R v Lewis [1992] QCA 223

It seems convenient to consider first the strength of the submission that there should have been a stay, as a separate point, and then go on to deal with the conduct of counsel for the prosecution.

The procedural history of the District Court's treatment of pre-trial publicity is as follows. The matter first came before the District Court on 14 May 1990, when counsel for the appellant contended that the defence should be allowed to challenge for cause, as contemplated by s.610(2) of the Criminal Code; that provision permits objection to a particular juror on two grounds, the second of which is:

"That the juror is not indifferent as between the Crown and the accused person".

The purpose of counsel's application was to obtain permission to question prospective jurors.

In support of that application, counsel relied upon a considerable quantity of material showing that the conduct of the appellant and matters related to it had been extensively discussed in the media from early in 1987 to the date of the proceedings. Counsel for the Crown opposed the application, on the grounds that the material did not show a probability of prejudice against the appellant and that much of the material produced was favourable to the appellant. It had been held in Manson [1974] Qd.R. 191 and in other cases that, as under the general law, there is under the Code no right to cross-examine a juror to establish that he is not indifferent as between the Crown and the accused, unless there is first shown a foundation of fact creating a prima facie case: see the discussion of Manson in Stuart and Finch [1974] Qd.R. 297 at p.326. It was this obstacle which counsel for the appellant sought to overcome by the material which has been mentioned.

The judge held that the material did not establish:

"... a prima facie probability of prejudice of the kind which would warrant departure from the normal method of dealing with such possible prejudice during a trial".

His Honour went on to hold, in effect, that the matter could be dealt with by appropriate directions to the jury.

The question of pre-trial publicity was raised again when the case came before the District Court on 18 March 1991 (having in the meantime been considered in the Court of Criminal Appeal) for the holding of the trial which led to the convictions now the subject of appeal. Then counsel for the appellant made on 19 March 1991 an application for a permanent stay of proceedings, arguing that this was justified on the basis of certain publicity associated with the trial and by other circumstances which do not now require to be mentioned.

As far as the publicity was concerned, counsel for the appellant relied upon material of the same kind as had been before the judge on the application made in 1990, just discussed. He also relied upon certain additional publicity connected with the proceedings in the Court of Criminal Appeal. As to the latter, counsel argued, and it appears to be correct, that it might have made the public aware that evidence which the Crown might otherwise have called had been excluded by the District Court.

After extensive argument, the judge refused the application for a stay, saying in substance that although the publicity might have given people who would comprise the jury a preliminary view, there was no reason to think that the jury would ignore directions cautioning them to put out of their minds anything they might have heard outside the courtroom concerning the appellant.

As has been mentioned above, before this Court the publicity was relied on again and it was said that the proceedings should have been stayed; it was also argued that the publicity produced a miscarriage of justice and an unsafe verdict. Counsel sought to place before the Court, in addition to the extensive material which had been before the trial judge, the 1989 report of Mr. G.E. Fitzgerald Q.C. (as he then was) who had been commissioned to inquire into "possible illegal activities and associated police misconduct", the expression quoted being taken from the name which the Commission of Inquiry bore. The Court was pressed to accept the view that what the report said would have become known to people on the jury.

It is convenient to deal first with the question of the application relating to the report of the Inquiry. Counsel for the appellant argued, and it may for the purpose of the argument be accepted, that the report conveyed the following:

"(a)for many years, up to and including the time that Bischoff was Commissioner of Police, there was considerable corruption in the police force albeit of a not particularly organised kind;

(b)the appointment of Whitrod as Police Commissioner was a new beginning for the police force, Whitrod being honest and intelligent and determined to stamp out corruption;

(c)up to about 1974, Jack Reginald Herbert had played a major and finally central role in the organisation of a corrupt system in the police force;

(d)during Whitrod's period, corruption greatly receded;

(e)Lewis and others (including his former co-member of the 'Rat Pack', Tony Murphy) engaged upon a campaign against Whitrod;

(f)that campaign was successful, Lewis ultimately becoming Commissioner of Police;

(g)honest police were moved out of positions of power whilst Lewis was in control, and corrupt and dishonest police moved into such positions;

(h)after Lewis' appointment, Jack Reginald Herbert organised and maintained a massive and sophisticated system of corruption".

Counsel for the appellant conceded that the report did not find that the appellant was corrupt, but said that the "basic assumption" of the report was the appellant's corruption.

It would not appear to be a proper exercise of discretion to allow the report in as part of the evidence before this Court. The appellant's counsel at first instance had ample opportunity to consider what material should be used as a basis of the argument there advanced on two occasions, about ten months apart. Further, there is no evidence that, or reason to assume that, the report was so widely distributed amongst the community that members of the jury would be likely to have read it. Lastly, the nature and content of the report were extensively discussed in the media, particularly in Queensland, as the material placed before the primary judge shows; it is probable that members of the jury would have gained knowledge of the content of the report from discussions in the media, rather than from reading the document itself. More particularly, the propositions quoted above from counsel's arguments all appear able to be derived from the media reports of the evidence given before the Inquiry or of the Commissioner's findings based upon that evidence.

Counsel for the appellant invited this Court to read in full the material showing the nature and extent of the publicity, but did not attempt to summarise its effect. He submitted, however, that its character was such that it had become "no less essential for anyone in Queensland to believe in the guilt of the appellant than ... to believe in gravity".

It was pointed out for the respondent that the publicity was by no means all adverse. The appellant, obtaining from time to time substantial help from the newspapers, had done his best to defend his reputation and publicly to condemn those who had accused him and, in particular, the witness Herbert. The bulk of the publicity was, however, undeniably adverse to the appellant. Examples from the newspapers should be given. On 28 October 1987, it was reported that one Burgess gave evidence to the Inquiry relating to his having accepted bribes during a period of service as a police officer in the Licensing Branch. When asked whether he thought this was risky, he replied: "I thought if the Commissioner was in on it, it would be o.k.". Burgess gave evidence at the appellant's trial. On 2 November 1987 it was reported that the appellant was referred to as a shark who takes a big bite, in connection with receipt of bribes. On 5 November 1987, one Parker, another corrupt police officer, was reported as having given evidence that he was sure the appellant was involved in corruption. On 9 November 1987, Parker told the inquiry, according to a report of that date, that the appellant had told him in connection with relevant matters that "if we all stick together everything will be all right". On 2 February 1988, a newspaper article reported that an ex-policeman told the Inquiry he believed the appellant sanctioned everything Parker did, including the payment of bribes. On 23 February 1988, a newspaper article referred to a police raid on illegal gambling premises in 1977; it mentioned that the appellant, then a relatively new Police Commissioner, said that the raids would continue, but they did not and illegal casinos flourished and multiplied with little hindrance from the police. On 11 March 1988, it was reported that a police officer said the appellant had ordered an investigation into the Licensing Branch, which led to its effective officers being transferred; the officer thought this had happened because the branch had been too successful against SP bookmakers. On 6 May 1988, an article referred to a remark by a senior officer to the effect that corruption allegations could not be taken into the Commissioner's office. On 6 July 1988, it was reported that an Inquiry witness said that one Rooklyn had paid the appellant $25,000 for an unfavourable report on the introduction of poker machines into Queensland. On 29 August 1988, an article reported that the Inquiry had been told that the appellant approved a system of corrupt payments soon after he became the Commissioner, in 1976. On 29 November 1988, one Sir Edward Lyons gave evidence that in 1985 the appellant had asked him how to invest $150,000 and that Lyons had described it as "one of the biggest shocks I have had in my life". On 5 February 1989, it was mentioned in the "Sunday Sun" that the witness Herbert had said he had paid the appellant more than $611,000 between 1979 and 1987, but that the claim was denied by the appellant. On 25 April 1989, there was reference to a claim by the appellant that he would not receive a fair trial if charges were brought against him as a result of the Inquiry. There was discussion of a special Act of Parliament declaring the Office of Commissioner vacant, which had allowed the government to withhold moneys which would otherwise have been due to the appellant.

These examples are not randomly chosen, but are intended to be representative of the material which may be thought especially damaging. It was argued for the respondent that by the time the trial began last year, a considerable period of time had elapsed since the Commissioner ceased to receive evidence and the memories of members of the jury as to relevant events would have faded. That is true with respect to the details, but it would have been a rare member of the public, at the time the trial began, who was unaware of the ample evidence of police corruption which had been aired in the Inquiry, or of the suggestions that the Commissioner was involved or of the fact that the Commissioner was dismissed by the government on account of these revelations. Plainly, members of the jury might well have approached the case with an initial tendency towards a poor opinion of the appellant and especially of his standards of probity as the highest police officer in the State. Much of the adverse publicity was an account of evidence given to the Inquiry which was, in substance, given again at the appellant's trial.

Counsel for the appellant contended that the situation was unique, that the appellant could never have a fair trial, that no adjournment, however long, could have helped, that a permanent stay should have been granted and the appellant was entitled in this Court to a verdict of acquittal.

As has been mentioned, the judge rejected similar contentions below, on the ground that the proper course was to endeavour to ensure a fair trial by appropriate directions. That he gave such directions is not in dispute, but the appellant says that the jury was so gravely prejudiced against him that nothing the judge said, however strong and emphatic, could achieve a fair trial.

The judge appears to have paid careful attention to the considerations put before him in favour of the contention that it was necessary to question prospective jurors and on the application for a stay. His Honour's conclusion that the problem could and should be handled by giving directions was a discretionary one. As appears from the remarks made by members of the High Court in the two decisions discussed below, this is an important element to be kept in mind when considering the validity of the appellant's attack on the judge's ruling.

Recent authority in the High Court is such as to make it unnecessary to analyse earlier authorities at any length or to deal with the voluminous academic writings. It is of interest to note, however, that some of the latter work records attempts to determine the effectiveness of means of reducing bias engendered by pre-trial publicity and, in particular, judicial directions. See, for example, the paper by Kramer Kerr and Carroll in "Law and Human Behaviour" Volume 14 No. 5 (1990), especially at pp.412, 430 and 434; see also the Australian Law Reform Commission paper "Prejudicial publicity in the courts" published in November 1986. These writings support the view that "there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful": Murphy [1989] HCA 28; (1989) 167 C.L.R. 94 at 101.

The trend of authority in Queensland is against the appellant. In Stuart and Finch the Court of Criminal Appeal approved the course taken by the trial judge of refusing, as the judge did in this case, to allow questioning of jurors with a view to supporting challenges for cause. The case concerned a mass murder which received enormous publicity; the circumstances were such that there must have been considerable animus against the accused persons within the community, including the jury. A second authority illustrating the position is Convery, Hapeta and Jones (Court of Criminal Appeal, 13 October 1989, unreported). In that case, on the very day on which the jury convicted Hapeta of unlawfully trafficking in heroin and unlawfully having heroin in possession, there had appeared an article in the Courier Mail displaying photographs of persons said to be Sydney criminals, including Hapeta, whose photograph was captioned "Hapeta ... vice empire". The article, in the Court's view, presented "Hapeta in a very poor light and ... was calculated to prejudice his fair trial". The trial judge had declined to discharge the jury and instead gave them a further warning not to have regard to matters heard outside the Court. After citing authority in favour of the view that there is "every reason to have confidence in the capacity of juries" to ignore such matters, the Court of Criminal Appeal held that the judge had not been shown to have erred in the exercise of his discretion. In that case, Hapeta's complaint was somewhat weakened by the fact that the article had not asserted that he was involved in the drug trade, but said that his "vice empire" was based on prostitution; he had given evidence that he was a brothel keeper.

The decision in Convery, Hapeta and Jones was based in part on that of the High Court in Murphy, a recent treatment in that Court of the problem under discussion. That case concerned the convictions of a number of men for murder, the victim being a young woman whose appalling treatment by her attackers received extensive attention in the media and aroused widespread public revulsion. On 16 March 1987, one of the people accused pleaded guilty at the beginning of an intended trial and that was publicised the same evening. Another accused was described in the media as a prison escapee. The judge discharged the jury on the ground of the potential prejudice to the latter accused, which he thought could not be adequately dissipated by directions.

On the same day and the following day, there was further media reference to one of the accused being a prison escapee and when the court reconvened five days later, an application was made to the judge to adjourn the trial for six months. The judge refused, saying that the problem could be dealt with by directions. He remarked:

"I am fully conscious of the right of an accused person to a fair trial. I am also conscious of the interests of the community in having trials brought on with regularity and expedition".

The High Court, upholding the decision of the New South Wales Court of Criminal Appeal, rejected appeals by the accused so far as they were based upon the refusal of the adjournment. The Court emphasised the discretionary nature of the trial judge's function and the advantage the judge has in determining the best means of securing a fair trial (pp.105, 124).

Counsel for the appellant in the present case contended that the appellant was entitled to a fair trial and nothing less and, in particular, not an almost fair trial. By that he appeared to imply that unless one can be sure that a jury will consider its verdict unaffected by notions gained before the trial began, the trial will not have been a fair one. The Court in Murphy made some remarks relevant to this proposition. Mason C.J. and Toohey J. said:

"It is fundamental that, for an accused to have a fair trial, the jury should reach its verdict by reference only to the evidence admitted at trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in 'sensational' cases makes such a pristine approach virtually impossible" (pp.98, 99).

After referring to various remedies which might be available, their Honours went on:

"It may be that in a particular case neither of these remedies will be fully effective" (p.99).

"The importance of a fair trial to an accused must not be underestimated. But it is not the only consideration. It is important that anyone charged with a criminal offence be brought to trial expeditiously" (p.99).

The ideal of absence of pre-conceptions, in circumstances of the present kind, must it appears be weighed against other considerations. That is explicit in the reasons of Brennan J.:

"There is a legitimate public interest in knowing of the solving of serious crime as well as a legitimate public interest in having the trial of alleged criminals conducted free from prejudice. There may be a tension between the two interests of the public which has to be resolved ...

The avoidance of delay in a trial as well as bias for or against an accused are both aspects of a fair trial. Sometimes those aspects are in competition. When they are, the trial judge must form a prudential judgment in determining how fairness can best be achieved. In reaching his decision the trial judge is entitled to consider whether any bias for or against an accused can be mollified if not abated by appropriate directions and whether a procedure of questioning jurors on a challenge for cause is an appropriate safeguard against the empanelling of biased jurors" (pp.122, 123).

The expression "mollified if not abated" should be noted. Neither set of reasons holds that the trial is vitiated if the former result is achieved but not the latter. Deane J.'s reasons are consistent with this. Dealing with the refusal to adjourn trial by reason of the likelihood of prejudice, his Honour remarked:

"The likely prejudice which would result from knowledge that one of the accused was a prison escapee would obviously be extremely difficult to dispel even by strongly worded directions. Against that were all the ordinary disadvantages of a lengthy adjournment of a criminal trial. Perhaps most important, the brutality and consequent notoriety throughout New South Wales of the abduction, rape and killing of Mrs. Cobby meant that it was impossible to be confident that one or more members of any future jury would not have acquired and retained either the information that one of the accused was a prison escapee at the time the crimes were committed or some other comparably prejudicial piece of inadmissible evidence about one or more of the accused ... It has not been suggested that the vigorous directions which his Honour gave in a sustained endeavour to overcome the risk of prejudice through extraneous information were other than appropriate to the circumstances" (p.125).

The High Court's remarks support the view that, at least in some circumstances, an accused must be content with a trial in which the court does the best it can for him by way of directions, without producing any certainty that preconceptions derived from media treatment of the facts of the case will be utterly dispelled by the time the jury comes to consider its verdict. Were that not so, then it might be impossible lawfully to try a person such as Jack Ruby, whose crime was witnessed by millions on television. It may be that if adverse publicity is deliberately generated by persons for whom the Crown should properly be held responsible, then justice would require that a permanent stay be granted; otherwise, it is not easy to imagine circumstances in which publicity before or during a trial could entirely prevent the pursuit and eventual completion of a prosecution: cf. Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23 at 47.

A similar problem has recently been considered by the High Court in Glennon [1992] HCA 16; (1992) 66 A.L.J.R. 344. It is unnecessary to set out the facts of that case and enough to say that it has in common with the present that an unsuccessful application for a stay of proceedings was made on the ground of prejudicial pre-trial publicity. By a majority, the Court granted the Crown special leave to appeal against verdicts of acquittal entered by the Victorian Court of Criminal Appeal, allowed the appeal, set aside the Victorian Court's orders and remitted the matter to that Court for consideration of outstanding grounds of appeal.

The dissenting judges (Deane, Gaudron, McHugh JJ.) would have refused special leave on the ground that the substantial question in the case was one of fact. Their Honours said that the possibility could not be excluded as a matter of law that -

"... an 'extreme' or 'singular' case might arise in which the effect of a sustained media campaign of vilification and pre-judgment is such that, notwithstanding a lapse of time and careful and thorough directions of a trial judge, any conviction would be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and prejudgment. In such a case, a permanent stay may be granted" (p.358).

Two members of the majority, namely the Chief Justice and Toohey J., commented upon the matter in passages which should be quoted, rather than summarised, in view of their importance in the decision of the present case.

"Apart from the unique case of Tuckiar v. The King [1934] HCA 49; (1934) 52 C.L.R. 335, there has been no other instance in the judicial history of this country of an accused's conviction being quashed and a verdict of acquittal then entered on account of the potential prejudicial effect of pre-trial publicity. The decision of the Court of Criminal Appeal is all the more remarkable in that it rejects the discretionary judgment of Crockett J. refusing a stay in circumstances where that discretionary judgment appears to disclose no error of principle. Not only does the Court of Criminal Appeal appear to have erred in principle in rejecting the assessment made by Crockett J., but the Court also appears to have given little, if any, weight to the community's right to expect that a person charged with a criminal offence be brought to trial (Barton v. The Queen [1980] HCA 48; (1980) 147 C.L.R. 75, at p.102; Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23, at p.33; Carver v. Attorney-General (N.S.W.) (1987) 29 A.Crim.R. 24, at p.32), to the means available to a trial judge to ensure a fair trial and to the steps taken by the trial judge in the present case (pp.347).

It was common ground that the respondent's appeal could not succeed unless it were shown that Crockett J.'s decision was erroneous in accordance with the established principles governing appeals from discretionary judgments. Accordingly, it was for the respondent to show that Crockett J. acted upon a wrong principle, took into account some extraneous consideration, failed to take into account a relevant consideration or mistook the facts (House v. The King (1936) 55 C.L.R. 499, at p.505; Reg. v. Shrestha [1991] HCA 26; (1991) 65 A.L.J.R. 432, at p.437; [1991] HCA 26; 100 A.L.R. 757, at p.766). If convinced of such an error but not otherwise, the Court of Criminal Appeal was entitled to set aside the decision of Crockett J. and exercise its own discretion (p.348).

The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J. observed in Hinch (1987) 164 C.L.R., at p.74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them (p.349).

The majority's reasoning was also based on materials which could not support the inferences drawn, took little, if any, account of the effect of the trial judge's instructions and disregarded the community's right to expect that a person accused of a serious criminal offence will be brought to trial (p.350).

On the other hand, a permanent stay will only be ordered in an extreme case (Jago (1989) 168 C.L.R., at p.34) and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences' (Barton (1980) 147 C.L.R., per Wilson J. at p.111) (p.350)".

The present case has in common with Glennon that the question is whether a discretionary judgment reached below should be reversed; here, as in Glennon, it does not appear that any error of principle can be pointed to as a ground of attack upon the treatment of the matter by the trial judge. It is also necessary to note that the reasons of Mason C.J. and Toohey J. are authority for the view that weight has to be given to the community's right to expect that the appellant be brought to trial.

The other two members of the majority were Brennan J. and Dawson J.; the former gave reasons with which the latter agreed. Again, in view of the importance of the matter to the decision of this case, it is desirable to quote at some length:

"From these formulations it appears that some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest. Clearly enough, though the fairness of a criminal trial may be at some risk in such a case, the trial proceeds. If a punishable contempt occurs, ex hypothesi there is a real risk of prejudice - perhaps, to adopt the formulation by Mason C.J., a substantial risk of serious interference with a fair trial. But it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted (p.353).

... pre-trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal law's protection of society and its members to refuse to allow the law to take its ordinary course in these cases. The administration of criminal justice by the courts, which proceeds inexorably to its conclusion in each case, would be adventitious if trials could be halted by a punishable contempt (p.353-354).

... these protective mechanisms cannot guarantee perfect impartiality, as Mason C.J. and Toohey J. recognized in Murphy v. The Queen (ibid., at p.101):

'It may be said that there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial' (p.354).

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial (p.354).

In my respectful opinion, his Honour's conclusion was clearly right either on the ground that the present case is not an 'extreme case' or on the ground - which, in my respectful opinion, is a ground better founded on principle and more realistic in practice - that the trial of the applicant, provided it was as fair as the Court could make it, would produce no miscarriage of justice (p.355).

Southwell J. was, in my respectful view, right in holding that the risk of a juror's knowing of the respondent's 1978 conviction was outweighed by the interests of the community in ensuring that a prosecution for the serious offences charged against the respondent was pursued provided, of course, that the trial judge took all appropriate steps available to him to secure a fair trial" (p.355).

In my opinion, it is not necessarily enough, in order to justify a permanent stay, to show that the offences alleged against the appellant have been thoroughly canvassed in the media and that a great deal of material prejudicial to the appellant has been published. If it is the law that, in extreme circumstances, the only proper exercise of discretion would be to grant a permanent stay, it does not appear that the circumstances of the present case are sufficiently extreme. The matter was argued in this Court as if it was the worst conceivable case of pre-trial publicity, but plainly it was not. One would expect the worst case to be one in which the crime alleged was one of horrendous kind, inciting universal revulsion (as in Murphy) and where the published material, perhaps pictorial evidence, was such as to be virtually conclusive of guilt. Even in circumstances of that kind, in which it might be difficult to induce a jury to take arguments on behalf of the accused seriously, it is not clear that the accused would be entitled to a permanent stay. In the present case, it could not I think fairly be said that one would expect the jury to have been intractably set on convicting. The Crown came to trial with a substantial difficulty, namely that its main witness - Herbert - was a man of such flawed character as to make it difficult to have him accepted. Some other important witnesses relied on by the Crown were also of limited credibility. The prosecution's problems were unlikely to be overcome by mere prejudice on the part of the jury and the case was one in which one could realistically expect the jury properly to scrutinise the evidence proffered - especially if, as occurred, the judge's directions strongly urged a cautious or sceptical approach to the Crown case. Nothing more could have been done by the judge to focus the jury's attention on the evidence before the Court and to induce them to ignore all prior knowledge. His Honour thought the proper response to the difficulty was to give directions and no ground has been shown to justify interference with this discretionary judgment.

This branch of the appellant's argument must be rejected.

Mr. Hanson Q.C., who put the argument for the respondent on this aspect of the case, did not appear for the prosecution below. In what follows, the expression "prosecution counsel" is intended to refer not to Mr. Hanson but to counsel who appeared below.

The principal criticisms advanced under this head were to the effect that attempts were made to induce the jury to approach the case as throwing up a problem, namely corruption in the community, to the solution of which they should contribute; that it was suggested to the jury that they should not unduly concern themselves with the technicalities of the trial judge's ruling on corroboration; that it was urged that they should not worry too much whether the evidence supported the essentials of the charge but should rather be inclined to convict if they were satisfied that the appellant was involved in corruption with Herbert; that in general the address appealed to emotion and traded on what counsel for the prosecution hoped would be a predisposition in the jury to take a part in the stamping out of the evils disclosed during the course of the Inquiry.

The prosecution addressed at great length and it would be a little misleading to treat the passages on which the appellant principally relied as representative of the tone of the address. It consisted largely of what appears in print to be a dispassionate discussion in great detail of the evidence before the Court.

An aspect of the address which the appellant particularly criticised was that concerning the relationship between the evidence of the witness Herbert and that of the numerous other witnesses called for the Crown. It was argued that the prosecution address subverted the judge's authority, that the judge had distinctly ruled that Herbert's evidence was entirely uncorroborated and that by telling the jury that witnesses other than Herbert confirmed what he said, the prosecution counsel attempted to persuade the jury that the judge had given a wrong direction in law.

The prime example to which counsel for the appellant pointed was the following:

"Now, his Honour intends to direct you that there is no evidence capable in law of corroborating the Herberts. That is a direction on the law which we must therefore accept - whether we agree with it or not is not to the point. It means that you should scrutinise the evidence of any accomplice with care before acting on his or her evidence.

In the end, after considering all of the evidence, you may think that the absence of evidence technically amounting to corroboration does not in the circumstances of this case matter much because all of the evidence when taken together, in our submission, so overwhelmingly supports the evidence of Jack Herbert on the essential matter of whether he paid Lewis in the relation to the protection of illegal activity.

We will be submitting, members of the jury, that there is an enormous quantity of evidence supporting Herbert's reliability on the critical issue as to whether there was a corrupt association between himself and the accused. If this is the view which in due course you accept, having considered all the evidence, you may think in the end that it does not matter that the evidence cannot technically be said to corroborate Herbert for the purposes of the section of the Criminal Code that I have read from".

The first thing to notice is precisely what the judge did tell the jury. It is not intended as a criticism of his Honour to say that, although it was clear that he was ruling that there was no corroboration of Herbert, what that implied was not quite so clear. This may be simply a reflection of a degree of obscurity which has come to be inherent in the notion of corroboration.

The strongest direction the judge gave in this connection is exemplified by the following remark:

"The evidence of Jack Herbert is not corroborated - that is, it is not confirmed or supported - by any of the evidence adduced during this long trial".

One unversed in the intricacies of the law of corroboration might inquire: how then was the mass of other evidence relevant? Plainly none of it, as was conceded on both sides, was sufficient to prove the agreements alleged between Herbert and the appellant; for that, acceptance of Herbert's evidence was essential. If the other evidence had no function in confirming or supporting Herbert's story, it is difficult to see what was the point of it.

Another direction, with respect to that part of the case which concerned protection of prostitution, was given after a survey of the numerous witnesses called to support the Crown's case in that respect; his Honour said simply:

"None of this evidence is evidence against the accused".

Again, it might be noted that since there was only one accused, if the evidence did not support the case against him, then presumably it should have been excluded.

A more cautious direction given by his Honour was as follows, in the course of a discussion of matters relied on by the Crown to support Herbert:

"Although, depending on how you view that evidence, you might come to the conclusion that some or even all of it is consistent in a general sense with Herbert's story, none of that evidence is capable of corroborating - that is, either supporting or confirming - Herbert's evidence that a corrupt relationship existed between himself and the accused from which arose the corrupt agreements alleged in the indictment".

His Honour repeated these remarks when redirecting the jury. After that, the Crown asked the judge to direct or redirect the jury -

"... in the way in which such items of evidence are able to be used by them".

"I told them that they are consistent. If they think they are consistent with Herbert's story, then they are. That's what it amounts to".

In essence then, the judge regarded the evidence of witnesses other than Herbert as capable of being found to be consistent with his evidence, but not capable of confirming or supporting it.

The distinction attempted to be drawn by counsel between evidence confirmatory of Herbert's story and what is, strictly speaking, corroboration is mentioned in the Supreme Court of Victoria in Matthews and Ford [1972] VicRp 1; [1972] V.R. 3 at 20:

"Then it is said that the judge misdirected the jury as to what was termed 'layman's corroboration' as distinct from 'legal corroboration'. The charge to the jury did not make use of either of those terms. The jury were told that corroboration had a technical and strict definition, and this (as indicated above) was correctly set out. They were also told that there was a great body of evidence in the case which was not corroboration of an accomplice within that strict definition, but which nevertheless was not necessarily of no value, and might be used to complement the evidence of an accomplice and add strength to it, it being for the jury to decide whether it was helpful".

If this analysis is correct, then evidence which complements that of an accomplice and adds strength to it is not necessarily corroborative of it.

On the other hand, the reasons in the House of Lords given in Kilbourne [1973] A.C. 729 contained passages seeming to deny the existence of this distinction. Lord Reid said:

"There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it" (p.750).

"Corroboration is therefore nothing other than evidence which 'confirms' or 'supports' or 'strengthens' other evidence ... It is, in short, evidence which renders other evidence more probable. If so, there is no essential difference between, on the one hand, corroboration and, on the other, 'supporting evidence' or 'evidence which helps to determine the truth of the matter'. Each is evidence which makes other evidence more probable" (p.758).

Lord Cross of Chelsea expressed himself similarly (p.760). The orthodox view, however, is that there is a difference of kind and not merely of degree between evidence which is "technically" corroborative and evidence which, while admissible in support of the Crown case, has not the characteristics of corroboration. One may be pardoned for harbouring the suspicion that the distinction, the nature of which has so far escaped precise definition, is chimerical.

Mr. Hanson contended that the judge was wrong in his directions on this subject, but counsel for the appellant argued that whether or not he was wrong, counsel had no right to address the jury in a way which was inconsistent with the judge's directions.

It was argued that, while paying lip-service to the judge's authority by inviting the jury to accept the judge's view that there was no corroboration of Herbert, the prosecution counsel sought to undermine it by telling the jury that there was evidence to support Herbert. Counsel contended in effect that if the prosecution counsel made remarks about the evidence which were inconsistent with what the judge had indicated were to be his directions to the jury, the conviction should be set aside, even if what the prosecution said was legally correct.

It is indeed manifest that every member of the Bar must absolutely accept the judge's directions to the jury on the law, from which it follows that there is an obligation not to put to the jury arguments against those directions.

The question whether the appellant was correct in arguing that counsel's remarks about the capacity of evidence other than Herbert's to support what Herbert said vitiated the trial depends to some extent on whether the jury was misled and also on whether what counsel said had a tendency to deprive the appellant of a fair chance of acquittal.

The matter may be examined by taking three topics. They are not by any means exhaustive of the evidence which falls to be considered as possibly corroborative, but are merely illustrative; the Crown put forward a long and complex case. There was evidence other than that of Herbert about payments in respect of what were called "in-line machines". There was also such evidence in relation to an allegation that one Jack Rooklyn paid the appellant $25,000 for the submission to the State Government of a report adverse to the introduction of poker machines in this State. It appears that there was evidence which, if accepted, would tend to make the jury more inclined to accept Herbert's evidence on these topics. There was also evidence which supported Herbert's account of his having exercised influence in such a way as to achieve the appellant's co-operation in appointments of corrupt officers to sensitive positions.

Evidence other than that of Herbert suggested that the appellant and Herbert knew each other well at relevant times. Although Herbert had, a few months previously, been charged with official corruption, the appellant and his wife attended the wedding of one of Herbert's children in May 1975 and there was clear evidence in the appellant's diaries of a close connection with Herbert.

Herbert was acquitted of the corruption charges in October 1976, shortly before the appellant became Commissioner of Police. In the following year, 1977, Herbert went to work for Jack Rooklyn who was involved in the in-line machine business. In late 1977, Herbert was employed by Tony Robinson who was also involved in, amongst other things, in-line machines. Independent evidence showed that companies controlled by Rooklyn and Robinson held a substantial proportion of the in-line machine market in Queensland. There was independent evidence that, contrary to law, the in-line machines were used as gambling devices; that is, moneys were paid to the public using the machines on the basis of the results of their operations. There was independent evidence suggesting that demands were made for the payment of moneys by way of protection for the illegal use of these machines and that such payments were made. Herbert's version of events was that he saw the appellant at the residence of one Maxwell twice in late 1977 and not long after that, and that arrangements were made between the two for the payment of moneys from Robinson to the appellant for the protection of in-line machines. Subsequently, Rooklyn was induced to act similarly, a sum of $2,000 each month being paid. Herbert used collect the money and pass $1,500 of it on to the appellant.

According to Herbert, a code was agreed upon between Herbert and the appellant, numerals standing for places at which he and the appellant were to meet. Entries were found in the appellant's diary which were, to some extent, supportive of Herbert's evidence about the code. Herbert said that number 1 stood for the downstairs bar in the Crest Hotel and 2 for the corner of Elizabeth and Albert Streets and 3 for the Park Royal Hotel. In the diaries, 1 has beside it "A & E Sts", 2 has "PR" and 3 "C". Although Herbert's version of the code does not precisely correspond with the diaries, its degree of correspondence is surprising and there was no evidence other than that of Herbert to explain why the Commissioner of Police should have in his diary an apparent code for such meeting places. The appellant's diaries also refer, beside the number 9, to "Jack R" and beside the number 10 "Tony R". These were not, of course, necessarily references to Jack Rooklyn and Tony Robinson but there was independent evidence, in the diaries, of the appellant's having a connection with both these men. For example, the appellant's diary records that in 1978 A. Robinson introduced J. Rooklyn and the latter inquired about starting a "health studio" on the Gold Coast and that later in 1978 Rooklyn inquired if massage parlours were being legalised. The appellant's 1978 appointment book included Rooklyn's name, his Sydney address and his Sydney telephone number and also included a number (without any identification of a person) which was in fact Herbert's work telephone number. In 1978, there were references in the diaries to in-line machines and in 1979 an entry "To Crest Hotel re luncheon re machines in Police Club". Herbert said that he had told the appellant of an attempt to get in-line machines into that club and he (Herbert) told the appellant that the reaction was negative. Rooklyn then asked Herbert to arrange a meeting between Rooklyn and the appellant to discuss the matter and Herbert did so. The jury might well have thought it odd that the Police Commissioner was going to a hotel to discuss the subject.

The jury was entitled to infer from the independent evidence that there was a close connection between the appellant and Herbert at relevant times, including a period when Herbert was subject to a corruption charge himself, that Rooklyn was well enough known to the appellant to ask his advice about opening a massage parlour, that in-line machines were being operated illegally by people including Rooklyn and Robinson, that corrupt payments were being made in respect of that illegal operation and (as a matter of inference) that the illegality connected with the machines might have been expected to come to the knowledge of the appellant as Police Commissioner. It seems plain that the evidence other than that of Herbert was of such a kind as to make his version of events seem more plausible than it would otherwise have been. Herbert's evidence fitted in with the circumstances which were proved by evidence other than Herbert's, to adopt Lord Reid's language in Kilbourne at p.750.

Further, there was evidence from Herbert's wife Peggy that on one occasion she gave Lewis an envelope containing money in the foyer of Lennons Hotel; that occurred during the first six months of the Herberts' association with Robinson. There was no explanation in the evidence for the payment by Peggy Herbert to the appellant, other than that which the prosecution put forward. Peggy Herbert also gave evidence which, put simply, supported the prosecution's case that there was a close connection between the appellant and her husband at relevant times.

It appears likely that the evidence of Peggy Herbert and that of others mentioned below whose evidence might have been thought to be corroborative was disregarded by the judge on the basis that they were accomplices. The charges were of agreeing to receive money, not actually receiving it, although obviously evidence that money was paid would tend to support the proposition that there was a prior agreement to pay it. But even if, as may fairly be assumed, Peggy Herbert knew that the payment to the appellant was part of the system of corruption, the details of which she was quite familiar with, that did not necessarily make her a principal offender in relation to any of the offences of agreeing to receive payment: see s.7 of the Code. For example, her paying money by way of a bribe to the appellant was, if she knew the nature of the payment, an offence but it was not the offence of aiding the appellant in the commission of any of the offences with which he was charged. This point is further discussed below.

According to Herbert's evidence, the appellant told him about mid-1980 of the prospect of a committee being formed to investigate the introduction of poker machines in Queensland. Herbert told the appellant that Rooklyn would be vitally interested in keeping them out and that he would pay $10,000 for an adverse report about them. It was agreed that Herbert would arrange for two people called MacNamara and Garde to induce Rooklyn to do this. When approached, Garde said that Rooklyn would pay more and it was agreed that $25,000 would be asked for, $15,000 to the appellant and $10,000 to be distributed among the rest; the appellant agreed to that division. Rooklyn was willing to pay but wanted to see the appellant and Herbert arranged a meeting at the Crest Hotel where the matter was settled. While the appellant, Herbert and Rooklyn were talking, a waiter entered the room and was addressed by Rooklyn as "Serge". There was evidence from a Serge Pragliasco that he was asked to take a bottle of wine or champagne to one of the two penthouse rooms in the hotel; on entering he recognised Rooklyn and the appellant and spoke to Rooklyn. There was evidence that Pragliasco was maitre d' at the hotel until 10 August 1980.

According to Herbert, the appellant gave him a poker machine report to show to Rooklyn and Herbert went to Sydney to see Rooklyn at his home in Vaucluse. The report mentioned Rooklyn as a figure in the report of the Moffat Royal Commission. Eventually, Rooklyn paid the appellant and, according to Herbert, a meeting took place, again, at the Crest Hotel on 18, 22 or 23 December 1980. The appellant's diary recorded that the appellant went to the Crest Hotel at 5.30 p.m. until 6.55 p.m. on 23 December 1980 and recorded the appellant as having had contact with various people, including the Premier, concerning poker machines and the poker machine report. There was evidence that one Hayes, a police officer who, according to Herbert's account, was corrupt was, on the appellant's direction, on 27 May 1980, appointed chairman of a committee which had been established to examine the detrimental effects on the community of poker machines. Members of the committee gave evidence of having produced a report dated 9 July 1980, which did not include a particular passage suggesting that a decision on the introduction of poker machines be delayed. The appellant forwarded the report to the Police Minister, however, including the section which had been deleted by the committee.

A number of police officers gave evidence that there was, during the appellant's tenure of the office of Commissioner, a substantial system of corruption operating within the Licensing Branch. The Branch had to do, or should have had to do, with the policing of some of the illegal activities which, according to Herbert's evidence, the appellant was paid to protect. The circumstances were such as to be capable of implicating the appellant as Commissioner. It could only be put aside for the purpose of s.632 if the police officers involved in the corruption were accomplices of the appellant in respect of the offences with which the appellant was charged.

Herbert said that when he agreed with the appellant that payments were to be sought to protect S.P. bookmakers, it was stipulated that the Inspector and probably the Senior Sergeant of the Licensing Branch would need to be particularly chosen. Herbert's story was that the question of staffing of the Licensing Branch was discussed from time to time between the appellant and himself. The Crown adduced evidence that a series of Inspectors and Senior Sergeants of the Licensing Branch under the appellant were corrupt.

Hayes, mentioned above, was appointed Assistant Commissioner with jurisdiction over the Licensing Branch in October 1978 and remained there for more than two years. The jury was entitled to think this curious; the appellant's own diaries for October 1978 record the Premier as having said that Hayes was not to be "over" the Licensing Branch.

One Rigney was appointed Inspector of the Licensing Branch in circumstances which supported Herbert's evidence that he had influence with the appellant in this area. Herbert said he recommended Rigney to the appellant as a person to be in charge of the Licensing Branch and that he knew Rigney had been involved in corrupt activities previously. Herbert said he himself told Rigney that he was to be appointed. Rigney, who denied corruption, said that the appellant told him at a Christmas function in 1978 that the appellant had a job for him, but did not say what it was. He said Herbert came to his home early one morning unannounced and told him that he believed that Rigney was to be in charge of the Licensing Branch and Herbert said: "Well, Terry and I would like a quid. Watch what you are doing and don't stand on our toes".

Herbert said that towards the end of Rigney's appointment to the Licensing Branch, he recommended one Dwyer to the appellant as someone he knew to be corrupt. Dwyer was duly appointed Inspector, having been approached in a similar way to Rigney. That is, the appellant told Dwyer he had a place in mind for him (without saying what it was) and later Herbert came to see Dwyer and told him that the appellant wanted to know if Dwyer was prepared to take on the Licensing Branch. There was then, according to Dwyer, a discussion between himself and Herbert relevant to corruption and a few days after that he was told he was to be in charge of the Branch. Dwyer gave evidence of his participating in the corrupt system and that was supported by other independent evidence.

One Bulger was appointed Senior Sergeant of the Licensing Branch on the suggestion of Hayes, who later became Inspector in charge of the Licensing Branch; Bulger was admittedly corrupt.

One Burgess, another corrupt officer, was the subject of a conversation between Herbert and the Commissioner in which the latter said that Burgess would be put into the Bureau of Criminal Intelligence "for our own purposes". The appellant later told Herbert that a deputation from the C.I.B. had been to see him to say they did not want Burgess. Diary entries of the appellant in June 1984 showed that the deputation (a detective called O'Brien) and the officer in charge of the Bureau did not want Burgess. The senior applicant for the position was a man called Radford who was working in the Bureau and was regarded by the officer in charge as having done a good job. The Assistant Commissioner with responsibility for the Bureau also wanted Radford. Again, the jury had before them an explanation from Herbert as to why Burgess, a corrupt officer, received the appointment despite his apparent unsuitability.

One Boulton replaced Bulger as Senior Sergeant of the Licensing Branch in September 1984. He was also corrupt. When he was promoted to Inspector and left the Licensing Branch, the appellant congratulated him and told him he had done a good job; there was discussion of his having had a "good teacher in Parker" who was also corrupt.

A similar story attached to the appointment of another corrupt officer, one Kelly.

It was, of course, a matter for the jury whether this series of appointments of corrupt police officers to the Licensing Branch was a mere coincidence or whether it was evidence which supported Herbert's evidence that matters were being so arranged by the appellant as to ensure the continuation of the system of corruption. It is difficult to see why this evidence was not regarded as being capable of corroborating Herbert. Presumably, the judge took the view that the corrupt officers were accomplices. His Honour gave his ruling about corroboration after a long and very detailed discussion of the evidence with counsel, but did not specify precisely why some portions of the evidence which, his Honour appeared to suggest during counsel's addresses, might be corroborative could not be put before the jury as having that character.

It was at least arguably correct that, as prosecution counsel said to the jury, there was evidence supporting Herbert's story; whether it strongly supported the story was a matter for them.

"A person may be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices, but the Court shall warn the jury of the danger of acting on such testimony unless they find that it is corroborated in some material particular by other evidence implicating that person".

The Code uses the word "accomplice" in s.632 without defining it. One view is that the word is best left undefined, so that the practical purpose of the section may be better achieved, namely to include all persons who are so involved with the commission of the crime charged as to make their evidence about it potentially unreliable. I would doubt whether the test can be as broad as this; a person who knowingly assists the accused to commit the offence charged must be an accomplice for the purpose of s.632, even if in the particular circumstances of the case, his having done so does not render his evidence unreliable. The flexible approach is discussed in the 3rd Australian edition of Cross on Evidence (para. 15090), but the authors suggest that in Australia the cases support an application of the formulation in Davies [1954] A.C. 378 at 400. That case is authority for the existence of three classes of accomplices: those who are guilty whether as principals or accessories in respect of the actual crime charged; receivers of stolen property, in relation to those who have stolen the property; parties to offences on which the Crown relies as proving system and intent and negativing accident - i.e. similar fact cases. In the present case, it does not seem to matter whether either the second or third category is properly included within the meaning of "accomplice" for the purpose of s.632.

It is my opinion that the basic rule is that a witness is an accomplice for the purposes of s.632 of the Code if he or she is a party to and liable to be convicted of having committed the offence charged. It is not, in my view, necessarily enough merely to show that the accomplice appears to be guilty of an offence closely connected with that charge. The point is illustrated by the decision of the Victorian Full Court in Olholm and McPherson [1925] ArgusLawRp 43; [1925] V.L.R. 377, although the Court did not discuss the problem. The accused were convicted of having conspired to get money from one Callaghan to protect Callaghan's daughter from prosecution. The evidence showed that Callaghan paid a substantial sum to the accused and others under the agreement the Crown set up. Mr. Cussen, for one of the appellants, put the argument that Callaghan was an accomplice:

"He had committed a crime connected with the detectives' offence - he gave the money, they took it" (p.381).

"Suppose the accused were charged merely with accepting a bribe, and Callaghan had bribed them. He would be an accomplice, though obviously he could not be placed on trial for himself accepting the bribe; yet his interest would be to curry favour by giving evidence against the accused" (p.381).

The Court decided that Callaghan was not an accomplice. In Ready and Manning [1942] VicLawRp 20; [1942] V.L.R. 85, the Court held that an accessory after the fact is not an accomplice for the purpose of the relevant Rule (p.93); see also the report of the case in the High Court 16 A.L.J. 59.

The decision of Philp J. in Sneesby [1951] St.R.Qd. 26 was concerned with the identification of an accomplice for the purposes of the Code. The question was whether two witnesses who were not guilty of the offence charged, but guilty of an offence consisting of precisely the same facts, were accomplices. Philp J. said they were because they -

"... although not chargeable with the actual offence with which the prisoner is charged, nevertheless have brought themselves, by the very acts to which they were party, within the criminal law ...".

In my opinion, one should read the words "the very acts to which they were party", in context, as a reference to exactly the same events as were relied on to constitute criminality in the accused. The peculiarity of Sneesby was that there the accomplices were not able to be charged with the precise offence with which the accused was charged, because of their ages.

Another possible exception to the basic Davies rule is that accomplice includes a person directly implicated in the accused's actions and guilty, not of precisely the same offence as that with which the accused is charged, but of any other offence of which the accused could be found guilty on the indictment: Khan [1971] W.A.R. 44. This is similar to, but not precisely the same as, the exception derived from Sneesby.

Sneesby and Khan, then, would I think include as an accomplice a person who as a participant in the very acts constituting the offence charged is himself guilty of an offence, whether or not being guilty of the precise offence charged against the accused. Additional authority providing at least some support for this view is to be found in McNee v. Kay [1953] VicLawRp 71; [1953] V.L.R. 520 at 530, Rigney (1975) 12 S.A.S.R. 30 at 37 and Ling [1981] TASRp 22; (1981) 6 A.Crim.R. 429 at 451.

A judge may see fit to direct a jury that a witness who is not within any of the four categories is nevertheless one who has a particular motive or opportunity to tell lies against the accused. The reasons for doing so may of course include that the witness has received an indemnity, the effectiveness of which is dependent on the content of the evidence the witness gives. But such a direction would not be one required by s.632 and failure to give it would not be in breach of that section.

In my opinion, the scope of the notion of an accomplice for the purposes of s.632 does not go beyond the four categories mentioned, if indeed it includes them all. It is not enough, in order to classify a witness as an accomplice for those purposes, to find that he has committed an offence which is connected with that charged against the accused. Accepting for present purposes that the second and third Davies categories are properly to be included (a point which it is not necessary to determine here), it is my view that a witness is not an accomplice unless he falls within one of the three Davies categories or has participated in the very acts constituting the offence charged in such a way as to be himself guilty of an offence. To return to Olholm and McPherson, there Mr. Cussen said that Callaghan:

"... had committed a crime connected with the detectives' offence - he gave the money, they took it" (p.381).

So here, all the offences with which the appellant was charged were of corruptly agreeing to receive money. The Crown alleged 15 such agreements. The onus was on the appellant to show that the witnesses said to be accomplices were, in truth, accomplices: Cox [1986] 2 Qd.R. 55. All the witnesses claimed to be accomplices, namely Herbert's wife and the corrupt policemen, did acts which, if there were such agreements as alleged, followed from them. What Mrs. Herbert did in paying money due under agreements was directly consequential and what the corrupt police did in participating in the distribution of money and acting so as to protect illegal activities was indirectly consequential on the agreements. It does not appear that Mrs. Herbert or the corrupt police could have been charged with any of the offences of making agreements between Herbert and the appellant, with which the appellant was charged. Nor, if one considers the fourth category mentioned above, was there any evidence that a witness other than Herbert took part in the making of the agreements charged.

The course of events then, although unsatisfactory, did not in my opinion vitiate the trial. The judge appears to have reached his view that none of the 100 witnesses in the case other than Herbert corroborated Herbert's account of events either by treating as accomplices of the appellant people who were not properly to be regarded as within that category, or by taking a narrow view of what evidence might constitute corroboration, or by both such means. It appears to me correct that, as was submitted on behalf of the appellant, the jury were invited to consider for themselves whether Herbert's evidence was supported by other evidence, despite the judge's view that there was no corroboration of Herbert's evidence.

In my opinion, the case was one in which there was evidence capable, depending on the jury's view of it, of being treated as corroborative. The words of s.632 are "... unless they find it is corroborated" (emphasis added), meaning unless the jury so find. It might have been better for the trial judge to have taken the course suggested in Matthews and Ford [1972] VicRp 1; [1972] V.R. 3 at 22:

"... after the giving of a proper warning and a proper explanation of corroboration, the jury be given a broad indication of the sort of evidence which may be treated as corroboration and, if thought desirable, an indication of the areas of the evidence in which it may be found, without further elaboration ...".

The discussion between counsel and the judge about whether there was corroborative evidence fit for the jury's consideration was extremely long and was almost entirely concerned with questions as to what inference the jury might reasonably draw from pieces of evidence. A random example of the sort of submission made was that, Rooklyn having gone to the appellant to discuss the possibility of legalisation of massage parlours, there was "nothing surprising" about the appellant's having then put Rooklyn's Sydney phone number in his diary. The judge seemed, in the course of argument, to favour the Crown's contention on this point, and it appears would have been better advised to leave to the jury the question whether evidence of that kind gave any support to Herbert.

I refer also to the discussion in Matthews and Ford (at p.20) to the decision of the Queensland Court of Criminal Appeal in Walczuk [1965] Q.W.N. 50 and the subsequent treatment of the matter in Sorby [1986] VicRp 77; [1986] V.R. 753 at 782, 783. It was impossible to say, in my respectful opinion, that no part of the evidence other than that of Herbert was fit for the consideration of the jury as supportive of Herbert's story. Parts of that evidence, if accepted, were capable of supporting Herbert at a number of significant points. The submissions relevant to corroboration made by counsel for the prosecution were, in my opinion, more than counter-balanced by the repeated and strong judicial directions which may well have given the jury the impression that the evidence apart from that of Herbert was of little consequence. That was, in my opinion, not so and the appellant was, as far as the question of corroboration went, placed in a more favourable position than he should have been.

I am of opinion therefore that the remarks made by counsel about corroboration did not vitiate the trial.

It is impracticable to be exhaustive, but some concrete instances must be given of the other remarks of which complaint was made. A minor example is that in the course of discussing events at the trial, counsel for the prosecution remarked:

"So, it might be said that at this stage the penny dropped with the defence".

This might be thought objectionable, on the ground that, in a colloquial way, it was suggested that defence counsel had blundered and had failed to appreciate until too late a point which was against his case. It seems to me plain that this remark did not, in its context, exceed the bounds of propriety.

Then, complaint was made of a long passage in which counsel for the prosecution suggested that the case had in some respects been conducted with particular fairness. An extract should suffice:

"... the only way that I can ensure that you have what the Crown says is a fair picture of the evidence, is to seek to put the evidence in context because I have got no control at all over what is put to you after I sit down ... the defence have the right of last address.

Now, may I just say in relation to that, you can recall on a number of occasions during the course of the trial that the Crown were invited to tender a particular document and never once hesitated to do so ... if the Crown hadn't tendered a document as evidence, then the only way that that evidence could have been got in by the defence was to tender it, and once evidence, of course, is called, that means that the order of addresses change ...".

It was argued for the appellant, amongst other things, that this was misleading because the Crown was in truth obliged to put in all the documents which it tendered. I am inclined to think the prosecution's remarks were not, in that sense, misleading, but they were open to objection as being irrelevant.

Next, the appellant complained of the Crown's having described him in the course of address as a man with an "impaired memory", in a context in which it seems to have been ironically meant. The suggestion that the appellant was so afflicted came, in fact, from the defence in cross-examination and it seems to me plain that the Crown was entitled to make of that what it could.

A passage of which the appellant's counsel particularly complained was the following:

"The other front, of course, is, that even if - and this is a matter for you, but it appears to be the way the cross-examination proceeds - how attractive you find it is also a matter for you - there did exist a corrupt combination or agreement or relationship between Lewis and Herbert, the Crown has somehow got it wrong in the charges which have been laid. That sort of approach, if it is to be an approach, you may well find, and indeed, in our submission, will find a completely unattractive one, because it really is a case, we would suggest, of the defence having two bob each way. The point that the Crown would strongly urge upon you, if you do come to the conclusion beyond reasonable doubt that there was a corrupt combination between Herbert and Lewis, it is only then a very small step to take to find the charges as alleged by the Crown proved. At any rate, this, you may think, indicates perhaps some lack of confidence in the first proposition; namely, as to whether the evidence so overwhelmingly points to there being a corrupt combination between the accused and Herbert".

The appellant's counsel said that there was nothing wrong with the defence's making alternative or inconsistent contentions: that no corrupt agreement was proved and that if one was proved it was not of the kind alleged. There was, of course, no legal objection to the defence's pursuing this line in cross-examination or in address, but I do not think that the passage would have been understood by the jury as suggesting otherwise. The contention to the effect that if the jury found there was a corrupt agreement then it was only a very small step to a conviction was plainly a factual contention which was, in my view, open on the evidence. I think the passage is expressed in a way which many would regard as too strong, but am far from thinking that what counsel said misled the jury.

Another part of the address which the appellant's counsel especially relied on might conveniently be partly summarised and partly quoted.

The prosecution urged the jury to scrutinise Herbert's evidence closely and to look closely at it, but to "keep your feet on the ground" in doing so. The Crown suggested that if corrupt payments were made no-one would be likely to be found to give evidence about them except a person like Herbert and that one would hardly expect a person of unblemished character to testify on the matter. Then counsel said:

"If the argument, members of the jury, is that in these cases one can never rely upon a witness like Herbert, even where there is so much other evidence which suggests it supports his credibility, we may as well give up, may as well give up. If people are unable to see that the reason why a corrupt system crosses and why it is so difficult to bring people to account is because those involved in it can participate knowing full well that those on the inside like Herbert, even if they were to change sides, would be so vulnerable to the same kind of criticism levelled against Herbert here that no-one would believe them, then we are wasting our time. Next time, if it isn't possible to look at the evidence and examine it and see - look at it clinically and objectively and see whether or not Herbert in those circumstances ought to be believed - next time here or elsewhere in Australia, we find the stench of institutionalised corruption which Herbert's evidence so plainly points to, we may as well give up and do nothing".

It is my opinion that the appellant's objection to this passage has validity. It was not the case, as the jury might have thought from these remarks, that they had to take their part in eradicating a corrupt system. All they had to do "clinically and objectively", as the prosecution said, was to decide whether Herbert's evidence was to be accepted on the essential points, having got such assistance as they could from the other evidence in the case.

Counsel for the appellant linked with this another passage which was to the effect that the evidence suggested that corruption was long institutionalised in the police force and people might be reluctant to accept that this could be so because "we wish to trust police officers. We want to accept that they are honest". Next, counsel suggested "institutionalised corruption in the police force involves a political dimension, you may think", which offends powerful people and:

"It might be that people have taken the view that vice can never be stamped out and it is better to leave people involved in it to regulate themselves, or it might be that people have thought that a little bit of corruption in a democracy is a necessary price to pay for freedom, and what, after all, is wrong with a few jokes going on in the Licensing Branch? Some may even think that SP activity stands in the Australian tradition of Ned Kelly, and what is wrong with a bit of SP?".

Counsel again suggested that acceptance of Herbert's evidence might be "too unpleasant to contemplate" and concluded by inviting the jury to accept Herbert and submitting that the jury might think his evidence greatly supported by other evidence.

It was, in my opinion, permissible for the Crown to suggest that there could be reluctance to accept the existence of a long continued system of corruption in the police force and to say that the jury should overcome their reluctance and accept the Crown case. The reference to a "political dimension", although obscure, may have been designed to convey that people politically aligned with the appellant could be on that account reluctant to accept his evidence. Then, it was implied that others might think that corruption is ineradicable and best ignored.

On the whole, it does not appear to me that these expressions were particularly objectionable. The passage concludes with an invitation to the jury to put aside the considerations mentioned as irrelevant and focus on issues in the case. What the jury were being invited to do, I think, was to consider whether, if they were reluctant to accept Herbert, the reasons for the reluctance were notions of the kind counsel identified. The implication was that if they were they should be discounted.

All of what prosecution counsel had to say was followed by a substantial address from the defence and a summing up which was unfavourable to the prosecution. The jury were told by the judge, in effect, that Jack Herbert was a liar who had a lot to gain by giving this evidence and a lot to lose from abandoning his story, that Peggy Herbert had every reason to lie and that there was no evidence capable of corroborating the evidence of the Herberts. His Honour said:

"Although you may convict on the uncorroborated evidence of the Herberts, it would be dangerous to do so".

In summing up, his Honour told the jury again and again that evidence other than that of the Herberts, which he dealt with in some detail, did not corroborate Herbert and was not evidence against the appellant. In strong terms, he directed the jury not to concern themselves with institutionalised corruption and the like and not to accept Herbert's evidence in order to check corruption. He concluded by reminding the jury of Herbert's "greed, treachery and dishonesty", described him as an "unmitigated liar", reminded them of lies Herbert had told in the past and reiterated the danger of convicting on the basis of the Herberts' evidence. It is my opinion that in the respects in which the submissions to the jury on behalf of the Crown transgressed, they were effectively neutralised by the strong summing up. The judge was asked to discharge the jury on the ground of the prosecution's address and declined, in his discretion, to do so.

The appellant also suggested, as mentioned above, that one could combine the pre-trial publicity with objectionable features of the Crown's address to arrive at the conclusion that the appellant did not receive a fair trial. Passages in the Crown's address were suggested to be invitations to the jury to recall ideas they had gleaned from the media. It is enough to say that this complaint was not, in my opinion, made out.

I would hold that none of the grounds of the appeal succeeds and that the appeal should be dismissed.

It should be added that the appellant complained of the severity of the sentences imposed. In relation to each of the counts save count 2, he was sentenced to 14 years imprisonment, the maximum. In relation to count 2, he was sentenced to five years imprisonment. The submission that the sentence should be interfered with was not, I think, pressed, but appears in any event not to be sustainable. Leave to appeal against sentence should be refused.

MINUTE OF ORDER:Appeal dismissed. Leave to appeal against sentence refused.

CRIMINAL LAW - CONDUCT OF PROSECUTION - Appellant alleged conduct of counsel for prosecution at trial gave rise to miscarriage of justice - whether comments by counsel in relation to corroboration conflicted with judge's directions and vitiated trial - whether jury misled by various comments of counsel - Criminal Code ss.121(1), 87(1), 564, 565, 571, 573, 572

CRIMINAL LAW - CORROBORATION - Trial judge ruled that evidence of accomplice was uncorroborated but prosecutor nevertheless addressed in terms of "overwhelmingly supportive" evidence - whether jury misled by discrepancy - whether distinction between corroborative and supportive evidence.

CRIMINAL LAW - OFFICIAL CORRUPTION - Indictment against appellant alleged appellant was party to agreement to ensure that certain persons would not be prosecuted - whether evidence of agreement in precise terms of indictment - whether evidence sufficient basis for conviction - whether verdict vitiated by discrepancy.

CRIMINAL LAW - PROCEDURE - FAIR TRIAL - Unsuccessful appliation for leave to question jurors and for stay on ground of prejudicial pre-trial publicity made by appellant at trial - whether matter adequately dealt with in directions to jury to disregard publicity - whether error in exercise of judge's discretion.

EVIDENCE - CORROBORATION - Trial judge ruled that evidence of accomplice was uncorroborated but prosecutor nevertheless addressed in terms of "overwhelmingly supportive" evidence - whether jury misled by discrepancy - whether distinction between corroborative and supportive evidence.

Counsel: R.V. Hanson Q.C. and R.A. Mulholland Q.C., with them J. Callinan for the Crown

Hearing Date(s):28, 29, 30, and 31 January and 3 February 1992

I agree with what Pincus J.A. has written concerning pretrial publicity.

As to the conduct of the prosecutor and the contention that the evidence was insufficient to prove the counts (other than count 2), I agree with the Chief Justice's reasons.

The Chief Justice and Pincus J.A. have also canvassed questions relating to corroboration. I do not find it necessary to decide and express no opinion on these issues.

The application for leave to appeal against sentence should be refused for the reasons given by the Chief Justice.