Evans v The Queen [2007] HCATrans 368 (1 August 2007)

Last Updated: 2 August 2007

[2007] HCATrans 368

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S219 of 2007

B e t w e e n -

GRAHAM JOHN EVANS

Appellant

and

THE QUEEN

Respondent

GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007, AT 11.58 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with my learned friend, MS G.A. BASHIR. (instructed by Legal Aid Commission of NSW)

MR D.C. FREARSON, SC: May it please the Court, I appear for the respondent with my learned friend, MR M.M. HOBART. (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J: Yes, Mr Game.

MR GAME: If the Court pleases, I will come in due course to the questions arising concerning the demonstration that occurred in court involving the appellant, but first, I would like to take your Honours to an issue relating to the alibi evidence.

May I say this, your Honours, the Court of Criminal Appeal upheld the complaint that error was disclosed in relation to the wrongful refusal to allow the appellant to call evidence of alibi and in section 5 of the Criminal Appeal Act, that is an error of law. If your Honours look at our grounds of appeal you will see that we have a ground on page 892 which is to the effect that the Court of Criminal Appeal erred in applying the proviso having regard to the material relating to both the glasses and the alibi.

A time may come in the course of my submissions later when I put to the Court that we have established further error, that is to say in relation to both the comments made by witnesses, the demonstration and the failure of the judge to warn on significant aspects of this case, but we seek to make the case that the trial miscarried by reason of the inability of the defence to call evidence of alibi and that the proviso would not be applied in those circumstances. I wanted to take your Honours to this matter first because it does provide part of the context within which the issues relating to the demonstration occurred.

In the Court of Criminal Appeal one sees at page 885 the reason why, as it were, the proviso is exercised in relation to the alibi. We see in paragraph 287 that “The evidence the appellant himself gave in support of the alibi was not withdrawn from the jury”. That is actually not correct – it was withdrawn from the jury and I will take your Honours to that in due course. It was actually banished from consideration.

KIRBY J: The respondent in this Court makes the point though that the evidence did get before the jury relevant to the alibi. I know we work on the hypothesis that if they are told not to have regard to it that they do not, but if we are in the proviso territory the fact is that material did go before the jury.

MR GAME: Your Honour, all that went before the jury was the appellant’s account and cross-examination on it. Then the judge said that she would not give leave to rely on that. Neither counsel made submissions directed to the issue of alibi at all except in a very narrow sense which I will come to in due course. The appellant’s brother and father never got to give the evidence that they could have given, which I will take your Honours to in a moment, but we see the sentence said:

Neither the appellant’s brother nor the appellant’s father could have given positive evidence of where the appellant was on 28 February 2002. They could only give evidence of a general practice of which the appellant had already given evidence.

In fact, the effect of the father’s evidence and the brother’s evidence was, in effect – and we can see this in the supplementary appeal book – to the effect that he did not miss a Thursday when he was doing the cars – so when he was putting out the cars for his father’s business. We see this in the supplementary appeal book.

The father’s evidence is in an affidavit. That is at page 1 of the supplementary appeal book. The brother’s evidence is at page 3 of the supplementary appeal book. So it may ultimately have been a matter for evidence as to how far this evidence went, but there has been no testing and the appellant has never got before the jury his case in relation to the alibi.

HEYDON J: What is that case? I mean, those affidavits say that the appellant would start his job around 1 every Thursday afternoon. That is what Alan Douglas Evans says and the other deponent says he would usually start the job just after lunch, sometimes start early in the day. But the question is, when did he finish? The crime took place at 4 pm, is that correct?

MR GAME: The crime at 4.10 pm. But, your Honour, the point is, and it is a matter that has never been litigated, but the point is that Strathfield is a very long way from Campbelltown. The effect of their evidence would be, in effect, that he must have been – and I accept that it may have been cross-examined a way to a degree but it has never been tried.

HEYDON J: My point is it is not a question of cross-examining a way, it is a question of no positive evidence in several senses. There is a sense in which it is not really alibi evidence.

MR GAME: It was rejected on the basis that it was alibi evidence of which notice had not been given. But, your Honour, this evidence, this is the defence case in substance which is, “My practice on Thursdays was to put out my father’s cars” and then there would be supporting evidence from the father and the brother that that was the practice. Your Honour, how long the exercise took, whether some person could assist him, the brother said it took five hours. Again, that may be a matter for cross-examination, but if it took five hours he could not possibly have been at Strathfield at the same time as he was at Campbelltown.

KIRBY J: He was legally represented. If he has this alibi that he was at Campbelltown and not Strathfield, why did he not give notice of it? I mean, that is what the law requires and for good reason, but otherwise you are dropping a version in the midst of a trial which the Crown is not in a good position to answer.

MR GAME: There was no dispute that the Crown was in exactly the same position and there was no prejudice to the Crown. This ground of appeal succeeded.

KIRBY J: You understand that to be contested in this Court?

MR GAME: It is not contested in this Court.

KIRBY J: So it is a pure proviso issue to be considered along with the other proviso issues, most notably the presence of DNA consistent with the appellant on the cap.

MR GAME: On the cap, I understand that, your Honour.

KIRBY J: Inconveniently left behind.

MR GAME: Yes, I understand that, but can I say there are competing inferences. For example, the tissue on the defence case is DNA was excluded.

KIRBY J: That is neutral. That could have just been somebody who blew their nose on the tissue some time back.

MR GAME: The Crown was saying that both the cap and the t-shirt were left there at the same time. That was their case and competing inferences were put about that. But may I just take your Honours to a portion of the summing-up in relation to this question of alibi? If one goes to the appeal book, second appeal book, pages 702 and 703, one sees at line - - -

KIRBY J: I am still concerned as to – if it is not in issue, well it is not in issue, but if the Parliament has provided the requirement to give alibi evidence, if the person is legally represented and therefore not at any relevant disadvantage, and if this is a statement, “Well, I was in Campbelltown and you cannot get from Campbelltown to Strathfield in five minutes”, then why was it not within the entitlement of the judge at trial to say you did not give the notice and you cannot put it before the jury.

MR GAME: But, your Honour, the Crown never suggested that there was the slightest prejudice to them in the evidence being admitted.

KIRBY J: Does the Act provide than less prejudice, is it a prejudice criterion about alibi notices?

MR GAME: No, your Honour. This was a Legal Aid – a barrister briefed by Legal Aid the previous Friday. He had not perceived that an alibi notice was even required. Now, it was only when the issue got raised by the prosecutor that he subsequently made an application to lead the evidence. As I say, in our submission, this is purely a proviso issue at this point, but our point about this is this, that wherever else this case goes we are entitled to succeed on this point because we were denied the opportunity to, as it were, put our case to the - - -

KIRBY J: What, we forget altogether about the DNA evidence?

MR GAME: No, what I am saying is that, yes – sorry, the answer is, yes, the accused did not get to put his case to the - - -

KIRBY J: That is just very unreal.

CRENNAN J: Mr Game, in the context of what Justice Kirby has asked you, also the remark made by Justice Heydon, at 409, between lines 20 and 30, I understood that – and I may be wrong – that defence counsel there was explaining the reason for not serving an alibi notice.

MR GAME: Yes, your Honour.

CRENNAN J: Which really entailed recognising that the matters of which you speak were not really an alibi.

MR GAME: But, your Honour, he did not think – it does not – it is just a description. The point is that this evidence if accepted undercuts the adverse inferences to be drawn from the presence of the cap with the DNA on it. He did not think that it was alibi evidence. It was a purely technical point that was taken against him by the prosecutor, purely technical. It had no merit in substance. The prosecutor was in absolutely no different position when cross-examining the father and brother about what happened on the Thursday than if they were not cross-examined on the subject.

KIRBY J: But one could imagine that there might be attendance records or other things that could be investigated to check this version, and pay records and matters of that kind, and if you drop it on the day of trial, well – however, you say this has been determined in your favour but the consequence of it was not given effect to and it is not contested in this Court so I suppose we just have to accept it, but I must say that I can understand why the trial judge, the objection being taken, might reach the view that the objection was a good one.

MR GAME: But, your Honour, the judge seemed to think that she had no power to allow the evidence to be heard, but I will come to that shortly.

HEYDON J: Your point is this, is it, that this falls within one of the possible exceptions mentioned at the end of Justice Hayne’s judgment in Weiss, namely, there was not really a trial at all, there was a fundamental sort of - - -

MR GAME: Yes, there was a denial of procedural fairness in Weiss language. He did not get to put his case. Yes, your Honour. Now, could I just take your Honours to - - -

HEYDON J: And hence you say the DNA on the cap is – you do not look at any other evidence you say?

MR GAME: No, that is my point, your Honour, yes. Now, if I could just take you to what is said in the summing-up at 702 and 703? Sorry, there is a procedural aspect of this that I want to draw out because the procedural aspect, in my submission, works quite unfairly to the accused. But do you see at page 702, her Honour says:

The accused, Mr Evans, has given evidence himself and he’s also called evidence, that is his father and his brother in support of his case, to the effect to support his denial of his being present and committing the offence -

But when we go to the father and the brother’s evidence we will see that they were not allowed to give that evidence. So, it is completely hollow to say that he called supporting evidence from his father and brother because that evidence at the insistence of the prosecutor was chopped out of the trial. At the top of page 703:

I think I’ve referred briefly to the evidence of his father and also to his brother which is called in his case to support his denial of the commission of this offence alleged against him.

So again, the fact is that the brother and the father were chopped out of giving evidence at the very moment at which they would have been able to give the jury the evidence about what happened on a Thursday. May I say these witnesses were present and a conference was offered with the Crown Prosecutor if the Crown Prosecutor wished to have a conference with them prior to them being called. Before I leave this part of the summing-up, may I just refer to one short passage on page 705 at about line 12. It says:

but that DNA evidence is subject to the evidence which I specifically have taken you to in the defence case that which you will need to examine closely.

So the DNA evidence is, as it were, subject to the inferences to be drawn from the defence case, but the jury have not heard the defence case. May I go back then - - -

HEYDON J: Can I just go to this chopping.

MR GAME: I am sorry.

HEYDON J: You refer to the judge as having chopped the evidence out. Where did that take place, and what was chopped?

MR GAME: I will come to it very shortly, but can I just take you to a couple of passages of evidence first and then I will answer that question. It is coming quite shortly, your Honour. The accused, now the appellant, gives some evidence at the bottom of page 397 and the top of page 398 about what happened on a Thursday. You will see at the bottom of page 397 that he said he could not, with certainty, say what he did on a Thursday, but then he qualified that by saying what he did do on Thursdays. All that was left for the jury in these accounts was that he could not say what he did and the father and the brother could not say what they did. So, as it were, it is worse than if he had not got to put it at all because the jury - - -

KIRBY J: What is the line you were reading then?

MR GAME: I read from the bottom of page 397, but it goes right down through page 398. It is his account of what he did on Thursdays.

HAYNE J: You say that this is worse than something.

MR GAME: Yes, your Honour.

HAYNE J: Worse than what, and why?

MR GAME: The jury hear the father and the brother. One of my points is this: they hear the father and the brother but they never get to hear the evidence which will support the appellant.

KIRBY J: Support the appellant in saying what – that he cannot with any certainty say where he was on the day in question.

MR GAME: No, but that is not the effect of his evidence. The effect of his evidence is that on Thursday afternoons he always puts out the cars. The effect of his evidence is the qualification on what is said at page 397. What happened then was this. At page 409 the Crown comes back and complains that there has not been an alibi notice served. Then she says at line 12 “I propose to cross-examine him now about what he said”. Now, after some considerable cross-examination which I will return to in the context of the demonstration, at the bottom of page 429 the Crown Prosecutor cross-examines on this subject.

KIRBY J: What subject?

MR GAME: The subject of his whereabouts on Thursday afternoons. If you look at the answer at line 30 on page 431, the sixth word should probably be “but”. He is cross-examined on the subject by the prosecutor. Then there is an objection at page 431 to a piece of evidence which concerns something else. There is a strike-out of an answer at the bottom of page 431. But then we go through to page – that evidence is struck out and your Honours need not trouble yourselves with that. Then at page 462 defence counsel returns and makes an application, flowing through to page 475 to lead the evidence of the alibi. At page 475, lines 12 to 20, the judge refuses leave for him to rely on this evidence at all, including retrospectively. We see that at line 18.

KIRBY J: What page?

MR GAME: Page 475, line 18. The explanation her Honour gives is, with all due respect, a non sequitur. She says:

I refuse that leave, because I am of the view that it has been dealt with properly by the Crown in her further cross-examination.

So the Crown has had an opportunity to cross-examine on what might be described as witnesses in the account. It is banished from the case. The father and brother are called to give evidence and they are not allowed to give evidence as to what actually did happen in this respect. Now, we see the brother gives evidence at page 550. It starts earlier, but he is about to come to the subject of the alibi. Then at 550 at about line 32:

Q. Where was the wedding shop?
A. In the main street of Campbelltown.

CROWN PROSECUTOR: Your Honour.

HER HONOUR: I think that is the end of it. Do you want to –

CROWN PROSECUTOR: No, your Honour knows what I am saying.

So the evidence of the brother in relation to this subject is chopped out and yet the jury are later told that that was the evidence in support of the defence case which they never heard. Then we go to the father.

GUMMOW J: What do you take from 550?

MR GAME: What is happening at 550 is that the Crown Prosecutor is reminding the judge of the ruling that she has already made retrospectively refusing leave to rely on the alibi.

GUMMOW J: “Your Honour knows what I am saying.”

MR GAME: Yes, “your Honour knows what I am saying” means your Honour knows that you have already made a ruling.

GUMMOW J: It is like dialogue in a Pinter play. Anyhow, what did her Honour know?

HEYDON J: She refused leave.

MR GAME: She refused leave to call evidence.

HEYDON J: Mr Pullinger asked:

Q. Do you remember where you were, or what you were doing in 28 February 2002?
A. No.

That closes off the alibi.

MR GAME: It does not, your Honour.

HEYDON J: Why not? Because of the.....type evidence.

MR GAME: Yes, he might have had to get somebody – in fact, this is the point I am trying to make about how bad it was because all that gets left is absence of recollection about what people did on a particular day, yet to the extent that the defence had a real case, was a case built on practices which occurred and what you could build out of that.

KIRBY J: Let me just understand. Your argument is that the basic error and unfairness of this is that the judge originally excludes this evidence on the objection of the Crown Prosecutor, that that was not really a proper exclusion in the circumstances, but that subsequently she apparently forgot that and she told the jury that they should consider in the light of evidence and yet that is inconsistent with her direction that the jury must have no regard to that evidence?

MR GAME: Exactly. They are told to have regard to something which they have not heard.

KIRBY J: This is central to your client’s opportunity to put whatever case he has here given that he has other problems. He just does not get to first base in proving that every Thursday he did certain things and that they did not remember that on any particular Thursday relevant here, he not being able to remember a specific time, he had been absent from work which was his assigned duty every Thursday.

MR GAME: Yes.

HAYNE J: Let me just understand that, Mr Game, because there are a couple of propositions in there. The appellant at his trial said, “I ordinarily do the cars on Thursdays”. Was that proposition in that form ever challenged by the prosecution?

MR GAME: The prosecutor said in her address – I will just check. That proposition was treated as - - -

HAYNE J: It was treated as a given, was it not?

MR GAME: No, no, it was not. It was treated as having been expunged from the case. The direction that the judge gave was to exclude from consideration the putting of the cars out on a Thursday. It would be a very odd thing if what your Honour says is correct, that neither counsel addressed at all on the subject of putting cars out on the Thursday. I will take you to the passages shortly. What we have just - - -

HAYNE J: At the end of the appellant’s evidence, so far as it went, it was “I ordinarily do the cars on Thursday. I cannot say I did them on this Thursday.”

MR GAME: No, your Honour. That is not the effect of it. The first question was, “Can you say what you did precisely at any - - -

HAYNE J: “On this Thursday?” “No.”

MR GAME: No, but, your Honour, that defence of building up a case about what practices occurred on Thursdays.

HAYNE J: The artful advocate may or may not have approached the questioning in quite that order, Mr Game, and I understand that. It is a real world out there. But, in fact, what happened was “Do you know what you were doing on this Thursday?” “No.”

MR GAME: No, but, your Honour, you cannot, in my submission, cut the thing off at that point. That was impermissibly done by the judge both in relation to the appellant, his brother and his father. What the defence case was to build inferences around the practice that occurred on a Thursday afternoon. That was his case. That was the case that he did not get to put. It cannot be a question of simply sidelining this and taking one answer which is the worst possible construction on this defence evidence and then saying, “Well, you lose the case”, which is what the Court of Criminal Appeal did.

Now, that was the brother’s evidence that we just saw where the brother is chopped out from saying what the practice was in relation to putting the cars out on a Thursday. Then the father at 572 to 573, there is a debate about the father and we see at 573 the Crown Prosecutor again – this arises out of an objection to questions asked at 572 which is an attempt to build up the case as to what happened on Thursdays. At 573, the Crown Prosecutor objects again. Then Mr Pullinger states his understanding of the ruling and nobody queries it.

KIRBY J: Where is that?

MR GAME: Page 574, line 10. Can I just clarify one thing? Within the terms of the statute, this is alibi evidence because he is putting it forward that he is not present at Strathfield because he is present at Campbelltown. That satisfies in strict terms the statutory provision relating to alibi. Line 10 on 574:

PULLINGER: As I understand your Honour’s ruling I’m precluded from leading evidence which would suggest by reference to usual practice that on a Thursday afternoon the accused was engaged in the preparation of the cars for display but I don’t understand your Honour’s ruling to go beyond that.

On page 575 her Honour refers to a judgment that she gave. This is at line 20. But her Honour never gave a judgment on this subject.

KIRBY J: You did read us or refer us to a short reasons for a ruling earlier. Remind me what that was. Was that not on this subject?

MR GAME: No, the ruling that she gave earlier was her directing the strike out of the evidence and that was back at 437.

HEYDON J: Justice Kirby was asking you about 475, lines 12 to 20, I think.

MR GAME: Sorry, your Honour.

HEYDON J: “I refuse that leave”.

MR GAME: Sorry, that is the bit. That is as close as one gets to a ruling about this subject. Her Honour then at the bottom of 577 tells Mr Pullinger again that he cannot lead evidence on this subject because of her ruling about non-compliance with section 150. So the father’s evidence on the subject is cut out as well.

HEYDON J: When you say “cut out,” you mean not allowed to be given?

MR GAME: Not allowed to be given, yes.

HEYDON J: Earlier on you were talking about chopping out in a different sense of, in effect, withdrawing evidence that was before the jury and you told me you were about to take me to that.

MR GAME: Yes.

HEYDON J: I do not mind waiting, but I do want to see it.

MR GAME: No. I did say that. I have forgotten what the question was, your Honour. The retrospective refusal is there at page 475.

HEYDON J: Yes, but once evidence has been given, even if it turns out that it is later inadmissible, lots of questions arise as to what should be done. Should the jury be told to ignore it or can it be actually withdrawn from the record? Can it be struck from the record? What happened to it? Or should nothing be said at all about it because - - -

MR GAME: No directions were ever given to – this may lead your Honours up the wrong path, but I will explain it very quickly. At 431 at the bottom of the page there was a strike out of some evidence. That strike out relates to another aspect of this, which was - - -

HEYDON J: That is common.

MR GAME: That is another aspect of this which you need not concern yourselves with in this case. The closest one gets to any indication as to what actually happens to the evidence that has been given is the retrospective refusal at 475. That is to say nothing was ever said to the jury about what had happened to this evidence.

HEYDON J: The judge said to the jury, “You heard what he said about the cars. You heard about what his father and brother said about the cars.” She was right on the first proposition and wrong on the second, but she never actually withdrew or nullified or struck out the appellant’s evidence on the point.

MR GAME: No, your Honour, but the point is this, that counsel was no longer able to put that to the jury and counsel respected that direction. So both counsel never addressed the jury on the basis of “He may have been doing the cars on a Thursday” because the judge had given a direction to the parties at 475 which meant that from their perspective the evidence that had been given was inadmissible and there was to be no further evidence on the topic. When one comes to the addresses - - -

HAYNE J: Before we do, before we part from 576, 577, her Honour gave two reasons for the ruling, did she not, at the foot of page 577, relevance and the alibi notice point? See line 53:

one it’s not relevant to any issue –

Do you see that?

MR GAME: Yes, your Honour, but - - -

HAYNE J: Now, the relevance point is founded if it is a good foundation on what appears at 576, lines 49 and following to line 1 on 577, is it not? The counsel for the accused, the appellant, says in answer to her Honour’s question:

I will not be asking a question about this witness’s knowledge as to the whereabouts of the accused on 28 February.

MR GAME: That is because he has been told not to. That is because he has already been told not to at 475. He then advances another explanation for the examination, which is at 577, line 37. That is:

Because it shows an absolutely reasonable innocent explanation for the connection between the accused and the overalls in the garage at least . . .

HER HONOUR: That’s the weakest explanation Mr Pullinger that I think I’ve ever received -

Then she rejects it again based on relevance and section 150. That is to say, she is simply harking back to her old ruling. So whatever was in the mind of Mr Pullinger, it is clear that at this point the judge is making it plain again that evidence cannot be led in relation to this subject and counsel respected that. On page 576, line 18:

That evidence is before the jury through the accused. Your Honour ruled against me in granting leave to call any further evidence in the nature of alibi and I intend to comply with your Honour’s ruling . . .

CROWN PROSECUTOR: He still hasn’t demonstrated the relevance - - -

HAYNE J: Now, the footing for this branch of the argument is that in the Court of Appeal the Court should have, and in fact did, it may have held itself, that there was a wrong decision on a question of law.

MR GAME: Yes.

HAYNE J: The wrong decision on a question of law was a wrong decision about the application of section 150 of the Procedure Act, is it?

MR GAME: That is correct, your Honour.

HAYNE J: Where do I find most conveniently the text of 150 of the Procedure Act?

MR GAME: We have brought that. I will bring it after lunch, but section 150 requires that notice be given and I will provide your Honour with that after lunch.

KIRBY J: Just for your information, you did not annex, as I think the practice rules of the Court require, the statutory provision. You referred to the provisions of the Evidence Act in quite a number of them. Sometimes it is very convenient. Sometimes these things have to be read where you do not have the text and in the future if you would add the actual text it would be helpful. I think that is what is required by the Rules.

GUMMOW J: It is.

MR GAME: I am sorry, your Honour. Now, can I come to what – this ground was actually upheld in the Court of Criminal Appeal. It can be seen at page 873.

KIRBY J: Where do their Honours set out the text of the section or do they assume that everybody goes around with it in their head?

MR GAME: Yes, pretty much, your Honour. I am sorry. That is true. Paragraph 229 at 873:

During the argument the trial judge said that she did not think it was within her power to grant leave, unless the Crown consented to the granting of leave.

So the basis of this decision is an erroneous decision by the trial judge that she did not have power.

GUMMOW J: We get to paragraph 236, do we not?

MR GAME: Yes.

GUMMOW J: The trial judge miscarried.

MR GAME: That is correct.

GUMMOW J: But then what happened?

MR GAME: Then what happened is the proviso was applied to this in the way in which I took your Honour to at the beginning.

GUMMOW J: Whereabouts? Which paragraph?

MR GAME: The proviso paragraph is at - - -

GUMMOW J: It is pretty succinct, is it not, 284?

MR GAME: Page 885, paragraphs 287 and 288 is where the proviso is applied. We do submit that on this subject the effect of it was that the appellant did not get to put his case which was built around the probabilities concerning what he did on a Thursday afternoon. Not having got to put his case means he did not have a fair trial and whether or not one applies Weiss or cases such as Dietrich about the right to a fair trial or whether one applies fresh evidence cases such as Mickelberg and we would submit that we could not be worse off than a fresh evidence test which is, the test is, is there a significant possibility that the jury may have acquitted on this evidence. I take that from Mickelberg. “A significant possibility that the jury would have” are actually the words. It is “a significant possibility” and “would have”, but we would submit that we are not in a worse position, we could not be in a worse position, than the Court applies with respect to fresh evidence because the existence of this evidence was available and was disclosed by the defence.

HAYNE J: There are, again, several steps that I think need to be considered. One, the premise for the engagement of the proviso is in certain circumstances that there is a wrong decision on a question of law. The proviso commonly therefore has to be considered in circumstances where evidence has wrongly been excluded. In many cases, perhaps the fact of wrongful exclusion will mean that the proviso will not find engagement because one cannot decide what the evidence either would have been or what its effect would have been. But the key step in the reasoning in the Court of Appeal is that in 287, is it not?

MR GAME: Absolutely, your Honour.

HAYNE J: Is that not the point at which your attack must focus, namely, that this evidence, had it been received, could not have displaced the otherwise overwhelming case provided by the DNA not least because the premise for 287 is the evidence excluded was only evidence of practice, it was not evidence going to say “I know where he was on date X”. That is the argument. It is good, bad or indifferent, but that is where the argument against it has to focus.

MR GAME: No, I understand that, your Honour, but what I am saying is that – and I do not mean this in a derogatory way, but to say they could only give evidence of a general practice in a sense is an undercutting of the significance that the evidence may have had for the jury which is that if the inferences were built up and the father and the brother were accepted and if the evidence about the practice was sufficiently strong, such that some kind of explanation would be required for it to be the case that he was not there on a Thursday, that is - - -

KIRBY J: Your case really is the one Justice Heydon suggested to you earlier, that is to say, that this is within that class of case which Weiss and other cases in this Court have recognised, that even a dog is entitled to have a fair trial. In this case, by excluding the one element in his case which could be used for the purpose of helping to establish some sort of excuse, well, he did not get a fair chance to put in the minds of the jury against the very powerful evidence of the DNA the case of practice. It may not be overwhelming, it may not be ultimately convincing to the jury, but he was entitled to have his case put to them.

MR GAME: Yes, my point in this about Weiss is that this would be the kind of case where we would submit applying Weiss it would not be appropriate to speculate about what probability that evidence would have - - -

KIRBY J: That is hard, Mr Game, because of the fact that you have the DNA on the cap and you have to postulate the girlfriend who he had had a fight with had put the cap in his bedroom or somehow got his DNA onto the cap. That is really a very thin type of argument.

MR GAME: Sorry, the DNA is only on the cap.

KIRBY J: Yes.

MR GAME: The DNA on the cap.

KIRBY J: The cap was left at the scene of the crime and, as I understand it, his theory or his opposition to explain this curiosity was that he had had a girlfriend who he had a fight with and that she somehow got his DNA onto the cap, or I think there was some other possibility of transference.

MR GAME: Dr McDonald said that there could be transference onto the cap.

KIRBY J: From what?

MR GAME: From some other item. There was also a dispute about whether the cap was actually left at the scene of the crime, that is to say, whether it was left by the person who committed the robbery.

KIRBY J: We are into the DNA thing.

MR GAME: No, I understand, but the defence said, if you are going to draw these inferences, the tissue is part of the evidence in this case and the tissue was said to be left at the same time as the cap and the DNA, according to Dr McDonald, excluded the appellant.

GUMMOW J: Is that right about the tissue? You said excluded the appellant. That is putting it too high, is it not?

MR GAME: Dr McDonald’s evidence was to the effect that the DNA on the tissue you could exclude the appellant as a contributor to the DNA on the tissue. But my point about this is that in a situation such as this where the appellant has not got, as it were, to put his case the court, in my submission, should not engage in further speculation about what may or may not happen.

KIRBY J: Well, it is not engaging in speculation if you take the approach that Justice Hayne put to you for consideration, and that is that in this case the evidence did not rise very high. It did not rise to, “No, I have an employment record and I remember the day because I was going with him to see a doctor” and so on. It is just generalities, and therefore that is a rather weak ingredient to put into the scale, and particularly against the cap and the DNA.

MR GAME: But, your Honour, if the - - -

KIRBY J: Very weak.

MR GAME: Well, if the brother and the father said, as their affidavits suggested they would say, that the appellant usually did X, Y and Z, and that you could expect that if he was not there they would know about it, then it is a matter ultimately for the tribunal of fact to determine what weight they give to that account.

KIRBY J: Well, by inference the Court of Criminal Appeal has said just that. It should have gone in, it should have been there, the jury should have had it, but we are in the realm of the proviso. We are asking, given that it did not, has there been an actual miscarriage of justice in this case? Then you go into analysing the weight of the evidence excluded, and the weight of the evidence excluded is just a practice, and the weight of the evidence against him, which is the very powerful evidence of the DNA on the cap that happened to be left unfortunately at the scene of the crime.

MR GAME: Yes. Your Honour, at one level I am putting in argument that in what might be described as a no fair trial category of case you do not inquire further in relation to the nature of the evidence, and my fallback position is if you - - -

KIRBY J: That does not fit with Nudd. I mean, it does not fit with Nudd or Weiss, but you really – the appellate court has to perform its own function and look at the matter as a whole and consider it just as was said here in paragraph 288.

MR GAME: Your Honour, I accept that the court exercises original jurisdiction in that respect but it is a question of what the original jurisdiction is to do.

KIRBY J: Well, it is not really original. It is part of its appellate jurisdiction.

MR GAME: Well, it is described in Eastman as original jurisdiction.

KIRBY J: I just think that is a mistake. You have to see Weiss in the context of Fox v Percy and all those other cases that this is explaining the role of appellate courts. They have their own functions in our system.

MR GAME: I understand that, but I am, shall I say, attempting to say the category of cases where you say this appellant did not actually get to put the case which he wished to put, that is a miscarriage of justice regardless of what the Court could or might make of the record of the trial below. Could I just before leaving this subject direct your Honours’ attention to how the issue ended up in addresses, and there are only two very brief passages. In the Crown Prosecutor’s address all the prosecutor says is at the bottom of 599, line 52:

He tells you that he was not there on 28 February 2002.

Then in the defence address at page 628, line 14, all that defence counsel can say is:

You heard him say “I don’t remember”. I can’t tell you where I was on 28 February 2002 but I do know I was not at Strathfield”.

So he is respecting the trial judge’s direction that that evidence was not to be used, and that is why in effect - - -

HAYNE J: That is alibi evidence which was in breach of section 150 unless leave were granted. You told us at the very beginning that the Court of Criminal Appeal erred when it said the evidence the appellant gave in support of the alibi was not withdrawn from the jury. You said that was wrong; you said it was banished from consideration. In fact, we see here counsel for the appellant reminding the jury of that evidence.

MR GAME: But, your Honour, he is not saying anything about where- - -

HEYDON J: About practice. Is that your point?

MR GAME: He is not saying anything about what his practice was or where he was.

HEYDON J: That evidence is alibi evidence which was as much caught by section 150 as the practice evidence. It is not third party alibi evidence.

MR GAME: No. It really did not cross my mind that I was misleading you. I was intending to come to this in due course.

HEYDON J: It is all right.

MR GAME: My point about this is that all that defence counsel is saying is the most he thinks he can say is, “I don’t know where I was”. Obviously his assessment is that that is all he is left with because of the judge’s ruling. He is actually unable to put the substance of his case to the jury.

GUMMOW J: How much longer are you going to be on this point, Mr Game?

MR GAME: I have finished with this point, your Honour.

GUMMOW J: I hope so. This was 2.5(b) on page 892 of the grounds, was it?

MR GAME: Yes.

GUMMOW J: Where are you going now?

MR GAME: I am now going to go to the demonstration.

GUMMOW J: That is 2.2, is it?

MR GAME: Yes, your Honour.

GUMMOW J: We will sit until 1 o’clock.

MR GAME: Thank you, your Honour. Yes, the demonstration is ground 2.2. May I take your Honours to some evidence of the appellant at page 416. At page 416 he is asked to do various things, such as showing his stomach, showing what his build looks like. At page 418 he is asked to put the balaclava over his head.

KIRBY J: As Chief Justice Gleeson said in the special leave application, none of us look particularly beautiful in a balaclava; all of us look a little bit suspicious in a balaclava. It is certainly something that is very unusual. I have never heard of anything like this happening in a trial before.

MR GAME: This is a balaclava which, at this stage in the trial at least is not being said to be the balaclava that was used in the robbery. It is a balaclava taken from a spare bedroom at the house- - -

KIRBY J: Balaclavas are not a vast range of boutique product.

MR GAME: No, your Honour.

KIRBY J: Not that I know, anyway.

MR GAME: There has already been an exercise which relates to the witnesses commenting. There has already been an exercise in which witnesses have been shown this balaclava, which is the earlier ground, and then asked to comment on it. Their accounts have actually brought them, as it were, closer to that balaclava being like the balaclava that they saw. I will return to that. At page 418, the prosecutor is telling the appellant to put the balaclava on.

GUMMOW J: Wait a minute, was the balaclava an exhibit?

MR GAME: Yes, your Honour, the balaclava was an exhibit.

GUMMOW J: Was it identified as such in the transcript?

MR GAME: It is exhibit M and it is identified at the top of page 419. There is no need to go to this, but it was tendered at page 305 of the appeal book.

KIRBY J: This is the very balaclava, is it, or we do not know the very balaclava?

MR GAME: No, your Honour. What is put at this point of the case is that it is merely being done to show, as it were, some similarity between him with this balaclava on and the pictures that you can see - - -

GUMMOW J: What is the provenance of this balaclava?

MR GAME: It was taken from a spare room at the appellant’s father’s house where the appellant resided.

KIRBY J: I think his father said, did he, or is it only the caps that he had been given by the TAB.

MR GAME: Yes, the caps.

KIRBY J: The balaclavas had not been given?

MR GAME: No, no.

KIRBY J: There were a number of balaclavas, were there not?

MR GAME: There were hundreds of balaclavas, first in the garage and later moved - - -

KIRBY J: He going into the balaclava selling business, is he?

MR GAME: Yes.

KIRBY J: Hundreds of balaclavas.

MR GAME: Yes, your Honour.

KIRBY J: Since Sevastopol, how can there be hundreds of balaclavas?

CRENNAN J: Twenty five boxes, I think, Mr Game.

MR GAME: I do not know how many balaclavas you can put in a box but there were lots of balaclavas.

GUMMOW J: Fallen off a truck probably.

MR GAME: No, they were intended to have logos for the Olympics and they were not used was the explanation that was given. Can I say this; at pages 418 right through to the bottom of 421 the accused is sitting in the witness box with a balaclava over his head while an objection is being argued about the balaclava.

GUMMOW J: Where do we see it is actually put on?

MR GAME: He puts it on at 418.

KIRBY J: Did the Crown really defend this in the Court of Criminal Appeal?

MR GAME: They did, your Honour.

KIRBY J: Really. This is a very prejudicial course of conduct in the trial as far as I am concerned.

MR GAME: Can I say this also, that as these things unfold defence counsel has no notice what is coming next in this – he said some pretty strong things, like line 19, “It is totally improper”. May I say something else, your Honours, about the process.

KIRBY J: Where is that? Page 419, is it?

MR GAME: Page 418, line 19.

KIRBY J: At least we have a case where counsel has stood up. I mean, we have had so many cases where they do not take objections. “Totally improper” he says.

MR GAME: Your Honours, and he says “patently unfair” at the bottom of 419, line 50. Anybody, one can say, would look fairly sinister sitting in the witness box with a balaclava over their head.

KIRBY J: He is just left there whilst this debate is going on?

MR GAME: Yes.

KIRBY J: In the presence of the jury?

MR GAME: Yes. So he puts it on on page 418, line 40. My rough estimate would be, if you count pages and divide it by six hours, you would do about five minutes for a page, so he is sitting there for probably about 10 minutes while this exchange is going on. Can I just introduce one other fact to this, and there is no need to go to it, back on page 89 of the appeal book the appellant had sought what is called a Basha inquiry in relation to the comments of the witnesses on the objects and the judge either ignored that or can be taken to have rejected it.

KIRBY J: What is the name of that case?

MR GAME: It is called Basha and what that case is about is this. If a prosecutor does not make disclosure or if a witness turns up and it turns out that there is a real question, for example, whether or not an order should be made under section 38, the jury are sent away and the evidence is extracted in the absence of the jury. My point about that is he had already tried but failed earlier on to have these matters resolved, as it were, in the absence - - -

KIRBY J: What matters, given as you have one complaint, that no notice was given of this practice that was introduced.

MR GAME: That is correct.

KIRBY J: So he could not have been seeking to have a ruling in advance, the “no balaclava ruling,” given that he had no idea and, in my view, would have had no expectation that he was going to have - - -

MR GAME: It is not his fault, no, your Honour, but this is now happening. There is the creation of what might be described “real evidence” in the course of the defence case in highly prejudicial circumstances with the item which is not said to be the item that was used in the robbery in respect of which witnesses have already given speculative evidence about how similar or dissimilar it is to the item used in the offence. This, shall I say, parade is allowed to happen in the presence of the jury but then we go one step further. The prosecutor then when she addresses the jury for the first time ever says that actually this balaclava is the balaclava – she invites the jury to conclude this balaclava is the balaclava used in the offence, although she then limits that. I will come to that later. The judge never gives the jury any warning about this exercise.

HEYDON J: Was she asked to?

MR GAME: What she was asked to do, your Honour, was to give what was described as the “usual warnings.” Later on she was asked to give a specific direction in relation to what was described as the comparison exercise, which relates to the witnesses comparing the balaclava with their recollections. That was not objected to by the defence although the Court of Criminal Appeal erroneously thought that it was. The answer to your specific question if I am asked was a specific warning sought on the balaclava, the answer is no. But when one comes to look at it, no warning was given on the walk, the balaclava, the talk. The comparison is mentioned. So that the very things that are at the heart of this that might, shall I say, possibly conceivably save this exercise are not to be found there in the summing-up.

HEYDON J: But we need to know just by numbers, one, what did the defence say about it in address and, two, what did the judge say about it? You say nothing on these things, but, three, what was the judge asked to say? What were the usual warnings? Are they some sort of identification - - -

MR GAME: He does not explain that. He does not explain what the usual warnings - - -

HEYDON J: The defence counsel did not?

MR GAME: He does not explain that. The prosecutor - - -

KIRBY J: He did object in the strongest terms that if the judge has her own responsibilities then - - -

MR GAME: Yes, he did object in the strongest terms.

HEYDON J: We have to get another thing straight. One problem is what happened in front of the jury. A distinct problem is what happened in terms of direction. Another problem is do you say these things were irrelevant or do you say they are relevant but should have been excluded under 135 or 137 or for some other reason? We have to organise our thought by reference to categories.

MR GAME: What I will say is that if this could occur at all, shall I say, then section 53 would prescribe the procedure. So there is a question of “Can he be directed to do it?” Then the next step in the argument is if he can do it, then what are you seeking to establish by this exercise? At this point in the process, all the prosecutor said that she wanted to do with this exercise was make some comparison with what could be seen in the video and the photographs. Now, I would invite your Honours’ attention to the photographs because you really cannot see a thing on the photographs.

KIRBY J: What page?

MR GAME: The photographs, the Crown has provided those to your Honours and they are in a rather large paper bag. Those photographs really are most unsatisfactory for any exercise in comparison. Now, when I said - - -

KIRBY J: I may be wrong, but a balaclava is a balaclava and they may differ in colour and size and so on, but is there very much difference between one balaclava and another?

MR GAME: If that is the case, then what is the point of dressing up the accused in a balaclava? What the prosecutor is inviting the court - - -

KIRBY J: Presumably it was to try and show that he in a balaclava looked like the person in the photograph in the balaclava, which as Chief Justice Gleeson suggested on the special leave is like anyone in a balaclava, suspicious, especially sitting in a box in a criminal trial, a witness box.

MR GAME: That is correct. But, in my submission, it is hopeless to say that you can use this for the purposes of saying he looks like a person in some very indistinct photographs in a balaclava, but I am mindful - - -

KIRBY J: At the very least it showed a wont of judgment on the part of the prosecutor. I am surprised that the Crown defended it.

MR GAME: Can I just say, in answer to the question about what the comparison was between, coming back to one of the number of questions that your Honour Justice Heydon, as it were, raised for me to deal with, 424, line 43 – the photos are exhibits J and K, I believe, but 424, line 43 - - -

GUMMOW J: We do not have them at the moment. They can be looked at over lunchtime. Go on, Mr Game.

MR GAME: Page 424, line 42:

the jury might make a comparison with the evidence before them, in the form of the photographs and the security video –

So, my answer to your Honour Justice Heydon’s question is that that exercise could have hardly any probative value - - -

HEYDON J: Therefore was irrelevant.

MR GAME: Yes. If I am wrong about that, then the prejudice in the exercise - - -

HEYDON J: Exceeds whatever probative value there was.

MR GAME: Yes. Then the first question in time is can you make somebody do this? Our submission is only if you comply with section 53.

GUMMOW J: Does that complete your answer to Justice Heydon, the structure he put on it?

MR GAME: Yes, your Honour. Sorry, answers the question except for addresses, but I will come back to that.

GUMMOW J: Now, how are we going for time, Mr Game?

MR GAME: Your Honour, I would expect that I would be another 90 minutes, I would say.

GUMMOW J: We will adjourn until 2.15.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GUMMOW J: Yes, Mr Game.

MR GAME: I was taking the Court through the various things that the prosecutor had the appellant do and I was just about to come to page 423 of the appeal book.

KIRBY J: Surely there was nothing more or worse than putting him in the balaclava and leaving him sitting in the witness box? Surely there are no more horrors?

MR GAME: There are, your Honour.

KIRBY J: Has there ever been such a case?

MR GAME: Not that we can find. Your Honour, page 423 – perhaps I should have started with this ground.

GUMMOW J: We have to get to the sunglasses, yet, have we not?

MR GAME: With sunglasses at page 423.

KIRBY J: These were the prosecutor’s own ski sunglasses.

MR GAME: Bollé ski glasses.

HEYDON J: You say there has never been a case. You mean in Australia?

MR GAME: There has never been a case in Australia but the American cases have some statutory provisions which enable similar exercises to be done, but they require them to be done in the Crown case A and B.

KIRBY J: Not the Crown case in America, alas not since 1776.

MR GAME: The people’s case, but they do require stringent standards as to correspondence and substantial similarity and they do have sufficient significant safeguards in relation to safety and prejudice. An exercise like this would not occur in a trial in the United States and O.J. Simpson, we actually have the transcript of that where one can see what happened when the glove exercise was conducted.

KIRBY J: I do not think that is a great example that we should be following.

MR GAME: No, your Honour. At 427 – the sunglasses go on, but then at 429 - - -

KIRBY J: These were, if I am not mistaken, the sunglasses of the prosecutor personally. Is that correct?

MR GAME: They were the sunglasses of the prosecutor personally, yes. He has also asked to put the balaclava on at the same time. Now, then we have objection at – sorry. This then occurs at 427. They are put on with the balaclava. He is asked to - - -

KIRBY J: The photographs do not, as I understand, reveal that the offender had both a balaclava and sunglasses. Is that correct, or not?

MR GAME: The offender had sunglasses and a balaclava, yes, your Honour, but you will not see the offender looking side on in those photos or video. You cannot see sunglasses in the photos, is the answer - - -

GUMMOW J: We do not have these photos yet. I thought that was going to be attended to over lunchtime.

MR GAME: The Crown provided them to the Registry. I am sorry, your Honour. I had assumed that that had occurred.

GUMMOW J: Go on, Mr Game.

MR GAME: Should I continue?

GUMMOW J: Yes.

MR GAME: Then the previous pages we had seen objections based on relevance and prejudice and relevance and prejudice were both ventilated before the trial judge and the Court of Criminal Appeal. We will see shortly that the Court of Criminal Appeal really did not address the question of relevance or adequately address it, in our submission. Now, at page 429 - - -

GUMMOW J: We can trudge through this transcript spending a lot of time doing it, Mr Game, but some time we have got to get this in law.

MR GAME: Yes, I know, your Honour. I am sorry. I will finish this shortly, but I have to just take you to these passages. At 429, “give me the serious cash”, he is told to say that. Now, the purpose of this is to get him to say something that corresponds in some way with a witness by the name of Mrs Connell. That is objected to. He is told to say it. He says it on 429.

KIRBY J: This was because there was some evidence that the offender said “sherious,” or?

MR GAME: One witness called Mrs Gleeson, sorry, said that he said something that could sound like “sherious.” So he says that. He is given the direction to do that. He says that. She said:

it almost came over as, “sherious” –

Various arguments take place and then at 451 he is asked to put on the cap. He then says at line 20 he does not think it will fit. Then the judge says she will not require him to do that, although this is probably the one thing which conceivably he could have been asked about. Now, 455, he is told to put on the overalls. Now, again, nobody is saying at this point that these overalls are the overalls that were worn. He offers to put them on over his clothes and the Crown wants him to take his clothes off, 456. He is then brought back up and then at 458 she has him walk up and down.

The prosecutor has, shall I say, an agenda there, because she wants to make a submission about the walk although this was not disclosed until the address some time later when she said that he walked with a bit of a swagger, which is what one witness had said.

I apologise for taking time over this, but I will have to take your Honours briefly to what the prosecutor said in her address about these subjects, because this is now the use to which this evidence is put. At 591, lines 20 to 30, we see the prosecutor is putting to the jury that the appellant spoke, we see at line 21, with a “very dull” voice when he spoke. You see he speaks of “very dull” at line 29. So now the prosecutor is drawing together what is, in effect, oral identification. It satisfies identification evidence except a witness is not giving it, but, in effect, the prosecutor is inviting the jury to draw an inference from the voice.

Now, your Honours, it is just one witness who talks about “very dull.” There are a series of different descriptions, so you could not make anything of this exercise if you applied proper probative value and is there sufficient probative value for it to be admissible. If so, is the probative value outweighed by the prejudice - - -

HAYNE J: This brings me to the point, Mr Game, what is the proposition or rubric of law under which you are bringing all of this? We have trudged through the transcript which we had read at some detail in the court below. Can we get to a proposition of law?

MR GAME: Yes, your Honour. My proposition of law that I am coming to – perhaps if I could just tell you very briefly what the other things I say about the address, which is the prosecutor then makes a submission that you can conclude that he walked with a bit of a swagger. Therefore, it is the person. She made a submission that ultimately the balaclava was the balaclava, that the overalls were the overalls, and she brought it all together at page 608 into her final submission.

The final submission she made at 608 was she brings it together and you see at line 10, “the voice,” “the walk,” “the complexion.” She is bringing together every aspect of this exercise so that the exercises that were conducted are actually conducted for the purposes of attempting to demonstrate that he is the person, that the balaclava that was shown is the balaclava, that the overalls are the overalls. That is where it ends up.

The question of directions arises and what directions might be given. I will pause there and take your Honours to what we submit is the appropriate statutory context within which this would take place, if at all. We submit that section 53 of the Evidence Act is the relevant statutory provision. Part 2 of the Act is concerned with adducing evidence. Part 2.1 is concerned with testimonial evidence, Part 2.2 with documentary evidence, Part 2.3 with “Other evidence.” This is in Part 2.3, “Other evidence”.

The provision is to the effect that one has to seek leave and if there is a demonstration in experiment or inspection – and we submit that this falls satisfactorily within that language, namely a demonstration or experiment in respect of putting on the balaclava, speaking the words, walking, inspection of the stomach, perhaps.

In our submission, it would not be correct to say that subsection (2) makes it clear that it will happen, as it were, that the view is to only happen outside of the Court. Subsection (2) is really there to address a problem that arises from a case called Kozul, which I shall take your Honours to shortly, where a jury examined - - -

GUMMOW J: That is the case about the pistol, is it not?

MR GAME: Yes, your Honour. Now, that is a case where a jury was invited to test a gun. I may as well take your Honours to it now. It is significant because Kozul is actually referred to in the Law Reform Commission. It is at 147 CLR. The effect of this decision is that – we see at page 227 in Chief Justice Gibbs’ judgment, at point 7 after referring to Hodge v Williams, his Honour said:

When the experiments conducted by the jury go beyond a mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible.

The judgment, actually, of Justice Stephen is dissenting on this aspect, but I wanted to take your Honours to Justice Wilson’s judgment and I appreciate that it is a dissenting judgment but without reading them at pages 242 and 243, the kind of problems that we submit have occurred in this case are exposed by his Honour. He is not dissenting on this actual point, but you see at the bottom under the reference to Alexander:

In my opinion, these principles afford appropriate guidance in the use of demonstrations or experiments.

That is procedures which require the strictest care in determining what is being compared with what and how it is conducted.

KIRBY J: What is the reason of principle why that is so? Is it because courts normally act on evidence of things that have happened in the course of legally relevant facts and not on experiments that are conducted, because surely there are cases where expert evidence is brought that involve experiments?

MR GAME: Yes. It depends entirely on what you are using and how you are using it. It depends on the links that you make between the inferences that you are seeking to draw. In this case, we see, as it were, all the inferences that are sought to be drawn are drawn by the prosecutor in her final address. We submit that either at common law, Kozul, or under the statutory provision, safeguards must be put in place.

One reason I have referred to Kozul is this. If one goes to the Law Reform Commission discussion of this issue, and goes to the Law Reform Report 26, one sees that on page 567, there is at the bottom of the page, paragraph 1031, a discussion of Kozul. Now, the point which emerges is this, that the intention of the Law Reform Commission is that the court controls all experiments, views, demonstrations, but it makes them evidence under section 54, so we have in effect those two steps, or those two protections which the Law Reform Commission sees as central, and we see that, in our submission, reflected in section 53.

GUMMOW J: Section 53(2) is badly drawn, is it not?

MR GAME: Yes, but it is - - -

GUMMOW J: There are many patent infringement cases where the experiment is conducted without the judge being present.

MR GAME: I understand that, your Honour, but the - - -

GUMMOW J: It seems to mandate it.

MR GAME: Well, it will be given a reasonable opportunity, the parties a reasonable opportunity to be present so you could qualify that. But my point about subsection (2) is - - -

GUMMOW J: No, you want the parties present? You do not want the judge spending hours in some laboratory. Anyhow - - -

MR GAME: But my point is that subsection (2) does not point away from the proposition that section 53 applies whether the experiment, demonstration or inspection is conducted in court or out of court. I would add to that, subsections (4) and (5) both contemplate that an experiment, demonstration or inspection may be conducted in court.

One matter about statutory interpretation is this, that in the Court of Criminal Appeal it was said that the Court could have regard to the heading, “Views,” and I am not sure that that is correct having regard to sections 34 and 35 of the Interpretation Act. But your Honours should be aware of – may already be aware of section 3 of the Evidence Act which makes the Law Reform Commission reports admissible material to have regard to at subsection (3), but subject to section 34 of the Interpretation Act. So you can either use the material to clarify the clear meaning, or in the event of ambiguity, and it does - - -

HAYNE J: What is the proposition for which you are contending, Mr Game?

MR GAME: The proposition I am contending for is a simple one, which is that section 53 applied to this exercise, and section 53 was not complied with.

GUMMOW J: That is obvious, is it not?

MR GAME: Yes.

GUMMOW J: The second point is obvious if the first point is made.

MR GAME: Yes, your Honour, and that being the case - - -

GUMMOW J: Now, what are the reasons in the Court of Criminal Appeal for saying 53 did not apply, apart from fixing upon the chapeau word “use” and quoting Mr Odgers’ book?

MR GAME: What the Court of Criminal Appeal says – the main part is to be found at – it follows from 858 and following. The Court concludes at 189 at page 863 that section 53 does not apply to demonstrations, experiments or inspections - - -

HEYDON J: In the courtroom.

MR GAME: - - - if they are conducted in court.

GUMMOW J: What then does the law provide – nothing?

HEYDON J: The common law, whatever it is.

MR GAME: We say that the law – if section 53 does not- - -

GUMMOW J: Does the Evidence Act leave room for the common law to fill that gap?

MR GAME: Not in our submission, your Honour. In our submission, the common – this is section 53 – I am sorry; there is a section that I should mention to you – section 52, which still applies. I misunderstood that question. Section 52 needs to be appreciated. It does not affect the operation of any Australian law or rule of practice. So far as it permits evidence to be adduced – in our submission this is clearly an exercise that falls within the purview of section 53.

GUMMOW J: Section 53 is permissive; it confers some power. It does not stay a negative.

MR GAME: We would submit that section 53- - -

GUMMOW J: Without getting you back to 52.

MR GAME: Your Honour, we would submit that section 53 provides the entire context in which things called demonstrations, experiments or inspections should occur.

KIRBY J: I suppose you can say that it posits first of all an application; secondly, the application goes to a judge who is a repository of judicial power; and, thirdly, the judge is under instruction not to make an order in subsection (2). So there are some checks there.

MR GAME: Yes, your Honour. The third word in section 53(1) is permissive, but it requires, as it were – what it is saying is that you need permission, in our submission, before you can do this and you need permission from the judge. So 192 would also apply to section 53. Then subsection (3) is mandatory. There are certain things you may take into account; the following you must take into account.

Our submission about (a), (b), (c), (d) and (e) – and that is, as it were, a structured set of criteria for the exercise of a discretion – but, regardless of section 53, those are the very subjects that you would need to address yourself to if you fell back on the common law. Our submission is if you fall out of section 53, you fall back on the protections which one finds in cases such as Bulejcik in this Court.

Our submission is that in Part 2.3, the relevant provision upon which any demonstration, experiment or inspection is to be conducted is section 53. If you do not do it in compliance – as it were, there is not the power to require an accused person to do that absent this provision but, if there is, we say you must follow the procedures which the common law has established and those procedures are to be found in – we saw some references to them in Kozul and also in Bulejcik. I will take your Honours briefly to Bulejcik on this subject.

GUMMOW J: What section in the Act would keep the common law in play in a situation where 52 could but had not been complied with, what section of the Evidence Act other than 52?

MR GAME: It is possible that section 11 might have some relevance.

HEYDON J: Possibly section 9(1).

HAYNE J: Is not the debate at risk of sliding away from the exposure of a necessary premise? You only get to 52 and 53 on the assumption that that which is being asked of the witness – in this case the accused man – is relevant evidence. It has to be relevant.

MR GAME: Yes, your Honour, absolutely.

HAYNE J: I well understand an argument that would say getting him to put on something that was not found at the scene of the crime, to do things that will not bear upon resolution of any issue is not relevant. But if once you have decided that the demonstration hypothesised is relevant, then the engagement of the paragraphs of 53(3) is very much harder, I would have thought, and that the true filter for much of this lies back at the point of relevance, not this application of 53. Smith was the - - -

MR GAME: Yes, I understand. That is the policeman. The policeman saying he looked like such and such, yes.

HAYNE J: Yes, “I can tell you that is Smith because I know what Smith looks like”.

MR GAME: Yes. Your Honour, we say and we have said as forthrightly as we can that none of these exercises were relevant because no, shall I say, adequate foundation existed in the evidence for this exercise to be conducted. I say that in a summary way, but I have attempted to give the structure of what the piece of evidence is and how it is said to relate through to the ultimate inferences that are sought to be drawn. We say that this exercise simply was not relevant to what occurred. It had no probative value.

HAYNE J: It made me startle a little that you then dwelt so long upon the way in which the prosecutor, as you put it, drew the threads together and put it all to the jury, demonstrate the use she did make of it.

MR GAME: Yes, but my point was that if you go that way, then the prejudice is unlimited. You have a piece of evidence that has miniscule relevance, now you are turning it into the whole of your case. That is why I went to that exercise to say what she did.

HEYDON J: Mr Game, to mispronounce a word is a pointer towards a resemblance. To pronounce it correctly, as it were, excludes the accused from the possibility of being the man. The question about to use the word “serious”, surely that is a relevant question.

MR GAME: Your Honour, I would not concede that, but there is only one witness that says sounded as if it might be - - -

HEYDON J: But the jury can make up a mosaic in any way that it regards as rationally compelling. It could believe Mrs Gleeson and then, if the accused mispronounces the word, it is not particularly good for the accused. In other words, it is relevant.

MR GAME: Your Honour, what happened in this case was the prosecutor threw that idea away and then went to the jury with the proposition that he had a dull voice. That demonstrates the unfairness of the exercise.

HEYDON J: The question is admissible even though one of the answers to it might reveal that it was irrelevant if another possible answer was relevant, correct?

MR GAME: Your Honour, even if one conceded that the question was admissible, that does not mean that you can – I appreciate I am stepping along the way into slightly different territory, but that does not mean the prosecutor can say to the jury, “Well, it’s similar because he’s got a dull voice and Mrs Gleeson said he’s got a dull voice”. That is not a proposition that has any foundation in logic. It might be quite attractive to a jury and, as I have said before, this is the very subject upon which no warnings or directions were given.

KIRBY J: What are the kind of warnings that you say should have been given?

MR GAME: The kind of warnings that should be given are the warnings, if the evidence goes in, of the kind that is spoken of in Bulejcik 185 CLR. In Bulejcik, at 397, we see the idea that there must be a reference to what the trial judge said “of sufficient quality and quantity” and, in answer to your Honour Justice Heydon, we would submit that it had not been established that there was sufficient quality and quantity for this comparison to take place. We see the same idea expressed on page 395. So you have to look at what your - - -

HEYDON J: We are talking about rather a different type of problem, are we not? The material there is tape recordings that can be considered in the absence of the jury. In the present instance it was not possible for the judge or anyone else perhaps to form a view as to what the evidence was going to be. There was no request for a voir dire.

MR GAME: There were copious objections taken to the exercise.

HEYDON J: By the way, those objections did not mention section 53, did they?

MR GAME: No, they did not, your Honour. The passage about warnings is at page 398. The Court is referring to the decision in Domican and then it said:

Where the jury is itself asked to make a comparison of voices in a situation such as this one, very careful directions are called for.

Those are the directions of the kind outlined in Domican.

HEYDON J: This is identification evidence.

MR GAME: I know, your Honour.

HEYDON J: But your appeal is not, strictly speaking, about identification evidence.

MR GAME: It is evidence that is used for the purposes of supporting an inference that the accused is the person who committed the crime because of correspondence between walk, talk, how he looked with the clothes on, the balaclava, how he looked in the overalls, all of those things.

KIRBY J: Was it suggested that he use the word “sherious” or - - -

MR GAME: It was suggested – no, no, he was asked to say “serious”. There is another aspect of this which is – I wanted to just draw out - which is this, that we submit that when you look at this exercise in toto and the way it was conducted, it in itself created a very high level of prejudice. It was a humiliating, in effect, exercise with respect to the accused, particularly the example I gave of him being required to sit in the witness box with the balaclava over his head.

Now, in our submission, that is an exercise for that reason alone which should not have been allowed to occur. We would, as it were, bring that into the material that arises when a question of the application of the proviso applies, but I want to add another layer to that, which is this.

KIRBY J: There was a jury question too, was there not?

MR GAME: There was a jury question, yes, they asked for these words to be spoken. They asked to hear the phonetic tape of what he said, and I will come to that shortly. But the further submission I want to make is this, that in a sense one is in what I would put as the unfair trial category, which in my submission is close to the kind of area discussed by this Court in Webb and Hay, which is the flowers case where the jury sent an accused person flowers. That is to say, does it create such an air of unfairness that that in itself justifies the setting aside of the verdict? That is to say, does one engage further with the proviso once one has this level of unfairness in the process? So those are the basic propositions we wish to put about the exercise that was conducted. Now, I wanted to take your Honours finally to how the matter was dealt with in directions.

KIRBY J: Are there any directions of the Director of Public Prosecutions to prosecutors that are relevant here?

MR GAME: One of them is just - - -

KIRBY J: Maybe you have not had time to look at that.

MR GAME: Well, one of them is disclosure, and we would submit that if this is to occur it should occur in the prosecution case and the defence should be put on notice as to what is to occur because the defence had no notice of any of this until it actually happened in front of the jury.

HAYNE J: How can it do it in the prosecution case? How can the prosecutor have the accused man do that before the accused man has announced the course he will take?

MR GAME: No, but, your Honour, if things are to occur such as how he looks in a balaclava, which is what was put, how he looks, one could easily shall I say get another person of his height and shape and put a balaclava on their head. One could actually lead evidence in the Crown case of some of these things, but the fact that it occurs in the defence case, in my submission, that only makes the situation worse, not better.

Just before leaving the warnings, the warnings are warnings which must draw out the frailty of the process. So if one talks, for example, about the balaclava, it has to be drawn out – sorry, and the witness’ comments on the balaclava – it has to be drawn out what it is that they are comparing with what, that when they made comments in the witness box about those items those witnesses had no other item to compare with, that in effect there is a temptation to bring things closer to an original description, that when the balaclava was put on the accused that was a process that had its own inherent prejudice, that what was being compared there was with video and photographs that were very poor and that you could not draw inferences – it would be very unsafe to draw inferences about that, and it would be very unsafe to draw the ultimate inference which the Crown sought to bring which was that all of them connected in the way which he said. One would have to give those directions about each of these items, the balaclava, the voice, the overalls and the walk.

If your Honours go to the matters relating to the directions given, we see at page 641 an exchange in relation to what warnings should be given. Defence counsel at line 28 says:

Your Honour would give the usual warnings about the dangers. I would be asking your Honour to give those.

Then at 643 her Honour at line 12 said it is inappropriate to give all the usual directions. Then at 646 the Crown opposes at line 10 the warning under section 165. The judge rejects the application and again, we submit, there are no reasons as occurs with all of these rulings. In the summing-up at page 680 we see a brief reference to the Crown relying on access to the balaclava and overalls and at 681 the Crown relying on comparison with what can be seen in the security video and photographs.

The directions then appear at 704 and following and all the jury are warned about in substance is the bottom of 707 which is time and circumstances. At 706, line 28 they are told that this is material upon which the jury could safely act. What the warnings cover appears at 704. It does not specifically cover the walking, the talking or the dressing up and it does not cover the earlier comparison by the witnesses of the balaclava and overalls by the witnesses.

KIRBY J: There must be many cases involving, say, sexual assaults where the complainant describes the accused as having a particular bodily feature, a wart or stain or tattoo or that the accused was circumcised or not circumcised and that must be the subject of cross-examination, one would think, if the accused goes into evidence.

MR GAME: Yes, but this is different because in that situation you are positing that the accused is the person who has been identified as the person who committed the offence, whereas the exercise in this case is about finding out or establishing that the accused is that person. So it is a different process.

KIRBY J: Relevant to that process would be, if the accused had the wart, the circumcision, the stain or a tattoo.

MR GAME: Yes, that is true, but you would have to look at what it was that it was said to be relevant to in the particular instance. You would have to very carefully tie down that question. I have been trying to identify what that is and that is why I have gone in some detail as to what occurred. Your Honours, at page 717 - - -

KIRBY J: In your submission, could the prosecutor say, “Roll up your sleeve and show whether you’ve got a tattoo or not”?

MR GAME: In my submission, section 53 would govern it and I cannot see what the unfairness would be in the exercise, but it would be governed by section 53.

KIRBY J: You would have to make the application, the application goes to a judge who is a repository of fairness and then the judge has to give any warnings that are relevant.

MR GAME: Yes, your Honour. Your Honour, at the end of the summing-up the Crown Prosecutor sought a direction at 714 making the warning relevant to what the witnesses said about exhibits at the end of the day. We see that at line 14. Contrary to the Court of Criminal Appeal, this request was not opposed by defence counsel and the judge said that she would give it, but she did not.

Then we go to the jury question at 717. They are very interested in how the accused sounded. At 717, line 30 and following, they are told that they cannot have that. Then at 727 the evidence is read out to them again, 728 and 729, and shortly after they convicted - - -

KIRBY J: They could not have it because there was no such recording.

MR GAME: That is correct. One of the points we do make about this whole exercise is this, and it shows the very unsatisfactory nature of what occurred, is that there is no record that a court on appeal can actually look at to see if what the prosecutor said was correct, that he walked with a bit of a swagger, or that he had a dull voice, or any of those things.

HEYDON J: That would be true even if section 53 had been complied with.

MR GAME: It may not be, your Honour. There may be a way of recording it so that it can actually be accurately recounted. For example, if he is asked to say something, one could simply ensure that there is a tape there on that particular time of it. That would be one of the safeguards, we would submit, that section 53 would provide.

KIRBY J: I suppose you could say that section 53 would direct the attention of the judge at trial to those issues at the time when they were all fresh in mind and relevant and could be described and put on the transcript for the purpose of appellate review.

MR GAME: Yes. But, may I say that ultimately what the prosecutor did invite in this case was voice comparison, and even if section 53 does apply, the protections that this Court spoke about in Bulejcik in relation to voice comparison, do apply. Those are our submissions on that matter.

The only other two matters that are left unsaid are these: one, the comparison that the witnesses conducted between exhibits M and O and their recollections of them. I mention that because that is the first ground and the point about it is that, as it were, that exercise itself, in our submission, lacked probative value because it was comparing items that were not the items that were said to be the items used in the offence.

This was another aspect in which the judge gave no reasons but what she did indicated that she did not understand the application. It indicates that because she thought that it meant throwing out all of the evidence. We can see that. I will not take your Honours to it, but it is at pages 285 and 287.

KIRBY J: You are scraping the bottom of the barrel now, are you not? That is really simply a feature of the problem of the demonstration.

MR GAME: Yes, your Honour. The only other matter is the question of the ground we have in relation to reasons and I will not add to that beyond the written submissions. No reasons were given for any of these rulings and they did involve determination of discretionary issues of fact and exercise of a power and/or a discretion to admit evidence and to allow a procedure to occur. One would not know what the trial judge’s reasons were for these rulings and rulings were asked repeatedly on these matters.

GUMMOW J: Do you want to add anything orally, Mr Game, to what is said in your written submissions as to the error as you see it in the application of the proviso by the Court of Criminal Appeal?

MR GAME: No, your Honour, not beyond what I have said now about the question of a fair trial.

GUMMOW J: In the light of Weiss?

MR GAME: Your Honour, we would submit that Weiss does not, as it were, sideline Stone v The Queen, which we refer to. It does not sideline Wilde v The Queen. It does not sideline the fresh evidence cases such Mickelberg, nor the bias type of cases, Webb and Hay, where one does not proceed beyond that point. Nor does Weiss purport to actually do that, because it says that there is no universal rule as to how one approaches this question.

What we accept about Weiss is that – I appreciate your Honour Justice Kirby reacted adversely to what I said before about this, but we do accept that it is an exercise of what has been described as original jurisdiction in which the Court determines for itself if there has been a substantial miscarriage of justice and bearing in mind particularly the reliance in Weiss in paragraph 23 on what are the section 12 powers, which are to have further evidence before the Court on the question of, amongst other things, on the exercise of the proviso. That is how we would see this case. In respect of the - - -

KIRBY J: Have you said everything now or will you say anything about Libke? I know you mention it, but there was, shall we say, a slight difference of opinion about Weiss in Libke.

MR GAME: Yes, your Honour.

KIRBY J: Where do we stand after Libke? Maybe you do not have the time now, but if you want to add anything to what you have said in the light of Libke as to where that leads Weiss, you can put a note in - - -

MR GAME: I said Stone before. I actually meant Stokes which is the case that is referred to in Libke. In our submission, I appreciate that there were different - - -

GUMMOW J: What is the citation?

MR GAME: The citation. It is only in the Australian Law Reports. It is at [2007] HCA 30; (2007) 235 ALR 517. In the dissenting judgments of your Honours Justices Kirby and Callinan, there is a discussion of this question at paragraphs [42] and following.

KIRBY J: I do not think this is a thing to be done, as it were, on the run. I think this requires analysis and if you have not done it, then I think we should get a note on it rather than you trying to – we know that there was a difference. We know. The case is fresh in mind. But it just requires analysis as to what the resulting state of authority is.

MR GAME: We would be more than happy to provide a further note addressed to that issue. What I was going to say is this, that what appears at paragraphs [42] and following – and I am mindful also of the remarks your Honour Justice Hayne made in this decision, but we submit that paragraphs [42] and following are not controversial, that, as it were, Weiss has not sought to displace what is said in cases such as Stokes, Mraz v The Queen and the like.

If I could put that another way, the emphasis on the Court determining for itself whether or not the prosecution has established whether or not there has been a substantial miscarriage of justice does not exclude in any way a consideration in the instant case of the significance of an error in the particular case, A and B. It does not seek to displace those cases which preserve for the non-application of the proviso, cases where, what I have called, there has been an unfair trial. So it becomes a question of degree as to when you apply one principle and another principle comes into play. It depends on the circumstances of any individual case. We do not see Weiss as, as it were, denying that proposition.

GUMMOW J: Anyhow, you have liberty within 14 days to put in any written submissions you wish to put on the subject of Weiss [2005] HCA 81; (2005) 224 CLR 300 and Libke [2007] HCA 30; (2007) 235 ALR 517.

MR GAME: Yes, thank you, your Honour. May I just clarify that? We will in that note refer to, obviously, other decisions of the Court that have dealt with the question. May I just answer one - - -

KIRBY J: There has been some discussion of Weiss in the Court of Appeal in Victoria too, I think.

MR GAME: Yes, your Honour. May I just answer one factual thing? The evidence for the accused was that the DNA on the tissue did exclude the appellant and that is to be found at appeal book page 539, line 30. That is all I wanted to say.

GUMMOW J: Thank you, Mr Game. Yes, Mr Frearson.

MR FREARSON: Thank you, your Honour. I will endeavour not to repeat too much of what is in the written submissions, but if I can preface my remarks on the grounds by saying this at the outset, that the parties here are poles apart in terms of what type of case the Crown case was. Now, my friend mentions Domican and Bulejcik, and that is because they are cases that effectively deal with identification. Now, this case from start to finish was a circumstantial evidence case, nothing more and nothing less. The robber was almost completely covered up. Nobody could ever identify him. There was a pivotal circumstance - - -

KIRBY J: That made putting the accused in a balaclava in the witness box pretty unfair.

MR FREARSON: I will get to that, your Honour. I realise your Honour is concerned about that. There was a pivotal circumstance, one that was identified as an intermediate fact. That was one that had to be proved, obviously, beyond reasonable doubt and her Honour identified that as the fact that the robber, who was associated with the cap, dropped the cap at the scene, the cap with the DNA.

Now, what the Crown Prosecutor did throughout her address – and this was echoed in the summing-up ultimately by the trial judge – was put matters of consistency and the Crown Prosecutor consistently used the word “consistency” in relation to all sorts of matters. I will not go into them now but from appeal book 591 to 598, she went through all the descriptions, matters of consistency, talking about things such as age, height, build, the way the person spoke, the way the person walked, all matters of consistency. Now, that was the Crown case.

I mentioned the pivotal circumstance and the intermediate fact was the cap. That is right. Then you had this coincidence, if I can put it this way, that at the home of the appellant just happened to be a balaclava consistent within the descriptions of those proffered by the witnesses and a pair of overalls said to be acquired by the appellant some four years ago, said to have been worn by him particularly on Thursdays, and they happened to be a pair of overalls, when he had them on they were very loose fitting, consistent with the descriptions of the witnesses in relation to the robber.

So the point is, you had three pieces of evidence that were already there: the balaclava, the overalls, and it so happened that the appellant’s father had access to the particular type of TAB promotional cap. That was the third matter. Now, those were items, leaving the - - -

KIRBY J: That is fair enough, though there are dangers in that, because I have a balaclava at home, which I sometimes wear in Canberra. It is very cold down here. You may not have noticed, but people do have balaclavas innocently. People do have large overalls, so that that of itself is not sufficient to put the finger on the accused.

MR FREARSON: No, of course it is not.

KIRBY J: I must say, it is a very disturbing thing to think that you can then put the accused in the witness box, when he is standing for his trial and has given evidence, into the balaclava before the jury. It really assigns to him an appearance of guilt.

MR FREARSON: Yes, I have not got to that point - - -

KIRBY J: I have never heard of it happening, ever.

MR FREARSON: Your Honour, I am still on the circumstantial evidence point and talking about the pivotal circumstance of DNA, plus the combination - - -

KIRBY J: Now, there you are on very strong grounds, but why the prosecutor felt that she had to do this, which apart from anything else is rather humiliating to the accused, make him go downstairs and get out of his clothes and get into the overalls. I mean, I have never heard of it happening. Why did it have to be done? They had the DNA.

MR FREARSON: Your Honour, I do intend to get to that point. I am on the circumstantial evidence theme at the moment and in relation to those volumes that I have mentioned, they were items which may have been utilised - that was the way the Crown put the case – in the robbery, and he just happened to have those items available to him. Now, someone was talking before about whether this has ever been done. I think in Kirby, the case mentioned by the Court of Criminal Appeal that involved putting on a hat - I appreciate that is not the same as a balaclava, but I will get to that point in a minute about what is required to be done in these circumstances.

It is true that at the beginning of the trial everybody seemed to understand what was being put in relation to these other items, the overalls and the balaclava, and it was indicated quite clearly, apart from the fact that there was some initial objection to the search video, that there would be no objection to the actual objects, and that was at the supplementary appeal book page 7 and page 4.

Now, the summing-up of the trial judge essentially reflected the way in which the Crown put the case as a circumstantial evidence case, in particular appeal book 675 to 678. I will not repeat what I have said about those items. I will get to your Honour Justice Kirby’s point about trying on the various exhibits. I am doing these matters out of order now. That is ground 2.

The first question to be considered is what happens when a witness goes into the witness box voluntarily, a party to the proceedings, and gives up his right against self-incrimination, what happens - - -

KIRBY J: Give up his human dignity and the presumption of innocence and the proper order of Crown questioning. I mean, really, we are seeing a real deterioration in the traditions of the Crown, as far as I am concerned, and sitting where I sit, I do not like it, and I am going to keep on saying I do not like it.

MR FREARSON: Yes, your Honour. I was actually endeavouring to deal with a theoretical part of it at this point, the section 53 point. I understand your Honour is upset about what actually happened here.

KIRBY J: I have been sitting in these appeals for 23 or 24 years and it is noticeable. It is not only in New South Wales, other States. It is a breakdown in a very noble and proper tradition on which our administration of criminal justice works and somebody should say “Halt”. I tried to in Libke.

MR FREARSON: Thank you, your Honour. Now, can I just go to the legal aspect of this and then I will try to deal with the other part later. A jury, in my submission, is entitled to have regard to the events that take place in the regular course of a trial. Now, that would be the way they talk, their demeanour, the way they look, the way they walk to the witness box, their manner of expression, because there, as Chief Justice Brennan said in Bulejcik at 380, that is the exact expression he used, a jury is entitled to have regard to the “events that occur in the presence of a jury in the regular course of a trial”. Now, what the jury observe, those things speak for themselves. It is a direct self-perception requiring no conscious inference.

My friend talks about section 53. When one looks at the Evidence Act, Chapter 2 of the Evidence Act deals with adducing evidence, and 2.1 deals with adducing evidence from witnesses, 2.2 deals with documents and 2.3, which contains 53, deals with other evidence. My basic submission is this, that what we are talking about here is 2.1, evidence as adduced through witnesses. You go from there to section 26 of the Evidence Act, which governs what the judge can control in relation to the questioning of witnesses in relation to things. The procedure in relation to things and witnesses must be “just”.

KIRBY J: What is suggested is that there is a difference in kind between adducing testamentary evidence and adducing new, real evidence into the trial.

MR FREARSON: I know that is suggested, but for a start here this was not properly understood. This was not a reproduction at all of witnesses, other than the demonstration that section 53 is talking about; it was a production rather than a reproduction. No one was trying to reproduce anything here. They were trying to see what the items looked like on the - - -

KIRBY J: That is a demonstration, is it not?

MR FREARSON: No, your Honour. A demonstration is a reproduction.

KIRBY J: It is an experiment – an inspection of him in a balaclava. That is a demonstration or inspection.

MR FREARSON: Your Honour, if you call that a demonstration, you call every time a witness is in the box and the judge says, “How far away was it?” and he says, “From here to there”, that is a demonstration. It is a question of degree.

KIRBY J: No. You cannot draw an analogy between that and asking a witness to put on an item which is going to change the appearance of the witness as a witness. A witness does not come into court to have this sort of thing done to them.

MR FREARSON: All right. Your Honour is against me, but my submission is that it is covered by 2.1. All the protections are there in the Evidence Act, including section 26 and the other provisions of the Act. There is no need to go to 53. Section 53 seems to have, with respect, nothing to do with it. It is dealing with other evidence. That is my submission on that. In relation to the question of the relevance of this, one could readily see, in my submission, why there is nothing prejudicial about the - - -

GUMMOW J: Could you just recapitulate your submission on the section 52/53 point? You say 2.3 is not reached.

MR FREARSON: You do not ever get to it, your Honour, because it is all in 2.1 and that governs the adducing evidence via witnesses. You can take into account when you do that that the things that regularly occur during the course of a trial. That is almost like an autoptic profference – call it what you like – but it is direct-sense observation.

KIRBY J: You say this is something that is regular.

MR FREARSON: I have not got to the balaclava yet, your Honour.

KIRBY J: It sounds to me as if it is not regular; it sounds most irregular.

MR FREARSON: Yes, your Honour. Your Honour should not think that I would commend that. I do not commend this course, obviously.

KIRBY J: Unless courts say, “No, you cannot do it”, and people are not entitled to do it and that this humiliates people and makes them look guilty, as Chief Justice Gleeson said in the special leave.

MR FREARSON: Yes, he did say that. May I respond by saying this. That does, in some respects, underestimate the jury and their innate sense of fair play. A jury is sitting there. If they see someone dress up like a Christmas tree, they are hardly going to use that against the accused in the course of the trial.

KIRBY J: If they get a little help from the judge, yes, but here the judge did not give any directions.

MR FREARSON: That is true and he was not asked to. That is true, your Honour.

HEYDON J: Have you finished your answer to Justice Gummow’s question a few minutes ago, namely, to recapitulate your argument on the non-application of section 53? As I understand it it is this. This involved the production of some things in connection with the questioning of the witness who was the appellant. That is one argument, therefore you concentrate on section 26 protections, not on section 53 protections. A second argument is that subsection (2) does not appear apposite to matters that take place in court as distinct from matters that take place outside the court because far from the parties being given a reasonable opportunity to be present, they are compelled to be present in the nature of the proceeding. That is the second argument. Any others?

MR FREARSON: Yes, your Honour. The third argument is this, that what was happening here, in any event, was not in accordance with 53(d). It was not a reproduction, it is a demonstration, and 53 is talking about reproducing something from before. My submission is that this was not ever an attempt to reproduce anything with respect to - - -

KIRBY J: Why is not the attempt to get the person to walk an attempt to reproduce how the person walks and the attempt to put a person in the balaclava an attempt to reproduce what the person looks like in a balaclava?

MR FREARSON: The thing that is usually reproduced is something that is the topic of discussion, something that is relevant at the time. It is not just any reproduction. You are reproducing a particular thing of significance and relevance.

KIRBY J: I am just looking at the words of paragraph (d).

MR FREARSON: Your Honour, that is the argument a barrister - - -

KIRBY J: The problem with the second argument, or at least you might wish to answer what I see to be a problem, is that it is true that 53(2) does not appear apposite to a case in court, but on the other hand, 53(2) has to apply to a whole range of circumstances and at least one view of it would be that it does not really bite when you are already in court, but it lays down a rule that is to apply if you are not in court.

MR FREARSON: Your Honour, it would also seem to make no provision for the judge asking a witness to do something in court.

KIRBY J: It will be a sad day when judges ask witnesses to get into balaclavas.

MR FREARSON: I was not thinking about a balaclava, your Honour. I was thinking about some less offensive procedure.

GUMMOW J: How do you fit your submissions you have been making to us in with the treatment of Wigmore’s discussion, or the treatment you give Wigmore in your written outline to paragraphs 39 and 40?

MR FREARSON: Yes, your Honour, it is referred to there. I do not propose to repeat it in that detail, but that is the essence of what I am putting.

HEYDON J: It is actually the appellant’s 39 and 40, I think.

GUMMOW J: I am sorry, I have the wrong - - -

HEYDON J: Where do you deal with this, Mr Frearson?

GUMMOW J: Paragraph 5.14.

MR FREARSON: Yes, your Honour. Thank you, your Honour.

GUMMOW J: I am sorry, I misled you.

MR FREARSON: Now, can I just deal with very briefly the question of relevance, and I am not seeking to commend as I said the donning of that balaclava. Your Honour seems to think I am doing that. I am not doing that at all. I am looking at the legal aspects of it and then I just want to deal very briefly with the relevance of it.

Clearly, things are in different categories, but the overalls, for example, I have mentioned those. We know from the witnesses they were loose-fitting overalls on the robber. These overalls that the appellant had he had for four years or so, used on Thursdays, one question, relevant question, could be, when he put them on were they loose-fitting overalls? It goes back to the question of whether these items are items that could have been used in the commission of the crime.

KIRBY J: Can I say to you, and I speak only for myself, other participating Justices or Justices may not agree with this, but I have sat here in this Court and I have seen prosecutors for the Crown come here and say they cannot support what was done by the prosecutor at trial or the prosecutor below, and therefore you cannot, in my humble respectful opinion, simply wash your hand as a prosecutor for the Crown in this Court representative of a model litigant and say, “Well, I do not necessarily commend this but it does not really matter”. We are in the realm of considering the unfairness of the trial to the accused and therefore it is important that I put to you the matter that concerns me, and you are defending that matter.

MR FREARSON: Your Honour, what I have endeavoured to do is firstly, to separate out the legal position from what actually happened in the trial. Now, in the Court of Criminal Appeal what was at stake mainly was the legal position. What happens when a party goes into the witness box, can he be invited or required to do things, can he be invited or required to do things in relation to exhibits, what part of the Evidence Act applies, is it 53, is it not 53, or is it just the witness giving evidence in accordance with the Division 2.1? That is the first thing I had sought to address and that - - -

KIRBY J: If it is not 53 is there some residual common law principle that the judge has to observe for the purpose of instructing the jury to protect fairness in the conduct of the trial?

MR FREARSON: Well, your Honour, there is always – a judge is always required to give any direction to avoid any perceptible risk of a miscarriage of justice.

KIRBY J: Well, there was not anything said by the judge here, anything relevant. She did not say, “Ladies and gentlemen of the jury, anybody who gets into a balaclava in circumstances where we are dealing with a robbery may look guilty, and you have to make allowance for that fact”.

MR FREARSON: Well, your Honour, my submission has been – your Honour obviously does not accept it – that that was obvious to the jury. I mean, particularly by the end of the day when the addresses had been completed and submissions were made as to the use that could be made of this. The suggestion was that the balaclava that fitted on the robber was loose fitting at the top. Now, that was the reason, as I understand it, why the Crown Prosecutor invited the accused at that time to put on the balaclava to see if it was also loose fitting at the top.

Now, it may not have been a very good reason, it may not have had great probative value, and it may have been in some senses unwise, but there was a forensic purpose to it, if I can put it that way, and it was – perhaps there was an over-abundance of enthusiasm in pursuing that course. It might be true that - - -

KIRBY J: That is one way to describe it.

MR FREARSON: - - - 999 and over a thousand prosecutors would not have done it, but that is another matter. What the Court of Criminal Appeal was looking at was the broader question of the procedure. Now, your Honour says, this is inherently unfair, and I have answered that twice by submitting that it is perfectly obvious to the jury that you make a person look like the robber if you dress him up in the balaclava.

In relation to the talking, if I can put it that way, nothing unusual about that at all, the jury is entitled to have regard to the way a person talks, and there was a very good reason to ask the question about, “Where’s the serious cash?” because of the mispronunciation. Now, the Crown obviously did not address on it. Mr Game suggests the Crown changed tack. No, obviously, there was no mispronunciation of the word “serious”. That is the reason the Crown went to the other relevance of the talking, that is, the general way a person talks, again to see if it was consistent with the descriptions given on the way the robber talked.

Similarly, in relation to the walking, two witnesses - Mrs Gleeson, appeal book 160, and Mrs Thompson. Mrs Gleeson said the robber swaggered. Mrs Thompson said there was some shuffling. The Crown’s submission to the jury was, “Look at the video, you can actually see some shuffling”. It was not totally irrelevant. When one looks at the limitations of the still photographs, the limitations of the video, there was never any identification procedure taken place here. It was always only ever a question of consistency or inconsistency in a very general sense. For example, when you see the balaclava on the video, can you see holes in it? Those items are before the Court and I would commend the Court to look at them, the very bright coloured balaclava, the overalls and the very reasonably distinctive cap.

Perhaps I will move on to ground 1 if I can. I have just dealt with ground 2. Ground 1 is the showing of the balaclava and overalls to the witnesses. My submission is, completely unexceptional. Why object at the third witness when the third witness, Mrs Thompson, gave a description which was inconsistent with the item? That is when fairness would probably mandate you do show it and she did the obvious thing and excluded the item. I do not understand this point and I will not saying anything more about it.

Dealing with ground 3, the jury directions, we have written submissions about that, but what I want to say is this. This all depends on how you perceive the Crown case. Was it a circumstantial evidence case? That is my submission. Or was it an identification case? If it is an identification case, of course all sorts of directions need to be given. If it is a circumstantial evidence case, certainly not. As trial counsel commented to her Honour during discussions, he regretted that the matter could not be put as simply “Are you satisfied beyond reasonable doubt that the man who robbed Strathfield Council chambers is this man?” At 645, 50 he said it is essentially as simple as that and it really was because it was a circumstantial evidence case and not an identification case.

The failure to give reasons, the Court of Criminal Appeal held and, in my submission, correctly held that in all instances you can actually discern the reasons from the very lengthy discussions. It is not an absolute rule that reasons must be given. There is always a question of the consequences of not giving the reasons. Do they deny an appellate right, do they prejudice an appeal, do they create an unfair trial? In my submission, in the circumstances of this trial that is not what happened and, indeed, in relation to the alibi the error was discerned quite easily where her Honour said, “I can’t give leave if the Crown’s objected”. Well, that is clearly not right - - -

KIRBY J: The trial judge apparently thought that on some matters she did have to give reasons. She said she had prepared them, would deliver them later and did not. So she thought it was necessary to give reasons.

MR FREARSON: Your Honour, the Court of Criminal Appeal said that was remiss, particularly on the basis that she had undertaken to give them and did not give them and they have found error in that regard.

HEYDON J: It is wrong to break promises, but I, for my part, think there is far too much stress in modern litigation on giving reasons for practically every ruling and for that matter having long debates about practically every ruling. This would not have happened 35 years ago and criminal trials took a tenth of the time, and civil ones too.

MR FREARSON: That is similar to what Justice McHugh said in Soulemezis I think the case was. My friend cited the authority at 279E when he talks about no absolute obligation to hear argument even on the admissibility of evidence. Sometimes judges could say that is in, that is out. It depends on what it is - - -

HEYDON J: These are rather more important questions admittedly.

MR FREARSON: Yes, your Honour. I take that point. But it is not an absolute rule. You need to look at what the issue is, what reasons are required to do justice to the parties, and are you jeopardising a person’s appellate rights. It is that type of consideration. Where you have had 50 pages of discussion and the judge says, “Well, I am letting that in”, and the discussion has been about whether it is probative and whether there is unfair prejudice, clearly the reasons are axiomatic.

GUMMOW J: What about the alibi submissions?

MR FREARSON: I will deal with the alibi. My friend says that this alibi was expunged. No, it was not. It was there for all to see. The appellant gave evidence of his alibi. He said that on Thursdays they usually wash these limousines and, indeed, he said they were displayed from about 5 and he worked on them from 2 to 3 until 5 - appeal book 398. When Mr Douglas Evans gave evidence he did give evidence that the appellant worked on the vehicles and so did the brother, Alan Evans. He gave evidence he worked on the vehicle. He just did not get around to saying – he was not allowed to say that it happened on Thursdays. The usual practice of working on vehicles on Thursday was never in dispute. There was never any cross-examination of the appellant to say you do not work on Thursdays on the vehicles.

My submission was it was really common ground. Was there any comfort in the detail from the others? No. When you look at what Alan Evans had to say, he said you would usually start on the vehicles around 1 and it takes about five hours to complete them. That cannot be right and it does not accord with what the appellant said. Douglas Evans said the cars are displayed at 4 to 5 and the appellant commenced some time after lunch.

It was rather vague, but there was not really any comfort in it and it did not really go anywhere in a situation where you have got the DNA in the cap, you have got no records to back it up, nobody knows where the appellant was on the day and the Court of Criminal Appeal rightly said in the circumstances of this case, bearing in mind what was already in, this additional evidence that was precluded, was not significant. That is the view they came to. My submission is they were perfectly correct to come to that view and it certainly was not significant.

KIRBY J: But do you contest the Court of Criminal Appeal’s view that the trial judge erred in upholding the objection of the prosecutor?

MR FREARSON: I cannot, your Honour, because what the trial judge said – she said “I can’t give you leave because the Crown has not consented”. Now, that is wrong. She has not looked at the question properly. I am not saying she could never have rejected the alibi and never have refused leave. Possibly she could have. But the reason she attributed to it was wrong and the Court of Criminal Appeal said, “She is wrong. Now, we will look at it.” They determined that the additional evidence was insignificant.

I suspect I have actually missed out a ground by jumping around. Just excuse me for a second. You invited my friend to do further submissions on the proviso. I suppose that invitation extends to the Crown as well.

GUMMOW J: What do you say on the proviso if, contrary to what you have been putting to us, we have to get to the proviso?

MR FREARSON: I think the proviso was correctly applied. Even if you factored in, as Justice Kirby would be very tempted to do, the balaclava and hold that it should have been excluded because of unfair prejudice, as I think that is probably the way it is being put, even if you factored that in, my submission is the proviso would still apply. You would still apply the proviso because at the end of the day that did not go anywhere. What was actually happening was there was some attempt made to make a comparison – let the jury compare what they saw on the appellant in the box and what was on the video. You cannot see much on the video at all. You can just seem some holes in a balaclava. It was all very – it did not go anywhere.

The question of unfair prejudice, I have answered that three times already by saying give the jury some credit here. In my submission, it is still appropriate to apply the proviso because the case against the appellant, in my submission, remains overwhelming.

KIRBY J: What was his thesis? Just remind us of what the thesis was as to how his DNA got on the cap that was left behind by the robber?

MR FREARSON: I think he said it was possibly transference, but the main thesis was, and my friend disputes this to some extent, there was suggestion by trial counsel that it had been deliberately planted there with a view to implicating the appellant. Now, that is at - - -

HEYDON J: Page 621.

MR FREARSON: Appeal book 621, 30 and 624, 30 and 700,10. Now, it is true that at other stages of the trial the counsel was questioning whether the robber had actually dropped the cap, but when one looks at the evidence of Mr Samad and Mrs Thompson that the cap was not there before and it was there contemporaneously with the robbery at 130, 40 and 120, and when one then looks at the video and looks at the stills - I think the particular stills are photographs 7 and 8 – you can see the sequence and you can see that it is not there one minute and he is bending over and it is there the next minute.

So it is inevitable that the jury would have concluded in favour of the Crown re that intermediate fact. So whilst my friend says, “No, that was not really what was being put”, that was what was being put and one can understand the reason because the jury were going to conclude – what else were they going to conclude – that the robber left that cap at the scene.

KIRBY J: You have got that fact and you have got the fact that the father had a great batch of these caps, just happened to have them in the house in which the accused lived.

MR FREARSON: Yes, and one was singled out – it was actually in a bedroom and the appellant proffered a number of reasons for that. I think he said he had a schizophrenic girlfriend who may have left the cap there for some reason and then he, at the time of the video, told the police it had been there for two - - -

KIRBY J: I do not quite understand how the girlfriend fitted into this.

MR FREARSON: I do not understand that either, your Honour.

KIRBY J: The story of how the cap got there - - -

HEYDON J: You have to fit the girlfriend in with the real robber. How does – there is never any evidence - - -

MR FREARSON: I hesitate to say it, but this suggestion was the kiss of death for the accused in the trial, because it was never going to be rejected.

HEYDON J: Such a ridiculous proposition.

MR FREARSON: It was a ridiculous proposition and it was not a good look. That is all I wish to say, unless there is anything else.

GUMMOW J: Mr Game has leave to present further written submissions as indicated. If he avails himself of that leave within 14 days, the respondent has corresponding leave within another 14 days of that utility by Mr Game - - -

MR FREARSON: Thank you, your Honour.

MR GAME: Thank you, your Honour. May I make a few points in reply? The provision of section 26(b) in the Evidence Act, in our submission, does not cut down in any sense the operation of Part 2.3 where what is to be conducted is a demonstration, experiment or inspection which becomes real evidence under section 54, notwithstanding the fact that that occurs in the course of a witness’ evidence. The two provisions can operate side by side in that way.

The second point relating to section 53(2), I made the point before about how that, as it were, tied into the Law Reform Commission’s consideration of Kozul. Beyond that, we would say that subsection (2) is, as it were, imposing a protection which will apply to things, for example, that the jury might do as well or the judge might do. It is not to the point, we would submit, that subsection 2 on the face of it is not apposite as to events that occur in court when the parties are present. A factual matter - - -

KIRBY J: Subsection (1) contemplates that a judge having the control of trials may order “a demonstration”, ie, in the course of a trial. On one view, this is a demonstration that arose within the trial and it would then be very surprising in those circumstances if 53(1) had no application, because the primary paragraph contemplates that demonstrations in trials would be under the control of a judge and for a very good reason.

MR GAME: Yes. Our submission is that there are very powerful reasons that section 53 applies wherever a “demonstration, experiment or inspection” is carried out and the actual location of it is irrelevant whether it is outside court or inside court. A factual point that I wanted to clarify briefly is that it was said that the balaclava was placed on the appellant because some witness spoke about a loose-fitting top. Actually, that was Mrs Connell. She spoke about a beanie on the top of the head in which the face was apparent. So that could not be a reason.

Another factual matter is, your Honours, insofar as it is said that you can see a swagger or something like that on the video, the video is at a number of seconds delay so that when you see it it looks as though it is in fast forward because - - -

HAYNE J: Stop frame.

MR GAME: That is right. The timeframe is longer than the actual time you take to see between the frames. So it looks as though it is in fast forward.

KIRBY J: Probably makes it look jerky, too.

MR GAME: That is right, yes. In respect of ground 1, and I will not go back to the submissions, but the objection covered all of the comparisons but the judge mistakenly thought that it was an application to exclude all the oral testimony of the witnesses. The next point was, it is said that written directions were not required because it said this was a circumstantial sort of case rather than an identification sort of a case. That is not the criteria obviously by which one determines whether or not a warning should be given, whether under section 165 or at common law.

A passage was led from defence counsel in which he said something about the jury question. He asked for a 165 warning and I will just give your Honours the reference - 646, line 23. I will not revisit the whole of the alibi issue, but we do say that it was actually the weight that was given to the practice and where it would take the defence case that the appellant was unable to advance.

HEYDON J: Mr Game, is it convenient to ask a question about section 153?

MR GAME: Yes, your Honour.

HEYDON J: The ALRC, paragraph 1027, ALRC 26, under the heading “Views, Demonstrations and Experiments” said:

The judge or jury may leave the court to observe places or objects that cannot be brought to or reproduced successfully in the court.

MR GAME: Could your Honour tell me which page and paragraph?

HEYDON J: Page 565 of volume 1, paragraph 1027.

MR GAME: Which is the subheading?

HEYDON J: The subheading is “The Law and its Rationale”. Then in 1030 it says:

It is proposed that an inspection out of court, whether strictly a view or a demonstration in content, should not be undertaken –

et cetera. Then 1031 says:

An analogous area to out of court inspection is that of inspection by a jury in the jury-room –

My proposition would be that fairly read those paragraphs indicate that the commissioners had in mind out-of-court activity and that that is what they were directing section 53 to.

MR GAME: May I say first, and I think I said it before, that we would submit that no such ambiguity appears in the actual words in section 53.

HEYDON J: So you say not necessary to go to ALRC 26?

MR GAME: That is correct. But if you do - - -

HEYDON J: If you do, what happens then?

MR GAME: What we say is that if you couple that with Report 38, and it is only a few words - I took your Honours to them this morning - what is being done is that the court controls these exercises wherever they are to be performed, so in Kozul it is in the jury room and the court creates minimum standards of fairness in subsection (3), then the court makes the whole thing evidence under section 54. Where that takes one is the cases such as Scott in this Court, as it were qualified by section 53 because, at common law, as the Court is aware, a demonstration, experiment or inspection is evidence but a view so-called is not.

HAYNE J: Now, which was it in this case? Was it a demonstration, an experiment or an inspection?

MR GAME: When the shirt was pulled up it is an inspection.

HAYNE J: So it is an inspection of a party?

MR GAME: Yes.

HAYNE J: In this case who is a witness?

MR GAME: Yes. When he is told to do things it is a demonstration.

HAYNE J: So it is a demonstration by a party?

MR GAME: Yes.

HAYNE J: Not a demonstration conducted by a witness to found some chain of reasoning?

MR GAME: Yes, your Honour, but it is also capable of answering the description of “experiment” because it could be an experiment to see how the person talks, what their voice is like, for example, so it could be a demonstration - - -

HAYNE J: From the point of view of counsel, I suspect, it might have been an experiment, but I am not sure that it is from a statutory point of view.

MR GAME: These words are not defined in the – these words, “demonstration, experiment or inspection”, are not defined. They have, we would submit, a fairly generous purview in their combined operation.

May I say – I have said this before – if one falls out of section 53, Scott v Numurkah, Kozul and Bulejcik all contemplate that fairness be protected in such exercises and we submit that that question, in effect, would lead to a similar result in this case and I maintain my submission that the evidence did not have relevant probative value for the purposes of admission.

May I just say in relation to the defence, what was put in the defence case has been summarised briefly at paragraph 4 of the appellant’s reply and I will not read that. There was more than one submission put and it has weighed heavily on the evidence of Dr McDonald.

Just one reference to Wigmore, paragraph 1152 dealing with views and experiments and inspections contemplating at page 327 that they may take place in court under the heading 1152. That is all the matters in reply, if the Court pleases.

KIRBY J: Mr Game, the matter that concerns me really is the DNA evidence because, on one view, it trumps everything. The fact that the cap is found at the scene of the crime with your client’s DNA and the fact that his explanations of how that could possibly happen do seem to me, as Justice Heydon put it quite bluntly, ridiculous. If that is so, then all of these other quite interesting issues and arguably important issues that you have raised really melt before the sun of the DNA. If you have not said everything you want to say about that then I would invite you, in the written submission that you send in, to add anything that you can say. Justice Glass used to say to me, 30 years ago, “We work with imperfect materials”, and it may be there is nothing you can do with the imperfections of the materials, but it is pretty critical.

MR GAME: Your Honour, we will take the invitation but may I say - - -

HAYNE J: In doing so, would you be good enough to deal with whether the photographs which bear the following timings that your junior might take note of: the photo at 16:09:35 appears not to show a cap; the photo at 16:09:43 is not clear because the offender is bending down but at 16:09:45 there is something in the photograph that looks like a cap to the untutored eye which is still there at 16:09:49, which is the last of the pictures. Be good enough, would you, to deal with those difficulties.

MR GAME: Certainly, your Honour, I will do that. Can I just say this. Nobody said that they saw him wearing a cap. There was no evidence of that. In answer to your Honour Justice Kirby’s question, I think I have already taken you to the passages that the prosecutor did not put a case on the basis that it was - - -

KIRBY J: We have to reach our own view.

MR GAME: I understand that, but my point is this. There is other evidence which points in other directions – that is to say inferences which undermine the conclusion that the appellant - - -

KIRBY J: They might undermine them if you did not have the DNA at the very scene and the cap falling off the very offender and caught on video film. This is science battling with what you used to be able to do in jury trials but which becomes more and more difficult in the age of DNA and video film.

MR GAME: Yes. I will deal with it in the short document. What I would say would be, for example – and I thought we had already said it in the submissions – say, for example, you have a witness who says that the witness’ hair was dark. We know that the appellant’s hair is not dark. A witness who saw him outside – the robber – said he had dark hair. That is a piece of evidence that points away from the conclusion. So too is evidence in relation to the tissue evidence that points away from that inference. So too if it was left is the evidence about his practice on a Thursday. The defence is seeking to chip away from the inference that is sought to be drawn by pointing to this other material that points in other directions. That is the way in which we say that the prosecution case may be met.

One matter just so - I think there was some confusion. The comment in relation to the girlfriend concerned the balaclava, not the cap is my understanding. That is all I had in reply, if the Court pleases.

GUMMOW J: Yes. Well, the leave you have already will be extended to include the treatment you wish to make of the matters raised with you by Justice Kirby and Justice Hayne. The respondent’s leave will likewise be amplified. We will consider our decision in this matter.

AT 4.01 PM THE MATTER WAS ADJOURNED