Legal database - View: Cases: Duff v The Queen

Duff v The Queen
(1979) 39 FLR 315
28 ALR 663

(Judgment by: Brennan J, Lockhart J)

Between: Duff
And: The Queen

Court:

Federal Court of Australia General Division

Judges:
Brennan J McGregor J

Lockhart J

Subject References:
Criminal Law
Statutes
Evidence
Jury
Jurisdiction

Judgment date: 6 December 1979

Judgment by:
Brennan J
Lockhart J

THE COURT delivered the following judgment.

An indictment was presented in the Supreme Court of the Australian Capital Territory charging the appellant on four counts, namely, that he on or about 15th September, 1977, at Canberra:

(1): did attempt to murder Iqbal Singh an internationally protected person;
(2): did kidnap Iqbal Singh an internationally protected person;
(3): did kidnap Darshan Kaur Singh an internationally protected person;
(4): did break and enter the dwelling house of Iqbal Singh situate at 105 Endeavour Street, Red Hill . . . and then being therein did inflict grievous bodily harm upon the said Iqbal Singh.

To these charges he pleaded not guilty. His first trial aborted after twelve days when the trial judge found it necessary to discharge the jury. The second trial commenced before Connor J. and a new jury on 24th July, 1978. After a trial which lasted for twenty days, the jury returned their verdict. They acquitted the appellant on each of the counts in the indictment, but found him guilty of three offences which, according to the learned trial judge's ruling and direction to the jury, were alternative counts to the first three counts in the indictment. (at p319)

The appellant was convicted of the offences of attack on the person of Iqbal Singh, of attack on the liberty of Iqbal Singh and of attack on the liberty of Darshan Kaur Singh. These offences are created by s. 8(2) of the Crimes (Internationally Protected Persons) Act 1976. (at p319)

After the learned trial judge heard submissions on sentence, he remanded the appellant for sentence, and on 7th November, 1978, he imposed a sentence for each offence of three years imprisonment with hard labour and fixed a period of eighteen months as a period during which the appellant should not be eligible for parole. Under s. 19(2) of the Crimes Act 1914 (Cth.), his Honour ordered that the sentences of imprisonment be cumulative. The appellant appeals against his conviction for each offence and against the sentences imposed. The grounds of appeal are various. Their significance is better understood in the context of the case the Crown sought to establish at the trial. (at p319)

On the Crown case, Colonel Iqbal Singh was at all relevant times the military, naval and air adviser to the Indian High Commission in Canberra. He and his wife, Mrs. Darshan Kaur Singh, lived at 105 Endeavour Street, Red Hill. The Crown alleged that Colonel Singh and Mrs. Singh were internationally protected persons for the purpose of the Crimes (Internationally Protected Persons) Act 1976. At approximately 11 p.m. on the evening of 14th September, 1977, they went to bed in a room in which there was a large window opening to the front garden. There was a street light outside but its light filtered through curtains drawn across the window so that there was a "twilight effect", as Colonel Singh described it, inside the room. Close to the bed occupied by Colonel Singh and Mrs. Singh was another bed which was unoccupied. (at p319)

Colonel Singh went to sleep. He woke up with a very severe pain in the middle of his chest; he found a dagger there. He heard a muffled noise of footsteps getting away from his bed, and he saw his assailant across the other side of the unoccupied bed, looking down at him and covering him with a gun. A piece of material covered a part of the assailant's face. Colonel Singh could see portion of the gun. Colonel Singh began to talk in a conciliatory tone to the assailant, asking what he wished Colonel Singh to do. The assailant motioned to him to get out of bed, which he did leaving the dagger under the quilt. The assailant motioned for him to raise his hands. Mrs. Singh spoke to her husband in the Punjabi language but he cautioned her to speak in English. Then the assailant charged across the room and struck him in the stomach with the barrel of the gun. Colonel Singh fell to the floor; after a few seconds he got up. The assailant motioned for Mrs. Singh to get out of bed. She did so, asking if she could wear her thongs and shawl. Then the assailant searched in the bed for the dagger and, finding it, he put it in his jacket. (at p320)

Speaking very softly, the assailant asked for "car keys". Colonel Singh searched but could not find them. The assailant switched on the light in the bedroom but he stepped out into the darkness of the passage. The time was 1.45 a.m. When Colonel Singh found the keys, the light was switched off and Colonel and Mrs. Singh were motioned to move along the passage outside the bedroom. The assailant asked, "Are you injured?" and Colonel Singh replied "Yes". They came to the main door of the house and went out, down the steps, and to a garage. A small two-door car was in the garage. Mrs. Singh got into the back seat behind the driver, the assailant sat beside her, and Colonel Singh drove the car. The assailant pointed a dagger towards Mrs. Singh and the gun was held against the back of Colonel Singh. Colonel Singh drove by the directions of the assailant, and came along a road known as Mugga Lane towards its junction with the Monaro Highway, leading to Cooma. Colonel Singh was pressed with the gun, told to "get faster", and told to turn right at the junction. He decided to try to escape, and swung the car to the left. He grabbed the gun. The car left the road, ran through a depression and stopped opposite a tree. The light from the headlights was reflected from the tree and gave some illumination to the interior of the car. Colonel Singh wrestled with his assailant, to some extent got possession of the gun, unsuccessfully attempted to discharge it and was struck again by the dagger. He grasped the blade of the dagger with his right hand, noticing that his assailant was wearing a glove on the hand holding the dagger. Mrs. Singh was pinioned by the assailant, but she joined in the struggle with him. Mrs. Singh pulled the assailant's hair and bit his finger. Colonel Singh succeeded in grabbing the rifle, breaking the stock and then throwing it out. Eventually he also got rid of the dagger. The struggle continued, but after a time the assailant asked to be let go and said:

"I have got nothing against you. It is against your Government."

Colonel Singh opened the door, the assailant ran out and into the bush. During the struggle the assailant was unmasked, and his face was visible in the reflected light of the headlights. After the assailant ran away, Colonel Singh could not get his car to move. He ran, followed by Mrs. Singh, to a truck which they saw nearby. Ultimately, Colonel Singh was taken to Woden Valley Hospital where he remained for eight to ten days. (at p321)

On Sunday morning, 18th September, Sergeant Lack of the Australian Capital Territory police took a card of twelve black and white photographs and showed them to Mrs. Singh and then to Colonel Singh. The appellant's photograph, taken from a student's card, was among them. Mrs. Singh did not identify the photograph of the appellant as the assailant, though she described some features in various photographs as being those of the assailant. As Colonel Singh was examining the card, Sergeant Lack inquired whether any of the facial features of the photographs looked similar to the assailant. Colonel Singh said that he was confused, and that it was "difficult to pick up", but he identified some features of his assailant. He said:

"I picked up three or four photographs and I said, this photograph resembles the eyes. In this it resembles with the person's hair and this one, probably his beard and so on so forth. So I picked up three or four photographs and I pointed out to him the features that stood in my mind, I related those features with the photographs, well, one of them - if it is one of them - these are the people which stand out to me to be the likely person."

Among the photographs which he picked out was the appellant's photograph. (at p321)

The appellant, who had been employed at Dr. Barnardo's Homes was expected to be on duty on the morning of Thursday 15th September, 1977, but he did not appear. He had given no warning that he would be absent. On the following Sunday, 18th September, he arrived at Caloola Farm, about thirty kilometres from Canberra. He told a Miss Kuskie who was there that he had left his job at Dr. Barnardo's Homes and was hoping to get a ride to Queensland. He said he had hitch-hiked to the farm. That afternoon police officers arrived at the farm, and spoke to the appellant. At first he gave his name as Paul Kingsley but later agreed he was John Duff. He was taken back to police headquarters in Canberra and he was interviewed there by Inspector Brown. (at p321)

The Crown case against the appellant included a confession allegedly made by the appellant to Inspector Brown, and recorded by Sergeant Lack. Inspector Brown and Sergeant Lack each deposed that the appellant confessed that he had bought a rifle in a Sydney gun shop, using the name of Peter Jackson, that he had gone to Canberra, got a job at Dr. Barnardo's Homes, bought some ammunition, ridden a bike to near the Singh's residence and left it there together with a haversack containing some articles, entered the Singhs' house through a back window, gone into the bedroom, stabbed Colonel Singh, and put Colonel and Mrs. Singh in a car, and had driven off. He explained that he was a member of the Ananda Marga sect, that he engaged in this conduct as a means of attacking the Indian Government out of frustration at the Indian Government's inactivity, and that when he drove off with the Singhs he intended to hold them "for ransom . . . to exchange for Baba". (at p322)

Later that night, after 8 p.m., the appellant was placed in an identification parade of thirteen men at the Woden Valley Police Station. Colonel Singh identified the appellant as the assailant, but later Mrs. Singh selected another man from the line-up as the assailant. Sometime later that evening the appellant was formally charged. At about 11.48 p.m. he was examined by a Dr. Marsh who found a wound on a finger apparently some days' old consistent with his having been bitten and there were cuts and abrasions on his hands. (at p322)

There was other evidence upon which the Crown relied to prove that the appellant was the Singhs' assailant. Two footprints, corresponding in size, pattern and individual characteristics to the appearance of the soles of the gym boots worn by the appellant when arrested on Sunday, were found in the garden of the Singhs' residence on the morning of 15th September, 1977. A bicycle, which had been sold to the appellant by a Mr. Ludvigsen, was found leaning against a tree some half a mile from the Singhs' residence. Between the wheels of the bicycle was a rucksack, similar to the one which had been in the possession of the appellant on or about 11th September, 1977. In the rucksack a garter was found, similar to one which the appellant was found to have at Caloola Farm. The bicycle and rucksack were not there early in the evening of 14th September, but they were there early in the morning of 15th September. (at p322)

The rifle, which had been thrown out of the car before the assailant ran into the bush, was collected by Mrs. Singh and given to the police. It was identified as one that had been purchased some seven days before the occurrence by a person who called himself Peter Jackson but who was identified as the appellant, and it was established that the appellant travelled from Sydney to Canberra by air on the same day. There was other evidence that the appellant took out a shooter's licence for the rifle in the name of Peter Jackson. (at p322)

The central question in the trial was the identity of the assailant. The appellant neither gave evidence nor called others to give evidence, but he made a statement from the body of the court in which he denied that he was the assailant. He said:

"I was not the person that entered the Singhs' that evening; I was not the person who took the Singhs from their house and stabbed Colonel Singh. I did become involved with something I did not understand, with people I trusted. I did buy the gun and other equipment for them. I do not know how they were used or who used them in this attack. They got these equipments off me. When I heard about the attack I panicked and ran to the bush. I heard while I was there that the police had got most of this equipment and I did not know what to do so I stayed there in the bush for several days. When the police came to arrest me I was scared and I didn't want to be interrogated so I gave a false name. When I was on the way back from the farm to the police station I had time to consider what to do; so when the interrogation started, after a while of listening to Inspector Brown I decided to implicate myself in this crime. At that time I thought the cause was very important and this would be some positive step to get our cause publicity because at that time I thought that our leader was unjustly imprisoned in India. That has been so. So in the supposed confession, I may have said those things, I don't think so; not all of them. I knew about the gun and the other equipment, and if I had said those things I read it in the paper. Since being on remand I have had time to reconsider and talk to friends, and my parents and I do not want to be punished for these things, because I did not do them. I'm not afraid of going to gaol. I have done social work there and I know that I could handle it, but I do not think that I should be punished. In this Court, I have told the truth already and it has not been to any prevail (sic). I hope the jurors will be more successful. That is all I have to say." (at p323)

The appellant seeks an order:

"That the convictions on all counts be quashed. Alternatively that all convictions be set aside and a new trial be ordered upon each count limited to the counts upon which the appellant was convicted."

He seeks a particular order with respect to his conviction on the first count, namely:

"That the finding of the jury that the appellant was guilty of attacking the person of Iqbal Singh, an internationally protected person, be set aside and the conviction quashed."

JURISDICTION OF THE FEDERAL COURT (at p323)

The jurisdiction of this Court to hear appeals against judgments of conviction entered in the Supreme Court of the Australian Capital Territory is conferred by s. 24 of the Federal Court of Australia Act 1976, sub-s. (1)(b) of which provides:

"(1)

Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine-

. . .
(b): appeals from judgments of the Supreme Court of a Territory." (at p324)

A judgment is defined by s. 4 to mean "a judgment, decree or order, whether final or interlocutory, or a sentence" but the definition does not include a verdict of a jury. Although a verdict is not itself a "judgment" from which an appeal may be brought (Musgrove v. McDonald (1905) 3 CLR 132 ) an appeal lies from the judgment which is entered upon a verdict in a criminal trial (R. v. Snow per Gavan Duffy and Rich JJ. (1915) 20 CLR 315 , at p 361 ) unless it be a judgment of acquittal (Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) per Deane J. (1978) 38 FLR 397 ). (at p324)

The definition of the jurisdiction conferred by s. 24(1)(b) is expanded by ss. 27, 28 and 30. Section 28(1) specifies orders which the court might make "in the exercise of its appellate jurisdiction", and it confers upon the court power, inter alia, to: (at p324)

"(e): set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered; (at p324)
(f): grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial . . . . "

Before a new trial is ordered, the jury's verdict must, of course, be set aside, for:

"If the verdict stands, no other judgment can be given, and, therefore, the judgment which is given by the Judge appears to be the only act of the Court, and it is only against an act of the Court that an appeal lies. There is no other act of the Court; the verdict is not the act of the Court; the verdict is the act of the jury . . . " (Tronson v. Dent (1853) 8 Moo PC 419, at p 442; 14 ER 159, at p 168 cited and relied upon in Musgrove v. McDonald Musgrove v. McDonald (1905) 3 CLR, at p 144 ). (at p324)

The question whether there should be a new trial or not does not arise until a court of criminal appeal resolves, antecedently, to set aside the verdict and the conviction entered upon the verdict. It is only if the verdict is set aside that the question of ordering a new trial arises. Whether the power to grant a new trial is characterized as appellate or original jurisdiction (a question discussed in Commonwealth v. Brisbane Milling Co. Ltd. (1916) 21 CLR 559 ), the power falls to be exercised upon the setting aside of a jury verdict and the conviction recorded thereon (see, e.g., Ross v. The Queen [1957] AC 208 , at p 223 ). Indeed a jurisdiction to entertain any appeal from a judgment entered upon a jury verdict would not be useful unless there were power to set aside that verdict. (at p324)

In the Federal Court of Australia Act only s. 28(1)(e) confers an express power to set aside a jury verdict founding a criminal conviction. In the circumstances to which that paragraph is addressed, the power is necessarily to be exercised in order to clear the way to the entering of a substituted judgment. By necessary implication s. 28(1)(f) must be construed as conferring power to set aside the verdict of a jury in order to permit the issues to be determined by another jury on a new trial. Under s. 28(1)(e), this Court substitutes its judgment for the judgment of the Supreme Court; under s. 28(1)(f), it remits the matter for the judgment of the Supreme Court. In the former case, the prosecution is terminated by a judgment of acquittal or a judgment convicting the appellant of a lesser offence than the offence for which he was convicted in the Supreme Court; in the latter case, the prosecution is kept on foot so that the appellant must run the risk of conviction again in the ensuing trial. The power to set aside a jury verdict of guilty is necessarily implied in the grant of a power to set aside a conviction founded on it, for it would be anomalous to allow a verdict of guilty to stand, while the resultant conviction is set aside. (at p325)

The powers of a court of criminal appeal to set aside a jury verdict turn upon the statute creating the appellate jurisdiction (see Ratten v. The Queen per Barwick C.J. (1974) 131 CLR 510 , at pp 514-516 ). The Australian States adopted a common form statute governing appeals against criminal convictions. The common form follows an English paradigm, s. 4(1) of the Criminal Appeal Act, 1907: (at p325)

"The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted 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, and in any other case shall dismiss the appeal: (at p325)

"Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred." (at p325)

Although the common Australian form is not materially different from this provision, there used to be a difference between the powers of the English Court of Criminal Appeal and the powers of the Australian State Courts of Criminal Appeal. The English court was not given power to order a new trial, and the common form statute of the Australian States invariably granted that power: Western Australia: Criminal Code, s. 689 (introduced 1st January, 1912); New South Wales: Criminal Appeal Act of 1912, s. 8 (now Criminal Appeal Act, 1912, s. 8); Queensland: The Criminal Code Amendment Act of 1913, ss. 3 and 11 (now Criminal Code, s. 669); Victoria: Criminal Appeal Act 1914, s. 4 (now Crimes Act 1958, s. 568); Tasmania: Criminal Code Act 1924, s. 404; South Australia: Criminal Appeals Act, 1924, s. 6 (now Criminal Law Consolidation Act, 1935, s. 353). The difference in powers may have effected some variation in the practices of the Australian and English courts (see Davies v. The King (1937) 57 CLR 170 , at pp 179-181 ), but in all of those courts the appellate jurisdiction was exercised on grounds which were not narrowly confined. In more recent times, the English Court of Appeal has been granted power to order a new trial - in limited classes of cases by the Criminal Appeal Act, 1964, and more generally by the Criminal Appeal Act, 1968. In 1966, moreover, the Criminal Appeal Act of that year amended the appellate powers of the court, and that amendment has led to the exercise of even wider powers by the Court of Appeal and by judges presiding over jury trials: see Stafford v. Director of Public Prosecutions [1974] AC 878 ); R. v. Mansfield (1977) 1 WLR 1102 . (at p326)

Under the common form statute, the appellate jurisdiction may be exercised whenever the court is of opinion that a miscarriage of justice has occurred - "the greatest innovation made by the Act", as Isaacs J. said in Hargan v. The King (1919) 27 CLR 13 , at p 23 - and the grounds of appeal extend beyond the errors of law which, before 1907, founded the intervention of the Court of Crown Cases Reserved in England or the exercise of a like jurisdiction by Australian courts when a trial judge reserved a point of law for consideration (see Raspor v. The Queen (1958) 99 CLR 346 , at p 350 ). (at p326)

The statutory history of the jurisdiction in criminal appeals from the Supreme Court of the Australian Capital Territory is quite different from the statutory history of jurisdiction in criminal appeals in the Australian States or in England. Appeals from convictions entered upon jury verdicts in the Supreme Court of the Australian Capital Territory have not been governed by the common form statute, and miscarriage of justice is not to be found in terms in the statutory provisions which govern or which have governed appeals from criminal convictions in the Australian Capital Territory. (at p326)

At first, the Judiciary Act 1927 conferred original criminal jurisdiction upon the High Court in relation to the Territory of the Seat of Government, but s. 30B(4) of the principal Act (the Judiciary Act 1903) denied an appeal "except so far as, under the Constitution or the laws of the Commonwealth, an appeal may be brought to a Full Court of the High Court". We have found no reported instance of an appeal prior to the creation of the Supreme Court of the Australian Capital Territory pursuant to the Seat of Government Supreme Court Act 1933. Section 52 of that Act conferred an appellate jurisdiction upon the High Court in respect of convictions on indictment before the Supreme Court. Among the grounds of appeal specified in s. 52, in both its original and amended form (s. 52 of the Australian Capital Territory Supreme Court Act 1933, as amended in 1964) were grounds involving a question of law, a question of fact, a question of mixed law and fact and "any other ground that appears to the Full Court of the High Court to be a sufficient ground of appeal". (at p327)

The High Court also had power, pursuant to s. 36 of the Judiciary Act, to order a new trial when it set aside a conviction under s. 52 of the Australian Capital Territory Supreme Court Act (Sparre v. The King (1942) 66 CLR 149 ), and thus the statutory formulation of the appellate jurisdiction of the High Court provided for relief as ample as the relief available in the Australian States under their respective new trial provisions, upon grounds which were seemingly as broad as those contained in the common form statute. (at p327)

The grounds upon which the criminal appellate jurisdiction of the Federal Court might be exercised were not specified in the drafting of s. 24 of the Federal Court of Australia Act. Indeed, the nature of its appellate powers can be ascertained only by reference to other sections of the Act, especially ss. 27 and 28. Those sections make it clear that the appellate powers are not limited to the hearing and determination of an appeal in the strict sense. The power to draw inferences of fact and to receive further evidence (s. 27), the power to set aside a jury verdict (s. 28 (1)(e)) and the power to grant a new trial (s. 28(1)(f)) extend the powers beyond those which may be exercised on a strict appeal (see Musgrove v. McDonald (1905) 3 CLR 132 ; Commonwealth v. Brisbane Milling Co. Ltd. (1916) 21 CLR 559 ; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan (1931) 46 CLR 73 ). But the absence of specified grounds governing the exercise of the court's appellate powers marks a radical departure from the usual legislative provision creating a criminal appellate jurisdiction, in which:

"The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed" (per Dixon J., as he then was, in Grierson v. The King (1938) 60 CLR 431 , at p 436 ).

The statement of grounds is a logical step in the creation of criminal appellate jurisdiction, for an appeal is not a common law remedy, and grounds or principles must be established to govern the power to interfere with a verdict and judgment of the court of trial. (at p327)

Clearly enough, the grounds upon which this Court may exercise its powers are not restricted to those which govern the determination of a strict appeal, for the grounds must be appropriate to the appellate power the exercise of which is sought in the appeal. (at p328)

Where an application for a new trial is made, the grounds upon which new trials are granted after judgments entered upon jury verdicts govern the determination of the application. At common law, there was jurisdiction to grant a new trial after a conviction (R. v. Berger [1894] 1 QB 823 ), though the availability of the remedy was limited to some classes of convictions for misdemeanours (Stephen, H.C.L. i, 310; R. v. Bertrand (1867) LR 1 PC 520 , and see 84 Law Quarterly Review at p. 202 et seq.). The grounds available in applications for a new trial after a jury verdict are the grounds which are appropriate for consideration when an application under s. 28 (1)(f) is made. That paragraph empowers the court to grant a new trial "on any ground upon which it is appropriate to grant a new trial", and as that paragraph does duty for both criminal and civil appeals, it must be taken to refer to the grounds upon which the verdict may be set aside, and not merely to the considerations which a court of criminal appeal takes into account in electing between a quashing of a conviction simpliciter, and an order for a new trial. No doubt, when the court in a criminal appeal determines to set aside a verdict, the provisions of s. 28 (1)(f) then require that the grounds for election between the two courses be considered as a further question (see Ross v. The Queen [1957] AC 208 ; R. v. Wilkes (1948) 77 CLR 511 , at p 518; Reid v. The Queen (1979) 2 WLR 221 ), but the grounds to which the paragraph refers include the grounds upon which the court determines to interfere with the conviction. (at p328)

The appropriateness of the common law rules as to the granting of new trials appears implicit in the judgment of the High Court in Stokes v. The Queen (1960) 105 CLR 279 an appeal against a conviction on indictment before the Supreme Court of the Australian Capital Territory. The court (Dixon C.J., Fullagar and Kitto JJ.) wrote:

"In the end we think the decision of the application must depend upon the general rule that if an error of law or a misdirection or the like occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced the result a new trial need not be ordered. The rule applies, we think, in an appeal under s. 52 of the Australian Capital Territory Supreme Court Act 1933-1959" (1960) 105 CLR, at pp 284-285.

The "error of law . . . misdirection or the like occurring at the trial" is a reference to the variety of grounds upon which a new trial may be ordered, and the qualification to be found in the phrase "could not reasonably be supposed to have influenced the result" is a reference to the qualifying rule in the form in which it stood at common law, prior to the Judicature Act (see Balenzuela v. De Gail per Dixon C.J. (1959) 101 CLR 226 , at pp 234-235 ). (at p329)

The criteria for setting aside a jury verdict which are furnished by the new trial grounds are equally appropriate to govern the exercise of the power to set aside a jury verdict and to substitute another verdict under s. 28(1)(e). It would be anomalous if the grounds for setting aside a verdict and judgment varied according to the relief which was sought or allowed. In Stokes' case (1960) 105 CLR 279 the High Court thought it appropriate to apply the new trial grounds to all appeals under s. 52 of the Australian Capital Territory Supreme Court Act, not merely to applications for a new trial under s. 36 of the Judiciary Act. (at p329)

The grounds of appeal under the common statutory form (as to which, see Raspor v. The Queen (1958) 99 CLR, at pp 350-352 ; Plomp v. The Queen (1963) 110 CLR 234 , pp 244-247 ; Ratten v. The Queen (1974) 131 CLR, at pp 514-516 ; Driscoll v. The Queen (1977) 137 CLR 517 , at pp 524-527 ) are not to be taken as identical with the new trial grounds of appeal. The judgments of a court acting under the common form statute cannot be unquestioningly applied by this Court acting under powers differently formulated (see Ratten's case (1974) 131 CLR, at pp 514-516 ). (at p329)

As we earlier noted, the new trial grounds contain a qualification that, if the appellate court feels some reasonable assurance that the blemish at the trial could not reasonably be supposed to have influenced the result, the conviction under appeal may be allowed to stand. The qualifying rule and the proviso in the common form statute have a similar operation, for they avoid the need to quash a conviction whenever an error in the summing-up or in the admission or rejection of evidence or in procedure is established, whether the error be material or not; and they thus prevent the administration of the criminal law being "plunged into outworn technicality", as Barwick C.J. pointed out in Driscoll's case (1977) 137 CLR, at pp 526-527 . But unless an error cannot reasonably be supposed to have influenced the result, the conviction must be quashed. In this connexion, the well-known passage in the judgment of Fullagar J. in Mraz v. The Queen (1955) 93 CLR 493 , at p 514 refers to the burden which the Crown bears on appeal. Although the court was there construing the common form statutory proviso, his Honour's construction of the proviso accommodated the safeguards assured by the traditional precepts of the criminal law. The proviso, he said, "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. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried" (1955) 93 CLR, at p 514 . (at p330)

Irrespective of the differences between the grounds of appeal available under the common statutory form and those available on appeal from the Supreme Court of the Australian Capital Territory, the loss of a fair chance of acquittal as the result of an appealable error requires that the conviction be set aside, and the ultimate onus of showing that the error could not reasonably be supposed to have had that consequence is on the Crown (cf. Driscoll's case (1977) 137 CLR, at p 526 ). (at p330)

The grounds upon which a new trial may be granted after judgment entered upon a jury verdict are the grounds available to an appellant to this Court against a conviction after a trial on indictment before the Supreme Court of the Australian Capital Territory. (at p330)

The limit upon the grounds available may be of some significance in the present case, for it would not avail the appellant to persuade this Court to a view that it is unsafe or unsatisfying to allow a verdict of guilty to stand on the evidence of identification of the appellant as the assailant (Plomp's case per Dixon C.J. (1963) 110 CLR, at p 244 ) if the jury could properly have found the verdict, viewing the whole of the evidence reasonably and appreciating the onus and standard of proof (Raspor's case (1958) 99 CLR, at p 352 ).

PUBLICITY SAID TO AFFECT A FAIR TRIAL (at p330)

On 17th July, 1978, a week before the second trial commenced, an article titled "Cults: Paths of Violence" appeared in the publication Newsweek which circulates in the Australian Capital Territory. The article referred to the activities of the Ananda Marga sect, and included a paragraph in the following terms:

"During Sarkar's imprisonment, the Ananda Marga struck with particular zeal in several of Australia's major cities, even though the cult's supporters there number only 500. Blood was spattered on Air India offices in Sydney. A fire bomb partially destroyed the Indian Embassy in Canberra last December, and the Indian military attache was kidnapped and knifed by a self-confessed Marga disciple. In February, three people were killed when a bomb exploded outside a hotel in Sydney where Indian Prime Minister Morarji Desai was staying. Police discovered yet another bomb in the Indian Embassy last April." (at p331)

On 25th July, 1978, the very day on which the jury was empanelled, a report appeared in the Australian newspaper relating to the committal of certain persons associated with the Ananda Marga sect on charges of conspiracy to murder one Robert Cameron. The report also referred to evidence linking those persons with the bombing of the Hilton Hotel in Sydney in February 1978. The report contained no reference to the appellant or the offences with which he had been charged. (at p331)

On the same day there appeared in the Canberra Times newspaper in the section dealing with "Court Reports" an account of the committal proceedings in Sydney (although without any reference to the Hilton bombing) and below that account and under the heading "Second Trial Adjourned" there was a reference to the trial of the appellant in the following terms:

"The trial of Mr. John William Duff on charges arising from the alleged stabbing and abduction of the military adviser to the Indian High Commission in September 1977, was adjourned until today when Mr. Duff appeared in the Supreme Court of the Australian Capital Territory yesterday. (at p331)

"This followed discussions between Mr. Justice Connor and counsel for Mr. Duff, Mr. R. Gyles Q.C. (at p331)

"An earlier trial of Mr. Duff in May miscarried on the twelfth day after Mr. Justice Blackburn ruled that the jury had heard inadmissible evidence and should be discharged." (at p331)

Before the hearing began, Mr. Gyles applied to the learned trial judge for a stay of proceedings on the ground that there could be no fair trial at that time, and that it would be unreal to expect the jury to have the capacity to put these articles out of their minds. His Honour, refusing the application, said:

"It has been my experience that juries in this jurisdiction have been consistently and remarkably good on both counts, namely their ability to understand the issues and their ability to be fair and apparently, judging by results, to put out of their minds matters which appear to be prejudicial to the accused. It is my quite firm belief that, despite the matter which has appeared in these three publications, the accused can get a fair trial here. I think that a jury will be considering this matter finally in perhaps fourteen or fifteen days time, judging by the length of the last trial, and that certainly by that time, if not immediately, all the outside matters can be put to one side and just simply taken out of their minds." (at p331)

The members of the jury were not confined during the trial, and they had access to current newspapers. On 29th July, 1978, when the trial had proceeded for some days, an article appeared in the Sydney Morning Herald newspaper recording certain of the events in the committal proceedings in Sydney and towards the conclusion of the article, a paragraph appeared in the following terms:

"He thought he was in the confidence of the group and was well liked. They had told him about a job 'they were planning in Canberra, the Duff case'." (at p332)

The edition of the National Times newspaper for the week ending 5th August was published at some date prior to 31st July and contained an article relating, amongst other things, to the alleged activities of the Ananda Marga sect. It read as follows (in part):

"In late 1976, police arrested three Ananda Marga demonstrators outside the Indian High Commission in Canberra and charged them with assault. All were acquitted when a video tape of the incident overturned police evidence. (at p332)

"In August 1977, the Indian High Commission chancery in Canberra was burnt out, and the commission claimed it was the work of the Universal Proutist Revolutionary Federation (U.P.R.F.) which it regards as the political wing of the Ananda Marga. No charges have been laid. (at p332)

"In September 1977, it is alleged that Colonel Iqbal Singh, military adviser to the Indian High Commission, was stabbed and abducted in Canberra but fought his way free somewhere on the Cooma Road. John William Duff, a member of the sect, has been charged with this. His first trial in May was aborted over a technicality after twelve days hearing; his second trial began last week. (at p332)

"In October 1977, an employee of Air India was stabbed at his desk in Melbourne. The Indian High Commission claims it received a note from the U.P.R.F. claiming responsibility and demanding the release of Baba. No charges have been laid. (at p332)

"In all the catalogue of accusation against the sect - in the midst of which the Department of Immigration deported and banned the entry of Ananda Margis to Australia - the one police victory was a conviction and fine against a sect member for leaving a bloody pig's head on the counter of Air India's office in Sydney." (at p332)

Mr. Gyles applied for a discharge of the jury on 31st July, 1978, submitting that a fair trial could not be had because of the cumulative effect of the published articles and reports. His Honour refused the application saying:

"I think the application is entirely understandable and the concern of the accused himself and those advising him is understandable and real; and their concern is, I think, well based. I have to consider whether, in all the circumstances, I should discharge this jury and hope that another trial at some unnamed and presently unfixed time in the future will fare better than this one has, as far as newspaper reports are concerned. Of the five newspaper reports, only one is from a Canberra newspaper, and it was not suggested that it was an unfair report of the proceedings in Sydney. It was simply that it did draw attention to what was going on in Sydney and to the apparent connexion of the Sydney proceedings with Ananda Marga. (at p332)

"I have considered this matter with a considerable amount of concern myself and I have come to the conclusion for the reasons that substantially I set out on pp. 30 and 31 that the trial should proceed; but I propose, in this case today, after giving the matter some consideration, to grasp the nettle as far as the jury is concerned; and without intimating to them when they come back where the press reports are, to indicate to them nevertheless, in a general sort of way, what has been troubling me while they have been out, without conveying to them that this was an application made either by the accused or the Crown but simply conveying my own concern about the newspaper reports and again warning them of how essential it is for them to disregard them. I do not accede to the application to discharge the jury."

The appellant submits that his Honour erred in permitting the trial to continue. (at p333)

On each of the occasions when an application was made for the discharge of the jury, the learned trial judge was faced with the choice of delaying the trial in the hope that, when a third trial was held, any undesirable publicity would be forgotten, or continuing with the trial, trusting to the fairness and good sense of the jury not to be affected by any adverse article they had read or, for that matter, any adverse matter they had heard. The learned trial judge had no discretion to terminate the proceedings on indictment (R. v. Chairman of County of London Quarter Sessions; Ex parte Downes [1954] 1 QB 1 ) and he was not entitled to choose a course of indefinite postponement of the trial. If the trial were not to proceed when it did, it would have to proceed at some later time. The learned trial judge was right to pose the question whether to proceed was preferable in all the circumstances to adjourning to a later date. (at p333)

The possible effect on jurors of such articles must be assessed in the light of the times in which we live. We live in an age when television, motion pictures, radio and newspapers inform us of acts of violence and other notorious happenings within minutes of their occurrence in remote or proximate places. Some of the accounts are accurate and fair, others are not. It is wrong to assume that jurors do not have or will not exercise a critical judgment of what they see, read and hear in the media. That is not to ignore the power of the press, nor to deny that a press report may have "as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case", and thus be contemptuous (John Fairfax & Sons Pty. Ltd. v. McRae (1955) 93 CLR 351 , at p 370 ). When an adverse press report appears, a trial judge may sometimes have to take steps to eliminate or diminish the possibility of unfairness to an accused person. The discharge of a jury may be necessary in particular circumstances, but that would be exceptional. There is no criterion save that of doing justice to the best of the court's ability in all the circumstances. The learned trial judge gave careful and anxious consideration to the applications to stay proceedings and to discharge the jury. He applied his common-sense and considerable experience as a judge presiding over criminal trials in the Australian Capital Territory in refusing the applications, and in our opinion he reached the right decision. (at p334)

Even if we had been disposed to think that his Honour should have adjourned the trial again, his refusal to do so would not be sufficient by itself to warrant the setting aside of the conviction. An argument based upon press reports and articles does not touch the propriety of the proceedings before the court unless it may reasonably be thought that, on account of the publications, either the members of the jury were unable to do or they had not done justice according to the oath which they took. It is not sufficient to show that press reports and articles made it more difficult for the jury to do justice, nor is it a valid ground of appeal to show that the jury were required to do justice in difficult circumstances outside the court's control. The dictum of Lord Hewart C.J. which insisted on the importance of seeing justice to be done as well as justice being done (R. v. Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 , at p 259 ) does not prohibit a court from sitting, or necessarily require a court to defer sitting, to hear and determine matters which are committed to its jurisdiction. No doubt a judge presiding at a criminal trial may adjourn the trial to a later time in order to facilitate the performance of the jury's functions, but if he declines to do so after weighing the relevant factors - including the desirability of bringing criminal proceedings to a conclusion with a minimum of delay - an adverse verdict is not open to attack merely because the jury laboured under a difficulty engendered by adverse publicity. If it were otherwise, contemptuous publications would be effective invariably to delay, for a time or indefinitely, the proceedings to which they relate. In the present case, there is nothing to show that the members of the jury were unable to perform or did not perform their duty according to their oath.

CONVERSATION BETWEEN JUROR AND ASSOCIATE (at p334)

On the sixteenth day of the trial, a further application to discharge the jury was made. On this occasion, the incident giving rise to the application was a conversation between his Honour's associate and a juror. (at p334)

It came to his Honour's attention that on the night of Saturday 12th August, 1978, his Honour's associate and one of the jurors were present at the same private party at a house in Canberra. In accordance with current practice, the jury had been allowed to separate during adjournments of the trial. At the party, a conversation occurred between the juror and the associate. His Honour drew the attention of counsel for both parties to the matter, called his associate to give evidence and asked him to explain what had occurred. No questions were asked by either counsel of the associate. (at p335)

The evidence of the associate was that he did not know that the juror would be in attendance. At about 11 p.m. a man approached him and said "Hello, I'm not meant to speak to you". The associate thought he "let that pass", and found himself in a group of about five people, of which the man was one. The man said something to the effect that he had been in court. The associate did not appreciate at that time that the man was in fact a juror in the trial of the appellant. He believed that he was either a member of the legal workshop in Canberra or perhaps a member of the legal profession in the Australian Capital Territory. The man made some complimentary comments about the conduct of the case by defence counsel and then revealed the fact that he was a juror. The associate was surprised because he had not recognized him. They then spoke for about three or four, possibly five, minutes. The juror mentioned the time taken on a voir dire. The associate said, "It must be a bit hard when it is so disjointed", or words to that effect. The juror said that he and other jurors were looking forward to the receipt of their jury fees. One of the matters discussed concerned an incident that appears to have been regarded by everybody as amusing during the evidence of Colonel Singh, although the incident occurred at a time when the Colonel was being cross-examined on the critical issue of the identification of the appellant. (at p335)

His Honour said that he took the course of calling his associate to give evidence for the dual purpose of enabling counsel for the Crown and for the appellant to have a first-hand account of what took place and, secondly, so that it would be possible for a court of appeal to consider the material for itself if the occasion arose. Neither counsel applied to have called the juryman who had spoken to the associate. After the associate's evidence was given, counsel for the appellant applied to have the jury discharged. His Honour refused the application, saying:

"It is not a matter of central importance, but I think there is a matter that I should not put out of my mind when I am dealing with this application. We are now, I think, in the sixteenth day of the second trial, the first trial having aborted on the twelfth day, and the jury in the first trial having been discharged. It seems to me that that is a matter which could be taken into account properly if there were some doubt about the matter; but if there is evident necessity, which is the phrase which is used by courts in Australia and the United Kingdom - if there is evident necessity for discharging the jury, I should discharge them, irrespective of the unfortunate results caused by the length of the first trial and the length of this trial so far. (at p335)

"Having heard the account of what occurred it does seem to me to be innocuous; and having heard the account of what occurred I am not, myself, certainly, suspicious that there has been any interference with justice, nor that there has been any improper attempt to interfere with the course of justice; and considering the matter the best I can in the time and circumstances in which it has arisen, I am not of the view that there is any evident necessity to discharge the jury. It was an unfortunate incident. I am sure we would have all been far happier if it had not occurred; but I do not think that it calls for the discharge of the jury, and I therefore do not uphold the application."

His Honour's refusal to discharge the jury on this occasion was taken as a ground of appeal. In Trewartha v. Confidence Extended Co. N.L. (1906) VLR 285 Holroyd A.C.J. delivering the judgment of the Full Court (Holroyd A.C.J., Hood and Cussen JJ.) said:

"It is highly desirable, and it has always been so considered, that not only should justice be administered purely and without any actual bias on the one side or the other on the part of the tribunal which hears the case, but further that no reasonable ground of suspicion should be allowed to arise as to the fairness of that tribunal. It is very desirable . . . that during a trial by jury, none of the jury should converse with anybody except their fellow-jurymen on the subject of the case" (1906) VLR, at pp 288-289.

This passage was cited with approval by the Full Court of the Supreme Court of Victoria in R. v. Hodgkinson (1954) VLR 140 . Barry J., in delivering the judgment of the Full Court stated the test for determining the course to be followed, when an irregular contact with a juryman occurs, in these terms:

"We must, therefore, make up our own minds whether the incident was of such a character that, if the verdict is allowed to stand, justice would not appear to be done or that the incident was likely to give rise to a reasonable suspicion concerning the fairness of the trial.

. . . For a policeman, and a policeman who has himself given evidence, to speak with the foreman of a jury before verdict is not only indiscreet, but is calculated to raise suspicion in the mind of the ordinary bystander. In addition, though the question asked and answered may have been harmless, it is possible it may not have been" (1954) VLR, at p 144 . (at p336)

In R. v. White (1969) SASR 491 a conversation took place between the Crown Prosecutor and a juryman during the luncheon interval on the last day of the trial. The juryman, passing the Crown Prosecutor outside the court house said, "Good afternoon, nice day", to which the Crown Prosecutor replied, "Yes". The Full Court of the Supreme Court of South Australia (Bray C.J., Chamberlain J. and Zelling A.J.) said:

"We realise that it is of the utmost importance that justice must not only be done but be seen to be done, and that such a conversation as deposed to by the juryman could easily arouse suspicion in anyone who saw it without hearing it, and particularly in the accused. But now that its innocuous nature has been made plain it would be utterly unreasonable for any such suspicion to remain. It would have been better if the juryman had not addressed the Crown Prosecutor but he may well have failed to appreciate that and the Crown Prosecutor could scarcely be expected to avert his gaze or pretend not to hear. If instead of the monosyllabic, 'Yes', he had addressed an explanation to the juryman about the impropriety of such a conversation the incident would have been prolonged and the applicant's suspicions intensified. If authority is needed for the refusal of the Court to interfere in these circumstances when it is apparent that nothing happened which could conceivably have caused any prejudice to the applicant, it will be found in the case of R. v. Twiss [1918] 2 KB 853 . But, of course, it is much better if jurymen refrain from speaking at all to counsel, witnesses or anyone else concerned in the case until after it is over" (1969) SASR, at p 493.

R. v. Twiss was another case where a juryman's conversation did not warrant the setting aside of a verdict of guilty. At the trial, after the judge became aware of the juryman's conversation, he decided that the case ought to proceed.

His view was upheld by the Court of Criminal Appeal who answered in the negative the question which they posed in this way, "whether what the juryman did was of such a character as to lead us to think that there may have been an injustice done to the prisoner" (1918) 2 KB, at p 589 . (at p337)

Subject to a qualification presently to be mentioned, that test is consistent with the judgment of Griffith C.J. in David Syme & Co. v. Swinburne (1909) 10 CLR 43 :

"The matter is now put forward as misconduct on the part of a juryman. That under some circumstances may be a ground for a new trial, but the granting of a new trial on that ground is discretionary: Morris v. Vivian (1842) 10 M & W 137; 152 ER 414 , and a new trial is granted only because there is reason to believe that the course of justice has been substantially affected" (1909) 10 CLR, at pp 52-53.

His Honour was there concerned with a new trial application made after the Judicature Act, and his language reflects the onus which an appellant bears in civil proceedings. In these proceedings, the qualifying rule is whether an irregularity in the trial could not reasonably be supposed to have influenced the result. (at p337)

Griffith C.J. was looking to the effect which an irregular contact with a juryman may have had upon the result, and it is the possibility of an effect upon the fairness of the trial which attracts the court's attention. Irregular contacts between a party and a juryman are of particular concern (per O'Connor J. in David Syme & Co. v. Swinburne (1909) 10 CLR, at pp 63-64 ) but no question of that kind arose here. In the present case, there was little to suggest that contact with the juryman was capable of affecting the fairness of the trial. (at p338)

The appearance of the chance meeting at a private party would not by itself give rise to a reasonable suspicion as to the fairness of the trial. Nor could the ensuing conversation give rise to a reasonable suspicion of an improper extra-curial communication with a juror once the circumstances and terms of the communication were disclosed. The disclosure was prompt, complete, satisfying and unchallenged. The evidence revealed an innocuous exchange of pleasantries. The associate told his Honour of the conversation and disclosed the conversation in evidence. Suspicion of an improper communication is disarmed by the candour and terms of the disclosure, and it would be "utterly unreasonable for any such suspicion to remain". As Isaacs J. observed in the course of argument in David Syme & Co. v. Swinburne:

"If after examination of the facts the Court thinks that there is a suspicion of unfairness there should be a new trial, but not if the suspicion is wiped away" (1909) 10 CLR, at p 47.

Suspicion was entirely wiped away, and this ground of appeal also fails.

OBJECTION TO IDENTIFICATION EVIDENCE (at p338)

Although no objection was taken to the admission of the evidence relating to the showing of photographs to Colonel Singh on the Sunday morning, an objection was taken to evidence of identification by Colonel Singh of the appellant at the identification parade held at the Woden Valley Police Station after 8 p.m. on that day. Colonel Singh also identified him in the court room before the jury. The evidence given by Colonel Singh as to the identification parade was as follows:

"I looked at each person and applied the visuals and images that I carried of the person, then I saw them from the back, saw them from the sides, and I was requesting the police officer who was conducting this for all this. And after some time, having applied the visuals and images that I had, having seen each person's style of standing, hair, build, nose, face, back, side, side-burns, etc., I after some time was able to more or less feel certain that I identified the person. Then to finally make it sure I requested the police officer to ask all the witnesses to say something and he asked me what I would like them to say. Then I said - I picked up a sentence which had earlier transpired between me and this person, that is: 'I have got nothing against you.' Each man repeated the sentence. I listened to that carefully. After that I again had a look at each person from all directions and when I was sure towards the end of the identification parade I told the officer that I would like to place my hand on the person whom I think and I would identify as the person who did all this to me. My chair was wheeled and I put my right hand onto the left-hand shoulder of this person."

That person was the appellant. One of his grounds of appeal is that the evidence as to his identification by Colonel Singh at the identification parade should not have been permitted to be given, and that the learned trial judge erred in "not adequately or at all warning the jury of the danger of accepting such evidence".

The objection so taken was extended in argument to embrace an objection to the court room identification. (at p339)

At the trial, counsel had taken an objection to this evidence and the learned trial judge received evidence on a voir dire in advance of its being tendered before the jury. In ruling to admit the evidence, his Honour said:

"From the evidence which has been placed before me on the voir dire I have come to the conclusion that it would be open to the jury to find that the showing of the photographs only ten hours before the parade rendered the subsequent identification of little, if any, value. I think it would also be open to the jury to find that the showing of the photos did little if anything to detract from the probative value of the identification; and of course, it would be open to the jury in my opinion to take a view somewhere in between the possible findings I have just mentioned. In short, I think it is almost classically a jury question which can and should be left to the jury, with an appropriate direction."

The appellant's arguments in support of this ground of appeal encounter some formidable obstacles. The appellant must show that the reception of the identification evidence before the jury was erroneous; it is not sufficient to show that a conviction based on that evidence is unsafe or unsatisfactory. This Court is not exercising appellate jurisdiction under the common form statute which has been the statutory context of much of the case law on identification evidence. In Davies v. The King (1937) 57 CLR 170 the High Court pointed to the foundation of the jurisdiction to intervene. They noted that the Court of Criminal Appeal in England "will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.

This is the basis upon which the English court has set aside convictions resting upon identification conducted in an unfair or unsatisfactory manner" (1937) 57 CLR, at p 180 . (at p339)

Armed with wide powers of intervention, courts of criminal appeal have laid down some rules of practice to be followed when a suspect is to be identified, and they are empowered by the common form statute to make those rules effective. But it does not follow that the rules of practice are transformed into rules of law; rather do the rules of practice acquire such force as the court of criminal appeal chooses to give them. Thus in Davies' case, the High Court applied the English practice to Victoria when it said:

"We think the view accepted in England and, as far as we know, elsewhere in the Dominions where the provisions of the Criminal Appeal Act have been adopted, should be applied in Victoria. That view, as we understand it, is that, if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe" (1937) 57 CLR, at p 182.

If it be material to our decision, it may be noted that in the present case the appellant was not shown alone and other evidence tended to prove his identity with the assailant. (at p340)

It is not sufficient for the appellant to show that his conviction was "unsafe" as that term is used in Davies' case. Narrower grounds must be relied on, and it must be shown that the identification evidence was inadmissible or that a judicial discretion to reject the evidence miscarried or that the summing-up was inadequate. An early example of evidence being given of out of court identification is to be found in R. v. Blackburn (1853) 6 Cox CC 333, at p 338 . Examples of the receipt of evidence of identification parades may be found in R. v. Preston [1909] 1 KB 568 and R. v. Osbourne [1973] 1 QB 678 . Whatever be the logical foundation for receiving that type of evidence its admission has long been the established practice of the courts (R. v. Fannon and Walsh (1922) 22 SR (NSW) 427, at p 431 ). In Craig v. The King (1933) 49 CLR 429 , at p 440 and Raspor v. The Queen (1958) 99 CLR, at p 349 the High Court raised no question as to the admissibility of such evidence. (at p340)

The discretion to reject admissible evidence of identification requires an evaluation by the trial judge of the probative force which a jury might reasonably attribute to the evidence if it be admitted (R. v. Christie [1914] AC 545 , at p 559 ). The circumstance which was relied on as depriving the challenged evidence of probative force was the supposed predisposition of Colonel Singh to identify at the parade a person whose photograph had been shown to him that day. Although the appellant's photograph had been shown to Colonel Singh together with others, his was the only face to be seen in both the photographs and the identification parade. And thus, so the argument runs, the risk of a subconscious disposition to identify the features common to both displays makes the evidence of the identification parade dangerous to place before the jury. Such evidence, it is said, was highly prejudicial, but so unreliable as to be without probative force. That there was an arguable risk of a subconscious disposition to identify the appellant may be allowed for the purpose of the present discussion, but the risk was not so grave that the admissible evidence of identification should have been withdrawn from the jury. (at p341)

We agree in the estimate which the learned trial judge made of the range of opinions to which the jury might properly come if left to consider in isolation the weight of the evidence as to the identification parade. They were entitled to give that evidence great weight or little weight, according to their opinion of the opposing arguments. It should not be forgotton that Colonel Singh had seen his assailant in the "twilight" of the bedroom (though the assailant then had some material over part of his face), in the rear vision mirror of the car, and from various angles in the course of the struggle in the car when light was reflected from the tree in front. It would be an erroneous exercise of discretion to reject evidence on the ground that a jury might reasonably give different weight to challenged evidence from the weight which the judge would give it. In the circumstances of the present case, the probative effect of this evidence was pre-eminently a matter for the jury, and it was right to leave evaluation of the evidence to them (cf. Sinclair v. The King (1946) 73 CLR 316 ). (at p341)

Next it was argued that the summing-up was defective in that the learned trial judge merely recited as counsel's views the arguments against according weight to the identification evidence. It was rightly submitted that the warning to be given to a jury as to the dangers of acting upon identification evidence should be given with judicial authority. And so it was. The learned trial judge gave to the jury an appropriate and clear warning that they should examine very closely the circumstances in which any identification was made. It was in the light of that clear warning that the learned trial judge reminded the jury of the submissions which counsel had made on the matter of identification. He reminded the jury of the arguments put to them in terms to which counsel took no objection either at the trial or before us. There was nothing more which his Honour might have been required to do. He was not required, having regard to the evidence, to adopt counsel's arguments as his own. The terms in which a warning is to be given turn upon the circumstances of the case (see R. v. Goode (1970) SASR 69 ). In the present case, it was prudent to warn the jury of the need for careful scrutiny of the evidence, and it was useful to remind them of the arguments as to whether or not the identification might have been mistaken. That warning was given. This ground of appeal fails.

ADMISSION OF CONFESSION (at p342)

The next challenge to the admission of evidence related to the confession allegedly made by the appellant to Inspector Brown on the Sunday afternoon. This confession was of significance in the Crown case. The admissibility of the confession depended upon the provisions of s. 68 of the Evidence Ordinance 1971, sub-s. (1) of which provides:

"Subject to the next succeeding sub-section, a confession or admission made by a person charged in a criminal proceeding is not admissible in evidence against that person unless it was made voluntarily by that person." (at p342)

Section 68 departs from the common law in not excluding all involuntary confessions. Subsection (2), the dominant subsection, provides:

"A confession or admission tendered in evidence against the person charged in a criminal proceeding shall not be rejected only on the ground that a promise, threat or other inducement (not being the exercise of violence, force or other form of compulsion) has been held out to or exercised upon the person making the confession or admission, if the judge is satisfied that the means by which the confession or admission was obtained were not in fact likely to cause an untrue admission of guilt to be made."

That provision is similar to s. 141 of the Evidence Act 1928 (Vic.) which was considered by the High Court in Cornelius v. The King (1936) 55 CLR 235 and in R. v. Lee (1950) 82 CLR 133 . In the Victorian Act, however, the condition upon which an involuntary confession might be admitted was expressed in terms different from those in s. 68(2) of the Evidence Ordinance. The Victorian condition reads "unless the Judge . . . is of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made". "Calculated" may be taken as synonymous with "likely" (see Cornelius' case (1936) 55 CLR, at p 246 ) and there is no distinction to be drawn from that difference in language. The purpose of enacting s. 68(2) of the Ordinance is the same purpose which the Parliament of Victoria had in enacting s. 141 of the Evidence Act, and which the High Court described in Lee's case:

". . . the common law took an extremely wide view of what constituted a threat or promise . . . in that case the Court rejected the argument for the prisoner that the ground of excluding statements made to a person in authority after a threat or promise was that the law in such a case presumed the statement to be untrue, or at least to be probably untrue.

The Court declined to adopt the principle that the ground of exclusion was that a statement made in such circumstances could not be relied upon, and it was held that the ground upon which such confessions were to be rejected was that it was supposed that it would be dangerous to leave such evidence to the jury. It is this principle which has been deliberately altered by the Parliament of Victoria in s. 141 of the Evidence Act 1928. That provision adopts, in cases of threats and promises which would have led to the exclusion of a confession at common law, the criterion that such a confession is not to be rejected as evidence merely on the ground of a preceeding or concurrent threat or promise unless the judge is of opinion that the threat or promise 'was really calculated to cause an untrue admission of guilt to be made'" (1950) 82 CLR, at pp 147-148 . (at p343)

Subsections (1) and (2) create a statutory code covering the admissibility of confessions which are alleged not be voluntary by reason of their having been obtained by a promise, threat or other inducement (cf. Lee's case (1950) 82 CLR, at p 150 ). The question of admissibility of such confessions is governed primarily by the provisions of sub-s. (2), for it is in that section that the criteria for admitting or rejecting such confessions are to be found. (at p343)

We need not pause to inquire whether there is any distinction in onus of proof to be apprehended from the difference between the phrases "if the judge is satisfied" and "unless the judge is of opinion", (as to which see R. v. Douglas (1962) NZLR 1117 ). It is clear that the former phrase, in its context in s. 68 of the Evidence Ordinance, places upon the Crown the onus of satisfying the judge that a confession which sub-s. (1) would prima facie exclude should be admitted. It seems that the draftsman of the Ordinance, wishing to clarify any doubt as to where the onus lay, chose the New Zealand formulation of the section. There is no difficulty, therefore, in casting upon the Crown the onus of establishing that a confession which is alleged to be involuntary because of a threat, promise or inducement is admissible either because it does not fall within sub-s. (1) or because it does fall within sub-s. (2). (at p343)

It was argued that the Crown could not discharge that onus unless the precise means by which the confession was obtained were identified, else how could the likely effect of those means be ascertained? And if the likely effect of those means could not be ascertained, the onus of satisfying the judge of the matters referred to in the condition specified in sub-s. (2) could not be discharged. This argument arose because his Honour, after hearing evidence on a voir dire extending over seven days, found himself unable to make a finding as to whether the confession was voluntary. Before considering the argument, the appellant's evidence on the voir dire and his Honour's findings should be mentioned. The Crown led evidence from a number of witnesses including Inspector Brown and Sergeant Lack, and the defence called the appellant and other witnesses. (at p344)

The appellant did not purport to recollect either all the details of the conversation which he had with Inspector Brown, or the order in which that conversation took place. He said "I have got high spots" by which he meant parts of the conversation had stayed in his memory. He said that Inspector Brown told him that he did not think that the episode concerning Colonel Singh "was a crime but an act committed by a person who had ideals or genuine grievances or something like that". The appellant says that some converstion followed with respect to the Ananda Marga and the frustration about the Government of India being so slow to act in the matter of the release of Baba, the leader of Ananda Marga. The appellant said he was not sure what Inspector Brown was getting at but "he placated me in a way and said not to worry . . .". He said that after a further placatory conversation Inspector Brown had told him that "there were men in the station, (who) wanted to do this the hard way but he (Inspector Brown) did not want to see that because he had already said that he thought I was a sincere person and that that should not happen, or something like that". The appellant deposed to his understanding that Inspector Brown thereby made a "threat of some violence against me if I did not talk". The appellant also deposed that Inspector Brown had said to him:

"How would it look if you changed your story after talking to the other guys in the cells, on remand? It would look like you just concocted a story."

It was submitted that this could be taken to be an implied threat of detention (a submission which the learned trial judge accepted for the purpose of his ruling), or to be an implied threat that it would be the worse for the appellant when he got to court if he had refused to speak. The appellant also said that after Inspector Brown mentioned the evidence which the police had against him, he made a statement.

Though he did not accept all of the Crown evidence as to what he said, the statement then made was the confession on which the Crown relied. The relevant passage of his evidence which describes the alleged conversation immediately before he made the statement is as follows:

"Q.: Well, do your best to recall what he said?
A.: He said that I'd been recognized by the owners of a gun shop in Sydney as buying a .22 rifle. He said that the blood that was on my - there was blood on my parka and it had been analysed or something like that as Colonel Singh's; that the bike out - that had been left outside the Singhs' place had been identified as being mine or as having been sold to me; that the bag that was left with it had been lent to me or given to me or something like that. I think that was about all the evidence I can remember.
"Q.: Yes, and then what happened?
A.: Well, I replied something like that - that seems like a lot. Then I asked him what he wanted to know. That's when I asked him what he wanted to know.
"Q.: And then what did he say?
A.: He said something like, 'I'll get Sergeant Lack in here to take notes. We'll go through the evidence bit by bit and you can reply to each of the articles.'
"Q.: Did Sergeant Lack - I withdraw that. Was Sergeant Lack in the room at that stage?
A.: I think he came in then or just before that.
"Q.: And did he commence to write notes?
A.: Yes, he sat - I was facing Inspector Brown across the table and he was - and Sergeant Lack sat on the other side of the room and he then commenced taking notes as we went through the . . .." (at p345)

There was no examination of the appellant as to whether the confessional statement was true nor was any cross-examination directed to the truth of the confessional statement permitted. (at p345)

At the end of the evidence given on the voir dire, his Honour said:

"In the end, I regret to say that after a voir dire lasting seven sitting days, during which there has been a great deal of evidence, I have to decide the matter of voluntariness of the admissions on the onus of proof. I am not satisfied on the balance of probabilities that the admissions were made voluntarily by the accused. I have therefore to consider the application, if any, of s. 68 (2). (at p345)

"There is no suggestion or allegation that there was any exercise of violence, force or other form of compulsion in association with the obtaining of the admissions; nor was it suggested that the accused was not in a fit physical or mental state to be questioned, or that he was questioned for an unreasonable length of time. The only matters which could have rendered the admissions involuntary were promises, threats or inducements of some kind. Although the accused was unable to recall the whole of the conversation, he said he could recall certain high spots, as he described them, and I think it probable that any promise or threat or any other inducement which was likely to cause him to make untrue admissions would be something he would remember." (at p345)

His Honour rightly placed the onus of satisfying him of the matters referred to in the latter part of s. 68 (2) upon the Crown, and he found:

"After considering the salient portions of the accused's version of the unrecorded part of the conversation which preceded the recorded part of the conversation, although I am not satisfied that the statement was voluntary, I think it probable that on the accused's own version of the matter the means by which the admissions were made were not in fact likely to cause the accused to make an untrue admission of guilt. The evidence of the accused is that he is unable to recall the conversation completely, but, as I have said, I think it unlikely that he would not remember any relevant promise or threat or other inducement which might have been held out to him." (at p346)

His Honour considered the several matters referred to by the appellant in his evidence, including the alleged threats of violence and of detention and the impact of showing the appellant the articles which the police had found. As to the alleged threat of violence, his Honour said:

"I am unable to make any finding as to whether the threat of violence was made, or if made, in precisely what form it was made. Because I cannot exclude it I have said that I am not satisfied that the admissions were made voluntarily; but if it were made it was not, on the accused's account, a direct or immediate threat. It was not referred to again, and in fact there was no violence. If it were made I do not think it would have caused the accused to make an untrue admission of guilt at that stage."

As to the implied threat of detention, his Honour said:

"This is a somewhat garbled account which is not easy to follow. There may be some suggestion that Inspector Brown was holding out some kind of threat of detention to the accused. I think, however, that it would have been apparent to the accused at this stage, whether he made admissions or not, that he was likely to be detained and charged with offences, and that for some period he would be on remand. I do not think that this would have caused him to make an untrue admission of guilt."

And as to the impact of showing the appellant the articles discovered by the police, his Honour found:

"It appears to me that on the accused's own version, the turning point came when he was confronted with certain objects and told of certain evidence. I am unable to see how this was in fact likely to cause an untrue admission of guilt. If the accused was in a position to explain away this circumstantial evidence, I think the fact that it was drawn to his attention would have been likely to cause him to seek to exculpate himself rather than to make an untrue admission of guilt." (at p346)

The challenge to his Honour's findings and his application of s. 68 falls into several parts. First, it was said that the evidence on the voir dire was such that his Honour should have found that the police evidence was false, and that its very falsity, in the circumstances of conflict on the voir dire, coupled with the evidence given by the appellant, should have led to a positive finding that the confession was involuntary. Further, the appellant challenges the rejection by the learned trial judge of the evidence of Mr. Ludvigsen, whose evidence the appellant wished to call on the voir dire. Next, the argument fastens upon his Honour's inability to find a particular promise, threat or inducement and the consequent inability - so the argument runs - to predicate of an indentified promise, threat or inducement that it was not in fact likely to cause an untrue admission of guilt to be made. Alternatively, it was submitted that the learned trial judge was wrong in finding that the matters alleged by the appellant, if they had occurred, were not in fact likely to cause an untrue admission of guilt to be made. Finally, it was submitted that his Honour should have rejected the evidence in the exercise of his discretion. (at p347)

As to the first part of the argument, there was direct evidence by Inspector Brown which denied any impropriety. There was evidence either way as to whether a threat, promise or inducement was made and his Honour's inability to make a positive finding cannot be disturbed on appeal. During the voir dire, and before this Court on appeal, considerable attention was given to the time when the appellant was apprehended on the Sunday afternoon, 18th September, 1977. The police evidence put the time of his apprehension at Caloola farm much later than the time for which the appellant contended, and the divergence in the evidence was relevant to the issue whether a conversation had occurred between Inspector Brown and the appellant before the confession was made, a conversation in which a threat, promise or inducement had been made by means of which the confession had been obtained. There was evidence either way as to the time of the appellant's apprehension, but the evidence which supports the appellant's version is not so compelling as to require a positive finding as to the time when he was apprehended, much less to require a positive finding that a threat, promise or inducement was made. The first part of the argument fails. Next is the challenge to the rejection of the tender of the evidence of Mr. Ludvigsen. This evidence, if admitted, was intended to support the appellant's allegations. The nature of that evidence is evidently to be gleaned from counsel's cross-examination of Inspector Brown. Counsel had put to Inspector Brown that he had interviewed Mr. Ludvigsen on 15th September, 1977, and had then adopted the same investigative technique as he was alleged to have adopted when speaking to the appellant. It was suggested that Inspector Brown had been soothing and assuring to Mr. Ludvigsen, suggested that other police officers were given to violence, and had expressed a sympathetic understanding of people who espoused causes. (at p347)

When his Honour rejected the tender of Mr. Ludvigsen's evidence he said:

"I am of the view that the similar acts or doctine (sic) does not apply for the purposes of testing what is in my view substantially the credibility of a witness and that the weapon open for that which has been used here by Mr. Gyles is cross-examination; there has been substantial cross-examination about this matter and Mr. Gyles has drawn my attention already, and no doubt will again, to certain matters which he will submit are contradictory answers and it seems to me that that is the appropriate way of testing these sort of things. And I am not prepared to permit this evidence on that ground alone. I am not even convinced that the matters listed by Mr. Gyles are indicative of sufficient similarities. What a person does with one particular suspect in one particular situation, it seems to me can vary so much with individual cases that it would be just not justified in this case to hear evidence about one particular suspect and say therefore something like this must have happened with somebody else. I see very little probative value in it myself. And for both those reasons, I am not prepared to allow this evidence." (at p348)

Evidence of similar facts is not, of course, admissible when the evidence affects merely the credit of a witness. But the learned trial judge may not have appreciated fully that Mr. Ludvigsen's evidence was to be tendered as aiding the proof of the facts which his Honour was then inquiring into, namely, whether Inspector Brown had made or offered any threat, promise or inducement to the appellant in the manner put to Inspector Brown in cross-examination. (at p348)

Evidence of similar facts is admissible to prove a fact in issue when the connexion between the alleged similar fact and the fact in issue is so close or immediate that in the common experience of mankind the fact in issue is likely to have occurred if the similar fact occurred. An allegation of a mere similarity between the way in which a person performs a particular task on one occasion and the way in which he is alleged to have performed it on another does not, at least in the generality of cases, show the kind and degree of connexion between the occasions which is essential to the admission of evidence of the former occasion as a similar fact to prove the way in which the task was performed on the latter occasion. In the generality of cases, similar fact evidence is not admissible for the reasons given by Street C.J. in Kitto v. Gilbert (1926) 26 SR (NSW) 441:

"The rule of law in such cases is stated accurately in the Laws of England (vol. 13, p. 450), and is that 'facts similar to, but not part of, the same transaction as the main fact are not, in general, admissible to prove the occurrence of the main fact'. The rule, I think, is sometimes rested upon the ground of remoteness or want of reasonable connection between the principal and evidential facts in such cases, sometimes upon the inconvenience that would result if a different rule prevailed, and sometimes upon the tendency that there would be to confuse juries by raising collateral issues; but, on whatever ground it may be rested, it is a well established rule. Thus, in Hollingham v. Head (1858) 4 CBNS 388; 140 ER 1135 , in an action of goods sold and delivered, the question being whether the sale was absolute or subject to a condition, it was held that it was not competent to the defendant to call witnesses to prove that the plaintiff had made contracts with other persons subject to the suggested conditions.

In Kennedy v. Dodson (1895) 1 Ch 334 , in an action brought for a declaration that land purchased by the defendant and another person in 1873 was purchased by them as co-partners, interrogatories asking for particulars of purchases of other lands by the defendant and that other person, before and after 1873, were disallowed. The Lord Chancellor, Lord Herschell, said:
'No doubt there are cases in which evidence of what has happened in one transaction may be relevant to the question what happened in another. I do not dispute that general proposition. In the present case the suggestion is this, that if it can be proved that in a number of prior transactions Carswell and the defendant had been purchasing land on partnership terms, that would render it probable that such was the nature of this transaction also. But that is not relevant evidence. Cases of this description are not determined upon probabilities but upon evidence of what happened upon the particular occasion'

(1895) 1 Ch 334, at p 338 " (1926) 26 SR (NSW), at pp 447-448 . (at p349)

The rule which excludes evidence of similar facts is not absolute. Much turns on the connexion between the fact in issue and the similar fact which is sought to be proved. In a South African case concerning police interrogation (where the facts were significantly different from the facts in the present case), Gosschalk v. Rossouw (1966) 2 CPD 476 , Corbett J. said:

"The general rule is that evidence of facts similar to the fact in issue is not admissible to prove either the occurrence of the fact in issue or the identity of its author. This rule, which applies in both civil and criminal proceedings, is, however, not an absolute one. Where there is a sufficient link, or nexus, between the fact in issue and the fact sought to be proved for an inference as to the occurrence of the fact in issue to be drawn, then the evidence will be admissible. To cite the remarks of Lawrence J., in R. v. Bond [1906] 2 KB 389 , at p 424:
'In all cases in order to make evidence of this class admissible there must be some connection between the facts of the crime charged in the indictment and the facts proved in evidence. In proximity of time, in method, or in circumstance there must be a nexus between the two sets of facts, otherwise no inference can be safely deduced therefrom.' Unless this nexus is present, the evidence is not admissible" (1966) 2 CPD, at p 482 . (at p349)

The closeness of the nexus required was emphasized by Lord Wilberforce in Director of Public Prosecutions v. Boardman [1975] AC 421 :

"The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s)" (1975) AC, at p 444 . (at p350)

Similar fact evidence when admissible is circumstantial evidence to prove the fact in issue, and the probative force of the evidence determines not only its weight but its admissibility. To quote Knox C.J. and Dixon J. in Morgan v. Babcock & Wilcox Ltd. (1929) 43 CLR 163 :

"The question involved largely depends upon the degree to which coincidence of events and circumstances warrants a belief in their causal connection. An examination of hypotheses logically consistent with proved facts is the received method of testing their sufficiency to establish the conclusion. In the end, however, the reasonableness or the probability of the occurrence of such hypotheses determines their admissibility, and when coincidence of fact and concurrence of time are relied upon, the sufficiency of the circumstances must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved" (1929) 43 CLR, at p 173 . (at p350)

The learned trial judge correctly analysed the relevance of the proposed evidence of Mr. Ludvigsen, and found, as he must inevitably have found that there was no sufficient nexus between that evidence and the facts into which he was inquiring as to warrant its admission. This ground of appeal also fails. (at p350)

The further submissions as to the admissibility of the confession depend upon the way in which a trial judge should proceed to find facts relevant to the issue under s. 68(2). The question under s. 68(2) is whether there was a threat, promise or inducement of the kind mentioned in the subsection, that is, one which was in fact likely to cause an untrue confession to be made. Whether or not there was some other kind of threat, promise or inducement (excepting violence, force or other form of compulsion) is not material to the ultimate question for determination. No doubt in the ordinary case, the court first finds whether there was a threat, promise or inducement, and then finds whether it is likely to have the effect specified in the statute. The logic of this sequence of fact finding is obvious and it accounts for some dicta in Cornelius' case (1936) 55 CLR, at p 245 . But the sequence is merely a convenient approach to the finding of the ultimate fact for determination, and there is no impediment, in law or in logic, to the judge going directly to the ultimate question and finding whether the Crown has satisfied him that there was no threat, promise or inducement which was likely to have the effect specified in the statute. There was no legal or logical invalidity in the approach which the learned trial judge took in this case. Finding himself unable to adopt the ordinary approach, he examined each of the matters which the appellant advanced as warranting the exclusion of the evidence, and he found that none of them satisfied the exclusionary criteria. (at p351)

But was the learned trial judge wrong in finding that the matters to which the appellant deposed were not likely in fact to cause an untrue admission of guilt to be made? We think not. It is not to the point to say that what happened may have caused a confession to be made: that is not the statutory criterion. The likelihood relates to the causing of an untrue confession. In the circumstances to which the appellant deposed, especially having regard to the conversation immediately preceding the commencement of the confessional statement, we agree with his Honour's view that, if these matters occurred, the making of an untrue confession was not likely to be caused thereby. (at p351)

Then, it was submitted that his Honour should have rejected the tender of the confession in the exercise of a discretion conferred by sub-s. (3):

"The judge has, in a criminal proceeding, a discretion to reject a confession or admission (whether or not it is a confession or admission to which the last preceding subsection applies) made by the person charged if, having regard to the circumstances in which, or the means by which, the confession or admission was obtained, the judge is satisfied that it would be unfair to the person charged to admit the confession or admission in evidence." (at p351)

Whether or not this statutory enunciation of the discretionary power corresponds with the "quite special rules" (to use the phrase of Stephen and Aickin JJ. in Bunning v. Cross (1978) 141 CLR 54 , at p 75 ) which apply to confessional evidence apart from statute, no unfairness of a kind which would evoke the rejection of the evidence was shown. The onus of showing reason for the discretionary rejection of a confession is upon the accused person ( Lee's case (1950) 82 CLR, at p 153 ). (at p351)

The unfairness on which the appellant relied, apart from the conduct which was said to render the confession inadmissible, was the breach of an undertaking which Superintendent Dawson, a senior police officer, gave to the appellant's father, a barrister, that he would notify Mr. Duff senior of his son's apprehension if and when the police should locate him. On the Sunday afternoon, when Superintendent Dawson arrived home at about 5.40 p.m., he was told that the appellant had been apprehended and was being interviewed by Inspector Brown. He notified the appellant's father by ringing an appointed telephone number and leaving a message with the appellant's sister. By the time that Mr. Duff senior received the message, the confession had been made. There was no breach of the undertaking proved, and there was no unfairness to the appellant in interviewing him in the absence of his father. As his Honour was not prepared to make a positive finding upon the appellant's allegations of improper conduct by Inspector Brown, the appellant failed to establish facts upon which the allegation of unfairness depended. The grounds of appeal relating to the admission of the confession fail.

STATUS OF COLONEL SINGH AND MRS. SINGH (at p352)

An element of each of the offences with which the appellant was charged and of each of the offences for which he was convicted is that the person who is the victim of the offence is an "internationally protected person" for the purposes of the Crimes (Internationally Protected Persons) Act 1976 ("the Act"). It was argued that there was no sufficient proof that Colonel Singh or Mrs. Singh was an internationally protected person. (at p352)

The Act gives effect to Australia's obligations under a Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, a copy of the English text of which is set out in the schedule to the Act. The expression "internationally protected person" is not defined by the Act; but s. 3(3) thereof provides that, except so far as the contrary intention appears, an expression that is used in the Act and in the Convention has, in the Act, the same meaning as in the Convention whether or not a particular meaning is expressly assigned to it by the Convention. (at p352)

Article 1 of the Convention defines "internationally protected person" as meaning, so far as relevant to this appeal, "any representative or official of a State . . . who, at the time when and in the place where a crime against him . . . is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household". (at p352)

Section 7 of the Act gives approval to the ratification by Australia of the Convention. In the heading of the Convention, internationally protected persons are described as including diplomatic agents, and one of the recitals to the Convention reads:

"Considering that crimes against diplomatic agents and other internationally protected persons jeopardizing the safety of these persons create a serious threat to the maintenance of normal international relations which are necessary for co-operation among States. . . ."

In this context, a diplomatic agent is clearly intended to fall within the definition of an internationally protected person. (at p353)

The Diplomatic Privileges and Immunities Act 1967 ("the 1967 Act") provides in s. 7, so far as relevant, that the provisions of arts. 1, 22-24 (inclusive) and 27-40 (inclusive) of the Vienna Convention on Diplomatic Relations have the force of law in Australia and every external Territory. A copy of the English text of that Convention is set out in the schedule to the 1967 Act. (at p353)

Article 1 of the Vienna Convention provides, so far as relevant, that for the purpose of the Convention a "diplomatic agent" means the head of the mission or a member of the diplomatic staff of the mission, the "members of the diplomatic staff" means the members of the staff of the mission having diplomatic rank, and the "members of the staff of the mission" means the members of the diplomatic staff, of the administrative and technical staff, and of the service staff of the mission. (at p353)

Article 29 of the Vienna Convention provides that:

"The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity." (at p353)

Paragraph 1 of art. 37 of the Vienna Convention provides:

"The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in arts. 29 to 36." (at p353)

Whether Colonel Singh was, on 14th and 15th September, 1977, an internationally protected person, i.e., representative or official of the Republic of India who, at that time, and in Australia, was entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, depends upon whether he was a diplomatic agent, whose person is thus inviolable: art. 29 of the Vienna Convention. He was not the head of the Indian mission. Was he a member of the diplomatic staff of the mission, that is, a member of the staff of the mission having diplomatic rank? (see art. 1 of the Vienna Convention). (at p353)

Apart from the official certificates to which we shall refer later, Colonel Singh gave evidence that he was, at the relevant time, a member of the High Commission of India in Canberra, being the military, naval and air adviser to that High Commission. (at p353)

Whether or not that evidence, not being challenged, was sufficient to establish the status of Colonel Singh as a diplomatic agent, the Crown placed reliance on two certificates to establish the fact. One certificate was issued by the Attorney-General of the Commonwealth of Australia and the other by the Minister of State for Foreign Affairs of Australia. The admissibility of these certificates and relevance of what they established was challenged by the appellant both at the trial and before us. (at p354)

109. The first-mentioned certificate is in the following terms:

"I, PETER DURACK, Attorney-General of the Commonwealth and the Minister of the Commonwealth for the time being administering the Crimes (Internationally Protected Persons) Act 1976 HEREBY CERTIFY pursuant to s. 14(1) of the said Act that:

(a)
COLONEL IQBAL SINGH of 105 Endeavour Street, Red Hill, in the Australian Capital Territory, as from 25th September, 1976, has been recognized and as at the date of this certificate continues to be recognized by the Government of the Commonwealth of Australia as an official of the State of India being the military, naval and air adviser to the High Commission of India in Canberra and as a member of the diplomatic staff of the said High Commission; and

(b)
DARSHAN KAUR SINGH the wife of COLONEL IQBAL SINGH as from 25th September, 1976, has been recognized and as at the date of this certificate continues to be recognized by the Government of the Commonwealth of Australia as a member of the family of the said COLONEL IQBAL SINGH forming part of his household.

DATED 1st May, 1978. (sgd.) P. Durack, ATTORNEY-GENERAL." (at p354)

110. The second certificate is in the following terms:

"I, ANDREW SHARP PEACOCK the Minister of State for Foreign Affairs of Australia and Minister of the Commonwealth for the time being administering the Diplomatic Privileges and Immunities Act 1967 HEREBY CERTIFY pursuant to s. 14(1) of the said Act that:

(a)
COLONEL IQBAL SINGH of 105 Endeavour Street, Red Hill, in the Australian Capital Territory, was recognized at 14th and 15th September, 1977, by the Government of the Commonwealth of Australia as a diplomatic agent within the meaning of the Vienna Convention on Diplomatic Relations;

(b)
In accordance with art. 10 of the said Vienna Convention on Diplomatic Relations the Department of Foreign Affairs of the Commonwealth of Australia had been notified prior to 14th and 15th September, 1977, of the appointment of the said COLONEL IQBAL SINGH as a member of the High Commission of India in Canberra being the military, naval and air adviser to the said High Commission and at the date of this certificate no notification of the termination of that function of the said COLONEL IQBAL SINGH has been received by the said Department of Foreign Affairs;

(c)
On 14th and 15th September, 1977 the said Vienna Convention on Diplomatic Relations was in force;

(d)
On 14th and 15th September, 1977, Australia and India were parties to the said Vienna Convention on Diplomatic Relations.

IN WITNESS WHEREBY I have hereunto set my hand and affixed my seal on 11th May, 1978. (sgd.) Andrew Peacock, MINISTER OF STATE FOR FOREIGN AFFAIRS." (at p354)

We shall turn first to the certificate of the Attorney-General. Section 14 of the Act provides:

"14(1): The Minister may give a certificate in writing certifying any fact relevant to the question whether a person is, or was at any time or in respect of any period, an internationally protected person.
(2): A document purporting to be a certificate given under sub-section (1) is, upon mere production, admissible in any proceedings as prima facie evidence of the facts stated therein." (at p355)

Senior counsel for the appellant submitted that all the Attorney-General did by the certificate was to certify that Colonel Singh was recognized at the relevant time as an official of the State of India in Canberra and a member of the diplomatic staff of the said High Commission and that Mrs. Singh was recognized as a member of Colonel Singh's family forming part of his household; that certifying as to recognition of these matters was not certifying to a fact relevant to the question whether Colonel or Mrs. Singh was an internationally protected person. He submitted that the fact of recognition is irrelevant to the question whether Colonel and Mrs. Singh was each in fact a diplomatic agent, and whether each was therefore an internationally protected person. So two issues are raised: whether recognition of a person's status by the Government of Australia is relevant to the actual status of that person for the purpose of the Act; and whether Colonel Singh's membership of the diplomatic staff of the High Commission of India, and Mrs. Singh's membership of Colonel Singh's family, are relevant to the questions whether each of them respectively was an internationally protected person. (at p355)

Recognition of the status of diplomatic personages is the prerogative of the Government of Australia, and a person who is so recognized as having a particular status has that status for the purpose of a court of law. Lord Warrington of Clyffe said in Engelke v. Musmann [1928] AC 433 :

"The Attorney-General states explicitly in para. 26 of his case that it is a necessary part of His Majesty's prerogative in his conduct of foreign affairs and his relations with foreign States and their representatives to accord or refuse recognition to any person as a member of a foreign ambassador's staff exercising diplomatic functions. The fact of recognition is of course peculiarly within the knowledge of the Department according it, and a statement by or on behalf of the Department that it has been accorded to any person must in my opinion come within the principles above referred to and be conclusive as to the status of that person. . . . (at p355)

"I have not thought it necessary to discuss the many cases which were cited in this House. It is enough to say that some of them support and no one of them is opposed to the views I have above expressed" (1928) AC, at pp 457-458.

See also the speech of Lord Phillimore in the same case (1928) AC, at pp 449-450; and Duff Development Co. Ltd. v. Government of Kelantan per Lord Sumner [1924] AC 797 , at pp 823-824 . (at p356)

The facts certified by the Attorney-General as being recognized are clearly relevant to the status of Colonel and Mrs. Singh as internationally protected persons. As a member of the diplomatic staff, Colonel Singh is a diplomatic agent, and thus an internationally protected person. As a member of the family of such a person, Mrs. Singh is likewise an internationally protected person. (at p356)

In our opinion, by certifying that the Government of the Commonwealth of Australia recognizes Colonel Singh and his wife in the terms stated in the certificate, the Attorney-General is certifying to facts which are relevant to the question whether Colonel Singh and his wife was each an internationally protected person at the relevant time. The certificate was both admissible and probative, if not conclusive, of their respective status. (at p356)

The certificate of the Minister of State for Foreign Affairs was objected to on substantially the same grounds, but what we have said as to the first certificate applies equally to this certificate. Section 14(1) of the Act is in all material respects the same as s. 14(1) of the 1976 Act. (at p356)

118. Accordingly, in our opinion, the submission on this issue fails.

ALTERNATIVE VERDICT (at p356)

The final ground of appeal against conviction raises the validity of one of the convictions, namely the conviction of attack on the person of Iqbal Singh. It was submitted that it was not open to the jury to convict the appellant of that offence upon the indictment as it was framed. On this ground the court is not unanimous, and McGregor J., who is in dissent, does not join in the reasons which are next expressed. The argument turns upon the provisions of s. 8 of the Act; which reads:

"8(1)

A person who murders or kidnaps an internationally protected person is guilty of an offence against this Act and is punishable on conviction by imprisonment for life.

(2)

A person who commits any other attack upon the person or liberty of an internationally protected person is guilty of an offence against this Act and is punishable on conviction -

(a): where the attack causes death - by imprisonment for life;
(b): where the attack causes grievous bodily harm - by imprisonment for a period not exceeding 14 years; or
(c): in any other case - by imprisonment for a period not exceeding 7 years.

(3)

A person who commits a violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person, being an attack likely to endanger the person or liberty of any internationally protected person, is guilty of an offence against this Act and is punishable on conviction by imprisonment for a period not exceeding 14 years.

(4)

A person who threatens to do anything that would constitute an offence against sub-section (1), (2) or (3) is guilty of an offence against this Act and is punishable on conviction by imprisonment for a period not exceeding 7 years.

(5)

For the purposes of this Act, an offence created by section 5 or 7 of the Crimes Act 1914-1975 shall, to the extent that it relates to an offence against sub-section (1), (2), (3) or (4), be deemed to be an offence against this Act.

(6)

Where, on the trial of a person for an offence against sub-section (1), the evidence does not establish the commission by him of such an offence but establishes the commission by him of an offence against sub-section (2), he may be found guilty of the last-mentioned offence.

(7)

For the purposes of this section -

(a): kidnapping a person consists of leading, taking, or enticing the person away, or detaining the person, with intent to hold him for ransom or as a hostage or otherwise for the purpose of inducing compliance with any demand or obtaining any advantage;
(b): murdering a person consists of causing the death of that person in circumstances in which the person causing the death would be guilty of murder according to the law in force in the Australian Capital Territory at the time of the conduct causing the death, whether or not the conduct took place in that Territory; and
(c): a reference to an attack upon the person of an internationally protected person shall be read as including a reference to assaulting an internationally protected person or to administering or applying to an internationally protected person, or causing an internationally protected person to take, a poison, drug or other destructive or noxious substance or thing." (at p357)

The appellant submits that sub-s. (6) of s. 8 in terms provides for the return of alternative verdicts only to counts for offences against sub-s. (1), and that the first count in the indictment, attempted murder, is not "an offence against sub-section (1)". A person who attempts to commit the offence of murder, as defined by sub-s. 7(b) of the Act, is guilty of an offence created by s. 7 of the Crimes Act 1914:

"Any person who attempts to commit any offence against any law of the Commonwealth or of a Territory, whether passed before or after the commencement of this Act, shall be guilty of an offence and shall be punishable as if the attempted offence had been committed."

Counsel for the respondent submits that the offence so created fulfils the description of "an offence against sub-section (1)" by virtue of the provisions of sub-s. (5) of the Act. But sub-s. (5) deems an offence created by s. 7 of the Crimes Act to be "an offence against this Act", not an offence against a particular provision of the Act. The phrase "an offence against this Act" is employed throughout the Act, and it is the phrase which describes the class of offences to which particular provisions of the Act are made to apply. (at p358)

The offences created by s. 8 belong to the category of offences against the person, a subject to which State and Territorial laws ordinarily apply. However, the jurisdiction to try these offences is created by federal law, and federal procedures are specified for dealing with them. Thus, s. 10 defines the liability to be charged for an offence against the Act, s. 11 regulates the arrest, the bringing before a magistrate and the remand of persons charged with such an offence, s. 15 relates to the investing of jurisdiction in and governs the exercise of jurisdiction by the courts of the several States with respect to offences against the Act, and s. 12 provides for prosecution on indictment in the courts of the States and Territories for offences against the Act. Section 6 is designed to ensure that the laws of the States and Territories are not affected by the provisions of the Act, and that an offender may not be convicted both for an offence under the laws of the State or Territory and for an offence under the Act. The Act describes an offence to which those provisions apply as "an offence against this Act", a phrase which the draftsman has used throughout s. 8 itself, and sub-s. (5) deems certain offences created by s. 7 of the Crimes Act to be offences against the Act in order to attract the application of those provisions. (at p358)

The purpose of sub-s. (5) is to attribute to an offence created by s. 5 or s. 7 of the Crimes Act a character which it would not otherwise bear, namely, that of "an offence against this Act". Subsection (5) does not attribute to an offence created by s. 5 or s. 7 of the Crimes Act the character of an offence against a particular subsection of s. 8, and the former offence does not become, by force of sub-s. (5), an offence against one or other of the subsections of s. 8. The phrase "an offence against sub-section (1)" in sub-s. (6) is not synonymous with "an offence against this Act". An offence against sub-s. (1) is defined by the subsection to be an offence against this Act, but the converse is not necessarily true. Unless an attempt to commit an offence acquires the character of an offence against the particular subsection to which it is related, an attempt to commit an offence created by sub-s. (1) is not itself an offence against that subsection. Subsection (5) does not confer upon the crime of attempted murder of an internationally protected person the character of an offence against sub-s. (1). (at p358)

It was suggested that s. 7 of the Crimes Act is, so to speak, an interpretation provision which applies to each offence-creating provision with which it may operate, so that each such provision is construed as creating the further offence of attempting to commit the principal offence which it creates. But that is not the operation of s. 7 of the Crimes Act. It creates the offence of attempting to commit an offence, using the principal offence-creating provision as the dictionary of its content. An attempt to commit an offence against a particular law of the Commonwealth is an offence by force of s. 7 of the Crimes Act, not by force of the particular law of the Commonwealth. (at p359)

As sub-s. (5) does not deem the offence of attempted murder of an internationally protected person to be an offence against sub-s. (1), and as s. 7 of the Crimes Act does not make that offence an offence against sub-s. (1), that offence is not an offence against sub-s. (1). Therefore, the appellant was not liable to conviction under sub-s. (6) upon an alternative count of attacking the person of Colonel Singh. (at p359)

Counsel for the respondent nevertheless sought to sustain that verdict as an available alternative to the count of kidnapping - the second count in the indictment, and an offence against sub-s. (1). The jury was entitled to return that verdict, however, only upon the conditions which sub-s. (6) defines: that the evidence does not establish the commission of an offence against sub-s. (1), but establishes the commission of an offence against sub-s. (2). The evidence to which sub-s. (6) refers is the body of proof admitted to establish the sub-s. (1) offence, but which fails to establish that offence. It is that body of proof to which reference must be had in order to ascertain whether the commission of the alternative sub-s. (2) offence is established. (at p359)

If the indictment had contained a single count for an offence against sub-s. (1), evidence bearing upon an alternative charge would have been confined within the bounds of relevance to the count so laid. If the joinder of other counts in the indictment were allowed to expand the body of proof to which reference was to be made in reaching a verdict on an alternative to the single count, a variety of constitutive facts might be indifferently selected as establishing the alternative offence. Such a latent and embarrassing ambiguity in the indictment would be a defect in its particularity (see Johnson v. Miller (1937) 59 CLR 467 , at p 491 )). At this trial, however, the alternative charge of attack upon the person of Colonel Singh was treated as an alternative to the count of attempted murder, and the jury were directed to consider only the evidence adduced to prove the offence of attempted murder in coming to their verdict on the count of attack upon the person of Colonel Singh. Ambiguity was thus eliminated. Had the evidence admissible on the count of kidnapping not established that offence but established an attack on the person of Colonel Singh, a verdict of guilty of that attack would have been open to the jury provided the jury were directed to consider that body of evidence in arriving at their verdict. But they were not so directed and their verdict on the alternative charge cannot be so construed. The evidence admitted in proof of kidnapping may have supported a further charge of attacking the person of Colonel Singh, but that issue was not submitted to the jury. The verdict of guilty of an attack on the person of Colonel Singh was not founded upon the evidence tendered to prove the offence of kidnapping, and it cannot be supported as though it were. As the verdict of attack upon the person of Colonel Singh was not open to the jury under s. 8(6), it must be set aside and the conviction for that offence must also be set aside.

No question of a substituted verdict or of a new trial arises, for no trial for that offence could have been had, or can now be had, on an indictment which did not charge that offence. The appellant was not liable, and is not now liable, to conviction for that offence upon the present indictment. It is not for us to say whether the indictment should have been framed differently or should have been amended, but merely to determine the course which the law demands. (at p360)

The argument which has succeeded may be said to be a technical matter of criminal pleading, but it is fundamental to criminal procedure that a person must first be accused of the crime for which he is to be tried, and then tried and proved guilty of that crime before he is punished. In this case, he was not charged with the crime for which he was punished on the first count, and his conviction on the first count must be set aside and his sentence must be amended accordingly. (at p360)

Finally, the appellant argued that it is not appropriate to impose cumulative sentences for offences arising out of the same series of acts (R. v. Melville (1956) 73 WN (NSW) 579, at p 582; R. v. Hally (1965) Qd R 582, at p 584) and that the sentences in the present case were wrongly made cumulative. (at p360)

The practice of imposing concurrent sentences for the same series of acts is a sound one, but it does not follow that the sentence which is imposed in neglect of that practice is inappropriate. The totality of the sentences imposed by his Honour in respect of the offences of attack upon the liberty of Colonel Singh and attack upon the liberty of Mrs. Singh was entirely appropriate for the conduct proved against the appellant. It was conceded that that conduct commenced when the Singhs got out of bed, so that the conduct consisted of the armed abduction from their home of two internationally protected persons - an abduction which was terminated only after a struggle initiated with a view to escaping. (at p360)

After setting aside the sentence imposed on the first count and leaving out of account the conduct upon which that conviction was founded, an appropriate sentence for the conduct which attacked the liberty of Colonel Singh and Mrs. Singh is the aggregate of the sentences imposed for those two offences. The appeal against sentence on those counts should be dismissed. (at p361)

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