R v Clark

On 23 April 2001, after a trial before Barr J and a jury, Steven John Clark, who was born in 1965, was convicted of murdering Lynette Kay Lock on 7 February 1999 at Mathoura. On 14 June 2001 the trial judge sentenced him to imprisonment for sixteen years with a non-parole period of twelve years. This is an appeal against both conviction and sentence. Background

The background to the appeal is sufficiently explained by the facts as found by the trial judge in his remarks on sentence. “The offender was invalided out of the Royal Australian Navy because of serious disabilities resulting from injuries he received in a motor vehicle accident that occurred during his naval service. He received a substantial amount of money by way of compensation and used part of it to purchase the franchise of the post office at Mathoura in about 1993. He began to manage and operate the post office. He also purchased dwelling houses in Mathoura and elsewhere. One such house, in the village of Mathoura, was occupied by the offender’s mother, Mrs. Heil. She suffered from multiple sclerosis. The deceased, Lynette Kay Lock, also lived in the village. She successfully applied for the franchise to deliver mail from Mathoura to residents of the village and certain of the outlying districts. She and the offender seem at first to have had a reasonable working relationship. Their responsibilities were independent. The offender was not responsible to see that the deceased carried out her duties properly and had no authority over her. The offender was always concerned about his mother’s state of health and there came a time when he thought it might be in his mother’s best interests to have someone such as the deceased living with her in the house. He suggested to the deceased that she board with his mother, in effect paying a portion of her rent in money and a portion in caring for Mrs Heil and doing help around the house. As time went on the offender’s attitude towards the deceased changed. It is necessary in order to explain that change to say something about his perceptions of her, her conduct and her intentions. It is not generally necessary, however, to consider whether his perceptions were accurate. Unfortunately tension arose between Mrs Heil and the deceased. It was suggested to the offender that the deceased was interfering in the friendship of Mrs Heil and other residents of the village and behaving in a domineering and possessive manner. There were other problems too. Complaints were made that the deceased was not delivering the mail satisfactorily. Members of the public did not understand that the offender was not responsible for the manner in which she did her work and brought their complaints to him. That also caused the relations between the offender and the deceased to deteriorate. The offender and his family received advice, including medical advice, that it would be better for Mrs Heil if the deceased were to move out of her house. The deceased was given a month to find other accommodation. By that time she no longer had the postal delivery franchise. It appeared to the offender as though she were making no effort to find anywhere else to live. He knew, for example, that there were vacancies at the caravan park, yet she said that she had been unable to find accommodation. I think that the offender must have suspected that the deceased would not move out of Mrs Heil’s house unless substantial pressure were brought to bear. On the morning of 7 February 1999 the offender and Mrs Heil were due to leave Mathoura to attend a barbecue at a village in Victoria about sixty-eight kilometres from Mathoura. The journey between the two villages would have taken about forty-five minutes. The barbecue was being held by a sister of the offender and the plan was that he should take Mrs Heil there. The barbecue was due to commence at about 11.30am. Two witnesses remembered seeing the deceased alive on the morning of 7 February. One, Miss Bright, was serving in a shop and attended to her some time between 9 and 10.30am. Mr Colin Robertson, a particular friend of the deceased, said that she left his house at about 9.30am. Witnesses who attended the barbecue estimated the time of arrival of the offender and Mrs Heil as between midday and 1pm. The evidence of the offender was that they arrived at about 11.30am, having stopped off on the way in Echuca to purchase sausages and for him to inspect his investment properties there. The pine forest where the remains of the deceased were found several months later was rather more than twenty kilometres out of Mathoura in the opposite direction. The jury were obviously satisfied that the offender had time to collect the deceased from Mrs Heil’s house, take her to the pine forest, kill her and dispose of her body and return to Mathoura in time to collect Mrs Heil and take her to the barbecue. DNA evidence satisfactorily identified the few remains found months later as those of the deceased. The most important witness in the Crown case was Mr Scott Dennis Brown, an old friend of the offender from their Navy days and one of the few who had kept in touch with him since his medical discharge. They saw each other a number of times each year and were in a sideline business together. Mr Brown, who lived in Canberra, used to purchase second hand computers and prepare them for resale. Some of them were sold through the offender at Mathoura. On one of the visits of Mr Brown to Mathoura the offender told him that he had driven the deceased from Mathoura to the pine forest and had shot her three times before dragging her body some way into the forest and leaving it. He left with Mr Brown some written instructions for the use of a 9 mm Browning pistol. Mr Brown kept these things to himself for a long time but eventually told the police and when a search was carried out later on three fired cartridge cases were found, appropriate for use with 9 mm bullets. The jury were instructed that they must not find the offender guilty unless satisfied beyond reasonable doubt that Mr Brown’s account of the manner in which the accused told him he killed the deceased was reliable. I conclude that the offender killed the deceased in the manner which he described to Mr Brown. His intent was to kill. I think that his motive for doing so must have been his frustration over the difficulties he was having in getting her to leave his mother’s house, coupled with his anxiety for his mother’s health and his resentment over troubles he had had because of the deceased’s failure to carry out her delivery duties properly and which were no fault of his.” Grounds 1 and 2: directions about Mr Brown The grounds

These grounds are as follows: “1. His Honour failed to direct the jury in relation to the critical evidence of Mr Brown that because of his indemnity from prosecution his evidence was unreliable within the terms of s 165 of the Evidence Act. 2. That whilst His Honour did direct the jury that if they had a reasonable doubt about Mr Brown’s evidence they would have to acquit the accused, they were not directed as to the caution referred to in s 165(2) and the weight to be given to it.” Mr Winter

The appellant has drawn attention to the fact that Anthony Dean Winter, a truck driver, gave evidence that he had seen the deceased alive on the road near Mathoura at about 12.19pm on 7 February 1999 as his truck drove past her. If that evidence were correct, it excluded the possibility of the appellant having murdered the deceased. Mr Winter had never seen the deceased before; he had identified her from photographs; and his evidence as recorded in the transcript is somewhat vague and uncertain. The trial judge directed the jury that if they thought there was a reasonable possibility that Mr Winter’s identification was accurate, the appellant had to be acquitted. The trial judge then directed the jury at some length about the factors bearing on Mr Winter’s identification and what counsel said about them.

The appellant pointed out that the trial judge said at page 21 of his summing up: “I want now to come to the evidence of Mr Brown. It and possibly the evidence of Mr Winter is the most important evidence in the trial and I am going to leave the evidence of Mr Winter till last.” The appellant submitted that since the jury had evidently rejected Mr Winter’s evidence, Mr Brown’s evidence remained as the most important evidence in the case. The summing up about Mr Brown

The trial judge said the following about Mr Brown in his summing up, which began on the morning of Friday 20 April 2001. The details are important for various reasons. One of the reasons is that since the addresses of counsel are not in the appeal papers, the trial judge’s summary of the submissions advanced for the appellant is the only guide to what they were. “In order to prove the exact manner of Miss Lock’s death the Crown relies on the evidence of Mr Brown. You will remember that when he opened the case to you three weeks ago the Crown Prosecutor told you that the evidence of Mr Brown would be critical to the Crown case and he said the same thing in his closing address to you yesterday. It is only Mr Brown’s evidence that can prove that the accused did the act causing death, namely, the shooting of Miss Lock. It is only Mr Brown’s evidence that can prove that when he did the act causing the death of the deceased the accused intended to kill Lynette Lock or at least to do her really serious injury. As I have told you, the Crown must prove both those matters beyond reasonable doubt and by putting the matter in that way at the start of this trial, that the accused shot the deceased, that is something the Crown has to prove. You may be tempted to see the resolution of this trial as depending on which of Mr Brown and the accused is telling the truth. Mr Brown swears that the accused confessed to him that he had shot Miss Lock and the accused swears that he said no such thing. You may during the course of your deliberations decide which of the two is telling the truth. However, if you regard the matter only in that simple way, you may be misled and forget what I have already told you, namely, that it is for the Crown to prove its case beyond reasonable doubt; no burden of proof lies on the accused. It follows that before you can find the accused guilty you must be satisfied beyond reasonable doubt that Mr Brown is a truthful and accurate witness insofar as he tells you that the accused confessed to him that he shot Miss Lock. I will come back and deal with Mr Brown’s evidence in due course … .”

Later he said (at pages 21-27): “Mr Brown had known the accused for years, they had been in the Navy together as young men. They had remained friends after they both left the Navy. I think Mr Brown left somewhat earlier than the accused. The accused had to leave the Navy when he was invalided out after that very serious accident he had on the motor bike. But whereas it appears that a lot or most of the accused’s friends lost contact with him, Mr Brown was one of those who remained in touch with him. Mr Brown was in the computer industry in Canberra and he had the sideline of apparently buying up old government computers, re-conditioning them and selling them and he got the accused to sell some of them through the post office at Mathoura. They saw each other regularly; they stayed at each other’s places. At some time during the period of two weeks after 7 February 1999, the day on which Miss Lock went missing, Mr Brown and the accused went to the Middle Pub in Mathoura. It was called the Pastoral Hotel and Mr Davis was the licensee. There is no dispute that they were both there. There is a lot of dispute about the circumstances in which they were there. One of the things you are going to have to consider is whether things did happen in precisely the way that Mr Brown says. He says that there was first a drink in the bar, in the public bar or a bar anyway. He had no more than one drink there. They then went in for dinner and they had more to drink for dinner. Then they walked home and then they relaxed at the accused’s house and at various stages of that evening the accused said things to Mr Brown. About what the accused said to him, Mr Stratton read a portion of Mr Brown’s evidence yesterday and said that it was gobbledygook. I will read a number of passages to you including that one and you remember the evidence of Mr Brown and the manner in which he gave it. The Crown made a submission to you that you would extract from what he said eleven different things that the accused told Mr Brown. I will come back to them when I have read some passages of evidence to you. I am going to read part of the transcript which follows on from a description that Mr Brown had given about where they were on that evening, going to the pub, going in to dinner, walking home, at the accused’s house. [Page 315] Line 3: ‘Q. On the basis of the conversation you had with the accused that evening, are you able to say what he told you about the physical manner in which Miss Lock met her death. A. Yes. Q. What did he say to you? A. He took Lynette Lock for a drive in the car, drove out to the bush -- Q. Did he tell you where that bush was? A. He mentioned places and directions but to me they were meaningless. And he asked, he got her out of the car, asked her out of the car, he said she was nervous so he insisted she got out of the car, she got out of the car and that was when he produced the gun, the weapon he had. Q. Did he tell you what sort of gun that was? A. Yes, a 9 mm Browning pistol that he had, he then – he said she looked at him in disbelief and that was when he shot her in the abdominal area and then he said she like started to walk towards him and that’s when he shot her again and then she went down and he said he shot her again. Q. And did he say anything concerning what occurred after she had fallen to the ground? A. He said a couple of things. He said when she was, that she was a tough bitch, like she took a bullet and she is still coming towards him, he also said he didn’t know if she was coming towards him or trying to get to the sanctuary of the car but she was coming towards him and he said that surprised him and, yeah, he made comment that she was one tough bitch. Q. And after he had shot her on the third occasion, did he say what occurred next? A. I recall him telling me that he then dragged the body a long distance from the murder scene, that he was quite surprised that he managed to get the body – getting the body so far away from the murder scene, given his disabilities and then he told me how he like dug a shallow grave, just cleared away the area with his hands and lightly covered the body. I recall that because I was asking some questions about his – yeah -- Q. And over what you told us there were a number of conversations on this evening at various points, when you were speaking with the accused at his home, whereabouts was the conversation occurring? A. We went towards the back of his property, his property goes back a little way and we got a couple of chairs and were in an almost open area at the back of his property with very little around us, we pulled up a chair each and talked there. Q. You told us that the accused mentioned the gun that he had used. A. Mmm Mmm. Q. Was there anything said concerning where that gun had come from? A. Nobby told me that he acquired the gun on the black market and that the gun had been returned to the black market for safe keeping until everything had settled down and then we would get the gun back. Q. Was there any conversation on this evening concerning why he had shot Miss Lock? A. The why was what we had discussed at the dinner table to some degree but the why wasn’t so important so much, it wasn’t something that was discussed at length, this was something that had happened, later on we discussed how there was [or] how he was feeling as a result of it back at his place.’ Page 316 line 47: ‘Q. Did he tell you how this event had affected him? A. Yes, yes, he told me it had affected him very much, he was having difficulty sleeping, a difficult time sleeping and he would feel her presence as if she was around and he was finding it very difficult at night and he was a bit scared from that as a result of experiencing that. Q. Did the accused on that evening seek your advice about any matter? A. Yes, he sought my advice on what to do. Q. What – how did he come to seek your advice about what to do? What did he say to you? A. He said to me, I’m not sure exactly what he said to me to ask my advice, he may have just simply asked what he should do, I don’t recall the conversation leading up to me giving the advice. Q. Did you give him some advice on this evening? A. Yes, I did. Q. What advice did you give him? A. I told him that to continue on as if, as normal, as if nothing has occurred. Q. Yes? A. Don’t act suspicious about it because if you act suspicious about people would wonder why you were so concerned about it, that was the type of advice I gave him. I gave him advice to help him to not get caught, is the advice I was giving him to do for the crime he had committed.’ The conclusions the Crown asks you to draw from that and the other evidence you know about are as follows: The accused asked Miss Lock out for a drive on the morning of 7 February. On the drive he insisted that she get out of the car. He produced a gun. It was a 9 millimetre Browning pistol. He shot her in the abdomen. She started to come towards him and he shot her a second time. She fell and after she fell he shot her a third time. He dragged the body for some distance. He was surprised or pleased at having been able to do that, given his disability. He dug a grave or cleared the ground, cleared debris from the ground with his hands. He had obtained the gun on the black market. The events had affected his sleeping. He sought Brown’s advice on what he should do and Brown advised him to act normally. Let me go back to the two things that the Crown has to prove in order properly to have you return a verdict of guilty. The first is that the accused did the act causing death. If the account that Mr Brown gave is a reliable one, the accused shot Miss Lock three times with bullets from the 9 millimetre Browning pistol and, as a result of that, she died. If he did that, if you are satisfied beyond reasonable doubt that the accused did that, then he must have done the act causing death. Secondly, the Crown must prove that when he did the act causing death the accused intended to kill or intended at least to do really serious injury to Miss Lock. In this second element you can only come to a conclusion about the intention of the accused when he fired the shots, if you find that he fired the shots, by inference. You cannot get inside people’s heads and know what they are thinking. You can, however, infer what they must have intended by what they did. If the accused ordered Miss Lock out of the car and shot her three times, you might think that it is not difficult to infer that he intended at least to do her really serious injury and probably to kill her. Mr Stratton has not made any submissions to you to the effect that, if you do find that this account of Mr Brown is reliable, you cannot be satisfied that the accused had the relevant intent at the time. This is not the ground upon which this case has been fought. I tell you this because I want you to have in mind what I have already told you about the care that you need to take in drawing inferences from proved facts. Anyway, as I said to you before, the Crown cannot prove its case unless you accept as reliable the evidence of Mr Brown at least insofar as he told you that the accused confessed to him that he shot the deceased three times. If you have a reasonable doubt about that, then you will have to find the accused not guilty. I said to you during the course of the evidence – it was after one of the witnesses had volunteered some expression of opinion about the accused; I won’t repeat it to you because I don’t want to reinforce it in your minds – that suspicion is not a substitute for proof. You will grant me that there is plenty of suspicion in this case, but that is not enough. The Crown has to prove that the accused said these things to Mr Brown on that occasion at the Middle Hotel, at least insofar as Mr Brown says that the accused told him he shot the deceased. Now, a number of criticisms have been made about Mr Brown and I am going to come and deal with them. It’s twenty past eleven, I think I will take the morning tea adjournment now but just so that you can understand what is happening, I have drawn your attention now to the central piece of evidence in the case and what I am going to do is go over the rest of the evidence, things which may be argued to support the reliability of Mr Brown’s version of events and things which may be put against the argument for the reliability of that version. And I will try to deal with the issues logically and remind you of the arguments of counsel about them.”

After the morning tea adjournment, and after correcting what he had said about Mr Brown leaving the Navy before the appellant, the trial judge said (at pages 29-44): “Now, the next important piece of evidence from Mr Brown relates to a conversation he says took place on the first weekend of 2000. The accused was in his house. Also present were Mr McKlaren and, of course, Mr Brown’s wife, Kim Brown. Neither Mr McKlaren nor Kim Brown claims to have taken any part in or to have been present at the conversation proper, if I can put it that way They were both there, however, when something began to be said. The evidence of Mr Brown and Mr McKlaren was to the effect that the accused said that some remains had been found in the forest and they were thought to be the remains of Lyn Lock. The evidence of Mr McKlaren and of Mrs Brown is that Mr Brown reacted in a shocked way. Remember the way that he described that? Mr Brown told you he was shocked. He told you then that a conversation ensued between him and the accused. The accused gave evidence about this as well. He says I think that some conversation took place but he says that it was Mr Brown who raised the subject by asking whether remains had been found. Well, that is a matter of fact for you to determine. Mr Brown said that he was suddenly aware that remains had been found. This was a matter of some significance to him because he had been, he says, keeping that secret to himself al this time. He hadn’t told the police. Brown hadn’t told anybody: ‘… I was aware suddenly that there had been remains found and when I say aware that there had been remains found, then I reacted and wanted to know how long ago. Q. In what way did you react when you were given that piece of information? A. I was quite scared and panicked.’ He says the accused also told him that wild animals had got to the remains and there wasn’t much left and they couldn’t find her head. I need not read to you from the transcript, I don’t think, but the tenor of Mr Brown’s evidence after that was that it became apparent to him that the accused had known for some time that these remains had been found and were thought to be the remains of Miss Lock and yet hadn’t told Mr Brown. Mr Brown said it caused some consternation in his mind. It was the sort of thing he would have expected the accused to tell him given that he had confided this secret in him some eleven months earlier. He said for that reason he was reluctant to go to the police. I will come in due course to deal with Mr Stratton’s criticisms of Mr Brown but these matters are relevant to those criticisms. Mr Brown is attacked as an unreliable witness for a number of reasons. One of the things Mr Stratton asks you to take into account is that Mr Brown never went off to the police and told them about this, even though he knew that he was concealing a serious offence or committing some kind of offence of that kind. There was some criminality in his not informing the authorities about what the accused had told him, however precisely that may be described by law. At least Mr Brown knew that. Mr Brown, you remember, said in the first place he wasn’t going to tell anybody because it would simply be his word against the accused’s word. There was no body, there would be a report, nothing would result, and the accused would know Mr Brown had spilled the beans, betrayed his secret. But then in January the following year Mr Brown did know that there was a body, or at least remains, some hard evidence, yet he still did not go to the police and he didn’t go to the police for another two months. He went, I think, on 11 March, the date of that recorded telephone conversation, and that is relevant to this question of Mr Brown’s honesty and straightforwardness in keeping this matter to himself. The next body of evidence about Mr Brown concerns the will and what I will call the Browning instructions. It is not the next thing chronologically. I have taken you from the conversation at the pub in February 1999 to the conversation in Canberra in January 2000. We are now going back to the Easter of 1999. This is at page 318: ‘Q. When did you next see the accused after that conversation?’ And that conversation is the one at the pub in which the accused told Mr Brown he had killed Miss Lock. ‘A. I’m not sure exactly when that was, the next time we saw each other. Steven come to my house around Easter. Q. When he came to your house at Easter, did he stay with you or just visited? A. I am pretty confident he stayed a night. Whether that was then, I’m not sure. Q. When he came to your house did he give you anything? A. Yes, he did. He, during that period he gave me two pieces of paper. Q. I show you this document which is marked – can you [tell] me what those two pieces of paper were? A. One was a will, his will. Q. What was the second one? A. The second piece of paper was a cleaning instructions for a 9 mm Browning pistol.’ Well, those documents came into evidence, the copy of the accused’s will is Exhibit T and the instructions for the 9 millimetre Browning are Exhibit O. Both of those documents bear the fingerprints of Mr Brown and of the accused. There seems to be no dispute about that. Both fingerprints on both documents. Having taken you back to 1999, I will bring you forward now to March 2000. Mr Brown knew that the police were going to call on him. Apparently the reason for that was some report suggesting that he himself had been in Mathoura in a station wagon at the time that the deceased disappeared. It turns out that there was no substance in that report and it is not put forward at this trial as having any credibility but it seems to be the reason why the police wanted to speak to Mr Brown. That is a matter of some importance, as was apparent from one of Mr Stratton’s submissions yesterday. At any rate, the accused, who was in contact with Mr Brown, told him the police wanted to talk to him, so Mr Brown knew that the police were on their way. When they did come he gave them an account of what happened. However, there was this telephone call of 17 March. You have a transcript of it, it is Exhibit V. After Mr Brown gave an account to the police, that was, of course, enough for the police to arrest the accused and that is what they showed every intention of doing. Mr Brown apparently asked the police whether he could have this telephone conversation with the accused in order to explain to him why he had acted as he had done, and that is his explanation of the meaning of the conversation, a transcript of which is Exhibit V. An issue arises about the meaning of that telephone conversation, and I will come back to that in dealing with the criticisms of Mr Brown. The last piece of evidence directly relating to Mr Brown is this finding of the three fired cartridge cases on the road beside the pine plantation in the Millewa Forest in March. It is relied on very largely by the Crown as supporting the accuracy and reliability of Mr Brown’s evidence because, the Crown submits, it was not until Mr Brown told the police that the accused had told him that he had shot Miss Lock that the police realised that they were looking for a firearm or signs of shooting or cartridge cases or whatever. The condition of the remains of the body of course gave no clue as to how that person had died. A very strong attack has been directed by Mr Stratton on the evidence about the searching of the forest. A particularly strong attack was made upon Inspector Dunn who, although he wasn’t apparently the officer in charge of the search, was a senior man who had some responsibility for directing others in what they should do. You remember that when Mr Stratton opened his case to you at the beginning of the trial he made reference to the finding of the cartridge cases in March and I think he used the word ‘amazing’ and he says, he submits to you that it’s quite a remarkable thing that these cartridge cases were found in March when they were not found in September. When assessing the reliability of the evidence of a witness you should pay close regard to the demeanour of that witness as you observed the evidence being given and you should weigh the evidence of any witness for what you regard as internal consistency or inconsistency but you are not restricted in that way because you can judge the reliability of a witness by reference to all the evidence in the case and that is a direction which has particular relevance to the evidence of Mr Brown. The Crown relies on pieces of evidence which it submits are independent of Mr Brown which it submits show that he was telling the truth in his evidence about the accused’s confession. There are pieces of evidence independent of Mr Brown that Mr Stratton relies on as sufficient, he submits, to raise a reasonable doubt about the reliability of Mr Brown’s account. But let me deal with the evidence of Mr Brown in relation to the topics that I have so far dealt with. Namely, that the confession – the alleged confession I will call it – of February 1999, the handing over of the will and the Browning document, if that is what happened, the following Easter and the conversation of January 2000 and all the evidence of what Mr Brown did and, just as importantly, what he did not do over the ensuing months. It might be appropriate to pick up the subject I last mentioned, that is the evidence of the search, evidence of the search in the forest. Mr Stratton, you remember, was addressing you about this yesterday. He criticised very strongly the evidence of Inspector Dunn and it does seem, to use an expression of opinion on the facts, but it does seem that his evidence is not entirely in kilter, if I can put it that way with the evidence of other witnesses who know something about it, for example Mr Fawns, I think, who was from State Emergency Services – anyway a non-police agency who volunteered because he had the experience of using a metal detector. He was handed the metal detector, he assembled it and directed the search. The search took place over 13 and 14 September. It did not include the road, it was confined to the taped area, photographs of which you see in Ex B and an area some – I have forgotten – hundred metres, couple of hundred metres distant, it was some kind of hollow or depression that was searched. He said that some things were found, nothing of interest, bottle tops and bits of wire. He said he searched on one day only, that was the end of it. Inspector Dunn said that he searched on one day and came back the next day and searched [the] whole area again. I do not think that Mr Dunn mentioned anything about the searching of the depression. Mr Stratton says you cannot rely on his evidence. Mr Stratton also criticised Mr Dunn and said he was filling in a gap when he made a statement later on some time in 2000 in which he said that the road was not searched with the metal detector in September 1999. Mr Stratton says the only reasonable inference is that Mr Dunn had been told by other police officers that it was necessary to establish that that happened. You remember, after the accused spoke to the police, Detective Senior Constable Smith was concerned that no search had apparently been carried out for the cartridges and I think he spoke to, it was Detective Smart, yes, spoke to Detective Smart and apparently it was in that way that Detective Smart went back alone in March, swept the road, found the three cartridge cases which you have in evidence. Mr Stratton’s central submission on this is that the evidence is so suspect that you cannot regard it at all as boosting the evidence of Mr Brown. He says it is unbelievable that so many people searching – and the evidence was quite a lot of people, all available police officers, were called in from Deniliquin, State Emergency people were called in, I think, perhaps forestry people as well, whoever could be brought in was brought in and you had in excess of 21 people searching at any one time. The search took place over several days, the road was searched. Mr Stratton submitted to you yesterday one half of the broken dentures was found on one side of the road and the other half on the opposite side of the road. They could hardly not have searched the road as well. Mr Stratton invited you in view of his general unreliability to ignore the evidence of Inspector Dunn and he relied upon the evidence of the first officer to give evidence, in fact Constable Watson, who said that as far as she was concerned the whole of the area on both sides of the road were searched and the submission based on that is that you would most certainly have expected the police to find those fired cartridge cases even though they might not have been looking for fired cartridge cases as such during that search, so long and sustained was the search. So the submission is that there’s something very strange about the way those cartridge cases were not found and then were found. The Crown submission is that they were there all the time. The police didn’t know they were dealing with a shooting in September. The fact that the body, the remains gave no clue about the manner of death. You can accept at face value the evidence about the parts that were searched with the metal detector and those parts did not include the road. The scattering, the dispersal of the fired cartridge cases to the positions in which Detective Smart says they were found in the following March is explained by the evidence of the grading of the road which took place in October, that is between the two dates. They seem to be the submissions on the fired cartridge cases. I have already touched upon what Mr Brown says was his reason not to report this matter to the authorities. If he is telling the truth he knew about this shooting in February 1999. He gives as a reason for telling nobody about it, the reason that I have already summarised, that if he reported it nothing would result, in his view the accused would not have been arrested, there was no body. It was word against word. The accused would know that he had been betrayed by his friend and there might be trouble for Mr Brown from that quarter. Then, of course, the remains were found, although they were found in September and Mr Brown didn’t learn about that until January. He says there still wasn’t enough for him to go to the police or at least he puts it this way, that although there was now a body, he believed that the accused had been holding out on him, knowing something, keeping it from him and he wondered about the accused’s motives and that was sufficient reason for him to continue to keep quiet about it. A strong criticism was made about Mr Brown’s veracity in that claim yesterday in Mr Stratton’s submission to you and you will remember that he said that, whatever you think of Mr Brown, you would not think of him as a reluctant witness, he gave his evidence with some relish. I don’t think they were Mr Stratton’s words but that, I think, summarises the submission. He was rather eager to give his evidence. Well, that’s a submission which you should consider, give it the weight that you consider it deserves, as with all counsel’s submissions and Mr Stratton’s submission to you is that it simply does not explain why, if he is telling the truth, Mr Brown did not go much earlier to the police, certainly by the time he knew that remains suspected to be those of Miss Lock had been found and that is January 2000. The Crown relies upon the evidence of the will as showing acknowledgement by the accused that he had reposed some weighty serious secret in Mr Brown and that was perhaps something done in acknowledgement of that and of what I will call the Browning document as supporting Mr Brown’s evidence that the accused told him that he had the 9 millimetre pistol, that he had got rid of it for the time being but would recover it in due course and would he look after that document for him. The response to that is that the accused – and the accused gave evidence about this, that it was not his document, he had not seen it until his legal advisers showed it to him – he could easily have handled the piece of paper in the shed of Mr Brown in Canberra which he frequently visited. In fact whenever he would go there he would go into the shed because that’s where the I T equipment was kept and where the materials relevant to their sideline business were kept. He gave a demonstration in Court – now, it doesn’t really matter what you think of that but it’s pretty obvious really that a person’s fingerprints can be put on a document by a casual handling and the accused says: Well, I remember nothing about this, I could have handled his stationery, he could have used a piece of – Mr Brown could have used a piece of stationery which he knew I had handled or got me to handle it in some other way, it could be easily done and I suppose that that is right, but the question for you is whether that might have happened. I think no submissions were made to you yesterday about the will but the accused’s evidence about that was: Well why should I not. He made reference, I think, in his evidence to his former wife. I suppose I am allowed to say this: As a matter of law divorce doesn’t bring a will to an end so, if you do get divorced, you need to think about making another will unless you want your former wife to get the estate and that goes for former husbands as well, so that might sufficiently explain why the accused should have been making a will anyway at that time, having had this acrimonious breakup with his wife. Well, the only question that then remains is the choice of beneficiary. The accused says: Well, why shouldn’t I have left it to him? You would not draw any adverse inference from that fact alone. To come back again to the topic of Mr Brown’s silence. Mr Stratton submits to you that Mr Brown was not afraid and that is demonstrated by the fact that all the time he was continuing to go back and stay with the accused in Mathoura. You remember the submission yesterday. He could easily have put the accused off and said: ‘Look, I have got to go through Deniliquin.’ That is the kind of submission. Yet Mr Brown and his family on one occasion went back and stayed in the accused’s house. Would Mr Brown do that if he had the kind of fear of the accused that he told you that he had, such a fear that it stopped him from going to the authorities? That brings us I think to the telephone conversation which is recorded, Exhibit V is the transcript of it. I need now to take you back to something the accused said about this in dealing with the events of February 1999. He said to you in his evidence in clear terms that he had never told Mr Brown that he had killed Lyn Lock and this question and answer appear at page 498 line 29: ‘Q. Have you got any recollection at all of ever saying to Mr Brown at the hotel, ‘I killed Lyn Lock’ or words to that effect? A. Never, never said those words but one weekend he, when he was there, there was a hell lot of joking and jovial stuff going on and I was joking around and I wasn’t denying the fact some incident happened, no-one knew what it was so I just joked along with them and then as soon as we got to the front door and as we were leaving and he turned to me and said, ‘Well, is that what happened? Did you do it?’ And I just thought, you know, this is my best mate and he is questioning me like this so I turned around and said Yes because nothing else jumped into me head so I said Yes.’ Look at the transcript, Exhibit V, of the telephone conversation of 17 March 2000. The alternative submissions about that are that it contains references to past relations between the accused and Mr Brown, including that version of events which the accused, through Mr Stratton, asks you to accept as reliable. Or whether, as the Crown says, what is really being referred to here is the confidence which the accused unfairly placed in Mr Brown and put him in that difficult position of having to keep quiet about it. They are the alternative submissions. Of course, it is the telephone conversation between two men who have spoken on many occasions before so you don’t get a precise spelling out of the meaning of what is said. Shorthand is used the way it is between people who speak to each other regularly and know what they are talking about but it is a question of the meanings you get from the conversation. You heard the alternative submissions about the meaning. The Crown Prosecutor says this supports Mr Brown. Mr Stratton’s submission is that you look at the conversation, it doesn’t bear the meaning contended for by the Crown at all, from first to last pretty it is vague, and insofar as it relates to the specifics, it can be relating to the piece of evidence I have just drawn to your attention. There are other pieces of evidence that the Crown says support the Crown case generally and make it more likely that Mr Brown is telling you the truth. In particular, the Crown case relies on the evidence of Mr Wellington as supporting what the Crown says in two ways. First, it shows that the accused was in a remote place close to where the body of Miss Lock must have been not long after she was killed. That proximity of time and place and the remoteness of the place and the fact the accused had apparently no reason to be there implies, the Crown says, that the accused knew that the deceased’s body was there. The Crown uses the evidence in a second way as well because when the accused was asked whether he had been down the Tocumwal Road, he told a lie about it, the Crown says, and I will deal with that topic in due course. Mr Wellington’s evidence is as follows. He and his friend, Mr Goss, had been fishing and he said by reference to the diary page of Mr Goss that went into evidence that it was 12 February 1999, that is the Friday after Miss Lock went missing. He marked the plan of the cemetery, I’m sorry, of the pine forest. I need not show you that. The point is that he and Mr Goss were headed back into Mathoura, they had just put the pine plantation behind them, they were within a kilometre of the pine plantation heading west and this is at page 156, line 36: ‘… After you got back on to the Tocumwal road did you see a vehicle coming in the opposite direction? A. Yes.’ A little later: ‘Q. When you were approaching that vehicle what sort of vehicle were you in? A. A silver station wagon. There seems to have been some misunderstanding: Q. Was that the vehicle you were in? A. No, I was in a Mazda brown utility. Q. The vehicle that you saw approaching, what sort of vehicle was that? A. A silver station wagon. Q. Did you recognise that vehicle? A Yes. Q. Who owned that vehicle as far as you were concerned? A. Mr Clark.’ Now, Mr Wellington had lived in Mathoura for years and so by that stage had the accused so they knew each other, and Mr Wellington stated that he recognised the accused’s vehicle. ‘Q. Were you able to recognise who it was that was driving this vehicle? A. Yes, to the best of my knowledge, yes. Q. Who do you say was driving that vehicle? A. Mr Steven Clark. Q. That is the person who was the post office manager in Mathoura? A. Yes.’ He said it was about 12 February, in fact as we know it was the 12th. That comes from the evidence of Mr Goss. You remember Mr Goss didn’t claim to recognise the driver of the car. That evidence comes only from Mr Wellington.”

The trial judge then gave a lengthy warning about identification evidence with special reference to Mr Wellington, about the use of lies, and about other supposed instances of the appellant’s consciousness of guilt.

At page 55 of the summing up the Crown referred to warnings necessitated by the Evidence Act 1995, s 165(1)(b) and (2), and there was some debate about this.

After lunch, the trial judge said (page 57): “Ladies and gentlemen, a few corrections, I told you just before lunch that the accused’s response to Mr Brown’s evidence about the conversation about the remains being found, the conversation that takes place in Canberra on the first weekend of 2000, was that it was Mr Brown who asked whether any remains had been found. I wasn’t strictly correct about that. What the accused says is that Mr Brown asked what was happening. He didn’t make specific reference to any remains but it was that question which prompted the accused’s response that these remains had been found. The next thing is that I told you that fingerprints had been found on the will. In fact, the will wasn’t tested for fingerprints. I am sorry, it is not a matter of any consequence I think. The fingerprints are important so far as the Browning instructions are concerned and Mr Brown’s and the accused’s fingerprints were both found on that document but the will wasn’t tested for fingerprints.”

The trial judge then returned to issues relating to lies and consciousness of guilt and to evidence about the timing of events on 7 February 1999. The trial judge then said (pages 68-72): “Let me come now and just summarise the criticisms made about Mr Brown. I have dealt with some of them already and I am just going to deal with these in a summary way. In cross-examination of him Mr Stratton suggested to him that his story was getting better as time went along. It was suggested, for example, that never before this trial had Mr Brown told anybody that the accused had told him that he had cut off the deceased’s head, and reference was made to two previous occasions when Mr Brown had given an account of these things. The first was in his statement to the police. The second was in his evidence at the committal proceedings. Before I go on I should say something about committal proceedings. You may not be familiar with the way that criminal trials are brought in this State but you should know this. Accused persons who are sent to the Supreme Court for trial are ordinarily first dealt with by a magistrate sitting in the Local Court. The magistrate conducts an administrative enquiry. It is not a legal proceeding at all. It is an administrative enquiry to see whether the evidence justifies sending the accused for trial. If in the opinion of the magistrate the evidence is sufficient to justify a trial then, as we say, the magistrate commits the accused for trial and this is called a committal proceeding. Obviously in this case the magistrate took the view that there was evidence which justified a trial. But that is all the committal proceedings is and all that it was in this case. The magistrate makes no final determination. The magistrate never considers whether the person he is sending off for trial or she is sending off for trial is guilty. So, you see, the magistrate’s decision to commit cannot bear upon your decision in this trial. It is your decision that matters, not the opinion of a magistrate or anybody else. At page 372, Mr Brown was being cross-examined on the second day of his evidence: ‘Q. One of the things you said yesterday was that the accused told you back in February 1999 that he had cut the deceased’s head off; remember that? A. I said -- Q. Remember saying that yesterday? A. He had, he cut her head off? Q. That’s what you said yesterday? A. Yes. Q. You have never said that before, have you? A. I have said it in a round about sort of way but I have never said it straight out like that. Q. What do you mean a round about sort of way? A. At the time that he told me that was the time I was saying I didn’t want to hear any more, I didn’t want him to tell me any more, I didn’t want to hear any more. Q. You have not said before the accused told you he had cut the deceased’s head off? A. I have said before I am quite confident I have said that in the past.’ Well, if he had said that in the past, were there any statements to the police or in his evidence before the magistrate, the Crown would have drawn it to your attention and the Crown did not so you can take it that the first time he mentioned that in terms was at this trial. The next bit of cross-examination was about his statement about the accused saying that he dug a shallow grave. This is at page 375, line 33: ‘Q. Perhaps if I start the question again. You told us yesterday that Mr Clarke told you back in February 1999 he dug a shallow grave for the body, remember that? A. Yes. Q. That is the first time you have told anybody that, isn’t it? A. Well, they are the words I used. I think he told me what he had done he scraped away the loose covering on the top of the soil or dirt or whatever it was, loose, it was shallow, it’s like, he dug a shallow -- Q. I am suggesting to you when you said that yesterday in evidence that is the first time you have said it? A. It was discussed at the committal hearing. What did I say then? Q I am suggesting you did not say that at the committal hearing? A. I would have said something along similar lines if I did not say those two words ‘shallow grave’.’ Then there was a feature to which I have already drawn your attention this morning and that was that significant parts of this conversation at the pub in February of 1999 were made over a beer, one beer, before the two went into the dining room or the bistro. It was pointed out to Mr Brown that he said to the police that he was affected by alcohol. All these criticisms of Mr Brown are put to you by Mr Stratton and the submission is that, for one reason or another, his evidence is unreliable. It is suggested that he had more to drink than he says, that he had more to drink than the accused. He says that he was careful about the amount he drank because of the effect it might have upon him. Attention is drawn to Mr Brown’s smoking marijuana when he got back to the accused’s house and the submission Mr Stratton makes to you is that, bearing all those matters in mind and bearing in mind the way he gave his evidence, you would doubt whether he really was giving an accurate version of whatever it was that the accused said to him that night. I said I would come back and deal with that little bit of evidence that Mr Stratton read to you yesterday. It is this: ‘Q. As best you recall what was that conversation while you were in the dining room? It had been suggested that something significant was said in the dining room? A. We talked about, basically went through quickly how and why and how did he do this, like I was a bit surprised and he went through – we – to be honest the detail about what we talked about at different places, exactly where we talked about this and exactly where we talked about that and later on we had other conversations as well, I don’t know exactly what we talked about all the time specifically here did we talk about that, there specifically did we talk about that, I am aware of the conversations we had and sometimes I remember exactly where.’ Mr Stratton’s submission is that it’s an example of the inexactness, if I can put it that way, of Mr Brown’s evidence. It leads you to doubt the accuracy of his evidence. Mr Stratton said that Mr Brown – he asked you: Has he an ulterior motive? Is he lying or at least exaggerating or is he just confused and it was about that time he read you that passage and he referred then to the alcohol which he submitted you would accept Mr Brown had on that night and the marijuana and he says essentially Mr Brown’s recounting of events is mixed fact and fiction. He drew attention to the money dispute, the $2000 owing, and to the fine which it was submitted the accused had to pay because of something Mr Brown had done. Of course there are two sides to that story and you know Mr Brown’s version of that and the final submission about Mr Brown was that he was lying or at least exaggerating or confused. If you think there is substance in this, of course, it doesn’t matter which one or more of those. If you have a reasonable doubt that his evidence is accurate and reliable insofar as he says that the accused told him that he shot the deceased, then that raises a reasonable doubt on the whole of the Crown case and you must find the accused not guilty.”

The trial judge then summed up about Mr Winter.

When the Court reconvened on Monday 23 April 2001, after the parties had had a weekend to reflect on any deficiencies in the summing up, the trial judge said (pages 80-81): “I should like to remind you of a few of the important things that I said to you on Friday. The first is that it is for the Crown to prove its case, not for the accused to prove anything. The Crown has to satisfy you beyond reasonable doubt of two things, first that the accused killed Miss Lock, secondly that when he did do so he intended at least to cause her really serious bodily injury, either that or kill her. I told you that the only evidence that will permit you to come to that conclusion comes from Mr Brown and that you must accept him as reliable, at least insofar as he says to you that the accused confessed to him that he had shot Miss Lock. So you do not have to accept everything Mr Brown says but you must accept beyond reasonable doubt that particular part of his evidence going to what he says is the accused’s confession to him of the shooting on the night that they were in the middle pub in Mathoura. I also told you that the Crown cannot prove beyond reasonable doubt that the accused shot Miss Lock unless it also proves beyond reasonable doubt that Mr Winter was mistaken in his opinion that the person beside the car beside the Cobb Highway was Miss Lock. I told you and I remind you that when you are assessing the reliability of any witness, and this refers not only to but particularly to Mr Brown and Mr Winter, you are not restricted to a consideration of the evidence of that witness in isolation but you can and you should assess it by reference to all the evidence in the case.” The need for leave

Counsel for the appellant at the trial was Mr B Stratton QC. He was called to the Bar over thirty years before the trial. He took silk more than fifteen years before the trial. He was a specialist in criminal litigation and an extremely experienced trial lawyer. A reading of the transcript suggests that Mr Stratton conducted the defence with energy, resource and capacity. He did not, however, ask for the warning which, according to Grounds 1 and 2, should have been given by the trial judge. This was despite the fact that the summing up commenced on Friday 20 April 2001, and that the trial judge asked counsel before the morning tea adjournment and before the luncheon adjournment whether further directions were required. Before the morning tea adjournment Mr Stratton noted the factual error about the appellant’s Navy service, and the trial judge corrected it. Before the luncheon adjournment Mr Stratton raised a factual matter with which the trial judge dealt after lunch.

Before the jury returned after lunch, while Mr Stratton was submitting that a strong warning about identification evidence was not called for in relation to Mr Winter because he was not an accused person, counsel for the Crown referred to s 165(1)(b) and (2) of the Evidence Act 1995. At the end of the day the trial judge invited further directions from counsel, and none were sought. Nor were any sought on resumption after the weekend on Monday 23 April 2001.

It follows that leave is needed pursuant to r 4 of the Criminal Appeal Rules in relation to Grounds 1 and 2. The fact that the warning was not requested is not of itself fatal either to the grant of leave or to the allowing of the appeal. It does, however, point strongly to the view that if so experienced a criminal lawyer as Mr Stratton (or indeed counsel for the Crown) did not think it necessary, the summing up was not defective. Indeed, it points to the view that Mr Stratton either had a particular purpose for deliberately choosing not to ask for a warning, or did not perceive any danger which a warning might alleviate. It is not easy to second-guess such a judgment formed in the thick of the fight by an experienced counsel far more sensitive to the particular forensic environment and the likely reactions of the particular jury than an appellate court could ever be. The summing up: one criticism

Apart from the complaints about a s 165(1)(d) warning set out below, the only written criticism which the appellant made of the summing up was as follows: “His Honour made reference to the fact that counsel appearing on behalf of the Appellant was critical of the evidence of Mr Brown whom he said was an unreliable witness (page 30). Some reliance was placed upon the fact that Mr Brown never went to the police and told them about his involvement and that he knew he was concealing a serious offence. His Honour directed the jury simply that as Mr Brown did not go to the police until 11 March 2000 was relevant to his honesty and straightforwardness. It is submitted that this direction did not go far enough.”

In fact, as appears from the material quoted from page 30 of the summing up, the trial judge set out both Mr Stratton’s attack on Mr Brown for his delay in going to the police (as he did in several places), and lent the authority of his own office to the posing of critical questions about Mr Brown’s delay. The submission does not identify how much further the direction should have gone than it did. This particular submission about the summing up is rejected. The summing up: another criticism

In oral argument the appellant further submitted that though the trial judge set out Mr Stratton’s criticisms of Mr Brown’s reliability, he never lent the imprimatur of his office to them. He “never went on to explain in general terms why the evidence might be unreliable. He referred to Mr Stratton referring to the evidence as unreliable”. This submission should be rejected. First, the types of direction or warning to which a judicial imprimatur must be lent are usually directions compelled by the rules of law or practice, and comments on the specific evidence in the case are not directions compelled by rules of law or practice. Secondly, for the judge to have lent the imprimatur of his office to Mr Stratton’s criticisms by personally aligning himself with them would probably have verged on an impermissible usurpation of the jury’s function. In the end counsel for the appellant conceded that the trial judge’s specific reference to Mr Stratton’s points was perhaps “in the circumstances … a legitimate way for the points to be made in the circumstances of this trial.” The appellant’s s 165(1)(d) and (2) submissions

The appellant’s submissions about s 165(1)(d) and (2) were put thus: “Whilst there are therefore a number of examples of His Honour advising the jury that they must be satisfied beyond reasonable doubt as to the confession made by the Appellant to Mr Brown, he referred only to criticism of counsel appearing as to his evidence being unreliable. It is submitted that a warning ought to have been given pursuant to section 165 of the Evidence Act 1995. The evidence of Mr Brown would clearly fall within subsection (1)(d). The warning sought is in the terms of subsection (2) and indeed may have gone so far as to tell the jury that it would be dangerous to convict the accused on this evidence. It must be remembered the witness gave evidence about receiving an indemnity that he would not be prosecuted. The indemnity was tendered (Exhibit U) and read to the jury (page 323). The alleged confession was of course totally uncorroborated. In those circumstances, it is submitted that the jury must have been warned of the danger of convicting upon such evidence in the absence of corroboration but even more so where the witness has been granted an immunity from prosecution and this needs to be clearly explained to a jury (see R v Chai 68 Crim R 305 at 326/327). The judge in his directions to the jury did not bring home to them why such a warning is necessary and why it needs special scrutiny (R v Chai at 327). It is submitted that the reference by the learned trial judge to the effect that counsel representing the Appellant had referred to the evidence as being unreliable is not sufficient (see R v Merrick John Malouf (unreported NSW CCA 1 Nov 1996). Furthermore on 11 April 2001, His Honour delivered a separate judgment on the admissibility of a transcript (page 386). His Honour allowed the evidence of the tape recording to be played (page 389) in re-examination. In his reasons for judgment this application was made by the Crown pursuant to section 108(3)(b) of the Evidence Act to adduce evidence of a tape recording of a phone call made in March 2000, in which it was said to refer to the conversation at the hotel. That was a possible construction accepted by the trial judge but bearing in mind it was necessary for the defence to suggest to Mr Brown that his evidence was fabricated, if there was to be a defence at all to the case, there was considerable unfairness in this evidence being admitted in re-examination such that it could not be tested by further cross-examination. Under those circumstances, it is submitted that there was even a greater need for a direction under section 165.”

There is a problem for the appellant which is anterior to that created by r 4. Section 165 provides: “(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person – evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.” The appellant complains that the trial judge failed to carry out a duty created by s 165. Section 165(1) creates no duty: it merely says that the section “applies to evidence of a kind that may be unreliable”, and sets out non-exhaustive instances of that evidence in paragraphs (a)-(g). Section 165(2) creates a duty, but it is a duty which is only triggered by a request for the direction by a party. There was no request. Hence s 165(3)-(4) do not apply. Section 165(5) preserves any other power of the judge to warn the jury. The appellant’s submission must be that the trial judge of his own motion should have given a warning about Mr Brown’s unreliability because of the indemnity. That submission must be assessed in the light of the fact that s 164 provides: “(1) It is not necessary that evidence on which a party relies be corroborated. (2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence. (3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge: (a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or (b) give a direction relating to the absence of corroboration.” The test for leave

The appellant submitted that leave pursuant to r 4 should be granted because the error complained of, by reason of the significance of Mr Brown’s evidence, went to the “very root of the proceedings”, and if the point could not be raised there “would be a very real possibility of injustice”. He relied on R v Tripodina (1988) 35 A Crim R 183 at 195, where Yeldham J (Carruthers and McInerney JJ concurring) said, after considering numerous authorities: “Although the court is obliged to be astute to secure for the accused a fair trial according to law, … none the less, in my opinion, it should be astute also to ensure that points, especially those of little or no merit, which were not thought by counsel appearing at the trial to be of any great significance, should not be raised for the first time on appeal. Furthermore, the fact that no objection was taken at the trial is in many cases cogent evidence of the fact that, having regard to the atmosphere at the trial and the manner in which it was conducted, the matter later complained of was not regarded as being of significance, or likely to give rise to any miscarriage of justice. The authorities to which I have referred emphasise that the leave required by r 4 is not to be lightly granted. Generally speaking such leave will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.” The chronology of Mr Brown’s role

In considering the appellant’s submissions, it is convenient to bear in mind the following chronology of Mr Brown’s role.

On 7 February 1999 the deceased was allegedly killed.

On or about Saturday 20 February 1999, according to Mr Brown, the appellant confessed to him in the lounge bar of the “Middle Pub” Hotel, Mathoura, that he had shot the deceased three times with a 9 mm Browning pistol and killed her.

Around Easter 1999, according to Mr Brown, the appellant came to Mr Brown’s house and gave him his will: Mr Brown was executor and beneficiary. The appellant asked Mr Brown to look after his mother and one of his sisters. He also gave him a set of instructions for the stripping, cleaning and assembling of a 9mm Browning pistol.

On the first weekend of the year 2000, according to Mr Brown, the appellant told Mr Brown that the deceased’s remains had been discovered.

On 11 March 2000 Mr Brown was interviewed by the police at Belconnen Police Station. He gave them the appellant’s will and the Browning instructions, and he told them of the appellant’s confession.

On the following Friday, 17 March 2000, according to Mr Brown, he rang the appellant and told him he had told the police everything he knew. The appellant expressed displeasure, did not deny having confessed, but suggested that the confession was untrue. Mr Brown tape recorded that conversation. The police arrested the appellant at the conclusion of it.

On 8 August 2000 the Attorney-General granted Mr Brown an immunity from prosecution. Was the playing of the taped 17 March 2000 conversation unfair?

It is convenient to deal first with the last of the appellant’s submissions set out above. There is no separate ground of appeal complaining about the trial judge’s decision to permit the Crown to play the tape recording of the 17 March 2000 telephone conversation while Mr Brown was being re-examined.

The trial judge, in ruling that the Crown could play the tape during Mr Brown’s re-examination, first quoted Mr Brown’s evidence in chief about the conversation: “Evidence has also been given by Mr Brown of a telephone conversation that he had with the accused on 17 March 2000 in which he told he accused that he had told the police about the accused’s confession of February 1999. The evidence is as follows: Q. After you had that conversation with him, did you at a later stage in fact tell him that you had told the police about the conversation that you had with him? A. Yes, that was the following Friday where I -- Q. Just stopping you there. When you had that conversation with him was it a face to face conversation or how did you come to speak with him? A. It was a telephone conversation. Q. When you spoke with the accused on that occasion, can you tell us as accurately as possible what it was you said to him? A. I rang him to inform him that I had told the police -- Q. What did you say to him? A. I told him I told the police everything that I knew. Q. When you said that to him, did he reply to you? A. He replied initially with, he said something like: ‘Oh shit’ or ‘dam” or maybe something worse, along those lines, and then after he said that, he then said that, he told me what he told me to get respect out of me or get respect from me was the way he said, the way he told me. Q. Sir, was it the situation during the course of – sorry, do you know where the accused was when you were having this conversation with him? A. Yes, he was at the Mathoura post office.”

The trial judge then said: “The evidence of the conversation given by Mr Brown was a summary, and obviously the best evidence of what was said can be obtained by the playing of a tape. The transcript of the conversation, which is MFI 10, includes these references: Page 2 line 22: Brown: Well, I’ve got some news that you probably don’t want to hear. … Page 3 line 5: Brown: I want you to know that I guess in the last year you’ve put me in a pretty unfair position. Accused: Yeah. Brown: In the last year. Accused: Yep. Brown: And to be quite honest … Accused: Yeah. Brown: … it’s pissed me off. Accused: Right. Brown: Right, so I guess what I’m getting to in a nutshell is I’ve told the police everything I know. Accused: Oh shit. Page 4 line 14: Accused: Well that was something I wanted to talk to you too about ‘cause you know how I always had respect and everything. … Same page, line 20: Accused: … well I tried to gain a little bit of that back so I just bullshitted you. Brown: Okay. Is that what you’re telling me now? Accused: Yep. Brown: Alright, well I’m telling you what you’ve – that I’ve told them everything that you told me. Page 5 line 13: Brown: Yeah, so basically where I’m at is I’ve told them what I told them because at the end of the day if you’ve done something wrong, if you’ve done the crime Nob you do the time. Accused: Yeah. Brown: And you know what you’ve done and so I guess what I’m saying to you … Accused: Yep. Brown: … is if you go to gaol … Accused: Yeah. Brown: and you’re in gaol for however long, whether it be fifteen years or twenty years … Accused: Well see that’s why I’m starting to worry because why should I go to gaol for something I haven’t done. Brown: Listen, listen to me Nob I’m talking to you at the moment. Accused: Yeah. … Page 7 line 12: Brown: Alright, because you need to understand what you told me you know I had a fair bit to lose with you know my wife and my kids and my house … Accused: Yeah. Brown: … and you know I’m – and stuff like that. Accused: Yeah. Brown: And if you’re telling me now that it’s not true well there you go but it certainly wasn’t the case a year ago … Accused: Yeah. Brown: And I’ve had to live with that for a year and it’s been a lot of pressure for me … Accused: Yep. Brown: … and it was a very unfair thing to do to me. Accused: Yeah. Brown: Right, now look if I’m your mate Nob … Accused: Yeah. Brown: … and you’ve gone and done that to me … Accused: Yeah. Brown: … alright, put that sort of pressure on me … Accused: Yeah. Brown: … that’s a horrible thing to do to someone. Accused: Yeah. Brown: And you put me in a position where I’ve had to like compromise myself one way or the other. Page 9 line 20: Accused: Yep. But as I said you know I haven’t done nothin’ you know I just tried to get a little bit of respect back. Brown: Okay well if that’s what it was now, if that’s what you’re saying now … Accused: Yeah. Brown: … well that’s that I guess but, I guess Kim (Mr Brown’s wife) knows what I’ve told the police … .”

This material was amply capable of being construed by the jury as containing prior statements consistent with Mr Brown’s evidence that the confession had been made, and recording admissions by the appellant that the confession had been made, as well as his explanation that the confession was not true.

In view of the fact that the appellant submits that it was unfair to admit this evidence without further testing of Mr Brown in cross-examination, it is significant that after the tape was played Mr Stratton did not ask for leave further to cross-examine Mr Brown. This is so even though the transcript records the following events after the tape was played and Mr Brown identified his voice and the appellant’s voice: “HIS HONOUR: That’s the end of the re-examination? CROWN PROSECUTOR: Yes, your Honour. HIS HONOUR: Mr Brown, you may step down you are excused from further attendance. WITNESS RETIRED AND EXCUSED SUBJECT TO RECALL HIS HONOUR: Mr Brown, I don’t know whether it’s likely that anyone may wish to ask you anything else but in case that arises would you be prepared to make yourself available to come back to Court? BROWN: Yes, your Honour. HIS HONOUR: Obviously the Crown will know where you are. On that condition I will let you go for now.”

Further, it is significant that in his submissions opposing the playing of the tape Mr Stratton did not advance the contention now put that “there was considerable unfairness in this evidence being admitted in re-examination such that it could not be tested by further cross-examination”. Mr Stratton’s submissions are recorded as follows: “STRATTON: Your Honour, no doubt the questions I have asked Mr Brown were designed to destroy his credibility; that was the design anyway and the case of the accused as put by me in my opening and as put by me in cross-examination is that those, or the confession part of the conversation did not take place. That is the accused did not say he shot her, took her out to the forest and buried her and anything else in accordance with that confession. My case and my questioning was not along the lines a conversation didn’t take place. My questioning was on the basis a conversation did take place but it did not contain the confessional material. If one looks at the telephone material it can’t be said what Mr Brown was talking about at pages 308 and 310, etc. What Mr Brown was saying in that conversation was: ‘I have told the police everything I know.’ With great respect, that could be anything. Page 4 line 7 (read). That is not what is alleged to have been said in this confession. Page 5 line 8 (read). Line 13 (read). He is not saying: “I told the police that you told me you shot Lyn Lock, I have told the police you told me you took her out into this deserted area’, etc. There is nothing about that at all. All he is says is I told the police what you told me. That could be anything. There is no reference in any of the conversation that what he is really talking about is what he has told your Honour and the jury in this case. It is left up in the air. It is not really consistent with anything. Page 9 line 20 (read). There is nothing to indicate what he is really trying to get a little bit of respect back from. There is nothing there to indicate: ‘I told all this just to get some respect from you’. If that was the type of conversation that was recorded in this transcript, then we do not know what Mr Brown is talking about, we don’t know what the accused is talking about. It is all supposition. It is stretching it too far to say that is what it has to refer to. It could be I suppose if it is said to refer to the conversations that I have alleged are fabrications, it is nothing more than a self-serving statement by the witness at a time after he has made his disclosure to the police.”

The trial judge summarised Mr Stratton’s arguments in his judgment of 11 April 2001 permitting the playing of the tape thus: “It is submitted by Mr Stratton that the reference in the conversation may not be understood as referring to anything said by the accused on the occasion in the hotel described by Mr Brown. Everything, it is submitted, is left in the air. Reference is made to Mr Brown having said: Alright, well I’m telling you what you’ve – that I’ve told them everything that you told me and to the accused’s having said that he tried to get a little bit of respect back. Respect from or about what, it is asked rhetorically. It is submitted that there is nothing but supposition to support the contention that this telephone conversation refers to anything said by the accused to Mr Brown at the hotel. I do not agree. I think that seen as a whole the conversation is capable of being understood as referring to whatever it was that the accused said to Mr Brown at the hotel. It is submitted in the alternative that, in any case, anything said by Mr Brown in the telephone conversation is no more than a self-serving statement made after Mr Brown made his statement to the police. That may be so, but it seems to me that s 108 is designed to make admissible such self-serving statements.” The trial judge went on to deal with a consideration about which Mr Stratton did not make a submission: “I have considered whether the danger of unfair prejudice to the accused outweighs the probative value of the evidence. I do not think that it does and I think, therefore, that s 137 does not make the evidence inadmissible. I would not refuse to receive the evidence in the exercise of my discretion.”

Not only did Mr Stratton not contend that any inability on his part to cross-examine Mr Brown further was unfair, but it is the case that such a submission would have been pointless. He probably would have been given leave to cross-examine Mr Brown on the conversation, but that carried the risk that Mr Brown would make its obscurities clearer. The appellant does not now challenge, and never did challenge, that he was a participant in the conversation. The playing of the tape was not unfair. And the playing of the tape did not increase any need for a “direction under s 165”. The relevance of R v Chai

The case of R v Chai (1992) 27 NSWLR 153 is central to the appellant’s submission. What is its relevance? In that case the accused was charged with conspiring with other persons to import heroin. One of the alleged co-conspirators, who was not indicted, was Mr Choy. Wood J convicted the accused. In the Court of Criminal Appeal Badgery-Parker J (Hunt CJ at CL and Allen J concurring) said at 157D-F: “The Crown case depended almost entirely on the evidence of Choy, who had received immunity from prosecution in Hong Kong and in Australia and had entered into a plea bargain agreement with United States authorities. Although there was some evidence confirmatory of his account, and some material which the trial judge ruled was capable of constituting corroboration of his evidence, the Crown case could not succeed in the absence of acceptance by the jury of the evidence of Choy. Objection was taken to the reception of his evidence, both as a matter of admissibility and as a matter of discretion, and his Honour dealt with that objection in a voir dire hearing prior to the empanelling of the jury. His Honour admitted the evidence, and some time later, on 13 February, gave reasons for that decision. His Honour’s decision to admit the evidence is challenged in ground 1 in the grounds of appeal.”

Mr Choy, whom the Court of Criminal Appeal described as “a self-confessed international heroin dealer on a massive scale”, gave detailed evidence about a series of meetings with other conspirators including the accused over a period from at least May 1987 to August 1987. The accused appealed on numerous grounds.

The first was that the trial judge erred in admitting Mr Choy’s evidence. That ground failed: the Court declined to follow R v Pipe (1966) 51 Cr App R 17 but followed various other cases, including Australian cases, holding that there was no discretion to exclude the evidence of a witness indemnified from prosecution independent of the general discretion to exclude evidence unfairly prejudicial to the accused. (It may be noted that the present appellant does not advance any ground of appeal contending that Mr Brown’s evidence should have been excluded under s 135 or s 137, nor did Mr Stratton make any application to that effect at the trial. Apart from an objection to one half-question which was leading and one non-responsive answer, Mr Stratton made no objection to Mr Brown’s evidence in chief at all. His tactics, and the failure of the appellant to complain about the reception of Mr Brown’s evidence, of themselves point against the need for any warning of the type which it is now said should have been given.)

The part of R v Chai on which the appellant relies is that relating to Ground 5, which complained of Wood J’s directions about Mr Choy. The passage on which the appellant relies is as follows (at 176): “It is of course abundantly clear that where the evidence of an accomplice is relied upon by the Crown, the jury must be clearly warned of the danger of convicting upon such evidence in the absence of corroboration and in any event unless they are satisfied that the evidence of the accomplice is true and reliable; and further, that where the accomplice has been granted immunity from prosecution, the significance of that in relation to the evaluation of the reliability of the witness’ testimony needs to be clearly explained to the jury. Consistently with that, this Court recognised in R v Booth [[1982] 2 NSWLR 847] the relevance and importance of evidence revealing to the jury all of the matters relevant to the position of the accomplice vis `a vis the Crown which is the party calling him. The corollary is that, such evidence having been given as it was here, the judge should be at pains to make clear to the jury the significance of it.”

However, it desirable also to set out the rest of Badgery-Parker J’s reasoning on Ground 5 (at 176-180): “It is conceded on behalf of the appellant that his Honour gave the jury a warning which does not depart from the basic principles relating to warnings from the Bench in relation to accomplices. However it was submitted that the ruling was insufficient and failed to convey to the jury with sufficient force the particular dangers in this case in convicting the appellant on the evidence of Choy. Indeed, counsel went so far as to describe the direction given by his Honour as ‘a somewhat perfunctory direction, without special emphasis which was required to be given in this case as to the character of the witness Choy, his role in international drug dealing and the particularly unsafe aspects of his evidence both as an alleged accomplice and as a person who has received certain immunities who was still the subject of an inducement offered by United States authorities in the form of the yet incomplete plea bargaining and sentence arrangement’. It is undoubtedly the case that where circumstances revealed by the evidence go beyond merely the fact that the witness was an accomplice, the duty of a trial judge to direct the jury in respect of their approach to that evidence will not be discharged by some mere perfunctory recitation of standard formulae. It is necessary for the judge to bring home to the jury the reasons why the warning is given and to lay out for them the particular circumstances of the instant case which warrant their giving special scrutiny to the evidence of the accomplice witness. That the summing-up should meet such criteria was emphasised by this Court in R v Checconi. There the trial judge had given a direction in what might be called ordinary form as to the danger of convicting upon the evidence of an accomplice in the absence of corroboration and as to the nature of corroboration and the evidence available in that case to be considered as such. The summing-up was criticised in regard to what was seen as a failure to separate, in a multi accused trial, that material which was available as corroboration in respect of each of the accused. That is not a question for consideration here. However, that aside, the Court took the view that in the circumstances of the particular case, more was required than the ‘ordinary form’ direction which was in fact given. Roden J with whom the other members of the Court agreed said (at 170-171): ‘In the case of each of the appellants, the position was that unless Panozzo was accepted, there must be an acquittal. There is no rule of law that in every such case a direction in those terms should be given. It seems to me, however, that it is an appropriate direction to give. And when the accomplice evidence is as critical as it was here, it is desirable that more than the formal caution be given. If some explanation, or some reason for regarding the evidence as suspect, is given, the direction may be seen as more than a formal rule of law. Observations such as that the admitted criminality of the accomplice may make him less creditworthy, and that his participation in the offence may cause him to have his own reasons for wishing to implicate, or protect, others, may be appropriate. In this case, the fact that the accomplice gave evidence under immunity, rather than having already been dealt with for his part in the offence, is an additional factor capable of affecting the worth of his evidence. Again, there is no rule of law that calls for a direction with regard to that, but I am of the view that a full explanation to the jury of what was involved in weighing his evidence, required that something be said on that score.’ His Honour then referred to R v Booth and extracted relevant passages from each of the three judgments there. He continued (at 171-172): ‘Those observations were all made as the basis for the decision on admissibility, but they serve also to demonstrate the relevance of the witness’ position vis a vis the Crown, in determining the weight that can be given to his evidence, and whether it can safely be acted upon. Accordingly it seems to me that where, as here, the accomplice evidence is critical to verdict, and where, as here, the attack upon that evidence is the crux of the defence case, it is difficult, if not impossible, adequately to present or summarise that case to the jury, without referring to the accomplice’s position, a fortiori where, as here, the accomplice has benefited from his agreement to testify for the Crown.’ I would with respect agree with what was there stated and I accept that the present was a case which called for more than a perfunctory direction, a case which called for some elaboration of the reasons why the evidence of the particular witness should be treated as suspect and scrutinised with care, both because of his position as an accomplice and because of the plea bargaining transaction into which he had entered. I cannot, however, accept the submission that the summing-up was in any way inadequate in this regard. With respect, it appears to me that Wood J was very much alive to the need to give just such directions as Roden J indicated were desirable or indeed necessary, and he proceeded to do everything that could reasonably be expected of him. His Honour emphasised to the jury that without Choy there would be no case and unless the jury believed Choy’s evidence they must acquit. He gave the usual warning as to the danger of convicting on the uncorroborated evidence of the accomplice. He went into considerable detail as to the reason why the evidence of an accomplice might be unreliable, and the reason why, in those circumstances, the warning was given. His Honour said: ‘There are no doubt many reasons why the evidence of accomplices may be unreliable and I am sure you can think of many yourselves. You may think it is only natural for an accomplice to want to shift the blame from himself to others, perhaps to downplay his role, perhaps to justify his own conduct. In that process the accomplice may construct an untruthful story, he may play up the part of others, he may even blame innocent people. Experience has shown that once an accomplice gives a version to the police, he may feel locked into that story and be unwilling to tell the truth later. Of course you may think, it is a matter for you, that the risk that an accomplice has told an untrue story may be greater where he has been offered a prospect of receiving some reward or immunity from prosecution either for himself or for someone else. It is a matter of commonsense. Freedom from prosecution either of an accomplice or someone else who is associated with him, either here or in some other place in return for giving evidence against an accused person, may – although necessarily will it do so – constitute an inducement or persuasion to give false evidence.’ His Honour continued over two further pages to emphasise the aspects of the immunity situation in the instant case and the need for the jury to consider the significance of the immunity. In my view to describe the directions as perfunctory is absurd. They were detailed, they were carefully constructed and it is not without significance that counsel at the trial sought no re-direction. Counsel for the appellant was quite unable to make clear to this Court what more was required. In the appellant’s written submissions it is asserted that: ‘The inadequacy of his Honour’s direction was compounded by remarks of his Honour such as, when referring to the accomplice direction, that: ‘There is nothing particular about this case which causes me to give it’.’ This submission is entirely misconceived. It is an essential part of the accomplice direction that, in fairness to the Crown, the trial judge make clear to the jury that the direction is not given because he has himself formed any view as to the reliability of the accomplice evidence. It is not for the judge to express a view himself about the reliability of an accomplice or of any other witness. The warning is given not because the judge has a particular view about the evidence in the particular case but because of the experience of the courts which has led to a conclusion that such evidence has, as a general category of evidence, particular aspects which may not be known to or understood by a jury. For the same reason, it appears to me that when a judge is called upon to perform the task imposed upon him by the recent decision of the High Court in McKinney v The Queen (1991) 171 CLR 468, it will be appropriate for him to make clear to the jury that he gives the warning, not because he has himself formed a view as to the reliability or credibility of the police officers whose evidence is under consideration but because the law requires such a direction in every case. The requirement of the law that the trial judge warn the jury about the risks associated with accomplice evidence and, in the view of the High Court, the evidence of police officers, stems from the perception that juries may not be aware of the matters that affect evidence of such witnesses as a class. It is incumbent on the judge, in order to hold the balance evenly between the Crown and the accused, that he or she make clear that the warning does not stem from his or her own assessment of the reliability of the evidence in the particular case. It is also appropriate to remark that the adequacy of directions given in respect of a particular matter arising in the course of a trial has to be judged in the light of the way the case was conducted and in the light of counsel’s addresses. The matters now under discussion were exposed at great length in the course of cross-examination and it can scarcely be doubted that they received a great deal of attention in the course of counsel’s addresses. It is in the light of those addresses that the judge’s directions are to be evaluated, and it is therefore appropriate to give particular weight to the fact that counsel at the trial had no complaint. Not only did his Honour on the first day of his summing-up deal extensively with the relevance of the fact that the witness was an accomplice and of the fact that he had been granted immunity, in much the way that Roden J in R v Checconi advocated, he briefly returned to the matter at the commencement of the second day of his summing-up. He said: ‘Let me remind you that in the cross-examination of Choy there emerged various pieces of evidence to the effect that he had been involved with Lai and Mrs Ling in heroin dealings in the United States. I should caution you that that is not a matter which is relied upon by the Crown nor could it be relied upon by the Crown as a fact tending to show that the conspiracy charged in this case existed. Logically it could not do so because it relates to an entirely different matter. Its relevance and its only relevance in this trial is for you to take into account as a matter concerning the credibility of Choy. You should take it into account and give it such weight as you think fit having regard to the fact that he admitted to having been involved in the heroin trade in the United States with those other persons and is a person who has an interest to serve having regard to the fact that he entered into a deal with the authorities and still faces a sentence on one charge in the States. Therefore, you should not use that evidence as a fact relied upon by the Crown as tending to show that the conspiracy here charged existed but only should have regard to it so far as it affects the credibility of Choy.’ No request for any further re-direction or any amendment of these directions having been sought by counsel for the appellant at the trial, r 4 of the Criminal Appeal Rules applies. The appellant requires leave to rely upon this ground and such leave will not readily be granted: see R v Tripodina and Morabito (1988) 35 A Crim R 183 at 195; R v Williamson and Morell (Court of Criminal Appeal, 11 October 1991, unreported). In my opinion, in this case leave to rely on the fifth ground of appeal should be refused.”

For the moment three key points in this reasoning may be noted. First, Mr Choy was an “accomplice”. Secondly, it was said that the “significance” of the “grant of immunity from prosecution” in relation to the “evaluation of the reliability of the witness’ testimony needs” to be explained. But, thirdly, that “need” was not a rule of law, according to R v Checconi . In evaluating the reasoning, a fourth point is to be remembered: R v Chai was decided on the common law, not on the Evidence Act 1995. Who is a relevant accomplice?

What sort of “accomplice” is the reasoning in R v Chai concerned with? Mr Choy was not charged with the actual importation of the heroin. The actual importer was a Nicaraguan diplomat from whom the accused took delivery. Mr Choy played a significant role in arranging the importation. Thus Mr Choy was an accessory before the fact. Similarly, in R v Checconi (1988) 34 A Crim R 160 a case involving charges of conspiracy to cultivate Indian hemp, the “accomplice” was an accessory before the fact, a co-conspirator: he had been actively engaged in cultivation. And in R v Booth [1982] 2 NSWLR 847 the witnesses were co-conspirators.

R v Chai thus dealt with only one of the types of accomplice known to the general law in relation to corroboration warnings.

In R v Stewart [2001] NSWCA 260 at [2]-[17] Spigelman CJ questioned, without finally ruling out, the utility of examining the common law on accomplices in applying s 165(1)(d). It is necessary in the present appeal to examine aspects of the common law, not necessarily because it aids in the construction of s 165(1)(d), but because the appellant’s argument depends on an appeal to the common law, or to an analogy with it.

The passages from R v Chai quoted above reveal that that case dealt with only one of the types of accomplice known to the common law in relation to corroboration warnings. In Davies v Director of Public Prosecutions [1954] AC 378 at 400 Lord Simonds LC, with whom Lords Porter, Oaksey, Tucker and Asquith of Bishopstone concurred, said that the common law rules as to accomplice warnings applied to three classes of “accomplice”: “(1) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanors). This is surely the natural and primary meaning of the term ‘accomplice.’ But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz.: (2) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny … : (3) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted, of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration.”

So far as this went beyond principals and accessories before the fact, it was a dictum, because the witness in question was, if an accomplice of any kind, either an accessory before the fact or a principal. And so far as this definition included accessories after the fact, it has not been accepted in Victoria either before Davies ’ case ( R v Ready [1942] VLR 85 at 93 per Mann CJ, Gavan Duffy and Martin JJ) or after it ( R v Carranceja (1989) 42 A Crim R 402 at 417 (Murphy, Marks and Gobbo JJ)). It has not been accepted in Western Australia either before Davies ’ case ( R v Lewis (1906) 8 WALR 83 (Parker CJ, McMillan and Burnside JJ)) or after it ( Khan v R [1971] WAR 44 (Virtue SPJ, Nevile and Burt JJ)). And it has not been accepted in Tasmania ( R v Ling (1982) 6 A Crim R 429 at 449 per Crawford J). There is in New South Wales what is no more than a passing dictum accepting paragraph (1) of Lord Simonds LC’s definition: R v Perry [1970] 2 NSWR 501 at 504 per Manning JA, Brereton and Begg JJ. Against that stands an actual decision on the point, though it is old and unreported: R v Mason (1869) 5 Aust Digest pp 881-2.

The reason why Australian courts have not followed Lord Simonds LC’s inclusion of accessories after the fact was put thus in R v Ready [1942] VLR 85 at 93: “In our opinion a person who knows nothing of the crime until it has been committed and is therefore not privy to it before its committal and then ‘receives, relieves, comforts or assists’ the principal criminal does not fall within the reason of the rule which requires corroboration of the evidence of accomplices and unless required by authority to do so we should not think it proper to insist on such corroboration. An accessory after the fact takes no part in the acts which constitute the principal crime. The rule in question recognises the temptation presented to an accused person to buy his own immunity from punishment by offering what is called King’s evidence, true or false, against the alleged co-offender. Such a temptation does not exist in the same way in the case of an accessory after the fact, whose interest lies in establishing, if he can, the innocence of the alleged principal offender.” Similarly in R v Gratton (1971) 4 NBR (2d) 14 at 16-17 Limerick JA (Bridges CJNB and Hughes JA concurring) said: “The reason for the origin of the rule of practice, which has obtained such universal acceptance that it is regarded as mandatory and of the same effect as if it was a rule of law and not of practice, is because of the danger, implicit in the evidence of an accomplice that he may try to fasten the blame on someone else to mitigate his own involvement. Such reasoning does not apply to an accessory after the fact. By testifying against the perpetrator of the crime he is giving evidence against his own interest, he cannot be convicted as an accessory unless the person he aids or assists in escaping detection be found guilty.” See also R v Robichaud (1938) 13 MPR 22 at 36 per Baxter CJ, Grimmer and Harrison JJ concurring.

The purpose of the common law accomplice rule was to guard against the danger of fabrication. “The danger is, that when a man is fixed, and knows that his own guilt is detected, he purchases impunity by falsely accusing others”: R v Farler (1837) 8 C & P 106 at 108; 173 ER 418 at 419 per Lord Abinger CB. In R v Sneesby [1951] Qd R 26 at 28 Philp J said: “The reason for the rule … is that an accomplice is a person who would be likely to lie in order to save his own neck, or his own liberty. Lord Macaulay says somewhere that an accomplice giving evidence is like ‘a cormorant fishing for prey with a rope around his neck.’ It is fair to assume that an accomplice may be induced to lie in order to get a pardon, or to get immunity from prosecution, or, perhaps, lesser punishment.” It is necessary to bear these considerations in mind in considering whether an appeal to R v Chai is relevant in deciding whether a s 165(1)(d) warning should have been given here. Accessories after the fact

Even if it is assumed that accessories after the fact were accomplices for the purposes of the pre 1995 law in this State, was Mr Brown an accessory after the fact? An accessory after the fact at common law must assist “the principal offender by a physical act and not merely by omitting to do something”: Majara v R [1954] AC 235 at 238 per Lord Goddard CJ, Lord Reid and Mr L M D de Silva. The accessory must “receive, relieve, comfort or assist” the principal offender and “merely suffering the principal to escape” will not suffice, nor will “the negative assistance of not giving information to the police”: R v Ready [1942] VLR 85 at 92-3 per Mann CJ, Gavan Duffy and Martin JJ. Glanville Williams, Criminal Law: The General Part (2nd ed, 1961) pp 409-411 states: “An accessory after the fact is one who assists a felon after his crime, with a view to shielding him from justice … . An accessory after the fact is defined as one who ‘receives, harbours or maintains’ a known felon so as to enable him to elude justice (ie, arrest, trial or punishment). Examples are hiding the felon from justice, acting with the purpose of enabling him to escape before or after arrest, or even the mere act of removing the evidence against him. … To constitute a man an accessory after the fact he must commit a positive act of assistance. Mere failure to inform the authorities, or failure to prevent an escape, is not sufficient.” In Stephen, A Digest of the Criminal Law (Indictable Offences) (9th ed, 1950) Art 25 provides: “Every one is an accessory after the fact to felony who knowing a felony to have been committed by another receives, comforts, or assists him, in order to enable him to escape from punishment; or rescues him from an arrest for the felony; or having him in custody for the felony, intentionally and voluntarily suffers him to escape; or opposes his apprehension.” There must be a “desire to assist the principal felon”: R v Tevendale [1955] VLR 95 at 97 per Sholl J.

Mr Brown gave the following evidence in chief: “Q. Did the accused on that evening seek your advice about any matter? A. Yes, he sought my advice on what to do. Q. What – how did he come to seek your advice about what to do? What did he say to you? A. He said to me, I’m not sure exactly what he said to me to ask me my advice, he may have just simply asked what he should do, I don’t recall the conversation leading up to me giving the advice. Q. Did you give him some advice on this evening? A. Yes, I did, Q. What advice did you give him? A. I told him that to continue on as if, as normal, as if nothing has occurred. Q. Yes? A. Don’t act suspicious about it because if you act suspicious about it people would wonder why you were so concerned about it, that was the type of advice I gave him. I gave him advice to help him to not get caught, is the advice I was giving him to do for the crime he had committed.”

In cross-examination Mr Brown said: “Yeah, we spoke about, like, about how he was, you know, having trouble sleeping at night. I gave him suggestions and advice. I wanted to gain his trust at that time because I wasn’t trusting him, so I gave him advice on how to act and behave so that he wouldn’t be obvious about what he had done. I thought he would be very obvious about what he had done, I didn’t think, and, yeah, that was what we were talking about back at his place.”

It must be questioned whether that is sufficient assistance to have made Mr Brown an accessory after the fact. In particular, it must be questioned whether that was “a physical act” or “a positive act of assistance”. And it may be questioned whether Mr Brown’s desire was to assist the appellant: there is no direct evidence that it was.

It was incumbent on the appellant to elicit evidence at the trial which made it appropriate to treat Mr Brown as falling within the description in s 165(1)(d). The examination in chief of Mr Brown concluded with the tender by the Crown of the indemnity. That tender occurred after the following evidence: “Q. Sir, you were told by the accused you say in February of 1999 that he had committed this offence? A. Yes. Q. It was not until March 2000 that you provided any information in that regard to police, is that correct? A. Correct. Q. Was there a reason that you did not provide this information to police prior to March 2000? A. Yes, there was. Q. What was that reason? A. I had concern for my own safety. There was no body that was found and, to me, if Steven was going to murder people that crossed him I wanted to be sure if I was going to say anything that there was evidence, there was a body, there was a crime, otherwise I was just going to have a story about a person that was missing. So, to me, it was, it was very, very important a body had been found. I had fears for my own well being, I wanted to be sure if I said anything, I wanted Steven arrested fairly quickly and put behind bars. Q. You understood, did you, that retaining this information and keeping it to yourself may constitute a criminal offence? A. I was fully aware of that, yes. Q. Did you receive in relation to that matter an indemnity that there would be no prosecution in that regard? A. I understand that I have indemnity in this matter except for murder is what I understand.” In cross-examination Mr Brown repeated his evidence that in keeping the confession to himself he knew he was possibly committing a criminal offence. He also repeated his reasons for silence. Mr Brown was at no stage asked to explain what criminal offence he thought he had committed. Perhaps he had in mind the Crimes Act 1900, s 316(1), which in its present form provides: “If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.” The section was in similar but not identical form in 1999. Perhaps Mr Brown thought there was some general duty enforceable by a criminal sanction to go to the police with any information he had of the kind formerly punishable as misprision of felony: see R v Wozniak (1988) 16 NSWLR 185. At all events, the indemnity was in the following terms: “If you actively co-operate in criminal proceedings pending against Steven John Clark for the offence of murder and if your evidence there is the truth, the whole truth and nothing but the truth, I grant you indemnity from prosecution for: 1. Concealing a serious offence; or 2. any associated offence except the offence of murder in respect of matters relevant to the proceedings and covered by your evidence at the trial.” Apart from suggesting that s 316 of the Crimes Act was in the Attorney-General’s mind, the indemnity casts no light on what Mr Brown was worried about. Tactical considerations affecting the cross-examination of Mr Brown

Mr Stratton faced a difficult task in deciding how he should cross-examine Mr Brown. His tactics appear to have been controlled by one matter. At the time when the cross-examination took place, there was no specific evidence before the jury of the conversation between Mr Brown and the appellant on the telephone on 17 March 2000: the only evidence of that conversation was very general evidence in chief. Mr Stratton put matters suggesting not only that Mr Brown misunderstood what had been said but was lying in saying that there had been a confession. To a large extent these tactics were available tactics so long as the jury did not hear the tape of the 17 March 2000 conversation, in which the appellant admitted, or so the jury might reasonably find, that there had been a confession. Thereafter those tactics would be much less likely to succeed. But it must have been thought possible at the time when Mr Brown was being cross-examined that the defence would be able to keep the tape recording out or minimise its significance.

Mr Stratton adopted the following lines in cross-examination which were apparently directed to establishing that nothing was said: (a) Mr Brown lacked any record of meeting the appellant on 20 February 1999, so that no meeting took place; (b) Mr Brown had some motive to tell the police, falsely, that there was a confession, such as: (i) the fact that they suspected Mr Brown; (ii) the fact that they told Mr Brown his car had been seen with him in it in Mathoura on 7 February 1999; (iii) the fact that Mr Brown owed the appellant money, that Microsoft had fined the appellant for a dereliction in the way he sold its products, that the appellant wanted a contribution to the fine from Mr Brown, and that if these amounts were not paid the appellant would report these matters to Microsoft, a supplier to Mr Brown’s business, as a means of destroying that business; (c) the fact that Mr Brown did not tell the police or anyone else, even his wife, about the confession until March 2000 showed that it was never made; (d) the fact that there were divergences between Mr Brown’s testimony to the jury, his evidence at the committal proceedings, and his interview with the police established fabrication; (e) the fact that he kept associating with the appellant suggests that nothing incriminating was ever said by the appellant.

The lines in cross-examination directed to establishing that even if something was said, either it was not seriously meant by the appellant or it was misconstrued by Mr Brown included: (a) Mr Brown was drunk on 20 February 1999 and must have misunderstood what was said, or remembered it defectively; (b) Mr Brown smoked marijuana on the night of 20 February 1999, and this caused him to remember events on that evening defectively; (c) the appellant, whose injuries caused him to be affected by alcohol very easily, was drunk, and hence unlikely to be truthful; (d) the divergences in Mr Brown’s versions suggested poor perception or memory.

After the tape was played, it was open to the jury to reject all these lines of cross-examination, leaving open only the possibility that the appellant had deliberately made a false confession, because the tape supported Mr Brown’s evidence that there had been a confession, and recorded an admission by the appellant that there had been one. From that moment on, it became very difficult for the defence to contend that there had never been a meeting on 20 February 1999 or that nothing capable of being understood as a confession was said. The defence had to maintain the latter line, because the appellant denied making the confession in the witness box save for a joke described as follows: “Q. Have you got any recollection at all of ever saying to Mr Brown at the hotel, ‘I killed Lyn Lock’ or words to that effect? A. Never, never said those words but one weekend he, when he was there, there was a hell lot of joking and jovial stuff going on and I was joking around and I wasn’t denying the fact that some incident happened, no-one knew what it was so I just joked along with them and then as soon as we got to the front door and as we were leaving and he turned to me and said, ‘Well, is that what happened? Did you [do] it?’ and I just thought, you know, this is my best mate and he is questioning me like this so I turned around and said Yes because nothing else jumped into me head so I said Yes.” The appellant also said, in explaining the tape of the 17 March 2000 conversation: “Well, when he said, ‘I’ve told the police everything’, well, all I could think of all he knew was I’ve been at the pub and everybody was just joking with me and ribbing me and everything like that, well when he got to the door he just said ‘yes’; he’s supposed to be me best mate and he has done all this to me; I mean, so he’s just said that, I mean, but never in any phone conversation have I ever mentioned anything like he’s recollected, like I said, because that didn’t occur.”

An issue between Mr Brown and the appellant as to whether the former misunderstood a joke and added numerous false details raises different considerations from an allegation that the gentlemen had never met at the right time or that the appellant had never said anything material at all. Incidentally, the proposition later advanced by the appellant in his evidence in chief that he jokingly told Mr Brown that he had killed the deceased was not a proposition put in terms by Mr Stratton to Mr Brown, which may have assisted the jury in rejecting the appellant’s evidence: Pearmine v R [1988] WAR 315 at 320 per Kennedy J. This circumstance was pointed out by Crown counsel after cross-examination had ceased and before re-examination began, but there was no application for leave to ask further questions in cross-examination with a view to having Mr Brown’s evidence about what became the appellant’s contention.

One aspect of the cross-examination of Mr Brown is striking, however. The appellant’s present submission is that Mr Brown was a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”, and that in consequence his evidence was of a kind which might be unreliable. If Mr Brown’s failure to report the confession speedily to the police is within those quoted words, Mr Stratton certainly cross-examined Mr Brown about that failure. But he did not ever suggest that Mr Brown was criminally concerned in the actual killing. He never suggested that Mr Brown was seeking to escape trial and conviction for the killing for falsely blaming the appellant. All he put was that Mr Brown thought the police were coming to see him because he had heard he was “some sort of a suspect too”, and when they came they told him that a brown HQ station wagon had been seen in Mathoura on the weekend of 7 February 1999, and that someone reported she had seen Mr Brown in it, to which Mr Brown said he did not own a car of that type and had not been there that weekend. “So that was the end of it. I wasn’t concerned”. The fact that the guilt of Mr Brown was not in question is supported by the trial judge’s direction to the jury that that report to the police “is not put forward at this trial as having any credibility”. Counsel for the appellant conceded during oral argument on the appeal that at the trial “it was accepted he was excluded from suspicion in relation to the murder or anything to do physically with that murder”. The failure to cross-examine Mr Brown on his guilt and on the impact of the indemnity

If the trial judge were to be invited by Mr Stratton to direct the jury that Mr Brown’s evidence was of an unreliable kind because he was implicated in the killing and because he had received an indemnity against prosecution, it would have been necessary for Mr Stratton to address the jury along those lines, and nothing in the trial judge’s summing up suggests that he did. More importantly, it would have been necessary for Mr Stratton to have elicited evidence along those lines, or at least put questions, the answers to which, if exculpatory of Mr Brown, could have been disbelieved by the jury. But, as counsel for the appellant accepted during oral argument, Mr Stratton put no question suggesting that Mr Brown was guilty. So far as he put questions suggesting that Mr Brown feared being charged, they were of the briefest kind. He put no questions about the impact of the indemnity on Mr Brown’s truthfulness. That is a fatal gap in view of the fact that the appellant now relies on R v Chai , because a key element in the reasoning in that case is the question of the “significance” the “grant of immunity from prosecution” had in relation to the “evaluation of the reliability of the witness’ testimony”. For example, it was not suggested to Mr Brown that he would not get the indemnity unless he maintained in the witness box his lying story to the police about the confession, and that was the reason why he was lying about the confession on oath. The absence of any testimonial exploration of that question in the cross-examination of Mr Brown is extremely damaging to the present argument.

Thus the failure of Mr Stratton to ask for the direction which the appellant now says should have been given was not some unfortunate oversight. It was inherent in the whole way the defence ran the trial. And the defence tactics at the trial were understandable and perhaps inevitable: first, Mr Stratton apparently had no material suggesting that Mr Brown was guilty of the killing, and, secondly, to suggest that Mr Brown was guilty of the killing might have a most damaging aspect on the appellant’s position in that it would be likely to attract jury sympathy towards Mr Brown and arouse jury antipathy against the appellant. The materials suggest the conclusion that Mr Stratton very wisely avoided that type of frontal assault on Mr Brown and confined himself to trying to raise a reasonable doubt about Mr Brown’s reliability on matters of detail. The failure to question about the indemnity is also understandable. The indemnity was not an indemnity from a murder charge, but there was no evidence that Mr Brown had committed murder. The indemnity was an indemnity from charges short of murder, but for Mr Stratton to have cross-examined about crimes short of murder and the significance of being indemnified against prosecution for them might have struck the jury as a foolish and suspicious attempt to create a red herring being perpetrated by a barrister conscious of his client’s guilt. The failure to demonstrate that Mr Brown’s evidence was of an unreliable kind

Let it be assumed that Mr Brown could have been charged as an accessory after the fact (which is questionable). Let it be assumed that he feared being charged with concealing a serious offence or with some crime in the nature of misprision of felony (which was not explored). Let it be assumed that his concealment of a serious offence caused him to fall within the language of s 165(1)(d) (which is a controversial construction). Even on those assumptions, it was not in Mr Brown’s interests falsely to fasten the death of the deceased onto the appellant. It would have been in his interests as much as those of his friend, the appellant, if the deceased had died of natural causes or at someone else’s hand. He could gain nothing by establishing the appellant’s guilt. He could bring nothing but trouble upon himself by doing so. There was nothing to suggest that his evidence fell within a “kind” that was unreliable.

One of the dangerous aspects of accomplice evidence which the general law recognised is that “an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth”: R v Ncanana 1948 (4) SA 399 at 405 per Schreiner JA (Centlivres JA and Hoexter AJA concurring). Lord Abinger CB made a similar point in R v Farler (1837) 8 C & P 106 at 108; 173 ER 418 at 419: “A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all. If a man was to break open a house and put a knife to your throat, and steal your property, it would be no corroboration that he had stated all the facts correctly, that he had described how the person did put a knife to the throat, and did steal the property. It would not at all tend to shew that the party accused participated in it.”

These considerations caused Sholl J to suggest one qualification to the approach advanced in R v Ready excluding all accessories after the fact from the field of accomplices on the ground that their interests were coincident with those of the accused. In McNee v Kay [1953] VLR 520 at 530 he said: “Whether that would always be so may perhaps be doubted when one considers the possible and by no means improbable case of a witness seeking to minimise his own part in a crime, from which he cannot in the circumstances hope entirely to dissociate himself, by reducing it from that of principal or of accessory before the fact to that of accessory after the fact, by falsifying or exaggerating in evidence the part played by his associates, or reversing his part and theirs. However that may be, if I were free so to hold, I should consider the true principle to be that that person is an accomplice within the common law rule who is chargeable, in relation to the same events as those founding the charge against the accused, with an offence (whether the same offence or not) of such a character, and who would be if convicted thereof liable to such punishment, as might possibly tempt that person to exaggerate or fabricate evidence as to the guilt of the accused.”

That reasoning has no application here. Mr Brown had no role in the crime. He had no “part” which could be reversed with that of the appellant. He gave no direct evidence of the appellant’s role in the crime which could be exaggerated. He was not peculiarly equipped with any inside knowledge. He knew nothing in particular about the facts of the death. Rather his evidence was of a confession which the appellant, in the telephone conversation of 17 March 2000, admitted making: the appellant did not deny it, he did not say that he had been misunderstood, he simply said that he had been untruthful. Any offence of which Mr Brown might have been convicted was not one which would tempt him to exaggerate or fabricate evidence about the appellant’s guilt.

As far as the appellant’s argument focuses on the language of paragraph (d) of s 165(1) there is no evidence that Mr Brown fell within those words if they are construed as limited to events up to the moment when the crime charged was complete, namely the death of the deceased on 7 February 1999. If that language extends to events after that time, which is a controversial question that need not now be decided, while Mr Brown may reasonably be supposed to have contravened s 316(1), it is arguable that his silence was not an event giving rise to the proceedings, but, as it were, a “non event” tending to prevent them from arising. However, even if Mr Brown’s silence brings him within s 165(1)(d), or even if he is within that paragraph on the ground that he may have been an accessory after the fact by telling the appellant to behave normally, the language of paragraph (d) must be read in the light of the opening words of s 165. The issue is not limited to whether Mr Brown is a witness within the language of paragraph (d), but whether the evidence which he, being a s 165(1)(d) witness, gave was “ of a kind that may be unreliable”. That is, the opening words of s 165(1) qualify paragraph (d).

Whether Mr Brown’s evidence was of that “kind” depends on the circumstances. He gave evidence in chief about the reasons for his failure to inform the police of the appellant’s confession. He repeated them in cross-examination. He was not shaken in his explanation. His account of the confession was confirmed by the tape of the conversation of 17 March 2000 admitted in re-examination. It was also corroborated to some extent by the appellant’s handing over of the will and the Browning instructions, and by other matters. None of these things meant that the jury had to accept Mr Brown. His evidence was open to various criticisms, all of which Mr Stratton seems to have made. The idiosyncrasies and particular potential deficiencies of a given witness do not of themselves make that witness a member of a “kind”, and even if they do, the trial judge repeatedly exposed those idiosyncrasies and particular deficiencies.

In R v Stewart [2001] NSWCCA 260 at [16] Spigelman CJ said, without deciding, that “kind” in s 165(1) should be read down. “The word ‘kind’ is a word of breadth and generality which it may be appropriate to read down. Any reason that could be advanced for questioning the reliability of evidence in the specific circumstances of a case can be stated at different levels of generality. Once stated at a level of generality higher than the specific facts of a particular case, such a reason could satisfy the description of ‘a kind’ of evidence. That would have the result that in every case in which an assertion of lack of reliability is made, the compulsory provisions for a warning on request in s 165(2) would apply, subject only to the exception in s 165(3). The acknowledgment, in s 165(5) that there will be other circumstances in which a judge will be required to warn or inform the jury with respect to these matters, suggests that the word ‘kind’ must be read down in some way.”

Beyond pointing to potential defects which the trial judge more than adequately highlighted, the appellant did not explain which relevant “kind” Mr Brown fell into. He did not explain how the indemnity made him unreliable, or how the characteristics which arguably placed him within paragraph (d) of s 165(1) made him unreliable. It cannot be the law that the evidence of every particular witness who receives an indemnity, or answers the language of s 165(1)(d), automatically and without any further inquiry must be held to be within a particular “kind” of evidence that may be unreliable. If Mr Brown was unreliable, it was because of the peculiar details of his stories. It was not because of s 316 or because he may have been an accessory after the fact, and it was not because of the indemnity. The indemnity protected him against unimportant crimes he may have committed. It did not protect him against being prosecuted as a principal or an accessory before the fact in relation to the crime of murder, but the appellant never suggested that Mr Brown had any complicity of those kinds in murder. The present case is totally different from R v Chai . The form of the suggested directions

In Singleton v Ffrench (1986) 5 NSWLR 425, an appeal in relation to a defamation case tried by jury, McHugh JA said at 440 (Samuels JA concurring): “Counsel for the second defendant did not expressly ask for a direction that the learned judge should direct the jury as to the criteria for determining whether or not the conduct of the defendants was improper or unjustifiable or lacking in bona fides. If a party is to rely as a ground of appeal on a misdirection in the summing-up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give.” The same duty applies in criminal cases tried by jury. It is less frequently observed than it should be. However, the merits of submissions about missing directions must be tested against the detail of what it is submitted on appeal might have been said at trial. On being asked to formulate the relevant directions in precise terms, counsel for the appellant responded: “the evidence of Mr Brown may be unreliable due to the fact that he was given an indemnity.” Counsel for the appellant then referred to the importance of giving directions about a witness who had been given a reduced sentence for co-operating with the Crown. He cited R v Stewart [2001] NSWCCA 260 at [141]-[145]. He then said that the trial judge should have explained the nature of the indemnity, and “should have indicated that the Courts over the years have given indemnities to people in situations.” Perhaps “the Courts” is a mistranscription for “the Crown” or “the prosecuting authorities”.

So far as indemnities in the nature of reduced sentences are concerned, in R v Stewart Howie J actually said that the fact of there being evidence of the witness having received a benefit for giving evidence diminished the need for any warning. In any event that circumstance is quite different from the present case. The remainder of the suggested direction lacks any meaningful content. While directions or warnings should be given if a failure to do so might cause a miscarriage of justice or some unfairness in the trial, and while they are commonly given to warn the jury against some danger not readily apparent to them, the suggested direction did not point to any danger, apparent or otherwise, against which the jury should have been on guard. To have given the direction suggested could have puzzled the jury and would have brought no legitimate benefit to the appellant. That is no doubt another reason why Mr Stratton did not ask for it.

Leave to argue that there should have been a direction about the indemnity should be refused. In consequence the first two grounds of appeal are rejected. Grounds 3 and 4: relationship evidence The grounds

These grounds are: “3. His Honour erred in permitting evidence of a relationship between the deceased and the accused to be given by a number of witnesses. 4. The evidence of Mrs Wilson and others should not have been permitted to before the jury as evidence of the fact pursuant to s 65(2) Evidence Act”.

In oral argument ground 4 was abandoned. That in turn meant that complaints about the reception of evidence that the deceased was seen to have a black eye and other injuries and was heard to say that the appellant had injured her were withdrawn. The evidence

The following passages from the evidence of five witnesses were identified as being inadmissible.

Judith Sellars (formerly known as Cooke) gave the following evidence which was said to be inadmissible. It took place in a conversation between her and the deceased about a week before 7 February 1999. “Q. Did she tell you how she felt about the accused or what her attitude was to the accused? A. Lyn did not like the accused at all.”

Mrs Robertson gave the following evidence. It was placed in a time frame of four to five weeks before 7 February 1999. “Q. Did you from time to time talk to Miss Lock about the accused? A. Only that she was very, very scared of him. Q. How did she come to say that to you, that she was scared of the accused? A. Well, I did see her with a black eye and she did tell me that Nobby, as they used to call him, had given her a black eye. Q. Did she tell you on any occasion that she was afraid of the accused, scared of the accused? A. Yeah, and she said that she was scared Nobby was around the house because she was stopping there on her own.” The first and third questions and answers were said to be inadmissible.

Mr Williams gave the following evidence about a telephone call he received from the deceased on an evening in January 1999. “Q. Did she say anything to you in relation to the accused Mr Clark? A. Yes. Q. As best you can recollect using the words that Miss Lock used, what did she say to you? A. Just that she had been bashed by that particular person on an occasion and I told her to report that to the police and she said she wouldn’t, couldn’t be bothered. Then she spoke on about different things. I wasn’t really interested because it had nothing to do with me. I don’t even know why she rang me but she did. Q. Do you know where she was living at that time? A. Nobby’s mum’s place Nolene Clark. Q. Did she say anything about if she was going to continue living at that address? A. She said they wanted her out of the house. Q. Did she say ‘they’ or give a name to the person? A. She said Nobby wants her out of the house, one of her daughters. I never took a lot of notice of what she was going on about at that particular time. They just wanted her out of the house and she said to me her friend in the house was in hospital and I said: ‘Wait till she’s out of the hospital. It has nothing to do with me, wait and have a talk with her.’ Q. How long did this conversation with Miss Lock go on for? A. Five, ten minutes probably, thereabouts. I never took particular notice of the time.” That evidence was not the subject of complaint by the appellant, but it was succeeded by the following evidence, which was: “Q. Apart from saying that Mr Clark wanted her out of the house, did she say anything else? A. She just said that she was scared of him and later on, she mentioned to me later on: ‘If anything ever happens to me just mention it to the police.’ Q. Mention what to the police? A. If she disappeared or anything happened to her just to report it to the police because she was scared of him. Q. Did she tell you what to report to the police? A. Just that she went missing. Q. What were you to report to the police in that circumstance? A. Just if she had gone missing, if she had gone missing, or if something strange happens just to report it to the police because it would be something to do with Nobby.”

Mrs Williams said that the morning after the telephone conversation which the deceased had had with her husband, which she thought was closer to the end of January than to the beginning, the deceased telephoned her. The following evidence was given, inadmissibly in the appellant’s submission: “Q. What did she say in relation to Mr Clark? A. Do you want the words? Q. Yes. A. She said: ‘That bastard’s going to kill me. What do I do?’ Q. Speak up loudly and slow down? A. Okay. She said: ‘That bastard’s going to kill me’, and she was very frightened. I told her to go to the police. Q. When you say she was very frightened, is that what she told you? A. Yes. Q. Or is that an impression you got? A. Another thing she said was: ‘I’m shit scared of him.’ Q. Did she say anything to you in relation to where she was living? A. She had told me previous to that that she was having problems living there and she was hoping to move out she said at that stage with Casso but they hadn’t as yet moved, she hadn’t as yet moved, and Steven was giving her a hard time being there.” She then gave evidence of an occasion in January 1999 when her own mother and Mrs Heil were both in hospital in Deniliquin, and she spoke to the deceased about visiting Mrs Heil. The following evidence was given, inadmissibly according to the appellant: “Q. When you spoke with her about visiting Mrs Heil what did she say? A. I said: ‘I’m going up to see Mum, do you want to come up and see Nolene?’ She said: ‘If I go up there and Nobby finds out he’s going to kill me’.”

Finally, Mrs Wilson gave evidence that she encountered the deceased in the Middle Hotel on the evening of Friday 5 February 1999 at about 10 pm. “A. She said: ‘Chooky, I’m frightened’ and I said: ‘What do you mean, Lyn?’ She said: ‘That B’s out to kill me’ and I said: ‘What do you mean by that?’ She said: ‘You know, he’s out to get me’ and I said: ‘Well, where is Casso?’ She said: ‘He’s giving me such such a hard time too’ and she followed me out the door. Q. Stopping you there, when she said ‘that B’s out to kill me’ would you be able to tell us what she actually said? If there was a swear word you can tell us that swear word? A. Beg yours? Q. If there is a swear word you are able to tell us that word? A. Am I? Q. Yes. A. She just stated – she was agitated and I would say she seemed quite intoxicated and she just said: ‘That bastard’s out to get me’ and I said: ‘What do you mean, Lyn?’ She said: ‘I am frightened, chooky, he’s out to get me.’ I said: ‘What about Casso, where’s he?’ She said: ‘He’s giving me the fucking shits too.’ Q. When she said: ‘He’s out to get me, that bastard’ or whatever the words were, did she tell you whom she was referring to? A. No, yeah, Nobby. I said: ‘Who do you mean?’ She said: ‘Nobby’.” The references to “Casso” were references to Mr Robertson, with whom the deceased had had a sexual relationship, and with whom she was planning to live in rented accommodation from 8 February 1999. The authorities relied on by the appellant

The first submission which the appellant advanced to this Court was put thus: “The evidence was not direct evidence as was the case in the Wilson case (Wilson v The Queen) 1970 123 CLR 334) where the evidence of relationship was permitted but where the evidence consisted of a statement by the deceased to the accused and overheard by others to the effect that he threatened to kill her and why did he not get it over and done with. In that sense they were clearly statements of the deceased’s state of mind at the time but that state of mind as it existed whether it be correct or incorrect was expressed to the accused. Wilson was followed by Ratten 1972 AC 378 and later in 1989 by Walton (1989) 166 CLR 283 which in short could be said to be authorities for the proposition that the state of mind or belief can be received in evidence if such state of mind or belief is relevant. The state of mind of the deceased in this case is not relevant nor is it submitted is it evidence that would have been permitted to have been given by the deceased if the Appellant had been charged with for example a serious assault and that the deceased was available to give evidence. The evidence here is of course further removed from that factual matrix in that the evidence that was permitted was of an independent person, or third person, being told by the deceased certain things which were then repeated by that person in evidence their context and reliability can never be tested.”

The appellant also relied on R v Frawley (1993) 69 A Crim R 208 for the proposition that statements by one party to a relationship about her state of mind which were not in the presence of or communicated to the other were inadmissible.

It is convenient to consider what was said in the authorities referred to by the appellant.

In Wilson v R (1970) 123 CLR 334 at 336-337 Barwick CJ summarised the facts thus: “The applicant’s wife died of gunshot wounds received by her whilst she was driving a tractor drawing a load of hay during the hours of day on a property in Victoria which the applicant was managing. The applicant had borrowed a shotgun from a neighbour, as he claimed in his evidence, for the purpose of shooting rabbits. On the day of his wife’s death he had placed the rifle on the top of the load of hay. He claimed that he had set the safety catch on the gun by pushing it forward. In fact this action released the safety catch: but the applicant denied that he knew this. He claimed that he had not discharged the gun but that it had discharged accidentally, perhaps when a dog had jumped upon the load of hay. There were no eye witnesses present. The contest at the trial was as to whether the applicant, admittedly present at the time, had shot his wife in the back of the head or whether the gun placed on the load of hay had accidentally discharged at a time when it was pointing towards the back of her head, the jury having of course to be satisfied beyond reasonable doubt that the applicant had discharged the gun before they could convict.”

Barwick CJ then said (at 337-340): “It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility. It was submitted on behalf of the applicant that evidence of the relationship of the parties was only admissible in so far as it furnished evidence of a motive which the applicant might possibly have had to have killed his wife. In support of this limited admissibility of such evidence, reference was made to R v Munn [[1930] NZLR 1017 at 1029]; Reg v Tsingopoulos [[1964] VR 676; R v Barbour [[1939] 1 DLR 65]. Before making a brief reference to these cases, I should observe that we are not concerned here with the reception of evidence of prior acts in order to establish systematic conduct or to negative accident, a matter with which the court was dealing in R v Bond [[1906] 2 KB 389]. None the less the sentence in the judgment of Kennedy J in that case from which I now quote whether or not so intended, is, as a statement of relevance, in my opinion, of universal validity and is not limited to any particular aspect of the relationship of which his Lordship spoke. ‘The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.’ [[1906] 2 KB at 401] In this statement ‘the conduct of the accused’ of which the relationship of the parties may be explanatory will not necessarily be limited to the act charged, as in this case, the act of shooting, but will extend, in my opinion, to any act of the accused the proof of which is itself relevant to the question whether the accused in fact did the act charged. Here the question was whether the deceased fired the gun. If he did, no other question remained. The relations of the parties, in my opinion, may be relevant to that fact. In R v Barbour [[1939] 1 DLR 65 at 66] evidence of quarrels which were no more than ‘transient ebullitions of annoyance and anger on the part of the accused which immediately passed away and led to nothing’ and which did not proceed from hostility or enmity nor tended to show the existence of or to promote such feelings were ruled inadmissible. Sir Lyman Duff CJ said: ‘If you have acts seriously tending, when reasonably viewed, to establish motive for the commission of a crime, then there can be no doubt that such evidence is admissible, not merely to prove intent, but to prove the fact as well. But I think, with the greatest possible respect, it is rather important that the courts should not slip into a habit of admitting evidence which reasonably viewed cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties.’ [[1939] 1 DLR at 67] If the words ‘or to explain the acts charged’, which are to be found in the latter part of this quotation were inserted as they may well have been intended to be, after the word ‘motive’ in the earlier part of the statement, I would respectfully agree with what the learned Chief Justice said: but otherwise I am unable to accept the limitation on the admissibility of the evidence which the learned Chief Justice’s words if not so expanded would seem to imply. Here the question is not whether a motive or some particular intent can be found or assigned for or in connexion with a killing but of choosing between the competing views in point of fact of accidental discharge of the gun and its discharge by the act of the accused. No doubt in the text books it is the inference of motive which is said to be open on evidence of bad feelings between the parties or of the terms on which they have lived. See Hale, Pleas of the Crown, vol 1, p 451, Halsbury’s Laws of England, 3rd ed, vol 14, par 491, Phipson on Evidence p 151. But it is clear that such evidence may also provide material on which the fact of the killing may be inferred. See for example per Lord Atkinson in R v Ball [[1911] AC 47 at 68]; per Sir Lyman Duff [[1939] 1 DLR at 67]. It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible. Of that kind was the evidence in R v Barbour [[1939] 1 DLR 65]. It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn. Here, there is no question of the remoteness in point of time of the occasions of which evidence of quarrelling was tendered and the time of the act charged, as was the case in Reg v Tsingopoulos [[1964] VR 676]. Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible. But it was also objected that, whilst evidence of statements of the applicant indicating his attitude to the deceased and statements of the deceased which could be regarded as likely to create animosity in the appellant towards her would have been admissible, evidence of statements by the deceased as to what she considered the appellant’s attitude to her to have been were inadmissible. It may at once be conceded that, if the statement attributed to the deceased had not been part of the evidence of a quarrel of a significant kind, the statement of her opinion of the applicant’s attitude or intention towards her would have been inadmissible. cf Reg v Bedingfield [(1879) 14 Cox CC 341]. But in this case the evidence of the statement was part of the evidence of a quarrel between the parties and, indeed, the words spoken in the course of that quarrel were indicative of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached. It is impossible, in my opinion, to maintain the proposition that though the fact of quarrelling may be admissible, the primary evidence of the quarrelling, namely the words and gestures passing between the parties in the course of the quarrel, may not. Of course, care must be taken by appropriate directions to the jury to properly confine their use of such statements. Here the trial judge took adequate precautions in that behalf. In my opinion, the evidence of what the deceased said in the course of these quarrels between herself and the applicant was admissible. Then it is submitted that the evidentiary value of the evidence to which I have referred was relatively small and that the judge ought to have exercised his discretion to exclude the evidence because of the highly prejudicial effect that evidence of such statements by the deceased could have in the minds of the jury. It is quite true that the Crown had upon the other evidence it produced at the trial a strong case. But though there was a strong case, and evidence of other quarrels in which the statements to which objection is taken were part of the evidence of the continuity of the quarrelling and of the depths to which the relationship of the parties, as husband and wife, had sunk. Of course, the deceased’s statements were most damaging to the applicant but they were not merely prejudicial. There was no reason, in my opinion, to deny the prosecutor the benefit of the evidence. In my opinion, neither of the statements ought to have been excluded in the exercise of a judicial discretion.”

Menzies J (with whom McTiernan J and Walsh J agreed) said at 343-345: “It was contended by counsel for the applicant that the evidence of what the wife said on these two occasions was not admissible because her words could not be regarded as providing a basis for a homicidal response by the applicant or as giving the applicant some motive for killing his wife. The contention that the evidence was admissible only if the words could reasonably be regarded as causally related to the wife’s death in one or other of the ways stated was based upon a passage in the judgment of Kennedy J in R v Bond [[1906] 2 KB at 400-401], which followed a statement relating to the admissibility of evidence of prior criminal acts to prove the crime charged, and was as follows: ‘Such prior acts formed, in point of historical and circumstantial connexion, inseparable parts of the transaction which the jury had to investigate. Within this same limitation, I think, come the cases of trials for murder and wounding with felonious intent, in which evidence is admissible to shew prior assaults by the prisoner upon the murdered or injured person or menaces uttered to him by the prisoner, or to shew conversely irritating behaviour by the deceased to the prisoner, as in Reg v Hagan [(1873) 12 Cox CC 357]. The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.’ In my opinion this statement affords no justification for the limitation for which counsel for the applicant has contended. The essential parts of his Lordship’s statement is to be found in the words: ‘The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial. [[1906] 2 KB at 401] These words are fatal to the contention of counsel for the applicant and are not to be read down by the words which precede them. It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide. The next submission that there had been a mistrial rests upon what was put as a wrong exercise by the learned presiding judge in failing to exclude the foregoing statements of the wife on the ground that their prejudicial effect was out of all proportion to their probative value. In the light of the other evidence I have found no reason to think his Honour was in error in admitting what, for the purpose of this argument, is conceded to be admissible evidence. His Honour carefully directed the jury upon the use that they could make of the evidence and warned them against treating the statements as evidence of the actual state of mind of the applicant.”

R v Frawley (1993) 69 A Crim R 208 was a case in which the accused was convicted of murdering his de facto wife. There was evidence the admissibility of which was not challenged that there had been numerous arguments between the accused and the victim and that he had told a witness, Mrs Jeacle, that he hated the victim, and that he had decided to leave her. Gleeson CJ said that this evidence was “admissible because the nature of the relationship between the appellant and his wife was relevant” (at 218). He also said that the admissibility of evidence from Miss Mulqueen that she had heard loud quarrelling between the accused and the victim was not in issue. However, the reception of other evidence was complained about. Gleeson CJ said at 220-1: “The challenged evidence was given by the deceased’s daughter, Lisa Mulqueen. It took two forms. First, Lisa Mulqueen said that, shortly after her mother’s death, whilst cleaning the house at Umina, she found amongst her mother’s personal effects a document in the nature of a diary note, in her mother’s handwriting. The document was tendered in evidence. It is headed: ‘Reasons for Ending Relationship with M’. The document listed, in some detail, what were regarded by the deceased as serious personal deficiencies on the part of the appellant. He was said to have acted cruelly towards the [deceased’s] dog, to have been extremely jealous of the [deceased’s] relationship with others, including males, to be uncivilised if guests came to the house, and to be a drain upon the deceased’s finances. More significantly, the document recorded that the appellant was ‘definitely unbalanced when drinking’ that he was a ‘potential threat’ to the deceased, that he had a ‘nasty side to him when drinking’ that he engaged in ‘crazy behaviour’ and that he had a ‘crazy look in his eyes’. Lisa Mulqueen also gave evidence of a number of conversations, including telephone conversations, she had with her mother. In the course of those telephone conversations, the deceased made allegations of misconduct and violence on the part of the appellant. The appellant was said to have accused the deceased of being unfaithful. The deceased told her daughter on a number of occasions that she was afraid of the appellant, and that he had been physically violent towards her. The deceased said that the appellant was throwing her personal belongings around the house. She said that on one occasion he threw a bucket of water over her whilst she was in bed. On another occasion, after a violent quarrel, the deceased rang her daughter and said that ‘she felt that she could see her brains splashed against the wall and that she was terribly frightened’.”

Gleeson CJ summarised and quoted from the reasoning of Barwick CJ in Wilson v R . He said of Barwick CJ’s reference to R v Bedingfield (1879) 14 Cox CC 431: “That was a case in which it was held that the prosecution could not lead evidence of what was said by a woman who emerged from a room with her throat cut. Evidently the evidence was regarded as hearsay, but it was sought to be led on the basis that it came within an exception to the hearsay rule, either as a dying declaration or as part of the res gestae. Whether Bedingfield was correctly decided is not material to this case. Those grounds of admissibility were not available in Wilson or in the present case. It is not entirely clear whether Barwick CJ was saying that evidence of the kind referred to in the passage just quoted would be inadmissible as hearsay, or as opinion, or both. However, his Honour was making the point that the evidence that was called in Wilson was direct evidence of a quarrel. The witnesses gave direct evidence of their observations of the relationship between the accused and the deceased. No one suggested that the evidence could be used as proof of the correctness of the belief asserted by the deceased, ie, that her husband wanted to kill her. However, what was done and said between them, as deposed to by witnesses who saw and heard the acts and words, was evidence of a bitter relationship, and the existence of such a relationship was a fact relevant to a fact in issue at the trial. As a matter of logic, a question arises as to why the fact that the wife’s accusations against her husband were made in his presence should be essential to the admissibility of such evidence, bearing in mind that the evidence was not led to prove the truth of the accusations. Menzies J, with whom McTiernan and Walsh JJ agreed, said (at 344): ‘Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her.’ In terms of the relevance of the evidence, it might be asked what the words ‘in the course of a quarrel’ add to the point being made in the last sentence of that passage. Yet, as was noted earlier, Barwick CJ treated that as the key to the admissibility of the evidence. Why might it not also speak eloquently of a bitter relationship between husband and wife that the wife should tell a third party, in the absence of her husband, that her husband wanted to kill her?”

He then referred to later authorities in the following way (219-220): “Wilson was decided before Ratten [1972] AC 378 and Walton (1989) 166 CLR 283; 38 A Crim R 276. Those cases show that, in certain circumstances, evidence as to, or which reveals, a state of mind, or belief, or intention, may be received as original evidence if such state of mind, or belief, or intention is relevant. In Ratten the emotion of anxiety or fear revealed by a person who made a telephone call was regarded as a fact relevant to a fact in issue, and what the caller said was original evidence of the existence of that emotion. The question of relationship evidence was considered in the Queensland case of Mills [1986] 1 Qd R 77; (1985) 16 A Crim R 366, where McPherson J said (at 85; 373): ‘A ‘relationship’ between two persons is ordinarily capable of being established only by evidence of a series of acts between those persons …’ In Matthews (1990) 58 SASR 19 the Supreme Court of South Australia held inadmissible evidence of witnesses that a deceased person had told them she was in fear of the appellant. Those statements were not made in the presence of the appellant, but they were treated as original evidence of the state of mind of the deceased which threw light upon aspects of her relationship with him, which were in turn relevant to the charges of rape and murder. They went to the issue of consent, and to other factual issues that were of significance. One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question. Frequent and serious quarrelling between a couple, of a kind that goes beyond what Menzies J referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial. That is one kind of relationship evidence. What, however, of evidence of the state of mind of one party to a relationship? If one party to a relationship is accused of murdering the other, admissible evidence of the accused’s state of mind may well be relevant. It is less likely that evidence of the victim’s state of mind will be relevant, although, as the authorities cited above show, it may be relevant, depending on the issues in the case. Again, evidence that one party says things derogatory of the other party, in the other party’s absence, is a form of relationship evidence. Whether or not it is admissible may depend upon the circumstances, and it is not particularly helpful to begin with an assumption that, in a case of homicide involving a man and a woman, evidence of their relationship is admissible. In this case I find it preferable to avoid the label ‘relationship evidence’ and to seek to describe more accurately and more particularly the subject matter.”

The precise nature of the controversy between the parties in R v Frawley on appeal is obscure. Gleeson CJ noted that at the trial the argument for reception of the evidence was that the fact that the deceased was writing and saying what she did about the accused was evidence that their relationship was bad, but not that what she said proved the truth of the matters recorded or proved that her opinions were well founded. Gleeson CJ recorded the proposition that it was common ground that so far as the statements were hearsay they were inadmissible. He also recorded a concession by senior counsel for the accused that the evidence had relevance and probative significance. Gleeson CJ’s reasoning appeared to be directed to a destruction of that concession; since the Crown evidently did not attempt to fit the evidence into an exception to the hearsay rule, the accused’s argument that the evidence was hearsay was beside the point.

Gleeson CJ (Carruthers J concurring) said (at 222-223): “In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to ‘relationship’ but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue. The handwritten note was direct evidence of some facts and hearsay as to other facts, many of which were obviously irrelevant. It was direct evidence of the fact that the deceased could write; it was hearsay evidence of the fact that the appellant was impolite to visitors. Neither of those two facts was relevant. There are, it seems to me, only three possibly relevant facts of which it was direct evidence, and it is necessary to consider the relevance of each of these in turn. First, the note was direct evidence of the fact that the deceased had made a list of reasons for terminating her relationship with the appellant, from which it might be inferred that she was contemplating such a termination. There is, however, no evidence that she ever told that to the appellant. That fact, therefore, does not tend to prove that he intended to kill the deceased, or had a motive for doing so, or even (although this was not seriously in issue) that it was the appellant who killed the deceased. Secondly, the note was direct evidence of the deceased’s state of mind in various respects. Her annoyance at the appellant’s treatment of her dog was an irrelevant state of mind. What, however, of her fear of the deceased and her apprehension of violence? The fact that the deceased feared the appellant does not tend to prove that he killed her, or that he acted towards her with a certain intent. What would tend to prove that would be evidence that the fear was well-founded on the basis of past happenings, but that is the very matter which the document cannot be used to prove. Thirdly, the document was direct evidence of the fact that the deceased, in a private diary note, made statements severely critical of the appellant. There is no evidence that she communicated those statements to him. I am unable to see how this fact has probative significance in relation to an issue in the case. Similar reasoning applies to the conversations between the deceased and Lisa Mulqueen. The second and third points apply equally. The document, and the conversation, were, of course, hearsay evidence of some matters of clear relevance. But they were not tendered in evidence to prove those matters and it is common ground that, in so far as they were hearsay, they were inadmissible. They were only tendered on the basis that they were direct evidence of some fact relevant to a fact in issue. On analysis, however, once one examines with some particularity the precise facts concerning the relationship between the appellant and the deceased of which this material was direct evidence, it appears that those facts were not of probative significance. For these reasons I consider the evidence was inadmissible.”

The conclusion that the relevant facts were not of probative significance appears to be that the evidence lacked relevance, or at least that it lacked sufficient relevance to be received.

Sheller JA drew attention to three decided cases in which evidence of mental states was admitted (at 227-228): “In Ratten [1972] AC 378 a telephonist gave evidence that the deceased victim of an alleged murder, while sobbing and in an hysterical state, said some three to five minutes before she was shot dead by the accused, ‘Get me the police please’. Lord Wilberforce delivering the reasons of the Privy Council (at 387-388) said that this evidence was not hearsay evidence and was admissible as evidence of fact relevant to an issue, the fact being that the deceased woman at that time was in a state of emotion and fear. The issue was that raised by the appellant’s account of the shooting that the gun discharged accidentally while he was cleaning it. Similarly an expression of fear and a wish not to see an accused has been held relevant and admissible to rebut an accused’s claim that subsequent sexual intercourse with the deceased victim of an alleged murder was consensual: Matthews (1990) 58 SASR 19. In Walton (1989) 166 CLR 283; 38 A Crim R 276, the majority of the High Court held a statement by a murder victim of her intentions to be admissible if relevant to a fact in issue. At 291-292; 281 Mason CJ said: ‘In the present case, there was independent evidence from Miss Bragg that the applicant had told her that he had arranged to meet the deceased at the town centre at 7 pm on the night in question. It is the conjunction of this independent evidence of the making of the arrangement between the applicant and the deceased and the evidence of the deceased’s intention to travel to the town centre to meet the applicant that provides a foundation for the inference that they went to the town centre and met there.’ Such evidence is nonetheless admissible because it contains assertions of fact. In their joint judgment (at 304; 290) Wilson, Dawson and Toohey JJ said: ‘The distinction to be drawn is that to which we have referred, namely, the distinction between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible’.”

He then said (at 228): “The deceased’s statements in her handwritten note and to Lisa Mulqueen are no evidence of the appellant’s attitude or feelings towards her nor of acts of violence or hostility to which he subjected her. They are not evidence of fear felt by her immediately before she was killed. They are not evidence of a mutual relationship but at best evidence of the deceased’s feelings towards the appellant. They consist of her account of the appellant’s behaviour to her as expressed as grounds for her feelings of fear but not linked to any admissible testimonial material. The only evidence of the appellant’s attitude to the deceased or of violent behaviour by the appellant before the killing was found in Mrs Jeacle’s account of arguments and of what the appellant had said to her and in Miss Mulqueen’s account of loud shouting in the early hours of the morning when she was staying at Umina. The deceased’s statements were not admissible as evidence of the facts asserted. They were not made to or in the presence of the appellant. In my opinion the deceased’s fear of the appellant expressed in her handwritten note and to her daughter was not relevant to any fact in issue. The deceased’s state of mind was not relevant to the appellant’s motive. It did not explain the events of the night of 6 May 1988. It did not help in identifying the appellant as the killer or in rebutting his defence of automatism. In my opinion the statements should not have been admitted into evidence.” Other relevant cases

There is a blessed vagueness in the expression “relationship evidence”, and it is very widely used, but it is not a satisfactory expression. Accordingly there is force in Gleeson CJ’s preference for considering whether the evidence was direct evidence of any fact relevant to a fact in issue. He concluded that it was not. While he did not regard it as necessary to show that the evidence was (like that of Mrs Jeacle and Miss Mulqueen to which objection was not taken, or like that in Wilson v R ) evidence of conduct between the accused and the victim such as quarrels, he did consider that it had to be shown that the victim’s reasons for terminating the relationship or criticisms of the accused had been communicated to the accused. And he considered that the victim’s fear had to be shown to be well-founded on the basis of past events, which could not be done without a hearsay exception applying.

“Relationship” evidence is often tendered in areas that are remote from the present context, for example cases where the criminal acts charged against the accused formed part of a continuous course of conduct in the preceding hours ( O’Leary v R (1946) 73 CLR 566) and cases where a sexual relationship is proved in relation to charges of sexual offences (see cases summarised by McHugh J in KRM v R (2001) 178 ALR 385 at [24]). These authorities cast little direct light on the present problem.

However, there are other authorities in the fields with which Wilson v R and R v Frawley were concerned which are useful. They have been usefully surveyed by Howie J in R v Toki (2000) 116 A Crim R 536 at [23]-[30], but some particular passages have specific relevance to the present problem. In R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 128-9 Maguire J held that evidence of uncharged assaults by a man accused of assaulting the victim was admissible: “I think, indeed, the evidence of the other assaults was admissible and its reception would have caused no difficulty if the jury’s attention had been directed to the real and only issue which it had to determine, namely, whether the November assault took place and whether, as a result of that assault, Rasmussen was caused actual bodily harm. In my opinion evidence was admissible as to the relationship between Rasmussen and the accused over the period of five or six months preceding November 1962. If, for instance, instead of assaulting Rasmussen on these earlier occasions the accused had been heard to express great hostility to or contempt for him, I think that evidence to that effect would have been admissible on the question of whether Rasmussen was assaulted by the accused in November. Furthermore, if actual threats to injure Rasmussen had been made from time to time, I consider that evidence of such threats would have been admissible. Such evidence would have been logically probative in relation to the issue which had to be submitted to the jury at the trial. If the earlier conduct of the accused went beyond expressing hostility or threats and amounted to actual physical violence towards Rasmussen, I cannot see that evidence of it would become inadmissible because it disclosed other offences on the part of the accused. Such evidence should be regarded not merely as evidence that the accused had committed other offences but as disclosing an atmosphere of hostility towards Rasmussen during the period of their relationship. This, I think, would be relevant and legally admissible; not for the purpose of showing that because the accused had committed other offences he was likely to have committed the one charged against him, but as part of the background of the relationship between the two men and as establishing (if accepted by the jury) an atmosphere which would render it less unlikely that the offence charged would have been committed in the circumstances which arose on the occasion of that assault, having regard to the past relationship of the principals. To regard such evidence as inadmissible would be to insist that the incident in November 1962 be considered in isolation and in an atmosphere of unreality.”

In R v Iuliano [1971] VR 412 at 416 Winneke CJ, Little and Gowans JJ said: “It is not necessary that any particular incident related in evidence should, regarded singly, and of its own force, establish a relationship of enmity or distrust. It is sufficient if the incident related makes a contribution which is not insignificant or unsubstantial to a climate of antipathy. Of course, if the incident is isolated and at a considerable distance of time before the death, it may afford no evidence at all of relations between the parties at the time of the death which could have any bearing on motive or intention. If it is not too remote, and its existence along with other incidents or circumstances related in evidence tends to establish a climate of the kind referred to, the evidence of the incident is relevant. We think that the act of a wife in publicly charging a husband to his face with having done something to cause serious physical injury to her, calculated as it is to provoke in him feelings of irritation, animosity or indignation, and made in the setting of a quarrel, or what may fairly be regarded as such, may be regarded as making a real contribution to an atmosphere or climate of enmity or distrust. It is a fact tending to prove a fact which is itself relevant, namely, a relationship between the two which is explanatory of the conduct of the accused.”

In R v Hissey (1973) 6 SASR 280 at 288-289, Bray CJ, Hogarth and Mitchell JJ held admissible evidence that the accused, who was charged with the murder of a woman with whom he had been living, had used and threatened physical violence towards her. “Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased (Wilson v The Queen [(1970) 123 CLR 334]. We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R v Ball [[1911] AC 47], per Lord Atkinson at p 68; Wilson v The Queen [(1970) 123 CLR 334], per Barwick CJ at p 339. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased. The jury evidently declined to give effect to it for the former purpose, since they acquitted the appellant of murder, but they were at liberty to use it for the latter.”

In R v Heath [1991] 2 Qd R 182 at 204 Cooper J said: “Relevantly for this appeal, evidence of relationship, if it goes to establish the probability or otherwise that the appellant committed the offence, is admissible and such evidence is not limited to cases where motive (however defined) is sought to be proved. ... Thus, evidence is admissible to show that the relationship between an accused and the deceased was a normal relationship of loving and caring as for example, between husband and wife or parent and child. Such evidence is admissible in order to found an inference that an accused had no motive for the crime (using the term in both its senses) or had a positive motive not to alter an existing relationship e.g. where the husband was the sole provider of the material welfare of an accused. The reception of such evidence is of long standing. … Such evidence is also admissible to assist the jury in its assessment of the proven facts against the background of such a normal relationship …. Where there is evidence to show that a relationship is other than normal, then that evidence is relevant and admissible because it rebuts the drawing of any inference which otherwise might be drawn from an apparent normal relationship. It may also found a basis for the drawing of an inference of motive (however defined), and it completes the entire circumstances upon which the jury must determine a case which is entirely circumstantial …. Evidence of relationship which does not tend to increase or decrease the probability that a fact in issue existed is not relevant and is admissible. … Thus, the evidence of relationship must be such that a relevant inference may logically and reasonably be drawn in respect of a fact in issue. Where evidence of relationship or conduct or acts between parties is remote in point of time to the acts charged, it is probable that such evidence will be inadmissible because it cannot logically or reasonably support a relevant inference ….”

In R v Fulcher [1995] 2 Cr App R 251 at 258 the Court of Appeal (Kennedy LJ, Kay and Keene JJ) approved the following observation of Purchas LJ: “Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.”

The Court of Appeal (Lord Bingham of Cornhill CJ, Tucker and Hallett JJ) expressed the same principle thus in R v Sawoniuk [2000] 2 Cr App R 220 at 234: “Criminal charges cannot be fairly judged in a factual vacuum. In order to make a rational assessment of evidence directly relating to a charge it may often be necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the offences are said to have been committed.”

In R v Vollmer [1996] 1 VR 95 at 132 Southwell and McDonald JJ said: “it is ordinarily relevant to the prosecution case in offences against the person such as murder, manslaughter, recklessly causing injury and false imprisonment, to establish the relationship between the accused and the victim, whether that goes to prove intent, to negative accident or to negative defences which may be raised thereafter, subject to the possible rejection of that evidence or parts thereof on the ground of prejudice.”

In Gipp v R (1998) 194 CLR 106 at [181]-[182] Callinan J adopted a more cautious approach, at least in sexual cases: “I do not accept that non-specific highly prejudicial evidence may be led by the prosecution, and juries told that it might provide ‘part of the essential background’ [B v The Queen (1992) 175 CLR 599 at 610, per Deane J] against which the other evidence is to be evaluated. I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defendant that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such.” See also Gaudron J at [11].

In Kailis v R (1999) 21 WAR 100 at [192], another sexual case, Ipp J said: “These observations stress that relationship (or background) evidence is only admissible if it serves an appropriate forensic purpose; that is to say, it must have some specific relevance to the issues raised in the trial. It is not a special category of evidence that is admissible in every case.” That is true, though sexual cases may well raise different considerations from murder cases. In any event, this Court has held that the opinions of Gaudron J and Callinan J do not command a majority in the High Court and, in the face of competing authority in the High Court and this Court, should not be followed until they do: R v Fraser (NSWCCA, 10 August 1998, unreported, Mason P, Wood CJ at CL and Sperling J); R v MM (2000) 112 A Crim R 519 at [47] per Powell JA, Hulme and Dowd JJ concurring. See also KRM v R (2001) 178 ALR 385 at [31] per McHugh J. The impact of the Evidence Act, s 55(1)

Most of the cases just referred to were decisions on the common law. The admissibility of the evidence in this case is governed by the Evidence Act 1995. The first issue which that Act raises is whether evidence claimed to be inadmissible is relevant. Section 56 provides: “(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.” Section 55(1) provides: “The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” It is also necessary to bear in mind ss 135-137: “135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 136 The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing. 137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

Section 55(1) is almost identical with clause 43(1) of the Evidence Bill appearing in the Australian Law Reform Commission’s Interim Report on Evidence (1985, ALRC 26) volume 2. (The substance of clause 43, and related provisions, was retained in the Final Report (ALRC No 38), paras 122-125, and adopted by the NSWLRC Evidence Report (LRC 56), para 2.37.) The use of that language was intended to overcome various criticisms which the ALRC made of the common law (see volume 1 paras 313-316 and 638-647; volume 2, Appendix C, paras 55-59). The ALRC said its proposals were “directed primarily to enabling the parties to produce the probative evidence that is available to them” (volume 1 para 82). It said: “the fact finder should take into account all evidence which has a rational bearing upon the questions at issue” (volume 1 para 638). It continued (at para 640): “The primary rule is stated as at present – if irrelevant not admissible; if relevant, admissible (subject to the exclusionary rules). The proposal, however, addresses the criticisms made of the existing law. It articulates the mental processes inherent in existing law. This is done by two provisions – one defining relevance in terms of being capable of affecting the assessment of the probabilities and the other spelling out in a judicial discretion the policy considerations, presently concealed, which lie behind any decision on the relevance of evidence.2” Footnote 2 refers to clauses 43 and 44 (the precursors to ss 55 and 56) and clause 114 (the precursor to s 135). The report continued (volume 1 para 641): “The definition requires a minimal logical connection between the evidence and the ‘fact in issue’. In terms of probability, relevant evidence need not render a ‘fact in issue’ probable, or ‘sufficiently probable’ – it is enough if it only makes the fact in issue more probable or less probable than it would be without the evidence – ie it ‘affects the probability’. The definition requires the judge to ask ‘could’ the evidence, if accepted, affect the probabilities.4 Thus, where a judge is in doubt whether a logical connection exists between a fact asserted by evidence and a ‘fact in issue’, he should hold that the evidence is relevant if satisfied that a reasonable jury could properly find such a logical connection. An indirect connection with a matter in issue is sufficient (eg evidence that an accused expressed an intention to kill the victim leads from the inference that he did in fact have such an intention to the inference that he is more likely than others who did not express such an intention to have killed the victim). The concept extends to evidence affecting the credibility of a witness (relevant because it affects the weight of testimony) and evidence which relates to the admissibility of other relevant evidence. To remove argument, specific mention is made of such evidence in the legislation. The definition embraces two concepts: (a) the logical connection between evidence and facts; and (b) the requirement that the matter on which the evidence ultimately bears is a matter in issue in the trial. Whether or not a matter is in issue is a question of law, determined by substantive law and pleadings. It is not necessary that it be disputed by the parties.” The reference in footnote 4 is to Appendix C para 58. Paragraph 58 contended that among the competing formulations of relevance tests at common law “a clear dichotomy exists between those cases which require that the judge be satisfied that the evidence actually affect the probabilities to be relevant, and those which merely require that it be ‘reasonably capable’ of meeting the standard adopted.”

The ALRC was plainly intending to adopt the latter approach. A wide category of evidence is capable of being admitted as “relevant”. It may be excluded by the exclusionary rules to be found in part 3.2-part 3.10, or by the “discretions” in part 3.11, of which the relevant provisions are ss 135-136 (which confer genuine discretions) and s 137 (which though cast in terms of “weighing” does not in truth confer a discretion).

Thus McHugh J said in Papakosmas v R (1999) 196 CLR 297 at [80]-[81]: “The scheme and terms of the Act, the Law Reform Commission Reports which were its basis and the common law rules show that the reliability of out-of-court statements is primarily addressed by the hearsay rule and is not the concern of relevance, a concept that is concerned with logic and experience. Section 55 itself is a decisive answer to the appellant’s contentions. The words ‘if it were accepted’ in that section make it clear that a court assesses ‘the probability of the existence of a fact in issue’ on the assumption that the evidence is reliable. In the Interim Report of the Australian Law Reform Commission that led to the enactment of the Act, the Commission pointed out that distinguishing between ‘legal’ and ‘logical’ relevance disguised the myriad policy considerations that contributed to the former. The Commission thought that, as a threshold test, relevance should require only a logical connection between evidence and a fact in issue. To the extent that other policies of evidence law, such as procedural fairness and reliability, required the strict logic of the relevance rule to be modified, that could best be done by the exclusionary rules – such as the hearsay rule and the credibility rule – and by conferring discretions on the court as in ss 135-137. The terms of s 55 indicate that it was intended to give effect to the Commission’s view as to the proper approach for determining the relevance of evidence.” On the other hand, Gaudron and Kirby JJ said at [46] that “the statutory concept of relevance does not involve any real departure from the common law”, and at [47] that “the statutory concept of relevance can fairly be equated with the common law concept”. The ALRC’s position was that the statutory concept of relevance it was recommending corresponded with one strand of common law thinking but this entailed a rejection of others. The impact of the Evidence Act, s 57(1)

There is one other important provision to be considered. Section 57(1) provides: “If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.” Section 57(1) corresponds with clause 45(1) in the Bill contained in the ALRC’s Interim Report on Evidence . The ALRC opened its account of why s 57(1) was proposed with a quotation from E M Morgan’s Some Problems of Proof Under the Anglo-American System of Litigation (Columbia University Press, New York, 1956), pp 88-91. He said: “Assume that fact A alone or fact B alone has no recognized logical relation to fact C, but the existence of both does have such a logical relation. For example, C is the fact that defendant made a specified false statement to plaintiff; A is the fact that defendant made the false statement; B, that it was communicated to plaintiff … because the judge must rule on every objection to the admissibility of evidence, does it follow that in order to rule on the admissibility of evidence of A, if it is first offered, he must determine whether or not B exists, and, if evidence of B is first offered, he must determine whether or not A exists? If both could be and were offered as a unit, there could be no objection on the ground of irrelevancy. Limitations of time and space prevent the offering of both simultaneously. The rule that ‘without exception nothing which is not logically relevant is admissible’ does not contemplate that each item of evidence must of itself be unconditionally relevant when offered. The rule is as applicable to trial by the judge or court alone as to trial by a jury. Suppose that in a trial by the judge it was objected that evidence of A was inadmissible until the existence of B was proved and evidence of B was inadmissible until the existence of A was proved, and that there was no escape from the dilemma. The amused or indignant reaction of the judge hardly needs mention. The objection has no more merit in a jury case, merely because the tribunal consists of judge and jury. It is conceded that if the judge finds B, the existence of A is for the jury, and if he finds A, the existence of B is for the jury. That tribunal is quite as competent to decide one issue as the other. Can it be that many courts are solemnly saying that the proponent of the evidence can determine upon which of the issues his opponent can have a trial by jury? If the trial were by the judge, when the objection was made to evidence of A, he would require merely that the proponent convince him that adequate admissible evidence of B would be later introduced. He might also rule that the evidence as to B should precede that as to A. The same procedure should be used in a jury trial. The evidence is of a kind that the jury is deemed capable of evaluating. Neither adversary is given the power to deprive the other of a trial by jury of a question of fact affecting the merits. The preliminary question for the judge when the relevancy of A depends upon the existence of B, and the existence of both A and B is in dispute, is whether the proponent will offer or has offered evidence which will justify a finding of both A and B. Thus when he offers evidence of A, the question for the judge is whether the proponent is adequately prepared to offer and will offer admissible evidence which will justify the jury in finding B. If the formula of Gorton v Hadsell is insisted upon – if the judge has to decide any preliminary question of fact necessary to enable him to determine the question of admissibility – the facts in the question should be the intention and ability of the proponent to offer the requisite evidence of B and not whether B exists.”

The ALRC then said (volume 1, para 646): “It is argued that the relevance of evidence – its ability to affect the probabilities – in the form of a document, object or reading of a technical instrument depends on establishing other facts – authorship, identity, accuracy. The standard of proof that should be applied is – as suggested by Morgan – whether it would be open to the jury to find the fact proved. It is not appropriate generally to hold a voir dire and permit the opposing party to adduce contradictory evidence. The issue is the relevance of the proferred evidence. If it is capable of affecting the probabilities, its effect on the probabilities is for the tribunal of fact. For example: Suppose the defendant is charged with receiving stolen property. For example, the prosecution contends that the defendant was in Philadelphia on a given day. This may only be relevant if the stolen goods were also in Philadelphia on the same day. …. Other examples can be found where it is sought to prove that the accused did some earlier act which tends to establish a motive for the alleged crime – for example, acts of gambling to suggest a motive for embezzlement. Similar issues arise where a party wishes to have a copy document or the transcript of a tape recording admitted. Assuming that the original document or tape is relevant, the relevance of the copy or transcripts will depend on a preliminary finding that the copy or transcript is what the party claims it to be. Similarly, the relevance of machine produced evidence depends upon it being that which the party tendering it claims it to be. This will depend in turn on the accuracy and reliability of the devices involved. The relevance of the machine produced evidence is conditional on accepting the reliability/accuracy of the devices. In each case the issues to be decided in determining the relevance of the evidence must be considered again and finally by the tribunal of fact. The appropriate test, is whether it would be reasonably open to a jury to find the fact established. Similar issues arise in determining whether the accused made a confession or adopted statements made in his presence. It is proposed to include a provision which specifically covers the issues. The legislation provides that evidence, the relevance of which depends upon the court making another finding, may be admitted subject to additional evidence being admitted to enable that other finding. Where such latter evidence has already been admitted the court will provisionally admit the former evidence if satisfied that the necessary finding based on the latter evidence is reasonably open.” The procedure adopted at the trial

The procedure adopted by the trial judge for ruling on the reception of the evidence about which complaint is now made was as follows. Various witness statements or records of interview with the police had been served on the appellant. On 2 April 2001, shortly after the trial commenced, Mr Stratton foreshadowed the need for some “legal argument concerning the relationship”. The Crown prosecutor told the trial judge which were the relevant statements to consider. It was agreed that the jury would be told to delay their arrival the following day so as to permit time for the debate.

On 3 April the debate took place by reference to the particular statements and records of interview. Since the actual statements and records of interview are not before this Court, and since what was read from them to the trial judge has only been transcribed to a limited extent, it is not entirely easy to follow the debate. The Crown indicated that certain parts of the material would not be the subject of questions and the trial judge indicated that some other parts should not be. The reasons for this varied, but principally they turned on different types of prejudice and excessive staleness in the evidence. Leaving those matters aside, and leaving aside debate about the statements of persons who gave evidence the admissibility of which is not challenged in this appeal, Mr Stratton made the following points.

First, he said that anything which the deceased said about her relationships with the appellant and his family was likely to be unreliable. Some of the tenders under debate were tenders under s 65, and that submission was relevant to s 65. But none of the tenders under consideration in this appeal turn on s 65. Hence the only materiality of that submission to the latter tenders concerns ss 135 and 137. It cannot concern relevance, since s 55 mandates an assumption that the evidence is accepted in the process of determining whether it is relevant: Papakosmas v R (1999) 196 CLR 297 at [81] per McHugh J. Indeed Mr Stratton explicitly asked the trial judge to reject the tenders under s 135 or s 137.

Secondly, Mr Stratton said: “I submit that the opinion that Lynette Lock may have had about her relationship with the deceased or the fact that she may have even thought that the deceased was going to do some harm to her or even kill her is irrelevant. It is not what she thought about things, it is what people might have observed in relation to their relationship. I submit the state of mind of the deceased is irrelevant and inadmissible.” In putting this submission he distinguished Wilson v R and relied on R v Frawley . The trial judge said: “I appreciate you say anything the deceased said would be unreliable, but, putting that on one side, if she did say that she believed that the accused was going to kill her and if she did say that bruises to which she pointed had been inflicted by the accused, isn’t that evidence of the relationship between her and the accused?” Mr Stratton then said: “Well, if it was reliable I would have to concede yes, providing, of course, it was fairly recent. If she said, for instance, ‘he did something to me some time ago’ that would be too far away in my submission, but if she said: ‘Yeah, well, I’ve got this bruise and it is nice and fresh and he did that to me”, I must concede that is part of the evidence of their relationship.”

The Crown prosecutor confronted Mr Stratton’s submission head on. He said, for example, that the deceased’s expression of her fears to Mrs Williams indicated “the nature of the relationship that existed between them, and again simply because those fears come out of the mouth of the deceased makes them no less relevant to the nature of that relationship.”

The Crown prosecutor did, however, make one concession. He said: “The Crown does not submit that any of these statements would enable a jury to infer that the accused had at that time an intent to kill the deceased. The Crown seeks only, your Honour, to have that material before the jury so that they may gain a more complete understanding of the nature of the relationship that existed between the accused and the deceased.” The Crown prosecutor then appeared to indicate that the evidence was not tendered as going to motive either. The distinction between proof of motive or “particular intent” on the one hand and proof of the nature of the relationship on the other was drawn explicitly in Wilson v R . In that case the relationship evidence was treated as relevant to whether the gun discharged by accident or by design. Here the Crown prosecutor’s position appears to have been that evidence of the appellant’s motive, namely to kill the deceased because of her slowness in leaving his mother’s house, would have to come from other sources. Indeed the relationship between the appellant and the deceased was said to be bad before the occasion for that motive arose. The relevance of the evidence the Crown was seeking to tender appears to have been perceived by it to be that it enabled the central facts to be realistically observed and that it made the happening of the murder more probable.

The trial judge then delivered a judgment dealing with matters remaining in controversy after counsel had arrived at understandings that certain questions could not and other questions would not be asked. He indicated in effect what questions he would permit. He said: “I have considered the statements of Barwick CJ in Wilson v The Queen, particularly his Honour’s statement at 339 to this effect - It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may be logically and reasonably be drawn. and the statement at pages 339 and 340 which implies that evidence of what the deceased said about the accused would not have been admissible if it had not been part of a quarrel between the accused and the deceased witnessed by other people. As Gleeson CJ pointed out in R v Maurice Peter Frawley (1993) 69 A Crim R 208, there has been substantial development in the law since Wilson v The Queen was decided. Mr Stratton of Queen’s Counsel for the accused relies on some statements of his Honour, particularly that at page 220 to the effect that - If one party to a relationship is accused of murdering the other, admissible evidence of the accused’s state of mind may well be relevant. It is less likely that evidence of the victim’s state of mind will be relevant although, as the authorities that his Honour cited show, it may be relevant, depending on the issues in the case. His Honour referred to R v Rattan [1972] AC 378 and Walton v The Queen (1989) 166 CLR 283. One of the comments his Honour made about Wilson v The Queen, perhaps in the light of subsequent cases, was that Barwick CJ treated the fact that the relevant words were uttered in the course of a quarrel as the key to the admissibility of the evidence. His Honour continued - Why might it not also speak eloquently of a bitter relationship between husband and wife that the wife should tell a third party in the absence of her husband that her husband wanted to kill her? It seems to me that the answer to that question, which is pertinent to the present case, is that there is no reason. In my opinion the Crown may generally be permitted to adduce evidence of things said by the deceased from time to time which tend to prove that the relationship between her and the accused was bitter. They would include statements of her feelings towards him and her intention to harass him, statements of his having made threats against her, having beaten her giving rise to her fear that he would beat her again and might kill her.”

As a result of the argument and judgment having taken place early in the trial, at later stages when each piece of evidence the subject of objection was given, no express objection was taken afresh, and no warning was given of the limited use to which each particular item of evidence could be put. That latter function was performed in the trial judge’s summing up. Some issues at the trial

At the time when the trial judge ruled on the admissibility of the type of questioning now complained about, early in the trial, the issues could be discerned from the evidence which the Crown contemplated calling. The issues at the end of the case could be discerned from the fact that that evidence had been called.

The class of persons who could have killed the deceased was small. Her death could not have been accidental, and her killer must have desired it. The class of persons who desired to kill her was even smaller than those who could have killed her – indeed perhaps there was only one person in it.

The deceased vanished at a time when the appellant had an opportunity to kill her. He agreed in his first record of interview with the police on 24 April 1999 that he was the last person to see the deceased alive except for her killer (Q 236). Whoever killed her had driven her to the place where she was killed, near where her remains were found. In his first record of interview the appellant admitted that on 7 February 1999 he took the deceased for a drive. (Indeed he had done this within days of the disappearance of the deceased, since on 16 February 1999 he showed two police officers where he had driven her on 7 February 1999.) He said he had taken her for a drive because he wanted to stop her walking off if the discussion he intended to have with her took a form not to her liking, since that was a habit of hers (Q 286 and 313). The purpose of the discussion was to see whether the deceased had made arrangements to move out of the appellant’s mother’s house by the end of the month as she was supposed to (Q 286). He drove his car towards Deniliquin on the Cobb Highway (Q 324) – which was not the road near which the deceased’s remains were found – because it was a straighter road than the Echuca road and he would therefore be able to concentrate more on his conversation (Q 325-328). The time of departure was between 10 and 11 am (Q 340). She asked him to stop the car and got out of it (Q 358-359). He returned to Mathoura, the entire journey taking about half an hour (Q 408).

In his second record of interview on 19 February 2000 (which followed another journey, on 7 February 2000, with police officers along the road the appellant said he had driven the deceased along on 7 February 1999, and which also followed a search of his house by police officers pursuant to a warrant) the appellant repeated what he had said in his first record of interview about driving the deceased out of Mathoura, except that he estimated his time of departure from Mathoura at 9.30-10am. While in his second record of interview the appellant said that he and his mother arrived at the barbeque at Torrumbarry at 11.30am, evidence was foreshadowed, and was actually called, that they did not arrive until 12.30 or 1pm. Some of this was put to the appellant during his second record of interview. He appeared to accept that he arrived at about that time but could not explain what he was doing during the period between dropping the deceased and leaving Mathoura at 11.45am or 12.15pm (the journey from Mathoura to Torrumbarry being only 45 minutes).

The appellant contended in his second record of interview with the police on 19 February 2000 that in the period leading up to 7 February 1999 he was getting on with the deceased “the same as I always got along with her, alright” (Q 173). He said he had had no arguments with her (Q 174-175), though he had struck her once more than six months before she disappeared (Q 175-176). He could not remember why he had struck her.

In the second record of interview the police told the appellant of statements they had taken in which people had narrated conversations with the deceased indicating that she feared him. The appellant was asked: “These people that have supplied statements, not just one person, it’s a number of people, that have had these conversations with Lynne shortly before she went missing. She does seem to display quite a bit of fear of you. Can you think of anything at all that would cause her to have this fear of you?” The appellant answered: “No. We had, there was, we didn’t have any sort of hatred or anything between us. I can’t see why she would have said that. I can’t see why she would have even went out to say to people, you know, ‘I’m petrified of him’, or whatever she said. I’ve never done anything to make her think that she can be scared of me. Except that once when I sort of swiped her face.”

The police had also obtained a statement from Mrs Simpson that the appellant had told her that he had had a disagreement with the deceased and dropped her on the road to Deniliquin because she was screaming at him. They put this statement to the appellant, but he denied it (Q 257).

In his examination in chief the appellant downplayed the proposition that he played a major role in procuring the deceased’s departure from the house occupied by his mother. His sister Tania Harris and his mother were cast in the role of being primary forces in that enterprise. The appellant said: “a lot of people around town, you know, the town gossip, they said Lyn’s not doing very good for your mother and Tanya came down from Darwin … and she took Mum to the doctor”. The doctor in question was Dr Port in Deniliquin. According to the appellant, Tania Harris told him: “Mum has told Lyn she has got to leave so keep an eye on her because Lyn didn’t seem very happy … just keep one eye on her.” The evidence of the appellant continued: “Q. Did you have any discussion with your sister, your sister Tania, about Miss Lock leaving and how, when, where and why it should happen? A. I don’t think so no. Q. Was there any discussion between you and your sister about who should be telling Miss Lock to go? A. I think, yes, I think I said, ‘Can you do it because I have got to live in the town and everyone will be poking muck at me for doing that now anyway. Q. Did you become aware that Miss Lock was in fact told that she had to go? A. Yes, Tania told me and Tania said that Mum gave, stipulated a day because when she told her apparently she told her in January too and no date was given, she just said you will have to leave and that was it, there was no effort to vacate or anything like that so Mum told her, ‘You have got till the end of the month’.” His answers to the police in their interviews with him were similar.

In his examination in chief the appellant also downplayed the proposition that his relations with the deceased were bad. He said that relations between the deceased and his mother seemed good. He admitted slapping the deceased only once. Apart from that he had never done anything to make the deceased scared of him. He said: “Q. Ever made any threatening comments to her other than the time when you did assault her? A. Never, I don’t think, I am pretty sure never but there might be the occasion I do not know about but if she was scared of me why did she get in me car real happy on that day? She never confided those threats to me.” That line also had been adopted in answering police questions. He went even further in cross-examination: he said his relationship with the deceased was “okay”; he said “I reckon we were friends”; he agreed he told the police she “was as rough as guts”, but said “She’s a bitch but I didn’t hate her”.

The Crown prosecutor, having read the records of interview, was entitled to anticipate that “defences” along those lines would be run by the appellant. That created an obligation on the Crown to call its evidence in contradiction of those defences in its own case in chief: it could not sit back and let the appellant develop the “defences”, because it could not split its case by calling the relationship evidence in reply. General approach to the impugned evidence

An issue thus arose whether the dealings and mutual attitudes of the appellant and the deceased were generally cordial or tense and violent. Though the evidence was not tendered by the Crown to prove motive or a particular intent, it had relevance independent of those issues. The relevance of the evidence arose in three ways.

First, to exclude all evidence of tension and violence but leave in only evidence of cordiality would be misleading. The evidence was relevant because it prevented the issues from being considered in a “vacuum” ( Wilson v R (1970) 123 CLR 334 at 344 per Menzies J). It avoided the jury having “quite an artificial picture”: R v Peake (1996) 67 SASR 297 at 300 per Millhouse J (Williams J concurring). It enabled presentation of the case “in an intelligible and real fashion”: R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 123 per Sugerman J. The evidence was “the key to an assessment of the relationship between the [accused] and the [victim] and, as such, constituted part of the essential background against which the … [accused’s] evidence … necessarily fell to be evaluated”: B v R (1992) 175 CLR 599 at 610.

Secondly, the jury’s task was to assess what happened on the drive which the appellant admitted from the start he had taken with the deceased. He went on it at a time when he had an opportunity to kill her. He went on it, according to him, for the purpose of discussing a matter of some distress and difficulty, namely the attempt to get the deceased to leave the house occupied by the appellant’s mother. The issue was whether the drive ended in him killing her. It was material to consider whether the past dealings and mutual attitudes of the parties were such as to create a reasonable doubt in the appellant’s favour or whether they were such as to increase the probability that a killing resulted.

The relationship was capable of casting light on whether the appellant killed the deceased, and, if he killed the deceased, what his mental state was: R v Hissey (1973) 6 SASR 280 at 289. The existence of a bad relationship increased the chance of a relaxation of normal inhibitions against killing. It thereby offered a potential explanation for any criminal conduct by the appellant. It established “an atmosphere which would render it less unlikely that the offence charged would have been committed in the circumstances which arose on the occasion of [the accused’s drive with the victim], having regard to the past relationship of the principals”: R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 129 per Maguire J.

As a motive, the Crown relied on the appellant’s exasperation with the deceased because of his resentment over trouble caused to him by her failure to carry out postal deliveries properly, which caused complaints to be made to him even though he was not responsible for them, and frustration at the deceased’s failure to leave the house of his mother, whom she was upsetting, whose friends had ceased to call in order to avoid meeting the deceased, and whose health, according to medical opinion, was being adversely affected. The deceased was frequently affected by alcohol and was disruptive, in the perception of the appellant. Even though the relationship evidence was not tendered as going directly to motive, an evaluation of the motive issue and an evaluation of the probabilities in relation to whether the appellant killed the deceased, after a sudden quarrel or otherwise, would be carried out less realistically if there were an exclusion of all evidence of the bad terms existing between the appellant and the deceased. Evidence of a hostile relationship would enable the jury to draw adverse inferences from the circumstantial evidence pointing to the appellant’s guilt; evidence of a good relationship, foreshadowed by the appellant in his records of interview and actually given in the witness box, would cause them to hesitate in doing so.

Thirdly, the Crown was entitled to predict that the appellant would raise a particular version of his dealings with and attitudes to the deceased, and was entitled to endeavour to deal with it in its own case.

Thus the evidence was also relevant because it contradicted the appellant’s own version of the relationship given to the police and thus amounted to an “anticipation of possible defences”: R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 123 per Sugerman J. Similarly, in Plomp v R (1963) 110 CLR 234 at 251 the High Court accepted the admissibility of evidence that despite a statement by a husband that “he and his wife were ‘very happily married’, [he] was not on good terms with her and that he had on one occasion at least treated her with violence”.

The evidence against the appellant was, apart from his confession to Mr Brown, entirely circumstantial: he made no direct admissions to the police and there was no direct witness of the crime. Where a case is entirely circumstantial, it is common for relationship to be considered as one of the circumstances.

The reception of the impugned evidence turns on three issues: whether the specific forms of it tendered were relevant; whether, if any exclusionary provision applied, its operation could be avoided; and whether an order should have been made under ss 135-137.

The first question is the relevance of the specific items of evidence. On the appeal the appellant accepted that evidence from six prosecution witnesses and from himself that he had hit the deceased at least once on the face and evidence from one prosecution witness that he had hit the deceased at least once on the body and arms sufficiently hard to cause bruising were items of evidence which were properly admitted and hence were relevant. The appellant also accepted that evidence of difficulties in the deceased’s business dealings and of troubles in getting the deceased to leave the house were properly admitted and hence were relevant. The appellant accepted that evidence of the deceased’s threats to damage the appellant’s property and to harass him were properly admitted and hence relevant. The appellant did not seek to exclude at the trial, and does not now complain about, evidence that the appellant had seen the deceased in bed with his mother in circumstances which were consistent with an actual or desired sexual relationship and that the appellant resented this, and that the deceased had admitted a sexual relationship with the appellant’s mother. That evidence made it likely that the ejection of the deceased from the house occupied by the appellant’s mother would be displeasing to the deceased. All this evidence assisted the jury in considering the issues before them. Expressions of fear which were explicitly linked with the appellant by the deceased or were capable of being linked with the appellant by the jury were not, in point of relevance, in a sharply different category from the relationship evidence which the appellant did not complain about.

It was open to, and relevant for, the jury to infer from those items of evidence which the appellant does not complain about that the relationship of the couple was not cordial and that the tensions in it were likely to cause the deceased to be scared. If it were open to and relevant for the jury to draw this inference, direct evidence of fear, direct evidence of the degree of intensity of that fear, and direct evidence of an assigned basis for the fear, coming from the deceased and reported to the court by another witness, were also relevant. The rationale of the latter evidence, the reception of which was impugned, can be assessed by taking into account the other categories of evidence which had been, or were to be, tendered at the time the impugned evidence was received. The impugned evidence was relevant because, in the light of the other evidence, it could rationally affect the assessment of the probability of the existence of a fact in issue. The fact in issue was whether the car journey on the morning of 7 February 1999 ended in the killing of the deceased by the appellant. Their mutual dealings and attitudes, as illustrated by the impugned evidence and by inferences from it, could rationally affect the assessment of the probability of such a killing.

The evidence did not relate to so remote a period in time as to prevent it from being relevant (cf Shaw v R (1952) 85 CLR 365 at 377; R v Tsingopoulos [1964] VR 676). The evidence appears to relate entirely to events occurring no earlier than five weeks before 7 February 1999.

In short, the question is whether the assessment of the probability of the existence of a fact in issue in this case is rationally affected by items of evidence that the deceased did not like the appellant; was very scared of the appellant; because of being scared said to a friend that if she disappeared the matter should be reported to the police; predicted that the appellant would kill her; and said that the appellant was giving her a hard time. In the particular circumstances of this case, the answer is affirmative.

The second question is the operation of exclusionary rules. The only relevant exclusionary rule was the hearsay rule (s 59). So far as the impugned evidence was hearsay, it was rendered admissible by s 72. That provides: “The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.” The appellant submitted that in “dealing with the admissibility of evidence under s 72, some restrictions must apply, otherwise such a broad interpretation would abrogate the use of the hearsay rule (see notes 72.1 Uniform Evidence Law, Stephen Odgers, 4th ed).” That passage opposes: “the potentially wide interpretation which could be given to the terms ‘knowledge’ and ‘state of mind’ … to include ‘belief’ or ‘memory’. … [Such] an interpretation will effectively abrogate the hearsay rule as contained in s 59.” That suggested vice is not inherent in the construction of s 72 which is to be applied in rendering admissible the evidence of the deceased’s statements to prove her state of mind in this case. The appellant was unable to suggest any other relevant construction of s 72.

The third question is the application of ss 135-137. The trial judge in terms considered s 135 and declined to exclude the evidence. Error has not been demonstrated in that course. The effect of the trial judge’s reasoning was to make s 137 inapplicable. He made appropriate s 136 rulings.

Those foreshadowed conclusions should now be developed in more detail by reference to the particular evidence in the case. Mrs Sellars’ evidence

Counsel for the appellant accepted that if hers were the only evidence touching this ground of appeal, the ground would not be pressed. That is understandable. Apart from its generality and triviality, the evidence was followed by a passage in which the witness narrated various threats made by the deceased to harass or commit acts of violence against the appellant. This was: “Q. Tell us as best you can using the words that Miss Lock used what she said to you that gave you that impression? A. Am, she didn’t get along with him she said it was quite obvious, she said that straight out. She basically blamed her problem with Nolene on the accused. She also said that she was, she was going to make his life hell. She said she was going to throw a brick through his post office window when she moved out; she was going to harass him and she blamed all her problems on the accused.” Further, in cross-examination the following is recorded: Q. On this occasion she complained about the accused saying she hated him and she would do things to him? A. Correct. Q. Had she ever said anything to you about him before? A. No. Q. Never said anything about him before? A. Oh in general conversation; she used to work for the accused, she worked for him, but she never went into detail, all in passing. Q. Maybe had a bit of an argument about the mail just in passing and that was about it? A. Yes, correct.”

In R v Frawley the admissibility of the accused’s admissions to Mrs Jeacle that he hated the victim and had had a fight with her was not controversial. If it is relevant that two parties have fought, and if it is relevant that one party says he hates the other, on the ground that this shows their “relationship”, it must be relevant that the deceased here said she blamed the accused for her problems and hated him. It must also be relevant that she expressed an intention to throw a brick through his window and harass him – just as much as Mrs Jeacle’s assertion that the appellant in R v Frawley said he was “finally sick and tired” of the victim there and “had decided to leave her”.

The “problem” to which Mrs Sellars referred when she said that the deceased had said that she “basically blamed her problem with Nolene on the accused” was identified in an earlier answer relating to the conversation containing the answer complained of. “She came in, which was unusual because Lyn doesn’t come to my house, and we just had a cup of coffee and she was having quite a few arguments, her and Nolene, things weren’t going well at the house. She was looking for somewhere to move to and that’s why she came to my house.” This “problem” was likely to have been a serious matter for the deceased, for two reasons. First, she was being put to the inconvenience of moving in a village in which there were no doubt not many attractive places to move to. Secondly, there was evidence that she had had sexual relations with Noelene, the appellant’s mother, or at least wanted to have them. One piece of evidence for this emerged in the cross-examination of Mrs Robertson: “Q. Lyn was living with Nolene at the time you knew her? A. That’s correct. Q. Did Lyn tell you anything of her relationship with Nolene Heil? A. Just that – the way that I knew Lyn I always felt there was something different about Lyn and I thought she was sort of a lesbian-type person even though she never actually told me she was lesbian, it always appeared that way that she was, and every time Nolene would go away for a weekend or any length of time Lyn would get very, very upset because she never asked how the house was going or how Lyn was going or if everything was all right, Lyn would never ever hear from her and I thought that was very strange Lyn would get upset about this, and I just thought it strange and I pushed the conversation a little bit and Lyn told me she had had it off with Nolene and I put two and two together. Q. Did she explain what ‘had it off’ meant? A. I just thought I understood what it meant.” That was not objected to, and was admissible under s 65(2)(b). And indeed, in part, it was not even controversial. In his second record of interview the appellant had answered questions as follows. “Q. Are you aware of a, any suggestion that Lynne Locke was a lesbian? A. Well, it was all, always on the cards, you know, ‘cause a lot of people said, oh, she’s only a leso. I don’t know how true that accusation was, but, you know, that’s how I took it, just Mathoura gossip. I’d never known Lynne to have a lover and, but then a lot has come up about Marian Coker too. That apparently they were lovers. I’ve got no idea, it’s not my business, so why delve into it? Q. Are you aware of any lesbian approach that Lynne made to your mother? A. I couldn’t say lesbian approach, but one day when I was over there I found Lynne was in mum’s bed, and she reckons that she was, you know, just comforting her for a second. I don’t know what happened to mum at that stage, she had some bad phone calls, the daughter or something or other, Lisa, but I do not know, couldn’t tell you. And I told her at that time to get out of the bed. She goes, ‘I’m only in [here] to comfort your mother’. I said, ‘I don’t care, get out of it, you can stand next to the bed’. Q. So, how did that make you feel? A. Just, didn’t make me feel anything, I just told her to get out and don’t ever get in mum’s bed. She, she was still in the bed when I left, but I just told her to get out of it and I left. Q. Are you aware that Lynne had told your mother that she wanted to have a lesbian relationship with her? A. Yes, mum told me later on, but I don’t know if that was before or after she disappeared, ‘cause mum wouldn’t tell me things like that. Q. What did you think about that? A. Didn’t worry me after mum said there was no way known that there was going to be, she had a chance in hell. So, it was just sort of said, told me, and that was it. ‘Cause mum assured me that there was no way known something like that would happen, so, why should I worry again? Q. All right. A. Mum’s a big girl, she’s got to account for her actions, so, the same as Lynne’s got to account for her actions.”

However, in his first record of interview, the appellant said: “Q. Are you aware that Lynette tried to cultivate your mother into a lesbian relationship? A. No, I didn’t know that, until about, like, two or three weeks ago, when mum sort of mentioned it. She didn’t realise I was around, I don’t think. She was talkin’ to someone else, and it sort of come out, and I said, ‘What?’, and then she knew that I heard it so she elaborated then. Q. How does that make you feel? A. No-one likes to see their mother a lesbian. But, especially with her.”

That showed at least a desire on the deceased’s part for sexual relations with the appellant’s mother, whether or not she actually had them. It was open to the jury to infer that the thwarting of that desire by the appellant’s wish that the deceased should leave his mother’s house would have antagonised her. It also shows a source of potential friction in the appellant’s dealings with the deceased.

Of course, there was other evidence apart from that which Mrs Sellars gave or which she alluded to which tended to make admissible her evidence reporting what the deceased said about her relationship with the appellant: there was evidence from various sources, including the appellant, about a black eye he had given her, and there was also Mrs Wilson’s evidence of the deceased’s body and arms being bruised by the appellant.

The answer to the question of which complaint is made and the other pieces of evidence which have just been referred to illustrate the operation of s 57(1). While for various reasons the question of which complaint is made by itself might be objectionable, the relevance of the question could be defended by reference to, and depended on, the court making another finding, namely that there existed particular matters linking the deceased’s feeling about the appellant with his past conduct or her past or future conduct in a manner permitting it rationally to affect the assessment of the probability of the existence of a fact in issue.

Accordingly, Mrs Sellars’ evidence was relevant.

When the deceased said to Mrs Sellars that she intended to damage the appellant’s property and harass him, she was making an express representation that that was her intention. While s 59, which states the hearsay rule, would make that representation inadmissible, s 72 ensures that the hearsay rule does not apply to Mrs Sellars’ evidence of a representation made by the deceased because it was a contemporaneous representation about the deceased’s intention. The same applies to Mrs Sellars’ evidence of representations by the deceased about her “feelings” and “state of mind”. Section 72, it must be remembered, is significantly wider than the equivalent common law rules in force at the time when Wilson v R , Ratten v R and R v Frawley were decided. Mrs Robertson

While the two answers of Mrs Robertson complained of by themselves would face hurdles created by statements in Wilson v R and R v Frawley , when the intervening answer, about which no complaint is made, is read, the basis for the objection to relevance goes. Evidence of injuries caused by acts of violence which are linked with the appellant was relevant. There was much evidence of at least one black eye, and the appellant admitted to the police that he had caused the deceased to have it. The proposition that the appellant had given the deceased a black eye was in any event admissible under s 65(2)(b). A representation by the deceased that she was very, very scared of the appellant was admissible evidence of her feelings and state of mind under s 72, and hence of one aspect of her relationship with the appellant. Mr Williams

The stuff of a “relationship” between two people is the mutual dealings between them and the consequential attitudes each has for the other. The appellant admitted giving the deceased a black eye. Others witnessed the black eye. Mrs Robertson proved that the deceased said she felt, and therefore probably was, “very, very scared” of the appellant in circumstances where it was open to the jury to infer that the fear was caused by the administration of the black eye. Mrs Sellars proved that the deceased had an antagonistic attitude to the appellant which could be attributed not only to his violence but to his attempts to eject her from his mother’s house, which was not only inconvenient but may also have interrupted a sexual relationship between the mother and the deceased or thwarted the deceased’s hopes of one. Before Mr Williams gave the evidence complained of, he testified that the deceased complained to him of having been bashed by the appellant and of the fact that the appellant wanted the deceased to leave the appellant’s mother’s house. In the evidence of Mr Williams which was complained about, the statement that the deceased was scared of the appellant added nothing to what was established by other evidence. The only new element was the deceased’s statement that if anything happened to her, Mr Williams should mention it to the police because it would be something to do with the appellant. It was open to the jury to adopt one of the following lines of reasoning. First, they might treat the deceased’s suggestion that Mr Williams report to the police anything that happened to her as merely an exaggerated way of expressing her fear of the appellant based on her bad relations with him by reason of his violence and his role in having her ejected. Secondly, they might treat the deceased’s suggestion at face value, but attribute it to her fear of the appellant. On either construction the evidence was relevant as putting a realistic complexion on the relations between the appellant and the deceased. It was admissible to prove the deceased’s feelings or state of mind pursuant to s 72. In view of the other evidence, those feelings and that state of mind were evidence of the relationship between them. Mrs Williams

The passage in Mrs Williams’ evidence of which complaint was made was admissible. So far as the evidence recorded the deceased’s fear of the appellant and the appellant’s bad treatment of her, it corresponded with earlier admissible evidence to the same effect. So far as it recorded the deceased’s fear that the appellant would kill her, it did no more than particularise the extent of her fear. It was a piece of evidence fitting in with other pieces of evidence in a pattern demonstrating the mutual hostility of the deceased and the appellant. The state of mind underlying an expression of fear that the appellant would kill the deceased is not radically different from the state of mind underlying her request to Mr Williams to go to the police if anything happened to the deceased because it would be something to do with the appellant. The deceased’s representation that she feared being killed by the appellant was admissible evidence of her feelings or state of mind under s 72, and of a significant aspect of her relationship. Taken with other evidence about other aspects of it, it tended to prove it. Mrs Wilson

The evidence of Mrs Wilson was as relevant as Mrs Robertson’s evidence that the deceased was scared of the appellant, Mr Williams’ evidence that she was scared and asked him to mention it to the police if anything happened to her because it would be something to do with the appellant, and Mrs Williams’ evidence that the appellant was going to kill the deceased. It was relevant because, like the other items of evidence, when taken with the actual violence against the deceased, the deceased’s intention to threaten the appellant, and the appellant’s conduct in seeking to have the deceased ejected from his mother’s house, it would rationally affect the assessment of the probability of the appellant’s having killed the deceased on 7 February 1999 in the nature of the case being pressed against the appellant. It was admissible as evidence of the state of the deceased’s mind under s 72. Sections 135-137

The appellant also submitted that the judgment does not make it clear that the trial judge turned his mind to ss 135 or 136 of the Act. Initially he also submitted that it was not clear whether Mr Stratton asked him to. Mr Stratton certainly asked that the evidence be excluded under s 135 or s 137. The submission that the judge did not consider s 135 is baseless. That is because after the trial judge said that though there was some inconsistency in the evidence as a whole it was not “of such poor quality that it ought not to be admitted”, he said: “I have considered whether the evidence should nevertheless be rejected in the discretion of the Court but I do not think that it should. It seems to me that its probative value well outweighs its capacity unfairly to prejudice the accused.” This corresponds with the language of s 135, which creates a discretion to refuse to admit evidence if its probative value substantially (i.e. “well”) outweighs the danger that the evidence might be unfairly prejudicial to a party. If the probative value of the evidence “well” outweighs its capacity for unfair prejudice, it cannot be held, as s 137 requires if it is to trigger the court’s obligation to exclude evidence, that the probative value of the evidence is outweighed by the danger of unfair prejudice to the appellant. Hence though the trial judge did not specifically refer to s 137, the conclusion he reached in conclusion to s 135 necessarily entailed the rejection of Mr Stratton’s s 137 submission. The submission that the trial judge did not turn his mind to s 136 is also baseless because in the course of his summing up the trial judge indicated the limited use to which various aspects of the evidence could be put.

The appellant submitted that the trial judge should have exercised his discretion under s 135 to exclude the evidence. The evidence was not misleading, confusing or wasteful of time. It was adverse to the appellant’s interest, but not unfairly so. The appellant said that the evidence was “so significantly prejudicial and so impossible to challenge its veracity that it is wrong to permit it”. The witnesses to the deceased’s statements were all there for cross-examination. There was in fact very little cross-examination on the evidence complained of. The appellant was there to deny having said or done any of the things attributed to him and, credibly or not, he did deny most of them. The deceased was not there for cross-examination, but if the impossibility of challenging the veracity of hearsay statements by non-witnesses were generally to justify, or were often to be a significant factor in justifying, a decision to exclude evidence in the court’s discretion under s 135 or by reason of a finding of “unfair” prejudice under s 137, the result would be to write the hearsay exceptions out of the Act to a large extent. That outcome would be contrary to the legislative intention: cf Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 571 per Hutley JA. Further, in Papakosmas v R (1999) 196 CLR 297 at [91]-[93] McHugh J said: “Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD [(1997) 94 A Crim R 131 at 139 (emphasis in the original)] Hunt CJ at CL pointed out: ‘The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.’ (Footnote omitted.) In its Interim Report, the Australian Law Reform Commission explained [Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985), vol 1, par 644]: “By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact finder’s sympathies, arouses a sense of horror, provides an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.’ Some recent decisions suggest that the term ‘unfair prejudice’ may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act [See Einstein, ‘Reining in the judges’? – An examination of the discretions conferred by the Evidence Acts 1995’, University of New South Wales Law Journal, vol 10 (1996) 268, at pp 273-274.] In Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike [No 1] [Unreported; Federal Court of Australia; 1 September 1995; but see Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 434-436, per Wilcox, O’Connor and Sackville JJ, a decision of the Full Court of the Federal Court], Beaumont J used his discretion under s 135(a) to exclude the transcript of a bankrupt, which would otherwise have been admitted as an exception to the hearsay rule pursuant to s 63, on the basis that the prejudicial effect of being unable to cross-examine the maker of the representation on a crucial issue in the litigation substantially outweighed the probative value of the evidence. In The Commonwealth v McLean [(1996) 41 NSWLR 389 at 401-402, per Handley and Beazley JJA, Santow A-JA agreeing], the New South Wales Court of Appeal also used s 135(a) to exclude hearsay evidence otherwise admitted via the exception contained in s 64 on the basis that the defendants were prevented by other evidentiary rulings from effectively challenging the evidence. It is unnecessary to express a concluded opinion on the correctness of these decisions, although I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of ‘prejudice’ in a context of rejecting evidence for discretionary reasons.”

In any event, even if the inability to test the deceased by cross-examination can constitute prejudice, the issue is whether the reception of the evidence in this case was unfairly prejudicial. There is no reason to doubt that the deceased said what the witnesses told the court she said. Section 72 made the evidence admissible to prove her state of mind. The state of mind she represented herself as having was one which either she was sincerely representing or she was not – either it existed or it did not. If it existed, that tended to show a bad relationship with the appellant. Even if it did not exist, it still tended to show a bad relationship with the appellant, because what she said was unlikely to remain secret from the appellant in the small and gossipy environment of Mathoura, and when it became known to him it would tend to stimulate ill-feeling: the fact that she said those things, even if insincerely, with indifference to the appellant’s reputation and feelings, is a sign of the level and quality of the relationship. Either way the cross-examination of the deceased which it was not possible for the appellant to undertake would not have assisted him in an attempt to demonstrate that the relationship was sound and cordial. The evidence was not unfairly prejudicial by reason of the loss of an opportunity to cross-examine.

Further, the evidence complained of was not significantly more prejudicial than other evidence to the same general effect of which the appellant did not complain. To exclude the evidence complained of, but not the other evidence, would be to leave the jury with vague and generalised evidence about the appellant’s state of mind, but not specific evidence about it.

The evidence would have been capable of causing prejudice if it could have been used to support a conclusion that the appellant had in fact threatened to kill the deceased or in fact intended to kill her before 7 February 1999. But the trial judge warned the jury against its use for that purpose. He said: “This evidence is not capable of being used by you to conclude that at the time those words were said the accused had an intention to kill Miss Locke. It is not evidence of the truth of what she was saying, it is evidence of a nasty relationship between them, if that is what you think it was, but no more than evidence of that.” A little earlier he said: “You should understand that it is not the Crown case that the accused was a man who went about assaulting people and that he is therefore more likely to have murdered the deceased. That is not how this evidence is to be used. You must not use it in that way. It is not evidence that the accused killed the deceased.” The integrity of jury trial must depend on an assumption that juries pay regard to the directions given. Nothing in the circumstances of this trial suggests that this jury did not do that. Any risk of unfair prejudice was negated by the trial judge’s directions.

Accordingly, the conclusions of the trial judge in relation to s 135 appear to be correct. The trial judge did not mention s 137, but if his conclusions on s 135 were correct, they precluded the application of s 137 in the circumstances of this case.

Though there is no ground of appeal directed to the terms of the trial judge’s summing up on the evidence of these witnesses, the appellant’s written submissions attacked it. He said: “Furthermore, having allowed the evidence it was, it is submitted, incumbent upon him to advise the jury what evidence was admitted on what basis and how it should be dealt with individually by the jury. His Honour first dealt with this on page 15 of his summing up. His Honour advised the jury of the limited purpose for which the evidence was admitted, namely, relationship (page 16). In particular, His Honour dealt with the evidence of Mrs Wilson and His Honour drew attention to the fact that what the deceased said to Mrs Williams was different. It related to the fact that she was scared of him and that in her view he was going to kill her. This was towards the end of January 1999. Mrs Williams gave evidence at page 128. Similar evidence was given by Mrs Wilson in her evidence commencing page 196. His Honour went on to indicate that these expressions of belief by the deceased to both Mrs Williams and Mrs Wilson were admitted to show some kind of relationship that existed and His Honour pointed out that this evidence was not evidence of the truth of what the deceased was saying but merely evidence of a nasty relationship between them.” The appellant also said: “The way the jury were to deal with the evidence was left very much up in the air. His Honour did say (page 19) that the evidence is not capable of being used by the jury to conclude that the accused had an intention to kill the deceased and that it was not evidence of the truth of what the deceased was saying but evidence of a nasty relationship.”

In directing the jury that the evidence was only evidence of a relationship, that there was little clear evidence of more than one injury (apart from the evidence of Mrs Wilson about bruising), that the evidence did not go to disposition, and that the evidence was not to be used to prove that the appellant had an intention to kill the deceased, the trial judge summed up very favourably to the appellant. In effect the direction consisted of a series of rulings under s 136 which were favourable to the appellant. There is authority that it is permissible to give the relevant warnings only during the summing up and not at the time the evidence is admitted: R v S [2000] 1 Qd R 445 at [30]-[31], not following Gipp v R (1998) 194 CLR 106 at [142]. The appellant’s counsel did not request any redirection in relation to this part of the summing up. Leave under r 4 to raise this argument is refused. Distinguishing R v Frawley

Gleeson CJ concluded his reasons for judgment in R v Frawley (1993) 69 A Crim R 208 at 224 by saying: “To some, it may seem unfair that the law should exclude evidence which shows that the appellant’s victim regarded him as a person of violent propensities, especially where he was concerned to present to the jury a very different picture. However, the reception of such evidence carried a high risk that the jury would have engaged in an impermissible process of reasoning, based upon assertions and opinions that could no longer be tested.” To some degree the law has changed since R v Frawley ; to some degree this is a very different case. So far as the law is concerned, ss 55(1) and 57 have been introduced, and s 72 creates a wider exception to the hearsay rule than existed at common law. So far as the differences in the cases are concerned, Gleeson CJ was critical of the “inadequacy” of the trial judge’s instructions in that case, while those in this case were satisfactory, and likely to prevent the employment of impermissible reasoning; material which the appellant complained about was no less relevant and no more disproportionately prejudicial than that which he did not complain about; and though it was not possible to cross-examine the deceased, that disadvantage was simply the price that had to be paid for the change in the law permitting evidence of the deceased’s state of mind being admitted as an exception to the hearsay rule, and little useful cross-examination of the deceased would have been possible in any event. In short, R v Frawley is distinguishable. Conclusion

There being no other argument advanced in relation to the evidence complained of save those based on R v Frawley and ss 135-137, Grounds 3 and 4 are rejected. Proviso

If it is assumed, contrary to what has been said above, that the trial judge erred in failing to give directions about the indemnity, or in admitting the evidence complained of, or in directing the jury about that evidence, the question would arise whether the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied, that is, that the appeal should be dismissed on the ground that “no substantial miscarriage of justice has actually occurred”. The application of the proviso depends on the error not being one which is so fundamental as to have caused the trial to miscarry so far as hardly to be a trial at all, and on the conviction being “inevitable” in the sense that the appellant can be said not to have lost a chance which was fairly open to him to have been acquitted. See Glennon v R (1994) 119 ALR 706 at 710-712. The errors alleged here are not fundamental in the sense just described. Attention must therefore be directed to the strength of the Crown case. The Crown submitted that its strength was very great. Mr Winter’s evidence

The Crown’s submission that its case was strong faced one obstacle in the evidence of Mr Winter. The evidence of Mr Winter, if accepted, was capable of raising a reasonable doubt about the appellant’s guilt and indeed of establishing his innocence. But it was very vague and unsatisfactory. It was rejected by the jury. There is no reason at all to doubt the correctness of that course. The grounds for its rejection stood quite independently of any evidence given by any other prosecution witness or by the appellant. Mr Winter’s evidence was given in good faith, but collapsed, as it were, of its own inanition. The evidence against the appellant apart from that of Mr Brown

Despite one or two claims by the appellant in his evidence of non-belief about whether the deceased had died, it was not in truth in issue that the deceased had died. Indeed there was overwhelming evidence that it was her remains which were found near the intersection of Tocumwal and Plantation Road in the Millewa Forest, 20 kilometres east of Mathoura. The fact that she was seen alive on the morning of 7 February 1999 but not thereafter, and the contents of her banking records, made it likely that she died on 7 February 1999. There was no evidence of the cause of death other than Mr Brown’s, but there was no reason to suppose that she died of natural causes.

The appellant had a motive for killing the deceased. He was unaware that his strenuous efforts to have her removed from his mother’s house had succeeded in the sense that she was planning to leave on 8 February 1999 to live in a rented house with Mr Robertson. His motive was very far removed from any motive which might justify or excuse killing the deceased, but it had some power in terms of explaining it in view of the evidentiary picture presented of the deceased, at least as perceived by the appellant, and her activities in relation to his life in general and the life of his mother in particular.

The appellant had the capacity to kill the deceased. The appellant attempted to make much of his injuries as something incapacitating him from killing the deceased and hiding her body. However, he made admissions in evidence about participation in jet skiing indicating sufficient strength to do these things.

The appellant had an opportunity to kill the deceased. On the evidence of his two sisters, his stepsister and Mr Harris, the appellant did not arrive at the barbeque at Torumbarry, which is 68 kilometres from Mathoura and about 40 minutes drive away, until some time between 12.30 and 1 pm. On the assumption that the deceased and the appellant left Mathoura at about 10 am or even later, the appellant had sufficient time to drive her to a place near where her remains were found, to kill her, to bury her, to return to collect his mother, and to drive her for 45 minutes to Torumbarry. Indeed, even on the narrower timeframe advanced by the appellant to the police and in his evidence, there was sufficient time for him to have carried out the murder.

At the barbeque the appellant behaved in a manner which was curious in view of the fact that there was no reason to suppose that the deceased had disappeared or come to any harm, apart from a remark by the appellant’s mother to which no rational weight could be given. The appellant said in the hearing of his sister, Ms Colvin, that the deceased had gone missing and that it did not look good for him because he was the last one to see her. Another sister, Ms Harris, testified that at the barbeque the appellant said he had gone for a drive with the deceased along the Cobb Highway to Deniliquin, she had asked to be let out and he had let her out.

This account was one which the appellant maintained over the next year to the police. He took two police officers on a drive on 16 February 1999 to demonstrate the journey, he described it in his first record of interview on 24 April 1999, he took two police officers on the same journey on 7 February 2000, and he described it in more detail in his second record of interview on 19 February 2000 – though he was unable to indicate precisely where he dropped the deceased or to indicate any particular landmarks or sites relevant to the deceased. He maintained that account in evidence.

He also gave that account to Mrs Simpson and to Mrs Keech on 8 February 1999 (though he told each of them something he did not tell the police – he told Mrs Simpson he had a disagreement with the deceased and that she was screaming to be let out of the car, and he told Mrs Keech they had got into an argument and the deceased started crying). Mrs Simpson was not cross-examined at all, and Mrs Keech was not cross-examined to suggest that she was lying or mistaken. On 8 February 1999 Ms Anne Robertson was told by the appellant that he had dropped the deceased on the highway at a place he could not remember.

The appellant said several things which were capable of being regarded as admissions by lies or misconduct.

On 8, 9 or 10 February 1999, according to Mrs Bright, the appellant asked her if she had seen the deceased. She said she saw her on the morning of 7 February 1999. She said the appellant asked her whether she would tell the police that she had seen the deceased in the afternoon just to get the police off his back. Mrs Bright was not cross-examined to suggest that she was lying or mistaken. In his conversations with the police the appellant denied what Mrs Bright said. In evidence the appellant said he could not recall Mrs Bright saying this, but it was possible: he was getting scared because the town was blaming him for the death. The appellant gave evasive answers in cross-examination directed at testing that evidence. He was also unable to explain why, though he denied Mrs Bright’s evidence in the answers he gave to the police, he accepted its possible accuracy in his own testimony.

Mr Davies gave evidence that at the Junee Correctional Centre the appellant asked him to sign a false statement about sighting the deceased after 7 February 1999, which he did. Mr Davies was not cross-examined to suggest that this did not happen: indeed he was cross-examined on the assumption that it had happened. In contrast, the appellant said in evidence that he did not proffer a document to Mr Davies, but rather he wrote down what Mr Davies dictated to him. He said it was possible he told Mr Davies that he wanted Mr Davies to say he had seen the deceased late on 7 February 1999 because he was scared of having to stay in gaol for something he had not done. He said that after Mr Davies signed the document it was sent to his former solicitor. The fact that the details of this version were not put to Mr Davies in cross-examination might well have caused the jury to prefer Mr Davies’ version.

Mrs Wilson said that she had a conversation with the appellant as follows: “I said to him: ‘Listen, Nobby, tell me the truth, where did you drop Lyn off?’ He said: ‘On a dirt road to Denny.’ I said: ‘There is no dirt, pine trees going to Denny.’ He said: ‘My memory’s bad.’ I said: ‘You’re in business but I bet if I done you out of $10 you would remember it.’ He said: ‘You shut your bloody mouth or you’ll go missing too’.” She was not cross-examined to suggest that this conversation did not take place. The appellant denied to the police that he said this. However, the appellant said in evidence that there was no dirt road to Deniliquin, “so how could I say that?” The following evidence was then given: “Q. Do you remember her saying words to the effect that she had a conversation with you that she said that – rather you said words to the effect she had better shut her mouth or she would go missing too? A. That’s quite possible because she is just a busy body who gives everyone the shits and I just wanted to get rid of her.” The contrast between the appellant’s denials to the police and his acceptance of the possibility of Mrs Wilson’s evidence being correct at least in part was significant.

Mr Bruns said that before the deceased’s remains were found in September 1999, he had a conversation with the appellant in which he asked the appellant how the post office was going . The answer was: “He said: ‘It’s going good now’, and I don’t know what I said. I think I asked the question: ‘Why not before?’ He just said he had a lady, you know, working for him and she had been shafting him and pinching money and bits and pieces and he said: ‘She’s not there now’, and then he turned and said: ‘She won’t shaft me ever again and, as a matter of fact, she won’t shaft anyone else ever again’.” The appellant gave no evidence in chief denying this conversation. In cross-examination the following evidence was elicited: “Q. Do you recall saying to Mr Bruns words to the effect that there was a lady who was working for you, that she had been shafting you, pinching money, ‘she’s not there now, she won’t shaft me ever again, she won’t shaft anyone else ever again’? A. There’s two answers. Q. What are they? A. One, Lyn Lock never worked for me; I was speaking about my wife the first time and -- Q. You have said ‘and she’ll not do it again’? A. Yes, she doesn’t work for me any more, she’s gone. Q. You said that to Mr Bruns? A. I didn’t say ‘shaft’ because ‘shaft’ was not a word I used and, as you say, how can she shaft anyone again if she’s not working for me? Q. You say the conversation you had with Mr Bruns was with respect to your former wife? A. I would say so. I can’t recall exactly but I would say that’s what it was about. You see, he doesn’t know about it, you know, he was always telling me, keeping things from me because he knows what she had done to her husband before me; she cleaned me out of $800,000. We were together for under two years. The judge stated: ‘She needs the money, just give it to her’; didn’t care how I got it. Q. Can you recall that conversation that you had -- ? A. Yes, I can recall but I don’t know what was said. It was on a particular day when the street was shut down in Echuca. If he was so concerned about it why didn’t he go to the police straightaway? I have read his report. He spoke to a Murray shire worker to find out a little bit more and then he went to the police. Q. You remember that from reading his report? A. Yes. Q. How many times did you read his report? A. Not very often but lies, sort of, stick in your head. We are talking about my life here.” It was open to the jury to consider these answers unsatisfactory, particularly since they had not been given in chief.

While other witnesses put the appellant’s time of arrival at the barbeque at 12.30-1pm, he put it at 11.30, or perhaps 11.45am. In his first record of interview he said he left Mathoura with the deceased between 10 and 11am; in his second record of interview he said he did so between 9.30 and 10am; in evidence in chief he made no estimate of time; in cross-examination he estimated 10.15am. It was open to the jury to infer that he was trying to narrow the period in which he could have committed the murder while also trying to adjust times to fit in with other evidence, and that this endeavour was damaging to his credit.

Miss Hartley testified that on 10 February 2000, while she was conducting an audit at the Mathoura post office, and after two police officers spoke briefly to the appellant and left, the appellant told her that on 7 February 1999 he had driven the deceased “down the Tocumwal Road in a forest”. The appellant told the police that he had never mentioned the Tocumwal Road to her. The cross-examination elicited the following evidence: “Q. In any event you say that your recollection is that he told you that he took her for a drive out along the Tocumwal Road? A. That’s right. Q. Now, is there any chance that that could be confused, that comment you have said that he made, with the fact that the remains were in fact found out on the Tocumwal Road? A. No, I wouldn’t have had any knowledge of that. Q. But you think that it’s possible that he told you remains were found on the Tocumwal Road, don’t you? A. It’s possible Nobby told me – no, not that remains were found there; that he dropped her there. I didn’t even know till now they were found on the Tocumwal Road.” The appellant denied saying anything to Miss Hartley about the Tocumwal Road. He said: “Q. And you remember she said words to the effect: You took Miss Lock down to Tocumwal Road and into the forest? A. I did not say that. I would have told her that I --- Q. Can you recall what you did say? A. I can recall I said to her, like I have said to everyone, I took her along Cobb Highway towards Deniliquin and then at some stage I said the remains, the body, I don’t know which it was, was found out on the Tocumwal Road and she was counting thousands and thousands of dollars and she could have only heard bits and pieces, so I don’t know what -- Q. Have you ever told anybody that you took Miss Lock for a drive out along the dirt road to Tocumwal into the forest? A. I never told anyone that because I haven’t never been along that road to my knowledge.”

This last answer was contradicted by two pieces of evidence.

The first was evidence of the police officers with whom the appellant travelled on 7 February 2000. After he showed them the route he claimed to have taken on 7 February 1999, they took him along the Tocumwal Road. They stopped at the intersection of Tocumwal Road and Picnic Point Road. The appellant said he had never driven past that point (i.e. he admitted that he had driven up to that point).

The other piece of evidence contradicting the appellant’s answer relating to Miss Hartley’s evidence is that of Mr Wellington. On 12 February 1999 Mr Wellington went fishing at Lourey’s Pump on the Murray river. He and his companion, Mr Goss, whose evidence fixed the date by reference to his diary, then went to McLauren’s Cemetery and drove towards Mathoura along the Tocumwal Road, near where the deceased’s remains were later found. Mr Wellington saw the appellant driving his motor vehicle, a silver station wagon, along the Tocumwal Road at a point past its intersection with Picnic Point Road. Quite apart from its significance in contradicting the appellant’s answer relating to Miss Hartley, this evidence had importance in its own right. The appellant told the police he was not there. The cross-examiner tested Mr Wellington about whether the sun was in his eyes, whether the windscreen of his car was clear, whether the windscreen of the other car was tinted, and whether his identification was mistaken. This cross-examination was not successful, save that Mr Wellington conceded that mistakes in identification were always possible, and that he had made mistakes in identification in the past. In his evidence in chief the appellant denied ever having been on the Tocumwal Road at the point where Mr Wellington claimed to have identified him, and said that since 12 February 1999 was a Friday, he would have been working at the Mathoura post office.

While the appellant’s statements to the police and to others did not indicate that there was any disagreement, argument or screaming during his drive with the deceased, Mrs Simpson said that the appellant told her on 8 February 1999 that there had been a disagreement and the deceased had screamed to be let out of the car, and Miss Hartley said the appellant told her on 10 February 2000 that there had been a confrontation. Further, the appellant told Mrs Keech that he had got into an argument with the deceased and she had started crying.

Another significant piece of evidence is that since the deceased was planning to leave the appellant’s mother’s house on 8 February 1999, and since on the appellant’s version his conversation in the car with her concerned her departure, it is strange, if his version is correct, that she did not tell him she was going to leave on 8 February. He evidently did not appreciate this until some time after he began telling the various witnesses about his version of that car journey. When he learned of her intention, it was too late to change his version to accommodate it – from his point of view unfortunately, since the insertion into his version of that detail would have assisted him in representing the journey as being entirely amicable.

There were thus numerous pieces of evidence suggesting that not only did the appellant have a motive to kill, the capacity to kill, and the opportunity to kill, but that his conduct, in seeking to suborn perjury, in lying, and in vacillating between failures of memory and denials, evidenced a consciousness of guilt. To that could be added the appellant’s non-responsive and argumentative approach to answering police questions and, more importantly, giving evidence. It was open to the jury to conclude, and certainly a reading of the transcript now reveals, that there were numerous questionable aspects of the appellant’s testimony. For example, the appellant, before each of his interviews with the police, gave them statements composed by himself offering the exculpatory account of his movements on 7 February 1999 which he advanced in those interviews with the police and in conversations with other witnesses. The appellant was cross-examined to suggest that before his interviews with the police he had learned the contents of the documents as his story, and during the interviews was straining to remember, not what had actually happened, but what he had recorded as having happened. Various demonstrable errors were made in the documents, but not accepted by the appellant in cross-examination. The jury was entitled to regard the appellant’s answers as significantly unsatisfactory.

The trial judge’s directions on all of the evidentiary matters described above which he mentioned were impeccable and were not challenged by Mr Stratton or in this appeal. The trial judge also reminded the jury of Mr Stratton’s submission that allowance had to be made for “the impetuous approach [the accused] has to things sometimes because of the disability that he suffers.”

If all the above evidence were accepted by the jury, there was an overwhelming case against the appellant. And to reject significant quantities of it would be to conclude that the appellant had been the victim of a most extraordinary combination of misunderstandings and mistakes by others, and indeed to stretch credulity very far. Mr Brown’s evidence

Whatever force the case against the appellant had independently of Mr Brown, it was greatly strengthened by Mr Brown’s testimony that the appellant had confessed guilt to him. There was much to support the correctness of Mr Brown’s evidence.

The motives suggested to Mr Brown in cross-examination for lying about the confession were risible. That approach had to be abandoned in any event once the tape recording of the 11 March 2000 conversation was played. There was simply no matter of Mr Brown’s self-interest which could be advanced by him falsely alleging the confession.

In the 11 March 2000 telephone conversation, the appellant admitted he used words to Mr Brown which were capable of being understood as a confession, but said that it was a false confession. That was not a proposition which counsel for the appellant had put to Mr Brown while cross-examining Mr Brown.

Mr Brown was not cross-examined to suggest that the indemnity had any influence on his mind. The defence accepted that he had no responsibility for the murder.

The appellant admitted making a will in favour of Mr Brown and leaving a copy with Mr Brown. It was open to the jury to conclude that the making by the appellant of a will on 8 April 1999 leaving all his estate to Mr Brown confirmed Mr Brown’s evidence that the appellant had confessed, because it operated as an inducement to Mr Brown to remain silent about the confession. The appellant said that he changed his will because the previous beneficiary was his ex-wife, whom he hated: yet it would seem that the marital breakdown and the divorce occurred well before 8 April 1999. The jury may well have been unimpressed with the appellant’s evidence on the point: “Q. You were divorced a long time before the 8 April 1999, weren’t you? A. I don’t know. I don’t know when I was married and when I was divorced. You see, those sorts of things, you don’t want to know about them; they just jump out of your mind. I have a hard time keeping things in there. Why keep those things in there? Ask her, I have never struck her either. I have never struck her.” The appellant suggested that he might have given instructions to a solicitor to draft the new will before the deceased disappeared and before the date of the alleged confession to Mr Brown, yet initially he suggested that the instructions were given only three or four weeks before 8 April 1999, which was after 22 February, the date of the alleged confession.

The appellant did not admit that he handed Mr Brown instructions for the use of a Browning pistol. He explained the presence of his fingerprints on that document by saying that Mr Brown must have tricked him into putting his fingerprints on it. That is extremely far fetched. Neither his evidence nor any other evidence explained why Mr Brown would go to those lengths. Since Mr Brown’s evidence was that the will and the Browning instructions were handed to him on the same occasion, the appellant’s acceptance of the fact that he handed over the will tended to confirm Mr Brown’s evidence that the appellant handed over the Browning instructions as well.

What Mr Brown told the police led to the discovery of three 9 mm cartridge cases in a place consistent with that described in the alleged confession. Though the defence attacked the police for their conduct of the search, the jury was entitled to accept that the earlier failure to find the cartridges in September 1999 and the subsequent finding of them in March 2000 were bona fide, and to reject any possibility that either Mr Brown or the police placed the cartridge cases beside the road just before they were found. Once those possibilities are left out of account, the discovery of the cartridge cases strongly confirms Mr Brown’s evidence.

To some degree Mr Brown’s story was confirmed by the evidence of his wife and his friend Mr McKlaren that he was shocked, startled and surprised when the appellant told him in January 2000 that the deceased’s remains had been found in September 1999.

The appellant criticised Mr Brown on the ground that his delays in going to the police were suspicious; that his story changed and improved over time; that his memory was affected by drink and drugs; and that his reliability was affected by the financial disputes between him and the appellant. The jury were, and this Court is, entirely entitled to accept Mr Brown’s explanations about these matters. If the evidence relating to Mr Brown is read as a whole, the jury’s acceptance of Mr Brown in the key elements of his evidence is entirely sound and this Court ought to accept those elements as well.

In all the circumstances there is no possibility that the jury could not have accepted Mr Brown even if the direction which it is now claimed should have been given had been given. Hence if the only error in the conduct of the trial related to Mr Brown, the proviso would be applied.

When Mr Brown’s evidence is taken with all the other evidence against the appellant apart from the five items of relationship evidence now complained about, the case against the appellant is overwhelming. The appellant would inevitably have been convicted even if the relationship evidence complained about had been rejected. Its admission caused no injustice.

In this appeal the appellant submitted in effect that all the evidence was intertwined, and if a proper direction had been given about Mr Brown and the relationship evidence had been excluded, the jury may have acquitted, or there was a possibility that a reasonable jury may have acquitted. That submission is invalid. It pays no attention to the independent force of many items of evidence against the appellant.

Accordingly, if it were necessary to do so, the proviso should be applied. Grounds 5 and 6: sentence The grounds

These grounds are: “5. In sentencing the prisoner His Honour erred in failing to find that he suffered from intellectual impairments and that the sentence imposed should have been considerably less. 6. Further his intellectual/physical disabilities were sufficient to amount to special circumstances warranting a reduction in the time to be served in custody.” The appellant’s submissions

Ground 5 was in effect abandoned, since no challenge was made to the sixteen year head sentence. Rather it was submitted that a non-parole period of less than three-quarters of the head sentence should have been imposed. It was submitted that the trial judge should have found that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. That provides: “The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.”

The appellant submitted: “A number of factors that were accepted by His Honour, it is submitted, would be relevant in this regard and are as follows: i) As a result of a motor vehicle accident, the Appellant was left with disabilities which were substantial ii) He suffered a head injury resulting in permanent brain damage iii) He had left sided weakness (described by Dr Reid as being a left hemiparesis) iv) Inability to remember details of things (e.g. computer key strokes performed on a regular basis) v) Alteration of mood vi) Proneness in making spontaneous, foolish and/or offensive remarks vii) Inability to form friendship viii) A level of functioning in the lower average range as opposed to average pre-accident ix) Inability to think quickly or speak fluently x) Behaviour which is distractible and inappropriate at times xi) He should be treated as being equivalent to a first offender xii) Physical disabilities will make it more difficult for him in custody xiii) He is denied the full range of activities which is available to most prisoners xiv) He is not a danger to others upon release It is submitted that His Honour erred in not finding that there is desirability for the offender to be subjected to an extended period of conditional release. The matters mentioned above would clearly demonstrate that the assistance of some ongoing counselling for the Appellant’s interpersonal affairs and relationships with people generally would be of assistance to him. As a result of his injuries, he had been left very much on his own and with a limited capacity to cope with the pressures of daily living. It is submitted that by leaving the sentence as it stands but increasing the period on parole, the sentence still reflects the criminality of the offence and does take into account significantly the mental disability suffered by him. With respect, His Honour fell into error in finding that the Appellant simply functions in a low average range rather than suffering from some mental illness or disability (see page 8 paragraph 20). There is no doubt he functions in a low average range but it equally cannot be said he has no mental illness or disability. Very clearly the report of Dr Reid was before His Honour, most of which seems to be accepted, does make it very clear that he has brain damage resulting in disabilities which were in fact accepted by His Honour. Those disabilities were not considered appropriate within the terms of Letteri and possibly the decision in Dean William Wright (unreported NSW CCA 28 February 1997) where it was pointed out that the extent of knowledge which the offender had of what he was doing and the gravity of his actions might not moderate the sentence on a mentally ill offender. Accepting these findings, however, it is submitted that in looking at special circumstances different considerations would apply. The mental disabilities are significant and their effects were not taken into account as were the physical disabilities which will make imprisonment more difficult for the Appellant than other prisoners would mean that the 12 years to serve would be far more difficult because of his physical disabilities and his inability to work within the normal prison system than others.”

The appellant relied on R v Letteri (unreported, Court of Criminal Appeal, 18 March 1992) and R v Fahda [1999] NSWCCA 267. These cases were cited to the trial judge, but he distinguished them. The Crown’s submissions

The Crown submitted that the appellant’s difficulties were less than those of Letteri and Fahda. The Crown also submitted that the head sentence was lenient and that to reduce the non-parole period further would make the sentence inadequate.

The Crown’s submission that the head sentence was lenient is correct. The facts which the jury must have found in order to arrive at its verdict reveal an extremely serious crime. The trial judge’s reasoning

The trial judge said at the end of his remarks on sentence: “This is not a case where the offender is suffering from some mental illness or disability the existence of which would make it inappropriate to impose a salutary sentence. Neither does the offender suffer from any severe intellectual handicap. He simply functions in the low average range. There is no impairment of his planning skills or his ability to choose between courses of action. He must have premeditated and planned the death of the deceased. He had to persuade her to go for a drive with him, he had to obtain the firearm and the ammunition and he had to ensure that he could travel to the forest and back and do all that he had to do, covering his tracks as necessary, within a limited period of time. The offender’s physical disability will make it more difficult for him than for most to serve the custodial part of his sentence and he may be denied the full range of activities available to most within the Corrective Services system. I take that into account. I do not consider that he will be a danger to others when he is released back into the community, because I think that this offence resulted from a peculiar coincidence of circumstances which is not likely to be repeated. I have considered whether circumstances warrant a period on parole which would require the imposition of a non-parole period less than three-quarters of the sentence I intend to impose, but I do not think that any extended period will be necessary.” Conclusion

The appellant has not demonstrated error in this factual reasoning. In addition to what the trial judge said, it might be noted that despite his condition the appellant had carried on an active life as the owner and operator of small businesses and enterprises. The successful running of a post office in a country town, with the multiplicity of activities which the manager of such an enterprise must carry out, evidences much more capacity than that which counts as showing either mental or physical disability for s 44(2) purposes. The trial judge said, and it is not to be doubted, that he took into account the difficulties which the appellant’s condition would cause in serving the sentence. Nothing said by the appellant has demonstrated that the sentencing discretion miscarried. In particular the overall result is not unjust. Other minds might well have concluded that a longer head sentence was appropriate. The trial judge took into account the difficulties which the appellant’s condition would cause him while serving his sentence, and apparently did so in relation to the head sentence. For this Court to take account of them again in reducing the non-parole period would involve doubling up. Orders

The following orders are proposed: 1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is dismissed.

DOWD J: I have had the advantage of reading, in draft form, the comprehensive judgment of Heydon JA, and adopt, with respect, the facts that His Honour sets out under the heading Background.

I agree with His Honour’s reasons for rejecting grounds 1 and 2, and agree that the grounds should be dismissed.

As His Honour has indicated, ground 4 was abandoned, leaving only Ground 3, which is as follows: “His Honour erred in permitting evidence of the relationship between the deceased and the accused to be given by a number of witnesses”.

His Honour then identified in paragraphs 80 to 84 a number of passages from the evidence of five witnesses, which were claimed to be inadmissible.

I agree with His Honour in respect of paragraph 80, which dealt with the evidence of Judith Sellars (formerly known as Cooke). In my view, the evidence in paragraph 81 of Mrs Robinson is similarly admissible for the reasons given by His Honour.

The evidence of Mr Williams, as set out by His Honour in paragraph 82, that was not objected to, is clearly admissible. I take a different view concerning the passage of the evidence quoted by His Honour that was the subject of objection set out in paragraph 82, namely: “Q. Apart from saying that Mr Clark wanted her out of the house, did she say anything else? A. She just said that was scared of him and later on, she mentioned to me later on: “If anything ever happens to me just mention it to the police?’ Q. Mention what to the police? A. If she disappeared or anything happened to her just to report it to the police because she was scared of him. Q. Did she tell you what to report to the police? A. Just that she went missing. Q. What were you to report to police in that circumstance. A. Just if she had gone missing, if she had gone missing, or if something strange happens just to report it to the police because it would be something to do with Nobby”.

Also, in relation to the evidence of Mrs Williams, as set out by His Honour in paragraph 83: “Q. What did she say in relation to Mr Clark? A. Do you want the words? Q. Yes. A. She said: ‘That bastard’s going to kill me. What do I do?’ Q. Speak up loudly and slow down. A. Okay. She said: ‘That bastard’s going to kill me’, and she was very frightened. I told her to go to police. Q. When you say she was frightened, is that what she told you? A. Yes. Q. Or is that an impression you got? A. Another she said was: ‘I’m shit scared of him’. Q. Did she say anything to you in relation to where she was living? A. She had told me previous to that that she was having problems living there and she was hoping to move out she said at that stage with Casso but they hadn’t as yet moved, she hadn’t as yet moved, and Steven was giving her a hard time being there.” Q. When you spoke with her about visiting Mrs Heil what did she say? A. I said: ‘I’m going up to see Mum, do you want to come up and see Nolene?’ She said: ‘If I go up there and Nobby finds out he’s going to kill me’”, I agree with His Honour as to the admissibility of the part of the answer from the third question of Mrs Williams: “… she was very frightened. I told her to go to the police”, down to the end of the passage quoted, as it is in my view admissible for the reasons as stated by His Honour.

In particular, I consider that the expression as set out in the last answer, namely: A. I said: ‘I’m going up to see Mum, do you want to come up and see Nolene?’ She said: ‘If I go up there and Nobby finds out he’s going to kill me’”, is the sort of thing that is often figuratively said in conversations without necessarily having any threatening meaning. Parents are even capable of saying it about their children in conversational terms without having the slightest intention of killing that child, and is thus admissible.

I have a different view from His Honour about the conversation as set out in paragraph 84 of His Honour’s judgment.

I agree with His Honour’s reasons as to the common law and the Evidence Act 1995 (‘the Act’) as set out, with the exception that I would not use the word “discretion” that appears in paragraphs 112, as to using the term with reference to s137 of the Act. As His Honour indicates, s137 of the Act is not a discretion, which is my own view: R v Blick [2000] NSWCCA 61 per Sheller JA.

I further agree with His Honour’s reasoning until paragraph 148 dealing with s137 of the Act. I agree with the reasoning of Heydon JA from paragraph 150 down to paragraph 162.

I disagree with the reasoning of Heydon JA that the examination under s135 carried out by Barr J necessarily entailed the rejection of Mr Stratton’s s137 submission. The operative words in s135 of the Act are “substantially outweighed by the danger that the evidence might ….. be unfairly prejudicial to a party”. The operative words in s137, which is a weighing process which the Court must carry out as distinct from any discretionary process, and the consequent constraints on a Court exercising that discretion, means that a Court must refuse to admit a Prosecutor’s evidence: “…. if its probative value is outweighed by the danger of unfair prejudice to the defendant”.

It is necessary to look at the probative value of the evidence, and assess if a danger of unfair prejudice outweighs it. This is a very different test to that set out in s135, which requires a substantial outweighing. It is for this reason that some evidence of relationship may be admissible under s135, but in a criminal prosecution, evidence adduced by the Prosecutor will be excluded under s137.

I agree with Heydon JA, that His Honour Barr J limited under s136 the way in which the evidence can be used. It is clear law that the law accepts that juries obey directions, and are presumed to do so in a general case. This however cannot be an absolute presumption as some evidence must be of such a prejudicial nature as to create or increase the likelihood of the jury’s impermissible use of the evidence.

I agree with His Honour Heydon JA that the fact that the evidence is adverse or favourable to the Crown does not of itself make the word “prejudicial” appropriate. Prejudice means that there is a real risk that the evidence will be misused by the jury in some unfair way: see Papakosmas v R (1999) 196 CLR 297 at [91-93] per McHugh J.

I differ from His Honour’s view expressed in paragraph 166 of his draft judgment that the evidence is not significantly more prejudicial than other evidence, and that to exclude the evidence would be to leave the jury with vague and generalised evidence about the appellant’s state of mind, by including specific evidence about it. In my view, almost all relationship evidence is of its nature likely to be distorted and only to create part of a picture of a relationship since it is usually the evidence of what occurs in the presence of third parties or what is said to third parties, and not evidence of either party in the relationship itself.

Whatever the relationship, most people conduct themselves privately, differently from the way they conduct themselves in the presence of third parties. In my view, the evidence is significantly more prejudicial, but in this case, in each of the three passages that I have referred to where I differ from His Honour Heydon JA, being that evidence set out in paragraphs 6 and 9 and the indicated part in paragraph 7, the evidence merely reflects the untested state of mind of the deceased without any reasons being ascribed as to that state of mind. Whether that view was reasonable or not at the time cannot be tested, and the evidentiary value therefore is very slight when compared with the danger of unfair prejudice of admitting it.

The chance that the jury would use such evidence impermissibly is so high that in my view the danger of unfair prejudice outweighs the limited probative value because of the highly prejudicial language used. I therefore consider Barr J erred in admitting the evidence.

There would be cases where such evidence may be admissible to rebut other evidence. This is not, in my view, such a case. I do not therefore agree with paragraph 168 of His Honour Heydon JA’s judgment, and accordingly, I would exclude the evidence to which I have specifically referred, and therefore uphold Ground 3 to the extent of the three passages identified by me above. Proviso

I have however read and agree with the reasoning of His Honour Heydon JA, and the conclusions to which His Honour has come in relation to the proviso, and I agree that even if Ground 3 were upheld as to part or entirely, that the appeal against conviction should be dismissed, and that the application for leave to appeal against sentence should be dismissed.

BELL J: I agree with the orders proposed by Heydon JA and for the reasons his Honour gives.