Browne-Kerr v The Queen

[1991] HCATrans 31

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml8 of 1989

B e t w e e n -

DONALD STUART BROWNE-KERR

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

Browne-Kerr 1 7/2/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 FEBRUARY 1991, AT 11.09 AM

Copyright in the High Court of Australia

MR N. CRAFTI:	May it please the Court, I appear on behalf of the applicant in this matter. (instructed by
James T. Stevens)

MR M.S. WB-INBERG, QC: If the Court pleases, I appear

together with my learned friend, MR J.D. McARDLE,

on behalf of the respondent. (instructed by

Commonwealth Director of Public Prosecutions)

BRENNAN J:	Mr Crafti.
MR CRAFTI:	May it please the Court, I have outlines of

submission which I seek to hand to the Court.

BRENNAN J:  Is it right to say that ground 2 is only reached

if you fail on ground l?

MR CRAFTI:  On one view of the argument that would be so,

Your Honour, although speaking for my part I would

be anxious that that matter be resolved as well in
case the Full Court ordered a retrial or might
decide that there should still be a retrial,

notwithstanding that it goes back to the Full

Court, because what will then happen is that the

trial will be conducted on an evidentiary basis

which, we would submit, is erroneous. But,

Your Honour's observation is one which had already

crossed my mind, that it may be premature to argue

ground 2 on one view of it if the matter is

remitted to the Full Court. But certainly I, for

my part, would be anxious to have the matter

resolved so that in the event that there was a

retrial we did not have to come back yet again to

discuss the matters that are contained in ground 2.

Your Honours, the proposition - perhaps I

should indicate at the outset, the applicant was

charged with 57 counts of forgery. He was

acquitted on 31, convicted on 26 and appealed

on nine grounds initially against conviction to the

Full Court and was allowed to add two further

grounds. Judgment in the Full Court decision was

delivered on 1 May 1989 about two months after this

Court delivered its judgment in Jones' case,

(1988-89) 166 CLR 409. This Court held on that occasion that a Court of Criminal Appeal cannot

fail to hear and determine tenable grounds that are

raised and argued in support of verdict of

acquittal merely because the court accepts other

grounds of appeal which result in the quashing of

that conviction and an order for a retrial.

This Court then went on to say that a Court of

Criminal Appeal which confines its judgment in that

way fails to exercise fully its jurisdiction and

the appeal remains partially undetermined. That is

Browne-Kerr 2 7/2/91

exactly what happened in this particular case and

reference is made to the last paragraph.

BRENNAN J:  Mr Crafti, it may be of assistance if we were

first to call on Mr Weinberg to deal with the first

ground of appeal.

MR CRAFTI:	May it please Your Honour.
MR WEINBERG:	If the Court pleases, could we hand to the

Court an outline of our submissions.

In brief compass, as the Court will note from

our outline, what we say is that it seems plain

from the last paragraph of the judgment of the

Court of Criminal Appeal that the Court did not

determine the three grounds in question, that is,

grounds 2, 3 and 4. Ground 2 complained that the

verdicts were inconsistent. Ground 3 was a

complaint that the case should have been taken away

from the jury or that the verdict was perverse, in

effect. Ground 4 was the complaint that the

verdict was unsafe and unsatisfactory.

We accept that if any of those three grounds

had been sustained before the court the consequence

would have been that the conviction would have been

quashed and a new trial would have been ordered.

We say that the court did consider ground 4. We do

not say that the court, in its judgment, expressly

indicated any consideration of grounds 2 and 3. We

submit, however, that the case falls plainly within

the qualification which was laid down in Jones'

case that the grounds in question, in order to give

rise to special leave being granted, must be not

plainly untenable.

We submit the three grounds in question are

demonstrably and plainly untenable; were perceived

to be so by the Court of Criminal Appeal which
comprised experienced judges who knew full well the

consequences of any of those three grounds being

made good and in all the circumstances we would

submit that special leave as a matter of discretion
should not granted.

TOOHEY J:  The difficulty about that submission,

Mr Weinberg, is that it really shifts the analysis

of the evidence to this Court rather than to the

Court of Criminal Appeal.

MR WEINBERG:  It is a most unsatisfactory situation,

Your Honour, because otherwise what happens is that

every time a Court of Criminal Appeal fails to deal

with all grounds and the court's judgment passes

into records, so that the court itself will not

Browne-Kerr 7/2/91

reconvene to consider the matter further, special

leave will be sought.

In this case a delay of almost two years has

0€curred between the time that the Court of

Criminal Appeal handed down its judgment and the

time that this case has been able to be heard by

this Court, the applicant not being in custody.

The Court then, if we are wrong in our submission,

will automatically grant special leave and remit

the matter back to the Court of Criminal Appeal

which is, as it were, a mechanical process.

We submit that is simply contrary to the

principles which govern the grant of special leave;

that special leave is discretionary, it ought to be

granted only in a case where the relevant criteria

are established and those criteria include the

qualification laid down by this Court is Jones'

case. And if we are able to make good our argument

which we can, we submit, in just a moment that

these three ground were plainly untenable, then we

submit this Court ought to refuse special leave.

TOOHEY J:  You have expressed the proposition too broadly,

have you not, when you say that whenever a Court of

Criminal Appeal fails to deal with any of the

grounds?

MR WEINBERG: Fails to determine all the grounds,

Your Honour, I am sorry.

TOOHEY J: That was not really what I had in mind. It must

be fails to determine a ground which, if upheld,

would have resulted in an acquittal rather than a

retrial.

MR WEINBERG:	Yes, Your Honour.
TOOHEY J:	So the propositions are rather more limited ones.

MR WEINBERG: Well, that will happen, Your Honour,

One sometimes finds many grounds included in an	notwithstanding Jones' case, from time to time.
application for leave to appeal before a State court and with the best will in the world, on
occasion, the court will simply treat a ground such
as the verdict was perverse and against the weight of the evidence; it not having been argued fully
or at all below to any degree as, in effect, not
being a serious ground.

TOOHEY J: Well then, all that need happen is that the court

says so.

MR WEINBERG:  Your Honour is quite correct. But with the

best will in the world the court will not always

Brown-Kerr 4 7/2/91

say so and we will find ourselves back before this

Court for this Court to, as it were, rubber stamp a

remission back to the court to say so.

DEANE J: .But here it said the opposite. Here it said, "We

are going to order a new trial and we are not going

to bother about grounds which, if upheld, would

have entitled the appellant to an acquittal".

MR WEINBERG:	It said exactly what is contained in the last line, Your Honour, and I think I said right at the
outset we accept that the court did not determine
grounds 2, 3 and 4 and we do not seek to argue that it implicitly determine those grounds. All that we
say is that they were placed before the court; one
can see that through the written submissions that
were handed up to the court below which we brought
along in case the Court wished to see them. The
court was an experienced court. It knew what the
consequences of those grounds being made good would
be.  I can certainly say that.
It did consider ground 4 because it expressly adverted to ground 4, and grounds 2 and 3 were,
with respect, nonsense and we would endeavour to say to this Court, in a moment or two, that they
are demonstrably nonsense. It is not surprising
that the Court of Criminal Appeal really was not
minded to deal with them.  It did not deal with
them; it did not determine them. It ought to have
said, "They are untenable".

We accept that but it does not follow from

that, in our submission, that this Court ought to

remit the matters back to the Court of Criminal

Appeal because if it did so it would be ignoring

the qualification that it itself placed upon the

principle laid down in Jones' case and that

qualification is that the grounds must not be

plainly untenable. The Court did not say in Jones'

case that this Court will always grant special

leave and always remit to a Court of Criminal

Appeal any case in which any ground which might

that court. Any such statement of principle or law	lead to an acquittal has not been determined by
would, in our submission, be contrary to the public
interest and, quite simply, at odds with the
principles governing the grant of special leave.

BRENNAN J:  Mr Weinberg, it comes to this, does it not, that

this Court must, on the one hand, protect itself

from rubber stamping remittals which have no

substance in them of any sort and, on the other
hand, ensuring that tenable grounds of appeal,
though they may not be successful before the Courts

of Criminal Appeal, are in fact considered by

Browne-Kerr 7/2/91

Courts of Criminal Appeal as that is the Court's

supervisory function.

MR WEINBERG:  Yes, Your Honour.

BRENNAN J: Well now, does that not mean that in practice,

what you must do is to be able to demonstrate,
without going into the details of the case - that

is the details of the case which relate to the

unconsidered grounds - that each of those grounds

is untenable.

MR WEINBERG:  Yes, Your Honour. We accept that onus and we

are about, with the Court's leave, to do so and we

say we can do so very briefly, but if we are not
permitted to do that then the Court will be

adopting a rubber stamp roll, in our respectful

submission.

BRENNAN J: Well, it is not a matter of saying that you have

got five minutes, but it is what I am saying that

you have got to be very precise in being able to

demonstrate that to us.

MR WEINBERG:  We anticipated that. We certainly did not

expect this Court to engage in the task of

considering in any detail at all the points that

might have to be considered if these grounds were

thought to be tenable. We simply say they are not

tenable. If we could do that. If we could turn

to ground 2. Very simply, the easiest way to

deal with the point, Your Honour, is to hand to

the Court copies of the written submissions relied

on by my friend below and the written submissions

that were put in by the respondent below in the

Court of Criminal Appeal. We have supplied copies

to our friend and the Court will see the way in

which the argument was presented below.

Very briefly the Court will see ground 1 was

severance. Grounds 2, 3 and 4 are argued together

by my learned friend at pages 5 through to 8 of his

written grounds and he submitted that the grounds

overlapped and in essence, if the Court were to
scan those pages, the Court would see that, even

though the grounds are conceptually distinct, there

is simply no argument addressed at all in those

passages under grounds 2, 3 and 4 to grounds 3 and

4. In essence the argument that is being addressed

in those pages is a ground based on inconsistency,

which is ground 2, and in essence that ground, put

in one simple sentence is, how could this jury have

convicted this man of some counts of forgery and

acquitted him of others, when there is a

handwriting expert, upon whom the case essentially

depends. That handwriting expert says that all of

the documents in question were written by this

Browne-Kerr 6 7/2/91

applicant and he has based his statement or

evidence to that effect upon two control documents,

exhibit F and exhibit G.	How is it that the jury
could convict of some and not of others?	A short

a-Rswer appears, in our written submissions in

relation to ground 2, at page 2 and the short

answer is, that although there were 18 separate

identities involved in this case, he was convicted

only of four separate identities, that is the
counts of Williams, 5 to 10 inclusive; O'Brien, 13

to 17 inclusive; Thomas, 18 to 26 inclusive and

Barnes, 52 to 57 inclusive. There was no situation where he was convicted of some of the Williams

counts, but not the other Williams counts. He was

convicted of all the Williams counts; all the

Thomas counts; ·all the Barnes counts and all the

O'Brien counts.

In the case of the Williams and Thomas counts,

a man's fingerprints were found on the

incriminating documents, which he provided an

explanation, but the fact is, his fingerprints were

found on some of the documents which were said to

be forged, which made it a much stronger case, if

one wants to look for independent evidence tending

to confirm that he wrote on those cheques and

documents. In the case of the Barnes documents,

the police evidence was that, when he was

apprehended, he was found with two credit cards in

his possession in the name of Alan Barnes, the very name of the false identity. So again, it is one of the rare situations where you have got independent

evidence confirming the handwriting expert and in

the case of the O'Brien counts, those are the only

counts in which the bulk of the writing appears to

be cursive script, rather than print and there was
no dispute that exhibit F, which we also have for

the Court, and exhibit G, was purely in cursive

script or virtually purely in cursive script and

exhibit F was conceded to be by the applicant

himself. He conceded that he wrote exhibit F, that

was in cursive script. Exhibit G, which was the

other document, the one about which all the fight

arose, was in'printing, so it is perfectly logical.

BRENNAN J: So, none of the cases of acquittal were cases of

cursive script?

MR WEINBERG:  No, Your Honour, the others are all - and we

have all the exhibits - they are all essentially

printing documents so there is a perfectly

rational, simple and logical explanation as to why

the jury would have convicted of these four - far

from being inconsistent and unsafe, one would have

to congratulate the jury upon being discriminating

and doing exactly what the judge told them to do to

consider the evidence separately. They picked the

Browne-Kerr 7 7/2/91

four strongest cases and they convicted and they

acquitted of the others. They were invited to look

at the handwriting themselves to assess it in the

light of the handwriting expert and in the light of

the other evidence and they did just that. Now,

that is ground 2, that is the way we dealt with it

in the Court of Criminal Appeal. Obviously, it did

not trouble the Court of Criminal Appeal nor would

you expect it to.

Now, as far as ground 3 was concerned, that

ground says that the verdict is against the weight

of the evidence and, in effect, we would read it as saying that the judge really had a duty to take the case away from the jury, a no case submission

having been made. We do not see very much

development of that argument in the written

submissions at all. It is a nonsense argument,

with respect, in the light of the decision of this

Court in Doney's case, recently handed down by this Court. There was ample evidence upon which a jury, properly instructed, could have been satisfied

beyond reasonable doubt that exhibit G was in the

handwriting of the applicant. They were told they

had to be so satisfied. His Honour's ruling as to

why he rejected the no case submission, we submit,

is clear and compelling.

If I could just summarize, very briefly, to

the Court what the evidence was in favour of the
business questionnaire having been in the

handwriting of the applicant upon which the jury

could have been satisfied. The business

questionnaire - perhaps I will hand these two

exhibits to the Court because they make the point

as clearly as anything else I can say.

Exhibit Fis clearly and unequivocally in the handwriting of the accused. It was admitted that

this was in his handwriting, the top part of

exhibit F which we are handing to the Court at the

moment, that is incursive script; exhibit G is the

business questionnaire in question as to which the

accused stated that he did not write-any of the

printed - or any of the print on that document. He

conceded that two of the questions on the document

in cursive script were in his handwriting and the

signature was his.

So, exhibit G was the matter that was in dispute: as to whether a jury could be satisfied

beyond reasonable doubt that exhibit G was in the handwriting of the applicant. That was the issue

and that was the way it was left to the judge.

My learned friend made a no case submission on

the basis that no jury could be satisfied beyond

Browne-Kerr 7/2/91

reasonable doubt that exhibit G was in the

handwriting of the applicant and His Honour, at
pages 369-371 of application book 2, ruled against

that submission and took into account the following

a-vidence: the business questionnaire was

handwritten. It was taken from the applicant's own

bankruptcy file. It was signed in the applicant's

own name. The witness, Drenen, who worked at the

Official Receiver's office remembered the applicant

attending that office on 30 March 1978. He had no

recollection of anyone else being present on that

day. He believed that he handed the applicant two

documents to be completed, one of them being a

business questionnaire. Both documents were later

returned to him. The business questionnaire itself

is dated 30 March 1978 and signed by the applicant

immediately to the right of the date. While it was theoretically possible that the document could have

been taken away and returned the next day or on

some later date, it would be been improbable in

that case that it would have been dated

30 March 1978.

The witness, Drenen, was able to exclude the

possibility that the business questionnaire was one

which had been sent out to the applicant at some
earlier time, a matter that had been suggested in
cross-examination to him, because he recognized his
own handwriting at the very top of the business

questionnaire and he said, "But the file indicated

that some other officer had sent out the earlier

version of the questionnaire". The handwriting

expert himself testified that he had compared the

two documents, exhibit F and exhibit G. He noted

many similarities between the two documents.	He
noted those similarities, I should say, at
pages 503 and 504 of the transcript - that is

application book 1 at pages 170-171, and he took

those two documents to be by one person. He noted

the distinctive features of the printed words set
out in exhibit F and those set out in exhibit G and

if the Court were to look for itself at those two

printed words - I think it is "LAR Distributors" or

some such expression in exhibit F which is in

print, not cursive script. It is conceded to be in

the handwriting of the applicant by him and the

print - it is LRT Distributors - at the top of

exhibit Fin print.

Then, anyone comparing that with the printing in exhibit G which the applicant said was not his

must be struck by the obvious similarity between

the two sets of printing - and the expert certainly

was. He said they were by the same person. There

was a sudden transition from lower case printing to

upper case letters which was distinctive. There

were a number of other similarities between the

Browne-Kerr 9 7/2/91

print and he said that in addition to that, the

cursive script of the two documents was also

similar and consistent. When asked a further

question by the trial judge later on, he said that

i.t was a reasonable assumption that exhibits F

and G were written by the same person. So, we have

that piece of evidence as well.

Finally, and perhaps most tellingly of all, we

have the applicant's own evidence in his own

unsworn statement where he says that the writing,

or printing, in exhibit G was not written by him

but had been written in the main by his brother -

no evidence called about that at all. His brother

was not called. No one was called to give evidence

about his brother's handwriting. It was never put

to the expert that it was his brother's handwriting

and the expert himself had seen samples of

Malcolm Browne-Kerr's handwriting, that is, the

brother of this applicant. There was evidence that

he had actually had samples of the brother's
handwriting - never put to him at all that it was

the brother's hand~riting.

TOOHEY J:  Mr Weinberg, the business questionnaire is

exhibit G. I just wondered becaus~ there is a

statement on page 371 in the rejection of a no case

submission in which the trial judge speaks of

exhibit Fas the business questionnaire and

exhibit G, the handwritten document.

MR WEINBERG:  Yes. The trial judge got it wrong.

TOOHEY J: They should be transposed, should they?

MR WEINBERG:  Yes, Your Honour. The handwritten document is

exhibit F and the business questionnaire is

exhibit G.

TOOHEY J: Could I just ask you one more question? In

relation to exhibit G, is there any part of that

document which was acknowledged by the applicant to be in his writing? If so, could you take us to it?

MR WEINBERG:  Yes, Your Honour. Exhibit G - two questions

were acknowledged to have been answered by the

applicant. They appear in the second box on the

first page, small paragraph (e):

How were profits and losses shared?

The applicant conceded that "33 1/3 per cent each

partner" was in his handwriting, and in (f):

State whether the business was successful or not. Give the basis for your opinion.

Browne-Kerr 10 7/2/91

The words:

No effort made by other partners -

he conceded were in his handwriting. He denied

that any of the printed matter in the document was

his. He said that his brother wrote it. He said

that he took the document away after he had been

given it by the man Drenen, and that he took it to

his solicitor. He was too busy doing other things.

He left it there and his brother filled in the rest

of the form. He said that he and his brother had

gone to the same school and therefore his brother

had a similar handwriting, and that was his

explanation, that his brother had written what

appeared on the document.

I think it is also common ground that the signature which appears as the signature of the

bankrupt on the last page was his handwriting,

although he said in his unsworn statement that he

never signed his name as "D. Browne-Kerr", that he

always signed it as "Don Browne-Kerr". In fact,

the "D. Browne-Kerr" appears there and that, I
think, is acknowledged to be his signature signed

in the presence of someone at the office.

If that is not a basis upon which a jury could

be satisfied beyond reasonable doubt that exhibit G

was in the handwriting of the applicant, all the

circumstances under which exhibit G came into
operation coupled with the expert's opinion about
it, coupled with the fact that nothing has been put
to the expert about Malcolm having been the author
of that when the expert had Malcolm's own

handwriting because he was considering that for the

purpose of another prosecution against

Malcolm Browne-Kerr in which he was to be a

defendant, then we are at a loss to know frankly

when you get a case which is strong enough to go to

a jury on that issue. The point was not even

argued in the written submissions at all by my

learned friend.

So it is true to say that the Court of

Criminal Appeal did not deal with ground 3 in terms

and it ought to have, and we accept that, but it

did not. we say the ground was plainly untenable.

As to unsafe and unsatisfactory, Your Honours, we

note that the Court of Criminal Appeal referred to

that ground and said it had been argued in part

with grounds 8 and 9 and that is so. It is

certainly not dealt with separately under

grounds 2, 3 and 4 in the applicant's written

submissions. I think he says in his written

submissions that he will come back to it when he

Browne-Kerr 11 7/2/91

deals with grounds 8 and 9 or something of that

kind.	I think at page 7 he says: Further submissions on this point will be made
under Ground 8.

If one goes to ground 8, really it is submitted the

very same matters that we have just addressed that

indicate that the trial judge was entirely correct

to leave the question to the jury as to whether

exhibit G was proved beyond reasonable doubt to

have been the applicant's so that the expert could

place reliance upon it, answer the proposition that

the verdicts were unsafe and unsatisfactory.	You
did not only have the expert's evidence.	You had

the fingerprints as well in relation to two sets of

accounts. You had the cursive script which was

plainly linked to exhibit Fin relation to the

other count that the jury convicted on, and you had

the two credit cards found in the possession of the

applicant which he denied. He said they were taken

from some other person. They were not in his

possession at all.

In our submission this case is not remotely

close to an unsafe case and the grounds were

plainly untenable.

DEANE J: There is a paragraph on page 8 dealing with

counts 52 and 57.

MR WEINBERG:  Your Honour is referring to page 8 of my

friend's submissions?

DEANE J: Yes, which deals with unsafe and dangerous.

MR WEINBERG:  That is in relation to the credit cards where

it is put that it would be unsafe for the jury to

infer that merely because credit cards were found

in possession of the accused bearing the name

"Barnes" that it follows that he wrote on them. It

should be borne in mind that the defence of the

applicant in dealing with that point has to be

taken into account. His unsworn statement said

they were not on him at all.	They were on somebody
else.	We really do not see that that proposition

as it is put has any weight at all. There is

something about some identification by a witness

Barnett, but it is fair to say that point was not pressed at all.

It just seems to us, with respect, these were

the sorts of grounds that are often included in

grounds put in before a Court of Criminal Appeal.

One finds them all the time. I have been as guilty

as anyone else of drawing them in years past;

sometimes called holding grounds, sometimes general

Browne-Kerr 12 7/2/91

grounds. They are not always argued at any length,

they are not always pressed and the court should

deal with them, we accept that. But it does not

follow that in every case where a court has failed

to deal with one of them that this Court should be

used as an automatic conveyancing device to deal

with the the matter and then remit it back to the
Court of Criminal Appeal unless this Court simply
wishes to indicate its displeasure with what the

Court of Criminal Appeal did.

BRENNAN J:  Why was it that the Court of Criminal Appeal

could not be moved to consider these grounds if

that motion was deemed desirable?

MR WEINBERG:  Your Honours, the position was thought to be

that the judgment had passed into record. There

are authorities in Victoria which say that the

Court of Criminal Appeal has exhausted its powers

once a judgment has passed into record. The

Criminal Appeals Rules of 1965, which formerly governed this matter, provided that when certain

steps had been taken and the judgment of the Court
of Criminal Appeal had been published and the

registrar of the county court had been informed of

that judgment and placed it on the file, the

judgment had then passed into record and the court

had become, in effect, functus officio and the

court could no longer deal with any such matter.

That is an unfortunate situation. There are

authorities that we could refer Your Honour to that

deal with the point. There are two, in particular,

the cases of Reg v Billington, (1980) VR 625, and Reg v Rumpf, (1988) VR 466. Those decisions deal

with rule 35B of the Criminal Appeal Rules of 1965

of Victoria which were the rules that operated at

one point.

If I can take the matter a stage further, this

case was not, in fact, caught by those rules. The

rules had been amended in July 1988 and there would

now be some argument about whether that principle

still applies. There no longer is, in the rules of

the supreme court, any reference to something

passing into record. There is still a requirement

under paragraph 2.30 of the new Supreme Court Rules

of Victoria dealing with criminal appeals an

obligation to notify the court but the concept of

passing into record no longer appears in the
present rule.

My friend was given advice by the registrar that it was too late to do anything about the

matter because it had passed into record. There is

an affidavit in the application book to that

effect. We accept that he was given that advice.

Browne-Kerr 13 7/2/91

We do not accept that that advice was necessarily

correct. It might or might not be correct under

the new formulation but we do not wish to take a

point about that and say, "Well, he ought to have

done something other than what he was told to do by

tne court official."

BRENNAN J: It seems very regrettable, this tendency on the

part of profession to seek and act upon advice by

registrars as though that is a solvent of their own responsibility to their clients. The registrars of

the courts are not there to give advice to

litigants or their legal advisors. They are there

to be of assistance. But it is the duty of the

legal advisors for themselves and in the interests

of their clients to determine what the proper steps

are to take in the proceeding. But that is not

your concern, I suppose.

MR WEINBERG:  I can only say, Your Honour, that we accept

that he was told by the registrar that the matter

had passed into record, there was nothing more that

could be done, the court had completed its

processes and the only thing that could be done

would be to come to the High Court and seek special

leave. We accept that that was what he was told.

Now, that is really all we wish to put in

relation to that, Your Honour. We simply say those

grounds were plainly untenable, if one wishes to

use the language of Jones, or were not fairly

arguable, if one wishes to use the language of

Mickleberg where the Court varied the test slightly and spoke about whether the grounds that were not

dealt with were fairly arguable but we do not know

that there is any great distinction between

something being plainly untenable or something not being fairly arguable, but we would say on either

analysis none of these three grounds were and it is

for that reason that we resist the matter being

remitted.

It is no great consequence to us really,

Your Honour, if the Court did remit the matter. In

a month or two we would go back before the Court of

Criminal Appeal and argue just these points at

greater length before that court. But we say it is

a dangerous precedent to establish that there is,

as it were, a right to come to this Court because,

inevitably, there are long delays in bringing these

matters before this Court and it would be highly

desirable, in our submission, that this Court

should make it plain that unless grounds really are

tenable they will not be automatically remitted

back to the Court of Criminal Appeal and this Court

would be prepared to, at least, hear a brief

argument and consider whether the grounds are

Browne-Kerr 14 7/2/91

indeed plainly tenable or plainly untenable. I

believe that is all the Court wishes to hear from

me at this stage.

DEANE J: What is the time span between judgment being

available and the steps which are said to make it

impossible to take the matter -

MR WEINBERG:  In this case, Your Honour, what occurred was

that the registrar wrote to the county court on the

day after the judgment was handed down.	I do not
know if the affidavit says that but I have
ascertained that from the file myself.	He wrote to
the court the day after.	It may be that he,

perhaps, should not act so expeditiously.

DEANE J: So, for practical purposes, there was no

intervening period?

MR WEINBERG:  There was not very much, Your Honour. The

judgment would have been handed down in the morning

I believe, there would have been the entirety of
the day but we do not make any point of that,

Your Honour. If the Court pleases.

BRENNAN J:	Mr Crafti?
MR CRAFTI:	Your Honours, if I can deal with the last point

first and just very briefly refer the Court to the affidavit of James Thomas Stevens which appears at

page 562 of the second volume of the appeal book and indicate to the Court first of all that what

happened was that when judgment was delivered it

was handed down in a printed form; the court was

not properly constituted at that time and could not

be constituted until one of the learned judges of

the Court of Appeal returned from circuit. But the

circumstances are set out in full in that

affidavit, Your Honour, and I can only make this

submission that it was not for the want of trying

to bring the matter on that the matter did not, in

fact, get back before that Court of Criminal

Appeal.

BRENNAN J: Why, was there a motion? Was there a motion

made before that court?

MR CRAFT!:	There was no motion made because the court could not be reconstituted, they could not even hear a
bail application following the partially successful
appeal because they were not properly constituted
even to hear a bail application and the court referred the bail application to the practice court
because they could not be constituted until
Mr Justice McDonald, at the earliest, had returned
from circuit. The problem then arose, Your Honour - - -

Browne-Kerr 15 7/2/91

DAWSON J:	Was any application made?
MR CRAFT!:	No formal application was made but what was

indicated to me, and if I could say this from where

Lstand, Your Honour, what happened was that

because of the second ground of appeal what was

indicated was that it was a matter - because of the

second ground of appeal and the matters contained

in it, we were told that it would be pointless

going back to the Court of Criminal Appeal, the

whole of the matters might better be resolved by

this Court.

BRENNAN J: Told by whom?

MR CRAFT!:  By the registrar acting, as was indicated to me,

by the senior judge on the Court of Appeal;

conveyed to him by the senior judge on the Court of

Appeal and that they were not able to reconstitute

within an expeditious period of time in any event.

BRENNAN J: It is regrettable that the substantial interest

of the clients should be dealt with in so informal

a fashion.

MR CRAFT!: Well, unfortunately, the practice seems to have

developed in Victoria and it may well be

regrettable and I do not disagree with anything

Your Honour has said, but contact with the Full

Court in criminal matters, seems to be made through

the contact with the registrar.

BRENNAN J: The alternative way is for counsel to move that

court.

MR CRAFT!: That was the problem. It would have to be that

specific court comprising those specific members

and that was the part that, apparently, was

impracticable.

BRENNAN J: Or a notice of motion could be filed.

MR CRAFT!: Well, with the benefit of hindsight,

Your Honour, I certainly would have preferred to

have done it that way but it was the complication

caused by the second ground of appeal that seemed

to have led to the decision being made that it was
not the way in which the Full Court wanted to have

the matter resolved. But I am very much saying

this from where I stand and it is not on affidavit.

BRENNAN J: Yes.

MR CRAFT!:	Your Honour, so far as my learned friend's principal submission that these grounds are
untenable, may I make a number of very short preliminary comments and that is that of course the

Browne-Kerr 16 7/2/91

Full Court did not consider at all, either impliedly or otherwise, the grounds of appeal in

grounds 2, 3 and 4. And, it would be my submission

to Your Honours that it would be unreasonable to

::c.ead into it any sort of implied consideration.

What my friend has done is to engage in an

analysis of those grounds and the only way I can

fairly deal with his submissions is to go to some

of the evidentiary material myself, which was not

something that I had planned to do in any depth.

But if I can refer Your Honours to certain passages

of the transcript to make the submission that, in
fact, the grounds of appeal were more than tenable.

In my submission, I was rather hopeful that they might succeed. But, if I could take Your Honours

first of all to page 232 of volume 1 of the - - -

TOOHEY J: Just before you take us to the content of the

evidence, Mr Crafti, can you tell us the purpose

for which you are doing this?

MR CRAFTI:	The purpose is, Your Honour, to try and deal with my learned friend's submission that the
grounds 2, 3 and 4 were untenable.

TOOHEY J: Well, yes, I understand that but could you be a

little more specific?

MR CRAFT!:  To indicate to Your Honour - the broad thrust of

it was, Your Honour, that the expert engaged by the

Crown and who was the linchpin of the Crown case

had drawn an assumption based on what he was told

that the two documents that he had before him,

exhibit F and exhibit G, were both in the

handwriting of the accused. That was what he was

told and that was what he said he had based his

analysis on.

Having reached that assumption he then went on

to say in his evidence - and I was going to refer

Your Honour to this specific part - that his

conclusions would lose much of their validity if in

fact it turned out that one of the documents was

not in the handwriting of the accused.

BRENNAN J:	That is exhibit G?
MR CRAFT!:	Yes, Your Honour.

TOOHEY J: But that does not seem to bear upon ground 2,

does it? Mr Weinberg took us through grounds 2, 3

and 4, ground 2 being the inconsistency, and you

heard his submission as to the way in which the

jury can be assumed to have gone about its task.

Browne-Kerr 17 7/2/91

MR CRAFTI: It was put in this way, Your Honours, that it

was inconsistent in that the jury, having not been

satisfied beyond reasonable doubt that exhibit G

was in the handwriting of the accused and that the

e~pert not having been able to say that he analysed

any particular document based on one exhibit as

opposed to the other that the verdicts were

inconsistent because the jury had no evidence

before them that enabled them to say, based on the
expert evidence that they heard, that the

conclusion of the expert was reached on one of the

two control documents as opposed to the other.

Indeed, the expert went out of his way to say that

he made no consideration of any of the exhibits,

exhibits 1 through to 57, based on one of the

control documents as distinct from one of the

others.

DAWSON J: But the jury obviously found the control

documents a satisfactory basis for their verdict in

relation to some documents and not in relation to

the other. So that the differentiation between the

verdicts does not depend on the control documents

and if there is some other explanation for it,

well, then, where is the complaint?

MR CRAFTI: With respect, Your Honour, that is not what I

understood the way in which it was said by my

learned friend that the individual findings of

guilt on some and not guilty on the others could be

substantiated because what he was saying, as I

understood him, was, "The findings of guilty were based on the ones where there was handwriting and

the findings of not guilty was based on the control

documen-:. where there was printing."

But the expert himself went out of his way to

say he made no comparison either as between the two

control documents or that he was able to point to

any one of the exhibits, 1 through to 57, being the

documents that related to each count and say, "Yes,

well, I know that is in the handwriting of the

accused because I have compared it with exhibit F,
alone or with exhibit G alone."	He did not do that

- said he did not do that and went on to say that

much of his findings would lose their validity if

he was forced to say which particular exhibit -

these conclusions were based on a particular

exhibit; in other words, exhibit For exhibit G.

DAWSON J:  Is the jury entitled to make their own

comparisons?

MR CRAFTI: In my submission, Your Honour, they might be if

there was evidence given by somebody who was
familiar with the handwriting of the accused and

they could look at it in the light of that

Browne-Kerr 18 7/2/91

evidence. They did not have to have an expert. If

someone had come along, as, say, happened in

Ada.mi's case, to say, "Well, yes, I recognize this handwriting.", but this case was one which was

fought - - -

DAWSON J: But the accused admitted - there was no contest,

was there, about exhibit -

MR CRAFTI: Exhibit F.

DAWSON J:	F.
MR CRAFTI:	No, there was no contest about exhibit F.

DAWSON J: And there is handwriting there.

MR CRAFTI: But, in my submission, the jury is not entitled

to draw their own conclusions unaided by an expert

or unaided by the evidence of some person who knows

the handwriting of the accused in drawing the

comparison between a control document on the one

hand and the question document on the other.	In my
submission that is a matter for expert evidence	·
and, indeed, was treated by the Crown in this case
in the calling of Mr Talbot-Wilson·.

DAWSON J:  I do not understand that. If the jury have some

handwriting which they know to be the accused,

about which there is no contest, are they entitled

to take that document and compare it with the

disputed document and come to their own
conclusions?

MR CRAFTI: In my submission, not, because, for example -

just by way of an illustration, if someone had set

out, deliberately, to forge the handwriting of some

other person, it may well be beyond the expertise

of the jury to say, "The question document is in

the handwriting of the accused because it looks the

same.", when it might have been, for example, the

deliberate intent of some other person to try and

copy out writing - - -

DAWSON J: There might have been but is there any authority

for that proposition, the jury is not allowed to

come to their own conclusion?

MR CRAFTI:  I am not aware immediately of any authority.

The only case in which I am aware that that sort of

point has been considered was by this Court in

Ada.mi's case, (1961) 108 CLR 605, but the jury - -

TOOHEY J:  Is there anything in the Evidence Act of

Victoria?

Browne-Kerr 19 7/2/91

MR CRAFTI:  No, Your Honour, other than section 148, which

was the subject of the successful ground of appeal

in the sense that a retrial was granted, which

required the judge to form his independent
~sessment of the control document prior to

allowing it go to a jury and that the trial judge

did not do and on that ground the Full Court

granted a retrial, but apart from section 148 of
the Evidence Act, I am not aware of any other

section which deals with the way in which a court

should treat handwriting evidence, but the
submission I would make, Your Honours, is that

traditionally handwriting evidence was not left to
a jury prior to the implementation of section 148

or its various predecessors in other common law

jurisdictions, many of which seem to have similar

provisions to section 148 of the Evidence Act,
because historically it could not presumed that

juries could read or were literate or were capable

of making that sort of analysis for themselves and,

just by way of illustration, there is an old case,

Your Honour, prior to the implementation of that

Act, of Doe v Newton, briefly referred to in the

Full Court judgment. It is not in the list of

authorities that I had, but perhaps if I can hand

up to Your Honours hopefully sufficient copies, it

is a very old case reported in (1834-5) AD & E,

going back to about 1834, 1835, and if I can just

refer Your Honours to what appears on the bottom of

the front page of the judgment of the court, what

was said down the bottom was, quoting Lord Kenyon:

Some Judges have doubted of the policy of that

rule of evidence respecting the allowing of

the jury to judge by comparison of hands,

because often at a distance from the metropolis, the jury are composed of illiterate men, incapable of drawing proper

conclusions from such evidence. For my part,

I have been always inclined to admit it; and

shall do so in this case.

And, as I say, this pre-dates section 148 and the

only point I make of it is, of course, that I

suppose even in this day and age, one cannot be

absolutely confident that all jurors on juries are

literate, but at least historically it would seem

that it would be dangerous to allow jurors to draw

their own comparisons, unaided either by an expert

or unaided by someone who at least profess some

familiarity with the writing of the accused person,

because one does not know - - -

DAWSON J: When you say unaided, what do you mean? Either

they can do it or they cannot.

Browne-Kerr	20	7/2/91
MR CRAFTI:	Unaided by evidence, Your Honour.	That is what

I meant to say. Unless they were aided either by the opinion of an expert or - - -

DAWSON J: -No, they are able to make their own comparison or

they are not.

MR CRAFT!:  Yes, Your Honour, but the problem is that jurors

may feel reluctant or inhibited in confessing an

inability to make that comparison for themselves or

TOOHEY J:  I am not sure quite why the ability to make the

comparison depends upon literacy or illiteracy.

You are looking at something that is visual.	Does
it matter a great deal whether you can read or
write? He might be an artist and have no

difficulty in saying that those two are so similar

that one can infer that they were composed by the

one person.

MR CRAFTI:  Yes, Your Honour, but the problem with it is

that it puts the jurors in the position of being

experts themselves.

BRENNAN J:  But at all events, since 1836 jurors have been

doing it.

MR CRAFTI:  Only because of the implementation of the various Acts referred to in the - - -

BRENNAN J: Not necessarily. If the document was in

evidence because it was a document otherwise

relevant to the issue then the jurors were allowed

to do it according to this case.

MR CRAFTI: Well, in my submission to Your Honour the

problem is that this case was run as a handwriting

case based on the evidence given by an expert.	The
jurors were not given any instructions by the learned trial judge and, indeed, they formed the
two grounds of the grounds that were allowed by
leave of the Full Court to be added. They were not

given any instructions or charge as to how they

might go about that task or function.

BRENNAN J:  I think we understand the point that you are

making at all events, Mr Crafti.

MR CRAFTI:  Thank you, Your Honour. If I can go back then

to the question - - -

DEANE J: If the verdict were unsafe and unsatisfactory for

that sort of reason, the order would be a new

trial.

Browne-Kerr 21 7/2/91

MR CRAFTI:  For that particular reason, yes, Your Honour, I

agree with that.

DEANE J:  I mean, your unsafe and unsatisfactory point is

only relevant to the extent that it proceeds on the

basis that exhibit G would be properly admitted

after the proper processes had been observed and

says even on the basis that F and Gare both

accepted by the jury as being in the handwriting of

the accused, a verdict of guilty would, on the

evidence, be unsafe and unsatisfactory.

MR CRAFTI:  Yes, Your Honour. But what is submitted here is

that .the expert said in answer to a question put to

him that his evidence went out the window, so to

speak, if the jury did not accept that one or other

of the two standards for comparison were in the

handwriting of the accused and he used that

language in the passage at page 232.

DEANE J:  I do not want to delay you, but I think that

misses the point that the jury may have accepted that both were in the handwriting of the accused

and it may well be that G should have been before

the jury if the proper processes were observed and

on a new trial would be before the jury.

MR CRAFTI:  Yes, I follow Your Honour's point. I do not

know that I can advance the proposition any further

than to say that, yes, it may well have been before the jury but on the evidence before the court - and

this is the point - the appellant is entitled, in

my submission, to have his case determined by the

Court of Appeal on the evidence that was before the

court and not on what other evidence perhaps might

have been available had the trial proceeded in a

different way. That is the whole, as I understood

it, rationale behind Jones' case, that it allows

the Court of Criminal Appeal to give to the accused

the benefit of having his case decided on what

material was properly before the court, not what

might have been, because a retrial, of course,

gives the Crown the opportunity of, as it were,

repairing any holes in its case.

BRENNAN J: But, this is not a case of where there might be

a repairing of holes.	This is a case, on your
argument, wheie G got	in where it should not have
got in.

MR CRAFT!: Yes.

BRENNAN J:  So that if the Crown goes back, G may still get

in. If it does not get in, then your case will be

better on retrial.

MR CRAFT!: That is so, Your Honour.

Browne-Kerr 22 7/2/91

BRENNAN J:  On the material that is before the Court now, F

and G both got in.

MR CRAFTI:  But where the bottom line of the only evidence

Ofl handwriting before the jury was that he would

not be able to say, in respect of any given
question document, which documents were in the

handwriting of the accused unless it was proved

that both exhibits F and G were in the handwriting

of the accused. The submission on behalf of the

appellant is that there was no evidence if the jury

was unable to accept one or other of the documents

as being in the handwriting of the accused.

GAUDRON J: But what leads you to hypothesize that the jury

was unable to accept one or other of the documents?

MR CRAFTI:  I am adopting what my learned friend put to the

Court that of the 14 identities where the accused

was found not guilty they seemed to, in the main,

have related to the handwritten style of writing

whereas the four for which he was found guilty

seemed to have related to the cursive script.

GAUDRON J:  And the hypothesis, on Mr Weinberg's argument,

was that the evidence of the expert was accepted as

proof beyond reasonable doubt in circumstances

where there was other independent evidence which

tended to confirm it.

MR CRAFTI: That was so in respect of, I think, three of

them but not in respect of a fourth.

TOOHEY J: But that is not right, is it? Barnes, Williams

and Thomas had said there was independent evidence

which I understood to be in the form of

fingerprints and, in one case, the existence of

credit cards. As to the fourth, O'Brien, the

particular characteristic of the handwriting which

formed the subject of those charges was that it was

in cursive script and, it is said, more readily

linked to exhibit F.	Now, whether that can be made
good or not it does go to counter the suggestion

that the argument is a tenable one that you are

seeking to put before us.

MR CRAFTI:  The jury was troubled by this question of what

constituted a valid control document and asked a

question relating to it. That question is referred
to in the Full Court judgment and set out in the

Full Court judgment. They were obviously very

concerned as to what amounted to adequate proof of

what was the control document. I can only submit

to Your Honour that one really will never know what

was in the minds of the jury. There are all sorts

of possible hypotheses but, in the final analysis,

what we would submit is that the expert's evidence

Browne-Kerr 23 7/2/91

simply did not enable the jury to reach any

particular conclusion because he had worked on an

assumption that both documents were in the

handwriting of the accused person; an assumption

which he had never challenged or in any way put to
any consideration. Everything that he had

proceeded on, proceeded on what someone else had

told him about the authorship of the two control

documents. My learned friend seems to disagree

with that but, if I can take Your Honours to

page 646 of the appeal books?

BRENNAN J:  What are you taking us to this page for,

Mr Crafti?

MR CRAFT!:  I am sorry, page 312 of volume 2 - I am looking

at the transcript page.

BRENNAN J: What are we looking for here?

MR CRAFT!:  The assumption taken by the expert as to who he

believed was the author of each of exhibits F and

G.

BRENNAN J: But does that matter? If the jury found as a

fact that F and G were valid control documents and

if the expert proceeded on the footing that they

were then does not that provide the requisite link

between evidence and conviction?

MR CRAFT!:  No, Your Honour, because that in itself meant

that he proceeded on a hearsay that was not valid

or ever -

BRENNAN J: But it does not matter that he was acting on a

hearsay. If he takes two documents as being valid,

which the jury found were valid, that is

sufficient.

MR CRAFT!: Well, no, with the greatest of respect,

Your Honour, if the expert is given two documents and is told, "These documents are in the

handwriting of Donald Browne-Kerr, now have a look

at all these documents and say if they are in the same handwriting.", that is fine if the evidence,

ultimately, leads to the proof of what, we would

submit, was initially hearsay but the evidence in

this case, we would submit, did not.

BRENNAN J: That is another point but if the evidence did lead to the establishment of F and Gas being in the handwriting of the applicant then that is the

end of it, is it not?

MR CRAFT!:  That is of course where the Full Court correctly

held that the trial judge was wrong in not holding

Browne-Kerr 24 7/2/91

a voir dire to determine that point

preliminarily -

BRENNAN J:	I understand that.
MR CRAFTI:	But it is not the end of it, in my submission, because where the assumption of an expert is based
on a hearsay, in my submission - - -

DAWSON J: But the jury were told that they had to find

beyond reasonable doubt that the control documents

both were in the handwriting of the accused before

they could proceed on that assumption, were they

not?

MR CRAFTI:  Yes, Your Honour.

DAWSON J: And so they, in coming to a conclusion on the

basis of the documents, must have found that

because we must assume that they obeyed the

instruction.

MR CRAFT!:  I understand what Your Honour says except for the finding of not guilty in respect of 31 counts.

DAWSON J:  There is another explanation for that. They may

have found the control documents were in the
handwriting of the accused but nevertheless they

were not sufficient in certain cases where there
was not corroborative evidence to remove any

residual doubt they might have.

MR CRAFT!:	In my submission to the Court, where the expert himself does not condescend to saying which
exhibits can be proved by reference to which of the
control documents, that is a matter which the Court
of Criminal Appeal should have looked at, in my submission, as to - - -

DAWSON J: What do you mean by that?

MR CRAFT!:  The expert was unable to say and was asked on

several occasions, "Can you say whether exhibit

35", just to pluck a figure out of the air,

"exhibit 35 is based on exhibit For exhibit

G" - - -

DAWSON J: And he said both.

MR CRAFT!:  And he said, "I am unable to do that".

DAWSON J: It is either one or the other - - -

MR CRAFTI:  One or the other and I do not know which one.

DAWSON J: Very well.

Browne-Kerr 25 7/2/91

MR CRAFTI:  And in my submission to the Court all I am

submitting is that the Court of Criminal Appeal

should have considered whether that was a proper

method of allowing that evidence to go before the

j~ry. In other words, whether a conviction based

on that sort of evidence was safe or unsafe.

BRENNAN J: Well, that is the basis of your argument?

MR CRAFTI: That is the submission that I am putting to

Your Honour and the Court of Criminal Appeal simply

did not consider those particular arguments as to

whether that was a proper way of proving the

particular questioned documents.

BRENNAN J: Yes.

MR CRAFTI: That is really as far as I can advance that

particular argument.	Does Your Honour want me to
move to ground 2?

BRENNAN J:	We will hear Mr Weinberg in reply on ground 1.
MR CRAFTI:	May it please Your Honour.
MR WEINBEREG:	Your Honours, I do not think there is

anything that we desire to say in reply.

BRENNAN J:  The Court will adjourn briefly in order to consider the course it will take.

AT 12.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.49PM:

BRENNAN J: Although the Court of Criminal Appeal did not

consider grounds 2, 3 and 4 of the grounds of

appeal to that court, the majority of this Court is

of the view that none of the grounds which might

have led to an acquittal was tenable. That being
so, the failure of the Court of Criminal Appeal to
consider any such ground would not justify the

grant of special leave to appeal to this Court.

The question then arises as to what course

should be taken with respect to the application for

special leave to appeal on ground 2.

MR CRAFTI:	May it please Your Honours, it is submitted that in the course of giving its judgment the Court of
Criminal Appeal said something as to the onus of

Browne-Kerr 26 7/2/91

proof in respect of section 148 of the Evidence Act

which is in direct conflict, not only with the

British Court of Appeal, the South Australian Full

Court but also, as we now know, the Court of Appeal

iF New Zealand - - -

BRENNAN J:	Yes, we appreciate the nature of the argument you wish to deliver, Mr Crafti, the question is, if
you were to convince this Court that the Court of
Criminal Appeal was erroneous in the view which
they took of that, the order for a retrial would
still stand, would it not?

MR CRAFTI: It would yes, indeed, Your Honour.

BRENNAN J:  The question then arises as to whether it is

open to you to seek special leave to appeal when

the relief that you seek would not involve

disturbing the order of the court below and I do

not know whether either you or Mr Weinberg has any

submissions to make on that point. If so, we would

hear them now and we would give an intimation to

counsel in the next case.

MR CRAFTI:  I cannot refer Your Honours to any particular

authorities as to the course of action that this

Court should adopt. I only make this submission,

Your Honours, that it will inevitably mean that the

retrial will proceed on a proposition of law which

will necessarily have to be determined by the trial

judge in the new trial which, we would submit, is

plainly in error and is in contradistinction to

three other Courts of Criminal Appeal.

BRENNAN J: Yes, we understand that argument.

MR CRAFTI:  And that in those circumstances, because it is

inevitable that the situation will arise, it is

better to correct the problem whilst the present

applicant ts here before the Court with the issues

clearly in focus rather than having to go back,

have a retrial, another appeal to the Full Court

and then a further appeal to the High Court to have

them then consider the matter which is presently

before this Court because that would have to be the

way in which you would have to go should the matter

ultimately proceed adversely to Mr Browne-Kerr.

Obviously, a trial judge will feel compelled

to follow the judgment of the Full Court of the

Supreme Court of Victoria and it would mean that if he were to be convicted it would inevitably bring

the matter back before this Court as being the only

court that could satisfactorily resolve the
differences between the various Courts of Appeal.

I do not think I can take that any further.

BRENNAN J:  Mr Weinberg.

Browne-Kerr	27	7/2/91
MR WEINBERG:	If the Court plea	5 1 we would submit that the

Court should not proce, to deal with ground 2 at

this time. It is poss~~le that the applicant would

be acquitted at any subsequent trial in which case

there would be no occasion for the matter to

proceed any further in respect of this issue and

the point would, in fact, become a hypothetical

point.

Alternatively, it might be that a judge

hearing the case could form a view by which he

might say, "I am satisfied on the balance of
probabilities as required by the Court of Criminal

Appeal but, if required, I would indicate that I would also be satisfied beyond reasonable doubt as

to the genuineness of exhibit G.". If that were

done again the matter would go no further in

respect of that particular ground and we would

sufficiently confident of the evidence that we

could muster in support of exhibit G that we would

be urging any judge hearing a retrial to express

his views in both way in order to avoid that

particular problem arising.

The section does not come into operation

terribly often, we might say. The point of general

principle, of course, is important; we do not

doubt that. But section 148, in practical terms,

does not come into operation very often and we

would simply submit that this Court should await a

more auspicious and proper vehicle for resolving

whatever dispute there might be between the courts

of other countries and the courts in this country.

We do submit, and will submit of course, that this

Court has already ruled upon the matter in a fashion which effectively decides the point in

Wendo's case. Really, what my friend would be

inviting the Court to do would be to, at the very

least, distinguish Wendo and more properly to

overrule Wendo.	That would be our submission to
the Court.

BRENNAN J:  Do you have any submissions to make as to

whether the Court has jurisdiction to entertain an

appeal against an order when the order is not

itself sought to be set aside?

MR WEINBERG:  Your Honour, it is not a matter that I have

addressed or given thought to and I have not

examined the authorities so it would be of little

assistance to the Court.

BRENNAN J: Yes.

MR WEINBERG: If the Court pleases.

BRENNAN J:  Do you have anything to say in reply, Mr Crafti?

Browne-Kerr 28 7/2/91

MR CRAFTI:  No, Your Honour, I have the same problem as

Mr Weinberg. I have not considered the point in

exactly the same way as Your Honour has formulated

it.

DEANE J: Putting that to one side, what is put against you

is, even if one take the view that the point is an open and important one, in the factual context and

other circumstances of this case, this is not an

appropriate vehicle. What do you say to that?

MR CRAFTI: Well, I would submit that it very much is an

appropriate vehicle because, in this case, the
issues to be considered were raised full on by the

Full Court. They certainly gave a good deal of consideration to Wendo's case; had a look at most

of the authorities except for the New Zealand Court of Appeal decision and considered the various cases before deciding that they were not going to follow

the other courts of appeal. And, in my submission,

this is an appropriate vehicle because of the care
and consideration that the Court of Criminal Appeal

in Victoria did give to that very point as to the

onus of proof.

DEANE J: Yes.

BRENNAN J:  The Court will consider the course it should

take during the lunch time adjournment.	The Court
will adjourn until 2.15 pm.

AT 12.57 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

BRENNAN J: 

The majority of the Court is of the opinion that

this is not a suitable vehicle for raising the
question to which the second proposed ground of

appeal relates. That being so, special leave to

appeal will be refused.

AT 2.18 PM THE MATTER WAS ADJOURNED SINE DIE

Browne-Kerr 29 7/2/91