R v O'Neill [1995] QCA 331

I have not undertaken an extensive review of New Zealand or Canadian authority, which is voluminous and heavily influenced by constitutional and legislative provisions, and, in Canada, by the separate development of common law principles (see, e.g., Rothman v. R. [1980] INSC 175; (1981) 1 S.C.R. 640) prior to the introduction of the Canadian Charter of Rights. However, in New Zealand, the rejection of evidence of confessional statements which it would be unfair to an accused to receive because of the circumstances in which the statements were obtained seems plainly accepted: see, e.g., R. v. Cooney (1994) 1 N.Z.L.R. 38, 45-46; R. v. Saifiti (1994) 2 N.Z.L.R. 403; R. v. Wilson (1994) 3 N.Z.L.R. 257.

In my opinion, part of the problem which has existed, and continues, with respect to the discretionary exclusion of admissible evidence, including evidence of confessional statements, relates to the current divergence of opinion on the High Court with respect to the operation of the proviso to sub-s. 668E(1) of the Code and similar provisions in other States: the Queensland provision, and its counterparts elsewhere, permit an appellate court to dismiss an appeal "if no substantial miscarriage of justice has occurred". Not surprisingly, this appellate discretion and the intersecting and overlapping discretionary decisions related to the reception or rejection of admissible evidence at trial sometimes tend to merge in the course of appellate decisions. Further, as with the discretion to exclude admissible evidence, there are two schools of thought with respect to the appellate discretion when evidence is wrongly received; in each instance, one approach is substantially, perhaps entirely, concerned with the fairness of the accused's trial, while the other approach places emphasis upon the appellate court's opinion as to the appellant's demonstrated guilt.

Thus, for example, while Brennan J., with whom Aickin J. agreed, said in MacPherson at p. 546 that the proviso could not operate in relation to the erroneous admission of confessional evidence because "the trial was not according to law", Mason C.J. said in Van der Meer at p. 21:

"... Once a confessional statement has been received into evidence at the trial, on appeal the accused must establish, in order to set aside his conviction, not only that the trial judge erred in refusing to exclude the statement, but also that there was a miscarriage of justice. ..."

Similarly, there has been a difference of opinion with respect to the operation of the proviso when the trial judge has misdirected the jury. For example, in Liberato v. R. [1985] HCA 66; (1985) 159 C.L.R. 507, Brennan and Deane JJ. dissented from the decision of the majority (Mason C.J., Wilson and Dawson JJ.) that special leave to appeal should be refused.

"... It was necessary for the Crown to show that the misdirections related to matters of such minor significance that they could not really affect the jury's findings or perhaps to show that, on the whole of the case, no reasonable jury properly directed could fail to accept the evidence of M.K. beyond reasonable doubt. To argue that, because the jury had a full opportunity to assess M.K.'s credibility and because they must have accepted her uncorroborated evidence in convicting Liberato (whose account of the events had remained consistent throughout), the misdirections had no effect on the verdicts is to circumvent the question which the misdirections raise. The question is not whether the jury could and did act on her evidence beyond reasonable doubt, but whether they would have done so if there had been no misdirections relating to the assessment of her credibility and on the approach which had to be taken to the resolution of conflicts between her evidence and the evidence of the accused.

... If proper directions on the onus and standard of proof, the assessment of M.K.'s credibility and resolution of conflicts in the evidence might have left the jury with a reasonable doubt about M.K.'s version of what happened, it could not be said that the misdirections identified by White J. occasioned no substantial miscarriage of justice. The accused may have lost a reasonable opportunity of acquittal: Mraz v. The Queen ((1955) [1955] HCA 59; 93 C.L.R. 493, at p. 514). It was fundamental to the prosecution case that the jury should believe beyond reasonable doubt the truth of M.K.'s evidence on the issues of absence of consent and the existence of a guilty state of mind, as the learned trial judge correctly and emphatically directed them. But they were misdirected as to how they should decide those issues and those misdirections went to the heart of the case. The appeals should have been allowed.

... This case raises for consideration an important problem in the application of the proviso. In cases where an error of law affects the way in which a jury assesses the strength of the evidence tending to show the guilt of an accused person, a Court of Criminal Appeal cannot rely on the jury's assessment in considering the application of the proviso. If the jury's assessment were to be relied on for that purpose, errors affecting the making of that assessment would be virtually unappealable. Such errors are not covered by the proviso unless they affect only part of the inculpatory evidence and that part is so unimportant that the Court of Criminal Appeal is able to be satisfied that a reasonable jury, properly directed, would undoubtedly have convicted on the unaffected evidence. This is not such a case. ..."

"There can be no room for the application of the proviso to s. 353(1) of the Criminal Law Consolidation Act 1935 (S.A.) in an appeal where there is a significant possibility that, by reason of misdirection by the learned trial judge, a jury has convicted on the basis of a choice between the Crown and defence witnesses as distinct from being satisfied beyond reasonable doubt of the ingredients of the charge against the accused. If some members of a jury in a criminal trial have, by reason of misdirection, failed to comprehend that a finding of guilty cannot be based merely on a failure to believe the accused or on a choice between the Crown and defence witnesses, the accused has been denied a trial in accordance with law and, in the event of a conviction, there has been a fundamental miscarriage of justice. That being so, the Court of Criminal Appeal could not, in the present cases, properly have been satisfied for the purposes of the proviso that 'no substantial miscarriage of justice' had 'actually occurred'. The reason is that a court of criminal appeal can only properly be so satisfied, in a case where there has been fundamental misdirection, if the circumstances are such that it is clear that there is no real possibility that justice has miscarried by reason of that misdirection: cf. Mraz v. The Queen ((1955) [1955] HCA 59; 93 C.L.R. 493, at p. 514).

It is true that, as the Court of Criminal Appeal pointed out, the members of the jury in the present ease 'obviously believed' the complainant. That is however, in my view, simply beside the point on the question of the effect of the misdirections about onus of proof and choice between witnesses. What would be in point on that question would be if it appeared that the members of the jury were satisfied not only that, as a matter of choice, they accepted the evidence of the complainant in preference to the evidence of the accused but that it was plain beyond reasonable doubt that the evidence of the complainant should be so accepted. It is, however, impossible to say that the members of the jury were so satisfied in the present cases unless one first assumes against the accused that the learned trial judge's misdirections did not have the result that some or all of the jury failed properly to appreciate the nature and function of the criminal onus and standard of proof."

Wilde v. R. [1988] HCA 6; (1988) 164 C.L.R. 365 introduced a strong emphasis on guilt into the operation of the proviso. In that case, the trial judge wrongly refused an application by the accused for separate trials with respect to charges arising out of two incidents and wrongly directed the jury that the evidence in relation to each incident might be used against the accused in relation to the other. In consequence, prejudicial evidence was wrongly admitted against the accused in relation to offences of which he was convicted. The New South Wales Court of Criminal Appeal and, by majority, the High Court, held that "no substantial miscarriage of justice had actually occurred": Criminal Appeal Act 1912 (N.S.W.), sub-s. 6(1).

The majority judgment of Brennan, Dawson and Toohey JJ., after referring at p. 369 to the "substantial blemish in the conduct of the trial", first considered the overwhelming strength of the prosecution case and, at pp. 371-372, held that the jury would inevitably have convicted and the judge's errors had not deprived the appellant of a real chance of acquittal. Hence, the proviso was applicable unless there had been a "radical or fundamental error" at the trial: "such departure from the essential requirements of the law that it goes to the root of the proceedings": pp. 372-373. At p. 373, their Honours continued:

"There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. ... the wording of the proviso is quite general and ... may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances."

As their Honours went on to acknowledge, the last two sentences reactivate the strength of the prosecution case as a material, if not decisive, factor, although "... for the purpose of determining the gravity and significance of the error and not for the purpose of determining whether the jury would inevitably have convicted notwithstanding the error": p. 374. Their Honours following remarks suggest that an error is not "fundamental" or "radical" in the relevant sense if its "gravity and significance" are sufficiently diminished by the strength of the prosecution case.

Deane J., who with Gaudron J. dissented, after noting at p. 375 his "general agreement with much of [the majority's] exposition of principle", continued at pp. 375-378:

"The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law. The proviso to s. 6(1) - which empowers the New South Wales Court of Criminal Appeal to dismiss an appeal, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of an appellant, 'if it considers that no substantial miscarriage of justice has actually occurred' - does not negate that principle. The reason why that is so is that it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been 'no substantial miscarriage of justice' in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law. In such a case, the verdict of guilty is intrinsically flawed and it is no part of the function of a court of criminal appeal to say that the accused is, in its view, so obviously guilty that the requirement of a fair trial according to law can be dispensed with. If it were otherwise, the fundamental prescript of the criminal law could be reduced to a mockery and the injustice of a conviction without a relevantly fair trial according to law could be made the occasion for trial by appellate judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial. In referring to a 'relevantly' fair trial, I have intended to exclude the case where it can be seen that any error, impropriety or unfairness did not prejudice or colour the overall trial or that the residual effect (i.e. viewed in the context of the overall trial) of any such error, impropriety or unfairness could not have influenced the jury in reaching their verdict on the charges upon which the accused was convicted and in respect of which the appeal to a court of criminal appeal is brought.

In the present case, the applicant's trial was gravely affected by unfairness and error. ... That being so, it is not to the point that the case against him in relation to those alleged offences appears, at this distance from the impact of live evidence and the atmosphere of the trial, to have been an overwhelmingly strong one. ...

It may be objected that the effect of what is written above is to deprive a proviso such as that contained in s. 6(1) of any scope for effective operation. That objection is without substance. There is ample scope for the effective operation of such a proviso in cases where the particular court of criminal appeal is satisfied that the relevant misdirection, error or unfairness could not properly be seen as depriving the trial of the overall character of a fair trial according to law. It is in such cases that the strength of the prosecution case and the unimportance, in all the circumstances and in so far as the charges of which an accused was convicted are concerned, of the effect of the particular misdirection, impropriety or unfairness may justify the conclusion by a court of criminal appeal that, in the result, there has been no substantial miscarriage of justice. Such a conclusion is, however, not open in a case such as the present where the uncorrected and persisting cumulative effect of the improper joinder in the indictment of charges, the wrongful exposure of the jury to prejudicial evidence which was inadmissible in relation to the charges of which the applicant was convicted and the misdirection to the effect that the members of the jury were entitled to take that evidence into account in relation to those charges, is that the applicant has been found guilty of the alleged offences relating to H. without there having been a relevantly fair trial according to law. That being so, justice has substantially miscarried and a proviso such as that contained in s. 6(1) does not authorize a court of criminal appeal to disregard or overcome that substantial miscarriage of justice by holding that the applicant should be denied what the law says that he shall have for the reason that he had no real defence anyway: see Couper v. The Queen ((1985) 18 A.Crim.R. 1, at p. 5)."

"With respect to those who hold a contrary view, I am unable to accept that the question which arises when there has been an error of law in the course of a trial resulting in a wrong statement of the legal principles relevant to the jury's consideration of its verdict or the receipt of inadmissible evidence or the rejection of admissible evidence is ever to be answered by reference to an appellate court's view as to the strength of the prosecution case. ...

... it is fundamental to the integrity of the administration of criminal justice that no person should be convicted of a criminal offence on which he is indicted save by the verdict of a jury following a trial in which the relevant principles of law are correctly applied. That precept, in my view, remains unaffected by the proviso. It is not negated in express words. There is no basis for such implication. Recognition of this precept renders the proviso neither nugatory or otiose. Indeed, as Fullagar J. observed in Mraz, regard must be had to this precept in the process of construction of the proviso. His Honour stated ((1955) 93 C.L.R., at p. 514):

'It [the proviso to s. 6(1)] ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed.'

Recourse to this fundamental precept in interpreting the proviso places limitations on what a court of criminal appeal is entitled to do in exercising its discretion to utilize the proviso. Where there has been an error of law in the course of the trial a court of criminal appeal is not entitled to undertake an independent assessment of the evidence with a view to determining whether a jury, properly instructed in the law in a trial where the rules of procedure and evidence are strictly followed, would on the available evidence have convicted the accused. That process is tantamount to the accused being tried with the Court of Criminal Appeal as the tribunal of fact: clearly a contravention of the fundamental precept.

Where there is an error of law the proviso may be applied when it can be said that the law was correctly applied by the jury notwithstanding the error. On occasions it may be discernible from the course of the trial that the law was correctly applied. For example, the error may relate to a formal matter not bearing directly on guilt or innocence, a matter not in issue in the trial, or a matter which did not arise at the trial as a reasonable possibility: see Saad v. The Queen ((1987) 61 A.L.J.R. 243, at p. 245; 70 A.L.R. 667, at p. 670). On other occasions it may be discernible from the verdict returned.

However, unless it can be said that notwithstanding the error the law was correctly applied, it is not possible to say that the accused person has received what the law guarantees, viz. the verdict of a jury arrived at by correct application of the relevant legal principles. If that cannot be said then it cannot be said that there has been no substantial miscarriage of justice. The possibility that an accused person may have been denied that which the law guarantees cannot, in my view, be made good by an appellate court's assessment that the evidence warranted a conviction, even if that assessment be expressed, as in the present case, in terms of inevitability.

In the present case there is a basic reason why the question of miscarriage of justice cannot be answered by an appellate court's assessment of the evidence. The error concerned the wrongful use of evidence to prove factual matters the burden of proving which at all times rested on the prosecution. ... To allow a verdict to stand notwithstanding that evidence was improperly admitted or that the jury was invited to make impermissible use of evidence in determining factual questions is to overlook the fact that the jury may well not have been satisfied as to those matters solely on the remaining evidence. If the proviso allows such a course of action it allows for the decision of an appellate court to trespass upon and undermine the role of the jury in a criminal trial. I cannot accept that such a consequence was intended by or is implicit in the proviso to s. 6(1) of the Act."

There have been a number of High Court decisions concerning the proviso since Wilde, some of which were based on erroneous or inadequate directions or the reception of inadmissible evidence and there continue to be marked differences of opinion.

In Dietrich v. R. [1992] HCA 57; (1992) 177 C.L.R. 292, Mason C.J. and McHugh J. accepted at p. 299 that "[t]he right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system", but said at pp. 310-311:

"... appellate courts in this country do not interfere with convictions entered at trial purely on the basis that there was unfairness to the accused in the conduct of the trial (cf. McInnis v. R. (1979) 143 C.L.R., at p. 591 per Murphy J). The appellate jurisdiction in criminal matters depends upon a conclusion that there was a 'miscarriage of justice' ... such that the applicant 'has thereby lost "a chance which was fairly open to him of being acquitted" _(_Mraz v. R. [1955] HCA 59; (1955) 93 C.L.R. 493, at p. 514 per Fullagar J.) ... or "a real chance of acquittal" ...' to repeat the expression used by Brennan, Dawson and Toohey JJ. in Wilde v. The Queen. ((1988) [1988] HCA 6; 164 C.L.R. 365, at pp. 371-372)."

Domican involved misdirections with respect to identification. All members of the Court, except Brennan J., were parties to a joint judgment which stated at pp. 565-566:

"... a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused (See Reg. v. Gaunt [1964] N.S.W.R. 864 at 867). Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused."

Brennan J., who dissented on the basis of his opinion that the trial judge's directions were satisfactory, said at pp. 570-571:

"The general principle is this: where, on the evidence and consistently with the directions of the trial judge, it is open to a jury to convict on any of two or more independent bases, a misdirection or an inadequate direction which would vitiate a conviction on one of those bases necessarily results in the setting aside of a guilty verdict despite the availability of another sound basis for conviction. That is because it is not possible to conclude that a guilty verdict has been founded on a sound basis when it was open to the jury to convict on a basis affected by the misdirection or inadequate direction. A Court of Criminal Appeal cannot apply the proviso by speculating either that the jury acted on a body of evidence which was unaffected by the misdirection or inadequate direction; nor can the Court speculate that, if the jury had acted on such evidence, they would have convicted. If a misdirection or inadequate direction would vitiate a conviction based on identification evidence and that basis of conviction was open to the jury, it is impossible to be satisfied that, by reason of the misdirection or inadequate direction, the accused did not lose a chance of acquittal."

In R. v. Glennon [1992] HCA 16; (1992) 173 C.L.R. 592, the appellant complained that he was deprived of a fair trial by extensive pre-trial publicity. Brennan J., with whom Dawson J. agreed, stated that there is no miscarriage of justice within the proviso if the trial is "conducted according to law" (p. 617); "as fair as the Court could make it" (p. 616).

Deane, Gaudron and McHugh JJ., who dissented, said at pp. 623-624:

"The central prescript of our criminal law that no person shall be convicted of a crime otherwise than after a fair trial according to law dictates that an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial. Ordinarily, that risk will be obviated by appropriate and thorough directions and, if the circumstances also require it, a temporary stay for the minimum period adjudged necessary for the pre-trial publicity to abate. The balancing of the legitimate interests of the accused and the prosecution will, in almost every case, mean that if the proceedings are to be stayed at all, they should only be stayed temporarily and for the minimum period necessary. Nonetheless, one cannot exclude, as a matter of law, the possibility that an 'extreme' or 'singular' case might arise in which the effect of a sustained campaign of vilification and prejudgment is such that, notwithstanding 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. If it is not, a subsequent conviction will necessarily constitute a miscarriage of justice. ..."

Later, there was a further appeal, Glennon v. R. (1994) 179 C.L.R. 1, because the trial judge had misdirected the jury that they could use the appellant's silence when questioned by police to test the veracity of his evidence at trial.

In their joint judgment, Mason C.J., Brennan and Toohey JJ. said at pp. 8-9:

According to the approach of the majority in Wilde ((1988) 164 C.L.R., at p. 373), the proviso cannot be applied 'where proceedings have so far miscarried as hardly to be a trial at all'. But that is a particular situation arising only 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings'. In such a case the accused 'has not had a proper trial and ... there has been a substantial miscarriage of justice' ((1988) 164 C.L.R., at p. 373). But the majority stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances ((1988) 164 C.L.R., at p. 373) and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error (ibid., at p. 374).

In the circumstances of this case, it cannot be said that the trial judge's misdirection on the applicant's right to silence was 'so fundamental' that the trial was 'hardly a trial at all'. Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso.

That bring us to a consideration of the applicant's alternative argument, namely, that it cannot be said that, in the absence of the misdirection, the jury would inevitably have convicted the applicant.

In order to apply the proviso where there has been a misdirection by the trial judge that is not fundamental in the sense discussed above, the Court of Criminal Appeal must be satisfied that, in the absence of the misdirection, the jury would inevitably have reached the same verdict (Domican v. The Queen (1992) 173 C.L.R. 55, at p. 565-566; Wilde (1988) 164 C.L.R., at pp. 371-372, per Brennan, Dawson and Toohey JJ; Quartermaine (1980) 143 C.L.R., at p. 600, per Gibbs J; Driscoll (1977) 137 C.L.R., at pp. 542-543; per Gibbs J. (with whom Mason and Jacobs JJ agreed). This is so even if the case against the accused is otherwise a strong one (Domican (1992) 173 C.L.R., at p. 566)."

Deane and Gaudron JJ, the dissentients in Wilde, said at pp. 11-14:

"The proviso, like the criminal appeal provisos in other States, allows that a criminal appeal may be dismissed, notwithstanding error in the trial, if the court 'considers that no substantial miscarriage of justice has actually occurred'. It is now accepted, following the decision in Wilde v. The Queen ((1988) [1988] HCA 6; 164 C.L.R. 365), that there are some cases in which there is simply no scope for the proviso to operate. In that case, it was said by Brennan, Dawson and Toohey JJ. that the common form proviso can have no application where 'proceedings ... have so far miscarried as hardly to be a trial at all' or where 'an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings' (ibid., at p. 373). A somewhat different approach was taken by Deane J. who expressed the view that the proviso can have no application where 'error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law' (ibid., at p. 375). In the view of Gaudron J. (ibid., at p. 381), there had been a substantial miscarriage of justice in the sense explained by Fullagar J. in Mraz. v. The Queen, namely, the accused had 'lost a chance which was fairly open to him of being acquitted ((1955) [1955] HCA 59; 93 C.L.R. 493, at p. 515) and, in the circumstances, it was unnecessary to consider the scope of the proviso's operation.

In our view, it follows from ordinary principles of construction that, as Deane J. indicated in Wilde, the common form proviso can have no application in a case where, overall, there has not been a fair trial according to law. The principle that an accused person is entitled to a fair trial according to law is fundamental to the criminal law and is, arguably, the most important of all legal principles. It is simply not possible to discern any intention in the proviso, let alone a clear or necessary intention (As to intention necessary before a statute is construed as derogating from important common law rights, see, e.g., Potter v. Minahan [1908] HCA 63; (1908) 7 C.L.R. 277, at p. 304; Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 C.L.R. 281, at pp. 289-290, 309, 316; Baker v. Campbell (1983) 153 C.L.R. 52, at pp. 96-97, 104, 116, 123; Balog v. Independent Commission Against Corruption [1990] HCA 28; (1990) 169 C.L.R. 625, at pp. 635-636; Bropho v. Western Australia [1990] HCA 28; (1990) 169 C.L.R. 625, at pp. 635-636; Bropho v. Western Australia [1990] HCA 24; (1990) 171 C.L.R. 1, at p. 18; Corporate Affairs Commission (NSW) v. Yuill [1991] HCA 28; (1991) 172 C.L.R. 319, at pp. 322, 331, 338, 348) that a court of criminal appeal should allow a conviction to stand notwithstanding that, overall, the accused was denied a fair trial according to law.

If proceedings have 'so far miscarried as hardly to be a trial at all' or have involved 'such a departure from the essential requirements of the law that it goes to the root of the proceedings', there has not been, overall, a fair trial according to law. But outside the concept of a fair trial according to law, neither the description of proceedings as 'hardly a trial at all' nor that of proceedings as involving 'a departure from the essential requirements of the law' has any legal significance for the purposes of the proviso. And neither description provides a reliable guide for determining in what cases it does or does not apply, each case being one that 'must be determined upon its own circumstances' (Wilde (1988) 164 C.L.R., at p. 373, per Brennan, Dawson and Toohey JJ).

A misdirection as to the use or evaluation by a jury of properly admitted evidence does not ordinarily result in there not being, overall, a fair trial according to law in the sense discussed by Deane J. in Wilde. Rather, a misdirection of that kind is ordinarily one that must be evaluated in the light of the issues in the trial and the way in which the trial was conducted before it can be ascertained whether it might have affected the jury's deliberations.

The traditional test of whether there has been a substantial miscarriage of justice for the purposes of the proviso is that laid down by Fullagar J. in Mraz v. The Queen and to which we have already referred, namely, whether the accused 'lost a chance of acquittal which was fairly open'. That test is one which reflects the issue raised when it is argued that a conviction should be set aside. When it is argued that the conviction should be upheld, the issue is usually expressed as being whether the jury would inevitably have reached the same verdict even if the error in question had not occurred (See, e.g., Driscoll v. The Queen [1977] HCA 43; (1977) 137 C.L.R. 517, at pp. 524-525, 543; Butera v. Director of Public Prosecutions (Vict.) [1987] HCA 58; (1987) 164 C.L.R. 180, at p. 213; Wilde (1988) 164 C.L.R., at pp. 372-374; Domican v. The Queen (1992) 173 C.L.R. 555, at pp. 565-566).

There is nothing to give any significance to the misdirection involved in this case over and above that which ordinarily attaches to a misdirection as to the use or evaluation of properly admitted evidence. Accordingly, there is no basis for an argument that, overall, there was not a fair trial according to law and, thus, no scope for the operation of the proviso. The only question is whether, so far as the Palmieri count is concerned, the misdirection resulted in a substantial miscarriage of justice in the sense explained in Mraz.

As earlier indicated, the effect of a misdirection as to the use or evaluation of properly admitted evidence will ordinarily depend on the issues in the trial and the way in which it was conducted. So it is with a misdirection which wrongly impugns the credibility of the accused. A misdirection of that kind may be of little significance because, for example, it is confined to some discrete matter that was not really in issue in the trial, or, if it was, it proves, on analysis, to have been of marginal relevance and incapable of affecting the jury's verdict. However, where, as here, a finding as to an element of an offence necessarily depends on credibility, a direction which wrongly impugns the credibility of an accused or of his witnesses must be seen as involving a substantial miscarriage of justice."

The divergent views in the cases dealing with the discretion to reject admissible evidence in a criminal trial and the use of the proviso to sub-s. 668E(1) of the Code to dismiss criminal appeals have also been manifested in decisions concerning applications to stay criminal proceedings.

Jago v. The District Court of New South Wales [1989] HCA 46; (1989) 168 C.L.R. 23 involved an application for a permanent stay of a criminal proceeding on two bases, one of which was that his right to a fair trial had been prejudiced by delay amounting to an abuse of process. All members of the High Court agreed that the stay had been correctly refused, but there were significant differences of approach in the various judgments delivered.

Part of the difficulty arising from Jago is that, as it recognised, a number of potentially different, but overlapping, powers were involved; e.g., to prevent abuse of process, to control proceedings to prevent "injustice", and to prevent "unfairness generally"; at p. 26, Mason C.J. said:

"This Court has not yet decided whether the power to prevent abuses of process extends to a power to prevent unfairness generally (see Barton v. The Queen ((1980) 147 C.L.R., at p. 96-97), although lower courts have not found difficulty with such an approach: Herron v. McGregor ((1986) 6 N.S.W.L.R. 246, at pp. 250-251), Reg. v. Clarkson ([1987] V.R. 962, at pp. 967-973), Watson v. Attorney-General (N.S.W.) ((1987) 8 N.S.W.L.R. 685, at p. 697), Clayton v. Ralphs and Manos ((1987) 45 S.A.S.R. 347, at p. 363), Cooke v. Purcell ((1988) 14 N.S.W.L.R. 51, at pp. 63, 77). There are references to the right to a fair trial in Barton, consistent with the broader view but not decisive of the question: see per Stephen J. ((1980) 147 C.L.R., at pp. 104-105), Murphy J. ((1980) 147 C.L.R., at p. 107), Wilson J. ((1980) 147 C.L.R., at pp. 111, 115-117). Gibbs A.C.J. and I, with whom Aickin J. agreed, left the question open ((1980) 147 C.L.R., at pp. 96-97)."

His Honour went on to discuss English and Canadian authority, some concerned with the stay of criminal proceedings and some with other curial decisions, and some based on abuse of process, some on "injustice" and others on "unfairness"; after referring to the court's "function to dispense justice with impartiality and fairness both to the parties and to the community" and citing, with approval, the statement by Lord Devlin in Connelly v. Director of Public Prosecutions [1964] A.C. 1254 at p. 1354 to the effect that courts have "an inescapable duty to secure fair treatment for those who come or are brought before them", his Honour continued at p.29:,

"... objections to the discretion to prevent unfairness give insufficient weight to the right of an accused person to receive a fair trial. That right is one of several entrenched in our legal system in the interests of seeking to ensure that innocent people are not convicted of criminal offences. As such, it is more commonly manifested in rules of law and of practice designed to regulate the course of the trial: see Bunning v. Cross ((1978) [1978] HCA 22; 141 C.L.R. 54), Reg. v. Sang ([1980] A.C. 402). But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process."

His Honour then went on to relate the court's function to stay an unfair proceeding to public interests in the due administration of justice, not just in individual cases but generally, and in the maintenance of public confidence in the due administration of justice.

"The power which was acknowledged to exist in Barton is a power which has a dual purpose: 'to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice' ((1980) 147 C.L.R., at pp. 95-96). One purpose of the power is to ensure a fair trial, the other to prevent an abuse of process. A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party. ...

... Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.

More radical remedies may be needed to prevent an abuse of process. An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. ... When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. ..."

"By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution.

Moreover, although our system of litigation adopts the adversary method in both the criminal and civil jurisdiction, interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. ..."

"In the onward march to the unattainable end of perfect justice, the court must not forget those who, though not represented, have a legitimate interest in the court's exercise of its jurisdiction. In the broadening of the notion of abuse of process, however, the interests of the community and of the victims of crime in the enforcement of the criminal law seem to have been depreciated, if not overlooked. ..."

"Once a court is seised of criminal proceedings, it has control of them. In the absence of applicable express statutory provision, that control includes the power - either inherent or implied - to ensure that the court's process is not abused by the proceedings being made an instrument of unfair oppression ...

The central prescript of our criminal law is that no person shall be convicted of a crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law. As a matter of ordinary language, it is customary to refer in compendious terms to an accused's 'right to a fair trial'. I shall, on occasion, do so in this judgment. Strictly speaking, however, there is no such directly enforceable 'right' since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.

The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. ...

An unfair trial is not a nullity. An acquittal after such a trial is ordinarily final and decisive. So, unless it is impeached on an appeal, is a conviction. Nonetheless, an unfair trial represents a miscarriage of the curial process. ..."

Toohey J. referred at p. 71 to the "unquestioned" right of an accused to a fair trial, and continued:

"... 'There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial': Gibbs A.C.J. and Mason J. in Barton v. The Queen ((1980) [1980] HCA 48; 147 C.L.R. 75, at p. 96). See also Connelly v. Director of Public Prosecutions ([1964] A.C. 1254, at pp. 1301-1302, 1347)

In Barton, abuse of process and fair trial are linked by Gibbs A.C.J. and Mason J. as they are by Wilson J. ((1980) 147 C.L.R., at p. 111), though Wilson J. identifies abuse of process as generally relating to the charge itself and fairness as going to procedures that have been followed or are proposed to be followed. It is consistent with authority and principle to regard each notion as part of the responsibility of the courts to see that justice is done to the parties and to the wider community, ensuring that the appropriate remedy is applied in the particular case. ..."

"... To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other.

... There is more than one interest involved in the trial of the appellant. The Crown has an interest in bringing him to trial; he, of course, has an interest in obtaining a fair trial; running in parallel is the public interest that charges of serious offences be disposed of but that they be disposed of at a hearing which is fair and not oppressive to the person charged. See Barton ((1980) 147 C.L.R., at p. 102); also Clarkson ([1987] V.R., at pp. 971-972); Carver v. Attorney-General (N.S.W.) ((1987) 29 A.Crim.R. 24, at p. 32). ..."

The other member of the Court, Gaudron J. said at p. 75:

"When, in the words of Wilson J. in Barton ((1980) 147 C.L.R., at p. 111), there is 'a fundamental defect which goes to the root of [a criminal] trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences', an accused person is denied that which the law guarantees, namely, a fair trial according to law. In such circumstances, it may fairly be said that the administration of justice demands that the proceedings be permanently stayed. And when regard is had to the serious nature of the injustice and unfairness involved in requiring a person to have his or her guilt of innocence determined in a proceeding which is, ex hypothesi, unfair, there can be no sound basis for denying that the power of a court to control its own process and proceedings extends to the grant of a permanent stay of criminal proceedings if the administration of justice so demands."

"Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused. See Driscoll v. The Queen ((1977) [1977] HCA 43; 137 C.L.R. 517, at p. 541). See also Harris v. Director of Public Prosecutions ([1952] A.C. 694, at p. 707), per Viscount Simon; R. v. Christie ([1914] A.C. 545, at p. 564), per Lord Reading. The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. ..."

In Dietrich it was held that, in the exercise of its power to stay criminal proceedings that will result in an unfair trial, a court should, in the absence of exceptional circumstances, adjourn or stay a criminal prosecution for a serious offence against an indigent accused who, through no personal fault, is unable to obtain legal representation.

In a joint judgment, Mason C.J. and McHugh J. said at pp. 299-300:

The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system (Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23, at p. 29, per Mason C.J.; p. 56, per Deane J.; p. 72 per Toohey J.; p. 75, per Gaudron J.). As Deane J. correctly pointed out in Jago v. District Court (N.S.W.) (ibid, at pp. 56-57), the accused's right to a fair trial is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial, for no person can enforce a right to be tried by the State; however, it is convenient, and not unduly misleading, to refer to an accused's positive right to a fair trial. The right is manifested in rules of law and of practice designed to regulate the course of the trial (Bunning v. Cross [1978] HCA 22; (1978) 141 C.L.R. 54; Reg. v. Sang [1979] UKHL 3; [1980] A.C. 402, both referred to in Jago (1989) 168 C.L.R., at p. 29). However, the inherent jurisdiction of courts extends to a power to stay proceedings in order 'to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair' (Barton v. The Queen [1980] HCA 48; (1980) 147 C.L.R. 75, at pp. 95-96; Williams v. Spautz [1991] HCA 56; (1992) 174 C.L.R. 1).

There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial (Reg. v. Glennon [1992] HCA 16; (1992) 173 C.L.R. 592), resulted in the accused being deprived of a fair trial and led to a miscarriage of justice. ..."

"... Unless the recognition of the absolute right sought by the applicant entails the consequence that want of representation necessarily means that a trial has miscarried, the absolute right would lack an adequate sanction. The right would thus appear to be rather hollow.

For the foregoing reasons, it should be accepted that Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstance of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused."

The alternative argument of the applicant was that the trial judge erred in the exercise of his discretion in refusing an application by the applicant for an adjournment. This argument was not developed fully in submissions, principally because the applicant's case was founded upon the existence of the alleged absolute right. However, it is clear that the issue is before the Court in the alternative form.

In approaching this argument, the question before this Court is not merely whether or not an adjournment should have been granted but whether the applicant's conviction should be set aside 'on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice', provided that the conviction will stand if 'no substantial miscarriage of justice has actually occurred' (Crimes Act, s. 568(1); McInnis (1979) 143 C.L.R., at pp. 581-582, per Mason J).."

Upon consideration of the evidence and the jury's verdicts, which acquitted the appellant on one count, their Honours held (p. 315) that the applicant had lost a real chance of acquittal on other counts.

The judgment of Brennan J., who dissented, materially reflected his minority views in Jago. At pp. 324-325, his Honour said:

"... When the criminal jurisdiction is invoked for the purpose it is designed to serve, there is no abuse of process. The jurisdiction must be exercised in a way that prevents unfairness as far as possible, but it must be exercised. As a matter of constitutional duty, the courts cannot indefinitely adjourn a trial to force the provision of legal aid.

If the absence of a common law entitlement to legal representation means that the courts cannot ensure that a criminal trial is fair according to the contemporary values of the community, it is necessary to remember that the fairness of a trial can be affected by circumstances outside the court's control, as I pointed out in Jago ((1989) 168 C.L.R. at p. 47). The rhetoric that our system of administering criminal justice ensures a fair trial is comforting, but the reality is that the courts cannot always eliminate obstacles to a fair trial. Rhetoric does not always correspond with reality. ...

The procedure of the criminal courts is designed to produce as fair a trial as practicable in the circumstances of each case. Where an accused person is unrepresented, a particular burden is placed on the trial judge to ensure that the trial is fair (See, e.g., MacPherson v. The Queen [1981] HCA 46; (1981) 147 C.L.R. 512, at pp. 546-547). And if, through want of legal representation, some error occurs in the conduct of the trial which occasions a substantial miscarriage of justice, a conviction must be set aside. But the rhetoric that a trial must be fair before a conviction can properly be recorded is true only to the extent that unfairness leads to a miscarriage of justice. The legal question then is not whether a trial has been unfair according to community values but whether it is unfair in the sense that it has not taken place according to law. A miscarriage of justice may consist in a failure to adopt a lawful procedure which would have ensured fairness to an accused person or would have eliminated unfairness to him, but it cannot consist in failing to adopt a procedure which the court has no power to adopt."

Deane J. also reiterated his views in both Jago and Wilde, stating at pp. 326-329:

"The fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law. In so far as the exercise of the judicial power of the Commonwealth is concerned, that principle is entrenched by the Constitution's requirement of the observance of judicial process and fairness that is implicit in the vesting of the judicial power of the Commonwealth exclusively in the courts which Ch. III of the Constitution designates. Strictly speaking, the requirement that the trial of a person accused of a crime be fair, being a legal one, is encompassed by the requirement that such trial be in accordance with law. Nonetheless, it is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law.

Traditionally, the law's insistence that a person not be convicted of a crime except after a fair trial has been conveniently, albeit slightly inaccurately (See Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23, at pp. 56-57), expressed in terms of a 'right to a fair trial'. Thus, for example, Isaacs J. in R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly ((1923) [1923] HCA 39; 32 C.L.R. 518, at pp. 541-542) referred to 'the elementary right every accused person to a fair and impartial trial' and added some well-known words which merit further repetition:

'That such a right exists as a personal right seems to me so deeply rooted in our system of law and so elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilization. It s only a variant of the maxim that every man is entitled to his personal liberty except so far as that is abridged by a due administration of the law. Every conviction set aside, every new criminal trial ordered are mere exemplifications of this fundamental principle. And if the right be admitted it would be an empty thing, unless the law adequately protected it. It seems necessary, however, to adduce authority. Fortunately it is clear and weighty.'

Isaacs J.'s statement that the requirement that the trial of a accused person be 'fair and impartial' is 'deeply rooted in our system of law' was not the stuff of empty rhetoric. It remains an accurate statement of the common law of this country. Thus, two of the critical steps in the reasoning of each of the six justices in Barton v. The Queen ((1980) [1980] HCA 48; 147 C.L.R. 75) were the acknowledgment of an overriding common law requirement that a criminal trial be 'fair' and the assertion of the authority of the courts to take the steps - including an order that proceedings be indefinitely stayed - necessary to ensure that an accused person is protected from the unlawfulness of an unfair trial. ... 'the entitlement of an accused person to a fair trial according to law' was expressly recognized by the majority of this Court in McKinney v. The Queen ((1991) [1991] HCA 6; 171 C.L.R. 468, at p. 478) as the 'central thesis of the administration of criminal justice' in this country (See also, e.g., MacPherson v. The Queen [1981] HCA 46; (1981) 147 C.L.R. 512, at pp. 523, 524-525, per Gibbs C.J. and Wilson J.; Jago v. District Court (N.S.W.) (1989) 168 C.L.R. at p. 29, per Mason J.; pp. 56-57 per Deane J.; p. 72, per Toohey J.; p. 75 per Gaudron J.). Indeed, the acknowledgment of the entitlement of an accused person to a 'fair trial' provided the foundation of the rule of practice which the Court enunciated in that case.

While the law's insistence that there be no conviction without a fair trial according to law has been long established, the practical content of the requirement that a criminal trial be fair may vary with changing social standards and circumstances (See, e.g., Hicks v. The King [1920] HCA 26; (1920) 28 C.L.R. 36, at p. 48, per Isaacs and Rich JJ.). ...

... While the requirement of fairness provides the ultimate rationale and touchstone for the law's adjudgment of the minimum safeguard which must be observed in the administration of the substantive criminal law, the practical content of the requirement in a particular category of case will primarily fall to be determined by the staple processes of legal reasoning, namely, induction and deduction from earlier decisions and settled rules and practices. Inevitably, however, there will arise the rare case in which those processes of legal reasoning are inadequate in a developing area of the law or in which a court, ordinarily a final appellate court, concludes that the circumstances are such that it is entitled and obliged to reassess some rule or practice in the context of current social conditions, standards and demands and to change or reverse the direction of the development of the law (See, generally, Jaensch v. Coffey [1984] HCA 52; (1984) 155 C.L.R. 549, at pp. 599-600). It is in such a case that direct reference will necessarily be made to the underlying notion of fairness and that subjective values and perceptions may intrude into the judicial process. Nonetheless, the identification or the reconsideration of the existence and content of the particular rule or practice in such a case is an unavoidable concomitant of the judicial function if the law is not to lose contact with the social needs which justify its existence and which it exists to serve. ..."

"... What the common law requires is that, if the government see fit to subject an accused person to a criminal trial, that trial must be a fair one. ... As Barton v. The Queen ((1980) 147 C.L.R., at pp. 96, 103, 107, 109) establishes, the effect of the common law's insistence that a criminal trial be fair is that, if the funds and facilities necessary to enable a fair trial to take place are withheld, the courts are entitled and obliged to take steps to ensure that their processes are not abused to produce what our system of law regards as a grave miscarriage of justice, namely, the adjudgment and punishment of alleged criminal guilt otherwise than after a fair trial. ..."

"... The judgments in past cases in the Court ... recognize in unequivocal terms the common law's insistence that a criminal trial be fair. ... They also recognize the duty of the courts to determine the essential prerequisites of a fair trial in the context of contemporary standards and circumstances (ibid, at pp. 100-102; McKinney v. The Queen (1991) 171 C.L.R., at pp. 473-474, 478)."

"In determining the practical content of the requirement that a criminal trial be fair, regard must be had 'to the interests of the Crown acting on behalf of the community as well as to the interests of the accused' (Barton v. The Queen (1980) 147 C.L.R., at p. 101, per Gibbs A.C.J. and Mason J.). There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented. ..."

"Statutory provisions which enable an appellate court to dismiss an otherwise successful appeal by a convicted person, who maintains his innocence, on the ground that there was no substantial miscarriage of justice do not authorize an appellate court to find that there has been no substantial miscarriage of justice in a case where error, impropriety or unfairness has pervaded the trial and infected the verdict to an extent that the conviction was not the outcome of a fair trial. In such a case, the conviction without a fair trial necessarily involves substantial miscarriage. Were it otherwise, the injustice of a conviction without a fair trial according to law could, as I pointed out in Wilde v. The Queen ((1988) [1988] HCA 6; 164 C.L.R. 365, at p. 375), be effectively made the occasion for a trial of an accused person by appellate judges who had seen no witnesses, heard no evidence and had had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial. ... Such statutory provisions providing for dismissal of an appeal on the ground that there was no substantial miscarriage of justice extend only to cases where it can be seen either that any error, impropriety or unfairness did not prejudice the overall trial to an extent that made it an unfair trial or that the residual effect (i.e. viewed in the context of the overall trial) of any such error, impropriety or unfairness could not have relevantly infected the verdict in the sense that it could not have adversely influenced the jury in reaching their verdict on the charge or charges upon which the accused was convicted and in respect of which the appeal to the appellate court is brought."

The judgment of Dawson J. who, like Brennan J., dissented, was consistent with the judgment to which they were both party in Wilde, Brennan J.'s views in Jago, and the majority decision in an earlier High Court decision, McInnis v. R. [1979] HCA 65; (1979) 143 C.L.R. 575: see pp. 342-345. At p. 350, he said:

"... The function of the courts is to ensure that an accused person receives the fairest possible trial in all the circumstances and those circumstances may include the lack of representation of the accused in some cases. To be sure, the law lays down the requirement for a fair trial and departure from those requirements will result in a miscarriage of justice. ..."

"The right to a fair trial is engrained in our legal system (Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23). ... Clearly enough, the concept of a fair trial is one that is impossible, in advance, to formulate exhaustively or even comprehensively. Only a body of judicial decisions gives content to the concept. ..."

"... It is apparent that, at its highest, protection is against conviction of a criminal offence after a trial which is held to be unfair. But, in truth, it is the loss of a chance of acquittal fairly open to an accused which in the end leads to a conviction being set aside (Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493, at p. 514; Wilde v. The Queen [1988] HCA 6; (1988) 164 C.L.R. 365, at pp. 371-372). The inquiry is whether the absence of legal representation for an accused gave rise to a miscarriage of justice (See, for instance, Reg. v. Cox [1960] VicRp 102; [1960] V.R. 665, at pp. 667-668; Reg. v. Hanias (1976) 14 S.A.S.R. 137, at pp. 140-143, 148-150; Reg. v. Bicanin (1976) 15 S.A.S.R. 20, at pp. 24-25; Reg. v. Austin (1979) 21 S.A.S.R. 315, at p. 319; Reg. v. Beadle (1979) 21 S.A.S.R. 67, at pp. 70-71; Reg. v. Corak and Palmer (1982) 30 S.A.S.R. 404, at pp. 408-410, 425-426).

The protection referred to in the preceding paragraph does not require a trial to proceed in the absence of counsel and the situation then to be assessed in the light of the outcome of the trial. If it is likely that an accused will suffer prejudice in conducting a defence by reason of lack of counsel (and that will almost inevitably be so where the charge is of a serious offence), the trial judge may adjourn the trial. It is not possible to say that the trial judge must adjourn the trial for there are other considerations to be taken into account. Counsel for the applicant is not right in suggesting that only the interests of the accused are relevant. The situation of witnesses, particularly the victim, may need to be considered as well as the consequences of an adjournment for the presentation of the prosecution case and for the court's programme generally (Beadle (1979) 21 S.A.S.R., at p. 71). But ordinarily the requirement of a fair trial will be the prevailing consideration. Therefore, in the absence of compelling circumstances, a trial should be adjourned where an indigent accused charged with a serious offence lacks legal representation, not due to any conduct on the accused's part."

"... The outcome of the appeal itself turns ... on what Deane J. described (Jago (1989) 168 C.L.R. at p. 56) as the 'central prescript of our criminal law ... that no person shall be convicted of crime otherwise than after a fair trial according to law'. The applicant did not have a fair trial according to law. He was facing serious criminal charges (The offences were punishable by 'imprisonment for life or for such period as the Court thinks appropriate': Customs Act, s. 235(2)); he made all the efforts he could to obtain legal representation; and, as appears from other judgments, he clearly suffered considerable disadvantage in trying to conduct his own defence. It is the loss of a change of acquittal fairly open to an accused, rather than the unfairness of the trial itself, that leads to a conviction being set aside. ..."

"It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law (Wilde v. The Queen [1988] HCA 6; (1988) 164 C.L.R. 365, at p. 375, per Deane J.; Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23, at p. 56, per Deane J.; Reg. v. Glennon [1992] HCA 16; (1992) 173 C.L.R. 592, at p. 623, per Deane, Gaudron, McHugh JJ.). The expression 'fair trial according to law' is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness!

The fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution by Ch. III's implicit requirement that judicial power be exercised in accordance with the judicial process. Otherwise the requirement that a trial be fair is not one that impinges on the substantive law governing the matter in issue. It may impinge on evidentiary and procedural rules; it may bear on when and where a trial should be held; in exceptional cases it may bear on whether a trial should be held at all. Speaking generally, the notion of 'fairness' is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted (McDermott v. The King (1948) 76 C.L.R. 501, at pp. 511-515, per Dixon J.; Driscoll v. The Queen [1977] HCA 43; (1977) 137 C.L.R. 517, at p. 541, per Gibbs J.), either because its weight and credibility cannot be effectively tested (McDermott v. The King (1948) 76 C.L.R., at pp. 511-515, per Dixon J.; R. v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133, at p. 144. See Pattenden, Judicial Discretion and Criminal Litigation, 2nd ed. (1990), p. 233) or because it has more prejudicial than probative value and so may be misused by the jury (R. v. Christie [1914] A.C. 545, at p. 560; Harris v. Director of Public Prosecutions [1952] A.C. 694, at p. 707; Driscoll v. The Queen (1977) 137 C.L.R., at p. 541, per Gibbs J. See Waight and Williams, Evidence Commentary and Materials, 3rd ed., (1990), p. 11 and Pattenden, op.cit., p. 233). In other cases, the procedures may be modified, ... the requirement of fairness is, and, in various different contexts, has been recognized as, independent from and additional to the requirement that a trial be conducted in accordance with law.

The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court (Grassby v. The Queen [1989] HCA 45; (1989) 168 C.L.R. 1, at pp. 10, 16-17) or a court of limited jurisdiction (Reg. v. Forbes; Ex part Bevan [1972] HCA 34; (1972) 127 C.L.R. 1, at p. 8; Jackson v. Sterling Industries Ltd. [1987] HCA 23; (1987) 162 C.L.R 612, at pp. 618-619, 623-624, 630-631), the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case (Cocker v. Tempest (1841) M. & W. 501, at pp. 503-504 [1841] EngR 242; [151 E.R. 864, at p. 865]; Riley McKay Pty Ltd v. McKay [1982] 1 N.S.W.L.R. 264, at p. 270; Wentworth v. New South Wales Bar Association [1992] HCA 24; (1992) 176 C.L.R. 239, at pp. 252-253). Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial (Connelly v. Director of Public Prosecutions [1964] A.C. 1254, at pp. 1301-1302, 1347; Barton v. The Queen [1980] HCA 48; (1980) 147 C.L.R. 75, at pp. 96, 107; Jago v. District Court (N.S.W.) (1989) 168 C.L.R., at p. 75). Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court (See, e.g., s. 23 of the Supreme Court Act 1970 (N.S.W.) referred to in Riley McKay Pty Ltd v. McKay [1982] 1 N.S.W.L.R., at pp. 269-270).

The notion of a fair trial and the inherent powers which exist to serve that end do not permit of 'idiosyncratic notions of what is fair and just' (Pavey & Matthews Pty Ltd v. Paul [1987] HCA 5; (1987) 162 C.L.R. 221, at p. 256, per Deane J.) any more than do other general concepts which carry broad powers or remedies in their train. But what is fair very often depends on the circumstances of the particular case. Moreover notions of fairness are inevitably bound up with prevailing social values. It is because of these matters that the inherent powers of a court to prevent injustice are not confined within closed categories (Tringali v. Stewardson Stubbs & Collett Ltd (1966) 66 S.R. (N.S.W.) 335, at p. 344; Jackson v. Sterling Industries Ltd (1987) 162 C.L.R., at p. 639,; Hamilton v. Oades [1989] HCA 21; (1989) 166 C.L.R. 486, at p. 502; Jago v. District Court (N.S.W.) (1989) 168 C.L.R., at pp. 25-26, 74). And it is because of those same matters that, save where clear categories have emerged, the inquiry as to what is fair must be particular and individual. And, just as what might be fair in one case might be unfair in another, so too what is considered fair at one time may, quite properly, be adjudged unfair at another.

A trial is not necessarily unfair because it is less than perfect (Jago v. District Court (N.S.W.) (1989) 168 C.L.R., at p. 49, per Brennan J.), but it is unfair if it involves a risk of the accused being improperly convicted (McDermott v. The King (1948) 76 C.L.R. 501, at pp. 511-515, per Dixon J.; Driscoll v. The Queen [1977] HCA 43; (1977) 137 C.L.R. 517, at p. 541, per Gibbs J.) If the only trial that can be had is one that involves a risk of that kind, there can be no trial at all (Jago v. District Court (N.S.W.) (1989) 168 C.L.R., at pp. 30, 31, 34, per Mason C.J.; pp. 56-58, per Deane J.; pp. 71-72, per Toohey J.; p. 75, per Gaudron J.; Reg. v. Glennon (1992) 173 C.L.R., at p. 623, per Deane, Gaudron, McHugh JJ). ...

... But whatever the consequences and whatever the cost, it is for the courts to decide what is or is not fair in a criminal trial. And it is the duty of the courts to ensure that only fair trials are had, either by tempering the rules and practices to accommodate the case concerned or, if that not be adequate, by staying the prosecution.."

In Williams v. Spautz [1992] HCA 34; (1992) 174 C.L.R. 509, Mason C.J., Dawson, Toohey and McHugh JJ. said at p. 518-519 of their joint judgment:

"The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, 'to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair' (Barton (1980) 147 C.L.R., at pp. 95-96; Jago (1989) 168 C.L.R., at p. 46; see also Reg. v. Derby Crown Court; Ex parte Brooks (1984) 80 Cr.App.R. 164, at pp. 168-169). This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose."

"... there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J. referred to them in Moevao v. Department of Labour ([1980] 1 N.Z.L.R. 464, at p. 481) in a passage which Mason C.J. quoted in Jago ((1989) 168 C.L.R., at p. 30). The first is that the public interest in the administration of justice requires that the court protect it ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice. ..."

As I understand the position, Brennan J. disagreed with the majority to the extent that he considered that a stay was not there available to prevent an abuse of process which he limited to a proceeding for an ulterior motive. Consistently with his opinion in Jago, his Honour stated that a criminal trial is not unfair if it is as fair as the court can make it, and that being so it is for the court to mould its procedures to ensure such a trial. At pp. 531 and 538, his Honour quoted passages from his judgment in Jago.

Although he dissented in the result, Deane J. said at p. 550:

"... The proceedings themselves, if otherwise regularly conducted, will constitute an abuse of process only if the circumstances (including X's collateral purposes and actions) are either such that the proceedings are vexatious and oppressive for the reason that they lack any proper foundation or such that any subsequent trial will be necessarily and unavoidably unfair (See, generally, Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23; Grassby v. The Queen (1989) 168 C.L.R., at p. 6). ..."

Although Walton v. Gardiner (1993) 177 C.L.R. 379 was not a criminal prosecution but a disciplinary proceeding before a professional tribunal, reference was again made in the joint judgment of Mason C.J., Deane and Dawson JJ. at p. 393 to a court's power to stay proceedings as an abuse of process if necessary "to prevent its processes being employed in a manner which gives rise to unfairness", citing Jago at p. 28 per Mason C.J. At p. 395, their Honours added:

"It should be mentioned that there was considerable discussion in the course of argument about the effect of some comments in the judgment of the majority of the Court in Williams v. Spautz ((1992) [1992] HCA 34; 174 C.L.R. 509, at pp. 519-520). When those comments are properly understood in context, however, there is nothing in them which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. Indeed, careful examination of them discloses that they lend some support to a denial of that proposition (ibid., at p. 520, see, in particular, the approving reference to the judgment of Richardson J. in Moevao v. Department of Labour [1980] 1 N.Z.L.R. 464, at p. 482)."

"As was pointed out in Jago (See, in particular, (1989) 168 C.L.R., at pp. 30-34, per Mason C.J.; pp. 59-61, per Deane J.; p. 72, per Toohey J.; pp. 76-78, per Gaudron J.), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. ..."

Brennan and Toohey JJ. dissented. Brennan J. (pp. 410-411, 412-417) continued to adhere to the views which he had expressed in and since Jago. Toohey J., who had jointed in the majority judgment in Williams, seems in part to have based his dissent on factual considerations.

"... The reasons for judgment of the majority answer this question by a subjective balancing of a variety of factors - some favouring the continuance of the proceedings (notably the protection of the interests of the public and the patients), others favouring a discontinuance. The balancing approach reflects some of the views expressed in Jago ((1989) 168 C.L.R., at pp. 31-32, per Mason C.J.; pp. 60-61, per Deane J.; pp. 75-76, per Gaudron J.). That approach calls for the critical question to be restated so as to identify more clearly the issue for decision in this case: can an order staying proceedings for abuse of process be made when a court of competent jurisdiction forms the view that, on balance, it is unfairly and unjustifiably oppressive on a party against whom the proceedings are pending to allow those proceedings to continue, even though the proceedings can be fairly tried? I would answer that question : no. As my answer is a minority view in this case, I should briefly state my reasons.

... when proceedings are regularly instituted in a court or tribunal vested with such a jurisdiction and the proceedings can be and are prosecuted in due compliance with the court's procedure for the purpose of obtaining relief within the scope of the remedy, the court or tribunal in which the proceedings are pending is duty bound to exercise its jurisdiction to hear and determine those proceedings. ... The rule of law depends on the certain performance by the court or tribunal of its duty to exercise its jurisdiction. To admit a power in the court or tribunal to decline to exercise its jurisdiction in a case instituted on reasonable grounds for a proper purpose is to assert a power to elevate abstract notions of unfairness or want of justification above the law itself. The administration of justice is not contingent on judicial satisfaction that the prosecution of a proceeding is not unfair and not unjustifiable - provided the proceeding is instituted on reasonable grounds for a proper purpose and is prosecuted in due compliance with the court's procedure. Justice is administered according to law, and the exercise by courts and tribunals of their respective jurisdictions for the purposes for which they are conferred is the administration of justice. ...

... there can be two views about whether the inordinate amount of time that has been allowed to pass since the alleged professional misconduct occurred should preclude disciplinary proceedings on the 1991 complaints. One view is that disciplinary proceedings before the Tribunal would place unfair or unjustifiable burdens and strains on the respondent medical practitioners and that the public benefit of upholding and enforcing proper standards of medical treatment is bought at too high a price for the individual respondents; the other view is that the interests of the public and the affected patients are paramount and that their interests in having complaints investigated by the Tribunal have been disregarded for too long. But how can a judicial (as distinct from a political or administrative) choice be made between these two views? Both views are reasonable. There is no legal criterion for upholding the validity of one view and dismissing the validity of the other. ..."

Toohey J., at p. 420, stated that he would make the orders proposed by Brennan J., "generally for the reasons appearing in the judgment of Brennan J.". However, his Honour gave additional brief reasons which seems to me to differ significantly from what Brennan J. had said. At pp. 421-422, he said:

"Where a stay of proceedings is sought on the ground that the proceedings have been instituted and maintained for an improper purpose, 'it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped' (Williams v. Spautz [1992] HCA 34; (1992) 174 C.L.R. 509). But here the respondents make no allegation of improper purpose on the part of the appellant. Therefore, the inquiry which the Tribunal has been directed by statute to conduct may not be stayed unless the respondents are so oppressed as to face the likelihood of an unfair trial. But that likelihood is precluded by the judgments of the members of the Court of Appeal who held or were prepared to assume that a fair trial was possible. In the absence of any finding that a fair trial was not possible, a stay of proceedings was not warranted on the ground merely that the proceedings were 'oppressive' (See Gill v. Walton (1991) 25 N.S.W.L.R. 190, at p. 210, per Gleeson C.J.; p. 205, per Kirby P., where that expression is used).

It is conceivable that delay in proceedings may be of such an order as to make a fair trial impossible; the discussion in Jago v. District Court (N.S.W.) ((1989) [1989] HCA 46; 168 C.L.R. 23) makes this clear. In that event the oppression results in an inability to obtain a fair trial. But that is not the case here. In Jago I suggested (ibid., at p. 72):

'To treat abuse of process and fair trial as entirely distinct concepts causes the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other.'

However, in the present case abuse of process in the sense of improper purpose is not asserted nor is the impossibility of securing a fair trial. A permanent stay of the proceedings against the respondents is therefore not justified."

In Rogers v. R. [1994] HCA 42; (1994) 181 C.L.R. 251, a majority, Mason C.J., Deane and Gaudron JJ., held that a criminal proceeding should be stayed. Brennan and McHugh JJ. dissented.

The issue was whether the prosecutor could tender records of interview; one of the two records had been ruled inadmissible, because not made voluntarily, in an earlier trial for different offences. The majority held that tender of the records would be a direct challenge to the earlier ruling, and an abuse of process.

"... there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. This led the majority in Walton v. Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations ((1993) 177 C.L.R., at pp. 395-396). Those considerations, which reflect the two aspects of abuse of process outlined above, include (ibid., at p. 396):

'the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.'

In the present case, a weighing of these considerations inevitably compels the conclusion that a stay should be ordered. The public interest in securing the convictions of the appellant is clearly outweighed by other relevant considerations. ..."

Although Brennan J. agreed that the records were not admissible in the later proceeding, he did so on the basis of issue estoppel, and held that a stay was not available because the tender of the records would not be an abuse of process. His Honour's reasons with respect to the latter issue, which are set out at p. 270, are consistent with his statements in Jago and subsequent cases.

In their joint judgment, Deane and Gaudron JJ. said at p. 280:

"... In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites 'the scandal of conflicting decisions' (Spencer Bower and Turner, ["The Doctrine of Res Judicata", 2nd ed. (1969),] p. 411). And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of 'fresh evidence' or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness."

McHugh J., who held that there was no abuse of process involved, nonetheless generally accepted the wider, rather than Brennan J.'s narrower, view of that concept; see pp. 286-287:

"Inherent in every court of justice is the power to prevent its procedures being abused (Hunter v. Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] A.C. 529, at p. 536). Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. In Walton v. Gardiner ((1993) 177 C.L.R. 378, at p. 393), Mason C.J., Deane and Dawson JJ. said that the jurisdiction to stay proceedings that are an abuse of process 'extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness'. ..."

In Webb v The Queen [1994] HCA 30; (1994) 181 C.L.R. 41 at p.57, Brennan J repeated his view in Jago and Dietrich that the duty of the court is to make the trial "as fair as the court can make it."

In Ridgeway, Brennan J. at pp. 60-61 repeated his view of the narrow reach of abuse of process in criminal proceedings, and referred back to what he had said in Jago at pp. 47-48. Toohey J. accepted (at p. 71) "that a court may intervene to prevent an abuse of its process, in criminal as well as civil proceedings" and the possibility of an abuse of process "in a way that interferes with the conduct of a fair trial (the issue in Jago v. District Court (N.S.W.) and Walton v. Gardiner)". Further, "an accused may not receive a fair trial, by reason of delay for instance though there is no improper purpose in bringing the proceedings". On p. 72, there is a statement by his Honour which suggests that the only question concerning fair trial was whether 'proper procedures were ... observed'; however, that statement must be seen in the context that there was no other suggestion of unfairness since the appellant had himself instigated the importation and supply of heroin to him. That was emphasised by Toohey J. in a different context at p. 74, where he said:

"There is no justification for excluding evidence on the ground of unfairness to the appellant. The importation of the heroin in his possession was as a result of his own initiative. ..."

"The inherent powers of superior courts to prevent an abuse of process exist to protect the courts and their proceedings, and to maintain public confidence in the administration of justice. (See Moevao v. Department of Labour (1980) 1 N.Z.L.R. 464 at 481, cited in Jago v. District Court (N.S.W.) (1989) 168 C.L.R. at 30, in Williams v. Spautz (1992) 174 C.L.R. at 520, and Walton v. Gardiner (1993) 177 C.L.R. at 394). And the maintenance of public confidence in that regard depends on ensuring that judicial proceedings serve the ends of justice, not injustice (see Walton v. Gardiner (1993) 177 C.L.R. at 392-393)".

"... notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case (see Dietrich v. R. [1992] HCA 57; (1992) 177 C.L.R. 292 at 328-9, 364). ..."

On p. 84, her Honour cited from the judgment of Deane J. in Jago at p. 58 where his Honour gave as an example of an unfair prosecution of a renewed charge brought years later, and continued:

"... That is because prosecutions brought or maintained in such circumstances might serve the ends of injustice, rather than justice, and might adversely affect public confidence in the courts and in their proceedings.

Public confidence could not be maintained if the courts were to permit prosecutions to proceed in circumstances where a fair trial was impossible. ..."

Many of the rules and practices which are routinely followed and applied in criminal trials have derived from, or by reference to, considerations related to fairness for persons accused of offences; e.g., rules and practice relative to warnings in relation to: some types of uncorroborated evidence; the conduct of the trial judge and the competence of counsel; jury irregularities and inconsistent verdicts; unsafe and unsatisfactory verdicts; the discovery of fresh evidence, etc. However, time and the inordinate length of this judgment are against any wider investigation of an accused's right not to be tried unfairly, which I do not think necessary to understand the divergence of opinion which exists in this vitally important area of the law. I will mention only one further very recent decision of the High Court in this context.

In Carter v. Northmore Hale Davy & Leake (unreported judgment, delivered 14 June 1995), the High Court by a 3:2 majority (Brennan, Deane and McHugh JJ., Toohey and Gaudron JJ. dissenting) held that legal professional privilege entitled persons to withhold documents sought by an accused person in a criminal proceeding which might materially assist his defence. The judgments involved a consideration of the competition between two public interests related to the administration of justice, the public interest in effective legal representation and the public interest in having all relevant evidence available; although the connexion between the latter public interest and fair trial was adverted to, there was little, if any, suggestion that there cannot be a fair trial unless all relevant evidence is available, and such a proposition could not easily be justified; the position might be different if critical evidence was unavailable, but the appellant in Carter was not in the position to make that assertion; in the eventuality that a fair trial was unavailable because critical evidence was unavailable, the trial might have to be stayed; cf. Dietrich. However, Carter did not involve an application for a stay.

Nonetheless, the case is of some present interest. For example, at p. 4 Brennan J. recognised public interests in the "rule of law" and "in achieving fairness in the trial of a person charged with a criminal offence." Toohey J. also recognised that "aspect" of the public interest at p. 35. McHugh J. said at p. 50 that "[t]he Crown as well as the accused has the right to a fair trial", but, at p. 35, Toohey J. said that, although "... a criminal trial is an adversarial proceeding ... the proper interests of the accused stand in a special position".

Carter also makes the important point that, at least in some circumstances, the competition between competing public interests, or aspects of the public interest, is not to be resolved case by case - with potentially inconsistent outcomes - but as a matter of principle: see, e.g., Deane J. at pp. 10-11 and McHugh J. at p. 44. In that passage, his Honour said:

"... the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights' (A.M. & S. Europe Ltd. v. Commission of The European Communities [1983] QB 878 at 941 and see Solosky v. The Queen (1979) 105 DLR (3d) 745 at 760; Reg. v. Uljee [1982] 1 NZLR 561 at 569; Descôteaux v. Mierzwinski [1982] 1 SCR 860 at 880 citing Reg. v. Littlechild (1979) 108 DLR (3d) 340 at 347; Geffen v. Goodman Estate (1991) 81 DLR (4th) 211 at 232; Maurice (1986) 161 CLR at 490). By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.

This Court has accepted that, although the doctrine is based on the requirements of the public interest, its application in particular cases does not depend upon balancing it against other rights that are grounded in the public interest (Waterford [1987] HCA 25; (1987) 163 CLR 54). Not even the public interest in courts having all relevant evidence before them has been considered sufficient to override the public interest in maintaining the unqualified operation of the privilege. ..."

Because this case is directly related to evidence of incriminating admissions, it is desirable to note some further modern statements in the High Court with respect to the privilege against self-incrimination.

Policy considerations underlie the rules which have developed with respect to evidence of incriminating admissions: see Carr at p. 342 per Gaudron J., citing Dixon J. in Sinclair at p. 335. In McDermott at p. 513, Dixon J. observed that it is a traditional principle, based on wisdom and justice, that no person is required to incriminate himself or herself. In Petty and Maiden v. R. (1991) 173 C.L.R. 95, Mason C.J., Toohey and McHugh JJ. in a joint judgment referred at p. 99 to the right to refuse to answer questions as "a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country". Brennan J. said at p. 107:

"The right of silence, as it is stated above, has not always been fully acknowledged (See, e.g., Reg. v. Beljajev [1984] VicRp 57; [1984] V.R. 657, at p. 662), but it is only by a firm adherence to the rule as so stated that effect is given to the policy of the common law that a suspect's 'fault [is] not to be wrung out of himself, but rather to be discovered by other means, and other men' (Blackstone's Commentaries, vol. IV, p. 296, cited by Windeyer J. in Rees v. Kratzmann (1965) 114 C.L.R., at p. 80). ..."

(See also per Dawson J. at p. 118 and per Gaudron J. at p. 129.) There is nothing in subsequent cases such as Weissensteiner v. R. [1993] HCA 65; (1993) 178 C.L.R. 217 and Glennon v. R. (1994) 179 C.L.R. 1 which is inconsistent with those views.

R. v. Butler [No. 1] (1991) 102 F.L.R. 341contains an eloquent statement by Kearney J., who said, obiter, at p. 346:

"In R. v. Beljajev [1984] VicRp 57; [1984] VR 657, at 662, Starke J said:

'... the right to silence is a fundamental principle of the criminal law and is not to be overridden by any other so-called doctrine or other principle.'

I respectfully agree. The right to silence is a statement about how our culture values the individual, and limits the power of the state."

More recently, in Carter v. Northmore Hale Davy & Leake, Toohey J. said that, at least for individuals, "[t]he privilege against self-incrimination is a basic tenet of our law".

His Honour there referred to Environment Protection Authority v. Caltex Refinery Co. Pty Ltd [1993] HCA 74; (1993) 178 C.L.R. 477 in which, by a 4:3 majority, the High Court held that the privilege against self-incrimination does not extend to corporations. In the course of the judgments, there is extensive reference to the historical development, and status, of the right to silence.

Thus, for example, in the course of their examination of the "historical basis of the privilege and its modern rationale" at pp. 497 et seq, Mason C.J. and Toohey J. said at p. 498 that the privilege against self-incrimination is now seen to be one of many internationally recognised human rights". At pp. 498-499, their Honours conntinued:

"... As Murphy J. commented in Rochfort v. Trade Practices Commission ((1982) [1982] HCA 66; 153 C.L.R. 134, at p. 150):

'The privilege against self-incrimination is a human right, based on the desire to protect personal freedom and human dignity.'

This was echoed by the Supreme Court of Canada in Amway ([1989] 1 S.C.R., at p. 40; (1989) 56 D.L.R. (4th), at p. 323), and by the minority in Braswell who stated that the privilege ((1988) 487 U.S., at p. 119): 'is an explicit right of a natural person, protecting the realm of human thought and expression.'

The right not to be compelled to testify against oneself or to confess guilt is embodied in Art. 14(3)(g) of the International Covenant on Civil and Political Rights. The language of that Covenant makes it clear that the purpose of its provisions is to protect individual human beings. As this Court has recognized, international law, while having no force as such in Australian municipal law, nevertheless provides an important influence on the development of Australian common law, particularly in relation to human rights (Mabo v. Queensland [No. 2] (1992) 175 C.L.R. 1, at p. 42)."

Their Honours went on to endorse (at p. 499) at least part of what is stated in Wigmore on Evidence (1961) at pp. 310-317, and (at p. 503) what was said by Lord Muskill in R. v. Director of Serious Fraud Office; ex p. Smith [1993] A.C. 1 at pp. 30-31, but I do not understand those endorsements to qualify their acceptance of the privilege against self-incrimination as an internationally recognised "human right". Thus, towards the end of their judgment, they say at p. 508:

"... The privilege in its modern form is in the nature of a human right, designed to protect individuals from oppressive methods of obtaining evidence of their guilt for use against them. In respect of natural persons, a fair state-individual balance requires such protection; ..."

"... The privilege is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction by testimony wrung out of the mouth of the offender (Rees v. Kratzmann [1965] HCA 49; (1965) 114 C.L.R. 63, at p. 80; Hammond v. The Commonwealth (1982) 152 C.L.R. 188, at pp. 202-203). The tenderness of the law towards a natural person charged with an offence strikes a traditional balance between law enforcement and personal liberty. ..."

In their joint dissenting judgment, Deane, Dawson and Gaudron JJ. said at p. 528:

"... the privilege protects a person from being compelled to produce evidence which will incriminate him, whether testimonial or not. That is clear enough in a criminal trial where an accused cannot be compelled by the prosecution to produce documents. But the immunity enjoyed by an accused in a criminal trial extends to evidence of any kind, whether incriminating or not. The immunity is, perhaps, better explained by the principle that the prosecution bears the onus of proving its case, than by the more confined principle that an accused has a privilege against self-incrimination, notwithstanding that both have a common origin."

"Although the privilege against self-incrimination may reflect a desire to protect personal freedom and may be classified as a human right (cf. International Covenant on Civil and Political Rights, Art. 14(3)(g)), it operates within a broader context. It represents, at all events so far as the criminal law is concerned, an unequivocal rejection of an inquisitorial approach. ...

In any case, personal freedom and human dignity have less significance when evidence is given under compulsion in judicial proceedings. Questions asked extra-judicially by those investigating crime, such as the police, may well be invasive of privacy, but no one is compelled to answer. There the right to refuse to answer is a right of a more general kind than that conferred by the privilege against self-incrimination. On the other hand, evidence given in judicial proceedings is given under compulsion and is frequently an invasion of privacy. But it is not any more or less so because the evidence is self-incriminating. For this reason, if no other, the privilege against self-incrimination cannot be said to rest exclusively upon notions of personal freedom and human dignity.

The privilege against self-incrimination confers an immunity which is deeply embedded in the law (See Haw Tua Tau v. Public Prosecutor [1982] A.C. 136, at p. 154; Hor, "The privilege against self-incrimination and fairness to the accused", [1993] Singapore Journal of Legal Studies 35, at pp. 35-38, 55-56). In the end, it is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself. ..."

McHugh J. also discussed the history of the rule (p. 543), and its rationales (pp. 544-546). At p. 546, he said:

"... the desire to protect the human dignity of the accused is a separate and important justification of the privilege. A rule which requires the prosecution to prove the guilt of an accused in the course of a judicial proceeding without reliance on his or her incriminating answers compulsorily obtained ensures that the prosecution must treat the accused as an innocent person whose rights as a human being must be respected. The 'show trials' of the totalitarian state are hardly possible in a system where the accused cannot be compelled to incriminate him or herself and the plea of not guilty at the commencement of the trial puts the Crown to proof of every issue and entitles the accused to a presumption of innocence until a guilty verdict displaces that presumption.

A further justification for the rule is that, without it, the privacy of the individual will be infringed. That is evident in the judgment of Murphy J. in this Court in Pyneboard. It is also a strong theme of the judgments of the United States Supreme Court. Thus, in Hale ((1906) 201 U.S., at p. 74) the Court said:

'[The individual] is entitled to carry on his private business in his own way ... He owes no duty to the State or to his neighbours to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him.'

Another justification for the privilege is that it benefits the legal system in a number of ways. First, it operates to encourage persons to give evidence by removing the fear that they might have to give evidence which will incriminate them (Australia, Law Reform Commission, Report No. 26, Evidence (1985), vol. 1, p. 485; also Wigmore [on Evidence], op cit., p. 311). Secondly, it avoids the giving of false evidence since witnesses who are obliged to answer questions may prefer to commit perjury rather than incriminate themselves (Australia, Law Reform Commission, Report No. 26, Evidence, op. cit., pp. 485-486). Thirdly, it maintains the integrity of the accusatorial system by forcing the prosecution to rely upon independent evidence rather than the self-incrimination of the accused (Wigmore, op. cit., p. 309; Pyneboard (1983) 152 C.L.R., at p. 335, per Mason A.C.J., Wilson and Dawson JJ.; White (1944) 322 U.S., at p. 698)."

The criminal justice system in this country has developed without the control and unifying influence of established constitutional rights to due process or fair trial. I omit any further reference to the constitutional position because no argument was addressed to that matter and s. 78B of the Judiciary Act 1903 (Cth.) has not been complied with (but see Dietrich at p. 326 per Deane J. and at pp. 362-365 per Gaudron J.). The extensive, although not exhaustive, citation of High Court authority, mainly judgments in the last 15 years, undertaken above, demonstrates that, while the right of an accused person not to be tried unfairly is universally accepted, there are divergent opinions on various issues related to fair trial, and there have been some shifts in opinion on the part of individual judges. That is not surprising; these are fundamental social or political "policy" issues, and the underlying concepts are abstract and intrinsically ambiguous, in the sense, at least, that their practical content can depend on unacknowledged assumptions.

Thus, for example, the traditional approach of the common law, as I understand it, is to consider the fairness of a criminal trial solely by reference to the interests of the person accused, in part because of a deep-rooted concern to eliminate, or at least minimise, the risk of an innocent person being convicted; perhaps the most obvious product of this approach is the requirement of proof beyond reasonable doubt: cp. M. Damaska "Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study", (1973) 121 University of Pennsylvania Law Review 506, e..g. at p. 578-579, 583. The content of the right to a fair trial, on this approach, is obviously more extensive than if some different approach was adopted.

If, instead, the chosen starting point is that a fair trial in an adversarial system is one which is fair to both parties, the conclusion reached is that an accused's right to a fair trial only entitles him or her to a trial which is fair to both parties. On this approach, fairness is not considered only by reference to the interests of either adversary, whose interests will, in some respects, conflict; the objective is overall fairness, with those conflicting interests balanced, accommodated and compromised; the interests of the accused, and of the community, in the fairness of criminal trials according to the interests of the accused are set against a range of public and private interests, including the protection of the community, the vindication of victims and the punishment of criminals.

Although there is no possibility of reconciling the two approaches in any circumstances in which it would be significant to do so, each is defensible; for example, if the objective of a criminal trial is a search for truth, be it guilt or innocence, it can be argued that the latter approach maximises the likelihood of the conviction of guilty persons, with some increase in risk to innocent persons who are wrongly accused; on the other hand, the traditional approach maximises the likelihood of the acquittal of innocent persons, although at a cost to the community, which is disadvantaged when guilty persons, as well as those who are innocent, escape conviction because of rules and practices primarily intended for the protection of the innocent.

Individual victims of crime are also obviously disadvantaged when guilty persons escape conviction, and hence it is possible to see the choice between the alternative approaches as one involving competing individual rights; however, any conclusion concerning the proper approach is again influenced by the starting assumption. If the accused is guilty, the rights of the victim would likely be preferred by the general community; however, it seems to me axiomatic that, if the accused person is innocent, his or her rights must prevail.

The alternative approaches, and the choice between them which his Honour considers correct, are spelt out in the judgment of Deane J. in Van der Meer at p. 31, where his Honour said:

"The complementary direct objectives of the administration of the criminal law are the conviction and punishment of the guilty and the acquittal of the innocent. The frailty of all human institutions precludes the complete achievement of both. That being so, there is inevitable tension between them. In the context of such tension, the entrenched and guiding thesis of the criminal law of this country is that the second objective is incomparably more important than the first; that the searing injustice and consequential social injury which is involved when the law turns upon itself and convicts an innocent person far outweigh the failure of justice and the consequential social injury involved when the processes of the law proclaim the innocence of a guilty one. Outside the courts, the law's insistence upon the protection of the innocent from wrongful conviction is increasingly portrayed as an over-concern for those whose guilt the self-righteous are prepared to assume. Within the courts, it must be vigilantly observed and safeguarded unless and until the law is changed by valid legislation to impose different values and standards. The law's insistence upon the pre-eminence of the need to ensure that the innocent are protected from wrongful conviction inspires the basic principle that guilt of a criminal offence must be proved beyond reasonable doubt (see, eg, per Harlan J., Re Winship [1970] USSC 77; (1969) 397 US 358 at 371-2). It is also reflected in the guiding requirement of fairness to a suspect or an accused in the administration and enforcement of the criminal law."

In my opinion, if the traditional common law approach is challenged, and a choice must be made between the two alternative approaches, that choice cannot be made on the basis of legal principle; it depends on contemporary community values and conditions: cf. Dietrich per Deane J. at pp. 328-329, and Gaudron J. at pp. 364-365; Ridgeway per Gaudron J. at p. 83. Because of the constitutional and legislative vacuum, the choice must be made by judges, ultimately the High Court. Whether or not it is appropriate for even a final appellate court to depart from the traditional common law approach by modifying the law in favour of the State against the individual citizen, I am firmly of opinion that an intermediate appellate court should not do so.

In my opinion, the common law starts for this purpose, as it does elsewhere, with the presumption that an accused person is innocent, and any choice which must be made between the two approaches to which I have referred should be made in the context of a contest between the State and an individual citizen; these considerations strongly favour continuation of the traditional approach which focuses attention only on the interests of the accused.

Further, the right not to be tried unfairly is a fundamental human right, as is recognised by Article 14(1) of the International Covenant on Civil and Political Rights, which has been ratified by Australia. Although Article 14(1) of the Covenant has not thereby become part of Australian law, statutes should be interpreted, as far as the language permits, in conformity with the terms of international instruments, which may also be used by the courts as a legitimate guide in developing the common law: Environment Protection Authority at p. 499; Minister for Immigration and Ethnic Affairs v. Teoh [1995] HCA 20; (1995) 128 A.L.R. 353. While, as a matter of strict logic, that may leave the content of the right to a fair trial unresolved, its fundamental nature and its character as an individual right support a conclusion that it is absolute, and unqualified by other interests, or matters such as limits on the State's capacity to provide a trial which is fair.

Unless the courts guarantee a trial to an accused person which is fair by reference to his or her interests, the criminal justice system seems to me critically flawed. Not only accused persons but the general public have a high interest in insisting that criminal trials be entirely fair to accused persons. Further, the right not to be tried unfairly for a criminal office is, in my opinion, basic to the proper operation of the rule of law and the maintenance of the moral authority of the administration of justice (cp. Pollard at pp. 200-205 per Deane J., with whom Mason C.J. agreed on this point at p. 184).

I do not think it necessary to qualify these statements by reference to "substantial" or "significant" unfairness; the concept of unfairness seems to me intrinsically concerned with matters of substance, not technicality: cf. Wilde per Deane J. at pp. 375-376.

The nature and content of the right of an accused person not to be tried unfairly obviously influences derivative principles which fall for application in the administration of the criminal law,

including those related to evidence in criminal trials.

The judge at a criminal trial has a discretion to reject admissible evidence. The power is discretionary in the sense that it requires a decision based on the circumstances of the particular case, but, like all judicial discretions, it must be exercised on a principled, not an arbitrary or subjective basis. It has long been accepted that the legal standards by which justice is achieved should be as immune as possible from the personal values of the individual judge. Further, the specification of a legal standard and the identification of material criteria provides stability and certainty in the day-to-day administration of the criminal law; uncertainty, unpredictability, and quite likely inconsistency, are completely unsatisfactory in decisions which affect criminal liability and, potentially, the loss of personal liberty.

Consistently with the right of an accused person not to be tried unfairly, admissible evidence should not be received at a criminal trial if its reception would be unfair to the accused. The power to reject such evidence is not concerned with inadmissible evidence - which must also be rejected - but with evidence which is admissible; the power extends to all such evidence, including evidence which is admissible only because it has satisfied a test which is itself related to circumstances which are relevant to fairness: e.g., "propensity" or "similar fact" evidence, the admissibility of which is to be decided in accordance with the test propounded by Mason C.J., Wilson and Gaudron JJ. in Hoch and Mason C.J., Deane and Dawson JJ. in Pfennig. Of course, there might be little scope for the operation of the discretionary power in such circumstances..

The question whether or not it would be fair to an accused person to receive admissible evidence at his or her trial falls to be answered by reference to the interests of the accused person, and is primarily related to the circumstances in which the evidence was obtained; the reliability of the evidence might be a factor in the sense that unreliability might support, or - if the unreliability is sufficiently obvious - even require, its rejection; on the other hand, even reliable evidence should be rejected if the circumstances in which it was obtained make it unfair to the accused to use it at his or her trial. When the evidence relates to incriminating statements, the circumstances in which it was obtained and any other matters relevant to fairness must be considered on the basis that the privilege against self-incrimination is an important personal right which has been, and is, accorded special protection by the common law.

Although many of the cases in which it has been accepted that evidence of incriminating statements should be excluded involved statements made by a accused person while in custody, that is not universally so, and the English and Australian decisions do not indicate that evidence of incriminating statements can only be excluded because of unfairness which occurred while the accused was in custody or after the beginning of the accusatory stage: cf. Hebert v. R. (1990) 2 S.C.R. 151.

Further, if, as I consider, the foundation for exclusion is the loss of the privilege against self-incrimination in circumstances where that would be unfair, there is no basis in principle for the selection of a differentiating point in the investigatory and accusatory process, before which trickery is impermissible and after which it is not. Such an approach would undoubtedly produce anomalous results, as can be seen by a comparison of this case and R. v. Davidson and Moyle (indictment no. 377/94) which the Attorney-General has referred to this Court for advice after the trial judge's rejection of evidence of confessional statements made to a friend, acting on behalf of the police, while the accused were in custody.

As is obvious, and confirmed by the authorities, there is an overlap between unfairness to an accused person and illegality or impropriety by law enforcement officials; indeed, while illegality can be precisely tested, it overlaps with both unfairness and impropriety which are less precise, and between which no clear distinction has been established: cp. Ridgeway at pp. 53-54. Nonetheless, a judge at a criminal trial has an additional, quite separate discretion to reject admissible evidence which was illegally or improperly obtained (and admissible evidence of an offence (or an element of an offence) which was illegally or improperly procured by law enforcement officials).

This discretion is not related to the rights of the accused person but to considerations of public policy. The justification for the power to reject admissible evidence is the public interest in the integrity of the administration of criminal justice and in discouraging illegality or impropriety by the State against the citizen. As Richardson J. in Moevao v. Department of Labour (1980) 1 N.Z.L.R. 464, said at p. 481 in a passage referred to by the High Court on a number of occasions:

"It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever ends may have been adopted. ..."

Unfortunately, the use of this discretion has grave practical consequences. Crime, including organised crime, is a serious problem, and criminal techniques are becoming increasingly sophisticated; courts should not be astute to frustrate or impose unnecessary restraints on law enforcement activities which are designed to protect the community by the prevention, detection and prosecution of offences. Presumably because the subject is both difficult and controversial, governments have not initiated full public debate with respect to powers and protection for law enforcement officials in "undercover" and other clandestine operations, in which personal safety and operational necessities might require breaches of the law or that subterfuge be maintained beyond the point at which a caution would ordinarily be administered. Instead, law enforcement personnel continue to be left to confront personal difficulties as is highlighted by, for example, A. v. Hayden [No. 2] [1984] HCA 67; (1984) 156 C.L.R. 532, and Ridgeway.

Nonetheless, the line must be drawn; part of the price which the community pays for its freedom is that some crime goes unpunished because of fetters which the law imposes upon conduct by law enforcement officials. If those constraints are not observed and enforced, the rule of law on which society is based is weakened and ultimately threatened.

Expressions of judicial disapproval of misconduct by law enforcement officials will ring hollow if a pattern emerges of courts receiving evidence, despite misconduct; in time, just as the success of the evil technique of verballing encouraged its growth, the admission of illegally or improperly obtained evidence in criminal prosecutions will encourage the use of misconduct by law enforcement officials for those purposes; and, experience shows that misconduct by law enforcement officers which is tacitly condoned by the courts leads to contempt for the law and other misconduct, including official corruption.

Further, implicit curial encouragement, approval or condonation of illegality or impropriety in the pretrial investigative process by the admission of evidence illegally or improperly obtained tends to diminish public confidence in the courts and the integrity of the criminal justice system. As Brennan J. observed in Glennon (173 C.L.R): "The integrity of the administration of justice in criminal proceedings is of fundamental importance to a free society".

Because the public also has an interest in convicting and punishing criminals and deterring or inhibiting future crime, the High Court has held that the reception of illegally or improperly obtained evidence can be justified by the circumstances of a particular case, which might include, on the one hand, any unreliability in the evidence or other matters affecting the fairness of its reception against the accused, and, on the other, that the illegality or impropriety was only minor or inadvertent or, perhaps, dictated by operational necessities, although a court would seldom have the necessary information to justify such a finding.

However, essentially what is involved is not a balancing of "incommensurable" (Pfennig, per McHugh J. at p. 147) factors, but a policy choice between competing public interests; such a policy choice cannot satisfactorily and consistently be made by individual judges on a case-by-case basis: cp. Walton per Brennan J. at pp. 414-417; Carter v. Northmore Hale Davy & Leake at pp. 10-11 per Deane J. and at p. 44 per McHugh J.

In my opinion, the more recent decisions of the High Court indicate that, if illegality or impropriety is deliberate and significant, even if the offence is serious, the public interest in preventing and punishing crime should ordinarily yield to the public interests in the integrity of criminal justice in the courts and the integrity of the law enforcement arm of the State: see, e.g., Rogers and Ridgeway.

In Ridgeway, Mason C.J., Deane and Dawson JJ. said at p. 50:

"... As Frankfurter J. wrote in Sherman ((1958) 356 US at 380):

'In so far as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognised jurisdiction to formulate and apply "proper standards for the enforcement of the federal criminal law in the federal courts", McNabb v. United States ((1943) [1943] USSC 120; 318 US 332 at 341) an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.' "

"... it is arguable that a strict requirement of observance of the criminal law by those entrusted with its enforcement undesirably hinders law enforcement. Such an argument must, however, be addressed to the Legislature and not to the courts. If it be desired that those responsible for the investigation of crime should be freed from the restraints of some provisions of the criminal law, a legislative regime should be introduced exempting them from those requirements. In the absence of such a legislative regime, the courts have no choice but to set their face firmly against grave criminality on the part of anyone, regardless of whether he or she be government officers or ordinary citizen. To do otherwise would be to undermine the rule of the law itself."

The material passage from the judgment of Brennan J., in which he referred to The People (Attorney-General) v. O'Brien (1965) Ir.R. 142 at p. 160 is set out above.

Toohey J. at p. 72 cited with approval the following statement by Lamer J. in delivering the judgment of the Supreme Court of Canada in Mack (1988) 44 C.C.C. (3d) at p. 539:

" '... central to our judicial system is the belief that the integrity of the court must be maintained. This is a basic principle upon which many other principles and rules depend. If the court is unable to preserve its own dignity by upholding values that our society views as essential, we will not long have a legal system which can pride itself on its commitment to justice and truth and which commands the respect of the community it serves.' "

"... the administration of justice is inevitably brought into question, and public confidence in the courts is necessarily diminished, where the illegal actions of law enforcement agents culminate in the prosecution of an offence which results from their own criminal acts. Public confidence could not be maintained if, in those circumstances, the courts were to allow themselves to be used to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf.

So far as public confidence in the administration of justice is concerned, the position is even worse if ... the law enforcement agents or those acting on their behalf are not brought to account for their criminal acts. In cases of that kind, the courts are brought into greater disrepute because they give the appearance of sanctioning illegality. And that appearance is given even if criticism is made of the police conduct involved. Indeed, criticism may well appear to be mere humbug and, itself, lead to a further erosion of confidence in the courts."

Although McHugh. J.'s views did not accord with those of the majority of the Court and the point of his disagreement was fundamental, it is apparent that his sanction of illegality in the process of law enforcement would be limited and cautious. At p. 91, he said:

"Nevertheless, in their increasingly difficult battle against crime - particularly organised crime - law enforcement authorities cannot be criticised for taking initiatives to apprehend those who make a business of crime or are about to embark on a court of criminal activity (R. v. Kirzner (1977) 38 CCC (2d) 131 at 134-6 cited in Vuckov (1986) 40 SASR at 502-4; Sherman (1958) 356 US at 372). Where there are no 'victims' or there is none who is willing to cooperate with the law enforcement authorities, the taking of steps to apprehend such persons is often a social necessity. The State is entitled to protect itself against likely criminal activity (cf Fisse, Howard's Criminal Law, 5th ed (1990), pp. 580-1). Merely setting a trap for and consequently apprehending and charging a person whose business is criminal activity or who is about to commit a criminal offence does not in my view offend the community's sense of justice. Provided there is some basis for the entrapment and the means used have not induced the person to commit an offence that that person would not otherwise have committed, the public interest does not require the condemnation of methods of entrapment that result in the apprehension of those who make a business of crime or are about to embark on a course of criminal activity."

"If the courts of justice are to prevent the entrapment of offenders becoming abuses of their processes, the courts need to impose stringent conditions on the use of entrapment techniques. In a society predicated on respect for the dignity and the rights of individuals, nobles end cannot justify ignoble means (cf Mack (1988) 44 CCC (3d) at 539). Governments are the agents of the people. Since the enactment of the Australia Act 1986 (UK), the powers of government in this country are derived from the people who are the ultimate sovereign (Australian Capital Television Pty Ltd v. Commonwealth [1992] HCA 45; (1992) 177 CLR 106, at 138; [1992] HCA 45; 108 ALR 577). No government in a democratic state has an unlimited right to test the virtue of its citizens (Mack (1988) 44 CCC (3d) at 541). Testing the integrity of citizens can quickly become a tool of political oppression and an instrument for creating a police state mentality (United States v. Jannotti [1982] USCA3 107; (1982) 673 F 2d 578 at 612-13, cited in Gershman "Abscam, the Judiciary, and the Ethics of Entrapment" (1982) 91 Yale Law Journal 1565 at 1585). Moreover, when the authorities use entrapment techniques that induce a person to commit an offence, they increase the incidence of crime. That being so, the use of an entrapment technique can only be justified when there is reasonable suspicion that the person so induced would have committed that offence or some similar offence, or the technique has been used in the course of a bona fide investigation of criminal or suspected criminal activity and has ensnared the accused. Furthermore, if crime is not to be artificially increased by entrapment techniques, the nature of the inducement cannot go beyond what is likely to be replicated in carrying out the criminal activity in question (Heydon, "The Problems of Entrapment" (1973) Cambridge Law Journal 268 at 283; Seidman, "The Supreme Court, Entrapment, and Our Criminal Justice Dilemma: (1981) Supreme Court Review 111 at 142). The State can justify the use of entrapment techniques to induce the commission of an offence only when the inducement is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity. That may mean that some degree of deception, importunity and even threats on the part of the authorities may be acceptable (See Heydon, op. cit. at 282-3 and cf the facts in the Abscam entrapments in Myers [1982] USCA2 1025; (1982) 692 F 2d 823). But once the State goes beyond the ordinary, it is likely to increase the incidence of crime by artificial means. The courts of justice cannot countenance the use of their processes to prosecute offences that in substance have been artificially created by the misconduct of those whose duty is to uphold the law."

Substantial miscarriage of justice (the proviso to sub-s. 668E(1) of the Code)

Legal error in the course of a criminal trial might not cause justice to miscarry, and it is open to an appeal court to be satisfied that, despite such error, there is no significant possibility that an innocent person has been convicted (cp. Domican at pp. 565-566 per Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ.); this is merely to acknowledge that justice is concerned with matters of substance, not technicality; even so, it is obviously essential to avoid the logical error of looking to see whether the jury might have convicted if the error had not been made (cp. Domican at pp. 470-571, per Brennan J.). The question whether there is a significant possibility that an innocent person has been convicted asks whether the error might have affected the verdict, and must be answered in the affirmative unless the jury, acting rationally, must have convicted irrespective of the error.

Usually, the possibility that an innocent person has been convicted will be a necessary consequence of an unfair trial, at least provided that the issue whether the jury's's verdict was inevitable is considered without reference to the advantage secured by the prosecution by the unfairness; e.g., evidence of confessional statements which should not have been received. Even when the appeal court adopts that course, the objection might be open that the jury might nonetheless have been influenced by the evidence which should have been rejected.

Such considerations aside, in the absence of a constitutional right not to be convicted and tried unfairly, the relationship between an unfair trial and a substantial miscarriage of justice falls to be determined by a construction of the proviso to sub-s. 668E(1) of the Code. Even so, in the absence of any specific indication of legislative intent, there is a policy choice involved; on the one hand, primary importance might be attached to a convicted person's guilt rather than the flawed process by which guilt was established; the other view is focussed on the fundamental importance of fair trial and the integrity of the criminal justice system.

A construction of the proviso which requires an appeal to be allowed if the convicted person's trial was unfair seems to me not only correct in principle but supported by practical considerations; the alternative, acceptance that an appeal should be dismissed if the convicted person was plainly guilty even if his or her trial was unfair, devalues - and in individual cases extinguishes - a right to a fair trial, and tends to influence discretionary decisions at trial adversely to the accused. For example, the proposition that all admissible evidence should be placed before the jury is always extremely attractive in the trial context, and made more so if there is no prospect of a successful appeal from a guilty verdict if guilt is manifest to a court of appeal. Such an approach, case by case, would erode the rule of law.

However, although such a view has some support on the High Court, the majority opinion from Wilde to Glennon (179 C.L.R.) is to the contrary: according to that opinion, an appeal against conviction should be dismissed unless there is a real possibility that the convicted person lost a fair chance of acquittal through error at the trial or the trial was so unfair "as hardly to be a trial at all"; there has been "such a departure from the essential requirements of the law that it goes to the root of the proceedings".

If an unfair trial is not necessarily a miscarriage of justice, as seems to be the position, the issue arises whether the question whether there is a significant possibility that an innocent person has been convicted can move from the question whether the jury must have convicted but for the unfairness to the simple question whether it is manifest to the appellate court that the convicted person is guilty; i.e., if the unfairness was an erroneous admission of evidence which is probative of guilt, e.g., reliable evidence of incriminating statements which it was unfair to the accused to receive, can that evidence nonetheless be used to dismiss an appeal against conviction?

On my understanding, that position which - it seems to me - would make a mockery of the right to a fair trial, has not been reached; it is not necessary for a convicted person to show that he or she ought not to have been convicted (cp. R. v. Hildebrandt (1963) 81 W.N. (Pt. 1) (N.S.W.) 143, at p. 148), but to show that, by error or other unfairness, he or she lost a fair chance of acquittal or that, in reality, there was no trial.

This is not a case in which the behaviour of the police who procured Lally to engage the appellant in conversation in order to obtain and record inculpatory admissions should be condemned as improper. I do not consider it necessarily improper to use deception in law enforcement activities to detect, investigate or prevent crime. Nor will evidence obtained in the course of, or through, such activities necessarily be excluded. However, that is not the issue. Lally's conduct, at police instigation, entrenched on the appellant's privilege against self-incrimination, which was a basic personal right and it did so for that express purpose. The appellant was deliberately tricked into surrendering her right to silence at the instance of law enforcement personnel by an implicit misrepresentation that Lally sought her confidence as a friend, not a police agent. That being so, in my opinion, it was unfair to the appellant to receive evidence of her recorded statements to Lally at the appellant's trial.

The other evidence against her is not so strong that she must have been convicted in any event, and must be convicted if she is re-tried; hence, the appeal should be allowed and the conviction set aside. However, there is sufficient other evidence against her, including her earlier admissions to Lally, to justify a re-trial.

The appeal should be allowed, the conviction set aside, and a new trial ordered.

I have read the reasons of the President and those of Dowsett J; the former are principally concerned with the question whether the evidence of a recorded conversation between the witness Ms Lally and the appellant should have been admitted. On that point my conclusion is the same as that of Dowsett J, but my reasons differ from those given by his Honour and are set out below.

Subject to what is written below, I agree with the reasons of Dowsett J on the question of conviction and agree that the appeal should be dismissed.

The conduct of the police in arranging to have the witness Lally engage the appellant in conversation with a view to obtaining admissions of guilt is complained of. The President has concluded that such conduct was not improper; I respectfully agree, but I do not agree with the conclusion that there was unfairness.

It is I hope not disrespectful to suggest that not all the High Court cases dealing with the exercise of the discretion to admit illegally or improperly obtained evidence are easily reconcilable, but the important point in the present case appears not to be that, but rather whether what the police did here was in any legal sense objectionable; I think it was not. I agree, as I have said, that it was not improper and note that in Ridgeway the principal judgment appears to favour the test of impropriety rather than what seems to be the vaguer test of unfairness: [1995] HCA 66; (1995) 69 A.L.J.R. 484 at 493.

Confessional evidence used be regarded with considerable suspicion, as being a type of evidence the obtaining of which is particularly prone to abuse. In Queensland, improper pressure or fraud on the part of the police in obtaining alleged confessions seems, so far as one can tell sitting as an appellate judge, to be very uncommon. Whereas, once, allegations of that sort made by the defence were routine, now they are rare, a reason no doubt being the introduction of the practice of electronically recording confessions. Nevertheless, the courts must in my view be vigilant in guarding the system against oppressive conduct and particularly against the possibility that suspects may be "worn down" or subtly intimidated by police questioning.

When considering questions of the present kind, it is important not to overlook that the community relies on the police to solve the problem of identifying offenders; sometimes, even in relation to extremely serious offences, the police are of course quite unable to do this. One of the methods they use in their task is to talk to people who may know something about the matter; some such people may, whether or not they were themselves involved in the offence being investigated, be uninterested in co-operating. Particularly in the case of major offences, one could hardly object to the use of trickery of the kind which occurred here, at least in an attempt to identify the offender, as opposed to the purpose of assembling evidence against him for prosecution purposes. Such trickery may be useful, not only in order that the offender may be brought to justice, but just as importantly to save what might otherwise have been future victims of his criminal conduct; the serial murderer is the prime example.

Yet if, by trickery and deception, discussion arranged by police identifies someone who appears to them to be the offender, it is suggested that quite different rules should apply, designed to discourage the apparent offender from saying anything further.

It is not clear to me what is the policy behind this notion: that once the police have evidence which seems to have some weight that an offence has been committed by a particular person, those methods which were unobjectionable in reaching that stage necessarily become objectionable in any further questioning. The supposed transition seems particularly odd where evidence of commission of a serious offence has been obtained by a police officer acting as an undercover agent - a method in which trickery and deception are of the essence. If, having obtained such evidence in a chance, unrecorded, conversation the officer (as was done with Ms Lally here) so arranges matters that an incriminating conversation is then recorded, how are the interests of justice hurt? What was perhaps unreliable evidence, of the undercover officer's recollection, becomes reliable, tape-recorded evidence. Similar considerations apply to that notoriously suspect class of evidence, alleged admissions to fellow inmates of a prison. If an inmate claims to have been the recipient of an incriminating confidence in the prison yard, there are obvious risks in proceeding to prosecution on a case based in any significant part on that. The possibility of conviction of an innocent person, on false evidence, is reduced if the police take the sensible course of inviting their informant to attempt to renew the discussion with the supposed offender in circumstances where the conversation can be recorded.

Yet if evidence such as the recorded conversation with Ms Lally is held not to be admissible, then for the police to take the course just mentioned, in the case of a prison yard conversation, would be pointless; the recorded conversation would be inadmissible. The reason is said to be that there has been conduct which infringes the right not to accuse oneself.

The three principal categories of prosecution evidence are, in general, direct accounts of the commission of the offence, confessional evidence, and evidence of a circumstantial kind - such as the presence of the accused's fingerprints in a place where one would not have expected, were he innocent, to find them. The tendency of malefactors to commit their offences secretly or in a concealed way produces the result that often only the second and third types of evidence are available: i.e. confessional and circumstantial evidence. The law's disinclination to be persuaded by circumstantial evidence is marked by the rule that only if such evidence excludes all reasonable hypotheses consistent with innocence may a conviction be based on it. The result is that the presence or absence of confessional evidence is often critical, where there is reason to question whether the Crown can satisfactorily prove its case. Recorded confessional evidence is generally a sounder basis of conviction than inferences, perhaps of a rather speculative kind, which are likely to be drawn from suspicious circumstances.

Compared with the other varieties of evidence likely to be available in seriously contested cases, recorded confessional evidence appears to be generally of a high degree of reliability; allegations of such possible malpractices as tampering with the recording or of inducing the confession by unrecorded threats are very unusual. In these circumstances I would not be prepared to hold, absent a statement by the High Court to that effect, that police conduct of the kind attacked here is unfair. In my opinion what the police did in relation to Ms Lally was fair and proper.

I agree with the reasons of Dowsett J on this question, with one reservation: it appears to be necessary to emphasise that this Court has a discretion, even if the ordinary conditions for admission of fresh evidence are not met, to admit such evidence to avoid a miscarriage of justice.

I have read the reasons of Dowsett J dealing with the application for leave to appeal against sentence. In Byers (C.A. No. 430 of 1994, 28 February 1995, unreported) this Court had to consider a rather similar case in which precisely the same sentence was ordered. Reference was made to the decision in Hewitt (C.A. No. 405 of 1993, 3 December 1993) as suggesting a "range of between 12 and 18 years imprisonment for offences of this type and seriousness". In the principal judgment in Byers it was said that "the head sentence may...be thought to lie at the lower end of an appropriate range". As to the recommendation for early parole - 3 years - the Court in Byers formed the opinion that it was too lenient and deleted it.

It is not clear to me why, in the present case, a recommendation for parole after 3 years was made. In my opinion, taking that recommendation into account, the sentence was a lenient one and the application for leave to appeal against it has no substance; it must be refused.

This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was convicted on one count of attempted murder and sentenced to 12 years' imprisonment with a recommendation for parole after 3 years. The Crown alleged that the appellant, a nurse, attempted to murder her husband on 19 August, 1993 by injecting him with a potentially lethal dose of insulin whilst he was sleeping. The appellant denied having so injected him and gave evidence to that effect. The complainant, an army officer, said that their marriage had declined after he returned from service in Somalia, culminating in his finding the appellant in bed with another man in July, 1993. Although they continued to live together thereafter, the complainant thought that only he was trying to save the marriage. There was one child of the marriage. Another child of the appellant from an earlier marriage also lived with them.

The relevant events allegedly occurred during the evening of 18 August and the early morning of 19 August, 1993. I set out the complainant's version. He had been warned that early on the morning of 19 August, his unit was to travel to Shoalwater Bay for deployment in an exercise. On the evening of 18 August, the complainant and the appellant went to a Chinese restaurant where they ate the same dishes. They returned home, consumed a pudding which had been previously prepared by the appellant and retired about midnight.

Some time thereafter, the complainant awoke, feeling nauseous and with throbbing in his ears. He could hear his wife speaking to him but, "... it sounded like she was a long way off.". He felt giddy and had sweaty palms. He recalled his wife asking if he was all right and suggesting that she get an ambulance. He told her not to do so. He went to the kitchen and consumed substantial quantities of orange juice, water and biscuits. He went back to bed and was awoken by the alarm at 3.30 a.m.. He reported to his unit at about 4.30 a.m. and continued to consume substantial amounts of food and liquids as they were available during the day. This evidence was supported by army colleagues who saw him at the time. They agreed that he appeared quite unwell. He also gave evidence that at a later stage, he found syringes at his home. He had not previously seen them in the house, nor was he aware of any purpose for which they might have been used there. The appellant said in evidence that she used them for removing splinters.

Dr Prins, an endocrinologist gave evidence concerning the effect of insulin on the body. That effect varies with dosage, with body size, age and medical condition. The syringes found in the house were suitable for the administration of insulin. Insulin decreases the glucose level in the blood. Low glucose levels may cause perceptions of hunger, acceleration of the heart beat, perspiration, an appearance of pallor and a decreased state of consciousness. The condition is known as hypoglycaemia. Consumption of food, particularly sugar, counteracts its effects. This condition does not cause thirst, but the consumption of food may do so. Some liquids contain nourishment and may satisfy hunger.

A sufficiently large dose of insulin can cause death by depriving cells of energy as a result of insufficient sugar in the blood. Dr Prins considered that injection of 300 units (the relevance of which will appear later) may be sufficient to produce death, although there are documented cases of greater quantities not doing so. Dr Lavercombe (called by the defence) considered that such a dose would probably be fatal. A diabetic person is more likely to be affected by a large dose of insulin than is a non-diabetic. The complainant is not diabetic. The body eliminates insulin from the blood. A sample was taken from the complainant on 31 August, but it showed no evidence of the presence of insulin.

The type of insulin to which the appellant had access in her capacity as a nurse would commence to show effects within one hour of administration, with peak effect after about four hours. Dr Prins expected that a 300 unit injection would continue to have some effects for up to 24 to 48 hours. Frequent urination, which the complainant also reported, can be typical of hypoglycaemia, although it is also consistent with hyperglycaemia, which is a condition involving abnormally high blood sugar levels.

Of considerable importance to the Crown case was the evidence of Lynne Monica Lally. She was a nurse working at the Royal Brisbane Hospital, where the appellant was also employed. The appellant had told her that she intended to leave her husband and had suggested that he was violent. She had also admitted having an affair with another man. This information had been communicated in more than one conversation, the first of which was in June, 1993. On 23 August, 1993 Lally received a message from the appellant that the latter wished to speak to her. By arrangement, Lally called at her home.

The witness said that in the course of conversation, the appellant told her that she had tried to kill her husband but had not succeeded. Lally responded by suggesting that she was "kidding", to which the appellant responded, "I injected him with 300 units of insulin." The appellant was crying at this time. She said that she had discussed the use of insulin with Dr Wenck, a doctor at the hospital. The appellant said that she understood from that discussion that such an injection would not be traceable if injected above the hairline. She said that she had injected her husband whilst he was asleep. She also mentioned the possible use of chrysanthemum stamens as a poison. She said that she had dissected such a flower but had not been able to find the stamen. She also said that if she found out how to do so, she would, "get a contract out on him", presumably meaning that she would pay somebody to kill her husband. She said that she was afraid he would have her declared an unfit mother and that she would lose her children.

The appellant told Lally that after the injection, she lay waiting for her husband to stop breathing, but he did not do so. He awoke, went to the kitchen and consumed orange juice and biscuits. He appeared pale and sweaty, was shaking and had a rapid heart rate. She said that she offered to call an ambulance, but that he told her not to do so.

Subsequently, at the request of the police, Lally had a further conversation with the appellant, which was tape-recorded. Two recordings were made, one by use of a microphone transmitting to a remote tape recorder and the second, on a small, portable tape recorder carried in the witness's handbag. The appellant's primary submission is that the use of that conversation in the Crown case was "unfair" as Lally was essentially an unidentified police agent and at the time, the police already had sufficient evidence to justify their charging the appellant. It is submitted that the police could not themselves have interviewed the appellant without warning her and that they should not have done so indirectly by using Lally as an agent.

The appellant also submits that the recordings and oral evidence of the conversation between Lally and herself should not have been admitted as evidence because of the poor quality of the tapes. It is argued that the unintelligible parts of the recordings may have included statements demonstrating that the appellant was not guilty of the offence, and that therefore the jury could not reasonably have been satisfied to the requisite standard by the tapes. Having listened to the tapes without the enhancement facilities made available at the trial, I have been unable to discern any incriminating material. However, the parties agree that some of the material has that character. A transcript of one of the tapes was prepared by the State Reporting Bureau during the trial. It certainly contains incriminating material. A number of other grounds of appeal were argued with varying degrees of forcefulness.

At the trial, defence counsel did not seek to exclude evidence of the conversation upon the basis of unfairness. Although a convicted person will not always be bound by the way in which counsel conducted the trial (see R. v. Lane [1965] QWN 33), nonetheless, as appears from that case, an appellate court will be reluctant to intervene unless it appears that justice has not been done. We do not encourage the ventilation of discretionary questions on appeal rather than at trial. In any event, I am satisfied that the submission has no merit.

The argument depends upon two general propositions, both of which are beyond doubt. The first is that a trial Judge has a discretion to exclude a confessional statement where its receipt would cause unfairness to the accused in the trial. The second proposition is that a trial Judge may exclude a confession obtained by police without giving the conventional caution pursuant to the Judges' Rules. The submission also assumes that a lay witness, acting at the instigation of the police, should give the caution. In support of this latter assertion, the appellant makes a number of submissions which are superficially attractive from a social point of view. They include:-

(a) that the appellant may not have confessed had the "trick" not been used;

(b) that such a confession is potentially unreliable because of the circumstances in which it was obtained;

(c) that the police conduct had the effect of compelling the appellant to testify at the trial to rebut Lally's evidence;

(d) that the process violated contemporary notions of fairness and made mockery of a system of justice which prides itself on the presumption of innocence and trial fairness;

(e) that the "trickery" denied the suspect's right of silence, and that to condone this course would encourage investigators to rely on undercover agents to solicit confessions by deception;

(f) that the course followed induced the appellant to think that what was in fact an interrogation was a confidential conversation with a friend;

(g) that there was no rational and informed surrender of the right of silence.

The caution has been part of the criminal investigation process for a very long time. It is undoubtedly designed to reflect society's rejection of coercion as a tool of investigation. It is an essential part of the right to silence. The form in which the caution is commonly expressed evidences this function. The operative words are usually:-

"You are not obliged to say anything, but anything you say may be given in evidence."

The purpose of the caution is to inform the suspect of his/her right to silence. Why, in our society, might a suspect feel obliged to answer questions if to do so may incriminate him/her? The most likely answer is that offered by the Court of Appeal in England in a number of recent cases to which we were referred in the course of argument. In R v. Christou [1992] 1 QB 979 at p.991, the Lord Chief Justice said of the so-called "Code C", which provides for the customary caution:-

"In our view, although the Code extends beyond the treatment of those in detention, what is clear is that it was intended to protect suspects who are vulnerable to abuse or pressure from police officers or who may believe themselves to be so. Frequently, the suspect will be a detainee. But the Code will also apply where a suspect, not in detention, is being questioned about an offence by a police officer acting as a police officer for the purpose of obtaining evidence. In that situation, the officer and the suspect are not on equal terms. The officer is perceived to be in a position of authority; the suspect may be intimidated or undermined."

In R v. Bryce [1992] 4 All ER 567, the Lord Chief Justice reaffirmed that position. In R v. Okafor [1994] 3 All ER 741 at p. 746, the Lord Chief Justice said:-

"Here, the customs officers - and it should be mentioned that the Code applies to customs officers as it does to police officers - were acting as customs officers: they were in uniform; they were stopping people as they came through the channel and indeed this very conversation, which is the disputed conversation, was being conducted whilst the customs officers were conducting a body search of the appellant. Accordingly, the conversation was not on equal terms. This was a situation in which clearly a suspect, or at any rate a member of the public so far as the appellant knew himself to be, was being searched and questioned by persons manifestly in authority and exercising control over immigration and customs. Accordingly, we reject the suggestion that the Code was inapplicable in the present case by way of analogy with what was said in R v. Christou."

Once the true purpose of the caution is identified, the appellant's argument collapses. It cannot be said that because Lally was acting covertly on behalf of the police, there was inequality in the relationship between her and the appellant which might suggest to the appellant that she was under an obligation to speak. No question of involuntariness or unfairness arose from the fact that the appellant was not warned. The police are not obliged to be absolutely frank in investigating crime. Indeed, the law providing for the use of listening devices is statutory authority to the contrary. Although we might all prefer that friendship not be exploited for ulterior purposes, the public interest in detecting and punishing crime outweighs social nicety. This ground of appeal is without substance.

I should say something about a number of cases referred to in argument. The first is the decision of the High Court in Duke v. The Queen [1989] HCA 1; (1988) 63 ALJR 139. Brennan and Toohey JJ both considered that unfairness in the method of obtaining a confession would enliven a discretion to exclude it in the absence of any reason to doubt its reliability. Wilson and Dawson JJ (who, with Brennan J, constituted the majority) did not deal with the question. Deane J. would have disposed of the matter upon the basis that statements taken from people in custody should generally be treated as suspect and excluded if not corroborated, a view subsequently adopted by the majority of the court in McKinney v. The Queen [1991] HCA 6; (1990) 171 CLR 468.

In R. v. Musica (1991) 55 SASR 274, the Court of Criminal Appeal of South Australia considered a statement made by a suspect to a friend while detained at a police station. Although the court upheld the admissibility of the statement, their Honours suggested that had the police used trickery to induce the suspect to make admissions to his friend, the outcome may have been different.

In R v. Pfennig (No. 1) (1992) 57 SASR 507, Cox J excluded admissions made to another prisoner who had been prompted by the police to seek admissions from him. The basis for exclusion was that the accused had made it clear in the presence of his solicitor that he did not wish to answer questions. The process was therefore an indirect way to do what the police could not otherwise have done, namely interrogate the suspect in the absence of his solicitor.

Finally, we were referred to the decision of White J at first instance in R. v. Davidson and Moyle. Her Honour there excluded a statement made to another person while in custody, the latter acting at the instigation of the police.

These cases all involved statements while in custody. It may well be inappropriate for the police to exploit the vulnerability of a person in that position. It may also be inappropriate, where a suspect is at large and has indicated that he does not wish to answer questions, to try to undermine his stated intention to exercise his right to silence, especially if he has, to the knowledge of the police, consulted a lawyer. These elements were not present in the instant case. In my view,use of subterfuge is not itself a basis for exclusion of evidence thereby obtained.

As to the second basis for exclusion of evidence of the conversation with Lally, it is said that because the tape recordings are substantially indecipherable, not only ought the tapes be excluded, but also oral evidence from Lally should be excluded. Counsel for the appellant seeks comfort in the decision of de Jersey J at first instance in R. v. F.J. Carter where, as it was said, his Honour ruled that(quoting from counsel's submissions):-

"... due to the quality of the tape he would not allow it to be led in front of the jury nor would he allow the prosecution to have the prison witness give details of his memory of what occurred during the conversation."

Reliance is also placed upon the decision of the Court of Criminal Appeal in R v. Bercolli and Ioannou (CA No 22 and 23 of 1990) where the court quashed a conviction, "because of the unfavourable view of the tapes and the fact that they were critical to the Crown's case ...",(quoting again from submissions).

This submission is linked to a criticism made of the conduct of the defence case, which is the subject of another ground of appeal. Lally had listened to the tapes immediately after the conversation and had then vouched for their accuracy. Subsequently, and over some months, she participated in the production of a transcript. One tape was played to the jury during her evidence, and she tried to fill in the more obscure parts from her memory and by reference to the transcript. The other tape was played to the jury using enhancing facilities at Police Headquarters. It was this tape which was transcribed in the course of the trial.

A tape recording of a conversation is admissible in evidence to prove that conversation. See Butera v. Director of Public Prosecutions (Victoria) [1987] HCA 58; (1987) 164 CLR 180 at p.184 where the majority (Mason CJ, Brennan and Deane JJ) said:-

"Of course, a conversation can be proved by the oral testimony of anyone who heard it but that is not the only means by which a conversation might be proved. The Courts have now accepted tape recordings as evidence of the conversations or other sounds recorded on the tape. ..."

Proof of a conversation by recording does not exclude proof by oral evidence from somebody who heard the conversation, although further evidence will usually only be necessary where it is alleged that the recording has been falsified or its contents are unclear.

A witness to a conversation may refresh memory by reference to a written record made at the time of, or shortly after the conversation, whether the record was made by the witness or by another person and verified by the witness at such a time. At least since 1962, it has been recognised that a tape recording may be similarly used to refresh memory. See for example R. v. Mills & Rose (1962) 46 Cr App R 336 at p.342 and R. v. Maqsud Ali (1966) 1 QB 688, especially at pp.669, et seq. It was permissible for Lally to refresh her memory by referring to the tapes and transcript.

Initially, no challenge was made at the trial to her giving evidence by reference to these sources, but at a later stage, defence counsel sought to resile from that position, asserting that he had misunderstood the purpose for which the Crown proposed to use Lally's evidence. It is difficult to know exactly what he meant by this. Lally was, after all, a party to the conversation. She was recounting the conversation to the best of her recollection. It would be quite artificial to suggest that she was doing otherwise. The tape was a contemporaneous record of the conversation and no doubt, it prompted her memory. No doubt, too, she used her memory to decipher the more obscure parts of the tape. The transcript would also have assisted. Whether she was giving evidence with the assistance of the tape or assisting the jury to understand it, the outcome was the same. The jury had the benefit of the tapes and her recollection of the conversation, prompted by reference to one of the tapes and the transcript. The course adopted was the best available in the circumstances and did not, in my view, offend any rule of evidence or procedure.

Theoretically, defence counsel may have been entitled to test Lally's recollection before she used the transcript and tape to refresh memory, and it may be that he gave up this right because of some mistake on his part. Nonetheless, I see nothing in this case to suggest that the appellant suffered as a result. Returning to the narrower question of the quality of the tapes, neither Carter nor Bercolli compels their exclusion in this case because of their quality. In Carter, the tape was excluded partly because of its quality, but also because its relevance depended upon whether certain statements by others had been adopted by the accused. His Honour considered that the evidence was equivocal in this respect. This explains the otherwise quite remarkable fact that oral evidence of the content of the conversation was also excluded. The witness had refreshed his memory from the tape, and it seems that his Honour's decision took account of the cumulative effect of its unsatisfactory quality and the equivocal nature of the alleged adoption of the statements by the accused.

As to R v. Bercolli and Ioannou, the case did not concern admissibility. The alleged offence was attempting to procure another to murder. The particularised overt act was a conversation with an undercover police officer whom, as it was alleged, the accused attempted to procure to kill another person. The principal Crown evidence was a tape recording of that conversation. It would appear from the reasons of McPherson J in the Court of Criminal Appeal that no attempt was made to supplement the tape recording of that conversation with evidence from the undercover police officer or anybody else. The peculiar relevance of the defective quality of the tape was that the conversation was itself an element of the offence. The conviction was quashed because the tape was not sufficiently clear to satisfy the onus upon the Crown to prove that the conversation was an attempt to procure.

In the present case, the conversation was evidence of the offence, not an element of it. It was not necessary that its terms be proven with precision. No doubt, the significance of an admission made in a conversation may be affected by other parts of that conversation. For example, in the present case, a statement by the appellant that she had tried to murder her husband would lose its inculpatory effect if other parts of the conversation demonstrated that she was joking or speaking in a figurative sense. However, oral evidence of such a conversation also involves that possibility.

The quality of the recordings did not compel their rejection nor the rejection of oral evidence of the conversation. The parties agree that there are incriminating statements discernible on the tapes, and in those circumstances, it is impossible to criticise his Honour's decision to receive them in evidence.

A number of attacks are made upon the trial Judge's charge to the jury. Firstly, it is said that his Honour wrongly directed the jury as to what is an attempt for the purposes of s.306 of the Code. This argument is based upon the decision of the Court of Criminal Appeal in R.v. Leavitt [1985] 1 Qd R 343. In that case, the accused was charged with an offence pursuant to s.317 of the Code, that, "With intent to resist his lawful arrest, (he) unlawfully attempt(ed) to strike a person with a projectile, namely a bullet". It was held that s.4 of the Code (which defines "attempt") did not apply for the purposes of s.317.

"When a person, intending to commit an offence begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence."

The court considered that the definition could not be applied to s.317, which section is not concerned with an attempt to commit an offence, but with an attempt to bring about a physical result, which attempt is constituted as an offence. However, that problem does not arise in the case of attempted murder, which offence is defined in s.306 in this way:-

"Any person who ... attempts unlawfully to kill another ... is guilty of a crime ..."

As it is an offence to kill another unlawfully, the offence contemplated by s.306 involves an attempt to commit another offence. In any event, there would be no difference in outcome in this case whether one used the dictionary definition of the word "attempt" or that propounded in s.4. In either case, the question for the jury was whether or not, at the time of administering the insulin, the appellant intended that such administration cause the death of the complainant. This was made clear to the jury by the learned trial Judge at pp.391 to 394 of the record. Whilst the directions on this point may have been more complex than they need have been, the jury was left in no doubt as to the relevant question. Technically, s.4 required the Crown to satisfy the jury that the means used were, "adapted to (the) fulfilment", of the intention to kill. This issue was formally left to the jury but was not disputed at the trial. Indeed, it was the defence case that an injection of 300 units would almost certainly be fatal. There is no merit in this criticism of the charge.

The second attack upon the charge concerns the alleged conversations between Lally and the appellant. It is submitted for the appellant that evidence of the two conversations was the most important part of the case, and that unless the substance of one or other of them was proven beyond reasonable doubt, a verdict of acquittal was inevitable. It is submitted that there should have been a special direction to that effect, particularly having regard to alleged inconsistencies in the evidence. Counsel relies upon the decisions in R. v. Diminguez (1986) 63 ALR 181 and R. v. Macarthy (1980) 70 Cr App R 270 as supporting these propositions. In my view, they do not do so. Further, the argument overlooks the decision of the High Court in Shepherd v. The Queen [1990] HCA 56; (1990) 170 CLR 573.

Macarthy (supra) is authority for the proposition that a judge must tell a jury to consider the truth of an admitted confession. Diminguez (supra) addressed the problems posed by cases which are largely circumstantial, which problems were considered by the High Court in R v. Chamberlain (No. 2) [1984] HCA 7; (1984) 153 CLR 521 and in Shepherd (supra). In such cases, there may be a fact (other than the ultimate question of guilt) which must be proven beyond all reasonable doubt in order to justify that final inference. This was not such a case. There was a substantial body of evidence against the appellant, including evidence of motive, evidence of opportunity (access to the complainant and access to insulin), evidence of the sudden and otherwise unexplained symptoms suffered by the complainant and evidence of the syringes later found in the house. There was also the confessional evidence. The jury was not called upon to consider any aspect of the evidence in isolation.

The jury had to assess Lally's evidence as to the confessional material and in particular, as to her interpretation of the tape recordings, and consider that evidence in the light of the other evidence, including the appellant's evidence and their own interpretation of the tapes. Questions about:-

(c) the truthfulness of any confessional material; and

It would not have been appropriate to direct the jury that they had to be satisfied beyond all reasonable doubt that Lally's account of one or other conversation was substantially true before they could convict. As was observed by Dawson J in Shepherd (supra) at p.585:-

"Of course, it is recognized in Chamberlain, that if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible when a conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful."

I find no substance in this criticism of the charge.

The next criticism of the charge is that the learned trial Judge did not give a direction as to the need for corroboration of Lally's evidence. Counsel submits that such a direction was required because of the position of Lally as a so-called police agent. After some prompting, he conceded that he was relying by analogy upon Carr v. The Queen [1988] HCA 47; (1988) 165 CLR 314 and McKinney v. The Queen [1991] HCA 6; (1980) 171 CLR 468. The latter case establishes the need for corroboration of a confession taken by police from a suspect in custody where there is no electronic record of the interview. Lally was not a police officer, and by no stretch of the imagination can it be suggested that she was in an analogous position; the appellant was not at a police station at the time at which the confessions were allegedly made; and there was an electronic record of the conversation. His Honour's directions stressed the need to examine carefully the tape recordings and Lally's evidence. To have used the language associated with corroboration in the context of this case would have unduly complicated the charge and produced no identifiable benefit.

The next criticism of the charge concerns a re-direction given as to the drawing of inferences. The jury sought further directions in this form:-

"... please define all reasonable doubt in the context of evidence given and the inferences made as opposed to no doubt."

The question certainly suggests some confusion, but this was not a case in which the process of drawing inferences posed substantial problems. The only inference of importance was the ultimate question of guilt. The learned trial Judge had initially directed the jury as to the drawing of inferences. No criticism was made of that direction. In answer to the request for further directions, his Honour said:-

"Now, as I said to you, you can draw inferences from facts concerning which you are satisfied and before you act on an inference to found a conclusion of guilt, you have to eliminate innocent inferences. In other words, if you think that there are competing inferences to be drawn from facts as you find them, you have to eliminate inferences consistent with innocence and be left with an inference which satisfies you as to guilt and the standard of proof as to guilt being as I have said, beyond reasonable doubt. So that is the way inferences work in the context of your being satisfied beyond reasonable doubt."

There is nothing incorrect in what was said, although it may not have helped in the context of this case simply because the drawing of inferences was not a substantial problem. The jury question was, "Are you satisfied beyond all reasonable doubt that the accused injected her husband with insulin with the requisite intention?" The re-direction certainly focused attention on the question of guilt and made it clear that the question was to be determined upon the appropriate standard. Although the passage may look a little inelegant when taken in isolation from the trial, that is not a basis for criticism. Indeed, counsel for the appellant was unable to demonstrate any real basis for his complaint. I find nothing in Knight v. The Queen [1992] HCA 56; (1992) 175 CLR 495 which assists the appellant in this regard.

It is also submitted that the conviction is unsafe and unsatisfactory in the administration of justice. I have already outlined the major areas of evidence implicating the appellant. With the exception of the tape recordings, that evidence was generally of good quality in the sense that there was little reason to doubt it. The appellant admitted much of Lally's evidence concerning their conversations, saying that the latter had misunderstood parts of them and had placed a sinister and unjustified gloss on what had been said. She also said that she had been intrigued by the questions asked by Lally during the second (taped) conversation, and that this had prompted her to make outlandish responses.

Although Lally's evidence of the conversations was important, the other evidence - of motive, of opportunity, of the symptoms suffered by the complainant and of the syringes - might have been sufficient to justify an inference of guilt against the appellant without Lally's evidence. Those matters, taken in conjunction with the parts of the conversations which the appellant conceded, were certainly sufficient.

The appellant raises certain specific matters as affecting the safety of the conviction. Firstly, it is submitted that some of what the appellant allegedly told Lally was untrue or inconsistent with other statements by her. She allegedly said on one occasion that she kept the insulin in her handbag and on another, that she kept it in the refrigerator. There were also conflicting statements about whether the complainant was asleep when she injected him. I see no reason to doubt the verdict merely because the appellant may have given different accounts at different times, although these matters may have affected the jury's assessment of Lally's evidence and of the reliability of the confessions.

It is also submitted that the verdict involved a rejection of the evidence of Dr Lavercombe who testified as to the probably fatal effect of an injection of 300 units of insulin. As I have previously observed, Dr Prins was rather less certain of this outcome, saying that whilst smaller dosages have caused death, larger ones have not. There was also some suggestion that failure to refrigerate the insulin would have caused it to deteriorate in quality and potency. Dr Lavercombe said as much at pp.288-9. This might explain the complainant's survival. There was, in any event, no reason why the jury should have preferred Dr Lavercombe's evidence to that of Dr Prins.

I feel no residual doubts about the safety of this verdict. In so saying, I have taken account of the various grounds of criticism mentioned elsewhere in this judgment.

Numerous criticisms are made of defence counsel's conduct of the trial. I have already outlined my approach to such criticisms. It is submitted that he did not seek to have the evidence of the conversation of 30 August excluded. I see no reason why he should have done so. For reasons which I have already canvassed, such an application was doomed to failure. It is submitted that counsel should have objected to Lally being led in her evidence-in-chief. Whether or not to object to leading questions is a matter of judgment. The appellant did not dispute some aspects of Lally's account of the conversations. Lally also had the benefit of the transcript. It may have been a little unrealistic to object to leading. I see no justification in this criticism, nor did the appellant suffer as a result of what occurred. I have already said that the course adopted in taking Lally's evidence was appropriate and permissible.

It is submitted that the quality of the evidence from Lally was, "... effectively flawed and of little weight due to the Crown Prosecutor's leading questions ...". In some circumstances, leading questions will have the effect of undermining the value of the witness's evidence, and this will be so whether or not there is any objection. It is simply a matter of commonsense that if a witness is told what to say, then the response may lack the appropriate spontaneity which is a hallmark of credible evidence. However, given the resources available to Lally in giving her evidence, it is artificial to suggest that leading questions undermined her reliability. I should add that she was not led concerning the first conversation, which was not recorded.

It is said that counsel misunderstood the use to be made of Lally's evidence. I have already dealt with this matter in passing. Defence counsel thought the Crown proposed to prove the second conversation by the tape recordings and that anything from Lally was to be merely interpretative of them. Apparently, it was hoped that the jury might simply refuse to act upon the tape recordings because of their quality. As I have said, this distinction between the tape recordings and Lally's own evidence is, to me, a distinction without a difference. All that Lally could do was to give her best recollection of what had been said, having regard to the various props to memory which were available to her. This argument is ingenious but has no substance.

It is submitted that counsel inappropriately introduced, "... highly prejudicial evidence relating to a conversation between the appellant and the (complainant) regarding Pamela Jenkins." This is a reference to a relatively recent incident in North Queensland where a nurse was charged with killing patients in a hospital, but acquitted. It was suggested that she had caused the deaths by the administration of various substances. The matter was notorious in Queensland not long before the appellant's trial. In evidence-in-chief, the complainant said that he and the appellant had discussed the matter.

In cross-examination, counsel put to the complainant that he had previously alleged that the appellant had said in that context that she would use insulin, "... if she was going to get rid of someone ...". The subsequent questions indicate that counsel was laying a basis for urging that had the appellant intended to do such a thing, she would hardly have discussed it with the victim in advance. That was a reasonable line of argument. I am satisfied that no injustice was done as a result of counsel's taking this line.

It is said that defence counsel, "inappropriately tendered a full statement of the witness, Lally to prove a minor inconsistency." No doubt, there was the risk that the jury would focus on the statement to the exclusion of other evidence, but counsel did not consider that the risk outweighed the possible benefit of exploiting inconsistencies in Lally's evidence. Again, that was a reasonable approach. I see no reason to suspect that justice has not been done as a result.

A further attack upon the conduct of the defence arose out of an incident which occurred in the cross-examination of the appellant, when the prosecutor handed to her what is described in submissions as a copy of a statement by Kirk Batty, who was the man with whom the appellant was found by the complainant. Earlier in the trial, a police witness, Smith, was asked in evidence-in-chief whether he had interviewed Batty. He said that he had, but that Batty had been uncooperative and was not to be a witness at the trial. In cross-examination, Smith said that he had not personally taken a statement from Batty but had spoken to him while the latter was in America. He was specifically asked, "Was a statement taken from him?" He replied, "There's never been a statement from him to be signed."

This was misleading because another police officer, Rosemary Walker, had spoken to Batty by telephone and prepared a detailed statement which was, however, not signed, although it probably was intended for signature. In her evidence-in-chief, the appellant denied any sexual relationship with Batty prior to July, 1993. In cross-examination, she was shown Batty's draft statement. In it, he asserted that their sexual relationship had commenced in late March or early April, 1993. As a result of reading this, the appellant qualified her previous evidence as to the commencement of the relationship, and it must be said that she did so in a fairly unpersuasive way. In effect she suggested that there were degrees of sexuality and that full sexual intercourse did not occur until July, 1993.

The appellant complains of the failure to disclose the document at an earlier stage and of its use in cross-examination. The complaint as to non-disclosure has two bases. Firstly, it is said that it should have been disclosed as information in the hands of the prosecution which was likely to assist the defence. Secondly, it is suggested that as the appellant was to be shown it in cross-examination, it should have been produced in advance. Batty was not a Crown witness, and there was nothing in his statement of real benefit to the appellant's case. He would have contradicted her evidence concerning the date of commencement of their sexual relationship. One other matter in the statement acquired relevance because Lally said for the first time at trial that the appellant had told her that she had told Batty about the attempt to kill her husband. In the statement, Batty denied being told of the incident. This may arguably have had a remote bearing on the reliability of the confession, but the connection is extremely tenuous. It may also have been argued that it affected Lally's credit, but that argument is even more tenuous and in any event, the appellant would probably have been prevented from leading such evidence by the rule relating to collateral issues.

Possibly, the matter also acquired significance in light of Smith's evidence that Batty had been unco-operative. The jury may have inferred that as Batty was not called in the defence case and had not co-operated with the police, he would not have assisted the appellant on this issue, suggesting that she had confessed to him as well as to Lally. However, this possibility only arose as a result of an aspect of Lally's evidence which was not expected. It does not justify criticism of the Crown for not previously disclosing the statement. Had Batty's statement disclosed anything of arguable advantage to the defence, it should have been disclosed prior to trial. In my view, nothing in Batty's statement was of that character, or at least not until Lally gave her evidence.

The course adopted by the prosecutor in using the statement in cross-examination was entirely consistent with authority. See for example R. v. Yousry (1916) 11 Crim App R 13. The document may have misled the appellant in some respects. It has the look of formality about it, but it is not signed. However, the worst it could have done was to lead her to believe (probably incorrectly) that Batty might yet give evidence, contradicting her evidence as to the date of commencement of their relationship. I can see no basis for criticism of the conduct of the prosecutor in this regard. As to the suggestion that the document should have been provided to the defence before it was used in cross-examination, this is inconsistent with authority. R. v. Duncombe [1838] EngR 468; (1838) 8 C & P 369 establishes that the other side can only ask to see a document shown to a witness in cross-examination if something develops from its being so shown. See also Archbold (1993) Para.8-122. It should have been disclosed, if asked for, after the appellant changed her evidence. In fact, defence counsel had access to the document before re-examination.

Finally, it is submitted that counsel failed to cross-examine on two aspects of Lally's evidence. We are told that in her transcript of the tapes, she suggested that the following exchange occurred:

"Lally: Wouldn't he wake up when you stuck it in his arm?

The transcript which was prepared by the court reporters from one tape, using the enhancement equipment reads:-

"Lally: Did he wake up when you put the needle in his arm?

In her evidence at the trial, Lally also said that in the taped conversation:-

"I asked her where she put the insulin in Mark's body and she turned from the sink and motioned to her left upper arm."

Lally had not previously said anything to this effect. Obviously, it is possible that Lally belatedly recalled this statement. It is apparently not discernible on the tapes, but it may be part of the unintelligible material. It is also possible that it was said in the earlier conversation and wrongly attributed by Lally to the later one. That Lally asked, "Did he wake up when you put the needle in his arm?" suggests that the appellant had at some stage indicated that she administered the injection in that location. I cannot see that cross-examination on this subject would have had any effect other than to provoke the Crown Prosecutor to point out to the jury in his address the point which I have just made.

It is said that counsel should have cross-examined Lally about her evidence that the appellant had said that she had told Batty about the incident and that he had said that he did not condone it, but that he did understand. Lally had not disclosed this matter prior to trial. Sometimes, the improvement of a version of events at trial may reflect adversely upon a witness's credibility. However, given the incriminating nature of the other alleged admissions, it is hard to see why Lally's late recollection of such a peripheral matter should have reflected adversely on her credibility. A witness may well recall fragments of conversation as he or she is questioned about it. I do not see that anything useful could have been made out of this in cross-examination.

In the end, I can see no basis for any of the criticisms of the conduct of the trial by defence counsel.

The appellant submits that fresh evidence is now available in the form of statements by Batty and by the medical practitioner, Drew James Wenck, referred to by Lally in evidence. Batty's evidence goes to the assertion, allegedly made by the appellant to Lally, that she had told Batty that she had tried to kill her husband. He denies this. I have already said that I can see very little significance in this matter, save for the risk that in light of Smith's evidence, the jury may have drawn an adverse inference from Batty's absence. Of course, the jury should not have drawn such an inference, and although the matter was not addressed directly, it was implicit in the direction as to onus of proof that they not do so. Had the issue appeared significant at the trial, one would have expected defence counsel to raise it then, either as a ground for mistrial or to ask for a special direction against drawing inferences adverse to the appellant.

As to the first course, such a submission would almost certainly have failed. The risk was that Batty's absence might have been seen as in some way supporting Lally's evidence on this issue, but this was only a minor aspect of Lally's evidence, and the tapes offered much more powerful support for her evidence as a whole. The other evidence to which I have referred also seriously implicated the appellant in a way which supported Lally's evidence. The possibility that the jury might wrongly have drawn an adverse inference from Batty's absence and then used it in such a way as to affect the outcome is so remote as to be beyond reasonable possibility. As to the second course, the risk was that such a direction would have unduly emphasized the issue in a way unfavourable to the appellant.

Wenck denies that he ever made statements to the effect that insulin was not traceable on post-mortem and that an injection above the hairline was not traceable. His statement implies that this is a summary of the relevant part of Lally's evidence. He says that on an occasion, particulars of which he cannot recall, he had a discussion in the presence of the ward secretary concerning the post-mortem tracing of insulin, saying that it was traceable using immuno-assay methods. He cannot recall whether the appellant was present at the time. Wenck's summary of Lally's evidence is not entirely accurate. Lally's version was that the appellant had said that her understanding was that the injection, "... was not traceable on post-mortem unless it was looked for ...". It is quite likely that the qualification ", ... unless it was looked for ...", reflected Wenck's reference to immuno-assay.

The appellant's own evidence was not so different from Lally's version. The former said (at p.332, ll.37-42):-

"We sat and we talked and the conversation came up about ways that people could kill other people. I mentioned that one of the consultants, Dr Drew Wenck, had mentioned that if insulin was injected above the hairline, that is at the back of the head, then it couldn't be detected; not that the insulin couldn't be detected but the actual injection site couldn't be detected because of the way people do post-mortems. We spoke about the requirements to give massive doses of insulin, that is, greater than 100 units of insulin, in order to kill somebody. We spoke about the conversation that had been had at work about chrysanthemum stamens and we spoke about other means, other poisons to kill people."

Wenck's version is somewhat different from both versions given at the trial, but it does little to assist in deciding which of those versions was the more accurate. In any event, the appellant's own version was sufficiently damning for the Crown's purposes.

The Court will only set aside a conviction because of fresh evidence in special circumstances. Generally, the evidence must be fresh in the sense that it was not available at the trial and would not have been available with the exercise of reasonable diligence. Secondly, the evidence must be credible in the sense that it must be at least capable of belief. Thirdly, the evidence must be such as to raise a significant possibility that the jury, acting reasonably, would have acquitted had the fresh evidence been led at the trial. (See Gallagher v. The Queen [1986] HCA 26; (1986) 160 CLR 392, Mickelburg v. The Queen [1989] HCA 35; (1989) 167 CLR 259, R v. Condren, ex parte, The Attorney-General [1991] 1 Qd R 574 and The Queen v. Stephens & Moore (CA 135 of 1991).

Wenck's evidence is probably not fresh. It is conceded that the defence knew that Lally would allege that the appellant had mentioned the conversation in question, presumably from the committal proceedings. If the difference between Lally's version and the appellant's was important to the defence, then that should have been apparent prior to the trial. The evidence of Batty may be "fresh", because it was only at trial that Lally revealed that the appellant had mentioned the conversation with him. Given that Batty was in the United States, it must be conceded that it would have been difficult at that stage for the appellant to seek his recollection. As to the plausibility of the evidence, I see no reason for present purposes to doubt the veracity of either Batty or Wenck.

To the extent that Batty's evidence is not merely collateral, its relevance is extremely remote, and it is of little weight. Wenck's evidence is more significant in that the alleged admission by the appellant that she had discussed insulin with Wenck may well have weighed in the jury's consideration of the case, but the differences between Lally's version and the appellant's is not substantial, and Wenck's version is, at best for the appellant, equivocal.

The appellant asserts not only that the evidence of both witnesses was relevant, but also that as the prosecution was aware of the availability of it, it should have been communicated to the defence before trial. I do not see that the evidence of either witness was of any real assistance to the defence. In those circumstances, I do not criticize the prosecution for not communicating it to them. The so-called fresh evidence could not have significantly affected the outcome of the trial. There is no possibility that had that evidence been received, the verdict would have been different. The application for leave to read the affidavits was not formally determined at the hearing. Leave should be given.

The appellant also seeks leave to appeal against sentence. As I have said, she was sentenced to imprisonment for 12 years with a recommendation for parole after three. The primary ground of the application is simply that the sentence is beyond the appropriate range, particularly considering that the complainant suffered no permanent injury, that the appellant expressed concern for the complainant immediately after the incident, her previous good character, her background as a successful and dedicated nurse and her position as a mother of two young children.

The appellant has, on occasions, made casual allegations of violence against the complainant. She did so in her evidence, but her counsel abandoned any allegation of violence as part of the defence case. No such suggestion was made in cross-examining the complainant nor in submissions on sentence. This case is not one in which a physically weaker wife has responded to continuing violence from her husband. Rather, it is an example of a dissatisfied partner seeing murder as an escape from her marriage and as a way of ensuring continued custody of her children. The appellant also exploited her access to drugs and syringes in the course of her employment and her expertise.

The pre-sentence report and Dr Alcorn's psychiatric report, which were tendered on sentence, show that she continues to deny her guilt, although Dr Alcorn asserts that she feels considerable remorse for the distress which has been caused to those around her. The pre-sentence report poses some quite serious questions concerning the appellant and her attitude to other people and suggests that she may have a personality disorder. Dr Alcorn is not so persuaded and takes a rather more positive approach to the appellant.

The decision of this court in R. v. Hewitt (CA No 405 of 1993) is an appropriate starting point in considering sentence. In that case, the applicant had pleaded "guilty" to attempted murder, the plea being indicated on the morning of the trial. He was sentenced to 15 years' imprisonment, which was upheld on appeal. The applicant and the complainant had become friendly whilst the applicant was a patient at a hospital at which the complainant worked as a domestic. After his discharge, they had seen each other occasionally, but the complainant had indicated that she did not wish to further the relationship. The applicant continued to pursue her and made sexual advances which were rejected. On a later visit to the complainant's home, the applicant introduced strychnine into her sugar bowl. Subsequently, the complainant made a cup of coffee, using the sugar, but noticed its bad taste. She awoke her daughter and told her what had happened. She then found that she was unable to rise from the bed on which she was sitting. Her daughter took her to hospital. She suffered excruciating pain as a result of the poisoning and went into convulsions. She was in intensive care for three days but fortunately, made a total physical recovery, although suffering psychologically.

The offence was said to be, "... a carefully planned, pre-meditated attempt to kill ...", a description which applies equally to the present case. The applicant had previously displayed obsessive behaviour towards another woman. He had difficulty in controlling his emotions and behaviour. In a pre-sentence report, it was suggested that the applicant was suffering from a major depressive disorder, but that provided he was given appropriate psychiatric treatment, he would not constitute a significant risk in the future. In a second report, it was suggested that there was a risk of future violence if his psychiatric difficulties were not adequately treated and that a relapse was possible.

The court considered that the most serious aspect of the case was that the act was not done in the heat of an argument or out of anger, but was rather a, "... coldly calculated act which of necessity required the applicant to take steps towards achieving the desired and intended result over a period of some time ..." A range of 12 to 18 years was said to be appropriate for an offence of that kind.

Although each attempted murder must be considered according to its own facts, there are certain general categories of case which can be identified for sentencing purposes. Firstly, there are cases in which the attempt to kill occurs in anger. Secondly, there are cases where one marital partner, (usually the woman) responds to a long history of abuse by seeking to kill in a premeditated way. The present case does not fall into either of those categories. It is rather an example of a third category in which the attempt is premeditated and without any justification, reason or excuse, legal or moral, other than self-interest. These cases call for very severe sentences.

It is the intention to kill which is the most serious aspect of the offence of attempted murder, not the consequences to the victim. Premeditation, if present, is also of great importance. It is not generally appropriate to draw comparisons between cases of attempted murder and other serious assaults. Especially in premeditated attempts to kill, the outcome will often be, "death or nothing", in the sense that the attempt will either succeed absolutely or the victim will escape relatively free of injury. Poisoning cases and cases involving firearms are examples of this. Whether or not the victim suffers serious injury will often be a matter of chance.

In premeditated attempts, a change of heart may be a relevant mitigating factor. It is submitted that there was a change of heart in this case in that when the appellant observed that her attempt had been unsuccessful, she displayed some solicitude for the complainant, suggesting that she call an ambulance. I find it difficult to construe these acts as demonstrations of remorse or change of heart. There is nothing in the evidence to suggest that she then had the capacity to take any further steps directed towards carrying out her original intention. It is quite likely that her apparent concern was an act of deception designed to conceal her guilt. Lally's evidence suggests that the appellant showed little remorse and a desire to try again if the opportunity arose. It is true that Lally extracted a promise that she would not do so, but one is left with doubts as to the sincerity of the promise, given the rest of the conversations.

Any mental or personality disorder suffered by the offender will be relevant to the sentencing process. Not infrequently, there will be evidence of a depressive condition or alcohol - induced illness contributing to the causation of the offence. Although the pre-sentence report suggests the possibility of a personality disorder here, it is no part of the appellant's case. The appellant relies on a very old decision of the Court of Criminal Appeal, R. v. Turner (30 June, 1972) and the more recent decision in R. v. Mursic [1980] Qd R 482. In Turner, the court considered a sentence of 10 years' imprisonment for attempted murder. In that case, the applicant procured six sticks of gelignite, placed them in the boot of a car and arranged for them to be detonated when the victim got into the car and drove off. The victim was the applicant's mother-in-law, but little more appears from the record of the case with which we have been supplied. Although one cannot avoid the conclusion that such an offence was pre-meditated, it is difficult to avoid the further inference that the bizarre nature of the attempt bespoke some grave emotional disorder in the applicant.

As to Mursic, the applicant there attempted to strangle his wife with a piece of rope and threatened her with a carving fork. He then attacked her with a piece of steel, splashed inflammable liquid on her and set her alight. He was suffering from alcoholic paranoia and a morbid jealously syndrome, causing him to believe that his wife was unfaithful. His wife had obtained an injunction restraining him from entering her home, but he entered in breach of the order. He was a man without previous convictions. It is reasonable to infer that his psychiatric condition was a mitigating factor. The Court of Criminal Appeal declined to reduce the sentence.

I do not think that there is anything in either of those cases which can be said to indicate that the present sentence is too high. Hewitt (supra) is a recent and appropriate approach to offences of the present kind - a premeditated attempt to kill in a domestic or quasi-domestic situation, in the absence of any misconduct on the part of the victim. The range of 12 to 18 years appropriately reflects the value of human life. Whilst Hewitt was a more serious case than the present one, the differential of three years in the head sentence adequately recognizes that fact. The recommendation for early parole also more than adequately recognizes the absence of previous convictions, the appellant's nursing service, her position as a mother and other relevant factors. The sentence is within the range of an appropriate exercise of the sentencing discretion. I would refuse leave to appeal.