and by subsection (2), if a party requests, there had to be a warning that it might be unreliable, why it might be unreliable, and told to exercise caution.

MR TILMOUTH: Exactly, and the Crown, if the Court pleases, supported the directions at trial. I will demonstrate that in a moment. Your Honours, could I hand up section 449 of the Crimes Act while I am here.

KIRBY J: Just so that I can get it clear, does that leave it in the position that the intervention of the Evidence Act, at least at this level that we have been discussing, does not affect things, because all it says, "It is not necessary", but if the fairness of the trial makes it necessary, then it still has to be given a corroboration and a clue to that effect is 165(1)(d) which indicates that these are unreliable witnesses.

MR TILMOUTH: Exactly, and as the Full Court said - and I will take your Honours to the passage in a moment - all that the Act means is that a judge in some cases might give a weaker warning, treat the evidence with caution or special care, or whatever the judge thought was appropriate, or it could justify a stronger warning. It just depends on the circumstances of the case. Of course, as the Court knows as well, there is any number of cases under the section 165 regime which apply the Longman principles.

It is well settled that Longman still dictates, even though a statute says you do not have to give a warning, Longman, Bromley and so on, dictate that there must be a warning where there is a perceptible risk of miscarriage. All you do is tailor the warning to suit the circumstances of the case. No formula is required. It might be stronger than dangerous, it might be weaker.

In this case, the judge chose the "dangerous" line, even though it was common law, but he clearly could have reasonably done so, and one might have expected there could have been an appeal if it was not strong, because the facts really called for a strong warning. Now, your Honours, I said a moment ago that it was accepted by all parties, or the Crown, that this was so, and that appears at 1564, volume 7, in paragraph 188 of the Full Court's judgment. The Full Court dealt with the issue we have been debating in the last 10 or 15 minutes. Page 1564, line 16:

It was accepted by all parties at the trial that the jury must be warned about the dangers of acting upon the uncorroborated evidence of Steer and Williams. It was an undisputed fact that they were, on their own evidence, accomplices. They had, after all, pleaded guilty to Mrs Conway's murder, and had each been sentenced to a lengthy term of imprisonment.

Then, the court went on to discuss some matters related to that, which I skip over.

At page 1569 - indeed, 1568 and 1569 - the Full Court expressly confronts the issue of sections 164 and 165, and said this, at 1569, paragraph 204:

Although s 165(3) provides that a trial judge need not comply with s 165(2) if "there are good reasons for not doing so", we are in no doubt that this was a case where warnings of the type specified in s 165(2) were required to be given. While Mr Pappas did not, in accordance with that subsection, "request" that any such warnings be given (presumably because he, along with everyone else, had overlooked the fact that there were provisions in the Act which governed the way in which the trial judge was required to deal with accomplice evidence) it was understood throughout the trial that the jury would be given the traditional directions concerning accomplice evidence. It is clear that Mr Pappas wanted those directions to be given. It is also clear that the Crown accepted that the trial judge was obliged to give those directions.

Over the page:

The result was that the trial judge directed the jury as to the dangers of accomplice evidence in what might be regarded as the traditional manner. The direction given did not accord with the requirements of the Act. On one view, it exceeded those requirements. There may, however, be a need in a particular case for a trial judge to give a stronger warning - - -

KIRBY J: Is that strictly correct: "the direction given did not accord with the requirements of the Act", given that the Act merely says that it is not necessary, and therefore leaves the common law to operate in a case where it is necessary, for fairness?

MR TILMOUTH: Your Honour is quite right, with respect. Perhaps their Honours had in mind the abolition, in section 164, which specifically says:

it is not necessary that the judge:

(a) warn the jury that it is dangerous -

but that does not prohibit it, of course. So, if the Court pleases, it is very clear, In my submission, in the end result. Albeit it may have been unfortunate, as your Honour Justice Hayne records, it is, for practical purposes, of no consequence, in our submission. Their Honours - without reading - at 1570, at 208, acknowledge that the warning was:

in a manner which accorded, in substance, with the requirements of s 165(2)(c) of the Act -

So, in the end result, once again we are driven back to, really, considering what all this items of evidence came to. Now, if the Court pleases - - -

KIRBY J: So your complaint is not about the direction that his Honour gave of the danger; you cannot have a complaint about that.

MR TILMOUTH: No.

KIRBY J: Not about numerous items in the corroboration, which are identified and gave his warning relevant and specific to the evidence. It is about (a), the items which you contend were not corroboration and (b), the way in which he endeavoured to express the warning in relation to the corroboration that could be secured from the accomplices.

MR TILMOUTH: Well, the way he applied them to the appellant without considering first whether they did really corroborate him in the offence.

KIRBY J: It is an ultra-sophisticated distinction. I realise it has been made in the cases, but I really do wonder, as I suggested in Zoneff, whether or not juries keep these subtleties in their mind.

MR TILMOUTH: Well, with respect, may it please your Honour, I hesitate to differ, but I differ, with respect, about that. One can appreciate a little more, when I make the further submission that there should have been another level of distinction between evidence going to prove combination as opposed to the appellant's participation in it, it gets slightly more sophisticated, but, in my submission, that is all.

Now, your Honours, can I then deal with that and take this Court to Ahern v The Queen (1988) 165 CLR at 87. It, of course, was a conspiracy case. Your Honours, I do not go back to Tripodi, but I acknowledge, of course, its importance. It was applied in Ahern. I remind your Honours, of course, that Tripodi was a case of theft, a substantive offence, and as your Honours know from our second footnote, the principles we are discussing apply equally to conspiracy and as they do to substantive offences. But the point I wish to make, your Honours, comes from beginning at 93 of Ahern and I develop the argument this way by referring to the passage at point 4 or point 5 of the new paragraph at 93:

In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it.

And then the court goes on to define "conspiracy" and I jump that and go to about six lines further down:

For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one of the acts and words of the other.

So that distinction commences the court's examination of principle. Over onto 94, if the Court pleases, the court then makes the point that once that distinction is borne in mind, at lines 5 and 6, that, on the former basis of admission, it is:

not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred.

So, this is partly going along the point I have been developing earlier, that under the co-conspirators' principle, it is important to bear in mind that there are two levels of admission for two different purposes. The first is combination as to which the evidence does not get in as to the truth. The point is made again, your Honours, at 94 in the fresh paragraph at point 6:

However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent were it not admissible upon some other basis.

Now, if the Court pleases, without reading, the Court went on to justify the admission on the latter basis, ie participation, on the grounds of agency, citing Tripodi at page 95, line 3, and agency is used four lines from the bottom. The Court then proceeded:

The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination. Evidence of the acts or declarations of the former may, however, be led to prove that very fact. That is where the dilemma lies in cases of conspiracy because, to assume the participation of the latter in order to admit the evidence on the basis of implied authority is to assume the very fact which is sought to be proved by that evidence. If there were no prerequisite to the admission of such evidence "hearsay would lift itself by its own bootstraps to the level of competent evidence".

We have cited that in the written outline. Now, what that means, in my submission, if one goes to page 104 - and this dichotomy is maintained throughout Ahern, if the Court pleases, but at 104, about the middle of that page - I am sorry this is a long paragraph and I am reading from about halfway down the paragraph, your Honours, in a line commencing "against him as proof of his participation", I am reading from there:

If the trial judge concludes that there is insufficient independent evidence of participation of the individual for this purpose, then it will be necessary for him to instruct the jury upon the limited purpose for which the evidence of the acts and declarations of the others may be used. It may in some cases be desirable for the trial judge to give a preliminary ruling upon the depositions, but it is only when the whole of the evidence is in that a final ruling can be given. It is conceivable that there will be cases, although they are difficult to envisage, where evidence of the acts and declarations of one alleged conspirator in the absence of another is admissible only to prove the participation of that other and in those cases it may be necessary to require the prosecution to take the preliminary step of laying the ground for the admission of the evidence before admitting it at all.

Now, your Honours, the point I am making is this. It is accepted that there was the reasonable prerequisite evidence of combination and that there was the reasonable evidence of the appellant's involvement in it. That came through Steer at the very least. I outlined that evidence at the very start.

Nevertheless, if the Court pleases, that did not mean then that all the evidence got in in a global way without some analysis being required as to which issue it went to. In my submission, the only way then that the respondent can justify if it wants to under the co-conspirator's rule the admission of the 12 items that we say should never have got in under corroboration, is to somehow drag it back in on the basis of an implied admission.

The problem with that argument is the case never proceeded on that basis. There were never any directions on that basis, and in sum, in the remaining 12 items it is very hard to find implied assertions anyway. Can I try and illustrate it by making a point, perhaps slightly on these facts and slightly different. On one view of the Crown case, on the day of this unfortunate death, the deceased had been suicidal, and part of the Crown's suggestion was that this became known to the appellant and it was all arranged in a big hurry.

If McFie had come along and said to Steer and Williams; "John said it's got to be done straight away" - John Conway - "the time is right", that is the very sort of declaration which implicitly contains within it the implied assertion of the appellant's involvement. I am not conceding that that was necessarily the evidence, but I am trying to use it to demonstrate the principle and how it could have worked in this case if it arose. In my submission, it never did arise and it was never put that way and there were never any directions.

In the end result, even if the Full Court is right when it says counsel was right to say that there were 12 items which were not corroborated against Conway but they got in under the co-conspirator's rubric anyway, it fails to acknowledge that before it could go straight again to implicate Conway. It had to be identifiable evidence under the rubric of an implied assertion which connects with him rather than simply connects with a combination, if I can put it that way. Finally - - -

KIRBY J: All of that argument is common law argument.

MR TILMOUTH: Yes, but not altered by the Act. Section 87 of the Act imports common law, in our submission. There is no material difference. The words in 87(1)(c) are "representation . . . in furtherance of a common purpose", and the words used in the opening are "to admit the representation if it is reasonably open to find that". Now, "reasonably open" is really picking up Ahern, and in its turn Tripodi, in my submission. It is impossible to make any practical distinction between that section and the old requirements at common law. Your Honours, rather than drag the Court through each of the items of evidence and analyse them, can I make this global submission which deals with whether or not really they got in and on what basis.

These are (a) to (r) respectively. In my submission, the court below was right to rule that (b), (e), (g) and (q) were non-corroborative. Indeed, I think the Crown conceded at least two of those, if not three, on the appeal. Can I remind the Court that (e) itself was put by the learned trial judge as strong. The only items that connect directly with the appellant - - -

KIRBY J: Was (g) one that went?

MR TILMOUTH: Yes, (b), (e), (g) and (q).

KIRBY J: Why is not the statement "we've done a job" to Ms Stanger not corroborative? That is item (g).

MR TILMOUTH: I am looking now at 1575 to 1576 of the Full Court. The Crown conceded the point, if the Court pleases, and the court accepted that that concession was fairly made. It no way implicated either McFie or Conway in the commission of the murder. In other words, because it might have confirmed the offence but not the participants in it.

GAUDRON ACJ: I am looking at page 1527. Is (g) the evidence from Steer's sister that he borrowed her car?

MR TILMOUTH: Yes, Ms Stanger. That is so, your Honour, at item (g). It did nothing to involve in any relevant way McFie, still less Mr Conway. As to the items which can be connected to the appellant, item (l) was regarded by the court, and indeed by the trial judge in his directions, as marginal. That appears at 1528 under item (l) and 1577. In my submission, that was quite correct. In fact, that was generous because it really was in the same category as item (g) except perhaps that McFie might have been slightly linked to it.

Item (m) was the accident situation where Williams was present at a subsequent phone call. I think I have run my submissions dry already about that in answering questions from the Court. Item (o) was 28 July 1997. I think I have made my submissions about that already. Item (r) was lies. As I pointed out in my opening submissions, each of those, for what it is worth, were not direct overt acts at all; they were subsequent matters. Nevertheless, on some views they could have been regarded as admissions or whatever, but nevertheless they were not direct overt acts of the offence.

What we would then submit, if the Court pleases, without going through each of them - they are all set out, as the Court knows, in the appeal book in two stages - our submission is, in short, that none of the other remaining items do anything at all to connect the appellant Conway with the offence. As I said, the only way that one could possibly do that is by way of an implied assertion under the Ahern principle, but that was not sought to be done in this case.

Finally, your Honours, I was to deal with the question of the proviso, but that too has been dealt with in the earlier submissions to the Court. But if the Court pleases, in my submission, it would be plainly wrong to apply the proviso because so much other evidence got in and was led directly against the appellant when it should not have.

KIRBY J: Yes, but that would not matter if the Court came to the view that his conviction was inevitable and the only way one can, as it presently seems to me, overcome that damning conversation of 28 July, I think it was, is to say, "Well, the real explanation of it is this: he was covering up for McFie". Yet when he is cross-examined at 927 he expressly disclaims that - or he does not expressly, he does not embrace that, and he says, "I was just playing for time". Now, playing for time is a totally unconvincing suggestion, it seems to me, and therefore you have to posit the theory, even at that stage, even in the midst of his trial, he was still covering up for McFie. It could happen, but it is very remote.

MR TILMOUTH: It could, but, in the end result, the Court would - - -

McHUGH J: But it is also contrary to the conduct by his counsel of his case, because in the trial he turns on his co-accused. So he could not have been covering up for her in the trial.

MR TILMOUTH: I understand that too, if the Court pleases, but, in my submission, the Court would have to accept that a reasonable jury, properly directed, absent all these other matters - and they are considerable and some of them were weighty and put as strong - the Court would have to accept that, nevertheless, the jury would have to come to the same conclusion. With due respect, that would be a long conclusion to draw, because there was so much other material which got in that should not have.

HAYNE J: Let me just test that again, because there are some further aspects of this conversation that was taped which troubled me and I want to give you an opportunity to resolve the troubles. First, it emerged in cross-examination that Mr Conway contended that he had been devoted to his wife before she was murdered. Is that right? See page 930 of the cross-examination.

MR TILMOUTH: First emerged in - - -

HAYNE J: No. It emerged in cross-examination that Mr Conway contended at his trial that he had been devoted to his wife before she was murdered. Is that right?

MR TILMOUTH: I am not sure, your Honour.

HAYNE J: Well, I have in mind page 930 of the cross-examination of Mr Conway.

MR TILMOUTH: I do not like to do this, but can I reserve on that, may it please your Honour, and consider it?

HAYNE J: Yes, of course.

MR TILMOUTH: Thank you.

HAYNE J: Second, the conversation with which we are concerned was, so far as the evidence went, an unsolicited and otherwise unexplained visit by these men at 4 in the morning. Is that right?

MR TILMOUTH: Well, it depends, with respect, what you call "unexplained". On one view, it was to set him up.

HAYNE J: Yes. Third, in the conversation there was an apparently gratuitous confession by Steer and Williams to the murder of the wife to whom Mr Conway had been devoted. Is that right?

MR TILMOUTH: The short answer, with respect, is no.

HAYNE J: Yes, why?

MR TILMOUTH: One would have to apply a Grills sort of test to it, R v Grills, to say that there was an assertion made by Steer or Williams about the murder which they had adopted. You would have to go that far.

HAYNE J: At 925 to 927 of the cross-examination of your client, it seems to me, at least at first reading, that he accepts, in the cross-examination, that he knew at the time of the conversation that was taped, that they, Steer and Williams, were confessing to the murder of his wife. Is that right?

MR TILMOUTH: I think that is so, your Honour, yes.

HAYNE J: Yes. Indeed, in the transcript of the conversation there is an explicit reference to Ricky Conway, is there not?

MR TILMOUTH: Yes, there is. From recollection, there is.

HAYNE J: Next, the conversation included - - -

McHUGH J: I think he may have been out of the room at that stage.

MR TILMOUTH: I was about to try and check that but - - -

HAYNE J: Yes. The conversation included a demand for money described as "a couple of grand" - see 1326 and 1333. Is that right?

MR TILMOUTH: From memory, I think that is right.

HAYNE J: Yes. In his cross-examination the accused said that during the conversation he formed an intention to report the conversation to police and the burden of his cross-examination was that he was temporising with these men, having formed the view that he would tell the police of what they had said. Is that right?

MR TILMOUTH: Yes. If that is at 927 - - -

HAYNE J: And at 929, I think. In the conversation it was said to Mr Conway that the police were then alleging that Conway and McFie had employed Steer and Williams to commit the murder - see 1331 and 932. Is that right?

MR TILMOUTH: Certainly, the former is right from my recollection, your Honour.

HAYNE J: In fact, Mr Conway acknowledged in his cross-examination, at 932, that at the time of the conversation that was recorded he knew that he was a suspect. As I say, see 932. During the conversation, Mr Conway made no denial of any of the suggestions that were made by Steer and Williams and made no protest at their demand or request for "a couple of grand". At the end of the conversation he gave Mr Steer and Mr Williams $50 - see 938 - and he agreed in the conversation to pay Mr Steer and Mr Williams more money later - see 1328, 1329, 1333 - agreeing for that purpose to telephone Steer and Williams, presumably, and the inference may be open, to make an appointment to do so. Do you accept that?

MR TILMOUTH: I think so, your Honour.

HAYNE J: As I read his cross-examination, he accepts at 939, that he has "never" reported the conversation or its contents to the police. Is that right?

MR TILMOUTH: Yes, he was arrested straight away, your Honour.

HAYNE J: When was he arrested in relation to the time of this conversation?

MR TILMOUTH: I think within five minutes.

KIRBY J: Minutes, was it not?

MR TILMOUTH: Within minutes, yes.

KIRBY J: They went out and the tape is running whilst they are speaking to Mr Carmichael.

MR TILMOUTH: That is right.

HAYNE J: But never did he say anything to police in the course of his interview about Steer and Williams confessing to him, or am I wrong about that?

MR TILMOUTH: I think not, but if I may check that, though I think that is the position.

HAYNE J: Yes, please.

MR TILMOUTH: But I can check the time, but I think it is fair to say it was within minutes.

HAYNE J: Yes.

MR TILMOUTH: Steer or Williams produced the $50 notes and the police pounced, as it were.

HAYNE J: Yes.

MR TILMOUTH: If the Court pleases.

CALLINAN J: Mr Tilmouth, can I just ask you one question please in relation to the coffee incident. At page 1535 you submitted "that there was no evidence to support that conclusion" in the Full Court that the appellant had put heroin in the deceased's coffee.

MR TILMOUTH: Your Honours, we did contest that, but we were refused special leave on that point.

CALLINAN J: Yes, I just wanted to know what the situation was.

MR TILMOUTH: Yes, and could I say briefly the reason was that part of that conclusion was based on some of those representations that the deceased had made to neighbours which the Full Court did not really resolve their admissibility but later used it to draw the conclusion. But, as I said, leave was refused on that ground.

CALLINAN J: Yes, thank you.

McHUGH J: Could I just ask you one thing - it may or may not have any relevance, but there seems to be a suggestion that during the conversation your client deliberately spoke in a very soft voice, perhaps in case he was being recorded. Have you any submission about that?

MR TILMOUTH: Yes, I do, your Honour.. Your Honour, I have listened to part of that conversation myself - and people might have different views, of course, and it might depend upon the equipment used too, of course - but the microphone was on Steer and Steer comes up very clearly. Williams, because he is next to him, comes up next clearly but not terribly clear - and your Honours can see there are a lot of inaudibles from all parties - and then McFie and Conway are very hard to hear and I would, with respect - counsel again are just drawing a conclusion that he was, as it were, standing in the background or withdrawing. It could simply well be because the device which was on Steer was most sensitive to those closest to him.

McHUGH J: Well, what about their statement as they leave the building, saying that he had spoken softly and what a smart so-and-so he was.

KIRBY J: That rather suggests that they were worried as to whether they had picked up his voice.

MR TILMOUTH: I see. Well, your Honours, to be honest, when I listen to this, a lot of this was hard to pick up. As your Honours would know from experience - - -

KIRBY J: But you have not contested the transcript and the attribution to your client of the words that appear in the transcript?

MR TILMOUTH: No, I do not. What I am suggesting caution over is that there was any deliberate ploy by Conway to be quiet or in the background or whatever else the suggestion is, because when you listen to this a lot of this is hard to hear, but I accept this was an agreed transcript that went to the trial and there were efforts to correct it on both sides as best as could be.

McHUGH J: What I have in mind, and this is against you, is that he has a dilemma: he does not want to get these two offside; on the other hand he is a police officer and he may well fear that in some way he is being set up, being taped in some way and, therefore, he deliberately keeps his voice as low as he can to avoid being recorded if that is the case. He does not want to get them offside because that is the worse thing that can happen. He has to keep them onside.

MR TILMOUTH: Yes, well, if the Court pleases, I would submit one should not draw that conclusion, at least from volume, as it were. The tapes are very indistinct and I think a lot of work went into even getting the transcript in this form and enhancement equipment and so on was used. It would be unwise, in my respectful submission, to draw that from this written transcript. May it please your Honours.

GAUDRON ACJ: Yes, thank you, Mr Tilmouth. Yes, Mr Hastings.

MR HASTINGS: Your Honours, in our submissions, the issue of the application of the co-conspirators' rule has assumed undue prominence. As we mention in our submissions, in our view, much of the material which became admissible against this appellant but related to the actions of McFie in fact was evidence which was directly relevant under perhaps section 55 as being relevant evidence. It seems to us that, with respect, the decision of Ahern is being extended beyond its proper limitations. In our submission, Ahern is really directed to the admissibility against a co-offender of truly hearsay acts or statements.

So the rule only applies and needs to be invoked where one is looking at evidence which carries an implication that the other accused is involved. So that when one looks at evidence, for example, of the actions of McFie in buying heroin, then that in isolation does not carry with it any implication involving the appellant. In its own terms, it is simply the act of one of the two accused buying heroin and that become admissible as a relevant fact in the unfolding of the venture which ultimately leads, on the Crown case, to the murder of the deceased. The limitations to which I am referring from Ahern (1988) 165 CLR, if I might take the Court very briefly to that decision, it may be seen at page 93, where the Court said in some of the preliminary remarks leading to dealing with the real issue in the case, at the top of page 93:

However, acts may contain an implied assertion on the part of the actor which makes it appropriate to treat evidence of those acts for some purposes as the equivalent of hearsay. A conspirator may, in the absence of another person alleged to be a co-conspirator, say or do something carrying with it the implication that the other person is involved. The statement or the act may be admissible in evidence to prove the fact of a conspiracy and, by way of admission, the participation of the maker of the statement or the actor in that conspiracy. But evidence of neither the statement nor the act should, except in the circumstances which we shall elaborate presently, be admitted against the other person to prove his participation because it would for this purpose be hearsay or the equivalent of hearsay.

That was the context in which the decision was subsequently made about the necessity for reasonable evidence.

When one needs to consider whether evidence is admitted under the co-conspirator's rule, it is only that sort of evidence which, in our submission, has that hearsay component, because the act the subject of it in some way carries an implication of the involvement of the appellant. When one looks at the summary of the case provided in the judgment of the Federal Court, there is very little evidence which, in fact, has in it that hearsay component, where the actions of McFie actually impliedly or expressly implicate the appellant. Only those - - -

HAYNE J: Therefore, why was it admissible on the trial of the appellant?

MR HASTINGS: Because, your Honour, it was part of the res gestae of the unfolding of the venture by which those acts became admissible, so that at the end of the Crown case one could trace a path through the various portions of evidence relating to both the appellant and McFie in order to come to the view that there had been a joint venture which led to the murder of the deceased.

KIRBY J: You stretch the res gesate more than it is normally extended, do you not, on that theory?

MR HASTINGS: No, your Honour. We would say, in so far as the res gestae is the unfolding of the transaction or the venture, these various steps are part in the pathway to the culmination of the - - -

KIRBY J: On that theory you would admit anything.

MR HASTINGS: No, well, only if it was relevant - - -

KIRBY J: Going years and years back.

MR HASTINGS: In terms of section 55 as being - - -

HAYNE J: It makes Bedingfield look a bit odd, does it not?

MR HASTINGS: I am sorry.

HAYNE J: It rather makes the decision in Bedingfield even odder than it is normally thought to be.

GAUDRON ACJ: If you say there was nothing by way of implication, nothing by way of implied assertion to implicate Conway in these items that were said to be corroboration, what was there to implicate him, leaving aside the four items to which Mr Tilmouth referred? You do accept, do you, that they had to implicate him to be capable of being corroboration?

MR HASTINGS: In a direct or indirect sense, your Honour. I would adopt what your Honour said earlier, that the test at the end of the day is to assess the probative value of the evidence to see whether it strengthened the case.

GAUDRON ACJ: The probative value in what respect though?

MR HASTINGS: Your Honour, it is a complex answer.

GAUDRON ACJ: Yes.

MR HASTINGS: One needs to look at section 165 and the extent to which the common law survives and the extent to which it was erroneously invoked.

GAUDRON ACJ: Do you accept that the evidence that was said to be capable of constituting corroboration had to, if it was to be corroboration of Conway's involvement in the crime, implicate him in that crime in some way?

MR HASTINGS: Not necessarily separately. In combination it may, and that is one of the points we have drawn from Doney.

McHUGH J: This is a problem that has worried me for years. Baskerville talks about the necessity for the evidence to implicate the accused and that statement is often repeated. If you look at some of the leading cases, it is not easy to say that evidence that has been treated as corroboration does actually implicate the accused. Take Eade's Case as a classic example; you tell a lie about a fact innocent in itself, whether you saw the girl go to the shop. It was buying a pie or something in that case. This Court said in Eade's Case that that was evidence of corroboration of a story of indecent assault because it tended to confirm her story, and the accused had denied it because he had no argument or he had no explanation consistent with his innocence. The particular piece of evidence as such just does not implicate the accused in the crime, but it confirms the complainant's evidence.

MR HASTINGS: Your Honour, we would say there is a very good example in this case in relation to the coffee incident. Leaving aside some of the controversy about it, in isolation the coffee incident, which was a somewhat bizarre occurrence in itself, really had little probative force against the accused because it simply showed some strange behaviour with regard to the possibility of heroin being put into coffee either by the accused or by the deceased but certainly with the outcome that there were two foils which he took possession of on his own admission from the house and then delivered into the hands of the Australian Federal Police for analysis. In itself that did not take the case anywhere but when that evidence was married with the evidence of McFie at about that time buying three foils of heroin, then suddenly the coffee incident took on a significance - - -

KIRBY J: Plus the foil being identical or a very similar foil apparently.

MR HASTINGS: Yes, and the number 3 being significant because there are two left and, if there had been any strength in the suggestion that one had been put into the coffee, the figures matched. But the introduction of the evidence of McFie at or about the same time buying heroin comprised of three foils suddenly then gives the evidence about the coffee incident considerable probative force. But of course then one says, "Hang on, the evidence comes from an accomplice in relation to McFie. Therefore, one must be concerned as to whether that's in fact the truth". So that when there is actually corroboration of McFie buying the heroin, that then strengthens the evidence against McFie and also, I would suggest, strengthens the case against Conway because of the way in which the lines of the evidence merge. So that there are clear examples to be found and that is one, I suggest, where you can have corroboration of one accused, which in itself does not directly implicate the other but by an indirect effect undoubtedly strengthens and implicates the other accused.

McHUGH J: There is that Queensland case of Massey where there is a charge of rape against a stepfather and there is an admission that he is the father of the child and the Court of Criminal Appeal of Queensland said that that was corroboration of the charge because it corroborated one of the elements, namely that a sexual offence had taken place between them. It is not easy to see that it really implicates the accused in the crime as such but it just tends to confirm the story. It has worried me for a long time as to whether or not what was said in Baskerville can be literally applied in every case. Your submissions seem to contend for a proposition that no specific piece of evidence has to implicate the accused but it is an inference that you can draw from a whole set of surrounding circumstances.

MR HASTINGS: Your Honour, I do not want to extend it beyond the facts of this case, but we certainly say that on the facts of this case, where the word "mosaic" I think was used by the Crown, and to some extent it is appropriate because there was quite a deal of intermingling of quite subtle pieces of evidence which at the end of the day made it quite artificial to try and separate out those subtleties against one accused and the other and then invite the jury to embark upon a separate exercise of ascertaining corroboration against one or the other when the Crown case was that it was the combined effect of that evidence which gave it its strength.

There is another example, if I can just take your Honours' time to develop to demonstrate the point. In relation to the activities of 18 June 1997, they are broadly described in my learned friend's chronology but, having taken your Honours to the outline, I then want to fill in some of the gaps. The relevant events start on 17 June. That is at the bottom of page 8 of the most recent chronology, where the evidence was that Steer and Williams, then of course frustrated because they were not receiving the money which they claimed they had been promised, went to the matrimonial home at 35 Gollan Street and left a note on Conway's vehicle to the effect, "Kathy, ring me".

Then early in the day of the 18th, there was a strange incident where Conway in the course of his duties attended a motor vehicle accident at which Williams was present and, without getting into the minutiae of whether Conway indicated that they should not speak, the fact was that they did not speak and that is of some significance, of course, because on the Crown case Williams is the person who has just murdered Conway's wife. So the fact that they do not speak carries with it some inference as well.

Then there is the conversation which followed between Conway and McFie, where Conway says, "Guess who I just saw", and makes a reference to, "Have you read a file?", which he concedes at the trial to have been an AFP file relating to the use of listening devices and telephone interceptions. So that the clear implication from that call - and I should perhaps take your Honours to it just to make it clear - is that he is giving a guarded message to McFie and at the same time a reminder about having an explicit conversation on a telephone. Then the day continued, as the chronology indicates, because subsequently McFie then went and withdrew $200 from her credit union account. Later again, there is a telephone call where McFie rang Steer and arranged a meeting shortly which then took place at the Shell service station at Dickson and, according to Steer and Williams, McFie paid them $200.

The point that I wish to make, your Honours, is that those events intertwined so that when one gets evidence of, for example, the corroboration or confirmation that McFie in fact did take out of her account $200, which thereby supports the account of Steer and Williams that they were paid $200 by her that night, it needs to be looked at against the background of the early interaction between McFie and Conway in the evidence to which I have referred. At the risk of going into too much detail, can I just take your Honours to the calls themselves because they do, I suggest, highlight the points that I have just been making.

In volume 6 the telephone conversations which were intercepted appear at 1340, the call from Conway to McFie in relation to the encounter with Williams at the motor vehicle accident commences, and on page 1341 the relevant topic is discussed, about five lines from the bottom, J, who was John, the appellant said:

had to go to a prang today

K Did you where abouts

J Uhm Captain Cook Crescent and Stuart Street

And then over the page - and then there is some discussion about the motor vehicle accident which is not relevant, but then on 1343, about six or seven lines down, Conway:

(clears throat) Without mentioning any names eh guess who I saw at the prang

K Of course

J Yeah

K Hm (pause) did you speak to him

J Ahm as if I didn't know him

K Yeah fair enough

J Have to

K Of course -

and he refers to the fact that these:

other two Connies -

presumably constables -

were there and ah so was my Sergeant

K And he came and spoke to you

J Ah not directly he just made a comment about the quality of the merc

K Oh okay huh God if he had half a brain he'd be dangerous

Now, that in itself, we suggest, is quite subtly significant because it is a guarded conversation for which there seemed to be no other reason than a reluctance on the part of Conway and McFie to discuss the accomplice Williams on the telephone. Otherwise, if there was an innocent explanation, one would think there would be no reason why he would not have mentioned his name and similarly McFie responds in a direct fashion. The passage which then follows at the bottom of 1343 is in relation to the reading of the file and in his cross-examination he conceded that that was a file from the Australian Federal Police which related to the use of listening devices and telephone intercepts, so that - - -

KIRBY J: There is nothing in that conversation, that intercepted conversation, or the recorded conversation just before the appellant's arrest which is incompatible with a theory that the murder was committed, planned and arranged by McFie and he learned of it later and stuck with her because of loyalty and because she had done it for him.

MR HASTINGS: No, I think that is fair. Nothing direct, your Honour, that is quite correct.

McHUGH J: Well, what about the fact that when they go to the door they speak to him and say, "John, I want money from you"?

KIRBY J: But that is consistent with it being understood by that stage that he was going to pay the amount that she had agreed. I am not saying it is the probability or what one would draw; I am thinking of the proviso, that if one looks at these intercepted conversations, if there is anything in them at all that is relevant to suggesting that he was in it from the beginning, then I would like to be directed to it, but, as I read it all now, it is consistent with his coming in on the murder at a later stage. It is not the way he conducted the trial. It is not the way he answered the questions when cross-examined in his trial. But I just do not see anything with the contemporaneous statements that is incompatible with that theory. People do sometimes - - -

MR HASTINGS: Well, that is right, your Honour, but on the other hand, and even though the onus is not on the accused or the appellant, there is nothing which supports his version either. The evidence is generally neutral. Well, I am reminded that is not his version, in fact, but there is nothing that supports that construction.

McHUGH J: It would mean, given the opening remarks, that there must have been some anterior conversation between Steer and Williams and Conway in which, in effect, Conway had said, "I will see you paid". Otherwise, there is no other explanation for the opening gambit.

KIRBY J: The only other explanation is that McFie told them, "Don't worry, I have spoken to John, and John is going to foot the bill".

MR HASTINGS: Your Honour, the other feature of the 28 July conversation is that there is a sort of seamless continuity, and even in the passage where John is not present, there is no hint from McFie that that is a particular liability of hers, or an arrangement between her and them for which Conway has been later joined. So that one, somewhere along the line, might look for some clue to indicate that this was primarily her venture and that he is only there, in the end, to carry the cost. But when one goes through the various episodes, which form 28 July, there seems to be this continuity, where there is an assumption at the beginning that there is a joint liability. When he is out of the room, the joint liability continues and then resumes when he comes back.

Your Honours, if I can just finish the 18 June discourses, the point I have been making from the phone call from the appellant to McFie is the surreptitious way in which the discussion took place. The evidence then was in the following exhibit, which is 1357 in the same appeal book, that McFie then rang Steer. Now, it is clear from that there is some crude form of counter-surveillance taking place again, because he has apparently gone to a public phone, and it is a matter which concerns them both.

GAUDRON ACJ: What page is that, sorry?

MR HASTINGS: Page 1357, your Honour.

GAUDRON ACJ: Thank you.

MR HASTINGS: It is the call from McFie to Steer to arrange the meeting at the service station so that a payment was made. There is this consistency between the participants, namely, Conway and McFie, in the previous call, and now McFie and Steer in the next, about the reluctance to speak on the phone, because it is, in fact, about six or seven lines down, where Steer, who is "B", says:

B Are you calling from a public phone

K Yes

B Cool

K Yeah yeah when I phoned you the other night I called from a public phone as well

B Ah that's cool I forgot to ask that was all

K What love

B I forgot to ask you that that's all

Then, the call goes on, and it is a discussion about: "haven't had the money", says McFie. Then, at the bottom of page 1357, in a way which confirms, perhaps, the evidence about putting the piece of paper on the car, four conversations up, McFie says:

K And I couldn't ahm phone you because I lost your piece of when I came to the phone the other night to phone you

B Yeah

K I left the piece of paper here

B Ohhh

K With your phone number on it -

Then the rest of the call was not significant, other than it arranges a meeting, I think, in about a quarter of an hour at the Dickson service station. Then the evidence was that McFie and Williams then turned up at the Dickson service station shortly afterwards. They claim that they were paid $200 and there was evidence subsequently obtained which indicated that McFie had taken $200 from her credit union that afternoon.

Now, accepting the limitations that your Honour Justice Kirby has identified, nevertheless, to the extent that it does prove collaboration and collusion between the two accused, one needs to look at that package of evidence before looking to see what amounts to corroboration and what does not, and our general submission is that this is yet another episode of where it is completely artificial to try to separate those activities out on the same day involving a couple living together, et cetera, et cetera, and in order to identify or invite the jury to separately consider this identification of the roles of one or the other.

So that our broad submission, your Honours, is that when one looks at this case, both in the broad and in the specific, there are many examples of situations in which evidence amounted to corroboration of the appellant, even though in its direct terms it amounted to confirmation of the actions of McFie. We have set out in more detail the general case in our submissions.

GAUDRON ACJ: You accept then, do you, Mr Hastings - and I think you did before - that for this evidence to be capable of corroborating the accused in relation to the guilt of Conway, it had to have some probative value linking him to the events in question and culminating in the murder?

MR HASTINGS: Yes. No, I accept that without condition, but say that - - -

GAUDRON ACJ: Yes, and I understand that is what your argument is now directed to showing, that they - - -

MR HASTINGS: Yes, and that one can get that probative value from a combination of the facts.

GAUDRON ACJ: Yes, by looking at the evidence overall and seeing that it links him into some of the events.

MR HASTINGS: So that confirmation of the actions of one accused, as we have said in our submissions, by necessary logic strengthens the case against the other.

GAUDRON ACJ: But you do not seek to support the reasoning of the Full Court in relation to the co-conspirator's rule, as such?

MR HASTINGS: Only because it seemed to achieve unnecessary prominence and, in a sense, complicated the issue. Much of the debate about what was corroboration and what was not could have been looked at as simply corroboration of directly relevant evidence rather than evidence which relied upon the co-conspirator's rule for its admission against the appellant.

Your Honours, that brings us to the Evidence Act which, in our submission, notwithstanding the conduct of the parties, applied to these proceedings. I think your Honour Justice Kirby asked whether the parties could waive the application of the provision. Section 190 of the Act actually provides for waiver and nominates particular divisions or parts of the Act. Sections 164 and 165 are in Part 4.4, which your Honours will see is not included in subsection (1) as a part of the Act which may be, by consent, dispensed with, so that it was seen by virtue of the terms of the Act that sections 164 and 165 necessarily applied.

KIRBY J: It does not really matter much though in this case, does it, because all those sections say is it is not necessary? So it still does not say it is not necessary - that you may not give warnings, it just says that it is not obligatory. Is that not correct?

MR HASTINGS: Yes.

KIRBY J: Longman and other cases have made the point that fairness in the conduct of the trial may make it necessary in the particular case. That was recognised - well, the trial judge did not look at it within the paradigm of the Evidence Act, but he obviously felt it was necessary to give a warning about accomplices, and it was a very strong warning, arguably stronger than was necessary under the Act.

MR HASTINGS: Your Honour, we would say the consequence of the two sections is that the corroboration direction is no longer required, so that it is inappropriate to embark upon a technical analysis of the directions given to see whether it complies with the traditional corroboration direction because the section says that is no longer applied.

KIRBY J: Given the wisdom of the common law, and what one might infer is the unreliability of accomplices who, by their own mouth, have been engaged in a criminal activity, what reason did the Law Reform Commission give for saying that it was not necessary to give the warning?

MR HASTINGS: Well, your Honour, as I understand it, one of the reasons which was particularly identified was that it was thought that the rule had a reverse effect because, having given the cautionary statement and then to identify what was corroboration, tended to negate the preliminary warning and, in fact, have a reverse effect of strengthening the case because the jury were left with the impression, having been told that they ought approach the evidence of accomplices with caution, were then given guidance as to what amounted to corroboration in a way which might have led them to think, "Well, thanks for the caution but at the end we're satisfied that there is material which means that caution is no longer necessary".

KIRBY J: I think Mr Odgers, who is the guru in these things, wants to say something.

MR HASTINGS: He is keen to say something. I am told that the primary reason was to get away from the technicalities of the Baskerville direction and there is some history, as I understand it, and we have given on our list of authorities a reference to the Canadian case of Vetrovec which, quite early, in the sense of the mid 1980s, came to the view that Baskerville was unnecessarily complex and that there ought to be a commonsense direction given and, when one reads the judgment in that case, it will be seen that the scheme now embodied in sections 164 and 165 is largely reflecting of the outcome of that case in Canada.

GAUDRON ACJ: Yes. Would that be a convenient time, Mr Hastings?

MR HASTINGS: Yes, thank you, your Honour.

GAUDRON ACJ: We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GAUDRON ACJ: Mr Hastings, before you commence, the Court considers it would be assisted if it could have that 28 July tape played this afternoon. Could those instructing you attend to that?

MR HASTINGS: Yes.

GAUDRON ACJ: Yes. You have a machine which will - - -

KIRBY J: You are looking rather lost, Mr Hastings. It is not like you not to - - -

MR HASTINGS: It is an unusual request, your Honours, and I think - - -

KIRBY J: I gave you lots of hints about it this morning.

MR HASTINGS: We will do our best. Tape is not an entirely accurate description. I think the form in which it was put before the court was actually on a disc, but whatever the technical situation, we will do our best to see whether we can play it this afternoon.

GAUDRON ACJ: I understand if you have it, the disc, it can be set up in about five minutes by the Court and start. Yes, thank you.

MR HASTINGS: Thank you, your Honour. Your Honours, before lunch I was dealing with the status of section 165 of the Evidence Act which, in combination with section 164, makes it clear, in our submission, that the corroboration direction has now gone. In our submissions, we draw attention to the English case of Makanjuola - - -

KIRBY J: You say it has gone, but it has not gone, it is not required by the common law.

MR HASTINGS: It is not required by statute.

KIRBY J: May there not be opportunities or occasions when it is required? It is completely abolished, is it?

MR HASTINGS: Yes, your Honour, - - -

KIRBY J: Under statute.

MR HASTINGS: It has been replaced by section 165 which sets out statutory requirements for directions to be given in a case in which evidence is given by an accomplice.

KIRBY J: Is there some general provision? I think we looked at this unreliable evidence before and it is rather specific, and there will be cases of unreliable evidence that are not in the list. Is that covered by section 165(2)?

GAUDRON ACJ: Five.

MR HASTINGS: Section 165(5).

KIRBY J: I see, yes that is what I was thinking of.

GAUDRON ACJ: One presumes, of course, that if there is a perceptible risk of a miscarriage of justice by the direction not being given, then section 165(5) requires that it be given.

MR HASTINGS: Yes.

GAUDRON ACJ: Or permits it, yes. Section 165(5) does not alter that position.

MR HASTINGS: No, indeed, your Honour, and I am reminded that subsection (1) actually commences by reference to a general description of this section applying "to evidence of a kind that may be unreliable", but then includes the following, so that there may be undoubtedly other cases of unreliability which would warrant a direction which is not specifically mentioned in those paragraphs.

Might I just remind the Court that in Papakosmas [1999] HCA 37; 196 CLR 297, which we have not given the Court a reference, the Court relatively recently expressly rejected the notion that there needs to be an attempt to reconcile the statute in its operation in the context of conforming with the pre-existing common law. Certainly the Chief Justice and Justice Hayne clearly rejected any notion that the statute needs to be read in a way which renders it consistent with the pre-existing common law principles.

I was about say, your Honours, in our submissions we refer to the English case of Makanjuola (1995) 2 Cr App R 469, and we have given the page references to the particular passages where, in the context of similar provisions in the equivalent English provision, the Court of Appeal has clearly concluded that even if the judge does give a warning in the context of an accomplice there is no longer requirement to comply with the common law as to the form of that direction as to corroboration.

HAYNE J: Where does this submission go where a warning has been given and a warning has been given in terms that, in the Court of Criminal Appeal, were conceded to be inaccurate? Where does this argument that you are now advancing take us?

MR HASTINGS: It goes, your Honour, to where I was going to go, and which is to concede that, ultimately, one needs to look at the directions that were given, albeit unnecessarily, in order to determine whether the jury were distracted or confused or misled by the form of the direction actually given.

HAYNE J: Well, they were told that some things were corroborative which you accept were not.

MR HASTINGS: There were errors conceded, that is correct, yes. But what I say as to the rest, which are now still in dispute, is that, on the broader approach that we advocate, that material is corroborative in a general sense, and that the thrust of the direction which the court gave to the jury about the combined cases, and the effect on the combined cases was appropriate in the light of the way the trial was conducted.

HAYNE J: Am I approaching the matter unduly simplistically if I approach it from this standpoint? At trial, the accused and the prosecution both said this was a case in which the jury should be given corroboration warnings? Their reasons for that accord may be good, bad or indifferent - probably, they were bad. But both sides thought this was a case where the jury should be told that it would be dangerous to convict on the uncorroborated evidence of the accomplices. Now, once you have taken that step, and the judge gets it wrong in telling them what is corroboration, where does your argument then go as its next step?

MR HASTINGS: Well, to ascertain whether by giving the direction that was given, there was a miscarriage of justice because the jury in some way may have been confused or misled by the direction that was given which, in fact, was unnecessary and, indeed, in some respects contrary to law because the judge had not been taken to the relevant provisions of the Evidence Act. It is an approach similar to that which is adopted in a New South Wales case of Bui to which I should perhaps take the Court because, in a sense, it is against me. It is referred to in the Federal Court judgment at paragraph 222. It is unreported and we have copies for your Honours. It is Bui, an unreported decision of the Court of Criminal Appeal in New South Wales of 5 December 1996. The facts I do not think are particularly significant but in the end result at page 8 in the judgment of Justice Simpson who delivered the judgment with which the other judges agree, she, in a similar situation, came to a view, in paragraph 2 on page 8 that:

this was not a case in which any direction on corroboration was necessary. Even if this had not been so prior to the commencement of the Evidence Act, (and I think it was), s 164 has the effect of abolishing any requirement for such a direction. And the case did not fall into any of the categories described as "unreliable evidence" which, by reason of s 165, may have called for some caution directed to the jury.

The Federal Court picked up the next statement which I have to acknowledge:

But if his Honour were to embark upon such a direction, that which he gave to the jury was inadequate.

The second last sentence on the same page, the test which I have sought to embrace in response to your Honour Justice Hayne is:

In my opinion it was inappropriate to give any corroboration direction in the present case, and that which was given was likely to confuse the jury, and not assist them.

So that we would say that, in a sense, is an appropriate test to be applied here, not because we concede that the corroborative direction was erroneous in any event, but on the basis that it was unnecessary and superfluous, given the requirements of section 165, which were otherwise met, and because the direction went beyond it, the question then needs to be asked as to whether, in going beyond the minimum requirements, the jury were in some way misled or confused in a way which resulted in an injustice to the accused.

That brings us back to the submission with which we commenced, namely that, on our view of the case, the submission was appropriate in the way that it did not need to divide the corroboration because of the complex intermingling of the evidence against each of the accused. In our case it would be artificial and distracting and confusing to the jury to have adopted the approach which has been sought by the appellant here.

So, your Honours, that, in our submission, is really the start of dealing with the proviso, I suppose, that at the end of the day one needs to examine the question of whether, by going beyond section 165 when it was unnecessary, there has been a miscarriage of justice. Our first point in that context is that there was no miscarriage of justice because the way in which the direction about corroboration was given was, in fact, quite appropriate and, indeed, of course, as seems to be common ground, complied with section 165 of the Act.

There is one other small point which I make, again because it indicates that the accused in some respects had the benefit of the approach adopted by the trial judge. The trial judge instructed the jury that the question of whether they were satisfied of the existence of common purpose, such that they could invoke the co-conspirators' rule, would seem to be contrary to what was said by this Court in Ahern where it was quite clearly said that it was a matter for the judge to determine whether the threshold test was established for the purposes of applying the co-conspirators' rule.

What I say about this I think needs to be in the context of what I earlier said, and that was that the application of the rule was grossly exaggerated but, to the extent that there were some parts of the evidence of McFie which did have a hearsay component in that on some occasions she said to one or other of the accomplices, "John didn't have any money yet and couldn't pay", in that context the judge seemed to err in giving the jury the direction that they should be satisfied of the evidence constituting reasonable evidence of concert.

The passage is actually in the direction quoted in the judgment in the Federal Court at page 1587 in volume 7 at the last of the paragraphs cited in paragraph 252 of the Federal Court judgment. His Honour directed the jury in these terms:

I will come to Conway's defence later on that anything that McFie did with the two assassins was not done with his knowledge, but if you are satisfied that there was a combination, then anything that McFie said to Steer and Williams is evidence against Conway because it is something done in furtherance of the common purpose.

It is not a matter of huge moment but, in fact, that is contrary to what the Court expressly held in Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, at pages 100 and following. I do not think I need take your Honours to the passages because it is an argument that proceeds over several pages, but it certainly concludes with these remarks at page 103:

The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence.

In this case, it seems that the accused had something of a benefit in that, notwithstanding the fact that the trial judge had ruled - or, apparently, assumed - that there was reasonable evidence in order to invoke the rule, the jury was still given the opportunity of coming to a contrary view. Otherwise, we would say in relation to the proviso, "miscarriage of judgment" argument, our submission sets out quite comprehensively the way in which the jury were appropriately warned.

In paragraph 23, we identify the particular passages in the summing up which particularly comply with section 165, but, in any case, we would say, address very squarely and directly the issue which needed to be addressed in front of the jury in relation to the caution concerning the support for the evidence of the accomplices, and on the basis that the passages we identify with the appropriate appeal book references we would say that there was no miscarriage of justice in the light of the directions that were actually given. Similarly, on an evidentiary basis, we would also submit, as we have in the written submissions, that there was ample evidence of a corroborative nature in any event, particularly in relation to the tape of 28 July, which has already been the subject of considerable attention.

GAUDRON ACJ: Now, you have to go further, do you not, and say that that tape really only permitted of one conclusion.

MR HASTINGS: No, your Honour, it does not have to in itself comprehensively point to a conclusion.

GAUDRON ACJ: No, I mean, for the proviso to be applied. If you come to the question that you have outlined in (k) - that you are attempting to deal with in (k) - namely, that some of the evidence was not capable of corroboration and some was, then you would either have to say that that which could not constitute corroboration was so marginal as to have been capable of having no impact on the jury, or (b), that that which was capable was all one way and permitted only of one conclusion. Would you not?

MR HASTINGS: Yes, I accept that, your Honour, but not by reference to the 28 July tape alone. There is a body of other evidence going back to the coffee incident.

GAUDRON ACJ: Yes. Well, let us say one got to 28 July.

MR HASTINGS: Yes, but alone, that does not have to point to the guilt of the accused. It is part of - - -

GAUDRON ACJ: Let us say that was all that was left.

MR HASTINGS: Your Honour, I do not want to be emphatic about it, because I submit that is a somewhat unrealistic question to pose because there is other material. But even in itself, it was very persuasive evidence because whilst it does not exclude, on its own terms, the "accessory after the fact" hypothesis, the totality of the tape itself and then the evidence of the accused at the trial when he really had no explanation for it and certainly did not give the "accessory after the fact" explanation really gave it a very powerful and almost invincible effect.

GAUDRON ACJ: Was the "accessory after the fact" hypothesis inconsistent with the way in which the defence was conducted?

MR HASTINGS: Yes, because his defence was that he has learned subsequently that McFie has been responsible for it and it had nothing to do with him. That was never his explanation for the 28 July situation because implicit in the "accessory after the fact" explanation for the 28 July tape is that by then he has known that McFie is involved in something sinister and is protecting her, and that was his position at the trial.

KIRBY J: When did the cross-examination occur that led to the change of pace, that is to say, when his counsel raised the question of the possibility that Ms McFie had done this without his authorisation? How did that actually happen in the course of the trial and when?

MR HASTINGS: I will have to seek some assistance on that, your Honour. I can only answer in general terms without transcript references, but I am told, your Honour, that the way that it unfolded was that Conway gave evidence first and it was not part of his evidence that he learnt that McFie was responsible or that McFie was responsible, but it emerged in the course of his counsel's cross-examination of McFie, who followed him into the witness box later on.

HAYNE J: Can I understand this? There were two streams of evidence against the accused, were there not? One, by far the largest stream of evidence was evidence from those who had been accessories in the crime alleged against him. But the stream separate from that, and the only part of the stream separate from that, was this audio tape of 28 July, was it not?

MR HASTINGS: There were other parts like the lies which had been told within a week or two after the actual murder.

HAYNE J: I understand that important qualification. If the conclusion was to be reached that what had been told to the jury about the accomplices was a misdirection and one comes to consider the application of the proviso, can one consider it on any basis other than considering separately and distinctly the evidence that is independent of the accomplices and asking whether that evidence, evidence independent of the accomplices, compelled a conclusion of guilt?

MR HASTINGS: Well, I would submit not, your Honour. Just because a view is taken that the direction about corroboration was flawed does not mean that one disregards the evidence of the accomplices to which the direction is made.

HAYNE J: But one cannot know on appeal how the jury, having heard the accomplices but with this misdirection about the treatment to be given to their evidence, would have, had they been properly directed, treated their evidence; what bits of it, if any, they would have accepted, what bits of it, if any, they would have rejected. That is why, it seems to me, it comes down to your proviso case depending wholly and solely on evidence that is independent of the accomplices.

MR HASTINGS: Well, no, your Honour - - -

HAYNE J: Namely, the tape and the lies.

MR HASTINGS: Yes.

CALLINAN J: What about the coffee incident, would you add that? There was evidence independent of the two matters that Justice Hayne has mentioned in the coffee incident, was there not?

MR HASTINGS: Yes.

GAUDRON ACJ: There is also the phone call to Ms McFie.

HAYNE J: It is rather like, "What have the Romans ever done for us?", is it not, Mr Hastings?

MR HASTINGS: Not quite, your Honour.

HAYNE J: It depends upon your familiarity with Monty Python, does it not?

MR HASTINGS: Yes. Your Honour, I suppose - and I do not want to avoid the issue - it really depends on the extent to which one takes the view that the direction was flawed because there may be flaws which are significant and fatal, but there may be other flaws which were not fatal because, for example, the 28 July tape, whatever one said about other possible corroboration, had the potential to undeniably provide corroboration to the jury which would enable them to treat seriously and accept the evidence of the accomplices.

HAYNE J: Now, as to that tape, I had understood you to say a little while ago that that tape, taken alone, did not exclude the "accessory after the fact" hypothesis. Is that the position adopted?

MR HASTINGS: Yes. Yes, but that is not to say that there is not other evidence which can exclude it, such as the coffee incident, which is contrary to the "accessory after the fact" possibility. But, your Honour, one cannot look at the tape in isolation without having regard to the evidence given by the accused at the trial. I mean, it is really quite artificial when the accused was - - -

HAYNE J: But then I need to know what your position is. Is your position that the tape, in the light of the evidence given at trial, standing alone, was sufficient to compel a verdict of guilty?

MR HASTINGS: Yes, because it has the capacity then to provide the support for the evidence of the accomplices.

GAUDRON ACJ: No, not because it has the capacity, because it must - - -

MR HASTINGS: Well, it did.

GAUDRON ACJ: - - - it can do nothing else but support the accomplices.

HAYNE J: Unless you grasp this nettle and say that it compels that result, it seems to me you are in difficulty on the proviso argument.

MR HASTINGS: Well, your Honour, I do not have any difficulty in grasping it, particularly, as I say, because of the way in which the - - -

HAYNE J: Three times we have asked it, Mr Hastings. What is the position of the prosecution?

MR HASTINGS: I am quite happy to put forward the proposition that that tape in the circumstances of its reception at the trial and his explanation for it, which cannot be overlooked, was a basis upon which the jury were entitled to use it as corroboration and therefore believe the accomplices. Can I just say, with great respect to the "accessory after the fact" hypothesis, it really is quite artificial to raise it now when the tape was played at the trial and the accused was cross-examined over some 10 or 12 pages about it and not once did he ever advance as an explanation for what he said during that conversation the hypothesis that is now being advanced in this Court.

KIRBY J: That could be consistent, though he did not ever suggest this, with his still being in the grip of his infatuation with Ms McFie and covering up for her.

MR HASTINGS: Yes, but in the same - - -

HAYNE J: An infatuation he denied in his cross-examination where he alleged he was devoted to the wife who had been murdered.

KIRBY J: I suppose one could say he would, would he not? I mean, the fact is objective evidence showed that he had a longstanding relationship with her that was not that of a person with a nanny or babysitter. He moved into her parents' home. He moved into her flat. It is not the ordinary relationship with a babysitter.

MR HASTINGS: And they manipulated the deceased. It is the evidence of their combination - - -

KIRBY J: Yes, but people in love tell lies out of embarrassment or because he was married. He lied when his wife was alive and he lied after she was alive. It was embarrassing and it was damning and it could be in the eyes of a jury significant, but people do tell lies about those things.

MR HASTINGS: But not at the trial, your Honour, when at the same time almost his counsel was then making the most serious accusations to McFie. One can hardly explain his failure - - -

KIRBY J: Yes, but if he still loved Ms McFie, he might lie because he would say to himself, "It's a wicked thing she's done but she did it for me".

MR HASTINGS: But, your Honour, the context is his explanation for what he said on 28 July. That explanation arose at the trial and it would be inconsistent, in my submission, to seek to explain his position in relation to 28 July on the one hand by saying, "I was in love with McFie and I didn't want to expose her", and on the other hand have his counsel cross-examining McFie to say that she was responsible for the murder. One would have thought that if this situation of love existed, it would fall short.

McHUGH J: When he was interviewed by the police at 1483, he was asked:

Q1041 What do you love more than your son?

A I loved Rike.

Q1042 You loved Rike over your son?

A I don't know which one I loved more.

So it is not easy to accept, if that was his view, that he would be covering up for this other woman who had killed the woman he loved.

GAUDRON ACJ: At any event, the only explanation that is offered for the answers he gave in the 28 July conversation is that he was going to tell the police later.

MR HASTINGS: Because he had just found out for the first time who was responsible for the murder, which is completely at odds with the "accessory after the fact" hypothesis now being advanced on his behalf. Your Honours, coming back to Justice Hayne's questions, that added dimension to the 28 July evidence cannot be overlooked and put to one side and replaced by a version of events which has never been adopted by the accused himself.

CALLINAN J: Mr Hastings, what use do you seek to make of the coffee incident, taken with the means by which the deceased was killed, if any?

MR HASTINGS: The Crown case was that this was a scenario being constructed to give the impression that the deceased had become addicted to heroin, so that when she was found deceased with heroin in her blood it would seem to be a suicide or overdose situation.

CALLINAN J: Well, a transaction in the course of, or at an early part of the murder itself?

MR HASTINGS: Preparatory, yes, setting the scene for what was to happen shortly thereafter, because that happened on 25 April and the death occurred on 3 May.

CALLINAN J: It is difficult - I mean Mr Tilmouth may be able to deal with this, but at the moment I find it difficult to see what other complexion could be put upon the coffee incident.

MR HASTINGS: Yes, once it is accepted in its terms, and, of course, that was disputed for a long time.

CALLINAN J: But there is no dispute about his claim - it came from him - that he found the two foils on the windowsill and that the coffee had an unusual taste and then there was no suggestion that the deceased had ever had any addiction or acquaintance with heroin and the testing of the foils showed that it had contained heroin, is that not right?

MR HASTINGS: That is right, but the defence position was that she had the heroin herself and had put it in his coffee, so that there was a competing - - -

CALLINAN J: Why would she do that? What would that achieve?

MR HASTINGS: It seemed to be quite a nonsensical explanation, particularly - and I know this gets into the area of the evidence of the accomplices, but when one correlated it with the parallel actions of McFie in purchasing three foils of heroin at about the same time - - -

CALLINAN J: Do not even worry about that. Just look at the modus operandi of the murder itself, a massive injection of heroin - it must have been obtained from somewhere - and he has heroin or he has the residue of heroin with foils in his possession and he has them, or he gives an explanation for them, that he finds them at her place and she has never had any acquaintance with it. There is no suggestion that she had the means of obtaining it. He is a police officer.

MR HASTINGS: No, that is right.

KIRBY J: But she did have suicidal threats. She made a number of suicidal threats, did she not?

MR HASTINGS: That afternoon, she did, yes. Can I just say, your Honour Justice Callinan, what also he did was to make it public. One might think that if a person discovers that his wife has a problem with heroin, one would be a bit discreet about it. But what of course he did, which was consistent with the Crown case, was to take them off to the Australian Federal Police and have it publicly recorded that he had found them albeit in terms in which I think the original reference in the book, the register, was owned and not identified, or some phrase, although he did tell the officer that it had come from his wife. So the fact that he publicised it in itself was consistent with the Crown case.

CALLINAN J: It strikes me - whether it is sufficient, but it strikes me as an exceedingly powerful piece of evidence in the case.

MR HASTINGS: Yes. Well, your Honour, it brings us to the bottom line, I suppose, that when one combines a lot of these circumstances and the sort of things that I took the Court to this morning, the nuances from the calls where they are clearly acting in a way which was designed to be covert. All of those matters constitute, we would say, a very compelling Crown case. Your Honours, I thought I had made it clear that, notwithstanding my answers to Justice Hayne, my preliminary position is that there is no concession that the direction on corroboration was in any way inadequate. Our primary position is that the direction was appropriate albeit unnecessary in the light of section 165 and we generally say that the position does not, therefore, come to be reached in relation to the question of the effect of - - -

GAUDRON ACJ: But you cannot really say that, can you, Mr Hastings? You concede that four items of evidence were incapable of constituting corroboration. Now, if a trial judge gives a warning which says, "Do not convict on the uncorroborated evidence of these people, but here is all this corroboration", then the trial judge has undermined the very direction that he has given and, at least to the extent of four pieces of evidence which you conceded below, and which you concede here today, could not constitute corroboration, the direction must be seen as undermining the direction.

MR HASTINGS: The concession, your Honour, is in the light of the application of the strict Doney/Baskerville test. Our position, your Honour, is that that is not applicable.

GAUDRON ACJ: So you say that all of the evidence that was identified by the trial judge as capable of constituting corroboration was, in fact, capable of constituting corroboration, do you?

MR HASTINGS: Your Honour uses the term "corroboration" presumably in the technical sense of Doney and Baskerville. Our point is that that technical measure does not apply.

GAUDRON ACJ: Had probative value linking Mr Conway as a principal in this criminal venture.

MR HASTINGS: Probative value confirming the evidence of the accomplices linking Conway in the murder, yes.

GAUDRON ACJ: You say, all of it.

MR HASTINGS: Well, in combination, your Honour, which is one of the clear statements of principle made in Doney.

GAUDRON ACJ: I heard you before on some of it, but now let us go to these ones that below, you conceded were not. It is (b), is it? (b) to start with?

MR HASTINGS: No, (b) was held to be an error.

GAUDRON ACJ: Yes. What were the others?

MR HASTINGS: The concession was (e) and (g), I think.

GAUDRON ACJ: Now, (e) I have some trouble with; (b), (e), (g), and what was the other one?

McHUGH J: (q).

MR HASTINGS: Yes.

GAUDRON ACJ: Do you now say that they confirm the evidence of the accomplices linking Conway as principal?

MR HASTINGS: In combination with other evidence.

GAUDRON ACJ: Well, then, I need to hear you on that. I heard you explain how it was that the telephone conversation referring to the files and so on, taken in conjunction with the subsequent phone call to Steer, I think it was, and the meeting at - - -

MR HASTINGS: Yes. And the meeting at the service station.

GAUDRON ACJ: - - - at the service station could all be combined, but I have not - unless I have not been attending properly - heard you tell us how they can all be combined.

MR HASTINGS: Because, your Honour, the Crown case was inextricably interwoven in relation to each accused, and our primary position is that it was artificial to try and sever - - -

GAUDRON ACJ: All of that may be the case, but you have to - if one says, one does not have to worry about the proviso, you have to make good the proposition that the direction as to unreliable evidence, et cetera, or the accomplices' evidence, was not undermined by the trial judge saying, "Look, all this evidence can be used, if you accept it, to corroborate the accomplices' version."

MR HASTINGS: Well, your Honour, if one takes (g), for example, which is the evidence of - - -

GAUDRON ACJ: Where do I find that? Sorry, I have - - -

MR HASTINGS: I am sorry.

CALLINAN J: It is summarised in the Full Court, is it not?

GAUDRON ACJ: Yes.

HAYNE J: 1575.

MR HASTINGS: Your Honours see, at the bottom of 1575, the evidence of Ms Stanger, confirming that Steer had borrowed the car on the evening of 3 May, and she saw it the next day, and later on, her brother told her they had done a "job". Certainly, in isolation, in the context of the standard common law test for corroboration - - -

GAUDRON ACJ: Let us put it in the context of section 55 - - -

MR HASTINGS: And section 165.

GAUDRON ACJ: Well, I do not know that 165 answers it.

MR HASTINGS: I am sorry, no.

GAUDRON ACJ: You have conceded, have you not, that if this evidence is to be used to confirm the account of the accomplices linking Mr Conway to the commission of the crime, it must have probative value.

MR HASTINGS: Yes.

GAUDRON ACJ: And it must have probative value in relation to Mr Conway.

MR HASTINGS: Yes, but not in isolation.

GAUDRON ACJ: No. What is it that you combine it with to give it probative value, do you say?

MR HASTINGS: The Crown case was a package combining a combination of - - -

GAUDRON ACJ: There is no point saying it was a package; it has to be an admissible package.

MR HASTINGS: There was no argument about the admissibility at first instance.

GAUDRON ACJ: I have some problems about the admissibility of (e). I take it Steer and - - -

MR HASTINGS: The reason I am putting it in broad terms, your Honour, is that the Crown case was a package, as I have said perhaps too often, and therefore, when it came to the question of confirming the accomplice component of the Crown case, it was appropriate to look at packages of confirmation to support their evidence, because the whole case - - -

GAUDRON ACJ: Admissible packages. It is not just that support their evidence of the commission of the murder, is it?

MR HASTINGS: Well, it is part of it and an essential part of it, because there are two components in corroboration. One is to tend to confirm that the murder was committed, that is in the way alleged by the Crown, and, secondly, that the accused was party to it. So that one cannot go to the second without the first.

GAUDRON ACJ: So do you attack Doney?

MR HASTINGS: No, because the principle of the combination of circumstances is in Doney.

GAUDRON ACJ: All right. I am still waiting for the combination of circumstances that makes it appropriate for the trial judge not only to have said that these are capable of confirming the account given by the accomplices that Conway was - - -

MR HASTINGS: And leaving it to the jury to decide.

GAUDRON ACJ: Yes, but also allowing them to treat it in isolation as having that effect. On any view, these directions referred to each of them in isolation and not packaged in the way you say.

CALLINAN J: Mr Hastings, it has to be that way, does it not? The time to combine the pieces must surely be only after each one of them has been identified and its probative and corroborative value assessed as an individual piece of evidence and then at the end when that assessment has been made, the jury can be invited to view the combination. Surely there has to be at the beginning a separate identification and a separate testing for admissibility and corroborative value.

MR HASTINGS: Either in isolation or in combination.

CALLINAN J: First of all in isolation and then at the end, if the evidence passes those tests, then the jury can put that piece of evidence together with other pieces of evidence that pass the same test and attribute whatever value is appropriate to the combined weight and amount of these.

MR HASTINGS: Well, no, your Honour, because we would say that each piece of evidence in itself does not have to be capable of establishing a fact.

HAYNE J: No, but let us understand what the issues in this trial were. Steer and Williams had pleaded by now, had they not?

MR HASTINGS: Yes, your Honour.

HAYNE J: They had pleaded to murder. There was no doubt that they had participated in the murder, was there? There was no issue at trial, was there, that the victim had been murdered by Steer and Williams?

MR HASTINGS: No.

HAYNE J: The issue at trial was had this accused and had McFie counselled and procured the murder. Those were the issues at trial, were they not?

MR HASTINGS: Yes.

HAYNE J: How does a statement by Steer or Williams to his sister, "I've done a job", tell you anything except that Steer and Williams had committed a murder, a fact we know, a fact that is not in dispute at trial? How does it bear upon whether Steer and Williams had done that, having been counselled or procured to do so by either McFie or Conway, with or without whatever packaging and string you want to add to it, Mr Hastings?

MR HASTINGS: Your Honour, whilst your Honour says those matters were not in dispute, which is quite correct, it does not mean that thereby those pieces of evidence are not to be admitted into the trial.

HAYNE J: Mr Hastings, we are not debating admissibility. We are debating the effect that the jury were to give to this evidence. They were told by the trial judge, "You may take this statement, `I've done a job', as evidence confirming the accomplices' story that what they had done they had done because Conway had asked them or contracted them to do it". My question is very simple: how does that help?

MR HASTINGS: Your Honour, in the end it may not because in relation - - -

HAYNE J: But that is where we came in.

MR HASTINGS: But that is not say it is not corroboration, your Honour, and indeed it would be silly, with great respect - and I am not saying your Honour is - to assume - - -

HAYNE J: I am feeling it at the moment, Mr Hastings, because I am not following you.

MR HASTINGS: Well, it would be unwise to assume that the jury hearing a piece of evidence like Ms Stanger saying, "I can confirm that he borrowed my car", that the jury would use that in a direct sense to find that Conway was involved in the offence because there is no mention of Conway in it so there would be - - -

GAUDRON ACJ: But the trial judge told them that they could, did he not?

MR HASTINGS: Yes.

GAUDRON ACJ: You say it does not mean that they can but the trial judge told them that they could. Now, is that not an error?

MR HASTINGS: Well, no, your Honour, because - and I am being repetitive - we say that the trial judge was entitled to put it all together as a package.

GAUDRON ACJ: But the trial judge did not. He identified it in tiny pieces, (a) to (r) - what is that, 18 separate - the trial judge said, "Here are 18 separate pieces which you can regard as confirming the accomplices when they said Conway contracted them to kill his wife".

MR HASTINGS: He did not actually say that. He said "they", Conway and McFie. He lumped them together.

GAUDRON ACJ: That is a further problem, is it not?

HAYNE J: These two were having separate trials jointly, were they not, I hope?

MR HASTINGS: Yes.

KIRBY J: You have the jigsaw theory of the evidence that it is true it does not link the statements of the accomplices to Mr Conway but it does provide some evidence that they have done a job and a jury might think it is a very tiny speck, but it is a speck, when put with all the other evidence, that tends to confirm the statement that they have made. "Done a job" might be interpreted to mean "done a job for someone else". Normally, that would be what it would mean. It does not specifically and eo nomine link it in with Mr Conway but it is the little piece of the jigsaw. That is your theory?

MR HASTINGS: Yes, it is, your Honour, and can I just say in a similar vein, that in some respects the trial judge erred the other way, because in relation to (i), for example, which is in relation to Redfern observing Williams in possession of a large quantity of money the day after, the trial judge said that that was marginal. With great respect, that was actually, we would say, quite significant, because of, and I hesitate to come back to it, but the tape of 28 July, because that provided an independent source of evidence from which the jury could conclude that there was an arrangement between McFie and Conway and Steer and Williams for the payment of money in the context of the murder.

So the fact that there was evidence from Steer and Williams that they had been promised money, and the evidence that the day after they were found to be in possession - or Williams was found in possession of a significant sum of money, we would say, is actually quite significant confirmation of the accomplice's evidence, yet the judge downgraded it to something of marginal significance because, again, this is an example - - -

KIRBY J: I begin to see why the Law Reform Commission recommended the abolition of this rule. I mean, we give strictures saying it is not enough to give general directions, you have to identify the particularity and relate it to the evidence, then if a judge makes one or two little mistakes in relation to the evidence which, in a sense, is part of the jigsaw, the whole pack of cards comes tumbling down, subject to the proviso.

MR HASTINGS: With respect, your Honour, it should not be happening now. Section 165 and 164 say this is no longer necessary. This ritual - - -

KIRBY J: Which everybody politely ignored at the trial including your predecessor in title.

MR HASTINGS: Indeed, but as your Honour pointed out earlier, that does not obviate or does not make the provisions of the Evidence Act inapplicable. They apply nonetheless, and with great respect to what is happening now, that ritual is to incantation revival, which is currently taking place, is precisely what the sections were designed to eliminate.

CALLINAN J: But, Mr Hastings, even if the trial judge, his attention was not drawn to section 165, obviously we have to look at the Evidence Act and, in particular, section 165(2), to see whether what was done was in accordance with that. Obviously the trial judge thought that a direction was necessary. He thought that there were good reasons, if I adopt the language of subsection (3), for giving a direction, with respect to corroboration.

MR HASTINGS: Yes.

CALLINAN J: Now, having done that, his Honour then did go on to warn the jury that the evidence may be unreliable and gave a conventional, in some respects, sort of common law direction, but do we not have to identify the evidence that is unreliable, that is, the evidence first that qualifies as capable of being corroborative?

MR HASTINGS: I am sorry, the evidence that may be unreliable has to be identified - - -

CALLINAN J: It has two aspects. It is evidence in this case that is corroborative and also may be unreliable because part of it comes from an accomplice.

MR HASTINGS: Yes.

McHUGH J: But, Mr Hastings, if the Evidence Act had never been enacted and if Baskerville has never been decided, you would still have the same problem in this case, would you not, that is to say, the problem that the trial judge misdirected the jury by saying that certain evidence corroborated the testimony of the particular complainants? Even if there was no accomplice rule, you would still have that problem, because the argument is that it just is not corroboration and therefore the jury were misdirected. The way this case worked out, it has little to do with the Evidence Act or Baskerville or anything else.

MR HASTINGS: But, your Honour, it has only been seen to be a problem because there is a corroboration rule and it is alleged that the direction given did not comply with it.

McHUGH J: But if there was no corroboration rule, it would still be a problem, would it not, because the judge on the concession made by your side down below and on the findings of the Full Court, has misdirected the jury?

MR HASTINGS: Only in the terms of the corroboration rule, otherwise, he has pointed - - -

McHUGH J: No, he has misdirected the jury by saying evidence is corroboration of other evidence when it is not. Even if there was no corroboration rule, if there was no Evidence Act, if there was no decision in Baskerville, you would still have the same problem.

MR HASTINGS: But corroboration in the sense that your Honour is applying it, in order to expose what is said to be the shortcomings, is a meaning which is derived from the Baskerville/Doney technicality. If one took the ordinary phraseology of confirming, or in a broad, lay sense of corroborating, then this evidence does confirm the evidence of the accomplices.

McHUGH J: That may or may not be correct, but the point I am making to you is that this judge directed the jury that certain evidence was corroborative of Williams and Steer. If the common law knew no doctrine of accomplices or corroborative evidence and the judge told the jury that this evidence confirmed their evidence, you would have the very problem that you have in this case. It is a misdirection point, it seems to me.

MR HASTINGS: No, your Honour, with respect. If one takes the Stanger car borrowing episode, that confirms the evidence of the accomplices. What it is said not to do is to meet the Baskerville requirement of corroboration, which is a technical add-on to the normal meaning of "confirmation". So, if one were looking at this in the abstract without the rules which have been developed, it would be a legitimate, logical direction to give the jury. Any argument about its shortcomings is derived on the basis of a comparison with the dicta in Doney and Baskerville which, in our submission, no longer apply in the light of section 165.

That is why, in our submission, the ultimate question this Court has to resolve is whether, by going off on what in some respects is a bit of a tangent, the court in some way misled or deflected the jury from giving a proper consideration to the issues. We would say the court did not. May it please your Honours.

GAUDRON ACJ: Thank you, Mr Hastings. Before hearing you in reply, Mr Tilmouth, we will adjourn briefly to enable the apparatus to be connected to hear the tape.

AT 3.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.19 PM:

GAUDRON ACJ: Thank you, yes.

COURT OFFICER: The equipment is ready to play, your Honour.

GAUDRON ACJ: Yes, thank you.

(DISC PLAYED TO COURT)

MR HASTINGS: Your Honours, could I just say something?

McHUGH J: This is a repetition, is it not?

GAUDRON ACJ: Yes.

MR HASTINGS: There seems to be some technical problem. I understand this is the defence copy, and it seems to be repeating itself, which is distorting itself, and it, apparently, in its original form, is much clearer than this. The original exhibit has now been located, but I think it is the defence copy that is being played. I am told this was not the position at the trial, even though the jurors had headphones to enable them to hear it. I do not know whether your Honours could stand it again, but the original exhibit has now been located, and that might be a far better guide. At the moment, it just seems to be a meaningless exercise of voices over the top.

GAUDRON ACJ: Yes, if the original exhibit is available. Is there a machine to play that?

MR HASTINGS: I think it is in the same format, your Honour, but not a copy.

HAYNE J: Can I just say, Mr Hastings, the original exhibit seems to be exhibit 100, is it not, which is an audio tape, and, for my own part, I would prefer to hear the exhibit, not a copy of it.

MR HASTINGS: There is exhibit 81, your Honour, which is a combination of all of the listening device tapes, which I am told is the practical device used in the trial. I am told exhibit 100, your Honour, is the recording of the arrest circumstances - - -

HAYNE J: I see.

MR HASTINGS: - - - not the conversation itself.

(DISC REPLAYED TO COURT)

GAUDRON ACJ: Yes, thank you. Well, Mr Tilmouth.

MR TILMOUTH: If the Court pleases, your Honour Justice Kirby asked, I think, at one stage whether there was anything contemporaneous or a contemporaneous expression following this event at least between it and before things progressed as we now know they did at the trial. The short answer, your Honours, is no. I am reminded that when the appellant was interviewed it was on 7 May which preceded this, of course. It was an official interview, it was recorded, so he was plainly under suspicion at that stage, as I understand it.

McHUGH J: More than that, they actually put to him a number of times that he murdered his wife.

MR TILMOUTH: Yes, but by definition, of course, what happened on this occasion could not have arisen because in time it had not occurred. Now, as mentioned earlier, the police arrested McFie and Conway at the house within minutes or so. They were both cautioned and given their rights as required by statute and he exercised a right of silence, effectively. There was some conversation which was in exhibit A but nothing, I am told, of relevance either way to this matter. So that explains why there is, as it were, nothing in between.

Now, in relation to the matters that your Honour has just heard - you can understand why I made the submissions earlier about drawing too much from the quality of the transmission, but can I simply point out at 1331 where at the top of the page - your Honour Justice Hayne mentioned this earlier - there was mention of "Ricki Conway's murder", line 4.

When Mr Steer is coming back to it at about point 6, it appears, as difficult it was to hear, that there is some kind of protest by McFie, "Just a moment, just a moment" when Conway is mentioned and, in my submission, the second last entry, "they said that we had supposedly employed you", appears to question the same issue, at least to the extent that Conway might have been involved, the appellant Conway.

The other matter, if the Court pleases: there was, in my submission, some suggestion that the appellant still continued to protect McFie right up until late in the trial. At appeal book 4, 925, the last third of the page, without reading, there is a statement by him about going to the police. That is another passage that supports what I put to your Honours earlier. But at 934, your Honours, without reading it, the gist of it is that Mr Conway is being asked about the 28 July audio tape and making the point that he was not there and he has been given every opportunity, really, to implicate McFie and his constant refrain is, as your Honours will see, effectively:

I can't comment on that. . . . I don't believe that. . . . I wasn't party to this part of the conversation. . . . I can't answer that. . . . No, I can't answer that.

And so on. So even then, at least to the point of late in his cross-examination, he is still protecting her.

HAYNE J: Sorry, I do not follow that.

KIRBY J: Is not that against you?

MR TILMOUTH: Not in my submission.

HAYNE J: Page 934, he is being cross-examined about that part of the conversation which it is contended occurred when he was out of the room concerning the computation of the debt.

MR TILMOUTH: Quite, but he had the opportunity at that stage, if he had wanted to, to implicate McFie. That presented an occasion where he could have done so and he did not.

HAYNE J: I just do not follow that, Mr Tilmouth. How could he have done that, in answer to those questions?

MR TILMOUTH: I understand what your Honour is saying if the gist of it is he is out of the room he cannot really comment on it, but my point is that it was an occasion in which if he wanted to implicate her by that time he could have, that is all.

KIRBY J: I am still not clear as to the point you are making. You see, the only theory that is consistent with your client's innocence is that he was covering up for Ms McFie.

MR TILMOUTH: Indeed.

KIRBY J: And to the end of his trial virtually, he did not embrace that theory. On the contrary, he put forward a different theory, namely, that he just wanted to give them enough rope so that he would have enough basis as a policeman to report them.

MR TILMOUTH: Indeed.

KIRBY J: Having heard that conversation, it does not have the ring of a conversation between a person unfamiliar to your client who is coming in there to say things which are astonishing to him and which he will report as soon as he gets a chance. So that is against him. The way he conducts his trial is against him, and to almost the end of his trial he does not embrace the proposition "Well, okay, I will tell you the truth. She did this. I love her and I have been protecting her".

MR TILMOUTH: For what it is worth, at 934 I endeavoured to make that point. In the recording we just heard, of course, Conway played very little part, even on the bare transcript, the written transcript, which is very consistent with him biding his time, as he said, to report the matter.

KIRBY J: It is not very consistent with a police officer, or a human being, confronted with this very desperate individual, whom he suggests he does not know, or has only had the most ephemeral contact with, coming along and asking him for a lot of money.

McHUGH J: And not very consistent with him walking away during the middle of the conversation. He was a police officer being told of a murder and he walks out of the room.

MR TILMOUTH: Well, what is he supposed to do at that time, if the Court pleases, with two of them there - self-confessed murderers?

McHUGH J: But if, on your view, or on his view, that he is allowing them to string along and provide more and more evidence, one would have thought, as a police officer, he would be there attempting to get all the information he can from them.

MR TILMOUTH: On one view, that is what he was doing. The whole thing is dominated, perhaps 98 per cent - - -

KIRBY J: Can I lay it on the line for you, Mr Tilmouth. There are only two theories, it seems to me. One is that your client was implicated from the beginning, and nothing in that conversation and various bits and pieces of the jigsaw elsewhere tend to confirm that. The other theory is that your client came into it after the murder in order to protect Ms McFie. The problem - and this is where I lay it on the line - is your client conducted his case, virtually to the end of his case, that his instructions were and the case was fought before the jury on the basis that your client was not covering up for McFie and that is how the matter went to be determined. If that is the way your client fought his case at trial, he would not be given a second chance to fight it in a different way.

MR TILMOUTH: No, I understand that, if the Court pleases, and that is not my point at all. My point is rather that to a point at least, what he did and what happened in that interview and in the way he conducted his trial is consistent with protecting her until the death knock, as it were, but it does not exclude the case series your Honour raised with me at the very start of this hearing, not at all. It does not exclude it absolutely; it is only one view, in my submission, those two matters combined.

KIRBY J: Was anything said by the judge in his directions to the jury in discharge of his own separate obligations that this was a different theory that the jury might have to consider, especially in the light of the cross-examination that belatedly raised this flag?

MR TILMOUTH: No, I do not believe that was addressed in the summing up.

KIRBY J: And no request was made that it should be put to the jury?

MR TILMOUTH: No, your Honour.

KIRBY J: So really, to the end of the case it was not a proposition that was embraced in the conduct of your client's defence?

MR TILMOUTH: Not in the outward conduct, no.

KIRBY J: Why should we give it any credence when we are thinking of a miscarriage of justice?

MR TILMOUTH: Because it is perfectly consistent with him holding out until he has to really nail his colours to the mast.

HAYNE J: What, holding out until he gets to the High Court and run a new theory in the High Court altogether different from the theory run at trial? Really, Mr Tilmouth.

MR TILMOUTH: No, at the last minute I mean at the trial. I do not mean in terms of an appeal at all. If it was a tactical decision at the trial to save an appeal point, that would be another matter. It is not that situation at all. It was a situation where conflicting loyalties, as it were, left the matter very difficultly poised. It was a very difficult case of course, but it does not exclude altogether, in my submission, absolutely that view favourable to him of the case.

Your Honours, my learned friend addressed Ahern's Case and made the submission that our submissions had exaggerated the importance, or the effect of Ahern's Case, and read to your Honours the part of Ahern's Case where, in particular, Minuzzo and Williams, the Victorian decision, was read.

Your Honours, I should have mentioned but I do now, that in support - and I am not going to Ahern, your Honours, I am going to the case of Chai that I handed up a photocopy of. In Chai (1992) 27 NSWLR 153, may it please the Court - I handed this up as one of those cases in which Doney and Baskerville had been applied in the context of a corroboration warning where there were co-accused, but, your Honours, it is also authority for the proposition purporting to follow Ahern that when it comes to the admission of material under the co-conspirators' principle, the question of the two purposes, combination and participation in it, also must be identified.

Your Honours, if I could go to page 190 just above point F, the court said this - and this is about six lines into the paragraph commencing at point E:

It would, however, in my view, have been preferable had he -

the learned trial judge -

at some stage in the summing-up isolated those portions of the evidence of the acts and declarations of the co-conspirators which could be seen to involve an implied assertion of the applicant's participation in the conspiracy, to point out to the jury that these stood as evidence not only of a circumstantial sort but as direct evidence of the applicant's participation, and to draw their attention to the fact that the appellant had no opportunity of testing the evidence by any cross-examination -

and so on. The latter is not applicable here, of course, and at the bottom of 191, if the Court pleases, the last two lines:

The conversations that took place at the fifth and sixth meetings were clearly conversations in furtherance of the conspiracy, so too the seventh, but none of them contains any express or implied assertion of the appellant's participation. They were admissible in evidence, to show the existence of a conspiracy and its nature.

Where, as here, evidence of the acts and statements of co-conspirators is admissible, but the basis upon which one part of the evidence is admitted and the purpose for which it may be used differs from the basis on which the other evidence is admissible and the purpose for which the other evidence may be used, the trial judge should take care to explain to the jury the limited purpose for which certain parts of the evidence were admitted: see Ahern v The Queen (at 104) -

which I read.

At 193G, your Honours, in these passages his Honour makes no distinction between those facts and circumstances to which the jury might have regard in determining whether a conspiracy existed and that evidence to which the jury might have regard in determining whether or not it is proved that the appellant was party to that conspiracy. Then they go on to apply the proviso. That supports the submission I made earlier that there was still this second layer of distinction, even if under the co-conspirators principle evidence got in properly as to what use it should be put.

Now, one other matter, your Honours, of some importance, and this relates to the question your Honour Justice Callinan raised regarding the coffee incident and the heroin. With the greatest of respect, your Honours, this raises a huge Pandora's box. It was a large issue at the trial and it was a large part of the appeal. I do not want to reargue that because, of course, leave was not granted on that matter, but I do want to make these points, if the Court pleases, because it should not be assumed, in my submission, that the matter either went to the jury absolutely on the basis that Conway had put heroin in the coffee or it is incontrovertible that that fact could be proved beyond reasonable doubt.

The basis of the admission of the coffee incident by the trial judge is summarised at 1533 of appeal book 7. In the bullet points which appear at the bottom of that page and over onto the next page and they might be conveniently said as "relationship evidence"; an act of "preparation" to murder by putting traces in the body; "rebut any suggestion that Steer and Williams had murdered the deceased on some frolic of their own"; and as "hearsay . . . exceptions".

It was contested, absolutely, if the Court pleases, that that evidence had been proved adequately to enable at least the latter conclusions to be drawn. Your Honours, at 1542, paragraph 103, the Full Court concluded that there was "ample evidence to support the conclusion" that the appellant had put "a drug in his wife's coffee" and that "that drug was heroin". I do not wish to argue it because I have no leave, but I want to make the point that that is in dispute. Your Honours, the reason why that is, if your Honours go to 1546, their Honours drew that conclusion partly because that bullet point at about line 7 or 8 in 1546:

The deceased's complaints to her neighbours, and to Constable Dix regarding Conway's having put a drug into her coffee on the morning of the coffee incident. The deceased told Constable Dix that her coffee had a bitter taste to it, and told Mrs Skellern that she could see some undissolved white powder in the bottom of the cup.

May it please your Honours, that question of the admissibility of that evidence was not resolved by the Full Court, and one may see that at 1552, line 136:

It is unnecessary, having regard to our finding in relation to Mrs Dillon, to consider whether or not the deceased's statements to Mrs Skellern, Mrs Noordhof and Constable Dix -

the first two of the neighbours referred to back at 1546 -

were made "shortly after" the coffee incident.

And therefore, admissible under the relevant sections -

Those statements were, in substance, similar to that made to Mrs Dillon. If Mrs Dillon's testimony was admissible, there could be no real prejudice to Conway -

et cetera.

McHUGH J: But there was other evidence as well, was there not, because was there not a diary entry of hers much to the same effect, and in the record of interview when examined by the police officers, your client conceded, did he not, that his wife had told other people, including her solicitor, I think, that he put some drug in her coffee?

MR TILMOUTH: I do not remember the latter, your Honour, but there was other evidence and that is all at 1542, summarised in paragraph 104. But the point I am making is that part of the evidence used by the Full Court was evidence that they did not resolve the admissibility of. More importantly, let us assume, contrary to my submissions, that it was admissible. Surely if it goes to the jury, it would have to go to the jury on the basis that they found, first of all, beyond reasonable doubt that the substance was heroin.

GAUDRON ACJ: I do not see why.

MR TILMOUTH: Because, if it was being used as an indispensable chain in the reasoning to guilt, then they would have to find that it was heroin in the first place. Of course, if it was being used in the way that was being argued by the respondent today, that very argument assumes that the substance itself was heroin and had these relevant links with other pieces of packaged evidence. The point I make is the learned trial judge never left it to the jury that way.

At 1561, paragraph 170, the Full Court wrongly, in my submission, rejected a submission that the judge should have directed the jury in accordance with this Court's decision in Shepherd's Case. The gist of the submission was that before the jury could use all this material about heroin in the deceased's coffee, they had to find that that substance was heroin beyond reasonable doubt because of the way it was sought to be used and linked. No such direction was given and, in my respectful submission, paragraph 170 is therefore wrong.

The last point, may it please your Honours, my learned friend put to the Court that with Williams having a large amount of money and giving it to people and so on was highly corroborative. Could I point out that on Steer's evidence and Redfern's evidence, one of his associates, he often had large amounts of money, around $15,000 or thereabouts, because he was a drug dealer. There was quite a deal of evidence that that amount of money, it was by no means unusual so far as his situation was concerned. That being so, the significance of giving people $300 or $600 was barely important in the context of the case.

CALLINAN J: Mr Tilmouth, just on the coffee incident, leave aside the coffee entirely and just look at your client's own evidence as to the finding of the two pieces of foil. It is established that they contained residues of heroin, is it not?

MR TILMOUTH: Yes, I think that is right, your Honour.

CALLINAN J: So that is his evidence. His evidence is that he found them on the window sill. There is no suggestion anywhere that she ever had any addiction or acquaintance with heroin, is that not right?

MR TILMOUTH: I believe that is right, your Honour.

CALLINAN J: What is the explanation for his finding the heroin or finding this foil and dealing with it in the way in which he did, making sure that it got on the public record, as it were, that it was found at her house?

MR TILMOUTH: Would your Honour pardon me for a moment?

CALLINAN J: Yes.

MR TILMOUTH: I think I might have conceded too much. Your Honours, I can only be imprecise, because it is not reproduced, but I understand there was some evidence - maybe not great - in relation to heroin and the deceased. But your Honour is quite right that the heroin that he took back to the police station, when analysed, did come from the window sill.

CALLINAN J: But there was no evidence of any signs of any injection ever on her body. The pathologist examined her - - -

MR TILMOUTH: No. As I understand it, that is right.

CALLINAN J: - - - and found that there just was not any.

MR TILMOUTH: That is true.

CALLINAN J: So, therefore, if you leave the coffee out of account altogether, it seems to me that it is still a powerful piece of evidence: his finding, or claim to have found, the foils where he did, and putting the finding on the public record, taken with the fact that she was killed by a deliberately injected massive overdose of heroin in circumstances in which she had never taken or had heroin before. Why is not the claim that he found the foil and dealt with it in the way in which he did a powerful piece of evidence tending to implicate him in the murder?

MR TILMOUTH: Well, that is a big bow, if the Court pleases.

CALLINAN J: I do not know about that.

MR TILMOUTH: I have already put the submission that they would have to prove in the end result beyond reasonable doubt that there was heroin in that coffee.

CALLINAN J: No, no, leave the heroin - - -

MR TILMOUTH: No, I understand your Honour is saying that.

CALLINAN J: Leave the coffee out altogether.

MR TILMOUTH: But that already creates a big gap in the chain of reasoning as it were because all that you are left with is him finding some heroin in the kitchen area - I think it was - the windowsill, and a subsequent occasion where she is injected with heroin.

CALLINAN J: It is almost proved beyond reasonable doubt. I would have thought it was proved beyond reasonable doubt that she would not have had heroin at her house for any purpose. If you assume that for present purposes, and, yet, he claims that he found heroin and he makes a point of his claim by causing it to be recorded and she dies from a massive injection of heroin. How do you explain - what possible explanation is there, other than his implication in her death by a heroin overdose?

MR TILMOUTH: With respect, that makes huge assumptions. The finding of heroin itself has nothing to do with the later events on 3 May, at least taken alone.

CALLINAN J: Was it a total non sequitur then, you say?

MR TILMOUTH: I still submit that in the end result, as it was put to the jury, that if it was an act preparatory to murder in the way that the Crown alleged, ie, by trying to get some traces of heroin in the body for a suggestion of - - -

CALLINAN J: No, leave out the coffee altogether by trying to establish or trying to lay a foundation for her having heroin at her house and therefore using heroin. Do not worry about it being in her body or being in the coffee at all, just divorce the coffee entirely from your considerations.

MR TILMOUTH: It would just be a piece of prejudicial reasoning, with respect. It would not be anything else.

CALLINAN J: How else can you explain it? She would not have had heroin there. She had no reason to have heroin there.

MR TILMOUTH: Maybe not, but how you use it as a piece of evidence against Conway, the appellant Conway, in relation - - -

CALLINAN J: Because Conway chose to make a point of picking it up, taking it back to the police station and having a record made of it.

MR TILMOUTH: How does that throw any light, with respect, on the rest of the material or his involvement?

CALLINAN J: A massive coincidence then that subsequently she is killed by a injection of heroin.

MR TILMOUTH: That, with due respect, assumes a huge link between the two, which rather begs the question. I can only repeat, if the Court pleases, that to draw the link between the two you would have to find really, in effect - I know your Honour has asked me to ignore it, but it is really an indispensable element in all of this - that there was an attempt to put heroin in the body through the coffee incident.

By the way, could I add this. Your Honours do not have this, but in the ruling to which the Full Court referred when it summarised the basis of admission at 1542, the written reasons of the learned trial judge referred to the Crown's submission that the evidence demonstrates a bitter relationship between the deceased and the accused and was attempting to discredit the deceased for the purpose of family law proceedings between the parties. Now, that was another explanation, even if one assumes what your Honour is putting to me. In other words, it had a different purpose altogether because at that point, which was somewhat earlier, there was this question of the access argument.

It was also put, in fairness, by the Crown, as I have mentioned and summarised in the Full Court, that it was an act preparatory to murder but that depended again - I have put it as strongly as I can - on finding that the traces in that cup were heroin or that the jury had to make that finding beyond reasonable doubt before they could use it in the way suggested. That evidence, if the Court pleases, was lacking and I have made those submissions. May it please your Honours.

GAUDRON ACJ: Yes, thank you, Mr Tilmouth. The Court will consider its decision in this matter.

AT 4.17 PM THE MATTER WAS ADJOURNED