Ni 23 FEDERAL COURT OF AUSTRALIA r \ CeO MBER AL LLL. DISTRICT REGISTRY GTA Lee. DIVISION No of Action ©S.14... of 197.4 TITLE OF ACTION .. doers... Awaehwe. . QUEEF... TG. GORE. Date(s) of hearing A,34,%..9. Oct 1929. pate judgment delivered. 6.0e5.1973. Counsel and ( oe MA...R, eee nee GYLES GS... eve mene eeenee ( ( Dd . Solicitors for t LOR. DLL Ol cemmeR.. Leneeeeueeeeees , ( DL DYEEL LL. ( astosted by. i Sgves Veale wand. Mackin, . Coober .. Counsel and ( we MNRAS. BURCHETT AS elle ee ( { d Solicitors for ( wees MR. er a Wy Low... ene cet e eee e eee wees ( ( Signed .. Ae borg wo be Par sess (Associate) (NOTE: To be despatched to Principal Registry, Sydney for on-forwarding to law publishers) CATCHWORDS Appeal against conviction and sentence from Supreme Court of the Australian Capital Territory ~ Crimes against internationally protected persons - Appellate power of Federal Court of Australia - Grounds of appeal - Australian Capital Territory Supreme Court Act 1933(Cth.) mei) s.52; Criminal Appeal Act 1907(U.K.) and Australian counterparts; Federal Court of Australia Act 1976(Cth.) ss. 4, 24, 27, 28, 30; Judiciary Act 1903(Cth.) ss.30B,36. Applications for discharge of jury — Publicity said to affect a fair trial - Conversation between juror and associate. Evidence of tdentification - Risk of mistaken identification - Admission of evidence of identification parade - Sufficiency of Judge's direction. Confessional evidence - Voluntariness - Tikelihood of truth - Discret1on to reject - Sinilar fact evidence tendered on voir dire - Evidence Ordinance 1971 (A.C.T.) s.68; Evidence Act 1928(Vic.) s.141l. Status of victims —- Whether ruternatronally protected persis Tnlerpretation of Conventsons - Recognition of dinlomalic agents ~ Effect of certificates - Crimes(Internationally protected Persons) Act 1976(Cth.)9os.7, 14; Daplemalic Preivileors and J wunitics act W6ET7(Crh.) "5.7, 14, Stakutoecy uanterpretation —- Fora of tudrelwent - Wherher alternalive comt avalleble ~ Crimes Act 1914(Cibh.) ss. 5,7; Certace (To crnationally_ Prolcace "a Perpons asc WrH(Chh. Je. 8. bonicnee - Cumlative sentences ~- Whether appropriate - Crormes Act 1914(Cth.) s.19(2). John William Duff v. The Queen Wo. F.C.19 of 1978. Corum 2 Brennan, weGreger ead TLockhact Ju. 6 Tees Ler j979. TN THE FEDERAL COURT OF AUS'TRALTA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DLVISION No. F.C.19 of 1978 ON APPEAL FROM CHE SUTRIME COURT OF THE AUSTRALIAN CAPITAL, TERRT'TORY BETWEEN : JOUN WILLIAM DUPE Appellant AND : THE QUEEN Respondent CORAM : Brennan, McGreyor and Lockhart JJ. ORDER JePCUS Tee TING Os TER DAL OF OPDGR : 6 Neccuher 1979, WARE MADE La ccnen, Pegecvor ana ie eehoach wT. Canhecra. "AR CObAP OPO aS: 1. LUNE 50 mech of thr verdret relayrntd ly a yuLy va the Supresue Court of the Auscraltan Coptiel Terrilosy on 18 Angust 1978 whe. by the eppellant vis found cnalty of an aiteek npoa The re rean af an anterarrion- Lly preted a Hi person Tyba} Sangh boa poe 7S1Ce, 2. THAT the judgment of that Court convicting the appellant of that offence be set aside. 3. THAT the sentence imposed upon the appellant in respect of that conviction on 7 November 1978 whereby the appellant was sentenced to three years imprisonment with hard labour with a period of 18 months as the period during which he would not be eligible for parole be sct aside. 4, AND THAT otherwise the appeal be dismissed. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. F.C.19 of 1978 eee ews GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL _ TERRL TORY BETWEEN : JOHN WILLIAM DUFF Appellant AND : THE QUEEN Respondent CORAM : Brennan, McGregor and Lockhert JJ. 6 December 1979 THE COURT: An indictment was presented in the Supreme Court of the Australian Capital Territory charging the appellant on four counts, parely, that he on or about 15 E-ptember 1977 at Cenberra: 1. did attcmpt lo aurder [OR*h SINGH ona internasrianally orolect?d pj Lreon; 2. 41d kifinep IOP4L SINGH an internatie aclly prolteulzd person; 3. did hidnep PASHAN FUR GN GN omy take ial teal ly protected person; 4. did break and enter the Gvelling house of TOP36 SLYGH Situale at 105 Endeavour Street Red Bill...and then being therein did inflact grievous noodily diarm upon tha seid fOSAL SINGH. To these charges he pleaded not guilty. His first trial aborted after 12 days when the trial judge found it necessary to discharge the jury. The second trial commenced before Connor J. and a new jury on 24 July 1978. After a trial which lasted for 20 days, the jury returned their verdict. They acquitted the appellant on each of the counts in the undictment, 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. 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. After the learned trial judge heard submissions on sentence, he remanded the appellant for centence, and on 7 November 1978 he imposed a sentence for each offence of three years imprisonment with hard labour and fixed a period of 18 months aS a period during which the appellant should not be eligible for perole. Under s.19(2) of the Crimes Act 1914 (Cth.)his Honour ordered that the sentences of imprisonment be civaulative. he cuppelloant cppeels ageinusk his conviction Cor each offence end against the suntences titposad. The grounds of appeal are various. Their significsice 1s better understood in tne context of the case the Crown ¢cnught to eslablish at che trival. On the Crown cese, Colonel Iabhal Singh was at all relevent tures the Militery, Neval ead Air Adviser to tne fheaion igh Ce mystssien inp Canberra. Je end his wife, Mrs. Davenen Kaur Singh, lived at 105 endeavour Street,Red Hill. Tue Cramn Alleged thet Colonel Singh and Mrs. Singh were Loiery Lionaelly eyor cle du. Taps por 1 h,5 RHr ose of the Crrvmas (Internationally Protected Persons) Act 1976. At approximately 11.00 p.m. on the evening of 14 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 1t, inside the room. Close to the bed occupied by Colonel Singh and Mrs. Singh was another bed which was unoccupied. 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 eway 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 aztailant, 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 guilt. The assailant motioncd for him to raise his hands. Mrs. Singh spoke to her husband in the Punjabi language but he cautioned her to speak in #nglish. Tuen Lue 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 tcw gaconds he got up. The assarlent aobtenzd for Mrs. Singh to get out of bed. She did so, esking wf che could wear her thongs znd shawl. Then the assailant searched in the bid for the deqger and, fainii.g it, = mut wb in ais jacket. Speaking very vortly, tae -rssailant asked for "car hey 3" Wolenel Sragh utes Bed uat conkd vot Cend die an. Ue aise .tant switched on the JVignt in the bedroom, ne le st spoed out into the darkness of the peucsge, The time was 1.45 a.m. soca Coloriel Singh found ihe keys, the Light was svitched off wd CoTmasl end bree. Singh sere mor roned to wosze aleng ria 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 unto 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 1t 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 dayger. Mrs. Singh was pinioncd by the assailant, but she Joined in the struggle with him. Mrs.Singh pulled the assailant's hair and bit his finger. ylonel Singh succeeded in grabbing the rifle, breaking the stock and then throwing it out. Eventually he «alto got rid of the dagger. The struggle continued, but efter a time che asSallent asked to be let go and said: "T have got nothing cgainst you. Tt 15 3g*inct your Governtent". Colonel Surgh eper + the door, the assailant ran out "nd into the bush. Ducing ine struygle Lhe assailant was urresked, and his face WoS visid}e un the reflected light of the headlights. Afler the sfenalent ren cw 7eVOlonsl Fo awh vould aol | bs car ro ove, He rin, iollowd by firs. Stengn, to a rev lk which bPheoy siw neacby. Jltamately, Colonel Singh was token to Woden Valley Hospital whore he remained For 8 to 10 daze. On Sunday morning, 18 September, Sergeant Lack of the Australian Capital Territory police took a card of 12 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 enquired whether any of the {facial features of the photographs looked similar to the assailant. Colonel Singh said that he was confused, and that 1t was "difficult to pick up", but he identified some features of his assailant. He sald: "...I picked up three or four photographs and I said, this photograph resembles the eyes. In this 1t resembles with the person's hair and this one, probably his beard and so on so forth. So I p.cked FS up three or four photogrephs and I pointed out to him the features that stood in my mind, I related those features with the photographs, well, one of them - 1f it 1s one of them - these are the veople which stand out to me to be the I1kely person." Anong the photographs which he picked out was the aporllant's photograph. The aopellant, «ho bed been employed at De. Parnirdo's ores was expected to be on duty on the morning of Thursdey 15 September 1977 but he did not appear. He had given no werning teat he :ould be ahsent. On the following Sunday, 18 Exptenb.r, he arrived at Caloola Farm, ebout 30 kms From Canberra. M2 told a Miss Kiskie who was there that ho had left nis job at Or. Barnardo's Fomes end was hoping to get a ride to Queecnslend. Ne ord ls pea hoten-hired to ths Fare. Mat after-gon nolice Ofte 1s arrivseed at wie farm, "nd Serie 10 the . apeltint. At First he gave his namo es Faul Kingsley but later agreed he wes John buff. fie was teéken back to Police PeaGeuurcers an Coberra ad hy ves aablervagwed cuore by ca-Lecktor Beown. 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 Singhs' residence and left it there together with a haversack containing some articles, entered the Siaghs* house through a back window, gone into the bedroom, stabbed Colonel Singh, then put Colonel and Mrs.Singh 1n 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 attecking the Indian government out of frustration at thea Indian government's inactivity, and that when he drove off with the Singhs he intended to hold them "for ransom...to exchange for Baba". Later that night, after 8.00 p.m., the appellant wos placed in an identification parade of 13 men at the Woden Valley Police Station. Colonel Singh identified the appellant as the ascailant, but leler Mrs.Singh selected enother man from the line-up as the essailant. Sometime later that evening the appellant was formally charged. At ebout 13.48 a.m. he was ovamined by a Dr. Marsh wio fouid 4 earned on 3) Finger appercntly some dsys' old cansistcnt with §23 neving been bitten cnd there were cuts and avresions on his hends. wre wes other evidener upon writen car wa.n relied Lo prove thet the apnellant w3s the Fainghs' assailsnt. Two footprints, corresponding itn 5148, pattern and individual cherset rirteecs vo che eapestcnee of lbe Fotcs Of "he aym boo te ,o1n ory d>9 weltant worm cpresiscd ona Eune ay, see Cond ora the garden of the Singbs' residence on the aworning of 15 Sept mber 1977. A breyel?, which had bten fold +o tis ywodltent by 7 Me. Tedvagean, vrs found blo wisg - seas a iiee 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 11 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 14 September, but they were there carly in the morning of 15 September. 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 cstablished that the appellant travelled from Sydney to Canberra by air on the same day. There was other evidence that the appelJant took out a shooter's licence for the rifle in the name of Peter Jackson. The central question in the trial was the identity of the assailant. The eppellant noither geve cvidence nor called others to give evidence, but he made a statemcnt from the hody of the court in which he denied that he was the assailant. Ile sald: T vas not the person that entered the Singhs thet evening; T was not the gpersan who took the Singhs from their house and stabbed Colonel Singh. I did Pecc nh? volved with somerhing £ did not understand, wich peonie Po oiriacied, Joas3 tuy the un end orber a pa-nt for vh om. [. do nev kna9 hog they vere ased ov who nveed them an burs aursek. They gok thes tquicve nts off mwa, ween [I heard chout vhe attack 1 penicked end 1an to the bush. I heard while T was Vere dsc. the voles ped goto esst of '41s rauiprint and fagoaeh kee chase Le To oo Too leawed lnre vn trie been fer vecal Gaye. en rhe palicve « me to aceest me To wes seered and © didn't want to be Luteccrogated so C cave a Fale? name. Khen 1 wes on PRO roy vack from the frim to the potice erear.ton T Rad Frat Lo vou wer what Fo Go; 29 \ucn the lut rood Toon sterted, after a vols of Jit nicgq iio 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 thouyht 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 1t 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. I hope the jurors will be more successful. That is all I have to say." 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 counls upon which Lhe 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 gullty of attacking the person of Tebal Singh, an internationally protected person, be set 7251de and the conviction quashed." Jurisdiction of the federal Courk The jurisdiction of this Court to hear cpresls -gsinst ments of conviction entered in the Supreme Court of the Ustealian Cepital Tererttory tS wonferred hy +.74 of ire Fejeral Court of Ausireliva Act 1976, suab-e.(1) (6) of which provides: " (1) Gnbjeet to thas 8 eiicn 3d oO any ocher Set, whether pissed before or efter the conta ue ae nt cf tris Aet (including en Act by viitue of which any juduments referred to 1a this cretion «re mda final nd eenelusive or not Subject ro reeel), the Court eS JULLSAC i Lon 1oO hear -na Coreti ia w (a) ... (b) appeals from judgments of the Supreme Court of a Territory. " 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 C.L.R. 132) an appeal lies from the judgment which is entered upon a verdict in a criminal trial (The King v. Snow (1915) 20 C.L.R. 315 per Gavan Duffy and Rich JJ at p.361) unless it be a judgment of acquittal (Thompson v. Mastertouch TV Services Pty.Ltd. (1978) 19 ALR 547 per Deane J. at p.555). 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 cxercice of its appellate jurisdiction", and it confers upon the Court power, inter alia, to - "(e) set aside the verdict end judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered; (f) erent a ney terval in iny case in which there hes been a trial, erther with or without 2 jury, on any ground upon which 1t 1s appropriate to grant a new trial;..." Soferc a pew trial ois ordered, the jircy's verqiee Tel, of © urse, be set aside, for - "Calf the verdict stends, no other Judement can be given, .9d, tie. fore, the yutpent Craeh 1s given wy Tud vdes es erp ca ro be ihe is a oo SS OO Ceurt, ond ab ts only compet an ace of «he Conny that an copeal livs. 'thire is no other ect of tho Court; the verdict 1s rot the act of Ene Court, the yordirebt ws the acl of ihe jory,..." (Tleseea ve Donk 8 feo PLOL1G at m.ea2; L4 RR. 159 aly 168, 10. cited and relied upon in Musgrove v. McDonald, supra, at p.144). 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 1s 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 The Commonwealth v. Brisbane Milling Co.Ltd. (1916) 21 C.1.R. 559), the power falls to be exercised upon the setting aside of a jury verdict and the conviction recorded thereon (sce, @.g., Ross v. The Queen [1957] A.C. 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. 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 ceurcumstances to which that peragraph 1s -2ddressed, che power 16 necessarily to ber exercised in order to clear the way to the entering of a substituted judgment. By necessary implication $.28(1) (f) must be construed cs cenferriny cower Lo seb cride the veidicct of a jury in order to perimit the issucs to Le darurmined by another jury on a new trial. Under s.2z8(1)(e), this Court subcticutes rts Judquent for the judement of the Suprene Court; under e.723(1) (ff), it remits the matter for the judament of the Sucreme Court. In the Eormer case, the prosecut on 1s Larnminated by a judgnent of argnittal or a judament cenvicting tH' > oepeltnk of ¢ lersor of fener rhan che effeare Tor woiiseh be DPoconvret sd gn tle Snes Cemrtzg aa ate lect rot 3, tn prosceution is kept on Foot co that the yuellant wust run che risk oF er n.ictien aga: rn tue inSvir1ag Liiel., tne ewer Lo eck n aside a jeey verdtek af gatlry zs meee erly wt ptred aa chs 11. grant of @ 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. 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 (1974) 131 C.L.R. 510 per Barwick C.J. at pp.514 to 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: " 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 1s 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 sect 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: Provided that the Court may, notwithetending that they «re 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." Althetaoh the comvon Australien form 15 not wereserrtally ditferent from this provision, there used to be a difference bevecsn ipe vow rs of tus Fnglish Coirk of Crimin=1l 4.271 end Qe pou-ars of tha Aistralvan strate Courts of Criminal peel. The Snglieh Court .as not given power {o order a new trial, and the conmon form slatnute of the Australian States inverisbly eprom A pyres peeer. (TL te pa Buecrstbiar CLrimiael Code $.939 (snerodaced 1 Tavnsry 19h?); New Gouth Wales: Cramiaal wwpsel Act of 1912 -+.8 (now Criminrl_Ap ire] 0D i) Cnceenrstand: 'the Crivinal Cod? 3tendment Act_of_1913 9395.3 29a 11 (nex, Crimgnel Cede 2.4963}; Vieterzas Cretiai-) teneiak we ED l4 12. 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 and Cody v. The King (1937) 57 C.L.R. 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] A.C.878; Reg. v. Mansfield [1977] 1 W.L.R. 1102. Under the common form statute, the appellate Jurisdiction may be exercised whenever the court is of opinion that a miscarriege of justice has oeccurrcd - "che ograertest innovation made by the Act", as Isaacs J. said in flergan v. 'he King (1919) 27 C.L.R. 13 at p.23 - and the grounds of cppcal extend beyond the errors of law which, before 1907, feundced the intervention of the Court of Croen Cass s Reser red in Enaload or the exercise oF a Tike jurisdiction by Yustlralien courts when a trial yudge teserved a point of lew for consideration (sce Primer v. The Aneen (19758) 99 C.T.R. 346 #1 p.%50). The stttulery history of ihe jartsdiction in criminal -ppzils from the Supreme Court of 'the SBuseratian Cevitel Perrarery vs quire differ ne From tie cee worry Fae cery uf Jarisevetron to crt ine) poxels tn 32 Votre Teen bee ee ta Engl-nd. Appeals from convictions enrcered armen jury werdieks in the Supr me Court of cho fustrelien Crp al wtiriecry heve POE ten gavetecd wy LAs e. aon Fora cee entra, 2 chee rr iy 13. of justice 1s 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 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 sppeal prior to the creation of the Supreme Court of the Australian Capital Territory pursuant to tine 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 gyroundc 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 epprars to the Pull Court of the High Court to be a sufficient ground of zpperl." The Wigh Court also had power, pursuant to s.36 of the Judiciary Act, to ordce ao orew terval when it seh eside a conviction under s.52 of the Australian Capital Territory Supreme Court Act (Sperra v. The King (1942) 66 C.L.R. 143) ,and thes che chatutory form tztion of the enp-lletle juraisdiekion of fio irgh Court provided for reltef ws arple es the celief avalleble in the Auecrralian States unser vein respeative now trial provisions, upon grounds which w re soeningly as broad as those eral-ined in chy eecaan Fora et ie, the grounds upen which Lhe criniarl eépoellate Juusdretion of she * eeral Court mighk Se cyercised were not eeectlocd aa a wifetug sr 4.24 oF she Potersal Court of 14. 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, supra; The Commonwealth v. Brisbane Milling Co. Ltd., supra; and Victorian Stevedoring and General Contracting Co.Pty.Ltd. and Meakes v. Dignan (1931) 46 C.L.R. 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 - "[Tt]he grounds or principles upon which the court 1s to determine appeals are stated, and the duty 1s imposed on the court of dismissing an appeal, unless on those principles it determines that it snould be allowed." (per Dixon J. in Grierson v. The King (1938) 60 C.L.R. 431 at p.436). The statement of grounds 1s a logical step in ihe creation of criminal appellate jurisdiction, for =n apprsl is not a canon Tew cemedy, and grotnds or prineiples wnst be establi¢ghed to govern the power to interfere with a verdict ond judgment of the court of trial. Cleerly snow, the yronads upon «hitch this Court iroy TALLCine LES LPOWLYS ALe not restricted ro thoe2 whieh govern the determinetion of a strict appeal, for the grounds muet be -ppropriake to the eppellate wowsr the c.tretir OF reich 1 Longhe vi the wap. where an sSpplicatton For a new tric] is wede, che qroeads upon which new tr187S ara grznred Picer Jue wig 15. entered upon jury verdicts govern the determination of the application. At common law, there was jurisdiction to grant a new trial after a conviction (The Queen v. Berger [1894] 1 Q.B. 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] L.R. 1 P.C. 520; and see 84 L.Q.R. at pp.202 ff). 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)(£) is made. That paragraph empowers the Court to grant a new trial "on any ground upon which it 1S appropriate to grant a new trial", and as that paragraph does duty for both criminal and civil appeals, 1t 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. Wo doubt, when the Court in a criminal appeal determines to set aside a vetdict, the provisions of s.28(1)(£) then require that the grounds for election between the two courses be considered as a further question (see Ross, supra, The King v. Wilkos (1948) 77 C.T.R. 5ll at p.518; Reid v. The Qucen [1979] 2 All E.R. 904(P.C.)), but the grounds to which the paregraph refers include the grounds upon which the Court determines to interfore with the cenviction. The appropriateness of the common lew rules as Lo the granting of usw trisls eEpears arplicit in che gudesnmenc of the High Comzrt an Stekes ve. The Qucen (1360) 105 C.U.R. 473, en appeal oegainst a couvielien on umlictuwmat before che Sapr-me Conrt of the 7usiralion C#pilal Territory. the Covrt (Dixon Cate, Ball grr tnd vitro ld) weave (at ep. 84,449): " In the «nd ve thirk + he decisien of Lhe romla chacn ware at prea oeypen he ore sr alo rule hei roe bre OF Lee ee A let tre Lion ar Lun Jika 16. occurring at the trial 1s 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." 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 gualifying rule in the form in which it stood at common law, prior to the Judicature Act (see Balenzucla v. De Gail (1959) 101 C.L.R. 226 per Dixon C.J. at pp.234,235). The criteria for setting aside a Jury verdict which are furnished by the new trial grounds are equally 2ppropriate 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, supra, the High Court thought ik appropriate to apply the new trial grounds to all appeals unier 3.52 of the Australian Capital Territory Supreme Court Act, not merely to applre-tieons Cor a now trial unt-er ¢.36 of rhe Jodiciary Act. The grounds of appeal under the cowmen -tetutory form ( 3 ro which, coe Roeper ve. The Guten (19338) 99 C.TLR.345 AL op.350-352; Plorp ve. fhe Queen (129393) 110 C.N. R734 at pp.244-247; Ratton v. The Qucen, -uprs, at pp.514-516; Drascoll ve. tthe Quecn (1977) 137 C.L.R. 517 at po.524-527) are not to be teNeA 4s Tdeatieal witn the aw trial gressadz © f ee oprel. sie r&b jadgants of a court aching under the eowiwon Form seature cannot be unsuestioningly applied by tiis Court ceting uné6er Dees FITC cre atly feewmnlaled (see Rarien, supre, et the 497s 17. cited). 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 1s established, whether the error be material or not; and they thus prevent the administration of the criminal law being "plunged into outworn techicality", as Barwick C.J. pointed out in Driscoll,(supra at pp.526,527). But unless an error cannot reasonably be supposed to have influenced the result, the conviction must be quashed. In this connection, the well-known passage in the judgment of Fullagar J. in Mraz v. The Queen (1955) 93 C.L.R. 493 refers to the burden which the Crown bears on appeal. Although the Court was there construing the common Torm statutory proviso, his Honour's coastruction of the proviso accommodated the sefequards assured by the traditional precepts of the criminal l2w. The proviso, he said,(at p.514) - "ought to be read, and tt hes in fact at.sys Leen read, in the light of the Jong tradition of the English criminal law that every accused person is entitled to a trifl in which the relevent Jaw 15 eorreectiy «© oleined ro che Jatry nd che rvrul-s of proe laure id oevidenee 4ara striacly roellevsed. tf ther- 3S any Failure in any of chese respects, end the .-:pellant mey thercby hive Jost a cheuce which goa was fairly open to him of 's-1n coultled, there 1S, in the eye of the Jaw, 2 miccarrirge of Juelies. Taehree hes vtec ery, itd in vor ew es, beccur 2 ue apothbont hee noi hh Pera che ele yas that he ¢hall nave, end josbice 33 Justice iceurding to law. ltrs fer whe Crown to wane Lh clear tnat ther? 18 no real possibtdity chat Jaecies Fos uteoarer rca." 18. 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, ibid., at p.526). 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. The limit upon the grounds available may he 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 assrilant (Plomp, supra, per Dixon C.J. at p.244) if the Jury could properly have found the verdict, vicwing the whole of the ovideje2 vratonazbly cond spprectaling rhe o4is and slendard cr proof. (Raspor, cupr3, at p.352). Publicity ceid to affect_a fairy trial Cn 17 July 1978, 2 woek hefore the ercond rial commenced, an article titled "Cults: Paths of Violence" spperred in the publication "deo eeiek", which cireulotcs in tbe Besterdicn Capitol teretbtory. Ae areciele rceflricd to the vetavatis of the Anenda Marge seet, ond inclue@zd 2 ptreg:aph in tre Follewing t ras: 19. 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 1n 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 Morarcji Nesa1l was staying. Police discover2d yet another bomb in the Indian Embassy last April." On 25 July 1978, the very day on which the jury was empanelled, a report appeared in "The Australian" newspsper 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. On the same day there appeared in "he Canberra Times" newspaper ain the ¢ection dealing with "Court Reports" an account of the committal proceredings in Sydney (elthough without any reference to the Hilton bombing) tnd below that account and under the heading "Second Tr1al Adjourned" there ms a r2f rence io che trictl of the sopelicnt mn che folloving terins: " The trial of "rx Jotun Welliem Par€ on elcrre s acyeing from whe all gcd itebbing and sbductiton of the military adviser .o the [ndjian Aiuh Couriscton in Scptomber,1977, was edjosrned untrvl roday «nen "ce 6DUFE 0 60fpperred an the ACY Suprena Court yes erday. yas Falta ed Aros seg Low lth tr bres Comavr ard «otra 2) fon, cir DGC, ie Re. Cpl 2,0, An @erlier tral of te Pech tai ney wrrctreci-d on {4s V2th toy efler Gy Teeteec atreti ea valed net wie eey TP Pca Tes Te cet dence 74g cbhoula ee Ca oe eradeds 20. 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 lest trial, and that certainly by that time, if not immediately, all the outside matters can be put to one side and just simply teken out of their minds." The jury were not confined during the trial, and they hed access lo current newspepers. On 29 July 1978, shen the trial had procceded for sone days, an article avprared in "mac Sydney Morning Herald" newspaper recording certain of the events in the committal proceedings in Sydney and towerds the eenelision of the article, &@ Pprr@greph ever-red ain ti Ve o following terms: "He thought he ves in the confidence of the group erd wes well liked. Yney nid Lold him sheut | jeb 'Lhey were plénning in C+nkerra, the Duff caze.! " "2 edreton of rhe Ne patl Mises" ut. bep or Ter the wk wirag § Aegqest vas poratalte d rt oeceue Geer sriee to 31 muly «ad contained an article retelling, weagel ofsec tninds, Othe all ged activitir-s of Lig *xenda Marga sect. Tt r-sd es 21. In late 1976, police arrested three Ananda Marga demonstrators outside the Indian High Commission 1n Canberra and charged them with assault. All were acquitted when a video tape of the incident overturned police evidence. In August, 1977, the Indian High Commission chancery in Canberra was burnt out, and the commission claimed 1t was the work of the Universal Proutist Revolutionary Federation (UPRF) which it regards as the political wing of the Ananda Marga. No charges have been laid. In September 1977, 1t as 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 m2mber of the sect, has been charged with this. Wis first trial in May was aborted over a technicality after 12 days hearing; his second trial began last week. In October 1977, an employee of Air India wes stabbed at his desk in Melbourne. 'The Indian High Commission claims it received a note from the UPRF claiming responsibility and demanding the release of Baba. No charges have been laid. In all the catalogue of accusation against the sect - in the midst of which the Department of Lawmigration deported and banned the entry of Ananda "ergis to Austral1a - the one police victory was a conviction and fine against a scct member for leaving a bloody pig's head on the counter of Air Tndia's office in Sydney." had Me. Gyles .pplied for a ditche-ge of "ue yury on July 1978, submitting that a fair trial could not be beceuse of the cumulative effect of tho published articles and reports. His Ueruar refused the aaplreation saying: " i think the epelicacion 1s entirely treet edable 6 id (Che eoswecern of the ceensed is sion eoreg iy ts td Lee ne Te Tp) aud hear oaer cern oa, To theork, ef LI based. Ioleve to eoansider cme ther, in all the Circuastencss, LT cnould divensigqe chis jury end hope chat snotherc trial ac sete uniemd ond pes aconedy anrt ed tome in whe future will frre "Jtbler thon thes ene "hs eS Ler as ne .pthe 22. reports are concerned. Of the five newspaper reports, only one 1s from a Canberra newspaper, and 1t was not suggested that it was an unfair report of the proceedings in Sydney. It was simply that it did draw attention to what wasS going on in Sydney and to the apparent connection of the Sydney proceedings with Ananda Marga. 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 pages 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, On cach of the occasions when an app]ication was mede for the discharge of the Jury, the lesrned trial judge was Feced wich the choice of delaying th? trizl in the hop? thet, when a thizd trial was held, ony andceirable publicily vould he forgotten, or continuing with the trial, trusting to the fairness and good sense of the jary not to be affected by any "Ge ese article they hed co.d or, Cor chec etter, ony "Jdverse Wetter Fley uad hesid. The learned trial jnudye hid no diseretion to terminete the proceedings on mncictment R, v. Chairmen of London Connty Sessions; £x_ p. Downes (1953) 37 Cy Pro. R.14B ek pp.do0-152), -ad tie 2 200 LMbikl @ Lo chose a course of indeatinite postpoanment of the crral. av ine tiyal wig nok to procecd when it did, it would have to nroce.,d ot c sane Toler time. The learned trial juljgea «4g 23. question whether to proceed was preferable in all the circumstances to adjourning to a later date. 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 thry see, read and hear in the media. That 1s 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 C.L.R. 351 at p.370). When an adverse press report appears, a trial judge may sometimes have to take steps to eliminate or diminish Lhe possibility of unfairness to an accused person. The discharge of a jury may be necessary in particular circuinstances, but that would be exceptional. There 16 no criterion gave that of Going justice to the best of the court's ability in all the circumstances. The learned trial judge gave careful and anxrous consideration to the applications to stley procccdindgs snd to di whareae rhe jury. He replied has cout nsines2 end considerable experience aS a jyudgn preciding over erininel trials in the Australian Capital Yerritoty in retusing the applications, and in our cpinien he .oech-d the riethe deciction. Even 1f ve had been dispoerd to think «bet his Houour should have adjourned the trial again, his refusal to Aa so would aot be snifaiciesat by wiself co werrant tno setting 718 OL rie cenmvielien, Snooaraia oat board non. veers re porcs ond } L u F the Court unless 1t mey re-sonably be thovght that, on seccount uf the pypalieeirvens, creher the yury vortounlate tos 24. had not done justice according to the oath which they took. It is not sufficient to show that press reports and articles made ut 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 UWewart C.J. which insisted on the importance of seeing justice to be done as well as justice being done (Rex v. Sussex Justices, McCarthy, ex parte [1924] 1 K.B.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 morely because the yicy laboured under a difficulty engendered by adverse pulblicity. If at were otherwise, contemptuous publications world be effective invariably to delay, for a time or inderinitely, the proc- dings to which they relate. In the vresrent case, there is nothing to show that the yury were uneble to perform or did not perform their duty according to their oath. Conversation between Juror ind Associate ny On the 16th ¢cy of che trial, a fureher omplicacion to diseywrge the jury .as im-de. On 1S SLeasion, the cnesdentk yglving rise to the application was a conversation between his Honour's associate and a juror. Ti come fo hws Mojeur's athenlton bhat on the nage of Saturday 12 August 1978, his Nonour's «ssoc1iat? and one of tue Jurors Vere oresent et the :ime private party at a hoise in Conberra. Tn ecco dane with curtent prwetiee, whe Jury bed 25. 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. The evidence of the associate was that he did not know that the juror would be in attendance. At about 11.00p.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 Anstralzen Capital Territory. The man meade 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, oc "Tt must be a bit hard when 1t 18 so disjointed", or words to thot olffect. Whe juror said that ne and oh oc yerors were looking forward to Lhe receipt of their jury Fees. One of code Matters discussed concerned an incident that cppcars 1o have been regtrded by cveryoody $s cmustad Auiind Freq evid-nee of Colenel Strgh, although the uneraent ecourr do ct a tiwe when the Colonel was being cross-r4amined en vche, critical rssue of the identification of the agpo2llcnt. Bis Movour ca d wt be eceek Lie cour .2 Of eclii wy '13 associate to give rvidence for 1119 dual purpose of nibling counsel for the Crown end for the appellint to bhava a Tapstro-nd aece ine XE oat Leor place ind, eeee nly, ry elera at 26. would be possible for a court of appeal to consider the Material for itself 1f 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. Wis Honour refused the application, saying: " It is not a matter of central importance, but I think there is a matter that I chould not put out of my mind when I am dealing with this application. We are now, I think, in the 16th day of the second trial, the first trial having aborted on the 12th day, and the jury in the first trial having been discharged. It seems to me that that 1s a matter which could be taken into account properly if there was some doubt about the matter; but if there is evident necessity, which 1s the phrase which 1s used by courts in Australia and the United Kingdom - 31f there 1s 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. Having heard the account of what occurred 1t 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 ther? %as bhoen any improper attempt to interfere with the course of justice; and considering the matter the best I can in the time and circumstences in which it has arisen, T om not of the view that thore us «any eviaenf uccessity Lo disacherae che Jury. ln wes an unfortunete inerdent. Ioom cure we would bive all been far heppier if 21t had not occurred; hut I do not think that 1ut calls for the discharge of the jury, end I therefore do not upniold fhe eeplieation." fits Honeur's refusal to discharge the jury on this cecasion +45 taken as a ground of appeal. In Trawarth2 v. Confidence Bal. awed Co.N.G. (1396) V.t.R. 285, Folroyd ACJ. delivering 62 jude.,ent of the 21) Cour ~2 -4 om c wC.d., Uood rad Cussen JJ) said et p.ize "Te as he hly di sacs le, "nd it has alweys teen +o z ' 27. 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." This passage was cited with approval by the Full Court of the Supreme Court of Victoria in R. v. Ilodgkinson (1954) V.L.R.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 (at p.144): "We must, therefore, make up our own minds whether the incident was of such a character that, if the verdict 1S allowed to stand, justice would not appear to be done or Ithat the incident was likely to give rise to a reascneble 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 1s calculated to raise suspicion in the mind of the ordinary bystander. Tn eddition, though the qiestion csred and ansuercd May have been harmless, it is possible it may not have been." In Re. ve white (1969) S.A.S.R.491, 8 ceonvercetion rook Place pPwtyren tua Crosa Proseeuter tid a Jarynan au1iaiq the luncheon interval on the last day of Lhe trial. The ju:yman, p28sing the Crown Presecutor oulside the courthouse said, "Good ereernoon, atee c-y", to atteh Lhe Crovmm Prosieui oe geplild, "vos". fhe Full Court of the Sio.tme Court of Souch Austr+lia (Bray C.J., Chenbuerlain J. end Zelling A.J.) said ci p.493: "G2 perliaee rh-k ve 1s ef tao eth port aero vite Jaetien ust not onty be doie bik he eern to ba done, end that euch « ow cvers7hion 75 Grpo.rd to by "he Juryman could easily reuse susutcion jn enyore rT' QL ov at wines betrieg ry, ced pe corvculcoriy on hoe ccuased. RUL Aowv Lbet es ieanocuous noture hos 28. 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 K.B.853. But, of course, 1t 1S much better if jurymen refrain from speaking at all to counsel, witnesses or anyone else concerned in the case until after it 1s over." R. v. Twiss (supra) was another case where a juryman's conversation did not warrant the setting aside of a verdict of guilty. At the trial, efter the judge breame awere of the juryman's conversation, he decided that the cas 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 (at p.589): "whether what the jurymen did was of such a character as to lead us to think that there may have bocn en injustice done to the prisoner". Subject Lo a geolaficetion parsenily co Soa oweutioned, that test 1s consistent with the judgtwent of Criifith C.J. in David Syme & Co. v. Swinburne (1909) 10 C.L.R. 43 at vp.52,53: an n2 matter is now put Lorvard as mice wtuct on rho part of a jurynan. That under tour cli ciumercne & may be a Ground for a new trial, bunt the granting of a new trtel on thet ground 1s diseretionary: Morris ve. Vavian (10 "28 W.,137): end a new ecrial ya greaked snty | cease hero 1s 9 con Lo belive that vue eengse OF Jester. ys tes bb -2 Ub sreati- lly aftfretcd." Ws Ws Gab wes tnecd comes wid wre a utw vrazd pptieckion 29. 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. Griffith C.J. was looking to the effect which an irregular contact with a juryman may have had upon the result, and it 1s 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, supra, 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. The appearance of the chance mecting 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 axtra-curlal communication with a jutor once the circumstances and terms of the communication were disclosed. The disclosure was prompt, complete, satisfying and unchallenged. The avidence revealed an upnocuous exchange of plerasentries, The fa s6couiale fold nis Honour of the couwrs ation cond Jiselssed the conversation in e«vidence. Suspicion of an improper communication 1s disarmed by the cendour 23nd terms of the disclosure, "nd 1t vould be "utterly unrersor%ehte for eny each suspicion to reim.in". As Tseores J. observed in che coarse of argument in David Syma & Co. v. Swinbucne, Supra, ar peal: " Tf afler aemtination of tha F-eevs che Court rons Fehr tucee 1S a cetpicisn ef cate teaers there sienld he a new ecriral, but not 1F the sespielon 3s wiped away." Sesofeson wes entirely wiged 3 ay, and tnis yiround of <-ppral u LQ ar i aleo fails. 30. Objection to Identification Evidence cE 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 identification by Colonel Singh of the appellant at the identification parade held at the Woden Valley Police Station after 8.00 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-hurns,etc., I after some time was =ble to more or 1:ss 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 7zomething 23nd he asked me what JT would like thom to say. (ben I said - I picked up a Sentence which hed earlicr trenspired belween m2 and this persen, that is, 'I have got nothing against you.' Fach man repeated the sentence. I listen-d to that carefully. After that I again had a Jook at each person from all dicections and when I was sure tow-rds the end of the identification preeda I ictd che officer Lihat | would like to plzce my hond on the persen chem £ think and [ would tdentify as the person «who did all this to me. My chair was wheeled aid 1 put my right hand onto ithe left hend should>r of this perrzon." That person was the cpp-llant. Gna of his utcerlis of appeal 1s Thak the evidence os 10 319 1d_lutlifierticn by Coleael Sraqth at Fhe QWantirFres ion parity ssould non bive i aA pleat tie ad to na given,end that the lecrned tri2l judye eerad in "not adegquarely or at all woerning the gyury of tus Genyer of eee pling such wvavence." The oo.letrsa co ue Kon as ee Len ed ip tegeaent to 31. embrace an objection to the court room identification. 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 10 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, 1t 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 1t 1s 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 cppellant must show that tne reception of the identification evidenee hefore the jury wes erroneous; it 1S not sufficient Lo show that a conviction based on that evidence 18 unsafe or unsatisfactory. This Conrt 163 not ex2rersing wpyellal® Juriedsclion under ihe eommon form statute whieh hes heen the Stetieory context of much of the case law on identification evidener. In Devies and (1937) 57 C.n.R. 170, the Htygh Court point-d Cody v. The Kin to vbe rowdatbrion of che jguricdiction to invcrvene. sey noted fav p-]e0) chet the Court of Cririarzl ®opeal in Cagland — hd bocek 324e@ 2 convertion sieve pn Taras un us or oun tf2 Lo edlew thr veered t to stend per euse sone Carlure bas occurred in observing che conditions which, ain the conrt's view, cre oosential {to a catisfactory trial, or beeceuce there 1S Core Fearure of the c:se rising a substractr 7] pevsthility cebat, crveher qn the conclusion recle, & 32. or in the manner in which it has been reached, the jury may have been mistaken or misled. 'his 1s the basis upon which the English court has set aside convictions resting upon identification conducted in an unfair or unsatisfactory manner." 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 1t does not follow that the rules of practice are transformed into rules of law; rather do the rules of practice acguire such force as the court of criminal appeal chooses to give them. Thus in Davies and Cody, supra, the High Court applied the English practice to Victoria when it said (at p.182): We think the view accepted in England and, as far as we know, elsewhere in the Pominions where the provisions of the Criminal Appeal Act have bren 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 end has on Uthat occasion first identified him, the liability to mistake 1s 8O Increased as to make 1t unsafe to convict the accused unless his identity 1s further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whos? identification his been of the s-me kind, the nuaumorr of witness, Laer oLporktuniti-s of obtaining @n wapresszion or knuovledge of the prisoner and other circumstances in the czse must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole cas.2@ the pnocsibility of error is so siostenti2l 35 to meke the coanvievctan unsafe." TE 1t be malerial to oar decision, 1t mzy be poted chat in che Present cese the appellant was not shorn alone and other evidence fenicd .o prove 415 tdlnkity ih eke ow jarlenk. Tt is not wutfieient fur the sppellanc to show dnat his cenviclien ves "oneatfe* a5 that rorm re raed on Davics_ and Cody, ccpra. Merrovor guorads puck be redbiedo on, sng rt use be 33. 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 Reg. v. Blackburn (1853) 6 Cox C.C.333 at p.338. Examples of the receipt of evidence of identification parades may be found in Rex v. Preston [1909] 1 K.B.568 and Reg. v. Osbourne [1973] 1 Q.B.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 S.R.(N.S.W.)427 at p.431. In Craig v. The King (1933) 49 C.L.R.429 at p.440, and Rospor v. The Queen, supra, at p.349, the High Court raised no question as to the admissibility of such evidence. 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 1f it be admitted (Rex _v. Christie [1914] A.C.545 at p.559). The circumstance which was relied on as depriving the challenged evidence of probative force was tha snoposed predisposition of Colonel Singh to wieontify ct the psrede a person whose photograph had been shown to him that day. Although the appellant's photogriph bad beicn chown lo Colonel Slagh roge ther with others, bis + 3 fhe only fece .O WD Teen In both the photographs and the id ntirieation ourade. *Fnd thns, so the argument runs, the risk of a subcontcious dis~esitien Lo jdentlify the fCoatures eoarngon to both diepl-ys ma: rhe wa evidence of the wdentifiicel fon porade dingerous to place L2fore the jury. Such evidence, 1t 16 Said, was highly prejudicial, but to unreliable as to be withont probart7n forcea. Met there + MsS Fo wegurbl2 risk of toe we ase Ons Sesser dam vo itniify rao appellent uey be allowed Tear the puree se of cue veo ccna Aiseussion, bul bhe riek was aok so grive chet the ramiess'le evidereo of iaentifreatien chonld hese bern vithdrvya from rhe Jucy. 34. 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 forgotten 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 1t. 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 C.L.R.316). Next 1t was argued that the sumnming-up wes defective in that the learned trial judge merely recited as counsel's views the arguments against according weight to the iduntifieation cvidence. It was rightly submitted that the ralnting 10 be giss*n to a jury @3 to the Graigers of aching ul3n identification evidence should bLe given with judicial authority. And so 1t was. The learned trial judge gave to the Jury @2 wproprittie and clear vwearning ibat they chould ¢xemine very closely the ctreurmstenees gn which any ientificatton wes made. ft was an the dight of thrit clearer varning thab tno learned trisl gidge yr miided tie jury of the submissions which eorasey Red + Jeon the . titer of wientariestion. fe reminded the yury ef the ergeactabs put co then io tee ae Lo ite counsel took no evyeelion erther ul the trinl or before us. There was nowhieg sore vhich hrs "oweur might heve been reagnired to do. 2 raz not aeaurred, Having r yard to i.e evidences, Fo azWept ' 35. counsel's arguments as his own. The terms 1n which a warning is to be given turn upon the circumstances of the case (see The Queen v. Goode (1970) S.A.S.R. 69). In the present case, it wes 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 The next challenge to the admission of evidence telated to the confession allegedly made by the appellant to Inspector Brown on the Sunday afternoon. This conf*ss10n 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-seclion, a confession or admission made by a person charged in a criminal proceeding 1s not admicsible in evidence egainst that person unless 1t was made voluntarily by that person." Section 68 departs from the common law in not efeluding all anvolveatacy cenfessionse, Cub-orctton (2), Lhe dvminent sab-seetton, orovidess " A confession or admission tendered in "v7 iszaes aga.ast the per3on charged in a criminal preereding sual) not be reject: d cnly on the ground that a pironise, tnreat or other induclaenk (not being the exercise of violence, force or other form of compulsion) hrs been u2ld to out or sereisz'd upon fhe Derlon mevraAg tne coafecstor ar ears rsa, TF the judae 18 satisfied wusst she wm ans by whic) whe confession or aimission wes ohtaraed wore sok in fact likely to cause an untrue aanirszion of guilt to be mide." - { Tat provi ton is srmijie-r fo 8.14] of Fur Vicrorten owade ice aE eT: 36. Act 1928 which was considered by the High Court in Cornelius v. The King (1936) 55 C.L.R.235 and in The King v. Lee (1950) 82 C.L.R.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...1s of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made." "Calculated" may be teken as synonymous wilh "likely" (see Cornelius, Supra, 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 , supra (at pp.147,148): "...the common law took an extremely wide vicw o€f what constituted a throat or pronise...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 ca3e presumed the statement Lo be untrue, or at least to he probably untrue. The Court declined to adopt Lhe 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 wes that 1t was ruppe sd that irl vould Le Gengerrous to Treave awzieh evidence to che Jury. It 1s this prirciple which has been doliberately eltered by Lhe Perlicinent of Victoria in s.142 of the Evidence Act 1928. That provision adopts, in cases of threats end promises taAreh vroald Siva led to che esetvst9on of 2 renfessioad at cannon Tow, the criterion tnak such a eonfer sion 1S not to bb? rejevhed es eridence moray on the ground of a preceding or concurrent ciecat or promise unless tne jida2 is of opialen that the hyreat or promise 'wos realiy veleculated to cause Pn untrue eduresinn of guitTt to %e nadat. " Sub-sectiens (J) «nd (7) cerace aA alaintory cude covering the admiesihility of confessions woich a1¢@ allcged not rOowe aoaterpory by yx sten of vier beving Fe 1 cototitd by a 37. promise, threat or other inducement (cf. Lee, supra, at p.150). The question of admissibility of such confessions 1s governed primarily by the provisions of sub-s.(2), for 1t is in that section that the criteria for admitting or rejecting such confessions are to be found. We need not pause to enquire whether there is any distinction in onus of proof to be apprehended from the difference between the phrases "1f the Judge is satisfied" and "unless the judge is of opinion", (as to which see The Queen v. Douglas (1962) N.Z.b.R. 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 Facic 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 Zealan@ formulation of the section. There is no difficulty, therefore, in casting upon the Crown the onus of esteblishing that a confession which is alleged to be involuntary because of a threat promise or inducement is admissible either because it Goes not fall within sub-s.(1) or because it does fal] within sub-s.(2). It was ergu3d that the Cre n could not discharge that orus vnl)ess the precise we-ac hy which the vanfies.ion wes obtained were identified, clse how could the likely effect of n those means be ascertained? And 1f the likely etfeet of Lhose usens contd not be |asecertrin Gd, the onns ot -atiszlying ihe Judge of the matters referred to in the condition egecified in sub-s.(2) could not be discharged. iis eryguient zrase beerune his Hononr, after heering evidence on a voice Aira vatending over seven @-ys, fornd hin 21f en ole ron 2 a finding 33 to Waevher che cone yston wi. velo ory. Tefore onsidering rhe arguucnt, the appellent's «vieence on the voir aire and his Hooneur's Fradings shoald be maenticscd. Tne Cron ted evidunce from a oases yo of vt on aes aawlvdiag faspecior Brown cond 38. Sergeant Lack, and the defence called the appellant and other witnesses. 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. Hie 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 conversation followed with respect to the Ananda Marga and the frustration ahout 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..." Ue sid 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 ha hed already said that ho Lhought Io owas a Sincere porson and that that should not happen, or somerhiig like that". The appellant deposed to his understanding that Tavvector Brown thereby m2da a "threat of come violence ecc inst me if EL ard sot talk". Yhe cppeltaat clco dtsesed wae Inspector Brown hed said to him: "IIow would 16 Isok if you changed your story after talking to the other guys in the calls, on reaeadP It vould Jeok Tike you Jurt eeneacired 4 slory", Tt wos caibiailted Liot this vould he torcn to he an ymplicd threat of detention (2 subaission vwirtch the lecrned trial judge accepied for t%3e2 purpose of bis rul'ng), or ro be Yoo plicd Gucae that ab vould Se ria ue rse For quae smpelicne 'au A yok FX eoutt TE he hed reteced CO peek. Pas snpollenat olso se12 thet after Tnereetor Brocn mentiersd the evideice 'hE? bee poltes a.d cg 7inst Dim, ba 1ede a slat.lacne. Thoueb no odaid uot ceesph all of Lue Crown evidence as to viet he said, 39. 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 s3id? A. He said that I'd heen 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 heen 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 hépp2ned? A. Well, I replied somelhing like that - that seems like a lot. Then I .sk2d him what he wanted to know. That's when I asked him what he wanted to know. QO. And then what did he c2y? A. He said something like, "L'1ll get ferqgrant Lock in here to take notes. We'll go through the evidence bit by bit and yon con reply to cach of the articles." Q. Did Sargeant hack - [To caine cw cheb. Vat S rgceent Lack in the room ak that 0? hes SCS AL T think he came in then or just before that. O, 44d did he coumence ro write nowrs? A. Yos, he sat - I wes Freing Trapreter Bram ac1oss {he table cnd he sts - and St.gecnt hack sit on Lhe olher cide of the roman wand ha then correnced eck roles. sy2 vane wire stat he ee -" Puerea was nO exomMinstion of the -ppelirar BS 10 SQlciLe rg wha conf cetonal steten nt wes tous nor cas omy erets c¢ ainelion Gi.ectid .o the Gently of che cenle te ronrh ovat see 1 mantic'. 40. 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, 1f any, of section 68(2). 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 adnissions involuntary were promises, threats or inducements of some kind. Although the accused was unable to recall the whole of the conversation, he sa1d he could recall certain high spots, as he described them, and T think 1t probable that eny promise or threat or any other inducement which was Likely to cause him to m2ke untrue admissions would be something he would rem-mber." 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, oad be found: " After considering the salicnt portions of Lhe accused's ver3ion of the unrecorded part of the con7rsation vhich preeided tie recearded part of che Gonvercsetion, aAllLlough Io cm not sarisfe. @& that the statewcnt was wolrntary, T thiak at prob-nte thet on the accused's own verston of the maclzr che means by which the ecdmicsions wore mede were nvot in fect likely lo cause the accused ty make an untrue -Qiiosien of guilt. Ine evidence of the sccused is thet he 3s unable to reeall the convericrian completely, but, es I have said, J think tt unlikely that he would not remember any 1olevant promise or threat or other uwedueem-nt which might Qeve2 been held ovt to 'im. " 41. 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 1f meade, in precisely what form it was made. Because I cannot exclude it I have said that I am not satasfied 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 edmission of guilt at that stage." As to the implied threat of detention, his Honour $21d: "This is a somewhat garbled account which 1s not easy to follow. There may be some suggestion that Insp Brown was holding out some kind of threat of detention to the accused. T think however, that it would have been apparent to the accused at this cl3gqe, whether he mcde admissions or not, that he was likely to be detained and charged with offences, and that for some period he would he on remand. I do not think that this would pave caused hin to mzk2 an antree admisston of gutlk." And as to the impact of showing the eppellant the articles discovered by the police, his Honour found: the turning point ceme when h2 wes confranted sith certain objects end iold of evtrtatn ayidenee, Toim urcble to 3°32 how this wes ia frek lively vo cease "lt .ppéars to me that on the ecemerd'3 on vere on, Lc gnount vue viet ston oF gaiit. IP ounhe eel atctd cy an a prstbion bo ee plain aeay chvs erreome beavis] evidence, I tiiink the faeu chat wt wes drawn bo a1s atientvon ould heve een Tirely to crzus2 in to gscek to evculpate hivsel€ rather than co make an i mabeve ~Ayistion OF yuailt." 42. 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 circumtances 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 challcnges the rejection by the learned trial judye 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 anability to find a particular promise, threat or inducement and the consequent inability - so the argument runs - to predicate of an identified 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. As to the First part of the argument, there was direct evid-nes by Ivepeetor Brown woieh denicd eny iwneropriety. Theres was evidence i ifher way as {0 whether a thraat, promise or induc*tment was made and his Honour's inability to make a positive finding cannot be disturbed on appral., During Lhe yoir dice, apd Lefore this court on -ppeal, vonsiderable atiention wos given to che time when the -ppeellart was apprehended on rhe Sunday aftecnoon, 18 September 1977. Whe police evidence put tye ting of his epprctheonasion at Caloola form viech Veter wien tha tae For which vhe cop cd tant conti unica, © ad ctie Jivergygence wn the ovidence wre rolevant to the ws.ue whether a convecs-Lion eA eccatred Fetyeea Taspeccror Brown and the 'eoellant before the conf ss10on wes a9dct, a env cesFcLan in 43. 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 3s 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 gleancd from counsel's cross-cxamination of Inspector Brown. Counsel had put to Inspector Brown that he had interviewed Ludvigsen on 15 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 Ludvigsen, suggested tnet other police officers were given to violence, and had e.spressed a sympathetic understanding of people who espoused csuses. When his Honour rejected the tender of Mr. Ludvigsen's evidence he said: . Io am of the view that the similar acts or Goclrine (sic) doss not supply Lor che purposes of tesliag whot ww mn my vicw substsrlarzlly che eredioility of a@ wilness and chat the weapon open for that which has b2en used here by Mr Cyles is cross-oxamination; there has scen substantial CLOlG e.emsnAtion aroeut this matter and Mr Gyl.s lics Gee .n my attention alreedy and uo devbt will agiin ro erriaira writers "hich he will cubmak ale conLradictory anpawers and it seers io me that thek is the appropriate wey of testing these sort of things. And I am not prepared to permit this cvidunee on Lhat gromid atone. To omin rot oven convinced that the mwabeers ltooued by fir Ssytes ire wunedret tive of suftrcagent stmidoriatics. week ct person Geos i' on particular suspeck in one partieyler sttustian, at beaws to mo ean .3ry fo ruch wIhh indi idual «75935 Lpat it sevld be gnsk roe yoetificd in rhis cere so Dear g7iarteeer 2 boak ore veriieular suspect ad ury Fhe: sfore sorethiag like ts tusl Gave hep ened wich 44, somebody else. I see very little probative value in 1t myself. And for both those reasons, I am not prepared to allow this evidence." Evidence of similar facts is not, of course, atmissible 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 HWonour was then enquiring 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-cxamination. Evidence of similar facts 1s admissible to prove a Fact in issue when the connection 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 1f 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 enother does not, at leest in the generality of cases, show the kind und degeao cf connection between the occasions which 1s essential to the 3dmission of evidence of the former occasion as a similar fact to prove the vey In whieh cha bask wis porform7d on Lhe lateer ocraston. [nn the geperrtlily of cages, similar face evidence 31s not admissible for the reasons given by Street C.J. in Katto v. Gilbert (1976) 26 S.R.(N.S.%.)441 at pp.447,448: " The rule of law in such 29693 35 sLleied accuravely in ihe Tavs of Magland (Vol.13,p.450), and is that 'facets simtl.e to, bul uot overt of, The sime transaction 2s the main Lack ere nok, tn goat ed, star eibte tO psesye tie Oa enricnee of Lae mera Socks? Phe pols, Jowctink, 19 tometraes reserd Lyon the gruugnd of powote ness OL want of reasonubie connection between the principal and evidential fects in such Csseos, Lomatimes noon Lhe tneenveng sive chat vould roentt 1£ a dare rtercnt rita or <@tted, and semetiutss cpon khe jianiency Laat 45. there would be to confuse juries by raising collateral issues; but, on whatever ground it may be rested, 1t is a well established rule. Thus, 1n Hollingham v. Head (4 C.B.N.S.388), 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. Dedson ([1895] 1 Ch.334), in an action brought for a declaration that land purchased by the defrndant and another person in 18/73 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 (at p.338): "No doubt there are cases in which cvidence 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 1f it can be proved that in a number of prior transactions Carswell and the defendant had been purchasing land on pertnership terms, that would cender it probable that such w3s the neture of this transaction also. Rut that is not relevant evidence. Cases of this description are not determined upon probabilities but upon evidence of what happened upon the particular occasion." Tae rule which excludes evidence of similar focts 1s not absolute. Much turns on the connection between the fact in issue and the similar fact which 1s sought to be proved. Ina Soith Africen ceese concerning polivr inlerrogetion (where che Fact 3 were significantly different Crom the forts ain che present case), Gosschalk v. Rossouw, J966 (2) C.P.D.476, Corbirt J. said (at p.48?): hy general .4l2 13s that evidence oat frels canailer to the Fect in 1¢8ue 15 not aimivzinble to prove either the occurrence of the Fact in 1stue or tne identity of irs e4ulror. This rule, whien anpticrs in hath civ) -nd reerRnsl pL ediqds, 1s, MAwler, NOC aN anso9luke one. "nei? whice is 3 vefficient Tank, oer cans, Peivom the Fact an yicue ond the fact veught to be proved Eor -n wntercnee as to the oemurcenve of the Fact in issue LO De Greve, bho oy rhe evidenez will by daresipl2. To cjee the vo uercks of LAARENCE,J., on Re. wv. Bond, 46. 1906 (2) K.B. 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 18 present, the evidence is not admissible." The closeness of the nexus required was cmphasized by Lord Wilberforce 1n Reg. v. Boardman [1975] A.C. 421 at p.444: "The basic principle must be that the admission of similar fact evidence (of the kind now in question) 1s exceptional and requires a strong degree of probative force. This probative force is derived, 1f at all, from the circumstance that the facts tostified to by the several witnesses bear to each other such a striking similarity that they rust, when Judged by cxperience and common sense, either all be true, or have arisen from a cause common Lo the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the raght conelnsion 15 chat all are true, to that each story 15 supsgortled by the other(s)." Similar fact evidence when admissible is circumstantial evidence to prove the fact tn 13802, end the probative force of fhe eviainee drtervines rot only 315 weiagh. buk airs edwissibility. vo quote Knox C.J. vad Dixon J. in sorgon wv, Babcock & Wilcox td. (1929) 43 C.L.R.163 at p.1/3: "The question involved Tergely dep nis upen the degree to which coincidence? of vv niz ind cirecuwstances warrants a bhelyef an teetrr causal eo nection. An exzminatzon OF hyporch ses logically eonsistent with prowed Focus is the received ToLnod of tesiing taeir suFFruere ney 10 sblish ine ceoneTasiton. ta the ond, tewlser, che enol we sy or rhe probibility of che ocenre nee of suca hypothis7s deteuires o> bir tdniasibrlity, ead when eo merdence of Fact ry coneurrenee of Llane are relicd usen, §he emi rycieney eL fie ere ist eress trust iucwttaoly be gedyged by couscdaring vhether 47. general human experience would be contradicted, if the proved facts were vwnaccompanicd by the fact sought to be proved." The learned trial judge correctly analyzed 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 enquiring as to warrant its 2dmission. This ground of appeal also fails. 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 $.68(2). The guestion under s.68(2) is whether there was a threat, promise or inducement of the kind mentioned in the sub-section, that 1s, one which was in fact likely to cause an untrue confession to be mode. Whether or not there was some other kind of threat, promise or inducement (excepting violence, force or other form of compulsion) 1s not material to the ultimate question for determination. No doubt in the ordinary case, the court First finds whether there was a threat vromise or inducement, end then finds whether it is likely Lo have the effect specified in the statute. The logic of this sequence of fact {finding 1s ohvious and it accounks Cor some dicla in Coinelius, supra, at nore h ko ke ce ~ p-245. But the secuence 13 m cely @ convenicut finding of the ultinate fact for determination, and !nere is no impediment, im law or in logic, to the judge going directly to -, The ul-tmate qa stien and Linding which. ec tie Crowa has satisfied "im thal there was no threal promise or induecmat which wes Jikely to have the eff ct specified in the statute. There sas no legal or Jogical wevalidity wun the coore.ch which Hud toon d ocrtal Judge Fook gn this .c3t. fieding Aiwcolf achi2 io slop. the ond a-ry fppreech, Nhe cacuried och of che matters wnoich the appellant a@ivenced as varrcutirg the svtusion of the ev~idenee, rnd he Cousd Fhotl noor of 'them salisfied ama exeluste vary eriteria. 48. 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 1s 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, 1f these matters occurred, the making of an untrue confession was not likely to be caused thereby. Then, it was submitted that his Honour should have rejected the tender of the confession in the exercise of a discrotion conferred by sub-s. (3): " The judge has, in a criminal procording, a discretion to reject a confession or edmnission (whether or not 1t 1s a confession or admission to which the last preceding sub-section applies) made by the person charged if, aving cegerd to the Cclircumstane?es in which, or the mecns by which, the confession or 2zdmission was obtained, th- Judge 1s satisfied that it would be unfair to the person charged to admit the confession or admission in evidence." Wieiher or not this stutucory eececrarten ef Lae discretionary power corresponds with the """gnite syectal rules" (to use the phrase of Stephen and Aickin JJ. in Benning v. Croes (1973) 19 ALR 64 at p.6537 532 4.LLT.7 901 at 0.569 watch cpply to confiesstonel evidence -park from ciatute, 0 anfairness of a hind vhich would evoke the rejartion of the cvidence was shown. The onus of showing reeson For tn aAsaretronary reteciren of a ceafesrtronm ty agen tyr fee 77 person (hee, supre, -t 9.155). Thre aarairrness on sieh thee ocppellonar relied, -2 49, 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 appeljant in interviewing him in the absence of his father. As his Honour was not prepared to make a2 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 dopended. The grounds of appaal relating to the admission of the confession fail. Status of Colenel Singh and Mrs Singh An element of each of the offeners with which the oppellant ves energid end of exch oF the of Fone=s ror whiten he was convicted us that the person who is the victun of tho offence 1s an "interr-tionally protected person" for the piegosas of the Craacs (Toternetaionelly Protectrd Persens) Bet 197G ("the Act"). ft was argud that chere was no cutficiint proof that Colenel Singh or Mrs. Sineh was Fn internatiuselly & protected » recon. wna Bek gives erfi ek to sustralira'ts enlag-ti6as under a Convention on ihe Pr. vention and Tiniskaenk of Crimes Ayeinest Internationally Protected Persons, inelid-na Diplomatic Agorals, aocepy of tire vnglien tevk of waien 76 Sec unk on rAd GaAcile 50. to the Act. The expression "internationally protected person" 1s 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. Article 1 of the Convcntion 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. gainst him...1s committed, 1s entitled pursuant to internation.1 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;". Section 7 of the Act gives approval to the ratification by Australia of the Convention. In the heeding of the Convention, internationally protected persons are described as including diplomatic agents, and one of the recitals to the Convention rzcds: "Considering that crimes against diplematic agents end other anternationally protectrod parcens JeoPet dieing trie safely of Thes2 prisons crcaca 3 eerious threat to the meaintecnence of noraal international relations which are necessary for co-operation among States... " {In this context, @ diplematic agent 1s eleerly intended to fall within the Aaefinition of an internationally protected percton. The Diplewaatre Privileges and Tes omitres Act 195 ("che 1967 Art") provides in s.7, co fae .S relevrpt, wnat he provisions of articles 1, 22-24 (ine lusi1ve)} and 27-410 (inclnsivey of the Vieana Convention on Biolematic Rejettrens have the Foree of lew in Australia and cvery external 51. Territory. A copy of the English text of that Convention is set out in the Schedule to the 1967 Act. 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 INembers of the diplomatic staff, of the administrative and technical staff, and of the service staff of the mission. Article 29 of the Vienna Convention provides that: The person of a diplomatic agent shall he inviolable. He shall not be liahle to any form of arrest or detention, The receiving State shall treat him with due respect ond shall take all appropriate steps to prevent any attack on his person, freedom or dignity." ePrragravh 1 of Article 37 of the Vienna Convention provides: The members of the family of a diplomatic agent Forming part of his heucehold shell, 1f they are not narienals of ihe ceeniving Siete, cajoy the orivileaes and wimunities specified in arlicles 29 Lo 36." ro woiethec Colenel *1agh , 23, on 14 2ad 15 Sesiensec 1977 an intesvationally protect, d wir un, 1.0., rioprerencalive or OFfisiel of the Ropublic of Tndia .no, 2¢ that came, 2nd ain Australia, was entitled pursuant to iuiaternztio1l law to epecial geotcetion From ary atherk on hie parecan, Freedea or dranity, @rpends iron svetrpear 2 9 $6 a cdiplurttia syint, *9se person is thus anviolables Arlicle 29 of tho Vienna Convention. Wa wis non che 71d of the andzen tlseston., Wis he Roui.er of the Geatewates slaFF of tye eicsion, thal is, 4 52. member of the staff of the mission having diplomatic rank (see Article 1 of the Vienna Convention). 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. 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 issucd 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. The first-wentioned cert1rficate 31s in the following kerms:-~ "T, PETER DURACK, Attorney-General of the Comaonwealth and the Tineister of the Conronwealth for the Line Yrraig wdainistecing the Criurcve(fntecn=tiun-lly Protected Persons) Act 1976 UeReBY CERTIFY pursuant to sub-section 14(1) of the said Act that: (2) COLON [QBAL STXEGH of 305 Sadez our Streoc eked JiijJl an the Australian C.pital Terraitery as fiom the 25th dry of September 1976 has been recognais+ gd ond as at the date of This Certificate continues to be recognised by the Govecnment of the Cormnonvealth of Australia as an officral of tha Steke of Taltva being che Mplateary Cleval cud Par Cdviscg tro vhe Nigh Cemdatost7on Of Intia in Cansrrra cad Gs a fTember of the distomatic steff of Fhe $414 Jigh Cempission; end (2) ta MEAN BAUR SULGH the wire of COLONGT, TOBAL STAGT as from the 2th day of Septembcr 1976 53. has been recognised and as at the date of this Certificate continues to be recognised 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 this lst day of May 1978 (sgd.) P. Durack PETER DURACK ATTORNEY-GENERAL " 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 edministering the Diplomatic Privileges and Tmmunities Act 1967 HEREBY CERTIFY pursuant Lo sub-section 14(1) of the said Act that:- (a) (b) (d) COLONEL TQBAL SINGH of 105 Fndeavour Street, Re a 8111 ain the Australian Capital Territory 2s recognised at the 14th and 15th days of September 1977 by the Government of the Commonwealth of Australia as a diplomatic agent within the meaning of the Vienna Convention on Diplomatic Relations; Tn eceurdanc> with article 10 of the e¢aid Vienna Convention on Diplomatic Relations Lhe Department of Foreign Affairs of the Commonwealth of Australia had been notified prior to the 14th nd 15th deys of Sepreuber 1977 of tbe eppoinlient of rho satd COLCA TQLRAL STKRGU as a wamper of che Ifligh Commission of India in Cenberra being the "ilitaty Naval and Air Adviser to the said Aigh Cornission end at the @ete of this wer. TFIicstla no ror. figiatton of ine cerminsiion oF that funetton of ine suid ChUIHG Tekan Sivsd nas been weceived by sue Seid Nenartment of Poreign ALfe1s; On the 14th and 15th days of Scpboaber 1977 (Ne g2td Vieuna Convontica on "1olemeatic Trlartots .2S in focer; On the 14th and 15th days of S:ptiaber 1977, Aucctralia and Trd1a vire pack: Lo tas said Viena Ceerencron on TNipte abe Mets Lpoas. 54. IN WITNESS WHEREBY I have hereunto set my hand and affixed my seal on this ELEVENTH day of May 1978. (sgd.) Andrew Peacock Minister of State for Foreign Affairs." 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 cartifying any fact relevant to the guestion whether a person 18, 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) 1s, upon mere production, admissible in any proccedings as prima facie evidence of the facts stated therein." Senior counsel for the appellant submitted that all the AtLorney-General did by the certificate was to certify that Colonel Singh wes recognized at the relevant time 3s 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 Lemily forming part of his hous2hold; thet cercifying 23 10 recognition of these matters was not certifying to a fact relevant to the guestion whether Colonel or Mr. Singh wes an Netnaationally vcatrertid prrson. Ae suhaitted th-t ths fret of recegnition 18 arrelivant to bhe question wiuecher Colenel ind Mrs. Siagh wes each in fact a diplomatic -yent, and whether etch was therefore an internationally protected p_reon. So two berucs AL rrised: vhecher recognition of a person's ativcus by tie Governuent of Australia is relevent to the actuel seacus of that person for the purpose of the *ctz; and whether Colonel Stogh's meiohership of the diplomalic staff of the High Coomiesion oF Indic, yd Mrs. Singhts aiiverciip af Colon] Singn's Family, are reteyvont to the wuss ions whe ther ean o¢ them respeclivaly wes an internationally protect +d pergan, Veosgntbien of the tiekas vf diplonacie pessoneyos 18 55. the prerogative of the Government of Australia, and a person who 2S 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] A.C.433 at pp.457 and 458: " 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 1t, and a statement by or on behalf of the Department that it has been accorded to any person must 1n my opinion come within the principles above referred to and be conclusive as to the status of that person. ... I have not thought 1t necessary to discuss the Tany cases which were cited in this House. Le 1s enough to say that some of them support end no one of them 18S opposed to the views I have above expressed." o Se also the speech of Tord Philltmore in the Sema case 3t pp.449 and 450; and Duff Development Co. v. Kelantan Government [1924] A.C.797 especially at pp.823 and 824 per Tord Sumner. The facts certified by the Alcornsy Gnecal -s & ing recogni7%d are cleerly relevant to Lhe scatus of Colone] end Mrs. Singh #5 internationally protected persons. As a menber L of the diplematie staf£, Colonel Singh 18 a aiplemitie ay nk, and thus an internotiunally proiceeced person. 35 2 m ther of the femily of such a ferrnen, Mrs. Singh 11S Likewise an ~ L internationally protected parson. Tn onr opinion, Ly eceriiweying thac «ha Coveorsacuk of the Coutonse2alth of Australia rteognives Coloucl Giagh and ars wile un rhe Lirts sk- ted mn ihe Ceorvuitieste, che 56. Attorney-General 1s 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. 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. Accordingly, in our opinion, Lhe submission on this issue fails. Alternative Verdict The final ground of appeal against conviction reis3s the validity of one of the convictions, namely the conviction of attack on the person of Tabal Singh. It wes submitted tnat it was not open to the jury to convict the appellant of chat offence upon the indiciment is 1t was framed. On this ground the Courl 159 not uneniucus, and Meucegor J., who 1% tn dvesent, Gocs nok jon an the reesons which are next expressad. The argument turns upon che provistons of s.8 of Lhe Act, which areas ce os "8. (1) A persen who warders or kidnaps an internatreonally protected person is yuilty of an offence agarnct this Bev and 13 punisarsls on convierton by rc. onae nt Cor 112. (2) AX ptreon who cemattis any orher attrck upon the pereon of Tih yctiy of an internatiorally protceted person wo yutlly of in of f< nes eazin:t this Act ond is mung) the 5] PON Chav ew con = 57. (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 protectod person, being an attack likely to endanger the person or liberty of any internationally protected person, 1S 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) 1s guilty of an offence egainst this Act and 1S punishable on conviction by imprisonment for a period not exceeding 7 years. (5) For the purposes of thts Act, on offence created by section 5 or 7 of the Crimes Act 1914-1975 shall, to the extent that 1t relates to an offence against sub-section (1), (2), (3) or (4), be deamed to be an offence against this Act. (6) Where, on the trial of a person for on offence against sub-section (1), the evidence docs not establish the commission by him of such an offence but establishes the commission by him of an offence against sib-section (2), he msy be found guilty of the lest-tenljoned offence, (7) For the pnroos:s of this scuetion - (a) kidnepping a person consists of leading, TekKi9g, or Entleierg ue person cwty, OF detaining «be person, with tatent to neld 'jim For ransom or @S a usetage or oriiiwis2 fer bie purpose of inducing eopoliance with ay Geuand or obtainirg eay @edventage; (b) murdering ao cersen voncisls of ccnsing tae death of that person im circurscene §S Fn saieh the person causing ihe death would bs guilty of murder according to thn liw in force im the Anchralian Capiral Tecritory et the tine vf the escJuct esusing the Arvath, ahetbaurr oc not the cundyrck tank plare tin thal Terricory; and 58. {c) a reference to an attack upon the person of an internationally protected person shall be read as uncluding 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. " The appellant submils 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 ony 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 1f the attrmpted offence had been committed." Counsel for the respondent submits that the of fFenee 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 eab-s. (3) deems en offenee era ticd by ¢.7 of the Criast Act to be "an offence aguimst chis Act", not an offence against a particvlar provision of the Act. Tne phrase "an of frnes againck U313 Set" 15 cahployed throughout the Feh, wd it rs the phrese which desertbes the eliss of offences co "iieh puektcul-r provis10is Of Fhe Are a¢€0 aids to apply. Vge of fFeneos ercated by o.3 Polung 1o cle coeregoary of offences ayainst the person, a subject ro which Skate 2nd Ts seritorteal laws vrliiarily unty. Yewerer, the gartsdictien ro dey ii ce ofrtns 6 rs ere a 2 Ly pater cd Vow, end P-dural 59. procedures are specified for dealing with them. Thus, s.10 defines the liability to be charged for an offence against the Act, s.ll 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 indiciment 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 cnd 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 he offences egainst the Act in order to attract the application of those provisions. The purpose of sub-s.(5) is to aticibute to an offence created by s.5 or s.7 of the Crimes Act a character which 1t would not otherwise hear, nam=ly, that of "an offence a@ ihis Set". Cob-sectton (5) dors not attrituie to en of fene> created by s.5 or s.7 of the Crimes Act the character of an offence egainst a marticular sub-section of s.8, #nd the Former @ffencs dors not becare, by force of fub-s. (5), en offence -gainstl cee or o:nrr of the seb-seeriors of s.8. whe pheese "cn offs nee agaist sonb section (1)" an sub-s.(6) 2S) not Eynoaytuas with "an offence airrinst chis Act". An offence egzieet mo-e.(1) as defined by che sub s elinn to bo an O'Pines -datust chtus Act, but cue cenvrese 13 vot nee ssarily true. Ontess en attempt to commit en offene® acwiires the cherect er of an offenc? ayrinsk the pareccular sub-seelion io mah «ft 93 volaied, cn etiuiph co commie «on off nee crested by 60. sub-s.(1) is not itself an offence against that sub-section. Sub-section (5) does not confer upon the crime of attempted murder of an internationally protected person the character of an offence against sub-s.(l). 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 .ut creates. But that is not the operation of s.7 of the Crimes Act. It creates the offence of attempting to commit an offcnce, using the principal offence-crealing provision as the dictionary of its content. An attempt to commit an offence against a particular law of the Commonwealth 1s an offence by force of s.7 of the Crimes Act, not by force of the periicular law of the Commonwealth. As cub-s.(5) dces not deem the offence of atlempted murder of an unternationally protected person to be an of f.ace against sub-s.(1), and as s.7 of the Crimes Act does not make that offence en offence against sub-s.(J), that offence 35 not sn offence eysiust scub-s. (1). Wierefore, the appellant. was not liable to convickion uider sab-¢. (6) uron an alternacive count of attacking the person of Colonel Singh. Counsel for the reepondent neowertheless eouger io sustzin Lhet verdict @s 4n a@veilable altcinmeiive ro vehc count o£ kidsxepping - the sercad count in she twdici iat, a4 on offence gainst sebos. (1). The jury ees nbrtt-d io veteran thee verdict, hewever, only pon the coeaditiess which sup-s. (6) J-fFinesg: that the evidence docs not ettchlisn the comar-sien of an of feace agatoun sub-s. (1), but t3tealiches Ine conaisston of 61. 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. 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 varicty of constitutive fects might be indifferently selected as establishing the alternative offence. Such a latent and embarrassing ambiguity in the indictment would be a defect in 1ts particularity (see Jobnson v. Miller (1937) 59 C.L.R.467 at p.491). At this trial, however, the alternative charge of attack upon the person of Colonel Singh wis treated as an alternative to the count of attempted murder, and the Jury was directed to consider only the evidence adduced to prove the offence of attempted murder in coming to its verdict on the count of attack pon Lhe person of Colonel Stngh. "abigatty ves thus elourtncted. dsd the evidence 7dv1issible on the count of Kidnapping nok wat ablished that off: nee but established an attack on the person of Colonel Va72 been opcn Singh, 7 verdict of guilty of that atrick would ro the jury provided the jury were Airecled to consider -hat body of evidence in arriving at tavir verdict. But rhoy were not 30 diuected and their verdict on tne alternative charges erounor 4A yo erpaserucd. Tre ov deace emitted an proot af Stag May Weve sun verted a Fure'; r eherge of ~tk ckieg the person Of Colunrl Stagh, but that issue wre not submilted to the yacy. Re verdict of agnilty of an cwtrtock on che person of Cstonel Singh wos nek Cuunded upon cha evidence tandered co 62. 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 1s 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 mercly to determine the course which the law demands. 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 erime for which he 1s to be tried, and then tried and proved guilty of that crime before he 1s 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 mist he amended accordingly. Finelly, the appellant argued that it is not Tr Loyriaka £0 lapose Clhodpletive sentences for ot Frenacas arictisg out of the sane series oF scls (R7g. ve. Melville (1946) 73 W.N.(N.S.W.)579 at p.582; Reg. v. Hally [1965] Qd.R.b82 at p.084), and tant the ctatenves in the prerrnt ce alert wveuthy wade cumulative. Me practice Of Tip stag conti nr senha 3 Toc its Sade Series OF acts 13 a cound vnr, bah ogk Ga 6 nol Follow viat the seatcnee which 1s wmpos-d in neglect of that prrcriee 3s iwnopproypriate. The totelsty of the gs niene x3 impoved by his Hoveic um Lp spect of the orfencees OF aberek goon tho Lahoriy «ft 63. 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 Lerminsated only after a siruggle initiated with a view to escaping. After selting o31de the sentence imposed on the first count and leaving out of account the conduct upon which thet couviction vas ferne-4d, an eppropriate sentence for the conduct vhbuch atteexed the Jiberty of Colone] Singh and lirs. Singh 15 Lhe aggregate of the sentienecs iuposed for those two offeaces. lhe eppeal against senienee on Fhose counts should be YVisrrre ad Focerlify that this and the 62 preceding paqes are a true cony of the Reasons for Judgment herein of the Court. : Haiheg Ne { Associate co/™Mr, Justiug 1 Bated: 6 Deco. ber 1979. IN THE FEDERAL COURT OF AUSTRALTA ) AUSTRALIAN CAPITAL TLRRITORY ) ] ) . DISTRICT REGISTRY j No. F.C, 19 of 1978 GENERAL DIVISION ) ON _APPFAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEFN : JOHN WILLIAM DUFF Appellant AND : HE QUELN Respondent CORAM: Brennan, McGregor and Lockhart JJ. 6 December 1979 McGREGOR J. I differ from the other members of the Court upon the question whether it was open to the jury to convict the appellant of attack upon the person of Colonel Singh on the indictment as presented. The question which arises 1s whether the charge on which the appellant was firstly convicted (an attack upon the person of Colonel Singh) being the so called alternative to the first count (attempt to murder) in the indictment was ty un law an available alternative, although 1t did not appear in the indictment. The first count charced an attempt to murder. This was available pursuant to the Act s.8¢1) as amplified by the Crimes Act 1914 as amended (Crimes (ct) »s.". No exception was or could be raised to the charge so framed. The Crimes Act makes no explicit reference to the Act against which the offence of attempted murder 1s said to have been committed In my opinion, the effect of s.7 1+ to add atempts to the list of offences provided for in "any law of the Commonwealth" and thus to add attempts to offences against the Act. When s.7 of the Crimes Act does so, the offence 1s not against the Crimes Act but against the substantive Act. The form of 5.7 "shall be guilty of an offence" omits reference to the Act preached. Those words are found elsewhere in the Crimes Act (see cx. Part ITI). The phrase ""offence(s) against this Act" also anpear elsewhere in the Crimes Act, eg. in s.4, s.12, s.1l2(\), $.16(2), s.23. This contrast in wording seems to mark out that there are offences "against thas Act!' - where the Crimes Act 15 a source of original offences - and on the other hand that conduct may constitute the commission of an offence (5.5), one element of which must be found elsewhere, namely in some other law of the Commonwealth. When that element 1s found in particular legislation 1t seems logical that that legislation which may lay down a variety of requirements in 1espect of a particular subject matter, will be regarded as providing for all offences related to the duties with which that Legislation 1s concerned. w Otherwise there would be an anomaly in that the main offence 1s one charged against or available in the substantive provision; whereas the attempt to commit that offence is a4 breach of different law. The lesser offence would be regarded as arising, 1n mv view, within an expansion, or by process of an expansion, bv the operation of the Crimes Act cn the terms of the substantive Act. Consistently, the Crimes Act refers to the relevant "law of the Commonwealth" for ascertainment of the penalty. It seems that the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, paragraph 1(d) of Article 2 contemplated that cach State Party would create a crime under its ianternal law of attempt to murder, attempt to kidnap or attempt to commit any other attach. The Act carries this into effect. In my view, the same result is produced by s.8(5) cf the Act. Whether one regarded the use of the word "created" ' (particularly when applied to s.5 of the Crimes Act) as entirely apt, the effect of the section is to make the offence of attempt, which relates to the more complete crime for which s.8 provides, an offence against the Act. It would be entirely harmonious to the scheme of the legislation, as I sce it, to expect that attempts would not remain as offences, as it were, at large "against this \ct'", but would be localized in the logically appropriate place, 1.c. that subsection which provided for the main offence. The very specification in s.8{5):- Me. (1), (2), (3) or (4) 2..." seems to me to assist to this construction. 4. The import of "deemed" varies with the context. Yrequentlv it effects a "disputable presumption". That 1s quite different from its operation here. Some help as to its function 1s found in authorities cg. Muller v. Dalgety §& Co. Limited and Another [1909] 9 C.L.R. 693. S.9\ of the Immigration Act made it an offence for a vessel to have on hoard a stowaway. The case was dealing more specifically with s.°D of that Act. It read.- "Any person on board a vessel at the time of her arrival from any place outside Australia at any port in Australia who 1s not - (a) a bona fide passenger on the vessel, or (b) a member of the crew of the vessel whose name 1s on the articles, shall be deemed to be a stowaway, unless ' the master of the vessel gives netice to an officer that the person is on hoard the vessel, and does not permit him to land until the officer has had an opportunity of satisfying himself that the person 1s not a prohibited immigzrant.' Griffith C.J. said (p.696).- "The word '"deemed'' may be used in either sense, but 1t 18 more commonly used for the purpose of creating what James L.J. and Lord Cairns L.C. called a "Statutory fiction" (see If21} v. East and West - 4 Se Ls Indra Pock Uo. 9 App. Cas., 448 at p.456) that is, for the purpose of extending the meaning of some term to a subject matter which 1t does not properly designate." Barton J. (at p.705) said fof s.91).- "That section does not provide for any restriction or definition of the term "stonaway", but 1s superadded to sec. QA for the purpose of enlarging the class." In St. Aubyn and Others v. Attorney-General [1952] A.C. 15 at p.53 Lord Radcliffe said°- "ll. The word "deemed" 1s used a great deal in inodern legislation. Sometimes 1t 1s used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put bevond doubt a particular con- struction that might otherwise be uncertain. Sometimes it 15 used to give a comprehensive description that includes what is obvious, what 1S uncertain and what is, in the ordinary sense, impossible." In Barclays Bank Ltd. v. Inland Revenue Commissioners [1961] A.C. 509 their Lordships were considering the Finance Act 1940 s.55 which read - "(11 Where for the purposes of estate duty there pass, on the death of a nm i cy Oo. person dying after the commencement of this Act, shares in... a company ... then 1f - (a) the deceased had contial of the company at any time during the five vears ending with his death (there followed a method of estimating the value of shares). (2) ... (3) For the purposes of this section a person shall be deemed to have had control of a company at anv time if he then had ..." Lord Cohen said that "deemed" was "supplementary to or expansive of subsection (1)". Lord Keith (p.539) said that ».55(3) - "lJ... 1s not a definition of the meaning of "control of a conpany' under sub- section (1) but an extension of the Meaning under that section." Lord Denning (at p.5t]) said:- "Section 55 1s dealing with the position of a nerson who has died - "nerson' in the singular, not in the plural - and 1t 15, to my mind, both intelligible and comprehensive when it 1s applied to a man's own holdings of shares without regurd at this stage to has joint holdings. It contains a definition, or what I regard as a definition, of the carcumstances in which a person will he held to have had control of a company. The definition 1s given in section 55(3). ihe word "deemed" there simply means "held". The subsection 15 to be read as 1f it said: "For the purposes of this section a person shall be held to have had control of a company at anv time 1f ...". You must remember that the draftsman here 1s seeking to explain, not the meaning of a single word, but the meaning of the entire phrase: "A person" who "had the control of a company at any time. A very natural way of explaining such a phrase is to use words to convey what 12t 1s to be understood to mean; or considered to mean, or, 1f vou like, what 1t 1s to be deemed to mean; for the purposes of the section. If you should try to explain the phrase yourself, you will, I suggest, soon find yourself slipping into the words of the draftsman here or something very like them. "Deemed" 1s not used in the technical sense which a lawyer uses when he "deems" blach to be white. wrens These passages indicate that one should extend or read s.8 of the Act as if it did explicitly state "or attempt to murder'' etc., which 18 logically where one would eapect to find attempts to murder, etc. prescribed Further, section 8f3} will permit the definition by subsection 7 of the offences of attempt to kidnap and attempt to murder, and will allow s.9, 5.10, in -ll, s.12 and 5.15 to operate in respect of charges tor such offences. Thus, one accused of attempt to muider would have a s.9 defence, a s.10 immunity and be subject to the provistons provided by ss.1ll, 12, 15 and 16. All sections are concerned with offences "against this Act". Therefore in my view, the offence charged in the first count of the indictment was an offence against the Act. Tf this expansion of s.8 bv the provisions of Crimes Act s.7 1s correct then the offence of attempt to murder is an offence against sub-section {1) of section 8 and the trial ot the accused 1s for - '"l.. an offence against sub-section (J) ..." (1.c. as that phrase appears in sub-sectton (6) of section 8). Since the charyve of attempted murder 1s, on this reasoning, a charge of an offence against s.8(1), by s.8(6) the appellant could be found guilty of a 4.8(2) offence. No question of surprise was suggested in argument since even at the first abortive trial, the Crown relied upon the alternative charge and the trial judge ruled that it was available. I also would hold that the charge upon which appellant was convicted was an available alternative; and without specifically appearing in the indictment. The argument addressed to us treated the problem as one of statutory construction. 'lhe new legislation 15 not yet the subject of authority. legislation enacted before the 1976 Act ancluded provisions as to "attempt''. The Acts Interpretation Act 1904 s.8 provided: - "8. Any attempt to commit an offence against any Act shall, unless the contrary intention appears in the Act, be an offence against the Act, punish- able as if the offence had been committed." The Crimes Act s.7 1n 1ts o1iginal form read:- "Any person sho attempts to commit any offence against this Act or any othe. Act, whether passed before ot after the cormnencement of this Act, shall be guilty of an offence and shall] be punishable as if the attempted offence had been committed." It muy be thought to be cleare1 that the first Act ensured attempts would be offences against the prancipal Act . than did the tater, Fut in "foss and Phillips v. Dorohoe [1915] 20 C.L.R. 580, where the charge wus attemptins to trade with the enemy, 1t was not argued that the two produced any different results. See eg. per Griffith C.J. p.$81, Isaacs J. at p.bod5 (referring specifically only to the first Act but not apparently reer rere) ae oo 1Q. finding any lack of consistency in the two Acts) Gavan Duffy and Rich JJ. make no reference at all to how "attempt" became part of available charges. Powers J., though expressing some unexplained doubt, referred to the first Act and seems to have read it as making an attempt an offence against the Trading with the Enemy Act 1914. He did not express an opinion as to whether there was any inconsistency. In Moss v. Donohoe [1915] 20 C.L.R. 615 references are also made to the legislation. At p.620 Griffith C.J. said that the Crimes Act $.7 was to the "same effect as" the Acts Interpretation Act 1904 s.8. He dissented because he could not find on the facts any wicked intention; note that on the question of interpretation he said {p.621):- "On the one side, it is contended that these provisions are substantive enactments creating offences, and that the words "attempt to commit an offence against any Act" mean attempt to commit an offence against an Act in force when the attempt 15 made. On the other hand, 1t 1s contended that the provisions are in the nature of definitions, to the effect that in everv Act creating an offence the verb, what- ever 1t 15 (for example, ''forge'), denoting the act which is to be an offence is to be read as 1f the words "or attempt to" were inserted (so that 'forges 1s to be read as "Forges or attempts to forge"). - . TY 7 LP AR a lh. Ino my oprriea the latter vicw ois untenmabae. Sertuer ob the provis.ons isin the term of an anterpretaticn clause, ind in oy or.nioa they ere supstantive cnact sents " And he considered the Trasing with the Tnems Act 1914 did not have a retrospective operation. On the other hand Toweis J. vi held that (3.624) - 1 "lo. an attempt to trade with the enem) JS ~pUlISPable as an offerce under the Act (i.e. tne Trading with the tncuv Act Tels)" y y ATOM AMeny C uso? .7 Ta my opanien amendment to the Crines Act $.7 deleting " doaiaist thas At or any efter At" and inserting "against anv law of the @amenvealib! did vat preduce any significant differewce in its eneratrzer, The farst iw id second; ot tue secor do 1s a conmelomerate of the £ 15st. Yhe Suprem. Court ef testern \u tralia an Fazio v. Syatz [10720 21 7.8 . 15) though ueating wrth cirferent Je,islation recesn ced that an the High (ourt judgments earlier & referred to, Criffath § J. tecardod s.8% and os.7 of the Acts Interpretation 'tet Lud anal of tie Cranes AcE respectively as synonymous, but thes did net thir' they shenuid accept that view. }owovldd held taat the copellant was srenerly convicted of the offence of attack apot the persion of Celanel Jabal Singh. The septence Pussed eos wothin . proper exercise of discretion hy the trial aidec. we ' ewe eter 12. However in view of the majority decision that the conviction of attack upon the person of Colonel Iqbal Singh be set aside, I agree that the sentences imposed in respect of the remaining offences should not be disturhed. I certify that this and the preceeding pages are a true copy of the Reasons for Judgement herein of his Honour Mr_ Justice McCreget Q Ao -beod Associate