R v Kerry Ann Browning Scc [1991] ACTSC 37; (1991) 103 FLR 425 (1 July 1991)

SUPREME COURT OF THE ACT

THE QUEEN v. KERRY ANN BROWNING
S.C.C. No. 36 of 1990
Criminal Law - Evidence
[1991] ACTSC 37; (1991) 103 FLR 425

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law - evidence - judicial discretion to admit or exclude evidence - public policy discretion - evidence obtained unfairly or improperly - sample of accused's handwriting obtained by police pursuant to General Instructions to members of the Australian Federal Police which provided for the completion of "Fingerprint Information Forms" - unfairness to the accused - accused not told that there was no obligation to complete the form - accused not told that the forms would be used as specimens of handwriting.

Evidence - witnesses - immunities - diplomatic immunity - limited waiver of immunity - whether limited waiver of immunity would prevent proper cross-examination and thereby deny the accused a fair trial - Diplomatic Privileges and Immunites Act 1967.

Criminal Law - jurisdiction, practice and procedure - verdict - power of judge to direct verdict - nature of application made after prosecution's opening address for direction to jury to return a verdict of acquittal.

Criminal Law - particular offences - miscellaneous offences and matters - nature of charge of being knowingly concerned discussed - Crimes Act 1914, s.5(1).

Criminal Law - particular offences - threats - threat to attack an internationally protected person - whether the threat need be received by or brought to notice of intended recipient or victim - Crimes (Internationally Protected Persons) Act 1976, s.8(4).

Criminal Law - evidence - judicial discretion to admit or exclude evidence - prejudicial evidence - whether evidence of political motive prejudicial.

Criminal Law - jurisdiction, practice and procedure - verdict - power of judge to direct verdict - application for direction to jury to return verdict of acquittal because of overall absence of sufficient evidence implicating the accused - principles upon which decision to direct acquittal based.

Criminal Law - evidence - matters relating to proof - standard of proof - circumstantial evidence - reasonable hypothesis consistent with innocence - question for jury whether such hypothesis is excluded.

Criminal Law - evidence - matters relating to proof - standard of proof - circumstantial evidence - degree of proof of primary facts - whether jury to be satisfied beyond reasonable doubt as to each fact from which inference of guilt to be drawn - "Chamberlain direction" now inappropriate - whether trial judge may suggest to jury that it might need to be satisfied beyond reasonable doubt of a particular fact in order to find accused guilty.

Criminal Law - evidence - evidentiary matters relating to witnesses and accused persons - identification evidence - modes of proof - handwriting - role of expert witness - evidence from expert that disputed writing "probably" or "very probably" written by same person who wrote sample writings - whether jury entitled to find that disputed writing was beyond reasonable doubt written by same person who wrote sample writings - nature of expert evidence - status of opinion evidence expressed in terms of probabilities - whether expert may express opinions on questions ultimately for jury to decide - role of jury in assessing expert evidence.

Sernack v McTavish (1968) 15 FLR 381

The Queen v Carr (1972) 1 NSWLR 608

Carr v The Queen [1973] HCA 37; (1973) 127 CLR 662

Duffield v Police (No. 2) (1971) NZLR 711

R v Ragen (1964) 81 WN (Pt.1) 572

Bunning v Cross [1978] HCA 22; (1978-79) 141 CLR 54

Cross on Evidence, Australian edition, para 27245

Wendo and Others v The Queen [1963] HCA 19; (1962-1963) 109 CLR 559

The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321

Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at p 17

The Queen v Addabbo (1982) 33 SASR 84

Callis v Gunn (1964) 1 QB 495

Duff v The Queen [1979] FCA 83; (1979) 39 FLR 315

Jonathan Brown, Diplomatic Immunity: State Practice Under the Vienna Convention on Diplomatic Relations, International and Comparative Law Quarterly, (1988) Vol. 37, 53 at 56

Public Prosecutor v Orhan Olmez (1988) 1 MLJ 13

R v Prasad (1979) 23 SASR 161 at 163

Austin v The Queen [1989] HCA 26; (1989) 166 CLR 669

Treacy v Director of Public Prosecutions (1971) AC 537

Alister and Others v The Queen [1983] HCA 45; (1983-1984) 154 CLR 404

Attorney-General's Reference (No. 1 of 1983) (1983) 2 VR 410

Doney v The Queen (1990) 65 ALJR 45

Shepherd v The Queen [1990] HCA 56; (1990) 65 ALJR 132

Evidence, Proof and Probability 2nd ed.

R v O'Callaghan (1976) VR 676

R v Palmer (1981) 1 NSWLR 209

R v Lawless (1974) VR 398

Lattouf v Sassen (1968) 3 NSWR 577

R v O'Sullivan (1969) 2 All ER 237

Adami v The Queen [1959] HCA 70; (1962-63) 108 CLR 605

Wakeford v Lincoln (Bishop) (1921) 90 LJPC 174

R v Penman (1985) 82 Cr App R 44

HEARING

CANBERRA
1:7:1991

Counsel for the Prosecution: Mr N. Moshinsky, QC

with Mr Webster

Solicitors for the Prosecution: Director of Public Prosecutions

Counsel for the Defendant: Mr K. Horler, QC

Solicitors for the Defendant: Legal Aid Office (ACT)

DECISION

1. Admissibility of Specimens of Handwriting - 13 June 1991. 2. Evidence of Witnesses Subject to Diplomatic Immunity - 1 July 1991. 3. Application for Verdict of Acquittal at End of Prosecutor's Opening Address - 1 July 1991. 4. Application for Verdict of Acquittal at End of Prosecution Case - 1 July 1991 I give my reasons now for ruling that exhibits XXX12 and XXX14 should not be admitted in the trial. I assume for the purpose of the ruling that there will be further evidence from a person qualified to give expert opinion evidence to the effect that the writing on those exhibits and the handwriting on the notes found at the scenes of the three alleged offences and on the note sent to the United States Embassy is of the same person.

2. The factual background is as follows. On 17 October 1988 the accused was arrested by Sergeants Turnbull and Dixon, taken to the City Police Station and charged. The station sergeant and person in charge of the watch house was Sergeant Garbutt. I make that finding, although exhibit XXX15 bears the initials and the name of another officer in the space reserved for the initials of the station sergeant.

3. After the accused was charged, her fingerprints were taken by Senior Constable McNeill in the presence of Sergeant Nesbitt. This occurred some time at night. She was then presented with three identical copies of a form referred to in evidence, on occasions, as personal particulars. In my view, the forms are one and the same as those referred to in the Australian Federal Police general instructions, instructions 17 to 23 inclusive, contained in exhibit XXX10 and referred to therein as "fingerprint information forms".

4. The accused completed those forms by filling in the particulars in handwriting and in a printed style and she signed them. According to a statement from Sergeant Nesbitt, exhibit XXX13, he saw her "complete a number of handwriting cards".

5. On 22 November 1988 the accused was interviewed by Sergeant Jackson. She refused to answer most of the questions put to her. Those she did answer had little, if any, bearing on the case. She was entitled, of course, to refuse to answer any questions. She was then arrested and taken to the City Police Station and charged, as I understand it, at that stage, with threatening to destroy property belonging to an internationally protected person. Presumably that offence was alleged to have occurred on 10 November 1988.

6. Sergeant Jackson was present during the series of events which occurred thereafter between about 1 and 2 p.m. Sergeant Garbutt was again the station sergeant and in charge of the watch house. He knew or had ascertained that the Australian Federal Police already had a record of the accused's fingerprints. It appears that he knew that also on the prior occasion in October. He decided, on the first occasion, that it was necessary to obtain samples of the accused's handwriting for the purpose of attempting to identify her as the person who had written all or any of the notes found at the respective scenes of damage to diplomatic vehicles, and on the later occasion, the letter delivered to the United States Embassy on 10 November 1988.

7. For that reason he directed Constable Miriam Prdjan to obtain fingerprint and handwriting samples from the accused. For the same reason he asked the accused to fill in the particulars on the three fingerprint information forms. The accused did so as before in handwriting and she added her signature to each of the forms.

8. It is clear that the evidence of the fingerprint information forms as completed by the accused was admissible as so called control documents for the purpose of providing a standard against which the document in dispute may be compared. However, before the control document may be admitted into evidence in the trial, the court, that is to say, the judge, must be satisfied that it contains the writing or the signature of the person alleged to have written the writing in dispute. That is provided for in s.96 of the Evidence Ordinance 1971. Proof is required on the balance of probabilities to decide the question of admissibility. Once the writing is admitted, it is for the jury to decide its weight.

9. I have no difficulty in deciding that it has been proved on the balance of probabilities that the control documents, exhibits XXX12 and 14, contain the handwriting and signature of the accused. It was submitted, however, that the obtaining of these specimens of the handwriting of the accused was, in the circumstances, unlawful and that the discretion of the court ought be exercised to exclude them from the consideration of the jury.

10. Reliance was placed at first on s.353A(3) of the Crimes Act (1900) in its application to the Territory. That sub-section provides:

"353A(3) When a person is in lawful custody for any offence
punishable on indictment or summary conviction, the officer in
charge of police at the station where she or he is so in custody may
take or cause to be taken all such particulars as may be deemed
necessary for the identification of such person, including her or
his photograph and fingerprints."

11. In Sernack v McTavish (1968) 15 FLR 381 a case of a charge of hindering a police officer in the execution of his duty, Fox J. observed that the discretion to take fingerprints pursuant to the sub-section (and it must be remembered, of course, that fingerprints are only one example of particulars that may be taken) is to be exercised only when the officer in charge forms the view that the fingerprints are necessary for the identification of the person in custody.

12. His Honour concluded that on the facts of that case, the constable who sought to take the fingerprints and who was alleged to have been hindered did so in pursuance of a standing instruction to all police, not in pursuance of a direction given by the officer in charge of police at the police station.

13. In the present case no point is taken that Sergeant Garbutt, as the watch house sergeant, was not the officer-in-charge of police at the station. I find that he was. It may have been that at any given moment whilst he was on duty there was another officer, or were officers, senior to him present at the station, but for the purpose of continuity of control of the station and the police who were there from time to time it was the station sergeant who had responsibility.

14. There is no dispute that it was Sergeant Garbutt who directed other police to have the control documents completed by the accused on both occasions. Sergeant Garbutt said in his evidence on the voir dire, and I accept it, that he asked the accused to fill in the documents. He had already ascertained that the Australian Federal Police had in its possession fingerprint records relating to a person with the same name or names as the accused and the same date of birth. He had also ascertained that the charges she was facing "related to writing of some form of letters". In that knowledge or belief he decided to ask the accused to complete the control documents. The purpose of so doing was that he could obtain specimens of her handwriting. The accused was not told that that was the purpose.

15. In Sernack's case Fox J. emphasised the necessity of identification as central to the valid exercise of the discretion to be exercised pursuant to s.353A(3). But his Honour concluded that that case did not provide an occasion for examining all that is involved in "identification" save that it includes establishing who the person is. In other cases since then the matter of identification has been raised. In The Queen v Carr (1972) 1 NSWLR 608, the New South Wales Court of Criminal Appeal said that it was "identification to the Court that matters", and not identification to the police to whom the person may or may not be well known. In the High Court Carr v The Queen [1973] HCA 37; (1973) 127 CLR 662, it was said that the identification may be for the purpose of identifying the accused with the offence. In Duffield v Police (No. 2) (1971) NZLR 711 the New Zealand Court of Appeal took a similar approach to a similar statutory provision. In my view, it has been established that in requesting the accused to complete the forms and in directing the constable on each occasion to obtain the particulars, Sergeant Garbutt caused to be taken all such particulars as may be deemed necessary for the identification of the accused, within the purview of s.353A(3).

16. There was a further submission by Mr Horler, senior counsel for the accused, that the sergeant was constrained not only by s.353A but also by the provisions of instructions 17 to 23 of the General Instructions to members of the Australian Federal Police. They provide as follows:

"Fingerprint Information Form
17. Fingerprint information Forms are
stocked in all Divisions. The form is designed to
provide an orderly means of receiving and filing
specimens of the handwriting of persons suspected
of having committed or having been concerned in
the commission of an offence against the laws of
the Commonwealth or of a Territory of the
Commonwealth as follows:
A. Frauds, confidence tricks, embezzlement, falsification of
accounts, fraudulent appropriation, false pretence, forgery,
uttering,
conspiracy or any other offence in which fraud is an ingredient;
B. Sexual offences, in addition to sexual offences dealt with under
the Crimes Act, the form is required where persons are charged with
wilful and indecent exposure under the Police Offences Ordinance
1930, offences against s.6 of the Objectional Publications Ordinance
1958 (print, publish or produce, etc.), and the Common Law
Misdemeanours relating to indecency;
C. Drug associated offences;
D. Any other offences of the types listed above even though not
specially mentioned. The member in charge of the investigation
should exercise discretion in any other cases, and if the
circumstances suggest that a record of the handwriting of the
offender might be useful in connection with possible future
offences, shall ensure that copies of the form are completed;
E. The member in charge of the investigation shall ensure that, at
the completion of the fingerprint information forms by the person
charged, the fingerprint of that person's right index finger or, if
this finger is amputated or injured, another nominated finger, is
rolled in the appropriate space.
18. Even if the subject has previously
completed a form, this does not render the
completion of a further form unnecessary. All
persons from whom specimens are desired should be
asked to complete the form. The member in charge
of the investigation shall use his discretion as
to when the form should be completed.
Authority to Take
19. In some areas of Australia persons in
lawful custody may be required to supply
particulars needed for identification purposes.
However, as a general rule, members shall only
secure the completion of the specimen form with
the co-operation and consent of the subject.
Manner of Completion
20. Three copies of the form should be
completed, two in handwriting and one in printing.
21. The veracity of the answers are of no
consequence, but if it is found that the
particulars are inaccurate, the member should make
a note of this on the reverse side of the form
under the space provided for the member's signature.
22. The member shall correctly complete
the form above the words "the following
particulars are to be written by persons
interviewed" and the subject's record name should
be that which is recorded in the fingerprint bureau.
Destination
23. Completed fingerprint information
forms shall be submitted with other fingerprint
forms, when obtained, and shall thereafter be
forwarded to:
The Officer in Charge."

17. It was submitted that instruction 17D was the only possible source of the power to obtain specimen handwriting on the facts of the present case insofar as it referred to a discretion to obtain specimens "in any other cases".

18. On the other hand, according to the submission, that particular instruction restricts its application in those other cases to circumstances where it is considered that the specimen may be useful in connection with possible future offences. There may be some substance in that submission but I find it unnecessary to rule on it. In any event, according to the terms of instruction 17D, the decision is to be made by the member of the Australian Federal Police in charge of the investigation and not by the person authorised to take particulars under s.353A of the Crimes Act. Clearly, Sergeant Garbutt was not the member in charge of the investigation.

19. I conclude, therefore, that insofar as the instructions were relied upon to justify the course taken in obtaining specimens of the accused's handwriting, the method of obtaining the particulars fell outside the scope of instruction 17D and outside 17 altogether. I would add that Sergeant Garbutt, and for what it is worth, Sergeant Jackson, relied on that instruction.

20. On the other hand, Mr Moshinsky, senior counsel for the prosecution, sought not to rely on the general instructions at all and submitted that they had no force at law. I think that that submission is contrary to the approach of Fox J. in Sernack's case and other decisions on similar examples of instructions to police such as R v Ragen (1964) 81 WN (Pt.1) 572. Such instructions, although not enforceable as law in a general sense, are nevertheless binding on members of the police force to the extent that they confer authority and impose obligations as part of a regime of conduct within the force.

21. In any event, the provisions of instruction 19 suggest that the instructions are not intended to supplement State or Territory law relating to the obligation of persons in custody to supply particulars needed for identification purposes. Instruction 19 is headed, "Authority to take", though what significance that has is difficult to determine. What is important is that instruction 19 provides that irrespective of local law and as a general rule the specimen is to be completed only with the co-operation and consent of a subject. In the present case the accused did not give evidence on the voir dire and it was not suggested to the police witnesses that there was any lack of co-operation or consent on her part. Therefore, I am not convinced that there was any contravention of instruction 19. However, I think that the provisions of instruction 19 need further consideration on another aspect to which I come immediately and that is the discretion to exclude the evidence of the handwriting samples on the ground of public policy, according to the principles laid down in Bunning v Cross [1978] HCA 22; (1978-79) 141 CLR 54 and other cases, or perhaps, and I stress perhaps, on the question of unfairness to the accused.

22. I interpolate here that I accept the view expressed in Cross on Evidence, Australian edition, para 27245, that the Australian authorities do not, at this stage, extend to expressly justify the proposition that admissible evidence illegally obtained is subject to a discretion to exclude it on the basis of unfairness to the accused alone. The decision in Bunning v Cross, and particularly the judgment of Stephen J. and Aickin J. at pages 74 to 75, indicates that the discretion raises no simple question of ensuring fairness, but rather involves the balancing of the two competing requirements of public policy, namely the desirability of convicting criminals on the one hand and declining to approve or encourage unlawful conduct of law enforcement authorities on the other.

23. As was said by their Honours, the aim of the discretionary process in this context by no means takes as its central point the question of unfairness to the accused. Nevertheless, the case and the judgment acknowledges that unfairness to the accused cannot be ignored as one fact which plays its part in the whole process of consideration. Moreover, the discretion is to be exercised, as their Honours say, where the evidence is the product of unfair or unlawful conduct on the part of the authorities, or as Sir Owen Dixon put it in Wendo and Others v The Queen [1963] HCA 19; (1962-1963) 109 CLR 559, unlawful or improper conduct.

24. Indeed, the landmark decision of The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 was not a case of evidence obtained by unlawful conduct - a photograph of the accused's hand taken without consent - but a case where, in the circumstances, it was considered that the evidence had been obtained improperly.

25. I come now to the balancing exercise itself. The seriousness of the charges is a matter which on consideration appears to weigh against the reception of the evidence rather than its admittance. It was so stated by Murphy J. in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at p 17 and was so considered in The Queen v Addabbo (1982) 33 SASR 84 at p 98.

26. Moreover, in my view, the evidence under consideration in this case is of a type that usually can be obtained by means other than the use of so called fingerprint information forms. It is possible, for example, for a person's handwriting to be obtained without recource to such forms misleadingly referred to as fingerprint information forms and forms couched in terms suggesting that the person is under some obligation to complete them.

27. I go back to the instructions. The decision to seek specimens of handwriting is to be taken by the officer in charge of the investigation. That officer is presumably and in normal circumstances an officer of some seniority. It is not a decision to be taken by someone junior and inexperienced.

28. The same considerations would appear to apply to the officer authorised to take particulars under sub-s.353A(3). The power is given only to the officer in charge of police at the police station, again an officer who would be expected to be of some experience and seniority but not necessarily in charge of an investigation; indeed, not normally so, one would think. Sub-s.353A(3) and instruction 17, and in particular 17D, do not sit easily together. They pose difficulties for individual officers trying to make decisions about how to get about the investigation of crime.

29. There was no wilful disregard by Sergeant Garbutt of either s.353A(3) or the general instructions. Indeed, it was argued that the officer could have relied upon his powers under the section alone and not sought to justify his action under the instructions. However, one can understand his desire not to be seen in breach of either the section or the instruction. The unfairness, if any, lies not so much in the conduct of the individual officer as in what he might reasonably have seen as required of him by the instructions themselves and, in particular, by instruction 17.

30. So far as unfairness to the accused in the light of her own situation is concerned, it is another matter. The accused made it clear to Sergeant Jackson, prior to her arrest on 22 November 1988, that she would not answer any questions. It is likely that she would have taken the same attitude if there had been any similar sorts of questions asked of her prior to her previous arrest.

31. It is also likely that if she had been given the choice on either occasion, she would not have supplied samples of handwriting. Instruction 19 stresses the need for the co-operation and consent of the subject when obtaining the completion of the specimen forms, as I have already indicated. Whilst I am of the view that there has been a compliance with the letter of the instruction, it is hardly a compliance with the spirit of the instruction if the co-operation and consent is obtained by keeping the subject, already charged, in custody and in circumstances suggesting that she was obliged to provide the specimen, and keeping her in ignorance of the fact that the specimen was to be used to try to strengthen the case against her.

32. I consider that neither Carr, already referred to, nor Callis v Gunn (1964) 1 QB 495 is authority to the contrary. In fact, Callis v Gunn confirms that fingerprint evidence taken in the absence of the consent of the accused is admissible, subject to the court's overriding discretion, and I would think the same principle must apply to evidence obtained of particulars which are not in the way of fingerprints.

33. True it is that Lord Parker C.J. in that case said at p 502 that the discretion to exclude would be exercised:

".... if there was any suggestion of it
having been obtained oppressively, by false
representations, by a trick, by threats, by
bribes, anything of that sort."

34. However, the discretion to exclude is not so circumscribed in Australia. In the present case the accused was presented with a form headed as follows, "The following particulars are to be written by person charged". This heading suggests that she was under some obligation to write the particulars. In law she was under no such obligation.

35. The instructions establish a regime for the receiving and filing of specimens of the handwriting of subjects. The documents to be completed and used for that purpose are innocuously and misleadingly entitled or described as fingerprint information forms. In fact they supply no fingerprint information at all. Instruction 21 acknowledges that the veracity of the answers is of no consequence. That can only be so because what is sought is not information or particulars but examples of the suspect's handwriting.

36. Fairness in this context, in my view, required that this accused be told either that she was under no obligation to complete the forms in her handwriting or that the forms would be used as specimens of her handwriting or that she be told both. Whilst it may be that the maxim "nemo tenetur seipsum accusare" applies only to answers given by an accused to questions asked of an accused, as was stated by the Court of Criminal Appeal in New South Wales in Carr, the same case recognizes that much depends on the circumstances and that the taking of fingerprints was an accepted method of proof so long as the fingerprints were not oppressive or deceitfully obtained.

37. Despite the lack of evidence from the accused herself, I think it has been demonstrated on her behalf that the unfairness to her in admitting the handwriting and the need to protect ordinary citizens from unfair, unlawful or improper conduct by the authorities outweighs the countervailing aspects of the public interest.

38. I therefore rule that the specimens of handwriting obtained on 17 October and 22 November 1988 should be excluded from the evidence in the trial.
Addendum

39. I want to say something yet further about how I wanted to take into account the seriousness of the charges. In the course of giving my detailed reasons prior to the adjournment, I made reference to the seriousness of the offence as a factor to be considered when the balance is to be struck between the two conflicting aspects of public policy.

40. I stated that the seriousness of the offence weighed against the improperly obtained evidence being admitted into evidence. I referred to the South Australian Supreme Court decision in The Queen v Addabbo (1982) 33 SASR 84 at p 98 and the dicta of Murphy J. in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at p 17. The statement I made was not correct and I subsequently attempted to clarify what I meant to say. In my attempt to clarify the statement, I merely repeated the error. I now attempt again a clarification.

41. What, in fact, I meant to say was that the seriousness of the offence weighs in favour of the improperly obtained evidence being admitted into evidence, in other words, that the more serious the offence the more likely it is that the evidence will not be excluded. As Wells J. said in Addabbo at p 98 in relation to the most serious offence of murder:

"Important evidence tending to identify the
offender should not, other things being equal, be
lightly discarded."

Murphy J. said in Cleland at p 17:

"Evidence obtained by unlawful or improper
conduct should be almost automatically excluded on
trials of minor offences, but otherwise in trials
for the most serious crimes."

42. So I end by saying that my decision to exclude the handwriting samples was made despite the seriousness of the charges and in no way because of their seriousness.
2. Evidence of Witnesses Subject to Diplomatic Immunity - 1 July 1990

43. After the arraignment but before the empanelling of the jury was complete (indeed whilst the Sheriff, pursuant to an order under s.31(1) of the Jury Act 1967 was endeavouring to find persons in the vicinity of the Court to make up a jury of 12), Mr Horler for the accused, indicated that he would object to the calling by the prosecution of a witness, Ms. Linda Anne Hayes. I suggested that it would be convenient to hear argument on the question at that stage, after which I would give an opinion on the question, but not strictly a ruling, since the trial proper had not commenced. Counsel agreed with that course.

44. The witness was employed as a secretary at the Embassy of the United States of America in Canberra on 14 November 1988. I was told by Mr Moshinsky for the prosecution, that it was expected that she would, if called, give evidence of the receipt of a letter at the Embassy on that date, a letter alleged to be written by the accused. It is alleged that the sending of that letter constituted the threat to commit an attack on an internationally protected person which is the subject of the fifth count on the indictment.

45. There was produced for my inspection a photocopy of an instrument under the seal of the Embassy of the United States of America, and I was told that the original instrument is with the Department of Foreign Affairs and Trade. The instrument contained the following passages:

"It is now understood by the Government of
the United States that the Department of Foreign
Affairs and Trade has offered temporary diplomatic
status to Ms. Linda Anne Hayes during her return
to Australia for the purposes of this case.
Given this understanding, the Embassy has
been instructed to stipulate that Ms. Linda Anne
Hayes has complete immunity from the obligation to
give evidence as a witness under Articles 37(2)
and 39 of the Vienna Convention on Diplomatic
Relations, and is, therefore, free from any
obligation to give evidence as a witness in
accordance with the provisions of Article 31(2) of
the Convention.
In the circumstances of the present case,
however, and upon the request of the Department of
Foreign Affairs and Trade, the United States
Government expressly waives its immunity in this
respect, but only for the limited purposes of permitting
Ms. Hayes to appear and testify to facts known to
her in connection with the fire-bombing of United
States diplomatic personnel vehicles and the
threat letter to the U.S. Ambassador, and for no
other purpose (Article 32 of the Vienna Convention
on Diplomatic Relations)."

46. Ultimately, no argument was pressed for the defence that the photocopy of the instrument should not be accepted as evidence, nor that when Ms. Hayes came to give her evidence she would not be a diplomatic agent within the terms of the Vienna Convention on Diplomatic Relations (the Vienna Convention), and therefore free from any obligation to give evidence except insofar as the instrument constituted a waiver by the United States of its immunity.

47. The Diplomatic Privileges and Immunities Act 1967 to which the Vienna Convention is a schedule, gives the provisions of Articles 1, 22-24 (inclusive) and 27-40 (inclusive) the force of law in Australia. Article 1 of the Vienna Convention defines a diplomatic agent to include a member of the diplomatic staff of a diplomatic mission and Article 37 extends the privileges and immunities conferred on diplomatic agents by Articles 29 to 36 to members of the household of diplomatic agents. Article 31.2 provides that a diplomatic agent is not obliged to give evidence as a witness. Article 32.1 provides that the immunity from jurisidiction of diplomatic agents may be waived by the sending State, and Article 32.2 provides that waiver must always be expressed.

48. The furnishing by the prosecution of the photocopy instrument from the Embassy of the United States appears to overlook that, according to the terms of the Vienna Convention (for example Article 4) and according to international diplomatic practice, it is for the receiving State rather than the sending State to determine who should be granted diplomatic status in the receiving State. According to Jonathan Brown in an article Diplomatic Immunity: State Practice Under the Vienna Convention on Diplomatic Relations, International and Comparative Law Quarterly, (1988) Vol. 37, 53 at p 56,

"The importance of the notification system
is that it enables the foreign ministry of the
receiving State to say who is a diplomatic agent:
the sending State appoints, but the receiving
State in effect determines status. There is
nothing in the Convention on the recognition, as
such, of diplomatic agents. The courts, which
determine immunity, state that recognition is a
matter for the executive government, or for the
foreign ministry in particular. This is the
judicial practice of many countries."

49. In Duff v The Queen [1979] FCA 83; (1979) 39 FLR 315, it was held by a Full Court of the Federal Court at p.356 that certificates by the Attorney-General and the Minister for Foreign Affairs as to the status of a Military Attache and his wife accredited to a foreign diplomatic mission in Australia were "both admissible and probative, if not conclusive, of their respective status". At p 355, the Federal Court stated:

"Recognition of the status of diplomatic
personages is the prerogative of the Government of
Australia, and a person who is so recognized as
having a particular status has that status for the
purpose of a court of law".

50. The usual way then of proving the diplomatic status of a person in Australia would be by the tendering of a statement or certificate from the Australian Minister for Foreign Affairs, and not by the tendering of a certificate or instrument from the government of the country to whom the person is accredited.

51. However, for the purpose of considering the question which had been raised in relation to the calling of the witness, I assumed that Ms. Hayes was a diplomatic agent within the terms of the Vienna Convention. I assumed initially, as did counsel, that she was obliged to give evidence insofar as the United States Government waived its immunity by the instrument in evidence. Accordingly, the precise issue that Mr Horler raised in relation to the calling of the witness was that the limitation of the waiver in the instrument was such that it would prevent him from cross-examining the witness properly and that as a result his client would be denied a fair trial.

52. An initial difficulty in relation to this question is the nature of a limited waiver of immunity in this context. There is a difference between a waiver of immunity by the foreign State and an agreement to give evidence by a diplomatic agent who is not obliged to give evidence. Jonathan Brown in the article quoted above writes at p 79:

"The reluctance of diplomatic agents to
give evidence, even in cases of alleged offences
committed against themselves, may be attributable
to the assumption that an agreement to give
evidence constitutes a waiver or a limited waiver
of immunity. This assumption is mistaken; a
diplomatic agent who agrees to give evidence
retains his immunity from the jurisdiction of the
court in any sense in which it is relevant, for
example, for perjury or contempt of court."

53. In a case cited in argument, the Supreme Court of Malaysia considered a similar question in Public Prosecutor v Orhan Olmez (1988) 1 MLJ 13. On p 19, the Court said:

"Article 31(2) says "a diplomatic agent is not obliged to give
evidence as a witness". This immunity belongs to his Government and
not one which is personal to him. The power to waive the immunity
and the extent of waiver is a matter for his State and so is the
revocation of the waiver. When Mr Yalvac turned up in court to give
evidence on December 19, 1986, he did no more than comply with his
government's wishes as indicated in the first diplomatic note
directing him to give evidence in our court. In no way would his
act of giving evidence constitute his submission or make him subject
to our jurisdiction or even render him obliged to give evidence or
make him a compellable witness. Nothing short of his government
abandoning him and stripping him off of diplomatic immunity would
make him amenable to our jurisdiction."

54. The approach of both the Supreme Court of Malaysia and of the writer appears to me to accord with the terms of the Vienna Convention. If this is so, then the instrument of the Government of the United States is to be construed as an agreement that Ms. Hayes is authorised to give evidence limited to certain matters. It is not a waiver of immunity from the sanctions that would normally follow from a refusal to give evidence or from giving perjured evidence. The question of the restriction of the right to cross-examine the witness then, in my view, is to be answered by looking at the express terms of the instrument to see the limits of the evidence which Ms. Hayes is authorised to give. Up to a point the express terms of the instrument do no more than restrict the witness to giving evidence within the confines of the ordinary rules of evidence; that is to say, the evidence must be of facts within the knowledge of the witness, which facts are relevant to the matters in issue as they relate to the charges on the indictment. However, any witness is liable to be cross-examined, and the rules of cross-examination permit the questioning of the witness on matters of credit which may range beyond matters relevant to the issues. If questions were asked of the witness which went to impeach her credit only and were not relevant to the issues, then, in my view, those questions would fall outside the restricted area of evidence which the witness is authorised to give. Some questions as to credit might touch on the issues and so remain within the authorised area, for instance cross-examination on a prior inconsistent statement about a relevant matter.

55. As I did not know how far counsel for the accused would wish to cross-examine Ms. Hayes as to her credit, it was impossible to predict whether she would be asked questions about matters which were outside (or claimed by her to be outside) the facts within her knowledge relating to the alleged threat on the person of the United States Ambassador. I foresaw a risk that should the witness refuse to answer questions which fell outside the authorised area, then that might stand in the way of counsel being able to insist on her answering questions that would ordinarily be permissible in cross-examination. In that event, the jury might have to be instructed to disregard her evidence-in-chief on the ground that the witness was not prepared to submit to proper cross-examination. An alternative course might be to discharge the jury. It seemed to me initially that there was a considerable risk in allowing the witness to give evidence. On reflection, however, I considered that the choice whether or not to run the risk was not the choice of the Court but of the prosecution. The evidence of the witness was not inadmissible. The fact that the special position of the witness might lead to a situation where the trial would abort did not render her admissible testimony inadmissible, nor, in my view, did it permit the exercise of the discretion (assuming such discretion existed) to disallow the prosecution to call her.

56. I therefore expressed the opinion that Ms. Hayes could be called as a witness by the prosecution.

57. I said at the time of expressing my opinion that I would give my reasons at a later stage and this I have now done. Ms. Hayes has since been called to give evidence in the trial. There was no formal objection in the trial to her giving evidence, but I took defence counsel's objection to be implicit. No question was asked of her in cross-examination which caused her to claim immunity or to refuse to answer or which caused me to think that the question and answer went outside the area of evidence which she was authorised to give. For the record it should be noted that the copy of the instrument from the United States Embassy was not put in evidence during the trial but was marked for identification during the suspension of the empanelling of the jury. During the trial certificates under the hand of the Attorney-General were admitted to prove that the persons concerned were members of diplomatic staffs and hence "internationally protected persons".

58. After Ms. Hayes was called other witnesses were called who were claimed to be in a similar category. I ruled that their evidence was admissible for similar reasons. None of them was asked any questions which led to a refusal to answer or which appeared to raise matters outside the authorised area of evidence.
3. Application for Verdict of Acquittal at End of Prosecutor's Opening Address - 1 July 1990

59. At the end of the prosecutor's opening address to the jury, Mr Horler made application for the jury to be directed to bring in a verdict of acquittal without the calling of evidence. Mr Moshinsky for the prosecution raised an initial objection to such an application being made at all and submitted that it was an improper course of conduct on the part of defence counsel.

60. I ruled that there was no impropriety in the application and I allowed it to be made. I remarked at the time that, according to my recollection, such applications are not uncommon in New South Wales. Mr Moshinsky assured me, and I accepted his assurance, that they are unheard of in Victoria. However, the true nature of the application needs to be recognized. It is not in truth an application for a verdict of acquittal. The practice has been that in an appropriate case defence counsel might at the end of the prosecutor's opening address make an application to the judge which, if successful, will result in the judge informing counsel for the prosecution that if the prosecution does not propose to prove anything beyond what has been outlined in the opening address of counsel for the prosecution, then the trial judge would expect at the end of the calling of all the prosecution evidence to instruct the jury to return a verdict of acquittal. In such circumstances counsel for the prosecution might accept the intimation of the trial judge, and offer no evidence. In that circumstance the trial judge would instruct the jury to return a verdict of acquittal, and the costs of a trial would be avoided. I would stress, however, that the practice depends on the attitude of the trial judge and counsel for the prosecution. The trial judge is not obliged to entertain such an application, and counsel for the prosecution is not bound to accept the invitation of the trial judge to present no evidence. A trial judge has, in my view, no power to intervene on behalf of an accused person who is in the charge of the jury and direct the jury to return a verdict of acquittal prior to the prosecution having the opportunity to present its evidence to the jury. The so-called right "to stop the case", either on the part of the jury or of the trial judge, does not come into existence until the end of the prosecution case: R v Prasad (1979) 23 SASR 161 at 163.

61. That being said, I do not think it necessary to elaborate further on this aspect of the application. It was submitted first that if the prosecution called all the evidence which counsel in his opening address said would be called on behalf of the prosecution, then that evidence would be insufficient as a matter of law to support a conviction. I reject the submission without discussing it in detail. It is necessary to say only that the case against the accused on all counts is a circumstantial one and depends upon the finding of certain items at the scene of the alleged crimes, the finding of allegedly associated items at the accused's home and place of work and fingerprints, handwriting and other expert opinion evidence. I am not convinced that the evidence outlined by the prosecutor would, if called, not be sufficient to permit the jury to convict on all counts if it was so minded.

62. Another aspect of the same submission was that the prosecution had furnished particulars of what it was alleged that constituted the "certain acts" which in turn constituted the offence of being knowingly concerned in the damage or destruction of the vehicles by means of fire forming the subject of the first four counts on the indictment. The acts alleged were in each case the writing of a note and the leaving of the note at the scene where the cars were destroyed or damaged. In the case of the first count there were further acts, namely, taking part in the identification by means of photographs of the vehicle allegedly destroyed and identifying Johannes Hough whose means of transport it was. In the case of the third and fourth counts there was a further act specified, namely leaving a bag soaked in accelerant or highly flammable liquid at the scene. It was submitted that those specified acts could in no way constitute being knowingly concerned in the substantive offences.

63. It is reasonably clear that a person can hardly destroy or damage a motor vehicle by means of fire by writing a note and leaving it where the vehicle is destroyed or damaged. But the accused is not charged with the substantive offence. She is charged with being knowingly concerned in the substantive offence. The argument put on behalf of the accused is that writing and leaving the note, identifying the vehicles, or leaving the bag soaked in accelerant at the scene, could not without more proof prove that the person who did so was knowingly concerned in the destruction or damage by fire which took place. So stated in those broad terms, there is some substance in the argument. However, the whole of the circumstances of the writing, the identification of the vehicle and the leaving of the note and the leaving of the bag have to be looked at. The contents of the note themselves suggest a motive for the setting fire to the vehicle in each case. The anticipated evidence suggests, or at least is opened to interpretation by the jury to suggest, that the note was left near the vehicle in each instance shortly before the incendiary devices found adjacent to the vehicles were ignited. The same remarks apply with greater force to the leaving of a bag soaked in a highly inflammable liquid near the vehicles, the subject of the third and fourth counts. It would be open to the jury, in my view, to conclude that the person who wrote and left the notes, or who left the bag, did so in the knowledge or expectation that the vehicle in question would be destroyed or damaged by fire. In those circumstances it would be open to the jury to conclude that whoever it was that left or wrote and left the note in each case or left the bag soaked in accelerant in the case of the third and fourth counts, was knowingly concerned in the commission of the substantive offence charged respectively in each of the counts. For the purpose of the ruling I leave out of account as a separate act the identification of the vehicle the subject of the first count.

64. A further submission was that the prosecution could not succeed on the fifth count because it was not part of the prosecution case that the letter alleged to have been written by the accused or the sending of which constituted the means of threatening to commit an attack upon the person of Laurence William Lane, an internationally protected person, was ever received by or indeed brought to the notice of Mr Lane. According to the prosecutor's opening, all that would be proved was that the letter in an envelope addressed to the Ambassador was received at the Embassy of the United States in Canberra, read by a secretary and then passed on to the Deputy Chief of Mission, who himself read the letter. It was not clear whether the prosecution would press the evidence opened to the jury that the Deputy Chief of Mission considered that the letter was a threat to commit an attack on Mr Lane, the Ambassador. Whether that evidence was admissible or not did not seem to me to be a question that needed to be decided at the end of the opening address by counsel for the prosecution.

65. However, I took the view in any event that the act constituting the threat contemplated by s.8(4) of the Crimes (Internationally Protected Persons) Act 1976 is complete when made in circumstances apt to achieve communication of the threat to the person to whom it was directed. I take those words from the decision of the High Court in Austin v The Queen [1989] HCA 26; (1989) 166 CLR 669 a case concerned with the statutory offence of demanding property with menaces under s.3(1) of the Kidnapping Act 1960 of South Australia. In that case the High Court in its joint judgment said on p 675:

"It is the behaviour of the offender in making a demand with menaces
or threats which is the gist of the offence and not actions or
events over which the offender may have no control. There are, of
course, crimes in which the actus reus is incomplete until certain
consequences occur as a result of the offender's conduct. Murder by
shooting or poisoning, where death is the consequence of the
offender's act, are examples. But where the definition of an
offence can be construed either to include or to omit the
consequences of the offender's act as an element of the offence, the
immediacy of the consequences and their subjection to supervening
events or actions are material to the construction to be placed upon
the definition. Thus it is appropriate to regard the offence of
demanding money with menaces or threats as complete when the demand
has been made in circumstances apt to achieve its communication to
the person to whom it is directed and with the necessary intent. It
is inappropriate to regard actual communication as a necessary part
of the offence."

66. It seems to me entirely appropriate that the same approach be applied to s.8(4) of the Crimes (Internationally Protected Persons) Act 1976 Act under consideration. That Act is entitled an Act for the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. It is consonant with the aims and objectives of the legislation that written threats upon diplomatic personnel should be able to be intercepted before they reach the person to whom the threat is directed without at the same time freeing the person making the threat from criminal liability. In any event, there seems to be no reason why the threat has to be directed to the victim at all. A threat may be directed by A to B that if B does not act in a certain way A will commit an attack upon C.

67. A similar approach was taken by the House of Lords in Treacy v Director of Public Prosecutions (1971) AC 537 where it was said at p 543:

"When the demand is made in writing, as in
this case, it will usually be made at one time and
place and received at another time and place. If
the intended victim is blind or illiterate, the
demand is nonetheless made and first made, in our
opinion, not when it reaches the victim but when
it leaves the demander beyond recall on its way to
the intended victim whom it will reach in the
ordinary course of things."

68. Finally, an application was made at the close of the prosecutor's opening address to the jury to be discharged on the ground that certain evidence, in particular evidence of what was discovered upon searching the accused's house and rubbish bins and searching her place of work, was not admissible. In my view, at this stage of the proceedings it has not been shown that the evidence is inadmissible and I declined to discharge the jury on that ground. The further point taken was that counsel for the prosecution was unduly inflammatory in his opening address by making reference to "a political element" and "a political flavour" which attached to the offences. This was, in my view, no more than a reference to a possible motive of the accused in being knowingly concerned in the substantive offences. Gratuitous reference to the political aspects of the conduct of an accused person is in general of little probative weight and potentially prejudicial to the accused. In some cases, however, features of the conduct in question which are highly relevant cannot escape the label of being called political. So it seems to me in the present case. The substantive offences were committed upon personnel of the South African and United States Embassies, or their property. It would be idle to suggest that the evidence outlined points solely to a commercial motivation or that the perpetrator or perpetrators of the substantive offences bore simple personal grudges against the victims of the various offences. The acts relied upon by the prosecution include the writing and leaving of the notes and the letter. It is inescapable that the jury could conclude that the notes each bore similar political messages. It is unrealistic to suggest that the jury may not conclude that the acts of the person or persons who left the notes and indeed the bag soaked in accelerant, were not acts which were politically motivated. It is always open to the prosecution to prove motive, although it is not necessary. Because it is not necessary for the prosecution to prove motive, it does not follow that the prosecution should be prevented from proving motive because that happens to be prejudicial to the accused. Highly probative evidence is of its nature prejudicial to the accused, and for that reason the prejudicial effect of such evidence does not require its exclusion from the trial. The jury is entitled to regard evidence of motive, even political motive, as probative.

69. In Alister and Others v The Queen [1983] HCA 45; (1983-1984) 154 CLR 404, it was held that the political associations and allegiances of the accused were relevant, although it was considered that some of the cross-examination went beyond what was relevant in that it concentrated on the political philosophies and activities of the organization to which the accused belonged, rather than on the conduct of the accused themselves. Of course as Murphy J. said at p 425, no trial should be allowed to degenerate into a political trial and the prosecution must not descend to inviting the jury to arrive at guilt by association.

70. For the above reasons, I declined to invite counsel for the prosecution to offer no evidence and declined to discharge the jury at the end of the prosecutor's opening address.
4. Application for Verdict of Acquittal at End of Prosecution Case - 1 July 1990

71. I deal now with a number of submissions made by Mr Horler at the end of the prosecution case. The first is a submission that there was no evidence that the vehicles shown in exhibit AC1, a series of photographs, were shown entering or leaving the South African Embassy, as was foreshadowed in the prosecution opening. That submission is correct and the jury will be given a direction in relation to that in due course.

72. The second submission was that the evidence on the fifth count does not support a conclusion that the letter delivered to the United States Embassy constituted a threat to the internationally protected person named in the indictment, the United States Ambassador. I have already dealt with that submission on a question raised at the end of the prosecutor's opening address and I have just published my reasons for that decision. My reasons for rejecting the submission as it is in essence renewed at this stage remain the same.

73. Thirdly, it was submitted that there is no evidence as to who found the note exhibit P, which Sergeant Strong and Sergeant Turnbull say they saw on a table inside the residence at Holder shortly before or after 8 a.m. on 14 August 1988, and that there is no evidence of any finding prior to it getting onto that table. However, I think it is open to the jury to infer that it was found by someone earlier that morning sufficiently proximate in place to the vehicles in question for the jury to somehow connect it with the unusual circumstances of the observation of tins and bottles of unignited fuel, burnt and unburnt matches, and something in the nature possibly of a wick.

74. I turn now to the submission by Mr Horler that there be a verdict of acquittal by direction at the end of the prosecution case because of the overall absence of sufficient evidence implicating the accused. This is a point not without difficulty, and it does raise one or two general issues of importance. So I deal with it in some detail.

75. I begin by stating three principles on which I am bound to act.

1. Where the prosecution case is a circumstantial one, as it is in
the present trial, the judge has no power to take the matter
from the jury on the ground that the judge is of the view that
there is a rational hypothesis or that there are rational
hypotheses consistent with innocence. So long as the guilt of
the accused is capable of furnishing a rational explanation of
the facts proved, then it is for the jury to decide whether it
thinks that such explanation is the only rational one amongst
all the other competing explanations which, by definition, are
consistent with innocence. This principle derives from the
general principles of standard and onus of proof, but is stated
much along the lines in which I have just expressed myself in
the decision of the Court of Criminal Appeal in Victoria in
Attorney-General's Reference (No. 1 of 1983) (1983) 2 VR 410.
It may be only another way of saying that it is for the jury and
not the judge to decide that the evidence leaves a doubt as to
the guilt of the accused as charged.
2. It is not for the trial judge to direct the jury to acquit on
the ground that the judge thinks that a verdict of guilty would
be unsafe or unsatisfactory. Where, on one possible view of the
facts, the evidence is capable of supporting a verdict of
guilty, the matter must be left to the jury for its decision,
although the evidence is tenuous, weak or vague. The most
recent pronouncement of that principle is in the decision of the
High Court in Doney v The Queen (1990) 65 ALJR 45.
3. In order to be convinced beyond reasonable doubt that the
accused is guilty, it is not necessary for the jury to be
convinced that the facts from which guilt is to be inferred to
that degree of proof are themselves proved beyond reasonable
doubt. In a circumstantial case the situation is as described
in the leading judgment of Dawson J. in Shepherd v The Queen
[1990] HCA 56; (1990) 65 ALJR 132 at 136 where his Honour said as follows:
"The judgments in Chamberlain do not support the proposition
that, in a case resting upon circumstantial evidence, the jury
may only properly draw an inference of guilt upon facts -
individual items of evidence - proved beyond reasonable doubt.
Still less does the case establish that a direction in those
terms should be given to a jury. Of course, it is recognized
in Chamberlain that, if it is necessary for the jury to reach
a conclusion of fact as an indispensable, intermediate step in
the reasoning process towards an inference of guilt, then that
conclusion must be established beyond reasonable doubt. But
to say as much is to do little more than state a truism. It
does not mean that each item of evidence taken into account in
reaching that conclusion must, considered separately, be
established beyond reasonable doubt.
Whether it is desirable for a trial judge to identify an
intermediate conclusion of fact in his charge to the jury in
order to instruct them that it must be proved beyond
reasonable doubt will depend upon the particular case. Such
an instruction will only be possible where the conclusion is a
necessary link in a chain of reasoning. Even then,
particularly when that is obvious, the instruction may not be
helpful."

76. McHugh J. did not go quite as far as Dawson J. on this particular aspect, but I do not take anything his Honour said to be inconsistent with the remarks of Dawson J. On page 140 McHugh J. said:

"No doubt a trial judge has the right to
suggest to the jury that they might think that, on
the evidence, they could not be satisfied that the
accused was guilty beyond reasonable doubt unless
they found that a particular fact was proved
beyond reasonable doubt. But the existence of
that right in the trial judge provides no support
for the proposition that the jury must be directed
that they cannot rely on a circumstance to found
an inference of guilt unless that circumstance is
proved beyond reasonable doubt."

77. Turning then from that case, I am of the view that in a particular instance, the prosecution case may be such that there are individual facts or items of evidence which are so important to the prosecution case as it has been cast, that it would be inappropriate for the jury to proceed to a conviction unless it was persuaded that those particular facts or items are proved beyond reasonable doubt. For example, in a trial in which the prosecution brings the case against the accused as the actual perpetrator of the offence, or principal in the first degree, a jury could not convict unless it was proved beyond reasonable doubt that the accused was at the scene of the crime. Another example would be where the evidence against the accused is simply a confession, the jury could not convict unless persuaded beyond reasonable doubt that the accused made that confession.

78. In the present case, although the prosecution contends to the contrary, it is my firm view that the jury may not convict unless it is proved beyond reasonable doubt that the notes found at the three locations and the letter posted to the United States Embassy are in the handwriting of the accused and further that the accused either left them there herself or caused someone else to leave them there. I am further of the view that once the jury accepted that the handwriting was that of the accused and accepted that proposition proved beyond reasonable doubt, it would be open to them, in the light of other facts which they might find established on the whole of the evidence, to further find that the accused either left that writing at the scene or caused it to be left there. I confine the following remarks then to the issue of the handwriting.

79. Evidence of sample handwriting was admitted by me pursuant to s.96 of the Evidence Ordinance 1971 after a voir dire hearing in which I ruled that the samples were, on the balance of probabilities, genuine, that is to say, the handwriting of the accused. The samples are therefore available to be compared with the disputed writing. By whom they are to be compared is another matter. An expert in handwriting and document analysis, Mr Paul Westwood, has given evidence of comparing the disputed writing with the samples and of his conclusions. His conclusions are that the note, exhibit X, is probably in the handwriting of the same person who wrote the samples. Exhibit P is probably in the handwriting of the same person. Part of exhibit B is probably of the same person and part very probably so, and exhibit AQ very probably so. When asked what he meant by "probably", Mr Westwood said that he meant more likely than not. When asked about "very probably" he said that he could not rule out coincidence, but its likelihood was "very remote".

80. It is submitted on behalf of the defence that the prosecution is bound by the evidence of Mr Westwood to this extent, that the jury could not go beyond his stated opinion that the disputed writing was probably, or in some instances, very probably, written by the person who wrote the sample in order to conclude that the authorship of the disputed writing was established beyond reasonable doubt.

81. It is necessary to say something briefly about the nature of Mr Westwood's evidence as expert evidence given in a criminal trial. The fact that evidence of observation or opinion is expressed by a witness in terms of probability does not mean that the evidence is incapable of furnishing proof beyond reasonable doubt. Sir Richard Eggleston, a former judge of this Court, dealt with this question at some length in his book, Evidence, Proof and Probability 2nd ed., particularly at p 114. He made the observation that it is in the nature of human affairs that absolute certainty is rarely, if ever, attainable and quoted the French philosopher, the Marquis de Laplace, who wrote in 1814 that "moral proof is never more than a probability".

82. As Sir Richard Eggleston notes, there is no particular level of mathematical probability which must be reached before a verdict of guilty may be returned in a criminal trial. The problem is to define an acceptable level of probability which will keep to a reasonable level the error of punishing innocent persons whilst not increasing to a dangerous level the error of letting criminals go free. English law has sought to resolve this problem by resort to what is said to be a favourite device, the concept of reasonableness, and it places that problem on the shoulders of the jury.

83. All that said, however, when Mr Westwood referred to the notes as probably or very probably being in the handwriting of the same person who wrote the samples, he appeared to be referring to a degree of probability which had to fall short of proof beyond reasonable doubt. That is to be contrasted with his view that certain questioned handwriting exhibits found at the accused' house were as a matter of practical certainty in the handwriting of the person who wrote the samples.

84. The evidence of Mr Westwood is the evidence of a person with particular experience, training and skill in analysis and comparison of handwriting. He was able to point out to the jury certain physical characteristics and qualities of the disputed and sample handwritings which may not be regarded as being within the competent observation of the jury unless given expert assistance.

85. I would think the remarks of the Full Court of the Supreme Court of Victoria in R v O'Callaghan (1976) VR 676 at 679 are apposite, although that was a case of fingerprint expert evidence. This is what the Court said:

".... so far as they attempt to point out
similarities, they are not, in one sense, speaking
as experts at all, but are merely pointing out to
the jury matters which the jury could determine
for themselves - they are simply convenient
helpers of the Court."

86. Although it may no longer be the law, if it ever was, that an expert is precluded from expressing an opinion on the ultimate question which the jury has to determine for itself, the subjective assessment by Mr Westwood in terms of degrees of proof of the significance of the characteristics and qualities of the handwriting, is another matter. An expert is not permitted to express an opinion in such a way as to purport to apply a legal standard, because the application of that standard lies exclusively within the province of the tribunal of fact, see R v Palmer (1981) 1 NSWLR 209 per Glass J.

87. The distinction between the provision of expert evidence for the guidance of the jury and the function of the jury determining for itself whether the opinion of the expert is to be accepted was made again by the Full Court of the Supreme Court in R v Lawless (1974) VR 398 at p 423:

"It is a matter for expertise not possessed
by the ordinary run of mankind to identify
characteristics of fingerprints and their patterns
in each of two prints and make a comparison and
form a conclusion as to whether they are identical
or not and the jury could not be invited or
allowed to act as experts: see R v Tilley (1961)
1 WLR 1309; (1961) 3 All ER 406; R v Harden
(1963) 1 QB 8; (1962) 1 All ER 286; R v Weise
(1969) VR 953 at p 972. That is not to say of
course that the jury could be prevented from
examining the exhibits for the purpose of
determining whether they were satisfied to the
necessary degree by the evidence of the witness.
The determination was for them, but the provision
of evidence was for the experts."

88. In cases of disputed handwriting the common law courts were traditionally reluctant to allow the jury to make comparisons without expert assistance. In Lattouf v Sassen (1968) 3 NSWR 577 although a civil case, Walsh J. summarised the position at that time at p 580:

"In certain English criminal cases, it has
been held that it is dangerous to leave a question
of handwriting to a jury to be decided by their
own comparisons of writings without the assistance
of expert evidence. See R v Tilley (1961) 3 All
ER 406; (1961) 1 WLR 1309, and the earlier
cases there cited. In the case in 1869 of R v
Harvey (1869), 11 Cox 546 to which reference is
made in Phipson, para. 317, what Blackburn J. said
was merely that the evidence was "very weak" and
he did not think the jury ought to act on it
without the assistance of an expert. In 1918 in R
v Rickard (1918) 13 Cr App Ref 140, the Court
stated the principle which was adopted and applied
in Tilley's Case. The principle was not that it
is wrong in law to allow or to invite a jury to
compare writings themselves. There had been no
expert evidence in the case, as the Court ruled
that two persons who had expressed opinions were
not experts. Salter J. said (13 Cr App Rep at
p 143): 'This Court does not decide that expert
evidence in such cases is necessary, and the
observations of Blackburn J. in Harvey's Case do
not so decide, but it is clear from the nature of
things that to leave a question of handwriting to
a jury without assistance is a somewhat dangerous course."

89. In the year following Lattouf v Sassen in R v O'Sullivan (1969) 2 All ER 237 at 242, Winn L.J., delivering the judgment of the English Court of Criminal Appeal in a case where there was no expert evidence on the handwriting at all, said as follows:

"The fact remains that there is a very real danger where the jury
make such comparisons, but as a matter of practical reality all that
can be done is to ask them not to make the comparisons themselves
and to have vividly in mind the fact that they are not qualified to
make comparisons. It is terribly risky for jurors to attempt
comparisons of writing unless they have very special training in
this particular science. All possible was done, this court thinks,
with great care and very fairly by the court in the instant case.
It may well be that, despite it, the jury did try to make
comparisons. That is really unavoidable and it should be accepted
these days that R v Tilley (1961) 3 All ER 406; (1961) 1 WLR 1309
cannot always be in its literal meaning exactly applied;
nevertheless every possible step and regard should be had to what
was said by the court in that case, in as much as never should it be
deliberately a matter of invitation or exhortation to a jury to look
at disputed handwriting."

90. Finally, on this general question of handwriting evidence and expert opinion, I refer again to Adami v The Queen [1959] HCA 70; (1962-63) 108 CLR 605 at p 617, already referred to in other decisions made during the course of the trial. In the judgment of the High Court, it was said that the equivalent of s.96 made possible a use of handwriting for the purpose of providing a standard of comparison without the assistance of witnesses, expert or otherwise. However, it appears that the High Court was concerned with the assistance of witnesses for the purpose of deciding the admissibility of the sample handwriting and not the use of expert evidence for comparison purposes by the jury in the trial.

91. Returning to the present trial, there is no danger that the jury lacks expert assistance. The difficulty is that the expert assistance, of itself, stops short of an expression of an opinion which, if the jury accepts it, provides sufficient basis for a finding beyond reasonable doubt that the disputed handwriting is that of the accused. The jury would have to be told that. The jury would have to be warned that it should not make comparisons for itself beyond what has been pointed out by the expert. But it would also have to be told that it is a matter for it, taking into account Mr Westwood's evidence and the rest of the evidence, to decide whether it is satisfied beyond reasonable doubt that the handwriting in the disputed documents is that of the accused.

92. The other items include the fingerprint on the Shop Rite receipt found at Holder, the fingerprint on the plasticine on the can containing gunpowder found in the accused's house, the evidence showing particular interest in the diplomatic staff in Canberra and in the car and person of Johannes Hough and in particular types of flammable substances. I dealt with these matters in a little more detail on the application at the end of the prosecution address and there is no need to repeat what I said. It is for the jury to take all that evidence into account making allowable findings and drawing allowable inferences and to consider whether those findings and inferences give rise to such a strong probability that the writing is that of the accused, that it is convinced beyond reasonable doubt of that alleged fact and, eventually, of the alleged guilt of the accused.

93. As I have already remarked, the jury does not have to find any particular fact giving rise to the ultimate conclusion of guilt or any particular piece of evidence supporting the ultimate conclusion of guilt established beyond reasonable doubt, except insofar as I have already said. Moreover, it must not be overlooked that in having regard to the whole of the evidence the jury does not simply look to see whether the evidence of the handwriting is supported by the other evidence. Conversely, it examines the handwriting evidence to see how far it may support that evidence.

94. In Wakeford v Lincoln (Bishop) (1921) 90 LJPC 174, a Board of the Privy Council tried the facts in a charge against a clergyman as if it were a criminal trial. The handwriting was a crucial piece of evidence but not the only incriminating evidence. The Board made its findings in these terms:

"The expert called for the prosecution gave his evidence with great
candour. "It is not possible" he says, "to say definitely that
anybody wrote a particular thing. All you can do is to point out
the similarities and draw conclusions from them". This is the
manner in which expert evidence on matters of this kind ought to be
presented to the Court, who have to make up their minds, with such
assistance as can be furnished to them by those who have made a
study of these matters, whether a particular writing is to be
assigned to a particular person. Questions depending upon
handwriting are in many cases doubtful, and in the past have given,
and in the future will give, cause for great anxiety in Courts of
justice."

95. A similar case was R v Penman (1985) 82 Cr App R 44. Although not a case of handwriting, the expert gave evidence that glass on the shoes of the accused came from the premises alleged to have been burgled. Although the witness was not sure that his opinion was correct, this did not preclude the jury from reaching a conclusion on all the evidence that they were sure of what the expert was not.

96. Neither of those two latter cases, of course, is binding nor determinative, but I think that each furnishes an example of the method of approach that is open to the jury in the present case. Whether the jury reaches a conclusion beyond reasonable doubt in the end, is a matter for it on the whole of the evidence. I do not propose to direct the jury to acquit.