ZT v R

1. [1]

   KIRK JA: The applicant was found guilty of having been a party to murder. The case against him was founded upon a series of admissions he had made as to his involvement in the killing. However, his accounts are numerous and inconsistent. The version which on its face is most believable and damning is probably not true. The core question is whether the admissions are sufficiently reliable to establish his guilt beyond reasonable doubt. In my view, in the extraordinary circumstances of this case, they are not.

2. [2]

   The applicant was charged with the murder of a 25 year old man, William Chaplin, between 30 March 2010 and 31 May 2010, at a property in a town called Gerogery just north of Albury. There is no dispute that Mr Chaplin was murdered by PW. The murder was only uncovered when PW made admissions to a person with whom he was sharing a prison cell whilst serving a term of imprisonment in Victoria for the sexual abuse of his own children.

3. [3]

   The applicant was 16 years old at the time and living with PW and PW’s then wife, SW, to whom I will refer collectively as “the Ws”. He was clearly under the influence of PW; at times felt threatened by him; and says that PW had had sex with him on a number of occasions. The Crown case involved the doctrines of joint criminal enterprise or extended joint criminal enterprise. The applicant’s trial was held separately from the trial of PW. The applicant was convicted by the jury on the 13th day of the trial after only 50 minutes of deliberation.

4. [4]

   The applicant sought leave to appeal on one ground: that the verdict was unreasonable. On the morning of the hearing the applicant sought to raise another ground relating to directions the trial judge had given with respect to the doctrine of extended joint criminal enterprise. The Crown did not oppose that ground being raised. The Court granted leave to add the new ground, made orders for the exchange of written submissions, heard argument on the first ground and reserved judgment on that issue. The application to rely on the second ground was subsequently withdrawn. This judgment only addresses the unreasonable verdict ground.

5. [5]

   The law to be applied in relation to an unreasonable verdict ground is well-established. It was summarised by the High Court in Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [7]-[15], by reference in particular to the decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The question which the appeal court must ask itself is whether it thinks that upon the whole of the evidence it was open to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact which the court must decide by making its own independent assessment of the evidence. The court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. In answering that question the court must take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses. However, it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appeal court that the court may conclude that no relevant miscarriage of justice has occurred.

6. [6]

   Here, evidence by SW directly implicated the applicant in having been involved with her in moving then burning the body of Mr Chaplin. She had pleaded guilty to a charge of being an accessory after the fact to the murder. Senior counsel for the applicant effectively accepted the conclusion that the applicant had been involved in that offence. But the applicant was charged only with murder. Neither the evidence of SW, nor the evidence of any other witness of fact, nor the forensic evidence, directly implicates the applicant in being involved in the murder itself. The case against him is founded on admissions made by the applicant. There is no real basis to choose between the numerous different accounts given by him, and the most reliable admissions made by him – to his parents on the phone – were accepted by the Crown to probably be untrue. The core question is whether there is enough in his admissions for it to have been open to the jury to be satisfied beyond reasonable doubt that, whatever precisely happened, he was involved in PW’s murder of Mr Chaplin in one of the ways alleged by the Crown.

7. [7]

   Having reviewed all of the evidence, I have a doubt – which I consider to be reasonable – that the applicant was involved in the murder of Mr Chaplin as alleged. The admissions made by the applicant are not reliable enough to found a sufficiently solid conclusion that he was involved. I do not consider that my doubt is resolved by reference to the natural advantages of the jury. There is, in my view, a significant possibility that the applicant is innocent of the offence charged. Given that conclusion, he is entitled to be acquitted of the murder charge.

8. [8]

   In what follows I will first outline the key evidence given by the other witnesses of fact and the forensic evidence, then summarise the various admissions and accounts made by the applicant, before turning to consider the reliability of the admissions and whether it was open to the jury to be persuaded beyond reasonable doubt of the case made by the Crown.

The witness evidence

1. [9]

   The police investigation into the disappearance of Mr Chaplin – nine years after the event – was sparked by a report of an honest inmate in a Victorian prison where PW was incarcerated. PW told his cellmate, Mr Sacha Priest, that “I murdered someone” and then went into detail about what he did, why he did it, and where the body was. He said that he burnt the body and buried it on a farm where he had lived. He did not say how he murdered the deceased.

2. [10]

   PW’s admission to murdering the deceased was made in the singular, saying that “I murdered someone” not that “we murdered someone”, suggesting that he acted alone in the murder of the deceased. In the course of Mr Priest’s examination-in-chief, the following exchange occurred consistently with that understanding:

3. [11]

   Another witness, JB, had lived near the Ws’ house and on one occasion asked PW about what had happened to Mr Chaplin after witnessing a separate incident involving a crashed car. PW replied, “I killed him because he tried to rape [my] daughter”. This is consistent with Priest’s evidence that PW claimed sole responsibility for the murder of the deceased.

4. [12]

   The involvement of SW in disposing of the deceased’s body is described immediately below. Her evidence was that PW told her that he killed Mr Chaplin because he had found him in the room with the Ws’ two year old daughter in a compromising position. She indicated the words he used were “I killed him”. Further, PW never said anything to her about the applicant being involved in killing the deceased.

5. [13]

   Consistently with SW’s evidence in court, SW had earlier told PW’s mother that PW had confessed to her that he had killed the deceased.

6. [14]

   The Crown’s case against the applicant was that PW was the “orchestrator” of the killing. At least as PW’s own admissions are concerned, there is no suggestion the applicant was involved.

7. [15]

   Witness evidence about the applicant’s involvement in the murder of the deceased was given primarily by SW who, as noted above, pleaded guilty to being an accessory after the fact to murder by helping to burn the body of the deceased. Relevant evidence was also given by SD, who had been a neighbouring young person, and Ms W, who is SW’s mother.

8. [16]

   SW and her then husband resided together in Gerogery, where they lived until around 2011. The applicant had been living in the town with his mother, LT. LT’s sister “Aunt B” lived with her husband next door to the Ws. The applicant’s father lived in Culcairn, a small town not far from Gerogery. LT and the applicant moved to Townsville in 2007. Around late 2009 or early 2010 the applicant moved back to live with his father in Culcairn. The applicant turned 16 in October 2009.

9. [17]

   The Crown’s case relied on the closeness of the relationship formed between the applicant and PW as part of the circumstantial evidence of his involvement in the murder. PW befriended the applicant whilst the latter was living in Gerogery, before moving to Townsville. The acquaintance was renewed when the applicant returned to the area. He would come to the Ws’ house – which had an adjoining paddock – to help with the horses owned by them. The applicant went to their house with increasing frequency, nearly every night after school, and sometimes spent the night there. At some point the applicant moved in with the Ws having had a falling out with his father.

10. [18]

    SW described the relationship between the applicant and PW as “very good friends”. They would “hang around together”, and talked and smoked marijuana. By around late 2009, when the applicant had moved into the Ws’ home, he rarely went to school. Prior to the deceased being killed the applicant had lived in the Ws’ home for approximately four to five months. Mr Chaplin was also living in the house by early 2010.

11. [19]

    On a day in early 2010 SW had an argument with PW. She left in the afternoon to stay with her mother-in-law overnight. The murder of Mr Chaplin took place while she was staying with her mother-in-law.

12. [20]

    The next day SW called her husband to see if she could go home, and he said that he needed an hour to clean up. She arrived some time between 11:30am and 12:30pm. PW asked her if she wanted to be shown something which she agreed to, not knowing what it was. PW made jokes in the presence of the applicant about it being a lovely day for sunbaking, in apparent reference to Mr Chaplin’s corpse.

13. [21]

    She followed them to the “round yard” which was about 50-100 metres from the house’s back fence. The round yard was a circular enclosure with a wall constructed out of old tyres and a gate. It was used with the horses on the property.

14. [22]

    A tarp with a bulge in it lay on the ground in the round yard. PW went into the round yard and pulled the tarp back and SW saw the deceased’s body lying there. PW had pulled the tarp back to above the hips or waist of the deceased. He was lying with his arms by his sides, his eyes were open and he was staring up. He had a small nick above his right eye. SW did not notice any damage, cut or bruising to his neck. She did not see any blood on his neck. She confirmed in cross-examination that she had earlier told police she was positive she saw no cuts to the throat. She had told the police that she was sure that if the deceased’s throat had been cut she would have seen it.

15. [23]

    The applicant was present when the tarp was pulled back. She did not notice anything about his demeanour and did not remember him saying anything. However, she later said the applicant did appear scared. The tarp was then replaced and everyone went back to the house. PW said to both her and the applicant “don’t say anything otherwise we’re in the same position”.

16. [24]

    SW gave evidence that when they returned to the house PW had told her that the reason he had killed the deceased was because PW had walked in on the deceased with his daughter and her nappy was half undone, suggesting the deceased had or intended to sexually abuse the child. The applicant was there when that was said. PW said to her and the applicant that “no one else was to know of this, and to tell no one”. She understood this to mean that if either of them said anything about it PW was likely to kill them.

17. [25]

    Later that evening PW indicated to both her and the applicant that they needed to dispose of the body. She did so out of fear of being killed by PW if she did not assist. PW was violent and manipulative; he had hit and kicked her on a number of prior occasions; and he had regularly threatened to kill her. (He later threatened her on a phone call from prison suggesting, with reference to the deceased, that she would go to prison and experience what he was experiencing.)

18. [26]

    She went with PW to an area on the property near some trees. The deceased’s body was moved by PW and the applicant to the round yard. There was already a shallow grave there, and PW started to cover the body with bits of wood, before indicating that she and the applicant should help him. They gathered wood and covered the body, before PW set it alight. The fire lasted for about 2-3 days and SW helped add timber during that time. She said that the applicant left for Townsville between 1-12 months later.

19. [27]

    None of the evidence of SW directly inculpates the applicant as having been involved in the murder. It does place him at the scene when she returned after the murder had occurred, and clearly indicates he, like her, was involved in disposing of the body.

20. [28]

    SD was a young person who lived in Gerogery at the relevant time. He was friends with the applicant. There was an occasion when SD was at PW’s house with the applicant and the three of them were smoking cannabis. PW said he was proud of the applicant, he had “stepped up and helped him take care of some business”, although he did not say what that business was. When this was said the applicant had a “little bit of a smirk on his face”.

21. [29]

    SD laughed at the remark. PW got annoyed, pulled out a large hunting knife, held it to SD’s throat and said something like “do you think we’re talking shit, you want to be, do you want to go next”. PW also moved his head towards the applicant, who then got up and stood next to the door. The knife was held to SD’s throat for five to ten seconds, then he was released, and he left a short time later. Afterwards SD asked the applicant “why you didn’t jump him”, referring to PW, and the applicant responded “I was too scared”.

22. [30]

    This episode is weak evidence that the applicant had helped PW with something illegal, that being what was implied by “some business”. But that business could have been disposing of the body of the deceased, or something else. PW’s threat “do you want to go next” is suggestive he was prepared to kill, but that still does not tie the applicant in to involvement in the killing of the deceased. The apparent preparedness of the applicant to assist PW threaten his friend by standing by the door indicates that the applicant was under PW’s thrall, likely because of fear. Again, that does not tie him to having been involved in the murder. The evidence of smirking has to be understood in the context of the relationship between the applicant and PW, which is discussed further below.

23. [31]

    Ms W is SW’s mother who met the applicant in 2017 after PW had been incarcerated for sexually abusing his children. Ms W and the applicant had a conversation where the applicant effectively told her that he and PW “had to sort out some guy who’d been messing with [the Ws’] daughter”. In cross-examination, however, she clarified that it was possible the applicant told her that PW “had to sort this bloke out” and that the applicant had to help him after that.

24. [32]

    Obviously enough, this evidence does not tie the applicant to having been involved in the murder, as opposed to having been an accessory after the fact.

25. [33]

    JW, PW’s first wife, was contacted by the applicant after the police investigation commenced. She gave evidence that he told her that he could tell police both where the murder weapon is and where the body was buried. This evidence indicates he knew about the murder. It does not point to his having been involved in undertaking it.

26. [34]

    As the Crown put in closing address, PW is “a child molester, he’s a wife-basher, he’s also, the Crown say a murderer”, adding that there “is no doubt he’s a violent man who will resort to violence”. SW described him as highly manipulative and SD called him very manipulative.

27. [35]

    The relationship between the applicant and PW started when the applicant was an early teenager, and he moved into the Ws’ house having fallen out with his father. There was a significant age difference – PW was aged around 39 at the time of the murder, when the applicant was 16.

28. [36]

    The applicant told the police that PW had required him to have sex with PW on a number of occasions, and also to have a threesome with both of the Ws. SW gave evidence that she never saw PW engage in sexual conduct with the applicant, and the applicant never told her of any such conduct, and denied that she had had sex with the applicant. Given that PW engaged in predatory sexual behaviour with a range of children of both genders, including teenage girls, the suggestion that there was a sexual element to PW’s relationship with the applicant is entirely plausible.

29. [37]

    SW gave evidence that she had never personally witnessed PW threaten or assault the applicant or the deceased. She had never seen PW assault anyone in the presence of the applicant, except for SD. On that occasion, SW had come home to find PW was “flogging into” SD. SW herself had been assaulted by PW in the presence of the applicant four or five times, including once when he had had her in a choke hold and PW called out to the applicant to grab the Ws’ daughter who was standing in the kitchen watching. The applicant himself told the police about regularly being threatened by PW. As explained below, the reliability of what the applicant told the police is highly suspect. Even so, it is clear that the applicant was exposed to PW’s violent tendencies and it is reasonably likely he at least felt threatened by those tendencies.

30. [38]

    As already noted, SW testified that the applicant seemed scared when she was shown the body of the deceased, and she understood that PW threatened both of their lives if they were to tell anyone about it.

31. [39]

    JW gave evidence that PW hung around the bikie gang the Gypsy Jokers. PW had told her that he had someone watching her and the house for protection. The applicant’s interviews with the police contain numerous references to PW being involved with that gang, along with other reasons he claimed he was fearful of PW. Whatever the truth or otherwise of those claims, there is no reason to doubt that the applicant had good reason to be fearful of PW and, at least at times, very likely was in fear of him.

32. [40]

    The unbalanced, probably abusive and fearful relationship between the applicant and PW renders plausible the allegation that the applicant was prepared to act under the direction of PW. But it does not point to him doing so by being involved in the murder, as opposed to assisting PW dispose of the body of the deceased. There is no evidence from any witness that PW requested that the applicant assist him assault or murder the deceased. In any event, the relationship does provide some context informing how the applicant reacted to remarks made by PW about the deceased, such as smirking when PW praised him.

33. [41]

    Skeletal remains of the deceased were found by the police, buried in the round yard on the property that had belonged to the Ws, in August 2019. Dr Denise Donlon, a forensic anthropologist, examined the remains in September 2019, over nine years after the murder. Four defects were found on the skeletal remains, which included the skull and various other bones.

34. [42]

    The first defect was that for the hyoid (a very small bone just under the lower jaw) the usually attached greater horns were not found, having become unfused. Dr Donlon gave evidence that it probably occurred post-mortem but did not form an opinion whether or not that defect could have been caused by a blunt object, a sharp object or something else.

35. [43]

    Secondly, one of the deceased’s right ribs had the appearance of a puncture mark on the posterior surface but it was not clear if it occurred perimortem (at or near to the time of death) or post-mortem. It did not show any healing, which is consistent with it having occurred perimortem. Dr Donlon did not proffer any view on what the cause of the puncture mark was, although in cross-examination agreed that it could be consistent with a stabbing motion or have been caused by something pointed.

36. [44]

    Thirdly, there were also possible perimortem cut marks on two lower cervical vertebrae in the neck. One vertebrae had a hinged defect on the left side of the lamina measuring 12x5mm. Dr Donlon could not say what would have done that, but it could have been a cut to the bone. Another cervical vertebrae had what might have been a cut mark. She could not tell if these marks to the vertebrae were caused before or after death.

37. [45]

    Fourthly, there were defects in the deceased’s fibula (from the shin). A number of these were heat related fractures, which is consistent with the evidence that the body had been burnt. There was one fracture that was angled which was a bit different but she drew no particular conclusions from this.

38. [46]

    There were no defects found in the skull.

39. [47]

    This evidence tends to confirm that the deceased’s corpse was burnt. There were other defects which could have been caused at or near to the time of death by stabbing or hitting, but Dr Donlon was not prepared to conclude that that was the likely explanation.

40. [48]

    The following key points emerge from the relevant witness evidence:

    1. (1)

       PW’s admissions indicated that he undertook the murder of the deceased and did not indicate that the applicant had any involvement.

    2. (2)

       SW’s evidence indicated that the applicant was involved in moving and then disposing of the body. It also indicates that he was present when she came home after the murder and, implicitly, seemed to know about it. But none of her evidence points to him having been involved in the murder itself, as opposed to being an accessory after the fact.

    3. (3)

       The evidence of SW, along with JW and SD, indicates the violent and manipulative character of PW, and that both SW and the applicant were in fear of him.

    4. (4)

       The evidence of SD and SW’s mother, Ms W, does not tie the applicant to having been involved in the murder, as opposed to having helped burn the body of the deceased.

    5. (5)

       The forensic evidence, taken at its highest, is consistent with the deceased being stabbed in the chest. But the evidence does not point to the cause of death.

41. [49]

    The officer in charge, Detective Sergeant Neil Wallace, also gave evidence of his investigation, but his testimony did not go directly to whether or not the applicant was involved in the murder. Nor did the evidence of other witnesses.

42. [50]

    Put simply, thus, none of the witness evidence, including the forensic evidence, points in any material way to a conclusion that the applicant was a party to the murder. The case against the applicant is founded on admissions he made in intercepted phone calls and in two interviews he conducted in Townsville with the investigating New South Wales police.

The applicant’s accounts

1. [51]

   The New South Wales police commenced investigations into the murder of Mr Chaplin in around July 2019 after Mr Priest gave a statement to the Victorian and then the New South Wales police about the PW’s disclosure of murder to him. SW was interviewed by New South Wales police on 14 August 2019 about her involvement in the murder. In due course she pleaded guilty to a charge of being an accessory after the fact to the murder. She agreed to cooperate with police by speaking to the applicant concerning his involvement in the murder.

2. [52]

   The police also spoke to the applicant’s mother, LT, by phone on that day. They asked her about the deceased, the Ws and the applicant. Shortly thereafter she rang the applicant to tell him this, thus giving him notice for the first time that a police investigation into the disappearance of the deceased was underway. It seems the applicant’s telephone calls began to be intercepted by the police from 15 August 2019.

3. [53]

   Key admissions were made by the applicant to each of his parents about his involvement in the murder of the deceased.

4. [54]

   LT called the applicant on the evening of 15 August 2019, which began with her saying “I’ve just got the fright of my life. Who the fuck is Will Chaplin?”. His mother told him of her recent phone call with Albury detectives. This call between the applicant and his mother was briefly interrupted as the applicant took a call from his partner, MP, who had just spoken to the applicant’s mother. When the call resumed, and after his mother told him a little more of what the detectives had said, the applicant said “yeah I killed him…”, “we found him one night touching” the Ws’ daughter, who was aged two, “so I took him out to the round yard and cut his throat and then we burnt the body”. He added that “[f]unnily enough, your sister came to the bonfire”.

5. [55]

   It seems he was not aware at this time of the possibility that his phone conversations were being intercepted by the police. He had no apparent incentive to lie to his mother, or later his father, about his involvement. Self-evidently, this is a critical admission to participating in – indeed effecting – the murder of William Chaplin. Yet the suggestion that the deceased was killed by cutting of his throat is inconsistent with the evidence of SW.

6. [56]

   On 16 August 2019 SW called the applicant. SW and the applicant had remained in touch over the years. Some time before 2019 the applicant had lived in a house owned by SW, although it seems that occupation ended somewhat acrimoniously. In any event, the phone call was cordial. They discussed the police investigation.

7. [57]

   SW rang Detective Wallace immediately after her call to tell him that she had rung the applicant. Amongst other things he asked her to ask the applicant how the killing happened.

8. [58]

   In a phone call on 16 August the applicant said to his mother, amongst other things: “There’s no body. There’s no murder weapon. There’s nothing”. That amounts to an admission as to knowledge of the events, but not participation in them.

9. [59]

   SW called the applicant again on 18 August 2019. As suggested by Detective Wallace, she asked him “who actually did it”. The applicant said “He did”. When asked how, he said: “I don’t know. I came inside.” Later in the call he stated “[a]ll I remember is it was happening in the round yard”. This version is inconsistent with what he had told his mother. SW said, consistently with her later account in court, that “I wasn’t involved other than, you know, the end”, to which the applicant responded “I know”. It is worth noting at this point that there is no reason to doubt the credibility of the evidence SW gave. The Crown placed great reliance on it in closing address.

10. [60]

    In this phone call the applicant said “we’ll see where this goes and, if worst comes to worst, if you’re happy to do it I’m blowing it back on him”. The Crown started and ended the closing address referring to this point, as part of a repeated theme that the applicant was a liar seeking to deflect blame.

11. [61]

    On 22 August 2019 the applicant rang the Albury police station and ended up speaking to Detective Wallace. He claimed not to remember the name William Chaplin but then admitted to knowing a person nicknamed “Too Tall” (which was the deceased’s nickname). He implicitly denied knowing where he was.

12. [62]

    In an intercepted call with his father, ST, on 22 August 2019 they discussed the police investigation. His father asked the applicant if the missing person “deserved to go missing” to which the applicant responded “he might’ve, ah, yeah … he might have touched a kid, I don’t know”. A bit later in the call the applicant said the deceased “was caught in the act” touching “the wrong little girl”. The father, sceptical, queried the evidence for this. The applicant said “I seen it with my own eyes … I witnessed the lot”. This claim is highly doubtful, and likely illustrates the applicant’s propensity to make things up. There is no other evidence that the applicant saw the deceased sexually abusing the Ws’ daughter. Indeed, the Crown case was that PW’s motive for murder was likely that the deceased had caught PW sexually abusing his own daughter.

13. [63]

    Later in the same call the father asked whether the applicant made the person disappear. The applicant initially responded “no comment”. His father asked whether more people had been involved in making him disappear, to which the applicant said “yeah”. The father said “[o]h there was a few people”, to which the applicant responded “[t]here was one”, and subsequently agreed when his father said “you and someone else made this person disappear”.

14. [64]

    The Crown submits that this exchange is a compelling admission that he was referring to himself and PW having agreed to murder the deceased. However, agreeing that he helped make some “disappear” is also consistent with assisting to dispose of the body. I do not regard it as a compelling admission to murder.

15. [65]

    At the end of this call to his father the applicant for the first time manifests an awareness that his phone calls might not be safe, and his father said “don’t talk anymore on the phone”. In a call the next day to his mother the applicant said “I don’t know if my phone’s hot or not”. However that same day the applicant rang his father, who said “I can’t talk to you about anything ‘cause you might be bugged”, with the applicant responding “no I changed my phone”. The number that is recorded on the intercept transcripts is the same. It may be that the applicant changed his physical phone, keeping the SIM, based upon the misunderstanding that a phone tap would be something on the actual phone device. In this and subsequent phone calls the applicant does not seem to be talking in a guarded way based upon a fear of being recorded.

16. [66]

    In that conversation, incidentally, his father told him that he did not know if what the applicant was saying was the truth, and that “you always been full of shit”. In the same call the applicant implied that what he had “done” to this person (the deceased) he had in fact done to “people”, that is, “[m]ore than one”. There is no evidence to support this claim, which has the ring of fantasy.

17. [67]

    In a text message to his father on 23 August 2019 he said “this time I fucked up bad”. That admission is consistent with being involved in murder. However, it is also consistent with being involved in other ways.

18. [68]

    In a phone call with his father the next day on 24 August 2019, his father asked the applicant what his involvement was in the death of Chaplin. The following exchange occurred:

19. [69]

    Thus, critically, the applicant again confessed to having participated in the murder of the deceased by having cut his throat. As can be seen, his father’s reaction was sceptical. This was the same version he had told his mother on 15 August 2019.

20. [70]

    However, three days later the applicant subsequently seemed to deny to his mother that he had told his father this. In a call with his mother on 27 August 2019 she asked why he told his father he had cut the deceased’s throat, he replied: “I didn’t tell him anything like that. I told him … that it was done quick, painless like a sheep, okay?” He goes on to say that “youse don’t need to know how it was really done”. Suffice it to say that this is an odd exchange, clearly inconsistent with what he had told his father. He went to say that his father “thinks I’m a liar and … I’m doing it all for attention … I’d rather him believe that than know the truth”. He goes on to say to his mother that “it was hard enough telling you the truth”.

21. [71]

    In a phone call with his brother on 26 August 2019 the applicant stated that he knew where the murder weapon was, namely in the dam on the property. Earlier in the call the brother had expressed scepticism about what the applicant was saying, explaining “[b]ecause the detectives are looking for you, so you’re big noting about it”.

22. [72]

    On 31 August 2019 the applicant told his mother, based upon reading some media articles, that the police suspected the deceased was murdered. He said “I’m scared of what [PW would] do mum. I’m fully prepared to tell them what happened and what he did”, and “I’m scared of what he’ll do if he finds out that I’ve told on him”. He discussed speaking to the police to give evidence against PW. He strategised with his mother to tell the police that he was fearful of PW in order to cover for what his mother describes as being “made to do stuff”. He responded “no I’m not going to tell them I did anything”.

23. [73]

    He then called SW on the same day explaining his strategy above and that “I’m gonna have your back in this if you have mine ... let’s take [PW] down”.

24. [74]

    In a call with his father on Sunday 1 September 2019, after wishing his father happy father’s day, he told him that “[u]nfortunately I’m the main suspect”. It is not apparent what the basis for this understanding was. When his father asks what his involvement was in the murder, he replied “nothing”. But upon further elaboration, he explained to his father that: “it was this one random night with, I was chilling, or not, and, um, basically [PW] … told me to go wait … in the paddock, he’ll be out there in a minute”, then PW and the deceased “rocked up there and basically [PW] said, ‘You’ve got two choices. You either fight and kill or you die now’”. He later told his father in that same conversation that PW “pulled a nine mill Glock on me” and said “[k]ill or be killed. You got two options”. None of this had been recounted in the earlier version of events he told his father about cutting the throat of the deceased. In this recitation he did not mention cutting the throat, although this version is not necessarily inconsistent with him having done so.

25. [75]

    Later in the call he said “I did the wrong thing”, and later still said that “[i]t’s always sat there on the back of me mind”. The following exchange occurred between the applicant’s father and the applicant in which the applicant accepts that he had killed the deceased:

26. [76]

    In the course of the call the applicant told his father that PW was a hitman for the Gypsy Jokers, and also that PW was the one who “got me started on gear”.

27. [77]

    Soon afterwards the applicant called his mother and told her he was going to “hand myself in”; that PW “used to shoot me up” (with drugs); that his drug addiction goes back before he and his partner MP got together; and “I’m going to get high before I go in”, and “the only reason I can stay calm is if I have a shot”.

28. [78]

    He then called Albury police. As it was a Sunday Detective Wallace was not available, but another detective rang him back. Near the beginning of the call the applicant asked for protection from PW “for me and my family” in return for providing information about the deceased’s murder. The officer told the applicant “I am not in a position to offer you any protection”. The applicant told the officer a version of events which involved lies, including that he could not tell the officer where the deceased was. Later, when he inquired about PW, and whether he was still locked up, the officer told him that “I can’t divulge any information in regards to him”. They ended the conversation with the officer telling the applicant to give the police a call if he thought of anything else.

29. [79]

    Immediately after this call, he called his partner and told her he had spoken to the police. In the short phone call he told her five lies: that “they will supply [protection]”; that they told him that PW “won’t be getting out”; that “they’re not currently looking at me right now” (which had not been said); that “[t]hey’re taking all the information into consideration and they’ll let me know in about ten, fifteen minutes”; and that “they’re going to tell me everything that they know”. The first three lies are perhaps understandable as an attempt to assuage concerns of his partner. The latter two lies are bizarre, serving no apparent purpose. He then called SW and told her a different version of the ringing back lie, saying that the police was going to “ring me back in like an hour”. These pointless lies suggest there is something compulsive about him saying untrue things.

30. [80]

    Towards the end of that day he spoke to his father again where his father discussed telling the rest of the family of his involvement in the murder of the deceased. He told his father, untruthfully, that the police were working on getting protection for him. The applicant asked “are you going to tell [my sister] that I did it?” His father responded “No, I’m going to say that you were involved”. Later the father asked if there was only one knife involved, which the applicant confirmed. The applicant agreed that the police could not prove who pushed the knife, adding that “they can’t even prove the knife was used”. This exchange involves the applicant implicitly acknowledging his involvement in the murder through the use of a knife. At the end of the call the applicant said “all I want to do is go and have a fucking mad shot ... a fucking big fat shot”. He plainly is referring to using drugs; it is not clear if he was suggesting a suicidal intent, although his father’s reaction suggests he may have understood it that way.

31. [81]

    The two, not necessarily inconsistent, accounts by the applicant of what occurred based on the phone intercepts were: (1) the applicant cut the deceased’s throat (told to each of his parents); and (2) it was a fight to the death, perhaps whilst being threatened with a pistol (told to his father). Beyond that, the calls indicate that the applicant was involved in making the deceased “disappear”, that there was a knife involved, and that he had felt guilty about his involvement ever since. However, the calls also manifest the tendency of the applicant to say things which were not true, where there was no apparent reason for him to do so.

32. [82]

    Even so, but for the evidence of SW along with questions about reliability of the admissions (addressed below), these transcripts provide compelling evidence suggesting the applicant was involved in the murder of the deceased.

33. [83]

    On Monday 2 September 2019 Detective Wallace phoned the applicant and asked to speak to him in person. A meeting was provisionally arranged for later in the week, to occur in Townsville (where the applicant was living). It occurred on Thursday 5 September 2019. It seems that prior to the interview commencing the applicant was placed under arrest by Queensland police. The interview was conducted by Detective Wallace and another New South Wales detective, Detective Glynn. The interview was recorded by video in the usual way in an ERISP. It occurred over about 3.5 hours, including breaks. It was conducted fairly. Relatively early in the interview the applicant was told that the police had recordings of his phone conversations.

34. [84]

    After the interview the applicant was charged with murder. The next day he was taken before a court in Queensland for an extradition order. The applicant then told the two detectives certain things, which led to them conducting a further interview that day, 6 September 2019. This interview started with the applicant saying that “I was forced to kill William” and that “I strangled him [with] fishing line”, although that story, too, changed over the course of the interview.

35. [85]

    There is little point in reciting much of what the applicant said in the two interviews. Early in the first interview he stated that “I didn’t know he was missing until you guys turned up and started asking questions to my family”, and that “I didn’t know he was murdered until … about 15 minutes ago”, which were lies. Over the course of the interviews he told various versions of events. Some of his answers were long and rambling. The trial judge observed in his remarks on sentence that “the fabrications engaged in by the offender were so feeble and obvious that doubts may properly remain about the existence of an intellectual disability”. There is no evidence of intellectual disability, and that suggestion can be set aside, but his Honour’s characterisation of the fabrications is apt.

36. [86]

    Similarly, in cross-examination Detective Wallace agreed that the two ERISPs were “a series of rambling falsehoods”, that there may have been some truth woven into them, but “on the whole they were totally unreliable unless corroborated by independent material”. This evidence was not objected to, although its relevance is doubtful. As it happens, though, it is also an apposite characterisation.

37. [87]

    The applicant had an obvious incentive to lie to the police. At first, he was seeking to avoid being found to have any involvement. As the interviews progressed, he was flailing around with different versions of events. Apart from showing that the applicant was entirely prepared to lie when it suited him, little reliance can be placed on any details given in the interviews. It is perhaps notable that he denied having cut the throat of the deceased, even when the calls where he had admitted doing so were replayed.

38. [88]

    The nature of the interviews do raise a question about whether the applicant had taken drugs before, at least, the first interview. As noted above, he had told his mother that he planned to do so. During the course of the interview he said that he was addicted to the drug ice and that he had “had a shot this mornin”. Detective Wallace gave evidence that in his opinion the applicant had not exhibited any signs of intoxication, but fairly agreed that sometimes addicts are capable of covering up their drug addiction. To my mind it does not greatly matter whether or not the applicant had taken ice on the morning of his first interview; either way, it was, as Detective Wallace said, a series of rambling falsehoods.

The Crown’s case

1. [89]

   The Crown identified two ways the accused may be involved in the crime of murder: joint criminal enterprise and extended joint criminal enterprise. At the request of the applicant, a third variant was also put to the jury involving manslaughter. The applicant was found guilty of murder and it is not necessary to consider that variant here. Considering it would make no difference in any event, where any such case still depended on the Crown establishing the involvement of the applicant in PW’s attack.

2. [90]

   In relation to joint criminal enterprise, it was accepted that it was necessary for the Crown to prove beyond reasonable doubt that there was an agreement between the applicant and PW to kill or inflict grievous bodily harm upon the deceased. Such an agreement need not be expressed and can be inferred from words and conduct.

3. [91]

   In relation to extended joint criminal enterprise, it was accepted that it was necessary for the Crown to prove beyond reasonable doubt that the applicant and PW agreed to assault the deceased, and that the applicant foresaw or knew of the possibility that during the assault PW might kill or inflict grievous bodily harm, with the intent to do so.

4. [92]

   Both Crown theories thus require some agreement between PW and the applicant that they would at the least assault the deceased. In the circumstances of this case both also involved the applicant being present during the murder.

5. [93]

   In this Court the Crown emphasised that it was not required to prove the specific manner in which the applicant was killed or the applicant’s precise involvement in the deceased’s death: see eg The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. That may be accepted.

6. [94]

   As outlined above, no witness evidence points in any material way to a conclusion that the applicant was a party to the murder, in the sense of having participated in it in some way or having agreed to doing so. There is no specific evidence of any pre-death agreement at all. The Crown’s case rises or falls on the significance of the various admissions made by the applicant himself.

7. [95]

   In closing address to the jury the Crown summarised seven variations of the applicant’s involvement as described by him:

   1. (1)

      The first was that he did not know anything about the murder. This was said in the first ERISP and implied in some earlier phone calls. It can be accepted that this version was a lie.

   2. (2)

      The applicant told his mother and father that he cut the deceased’s throat.

   3. (3)

      “Fight and kill or you die now”, as told to his father on 1 September 2019. This version involved him being threatened by PW with the 9mm Glock pistol.

   4. (4)

      Early in the first ERISP the applicant said PW told him he had caught the deceased molesting his daughter, and said the applicant had three choices: “You leave my house right now, never speak a word of it, you help me with a job, or I put you where I’m, in the same spot”. The Crown said to the jury that he knew very well what PW was talking about.

   5. (5)

      In the second ERISP the applicant said it was SW that wanted PW to kill the deceased. He said she yelled out to them “[d]o it already, it’s taking too long”.

   6. (6)

      In the first ERISP, towards the end of the interview, he said that PW shot the deceased. This occurred after the applicant had an argument, PW threatened the applicant with a knife, and the deceased stood up for the applicant. The applicant then got his 9mm pistol and shot the deceased in the neck.

   7. (7)

      In both ERISPs the applicant told police that fishing line was used to kill the deceased. In the first interview at one point he suggested PW used this to kill the deceased, having told the applicant to fetch it. At a later point in the interview he said he was sent to fetch it but PW then shot the deceased. The second interview was held because it seems that the applicant had told the detectives that he had strangled the deceased himself with fishing line. That evolved to the applicant grabbing the decease and strangling him (it was not clear if this involved fishing line or a headlock), and that PW considered this was taking too long so stabbed the deceased in the chest.

8. [96]

   That the first version was a lie does nothing to establish his involvement in the murder. Of the second version – cutting the throat – the Crown said “[w]hile this version is possible, it’s unlikely … due to what [SW] told the police about the lack of any obvious injury or blood around William Chaplin’s neck”. The third version involved the applicant being threatened with a gun. The Crown put to the jury that talk of the 9mm Glock was “probably a lie”, there being no other evidence that PW had such a gun. The fifth version – that the murder was sought by SW – is inconsistent with her evidence and seems ridiculous. That is so, at least, on the premise that SW was a credible witness, which was very much the Crown’s position. The sixth version also involved use of the Glock. Further, the accused said on this version that there was “blood everywhere” and with SW being inside in the house at the time. Both of those aspects are inconsistent with SW’s evidence.

9. [97]

   The Crown thus focused on the fourth and seventh versions, tending to amalgamate them. The Crown’s case at trial was summarised in the closing submissions as follows:

10. [98]

    The Crown representative also said the following in his closing submissions (emphasis added):

11. [99]

    The italicised sentence is an odd and problematic thing to say. It is not entirely clear what was meant but it carries a flavour of undermining the standard of proof. In any event, the point is irrelevant to this Court’s undertaking its task of assessing guilt beyond reasonable doubt.

12. [100]

    The applicant submitted to this Court that the Crown had arbitrarily, in the absence of evidentiary support, combined the fourth and seventh versions and presented it as accurately describing the applicant’s involvement in the deceased’s murder. There is force in this submission.

13. [101]

    It is significant that the fourth and seventh versions arose out of the two police interviews. As explained above, what was said in those interviews would not readily be accepted as reliable. Senior counsel appearing for the Crown on appeal sought to put the case at a higher level of generality than focusing on these various versions, noting that it was not necessary to identify the manner in which the murder was carried out. Accepting that, it remains the case that the Crown case is founded on the admissions of the applicant. What must be found in those admissions is evidence sufficient to prove beyond reasonable doubt that there was some agreement between PW and the applicant that they would at the least assault the deceased, with the applicant being present during the murder.

14. [102]

    The Crown also put the following to the jury:

15. [103]

    This submission, too, is problematic. There was certainly evidence that the applicant was potentially under the influence of PW. If it was found that the applicant was present when the deceased was killed, that gives some basis for arguing that there may have been an agreement between them. But it is certainly not conclusive of it. The applicant may have been directed by PW to have been present. The applicant may have stood by whilst the brutal act was done. Those facts of themselves would not suffice to make him a party to the murder. They do not establish that he knew what was going to occur, let alone that he had agreement to participate in (at least) an assault.

16. [104]

    As noted above, the Crown made much of comments by the applicant that if the worst came to the worst he would be “blowing it back” on PW. This submission, also, was overstated. There is no doubt that PW was, in the Crown’s words, the “orchestrator of the death of William Chaplin”. There was, thus, a lot to pin on him on any view. That the applicant would seek to blame PW was justifiable. That does not necessarily exculpate the applicant. But nor does it necessarily inculpate him. Consistently with that understanding, at least one of the “blow it back” remarks was made to SW suggesting that they both take that approach. Yet the Crown’s case was that SW was only involved as an accessory after the fact. If she might want to blow it back on PW though she was only an accessory so, too, might the applicant. The Crown said below that the applicant saw “a way out by painting [PW] as that monster and claiming that he was forced into whatever he did to William Chaplin by [PW]”. But PW was a monster. Painting him as such was not inculpatory.

17. [105]

    One other point should be noted before addressing the reliability of the admissions. A strong theme of the Crown’s address – to a fault – was to emphasise all the lies that the applicant had told. That he had told so many lies completely undermined his credibility. Yet, except insofar as the lies could be used as evidence of the applicant’s consciousness of guilt, they did nothing to establish his involvement in the murder. The Crown did put to the jury that four identified lies could be used in that way:

    1. (1)

       in telling the police in a phone call early in the investigation that “I just want to know what the hell is going on”, when he knew what was going on;

    2. (2)

       in saying something similar to Detective Wallace in a phone call on 22 August 2019;

    3. (3)

       further lies to the Albury detective to whom he spoke on Sunday 1 September 2019;

    4. (4)

       lies told during the first ERISP that he had not known until recently that the deceased was missing and had been murdered.

18. [106]

    As was correctly identified at the trial, in order for lies to be evidence of consciousness of guilt one of the requirements the jury had to be satisfied of was that the reason for the lie was because he feared that the truth would implicate him in the commission of the offence. Thus the Crown said that the applicant “tells these lies because he knows that if he tells the truth about any of them, it may inculpate him in the murder of William Chaplin”. The problem with this submission is that the lies are equally explicable as manifesting a concern that the truth would implicate the applicant in being an accessory after the fact. These lies do not necessarily implicate him in involvement in the murder.

Reliability of admissions

1. [107]

   Of the various versions of his involvement given by the applicant the most plausible, by some measure, is that he cut the throat of the deceased. He told this to each of his parents, separately, nine days apart. This occurred soon after he learned of the investigation. His admission to his mother occurred in the phone call where he appeared first to learn of the investigation. He had no apparent reason to lie to his parents and it might readily be concluded that he would be prepared to confide in them. When he made these statements he did not appear concerned about the possibility of phone intercepts.

2. [108]

   As indicated above, these admissions would provide a compelling basis for finding the applicant guilty but for one thing: they probably were not true, as the Crown itself accepted below. SW was clear that she did not notice any damage, cut or bruising to his neck, nor blood on his neck. It is true that on her evidence she saw the body about midday when the deceased had perhaps been dead for many hours (she had left the previous afternoon). That delay does not undermine the fact that she said she was positive that she saw no cuts to the throat, and that she was sure that if the deceased’s throat had been cut she would have seen it. Nor can this evidence be explained away by saying we do not know how close she got to the body. She was close enough to say that she saw a small nick above the right eye of the deceased and that his eyes were open and staring up.

3. [109]

   As addressed above, the various other versions put by the applicant are also problematic.

4. [110]

   The Crown submitted both below and on appeal that it was open to the jury to find that the various accounts given by the applicant “taken as a whole, despite the inconsistencies, were ‘powerful evidence of the accused’s direct involvement in the intentional killing of [the deceased]’”. This submission seems to invite the drawing of some generalised inference that taken together the various admissions manifest his participation in the murder. I have some concern about drawing such a generalised inference, which it appears to involve consciousness of guilt reasoning without seeking to meet the standard of such reasoning.

5. [111]

   In any event, the argument still relies on the admissions of the applicant being reliable to the extent of indicating his involvement in the murder by indicating that there was some agreement between PW and the applicant that they would at the least assault the deceased with the applicant present. I have significant doubts about their reliability.

6. [112]

   To begin with, the fact that he would tell such a lurid and inculpatory version to his parents when it was probably not true, on occasions when he had no apparent cause to lie, suggests that what he says is suspect even when against interest. This applicant is extraordinary in this regard.

7. [113]

   Another remarkable example is that he told JW, PW’s first wife, that he had “actually stabbed” PW before. When this was queried, he said “I stabbed him in the stomach and somehow I missed all the main arteries”. There is no evidence that any such assault occurred. This was explicitly contradicted by SW’s evidence that she was not aware of any such stabbing, despite having lived with PW for the whole relevant time (going beyond when the applicant left that house). No reason is apparent why the applicant would tell JW this remarkable fabrication.

8. [114]

   There was evidence that the applicant was prone to story telling. His mother gave evidence that since the time the applicant was very young, he used to make up stories, twist the truth and tell lies. As noted above, in a call with his father on 23 August 2019, his father told him that he did not know what the applicant was saying was the truth, and that “you always been full of shit”, a point he reiterated when the applicant said the next day that he had cut the throat of the deceased. The father in that call, referring to himself and the applicant’s mother, “we don’t know whether to believe you or not sometimes”. As explained above at [71], the applicant’s brother also doubted what he was being told. As regards the admissions about having cut the throat of the deceased, oddly the applicant later denied to his mother that he had said this to the father, even though he had said it to both of them (see above at [70]).

9. [115]

   On a series of other occasions the applicant said things which appear not to be true and where there was no apparent reason for him to have lied:

   1. (1)

      He told his mother her sister was at the bonfire where the body was burnt. There is no evidence of that and it seems most unlikely (see above at [54]).

   2. (2)

      He told his father he had caught the deceased abusing the Ws’ child, which appears most unlikely (see [62]).

   3. (3)

      He told SW that he had a New South Wales gun licence when explaining to her how he thought the police managed to contact his family. Detective Wallace gave evidence that the applicant never held a New South Wales gun licence.

   4. (4)

      He said in the first ERISP that he held a security license. He did not.

   5. (5)

      Immediately after speaking to the police by phone on 1 September 2019 he lied to his wife about the nature of the conversation that he had and told yet a different account to SW (see above at [79]).

   6. (6)

      He indicated to his father in their first recorded phone call that he had “done” this – that is, what he had done to the deceased – to more than one person (see above at [66]). There is no evidence to support this, and it seems unlikely.

10. [116]

    All these needless lies are suggestive of someone who is either or both a compulsive liar or a fantasist.

11. [117]

    The Crown also suggested to the jury that the applicant had likely lied about PW having a 9mm Glock pistol. It is perhaps understandable why the applicant would make this claim to the police. It is somewhat less understandable that he would say it to his father, as he did on 1 September 2019.

12. [118]

    Another theme of the applicant was that a knife – sometimes described as the murder weapon – was disposed of in the dam on the property. The dam was searched and no knife was found. The Crown put to the jury that the claim that he had put it in the dam was a lie.

13. [119]

    PW told SD and the applicant that he was a hitman and he killed people for a living. SD thought that PW was just big-noting himself to impress them. It seems that the applicant may have believed him as he said it to each of his parents and to JW. He told the police the same, and that PW had been in the Army, and that PW had killed 56 people. PW had not been in the army. The Crown said this to the jury:

14. [120]

    There seems a real possibility that the applicant did believe that PW was some kind of killer for hire, having said this to his parents. That he may have believed this when SD did not, and the Crown ridiculed the claim, suggests that the applicant may have been credulous. That characteristic would be consistent with his tendency to fabulise.

15. [121]

    In this context, the admissions made by the applicant are not sufficiently reliable in my view to prove beyond reasonable doubt that there was some agreement between PW and the applicant that they would at the least assault the deceased with the applicant present. The clearest and most inculpatory admissions, about having cut the throat of the deceased, are probably not true. That makes this case extraordinary. So, too, does the clear propensity of the applicant to tell lies and fantasies with no apparent reason to do so. In my view one cannot draw out some reliable admission to involvement from all or any of the various versions of events described by the applicant. Clearly there is a real possibility that the applicant was involved in the murder. But that does not suffice.

16. [122]

    The Crown submitted to this Court that if the applicant’s arguments were accepted it would “tend to suggest that an admitted killer might throw doubt on their own liability simply by making an increasing number of varied and inconsistent confessions as to the manner of the killing, so as to escape liability for the crime that had been committed”. That submission fails to grapple with the particular facts of this case. The conclusion I have reached does not depend upon the fact that the applicant told so many different, improbable versions of his involvement in the two police interviews. Rather, fundamentally the Crown’s case was founded on admissions. It was for the Crown to establish beyond reasonable doubt that the admissions made were sufficiently reliable to establish guilt beyond reasonable doubt. In my view they are not.

Conclusion

1. [123]

   None of the witness evidence points in any material way to a conclusion that the applicant was a party to the murder, as opposed to having been an accessory after the fact. The case against the applicant is founded on admissions, particularly those he made in intercepted phone calls. Those admissions are of suspect reliability.

2. [124]

   Having reviewed all of the evidence given at trial I have a doubt that the applicant is guilty of murder as charged. The reasons given above illustrate that that doubt is a reasonable one.

3. [125]

   The question, then, is whether my doubt can be explained away by reference to the natural advantages of the jury. The High Court said the following in Dansie at [17]:

4. [126]

   Although that passage is directed to a trial judge in a judge-alone trial, the points made are equally applicable to a jury. The passage resonates in this case. The case here was circumstantial and much of the evidence was not contested.

5. [127]

   None of my reasoning turns on doubting witness testimony in a manner inconsistent with the Crown case. The jury had no relevant advantage, thus, in that respect.

6. [128]

   The jury listened to the telephone intercepts and watched the two police interviews. I have not done so. However, I do not consider that any part of my reasoning depends in any material way on what impression would have been conveyed by what the jury heard and saw in that regard. Consistently with the Crown case, I regard the versions of events given by the applicant in the ERISPs as replete with falsehoods and lies. I do not see how watching the interviews would be likely to alter that conclusion.

7. [129]

   As regards the phone intercepts, the Crown made the following submission to this Court:

8. [130]

   Yet there is no dispute that much of what he said on those calls was probably not true including, critically, his core admissions to his parents of having cut the throat of the deceased. The Crown did not suggest to the jury that that claim should be regarded as bragging and it would be perverse to regard it as such. As to the point about the mother suggesting the applicant was being dramatic, to the extent that has any relevance to my conclusion it relates to the tendency of the applicant to tell stories and lies. I have set out a series of examples of that above. My examples are consistent with how the Crown put the case at trial. And the mother’s evidence in cross-examination that the applicant had always been prone to making up stories, twisting the truth and telling lies was not challenged in re-examination. I do not consider that listening to the intercepts gave the jury any significant advantage in assessing their significance to the case.

9. [131]

   In sum, the admissions made by the applicant – on which the Crown case depends – are not reliable enough to found a solid conclusion that he was involved in the murder in the manner alleged. My view is not capable of being explained away by the natural advantages of the jury. I do not think it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. There is a significant possibility that the applicant is innocent of the offence charged. Given that conclusion, he is entitled to be acquitted of the murder charge.

Orders

1. [132]

   The orders of the Court should be as follows:

   1. (1)

      Grant leave to appeal and appeal upheld.

   2. (2)

      Quash the appellant’s conviction and a judgment of acquittal be entered in its place.

2. [133]

   FAGAN J: The applicant’s appeal ground, that the jury’s verdict against him is “unreasonable, or cannot be supported, having regard to the evidence”, is advanced upon the basis that the Crown case critically depended upon admissions made by the applicant in intercepted phone conversations with family members and associates and in recorded interviews with police. The applicant contends that those admissions were internally inconsistent and contrary to other evidence, to such an extent that the jury could not, on the basis of the admissions, reasonably have found the charge of murder proved to the criminal standard.

The basis of criminal liability alleged against the applicant

1. [134]

   Assessment of this ground must commence with consideration of how the Crown formulated its case and what the jury had to be satisfied of in order to return their verdict. In opening, the prosecutor put the Crown case in the following terms:

2. [135]

   Thus, the basis of criminal liability was said to be a joint criminal enterprise of PW and the applicant to kill the deceased, in the execution of which the accused participated so that the lethal acts, whatever they may have been and whether perpetrated by PW or by the applicant, were attributable to the applicant. In summing up the case was left to the jury in those terms and on the alternative bases of extended joint criminal enterprise and aiding and abetting at the scene of the crime as a principal in the second degree. Manslaughter was left on the basis of either joint criminal enterprise or extended joint criminal enterprise to commit an unlawful and dangerous act.

What the jury could draw from the applicant’s admissions

1. [136]

   The Crown did not adduce evidence from which the jury could find beyond reasonable doubt that any particular words were spoken between PW and the applicant to constitute an agreement that William Chaplin be killed. For a verdict of guilty to be returned it was not necessary that the jury should have been satisfied beyond reasonable doubt that particular words were spoken. Nor did they have to be satisfied to the criminal standard as to any particular acts of the applicant that would have implicitly signified to PW his agreement in the enterprise of murder, or any particular acts that constituted his participation in carrying out the enterprise. It was sufficient if the jury found that the elements of joint enterprise liability for the murder were proved at a general level; that is, that the applicant and PW reached an agreement or understanding, by some means spoken or unspoken, that together they would kill William Chaplin and that while their agreement or understanding remained on foot they carried out between them, pursuant to and in accordance with the agreement, such acts as were necessary to kill him. The jury did not have to be satisfied beyond reasonable doubt of the means by which death was caused or who, of the applicant and PW, performed the causative acts. It was open to the jury to find that those elements of liability, expressed in their general terms, had been proved beyond reasonable doubt by the admissions of the applicant, understood by the jury at their general or fundamental level of meaning.

2. [137]

   To illustrate the point, with respect to the element of the applicant’s participation in executing the joint enterprise, it was not necessary that the jury should find beyond reasonable doubt that the applicant had cut the deceased’s throat, on the basis that they would accept as reliable his admissions to that effect to his mother and father. It was not necessary that they should be satisfied beyond reasonable doubt, alternatively or additionally, that the applicant applied a length of fishing line around the deceased’s neck, as he told the police he may have done; or that he held the deceased from behind while PW stabbed him in the chest, as he also told the police. It was open to the jury to be satisfied to the criminal standard that the applicant provided material assistance to PW in furtherance of a joint enterprise of killing William Chaplin if they found that the applicant had reliably admitted, in general terms, that he took part with PW in the commission of the murder, albeit that they must have found his varying claims as to precisely what he did inconsistent with and contradictory of each other and therefore unreliable as to specifics.

3. [138]

   The applicant argued in this Court that his admissions during the intercepted phone conversations and, more particularly, his admissions during the police interviews, contained so many inconsistencies and contradictions with respect to particularisation of his acts and the acts of PW that it was not open to the jury to have relied upon those admissions as proof beyond reasonable doubt of anything. However, there was an essential consistent vein of admissions against interest in a number of the applicant’s statements on the phone and in his second police interview to the effect that he did assist PW in some manner to kill William Chaplin pursuant to an agreement between them that they would do so in concert. The question is whether it was reasonably open to the jury to have drawn that vein of admissions from the applicant’s phone calls and from his second police interview and to rely upon it as a fundamental acknowledgement that proved the Crown case against him, notwithstanding that the applicant also asserted particulars of his involvement in terms that were so variable and mutually inconsistent that they could not be relied upon. In my view it was reasonably open to the jury to find the applicant guilty.

4. [139]

   It is necessary to consider the telephone intercept admissions in detail and then the applicant’s admissions during his police interviews. It was open to the jury to evaluate those two bodies of evidence, respectively, according to their differing circumstances and qualities. The admissions on the phone of having participated with PW in the murder were repeated in multiple conversations, over three weeks, with the applicant’s mother, father and brother. His conversations with SW during the same period included implicit admissions of participation. There were passages in the phone conversations that the jury could reasonably have construed as the applicant formulating falsehoods that he would propound to police in order to deny or diminish his responsibility for William Chaplin’s death.

5. [140]

   It was open to the jury to find that under the subsequent police questioning the applicant’s plan to mislead the detectives unravelled almost immediately. The jury could reasonably have taken the view that in the police interviews the progressive changes in the applicant’s account of his knowledge or lack of knowledge of William Chaplin’s death did not give rise to any doubt that he had participated in the joint enterprise but merely amounted to inept casting about for a story that would deny or minimise his own part. Before turning to the detail of the phone intercepts and police interviews it is useful to note, first, the issues identified to the jury by defence counsel and, secondly, some of the other evidence in the trial.

Issues presented by defence counsel to the jury

1. [141]

   Towards the end of the Crown opening the prosecutor said he anticipated that the jury may be told that the applicant “was forced by [PW] to participate in the murder of William Chaplin”. When defence counsel opened, to identify what issues would arise in the trial, he commenced by responding to the Crown in the following terms:

2. [142]

   Defence counsel’s brief opening also included the following:

3. [143]

   Some parts of the above extracts from the defence opening appear to have been delivered on the assumption that the applicant would be called. However, he was not called. In final address defence counsel said this:

4. [144]

   The extent to which defence counsel intended partly to retract his opening is not clear. He repeated some of the later parts of it during his final address. Counsel made the following general statement about any positive conclusions that he may have suggested in opening, that might depend upon the applicant’s statements in the intercepted phone calls and in the police interviews:

5. [145]

   Defence counsel addressed the jury in closing on the basis that the jury would find that the applicant had been present when William Chaplin was killed. First, counsel submitted that lies told by his client did not indicate a consciousness of guilt with respect to the crime of murder. The following submission was made:

6. [146]

   More clearly, counsel later referred to evidence that while the applicant resided with PW and his wife, SW (to whom I will refer collectively as “the Ws”) he had witnessed PW beating SW, and on another occasion beating a teenager named SD. He referred to an occasion when PW threatened SD with a knife to his throat. Counsel said this:

7. [147]

   As described in detail below, the applicant accepted throughout the trial that PW had murdered William Chaplin. In defence counsel’s closing address he said this:

8. [148]

   The applicant thus accepted at trial and before this Court that it was open to the jury to find beyond reasonable doubt that the applicant was present in the round yard when, by means not clearly established, PW killed William Chaplin. From there it was but a short further step for the jury to find, again beyond reasonable doubt, that there was a common theme in the applicant’s admissions, on the phone and in the second police interview in general terms that he had been present in the round yard ready and willing to assist and that he had played some part, not satisfactorily specified in the admissions, in furtherance of the object of killing William Chaplin. It was open to the jury to infer from the fact of his admitted presence, willingness and unspecified assistance that the applicant acted in accordance with an understanding reached with PW, either shortly before or at the scene, that between them they should bring about William Chaplin’s death.

Background to the homicide

1. [149]

   Background to the killing of William Chaplin was provided through the evidence of JW, SW, Ms W (SW’s mother) and Mrs LT (the applicant’s mother). In the following paragraphs I refer to some of the facts of which those witnesses gave evidence, additional to the non-contentious facts that have been summarised by Kirk JA.

2. [150]

   From about the mid-1990s until 2001 PW was living with his then wife, JW, in Wodonga. In early 2001 they separated and PW moved to live as a boarder with Ms W, her husband and their children, including SW, in the Albury-Wodonga area. PW was then aged 32. After about a month Ms W found PW’s presence intrusive and asked him to leave. Eventually he did move away, in response to prolonged pressure from Ms W. He told her that he was going to marry SW when she was 18. She was then 14. SW, who was infatuated with PW, moved out with him. From then on they lived in an intimate relationship.

3. [151]

   Some time later, before 2005, PW and SW moved to 131 Main Street, Gerogery, a town situated 30 km north of Albury on the Olympic Highway. Number 131 was at the edge of the town, the last of a line of freestanding houses on the south-east side of Main Street. There was a shed in the back yard of the property and over the back fence there was a line of trees with a cleared paddock beyond. The paddock was of 23 acres. It was used by PW and SW for keeping horses, at times up to 10 of them. While living at this property in 2005 SW turned 18 and she then married PW.

4. [152]

   Mrs LT and the applicant moved to Gerogery in 2005 when the applicant was about 12 years old. They occupied a house on Main Street about 400 m from No 131. The applicant’s parents were separated and his father, ST, lived at Culcairn, a larger town situated 19 km further north on the Olympic Highway. The applicant attended high scl at Culcairn. Mrs LT’s sister, “Aunt B”, also lived in Gerogery. She was married to a man named BL. They lived with their son, Jack, in the house next door to the Ws.

5. [153]

   Not long after moving to Gerogery the applicant and Mrs LT became acquainted with PW and SW. The applicant commenced to spend out-of-school hours at the Ws’ house, helping to look after their horses. He was there nearly every afternoon and evening and sometimes stayed overnight. PW was about 23 years older than the applicant. He was approximately 35 years old when the two first met in 2005. The applicant’s regular attendance at the Ws’ house continued until the applicant and his mother moved to Townsville in 2007.

6. [154]

   SW gave birth to a daughter, CW, in April 2008. Following this, PW became violently abusive towards her. He regularly threatened to kill SW. She was afraid of him and sometimes moved out of the home to stay with his mother and stepfather in Wodonga for a few days at a time.

7. [155]

   In late 2009 or early 2010 the applicant, then aged 16, left his mother in Townsville and moved back to New South Wales to reside with his father at Culcairn. The applicant resumed visiting the Ws’ home. In about late 2009 he commenced to live at No 131, occupying one of the three bedrooms in the house. To SW’s observation, PW and the applicant were very good friends, spending a lot of time in each other’s company and smoking marijuana together. SW said that PW engaged in physical violence against her in the presence of the applicant on four or five occasions while the applicant was living with them.

8. [156]

   SW was friendly with Christine Chaplin. Christine brought her brother, William Chaplin, to the Ws’ home and introduced him. He became friendly with PW and subsequently visited from time to time. About one month after the applicant commenced to occupy one of the bedrooms in the house, William Chaplin also moved in and slept on a couch in the lounge room. William Chaplin was 25 years old. SW described the relationship between PW and William Chaplin as “very good friends”.

9. [157]

   In the paddock behind the Ws’ house there were a large number of discarded motor tyres arranged in a circle and stacked six high on top of each other to form a fence, enclosing what was known as “the round yard”. This yard was about 55 m from the back fence of the property. It was about 6 m in diameter, with a break in the circle of tyres to provide an entrance. It was used for exercising and training horses. There was no dispute at trial that during one evening between 30 March 2010 and 31 May 2010 PW killed William Chaplin in the round yard and that the next day he, with the assistance of the applicant, placed the body in a shallow grave that was dug beneath a segment of the circle of tyres. There was no dispute that PW, with the assistance of SW and the applicant, placed wood fuel on top of the body and that PW started a fire to consume William Chaplin’s remains. The circumstances of the killing were in issue and the evidence of that will be considered further below.

10. [158]

    The applicant commenced a relationship with Ms MP in 2010 while he was living in the Culcairn/Gerogery area. The two of them moved to Townsville after William Chaplin had been killed. LT said that the move took place in mid to late 2010. The applicant and Ms MP remained in the Townsville area for a least 18 months to LT’s recollection. By 2017 they had moved to Cobram, about 160 km west of Albury, down the Murray River on the Victorian side. SW had invited the applicant to go there to take up a job. SW had separated from PW by 2017. The applicant and MP returned from Cobram to Townsville in early 2019. They were still living in Townsville in August 2019 when Albury detectives commenced to make enquiries amongst the applicant’s family and associates regarding the disappearance of William Chaplin.

11. [159]

    Kirk JA has summarised the evidence of Sacha Priest. Mr Priest’s report that PW had admitted having committed a murder sparked the investigation that led police to SW and then to the applicant

SW’s evidence

1. [160]

   SW was first questioned by the detectives on 30 July 2019. She made a statement that day and she subsequently took part in a very long recorded interview on 14 August 2019 and a shorter one on 18 September 2019. Her evidence at trial about the circumstances of William Chaplin’s death was substantially in accordance with what she had told police. She said that in the early months of 2010 the applicant and William Chaplin, whom she knew as Too Tall, were both living at the Gerogery house with herself and PW and their daughter, CW, who turned two years old in April that year. She said that during the afternoon of a day following CW’s birthday she had an argument with PW and left the home to stay with his mother in Wodonga for the night. She left late in the afternoon or during the early evening.

2. [161]

   Next morning at 11:30 am SW phoned PW to ask if she could return. He said that she should give him an hour to clean up. She returned at 12:30 pm. When she arrived at the house PW and the applicant were there. She said the demeanour of each of them was normal and that “there was joking about it’s a lovely day for sunbaking and that sort of thing and laying under the sun”. In cross-examination she clarified that it was PW who spoke in those terms. She confirmed an answer that she had given to police in her interview of 14 August 2019 to this effect:

3. [162]

   As summarised by Kirk JA, SW said that on that afternoon she was taken by PW out to the round yard, with the applicant also present, and that she was there shown the dead body of William Chaplin. She said that after 7:00 pm that evening PW directed her and the applicant to go back out to the paddock. The body had, in the meantime, been removed to a location about 20 m beyond the round yard to a shallow grave under some trees, which was covered with a piece of sheet metal. PW and/or the applicant removed the cover and they carried William Chaplin’s body back to the round yard. SW observed that a shallow trench had been dug in the yard since she had been there during the afternoon. PW and the applicant placed the body in this trench and placed wood on top of it, including some old railway sleepers. SW assisted to place more wood. PW poured on petrol and ignited it. The fire burned for two or three days.

4. [163]

   SW never went back to the round yard. She said PW told her not long after these events that he had found William Chaplin sexually interfering with their daughter, CW, and had killed him on that account. The Crown did not advance that as a truthful motive but suggested to the jury it was more likely William Chaplin had caught PW sexually touching the child and that he had been murdered to prevent him telling SW or police. SW said that the applicant had never said anything to her about killing William Chaplin and nor had PW ever said anything about the applicant having been involved.

5. [164]

   SW’s evidence provided context that was relevant to assessing the probative value of the applicant’s admissions in the intercepted phone calls and in his two interviews with police. Her evidence otherwise provided no proof, either circumstantial or direct, that the applicant had joined with PW upon an enterprise to kill William Chaplin or that he had participated in carrying out that enterprise. The Crown case to that effect depended entirely upon the applicant’s admissions and upon such of his false statements as the jury might find were lies that evinced a consciousness of guilt.

Intercepted telephone calls and text messages

1. [165]

   Detective Sergeant Wallace obtained SW’s account of events in the interview he conducted on 14 August 2019. Having arranged for phone calls to and from the applicant’s mobile service to be intercepted, he phoned the applicant’s mother, Mrs LT. He told her that he was investigating the disappearance of William Chaplin, who had not been seen since about 2010 and who used to stay at the home of PW and SW. The detective said that homicide was suspected and that the applicant was implicated. Mrs LT phoned the applicant’s partner, MP, and informed her about the call. Then she phoned the applicant, at 21:29 (AB153). The applicant told his mother that he did not know who Will Chaplin was.

2. [166]

   MP then called the applicant at 21:31 and the following exchange took place (AB156):

3. [167]

   Three minutes later, at 21:34, Mrs LT called the applicant again. She said that she had told the detective that SW was in Cobram, to which the applicant said, “Oh fuckin’ idiot”. The conversation continued as follows (AB159):

4. [168]

   Defence counsel submitted to the jury that SW’s evidence established that William Chaplin’s throat had not been cut. In his closing address the prosecutor said this:

5. [169]

   It was open to the jury to accept as reliable the applicant’s admission to his mother (and later to his father and to police) that he had participated in the attack on William Chaplin with a knife to his throat. From a number of the applicant’s admissions combined with SW’s evidence, it appeared that the attack took place during the evening prior to the afternoon on which SW saw the body in the round yard. By the time of her viewing the body, it had lain in the open air on bare ground for between 12 and 18 hours. SW expressed confidence that if there was a neck wound she would have seen it but it was open to the jury to conclude that that was not necessarily so. SW did not claim to have inspected the corpse closely. Notwithstanding the applicant’s description of his act, any wound he inflicted may not have been fatal and may not have, literally, cut through the deceased’s throat. PW took part in the attack and it may have been his contribution that caused death. Any knife damage done by the applicant may not have been significant or conspicuous. The jury were not bound to regard SW’s evidence as a definitive contradiction of the applicant’s admission and they may have found the admission more compelling than SW’s observations. Even if the jury were left with a doubt about the reliability the applicant’s specific claimed contribution to the attack, that he “cut his throat”, it was open to them to rely upon what he told his mother in this conversation as an admission of active participation in the killing.

6. [170]

   The next day, 16 August 2019, at 16:52 the applicant received a call from SW. This was a pretext call that DS Wallace had asked SW to make. She was cooperating with police. Extracts of the conversation are as follows (AB176):

7. [171]

   In a conversation with his mother about four hours later, at 20:58 on 16 August 2018, the applicant purported to be speculating whether it was really the police who were inquiring after him, or someone else, given that the detectives had not contacted him directly. The following are extracts from this phone call (AB199 at 209-211):

8. [172]

   A number of passages in the applicant’s phone conversations with his parents had features similar to the above, namely, the applicant admitting or implying his participation in the murder but indicating the line of ignorance or exculpation that he would take with police if asked. His conversations with SW included similar features, as illustrated in the conversation of 18 August 2019 to which I will now turn. It was open to the jury to find that this pattern of the applicant’s conversations was inconsistent with him merely fantasising about his involvement. A person who had not been involved in the murder but imagined his involvement and wanted others to believe it would not be inventing and foreshadowing exculpatory stories.

9. [173]

   On 18 August 2019, in a call that commenced at 11:24, the applicant told SW that he would be saying “the last time I seen him was, um, he was leaving for Western Australia or something. … A couple of weeks before I left. Yeah, so I don’t know, I don’t know where he is.” The conversation continued as follows (AB242 at 247-248):

10. [174]

    SW had been requested by DS Wallace to ask the applicant how the murder was actually committed. Accordingly, she initiated the following exchange (AB248-250):

11. [175]

    It was open to the jury to construe another part of this conversation as an attempt by the applicant to indicate to SW that, if asked by police, he would pretend not to have been present at the killing of William Chaplin (AB252):

12. [176]

    Next, the applicant spoke to SW about his intention to cast blame upon PW. He expressed a belief that no evidence could be found and a lack of concern regarding the possibility of retribution from PW after his release from prison (AB260-263):

13. [177]

    On 22 August 2018 BL, the applicant’s uncle who lived in Gerogery next door to No 131 Main Street, phoned the applicant at 15:55 and told him that the police had come to his place making enquiries about the applicant, being “a young bloke” who “used to visit the [Ws’] house” (AB328). BL said he understood from police that Too Tall had been missing for 10 years and the last time anyone knew his whereabouts he was at the Ws’ house. The applicant told BL, “He went to Western Australia or some shit” (AB331). He said that PW had told him of William Chaplin’s departure for the West. BL advised the applicant to ring the police and the applicant said he would do so.

14. [178]

    The applicant phoned DS Wallace a few minutes later (AB336). He referred to the police having made contact with his family members and said “I don’t know what’s going on”. The detective explained that he was investigating a missing person named William Chaplin, who had not been seen since about 2010, and that the applicant was “a person of interest”. He was warned that he was not obliged to say anything. The applicant said that he did not know where he was in 2010, that he was “going between Queensland and New South Wales”. He said that the name William Chaplin “does ring a bell, but I can’t remember where I knew him from”; that he knew “a shit load of Williams, but I can’t remember last names”. When the detective supplied the nickname Too Tall the applicant said he knew the person but did not know his real name, that he “didn’t really meet him for very long”, that he was very young at the time, 13 or 14, and that it would have been in Albury. The applicant acknowledged that he knew PW and that he had lived with him for about six months prior to moving to Queensland with his partner, which the applicant said was “going on ten years, eleven years now”. The officer asked for the phone number of the applicant’s father. The applicant said he did not have it.

15. [179]

    Less than an hour later on 22 August 2019 the applicant’s father, Mr ST, called him (AB357). In response to the applicant’s enquiry, ST said he had not been contacted by the police. The conversation included the following (AB360-362):

16. [180]

    It was open to the jury to conclude that in this part of the conversation the applicant’s father used the expression “go missing” in the sense of a person being liquidated or killed and that the applicant understood what was said in that sense. It was open to the jury to understand that this was not merely a conversation about disposal of a body, in relation to which the question of what the person “deserved” would make no sense.

17. [181]

    As this phone conversation progressed it became apparent that Mr ST thought that the person who was referred to as having gone missing was PW. When the applicant said the missing person was “someone else” the conversation continued as follows (AB365-362):

18. [182]

    The jury were entitled to understand the applicant’s admission of having seen “the lot” with “my own eyes” as an acknowledgement that he was present when the deceased person went “missing”, adopting his father’s euphemism for a killing. The last sentence spoken by the applicant in the above extract could reasonably have been understood by the jury as the applicant signalling to his father that he proposed to deny all knowledge of the matter.

19. [183]

    The applicant then complained to his father that BL had destroyed his story by telling police that he “was down there at the time” but the applicant said “I’ll come up with a new one” (AB366). The following exchange then took place (AB367-370):

20. [184]

    It was open to the jury to understand that the applicant’s father again used the expression “make a person disappear” as a euphemism for homicide and that the applicant would have so understood that usage. The jury could have been satisfied that this was not merely a discussion about disposing of a body, especially when the above extract is taken in context of the whole conversation that included, at an earlier point, the father’s enquiry “Did this cunt deserve to go missing?” Without any specification by the applicant of what particular acts he carried out, his admission that he “and someone else made this person disappear” could be regarded by the jury as a clear and reliable acknowledgement that he participated with a co-offender in carrying out a joint enterprise to kill the person whose disappearance was the subject of the police inquiry.

21. [185]

    Towards the end of the conversation the applicant spoke of fleeing “if it goes south” and referred to contingency arrangements that he claimed to be making for this. He also is said the following (AB381 and 385):

22. [186]

    About three quarters of an hour after concluding this call with his father, the applicant spoke with his mother (ABS1-6). She said she had missed a call from his father and the applicant responded as follows:

23. [187]

    The jury would have been entitled to understand the applicant’s statement that his father “put the pieces together” as a reference to father’s question of him, “Right, you and someone else made this person disappear?” The above extract of the conversation with the applicant’s mother could be understood by the jury as an acknowledgement that he had already told her that he had taken part in killing the missing person and that his father had come to that realisation from the applicant’s oblique statements to him.

24. [188]

    On 23 August 2019 at 18:51 the applicant phoned his father and the conversation included the following (ABS13-18):

25. [189]

    Nearly 24 hours later, at 18:10 on 24 August 2019, the applicant’s father called him back and their conversation included the following (ABS48 at 53-54):

26. [190]

    This was followed by a passage in which the applicant said “I have no idea what they’re after” and “I don’t know what they’re looking for and I don’t know anything”, apparently indicating the line that he would take in response to police enquiries. The conversation continued:

27. [191]

    It was open to the jury to find that in both of these conversations with his father, on 23 and 24 August 2019, the applicant was reticent to speak about the specifics of his participation in the killing of William Chaplin. However, he acknowledged that he was involved in “the whole thing” and that he did “take him out”. The jury were not bound to feel a reasonable doubt about the reliability of that admission even if they thought his claim to have performed a specific act – “I cut his throat” – was an exaggeration or a mistaken belief about how effective his use of a knife may have been, or otherwise doubtful. The evaluation of that particular of the claim was subject to the considerations referred to at [169] above. It was open to the jury to conclude that the applicant’s reluctance to answer his father’s requests for further detail indicated that his admissions were genuine. The jury could have concluded that the reason he was trying to limit the amount of specific information circulating amongst his family members was that their knowledge could bring him undone in the police investigation. A number of the applicant’s phone conversations showed that he was counting on a belief that nothing could be proved against him because William Chaplin’s remains had been thoroughly destroyed.

28. [192]

    The applicant’s father encouraged him to “come clean” with the police and to attribute blame to PW (ABS59-68):

29. [193]

    The above extract was followed by the applicant saying that he hadn’t admitted to anything and telling his father to “shut up”. It was open to the jury to interpret that further passage as an attempt by the applicant to signal to his father that he should pretend the applicant had made no admissions to him.

30. [194]

    The jury could reasonably have understood the applicant’s statement, “That’s what we’re doing, dad” as a reference to his discussion with SW on 18 August 2019 to the effect that they would cooperate in casting blame upon PW for William Chaplin’s death: see [176] above. If the applicant had not been involved in the killing of William Chapman all he needed to do was to tell the police that truth. There would be no reason why he could not “come clean all the way” with his parents. The jury could reasonably have regarded these aspects of the conversation as reliable acknowledgements that the applicant had participated in the killing.

31. [195]

    Towards the end of the conversation the applicant’s father asked him why he didn’t say something at the time, “when all this went down”. He asked whether the applicant was scared. The applicant said, “Oh, I can’t explain right now”.

32. [196]

    In three phone calls on the morning of 26 August 2019 the applicant’s mother urged him to speak to police and to tell the truth (ABS80, 83 and 93). BL, who still lived in Gerogery, was aware that police had by this time commenced an examination of the paddock behind 131 Main Street and he so informed the applicant’s father, through whom that information was passed on to the applicant’s mother and himself.

33. [197]

    Commencing at 15:15 on 26 August 2019 the applicant took a phone call from his brother HT who had evidently heard from his mother and father that the applicant had told them he had been involved in the death of William Chaplin. HT said that he and his mother thought the applicant was lying. The applicant responded as follows (ABS102):

34. [198]

    The conversation ended with the applicant asserting that his partner, MP would verify that what he had been telling his parents was the truth, “’cause she was there … she knows exactly what happened”. From the intercepted conversations in which MP was a speaker, it does not appear that she did know that William Chaplin had been murdered or that the applicant had been involved in his death, other than from the applicant himself.

35. [199]

    It was open to the jury to dismiss the brother’s suspicion that the applicant was merely “big noting”, that is, attracting attention to himself and creating drama by falsely claiming to have participated in the homicide. There was evidence that the applicant’s parents and brother had had experience of him lying in the past. However, there was no evidence that during the preceding nine years the applicant had claimed to anyone that he knew of or was responsible for William Chaplin’s death. If he wanted to attract attention to himself with a false claim of involvement he could have done so before police enquiries reached his mother in mid-August 2019. Those considerations and the applicant’s expressions of concern about what his family would think of him if they knew everything may have been regarded by the jury as negating the possibility that he was merely a fantasist who falsely told his family that he was concerned in the murder, for show.

36. [200]

    The jury could have found it significant that throughout the intercepted phone conversations the applicant displayed anxiety about the police enquiries. He was explicit about that anxiety on occasions (see [211] and [213] below) and he exhibited it by ringing the Albury detectives. The applicant’s conversations with SW about “blowing it back on” PW and with his father about “throwing it onto” PW were the antithesis of him claiming involvement for the sake of drama or notoriety. In late August 2019, in conversations summarised below, the applicant discussed with his father a claim that he would make to police of having acted under duress. It was open to the jury to find that he was working up a basis of exculpation that he could feed to the police when they eventually spoke to him. The jury would have been entitled to conclude that the whole course of the applicant’s statements over the three weeks of the intercepted phone conversations was not consistent with a person falsely claiming responsibility for a crime that he did not commit.

37. [201]

    In a conversation with his mother on 27 August 2019, commencing at 17:48 (ABS118) the applicant discussed his recent conversations with his father. The following are relevant extracts:

38. [202]

    In this conversation the applicant also referred to his recent phone call with his brother, as follows (ABS130):

39. [203]

    In a phone call to his mother at 19:13 on 31 August 2019 the applicant said he was contemplating making an anonymous call to Crime Stoppers. He said that he was “fully prepared to tell them what happened and what he [PW] did”. He said that he was “scared of what [PW] will do. He, he used to scare the shit out of me mum”. In their next call at 19:17 Mrs LT urged the applicant to call DS Wallace and tell him that he had been made to do things under physical threat from PW. That part of the conversation was as follows (ABS161-162):

40. [204]

    Ten minutes later the applicant called SW (ABS163). He outlined the strategy he proposed to adopt when speaking to police, as follows (ABS168):

41. [205]

    The applicant perceived this strategy as having the effect that he and SW would support each other in exculpating themselves with respect to William Chaplin’s death and, at the same time, would inculpate PW. He said:

42. [206]

    The first passage of speech by the applicant in the extract of his call to SW quoted above appears to have been the commencement of his inconsistent plan for his own defence, whereby he would deny any knowledge of what happened to William Chaplin and at the same time claim that he acted under duress from PW.

43. [207]

    The applicant had a further conversation with his brother at 8:40 on Sunday, 1 September 2019 in which the brother no longer spoke in disbelief but made suggestions as to how the applicant might cast his defence (ABS173). The applicant said that he was “going to give a statement clearing my name” and that SW would do the same. The conversation continued:

44. [208]

    The applicant said that the detectives had rung him and were about to come and see him.

45. [209]

    At the end of this conversation the applicant told his brother that he would ring their father and tell him what he planned to say to police. He proceeded to do that in a 20 minute call commencing at 8:47 (ABS178). The applicant told his father that police had not found anything at the property yet but that they knew exactly where to look. He said that he was the main suspect. His father suggested that he was “a scapegoat” for PW and the applicant said that he thought PW must have implicated him. The applicant propounded the two inconsistent explanations of his involvement in the matter that he had foreshadowed to SW the preceding day: that, on the one hand, he was under duress from PW to kill William Chaplin and, on the other hand, that he did not know whether William Chaplin had died or just left town. The conversation proceeded as follows, with neither the applicant nor his father appearing to appreciate the inconsistency:

46. [210]

    The applicant told his father that SW was going to say the same thing, “to come clean and tell them exactly what [PW] was like. That we didn’t know anything … about it”. He reiterated to his father the second basis for exculpation, namely, that he did not know whether William Chaplin had died or just moved out of the Ws’ home (ABS186):

47. [211]

    Next the applicant reverted to his duress explanation (ABS189-190):

48. [212]

    It was open to the jury to regard the applicant’s talk of a handgun being produced by PW and of a “kill or be killed” ultimatum as a manifestation of the applicant going along with his father’s encouragement to propound a defence of duress, which the father referred to as self-defence. The jury could reasonably have regarded it as significant that the applicant would have had no occasion even to speak of duress, in particular in the form of a direction to “kill or be killed”, unless he had taken part in the killing of William Chaplin and was thinking through a basis for excusing his actions. Having told his father on 22 August 2019 that he “and someone else made this person disappear” the only reason for talking about a threat to kill or be killed was to explain and justify that he had taken the first of those options.

49. [213]

    The duress line continued towards the end of this father-son conversation, as follows (ABS206-207):

50. [214]

    Within a few minutes after this call ended the applicant phoned his mother and told her that he was going to surrender to police (ABS209). She asked what his father had said and the applicant replied:

51. [215]

    At 9:54 on Sunday, 1 September 2019 the applicant phoned the Albury detectives to speak with DS Wallace. He told the officer who answered the phone that he had lived with “the guy that you’re investigating”, PW, who was “one person I’m scared of in this world and I’m about to rat on him”. DS Wallace was not available but Senior Constable Zeromski phoned back at 10:32 (ABS238). The applicant told SC Zeromski that police were “after the right person”, namely PW, in relation to their missing person enquiry. He said that he had moved in with PW “not knowing what [PW] really was”. While living there, PW would wake him up in the middle of the night with a knife to his throat or a gun to his head. When it was a gun, “He’d pull the trigger, it would normally be empty”. The applicant said this:

52. [216]

    The applicant told SC Zeromski that, upon seeing a photograph of William Chaplin on Facebook that morning, he was “afraid that it had actually happened”. The exchange continued as follows:

53. [217]

    The applicant told the officer that when he left Ws’ house and Gerogery, William Chaplin was “good and he was happy”. He claimed that he had added William Chaplin on Facebook when he first met him but that he had not heard from him since leaving Gerogery. He said he “couldn’t even think of a reason why anyone would want to hurt Will”. The applicant said he was pretty sure William Chaplin had “said he wanted to go to like Western Australia or something, Queensland or something”.

54. [218]

    On 2 September 2019 DS Wallace phoned the applicant and said he would make arrangements to come to Townsville and speak with him and his family later in the week (ABS293). On 3 September the applicant’s father called him at 14:49 (ABS298). The applicant said he had an appointment the next day, apparently with a lawyer. His father said that he would have to tell the truth and then appeared to coach the applicant regarding a line of defence that he might adopt, along the following lines:

55. [219]

    Throughout these phone conversations between the applicant and his family members he said nothing to suggest that his involvement was limited to burying and burning the body, or that that was the task he had been obliged to carry out under duress. He spoke to his father about having to kill or be killed, not about having to help conceal the crime after the event or be killed. In the subsequent police interviews the applicant accepted that in the phone conversations with family members he had admitted to having killed William Chaplin. As will be seen, he sought to explain those admissions as falsehoods that he had been instructed to perpetrate, by PW, under threat.

56. [220]

    In making observations upon some of the passages from the phone conversations that I have extracted above, I have identified instances where obliquely expressed statements by the applicant to his father and answers to his father’s questions were open to construction by the jury as admissions of participation in the murder. That understanding was confirmed to the jury by the fact that, when questioned by police, the applicant did not dispute that he had admitted his participation to his mother and father. On the contrary, he positively asserted in the police interviews that he had sought to convince them that he was responsible for the murder. If the jury rejected his improbable claim that he was falsely taking the blame for PW – as well they might, for reasons given below – then the intercepted phone calls constituted a significant body of compelling, reiterated confessions.

First police interview, 5 September 2019

1. [221]

   The applicant’s first interview with DS Wallace and Detective Senior Constable Glynn took place on 5 September 2019, between 9:55 and 13:36, a period of over 3½ hours. That included playing back parts of the phone conversations. At the outset the applicant attempted to deploy the first half of the strategy he had discussed with his father, claiming not to have known that William Chaplin had been killed. DS Wallace immediately informed him that his phone calls had been intercepted under warrant and that his claimed ignorance of William Chaplin’s death was refuted by a conversation between him and his mother.

2. [222]

   Before that call could be played back, the applicant proceeded with his double-faceted attempt at exculpation, in the following answers (extracted in part).

3. [223]

   The applicant’s “three choices” formulation, in which he claimed not to know whether PW ever went beyond having a plan to kill William Chaplin and in which he claimed to have taken the first choice – “leave my house right now” – was obviously contradicted by the phone conversations with his parents in which he said that he had taken part in the killing. Answers 82 and 85, quoted above, were also contradicted by the uncontested evidence of SW about the applicant’s assistance with the burial and burning of the body the day after the homicide. It was open to the jury to give full weight to the admissions on the phone and to find these exculpatory claims to police incoherent and no more than a poor execution of his pre-conceived plan to deny involvement.

4. [224]

   The applicant then said to the interviewing police (Q87-94) that the only reason he had claimed to his mother that he knew about the killing, the location of the body and the location of the murder weapon was that PW had subsequently informed him of those matters. That was similarly contradicted by the phone conversations with both parents and by SW’s evidence that the applicant was present at the burial and the burning. At Q95-98 the officers played back the call between the applicant and his mother on 15 August 2019 that has been partly quoted at [167] above. The applicant repeated his explanation that PW had persuaded him falsely to claim responsibility:

5. [225]

   When the playing back of the phone conversation with his mother reached the point at which he told her that he had cut William Chaplin’s throat, the applicant interrupted and said this:

6. [226]

   In response to Q125 the applicant said that he had been directed by PW to tell people that the body was in a shallow grave where it had been cremated and that there is “a large knife in the dam closest to the grain shed”. At Q128-140 the investigators played back the applicant’s conversation with his father on 24 August 2019, of which extracts appear at [189]-[193] above. He persisted with the claim that he was merely trying to convince his father of involvement in the crime in order to comply with threats from PW that if he or SW should fail to do this “we go missing”.

7. [227]

   As seen in the extracts quoted above from the phone intercepts, when the applicant admitted to his parents his participation in the killing he also told them that he would deny to the police any involvement or knowledge. He discussed, particularly with his father and SW, “blowing it back” or “throwing it on” or “pinning it on” PW. In planning how he could pass responsibility from himself to PW, the applicant was clearly not carrying out an instruction that he should take the blame. It was open to the jury to find that this purported explanation in the police interview was a poorly thought out, far-fetched story, made up on the run when the applicant was surprised to learn that his phone calls had been intercepted.

8. [228]

   Throughout the first interview, from A98 to the end, the applicant frequently repeated his explanation about PW’s instruction to take the blame. Towards the end of the questioning police challenged him as to how that explanation could stand with those parts of the phone conversations in which he had sought to develop an alibi. The jury would have been entitled to find the applicant’s answers, as follows, incoherent and discrediting, leaving the evidentiary force of his admissions to his parents undiminished:

9. [229]

   The applicant said, at A111, that he was “led to believe” that William Chaplin had been killed with fishing line. He said that he really had no idea what was done with the body but that he guessed PW “would have burnt the body or chopped it up, he was sick”. The applicant said that when he noticed William Chaplin “wasn’t around”, he had been told by PW that “he'd moved away”. At Q148-151 the applicant contradicted this, saying that PW had given him a full account of William Chaplin’s fate, namely, that PW had “strangled him or cut his throat with fishing line, not a knife” and dragged the body from the round yard over to a small tree where the body was cremated before the ashes were spread around the paddock.

10. [230]

    At Q158-171 the detectives played back to the applicant his phone conversation with his father on 23 August 2019, which has been partly quoted at [188] above. At Q171-194 he maintained that in speaking with his father he was endeavouring to persuade him as to his own responsibility for the homicide, in order to satisfy PW’s demand and thereby “to keep my family safe”.

11. [231]

    In answer to Q220 the applicant said that he had known in advance of PW’s intention to kill William Chaplin:

12. [232]

    At A222 the applicant said that “Too Tall went missing that night. I left the next day”. The applicant then asserted an entirely different instruction from PW, namely, that “if anything ever came back on him, or came up about it”, the applicant was to say that William Chaplin had “moved to Western Australia to visit a friend or relative”. In a later part of his answer to Q222 the applicant reverted to the version that PW instructed him to claim responsibility for William Chaplin’s death, this time with the variation that the applicant was to say “it was me or [SW]” – as follows:

13. [233]

    At Q226-229 the applicant described a bonfire in the vicinity of the round yard, which he claimed to have believed was lit for the purpose of destroying sheep carcasses. He gave these answers:

14. [234]

    At Q469-503 the police officers put to the applicant SW’s account of having been shown William Chaplin’s body in the round yard, under a tarpaulin, and of his body having been moved to a location under some trees then moved back in the evening to the grave where it was burned. The applicant denied all of SW’s account.

15. [235]

    At Q641 DS Wallace said, “if [PW] has forced you to do something and is [sic] with you when you've killed William Chaplin, here's your opportunity to tell us about that. OK?” That was said at 12:51, after three hours of questioning. In the long answers and explanations that followed (A644-691), the applicant gave an account that departed significantly from anything he had previously told his parents on the phone or the police in the interview. Even this account was given in multiple versions with further significant differences from one to the next. His answers at this stage of the interview included following:

16. [236]

    It was open to the jury to reject this as not being a reasonably possible version of events, except to the extent that the applicant admitted he was present in the round yard with PW when William Chaplin was, by some means, killed. The jury could have reasoned that the applicant would not have admitted to his parents that he took part in killing William Chaplin and would not have discussed with his father a defence of duress, under a direction and threat from PW to “kill or be killed”, if what really occurred was that PW, alone, fatally shot the deceased in circumstances where the applicant perceived that the bullet was intended for himself but William Chaplin intervened and saved his life.

17. [237]

    The applicant continued this narrative with a description of what occurred when PW, after killing William Chaplin, returned to the house where the applicant said he had retreated. Also at this point he acknowledged to the police, for the first time in the interview, that he, as well as PW and SW, had known that William Chaplin’s body was destroyed in the fire that was lit the next day:

18. [238]

    It was open to the jury to reject the applicant’s claim that he was threatened by PW on the evening of the murder, at a time when SW was present in the house. The jury may have found it highly improbable that, if PW had been threatening to kill the applicant that evening and if he had remained violently hostile towards the applicant after the latter had witnessed the murder of William Chaplin, PW would then have allowed a wooden door in his own home to stand in his way. The jury were entitled to prefer the evidence of SW that she was not at the house on the night of the murder and that when she returned the next day relations between PW and the applicant appeared normal, as did the demeanour of each.

19. [239]

    At A650 the applicant provided further and inconsistent detail of the circumstances in which he claimed that PW had shot William Chaplin in the round yard. He said the relevant events commenced with PW kicking “the shit out of me” in the house and then lunging with a knife and cutting the applicant’s wrist. He said that William Chaplin and PW then had a fist fight in the lounge room. The narrative continued as follows:

20. [240]

    Again, it was open to the jury to discard this variation as not representing a reasonably possible version of what occurred. The jury could have found it unbelievable that at the round yard William Chaplin would have confronted the applicant with the statement, “I'm here to finish you, you're here to finish me” after both of them had shortly beforehand been in physical conflict with PW in the lounge room. In this respect, the account is irreconcilable with the applicant’s claims at A644 that he and William Chaplin had each been told by PW that he was going to shoot the other. At A644 there was no mention of William Chaplin and the applicant each attempting, mutually, to “finish” the other. Further the jury would have been entitled to reason that the applicant would not have told his parents that he took part in the killing of William Chaplin and would not have described to his father a “kill or be killed” ultimatum from PW if the description of events at A650 was true.

21. [241]

    At A691 and in a number of other answers the applicant asserted that a knife was thrown in the dam, either by PW or by the applicant at PW’s direction, so that if the death of William Chaplin was ever investigated “the knife in the dam would either come back on me or [SW]”. It was open to the jury to conclude that that assertion was never developed or explained in a way that made it coherent or plausible.

22. [242]

    At Q655 and Q672 the applicant said that William Chaplin was shot in the neck. In yet another purported detail, at Q719 and 724, the applicant said that after an altercation between PW and William Chaplin in the house, PW had instructed the applicant to go to the shed in the backyard of the property and cut off about 2 feet or a metre of fishing line that was attached to a fishing rod stored there. The applicant said this:

23. [243]

    In summary, over the course of the first police interview the applicant’s attempts to exculpate himself progressed through stages of retreat, as follows:

    1. (1)

       He commenced by denying knowledge of William Chaplin’s death.

    2. (2)

       The applicant then said that he knew William Chaplin had been killed but only because PW had told him so and had directed him to claim responsibility.

    3. (3)

       The applicant then said that PW had directed him to say that William Chaplin had gone to Western Australia.

    4. (4)

       Still maintaining that he knew of William Chaplin’s death only through PW telling him about it, the applicant said that PW had directed him to claim that either he or SW had committed the murder.

    5. (5)

       The applicant next said that he knew of the murder because he was an eye witness, not merely through PW telling him about it. The applicant said PW had aimed a Glock 9mm pistol in his direction but William Chaplin had hit PW on the head with a rock and then PW shot Mr Chaplin instead.

Second police interview, 6 September 2019

1. [244]

   On the morning after the first interview the applicant was taken before a magistrate and remanded in custody. Later in the watchhouse the applicant told the detectives some further things about what he had said in the first interview. The officers commenced a second interview and asked him to confirm what he had told them that morning, to which he responded as follows:

2. [245]

   At A119, 120, 131 and 156-160 in this interview the applicant said that PW instructed him to go with the fishing line to the round yard and to climb up on the tyre wall. He said that he followed this instruction. William Chaplin was already at the yard when he arrived. PW followed and commenced an argument with William Chaplin, accusing him of having molested PW’s daughter. William Chaplin denied this. The applicant said that the argument “got a bit wrestley”, that SW come out from the house and said to PW, “Just do it” and went back inside. The applicant said that PW then instructed him to jump down on William Chaplin and “put him on the ground”.

3. [246]

   The applicant gave the following answers as to the part then played by himself and PW in killing William Chaplin:

4. [247]

   At A168, 173 and 175 the applicant said, variously that he dropped the fishing line between the tyres before seizing hold of William Chaplin, or otherwise that he could not remember whether or not he used the fishing line on the deceased. At A185 and 186 the applicant was asked about the 9mm Glock pistol that he had said in his first interview was the murder weapon. He now said that it was not used and he did not know why.

5. [248]

   It was reasonably open to the jury to accept so much of the second interview as consisted of the applicant’s admission that he was present, by arrangement with PW, when William Chaplin was killed and that he assisted PW, in some manner, to bring about the death. This represented yet a further stage of the applicant’s retreat from his attempts to deny responsibility. In this final version the applicant narrowed his ground of exculpation to duress, which he raised so belatedly and in such inconsistent terms that the jury would have been entitled to exclude it beyond reasonable doubt.

The jury’s assessment of the police interviews as a whole

1. [249]

   In cross examination of DS Wallace he agreed with defence counsel’s propositions that the applicant’s answers during the two recorded interviews on 5 and 6 September 2019 were “a series of rambling falsehoods”, that “there may be some truth woven into them” but that “on the whole they are totally unreliable unless corroborated by independent material”. Understandably, in his closing address counsel quoted that evidence from the detective back to the jury and referred to it many, many times. The jury, however, were not bound to act upon the officer’s view that the answers in the interviews were “totally unreliable unless corroborated”. It was open to the jury to conclude that the “truth woven into them” included, as the lowest common denominator of the applicant’s answers in the second interview, that he had assisted PW in killing William Chaplin by some means and that he did so in circumstances that bespoke an understanding or agreement with PW amounting to a joint criminal enterprise to commit homicide.

2. [250]

   Counsel’s closing address emphasised the variations and inconsistencies in the applicant’s answers under police questioning. Counsel sought to dissuade the jury from accepting the Crown’s argument that identified parts of what the applicant had said could be relied upon. The Crown’s approach was criticised as one of unjustifiable selectivity. Similarly, on the hearing of the leave application in this Court counsel for the applicant criticised the Crown’s approach. However, it was legitimate for the prosecution to submit to the jury that some of the applicant’s answers to the police, or parts thereof, were dependable and probative. It was open to the jury to be satisfied beyond reasonable doubt that unless the applicant had played an active part with PW in killing the deceased he would not have given answers that described such a role, as in the second interview.

3. [251]

   The jury could find compelling the applicant’s admissions against interest, both to his parents and in the second police interview, to the extent that he admitted having taken part in the murder with PW. It was open to them to find that in both interviews his inconsistent particulars of how William Chaplin was killed arose from his initial denial of direct knowledge of the homicide, followed by admissions of his presence at the scene of the crime, then of his physical involvement. As the applicant progressively abandoned his attempts to distance himself from the killing, so he varied the details by which he sought to put himself in a minimally culpable light. That process culminated in the duress narrative, as he had discussed with his father on the phone, when he finally admitted to police that he had taken part in the homicide.

Assessment of the entirety of the evidence at trial

1. [252]

   Making my own assessment of the whole of the evidence I am left with no reasonable doubt concerning the applicant’s guilt. On the basis of the phone intercept transcripts, alone, the applicant’s consistent admissions to his parents were sufficient to prove the charge beyond reasonable doubt. The transcribed contents of the phone conversations have a realism about them that is absent from the blather and spurious detail that the applicant provided to the interrogating police.

2. [253]

   Three features of the admissions in the phone conversations are particularly significant. First, they were directed to the applicant’s parents, with whom it could be expected that he would be frank about a matter as serious as his participation in a murder, however loose he may have been with the truth on other subjects at other times. Secondly, the applicant’s statements to his parents were in many cases oblique and guarded. They bear no indication of boasting or fantasising. The applicant’s reticence on the phone is inconsistent with him making a false claim of responsibility in order to inflate his own importance or, as he told police, to protect PW. Thirdly, the phone conversations are replete with discussion of an alibi, of the pretence of not knowing what became of William Chaplin, of having acted under duress and of passing blame onto PW. The exploration of these routes for escape from criminal liability gives authenticity to the applicant’s admissions to both parents that he took part in the murder.

3. [254]

   In contrast with the phone conversations, the applicant’s answers to police questioning were made in circumstances where one would not expect frankness, given that the applicant had three weeks’ notice that he was a person of interest and given that he had explicitly discussed with his parents the terms in which he would try to mislead the investigators. In contrast with his brevity and guardedness when speaking to his parents, the applicant’s denials and claims of exculpation in the police interviews are long winded, manipulative and ever-changing. However, even those answers culminate in admissions of participation, in the second interview.

4. [255]

   Irrespective of my satisfaction as to the guilt of the applicant, the case is one in which the advantages enjoyed by the jury enabled them to resolve any doubt that might be felt by appellate judges. The jury had the advantage of listening to nearly two hours of the applicant’s conversations with his mother, about one hour with his father, one hour with SW and a few minutes with his brother. The jury listened to nearly five and a half hours of the applicant’s police interviews. It is not the function of this Court to attempt to replicate the jury’s experience of the evidence at trial. However, in my view it is a necessary part of the Court’s obligation to consider the entire trial record that sufficient of the phone conversations and of the police interviews should be listened to for the purpose of discerning whether there were characteristics of the ways in which the applicant spoke on each occasion that the jury could reasonably have taken into account in deciding which, if any, of his statements were reliable.

5. [256]

   I have listened to short passages of the first recorded interview in order to identify the phone conversations that were played back to the applicant, to which his answers to subsequent questions by the interrogating police relate. The interview recording picks up parts of the phone intercept recordings. The brief portions that I have heard for that purpose show that there is a very marked difference between the applicant’s tone and manner when speaking with his parents, on the one hand, and his tone and manner when providing his verbose and discursive answers to the police. It was within the jury’s province to have regard to those characteristics when determining the weight to be given to the applicant’s various admissions and assertions, respectively.

6. [257]

   For the purpose of determining the sole ground that the verdict is unreasonable, it is sufficient for this Court to be aware that the phone conversations and the police interviews, respectively, took place under significantly different circumstances and have about them significantly different qualities, which the jury were in a position to evaluate, giving the jury a significant advantage over this Court in determining which of the applicant’s statements could be relied upon.

Jury not bound to find core admissions unreliable

1. [258]

   Just as jurors may accept parts of the testimonial evidence of a witness and reject other parts, so it was open to the jury in this case to accept as reliable the applicant’s generalised admissions of having participated in the crime while rejecting many of his statements as to the detail of that involvement. If the multiple inconsistent particulars given by the applicant in his police interviews had instead been given by an accusatory witness, there would have been strong ground for the jury to have discounted the entire testimony of the witness. Such rejection would be on the basis that if an accusatory witness cannot give a single account of how a homicide unfolded, consistent in all material particulars at each retelling, then there must be a reasonable doubt whether the witness observed the events described at all or, at least, a doubt whether critical parts of the witness’ account are reliable.

2. [259]

   In the case of admissions by an accused, different considerations apply. Jurors may reason that, even if conflicting particulars are given of the cause and circumstances of death, a general admission by the accused that he participated may still be reliable proof because of the probative value inherent in an admission against interest, a consideration that is absent from the evaluation of an accusatory witness. In Sinclair v The King (1946) 73 CLR 316 at 334., Dixon J said:

3. [260]

   Any tribunal of fact is entitled to regard an acknowledgement of involvement in serious wrongdoing as powerful evidence against the person making the admission. In the present case it was open to the jury to consider that the reliability of the basal admission was unaffected by variations and contradictions in the applicant’s provision of particulars, the latter arose under police questioning when the applicant attempted to recant from his admissions to his parents.

PW’s admissions to three witnesses

1. [261]

   Kirk JA has referred to the fact that when PW admitted to each of SW, Sacha Priest and JB that he had killed William Chaplin, he spoke in the first person singular and did not assert that the applicant had been concerned in the murder. PW did not expressly deny to those witnesses that the applicant had assisted him. Consistently with the applicant having been involved there were a variety of reasons why PW may not have mentioned that fact to the three witnesses.

2. [262]

   It was common ground that PW was the prime mover and that the crime was committed to serve his purposes, either to avenge William Chaplin’s sexual touching of his child or to eliminate William Chaplin as a potential witness to his own misconduct. In acknowledging the murder to the three witnesses it is plausible that PW may have thought it superfluous to mention that the applicant, a mere boy of 16 years at the relevant time, took part. He may not have regarded the applicant’s contribution as significant. He may have sought to project himself as more intimidating and dangerous by not disclosing that he had help. PW is unlikely to have had any understanding of joint criminal enterprise liability and may not have considered that relatively minor participation by the applicant could render him liable. Additionally or alternatively, PW may have wished not to implicate the applicant. On any of those bases it was open to the jury not to view PW’s admissions as an implicit positive assertion that the applicant was not involved. PW was not called and could not be cross-examined.

3. [263]

   In all of those circumstances, the terms in which PW admitted his guilt to the three witnesses do not cause me to feel any doubt about the applicant’s involvement, as admitted by him to his parents on the phone and to police in his second interview. It was open to the jury, likewise, to attribute no significant weight to the terms of PW’s admissions to the three witnesses and to view them is not raising any reasonable doubt about the applicant’s guilt.

Lies as consciousness of guilt

1. [264]

   I do not find it necessary to consider the lies told by the applicant that the Crown relied upon as demonstrating consciousness of guilt of the crime of murder. There is no ground of appeal impugning the directions pursuant to which those lies were left to the jury’s consideration. The verdict was open without reliance upon the lies and on no construction of them could they detract from the weight that the jury was entitled to attribute to the applicant’s fundamental admissions.

Proposed orders

1. [265]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [266]

   SWEENEY J: I have had the considerable benefit of reading in draft the judgments of Kirk JA and Fagan J. I gratefully adopt their Honours’ detailed account of the evidence in the trial. Having considered that evidence, and being mindful of the jury’s advantage, I have a reasonable doubt about the applicant’s guilt of the offence of murder, which the jury should also have had, for the reasons explicated by Kirk JA. I am of the view the jury’s verdict was unreasonable.

3. [267]

   I therefore agree with the orders proposed by Kirk JA, and with his Honour’s reasons.