R v Roberts & Urbanec [2004] VSCA 1

342. Counsel for the Victorian Director on 21 September 2001 indicated to his Honour that in relation to some of the documents sought the problem might soon pass when that material became public as part of a hand-up brief or the like. Counsel for the Chief Commissioner also indicated that a temporary phenomenon was shown by the confidential affidavits which could dissipate in three months.

345. In his ruling[113], his Honour stated that on a claim of public interest immunity it was necessary to balance the two aspects of public interest, with a bias in favour of disclosure. Subject to the applicants' right to a fair trial, the confidential affidavits justified, his Honour said, the claims for immunity under the heads of the need to protect continuing police investigations, to preserve the identity of police informers and covert operatives and to protect police procedures and practices against unwarranted disclosure. As to the applicants' right to a fair trial, his Honour was of opinion that the material supplied already provided them with the material needed to cross-examine the relevant witnesses effectively as to credit and to assert properly their claim of corruption.[114]

He considered that any further material would significantly affect each of the aforesaid heads of privilege without advancing the interests of the case of either of the accused. So the balance fell clearly on the side of non-disclosure.

350. Later Detective Senior Constable Firth in cross-examination claimed public interest immunity on the questions whether Rosenes or Paton withdrew money for drug purchases from the relevant police fund in July or August 1999 and whether either had authority to access cocaine in those months. His Honour ruled[115] that the balance clearly fell "in favour of granting immunity, in other words of protecting the identity of people and in favour of not jeopardising [continuing] operations and ... protecting ... sensitive police procedures."

353. Later, Rosenes was asked about the existence of a special fund for covert drug operations and relied on public interest immunity in refusing to answer, though he did say that he "would have drawn" some money out of the fund in 1999. The immediately preceding ruling was referred to by counsel, but there was some doubt as to whether it was not confined to money.

(a) that it was not open to his Honour to find or hold that the confidential affidavits justified a claim of immunity based on the three heads above-mentioned;

(b) that the judge erred in relying simply on the affidavits and should have inspected the documents sought himself;

(c) that the judge erred in stating that the material supplied was sufficient to cross-examine effectively as to credit, when the material sought went to an issue, namely whether Rosenes had access to funds which the defence maintained had been given to Roberts to fund his trip overseas;

(d) that the further ruling was not open in respect of the questions of whether and when Rosenes withdrew money from the fund, or alternatively that the judge failed properly to balance the competing interests; and

(e) that the only reasonable inference as to the nature of the claim to privilege was that it related to police methodology rather than any of the three heads referred to and, if so, the importance of the issue should have dictated disclosure.

362. Bearing in mind that his Honour had access to confidential affidavits, I am not persuaded that it was not open to him to find or hold as he did in his principal ruling as to the claims those affidavits justified. Nor am I persuaded that he erred in the balancing exercise he referred to in each of his rulings. In particular, although superficially it may be thought that documents showing details of the number and amounts of withdrawals of money from the relevant fund by Rosenes or Paton in the two month period would be relatively innocuous, it may well be - and his Honour's rulings are consistent with this - that the name of an informer or the details of a police operation would be revealed by the production of the documents. Indeed, counsel for the Chief Commissioner demonstrated[116] before his Honour that the identity of a particular informer could not be protected by the deletion of the informer's name as the substance of the materials readily identified the informer. It is also to be remembered that the immunity extends to evidentiary material which, in the circumstances of the case, may lead to the identification of, for instance, a police informer: Rogers v. Home Secretary[117] and Attorney-General (N.S.W.) v. Stuart[118]. Further, even if his Honour is to be taken to have confined, wrongly, his opinion as to the sufficiency of the material already supplied to cross-examination as to credit, that error was immaterial, for counsel for Roberts established in cross-examination of Firth that there was a fund available (subject to approval) for drawing on for covert drug operations and in cross-examination of Rosenes that he did draw ("would have drawn") on it in 1999. Finally, his Honour did not, in the circumstances of this case, err in not inspecting the documents. A court has the power to inspect (that is, look at, examine and read) documents the subject of the claimed public interest immunity: Sankey v. Whitlam[119]; Alister v. The Queen[120]; and The Commonwealth v. Northern Land Council[121]. Such an inspection is private and does not constitute formal production to the court: Attorney-General (N.S.W.) v. Stuart[122]. But the power of inspection of documents for which public interest immunity is claimed should be exercised sparingly: Young v. Quin[123]. Indeed, it has been said that a court should not exercise the power of inspection "unless it [has first decided that] ... the documents probably ought to be produced": Young v. Quin[124]; Sankey v. Whitlam[125]; and Alister v. The Queen[126]. There was nothing in the circumstances before his Honour which necessitated his undertaking of the task of inspection of the documents for himself. In any event, it was submitted for the respondent (correctly, so far as I can see) and not challenged for Roberts, that no request had been made by counsel to the judge to inspect the documents for himself. In those circumstances, it is inappropriate that this Court should now entertain such a complaint.

365. For the foregoing reasons, this ground fails. Before leaving it, however, I add this. In discussing the ground above I have proceeded on the footing that a "balancing exercise" was required. Counsel for the respondent submitted, however, that, where, in a criminal proceeding, a claim of public interest immunity is based upon the assertion that the identity of a police informer would be disclosed if the documents were produced, the court does not engage in a balancing exercise, citing Cain v. Glass (No.2)[127] and R. v. Smith[128]. Those cases state that, in such circumstances, the rule is absolute and is relaxed only where to do so could help an accused person show that he is not guilty of the offence for which he is on trial. But they and R. v. Mason[129] indicate that the formulation of the exception has been variously expressed. Further, the contrary view, that a balancing exercise is required, was laid down by Brooking, J., with the concurrence of Southwell and Teague, JJ., in the decision of the Appeal Division in Jarvie v. Magistrates' Court of Victoria[130], as well as another formulation of what must be shown for the identity of an informer to be disclosed. At least in the absence of a thorough-going consideration of the question, which is neither possible nor necessary, this court should follow the decision of its predecessor.

369. These grounds were argued together. Although a stay was sought on behalf of Urbanec as well as on behalf of Roberts and was refused, these grounds are relied on by Roberts only. It is, however, to be noted that written and oral submissions were made on behalf of Urbanec which would have been apposite to a ground couched in similar terms to Roberts' ground 6, but, absent such a ground, I shall consider them under Urbanec's grounds 5 and 6, where, as well as under his ground 4, they were made**.**

372. The factual background to these grounds has largely been traced earlier in these reasons by reference to the rubric (in Urbanec's outline) of the evolving position of the Crown in relation to calling Rosenes and Paton. It is necessary to add only the following. Between the prosecutor's statement to his Honour that to the best of the Crown's knowledge and belief the allegations in the Summaries of Evidence were true and correct and his announcement that the Crown would call both persons for the limited purpose he indicated, counsel for Urbanec in referring to his proposed opening statement raised the question of inviting the jury to draw adverse inferences against the Crown if Rosenes and Paton were not called.[131] Earlier, on 24 September 2001, after his Honour had said that, unless Rosenes or Paton had pleaded guilty, he did not see how their defence could use the fact that he had been charged as going to his credit, counsel for Roberts had made oral application[132] for a stay on the basis that the trial was amounting to an abuse of process in that the Crown had "manipulated the situation of not calling a witness for some tactical purpose", which it would not disclose. After some discussion in which his Honour pointed out that the Crown had not agreed to treat the Summaries as admissible evidence, counsel for Urbanec applied orally[133] for a permanent stay of the proceedings, which he changed[134] shortly thereafter to a temporary stay pending alteration in the attitude of the Crown.

375. After hearing from the prosecutor, his Honour stated[135] that he did not propose to grant a stay. He said that he would give proper reasons in due course. He was not going to hold the matter up then, as they had a jury panel waiting. "But," his Honour continued,

"one of the matters that I do have in mind is that there has been, up until the other day when [Roberts' counsel] announced the defence, not a skerrick of evidence of it, indeed all the conduct and evidence and circumstances that have preceded that are quite inconsistent with that stand. The situation shouldn't arise, without any proper basis at all, for suggesting that there was in fact corruption in this particular case ..."

His Honour said that those were not proper reasons and he would prepare some proper reasons, if necessary, but the point was that he was not going to grant the stay, either temporary or permanent, at that stage.

380. His Honour does not appear to have given any formal or further reasons.

383. It was submitted for Roberts that his Honour's refusal of the stay in the circumstances was erroneous in that:

(a) the prosecutor was clearly of the view that Rosenes and Paton were corrupt police officers who were neither reliable nor credible and for that reason would not be called;

(b) the prosecutor only decided to call them when it was clear that no effective challenge to their credit could be mounted (because a claim for privilege would be allowed);

(c) the decision to call them was for the purpose of a technical and forensic advantage and constituted an abuse of process resulting in a miscarriage of justice.

It was further submitted, as I understand it, that the decision to refuse a stay was wrong and amounted to a miscarriage of justice in that the dictates of a fair trial required a stay pending the resolution of the charges against Rosenes and Paton.

389. It is clear from a reading of the transcript that the essential ground on which counsel for Roberts sought a stay at trial was the prosecutor's refusal to call Rosenes and Paton as witnesses in the trial. That being so, his Honour's ruling refusing a stay was clearly overtaken by the subsequent calling of the two as witnesses, so that, even if the refusal of the stay had been wrong at the time, the ground for the stay had been removed. In any event, I am not persuaded that, in refusing a stay, his Honour's discretion miscarried in what was a matter of practice and procedure. If and in so far as it may be relevant to consider Urbanec's application for a stay, that had been based on the prosecutor's refusal to agree that the Summaries of Evidence might be tendered, and thus it too was overtaken by the subsequent event, as it would appear, of the prosecutor's agreeing that this might be done or at least indicating his preparedness to come to some arrangement on the matter satisfactory to the accused. Furthermore, both defence counsel informed the judge just before he gave his ruling[136] as to cross-examination of Rosenes and Paton on, and admissibility of independent evidence relating to, matters in the Summaries that because of the long wait their clients would face in gaol they were not applying for an adjournment of the trial until after the charges against Rosenes and Paton had been disposed of. Nor did either defence counsel subsequently apply for a stay, for instance after the ruling just mentioned. In the circumstances stated Roberts should not now be allowed to complain of his Honour's refusal to grant a stay. As counsel for the respondent put it, what was being sought was really a review of an uninvoked exercise of discretion. That should not be permitted.

392. I turn to the criticism of the conduct of the prosecutor. It may be that, in reliance on the Summaries of Evidence and the decision of the Victorian Director of Public Prosecutions not to call Rosenes or Paton in any trial in Victoria, the prosecutor did consider that they were not reliable or credible witnesses, though he made it clear to the judge that he could not concede that they were corrupt. But it may very well be that the prosecutor formed the view (as he was, in my opinion, as will appear, fully entitled to do) that on the specific topic on which he called them Rosenes and Paton were credible and reliable. Be that as it may, the serious imputations in the written outline as set out with slight editing in sub-paragraphs (b) and (c) of paragraph [108] above, which regrettably were maintained in oral argument after receipt of the respondent's outline pointing out that they were wrong, cannot be accepted. To begin with, it is to be noted that the prosecutor made it clear more than once during discussions before the jury was empanelled that he would keep the question of calling Rosenes and Paton and in particular making them available for cross-examination under review. The fact is that the prosecutor announced his decision to call Rosenes and Paton well before his Honour first suggested that Rosenes and Paton might object to answer questions arising out of the Summaries and that the objections might be upheld, and even longer before he gave his tentative ruling to that effect and then, after further discussion, took the objections on voir dire, upheld them and told Rosenes and Paton that they would not be asked any questions arising out of the Summaries, that ruling and other conduct of his Honour being what the submission takes to have made it clear that no effective challenge to credit could be mounted. Nor was the decision to call them for the purpose of a technical or forensic advantage but rather, as it seems to me, to contradict Roberts' foreshadowed evidence and to forestall any comment arising from their absence from the witness box. I am quite unpersuaded that it was designed to take advantage of an expected situation where they would appear as witnesses of integrity.

395. Finally, as I understand the submissions for Roberts, it is contended that his Honour's refusal of a stay and the prosecutor's calling of Rosenes and Paton each, and perhaps in combination, resulted in the trial being unfair and thereby gave rise to a miscarriage of justice. The premiss of that contention must be his Honour's ruling precluding cross-examination about and independent evidence of matters in the Summaries of Evidence. If, however, as I have held, his Honour's ruling was correct under the rules of evidence (including substantive immunities) it could not of itself give rise to an unfair trial or a miscarriage of justice. Further, the grounds on which the stay that was refused were sought on behalf of Roberts and, if material, on behalf of Urbanec were removed by changes in the stance of the prosecutor. So far as conduct by the prosecutor is concerned, the calling of Rosenes and Paton was what he had been urged to do. Moreover, no complaint was made at the time of his decision to do so. In particular, discharge of the jury, which was the appropriate remedy if the circumstances called for a remedy, was not sought. If it were to be said (though it was not said for Roberts) that the prosecution obtained a tactical advantage by being able to lead evidence in chief from Rosenes denying the defence case and that the prosecutor should merely have made Rosenes available for cross-examination, two sufficient answers can be made. First, even if that was the correct course, the failure to follow it was immaterial because counsel for Roberts would have been bound to put his client's case in cross-examination and, as can be seen from the answers given in the cross-examination which did occur, Rosenes would have denied all aspects of that case. Secondly, no objection to the leading of evidence in chief from Rosenes (or Paton) was made before this occurred notwithstanding that the prosecutor had indicated precisely what evidence would be led in chief. In summary, what occurred was aptly described by Buchanan, J.A. during argument as just part of the forensic fall of the cards. The riposte by Urbanec's counsel that part of the pack had, however, been removed, whilst elegant, was not, I think, accurate. Rather, to continue the metaphor, an attempt to add a joker to the pack had been refused. There was no miscarriage.

398. For all these reasons these grounds must be rejected. Counsel for Roberts virtually conceded this when, submitting that this court had to consider whether the ruling was correct at the time it was made, he went on to say that anyhow it was very difficult to ask for a stay when (later) the prosecution said it would call the witnesses: to ask then for a stay was not the practical course open.

403. These grounds arise from the convictions (following pleas of guilty) of Paton and Rosenes for serious drug offences, being convictions sustained after the initial and principal hearing of the applications for leave to appeal and therefore, all the more so, after the trial. The applicants also rely on the written statement made on 10 March 2003 by Paton in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury and in particular on the assertion in it that he tendered his resignation from Victoria Police because he had a disagreement with Detective Senior Sergeant Strawhorn owing to the way he wanted Paton to conclude the Fraser investigation, namely, by "gifting" Fraser, meaning planting evidence in the form of drugs on him. This Paton stated he would not do as he wanted to conclude the investigation lawfully. For the purpose of the present applications the earlier ruling of the court giving leave to the respondent to rely on the affidavit of Berdj Tchakerian sworn 25 August 2003 means that the court proceeds on the footing that there is no independent corroboration of those statements.[137]

406. Each applicant sought an order quashing his conviction on the relevant count and directing a new trial on it rather than the entry of a judgment and verdict of acquittal, which would require this Court to be satisfied of the applicant's innocence or to entertain a reasonable doubt as to guilt.[138]

409. Although the grounds now under consideration are all expressed in terms of the convictions being unsafe and unsatisfactory, which is usually, though not always, meant as a reference to the first ground for allowing appeals stated in s.568(1) of the Crimes Act, all the arguments for the applicants were directed to showing a miscarriage of justice, thus invoking the third ground in s.568(1). I shall proceed on that basis.

412. The third ground in s.568(1) covers cases where the trial was fair and without blemish but where fresh evidence shows that the conviction is a miscarriage of justice: Gallagher v. The Queen[139]. Compare R. v. Demirok[140].

415. A miscarriage of justice is not, however, shown by producing fresh evidence which might possibly have led to a different verdict. In R. v. Nguyen and Tran[141] Kenny, J.A., with the concurrence of Winneke, P. and Callaway, J.A., stated that ordinarily a court will not be satisfied that a "fresh evidence" ground is made out unless:

(a) the evidence was not available, [and] could not with reasonable diligence have become available, at the trial;

(b) the evidence is relevant and otherwise admissible;

(c) the evidence is apparently credible (or at least capable of belief); and

(d) there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial.

There has been some difference of opinion in the High Court[142] as to the formulation of the fourth element listed above, though Kenny, J.A. considered that there was no practical difference between the two formulations she stated. Whether the evidence of the pleas of guilty and convictions, which had not occurred at the time of trial, should be called "new" rather than "fresh" may be a question, but the first element is certainly satisfied, as is the third in so far as the pleas of guilty and convictions are concerned. I shall defer for the time being consideration of whether the second and fourth elements are satisfied.

421. In support of the submission that a miscarriage of justice was demonstrated by the fresh evidence, counsel for Roberts submitted that the evidence and credibility of Paton was significant and that his plea of guilty significantly impacted upon his credit; that the matters in his statement showed significant police corruption, something which previously could only be asserted but was now supported by evidence; that Paton's statement showed an agenda orchestrated by Strawhorn to "get Fraser"; that Strawhorn could on the new material have been cross-examined extensively; and that Paton's statement also indicated an intimate illegal relationship between Rosenes and Strawhorn which would have severely impacted on the prosecution case at trial. As regards Rosenes' convictions it was submitted that his credit as a witness was significantly affected by the fresh evidence and that the convictions went to issues in the trial, namely, the propensity of Rosenes and other members of the then Drug Squad, to engage in criminal conduct; access by Rosenes to cocaine through his criminal contacts; and the likelihood of Rosenes and Paton (and possibly Strawhorn and others) engaging jointly in criminal conduct. It was said that the most recent conviction showed accumulating evidence of difficulties in the trial and that there was a real question whether the trial should actually have started. The foregoing summary of submissions does not include certain submissions which are clearly contrary to what I have held in dealing with other grounds.

424. It was submitted for Urbanec that in relation to the material concerning Paton there was fresh evidence falling into two categories, first, evidence that Strawhorn, the police officer in charge of the investigation, wished to incriminate Fraser falsely and, secondly, evidence that both Paton and Strawhorn were corrupt police officers and by necessary implication so too was Rosenes as he was in league with Strawhorn. There were two ways in which this evidence warranted the quashing of the applicant's conviction with an order for re-trial. First, at issue at trial was the defence assertion that there was a police plot to "get Fraser" using Roberts. The fresh evidence supported Roberts' evidence of the existence of the scheme. Given the fresh evidence, neither Paton nor Strawhorn was a credible or reliable Crown witness in denial of the defence case. There was therefore a significant possibility that a jury acting reasonably would have acquitted the applicants if that evidence had been before it. Secondly, the evidence also bore on the submissions under Urbanec's grounds 1 to 4 that a miscarriage of justice resulted from the Crown's disingenuously presenting Rosenes and Paton as honest and reliable witnesses because Paton's convictions and statement demonstrated that the Crown thereby obtained a benefit and that the defence suffered a corresponding disadvantage in not being able to cross-examine about the contents of the Summaries. So far as the material relating to Rosenes was concerned, it was submitted for Urbanec that Rosenes' convictions demonstrated that the presentation of Rosenes and Paton as witnesses of integrity was disingenuous. Reference was made to Rosenes' answers in cross-examination summarised earlier and to the submission[143]

by the prosecutor in response to the application to re-open his Honour's ruling made by counsel for Urbanec at the conclusion of the cross-examination of Rosenes. It was submitted that his Honour was not assisted by that submission, which, it was said, did not tally with the evidence and was frankly misleading. The convictions of Rosenes demonstrated that he was the antithesis of a citizen and police officer of integrity. The conduct of the prosecutor was castigated and it seemed to be suggested that there was an additional reason for re-trial, namely, discouraging such behaviour and preserving the integrity of the system.

429. It should be stated immediately that, had Rosenes and Paton been convicted by the time they gave evidence, as witnesses they could have been asked whether they had been convicted and, if they denied that or refused to answer, the cross-examining party could have proved the conviction. This follows from s.33 of the Evidence Act 1958, which applied by virtue of either s.68(1) or s.79 of the Judiciary Act. His Honour[144] accepted that this would have been so but indicated that the trial could not await the resolution of the charges against Rosenes and Paton. The prosecutor[145] agreed that the convictions could have been put to the witnesses, though he doubted whether the convictions could be proved if denied. That overlooks the second part of s.33. Prior convictions are at common law and in Victoria by statute exceptions to the rule or standard of finality, as pointed out by McHugh, J. in Goldsmith v. Sandilands[146]. In Bugg v. Day[147] Dixon, J. considered that the better view was that at common law a conviction could not be used for the purpose of discrediting a witness if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is, in his character or trustworthiness as a witness of truth. The substantive terms of s.33 are not qualified in that way, but the section does begin "Except as hereinafter provided ..." and that seems to be a reference to s.37, which deals with cross-examination as to credit and is likewise applied by the Judiciary Act. Although in the original submissions for the respondent in opposition to Urbanec's application for leave to appeal the contrary was submitted, I should have thought that, having regard to the occupation and rank of Rosenes (and Paton) and the nature and extent of their offending, questions of them as to their convictions should not have been held improper under paragraph (b) of s.37 on the ground that the imputation they conveyed related to matters of such a character that the truth of the imputation would not have affected or would have affected in a slight degree only the jury's opinion as to their credibility on the matters to which they testified. I therefore conclude that, if necessary, the convictions, had they by then been sustained, could have been proved at trial, if necessary.

432. But the evidence of the convictions would have gone only to credit: for the reasons given much earlier when considering relevance, the evidence of the convictions would not have tended to prove or disprove the fact in issue (importation by Roberts) or the identified fact relevant to that fact in issue (the delivery to or "planting" on Roberts of cocaine at the El Toro Motel or even the scheme to "get Fraser" using Roberts). The position might have been different if the convictions were, for instance, for attempting to pervert the course of justice by fabricating charges or "planting" incriminating evidence. I shall return later to the fact that the convictions bear on credit only.

435. So far as the credit of Paton is concerned, the respondent again submitted that this did not require consideration at trial because his evidence was not in issue since Roberts exculpated him from impropriety at the El Toro Motel. I have earlier referred to the evidence of Roberts on this topic. My own opinion is that the better view of that evidence is that it meant that the person delivering the cocaine at the El Toro Motel was not Paton, and that Roberts' attempt to depart in cross-examination from what he had said unambiguously in chief was not to be accepted. But, since a court in considering a fresh evidence ground is required to make its assessment of a hypothetical past jury verdict, I shall not base my decision on my own assessment of Roberts' evidence on the topic. In other words, I shall not accept the foundation of the respondent's submission, namely, that Roberts did exculpate Paton.

438. I am further of the opinion that evidence that Strawhorn wished to incriminate Fraser falsely in drug offending and unsuccessfully sought to have Paton bring this about would have been irrelevant. This is because counsel for Roberts expressly abstained[148] from suggesting that Strawhorn was part of the conspiracy to "plant" drugs on Roberts and because in any event Paton's statement makes it clear that Strawhorn's attempt to have Paton implement his wish was unsuccessful and that the wish was to implicate, not Roberts, nor Fraser via Roberts, but Fraser via Paton. Of course the mere facts that Strawhorn had been charged and Firth had been suspended, if available at trial, would, for reasons given earlier, have been inadmissible.

441. In my opinion, for the reasons which follow, there is not a significant, or indeed any, possibility (or a likelihood) that the evidence relied on in these grounds, if believed (as it undoubtedly would be in the case of the convictions following pleas of guilty), would have led the jury, acting reasonably, to acquit the applicants if the evidence had been before the jury at the trial. First, the only evidence that would have been properly admissible, namely, the evidence of the convictions (and, perhaps, pleas) would have borne solely on credit and that has never, or almost never, been sufficient to make out a fresh evidence ground. Thus, in Hook v. Ralphs[149], which was an appeal to a judge from a court of summary jurisdiction, von Doussa, J. stated that a review of the authorities indicated that in theory fresh evidence going solely to credit might be treated as relevant and, in turn, as capable of raising a sufficient possibility that at trial the accused might have been acquitted had the evidence been before the court, but in practice this had not occurred. Decided cases showed that appeals had been allowed only where the fresh evidence going to credit of a witness had some additional characteristic or[150] there had been other matters as well which raised doubt about the justice of the verdict. That, his Honour said[151], was understandable. It would have to be an exceptional case for fresh evidence establishing general bad character on the part of a witness upon whose evidence at trial the verdict rested to justify quashing the conviction recorded after an otherwise regular trial. I agree. The present applications are, in my view, not exceptional cases.

444. Secondly - and this is really a corollary of the first reason - even considered by itself, the evidence is insufficient. The returns of prisoners (recording the convictions) and relative presentments and evidence according with the statement by Paton would have neither proved nor tended to prove that any police officer (other than Rosenes and Paton and perhaps, though not in a relevant respect, Strawhorn) engaged in any improper, corrupt or criminal conduct. Nor would any of that evidence have borne upon any of the evidence given by any of the members of police who gave evidence at the trial (other than Rosenes and Paton) in such a manner that any of the last-mentioned evidence could not or should not have been accepted by the jury.[152] Importantly, for reasons given earlier in discussing relevance, the fresh evidence propounded would have neither supported nor tended to support the defence of the applicants or the sworn evidence given by Roberts in support of that defence nor would it have either disproved or tended to disprove the Crown's contention that Roberts brought cocaine in the eight plaques through the Sydney airport on 10 September 1999. Leaving aside the fact that the earliest of Rosenes' subsequent proven criminal conduct occurred 15 months after the conduct imputed to him by Roberts, the two sets of conduct were quite dissimilar in nature. The evidence under consideration would not have shown or tended to show a propensity in Rosenes to engage in a course of conduct of the nature imputed to him by Roberts in his evidence.

447. Special reference should here be made to the submissions on behalf of Urbanec. The contention appears to be that the fresh evidence adds strength to the submission made under ground 4 that a miscarriage of justice arose out of his Honour's rulings when coupled with the conduct of the prosecutor in calling Rosenes and Paton in the circumstances in which it is said he did and in his submission in response to the application made at the conclusion of the cross-examination of Rosenes. It is important to realise that, subject to possible cross-examination of Strawhorn as already discussed, the fresh evidence can only be used as going to the credit of the respective witnesses who were convicted. Further, I do not accept the submission that the prosecutor was disingenuous in presenting Rosenes and Paton as witnesses of integrity on the topic on which he called them. It does not necessarily follow from their subsequent discreditable and even dishonest conduct that they were dishonest at the earlier time, or that their evidence about the earlier time would be dishonest. This is particularly so where, as I shall later show and as the prosecutor knew, other material overwhelmingly supported the evidence he was calling them to give. As stated under Roberts' grounds 6 and 7 the prosecutor was fully entitled to form the view that Rosenes and Paton were credible and reliable witnesses on the topic on which he called them. The case of Grey v. R.[153] is quite distinguishable. True it is that Gleeson, C.J. and Gummow and Callinan, JJ. spoke of a "disingenuous basis on which to present" a key witness,[154] but that case dealt with non-disclosure, albeit inadvertent, by the prosecution of critical information about the witness. A miscarriage was held to have occurred by reason of the non-disclosure. Here, there was no relevant non-disclosure relating to Rosenes or Paton, and the prosecutor did what he was urged to do and announced that he would do so before the judge had given his rulings which had the effect of insulating the witnesses from their then alleged criminal activities. Further, I do not accept that the prosecutor's submission to the effect that Rosenes had not staked his reputation so much as asserted that he was telling the truth did not tally with the evidence or was misleading.[155] The submission overlooks the last three words in the statement of the witness, "I find it repugnant that you are questioning my integrity on this issue". The only statement that in my view could support the submission is Rosenes' statement that he had never accosted anyone in his police career. That might invoke his reputation, but it is not his reputation for honesty or integrity but rather for proper police behaviour or non-belligerence. The reference to being a wage earner is simply, in my view, concerned with a matter of fact. It is significant that the judge, who had the benefit of hearing the witness, agreed with the submission of the prosecutor which Urbanec's counsel has described as not tallying with the evidence and being misleading. For these reasons, I consider that the invitation to criticise the prosecutor should be discountenanced entirely. Moreover, a perceived need to criticise counsel, even if made out, could not be a reason for a re-trial. A miscarriage is required. If my conclusions on the challenges to his Honour's rulings are correct, the trial was conducted in accordance with the rules of evidence (including substantive immunities) and consequently there was no miscarriage**.**

450. Thirdly, the fresh evidence is to be considered with all the evidence that was given at the trial.[156] Had the evidence under consideration been placed before the jury at the trial the result would not have been different. This is because of the strength of the Crown case, of which I mention the following aspects, and the inherent unlikelihood of the defence case, of which I then mention aspects:

(a) First, Roberts confessed on three separate occasions to the commission of the crime of importation of the cocaine, namely:

(i) in a conversation at Port Phillip Prison on 15 November 1999 with Firth, Rosenes and Hurley, Firth's notes of which counsel for Roberts had Firth read into evidence;

(ii) in the recorded interview conducted by Hurley and Firth (but not, in the principal and relevant part, Rosenes) on 16 November 1999 at Port Phillip Prison; and

(iii) in the 17-page statement dated 18 November 1999, taken on 16, 17 and 18 November 1999 by Firth (and also Rosenes on 16 November) at Port Phillip Prison and signed and "read back" (whilst being recorded on video tape) by Roberts.

(b) Secondly, evidence was led in the trial which was either contrary to or inconsistent with the evidence of Roberts that cocaine had not been obtained by him in Benin and had not been subsequently imported into Australia by him but had been, instead, provided to him by an unidentified male at the El Toro Motel on the morning of 11 September 1999, that contrary or inconsistent evidence being independent of Rosenes and consisting of at least the following:

(i) that Brand, while in the hotel in Benin, had seen one of the wooden plaques, which she said had some sort of detail on it looking like a map or postcard of Benin (her evidence as to this being impressive);

(ii) that Brand, while overseas and subsequently to seeing one of the wooden plaques, carried items of luggage which were consistent with their containing the plaques;

(iii) that the origin of the wood from which the eight wooden plaques (seven of which were intact or unopened at the time of the arrest of Roberts) were made was tropical Africa, three of the plaques bearing (under varnish) postcards depicting scenes from Cotonou, and that the cocaine was most likely of South American origin and very highly unlikely to have been manufactured synthetically in Australia;

(iv) telephone conversations recorded in telephone intercepts as follows:

CALL NO. DATE DESCRIPTION[157]

95 30 August 1999 Mohr telephones Cornelius and says that her husband is arriving that day and wants the same present.

99 30 August 1999 Mohr tells Roberts that she has done it all and he is to telephone Cornelius and all is prepared and that at 9 a.m. the next day he can pick up "all [his] presents".

519 4 September 1999 In response to a question from Mohr, Cornelius says that it is finished and Roberts has the "presents". He asks her to send money. She indicates it will be via Western Union. He gives her details of Roberts' changed return flights.

624 7 September 1999 Urbanec tells Roberts that he has sent the money and tells him to bring back a few figurines and to "make sure they are varnished, because otherwise they make trouble ...".

649 8 September 1999 Roberts tells Mohr, "They sewed that stuff together with a hot needle ... The varnish isn't, isn't properly dry".

655 9 September 1999 Cornelius tells Mohr that "eight presents" are being given.

23 10 September 1999 Roberts tells Mohr, "The eagle landed".

24 10 September 1999 Roberts tells Fraser, "The eagle has landed".

(v) Conversations recorded by listening devices, as follows:

16 August 1999 In Fraser's Office

Roberts tells Fraser he will come back and deliver "about 6 kilos minimum". Roberts and Fraser discuss what to do after "get[ting] through Customs". Roberts and Fraser discuss Roberts giving [Brand] $8,000.

11 September 1999 At Flat 4/6-8 Greig Court

Roberts tells Mohr, "It is 5.55." Mohr tells Roberts that she telephoned Cornelius and he told her that eight presents had been given by him to her husband.

(c) Thirdly, several other matters the subject of evidence were inconsistent with the defence relied on, namely:

(i) Roberts had (as he admitted in his evidence before the jury) previously given sworn evidence on a voir dire on 28 August 2001, in response to a question asked by his own counsel, that he did not, on 3 November 1999 at Port Phillip Prison, recognise Rosenes, whereas in his evidence before the jury he said that he had had eight to twelve meetings with Rosenes in order to arrange the incrimination of Fraser;

(ii) upon his arrival at Brand's residence on the afternoon of 11 September 1999 Roberts (as he said in his evidence) opened one of the eight wooden plaques, extracted a small portion of the cocaine contained in it, took the cocaine to Brand's flat and used at least some of it, although this cocaine, on the defence case, was not his to consume.

(d) Fourthly, if the sworn evidence given by Roberts was true, it necessarily meant that

(i) he had been prepared to engage in a course of conduct which put a number of innocent persons (including his wife Mohr and his friend Urbanec) at risk of being prosecuted for a serious drug offence;

(ii) he had made three detailed statements to the police falsely implicating his wife and his friend Urbanec in the commission of serious offences;

(iii) the person Roberts had sought to implicate falsely in the importation of cocaine (namely, Fraser) was the very solicitor he called for after he had been arrested and been afforded an opportunity to obtain legal advice; and

each of those matters defied belief.

(e) Finally, the very gist of the defence (that Rosenes was eager through Roberts to implicate Fraser falsely in the commission of a serious drug offence) was implausible and inherently incredible, for:

(i) it was particularly risky to engage Roberts, a person who was then unknown to Rosenes;

(ii) it was most unlikely that an intelligent and mature person could be improperly persuaded to engage in a course of conduct as expensive and sophisticated as that engaged in by Roberts in order to avoid being charged with an offence of possession in mid-June 1999 of a very small amount of cocaine;

(iii) it was most unlikely that Rosenes would provide $20,000 to Roberts in order to finance the overseas trip (and particularly so when, at a much lower cost, Roberts could be sent, for example, interstate);

(iv) it would have been much simpler for Rosenes simply to "plant" some drugs in Fraser's premises than to engage Roberts; and

(v) it was unnecessary for such a very large and very valuable quantity of cocaine to be provided to Roberts in circumstances where it was highly unlikely that Rosenes would be able to get it back.[158]

456. It is to be noted that, with the exception of the conversation on 15 November 1999 and the initial work on the statement dated 18 November 1999, the items of evidence enumerated above were independent of Rosenes and thereby actually corroborated his sworn evidence in the trial that he had not engaged in the course of conduct described by Roberts.

459. But even if, despite the last-mentioned consideration and all the other factors, the jury, in light of Rosenes' convictions, would have disbelieved his denials of engaging in the course of conduct described by Roberts, that would not have enabled them to infer that Roberts' version was or may have been true. Disbelief of a denial does not produce some evidence of the truth of the matter denied and as a matter of logic adds no greater weight to evidence of the truth of the matter denied than the absence of any denial at all: R. v. Brotherton[159] and R. v. Lovett[160]. Roberts would simply be "no further ahead". It would just be as if Rosenes had not given evidence on the matter. The same applies to Paton's denials if they should be material.

462. I have had regard to the matters raised by counsel for the applicants as constituting difficulties in the Crown case. Perhaps the strongest point is that no cocaine was detected in their hand luggage as Roberts and Brand passed several barriers in the Sydney airport. But the preferred police "scenario" was that they should not be interfered with at the airport but arrested in Melbourne.[161] In any event, non-detection can easily occur. There was also the short break in the surveillance of the rental car in the El Toro Motel car park. But it seems from Brand's evidence that what set off the tracking device put in the car was a visit to it by Roberts to get the heavier luggage. Despite these points, the case for the Crown was overwhelming. The defence of Roberts was fanciful. The judge in his sentencing remarks described it as "nonsense" and a "fiction". Notwithstanding the fresh evidence under consideration that defence remains fanciful. The admission of the fresh evidence could not, in my opinion, have precluded the jury from finding beyond reasonable doubt that Roberts himself imported the cocaine into Australia in the eight plaques. Accordingly, there was no miscarriage of justice by reason that the convictions of Rosenes and Paton, together with the contents of Paton's statement, were not before the jury, and the convictions on counts 1 and 3 are not unsafe or unsatisfactory as asserted.

466. Much earlier in these reasons I stated that, if his Honour had erred as alleged in any of the grounds challenging his rulings as to cross-examination of Rosenes and Paton about, and independent evidence of, their drug dealings, I was of the opinion that the proviso to s.568(1) of the Crimes Act applied. This is because, by reason of the aspects of the case enumerated in paragraph [127] above and the discussion in paragraphs [128] to [130], neither applicant lost a chance of acquittal that was fairly open to him. Accordingly, if, contrary to my view, his Honour erred in any of his rulings, the applications for leave to appeal should nevertheless be dismissed pursuant to the proviso.

470. For the foregoing reasons each application should be dismissed.

474. The wording of each application confines it to complaining about the sentence imposed on the count on which the applicant was found guilty by the jury. The maximum penalties, the sentences imposed on each applicant and the grounds of proposed appeal have been set out earlier. Having regard to the length of these reasons already, I shall not summarise his Honour's extensive sentencing remarks but rather shall refer to them, where appropriate, in considering the applicants' individual grounds.

478. It was submitted for Roberts under ground 1 (parity) that the disparity between the sentences imposed on him and the other co-offenders was so great that it gave the appearance that justice had not been done. There was, it was said, nothing in the antecedents, personal circumstances or roles played by each of the co-offenders, especially Mohr, to justify the disparity. In particular, it was submitted that there was nothing in the respective roles to characterise Roberts as the prime instigator. There was no credible evidence as to whose idea it was or where finance for the trip or the purchase of cocaine came from. Roberts in his statement had said that it was Fraser, but at the trial he said that it was Rosenes. (It should be recorded that in a statement relating to Fraser tendered on Urbanec's plea the Crown acknowledged that there was no evidence that Fraser made any financial investment in the importation scheme.) It was said that the mastermind is not generally the one who does the leg work. Reliance was placed on the conversations between Mohr and Cornelius. It was pointed out that it was Mohr, not Roberts, who knew him. Her role was far higher than his Honour had recognised and indeed there was not much difference between her role and Roberts' role.

481. An appellate court intervenes because of disparity only where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done.[162] Whilst the differences between the sentence imposed on Roberts and those imposed on Mohr and the other co-offenders respectively are substantial, I have come to the conclusion that the differences are well explicable and not such as to engender a sense of grievance that would be shared by an objective observer. This is a case where the sentences were all imposed by the one judge and where that judge had had the benefit of listening to the evidence called in the trial of the present applicants. His Honour's sentencing remarks, dealing with all four co-offenders, are extensive and wide ranging. He showed himself[163] mindful of the different roles played by each, of the different personal factors applicable to each and of the fact that some and not others were entitled to discounts or credits. Moreover, he stated that when considering the appropriate sentence for each he had borne in mind what he considered to be the appropriate sentence for the others.

484. Amongst the differences in factors bearing on sentence were the following: Urbanec's role was far less than that of Roberts; Mohr and Fraser pleaded guilty; Fraser received a discount for future co-operation; Mohr had obtained some insight into her terrible drug problems, had become drug-free in prison and had good prospects of rehabilitation if she remained free of drugs; and Mohr and Fraser had no prior convictions. Roberts, on the other hand, was, despite his counsel's submission to the contrary, the principal in the criminal enterprise. He was the importer, but not as a mere courier. Although Urbanec and Mohr gave him information as to the availability of cocaine in Benin, he seems to have conceived the scheme and he certainly planned and executed it. When he was in Africa he dealt with Cornelius. He was sentenced for importation. He had a prior conviction for cultivation of a narcotic plant. He used Brand and thereby exposed her to the risk of being falsely convicted. His Honour found that there was no evidence of remorse on his part and no basis for believing that he had any real prospect of rehabilitation, so that specific deterrence as well as general deterrence had to be prominent sentencing considerations.

487. The co-offenders, particularly Mohr, assisted Roberts in the importation. His Honour recognised that Mohr's role was an essential one, pointing out that she made telephone calls to assist Roberts' introduction to the supplier, sent him money and, despite her natural jealousy of Brand, was a steadying influence when Roberts showed signs of what might have been the beginning of panic. Her concern in the importation was significant. She knew that Brand was to be exposed to the risk of conviction of a very serious offence. His Honour took her plea of guilty, albeit belated, into account.

490. Notwithstanding the essential and significant role of Mohr, the five year difference between the sentence imposed on Roberts on count 1 and Mohr on count 3 is, I consider, objectively justifiable by reference to the mitigating factors present in her case. In particular, his Honour was entitled to give significant weight to her prospects of rehabilitation. Most reliance in the parity argument was placed on Mohr's sentence. But, so far as Fraser's sentence was relied on, the difference is readily explicable by reference to his undertaking to assist in the future and his absence of prior convictions. This ground, therefore, fails.

493. Under ground 2, it was submitted that the sentence imposed did not properly reflect the adjustment required by s.16G of the Crimes Act 1914. That section, which has been repealed as from 16 January 2003[164], required his Honour to take the fact that sentences in Victoria are not subject to remission or reduction into account in determining the length of the sentence and to adjust the sentence accordingly. (A like provision was made in relation to the non-parole period by s.19AG, which has been likewise repealed[165]). It was submitted that if the proper adjustment had been made in the sentence which his Honour imposed the starting point in determining the appropriate sentence would have been in the order of 17 years or so and that was manifestly excessive. (As worded, the ground assumes, rather, a proper starting point but an insufficient adjustment.)

496. His Honour expressly stated[166] that, in respect of the Commonwealth offences, he had taken into account the provisions of s.16G and the principles set out in R. v. Li[167]. In that case this court held that the discount which a court was bound to apply under s.16G was not to be calculated in accordance with a strict mathematical formula of one-third of the sentence which it otherwise regarded as appropriate, but rather by the exercise of a general discretion to make an adjustment, bearing in mind the fact that remissions had previously led to a reduction in the length of sentence of the order of one-third. Now, the offence of importation committed by Roberts warranted a very long sentence of imprisonment. It was a serious instance, with a large quantity of a dangerous drug, of a very serious offence, carrying a maximum custodial penalty of life imprisonment. It was accordingly open to his Honour to moderate the s.16G adjustment as part of his instinctive synthesis: R. v. Majeric[168]. It follows that it cannot be said that his Honour failed to make the appropriate adjustment. This ground therefore fails.

500. On the first ground (parity with Mohr) it was pointed out that Mohr's plea of guilty was a late plea, occurring on the seventh day of hearing, and that her role was greater than Urbanec's in contacting her husband overseas in order to assist in making arrangements to advance the importation. His Honour had described her role as significant and essential, but Urbanec's as not essential, though useful. (It may be added that, as appears in paragraph [16] above, his Honour had spoken of Roberts as receiving considerable support and assistance from Mohr and some, but less, assistance and support from Urbanec.) Thus, Urbanec transmitted to Roberts in Benin only $900 in contrast to Mohr. He was not the instigator, main player or driving force in the importation. His practical participation was, his Honour was prepared to find, more that of a "gopher", a trusted and biddable gopher. Orally it was submitted that the only difference between the two offenders was Mohr's late plea of guilty. There was, therefore, it was submitted, a sound basis for him to receive a lower sentence than she did.

503. I have already, when considering Roberts' application, referred to his Honour's awareness of the differences in various factors as between the several co-offenders. I have also referred to some mitigating factors present in Mohr's case, namely, her plea of guilty, albeit late; her lack of prior convictions; her being drug-free at the time of sentencing; and her good prospects of rehabilitation. To those may be added the fact that at the time of offending she had a severe heroin addiction. That factor tending towards mitigation was not present in Urbanec's case.

506. On the contrary, Urbanec did not have the benefit of mitigation flowing from a plea of guilty, from evidence of remorse or from good prospects of rehabilitation. Rather, he had a prior drug conviction and in view of the last three matters his Honour found that specific deterrence was a relevant sentencing consideration.

509. His Honour was, I consider, entitled in his discretion to sentence Urbanec as he did, particularly because of the presence in the case of Mohr of the mitigating factors I have mentioned. This is not a case where the difference between the two sentences is manifestly excessive or such as to engender a sense of grievance that would be shared by an objective observer. This ground fails.

512. Under ground 2 it was submitted that, given the adjustment required by s.16G, the sentence would otherwise have been in the range of 13½ years, which was a sentence which the relatively minor role Urbanec played in being knowingly concerned in the importation did not warrant. The sentence imposed did not show that the required adjustment had been made.

515. Although Urbanec's role was much less important than that of Roberts, he was knowingly involved in the importation, which was a serious instance of a very serious offence. For similar reasons to those given on the corresponding ground taken by Roberts, the present ground fails. One particular argument for Urbanec, however, must be noted. This was that because his Honour relied only on R. v. Li he had not moderated the s.16G adjustment as authorised by R. v. Majeric. Although moderation will be progressively less significant as the starting point under consideration reduces, I am not persuaded that his Honour did not engage in some moderation. Alternatively, he made, as he was entitled to, an adjustment of rather less than one-third.

518. It was submitted under ground 3 (manifest excessiveness) that, having regard to Urbanec's limited role, 9 years' imprisonment was "just too much". As has been said many times, whether a sentence is manifestly excessive does not admit of much argument. The question is not whether the Court of Appeal would have imposed a

more lenient sentence, but whether the sentence in fact imposed was within the range open to the sentencing judge in the exercise of a sound discretionary judgment; for there is no one correct judgment in any given case. In my opinion, the sentence of nine years was within the range properly open to his Honour. In coming to that conclusion I have had regard to the maximum penalty for Urbanec's offence, to the paramount need for general deterrence, to the fact that, although his role was not very significant, he knowingly participated in and lent his assistance to a substantial importation of a baneful scourge of modern society, to the value of the cocaine, to the relevant prior conviction of Urbanec, and to the absence of mitigating factors such as remorse, plea of guilty and prospects of rehabilitation. This ground accordingly fails.

523. For the reasons I have given, I would dismiss both applications.

528. I agree with Batt, J.A. that each application should be dismissed for the reasons stated by his Honour.

533. I have had the considerable advantage of reading the draft reasons for judgment of Batt, J.A. For the reasons given by his Honour I agree that the applications should be dismissed.

[1] The 3 months' sentence on count 10 would presumably be served concurrently with the sentence on count 8 by operation of law: Sentencing Act 1991, s.16(1). The State offences were not "drug offences" and so not "relevant offences" for the purposes of Part 2A of that Act.

[2] Leave was actually given to add the ground that was stated in the notice filed on behalf of the applicant Roberts, which referred to count 3; but that was obviously a slip from a slavish copying of Urbanec's corresponding notice.

[3] In fact the total effective sentence was 6 years and 3 months.

[4] Omitting the helpful transcript references to rulings, discussion and evidence.

[5] So far as one or two facts stated may not be relevant to issues at the trial, they are relevant to the sentences imposed on the applicants, either directly or indirectly by reason of the parity grounds.

[6] Mohr was not, however, presented on a count of trafficking in cocaine.

[7] The Crown did not seek to lead evidence of the conversation as it was "off the record".

[8] In this case the colloquial use of this word does not have the connotation of concealment, for, according to Roberts' evidence (at T1558), he went with the person who called at his motel room to the rental car and placed the two paper bags in the car boot. In other words, the putative planting was leaving the cocaine with him in order that it might be discovered in his possession.

[9] [1993] VicRp 14; [1993] 1 V.R. 226.

[10] (1989) 10 N.S.W.L.R. 305.

[11] The precise purport of Roberts' evidence as to this, summarised in the text, is discussed in more detail later.

[14] R. v. Heatherington [1993] VicRp 46; [1993] 1 V.R. 649 at 654 per Marks, J.; affd. as Heatherington v. The Queen [1994] HCA 19; (1994) 179 C.L.R. 370.

[15] The court was not referred to any statement by his Honour as required by sub-s.(7), or any warning by him about the evidence of confession or admissions, but his Honour's reliance on sub-s.(5) was merely contingent upon his first two (or three) reasons being incorrect. In any event, no argument based on sub-s.(7) was, to my understanding, advanced, no ground of appeal relied on it and it was not suggested that any exception based on it had been taken.

[16] On the voir dire Firth's estimate was 20 to 25 minutes.

[17] At T761-763, as already indicated when concluding the outline of the Crown case against Roberts.

[18] The foregoing paragraphs contain only a bare summary of Firth's evidence, which was largely given under cross-examination.

[19] Essentially by sub-s.(2) as qualified by later sub-sections.

[20] Section 23A(2) and (3) of the Crimes Act 1914 made it clear that Part IC of that Act did not exclude or limit s.149.

[21] [1984] 1 Qd.R. 356, CCA, where in relation to a different Queensland provision Kelly, J. considered s.68(1) operated, whilst G.N. Williams, J. considered it was picked up by either s.68(1) of s.79.

[22] R. v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133 at 149.

[25] [1980] FCA 72; (1980) 31 A.L.R. 257 at 307, a judgment dissenting in the result.

[26] At (179 C.L.R.) 376-378.

[27] Having been remanded by a magistrate, he ceased to be treated for the purposes of Part IC as being under arrest: s.23B(3). But, as the parenthesis in the quotation in the text shows, that alone did not make s.23V(1) inapplicable.

[28] This appears from (179 C.L.R.) 371 and 372.

[29] For example, at (179 C.L.R.) 375.

[30] The requirement for recording in that section is excluded in relation to Commonwealth offences by s.23A(4).

[31] Heatherington v. The Queen (179 C.L.R.) at 376.

[32] Heatherington v. The Queen (179 C.L.R.) at 386 per Toohey, J.

[33] Questions 17 and 18 (and perhaps 6) refer to the 40 minute discussion, but they are purely administrative, not substantive or concerned with the merits. In any event Questions 17 and 18 obtained confirmation which was able to be recorded.

[34] Heatherington v. the Queen(´79 C.L.R.) at 381-2.

[35] [1988] HCA 56; (1988) 62 A.L.J.R. 656 at 666, cited with approval in The Queen v. Swaffield; Pavic v. The Queen [1998] HCA 1; (1998) 192 C.L.R. 159 at 174 and 189.

[36] Compare Van der Meer at 662 per Mason, C.J., cited in Swaffield at 174-175.

[37] [1970] HCA 21; (1970) 126 C.L.R. 321 at 335.

[38] However, the prosecutor's statement was qualified by the words "as things stand at the moment".

[39] However, the prosecutor used the words "for the time being" and said that he could not rule out a duty to call them "for cross-examination or other purposes" if circumstances changed.

[40] The transcript references given (T1014 and T1066) however, are to statements to this effect by counsel for Urbanec, albeit not dissented from by the prosecutor. But the prosecutor had much earlier (at T414) made a statement substantially to the same effect.

[41] What he said was: "I have never accosted anyone in my police career."

[43] Although at the time counsel said that his cross-examination was finished, there was a brief further cross-examination arising out of a document which counsel was handed by the prosecutor and which he was given a short time to peruse, during which time counsel for Urbanec sought to re-open his Honour's earlier ruling, as set out and discussed in detail later.

[44] [2001] VSCA 185.

[46] At T1068, 1070, 1073, 1074, 1198-1199 and 1204-1205.

[47] The outline for Urbanec refers, as did his counsel below, to 17 January 2000 as the date of purchase of the first large quantity of Sudafed tablets, but para.4 of the Summary of Evidence relating to Paton stated that the first _un_authorised purchase occurred on 9 May 2000. On the other hand, 28 October 1999 was the commencing date in the earlier of the two counts to which Paton ultimately pleaded guilty, though the earliest date in the counts to which Rosenes ultimately pleaded guilty was 9 December 2000.

[48] This ruling overtook a statement his Honour had made much earlier, at T365, before the benefit of argument and reflection, that he did not intend to prevent the leading of evidence of corruption.

[49] The word in the transcript is "contradicted", but that is clearly a slip.

[50] His Honour had earlier, at T848-9, 999 and 1049, raised the possibility of hearing a global objection on voir dire.

[51] There is a brief passing mention by Roberts of Rosenes' arrest at T1705.

[52] A matter drawn to his Honour's attention, and acknowledged, after the ruling, at T1066.

[53] (1992) 29 N.S.W.L.R. 95 at 104B.

[54] [1997] SASC 6091; (1997) 68 S.A.S.R. 227 at 235.

[58] (1981) 28 S.A.S.R. 134 at 142.

[59] (1990) 49 A.Crim.R. 105 at 109.

[60] [1991] 1 W.L.R. 207 at 216.

[61] [1935] A.C. 309 at 319-320.

[62] [1944] A.C. 315 at 323.

[64] [1990] HCA 23; (1990) 93 A.L.R. 79; as Wakeley v. The Queen; Bartling v. The Queen [1990] HCA 23; (1990) 64 A.L.J.R. 321.

[66] [1861] EngR 626; (1861) 1 B&S 311 at 329-330.

[67] [1983] VicRp 51; [1983] 1 V.R. 552 at 555-6.

[68] [1983] 2 V.R. 335; s.l.r. 155 C.L.R. 690n. In that case the original objection had been taken on oath, as the objections were taken here. It is unnecessary to consider the correctness of the respondent's suggestion that the statement in R. v. The Coroner; ex parte Alexander [1982] VicRp 73; [1982] V.R. 731 at 736 that the objection can be taken by the legal representative of the witness is doubtful.

[69] This section, not cited in argument so far as I am aware, but picked up as a surrogate federal law by s.68(1) or s.79 of the Judiciary Act, operates to limit the common law privilege to crimination for (as the section now stands) treason or an indictable offence (as is in question here): Attorney-General (Vic.) v. Riach [1978] VicRp 32; [1978] V.R. 301 at 308 (overruled in Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 C.L.R. 281, but not on this point). The origin of the section is discussed in the dissenting and only published judgment in Smith v. Powell [1884] VicLawRp 67; (1884) 10 V.L.R. (L) 79, which was commented on and, so far as it relates to interrogatories, overruled in Hughes v. Watson [1917] VicLawRp 63; [1917] V.L.R. 398. As to the interpretation of s.29, see Riach at 309. A portion of s.26 seems to look forward to s.29. Section 29 does not, it seems, apply in respect to collateral matters such as credit (which is what I consider is involved here): Cross on Evidence, 6th Aust. edn., para.[25170]. So s.26 may operate without restriction in such a case. Section 29 was picked up as a surrogate federal law, as stated at the commencement of this footnote, because it is a law either respecting the procedure for trial or relating to procedure or evidence. It is such a law even though the privilege is a fundamental common law substantive right (Reid v. Howard [1995] HCA 40; (1995) 184 C.L.R. 1 at 5, 8, 11-12 and 14), for, with due respect to ASIC v. Plymin [2002] VSC 56; (2002) 4 V.R. 168 at 171, the joint judgment in Reid v. Howard at 11 does not state that the privilege is not a matter of evidence or procedure, but that it is "not simply a rule of evidence" (emphasis added) .

[72] [1993] FCA 202; (1993) 42 F.C.R. 206 at 212-216.

[73] The further reason given by Spender, J., based on the words "might tend to incriminate" as opposed to "would incriminate", may not be applicable under s.29 of the Evidence Act as it requires the court to be of opinion that the answer "will tend" to subject to punishment the witness relying on the ground that the answer "may ... criminate". But it is to be noted that the court is only required to be satisfied of a tendency and also that, as already noted, s.29 may not apply to collateral matters. As already indicated, no argument based on s.29 was advanced for either applicant.

[74] [1995] HCA 40; (1995) 184 C.L.R. 1 at 14.

[75] [1993] FCA 375; (1993) 43 F.C.R. 594 at 595.

[76] (1995) 58 F.C.R. 1 at 16-17.

[77] (1997) 91 A.Crim.R. 526 at 528.

[78] (2001) 39 A.S.C.R. 443 at 467-468, paras.[109] to [112].

[80] (1991) 65 A.L.J. 412.

[82] [1996] QCA 27; [1997] 1 Qd.R. 429.

[85] In considering what I have called the second point the United States case law as to the effect of the invocation of the privilege by a prosecution witness (discussed in, e.g., McCormick on Evidence, 4th edn., vol.1, 526-527) is not of assistance as it turns on the Sixth Amendment American Constitution.

[86] Recent restatements of these rules, so far as material, are contained in Pollitt v. The Queen [1992] HCA 35; (1992) 174 C.L.R. 558 at 571 per Brennan, J. and Goldsmith v. Sandilands [2002] HCA 31; (2002) 76 A.L.J.R. 1024; 190 A.L.R. 370 at 371-2, paras.[2] and [3] per Gleeson, C.J. and at 377-378, paras.[31] and [32] per McHugh, J. Both of those cases refer to the definition of "relevant" in Sir James Stephen's Digest of the Law of Evidence, 5th edn., for instance, Art.1, p.2. which is set out in the text. See also Martin v. Osborne [1936] HCA 23; (1936) 55 C.L.R. 367 at 375, where, in a criminal case, Dixon, J. spoke, amongst other things, of "circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed".

[87] On this see especially Goldsmith v. Sandilands at 372, para.[3] per Gleeson, C.J. and at 378-379, paras.[32] to [39] per McHugh, J.

[88] [1989] HCA 50; (1989) 167 C.L.R. 590.

[90] Since the Summaries did not suggest any such acts, it is unnecessary also to express a view on a further question, referred to but not answered by his Honour, namely, whether evidence of subsequent misconduct was relevant.

[91] (1985) 28 A.Crim.R. 35 at 41, C.C.A. (Vic.).

[92] [1997] SASC 6091; (1997) 68 S.A.S.R. 227 at 243 (emphasis added).

[95] It was said for Urbanec that, had Rosenes been the accused, s.399 of the Crimes Act would have been invoked by the Crown.

[96] [1998] HCA 2; (1998) 193 C.L.R. 1 at 22-24, paras.[50] to [56]. His Honour repeated his view in Goldsmith v. Sandilands at 378-381, paras.[32] to [41].

[97] (1998) 100 A.Crim.R. 488 at 494-5, N.S.W., C.C.A.

[98] [2001] QCA 441; [2002] 2 Qd.R. 400 at 406, para.[14] and 413 and 414, paras.[42] and [45].

[100] Compare Martin v. Osborne at 375 per Dixon, J., though note R. v. Harmer at 41 (second para.)

[101] [1847] EngR 616; (1847) 1 Ex. 91 at 100 at foot, 101 at foot and 103.

[102] [1940] HCA 2; (1940) 63 C.L.R. 533 at 545.

[103] At 378, para.[35], per McHugh, J.

[104] At 409, para.[27] per Thomas, J.A., citing Wigmore on Evidence, Chadbourn Revision, Vol.3A, 1970, para.[956] at 802-803.

[105] [1991] 1 W.L.R. 207 at 215.

[108] [1990] 1 W.L.R. 587 at 591.

[109] (1981) 75 Cr.App.R. 79.

[114] His Honour seems at that stage to have been of the view that independent evidence of corruption could be led. Compare fn.[[].

[117] [1973] A.C. 388 at 401E-F.

[118] (1994) 34 N.S.W.L.R. 667 at 674G.

[119] (1978) 142 C.L.R. 1 at 46.

[120] (1983) 154 C.L.R. 404 and (1984) 154 C.L.R. 469.

[121] [1993] HCA 24; (1993) 176 C.L.R. 604 at 619-620.

[123] (1985) 59 A.L.R. 225 at 226.

[126] (1983) 154 C.L.R. 404 at 414; compare at 456-457.

[127] (1985) 3 N.S.W.L.R. 230 at 246G-248B, per McHugh, J.A.

[128] (1996) 86 A.Crim.R. 308 at 311-312.

[129] [2000] SASC 161; (2000) 112 A.Crim.R. 266 at 274-277.

[130] [1995] VicRp 5; [1995] 1 V.R. 84; compare R. v. Meissner (1994) 76 A.Crim.R. 81 at 85.

[132] At T359-360. Counsel had on the previous day of hearing indicated that he wanted to make an application for a stay. His Honour stated at T333 that he would entertain an application for a stay at any time.

[137] The affidavit refers to the last two sentences on p.14 of the written statement, but the second last sentence is an obvious explanation and the reference was, correctly, treated as referring to the last three sentences. The orders made by this court on the two mentions subsequent to the initial hearing enabled the parties to rely upon the affidavits filed in support of or in response to the applications to add the grounds now in question save, in effect, for newspaper articles.

[138] Ratten v. The Queen [1974] HCA 35; (1974) 131 C.L.R. 510 at 518-520.

[139] [1986] HCA 26; (1986) 160 C.L.R. 392 at 407.

[140] [1976] V.L.R. 244.

[141] [1998] 4 V.R. 394 at 400-401.

[142] See Gallagher v. The Queen [1986] HCA 26; (1986) 160 C.L.R. 392 and Mickelberg v. The Queen [1989] HCA 35; (1989) 167 C.L.R. 259.

[143] Summarised in para.[[].

[147] [1949] HCA 59; (1949) 79 C.L.R. 442 at 467.

[149] (1987) 45 S.A.S.R. 529 at 537. In the later case of Winslett v. The Queen (1992) 60 S.A.S.R. 1 the fresh evidence did not go merely to credit. Compare R. v. Zaidi (1991) 57 A.Crim.R. 189 at 193-195.

[150] As in Davies and Cody v. The King [1937] HCA 27; (1937) 57 C.L.R. 170.

[152] As regards Strawhorn, evidence could not have been led from Paton of Strawhorn's unsuccessful attempt to induce him to "plant" drugs on Fraser because, for the reasons already given, it would not have tended to prove the fact relevant to the fact in issue. However, on the highly dubious assumption that no claim of privilege against self-incrimination would have been made, it could have been put to Strawhorn in cross-examination. But, with some exceptions, Strawhorn's evidence in chief and in re-examination was limited to formal matters and information he received from subordinates (both of which were no doubt proved by others) and evidence which was also given by the witnesses whose credit was not in question, such as Sergeant Werts of the AFP, who (like Strawhorn) gave evidence of offering Roberts the opportunity of taking part in a controlled delivery to Fraser and of Roberts' declining to do so. Thus, even if, Strawhorn's credit were destroyed there would have been credible evidence on these matters. The exceptions mentioned, however, are Strawhorn's evidence that, so far as he was aware, Paton did not leave the motel bedroom they shared during the night Roberts and Brand were at the El Toro Motel, that Paton was still asleep when he, Strawhorn, awoke, that he, Strawhorn, did not see any luggage capable of holding the eight plaques and that he was not party to any arrangement with Paton or Rosenes or anyone else to deliver the plaques to Roberts for the purpose of his inveigling Fraser into the commission of an offence. Even if cross-examination of Strawhorn on Paton's statement would not have been objected to and would have led the jury to disbelieve Strawhorn on those topics, that would not have proved the opposite of Strawhorn's evidence on the topics (R. v. Brotherton at 104E-F, cited later) nor, for reasons to be given, would it have had any effect on the trial as a whole or its outcome.

[153] [2001] HCA 65; (2001) 184 A.L.R. 593.

[155] Even if this were correct and the ruling had been re-opened, the reasoning underlying the ruling would have required the same result.

[156] See, for instance, Lawless v. The Queen [1979] HCA 49; (1979) 142 C.L.R. 659.

[157] Using the historic present tense.

[158] Besides the matters enumerated above, counsel for the respondent also relied on the failure by Roberts on numerous occasions to inform police that he had been engaged by Rosenes to implicate Fraser in the importation of cocaine or to complain to any official about being "double-crossed" by Rosenes; but, since the present task is directed to consideration of what would have been the verdict of the jury had the fresh evidence been led, to rely on such failures seems to infringe the rule enunciated in Petty v. The Queen; Maiden v. The Queen [1991] HCA 34; (1991) 173 C.L.R. 95 at 99 that it should not be suggested in a criminal case that previous silence about a defence raised at trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. Contrary to the submission for the respondent, the source of the relevant pieces of evidence does not seem material. The rule was raised by the Bench.

[160] [1972] VicRp 46; [1972] V.R. 413 at 418 (3rd para.).

[162] R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 at 404; Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295 at 323; Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606 at 610, 613 and 623.

[164] By s.3 of and Item 1 of Schedule 3 to the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth).

[165] As in the immediately preceding footnote, save that the item in Schedule 3 is Item 2.

[167] [1998] 1 V.R. 637.

[168] [2001] VSCA 15; (2001) 121 A.Crim.R. 451 at 459. See also at 452.