Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259 (30 June 1989)

CATCHWORDS

Criminal Law - Appeal to High Court from State court exercising State jurisdiction - Power to admit fresh evidence.

Criminal Law and Procedure (W.A.) - Petition for mercy - Reference of whole case to Court of Criminal Appeal - Reference to be determined as appeal from conviction - Duty of Court of Criminal Appeal - Power to exclude matters from consideration - Criminal Code (W.A.), s. 21(a).

HEARING

DECISION

2. The applicants sought to place before this Court additional evidence which was not before the Court of Criminal Appeal. Over the years this Court has consistently maintained that it has no power to receive fresh evidence in the exercise of its appellate jurisdiction. The applicants argued that the relevant decisions are wrong and should not be followed. Before turning to the argument, I should identify the nature of the additional evidence on which the applicants sought to rely.

3. The applicants sought to establish:

(1) That evidence given by police witnesses at the trial and

evidence given in the Court of Criminal Appeal (by way of correction

of the evidence given at the trial) as to the date of the

photographing of the fingerprint on the WABS cheque was wrong.

Furthermore, the applicants seek to establish that evidence given by

police witnesses at the trial and in the Court of Criminal Appeal

that the print had disappeared when the cheque was returned by Dr

Kobus from Canberra was wrong.

(2) That the negatives tendered in evidence at the trial,

purporting to be the original negatives of photographs

of the fingerprint taken by Dr Kobus in Canberra, are

not the original negatives but are copies which must

have been made by the police after the originals had

been sent by Dr Kobus from Canberra. According to the

applicants, the originals are not in evidence.

(3) That, following his conviction, Peter Mickelberg gave

instructions to his counsel to appeal to the Court of

Criminal Appeal against his conviction for conspiracy.

(4) That the chassis number said by the police to be that of

a burned-out car in Wanneroo was not the chassis number

of a 1965 Ford Falcon sold by Mr and Mrs Allen in May 1982.

4. According to the applicants, the significance of the new evidence in pars (1) and (2) above is that, if received and accepted, it would throw a cloud of doubt over the inference to be drawn from the presence of Raymond Mickelberg's print on the WABS cheque. The evidence in par.(3) is intended to provide an explanation for Peter Mickelberg's failure to appeal within time to the Court of Criminal Appeal against his conviction for conspiracy. A subsequent application for an extension of time was refused. And the evidence in par.(4) is intended to displace part of the evidence linking Peter Mickelberg with the conspiracy, that is, his connection with the car allegedly used in the execution of the conspiracy.

5. Apart from the concession made on behalf of the Crown, to which I have referred, it appears that the Crown did not accept the additional evidence and sought the opportunity to test it by cross-examination and to adduce evidence in reply should the applicants' argument prevail on this point. Section 73 of the Constitution confers upon the High Court jurisdiction "to hear and determine appeals from all judgments, decrees, orders, and sentences" of the persons and bodies referred to in that provision. The applicants contended that this power should be widely construed, that it contains no fetter preventing the Court from considering fresh evidence and that prima facie, apart from policy considerations, the Court is empowered to receive fresh evidence for the general purpose of doing justice.

6. True it is that the powers of the Court "are of the widest character which true appellate jurisdiction may possess": Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at p 87, and that s.73 contains no express fetter preventing the Court from considering fresh evidence. But unless the reception of fresh evidence is truly a part of the Court's appellate jurisdiction, then the absence of such a fetter is irrelevant.

7. The authorities in this Court stand clearly for the proposition that the reception of fresh evidence is not a part of the appellate jurisdiction of the Court. The applicants challenged the reasoning on which these authorities are based on the ground that the reasoning depended on old English authorities which have been overtaken by more recent decisions. The applicants made the point that, at a time when an appeal lay from this Court to the Privy Council, the Court was influenced by the circumstance that the Court of Appeal and the House of Lords did not receive fresh evidence. As it is now clearly established that both the Court of Appeal and the House of Lords receive fresh evidence, there has been a material development which justifies reconsideration of the existing authorities.

8. In Ronald v. Harper [1910] HCA 43; (1910) 11 CLR 63 this Court unanimously rejected the submission that, on an appeal from the Full Court of the Supreme Court of a State, it had jurisdiction to receive further evidence in support of an application for a new trial. Griffith C.J., in the course of concluding that the Court had no such jurisdiction, referred to Flower v. Lloyd (1877) 6 ChD 297; (1879) 10 ChD 327, where the Court of Appeal decided that it had no power to receive fresh evidence and James LJ. stated that it would be a very dangerous practice to allow such a thing. Griffith C.J. also referred to Birch v. Birch (1902) P 130 where the Court of Appeal expressed the same opinion. But these references were not central to the Chief Justice's reasoning and were designed to make the point of policy that it would be undesirable for the Court to exercise such a power. The other members of the Court made no reference to the position of the Court of Appeal and confined themselves to the jurisdiction of the High Court under the Constitution. Barton J. (at p 82) was "strongly disposed" to think that there was no such jurisdiction. O'Connor J. observed (at p 84):

"It is abundantly clear from sec.73 of the

Constitution that the High Court can review a

judgment of a State Court only by way of appeal.

Acting on that view the Commonwealth legislature,

in equipping this Court for the discharge of its

duty, has recognized its authority to act in

respect of the judgments of State Courts exercising

State jurisdiction in no other way than by appeal.

To determine as a Court of first instance the facts

upon which these new grounds of appeal rest would

be obviously to exceed the jurisdiction vested in

this Court by the Constitution."

9. Griffith C.J. also stated that in any event it was clear that the primary judgment "would not be set aside unless there were, at least, a reasonable probability that the new evidence sought to be given would make a difference in the result" (at p 78). However, this was neither a statement of principle nor the formulation of a test for the receiving of fresh evidence, but merely an indication that the plaintiff had not been harmed by the Court's lack of jurisdiction.

10. Since Ronald v. Harper, this Court has consistently maintained that it lacks power to receive fresh evidence, whether due to Constitutional limitation or to the absence of express statutory authority: see Victorian Stevedoring, at p 85 (per Gavan Duffy C.J. and Starke J.), p 87 (per Rich J.), pp 109-111 (per Dixon J.), p 113 (per Evatt J.); Davies and Cody v. The King [1937] HCA 27; (1937) 57 CLR 170, at p 172 (per Latham C.J.); Grosglik v. Grant (No. 2) [1947] HCA 1; (1947) 74 CLR 355, at pp 356-357 (per Latham C.J., Rich, Dixon, McTiernan and Williams JJ.); Crouch v. Hudson [1970] HCA 25; (1970) 44 ALJR 312 (per Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.).

11. Underlying this uninterrupted stream of authority are two propositions. The first is that an appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials which were before the court below. It is otherwise if, according to the statute governing the jurisdiction of the appellate court, the appeal is by way of rehearing. Then the court of appeal is not restricted to the materials on which the court below gave its decision and may receive additional evidence, including evidence as to matters which have taken place subsequent to that decision. Dixon J. pointed to this difference in Victorian Stevedoring (at p 109) when he contrasted the appellate functions of the Judicial Committee and the English Court of Appeal. The Judicial Committee's prerogative jurisdiction was to decide whether the judgment complained of was right when given on the materials before the court below: Ponnamma v. Arumogam (1905) AC 383, at p 388; Donegani v. Donegani (1835) 3 Knapp 63, at p 88 (12 ER 571, at p 581); but cf. Judicial Committee Act 1833 (3 & 4 Will. IV c.41), s.8. The appeal to the English Court of Appeal, on the other hand, was by way of rehearing (see Victorian Stevedoring, at pp 108-109) and enabled that Court to receive further evidence when hearing an appeal. Thus, the Court was entitled and ought to hear the case as at the time of rehearing: Attorney-General v. Birmingham, Tame, and Rea District Drainage Board (1912) AC 788, at pp 801-802. But in this respect the jurisdiction of the Court of Appeal differed from that of a court hearing an appeal in the strict and proper sense of the term. In passing I note that the Court of Appeal's discretion to receive further evidence has been much discussed in England: see Curwen v. James (1963) 1 WLR 748; 2 All ER 619; Murphy v. Stone-Wallwork (Charlton) Ltd. (1969) 1 WLR 1023; 2 All ER 949; Mulholland v. Mitchell (1971) AC 666; McCann v. Sheppard (1973) 1 WLR 540; 2 All ER 881. But that discussion throws no light on the answer to the question presently under consideration.

12. It seems that the House of Lords has power to receive further evidence in civil appeals. Just what is the source of the power is not altogether clear. In Murphy v. Stone-Wallwork Lord Upjohn observed (at p 1031; p 955 of All ER):

"Your Lordships' House has no similar rules of

procedure governing your Lordships, but I have no

doubt that your Lordships have ample power to admit

further evidence ..."

13. Lord Brandon of Oakbrook confirmed the existence, without identifying the source, of the power, in Barder v. Caluori (1988) AC 20, at p 41:

"In appeals from the High Court to the Court

of Appeal, and from the Court of Appeal to your

Lordships' House, there is a discretion to admit

evidence relating to supervening events where

refusal to admit it would plainly cause serious

injustice."

14. The House of Lords' power to receive further evidence, whatever its source may be, is not, in my view, a reliable guide to the jurisdiction of this Court under s.73 of the Constitution. The power of the English courts to set aside orders or to order new trials on the basis of further evidence was significantly affected by the Supreme Court of Judicature Act 1873 (UK) which vested in the Court of Appeal the jurisdiction to order a rehearing; see the discussion by Russell L.J. in Re Barrell Enterprises (1972) 3 All ER 631, at pp 636-639. The developments in the law in this respect in England are therefore not of direct relevance to the interpetation of s.73 of the Constitution which governs the appellate jurisdiction of this Court.

15. The second basic proposition underlying the stream of authority already mentioned is that s.73, in conferring appellate jurisdiction on this Court, contains nothing to suggest that the Court is "to go beyond the jurisdiction or capacity of the Court appealed from", to quote the words of Dixon J. in Victorian Stevedoring, at p 109. Indeed, by differentiating between original and appellate jurisdiction and by making different provisions for their exercise, Ch.III of the Constitution reinforces the notion that, when it refers to the appellate jurisdiction, it is speaking of appeals in their true or proper sense.

16. Isaacs J. in his dissenting judgment in Werribee Council v. Kerr [1928] HCA 41; (1928) 42 CLR 1 stated (at p 20) that no appeal from a State court exercising federal jurisdiction could be a rehearing because it would involve this Court exercising original jurisdiction as State judicial power. Whether this could be done under ss.75 and 76 and 51(xxxix) of the Constitution is not a matter that needs to be discussed. In Victorian Stevedoring, Dixon J. referred (at p 110) to the judgment of Isaacs J. in The Commonwealth v. Brisbane Milling Co. Ltd. [1916] HCA 39; (1916) 21 CLR 559, at pp 575-576, where his Honour was inclined to the view that it was not possible to confer the additional power on the Court by way of a grant of original jurisdiction.

17. There are two statements which, at first glance, may appear to be inconsistent with the course of authority in this Court. The first statement is that of Griffith C.J. in argument in Scott Fell v. Lloyd [1911] HCA 34; (1911) 13 CLR 230, at p 234:

"If necessary in the interests of justice the Court

could send the case back to the Supreme Court for

the purpose of obtaining further evidence."

18. The second statement was by Evatt J. in Victorian Stevedoring (at p 113) that the Court may occasionally think it proper to refrain from exercising its appellate jurisdiction because of facts which have occurred after the pronouncement of the decision appealed against. This statement does not assert that fresh evidence may be received by the Court on the hearing of an appeal, but rather indicates simply that special leave to appeal may be refused due to supervening circumstances. No support for the applicants' contention can be derived from the judgment.

19. Consequently there is no foundation in the applicants' submission that the decisions of this Court are based upon misconceptions about the powers of the English Court of Appeal or that the jurisdiction of that Court is a reliable guide to the appellate jurisdiction of this Court under s.73. However, it remains for me to consider the argument that the grant of appellate jurisdiction necessarily gives the appellate court power to do complete justice between the parties and that such a power entails the power to receive further evidence.

20. There is force in the argument that, in the light of contemporary notions of justice, a grant of appellate jurisdiction to a court should be understood as empowering the court, in its discretion, to receive further evidence with a view to determining whether the decision of the court below was erroneous and, if so, what order should be made in its place. On the other hand, the authorities to which I have referred make it very clear that in 1900 or thereabouts a mere grant of appellate jurisdiction without more would not be understood as carrying with it a power to receive further evidence. Moreover, the division made by Chap III between the original and appellate jurisdiction of the Court makes it all the more difficult to sustain this aspect of the applicants' argument. As Dixon J. noted in Victorian Stevedoring (at p 109), to do complete justice between the parties litigant by making an order which the court below had not jurisdiction or power to make "smacks rather of original jurisdiction". However, it may be that the existence of a discretion to receive evidence of supervening facts on matters which were the subject of assumption or estimation in the courts below, as discussed in Barder v. Caluori, is properly to be seen as an incident of the exercise of appellate jurisdiction. And it may be that appeals in Constitutional cases stand in a different position; the Court possesses an original jurisdiction in Constitutional matters. For the purposes of disposing of the present case, it is not necessary to decide these questions. Accordingly, I reserve my opinion on them.

21. My conclusion on this point therefore is that the Court has no power to receive the further evidence which the applicants seek to adduce. That conclusion should not be understood as denying the capacity of Parliament to confer on the Court power to receive fresh evidence in appeals, at least in those appeals which involve the exercise of federal jurisdiction.

22. Closely related to the further evidence which the applicants sought to introduce was the use which they attempted to make of a concession made by Mr McKechnie for the Crown. The concession was that pins had not been placed in the WABS cheque before it was sent to Canberra on 16 July and that pins were placed in the cheque when it was photographed in Canberra by Dr Kobus. Both elements of the concession are relevant to the question: when was the photograph of the cheque (which was admitted into evidence at the trial) taken? Mr McKechnie submitted that the concession itself amounted to fresh evidence.

23. True it is that the presence of the pin marks in the cheque was not observed at the trial and that it could have been noticed then. To the extent that the evidence relates to the actual presence of pin marks in the cheque, the evidence is not fresh. But the facts which are the subject of the concession are facts which were not proved or admitted at the trial or in the Court of Criminal Appeal. No doubt material which explains or records what happened in the courts below, including the trial court, may be introduced in an appeal in this Court. But the concession is not material which falls into this category. Although the concession seeks to explain something that was put in evidence at the trial, it asserts new facts relevant to the issues which arose for determination at the trial. The concession amounts to further evidence. The fact that it is undisputed evidence does not suffice to give this Court jurisdiction to consider its effect.

24. I agree with the conclusion of Toohey and Gaudron JJ. that the Court of Criminal Appeal failed to determine the whole case referred to it and that the question whether Peter Mickelberg's convictions are unsafe and unsatisfactory is fairly arguable. I agree also that special leave to appeal should be granted to Peter Mickelberg to enable the Court of Criminal Appeal to consider, by reference to the whole of the evidence, excluding of course the further evidence sought to be adduced in this Court, whether his conviction for conspiracy is inconsistent with the acquittal of Brian Mickelberg and whether his convictions are unsafe and unsatisfactory, notwithstanding that the convictions were not challenged in the Court of Criminal Appeal on precisely these grounds. Although the failure to argue the points in that Court would in other circumstances be a strong reason for refusing special leave to appeal, the fact that the Executive Government referred the whole case to the Court of Criminal Appeal for determination under s.21 of the Criminal Code (WA) is a decisive countervailing factor. The reference indicates the existence of public concern about the propriety of the convictions. That concern will not be satisfied unless there is a judicial decision resolving the contention that the convictions are unsafe and unsatisfactory, when that contention is fairly arguable. Largely related to that question is the argument that Peter Mickelberg's conviction for conspiracy cannot stand alongside Brian Mickelberg's acquittal.

25. Whether or not the reluctance of this Court to grant special leave to appeal on the basis of argument presented for the first time in a case before this Court is founded upon the nature of its appellate jurisdiction or, as I am inclined to think, the exercise of discretion is a question which was not argued before us. But it would be surprising if there was a want of jurisdiction when the Court has made many statements dealing with the way in which a discretion may be exercised to allow a point not argued in the courts below to be raised within this Court for the first time. It is clear that only in exceptional circumstances is special leave to appeal granted when the point relied upon was not taken at trial or in a Court of Criminal Appeal: see Millard v. The King [1906] HCA 22; [1906] HCA 22; (1906) 3 CLR 827; Giannarelli v. The Queen [1983] HCA 41; (1983) 154 CLR 212, at pp 221, 222-223. Equally, a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below: Coulton v. Holcombe [1986] HCA 33; (1986) 162 CLR 1, at pp 7-8; Water Board v. Moustakas [1988] HCA 12; (1988) 62 ALJR 209, at p 211; [1988] HCA 12; 77 ALR 193, at p 196; Pantorno v. The Queen, at p 321; p 397 of ALR However, that is not the case in relation to the points which Peter Mickelberg now seeks to raise. They are points of law based necessarily upon the facts as proved in evidence in the courts below, and as such may be entertained in this Court in the interests of justice: O'Brien v. Komesaroff [1982] HCA 33; (1982) 150 CLR 310, at p 319; Pantorno v. The Queen, at p 321; p 397 of ALR.

26. In any event, it is unnecessary to decide the question discussed in the previous paragraph in order to grant special leave to Peter Mickelberg. The points relied upon in this Court for the first time fell within the scope of the reference to the Court of Criminal Appeal and should accordingly have been pronounced upon by that Court as part of its consideration of the whole case. This Court therefore possesses jurisdiction to consider the matter on appeal for the same reasons as I have already given in favour of the discretionary grant of special leave.

27. The final matter concerns the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence. It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v. The Queen [1986] HCA 26; (1986) 160 CLR 392. Deane J. and I (at p 402) considered that the test was best expressed in those terms. Gibbs C.J. (at p 399) expressed his substantial agreement with the statement, although his Honour emphasized that "no form of words should be regarded as an incantation that will resolve the difficulties of every case". Dawson J. said (at p 421) that the court would need to conclude that "a jury might entertain a reasonable doubt about the guilt of the appellant". His Honour went on to say (at p 421) that in his view the use of the expression "significant possibility" did not involve a different standard. I am in agreement with those statements. We were not asked to reconsider the correctness of the decision in Gallagher.

28. In the result I would grant the application by Peter Mickelberg for special leave to appeal and allow the appeal to the extent necessary to allow consideration whether his conviction for conspiracy is consistent with the acquittal of Brian Mickelberg and whether his convictions, or any of them, are unsafe or unsatisfactory. I would refuse the application by Raymond Mickelberg for special leave to appeal.

BRENNAN J. Toohey and Gaudron JJ. have canvassed the grounds of appeal which were argued in this case. I agree with the conclusions at which their Honours have arrived and, subject to two qualifications, with their reasons. I shall state briefly the qualifications which, though important in principle, lead to no difference in result.

2. This Court has uniformly refused to receive fresh evidence in the exercise of its appellate jurisdiction in criminal cases. The principle was stated by Latham C.J. speaking for the Court in Davies and Cody v. The King [1937] HCA 27; (1937) 57 CLR 170, at p 172:

"The only power of the court as a court of appeal

is to consider and determine whether the judgment

of the court appealed from was right upon the

materials before that court ... In this case the

court is invited to consider fresh evidence.

The court has no power to consider that evidence."

3. The cases in this Court have spoken uniformly on this subject. I am unable to agree with Toohey and Gaudron JJ. that, although this Court generally has no power to consider fresh evidence, the concession made in this Court by counsel for the Crown as to the photograph of the print on the cheque can be regarded in deciding whether the decision by the Court of Criminal Appeal was correct. The jurisdiction of this Court is to pronounce the judgment which the Court of Criminal Appeal should have pronounced (Craig v. The King [1933] HCA 41; (1933) 49 CLR 429, at p 444; Pantorno v. The Queen [1989] HCA 18; (1989) 63 ALJR 317, at p 321; [1989] HCA 18; 84 ALR 390, at p 396) and therefore this Court is required to determine "whether the judgment of the court appealed from was right upon the materials before that court". Ex hypothesi, that function cannot properly be performed by reference to materials that were not before the court appealed from. This Court is not a court of criminal appeal and it is not fitted to receive, test and evaluate evidence which has not been considered in the court appealed from. In an appeal which challenges the evaluation by the Court of Criminal Appeal of the sufficiency of evidence to support a conviction or the cogency of fresh evidence not produced at the trial, this Court cannot have regard to facts which were not before the Court of Criminal Appeal. The notion that the correctness of the decision of the court appealed from can be determined by reference to materials not before that court is inconsistent with the appellate nature of the jurisdiction exercised by this Court.

4. Next, their Honours leave open the question whether there is any practical difference between the formulations of the test for determining whether fresh evidence is such as to warrant the quashing of a conviction. The formulation which, in my respectful opinion, was settled by this Court in Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510, at pp 519,528, and in Lawless v. The Queen [1979] HCA 49; (1979) 142 CLR 659, at pp 666, 670,677,686, is whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused. That was the formulation to which I adhered in Gallagher v. The Queen [1986] HCA 26; (1986) 160 CLR 392, at pp 409-410. The test has sometimes been expressed not in terms of "likely" but in terms of "might" (Stafford v. DPP (1974) AC 878, at pp 893,907,912; Gallagher, at pp 399,421) or in terms of "significant possibility" (Gallagher, at p 402). Although I agree with Toohey and Gaudron JJ. that it is not necessary to elaborate in this case upon the differing nuances of these formulae or to decide between them, my preference for the "likely" formula remains.

5. That said, I come to the same conclusions as their Honours - indeed, I come to the conclusion in the case of Raymond Mickelberg more readily. In the case of Peter Mickelberg, it is apparent that the evidence against him has not been subjected to the critical examination necessary to determine whether his convictions are supportable. I agree that the reference of Peter Mickelberg's case to the Court of Criminal Appeal required that examination to be made and that the matter should be remitted to that Court accordingly. That Court has authority to consider fresh evidence. In so saying, I do not imply any departure from the distinction to which I referred in Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521, at pp 601 et seq., between a case where the Court of Criminal Appeal is satisfied that, on the evidence before the jury, it would be unsafe, unjust or dangerous to allow a verdict of guilty to stand and a case (such as Ratten) where the Court of Criminal Appeal is satisfied that, had fresh evidence been available and produced at the trial, a different verdict would have been likely.

6. I would refuse Raymond Mickelberg special leave to appeal. I would grant special leave to appeal to Peter Mickelberg and allow his appeal, setting aside the order made by the Court of Criminal Appeal in his case and remitting his case to the Court of Criminal Appeal for determination in accordance with the judgments of this Court.

DEANE J. The facts and issues involved in these applications for special leave to appeal are set out in the joint judgment of Toohey and Gaudron JJ.

2. The appellate jurisdiction vested in this Court by s.73 of the Constitution is to be contrasted with the appellate jurisdiction of the Supreme Court of the United States. There, the judicature was constructed in accordance with strictly federal principles. Here, the view prevailed that "the advantages of having one uniform Australian tribunal of final resort outweigh all feelings of localism" (Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), p 725, 288). In the result, the Court was constituted as "a national court of appeal of general and unlimited jurisdiction" in "all matters decided by the State Courts of last resort, by other federal courts, by Judges of the High Court itself in the exercise of the original jurisdiction of the Court, and (on matters of law only) by the Inter-State Commission" (ibid., at p 742, 305 and p 737, 299). That general appellate jurisdiction is conferred in unqualified words ("jurisdiction ... to hear and determine appeals from all judgments, decrees, orders, and sentences") which apply indifferently to appeals from all of the courts, be they Commonwealth or State, to which s.73 refers. In so far as its appellate functions are concerned, this Court is "constituted by the will of the Australian people, not only for Federal matters, but as truly representative of each State as its own Supreme Court to guard and maintain its laws ..." (per Isaacs J., Ross v. The King [1922] HCA 4; (1922) 30 CLR 246, at p 259).

3. The construction of s.73 involves the construction of provisions identifying the amplitude of part of the constitutional powers of the Commonwealth in that the section defines the outer limits of the judicial power which it confers (see Wall v. The King; Ex parte King Won and Wah On (No.1) [1927] HCA 4; (1927) 39 CLR 245, at pp 251, 253). Within those outer limits, it also confers upon the Parliament the legislative power of exception and regulation. The well-settled principles of construction applicable to such constitutional provisions conferring power upon a national organ of government require that the words of s.73 be given their full scope and effect. In that context, there is no more warrant for confining the scope of the section's grant of Commonwealth judicial power by reference to preconceptions of reserved State judicial powers than there is for confining the various grants of Commonwealth legislative power by reference to preconceptions of reserved State legislative powers. That being so, Isaacs J.'s obscure (even if words are transposed) reference in Werribee Council v. Kerr [1928] HCA 41; (1928) 42 CLR 1, at p 20 (quoted by Dixon J. in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at p 110) to something being "equivalent to investing this Court with original jurisdiction as State judicial power" is unhelpful in the identification of the primary scope of the Court's appellate powers or of what is implicit in their grant or incidental to their exercise. If the phrase "State judicial power" is understood as meaning powers encompassed by the original jurisdiction of State courts, the reference to it provides no guidance at all about which, if any, of such powers can be exercised by this Court as an incident of its own appellate jurisdiction. In that regard, it is relevant to note that this Court exercises the powers which can be exercised in the original jurisdiction of a State court as an ordinary incident of the appellate jurisdiction conferred by s.73 whenever, after upholding an appeal direct from a State Court of first instance and setting aside the orders below, it proceeds to make the orders which should have been (but were not) made by that State court. On the other hand, if the phrase "State judicial power" is understood as meaning the continuing powers of State courts subject to the conferral of jurisdiction upon this and other Federal courts by the Constitution, the reference to it as a control of the scope of the jurisdiction which s.73 of the Constitution confers upon this Court is simply circuitous.

4. Putting to one side the latent powers of the House of Lords which were confirmed and regulated by the Appellate Jurisdiction Act 1876 (UK), a general appellate jurisdiction to hear appeals was unknown to the common law. It is necessarily a creature of statute. When conferred in unqualified words in a constitutional provision one would, prima facie, expect it to be given a comprehensive operation which would at least encompass the kinds of appeal which were in 1900 recognized as appropriate from the designated kinds of court. For example, the jurisdiction conferred by s.73 to hear an appeal from a judgment of a single Justice of this Court in an action for equitable relief in the original jurisdiction (e.g. between residents of different States) would prima facie take the form of an appeal "by way of rehearing", that being the usual nature of an appeal "within" a court in an equity matter. There are, however, some statements in cases in the Court which lend support for the view that s.73 does not extend to confer jurisdiction to hear appeals by way of rehearing even in cases where that would prima facie appear to be the appropriate kind of appeal from the particular court in the particular circumstances. It is unnecessary for the purposes of the present applications to pursue that question. It suffices for present purposes to acknowledge that it is established that the jurisdiction conferred by s.73 does not encompass a full appeal "by way of rehearing" from a judgment of the Full Court of the Supreme Court of a State.

5. The fact that an appeal under s.73 from a decision of the Full Court of a State Supreme Court is not, of its nature, an appeal "by way of rehearing" gives rise to, rather than resolves, the question whether the Court possesses any power to receive further evidence on such an appeal. To a limited extent, appeals by way of rehearing can be related to the rehearing (sometimes by the same judge) in the old Court of Chancery. What are commonly described as "appeals in the strict sense" can, again to a limited extent, be related to the old proceedings in error (by writ in King's Bench and Exchequer and, subsequently, by Memorandum or Bill of Exceptions in Exchequer Chamber) available to correct error at common law. There is, however, no strict dichotomy between the two kinds of appeal. The modern appeal by way of rehearing is primarily (and ordinarily solely) on the record of the court below with the result that the appeal court must make all due allowance for the advantages enjoyed by that court (see, e.g., Da Costa v. Cockburn Salvage & Trading Pty. Ltd. [1970] HCA 43; (1970) 124 CLR 192, at pp 208-209). The modern appeal in the strict sense has long escaped many of the artificial constraints of the old proceedings in error. Conceptually, the distinction between the two kinds of appeal has commonly been seen as being that the appeal by way of rehearing involves the appellate court in making such order as ought to be made according to the state of things at the time it makes the order, whereas in an appeal in the strict sense the appellate court is confined to the question whether "the order of the Court from which the appeal is brought was right on the materials which that Court had before it" (Ponnamma v. Arumogam (1905) AC 383, at p 390; and see, generally, Victorian Stevedoring and Meakes v. Dignan, at pp 108-109). Helpful though that distinction may be as a broad generalization, it is, for two reasons, unacceptable as a basis for confining the appellate jurisdiction conferred upon this Court in a way which would exclude all power to receive fresh evidence. The first reason, which is developed below, is that the common law procedures for correcting error or miscarriage, while not extending to an appeal by way of rehearing, were not confined to the appeal "in the strict sense" which can be loosely related to the old proceedings in error. The second reason, which is also developed below, is that, in any event, there is no justification for confining the constitutional conferral of a general appellate jurisdiction upon this Court by reference to what could or could not be done, under traditional procedures, before the existence of any general appellate jurisdiction.

6. Even if one assumes that the appellate powers of this Court could properly be confined by analogy with the traditional procedures of the old Court of King's Bench, those traditional procedures did not entirely preclude either regard being had to material not before the court at first instance or the receipt of fresh evidence. The ancient common law writ of attaint could be based on grounds extraneous to the material actually before the primary court, as can a modern appeal seeking to set aside the order of the court below on the ground of actual or reasonably apprehended bias. More important for present purposes, the common law procedures for correcting error and miscarriage included, at least from the 17th century, the motion for a new trial based on fresh evidence. "The jurisdiction to grant a new trial ... came to be regarded as a remedy used by the court in banc to relieve against a verdict which it would be unjust to allow it to stand as a determination of liability. The grounds upon which the court proceeds in granting the remedy have been settled by practice but they have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end" (per Dixon C.J., Fullagar, Kitto and Taylor JJ., McCann v. Parsons [1954] HCA 70; (1954) 93 CLR 418, at pp 430-431).

7. The traditional common law power to set aside a judgment or verdict on the grounds of fresh evidence has long been accepted as a commonplace component of a general appellate jurisdiction. Indeed, it has more in common with the nature of a general appellate jurisdiction than had the limited traditional jurisdiction in "error" which could remove "nothing for re-examination, but the law" (per Ellsworth C.J., Wiscart v. D'Auchy (1796) 3 US (3 Dall.) 320, at p 327; and see, generally, South Australian Land Mortgage and Agency Co. Ltd. v. The King [1922] HCA 17; (1922) 30 CLR 523, at pp 551-553). An order for a new trial on the grounds of fresh evidence, as distinct from the substitution of a final verdict in the light of the fresh evidence, does not involve either an exercise of the jurisdiction of the court below or a rehearing. It follows that, even if it were to be assumed that the jurisdiction of the Court should be confined by reason of some rough analogy with the procedures of the old Court of King's Bench, that analogy would provide no real reason why the Court should lack all power to receive fresh evidence on an appeal in a case where justice insistently demands that regard be paid to material which became available only after the decision of the court below, "pronounced upon a hearing inter partes", "has passed into a judgment formally drawn up" with the consequence that the proceedings have passed beyond the reach of that court (see Grierson v. The King [1938] HCA 45; (1938) 60 CLR 431, at p 436). To the contrary, analogy with the long-established common law power to set aside a verdict or judgment on the grounds of fresh evidence provides support for the existence of such a power as an incident of a general appellate jurisdiction. In that regard, it is relevant to note that, in Andrew v. Andrew (1953) 1 WLR 1453, at p 1454, the Privy Council, having stated that the power to receive further evidence on an appeal "lies in the discretion of the appellate court" which "must be exercised in accordance with established principles", held that the traditional principles applicable to an application for leave to adduce fresh evidence in order to obtain a retrial before a jury should be accepted as applicable to the exercise of its own general statutory power to receive fresh evidence on an appeal.

8. As has been said, however, there is, in any event, no justification for the approach that ancient procedures should be allowed to reach from the past to fetter with their inadequacies the ability of this Court to do justice in the exercise of its general appellate jurisdiction under the Constitution. The notion that an appellate court should be powerless to do justice in an individual case unless it can identify specific "error" on the part of the court below should not be allowed to survive the days when appellate procedures were seen as involving an element of affront to the jurisdictional aspirations or the dignity of the court below. Plainly, a modern court exercising general appellate jurisdiction is empowered, even on an appeal in the strict sense from an intermediate court of appeal, to set aside the judgment below on a ground not previously raised if the circumstances of the case are such as to justify that exceptional course (see, e.g., Chalmers Leask Underwriting Agencies v. Mayne Nickless Ltd. [1983] HCA 20; (1983) 155 CLR 279, at p 283). In such a case, there may well be no error at all on the part of the courts below in that those courts may have been both entitled and constrained to dispose of the case on the actual issues of fact and law which the parties had, by their pleadings or their conduct of the case, identified. Likewise, if the case is one in which it would be an affront to justice or common sense for the Court to decline to receive further evidence on an appeal, the power to receive such evidence should be accepted as an incident of the general grant of appellate jurisdiction contained in s.73. Some examples of circumstances in which it is plainly necessary that the Court have power to receive such evidence should serve to make good the point.

9. One example is a case in which the validity of an Act of the Parliament, which is attacked on constitutional grounds, depends upon factual matters. If, for example, the court below had held that, on the evidence of the particular facts before it, an Act purporting to regulate a particular aspect of inter-State trade was invalid by reason of contravention of s.92, it would border on the absurd for this Court, as the final appellate court of the nation, to be powerless to receive or take account of further evidence showing that the material before the Supreme Court was misleading or simply wrong. Another example is an appeal from a mistaken refusal, on discretionary grounds, to grant injunctive relief. It would border on the unreal if, in such a case, the Court were unable to take account (on the defendant's cross-contention) of the existence of fresh evidence of facts which, for reasons beyond the defendant's control, precluded compliance with the injunction which should have been granted on the material before the court below. It can scarcely be suggested that, in such a case, the Court should close its eyes to evidence of reality and solemnly order that the defendant, under pain of contempt of court, perform the impossible. Yet another example is an appeal to this Court from the order of a Full Court which mistakenly confirmed what was, on the material before the Full Court, an inadequate award of a pecuniary legacy under Testator's Family Maintenance legislation. It would be to affront justice and common sense if, on such an appeal, the Court was constrained to increase the amount of the legacy by an amount in excess of the true value of the whole estate by reason of inability to receive or take account of evidence that, after the proceedings had concluded in the court below, the main putative asset of the estate had been found to belong to someone else. The case would be even a fortiori if the Court was unable to receive or take account of evidence that the "deceased" had, after the hearing in the court below, been found, with memory gone but still alive. Again, there may be cases in which the requirements of justice demand that, even though the appeal is not by way of rehearing, the court receive and take account of evidence of events occurring after the actual hearing. The hypothetical cases mentioned above provide or could be adjusted to provide examples. Another example of such a case is where something occurring between the completion of proceedings in the court below and the appeal to this Court discloses that the judge or one of the judges of the court below was disqualified by either actual or reasonably apprehended bias. It is no answer to such hypothetical cases to say that the Court could deal with most of them by washing its hands of the appeal by revoking leave to appeal. To deprive a party of the right of appeal because of the Court's inability to correct miscarriage in the particular case is unlikely to remove injustice. To the contrary, it is likely to entrench and compound it.

10. Nor is there anything in the nature of the general appellate jurisdiction of this court as the ultimate appellate court for Australia which justifies the conclusion that s.73 of the Constitution should be construed in a manner which will leave the Court powerless to receive further evidence in an appeal, even in circumstances where considerations of justice or common sense require that it be received. The fact that appeals to this Court are ordinarily from an intermediate appellate court means that the cases in which the receipt of fresh or further evidence by this Court can be justified are necessarily exceptional. On the other hand, some appeals to this Court are from courts of first instance. In some cases, the appeal to a Full Court of this Court pursuant to the grant of jurisdiction contained in s.73 may be the only available appeal. As has been seen, the jurisdiction conferred by s.73 is conferred in the same terms regardless of the identity of the court from which the appeal is brought. Moreover, one need only refer to the Judicial Committee of the Privy Council (see the Judicial Committee Act 1833 (Imp) (3 & 4 Will IV c.41), ss.7 and 8), the House of Lords (see Murphy v. Stone-Wallwork (Charlton) Ltd. (1969) 1 WLR 1023; 2 All ER 949; Mulholland v. Mitchell (1971) AC 666; Barder v. Caluori (1988) AC 20, at p 41) and the Supreme Court of Canada (see Dormuth v. Untereiner (1963) 43 DLR (2d) 135 and s.62(3) of the Canadian Supreme Court Act, RSC, 1985) to illustrate the absence of any inconsistency between the existence of a limited power to receive further evidence and the appellate jurisdiction of a final court of appeal. It is not to the point that the power of the Privy Council and of the Supreme Court of Canada to receive further evidence is conferred by particular statutory provisions. As has been said, all general appellate jurisdiction is statutory. What is to the point is that s.73 does not condescend to particularity about matters such as whether fresh evidence can be received in circumstances where the interests of justice require it. The section defines the outer limits within which particular statutory provisions can be made regulating and confining the content and exercise of the general appellate jurisdiction which it confers.

11. Reference to the Judicial Committee of the Privy Council is relevant in another respect. Section 73 was clearly intended to confer upon the Court an equivalent jurisdiction to that exercised by the Privy Council on appeals from the Supreme Courts of the Australian Colonies prior to Federation. Thus, the penultimate paragraph of s.73 precludes the Parliament from preventing "the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council." The last paragraph of the section reads:

"Until the Parliament otherwise provides, the

conditions of and restrictions on appeals to the

Queen in Council from the Supreme Courts of the

several States shall be applicable to appeals from

them to the High Court."

12. At the establishment of the Constitution, the Privy Council had long enjoyed the power to receive further evidence on (inter alia) appeals from the Supreme Courts of the Australian Colonies (see the Judicial Committee Act, ss.7 and 8). As has been seen, the Judicial Committee has itself related the power to receive further evidence on an appeal to the traditional common law power to set aside a verdict on the grounds of further evidence (Andrew v. Andrew, at p 1454). The power has been said to be a "discretionary" one which "in general" should only be exercised in cases where the evidence is "fresh" or newly available and where "the fresh evidence, if true, would have had, or would have been likely to have had, a determining influence on the court below" (ibid.). Presumably, conformably with the approach of the House of Lords, the Judicial Committee's power to receive further evidence would also be exercised in other exceptional cases where justice or common sense demands that further evidence be received (cf. Mulholland v. Mitchell). It is highly unlikely that it would have been intended that the grant of jurisdiction contained in s.73 should be confined in a way which would make the powers of this Court on appeals from State Supreme Courts significantly more restricted than were the powers of the Privy Council on such appeals at the time of the establishment of the Constitution. So to confine the appellate powers of the Court would, during the period in which appeals lay from the Court to the Privy Council, have resulted in the bizarre situation that the Court could not receive further evidence on an appeal to it from the Full Court of the Supreme Court of a State but the Privy Council could receive that further evidence on a further appeal from this Court to it. That would mean that this Court would be required to deal with the appeal to it on a factual basis which could be rendered hypothetical by the Privy Council receiving the further evidence which this Court was powerless to receive.

13. The main - and, in my view, the only strong - consideration favouring a conclusion that this Court lacks any power at all to receive further evidence on an appeal from a State Supreme Court is to be found in authority. There are cases in this Court which provide clear support for the proposition that the appellate jurisdiction conferred by s.73 carries with it no power whatsoever to receive fresh evidence. However, in none of those cases was it necessary for the purpose of deciding the particular case to lay down a broad and unqualified rule that the Court lacked all power to receive further evidence in the performance of its appellate functions. In so far as general statements to that effect in those cases were based on preconceptions about reserved "State judicial power", they were, as I have indicated, based on a mistaken foundation. In so far as such statements were based on the view that the English Court of Appeal or the House of Lords had no power to hear further evidence on appeal (see, respectively, Ronald v. Harper [1910] HCA 43; (1910) 11 CLR 63, at p 78, and Scott Fell v. Lloyd [1911] HCA 34; (1911) 13 CLR 230, at p 234), they are contrary to the subsequent decisions of those courts. In so far as those statements were based on a perceived need to identify actual error by the court below on the material before that court, they were based on an unduly narrow perception of the function of the appellate process in a modern context. In so far as those statements were based on the distinction between appellate jurisdiction and original jurisdiction (see Ronald v. Harper, at p 84), they appear to me, with due respect, to miss the point. If further evidence is received as an integral part of the appellate procedure, it will not be received in the exercise of original jurisdiction. Even if its receipt did involve the exercise of "original" jurisdiction, the question would remain whether the power to exercise such original jurisdiction was an incident of the grant of appellate jurisdiction. Thus, evidence that an applicant for special leave to appeal from an order affirming his conviction was about to be hanged would undoubtedly be received by the Court in the exercise of its incidental power to preserve the subject matter, "human or not", of an appeal pending decision (see Tait v. The Queen [1962] HCA 57; (1962) 108 CLR 620, at p 623). It is simply not to the point to assert that that incident of the grant of appellate jurisdiction under s.73 involves the exercise of original, rather than appellate, jurisdiction.

14. For present purposes, the most important of the cases in the Court are the applications of Davies and Cody (Davies and Cody v. The King [1937] HCA 27; (1937) 57 CLR 170). They were applications for special leave to appeal from a decision of the Court of Criminal Appeal of Victoria dismissing appeals from conviction. The applicants had been sentenced to death and were awaiting execution. They sought to adduce fresh evidence which this Court concluded "certainly ought to be considered in a proper manner in relation to the appeal of these two persons to the Full Court of the Supreme Court" (at p 172). Yet the Court held itself powerless to set aside the order of the Full Court so that the matter could be remitted to that court to receive and consider the fresh evidence. Instead, the Court went outside its strict judicial function and indicated the desirability of the exercise by the Attorney-General of a statutory power to refer the case to the Full Court of the Supreme Court. With respect, it appears to me that that abnegation of the ability to do justice in the circumstances of the case reflected a quite unjustified restriction of the general grant of appellate jurisdiction contained in s.73. In that regard, it is relevant to note that, years before, Griffith C.J. (speaking for the Court) had stated that the Court could, if "necessary in the interests of justice", "send the case back to the Supreme Court for the purpose of obtaining further evidence" (Scott Fell v. Lloyd, at p 234).

15. The Court did not, in the ex tempore judgment in Davies and Cody, really explain why it was that the general appellate jurisdiction conferred by s.73 was held not to include the common appellate power of setting aside the judgment of the court below on the ground of fresh evidence. The relevant passage from the judgment reads as follows (at p 172):

"This is an application for special leave to

appeal by two persons who have been sentenced to

death. This court is sitting in this matter as a

court of appeal and only as a court of appeal, and

is not in this instance exercising original

jurisdiction. The only power of the court as a

court of appeal is to consider and determine

whether the judgment of the court appealed from was

right upon the materials before that court. This

court, in Victorian Stevedoring and General

Contracting Co. Pty. Ltd. and Meakes v. Dignan,

laid down and explained the principles to which I

have referred. In this case the court is invited

to consider fresh evidence. The court has no power

to consider that evidence."

16. The reference, in the judgment in Davies and Cody, to Victorian Stevedoring and Meakes v. Dignan does not, upon analysis, really advance the argument. That case is not authority for the proposition that this Court can never receive fresh evidence on an appeal under s.73. There, the Court (by majority) received evidence that, subsequent to the appellants' conviction, the relevant regulation had been disallowed by the Senate. The decision turned upon the conclusion that, since the appeal was not by way of rehearing, the question before the Court was whether the convictions were correct at the time when the judgment complained of had been given. That being so, the evidence of a change in the law subsequent to the convictions was unavailing for the reason that it could not affect the correctness of the convictions at the time when they occurred (see per Gavan Duffy C.J. and Starke J. at p 85, per Rich J. at p 86 and per Evatt J. at pp 129-130).

17. One difference between the present applications and those in Davies and Cody is that the present applications are for special leave to appeal from a final decision of the Court of Criminal Appeal dismissing appeals whereas the applications in Davies and Cody were for special leave to appeal from decisions of the Full Court of the Supreme Court of Victoria refusing leave to appeal to that court. Presumably, their Honours had that special feature in mind when, in their judgment, they commented (at p 172) that the parties remained "at liberty to apply to the Full Court of Victoria for a further hearing in order that (the fresh) evidence may be considered." There is, however, nothing in the judgment which lends real support for the view that the conclusion that the Court lacked power to receive further evidence would have been different if the applications for special leave to appeal had, as in the present case, been from formal orders of the Full Court dismissing appeals from convictions with the result that, in the absence of executive intervention, the jurisdiction of all courts other than this Court had been exhausted (see Grierson v. The King; Reg. v. Smith (1968) QWN 50, at p 114; Reg. v. Shannon (1982) 32 SASR 5, at p 8).

18. Since Davies and Cody, the view that the Court can never receive fresh evidence on an appeal under s.73 has been expressed or assumed in at least two judgments of the Court. In Grosglik v. Grant (No. 2) [1947] HCA 1; (1947) 74 CLR 355, at p 357, Latham C.J., speaking for the Court, stated in unqualified terms that "(f)resh evidence cannot be admitted upon appeals to this Court (Davies and Cody v. The King)." In Crouch v. Hudson [1970] HCA 25; (1970) 44 ALJR 312, Barwick C.J., speaking for the Court, stated that the Court saw no reason "to depart from the principles which this Court has laid down and acted upon for a considerable period of time in relation to its power to receive fresh evidence in an appeal from the Supreme Court."

19. Those subsequent cases have done nothing to remove the unsatisfactory nature of the reasoning underlying the broad generalizations of the Court in Davies and Cody. The expressed basis of the Court's denial of the capacity to do justice on an appeal where the receipt of further evidence is necessary for that purpose continues to rest on little more than the assertion or assumption that the general grant of appellate jurisdiction contained in s.73 of the Constitution should be confined either by preconceptions of reserved State judicial powers or by reference to what was permissible under but one (i.e. writ of error) of the ancient common law procedures for correcting error and miscarriage. In circumstances where what is involved is the construction of a fundamental constitutional provision intended to establish the Court as an effective ultimate appellate court for Australia, I have come to the conclusion that I should respectfully decline to accept decisions resting on such unstable foundations. In reaching that conclusion, I have been influenced by the fact that, to the extent that a nation's final appellate court is disabled from doing justice in an individual case before it, it is the nation, rather than the court, which is diminished.

20. The circumstances in which this Court would be justified in receiving further evidence on an appeal from the Full Court of a State Supreme Court are necessarily exceptional. It would not, however, be appropriate to seek to identify them exhaustively in advance. As a general matter, it can be said that, in the context of the policy in the public interest that there should be an end to litigation, further evidence should only be received on such an appeal to this Court in a case where common sense or the requirements of justice plainly require that it be received. Those circumstances will ordinarily not exist if the further evidence is not "fresh" in the sense of not having been available at the time of the hearing in the court below or if it is apparent that the further evidence would not, even if accepted as true, be "cogent" in the sense of raising a significant possibility that it either would or should have affected the decision of the court below. Since appeals to this Court from the Full Court of a State Supreme Court are not by way of rehearing, further evidence will ordinarily not be relevant on such an appeal unless it relates, directly or indirectly, to facts or circumstances occurring or existing before or at the time of the hearing in the court below. When fresh evidence has been received on such an appeal, the primary question will ordinarily be whether there is a significant possibility that the fresh evidence would have produced a different and more favourable result in the Full Court if it had been available there. If that question be answered in the affirmative and the circumstances of the case are such that the requirements of justice outweigh the public policy that there should be an end to litigation, the appropriate order will ordinarily be that the judgment of the Full Court be set aside or varied to the extent necessary to enable the Full Court to take account of the fresh evidence. Obviously, however, there could be circumstances (e.g. an allegation of actual or reasonably apprehended bias in the court below) in which it is necessary or desirable that this Court itself finally determines the issue to which the fresh evidence relates. In such cases, if there be dispute about the facts covered by the fresh evidence, the matter could be remitted to an appropriate court for the resolution of that factual dispute.

21. If the matter were for me alone, it would be necessary that I examine the fresh evidence which the applicants have sought to adduce in the present case. The matter is not, however, for me alone and my conclusion that the Court possesses power to receive fresh evidence on these applications is contrary to the conclusion reached by the other members of the Court. In these circumstances, I have given careful consideration to whether I would be justified in proceeding on the basis of my own view of the law. I have come to the conclusion that, subject to one qualification, I would not. It appears to me that I should proceed on the basis that a ruling had been given by the Court at the time when the further evidence was tendered. If that course had been followed, the further evidence would have been rejected by majority decision without the need to consider its contents and I would have regarded myself as constrained to deal with the case on the basis that that further evidence was not before the Court. The qualification relates to the concession by the Crown to the effect that the pin marks which appear in a photograph of the alleged fingerprint of Raymond Mickelberg on the back of one of the cheques ("the WABS cheque") used in the defrauding of the Mint were made while the cheque was in Canberra for scientific examination. The effect of that concession is that the photograph could have been taken only after 20 July 1982 and not, as suggested by the prosecution evidence at the trial, on 15 July 1982. The other members of the Court are equally divided about whether that concession is properly before the Court and it is necessary that I form a view about whether it should be received.

22. I agree, for the reasons which he gives, with the conclusion of the Chief Justice that receipt by the Court of the Crown's concession about the time when the pin marks shown in the photograph were made would, for relevant purposes, constitute a receipt of further evidence. Plainly enough, that item of further evidence is fresh in the sense that it was unavailable to Raymond Mickelberg at the time of the hearing before the Court of Criminal Appeal. It is also relevant. It cannot, in my view, be said that it is apparent that it lacks cogency in the sense explained above. In all the circumstances, I consider that the further evidence constituted by the concession should be received by the Court.

23. In the Court of Criminal Appeal, the main ground of attack on the conviction of Raymond Mickelberg was based on further evidence relating to the possibility of the fabrication of his alleged fingerprint on the back of the WABS cheque. The further evidence established that it was theoretically possible, albeit unlikely, that the "fingerprint" in question could have been fabricated by the use of a cast or mould reproducing the actual surface indentations of Raymond Mickelberg's right index finger. There is also some imprecise defence evidence to the effect that on 15 July, the police had taken a number of items including metal and rubber casts or moulds of Raymond Mickelberg's hand or hands. Evidence was also led that an expert (Mr. Bardwell) had, before the trial, been retained on behalf of the Mickelbergs to seek to fabricate Raymond Mickelberg's fingerprint by use of a rubber mould supplied to him by the defence and that he had been unable to do so. On the hearing before the Court of Criminal Appeal, expert evidence was called on behalf of the Mickelbergs directed to discrediting Mr. Bardwell's methods.

24. There are several problems with the police evidence at the trial relating to the alleged fingerprint. These problems were not removed by the police evidence before the Court of Criminal Appeal. On the police evidence, there was an extraordinary delay (in view of the risk of fading) of more than three weeks in photographing the alleged fingerprint after it had been treated with ninhydrin. The police photographic records do not support the police evidence about photographs of the fingerprint being made on 15 or 16 July 1982. Moreover, a careful reading of the relevant police evidence both at the trial and before the Court of Criminal Appeal leaves one with an inevitable degree of uncertainty about precisely what the police did in relation to the alleged fingerprint between the time it was first known to exist on 24 June 1982 until 16 July when it was sent to Canberra.

25. If there had been evidence before the Court of Criminal Appeal to the effect that Raymond Mickelberg had, prior to 15 July 1982 when casts or moulds of his hand or hands had allegedly been taken by the police, made a cast or mould of his right index finger which might have produced the alleged fingerprint, there would have been much to be said for the view that the further evidence led before the Court of Criminal Appeal was sufficient to raise a significant possibility that the jury at the trial would not have been persuaded, if that further evidence had been before them, that the Crown had established beyond reasonable doubt that the alleged fingerprint was genuine. A reasonable doubt about the genuineness of the alleged fingerprint may well have resulted in the jury not being convinced of Raymond Mickelberg's guilt beyond reasonable doubt since the alleged fingerprint was plainly the most damning evidence against him.

26. In fact, there was no evidence at all that, on or prior to 16 July 1982 when the alleged fingerprint was sent to Canberra, there existed a mould or cast of Raymond Mickelberg's right index finger capable of producing a fingerprint. The only reproduction of the actual impressions of the inner surface of that particular finger which is mentioned in the evidence as existing before the time of the trial was that used by Mr. Bardwell in his unsuccessful attempts to produce a fingerprint. It is not suggested that that reproduction was ever in the hands of the police. It was not produced before the Court of Criminal Appeal nor was its absence explained, notwithstanding that the matter was directly raised by the Bench. Nor was there any attempt before the Court of Criminal Appeal to give any specific evidence about any rubber moulds of Raymond Mickelberg's hand or hands which are suggested (contrary to the police evidence) to have been taken on 15 July 1982. Viewing the matter most favourably from the defence point of view, one is left with the vague and general evidence of Raymond Mickelberg, Peter Mickelberg and Mrs. Sheryl Mickelberg to the effect that on 15 July 1982, the police took a number of items from "Ray's lounge" including "bronze casts and rubber moulds which he had made of his hands and fingers." Nowhere is there evidence that there existed a cast or mould or other reproduction of Raymond Mickelberg's right index finger which was capable of producing a fingerprint.

27. In these circumstances, I agree with the conclusions reached by Toohey and Gaudron JJ. that the Court of Criminal Appeal was justified in reaching the conclusion that the further evidence about the theoretically possible fabrication of the alleged fingerprint would not, if placed before the jury at the trial, have affected the outcome of the trial. I am in general agreement with much of what is said by their Honours in reaching that conclusion. I would, however, place less weight than their Honours do upon the significance of the evidence to the effect that a considerable degree of luck would be necessary to fabricate a print of the quality and in the position of the print on the cheque. In a context where the relevant question is whether there is a significant possibility that the further evidence would have raised a reasonable doubt about the genuineness of the alleged fingerprint in the minds of the jury, I do not think that the fact that, if a suitable rubber mould had existed, the fabrication could not have been made without a considerable element of luck would be of decisive weight in establishing guilt beyond reasonable doubt.

28. There remains for consideration on this aspect of the case the question of the effect of the Crown's concession which is before this Court to the effect that a particular photograph of the alleged fingerprint could not have been taken before the cheque was received in Canberra on 20 July 1982. As has been said, the police evidence at the trial suggested that it had been taken on 15 July 1982. The concession results in heightened problems about the police evidence at the trial and before the Court of Criminal Appeal to the effect that the alleged fingerprint could not be seen on the back of the cheque when it was received back in Perth from Canberra. It adds to the vagueness and uncertainty of the overall police evidence about what actions were taken in relation to the alleged fingerprint in the period before the cheque was sent to Canberra. Indeed, even before this Court, there was some dispute between counsel about whether there existed any negatives at all of photographs taken of the alleged fingerprint before the cheque left Perth on 16 July. Mr. McKechnie, who appeared for the Crown in this Court, indicated that, if the Court was of the view that fresh evidence could be received, he would wish to lead evidence establishing that there were such negatives. In the event, the conclusion of the other members of the Court that further evidence cannot be received by the Court has precluded the reception of that evidence.

29. The question whether there is a significant possibility that the concession that the relevant photograph was not taken on or before 16 July would or should, if it had been made before the Court of Criminal Appeal, have led their Honours to come to a different conclusion is not without difficulty. I have, however, come to a firm conclusion that it should be answered in the negative. Notwithstanding the disturbing vagueness and uncertainty of the police evidence, the critical fact remains that there is simply no evidence at all supporting a hypothesis that there existed, on 15 or 16 July 1982, a rubber mould capable of producing the alleged fingerprint. Indeed, in so far as I can follow the intricate web of proceedings, there has never even been a firm submission to the effect that there is any such evidence. In the absence of any such evidence, the concession now made by the Crown would not and should not have affected their Honours' conclusion that Raymond Mickelberg's appeal should be dismissed.

30. On the hearing in this Court, senior counsel for Peter Mickelberg advanced, for the first time in the long history of this case, a submission that his client's convictions should be set aside on the ground that they were unsafe and unsatisfactory. It was suggested that the members of the Court of Criminal Appeal had been required to deal, on their own initiative, with the issue raised by that submission in dealing with the reference of Peter Mickelberg's case to it. I do not agree that that was so. Section 21(a) of the Criminal Code (WA) expressly provides that such a reference to the Court of Criminal Appeal is to be heard and determined "as in the case of an appeal by a person convicted". In circumstances where Peter Mickelberg was represented by counsel on the hearing of the reference, the Court of Criminal Appeal was, in my view, plainly entitled to confine its consideration of his case to matters raised before it. Consequently, it cannot properly be said that the Court of Criminal Appeal fell into "error" in failing to deal with that question.

31. On the other hand, as I have pointed out above, the function of this Court in hearing an appeal is not confined to the correction of "error" on the part of the court below. Where the interests of justice override the public policy that there should be an end to litigation, the Court can entertain a point notwithstanding that it was not raised before the intermediate court of appeal. The Court has heard full argument on the question whether Peter Mickelberg's convictions are unsafe and unsatisfactory. As Toohey and Gaudron JJ. demonstrate, that argument has given rise to an issue of some substance. I am in general agreement with their Honours' comments in that regard and with their Honours' comments in relation to the related question whether Peter Mickelberg's conviction can be allowed to stand in the light of the quashing of Brian Mickelberg's convictions. I also agree with their Honours' conclusions and reasons in relation to the other issues raised by Peter Mickelberg's application. In the context of the long history of this matter, there is much to be said for the view that this Court should itself determine the questions whether Peter Mickelberg's convictions are unsafe and unsatisfactory or whether they should be allowed to stand in the light of the acquittal of Brian Mickelberg. On balance, however, it appears to me that the appropriate course is for the matter to be remitted to the Court of Criminal Appeal so that those issues can be resolved by that court.

32. There is but one other matter which needs to be mentioned. In the submissions in chief advanced on behalf of Raymond Mickelberg, it was not argued that his convictions should not be allowed to stand if Peter Mickelberg's convictions were set aside as unsafe or unsatisfactory or if Peter Mickelberg's conviction for conspiracy was set aside as inconsistent with the acquittal of Brian Mickelberg. Such an argument was however adverted to by counsel for Raymond Mickelberg in his closing comments in reply. It appears to me that a setting aside of Peter Mickelberg's conviction of conspiracy as unsafe or unsatisfactory would raise a serious question about whether Raymond Mickelberg's conviction for conspiracy should be allowed to stand. The evidence of Raymond Mickelberg's guilt of the other offences of which he was convicted was plainly stronger than the evidence against Peter Mickelberg. It is, however, at least arguable that the evidence that Peter Mickelberg was a party to a conspiracy with Raymond Mickelberg is, upon analysis, no stronger against Raymond than it is against Peter. The Court has not heard full argument on that question. Nor has it heard argument on the question whether Raymond Mickelberg's conviction of conspiracy could, in any event, be sustained by reason of evidence against him of a conspiracy between Brian Mickelberg and himself. With some hesitation, I would extend to Raymond Mickelberg, even at this extraordinarily late stage, an opportunity of making written submissions on the question whether his application for special leave to appeal to the extent that it relates to his conviction of conspiracy should be adjourned until the outcome of the further proceedings in the Court of Criminal Appeal is known. I would refuse his application for special leave to appeal in so far as it relates to his other convictions.

33. I agree with the orders proposed by Toohey and Gaudron JJ. in the case of Peter Mickelberg. In the case of Raymond Mickelberg, I would adjourn the application for special leave to appeal to a date to be fixed and direct that written submissions be filed within fourteen days on behalf of Raymond Mickelberg and within twenty one days on behalf of the Crown on the question whether Raymond Mickelberg's application for special leave should, to the extent that it relates to his conviction of conspiracy, stand in the list until after the decision of the Court of Criminal Appeal in relation to Peter Mickelberg is available.

TOOHEY AND GAUDRON JJ. On 22 June 1982 a substantial quantity of gold was obtained from the Perth Mint in exchange for three valueless cheques. One cheque purported to be drawn on the account of the West Australian Building Society ("the WABS cheque"); the other two cheques purported to be drawn on the account of the Perth Building Society ("the PBS cheques"). The signatures on the cheques were forgeries. The cheque forms had been previously issued to two business enterprises, Conti Sheffield Estate Agency Pty Ltd and H.L. Bradbury and Associates. The cheque forms were in the business premises of those enterprises prior to the destruction of those premises by fire on 7 April and 13 May 1982 respectively.

2. Arising out of these events Raymond Mickelberg ("Raymond"), Peter Mickelberg ("Peter") and Brian Mickelberg ("Brian") were each charged on eight counts as follows:

1. Conspiring to defraud the Director of the Perth Mint;

2. Breaking and entering the premises of Conti Sheffield Estate

Agency Pty Ltd and therein stealing blank cheque forms;

3. Setting fire to the premises of Conti Sheffield Estate

Agency Pty Ltd;

4. Breaking and entering the premises of H.L. Bradbury and

Associates and therein stealing blank cheque forms;

5. Setting fire to the premises of H.L. Bradbury and Associates;

6. Obtaining gold by falsely pretending that a cheque in the amount

of $104,492.50 was a good and valid security for that amount;

7. Obtaining gold by falsely pretending that a cheque in the sum of

$249,932.74 was a good and valid security for that amount; and

8. Obtaining gold by falsely pretending that a cheque in the sum of

$298,550.00 was a good and valid security for that amount.

3. On 4 March 1983 Raymond and Peter were convicted in the District Court at Perth on all counts, and Brian was convicted on counts 1, 6, 7 and 8.

4. On 4 November 1983 the Court of Criminal Appeal of Western Australia quashed the convictions as against Brian Mickelberg. On the same day an appeal against conviction by Peter Mickelberg (limited to his convictions for breaking and entering the premises of Conti Sheffield Estate Agency Pty Ltd and H.L. Bradbury and Associates and stealing blank cheques therein, and setting fire to those premises) was dismissed. Later, Peter unsuccessfully sought leave to appeal against all convictions. In December 1986 Raymond was granted leave to appeal against all his convictions. Thereafter, Peter petitioned for the exercise of mercy. Pursuant to s.21(a) of the Criminal Code (WA) ("the Code"), the whole case against him was referred to the Court of Criminal Appeal "(to) be heard and determined ... as in the case of an appeal by a person convicted". It is convenient to refer to the proceeding thus constituted as an appeal. The appeals by Peter and Raymond were dismissed by the Court of Criminal Appeal (Wallace, Olney and Pidgeon JJ.). From the orders dismissing their appeals each now seeks special leave to appeal to this Court.

5. The case at trial against Raymond involved linking him to the three valueless cheques used to obtain gold from the Mint. That link was made in this way: all three cheques were completed by using the same typewriter; on the face of each PBS cheque there had been typed an account number which corresponded with the account number appearing on a cheque paid by that building society in satisfaction of a withdrawal from an account held with it by Peter Gulley; that was an account held by Raymond Mickelberg in a false name; on the back of the WABS cheque was a fingerprint which corresponded with the print of Raymond's right index finger.

6. The main thrust of Raymond's appeal to the Court of Criminal Appeal was to challenge, by the introduction of fresh evidence, the inference to be drawn from the presence of the fingerprint on the WABS cheque. In this Court Raymond's application centred upon the fingerprint evidence, although, in the affidavit filed in support of his application for special leave to appeal, other matters are raised including the evidence going to the identification of Peter.

7. The case at trial against Peter depended largely upon linking him to a car observed by Terence Henry in the vicinity of office premises in Subiaco at or near the time that the valueless cheques were collected from those premises on 22 June by couriers who had been engaged to take those cheques to the Mint. That car was previously owned by Mr and Mrs Allen who gave a description of its purchaser. The purchaser had given them a handwritten note. Expert evidence was given that the handwriting in that note was that of Peter Mickelberg. Evidence was also led from Mr Henry as to the description of a person in and by the car when observed near the office premises. There was admitted into evidence a drawing prepared by a police artist with the assistance of Mr Henry, with a transparent overlay prepared with the assistance of Mr and Mrs Allen. Also admitted into evidence were a photograph of Peter Mickelberg, onto which had been drawn hair and glasses at the direction of Mrs Allen, and a photograph of Peter Mickelberg onto which had been drawn hair corresponding with the description given by Mr Henry. It is convenient to refer to the drawing and overlay and the photographs as "the identification evidence".

8. Evidence was also led at the trial of certain statements made by Peter to investigating police officers. It will later be necessary to give some details of those statements. For present purposes those statements may be referred to as "the consciousness of guilt evidence".

9. In the Court of Criminal Appeal Peter sought to avail himself of the fresh evidence relating to the fingerprint on the WABS cheque. He also challenged the handwriting evidence, the identification evidence and the consciousness of guilt evidence by the introduction of fresh evidence. Fresh evidence was also adduced in Peter's appeal directed to an alibi claimed by him and as to a conversation had between Det. Sgt Lewandowski, a police officer involved in the investigation, and Arthur John Walsh. It was also argued in Peter's appeal that, Brian's conviction for conspiracy having been set aside, the conspiracy conviction against him should be set aside with the consequence that the other convictions should also be set aside. Each of these matters was argued in this Court in support of Peter's application for special leave to appeal. Additionally, although not previously raised in the Court of Criminal Appeal, it was put that the convictions against Peter Mickelberg should be set aside as unsafe and unsatisfactory. Finally, in both Raymond's and Peter's applications for special leave to appeal a question arose as to the reception of further fresh evidence by this Court.

10. It is convenient to deal first with the question of the reception of fresh evidence by this Court and thereafter to deal with the remaining issues in the order in which we have identified them.

Receipt of Fresh Evidence by this Court

11. The appellate jurisdiction of this Court finds its source in s.73 of the Constitution which provides that the Court "... shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences" of, inter alia, "any ... court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council".

12. It was held in Ronald v. Harper [1910] HCA 43; (1910) 11 CLR 63 and in Scott Fell v. Lloyd [1911] HCA 34; (1911) 13 CLR 230 that this Court had no power to receive fresh evidence on the hearing of an appeal. Those decisions were followed in Crouch v. Hudson [1970] HCA 25; (1970) 44 ALJR 312.

13. The Constitution clearly distinguishes between the original and the appellate jurisdiction of this Court. Original jurisdiction is confined to those matters falling within Commonwealth judicial power and specified in ss.75 and 76 of the Constitution. Appellate jurisdiction extends (within the limits established by s.73 of the Constitution) to matters involving the exercise of Commonwealth judicial power and matters involving the exercise of State judicial power.

14. Ordinarily, an appeal raises the correctness or otherwise of the decision under appeal in the light of the evidence and issues as they were before the court whose decision is in question. However, some appellate courts are empowered to determine matters decided by a lower court by reference to evidence as it is before the appeal court. See Lloyd v. Wallach [1915] HCA 60; (1915) 20 CLR 299, at p 307, where Isaacs J. distinguished between a general Court of Appeal and a Court of Error. See also Ronald v. Harper, per Griffith C.J. at pp 77-78, referring to the statutory jurisdiction of the Judicial Committee of the Privy Council.

15. Proceedings before an appellate court involving a determination by reference to evidence called for the first time in that court are commonly referred to as appeals. However, the function which is then embarked upon is discernibly different from the ordinary appellate function of determining whether or not the court appealed from ought to have arrived at the decision in question. It involves the appellate court itself reaching a decision on material which is, to the extent of fresh evidence adduced, different from that considered by the lower court and, if that decision is different from the earlier decision, substituting that decision for the earlier decision. That function, involving the making of an independent and original decision, is properly to be characterized as the exercise of original jurisdiction. It was so characterized by Isaacs J. in Werribee Council v. Kerr [1928] HCA 41; (1928) 42 CLR 1, at p 20, and by Dixon J. in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at p 109.

16. It may be that s.75 of the Constitution, in conferring original jurisdiction on this Court, confers power to receive fresh evidence on the hearing of appeals in matters falling within that section. It may also be that Parliament can confer the same power in respect of the hearing of appeals in matters falling within s.76 of the Constitution. However, a power in this Court to receive fresh evidence in an appeal from a State court exercising State judicial power and to determine the issues then raised by reference to that fresh evidence would be "equivalent to investing this Court with original jurisdiction (over matters falling within) State judicial power": Werribee Council, per Isaacs J. at p 20. See also Meakes v. Dignan, per Dixon J. at pp 109-110; Davies and Cody v. The King [1937] HCA 27; (1937) 57 CLR 170, per Latham C.J. at p 172. Such a power is not conferred by Ch III of the Constitution for ss.75 and 76 constitute a complete and exhaustive statement of the original jurisdiction comprehended within the judicial power of the Commonwealth: In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, at p 265; The King v. Maryborough Licensing Court; Ex parte Webster & Co. Ltd. [1919] HCA 71; (1919) 27 CLR 249, at p 253.

17. The present application is for leave to appeal from a State court exercising State judicial power. Accordingly, the power of this Court, should leave be granted, is confined to determining the correctness or otherwise of the decision made by the Court of Criminal Appeal on the material before it.

The Fingerprint on the WABS Cheque

18. Evidence led at the trial was to the effect that a fingerprint was observed on the back of the cheque on 24 June 1982. It was treated with ninhydrin, a chemical which allows latent prints to develop. After the ninhydrin treatment the cheque was put away until 15 July at which time a better developed print was observed. The fingerprint was then photographed. On 16 July the cheque was sent to Canberra so that the fingerprint could be further chemically treated with a view to its enhancement. The enhancement process was successful. In Canberra photographs were taken of the enhanced fingerprint and the negatives of the enhanced print were then sent to Perth on 26 July. At some later stage the print on the cheque faded.

19. There was also evidence at the trial that Raymond pursued a hobby of making casts of his hands from latex or rubber moulds. Evidence was given that on 15 July 1982 casts and moulds were seized by police officers in execution of a search warrant. The date of seizure was not in issue at the trial, it not then having any apparent significance. In his closing address, counsel for Raymond raised the possibility that Raymond's fingerprint had been placed on the cheque by his handling of it during questioning by police on 15 July. However, Raymond had given evidence in which he denied handling the cheque in a manner which could account for the presence of his fingerprint.

20. After his conviction Raymond learned that fingerprints could be fabricated by applying a latex or rubber mould moistened by human sweat to a surface. He obtained the opinions of a number of experts and their opinions were advanced in the appeal as fresh evidence. Their evidence and the evidence of experts called by the Crown established that a fingerprint could be fabricated in this manner. However, it did not establish that the print on the WABS cheque was so fabricated. The evidence of the experts called on behalf of Raymond and Peter was to the effect that it was not possible to say whether the print was genuine or a forgery; the opinion evidence of the experts called on behalf of the Crown was that the fingerprint was genuine and had not been fabricated by the use of a rubber or latex mould.

21. The Court of Criminal Appeal was asked to evaluate the fresh evidence in the context of evidence given at the trial and in the context of further fresh evidence relating to the availability of a record of Raymond's fingerprints. As previously mentioned, the evidence at trial was that, although the fingerprint was observed on 24 June, it was not photographed until 15 July. That delay, it was said, raised doubts as to the police account but was explicable if the print had not been placed on the cheque until 15 July. The further fresh evidence established that investigating police officers, had they so wished, could have obtained a copy of Raymond's fingerprints from central police records in Sydney for the purpose of comparison with the print on the cheque. It was argued that their failure to do so prior to 15 July, even though Raymond came under suspicion on 9 July, added plausibility to the hypothesis that the print was placed on the cheque using a rubber or latex mould on 15 July.

22. In this Court the fingerprint evidence was sought to be further challenged by reference to a photograph admitted into evidence at the trial. That photograph was accepted at trial as having been taken on 15 July before the WABS cheque was sent to Canberra. The photograph shows pin marks on the cheque. It was conceded by counsel for the Crown, Mr McKechnie, that pin marks were not placed on the cheque before it was sent to Canberra on 16 July. Accordingly, the photograph could not have been taken on 15 July. However, Mr McKechnie contended that the concession amounted to fresh evidence which was not receivable by this Court.

23. The concession made by Mr McKechnie has evidential significance but is not itself evidentiary. It is, in essence, an explanation of the import of the photograph admitted into evidence at the trial. The concession opens up the possibility that no photograph was taken of the print until after 15 July. That possibility, it is said, raises a further doubt as to the police account given at trial. If regard is had by this Court to the concession, the possibility opened up is a matter capable of bearing upon the evaluation of the fresh evidence placed before the Court of Criminal Appeal. If regard is had to the concession for this purpose (and, we add, that we can see no other purpose that it could serve), the issue for this Court to determine remains that of the correctness or otherwise of the decision of the Court of Criminal Appeal that the fresh evidence relating to the fingerprint could not ground a successful appeal in the light of the true import of the evidence led at trial. The determination of that issue is a function properly undertaken in the exercise of ordinary appellate jurisdiction. Accordingly, in our view, this Court may have regard to the concession for the purpose identified.

24. The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. See, for example, Gallagher v. The Queen [1986] HCA 26; (1986) 160 CLR 392, at pp 395, 402, 410. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available. See Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510, per Barwick C.J. at pp 516-517, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v. The Queen [1979] HCA 49; (1979) 142 CLR 659, at pp 666, 675-677.

25. There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be "credible", "cogent", "relevant", "plausible": see, for example, Gallagher, at pp 395-396, 401-402, 408-409; Craig v. The King [1933] HCA 41; (1933) 49 CLR 429, at p 439; Ratten, at pp 519-520; Lawless, at pp 671, 676-677. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (Gallagher, per Brennan J. at p 410) or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted the (accused)" (Gallagher, per Gibbs C.J. at p 399 and per Mason and Deane JJ. at p 402). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless, per Mason J. at pp 676-677, and Gallagher, per Brennan J. at p 410, but cf. Barwick C.J. in Ratten, at pp 519-520.

26. To determine whether or not the jury might have entertained a reasonable doubt as to guilt it is necessary to identify, with some precision, the issue to which the fresh evidence is directed. The issue to which the fresh fingerprint evidence was directed was whether the print on the WABS cheque was placed there by Raymond in the course of committing the offences of which he was convicted. A doubt was sought to be raised as to that matter by raising a reasonable possibility that the print was placed on the cheque on 15 July by use of a rubber or latex mould.

27. Evidence to the effect that it is not possible to say whether the print is genuine or a forgery does not raise forgery as a reasonable possibility: it merely allows forgery to become or to remain a hypothesis. Evidence of the existence as at 15 July of the means, knowledge and opportunity to effect the forgery could, if believed, strengthen the hypothesis. The hypothesis could be further strengthened if it provided a plausible explanation for anomalous aspects of the evidence, such as the delay in photographing the print and the possibility that no photograph was taken until after the cheque was sent to Canberra. However, evidence that means, knowledge or opportunity were absent on 15 July, if accepted, would destroy the hypothesis.

28. Before the Court of Criminal Appeal there was evidence which, if believed, was capable of establishing knowledge and opportunity for investigating police officers to have effected a forgery of the fingerprint. Evidence of seizure of the casts and moulds on 15 July is in a slightly different category, for there was no evidence that any cast or mould then allegedly seized was capable of producing a print. However, for present purposes, we are prepared to assume that it was capable of raising a reasonable possibility that the means of forgery were then available. The hypothesis thus strengthened was also capable of affording an explanation for the fact that no photograph was taken prior to 15 July and the possibility, opened by Mr McKechnie's concession, that none was taken until some time after the cheque was sent to Canberra. Yet, there was also evidence that casts and moulds were not seized until 26 July and, if believed, that evidence would negate the existence of the means of effecting a forgery until after the cheque was returned to Perth from Canberra and thus rule the hypothesis out of contention.

29. Viewing the evidence and its effect in the manner above outlined, there was evidence which, if accepted, opened up the possibility of forgery. The question whether that evidence would ground a successful appeal could not, in our view, be answered simply by accepting the evidence that casts and moulds were not seized until after 15 July. Nor, in our view, could it be answered by pointing to the failure of the evidence adduced on behalf of Raymond and Peter to establish positively that as at 15 July there existed a mould capable of making the print. What was required on this view of the evidence was that the Court of Criminal Appeal ask whether all or any part of the evidence then relied upon to challenge the convictions was capable of being accepted as true by a reasonable jury, and, if so, whether that evidence was capable of raising forgery as a reasonable possibility.

30. However, the evidence before the Court of Criminal Appeal was more extensive than has yet been outlined. Expert witnesses called by the Crown gave their opinions that the print had not been forged. The basis of their opinion evidence was, in part, that a high degree of luck would be necessary to forge a print of the quality and in the position of the print on the cheque. Luck was a necessary ingredient because a successful forgery depended on a single application of a mould to a surface which only sometimes accepted a print and in circumstances such that the print, if accepted, would not be visible until treated.

31. The factors which necessitated a high degree of luck were not controverted by the experts called on behalf of Raymond and Peter. These factors gave rise to a high level of improbability of the print having been forged in the manner hypothesized. In the face of that high level of improbability, something more than a hypothetical possibility consistent with the evidence at trial and capable of explaining the suggested anomalous aspects of that evidence was necessary to raise forgery as a reasonable possibility. The fresh evidence, even if believed, did no more than raise an hypothesis answering that description. Accordingly, it cannot be said that, had the evidence been called in the trial, the jury would likely have entertained a reasonable doubt that the fingerprint was placed on the WABS cheque by Raymond in the course of committing the offences with which he was charged. The fresh evidence, even in the light of the Crown's concession, cannot ground a successful appeal.

The Handwriting Evidence

32. When Mr and Mrs Allen sold the car later observed by Mr Henry on 22 June, the purchaser gave them a handwritten note showing a name and address to which the registration papers should be sent. Mr and Mrs Allen observed the note being written. At trial a police handwriting expert gave evidence that, in his opinion based on comparison of the handwriting with known samples of Peter's handwriting, the note was written by Peter Mickelberg.

33. In the Court of Criminal Appeal evidence was led from Geoffrey William Roberts to the effect that there were significant differences between the handwriting in the note and known samples of Peter's handwriting and that, in his opinion based on those differences, the note was not written by Peter.

34. The judgments of the Court of Criminal Appeal are highly critical of the evidence of Mr Roberts. In particular, Olney J. pointed out that features which Mr Roberts claimed were not to be found in the known samples of Peter's handwriting were later acknowledged by him in cross-examination to be present. This criticism suggests that the evidence may well have lacked credibility in the relevant sense. However, the evidence also suffers from a fundamental defect in that it cannot be said that expert handwriting evidence was not available, or could not with diligence have been available, to the defence at trial. Its absence from the defence case at trial cannot be said to involve any miscarriage of justice.

Identification Evidence

35. As has already been mentioned, the car which was purchased from Mr and Mrs Allen was observed by Mr Henry in the vicinity of certain office premises at or near the time the valueless cheques were collected from those premises by couriers. Mr Henry was able to give a description of a person in and by the car. Mr and Mrs Allen were able to give a description of the person who purchased the car. Mrs Allen described the purchaser as wearing glasses and possibly a wig.

36. A police artist prepared a transparent overlay depicting hair and glasses as described by Mr and Mrs Allen. The police artist also drew facial features according with the description given by Mr Henry. For this purpose Mr Henry and the police artist had resort to interchangeable photographs of facial features comprised in a collection known as the Penry Photofit. Unfortunately, at the trial Mr Allen gave evidence which was capable of giving the false impression that his and Mrs Allen's description had also contributed to the making of the drawing of the facial features.

37. Mr and Mrs Allen were not able to identify Peter Mickelberg as the purchaser of the car. Mr Henry was not able to identify Peter Mickelberg as the person seen in and by the car near the office premises. Nevetheless, the drawing and transparent overlay were admitted into evidence without objection.

38. The police artist also drew hair and glasses on an enlarged passport photograph of Peter at the direction of Mrs Allen. This overdrawn photograph was admitted into evidence without objection. Another enlargement had hair drawn upon it to correspond with the description given by Mr Henry and was acknowledged by Mr Henry as bearing a resemblance to the person seen in and by the car. Again, notwithstanding the inability of Mr Henry to identify Peter - Mr Henry in fact said that Peter was too tall to be the person he saw - this latter overdrawn photograph was admitted into evidence without objection. There is no clear resemblance between the facial features in the drawing and those depicted in the overdrawn photographs.

39. In the Court of Criminal Appeal fresh evidence was adduced with the object of establishing that the drawing could not have been made from the interchangeable photographic features in the Penry Photofit. Additionally, witnesses called on this aspect gave evidence that, in their opinion, the drawing had been made with the aid of a passport photograph of Peter Mickelberg. This evidence may be disposed of very briefly.

40. The police artist did not claim to have produced the drawing from the interchangeable photographic features in the Penry Photofit. He claimed to have shown those features to Mr Henry and to have made the drawing incorporating descriptions given by Mr Henry by reference to the features depicted. As to the drawing having been made with the aid of a passport photograph, a considerable hurdle is presented by the lack of any clear resemblance between the features depicted in the sketch and the features depicted in the passport photograph said to have been used. But more significant is the fact that the sketch was in existence and published on 27 June 1982, and, as was observed by Olney J. in the Court of Criminal Appeal, there is no evidence "that the police had or even may have had a passport photograph or any other photograph of Peter" as at that date.

41. When these matters are considered in the light of the clear evidence of Mr Henry as to his involvement in the making of the drawing, the opinion evidence that the drawing was prepared with the assistance of a passport photograph must be considered as fanciful to the point of lacking the degree of credibility necessary to ground a successful appeal.

42. The identification evidence was further challenged on the ground of its admissibility and on the ground that it otherwise resulted in a miscarriage of justice. As earlier pointed out, the evidence was not objected to. Moreover, there being no clear resemblance between the sketch and the overdrawn passport photographs, the receipt of the evidence was capable of advantaging the defence case. In these circumstances the admission of the evidence cannot be said to constitute a miscarriage of justice.

43. However, there was a clear risk of prejudice in the admission of the photograph overdrawn with hair to correspond with the description given by Mr Henry and acknowledged by Mr Henry as having a resemblance to the person seen by him in the car. If the jury accepted that Peter Mickelberg was the purchaser of the car, as it well might on the handwriting evidence, it would follow that he was in disguise at that time. The photograph overdrawn to correspond with the description given by Mr Henry could induce a belief that, notwithstanding Mr Henry's failure to identify Peter and his assertion that Peter was too tall to be the person he saw, it was Peter, in a modified form of disguise, whom he saw in and by the car. However, the trial judge gave a strong warning on this issue, pointing out and warning against the "lurking danger" of treating the evidence of Mr and Mrs Allen as supporting the evidence of Mr Henry and vice versa. No further direction was sought. In the circumstances, bearing in mind the absence of objection and the possible advantages for the defence case, there cannot be said to have been any miscarriage of justice.

The Consciousness of Guilt Evidence

44. Evidence was led at trial of certain statements made by Peter to investigating police officers. These statements did not amount to an admission of guilt of the offence charged or of any particular participation by Peter in those offences or in any of them. The evidence, if accepted, was capable of showing some knowledge of those offences. For example, there was evidence of an exchange between Peter and Det. Sgt Round as follows:

"I said to the accused, 'What have you told Sgt

Hancock?' He said, 'I haven't told him where the

gold is but I have certainly told him a lot more

than I intended to. Ray won't be very happy about it.'"

45. At trial, Peter gave evidence denying some of the statements of which evidence was given. In particular, he denied making certain statements as to which evidence was given by Det. Sgt Hancock.

46. Some time prior to trial, Det. Sgt Hancock participated in a conversation with, among others, Peter and Raymond. That conversation was tape-recorded by Peter. It is not now in issue that the tape accurately records that conversation. In that conversation Det. Sgt Hancock made statements capable of being understood as admissions that he had taken certain action in relation to the mother of Raymond, Peter and Brian and in relation to Sheryl Mickelberg, the wife of Raymond, with a view to "putting pressure" on Raymond and Peter to admit their involvement in the offences. No other aspect of the conversation is presently relevant.

47. The tape was made available by Peter to his legal representatives at trial and Det. Sgt Hancock was cross-examined by reference to its contents. It is now said that the tape was not tendered in the defence case because of doubts by one of Peter's legal advisers as to whether it had been "edited". Now that its authenticity is not in issue, it is argued that the tape should be treated as fresh evidence bearing on the reliability of the evidence of Det. Sgt Hancock as to statements made by Peter and Raymond and that such evidence will ground a successful appeal.

48. There being nothing in the conversation which had any direct bearing on the statements made by Peter or Raymond or on the evidence given as to those statements, the only forensic use to which the tape could have been put at the trial was to ground cross-examination as to Det. Sgt Hancock's general credit. It was in fact put to that use. In the course of cross-examination Det. Sgt Hancock admitted that the conversation took place, and admitted its contents in substantially the same terms as put to him. The cross-examination could have been conducted in a manner involving the playing of the tape or portions of it but, unless the tape was rendered admissible by s.21 of the Evidence Act 1906 (WA), it could not itself become admissible in the defence case. One requirement for admissibility under s.21 is that the witness not "distinctly admit that he made (the) statement". As the conversation was admitted by Det. Sgt Hancock there is no basis upon which the tape could become admissible in the defence case. This being so and answers having been given in the manner above outlined, there is no basis for argument that the failure to make greater use of the tape constitutes a miscarriage of justice.

49. One of the statements as to which Det. Sgt Hancock gave evidence concerned a flat which had been rented by Peter at Subiaco. Det. Sgt Hancock's evidence included the following:

"I said, 'I have been told that you were never seen

at the unit and that none of your personal effects

were ever there.' He said, 'Who told you that?'

I said, 'We have spoken to the estate agents and we

have made inquiries amongst neighbours and other

tenants.' He said, 'So I wasn't there very much.'"

50. Since the trial, affidavits have been sworn by Pauline Marie Lee, Wendy Sylvia Baker and Betty Jean Rebakis as to Peter's occupation of the flat. This evidence, it is said, casts doubt on the evidence of Det. Sgt Hancock above set out and generally casts doubt upon the evidence of police officers as to the statements said to have been made by Peter and other evidence relating to police investigations.

51. Had this evidence been called at the trial, it would have added credibility to Peter's evidence that he lived in the flat and may have detracted from evidence suggesting otherwise. However, the question of his living in the flat was, at best, peripheral. It may be that some evidence was capable of giving rise to an inference that the flat was in some way used in the commission of the offences, but, as Wallace J. pointed out in the Court of Criminal Appeal, its use "as a dwelling does not exclude its use for the robbery purpose." Moreover, nothing was advanced to suggest that this evidence was not available at the time of trial. Given this and the peripheral nature of the question of Peter's occupancy of the flat, the absence of this evidence from the trial does not constitute a miscarriage of justice.

52. In passing, we note that counsel for Peter referred to a complaint made by both Peter and Raymond that their solicitor was called by the Crown to give evidence before the Court of Criminal Appeal and gave evidence as to why reliance had not been placed upon the tape at trial. This, it was said, was a breach of legal professional privilege. However, the matter was not pursued in argument and we need say no more about it.

The Alibi Evidence

53. In the Court of Criminal Appeal evidence was adduced as to Peter's whereabouts on the day that the car was purchased. Evidence was also adduced as to the Mickelberg brothers having worked on a fence on their parents' property on a Tuesday in June. June 22 1982 was a Tuesday. As was pointed out by the Court of Criminal Appeal, the evidence fell short of establishing an alibi for Peter at the time the car was purchased and also fell short of establishing that the work in question was done on 22 June 1982. The absence of this evidence from the trial cannot be said to constitute a miscarriage of justice.

The Lewandowski Conversation

54. In the Court of Criminal Appeal evidence was given by a Mr Walsh of a conversation had well after the trial between him and Det. Sgt Lewandowski, a police officer involved in the investigation. According to Mr Walsh, Det. Sgt Lewandowski relevantly said of the Mickelbergs, "Mate, we did a mighty job on those cunts. We stitched them up properly. When (Don Hancock) fixes a brief it stays fixed." Other persons present at the time were unable to corroborate this particular statement.

55. There are a number of matters in Mr Walsh's background which reflect adversely on his credit. Additionally, the Court of Criminal Appeal found that his evidence lacked "credibility" and "cogency".

56. Once it is accepted (as in our view it must be) that no other aspect of the fresh evidence hitherto considered, and called before the Court of Criminal Appeal, can successfully ground an appeal, the only purpose that Mr Walsh's evidence could serve is to bring into question the general reliability of the police evidence given at trial. Given the matters reflecting on Mr Walsh's credit and the inability of persons present at the time to corroborate the critical statement attributed to Det. Sgt Lewandowski, it cannot be said that this evidence, if called at the trial, was likely to have led the jury to entertain a reasonable doubt as to guilt.

Peter's Conviction for Conspiracy

57. In so far as counts 2, 3, 4 and 5 related to acts done in furtherance of the conspiracy and counts 6, 7 and 8 related to the offences by which the object of the conspiracy was effectuated, a question arises as to whether the imposition of a separate non-concurrent sentence for the conspiracy does not amount to punishment being twice imposed for the same acts. See s.16 of the Code. See also The Queen v. Hoar [1981] HCA 67; (1981) 148 CLR 32, at pp 37-38, where this Court adverted to the undesirability of charging both conspiracy and substantive offences in the one indictment. Perhaps a question also arises as to whether the conspiracy did not merge in the convictions for obtaining gold by false pretences. However, these matters were not argued in this Court. Instead it was argued that, Brian's conviction for conspiracy having been set aside, Peter's should also be set aside. Further, it was put that Peter's convictions for the other offences necessarily rested on inferences drawn from his participation in the conspiracy and that the quashing of his conviction for conspiracy would necessarily result in the quashing of his other convictions.

58. In The Queen v. Darby [1982] HCA 32; (1982) 148 CLR 668 this Court held (at p 678) that "the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person." The relevant inconsistency was identified, not as a formal or technical inconsistency, but as one involving "a determination ... upon the justice of the case".

59. The application of the principle in Darby involves an analysis of the evidence as against alleged co-conspirators to determine whether the different verdicts are explicable by different evidence, the different evidence being capable of sustaining a conviction against one in the light of the other's acquittal. See Jones and Kelly (1985) 20 A Crim R 142; Mok (1987) 27 A Crim R 438 and Hurrey (1987) 29 A Crim R 42.

60. Ground 8 of Peter's grounds of appeal before the Court of Criminal Appeal expressly raised inconsistency between the acquittal of Brian and his and Raymond's convictions for conspiracy. It may be that the manner in which ground 8 was expressed led the Court of Criminal Appeal to think that Peter was relying only on a formal or technical inconsistency to be discerned from the terms of the indictment. Certainly, in this Court the argument was made by reference to the terms of the indictment but, as previously noted, a further argument was made that Peter's convictions, including his conviction for conspiracy, were unsafe and unsound on the evidence presented against him at trial. Although that precise issue was not raised in the Court of Criminal Appeal, the issue, so far as it concerns the conviction for conspiracy, is closely related to the issue whether Brian's acquittal and Peter's conviction are consistent, having regard to the evidence as presented against each of them at trial.

61. The argument that Peter's convictions were unsafe and unsatisfactory proceeded on the basis that, in substance, the evidence which directly linked him with the offences charged consisted of what we have referred to as the handwriting evidence, the identification evidence and the consciousness of guilt evidence. That evidence, it was said, was properly to be characterized as circumstantial evidence and, even if it connected him with the offences, it was reasonably explicable on a basis other than his involvement as principal. In particular, it was argued that the evidence connecting Peter with the car and of the statements made to investigating police is explicable on the basis of assistance and knowledge but falls short of establishing his participation as a principal. Moreover, it was said that there was no evidence of his actual involvement in the offences charged in counts 2 to 8 inclusive of the indictment and that, if the conviction for conspiracy were set aside, it would necessarily follow that these convictions should be set aside. It suffices for present purposes to say that, in our opinion, these matters appear to be fairly arguable, notwithstanding that in Peter's first appeal a concession was apparently made to the effect that the evidence was sufficient to support the convictions for conspiracy and defrauding the Mint.

62. The question whether Peter should now be allowed to challenge his convictions, either by reference to inconsistency with Brian's acquittal or on the basis that they are unsafe and unsatisfactory, is not without difficulty. It is convenient to approach that issue by considering the function which was imposed upon the Court of Criminal Appeal by the Attorney-General's reference of the "whole case" as against Peter.

63. Prima facie, the reference of the whole case required the Court of Criminal Appeal to consider the case in its entirety, subject only to the limitation that it "be heard and determined ... as in the case of an appeal by a person convicted". That limitation necessitates that the matter be determined by "legal principles appropriate to an appeal": Ratten, per Barwick C.J. at p 514. See also R. v. Gunn (No.1) (1942) 43 SR(NSW) 23, per Jordan C.J. at p 25, and Allen, Allen and Winter (1910) 5 Crim App R 225, at p 226.

64. It has been held that, where the whole case is referred, the court may consider matters not relied upon in the petition (R. v. Gunn (No.2) (1942) 43 SR(NSW) 27, at p 31) and matters not specified in the reference (Reg. v. Chard (1984) AC 279). On the other hand, it has been said that, as a matter of practice, the considerations may be confined to those in the petition or the reference. See Re Matthews and Ford [1973] VicRp 18; (1973) VR 199, at p 201; Chard, at pp 292-293. And in Gunn (No.2) Jordan C.J. stated (at p 29):

"In a case in which there has already been an

appeal which has been disposed of on the merits ...

the Court, in the case of a reference such as the

present, is not called upon to re-adjudicate upon

any ground of appeal which has been already heard

and disposed of, unless some new matter has come to

light which makes a reconsideration of the ground

necessary or desirable."

65. The words of s.21(a) of the Code, so far as they require "the whole case ... (to) be heard and determined", permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious: see Jackson v. Sterling Industries Ltd. [1987] HCA 23; (1987) 162 CLR 612; Tringali v. Stewardson Stubbs & Collett Ltd. (1966) 66 SR (NSW) 335; Metropolitan Bank v. Pooley (1885) 10 App Cas 210. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented.

66. In the Court of Criminal Appeal Wallace J. dealt with the question of inconsistency between Brian's acquittal and Peter's conviction by noting that Peter's appeal was dismissed on the same day that Brian's convictions were quashed. His Honour added that "(t)he court was well aware of the law involved in expressing the opinion that Peter Mickelberg was properly convicted of conspiracy." His Honour then referred to the question of inconsistency as formulated in Darby but added "(t)hat is not the instant case." Olney J. referred to Darby and stated that "(t)here is no substance in the issue raised in Peter's ground 8." Pidgeon J. agreed with the views expressed by both Wallace and Olney JJ.

67. Whatever the Court of Criminal Appeal might previously have said relating to Peter's conviction for conspiracy, it was not said in the course of an adjudication on the merits as to that conviction. As previously noted, Peter's earlier appeal was limited to his convictions for breaking and entering and setting fire to the premises from which the cheque forms were stolen. That being so, the issue of inconsistency as raised in ground 8 of Peter's grounds of appeal could not properly be excluded as vexatious or frivolous on the basis that it had already been determined on the merits after full opportunity for argument.

68. The manner in which the Court of Criminal Appeal dealt with ground 8 of Peter's grounds of appeal was, in effect, a failure to deal with the question whether Brian's acquittal and Peter's conviction for conspiracy could be said to be consistent having regard to the evidence presented against them, which question would necessarily have involved some consideration of the sufficiency of the evidence against Peter to support his convictions. To this extent the Court of Criminal Appeal failed to determine the whole case as referred to it and as required by s.21(a) of the Code.

Conclusion

69. To say that the Court of Criminal Appeal failed, to the extent identified, to determine the whole case referred to it does not mean that special leave to appeal should be granted. It is clear that the question of the safeness or satisfactoriness of Peter's convictions was not raised in the Court of Criminal Appeal. It is also tolerably clear that, notwithstanding that ground 8 of Peter's grounds of appeal expressly asserted inconsistency between his conviction and Brian's acquittal of the conspiracy, the Court of Criminal Appeal was not invited to determine that issue by reference to the evidence at trial. These considerations would normally be fatal to an application for special leave to appeal. On the other hand, the question whether the convictions are safe and satisfactory is, in our view, fairly arguable and is involved, albeit indirectly, in the question of inconsistency as raised in Peter's ground 8 before the Court of Criminal Appeal. In our view, the interests of the administration of justice warrant the grant of special leave to appeal to Peter Mickelberg to enable consideration of the questions whether his conviction for conspiracy is inconsistent with the acquittal of Brian and whether his convictions are unsafe or unsatisfactory. Before dealing further with these questions it is convenient to note that such a course carries no implications in relation to Raymond's convictions.

70. Notwithstanding that Peter's ground 8 also seeks to bring the inconsistency of Raymond's conviction for conspiracy into issue, we see no basis upon which Raymond can avail himself of that ground. In the first place, it may be doubted whether the Attorney-General's reference of the case against Peter authorized Peter to raise any question of inconsistency between Raymond's conviction for conspiracy and Brian's acquittal. Moreover, it is clear from the material to which reference has been made in this Court that the evidence as against Raymond connecting him with the cheques used to obtain the gold is sufficient to sustain his conviction for the conspiracy charged. Indeed, at no stage has it been argued otherwise. There being no evidence connecting Peter with the cheques, the evidence which sustains Raymond's conviction for conspiracy would allow that conviction to stand even if Peter's conviction for conspiracy were set aside.

71. The questions of consistency between Peter's conviction for conspiracy and Brian's acquittal and of the safeness or satisfactoriness of Peter's convictions were not dealt with by the Court of Criminal Appeal. Were this Court now to consider those matters for itself, it would have to do so without the assistance of the Court of Criminal Appeal's analysis of the evidence. In a case as plainly complicated as the present that course is undesirable. The preferable course is for those questions to be remitted to the Court of Criminal Appeal for its determination.

72. In the case of Peter Mickelberg we would grant special leave to appeal and allow the appeal to the extent necessary to allow consideration whether his conviction for conspiracy is consistent with the acquittal of Brian Mickelberg and whether his convictions, or any of them, are unsafe or unsatisfactory. We would set aside the order of the Court of Criminal Appeal to that extent and remit the above questions to that Court for determination.

73. In the case of Raymond Mickelberg we would refuse special leave to appeal.

ORDER

Application for special leave to appeal granted.

Appeal allowed in part.

Set aside the order of the Court of Criminal Appeal of Western Australia to the extent necessary to enable that Court to hear and determine the questions:

(a) whether the applicant's conviction for conspiracy is

inconsistent with the acquittal of Brian Mickelberg on

the charge of conspiracy; and

(b) whether the applicant's convictions, or any of the, are

unsafe or unsatisfactory.

Remit the matter to the Court of Criminal Appeal of Western Australia for hearing and determination in accordance with the judgment of this Court.

Otherwise dismiss the appeal.

Application for special leave to appeal refused.