The mine consists of a benched open cut area and a mill. The ore is extracted from a pipe and, at an earlier stage, from an alluvial area. It is delivered by haulpacks to the mill where it goes through several stages of concentration. The first major point of concentration is the heavy media separation plant where the ore is passed through a flotation system and the heavier material, including the diamonds, sinks to the bottom to form a concentrate. From that point, the concentrate is moved under a high level of security, including closed-circuit television, and only behind locked screens and locked gates. The final stage of concentration is a spiral elevator and this is one of the sources where it is claimed that the thefts occurred.

The manager of the security was Mr Corfield who was stationed at the company's Perth office. He was originally a police officer in the United Kingdom and subsequently a police officer with the Australian Federal Police. Following that, and prior to his being engaged by Argyle Diamond Mine Pty Ltd, he was employed as the national security manager for Australian Airlines. A senior security officer at the mine was the person referred to in the indictment, Mr Crimmins. He was, subsequently, the most senior officer at the mine. The Crown case was that the applicant persuaded Mr Crimmins to remove gemstones from the mine and to deliver them to the applicant, who arranged for them to be cut and, in the main, sent overseas for sale. Mr Crimmins had access to a packet of diamonds which had been returned to the mine for further acid cleaning. Mr Crimmins said in evidence that he used this as the initial source of supply to the applicant. Mr Crimmins said, following that, he took diamonds that had spilled from the spiral elevator. This was subject to spillages and the security system required a security officer to be present while one of the workers placed the spillage back onto the elevator. It was, however, easy for Mr Crimmins to take some of the stones and to avoid the security control. The Crown case was that Mr Crimmins would select gemstones from this source and keep them until he had a sufficient quantity to deliver to the applicant. The mine is the greatest producer of diamonds in the world, but most are industrial diamonds and only five per cent are gemstones.

The principal area of the Crown case was the direct evidence of Mr and Mrs Crimmins, corroborated by admissions to persons with whom the applicant was dealing and, on the Crown case, corroborated by other circumstantial evidence. The applicant acknowledged that he was handling unwashed and uncut diamonds. The Crown case was that some of these diamonds had characteristics of the Argyle mine. The evidence was that unwashed diamonds never left the mine. They were acid-washed at the mine and delivered to the premises in West Perth. The applicant's case was that the diamonds he was handling came from overseas sources. Diamonds of this type were commonly referred to by the witnesses as "rough diamonds", but this term is somewhat imprecise, as there was evidence that a diamond remained a rough diamond until the first stage of cutting. In the main, the term was used synonymously with an unwashed diamond. The Crown evidence showed that the applicant delivered rough diamonds to a diamond cutter in Perth for cutting. There was evidence as to how he sold them overseas and of moneys he received. The applicant's case was that these were diamonds he had honestly acquired. The Crown case was that while some were in this category a large number had come from the mine. The Crown case relating to how the applicant was alleged to have disposed of the stones was that he contacted the principal of a Perth jeweller, Mr Devenish, and said words that made it clear to Mr Devenish that the stones were being stolen from the mine. Mr Devenish's evidence will be looked at in greater detail when considering the grounds relating to accomplices and corroboration. Mr Devenish refused to handle the stones, but introduced the applicant to a diamond cutter, Mr Newton. Mr Newton was not informed as to the source of the stones.

The company became aware that diamonds were being stolen from the mine and this resulted in two successive police inquiries. These inquiries did not provide evidence of any offence by any particular person. This did not occur until such time as Mrs Crimmins went to the police and reported the matter, including her part in it. The Crown case is that Mrs Crimmins discovered the theft while living with her husband, Mr Crimmins, and joined the conspiracy. She subsequently separated from Mr Crimmins and, on the Crown case, commenced to live with the applicant and when she fell out with him she reported the matter. The Crown case is that one of the reasons the first inquiry was not successful was because Mr Corfield realised that it was highly likely that security officers were involved in order that the diamonds could get past the security system and he, therefore, took Mr Crimmins into his confidence and assigned him to represent the company at the first inquiry. It is part of the circumstantial evidence that the applicant took steps to bribe some of the police officers conducting the inquiry in order to impede it. This is a general outline of the Crown case. I shall now refer to some of the evidence in greater detail.

Mr Crimmins was a principal Crown witness. He had earlier pleaded guilty to conspiring with the applicant in the terms of the first count and was sentenced to a term of four years' imprisonment. This conspiracy was alleged to have occurred between the 15 March 1988 and 9 August 1993, the date of the applicant's arrest. It was alleged that this conspiracy was between the applicant, Mr and Mrs Crimmins and others.

Mr Crimmins' evidence was that he had served in the police force in Victoria including the CIB. He resigned and later became a security officer. On 26 June 1985, he commenced employment at the mine as a senior security officer. He was required to work for continuous periods of two weeks at the mine. He would then have two weeks leave which he would spend in Perth with his wife and children. Mr Crimmins had met the applicant in Melbourne, as they were both keen supporters of the German Shepherd Dog Association. When in Perth, Mr Crimmins continued to come into contact with the applicant through being involved in showing German Shepherd dogs. Mr Crimmins said that on a number of occasions during 1987, the applicant asked him if he could obtain diamonds for him. At first he treated the requests light heartedly but realised that they were becoming serious. Circumstances arose where a container of diamonds, which had been returned to the mine for further cleaning, came into Mr Crimmins' possession without being in the books of the company. All diamonds were acid cleaned at the mine and sent to the Perth office. On occasions some had to be returned for further cleaning as impurities would be found in crevices. Such stones looked acid-cleaned to the naked eye. He said that on one occasion three or four of these bottles containing such diamonds came into his office. He instructed an officer to take them to the recovery building, but the officer left one of the bottles on the desk. Mr Crimmins said that he was then called away to another job, so he put the bottle in his own personal locker to secure it while he attended to his other work. The bottle contained 34 to 36 stones. Mr Crimmins said he had every intention of returning the bottle to the recovery room, but this occurred at the end of a 14-day shift and he never got round to returning the bottle to the recovery area. He said that the paperwork seemed to account for it, but that the bottle was actually in his locker and had not gone back through the system. He said in cross examination that there had been a mistake in the paperwork. He returned to Perth leaving the bottle in his locker. The applicant again asked him for diamonds. Mr Crimmins, knowing he had this bottle, yielded and agreed to bring some stones on the next trip. He said that he took a dozen stones from the bottle, placed them in a film container which he gave to the applicant on his next trip. He said this occurred in October or November 1987. Mr Crimmins said he met the applicant in the applicant's car, which was parked in a car-park. He said that the applicant took the diamonds out of the container, checked them in his hand and said that the size was right for what he required and he paid a sum of either $500 or $1,000 in cash for the diamonds.

Mr Crimmins said that he gave further stones from the bottle to the applicant in January or February 1988 and the remaining stones from the bottle were delivered to the applicant in March-April 1988. He received $2000 for this last delivery. He said the applicant continued to make requests and made veiled threats that the matter would not be reported if he continued delivery. The stones delivered to date, being from the bottle, would appear, to the naked eye, to be acid-cleaned. As this source had come to an end, Mr Crimmins told the applicant that further stones would not be acid-cleaned. He gave evidence as to another source. It was a regular occurrence in the mill for there to be a spillage of crushed ore from the spiral elevator. The procedure was for one of the mine operators, in company with a security officer, to attend the area, sweep up the spillage and return it to the elevator. Mr Crimmins said that when this occurred there were stones everywhere and only two people in a rather large area, each doing something different, so it was possible for him to take possession of stones from the spillage. He would remove them from the area and take them back to his security room and select the gemstones. For the ensuing 12 months he would supply the applicant with diamonds from this source. The initial delivery of stones from the bottle was prior to the date of the commencement of the first count. The date in the indictment corresponded with the final of delivery of stones from the bottle but was prior to the first delivery of stones from the elevator.

Mr Crimmins said that the applicant was requesting diamonds of a larger size and requested him to look out for more "pinks". Stones of a particular intensity of pinkness were peculiar to the Argyle mine. Mr Crimmins (T/S 193) referred to an occasion when the applicant showed him a pink diamond, which the applicant said had been cut out of one of the stones delivered by Mr Crimmins. He said it had a crack in it, but because it was unique it was worth many thousands of dollars. Mr Crimmins thought he had supplied seven or eight pink diamonds to the applicant. Mr Crimmins said in respect of the security system that, as he was a senior security officer, he knew the system and was able to walk through it. Mr Crimmins' evidence referred to disputes arising with the applicant by reason of immediate payment not being made to Mr Crimmins. He said the applicant discussed with him how the stones were being shipped overseas and the name "Horovitz" was mentioned. The applicant explained how he did have access to unwashed diamonds.

Mr Crimmins endeavoured to keep what he was doing secret from his wife, but in May or June 1989 his wife found him washing stones in the bathroom basin. He told her what he was doing. Mr Crimmins said that he told the applicant that his wife had found out what was happening, but she accepted the situation and would not be reporting it. He then said in evidence that she embraced the situation pretty fully and it excited her. He said that after his wife had discovered what was happening he continued to meet the applicant, but not on as many occasions. He said that his wife then offered to deliver the stones so it would not be necessary for Mr Crimmins to see the applicant. Mr Crimmins was also dissatisfied with the amounts of money being paid by the applicant and the regularity of the payments and he considered that his wife would be in a better position to attend to that area. During this period, Mr Crimmins gave diamonds to his wife who, in turn, delivered them to the applicant and received some payment.

Mr Crimmins said that he was becoming increasingly more uncomfortable with what was happening and he was looking for a way to extricate himself, so he applied for a position outside the mine designated area. He obtained the position by way of promotion; the position being a superintendent with the security department, which was an administrative role. He commenced this work in January 1989. He said that he still had access to those areas from where he had stolen the diamonds, but there was no need to go there. He told the applicant that he was no longer in a position to supply him with any diamonds because he was away from the area where he could obtain them. He said the applicant then asked him to find another person who could obtain the diamonds from the area. The second and third counts relate to approaches made to other people and will be referred to later.

Mr Crimmins said that in the early part of 1989 his wife asked him for some hydrochloric or hydrofluoric acid. This was the acid used to treat unwashed diamonds. Mr Crimmins said he was very concerned about this, by reason of the danger of using hydrofluoric acid. His wife said that the applicant had requested it. Mr Crimmins did not supply it but his wife later told him that the applicant had been using it and his face showed signs of it as it was "pockmarked".

Mr Crimmins said that his superior, Mr Corfield, phoned him and told him that diamonds from the mine had been found on the person of a diamond-cutter and that the diamond-cutter was a South African national in Perth. Mr Corfield said the police were investigating this. This caused great concern on the part of Mr Crimmins. He told his wife what had occurred and he said that shortly after that the applicant phoned him, saying that the diamond-cutter had been caught and the applicant said, "As long as, to my knowledge, if he shut up and I shut up there was no connection between the two of us and including the wife" (TS 202). The applicant said that this particular cutter was the person to whom he had been supplying the stones. The applicant told him a police investigation had commenced and it was being conducted by Detective Sergeant Thoy and Detective Gwilliam. Mr Corfield also kept Mr Crimmins informed and introduced him to Detective Thoy. This was the first police inquiry which commenced in February 1990. The matter had been reported the previous November. The investigating officer spoke to Mr Crimmins about the investigation and mentioned the name of the applicant. Mr Crimmins denied all knowledge of the applicant. Both the investigating officers and Mr Corfield took Mr Crimmins into their confidence as to the state of the investigation. Mr Crimmins passed this information to the applicant and told his wife that she should deny any connection with the applicant. He also said that she should not be seen with him. Mr Crimmins said he passed on confidential information to the applicant. While the investigation was under way, Mr Crimmins said that his wife asked him on behalf of the applicant to obtain from the mine a sample of lamproite. He obtained it and placed it in a match box and gave it to his wife. He was later told by his wife that the following was the purpose (T/S 205):

Did she name the person?---I said his name before - Mr Horovitz, who had stated that he was going to apply this lamproite rock, the host-bearing rock, which is unique to the Argyle pipe, to stones that he had in his possession in Europe, that if there was an investigation into them they were going to - they could say then that this soil came from a particular site elsewhere, ie, Russia or South America or whatever - and it was the same type of soil.

By November 1989 the investigating officers saw Mr Crimmins and said that they had established a connection between the applicant and Mr Crimmins through their association with dogs. They arrived with a search warrant and conducted an extensive search of the house and interviewed Mr Crimmins. He then admitted the link with the applicant. Mr Crimmins, by letter dated 14 November 1990, resigned his position from Argyle. He had by then separated from his wife. Mrs Crimmins' evidence was that by this stage she had commenced a relationship with the applicant. She said that it had become sexual in February 1990. Mr Crimmins went to live in Victoria. He remained in touch with his wife, who told him that the police inquiry had foundered because they could not make any further connection between himself and Mr Roddan, apart from the dog connection.

Mr Crimmins gave evidence as to the following conversations with the applicant during the first investigation (at T/S 213)

In your discussions with the accused did he ever express any opinion to you about the police officer named Thoy? ---Yes, he did. He advised me that he knew that Thoy was a straight copper, as he put it, and that he couldn't be - he couldn't be bought off. He advised me that he had sources.

I shall now set out what Mr Crimmins said his wife told him followed by what he said the applicant told him (at T/S 214):

What did she say about it?---She informed me that the investigation was floundering through lack of being able to really establish a contact, apart from the dog situation with Roddan and myself, and that

Did she ever say to you anything that the accused had told her?---She told me that the accused had some friends in the police force and that he had found out through these friends in the police force details about Detective Thoy's personal and private business situation. His wife apparently had a delicatessen of some sort and

What was the relevance of that that she was telling you about?---It was in relation to the accused being able to exert some sort of pressure on Detective Thoy to either stop the investigation or to that effect.

Did you have a conversation with Mr Roddan about that aspect?---Yes, I did.

And what did the accused tell you himself?---He told me also that he knew that Detective Thoy was straight. He said that the only way that he might be able to get to him, to have some influence on him to call off the investigation, was to have something done to his business that his wife ran, and he mentioned the fact that perhaps the place should get burnt down.

Mr Crimmins said that the applicant from time to time said that he had a number of policemen "in his back pocket" and indicated that favours were owed (T/S 215). No charges were laid as a result of the first police investigation and in about December Detective Sergeant Thoy was ordered to write it off.

A second investigation commenced in 1992 headed by Detective Sergeant Noye and assisted by Gwilliam. Mr Crimmins said that the applicant suggested he remained interstate. Mr Crimmins said that the applicant told him that he, the applicant, had paid for Noye's travel to Victoria. The evidence in regard to this was (T/S 219)

I also asked him to verify his connection with Mr Noye because his name had been mentioned. Mr Roddan advised me - he said, "Don't worry about it" and he used that expression again that he had Mr Noye, Detective Noye in his back pocket and he was just coming over to put a face to me and to make sure that I in actual fact was going to keep my mouth closed and that Mr Roddan advised me that in actual fact he was paying for Mr Noye's trip over and it was in the vein of being a holiday type situation.

Detective Sergeant Noye did travel to Victoria in late 1992 and spoke to Mr Crimmins. Mr Crimmins and Detective Noye went out to dinner together, but the detective did not speak to Mr Crimmins as a suspect and he later stayed overnight at Mr Crimmins' residence.

Mr Crimmins made application to the company to be reinstated in his position. He was told if the inquiry came to nothing, he would be welcome to re-apply. In January 1993, Mr Crimmins was still in Victoria and was rung by his former wife. His wife told him that she had been to the police and made a statement in relation to the involvement of both the applicant and himself in the affair. Mr Crimmins, who had previously thought himself secure, said that he now realised it was a terrible situation and "everything sort of came crashing down at that stage". Mr Crimmins was travelling around Australia and made an appointment to see the police in Kununurra to "make a clean breast of everything" and advise them of his involvement. He there spoke to Detective Gwilliam and told the officer what had occurred. He was charged with conspiring with the applicant to steal diamonds.

I shall now refer to the evidence of Mrs Crimmins. She had earlier pleaded guilty to the three counts and received a good behaviour bond. She was employed as a representative selling cosmetics and products to chemists and hairdressing salons. In February 1989, she found her husband washing about 20 diamonds in the wash-basin in the bathroom in circumstances to which I have earlier referred. She gave evidence of meetings, at which she was present, between her husband and the applicant and she referred to seeing money being paid over. She said that the applicant promised her that she and her husband would be receiving enough money to live a life of luxury and they would receive millions of dollars. She gave evidence of selling cut stones on behalf of the applicant to persons in Perth. She would sell them to friends without a receipt. She would sell stones and give the proceeds to the applicant. She gave evidence of admissions made by the applicant to her that some of the stones he was receiving were stones stolen from the Argyle Mine by her husband. She said that the applicant told her how the diamonds were going overseas with air hostesses who put them in Juvena cosmetic creams. Mrs Crimmins said that she noticed marks on the left side of the applicant's face and on his arms and stomach. He told her they were welding burns and she gave him some cortisone cream. She said that the applicant spoke to her about acid in relation to diamonds and he would obtain it under the pretence that he was using it to clean gold.

She said the applicant told her of the police inquiry which had commenced in February 1990 and, as a result, there was a meeting between her husband, herself and the applicant in which it was decided that she should take the diamonds to the applicant on behalf of her husband. She described how the applicant then told her that he would contact Mr Horovitz in Switzerland, with a view to obtaining false papers to show that the stones belonged to the applicant. She referred to the two incidents after the inquiry when her husband delivered stones to her to give to the applicant. She said the first time her husband delivered some stones in a cigarette packet and she delivered this to the applicant and received money. She said the second occasion was prior to her husband resigning from the mine. She said they were separated, but she went to see her husband, who gave her a large pink diamond. She obtained a lipstick container, wound up the lipstick and put the diamond in it underneath the lipstick and delivered this to the applicant. The applicant told her how good it was and that it "was really pink". She said it was a rough diamond, straight from the mine. The applicant said he would not have anyone in Australia cut it, as it was too precious. She said that particular diamond was sent to Horovitz and that it was taken to Hong Kong and then taken to New York. Mr Horovitz took it to New York with a view to obtaining a certificate of its being a flawless stone. It just fell short of that category. With that certificate, it would be worth $3,000,000, but without the certificate it would be worth $800,000.

She said that the applicant asked her to phone her husband at the mine site and ask her husband to obtain soil from the mine. Her evidence in respect of this was (T/S 367):

Did Mr Roddan ever say anything to you or make a request to you about soil from the Argyle mine?---Yes, he did. He asked me if I could phone Barry at the mine site and ask Barry to get some soil from the mine and so I did so. I phoned Barry and asked him for that.

What did you say to your husband?---I just asked him to bring some dirt down.

How was it brought down?---It was brought down in a - I think it was a film container or a couple of film containers.

Was it a huge amount or a small amount of dirt?---No, it was only a small amount.

Did Mr Roddan tell you why he wanted that?---Yes, he did. That was to be sent over to Teddy Horovitz in Switzerland and he was going to take it to Belgium.

Why?---Because that's where they were having the stones tested and that way they were going to put some of the soil with other specimens from other diamond mines, one being - I think there was one in South Africa and the other near Argyle, the one mentioned earlier, and they were going

For what reason?---That was to completely disguise all Argyle's professional testings and analogies on anything to prove Argyle wrong.

Did he explain how it would prove them wrong?---Yes, by saying that the soil was available at other mine sites other than Argyle.

Did Mr Roddan say what he would do with the results of whatever testing Mr Horovitz managed to achieve?---Yes, he was taking civil action against the Argyle diamond mine.

The witness then spoke of payments of money for the purpose, as described to her by the applicant "to have Robin Thoy burnt". She said that the applicant told her that a police raid was to happen at his home before it actually occurred. She said that prior to the police raiding the house, he gave her a quantity of stones to hand to a Robert Gardner for safekeeping.

In September 1991, she said she lost her job and the applicant suggested she should work as a receptionist in a brothel. She ended up working as a prostitute because there were no jobs as a receptionist. In 1992, the applicant told her that he had obtained a South American passport for $50,000 so he could "skip the country" if the police ever found out about his activities. She said that during the second inquiry, Detective Sergeant Noye prepared a statement for her to sign which did not contain the truth. He gave her three copies, one to give to the applicant, one to her husband and one for her to sign. She was asked to check with the others if it was all right to sign first. She gave a copy to the applicant who said, "That's fine".

I shall now refer to the evidence relating to count 2. In January 1989, Mr Crimmins became security superintendent and as a consequence it would be more difficult for him to obtain access to the mill. Mrs Crimmins' evidence was that she was asked by the applicant to make an approach to Mr Anderson, whom the applicant thought was a diamond sorter at the mine. She said that the applicant "asked me to approach him - whether he was prepared to steal diamonds" and she agreed to do this. Mr Anderson had obtained a position at the mine on the recommendation of Mr Crimmins. She said she was better friends with his wife, so she decided to make the approach to his wife and there was an opportunity to do this in May 1990, when she would be staying with them for a week. Before going there, she sent Mrs Anderson a diamond as a present to give to Mrs Anderson's mother. Mrs Crimmins said that she told Mr Anderson that the applicant wanted Mr Anderson to steal diamonds for the applicant and that the applicant was offering $10,000 a month, with a six-week delay for payment. She felt sure that she mentioned that the diamonds were going out of the country. She said that Mrs Anderson returned the diamond and the Anderson's rejected the offer.

Mrs Anderson gave evidence indicating that an improper approach was made by Mrs Crimmins but in different circumstances. Mrs Anderson's evidence was that the times when the events occurred were different from Mrs Crimmins' evidence. She said she did send the diamond back but that it was after that that Mrs Crimmins suggested that her husband was in a position to steal diamonds from Argyle. She said her husband was then working as a plant operator. She said that Mrs Crimmins told her that the applicant asked her to make the offer. She said Mrs Crimmins described how her husband was stealing diamonds from Argyle, delivering them to the applicant and they were going overseas. Mrs Crimmins told her that they would be very rich if they complied. Mrs Crimmins suggested that they could have a Range Rover, instead of a cheaper model of vehicle they were then buying. Mrs Anderson said she later discussed this with her husband, who was very angry about it. The offer was rejected.

The third count related to an agreement claimed to be made between the applicant and Mrs Crimmins in respect of persuading a Mr Wiig to become a security officer at the mine, with a view to stealing diamonds. Mr Wiig was a former policeman from New Zealand and was a friend of Mrs Crimmins. Mrs Crimmins said that the applicant asked her to arrange a meeting with Mr Wiig and this meeting took place in a coffee shop between the applicant, Mrs Crimmins and Mr Wiig. This would appear to be April 1991. Mrs Crimmins said that the applicant asked Mr Wiig to fill in an application form to become a security officer at the mine by reason of his former police experience. The applicant then said to him that if he was up there and was able to steal diamonds, he would be making "his $10,000 a month". He then indicated that this would not be from the mine, but from the applicant. He said that the applicant explained how they would be sent to Mr Horovitz. She said that Mr Wiig seemed to be overawed and said he would consider the matter, but he did not proceed with it.

Mr Wiig gave evidence of a meeting in a cafe in Northbridge. He thought it was around 1992. He was giving evidence in 1996. His evidence confirmed that a conversation of the nature outlined took place. He said, although at the time, because of his friendliness with Mrs Crimmins he expressed interest, he had no intention of taking the matter up. He said at the conversation one or other of them said that diamonds from Argyle were being sent overseas to Switzerland to be cut and polished. One of them said that it was Mr Crimmins "as head of security" taking them. The conversations he outlined indicated that the diamonds were being stolen by Mr Crimmins He said that Mrs Crimmins later approached him and asked him if he had applied and he said, "Definitely not" and made it very clear he would not do so. He said that on another occasion Mrs Crimmins showed him a valuable diamond, saying it had come from Argyle.

I shall now refer to that part of the Crown case relating to how the applicant was alleged to have disposed of the stones. He contacted the principal of a Perth firm of jewellers, Mr Devenish, and said words that made it clear to Mr Devenish that the stones were being stolen from the mine. Mr Devenish's evidence will be looked at in greater detail when considering the grounds relating to accomplices and corroboration. Mr Devenish refused to handle the stones, but introduced the applicant to a diamond cutter, Mr Newton. Mr Newton was not informed as to the source of the stones. His premises were near Mr Devenish's. In March-April 1989, when Mr Devenish introduced the applicant to Mr Newton he told him that the applicant was in a position to provide Mr Newton with rough diamonds for cutting in the factory. Mr Newton welcomed this, as he saw it as new business. Hitherto, Mr Newton had not been cutting rough diamonds. Within a month or so of this introduction, the applicant returned to Mr Newton with rough diamonds and asked Mr Newton to cut and polish them. He said that the applicant made a number of trips to his place over a period and in that time brought in 100 to 150 diamonds to cut. He said that the applicant made a request to him not to keep any records. He found this request unusual. The range of colours was from brown to off-white, to white to pink. The applicant never told him the source of the diamonds. He said of the diamonds he received about 15 or 20 stones were pink diamonds. He said that 75 to 80 per cent of the diamonds had the characteristics of coming from the Argyle Mine and 15 to 20 pink diamonds had characteristics of Argyle. The remaining stones did not have the characteristics, but this would not exclude the possibility of their coming from Argyle. He said that Argyle is not the only mine that produces pink diamonds, but the intensity of the pink is quite unique. He said the stones brought by the applicant were intense pink. He said the majority of the pink diamonds would have been pre-acid. Some of the pink diamonds brought in had traces of dirt on them. Mr Newton said he then said to the applicant, "These look like Australian stones - Argyle stones". The applicant replied that he was obtaining them in Antwerp from somebody called Horovitz (T/S 503). At one stage, the applicant told him that the stones were from the mud flats of Equador. Later, the applicant showed Mr Newton a fax with Mr Horovitz' name on and said he was obtaining the diamonds from Geneva. Mr Newton, when questioned about the source of the stones said that he was influenced by the fact that the applicant had been introduced to him by Mr Devenish, who he regarded as a highly respected businessman.

Once, when the applicant was present, a Mr Lockhart brought in a parcel of rough diamonds. He said that he had obtained them from a friend up north and asked Mr Newton if he was interested in buying them. Mr Newton said he opened the parcel and it was obvious that they were Argyle diamonds. They were typical Argyle browns. Mr Newton told him to get out of the shop. The applicant asked Mr Newton if he would buy the stones for him. Mr Newton asked why and the applicant replied that Argyle was trying to set him up and he wanted the stones to set them up. Mr Newton said he was not interested. Mr Newton said that the applicant once or twice said to him that he was very well connected with the police.

Mr Newton then referred to what turned out to be an aspect of the commencement of the inquiry and referred to a visit made to his shop by Mr Corfield, the head of the security of Argyle and who was stationed in Perth. Mr Newton said that in November 1989, Mr Corfield came into the shop and asked if he could take away for analysis some pink diamonds which the applicant had lodged with Mr Newton for cutting. It was realised by the prosecution that a reference to the purpose would be hearsay. His Honour indicated that that would not matter unless counsel for the defence objected. Counsel replied, "I want to hear what is going on, you know go for it yes". Mr Newton said to Mr Corfield that they were not Mr Newton's stones to give away and he then said that Mr Corfield explained why he wanted to take them away and that they were to be taken away for analysis. Mr Newton gave them to Mr Corfield on receiving an "on approval" invoice. He said the applicant phoned him next day, asking what his stones were doing at Argyle. He said the applicant was relaxed about it and said words to the effect that he knew what was going on. Mr Corfield returned those pink diamonds and took away, on an on approval invoice, another 16 non-pink diamonds.

Mr Corfield gave evidence as to the obtaining and examining of the stones taken from Mr Newton. He said that he was looking for pre-acid diamonds. He said he originally took, against a consignment note, five pink diamonds. These were found to be post acid. The crown acknowledged, in opening, that these may have come from another source. They were returned and Mr Corfield then took, on consignment 16 non pink stones. There was evidence that these had the characteristics of Argyle stones. Mr Corfield said that these stones were all gemstones and not run of the mine. A number seemed not to have been acid-cleaned. Some were described as pre-acid. They looked clean, but under the lens dirt was detected. They were examined by Mr Sapharti a diamond expert from Belgium who gave evidence as to their being Argyle stones.

On 25 January 1990, Mr Corfield was in the offices of the managing director of Argyle Diamond Mines Pty Ltd, Mr Karpin. He heard a telephone conversation which was amplified. The call was coming from the applicant and the applicant was complaining that a UK policeman named Corfield had been bugging his telephone. The applicant said he had friends in the CIB and he knew he was under surveillance. The applicant said that he was obtaining his diamonds from Mr Horovitz. He said that the diamonds came from Horovitz and he had given them to Mr Newton to polish and he was not making any money from that transaction and he was doing it as a favour to keep Newton occupied. He was trying to create a little bit of "Theo Horovitz in Australia". He said he had obtained all his rough diamonds from Horovitz. He said that Argyle had been giving Mr Devenish "a bagging around town".

Thefts of diamonds had been reported in November 1989, but the police inquiry with Detective Sergeant Thoy and Gwilliam did not start until February 1990. It was apparent to Mr Corfield that for there to be any successful theft from the mine, persons in positions of trust must be involved. He had, however, implicit trust in Mr Crimmins and talked to him on that basis. His father was a retired, highly respect superintendent and his cousin Assistant Commissioner of Police. He, therefore, enlisted Mr Crimmins' assistance. Mr Crimmins was promoted to superintendent and was, in effect, the second-in-charge at the mine. He was based at the mine and Mr Corfield was based in Perth. The second inquiry was the Noye Inquiry. On 24 September 1992, the applicant again rang the managing director. The applicant said Mr Noye had written a 400-page report and "it left him smelling like a rose". The applicant was also condemnatory of Mr Corfield's actions. He invited Karpin to go and meet with Sergeant Noye with his lawyer. He again said the diamonds were from Geneva or from Hong Kong.

There was evidence of admissions made to a Mr Gardner who said the applicant owed him money as a result of the purchase of a mining lease and who assisted the applicant to hide stones during the first police inquiry. In 1988, the applicant discussed the question of diamonds with Mr Gardner and said he wanted Argyle diamonds, whether they come "under the table, legally, illegally, or whatever, it did not make any difference". He asked Mr Gardner whether he knew people who worked with Argyle in the mine or in the sorting room. He said he wanted to see if he could get Argyle diamonds out. Mr Gardner said he later saw the applicant with rough diamonds. He showed them to Mr Gardner in a coffee shop in Perth. He said that there were some pink stones there. Mr Gardner then said the following conversation occurred (T/S 611):

...did he tell you at all where they were from?---He said at that point - so I sort of asked the question, "Where in the hell did you get these from?" and he said, "I got them from Argyle." Then he sort of stopped. He realised that he might have said something wrong. He said, "They just come from everywhere. They come from Sierra Leone. They come from Brazil."

He said that the applicant pointed out a particular stone as we were sifting through them and he said, "This is a good stone. I will get this cut straightaway." They exchanged a book on cleaning diamonds. Following this, Mr Gardner noted burns on the applicant's face, forehead and the side of his cheek. He described the burns as "blotchy". Mr Gardner asked the applicant what he had been doing and the applicant replied, "I was cleaning stones" and said he was using hydrochloric acid. Mr Gardner told him to be more careful and told him it was the wrong type of acid and he should be using hydrofluoric acid. Mr Gardner told him from where hydrofluoric acid could be obtained. Mr Gardner said that later he borrowed some of it from him so that he could clean some gold rocks. Mr Gardner was asked to sell some stones on behalf of the applicant. Originally he did not do so and visited Hong Kong. The witness went to Hong Kong on a second occasion and on that occasion the applicant gave him a large stone which Mr Gardner sold for $US11,000 and he gave the money to the applicant. As Mr Gardner claimed he was owed money, he wished some type of security and was given a parcel containing half a dozen pink stones. He thought he received these in September 1990. He later gave the stones back to the applicant. The witness was still trying to obtain payment under the contract and was later given a pink diamond which was a present to give his wife, which he said was worth $50,000. The witness referred to bringing back other stones from Indonesia and giving them to the applicant. The applicant said that Mr Newton was cutting them. Mrs Crimmins said that the applicant asked her for a loan to arrange for some dockers to break Gardner's legs.

A further Crown witness was Miss Shore, who was the person with whom the applicant was living prior to his relationship with Mrs Crimmins. Miss Shore gave evidence as to the applicant dealing in diamonds and as to the money he received. Miss Shore said that on one occasion he told her that Mr Horovitz had told him to purchase hydrofluoric acid to clean the rough diamonds. The applicant told Miss Shore that the hydrofluoric acid was needed to clean them efficiently and thoroughly so that Argyle would not be able to identify the diamonds as being theirs. She noticed at some times during their relationship that he had burn-like sores on his face. Miss Shore gave evidence that she heard the applicant telephone Mr Newton and tell him that the police had missed the diamonds that he had hidden in alcohol. The Crown also relied on inconsistent explanations by the applicant as to the source of the diamonds.

The applicant gave evidence. He said he first became involved in diamonds when he was in the Northern Territory prior to 1983. He bought a small tin. He said he first met Mr Horovitz in 1983 in Singapore. He then in evidence gave an explanation as to diamonds he was handling . He said in respect of the diamonds he gave to Mr Newton to cut that they were all owned, basically, by a partnership headed by Mr Horovitz, of which the applicant was a member. He said that this came about through his earlier earning money and as it was not earning interest he acted on a suggestion of Mr Horovitz that he invest in diamonds. This caused him to obtain some rough diamonds, which had come from the mud flats of Salvador. He said that Mr Devenish was a friend of his and that Mr Devenish had always been interested in finding a diamond mine and setting up a cutting works. The applicant said that Mr Devenish had some space above his office in Piccadilly Arcade and that it was planned that they would set up a cutting works there. That fell through and he became aware of Mr Newton, who requested him to take some stones to be cut, which he agreed to do. He said that to his knowledge he never had any diamonds that were stolen from Argyle. The diamonds with which he dealt were bought overseas and he gave details from where they were purchased. He said that Mr Corfield came and removed some of his diamonds and this resulted in the applicant going to Argyle and complaining. He said the stones which the police came and inspected were a collection that he had built up in a manner he described in some detail. He said the police inspected these stones, but did not touch them.

He then referred to specific stones. He was asked about these stones, which were believed to be pre-acid Argyle. The applicant said that they were tested by CRA Advanced Technology and the report he saw established they were not from Argyle. The Crown objected to that observation. The defence then referred to a report from Dr Smith, which was in the Noye Report, but which the defence was not able to have available. He then described how he came into contact with Mr Crimmins. This was in connection with his activity with showing dogs. He said at no time did Mr Crimmins ever give him any diamonds and he never had any financial dealings of any description with Mr Crimmins.

He then gave evidence as to his association with Mrs Crimmins. He said that he had no dealings with Mr Crimmins in respect of diamonds and did not find out that he worked for Argyle until June 1990. At that stage, the applicant had been the subject of investigation in respect of alleged thefts of diamonds from Argyle. He said he jumped to the conclusion that Mr Crimmins was "trying to shaft me". He then referred to a Supreme Court legal argument he was having with Mr Devenish. Up to this stage, he had never had any financial dealings with Mrs Crimmins. He said that he saw Mr Crimmins in respect of the Argyle investigation and asked him what was going on and asked him whether he had anything to do with it. He said he asked Mr Crimmins to accompany him and see Argyle and sort the matter out. He said Mr Crimmins replied, "No, just forget about it. It is finished - dead". After that, Mrs Crimmins rang him and wanted a cup of coffee. His evidence was he started to have financial dealings with Mrs Crimmins at the end of 1990 or early 1991. He said that his previous de facto and Mr Devenish had "put their heads together and deadlocked all our family companies". He then said that Argyle and the police had been telling banks that he was a drug dealer and reference was made to an allegation that he had been a gun-runner. He said he was a gun dealer, with a gun dealer's licence, but was not a gun-runner. The result of this was that he was unable to obtain credit from the bank. During this trouble, he would see Mrs Crimmins more and more. He said that she started to drink and was an alcoholic and had received beatings at the hand of Mr Crimmins. She became quite unwell. He, therefore, gave her, at Christmas 1990, a diamond out of an African stone, which he earlier arranged for Mr Newton to cut. She sold that and some other items on his behalf. He gave details of other stones which she sold on his behalf and his evidence was that they were stones owned by him.

He then described the investigations that were being made and said that he denied corruptly paying money to police officers. He referred to the fact that after his diamonds were seized, he had a voluntary meeting with Argyle and he referred to an interpleader suit between the company and himself. He said what he received from Mr Noye were documents on a discovery order on the civil interpleader (TS1611). He said that he never struck Mrs Crimmins and was never a party to her working as a prostitute. He thought that she was a receptionist. He was then asked about Mr Wiig and said that he did not, at any time, agree with Mrs Crimmins to seek an employee to steal diamonds. He knew nothing of Mr Anderson. He said in respect of Mr Wiig that he had coffee with Mr Wiig and Mrs Crimmins at a cafe. He remembered part of the conversation of Mrs Crimmins telling Mr Wiig he could pinch diamonds by sticking them "up his bum". There was no agreement asking him to steal diamonds. He then gave evidence as to the source of specific stones and then referred to a loan made from Mrs Crimmins to pay off creditors.

In cross-examination he denied borrowing money from Mr Devenish. He said that they were in a joint venture in nursing homes and this was the issue raised in the court action. He said in cross-examination it was decided against him, but that the matter was not yet over. The applicant said that the diamonds he gave to Mr Newton were owned basically by a partnership headed by Mr Horovitz, of which he was a member (T/S 1597). He denied in cross examination the substance of Gardner's evidence.

Directions as to hearsay evidence and of acts in furtherance of the conspiracy. Grounds 1, 6 and7.

It will be convenient to deal with grounds 1, 6 and 7 together. Ground 1 states that the trial Judge's direction, as to the use to be made of acts or declarations of a participant in a conspiracy in furtherance of that conspiracy when those acts were not made or said in the presence of the accused, was inadequate. The first thing that must be said is that this was not a case where the Crown was asking the jury to infer the existence of an agreement from the acts and statements of the alleged participants to the agreement. The Crown was proving the agreement by the direct evidence of the other two participants. They gave specific evidence that the agreement was made and then they gave evidence as to how they each carried out the agreement the subject of the first count. The Crown case, essentially, was the evidence of accomplices as to the making of the agreement and corroboration of such evidence by the admissions made by the applicant to other persons and by other acts carried out by him. There was circumstantial evidence mainly to prove that the stones the applicant was handling came from the mine and to disprove his assertions that they came from overseas. The evidence to establish this was evidence of admissions made to persons with whom he was dealing and the steps taken to obtain false documents in respect of the stones and to impede the inquiry.

The Crown called Mr Crimmins before Mrs Crimmins. He gave direct evidence as to what was said to him by the applicant, which, if believed would establish the agreement referred to in the first count. He gave some hearsay evidence, an instance being that Mrs Crimmins asked him to obtain some lamproite and told him that this was at the applicant's request and told him the purpose the applicant said he wanted it. Mr Crimmins obtained it and gave it to Mrs Crimmins. The latter, when giving evidence, gave direct evidence of the request by the applicant and of his reasons. The purpose of Mr Crimmins evidence in this area was to establish the continuity. The way the trial Judge dealt with this was to give directions, both during the trial and in his final summing up, that this type of evidence was not proof of the facts stated.

At the conclusion of his summing up and after the jury retired, the Crown suggested that a direction of the type referred to in the grounds of appeal should be given. At the hearing of this appeal Mr Rayney said it was requested for the sake of completeness. His Honour considered the matter overnight and said next day (T/S 1861):

"Having heard what Mr Rayney had to say yesterday afternoon his ears did not deceive him I didn't give the jury a direction in relation to the co conspirators rule and I should. Obviously before I can do that I should have said it yesterday to counsel that I'm satisfied that there is a prima facie case that a conspiracy exists to be put before the jury and what I propose to tell the jury is that if they find that a conspiracy exists then they can use the acts or the words of Mr and Mrs Crimmins against Mr Roddan bearing in mind of course the warnings about accomplices."

His Honour in re-directing the jury told them that if they were satisfied that a conspiracy existed between Mr Roddan and Mr and Mrs Crimmins, then once they had been able to decide that the conspiracy existed, then anything which was said or done by Mr and Mrs Crimmins was part of that conspiracy and could be used against Mr Roddan. His Honour said that the reason for that is because in the nature of conspiracies and in the nature of a partnership there are sometimes, as his Honour heard them called "partners in crimes", just as partners can say or do things which bind other partners, so criminal partners can say or do things which can reflect on the partner you are considering. His Honour then said:

"So if you are able to find a conspiracy exists, then you can use what Mr and Mrs Crimmins have said or done pursuant to that conspiracy as evidence against Mr Roddan, but bear in mind what I have told you and it doesn't in any way detract from the warning that I gave you yesterday about their being accomplices and the need to find corroborating evidence of their words or statements."

His Honour then went on to repeat his earlier warning about the danger of acting on uncorroborated evidence.

The nature of the submissions in support of the ground is that this statement would have no meaning to the jury unless his Honour referred specifically to the evidence that came in this category and identified it for the jury. It was submitted that there should have been a direction as to the shortcomings of this type of evidence and the absence of opportunity to cross-examine on it. It is claimed that his Honour failed to adequately instruct the jury what an act or declaration "in furtherance" of a conspiracy meant.

I consider the answer to this ground is that the Crown was not relying on statements made in the absence of the accused for the purpose of establishing a case against the accused person. There was very little evidence which came in this category. The evidence on which the Crown relied in order to establish the agreement was the direct evidence of the other parties to the agreement of what the applicant actually told them and direct evidence of the actual acts of the applicant. It is common ground that the applicant was selling rough diamonds in Perth. The evidence to show that these came from Argyle was the evidence of the person who obtained them from Argyle and delivered them to the applicant and evidence of statements made by the applicant to Mr Devenish and Mrs Crimmins. In these circumstances, I do not consider the direction sought was necessary. I consider the direction his Honour gave that hearsay evidence does not prove the fact stated was, in the circumstances of this trial the better way to proceed. I shall shortly examine the specific ground as to whether there was any deficiency in respect of this direction.

The redirection actually given to the jury would not have been of assistance to them because it did not say how they could use the acts and words of Mr and Mrs Crimmins and it did not refer to the acts and words outside the direct evidence. However, I do not consider it caused any prejudice and did not cause the trial to miscarry. It did not detract from the earlier and repeated warnings that hearsay evidence did not prove the facts stated. It was not intended in this particular trial for statements outside the hearing of the accused person to be evidence of the facts stated. I consider that this is clear from the whole of the trial and directions given and the jury were determining the truth of what was said directly by the accused to Mr and Mrs Crimmins, and what was said by him to other persons. I consider that the type of direction referred to in the grounds, and as amplified in the submissions, would not have been appropriate. I shall, however, refer to some further submissions on behalf of the applicant as to why it is claimed this type of direction should have been given.

It was submitted in support of this and other grounds that there was before the court overwhelming and prejudicial inadmissible evidence of acts and declarations of Mr and Mrs Crimmins. I would say at the outset, I would not see the hearsay evidence in that category. The direct evidence, if accepted, would transcend anything contained in the hearsay evidence. If not accepted, then it would be inconceivable, in the circumstances of this case, that the jury would have reached any view on the hearsay evidence. It was not the type of evidence which would cause the jury to accept the direct evidence if they would not otherwise do so. It was necessary for some hearsay evidence to be admitted, particularly in respect of Mr Crimmins' evidence by reason of his being the first of the two co-conspirators to give evidence. The way the trial Judge dealt with the matter was to inform the jury of the use they may make of the direct evidence. He then referred to the hearsay evidence and gave a direction, which I shall later set out, advising that such evidence is not proof of the facts stated and the facts must be proved by direct evidence. I would see this as an appropriate way to proceed in the circumstances of this case.

Counsel referred to instances such as Mrs Crimmins telling other people, in the absence of the applicant, that the diamonds were stolen. It was quite clear in the way the trial was conducted that the evidence being relied upon to establish that Argyle diamonds were stolen was the direct evidence as to what was said and done between the applicant and Mr Crimmins. Subsequent evidence was no more than part of the narrative and in the context of the case incidental.

The submissions refer to a happening which occurred at the end of an afternoon in the course of Mrs Crimmins' examination-in-chief (T/S 386). His Honour said that he noted over the past two days that there had been evidence led which has not been objected to and would appear to him to be hearsay. He said, "I'm not here referring to certain evidence which is not being tendered for its truth but evidence which is clearly hearsay." He said:

"I haven't intervened in the absence of any objection from counsel, and I have assumed that what has occurred has occurred by some agreement between counsel. If I'm wrong in that then counsel will no doubt tell me, and if that be the case then I may raise the matter of my own accord should hearsay evidence be led. If counsel have no objection to such evidence being before the jury then I will not intervene at all."

His Honour then asked for counsel's comments and the following occurred:

"HARRIS, MR: I haven't intervened, your Honour, because as things are going they should be left going. If I start jumping up and jumping down - if your Honour thinks it is going too far

HIS HONOUR: It is not for me to intervene but I have just put on the record as to what my feelings are about the matter.

HIS HONOUR: It may be I have some obligation - which I will intervene but if it is being done for some legitimate forensic purpose on your behalf then I won't.

HARRIS, MR: It's not, sir. It's just I don't believe it takes us anywhere by jumping up and down and stopping.

HIS HONOUR: All right. One other thing that also concerns me is the mention of third parties during the trial. What I am minded to do is to tell the jury when they return that just because somebody says something about another person or says that another person told them something, that does not necessarily mean that what was said was true. Any comment on that, Mr Rayney?"

His Honour, when the jury returned the following morning, gave a direction as to hearsay evidence and that such evidence is not before the jury as proof of the fact that what the other person said was true. (T/S 389). This direction was explained in a different way in his Honour's final summing up.

Counsel for the applicant, in support of his submissions under ground 1, refers to the fact that his Honour had raised the question in the way I have outlined and submitted that the learned trial Judge was aware that there was potentially overwhelming and prejudicial inadmissible evidence of acts and declarations of Mr and Mrs Crimmins which had been put before the jury and refers to the incident I have mentioned. In my view, the evidence referred to does not come within that category and it is clear that counsel for the applicant, by taking the course he did, did not see it as coming in that area. His Honour's concern was that it was inadmissible under the rules of evidence as distinct from being highly prejudicial evidence.

It was submitted that there was a further reason why a direction of the type being considered was necessary. The dates on which the conspiracy was alleged in the first count were between 15 March 1988 and 9 August 1993. It was submitted that any agreement to steal as a servant must have been made during the time that Mr Crimmins actually was a servant, which was up until November 1990. It was submitted that much of the evidence as to conversations and events following that day would be either inadmissible hearsay or would require justification under the co-conspirator's rule. It was submitted that the trial Judge should have directed the jury that the dates were a matter of fact for their determination and they should have been directed that there was no evidence of a conspiracy after the time Mr Crimmins resigned. One fundamental proposition must be borne in mind when considering these submissions and that is that the dates referred to in the count are no more than particulars which do not have to be proved by the Crown. They would be no more than a matter that would govern the evidence that can be led. To allege that a stealing is a stealing as a servant is no more than a particular and in normal circumstances a particular of aggravation. In this case it was the particulars of the actual agreement alleged. There is no need to consider this aspect further, because his Honour (T/S 1861) directed the jury on the basis that the conspiracy had ended some time before the date of Mr Crimmins' arrest. However, the thrust of the ground is the fact that Mr Crimmins ceased employment at the end of 1990 made much evidence inadmissible. The question is not whether it had become admissible under the co-conspirator's rule, but whether it was admissible at all. Most of it was direct evidence. The purpose of the evidence was to show that there were other witnesses who could prove the applicant's acknowledgment that the stones were taken from the mine in the way testified by Mr Crimmins. In this sense it was corroborative evidence. Other evidence in this area was circumstantial evidence to prove the applicant's knowledge. Included in this evidence is the conduct of the applicant during the police inquiries. This will be referred to when considering other grounds.

I would refer to a further argument submitted by Mr Sheales, which is that his Honour said that they can use evidence of what Mr and Mrs Crimmins have said or done "pursuant to that conspiracy" as evidence against Mr Roddan. It is submitted that his Honour should have said "in furtherance of that conspiracy". The way the argument was advanced is that what was done after 1990 might be pursuant to the conspiracy, but not in furtherance of it. For my part, I would find it difficult to see any significant difference in meaning. However, I consider the matter can be resolved on the basis that the direction was not necessary, in any event.

It would be convenient in this context to deal with ground 7 at this stage, which reads:

"7. That the learned Trial Judge's charge to the jury was inadequate in that he did not sufficiently identify for the jury the evidence which was admissible and the evidence that was inadmissible with regard to each count of conspiracy on the presentment."

The nature of the evidence was such that I do not consider further direction was necessary. The evidence relating to the second was limited to the request made to Mrs Anderson and the evidence relating to the third count was limited to the request made to Mr Wiig. This would have been very clear to the jury and was made clear by his Honour. There would have been needless repetition and undue emphasis of the Crown case to make a further classification of the evidence.

I have, when dealing with the first ground, made reference to the fact that his Honour told the jury how they should deal with statements made by a person who was not the witness before them and that this was not evidence of the facts stated. I shall now consider the ground relating to these directions which is ground 6 and reads:

"6. That the learned Trial Judge erred in his direction to the jury as to what constitutes hearsay evidence, and further the direction was inadequate as to the purpose for which it is led and the way in which such evidence could be used by the jury."

I have referred to a direction given by his Honour during the trial. In his summing up he gave directions as to the evidence the jury were able to use in order to make their findings and he explained what was the direct evidence before them. His Honour then said (T/S 1805):

"Just bear in mind a warning that I have given you on more than one occasion that when a witness has referred to what someone who has not been before you as a witness has said to him or to her, then what the person who was not here has said or not said is not before you. The only person who can say whether they said something or they did not say something is the person who said it. So when a person talks about what a third party has said to them that evidence is put before you not because it is put before you as to the truth of what the third party said to the witness but as to the fact that the third party said those things.

I could say about any one of the male jurors that he is currently playing full-forward for the Eagles or the Dockers or whatever other AFL team you want to pick or that one of the female jurors is swimming for the Australian swimming team in Atlanta at the Olympics. Now, it is true that I have said those things. You have just heard me say them, but whether or not what I have said is true - you cannot deduce that from what I have just said. The only person who is going to be able to tell you whether those things are true is the person who is playing full-forward or the person who is swimming in the Olympic team and if they do not say anything about it, well, it is true that I said those things but you have no evidence as to the truth of what I have said.

What people have said about what Mr Horovitz has said to them is not put before you as proof that Mr Horovitz actually said those things, but it is put before you because people say that Mr Horovitz has said certain things and some of these things have been put to Mr Roddan and Mr Roddan's answers have been obtained in response to those suggestions. The only person who can tell you what Mr Horovitz said is Mr Horovitz and you have not heard from him so the truth of what was said is not the issue. The issue is as to whether things were said to people that are alleged to have been said by Horovitz.

The same goes for Dr Smith's CRA report which has been referred to; whether certain things or opinions were expressed in that report is not evidence before you. So the evidence of a statement made to a witness by a person who is not himself or herself called as a witness is not admissible and the object of the evidence was to establish the truth of what is contained in the statement. It is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that the statement was made."

His Honour was making the important point that the evidence concerned is not proof of the facts stated. The criticism raised, particularly in respect of his Honour's example from the football field, and in similar examples, is that there are other persons who could prove the fact; namely, persons who witnessed the event. A person playing full forward is not the only person who could testify. Any other members of the team present and any onlookers could prove the fact. In my view, this would be so patently obvious to any intelligent juror that it does not detract from the main point his Honour was making; that what is said in hearsay is not proof of the facts stated. I would go further and mention that a fair trial is not achieved by reading out an accurate statement of the law which it would be difficult for an Appeal Court to fault. It is essential for a trial Judge to keep the interest of the jury and to explain the points in terms which they can understand and are likely to remember. This is what his Honour was doing. His Honour, on a number of occasions, used homely examples to endeavour to underline the points he was making in a way which the jury would remember them. Some of the directions to which I have referred were repetitions of what the jury were told during the trial. It is my view, after reading the directions given during the trial, and reading the whole of the summing up, it was made very clear to the jury the use they could make of the different types of evidence.

Allegations of Police Corruption - Grounds 3 & 4

"That the learned Trial Judge's direction to the Jury as to the use which could be made by them of the evidence which was led pertaining to the Applicant's alleged assertions to various witnesses as to 'police corruption' was inadequate and flawed."

I have used the term "corruption" as it appears in the grounds. The respondent submits that this term was never used by the his Honour. The evidence, on the respondent's submission referred to claims by the applicant of having "police contacts" and "improper contacts". It was part of the Crown case that the applicant said to a number of different persons words to the effect that he had improper contacts with the police. One of the persons to whom he said it was Mr Devenish, who gave it as an explanation as to why he did not report the matter to the police. The Crown said in opening the case to the jury: (TS 73):

"The significance, the relevance of that evidence is that the accused did make those claims.

If the accused - if you were to find that the accused lied and made up those claims about police then the evidence is relevant because the crown says it demonstrates the length to which he was prepared to go to make people believe that he was well-connected and it was relevant the crown says to appreciate the lengths he was prepared to go to deter people from reporting his activities to police and to prevent people or hinder them from stopping what had been put into place. That's the significance."

The Crown, during the trial, did not seek to prove that what the applicant said about his contacts with the police were lies or even untrue. The Crown relied on it as part of the applicant's method of operating and as a means of deterring persons reporting his activities to the police. The fact that the Crown did not seek to prove that the statements were lies gives rise to the fourth ground which claims that the Crown recast the use the jury could make of evidence relating to police corruption and this ought to have resulted in a discharge of the jury. No such application was made and I consider it would be clear as to why it was not made. It would have been apparent to any counsel for the defence that there would be no basis for such an application. The use originally referred to by the Crown Prosecutor was not much different from the use finally made of it, the only difference being the reference to lies. It was apparent at the conclusion of the case that lies in this area were not part of the Crown case and I do not consider anything turns on the Crown Prosecutor's reference in this area.

The ground refers to the claimed inadequacies of the trial Judge's directions. It is submitted that the direction was, amongst other things, required to overcome the prejudice arising from the faulty opening by the Crown. It is submitted that what I have set out as being said in opening by the Crown Prosecutor was a "tremendous flaw" because it was a direct invitation to the jury to speculate. It was submitted that the evidence was admissible only for the purpose of rebutting recent invention whereas it was being used as a self serving statement to support the evidence of the prosecution witnesses.

"You heard evidence from Mr Devenish and Mrs Crimmins and others about Mr Roddan's contacts with the police and what he had said to them in relation to police and evidence from Sergeant Thoy and Detective Sergeant Gwilliam about the circumstances in which the first police inquiry was wound up. That evidence has not been put forward by the crown as evidence which would corroborate or could corroborate whether there was a conspiracy to steal diamonds.

You do not have to decide whether or not there are any payments to the police or whether the circumstances in which the first and second inquiries did not result in charges being laid revealed any impropriety on Mr Roddan's behalf, but the evidence, as Mr Rayney said, was put before you to indicate what Mr Roddan had said to other people to have those people refrain from making complaints to the police and the writing off of the inquiries. Mr Harris says they are nothing to do with Mr Roddan. They are internal matters for the police and that's not something he had any control over, because he denied knowing any of the people, Uncle Max or Dalton or Zanetti or Boron or Ayton or any of these people that other people said that he referred to - that is, Mr Roddan denied any knowledge of those people having any contacts with the police at all.

Some evidence was given by Mr Crimmins about Mr Roddan saying that he had police in his back pocket. Mrs Crimmins said Mr Roddan was referring to Uncle Max and the boys and Mrs Crimmins and Mr Devenish mentioned contacts with the police and, as I have said, that evidence was led to show what Mr Roddan had said and the impact of what he had said on the witnesses, not to prove that there had been a conspiracy between Mr Roddan and the Crimminses."

I consider the evidence was properly admitted to the trial for the purposes stated by his Honour and his Honour gave an adequate direction as to how the evidence can be used. It was admissible as to the means used to carry out the agreement. The prosecutor, when opening at the commencement of the trial on 9 April 1996, made reference to the fact that the jury would be required to find that the applicant lied. No attempt was made to show that they were lies. It would have become clear, by the time the jury considered their verdict, that this was not part of the Crown case. It was also made clear to the jury that they were to take directions of law from his Honour and these were given on 16 May. I do not consider any prejudice would have arisen by the Crown's earlier reference to lies and there was no requirement for his Honour to enter into this area. It was submitted that the giving of an explanation as to why Mr Devenish did not report the matter to the police was in the nature of introducing self-serving statements. It became apparent to Mr Devenish that the applicant had committed a serious theft from persons for whom Mr Devenish was an agent. The failure to report the matter would call for an explanation, which a jury would be expecting to hear and I consider in those circumstances that the explanation is admissible. I consider the matter goes further, as it would be open to the jury to infer that Mr Devenish was the target of a concerted plan to prevent the matter coming to the notice of the authorities.

Evidence as to what would normally be seen as possible corruption fell in two areas. The first area is the area I have been discussing to date, and that is, that in the stages of the making of the agreement and in the early stages of carrying it into effect, and in particular, prior to any police investigation, the applicant indicated the persons with whom he was dealing had connections with the police. The second area is that there was evidence that after the police inquiries commenced that the applicant took active steps to see if bribes could be offered to impede the inquiry. This evidence is in a different category. It is admissible. It supports the fact that an agreement for an unlawful purpose had been made and it supports the fact that the diamonds which the applicant admitted to be handling came from a dishonest source and did not come from the source claimed by the applicant. I shall set out the way the Crown opened on this evidence (T/S74).

Now, Thoy's investigation began in early 1990. By late 1990, early 1991, the accused was expressing his desire to stop Thoy. He was prepared to go to great lengths. He was prepared to go to those great lengths to get at Thoy and he said that if necessary he would burn Thoy, torch the delicatessens that Thoy's wife was running, be prepared to go through Thoy and his family if needed to get Thoy out of the way. One of the most alarming claims that the accused made was that he had used serving police officers to discredit Thoy.

He told Lyn Crimmins that the Thoy investigation had to be written off and for police to discredit Thoy it would cost the accused $10,000. The accused later said that the accused had raised the price from $10,000 to $40,000 because more senior police were involved. By this stage Barry Crimmins and Lyn Crimmins were separated; they were not living together; Barry Crimmins was in Victoria.

Some of the claims that the accused made about involving police to discredit Thoy were communicated to Barry Crimmins by Lyn Crimmins. The accused himself also told Barry Crimmins, in his words, that Thoy was too clean, that Thoy could not be bought. He told Barry Crimmins that he would do what was needed to get Thoy, Thoy's family, Thoy's family business. Put simply, the accused said that the investigation had to be written off because he had too much to lose and there was too much at stake. The accused said that Thoy would be entirely discredited and would be out of the police force.

At a later stage the accused said that the police he had paid could only get Thoy demoted from the CIB branch to uniform section because Thoy was too clean and they could not get enough on him. The accused was angry that he had paid money but that the job had not been done properly. ... As I have said, this evidence will be led by the crown because this is what the accused said. You as a jury will decide which facts are proved and which evidence you believe or disbelieve. All decisions about facts are matters for you. Whether you decide that the accused - sorry. Whether you decide that what the accused claimed was entirely false, partly true or some other combination is entirely up to you.

The significance is at the very least that the accused did say these things and make these claims, that the accused claimed to have improper police connections, that he knew police who would do his bidding to ensure that the conspirators would not be charged. The accused made these claims in order to deter people who might otherwise have gone to the police. One such person is Devenish.

There was evidence led in the area on which counsel opened. Most of it was direct evidence as distinct from hearsay evidence. Evidence which might be regarded as hearsay would be contained in the proposition that some of the claims were communicated to Barry Crimmins by Lyn Crimmins. There is direct evidence by Lyn Crimmins of what the applicant said to her to show that the claims were made and there were some statements made by the applicant to Mr Crimmiins to show that he was seeking to corrupt the police officers. I shall later refer to the principles applicable to that part of the evidence which was not direct evidence.

The evidence gave rise to two further submissions on behalf of the applicant which I shall now consider. The first is that it was claimed on behalf of the applicant that that portion which I have put in bold would cause the jury to speculate, particularly when considered in the context of what I have earlier set out. It was not necessary for the jury to make a determination of whether claims by the accused were false. That was made clear to the jury by his Honour's final summing up. It would also be obvious to the jury at all stages during the trial the fact that it would not matter whether the claims were true or false. The important aspect is that that was for the jury to determine whether or not they were made.

The next submission is there was a requirement for a direction of the type referred to in Edwards v R [1993] HCA 63; (1993) 178 CLR 193. It was clear by the time the trial Judge gave his direction that the Crown was not relying on lies in this area to establish the applicant's guilt. It is submitted on behalf of the applicant that even if this be the position, an Edwards direction is required. Referrence is made to a passage of a judgment of a Court of Appeal in R v Renzella [1997] 2 VR 88. The Court there was considering the question of lies in the context of a consciousness of guilt and implied admissions. The Court prefaced their judgment on the question of lies by setting out, in summary form, the principal points to be borne in mind and the Court set out as the first point (at91):

"1. Similar issues can arise in relation to conduct other than lies, such as flight or laying a false trail or bribery or attempted bribery of prosecution witnesses. See, for example, R v Tadic and Gibb (unreported, Full Court, 31 August 1993) at 32-3; R v Edwards (unreported, Court of Appeal, 20 December 1995) at 7 and R v Rhodes (unreported, Court of Appeal, 20 December 1995) at 4-5. There can also be an implied admission that one intends to commit an offence or is in the course of committing it: see R v Appleby (unreported, Court of Appeal, 14 June 1996)."

The argument on behalf of the applicant is that to attempt to bribe a police witness shows a consciousness of guilt and in that sense is an implied admission requiring the direction. I do not consider that the Court of Appeal was suggesting that the full Edwards v R direction was required. Much of it would be inappropriate. It was saying no more that similar principles must be considered.

An important requirement of an Edwards direction is that the lie must be precisely identified. It must be clear what the Crown is relying upon as the lie. In the present case the discussions relating to possibly bribing police officers were clearly before the jury and were in the main direct statements by the applicant to Mrs Crimmins. The next matter in respect of lies is that the jury should be reminded that there are many reasons other than guilt why a person may tell a lie. Such a direction would not be applicable or appropriate in respect of a plan to bribe a police officer carrying out an investigation of the very offence which is before the jury. The next aspect is that in a case of lies, the jury must be satisfied that the lie reveals a knowledge of the offence or some aspect of it, and it was told that because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or because of a realisation of guilt and a fear of the truth. I do not consider that that would be an appropriate direction on the facts of this case or that there was anything in R v Renzella which suggested it was. There could be circumstances where there is little or no other evidence against an accused person other than fleeing the jurisdiction or attempting to offer a bribe. In that case a special direction as to realisation of guilt would be required and I consider that this is what is being referred to by the Court of Appeal when it is saying that similar issues can arise. It was referring to it in the context of an implied admission. In the present case the discussions were being considered in conjunction with earlier direct evidence as to requests made to Mr and Mrs Crimmins to obtain the stones. The applicant denied making those requests and denied that the discussions as to bribes and threats took place. The essential question for the jury was whether or not these discussions took place. If the statements relating to bribery were found to be made, then that would be consistent and relevant to the making of the earlier illegal agreement. I do not consider it would be helpful to the jury or to the applicant to talk about a consciousness of guilt.

I would add that his Honour when referring to another area did give a full Edwards direction referring to the matters I have discussed above. This related to alleged lies as to what the applicant said was the source of the stones he was handling. Ground 2 sought to bring the form of this direction into question but this ground was abandoned.

"5. That the learned Trial Judge's direction to the jury with regard to accomplices and what evidence may amount to corroboration of accomplices was misleading in that it invited the jury to find that the only witnesses that they might reasonably consider to fall into the category of an accomplice were Mr and Mrs Crimmins, (Trans pp. 1817-1818) and was inadequate and unclear as to what evidence may at law be corroboration. (Trans pp. 1831-1844)."

It was of prime importance in this particular trial for the jury to receive a warning in respect of acting on the evidence of Mr and Mrs Crimmins. The trial Judge both gave and repeated this warning. The direction was clear and adequate. His Honour also gave an accurate exposition of what amounts to corroborative evidence. The substance of the ground is that his Honour confined the warning to Mr and Mrs Crimmins, whereas there are other witnesses who would come in this area and about whom the jury should have been warned. It is claimed, further, that Mr Devenish was an accomplice and accordingly his evidence could not be used as corroboration. His Honour referred to this evidence as being capable of being corroborative evidence.

If there were a witness whom the jury might properly consider on the evidence available to be an accomplice of the accused then the jury would be required to consider such question before using that witness's evidence as corroboration. ( see Khan v R [1971] WAR 44 per Nevile J at 50 proposition 2). Mr Sheales submits that Mr Devenish comes in this category on the basis that a receiver should be regarded as an accomplice of the thief from whom he receives the goods. I shall refer, firstly to the direct evidence and then to the evidence on which Mr Sheales submits it would be open to the jury to act on the basis that Mr Devenish was an accomplice.

Mr Devenish was carrying on business in the Hay Street Mall under the name "Charles Edward Jewellers". He was a concessionaire of Argyle Mines Pty Ltd and was thus one of a limited number of people who would take delivery of diamonds from the company for further sale. Such diamonds would be delivered washed. He had entered into business arrangements with the applicant in respect of nursing homes. Mr Devenish said he loaned the applicant $500,000. He said he and the applicant commenced to talk about diamonds and Mr Devenish said it was he who mentioned the name of Horovitz to the applicant. Mr Horovitz was a well-known dealer of diamonds in Switzerland and Mr Devenish said that Mr Horovitz was a friend of his. He said this highly impressed the applicant. Mr Devenish said he and the applicant came to be talking about the security at the Argyle Diamond Mine and that Mr Devenish told the applicant that it was an extremely good security system. He said the applicant said, "I bet you I could get through the system". Mr Devenish thought he was joking. This appeared to have taken place sometime after 30 April 1988. He said that some 10 days later the applicant came back into his shop and placed approximately 10 unwashed on his table. The applicant said words to the effect that he had won his bet and had broken through the security system. Mr Devenish said that they were of medium to high quality stones and clearly selected stones. Mr Devenish said he was "flabbergasted". He indicated to the applicant that he would not be involved in it, but he did agree to introduce the applicant to Mr Newton, a diamond cutter carrying on business in the Hay Street Mall well-known to Mr Devenish. He introduced the applicant to Mr Newton, saying the applicant would be a source of rough diamonds for cutting. Mr Devenish did not pass on to Mr Newton his knowledge that they were stolen. Mr Devenish did not report the matter to the police. Amongst the reasons he gave for this dereliction was that the applicant told him that he was well connected with the police and Mr Devenish thought it might put him in some danger. In addition, he was taking action to recover his money. On this evidence he could not be regarded as a receiver. He had knowledge that the stones were stolen but he never had possession of them. He did however give aid to a person whom he knew had committed a serious offence and I must later examine the effect of this

The evidence to which Mr Sheales referred for the purpose of submitting that it was open to the jury to consider that Mr Devenish was an accomplice was some hearsay evidence contained in the testimony of Mrs Crimmins, who said (T/S 361) that the applicant told her that Mr Horovitz was his partner in Switzerland and Mr Devenish was his partner in Australia. Mrs Crimmins said that when the applicant told her that money was coming through to enable her "to have Robin Thoy burnt" she thought the money would be coming from Mr Devenish by reason of the applicant's statement that he was his Australian partner.

There was further evidence in this category. Mrs Crimmins said that the applicant said to her (T/S 406) "that Devenish was sneaky: he had pulled out and he was likely to go to the police just to protect himself". At 430 Mrs Crimmins said that both Mr Crimmins and the applicant said that Mr Devenish was involved in the stolen diamond business. Mrs Crimmins gave other instances of being told that he was a "partner". She gave evidence of her belief that Mr Devenish was "in the gang".

Mr Sheales submitted that if evidence of a co-conspirator, which would otherwise be hearsay, can be used to establish the conspiracy, then it must follow that similar evidence can be used to establish a possible accomplice. This would not follow. The rule is that, in the circumstances where applicable, the acts and declarations of one party to the combination is admissible against the other. There was no other evidence that Mr Devenish was a party to a relevant conspiracy with the applicant so any statement by the applicant would not be evidence against Mr Devenish. In my view, the evidence of the type referred to cannot be used by the jury as evidence of the facts stated, particularly as the direct evidence shows that the extent of Mr Devenish's involvement was to refuse to handle the stones, but, nevertheless to introduce the applicant to a diamond cutter for the purpose of his cutting the stones on behalf of the applicant.

The next evidence pointed to by Mr Sheales is the evidence of a horse trainer, Mr Garner. He was training horses for the applicant and gave evidence that he told the applicant he was going on a trip to Singapore for a holiday. The applicant asked him to take a package containing a diamond there and told him in a joking manner it was worth $US140,000. Mr Garner said, "He assured me that all the paperwork and everything would be done at the airport by Charles Devenish from Charles Edward, the jeweller. He said he arrived at the airport and met Mr Devenish who gave him a package which Mr Garner said felt very much like a diamond. He was contacted in Singapore by a Mrs Laing who made arrangements for the delivery. Mrs Laing gave evidence that, on instructions from the applicant, she met Mr Garner in Singapore and arranged for the further delivery of a package. She did not know its contents. Mr Devenish, when giving evidence, was not asked about this transaction, nor was it referred to at all by the applicant in his evidence-in-chief or in cross-examination. In my view, it would not be open to the jury, on this evidence, to act on the basis that Mr Devenish may be a receiver. There was evidence and the Crown case was on the basis that the applicant was doing some legitimate business. Mr Devenish's evidence was that he would not, himself, handle diamonds he considered had come from Argyle. I do not consider on that evidence that the jury could properly consider that Mr Devenish was a receiver of a stolen diamond. Mr Devenish did admit that he took two diamonds from the applicant as a security for a debt. These were being held by Mr Newton. The evidence did not show that these were stolen diamonds and for similar reasons I do not consider on that evidence that the jury could properly consider that Mr Devenish was a receiver.

The evidence does, however, show that Mr Devenish gave aid to the applicant, knowing that the applicant had already stolen the stones from Argyle. The question must still be considered whether this would be sufficient either to attract an accomplice warning or to prevent Mr Devenish's evidence from being capable of being used as corroborative evidence.

This Court has held, both in R v Lewis (1906) 8 WAR 83 and Khan v R that only a person who could be convicted as a principal offender can be said to be an accomplice to an offence. The latter case considered the decision in Davies v Director of Public Prosecutions [1954] AC 378. Nevile J said at 51 that what was said by the House of Lords in that case must, in this State, be qualified to the extent that only a person who could be convicted as a principal offender can be said to be an accomplice of an offence. The court followed what was said in R v Lewis (supra). Neville J said:

"It follows that an accessory after the fact, as he could not be charged and convicted as a principal offender, cannot be an accomplice within the rule."

Virtue SPJ (at 50) reached a similar view. It must be remembered that in this State under s7 of the Criminal Code an accessory, other than an accessory after the fact, can be charged as a principal and would be an accomplice. Burt J (as he then was) (at 55) referred to the fact that it was not necessary for the purpose of the appeal to decide whether the witness concerned was an accomplice or generally to decide whether an accessory after the fact to an unlawful killing is an accomplice in the commission of that crime. His Honour said that the reasons in Davies' case (supra) say that he is, but his Honour referred to a number of Australian authorities, including R v Lewis (supra), which do not support that view. His Honour added that if such a witness were not an accomplice, it would be an occasion to give what he described as "a voluntary warning", but this aspect would be overtaken by s50 of the Evidence Act which states that a Judge shall not give a corroboration warning unless he is satisfied that such a warning is justified by the circumstances. However, the main question is whether Mr Devenish's evidence is capable of amounting to corroboration, or whether it is excluded by the rule that the evidence of one accomplice cannot corroborate that of another. R v Lewis (supra) and Khan v R (supra) are authority for the proposition that Mr Devenish's evidence is not that of an accomplice. It would appear that he would not even be as high as an accessory after the fact, within the meaning of s10 of the Code by reason of the fact that that section provides that the accessory must give assistance in order to enable the principal offender to escape punishment. The evidence did not show the assistance came within that category. The question may arise whether Khan v R should be reconsidered. The following view expressed by Dawson and Gaudron JJ in Pollitt v The Queen [1992] HCA 35; (1991) 174 CLR 558 would lead me to the conclusion that there would be no basis for extending the law into the facts of this case. Their honours said at 600:

"The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimizing their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. It is for this reason that a direction is given that accomplices cannot corroborate each other. Thus, if there is no possibility of joint fabrication, as, for example, where the witness was an accomplice in other offences and is called to give similar fact evidence, a direction to this effect is not required. Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration."

In my view, in the present case there is no basis for joint fabrication, nor would there be any basis for considering that Mr Devenish's evidence would be unreliable on account of his giving the type of assistance which he did. It is difficult to see how his evidence could base a prosecution and there was no indication of any suggestion that he be prosecuted.

The matter has been looked at to date mainly in the question whether Mr Devenish's evidence is capable of amounting to corroboration. The other question is whether there ought to have been an accomplice warning in respect of it. I consider there are two answers to this; namely, that for reasons already stated he was not an accomplice and that, in any event, there is nothing under s50 to require the trial Judge to make a judgment to give a warning. It could not be said that the evidence was unreliable by reason of what Mr Devenish admitted doing.

Complaint is made that his Honour did not refer to all the corroborative evidence particularly when he said that he could not talk exhaustively in relation to all such evidence. His Honour by the description he gave and the examples to which he did refer made the position very clear.

The written submissions refer also to Mr Newton. Mr Sheales at the hearing said this was in reality a moot point as the trial Judge did not invite the jury to look to Mr Newton for corroboration. My reasons under this ground would apply to Mr Newton.

Whether defence counsel ready for trial - Ground 8:

Ground 8, in its amended form, claims that the trial of the applicant miscarried so as to give rise to a substantial miscarriage of justice in that his counsel was unprepared to adequately present the case. There follow a number of particulars, some of which are quite inappropriate to this ground. There is an explanation for this, inasmuch as the original ground related to the conduct of the applicant's counsel and the particulars were consistent with this ground. I shall, however, deal with those particulars which are applicable to the amended grounds. The trial commenced on 2 April 1996, when the accused was in person. It is sufficient to say that the matter was adjourned until 9 April, when Mr Harris appeared for the accused, assisted by Mr MacLean, who was to be junior counsel and instructing solicitor.

When the accused was in person, it was thought that it may be a 12-month trial. Mr Harris, who had been instructed since the last adjournment, had commenced to read the matter and was able to indicate to the court that he thought the Crown's estimate of a three-month trial was a more realistic one. The court assembled on 9 April 1996, this being Easter Tuesday. Mr Harris informed his Honour that he had been instructed the previous Thursday. He said:

"I have got my defence team and investigators together. We have been working around the clock for 5 days. I'm not in a position to cross-examine. I would like a month but I wonder if you could grant me a week, sir?"

His Honour thought that Mr Harris may be better able to appreciate the Crown case if the Crown opened that very day and then the matter would be adjourned until the following Monday. The Crown opened and at 12.49 the jury retired to reassemble on Monday, 15 April. The court reassembled on 11 April to attend to matters of bail. The evidence commenced as scheduled on 15 April.

The nature of the argument in support of the ground was that legal aid funding was originally approved on the basis that 300 hours or approximately 40 days would be needed for preparation of trial and that such an estimate was consistent with what is known in respect of the volume of documents and amount of material at the committal proceedings. It was submitted that no counsel could possibly be ready in a period of preparation time which would have been a little over a week and there are a number of indications during the trial that counsel was not prepared. This combination caused a substantial miscarriage of justice.

The facts are that Mr Harris asked for a week's adjournment and was granted an adjournment for the remainder of that week. If he was not ready by Monday, 15 April, it would have been open to him to apply for some further time. The fact that he did not do so is indicative of the fact that he considered himself ready. I mention that against the background that in respect of ordinary trials counsel will perceive strong resistance by a court to grant an adjournment because it has been made clear that the listing system is such that last-minute adjournments are a factor to destabilise the list and to cause lengthy delays in the listing system. This would not be one of those cases. The trial had been listed for an indefinite period and it was known then that it was to take a much shorter time than its earlier estimate.

The next matter to weigh up is the nature of the case. There is evidence which was lengthy and detailed, but it was not complex and the issues were comparatively simple. It was not a case of complex balance sheets or lengthy technical evidence. The evidence as to the characteristics of the diamonds was not detailed. Time would have been needed to consider the allegations of the applicant improperly offering money to impede the inquiries. Much of this would involve seeking the applicant's explanation. The matter must be resolved on the basis that counsel was, to all intents and purposes, granted the time he asked and did not seek further time. A perusal of the transcript gives every indication that the applicant was being properly defended.

Before finally deciding the question, I would give consideration to those particulars relevant to the amended ground. It was submitted as the trial proceeded on the basis that the Crown's opening address was given before counsel was fully prepared, counsel was deprived of the opportunity of objecting to material which ought not to be in that address. Had any ground before us been resolved against the applicant on the basis that there was a failure to object at the time, then this aspect would need further consideration. This has not arisen. The Crown, in opening, did not refer to any inadmissible evidence. The only area of the address that did not meet up with the evidence was the reference to the fact that it may be open for the jury to come to the view that claims of Mr Roddan being in an improper association with the police were lies. That would not have been a matter to have been objected to at the time.

The next area is an alleged failure to object to the reception of inadmissible material. I have referred to some evidence, in particular, where a conscious decision was made by counsel to allow that material to be included. It could not be said that this decision was based on inadequate preparation and there may well have been a forensic advantage not to take objection to that type of material, particularly when the type of direction that his Honour was to give in respect of it was known.

The particular is expressed on the basis that there was a failure to object to the reception into evidence of inadmissible and prejudicial evidence within the Crown case. The submission sets out carefully and at length the type of evidence that comes in this area. It would make these reasons far too long to deal with each piece of evidence, particularly when there is no specific ground saying that the trial miscarried by reason of such evidence being admitted. I shall, however, make some general observations. Much of the evidence referred to was, in my view, admissible. The submission was based on the proposition that self-serving statements by witnesses are generally inadmissible and on the further proposition that evidence of good character cannot be introduced in chief for the purpose of showing a witness to be worthy of belief. This is a basic statement of the law of evidence. It would not be open to bring in character references or to bring in evidence that a particular witness is of good standing and good character in the community. Counsel for the applicant submitted that evidence in this area would include the statement that Mr Crimmins had been a policeman in Victoria for 18 years and achieved the rank of Sergeant and had three children. It was suggested that a reference to a witness's war service would come within this area. A person's experience could well be relevant to observations he makes. However, the context in which this evidence was introduced was that Mr Crimmins had a background of family police experience. Then he was asked, "Why did you do it Mr Crimmins?" He replied, "It was madness. It was stupidity. It was greed. It was the most stupid thing I have done in my life and its the only time I have ever done it and the only time I ever will do it. That's all I can say." I do not consider the grounds in this appeal require an examination of the question whether a person in the position of Mr Crimmins is able to give explanations as to why he acted in such a dishonest manner. I could well understand counsel not objecting to such evidence. The lack of preparation would have nothing to do with the question. Mr Crimmins had given evidence that over a long period, whilst a senior security officer, he had consistently removed stones from the elevator so that he could aggregate them in order to select the gemstones. No jury could regard him as a man of character at the time he gave evidence. I would not see this evidence as coming in the area of good character. At the highest, it could be said to be irrelevant and could not have had any prejudice in the trial.

It was claimed under this head that it was not admissible to lead evidence that Mr Crimmins had pleaded guilty. The practice in this State is to lead such evidence, but to require the trial Judge to give a direction in respect of it. For that reason one could not possibly expect counsel to object to it. I would see it as important evidence for the jury as it establishes the witness as an accomplice. The type of direction which must be given was set out by this Court in Connell v The Queen (1994) 12 WAR 133 at 271. His Honour gave a detailed direction that such plea is not proof of the fact that the applicant was part of a conspiracy. This direction was given at some length. Other areas of evidence under this particular have already been dealt with in these reasons as being admissible.

The next particular is an allegation that counsel placed before the jury evidence which was not admissible, had no forensic purpose and was prejudicial in the extreme. This referred, in the main, to a deliberate decision by counsel, when cross-examining Detective Sergeant Gwilliam, to put before the jury a document known as the "Gwilliam Report". Mr Sheales was critical of Mr Harris for doing this. This action could only be regarded as a deliberate decision made by Mr Harris in which lack of preparation could have played no part whatever. When it was done much of the evidence was known to all parties. There was an obvious advantage in doing it. The report indicated that a thorough inquiry was made, but no evidence could be ascertained that justified charges being brought or of anyone being guilty of stealing. The writer of the report expressed adverse views on the applicant's character. Reference was made to his being a suspected drug runner. The applicant referred to this in his evidence in chief when explaining the actions of Argyle. It may well have been considered during the trial that this was no more prejudicial than the direct evidence that had been led against the applicant. The answer lay in the fact that no offending could be detected.

The next particular claims that counsel failed to competently address the jury in his closing address. In my view, the answer to this particular is that it was a competent address. It was not a lengthy address, going into every aspect of the evidence. It was a type of address that is often effective in cases of this nature.

The ultimate question is whether factors have arisen that prevented the applicant from having a fair trial. In my view this has not occurred. I would see the contrary as being the case. I come to that view after perusing large areas of cross-examination by counsel for the defence, his final address, his Honour's summing up and the applicant's evidence-in-chief.

The final ground refers to the cumulative effect of the erroneous directions of the trial Judge. I do not consider there was any direction coming in that area.

I agree with the reasons for judgment of Pidgeon J and Murray J. There is nothing I wish to add.

I have had the advantage of reading a draft of the reasons for decision delivered by Pidgeon J. I am generally in agreement with them and I wish only to add a few observations of my own with respect to the grounds of the application in the form to which they were finally amended during the course of the hearing, and as they were argued. As Pidgeon J has noted, ground 2, which complained of the direction given by Healy DCJ with respect to the evidentiary value of lies told by the applicant (if so the jury found them to be) to a number of people with respect to the source of diamonds in his possession, was abandoned. Further, ground 9 might have been a general unparticularised complaint that the verdicts were unsafe and unsatisfactory having regard to the evidence available to sustain them, but as argued the ground comprised no more than counsel's formulation of the test to be applied to the cumulative effect of the complaints made in earlier grounds upon the convictions sustained. In the circumstances, it requires no separate discussion about its appropriateness as a matter of law.

Ground 1 complains of the inadequacy of the learned trial Judge's direction to the jury as to the evidentiary value of the acts and declarations of others alleged to be participants in the conspiracies, in furtherance of them, but not in the presence of the accused. This is sometimes referred to as the co-conspirator's rule as it was developed by the High Court in Tripodi v R [1961] HCA 22; (1961) 104 CLR 1, 7. I need not set out here the direction of which complaint is made. In a case where the application of the rule assumed some importance, it might not be regarded, with respect to the learned trial Judge, as being in entirely satisfactory terms. But this was not such a case. In this case the fact of the alleged conspiracy in relation to each count and the implication of the applicant as a conspirator depended very substantially, if not in respect of counts 2 and 3 almost entirely, upon the direct evidence of the co-conspirators, Mr and Mrs Crimmins.

Particularly so far as count 1 is concerned, there was another body of evidence of a circumstantial kind which, without repeating the discussion by Pidgeon J, was, in my opinion, not evidence which would attract the need for a careful direction upon the application of the co-conspirator's rule because it was not relied upon in any way which involved any hearsay content which the evidence might have. It was evidence of the kind which would not attract the direction complained of. As explained by the High Court in Ahern v R [1988] HCA 39; (1988) 165 CLR 87, 92-5, it is necessary to prove not only the fact of the conspiracy and its criminal character but also the participation of the accused in it. Where those matters may be proved by inference from acts and declarations about which other conspirators directly testify, then the proof is derived from the circumstance of the occurrence of the act or declaration in question and no hearsay quality in the evidence is relied upon so as to bring into play consideration of the co-conspirator's rule.

That rule will only arise where the evidence is not relied upon in the way described above but it is sought to rely upon the truth of the implication or assertion involved in the act or declaration in question to prove the participation of the accused in the alleged conspiracy. Then it is the hearsay character of the evidence upon which reliance is placed and that may only be justified where otherwise there is reasonable evidence of the existence of a conspiracy and the participation of the accused in it, so that under the co-conspirator's rule the hearsay character of the evidence may be relied upon to prove the nature and extent of the participation of the accused on the ground that that person's participation in the conspiracy implies an authority for co-conspirators to act or speak on behalf of the accused.

That, however, is not the position when, as I think in this case, reliance was placed upon the circumstance of the act or declaration of the co-conspirator in itself, to establish both the fact of conspiracy and the applicant's participation in it. As it was put by the High Court in Ahern at 93:

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

In my view, circumstantial evidence of this character was to be found in the evidence in respect of which grounds 3 and 4 complain concerning the statements allegedly made by the applicant to other witnesses about his links to the police and his capacity to secure their corrupt behaviour, some such statements being made in the context of the fact that various police investigations were undertaken in respect of the theft of diamonds from the Argyle Mine.

It does not seem to me that the evidence was relied upon as an implied admission by the accused on the basis that what he said on various occasions upon this topic was a deliberate lie told for the purpose of concealing his guilty implication in the conspiracy. In my opinion, a direction of the kind discussed by the High Court in Edwards v R [1993] HCA 63; (1993) 178 CLR 193 was not required, despite the perhaps rather equivocal comments of the Crown prosecutor in his closing address to the jury. Nothing said by the Victorian Court of Appeal in their very useful judgment in R v Renzella [1997] 2 VR 88 compels a different conclusion. In fact, the observations made by the trial Judge to the jury recorded at Transcript 1834-5, tend to rob this evidence of such value as it had. In that respect the charge to the jury might be considered to be unduly favourable to the applicant.

As to ground 5, it appears that the complaint is not so much concerned with the warning which was given in relation to the evidence of Mr and Mrs Crimmins, which was expressed in general terms with respect to those witnesses which, I respectfully agree with Pidgeon J, were clear and adequate. The complaint rather is that other witnesses, particularly the witnesses Devenish and Newton, were also accomplices with respect to whom a warning should be given of the danger of relying upon their evidence without corroboration and whose evidence was such that the jury should have been warned that it could not be relied upon to corroborate the evidence of Mr and Mrs Crimmins. The short answer to the proposition is, in my opinion, that there is no evidence capable of establishing that either witness was an accomplice in relation to any of the conspiracies alleged or that either witness was a person in respect of whom a warning should be given, although that person was not strictly an accomplice in law. Even if they were witnesses of that character, either of them, their position and evidence was not such as to require the conclusion that the jury should have been directed that their evidence could not corroborate that given by Mr or Mrs Crimmins: cf Pollitt v R [1992] HCA 35; (1992) 174 CLR 558.

Further, the matter fell to be dealt with, not by reference to the common law with respect to accomplices, but pursuant to the Evidence Act 1906 (WA), s50, by which a "corroboration warning" as defined by that section is not only not required of the trial Judge "by any rule of law or practice" but is not to be given "unless the Judge is satisfied that such a warning is justified in the circumstances." The evidence of the witnesses discussed in this regard was not such as to reveal any intrinsic lack of reliability either generally or because of any connection with Mr or Mrs Crimmins. The warning suggested was, in my opinion, not required: cf Chew v R (1991) 4 WAR 21.

I have nothing to add to the discussion of grounds 6 and 7 by Pidgeon J.

As to ground 8, as finally amended, the focus of the complaint is that a substantial miscarriage of justice was occasioned in the trial by reason of the fact that defence counsel was unprepared to adequately present the applicant's case. A large number of particulars are added to the ground designed to demonstrate that counsel failed to object to inadmissible and prejudicial evidence, that he led inadmissible and prejudicial evidence himself for no discernible forensic purpose, that he failed to present a competent closing address, failed to seek redirection where required and conducted himself inappropriately at trial in the presence of the jury. In regard to the particular matters debated in argument, I have nothing to add to the discussion by Pidgeon J.

The relevant principles where incompetence or conduct of counsel is alleged to constitute a ground for contending that there has been a miscarriage of justice are conveniently set out by Gleeson CJ, with whom McInerney J agreed, in R v Birks (1990) 19 NSWLR 677 at 685 as follows:

"1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule, an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

The important matter, of course, is to discern in the circumstances identified that they have occasioned, singly or in combination, a miscarriage of justice in the sense that the accused person may have been deprived of a chance of acquittal which was fairly open: Mraz v R [1955] HCA 59; (1955) 93 CLR 493, or that the applicant has been deprived of a fair trial: R v Glennon [1992] HCA 16; (1992) 173 CLR 592.

I would reject this ground generally for the reasons given by Pidgeon J, but also because I consider that the complaints about the failure to object to inadmissible evidence are not made out and the fact that the defence led evidence of a prejudicial character for no forensic purpose is also not established. As Pidgeon J has said, it was a clear tactic on the part of the defence to have before the jury evidence of various investigations and allegations against the applicant which, it was suggested, had in truth failed to produce any evidence implicating the applicant in the conspiracies alleged or any other criminal conduct. The way in which Gwilliam's report was dealt with was part of that strategy. The merits of the strategy might be debated, but in my opinion it was productive of no miscarriage of justice in the sense discussed above: cf Suresh v R [1998] HCA 23; (1998) 153 ALR 145.

Nor, I think, is it made out that counsel's final address to the jury revealed the sort of incompetence which would justify appellate intervention. The address was short, to the point and sought to address the central point of the defence that there was, in truth, no substance in the case against the applicant. It might have been done differently, but that is of no moment. Finally, it seems to me that it is not established that there was any inappropriate behaviour by counsel in the presence of the jury such as would give rise to a conclusion that the intervention of this Court is required to set aside the convictions which resulted from the trial. In my opinion also, the application for leave to appeal should be dismissed.