ZT v R

1. [1]

   BELL CJ: The background to this appeal is set out in the detailed and careful judgment of Dhanji J which I have had the benefit of reviewing. His Honour’s judgment includes a recount of the procedural history of this matter, the split between a differently constituted Court of Criminal Appeal on the hearing of ZT’s first appeal (ZT v R [2023] NSWCCA 241 (the earlier appeal)), the successful Crown appeal to the High Court (The King v ZT [2025] HCA 9; (2025) 99 ALJR 676 (ZT (HC))) and the rehearing of ZT’s appeal in this Court. It also includes more general background to the circumstances leading to the murder of William Chaplin (Chaplin) in 2010 which I do not repeat here but familiarity with which is assumed in the balance of my reasons.

2. [2]

   As Kirk JA (with whom Sweeney J agreed) said in the earlier appeal, senior counsel for ZT at the trial effectively accepted that ZT had been involved in the offence of being an accessory after the fact to Chaplin’s murder but, critically, had only been charged with the murder on a joint or extended joint criminal enterprise basis. Kirk JA took the view that clearly there was “a real possibility that ZT was involved in the murder” but properly observed that that did not suffice: at [121]. His Honour and Sweeney J, like Dhanji and Yehia JJ, took the view that ZT’s admissions were not sufficiently reliable to establish either joint criminal enterprise or extended joint criminal enterprise, and that the jury ought to have experienced a reasonable doubt as to ZT’s guilt.

3. [3]

   The Crown’s case at trial was that the actual killing of Chaplin was committed by PW who has been separately convicted of Chaplin’s murder.

4. [4]

   It was common cause that ZT was present at the time of Chaplin’s murder, that the murder was orchestrated by PW, and that ZT, together with PW’s ex-wife, SW, assisted PW with the burning and disposal of Chaplin’s body on the day following his murder. SW was convicted in separate proceedings for being an accessory after the fact.

5. [5]

   SW lent assistance to the police and was party to a number of conversations with ZT that were recorded and placed in evidence in the proceedings. She also gave evidence at the trial. There were also a large number of recordings of conversations between ZT and his partner, ZT and his mother, ZT and his father, and ZT and his brother. In addition, there were electronic recordings of two police interviews with ZT.

6. [6]

   It is true that ZT gave multiple versions of events, including to his parents and the police, as to what had occurred. These ranged from him not knowing Chaplin at all, to not being present at the time of the murder, to being inside PW’s house in Gerogery at the time of the murder which took place outside, to himself cutting Chaplin’s throat, to holding Chaplin down while he was stabbed by PW in the chest, to PW “pulling a Glock” on him, to either he or PW using fishing line to kill Chaplin, to SW being present at the time of the murder, and to ZT having acted under duress.

7. [7]

   Many of these accounts must have been lies and a review of the transcript of telephone conversations between ZT and his parents, ZT and his brother, and ZT and SW exposes various versions of events being developed over time as alibis or exculpatory accounts. These included the following:

8. [8]

   The multiplicity of accounts and falsehoods voiced by ZT contributed materially to the doubt felt by Kirk JA and Sweeney J in the earlier appeal as well as to the decisions reached by Dhanji and Yehia JJ on the present appeal. Unlike Dhanji and Yehia JJ, however, and after my own review and anxious consideration of the evidence as a whole, taking into account the advantages of the jury, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that ZT was guilty of murder as charged.

9. [9]

   My reasoning broadly accords with that of Fagan J in the earlier appeal and places particular emphasis on a series of admissions made by ZT to his parents and brother as to his involvement in the murder of Chaplin in circumstances where ZT had no cause or incentive to lie. It is also supported by the evidence of Ms W (who was SW’s mother) in relation to what ZT had said to her in late 2017, namely that PW and he [ZT] “had to sort out some guy who’d been messing with [PW and SW’s] daughter.” This was said well before ZT realised he was a person of interest in relation to Chaplin’s murder.

10. [10]

    Further, many of the false alibis and “stories” set out at [7] above, in my view, far from casting doubt on the reliability of ZT’s admissions, in fact bolster the strength of those admissions. This was not the conduct of a “big noter”, narcissist or fabulist. It was conduct entirely consistent with a consciousness of guilt on ZT’s part, and, importantly, guilt as to involvement in Chaplin’s killing and not simply guilt to having been an accessory after the fact. Having conducted my own independent review of the evidence, it was open to the jury, which was carefully instructed on consciousness of guilt reasoning by the trial judge, to take this view of much of ZT’s evidence, in conjunction with his confessions or admissions to his parents and brother referred to in further detail below.

11. [11]

    The jury also had the benefit of listening to all the recorded intercepted telephone calls. That advantage was not insignificant, and the jury was able to bring their commonsense and human experience in assessing the significance of verbal interactions between a husband and his partner, a son and his mother and father, and brother and brother, including the tone of particular statements and variations in tone both within and as between certain conversations, and the significance of pauses or delays between certain questions and answers to them. As the plurality explained in ZT (HC) at [10], reproduced at [46] below, a jury may bring to the assessment of such matters a breadth of understanding that a judge may not have. Views as to the significance or otherwise of particular conversations or portions of conversations, and or the tone thereof, may vary as between jurors, but those views inevitably contribute to each juror’s individual and ultimate assessment as to an accused’s guilt or innocence, and feed into the collective assessment and decision-making that it is the jury’s responsibility to undertake.

12. [12]

    To illustrate the point as to the jury’s advantage, reference may be made to one of the first recorded telephone calls between ZT and his partner who I will simply refer to as M. That conversation was as follows:

13. [13]

    Dhanji J has observed in his judgment that “[t]hroughout the morass of lies, there was only one direct admission to murder in the course of the many admissions made in the intercepted calls that may plausibly have been true” (emphasis added), namely ZT’s admission to his father on 22 August 2019 that he and one other person had made the deceased “disappear”: see at [177] below. That admission was in the following terms:

14. [14]

    At [138], Dhanji J has observed that:

15. [15]

    I agree with his Honour’s assessment as to the jury’s advantage. The point was well made by the Crown in submissions on appeal that this exchange demonstrated the weight of the jury’s advantage in listening to the telephone recordings, noting that ZT:

16. [16]

    Views may differ as to Dhanji J’s observation that there was “only one direct admission to murder in the course of the many admissions made [by ZT] in the intercepted calls that may plausibly have been true” (emphasis added) but, in any event, the direct admission to which Dhanji J refers was confirmed or reinforced by a series of further interactions ZT had with his parents and brother as well as what may be referred to as indirect admissions. Thus, less than an hour following the conversation with his father set out at [13] above, ZT spoke to his mother who had said that she had missed a call from his father. ZT responded to her, saying:

17. [17]

    I agree with Fagan J’s observation in the earlier appeal that “[t]he 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”: at [187].

18. [18]

    ZT in fact had told his mother on 15 August 2019 that he had killed Chaplin:

19. [19]

    Pausing here, I agree with the following observations of Kirk JA in the earlier appeal at [107] that:

20. [20]

    The significance of these separate admissions to his parents and his earlier 2017 statement to Ms W was reinforced by confirmatory statements in the days following ZT’s admission to his father on 22 August 2019. Thus, on 23 August, ZT had the following exchange with his father, implicitly confirming what he had told him the day before:

21. [21]

    In context, ZT’s statement to his father on 24 August 2019 that “I’m not coming clean” and telling his father to “shut the fuck up” in response to the suggestion that he should do so is also entirely consistent with a consciousness of guilt on his part. Earlier that day, ZT and his father had the following conversation:

22. [22]

    On 27 August 2019, in a call with his mother, ZT repeatedly associated his involvement in the murder with the truth. Thus, he said to his mother 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” and went on to say to his mother that ”it was hard enough telling you the truth” (emphasis added). At one part of this conversation with his mother, ZT said to her that “I wouldn’t of told you what I told you if I didn’t trust you. Okay?”. In this conversation, he also said of a phone call with his brother on the previous day that:

23. [23]

    In a further conversation with his father on 1 September 2019, the following exchange occurred:

24. [24]

    Later in this conversation, the following exchange occurred between them:

25. [25]

    In another conversation on 1 September 2019 with his father, the following exchange occurred:

26. [26]

    I do not accept ZT’s submission that this and many of the other conversations set out above “are equally consistent with a consciousness of guilt of [ZT] being an accessory after the fact”. That is because these conversations must be understood in the context of the admissions outlined above which are directly contrary to mere participation as an accessory after the fact, including that he had “killed” [Chaplin], “cut his throat”, made him disappear, or taken him out.

27. [27]

    Confessions or admissions against interest are “rightly regarded as evidence of a most persuasive nature”: Morris v The Queen (1987) 163 CLR 454 at 470; [1987] HCA 50 (Morris) per Deane, Toohey and Gaudron JJ, at least in circumstances where they are made voluntarily, by a person of sound mind (Sinclair v The King (1946) 73 CLR 316 at 338; [1946] HCA 55 (Sinclair)) or made in circumstances which do not bring their reliability into question such as an incomplete record of interview or a denial of the veracity of the confession on oath: Whitehorn v The Queen (1983) 152 CLR 657 at 690; [1983] HCA 42 (Whitehorn); see also McKay v The King (1935) 54 CLR 1 at 8-9; [1935] HCA 70. Ordinarily, however, persons do not make admissions against interest unless they are true: Em v R [2006] NSWCCA 336 at [68], affirmed on appeal: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46. As long ago as 1783, it was said in R v Warickshall (1783) 1 Leach 263; (1783) 168 ER 234 at 235 (Warickshall) that:

28. [28]

    This passage from Warickshall was cited with approval in Sinclair at 339-40 and was referred to more recently in Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [34] and [286]. In Sinclair at 334, Dixon J put the matter as follows:

29. [29]

    The confessions or admissions made in the present case were repeated and powerful. They were made in a context of a young man reluctantly confessing to his parents and brother, and strenuously resisting any notion that he was making them up. He had an established relationship and young children to whom he was clearly attached. He plainly did not want to go to prison and it would have been wholly irrational of him to confess guilt in the way he repeatedly did to those he trusted if such a confession was inaccurate or unreliable. The confessions were not made involuntarily or in circumstances where ZT was protecting or seeking to protect anyone else, or where ZT was not of sound mind (cf. Morris), or where there were any issues as to the veracity of the record which contained them or any incompleteness in the context in which they were made (cf. Whitehorn). They were not confessions made to the police or suggested to have been vitiated by inducement.

30. [30]

    I am conscious that SW gave evidence that it has been contended raised a doubt as to whether ZT cut Chaplin’s neck. To put that evidence in context, SW gave evidence that she was not present at the house at the time of Chaplin’s murder, having had a fight with PW and left the house, and that, when she called PW (the day after Chaplin’s death) to check if she could return home, he told her that he “needed an hour to clean up some stuff”.

31. [31]

    When SW did return home, sometime between 11:30am and 12:30pm the following day, PW asked if she wanted to be shown something, and she agreed. It was at this point that, according to SW’s evidence in chief, PW and ZT joked about it being a lovely day for sunbaking, an apparently malevolent reference to Chaplin’s corpse which was lying in the sun in the round yard, which was 50-100 metres from the house’s back fence. Her evidence was that there was a tarpaulin with a bulge in it, being Chaplin’s body. The tarp was pulled back by PW to above Chaplin’s waist.

32. [32]

    SW gave the following evidence in chief:

33. [33]

    She was also asked whether she noticed anything about his clothing on the upper part of his body to which she replied “[t]he only thing I noticed is he had what looks like a green jumper or a green shirt of some form.” She confirmed the correctness of an answer she had given in a police interview, namely that it had a “normal collar”.

34. [34]

    Under cross examination, she was taken to excerpts of a police interview with her and confirmed the correctness of the following answers in relation to what she observed:

35. [35]

    Despite her confidence (in relation to an event which had taken place many years beforehand), SW did not claim to have inspected the corpse closely and, on her own evidence, at least the lower part of Chaplin’s neck would have been covered by the collar of the green top to which she had referred. Moreover, and again on her evidence, PW had delayed SW’s return to the house on the basis that he “needed an hour to clean up some stuff”.

36. [36]

    SW accepted in cross examination that she was in “in a state of shock after seeing this man’s body that you believe [PW] had killed”. She also accepted that her memory had been strained because of the passage of time. It may be noted in this context that her police interview in which she was first asked to recall what she noticed in relation to Chaplin’s corpse occurred almost 10 years after Chaplin’s murder.

37. [37]

    The jury, which had the benefit of observing SW give evidence over a number of days, evidently did not consider that SW’s confident recollection of not observing any cuts to Chaplin’s neck raised a sufficient doubt as to ZT’s involvement in the joint criminal enterprise in the face of the repeated confessions and admissions by ZT. That may have been for one of a number of reasons.

38. [38]

    First, the jury might have accepted that, whatever the correctness of ZT’s statements about slashing Chaplin’s throat (and the Crown only submitted in address to the jury that it was possible but unlikely), ZT’s multiple statements to his parents, his brother, SW, and the earlier 2017 statement to Ms W were sufficiently powerful to convince them beyond reasonable doubt as to his involvement in the joint criminal enterprise. The jury did not need to reach a view as to the precise mode of killing, as the plurality pointed out in ZT (HC) at [25]. This is consistent with the observation of Fagan J noted at [21] above.

39. [39]

    Secondly, in light of the observations in [35]-[36], namely that the events recalled by SW had occurred nearly 10 years earlier, she did not claim to have inspected the body closely, PW’s collared shirt likely covered part of his neck, Chaplin had been deceased for many hours by the time SW observed his body, and PW had, according to SW, spent at least an hour cleaning up “some stuff” (which presumably included the body), the jury was entitled to reject SW’s evidence that she was “sure” that if Chaplin’s throat had been cut she would have seen it, and to reject the Crown’s characterisation of ZT slashing Chaplin’s throat as “unlikely”.

40. [40]

    Thirdly and relatedly, the evidence of the expert, Dr Donlon, in relation to the remnants of Chaplin’s body, was that defects on two cervical vertebrae towards the rear of Chaplin’s neck could have represented “some kind of cut to the bone”.

41. [41]

    Fourthly, it was open to the jury to be fortified in its conclusion by the consciousness of guilt inherent in the multiple alibis explored by ZT in discussion with his parents and SW, and deployed in his interviews with the police, all of which the jury must be taken to have rejected.

42. [42]

    The applicable principles in relation to an unreasonable verdict challenge, derived from a number of decisions of the High Court (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell); Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; ZT (HC)), were not in doubt.

43. [43]

    In M, the High Court stated at 493 that:

44. [44]

    The Court must have due regard to the advantage of the jury in hearing and seeing witnesses, as held in M at 494-5:

45. [45]

    Generally speaking, the lengthier the cross examination, the greater the jury’s advantage. The jury’s advantage is, however, ”not limited to its capacity to see and hear the witnesses give their evidence”: Kim v R [2020] NSWCCA 288 at [58]. The High Court held in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]:

46. [46]

    The advantages of the jury, including (as in this case) where the evidence consists of recorded conversations or interviews, were summarised in ZT (HC):

47. [47]

    Taking into account the advantages of the jury in a lengthy trial such as that conducted in the present case and based upon my review of the whole of the evidence, including listening to the sound recordings of telephone conversations and police interviews involving ZT, I do not consider that “there is a significant possibility that an innocent person has been convicted” (M at 494) nor “that a miscarriage of justice has occurred authorising and requiring [this Court’s] intervention” (MFA at [96]). It was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (M at 495) and the appeal should, in my view, be dismissed.

48. [48]

    DHANJI J: This is a case involving a murder that was, at the time of investigation, approximately nine years in the past. There were no eyewitnesses. The body was largely destroyed. The evidence available to the Crown was, as a result, limited. While there was some circumstantial evidence supporting the Crown case, including evidence the applicant assisted in the disposal of the body, ultimately, central to the proof of the Crown case was the reliability of various admissions made by the applicant. The case is an unusual one in that regard. Whilst the applicant made many admissions to having murdered the deceased, those admissions were, in many instances, inconsistent with one another. Some were inconsistent with the objective evidence. Some, if accepted, elevated the applicant’s culpability beyond that which was alleged by the Crown. The applicant now contends the various admissions made by him cannot be relied upon. It is in these circumstances it is contended that the verdict is unreasonable and should be quashed.

The procedural history

1. [49]

   Between 22 November and 9 December 2021, ZT (the applicant) stood trial in the Supreme Court of New South Wales before Walton J and a jury on an indictment that he, between 30 March and 31 May 2010, at Gerogery in the State of New South Wales, did murder William Chaplin (the deceased). On 9 December 2021, the jury returned a verdict of guilty. On 29 April 2022, the applicant was sentenced to 12 years imprisonment with a non-parole period of 8 years: R v ZT [2022] NSWSC 511. He filed a Notice of Intention to Appeal against his conviction on 27 April 2023.

2. [50]

   On 29 September 2023, a majority of this Court (Kirk JA, Sweeney J agreeing, Fagan J dissenting) upheld the applicant’s appeal on the sole ground that his conviction was unreasonable or could not be supported having regard to the evidence: ZT v R [2023] NSWCCA 241. The Court granted leave to appeal, allowed the appeal, quashed the applicant’s conviction and entered a judgment of acquittal.

3. [51]

   The majority held that it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty and that the doubt they held was “not capable of being explained away by the natural advantages of the jury”. This was on the basis that the applicant’s admissions were not sufficiently reliable such that the applicant’s guilt could be established beyond reasonable doubt. In forming this view, the majority did not listen to any of the intercepted telephone calls or watch any of the recorded police interviews in which the alleged admissions were made: ZT v R at [128], [266]. Fagan J in contrast did watch some of the first police interview, including parts where intercepted calls were played to the applicant (which I note were not separately transcribed in the transcript of the police interview): see ZT v R at [256].

4. [52]

   The New South Wales Director of Public Prosecutions, pursuant to a grant of special leave to appeal, appealed to the High Court against the orders made by this Court on the basis that, in failing to listen to or view the principal evidence, the Court of Criminal Appeal failed to discharge its appellate function consistently with M v The Queen (1994) 181 CLR 487; [1994] HCA 63. On 2 April 2025, the High Court unanimously allowed the appeal, set aside the acquittal and remitted the matter for redetermination according to law: The King v ZT [2025] HCA 9; (2025) 99 ALJR 676.

5. [53]

   All members of the High Court found that the majority in this Court failed to properly apply the test in M v The Queen in concluding that no part of the reasoning to the conclusion that the verdict was unreasonable “depend[ed] in any material way on what impression would have been conveyed by what the jury heard and saw”: at [53] per Gageler CJ, Gleeson, Jagot and Beech-Jones JJ with respect to both the telephone intercepts and the police interviews, and at [90] per Gordon, Edelman and Steward JJ with respect to the telephone intercepts only. Gageler CJ, Gleeson, Jagot and Beech-Jones JJ found the majority in this Court were wrong in not having regard to the advantage held by the jury as a result of their having viewed and listened to the telephone intercepts and the police interviews, without having listened to or watched a “sufficient part of [that material] to make an assessment of the existence, nature and scope of the advantages the jury held” (at [56]). Gordon, Edelman and Steward JJ (at [92]) found that it was in error to determine the matter without listening to any of the intercepted calls on the basis that any advantage held by the jury in having done so was not a significant advantage and where the Crown had submitted that aspects of the telephone intercepts not apparent from the transcript “could have a real impact” on the reliability of admissions.

6. [54]

   It is necessary then to determine whether, as the applicant contends, the verdict of the jury is unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW). That determination is to be made in accordance with authority including the Crown’s successful appeal in this matter.

The principles to be applied

1. [55]

   The High Court, on appeal in the present matter, revisited the test to be applied by this Court in determining whether a verdict is unreasonable within the first limb of s 6(1) of the Criminal Appeal Act. The Court again confirmed the test is that stated in M v The Queen, per Mason CJ, Deane, Dawson and Toohey JJ. That test had previously been stated in similar terms and has been consistently repeated through subsequent High Court decisions. In M v The Queen, their Honours said (at 493-495):

2. [56]

   It is important to have regard to the complete exposition of the test as set out above. As Brennan J said in M v The Queen (at 501), simply asking whether it was “‘open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty’ … conceals an underlying controversy as to when it is ‘open to the jury’ to be so satisfied”.

3. [57]

   Application of the test requires this Court to make its own independent assessment of the evidence before considering whether any doubt that results is capable of resolution by the advantage held by the jury: see M v The Queen (at 492). The point was re-iterated in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, where the majority (French CJ, Gummow and Kiefel JJ) observed that in applying the test the appellate court “is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’”. A failure to undertake the independent inquiry will necessarily lead to a focus on the verdict of the jury and the basis on which it might be justified rather than a focus on the charge and the evidence led to support it. Other than in more extreme cases it will not be difficult to find a basis on which a jury may have reasoned to guilt. Justifying a verdict in this manner, however, risks the process becoming perilously close to an “open to the jury” inquiry that requires simply some evidence capable of establishing the elements of the offence.

4. [58]

   Of course, the appellate court’s independent assessment is not the end of the process. As M v The Queen and the cases which have followed make clear, having made an independent assessment of the evidence, any doubt experienced by an appellate court may nonetheless be resolved having regard to the advantage enjoyed by the jury. In answering the question posed by M v The Queen, “the appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the ‘benefit of having seen and heard the witnesses’”: The King v ZT at [7] quoting from M v The Queen. With respect to that advantage, in The King v ZT, the majority said (at [9], footnotes omitted):

5. [59]

   In The King v ZT, the High Court also clarified that while evidence in the form of electronically recorded statements may be viewed by an appellate court which will, at least to an extent, replicate the experience of jurors in viewing the evidence, that does not mean that an appellate court has the same function in evaluating such evidence. Gageler CJ, Gleeson, Jagot and Beech-Jones JJ observed (at [18]-[19]):

6. [60]

   The question of whether there is a “real forensic purpose” in watching and listening to recorded statements is determined in the context of the adversarial nature of an appeal against conviction. That is, “an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought” and, as a result, an “appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial”: The King v ZT at [11]. It is, as a result, incumbent on the parties to identify any portions of the evidence which it is submitted should be viewed or listened to: SKA v The Queen at [31], [116], Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [36] and The King v ZT at [14].

7. [61]

   That passages of recorded materials have been identified by the parties does not oblige the Court to listen to or watch those parts of the recordings. It will only be necessary to do so if the Court is satisfied that there is, as contended, a genuine forensic purpose in doing so.

8. [62]

   Presumably against the contingency that one or more members of the Court would experience a doubt based on the record of the trial, the respondent submitted that the Court should listen to, or view, various parts of the electronic evidence in order to inform ourselves as to the extent of the advantage held by the jury. Much of that evidence comprised intercepted telephone calls which were played in court. There followed a helpful process where the parties in turn made submissions as to what could be drawn from the particular recording. I have viewed in chambers other parts of the recordings which it was submitted should be viewed but which were not played in court. My assessment of the benefit of having listened to or viewed parts of the evidence is discussed below in the context of the particular recordings. I would only observe at this point that, having listened to or listened to and viewed the particular recordings, the forensic purpose in doing so with respect to some of them was not at all clear. At times, the submissions on the utility of playing the recordings tended to focus on the conclusions we would draw from the experience (which were not relevant) rather than our assessment of the advantage the jury enjoyed in having experienced the playing of the recording. That was, to a degree understandable, given that the two processes are not conceptually unrelated. Nonetheless, as The King v ZT establishes, the distinction must be maintained.

A brief outline of the case against the applicant

1. [63]

   The deceased was murdered by PW sometime between 30 March and 31 May 2010 in Gerogery. No report of the crime was made at the time. Nor was the deceased reported missing. As a result, for several years, the police remained unaware that any crime had been committed. In 2017, PW, while in prison, told another inmate that he had murdered the deceased. That prisoner told the authorities and an investigation was launched.

2. [64]

   That investigation led to the arrest of the applicant. He was, at the time of the murder committed by PW, 16 years old and living with PW and his wife SW in their home in Gerogery. The deceased, who was 25 years old at the time of his death, was also living with PW and SW. The case against the applicant proceeded on the basis that he was complicit in the offence committed by PW.

3. [65]

   The police investigation also led to PW’s former wife, SW. She co-operated with the police. She was, according to her evidence, away on the night the deceased was killed. She returned home to find him dead in the “round yard”, a paddock ringed by tyres forming a circular wall which was used for breaking in horses. Neither PW nor the applicant appeared to be troubled by his death. She said that she, the applicant and PW attempted to destroy the body. It was placed in a shallow grave and a large fire was built over it. Bones belonging to the deceased were ultimately found at the location.

4. [66]

   In order to understand the case against the applicant, it is helpful to know something of PW. It was not in dispute that he was a murderer. Beyond this, he was also a child molester. He was manipulative and controlling. He destroyed many lives. The applicant formed a friendship with PW, ultimately moving in with him and his wife SW. PW was, at the time the applicant moved in, 39 years old, considerably older than the 16 year old applicant. Importantly, the relationship between the applicant and PW was close, with the result that PW was able to exert control over the applicant.

5. [67]

   According to PW’s confession to murder, he killed the deceased because he caught him sexually abusing his, that is PW’s, child, CW. The reality was very likely that PW killed the deceased because the deceased caught PW sexually abusing the child. At the time he made his confession, PW was in fact in gaol for sexual offences against his biological children CW and DW whom he fathered with SW. There was other evidence of PW having sexually abused his two biological children from an earlier relationship with JW, and at least four other young persons. It was not suggested the applicant had any motive to kill the deceased other than a desire to assist and, perhaps, impress PW. Consistently with this, the Crown Prosecutor opened the case on the basis that:

6. [68]

   In closing, the Crown Prosector said:

7. [69]

   With respect to the applicant’s liability, the case was put on the basis that he was party to a joint criminal enterprise or at least an extended joint criminal enterprise with PW to kill the deceased. On the Crown case, the applicant was present in the round yard with PW when the deceased was killed pursuant to an agreement between the applicant and PW to kill or inflict grievous bodily harm on the deceased. As to extended joint criminal enterprise, it was put that, having agreed with PW to assault the deceased, the applicant, while not agreeing to it, foresaw the possibility that PW would, with an intention to do so, go further and inflict grievous bodily harm or kill the deceased.

8. [70]

   Manslaughter was also left to the jury on the basis that the applicant was a party to an unlawful and dangerous act. Understanding how this might be established having regard to the difficulty in particularising the act or agreement was not straight-forward. The necessary path of reasoning to guilt was that, while not satisfied the applicant was guilty of murder, the applicant’s admissions enabled a conclusion that he was a party to the act that resulted in death, and which a reasonable person in his position would have appreciated carried a risk of serious injury.

9. [71]

   Duress was raised by the applicant based on admissions made by him in which he confessed to his involvement but stated it was as a result of a threat to his life posed by PW, together with evidence of the nature of the relationship between the applicant and PW more generally. Duress was, however, only required to be rebutted by the Crown with respect to liability for murder based on extended joint criminal enterprise or in the event that the jury were required to consider manslaughter. That is because duress is not an available defence to murder as a principal in the first degree but is available as a defence to murder as a principal in the second degree: R v McConnell (1977) 1 NSWLR 714. Liability based on participation in a joint criminal enterprise is primary liability, that is, liability as a principal in the first degree: Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [73]. Liability based on extended joint criminal enterprise has been accepted to be that of a principal in the second degree: Mitchell v The Queen (2023) 276 CLR 299; [2023] HCA 5; R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824.

The case against the applicant absent the admissions

1. [72]

   As observed above, the murder came to light in 2017 when PW, while serving a period of imprisonment, confessed the crime to a fellow inmate. PW told his cellmate, Sacha Priest, “by the way I murdered someone”. Mr Priest said that PW went into “full detail about what he did, why he did it, where the body is” but that he, Mr Priest, could not remember the exact conversation. He said that PW did not say how he murdered the deceased but that he had burnt the body and buried it on a farm where he had lived. He said he had killed the deceased because he was attacking or threatening to attack his family. He said that his wife knew about it and “was there”, but did not mention her involvement otherwise. Mr Priest said PW did not mention the involvement of anyone else.

2. [73]

   The form in which PW spoke of his responsibility for the murder, taken literally, suggests he assumed sole responsibility for the murder. While he suggested SW “knew about it” it was not clear as to when that knowledge arose. That evidence was, as a result, not inconsistent with SW’s evidence, discussed below, that she only found out about the murder after the event.

3. [74]

   PW’s failure to mention the involvement of anyone else in the killing is arguably inconsistent with the applicant having been involved. I would not, however, place significant weight on this. PW, while willing to confess his own crime, may have been reluctant to implicate others. This might be particularly so in the gaol environment. It may be that PW did not appreciate that the role played by the applicant also rendered him liable for murder. Either on this basis or otherwise, he may have thought little of the role played by the applicant. PW was, after all, nothing if not self-centred.

4. [75]

   As observed above, it was likely that PW’s motive for the murder was that the deceased had caught PW sexually abusing his child. Support for this theory was found in PW’s history of sexually abusing children, including his own biological children. PW’s first wife, JW, gave evidence of an occasion when she came home to find PW naked from the waist down on the floor with their fully naked child, who was then aged about two years old. JW said that when their other son was about five years old he told her of a sexual contact by PW, and when he was ten years old he made a further complaint that he was made to perform oral sex on PW. JW also gave evidence of an occasion in 1996 when PW was questioned by police in relation to sexual allegations made against him by a “little girl” he babysat when he was 16 years old, and complaints by a 14 year old neighbour and a 16 year old niece. SD gave evidence that his sister had told him PW had digitally penetrated her on an occasion when they had gone swimming as a group.

5. [76]

   Evidence of PW’s abuse of children also came from SW. Her relationship with PW commenced following the conclusion of PW’s relationship with JW. SW’s evidence was relevant to a number of matters and is discussed further below. It is sufficient to note here that the evidence of PW’s abuse of male and female children was extensive.

6. [77]

   JW, in a conversation with the applicant in September 2019, asked him if he had been abused by PW. She said that he responded that he “would prefer not to answer that question”. The applicant did tell the police in the course of his second recorded interview that he had been abused by PW.

7. [78]

   There was evidence, from both statements made by the applicant, and SD, a young neighbour, that PW boasted of being a hit man having killed numerous people. This was likely untrue. The relevance of this evidence is limited to the applicant’s belief that PW was dangerous and may have acted on any threats he made.

8. [79]

   The background to SW’s relationship with PW was given by SW’s mother, Ms W. Ms W and her family met PW when SW was about 7 years old. In 2001, Ms W allowed PW to move into her home. While he was living there, Ms W found him on one occasion sleeping on the floor of her son’s bedroom and on another on the floor of SW’s bedroom. Some months later, Ms W asked PW to move out. PW later told her that he intended to marry SW, who was then 14 years old, when she turned 18. Four days later, SW left the house and Ms W did not see her for the next 16 years. Ms W gave evidence that she had been threatened and told to stop looking for SW a “couple of times”. On eventually reuniting with her mother, SW told her that PW had not allowed her to make contact.

9. [80]

   SW gave evidence that she started a relationship with PW when she was about 14 years old and he was about 32 years old. She gave birth to their daughter, CW, in 2008. After CW was born, PW began abusing her and was violent and manipulative. She said that PW regularly threatened to kill her and that she was very scared of him.

10. [81]

    SW said that at the time of the deceased’s death, she and PW were living in Main Street, Gerogery with the applicant, the deceased, and their daughter CW. The deceased slept on the couch in the loungeroom and the applicant slept in the spare room. The other two bedrooms were occupied by SW and PW, and by CW. The applicant’s uncle and aunt were neighbours.

11. [82]

    SW gave evidence of an occasion in early 2010 when she and PW were having sex in their bedroom and the deceased walked into the room, claiming he really needed to speak with PW. He then walked out of the room. Afterwards, SW had an argument with PW about the incident. She left the home to stay overnight with her mother-in-law and did not take CW with her.

12. [83]

    The next day, SW telephoned PW to ask whether she could return home and PW said that he “needed an hour to clean up some stuff”. She arrived home between 11.30am and 12.30pm, at which time both PW and the applicant had a “normal demeanour”. PW asked her if she wanted to be shown something and she said yes. SW said that PW and the applicant were joking about it being “a lovely day for sunbaking” and for “laying under the sun”.

13. [84]

    SW gave evidence that PW and the applicant led her to the round yard, which was about 50 to 100 metres from the back fence of the house. She saw a tarpaulin with a bulge in it lying on the ground in the round yard which PW pulled back to reveal the deceased’s body from the waist upwards. He was lying with his arms by his sides, with his eyes open and staring up. He had a “small nick” above his right eye. SW did not notice any damage, cut or bruising to his neck, nor blood on his neck. She confirmed that she did not notice anything about his chest, except that he was wearing a green jumper or shirt. She said that the deceased was again covered with the tarpaulin, after which the three returned to the house. In the house, PW told SW and the applicant “that we don’t say anything otherwise we’re in the same position”.

14. [85]

    SW gave evidence that she later saw PW and the applicant digging up the deceased’s body from an area “in the trees” where a horse had been buried, and returning his body to the round yard to burn. An area had been dug up in the round yard and wood had been laid on top of the deceased’s body. SW gave evidence that she helped put some timber or wood on the pile and that PW started the fire with petrol. The fire lasted for about two to three days.

15. [86]

    SW gave evidence that in August 2019 she was questioned by police in relation to the death of the deceased. She was charged with, and pleaded guilty to, being an accessory after the fact to murder on the basis that she assisted in the disposal of the body. SW gave evidence that she assisted because of her fear of PW and her belief that if she did not assist or if she told anyone what had occurred, she “would have been dead” herself. SW co-operated with police who requested she contact the applicant and obtain information about the death of the deceased. SW was sentenced to a Community Correction Order for the offence. She acknowledged she was at risk of being resentenced if she did not give evidence, or if she gave untruthful evidence, in the proceedings.

16. [87]

    While the evidence of SW was challenged by the applicant at trial, her evidence was not called into question on the appeal. There is, in any event, good reason to accept SW’s evidence that she was not present at the time of the murder but returned to find the deceased’s body. That is so despite the caution required with respect to the evidence of persons who were criminally involved in events. SW clearly had much to gain in limiting her involvement. Objective analysis of the evidence, however, supports her account. In the course of an intercepted conversation with the applicant, SW asked the applicant how the deceased was killed and who killed him. These were very risky questions to ask if SW was in fact present. Had that been the case the applicant was very likely to have pointed out that she was present and already knew the answer.

17. [88]

    Accepting that SW was not present, there is also no reason to doubt her evidence as to what she observed and what she did when she returned. Her account of her actions on her return is, of course, inculpatory. Important in this regard, for reasons which will become apparent, is that there is no reason to doubt her observations of the deceased and, in particular, the absence of injury to the deceased’s neck. While it does not inevitably follow from the verdict, it is likely the jury accepted SW as having given an, at least, honest account. I would, in any event, in making my independent assessment of the evidence, accept the critical parts of her evidence. It follows that the applicant in statements in which he implicated her, or at least suggested she was present when the killing occurred, was lying.

18. [89]

    The evidence of the applicant’s relationship with PW came primarily from SW and SD.

19. [90]

    SW gave evidence that the applicant initially befriended PW as a result of the applicant’s interest in taking care of the horses owned by her and PW when he was about 14 or 15 years old. The applicant began attending their home more frequently, coming nearly every night after school and sometimes staying overnight. SW described the applicant and PW as “good friends” that would do “[p]retty much everything” together, including hanging around, talking and smoking marijuana. SW gave evidence that she had never seen PW assault or threaten the applicant and had never seen PW engaging in sexual conduct with the applicant or been told anything by the applicant in this regard.

20. [91]

    SD was 12 or 13 years old when he moved to Gerogery in 2005. That made him about a year older than the applicant. He lived across the road from the applicant and they became friends. He also became friends with PW, spending many evenings there and sometimes staying overnight. He said PW supplied both he and the applicant with alcohol and cannabis. SD said PW was “a little bit intimidating” and “very manipulative”. He recalled an occasion when the three of them were smoking cannabis together and PW said of the applicant:

21. [92]

    SD said he looked towards the applicant who had “a little bit of a smirk on his face”. SD said that PW took hold of his hair and put the knife to his throat. He said PW motioned with his head towards the applicant who got up and stood next to the door.

22. [93]

    SD’s evidence is supportive of not only a close relationship between the applicant and PW but also one in which the applicant was prepared to do PW’s bidding, even if it meant siding with PW against his more age-appropriate friend. The suggestion that the applicant had helped PW with something, inferentially nefarious, could potentially have related to the killing of the deceased. However, even if the suggestion did relate to the deceased, it does not distinguish between the applicant’s assistance in disposing the deceased’s body and the applicant’s assistance in killing the deceased. It should also be noted that SD had no recollection of a bonfire in the round yard, which would have presumably been proximate to the comment had it related to the death of the deceased. Consequently, no reliable conclusions can be drawn from PW’s utterance, beyond it reflecting the nature of the relationship between PW and the applicant.

23. [94]

    The agreed facts tendered at the applicant’s trial indicate that on 28 August 2019, police began forensic examination in the round yard at the Gerogery property. On the south-west side of the round yard, inside the last layer of tyres, an area of interest was identified as a result of police locating what appeared to be pieces of burnt material and charcoal. Across two days police recovered part of a human skull, other bones and bone fragments, including what appeared to be human teeth, gang nails, steel caps from work boots, black coloured cloth, cut strips of rubber, cigarette butts, nylon electric fence tape and a bundle of thin, tangled wires. DNA testing established the skull to be that of the deceased. Police divers searched two dams on the property for a knife, however no knives were located. The significance of this is discussed later in these reasons.

24. [95]

    Dr Denise Donlon, a forensic anthropologist, was called by the Crown. Of potential relevance to the murder, Dr Donlon identified a defect to the posterior surface of one of the deceased’s right ribs. She opined that it had the appearance of a puncture mark and could have been caused by something pointed, shortly prior to or after death. Dr Donlon also located defects to the posterior of two lower cervical vertebrae, in other words, to the rear of the neck. One of the vertebrae had a hinged, linear defect, and the other had a mark to the spinous process. Dr Donlon opined that the defects could have been caused by a cut to the bone and could have occurred either shortly before or after death.

The admissions

1. [96]

   As earlier indicated, an important part of the Crown case was the admissions made by the applicant.

2. [97]

   As referred to above in the context of SW’s evidence, on SW’s return to the home, and prior to seeing the body of the deceased, she observed the demeanour of both PW and the applicant was “normal”. There was, she said, “joking about it’s a lovely day for sunbaking”. She did not indicate who said what, although it is tolerably clear from the evidence that she regarded both the applicant and PW as joining in on the joke.

3. [98]

   That the applicant was joking with respect to the killing of the deceased suggests approval or at least acquiescence on his part as to what had occurred, potentially amounting to an implied admission. There was no real advantage held by the jury in evaluating this evidence given it was a hearsay account of what the applicant and PW had said and a description of their demeanour at the time. In evaluating the evidence the first observation I would make is that SW was giving evidence many years after the event. That presumably contributed to the lack of precision with respect to what was said and by whom, and with respect to what she could report as to the applicant’s demeanour. Even if the evidence is accepted, while consistent with the applicant having been involved, the applicant’s conduct cannot establish his liability for murder.

4. [99]

   That the “sunbaking” evidence cannot prove that the applicant committed murder does not mean it should be set aside. It establishes that the applicant was at the premises when SW returned, and inferentially was there at the time of the killing, and adds to the evidence that he was under the influence of PW. Beyond those matters the evidence is essentially neutral as to whether the applicant did assist in the killing, or merely approved of or was at least unconcerned with, PW having murdered the deceased.

5. [100]

   As set out above, SW’s mother, Ms W, lost contact with her daughter in 2001 when SW was 14 years old. She did not see her again until 2017. In around November 2017, Ms W moved into SW’s home. By that time, PW was in gaol for sexual offences against children, including the children he shared with SW. Ms W said that while she was staying with SW, she met the applicant who she understood to be a friend of PW and SW. The applicant would visit SW from time to time after work. Ms W did not know the applicant well, and told him that she did not trust him because he was PW’s friend.

6. [101]

   Ms W said that around a month after moving in with SW, she had a conversation with the applicant in which he said that he and PW “had to sort out some guy who’d been messing with, with their daughter”. In cross-examination Ms W agreed that it was possible the applicant said “[PW] had to sort this bloke out and he had to help him after that”.

7. [102]

   The reference to “sorting out” someone in the context of that person interfering with PW’s daughter can be taken as a reference to the killing of the deceased. While Ms W appears to have readily accepted the possibility that the applicant did not admit to murder, but only to assisting with the body, it is not possible from the written word to know whether she was expressing a real doubt about what was said, or rather a view more akin to an acknowledgment that anything is possible. Even if the witness had expressed certainty as to what was said, she was giving evidence of a conversation which took place four years earlier and in relation to which she had not made a statement until some two years after the event. Perhaps more significant is the somewhat bizarre nature of the admission. If it was an admission to murder there is no evidence as to what prompted it. There is nothing to explain why the confession was made to Ms W, with whom the applicant did not have a close relationship, and who had in fact told the applicant that she did not trust him. These matters have some significance in the context of the unreliability of other admissions made by the applicant, as discussed below.

8. [103]

   It is impractical to summarise the entirety of the intercepted telephone calls. In what follows, I canvas the various calls in which statements are made that have significance in advancing the contentions of either the Crown or the applicant including each of the calls it was submitted should be listened to by the Court.

9. [104]

   Prior to the applicant being made aware of the investigation, police spoke to his mother (Ms T), informed her they were investigating what they believed to be a homicide and asked if she knew the deceased. Ms T was asked about SW, PW and the applicant. Ms T immediately tried to call the applicant. When she did not reach him, she spoke to the applicant’s partner (MP) and, it appears, told her about the investigation. She then spoke to the applicant and asked him “[w]ho the fuck is [the deceased]” also referring to him by his nickname, “Tall Man”. The applicant denied any knowledge of him before being informed that police from Albury had called her and had also mentioned the names of PW and SW. It would appear the applicant lied with respect to his knowledge of the deceased. That lie does not, in my view, advance the case for murder. While it is not inevitably the case that a lie will be neutral as between offences of differing seriousness, the circumstances here are not such as to allow an inference that the lie was told out of a consciousness of guilt of murder as opposed to involvement in the disposal of the deceased’s body: cf The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [73]-[76], Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321 at [111] and Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22 at [83].

10. [105]

    The applicant interrupted the conversation with his mother to take a call from his partner, MP. This call was played to the Court. In it, MP asked the applicant if he had spoken to his mother to which the applicant indicated he had. The following exchange took place:

11. [106]

    Nothing turns on the reference to the event being two years ago in the above exchange. The applicant can be taken to have known the questions related to the deceased. The respondent submitted that it was open to the jury to regard the applicant’s denial to the question of whether he had killed someone two years ago as a lie. The respondent in particular points to a not insignificant pause before the applicant answered and what was submitted to be a change in tone. These were matters available to the jury, and for the jury to evaluate, in giving meaning to the response. It was, given the circumstances, and the matters pointed to by the respondent, open to the jury to regard the applicant’s response as dishonest.

12. [107]

    There are, however, limits to the weight that can be placed on the applicant’s response. There were other potential explanations for the applicant’s delay in answering his partner’s question. He was, on any view, involved in a serious crime. He may have paused to consider precisely what he should say. He may have been, and likely was, unsettled in making this determination. There was a degree of dishonesty in the blanket denial, in that he was not being completely open with MP. It was, therefore, open to the jury to determine the applicant was, at this point, being dishonest or at least obfuscating. Determining the extent of the dishonesty or obfuscation, and where the truth might lie, is more difficult and in my view could not be gleaned by listening to the recording. The advantage held by the jury in listening to this recording was, consequently, limited.

13. [108]

    After MP terminated the above call the applicant called his mother back and asked her to tell him what was said in her call with the police. Ms T told the applicant she had told police that she thought she had moved to Townsville with the applicant in 2007, so the applicant would not have been in Albury at the time. The applicant admonished Ms T for telling the police she knew PW and SW. The following exchange took place:

14. [109]

    The entirety of this call was also played to the Court.

15. [110]

    On the face of it, this call constitutes a clear admission to murder. Relatively little scrutiny is, however, required before questions arise as to the reliability of the admission. The Crown closed its case on the basis that PW was “the orchestrator of the death of [the deceased]”, his motive being that “under no circumstances could [the deceased] reveal that [PW] had been caught sexually interfering with his own daughter”. In the course of the passage set out above, the applicant not only professed to having killed the deceased but provided the motive for doing so, that being that “we” (the applicant and, presumably, PW) had caught the deceased touching PW’s daughter. This is contrary to the way in which the Crown closed its case and is unlikely to be true.

16. [111]

    It is noteworthy that the applicant’s admissions to the killing are in the singular. The applicant states, “I killed him” and “I took him out … and cut his throat”. Importantly, while using the singular “I” at these points, he uses the plural “we” when stating “[w]e found him one night touching” and “we burnt the body”. Thus, in the space of a few lines the applicant distinguished between joint involvement or responsibility and individual responsibility. This leads to a strong inference that the applicant’s admissions are to the effect that he alone killed the deceased. This again is very likely untrue. Even if the applicant had been responsible for the fatal wound it makes no sense that he would take sole responsibility for the death when on any view he was a child under the influence of an older, violent and manipulative man.

17. [112]

    In addition to the above concerns, and perhaps most significant with respect to this call, is that the applicant’s admission to killing the deceased is that he did so by cutting the deceased’s throat. SW’s evidence, as discussed above, was that she did not see any injury to the deceased’s throat or blood on his neck. This was in the context of her memory that his eyes were open and “[h]e had a small nick above his eye”. Given her recollection of this level of detail, and that a fatal wound to the neck would be significantly more obvious than the “small nick” she recalled, the possibility that SW overlooked such an injury to the deceased’s neck can be rejected.

18. [113]

    On the appeal, the respondent submitted that as the deceased was face-up, SW may have been unable to see an injury to the rear of the deceased. Such an injury, it was argued, would be consistent with the forensic evidence of some defects (including possible cut marks) to the bones at the rear of the neck. Whatever be the case in this regard, I do not regard it as possible to reconcile the admission to having cut the deceased’s throat with SW not having observed any blood or injury to the deceased’s neck. The attempt to reconcile the evidence by reference to a potential injury to the rear of the neck was not made at first instance, it seems to me, for good reason.

19. [114]

    While of less significance, another curious aspect of this call is the applicant’s statement that his mother’s sister came to the bonfire. The evidence given by SW that neither the applicant’s aunt nor uncle attended the bonfire suggests that this was not so.

20. [115]

    On the basis of the above, it is clear the applicant told a number of untruths in the course of this conversation. That is not unusual for persons who have committed serious offences. What is unusual is that, even if guilty of murder, the applicant lied as to having acted alone and having himself cut the deceased’s throat - lies which elevate the applicant’s culpability for the crime. When pressed as to why the applicant would confess to a level of criminality well exceeding his alleged responsibility, the respondent submitted that there were two available responses, albeit neither was relied upon at trial. The first was to reject the premise that the applicant lied as to cutting the deceased’s throat. I have already rejected that argument. The second argument was that “the guilt … has weighed on him, he’s unburdening himself”. The argument is unpersuasive. It is not clear why the applicant would not, while unburdening his guilt, give an honest account. It is also quite unclear as to why he would not put the events in their context which would make his involvement in them more understandable. Nor does it explain what appears to be an entirely unnecessary untruth in relation to his aunt’s presence at the bonfire.

21. [116]

    There are other aspects of this call which raise further questions. A short time after the exchange set out above, the applicant said, “… now you know what I was involved in”. Later again, he says with respect to MP: “She knows, she’s, she’s known about it for, since day dot. She knows exactly who I am”. Later again, the applicant’s mother tells the applicant that all she has asked is for him to be honest with her, to which the applicant responds that he will, when he sees her in person, but that “I can’t promise you you’re going to enjoy what you hear”. The claim that MP already knew about it was untrue. It follows that the claim that she “knows exactly who I am” was also false (at least insofar as the implication is she knew him to be a murderer). As to the prospect his mother would not enjoy what she was going to hear, the applicant had already told her he had cut a man’s throat. There was nothing more shocking the applicant could reveal. These utterances have the flavour of the applicant wanting his mother to believe there was more to him than she had previously understood and that he was in fact a ruthless killer. That desire is a more convincing explanation for the lies told by the applicant in this call than the explanation proffered by the respondent.

22. [117]

    The jury of course had the advantage of listening to this call. Having also listened to it, I do not regard it as possible to take anything from that experience that could be capable of explaining the concerns discussed above. No assessment of the applicant’s apparent sincerity or otherwise could assist in explaining the content of the applicant’s admissions. The result is that, whatever be the explanation for what I regard to be the lies told by the applicant in this call when admitting to the murder of the deceased, the admissions in this call, in my view, cannot be relied upon.

23. [118]

    The suggestion above that the applicant in the 15 August 2019 call sought to have his mother believe that there was more to his background or character than she had known receives further support from a call between the applicant and his mother on the following evening, 16 August. In this call the applicant says “[s]o you’ve got a rough idea of what I used to do mum?” and later, “I’ve been doing this a very long time … I’m very good at what I do” and “[m]um, I enjoy what I do”. The applicant again tells his mother, as he had the previous night, “you ain’t goin’ to like what you know” and that his partner, MP “hates it”. This again has the flavour of the applicant elevating the criminal activity in which he was involved. The assertion that MP “hates it” impliedly repeats the assertion she knows about this murder and also knows about others, which again appears to be false.

24. [119]

    A call between SW and the investigating detective on 17 August 2019 was played on the appeal. The applicant had by this time had contact with SW by text and was expecting to speak with him by telephone in the near future. She was given instructions as to the questions to ask the applicant.

25. [120]

    To the extent that playing this call was relevant to assessing the jury’s advantage with respect to findings relating to the credit of SW, as noted above no submission was made by the applicant on the appeal that SW’s evidence should not be accepted. It is noted in this regard that quite apart from having heard the recorded materials, the jury saw SW give evidence including under cross-examination on behalf of the applicant. As discussed above, I proceed on the basis that SW’s evidence can be accepted.

26. [121]

    The applicant and SW spoke on 18 August 2019 at 11.02am and discussed the police investigation. The applicant dismissed SW’s concern that they were “going to be in a lot of trouble”. The conversation was interrupted and then continued in a further call, the first 14 minutes of which was played on the appeal. The applicant speculated that the investigation had been prompted by PW having disclosed the offence while in jail and expressed an interest in contacting him. SW indicated that she wanted nothing to do with PW and said “I don’t want to get in trouble for this either”. The applicant responded, saying “[i]f me and you … keep it cool … we should be all right”. The applicant indicated that they should stick together, and not be concerned about PW. The applicant then told SW that the last time he had seen the deceased, the deceased was leaving for Western Australia. He said this was a couple of weeks before he himself left. Later in the call the applicant said to SW, “I don’t know what happened. Do you?” and intimated that SW should adopt the same version.

27. [122]

    The applicant’s assertion that when he last saw the deceased he was alive and that he did not know what happened was plainly untrue. It was untrue to the knowledge of both the applicant and SW, making it clear that it was the lie that he proposed that they both tell police. He said that his mother had already given the police this version. The respondent submitted that this was evidence of the applicant’s consciousness of guilt. The difficulty is that in enjoining SW there is no logical basis to distinguish between the guilt of the applicant and SW, the latter’s guilt being limited to the disposal of the body and the failure to advise the authorities of the crime over a number of years.

28. [123]

    Later again the applicant said, “if worst comes to worst, if you’re happy to do it I’m blowing it back on him” and that “even if we come clean now we can still say, ‘He, he was threatening us…’” and that “[i]f we ever spoke he would kill us and we knew he would”. Even if this version is accepted to be a lie (that not being entirely clear), reliance by the respondent on this version suffers the same problem as reliance on the lies discussed immediately above.

29. [124]

    The applicant in the course of this call also told SW, with respect to his mother, that “[s]he knows”. He explained that he had no choice but to tell her, describing himself as being “between a rock and a fuckin’ hard place”. It is not clear why this was so, particularly with respect to the version given by the applicant to his mother.

30. [125]

    It was submitted by the respondent that, having told his mother that he had killed the deceased, the applicant’s statement that “[s]he knows” necessarily meant his mother knew the applicant had murdered the deceased and was thus evidence of consciousness of guilt. The reasoning is, with respect, convoluted, and ultimately unsound. The applicant when speaking to SW had not said anything to her as to what his mother actually “knew”. What his mother “knew” was the version the applicant had given her the previous day, which was not true, or certainly not true in important respects. This is perhaps of no real significance as what SW would have understood the applicant’s mother as knowing was dependent on the version given by the applicant to SW. In accordance with the instructions given to her by the police, SW asked the applicant who was actually responsible for the killing. The following exchange took place:

31. [126]

    Thus, the applicant’s statement that his mother “knew” would have been understood by SW to have been knowledge consistent with the above. The respondent’s argument that the applicant’s statement to SW that his mother “knew” assisted its case of murder must be rejected.

32. [127]

    With respect to the above exchange, on the respondent’s case, the version given by the applicant to SW was, necessarily, a lie. It may be. Having listened to the call it is difficult to perceive anything that might have assisted the jury in evaluating the falsity of this version as compared with the other inconsistent statements made by the applicant.

33. [128]

    There are other aspects of this call which raise questions as to the applicant’s reliability. SW asked the applicant (in accordance with police instructions to her) whether he had done anything “like that with him before”, referring to PW, to which the applicant said he had not. He was then asked why PW had involved him, to which the applicant said he did not know but he thought that PW was “going [to] do me”, and “[h]e wanted me to do you”. The applicant also told SW that MP knew, and always had known. He said that PW had told MP as a way of getting rid of her. There was no rational reason for PW to want to kill the applicant or SW. MP did not know. These statements were all false or very likely false.

34. [129]

    The applicant also claimed that PW had a severe cocaine addiction and caused the applicant to become addicted to cocaine, matters of which SW was unaware. He also said PW was a contract killer with thousands of dollars stashed in the shed in Gerogery. It seems unlikely that PW had a drug habit of the severity described by the applicant without SW having been aware of it. Nor was there any suggestion by SW that he was a contract killer. These statements again appear to be lies. It is not apparent why the applicant told them.

35. [130]

    This call was played on the appeal. In it, the applicant tells his mother he had spoken to SW. The applicant describes himself to his mother as having nothing to hide before he, inconsistently, appears to reprise his earlier suggestion that he was significantly involved in crime, stating “there’s some things you still don’t know about me”. The applicant’s mother later asks whether the applicant’s father had rung him (the applicant’s parents having separated sometime prior). The applicant described his father as a “mystery”, stating he did not know whether “he’d … fuckin’ side with me or not”. It is, in my view, difficult to make anything of this conversation as it, presumably, proceeds on the shared understanding between the applicant and his mother that the applicant had cut the deceased’s throat, a premise which I have explained is very likely false. I do not perceive anything in the quality of the recording to be capable of affecting this conclusion.

36. [131]

    On 22 August 2019 at 3.55pm the applicant received a call from his uncle, B. His uncle told him the police had contacted him. The applicant responded that he knew the police were looking for him. Uncle B said he told the police that the applicant had lived in the area but moved “years ago”. The applicant feigned surprise when told that the police were investigating a murder. The applicant said he believed the deceased had gone to Western Australia and denied any knowledge of his murder.

37. [132]

    Following the above, at 4.03pm, the applicant called Albury detectives and told them that he was aware that a detective was asking members of his family about him and he was put through to the officer in charge. He told the officer in charge that he thought he had moved from Gerogery to Queensland in 2010, however expressed some uncertainty as to this. When asked, the applicant said he did not recognise the deceased’s name but did know a number of Williams. Later, he said he did remember the deceased as “Too Tall”. The applicant generally purported to have no knowledge of relevant events, although he did admit to having lived with PW before moving to Queensland. The versions given to both uncle B and the officer in charge were lies generally consistent with the version the applicant had discussed with his mother and with SW.

38. [133]

    The applicant spoke with his father at 4.59pm on 22 August 2019. He asked his father if he had received a phone call, presumably from the police. The applicant denied he was in trouble. The applicant, at least initially, proffered the false story that he knew nothing about the matter. He explained to his father that there was an investigation in relation to someone going missing 10 years prior and that he was in Queensland at the time. The applicant’s father said, “if he deserved to go missing, well you know some people go missing … ’cause they deserve to go missing”. This appears to have prompted the applicant to disclose more, stating “he might have touched a kid, I don’t know”. Later in the call, the applicant claimed the person who went missing was caught in the act of touching “the wrong little girl” and said he witnessed this himself. The latter claim was, as has been discussed, very likely untrue.

39. [134]

    The applicant then told his father that his uncle had “fucked my whole story up” as he had “spilled the beans” by telling the police that the applicant was in Gerogery “at the time”, inferentially of the disappearance of the deceased. He later claimed his uncle had told police that the applicant knew the deceased. This is curious as, at least to the applicant’s knowledge, his uncle had not told police these things, merely that the applicant had lived in the town some years ago, which was an incontestable fact. The applicant’s concern with the uncle having “fucked” his story up, perhaps inevitably, prompted the applicant’s father to question him as to whether he was more involved. It appears this might have been avoided but for the applicant’s false claim with respect to what his uncle had told police. The following exchange took place:

40. [135]

    The applicant’s admission is consistent with the Crown case but is not unambiguous. An admission to making a person “disappear” is arguably consistent with the applicant having assisted in destroying any trace of the body, as the applicant appears to have believed occurred. Against that, there were three persons involved in the disposal of the body. The reference to the applicant acting with one other is, in my view, more consistent with the applicant having acted with PW to murder the deceased.

41. [136]

    Later in the call the applicant told his father that his mother also knew what he had done, further strengthening the inference that this was an admission to murder. The applicant’s admission to his father was however inconsistent with that made to his mother insofar as the applicant’s admission to his mother suggested he had acted alone.

42. [137]

    The applicant subsequently sought to satisfy his father that there was no evidence as it was possible to destroy, inferentially a body, in a fire. Apparently against the possibility that the investigation did establish his guilt, or at least implicate him, the applicant said “[s]o there’s people waiting to hear from me if it goes south. I’m gone”. With respect to this plan he said, “[i]t’s in play, it’s already waiting”. The applicant told his father, as he had told his mother, that there was more about him that they would find out, stating, “you’re going to find out some shit that you probably won’t like”. These parts of the call replicate the applicant’s statements to his mother, suggesting, again without foundation, significant involvement with other crimes and criminals.

43. [138]

    The portion of the conversation between the applicant and his father extracted above stands out as the one admission consistent with the applicant having assisted PW in having murdered the deceased and thus the one admission consistent with the manner in which the Crown put its case at trial. In hearing this conversation, the jury had an advantage in assessing its veracity. Ultimately, this call, and the jury’s advantage with respect to it, are to be weighed with all the evidence, including, in particular, the other admissions.

44. [139]

    The applicant spoke to his father the next day at 6.51pm. The call was played on the appeal. The applicant’s father indicated he had spoken with the applicant’s mother and they were both supporting him. His father expressed a reluctance to speak on the phone as it might be intercepted. The applicant told him, in essence, that it was safe to speak, as he had changed his phone. This appears to be untrue. The applicant’s father also questioned the applicant as to whether he was telling the truth, stating, “you always been full of shit”. In response to this the applicant said “[n]o, this, this is totally different, Dad”. The applicant can be heard to sigh before saying this. This, with the audio generally, was available to the jury to assist in the evaluation of the reliability of the applicant’s statements to his father.

45. [140]

    The applicant then told his father “I can’t tell you everything you know that right”, stating that he could tell him “fifty per cent”. Later in the call, the applicant said, “I’m not the stupid little boy everyone thought I was” and then “[d]ad you have no fucking idea but you’re about to”. A short time later the applicant’s father referred to what the applicant did to “this person”, leading to the applicant interjecting and saying “[p]eople”. The applicant then said “[n]o, no, no. More than one” and then “[t]here’s quite a few and you’re going to be very surprised if it all comes out”. These aspects of the conversation appear to, again, reflect the applicant’s desire to impress on both his mother and his father his competence in the context of his criminal conduct, that is, other murders, when there can be no realistic suggestion he was so involved.

46. [141]

    While the jury had the benefit of listening to this call, it is difficult to discern how that experience may have founded a basis on which the statements of the applicant, submitted to be reliable indications of his guilt of murder, could be distilled from the statements identifiable as falsehoods.

47. [142]

    The applicant was called by his father at 6.10pm the day following the previous call. The call was played on the appeal. His father asked him if he remembered introducing him to someone called “Too Tall”. The applicant responded, “I don’t know who you’re talking about”. This appears to have been a statement made against the possibility the call was being intercepted and was a transparent attempt to deflect the police in this event. A short time later the following exchange took place:

48. [143]

    And a short time later in the call:

49. [144]

    The respondent submitted that there was a quality to the recording that gave the jury an advantage. That advantage can be accepted but needs to be assessed against the reality that the applicant was almost certainly lying, at least in part, having told his father he cut the deceased’s throat.

50. [145]

    Two days later the applicant spoke with his mother. He chastised his mother for worrying about his situation. He told her: “If I get done, I get done. I’m going away. So what? There’s not much I can do. I can’t change the past.” As in many other conversations, the applicant accepts responsibility for a crime of some seriousness. Arguably, it is a crime of a seriousness beyond the disposal of a body. That, however, is to be seen in the context of the applicant having already established the common understanding with his mother that he had committed murder. The applicant interrupted this call to speak with SW. He then resumed the conversation with his mother, telling her that he had spoken with SW. When asked whether SW was involved the applicant said, “[w]e all are”. Notably, he did not distinguish between SW’s involvement and his own. Nor, however, did he suggest his involvement was less than murder, having previously admitted this to his mother.

51. [146]

    That afternoon the applicant spoke with his younger brother. This call was played on the appeal. Neither party made any submission that there was anything apparent from listening to this call that resulted in any particular advantage to the jury. The applicant’s brother told him that he, and their mother, thought the applicant was lying. The applicant denied this to be the case. The applicant said rhetorically “[w]hat happens if they drag that dam”, having said the murder weapon was there. The dam was in fact searched without finding a murder weapon. Given the lapse of time between the murder and the search there may be a question as to what weight can be put on the failure to locate the weapon. At trial, however, the Crown Prosecutor accepted that the applicant had probably lied as to the presence of a knife in the dam. The applicant also told his brother that MP will “back” him “’cause she was there” and knew exactly what happened. This was clearly untrue and as a result casts doubt on the applicant’s apparently earnest protestations that he was being truthful.

52. [147]

    The applicant spoke with his mother on 27 August 2019 at 5.48pm. For reasons that are not apparent the applicant denied that he had told his father that he had cut the deceased’s throat, stating “I didn’t tell him anything like that”. This was an odd lie to tell, as it was obvious that the applicant’s mother had obtained the information from the applicant’s father. The applicant said that what he told his father was that it was “done quick, painless like a sheep”. While this is consistent with the cutting of the deceased’s throat, it was, firstly, not what he told his father, and secondly, came after the applicant denied telling his father he cut the deceased’s throat. When pressed, the applicant said:

53. [148]

    On one view this utterance, while not reconciling the various versions given by the applicant, could perhaps explain them. That is, the applicant was unwilling to disclose exactly how the deceased was killed, leading to him giving various different versions. Against this, had the applicant not wished to disclose the actual mechanism by which the deceased was killed, he could have given a consistent but false version. More problematic in the acceptance of this theory is that there is no explanation as to why the applicant would seek to conceal the method of killing. This is particularly so in a context where the applicant admitted to his parents a role in the murder which falsely elevated his culpability and otherwise lied as to his involvement in other serious crime.

54. [149]

    A few days later, on 31 August 2019 at 7.13pm, the applicant again spoke with his mother. He told her that he was contemplating calling Crimestoppers. He had, at this time, already called Crimestoppers, apparently in Queensland, and was directed to call New South Wales. The applicant said he was scared of what PW would do, but that he was “fully prepared to tell them what happened and what he did”. This appears to be the first occasion on which the applicant pointed to PW as being responsible for the murder. No attempt was made by the applicant to reconcile what he was now saying as to PW’s responsibility with his earlier versions to his mother.

55. [150]

    The applicant engaged in a further conversation with his brother on 1 September 2019 at 8.40am. The call was played on the appeal. In this call, the applicant told his brother that he and SW both planned to give statements clearing their names. He explained that PW used to threaten him with knives and that he was scared of him. He said that he proposed to tell the police what he went through living with PW, and that if anyone had done anything it would have been PW. He said he would maintain that the deceased was still there when he, the applicant, left.

56. [151]

    No submissions were made as to any benefit the jury enjoyed in listening to this recording. The content of the call is such that, while indicating the applicant proposed lying to the police, it does not take matters any further.

57. [152]

    A few minutes after speaking with his brother the applicant spoke with his father. This call was played on the appeal. In this call, the applicant discussed going to the police, which was encouraged by his father. His father asked him about his involvement, to which the applicant responded:

58. [153]

    This was the first time the applicant gave this version. It is inconsistent with PW’s motive for killing the deceased. It is yet another lie. The applicant can be heard crying in the context of having given this version. He later refers to PW having produced a 9mm Glock pistol. This also appears to be a lie given the absence of support for it from any other evidence. The Crown Prosecutor at trial accepted the applicant probably lied about this gun. While the applicant’s tears in this call might ordinarily be regarded as lending veracity to his representations, it does not do so here where the representations are palpably false.

59. [154]

    The applicant in this call did say: “I don’t give a fuck about what happens to me. I know what I did. I did the wrong thing.” While this is a further admission, its weight is to be viewed in the context of all the evidence.

60. [155]

    The applicant expressed his fear of informing police about PW. He nonetheless resolved to call the police and tell them of PW’s responsibility for the killing.

61. [156]

    Having spoken with his father, the applicant called the police later that morning. The applicant at first indicated that he wanted protection for his family before providing any information. Despite the lack of any assurance in that regard, the applicant told the police about PW’s capacity for violence. He maintained that when he left the property the deceased was still there. Thus, the applicant continued his attempt to exculpate himself by restating the false version discussed in some of the calls with his family and given to the police in the call on 22 August. It is arguable that, had the applicant’s involvement been limited to the destruction of the body, and knowing the police were investigating a murder, he would not have given this false version, suggesting that the lie was told out of a consciousness of guilt. The availability of such an inference is to be evaluated in the context of all the evidence.

62. [157]

    The applicant took part in two records of interview with the police, on 5 and 6 September respectively. The first interview took place over approximately three and a half hours. The second took place over about an hour.

63. [158]

    The first interview was accurately described by the respondent in written submissions as “long, rambling and inconsistent”. The applicant admitted to living in Gerogery and at some stage moving to live with PW and SW. Initially, he claimed he had no knowledge of the deceased’s murder until being told by police shortly before the interview. When confronted with the fact that police had been intercepting his phone (establishing he had been discussing the murder for some time), the applicant said that he had wanted to speak to police, but was threatened two days prior by a man acting on behalf of PW who told him to keep his mouth shut. When confronted with his admission to his mother of having killed the deceased, the applicant responded with a long, and at times incoherent, explanation of how PW had told him that if there was ever an investigation, he was to admit to having been responsible. He said that contrary to a knife being used, fishing line had been used to strangle the deceased. This would still appear to be (unbeknownst to the applicant at the time) inconsistent with SW’s evidence.

64. [159]

    A call between the applicant and his father was played to the applicant in which the applicant admitted to killing the deceased. The applicant said that his father was going to be the person, along with his brother, that was going to be the most difficult to convince that he had murdered the deceased, but he endeavoured to do so as a result of the threats made by PW. He admitted to helping build a fire the night the deceased disappeared but maintained he did not know at the time that the deceased had been killed.

65. [160]

    The lies told by the applicant were, at points, elaborate, or perhaps more accurately, bizarre, particularly regarding PW. The police at one point stopped the applicant in the course of a particularly discursive response to ask him what he was talking about. The applicant embellished his account with odd detail, such as him having had “mac and cheese” the night the deceased disappeared (nine years prior). He told pointless lies, including that he had told his mother PW had sexually abused him, his mother having told police shortly before the interview that he had not made any such disclosure. The applicant claimed to have make-up on his wrist to cover a scar where he was cut with a knife by PW. Later, he said he got a tattoo over it. Such were the applicant’s responses, the interviewing officer, perhaps unsurprisingly, asked the applicant whether he was receiving treatment, or had in the past received treatment, for a mental illness. While the applicant denied this, he said he was addicted to methylamphetamine and had had a shot before attending the interview. (In his evidence, the officer said he did not observe any signs of intoxication but also accepted that addicts are sometimes capable of covering their drug use.)

66. [161]

    Insofar as the applicant admitted the offence, and that his admission would result in him going to gaol, he qualified this by saying that it was necessary for him to make the admission to keep his children safe, in keeping with his admission being made on instructions from PW. The applicant maintained this position for most of the interview. Later in the interview, after some pressure was brought to bear on him by interviewing police, the applicant modified his position. The applicant gave the following answer:

67. [162]

    The respondent pointed to the applicant’s presentation at this point in the interview. The applicant was crying and clearly emotional. Observations of his state were clearly available to the jury providing some advantage in assessing the reliability of the applicant’s answer. Whatever the applicant’s state may say about his veracity, however, this version appears to be largely nonsense. As previously observed, it is unlikely there was a gun involved at all. Even if there was, it makes no sense that PW was trying to shoot the applicant. There was no reason to throw a knife in the dam (which was never found) after PW had shot the deceased. Having shot the deceased, there was nothing stopping PW from carrying out his original intention to shoot the applicant. Nor could this version be reconciled with what the applicant had told his mother or his father.

68. [163]

    Following the conclusion of the first interview, the applicant was arrested. The next morning he was taken before a magistrate for the purpose of his extradition to New South Wales. He obtained legal advice and requested police conduct a further interview. The applicant told police, presumably based on a degree of insight into the obvious quality of the lies he had told the previous day, that he wanted to “come clean”. He said that he was forced to kill the deceased and did so by strangling him with fishing line. He had apparently told the police this prior to the interview commencing. In the interview he said that as this was too slow, PW stabbed the deceased in the chest.

69. [164]

    Later the applicant said, having obtained the fishing line, he climbed on top of the tyre wall of the round yard as instructed by PW. He said PW and SW were “having a bit of a laugh about it” and saying it was “going to be fun”. The applicant said SW told PW to “[d]o it already” upon which PW told the applicant to jump onto the deceased. He said he wrestled the deceased to the ground and PW stabbed the deceased, killing him. He then said he was unsure whether the fishing line was used.

70. [165]

    The version given in the second interview is more plausible than earlier versions given by the applicant. A role in which the applicant assisted PW to kill the deceased is more in keeping with PW having the motive to kill the deceased and with what is known about PW and his relationship with the applicant. It is also more consistent with PW’s confessions to having killed the deceased, albeit PW did not suggest he had assistance.

71. [166]

    The respondent pointed to aspects of this interview such as the applicant’s vivid description of the sound of bone being crushed when the deceased was stabbed as a matter available to the jury. My own impression of the applicant, having watched significant parts of the interview, is that there was no doubting his earnestness based on his presentation. The difficulty in giving weight to the applicant’s presentation is that whatever his demeanour may have conveyed, the account was fantastic. Several matters lead to this conclusion.

72. [167]

    The applicant claimed, falsely, that SW was present at the time and in fact gave the go ahead for PW to do it. The applicant in general elevated the role of SW, asserting that PW did not act without her approval. This significantly altered the role of SW, almost certainly falsely. This may have been the applicant’s response to learning, in the course of the interviews, that SW had been working with the police and as such, had betrayed him. Whatever the reason, it was a lie and one which underpinned the account. As part of his narrative, the applicant said that either he or the deceased was going to be killed. Again, this makes no sense given the absence of any motive for PW to kill the applicant.

73. [168]

    With respect to the means by which the deceased was killed, while strangulation with fishing line may be perhaps less obvious than a cut throat, it would nevertheless be expected that SW would have seen marks on the deceased’s neck. With respect to this aspect the applicant did, later in the interview, resile from any clear memory of having used fishing line. This is to be contrasted with his apparently clear memory of having done so immediately prior to and at the commencement of the interview. The means by which the applicant said the deceased was ultimately killed was by PW stabbing him to the chest. This may receive some support from the injury to the rib referred to by the forensic anthropologist. Against this, SW said that when she was shown the deceased’s body, the tarpaulin was pulled back to a point above “his hips or his waist”. She did not notice anything about his chest. While PW had told SW to give him an hour to “clean up” before returning home, it is, in my view implausible that PW would have put clean clothes on the deceased’s body. This is particularly so given PW’s willingness to show SW the body and enlist her help in disposing of it. Further details, likely false, emerged as the applicant elaborated on the events during the interview, such as PW having a 9mm Glock pistol. Plainly, the applicant’s second interview with police was comprised of more lies.

74. [169]

    The respondent, while pointing to aspects of the applicant’s presentation and features such as the applicant’s description of bone being crushed, did not suggest that there were any admissions in the police interviews that could be regarded as reliable. That position was both understandable and inevitable, given the difficulties with the applicant’s accounts. While perhaps not strictly relevant, the primary impression gained by me from my viewing of the portions of the interviews it was submitted the Court should watch, was the increasing discomfiture of the police as they sought to digest the applicant’s responses.

75. [170]

    Before leaving the interviews with police, it is necessary to deal with a further submission made by the respondent. It was submitted that the applicant exhibited a different tone in speaking with the police when compared with the telephone intercept recordings. This difference was a further matter available to the jury to evaluate and thus an aspect of their advantage over this Court. I do not, however, regard it as providing any meaningful advantage. It is to be expected that people will present differently in different situations. In a formal record of interview with police, with the knowledge that it is being recorded, it is to be expected that most people will look and sound different when compared with conversations with persons with whom they are close or at least familiar, which they believe to be private. It is consequently difficult to ascribe significant weight to the advantage of the jury in being able to compare the applicant’s presentation in the police interviews to that in the recorded telephone conversations. Such weight as it can be given is, in this case, overborne by comparing what the applicant actually said with what can, in the context of all the evidence, be accepted to be true.

Other statements of the applicant bearing on his reliability

1. [171]

   In addition to the admissions to having killed the deceased, the applicant also made an admission to having stabbed PW. The applicant made contact with JW (PW’s first wife) via Facebook on 31 August 2019. This resulted in a telephone conversation between the applicant and JW on 1 September 2019. JW told the applicant that her son, who was then 28, was “really screwed up from what [PW] did to him” and that “[i]f it makes you feel any better I punched him in the face once”. She said that the applicant responded, “I could do one better than that, I actually stabbed him”. She said the applicant went on to say that he had stabbed PW in the stomach and “somehow I missed all the main arteries”. This was almost certainly untrue. Neither JW nor SW had any recollection of PW having received such an injury. The Crown Prosecutor’s closing address acknowledged the applicant had probably lied in this regard.

2. [172]

   In the call with his mother on 16 August 2019, discussed above, the applicant also told his mother he had a New South Wales gun licence. The applicant claimed at one point that he had a security licence. The evidence of the officer in charge established these statements to be untrue. There was a multitude of other claims that were very likely untrue, such as claims that PW had, over the years, sent people to intimidate the applicant, in effect telling him that PW was still watching him. Clearly, the applicant was prone to telling lies, including lies about both consequential and inconsequential matters.

Determination

1. [173]

   PW murdered the deceased. The applicant was involved in the events surrounding the murder of the deceased, at least to the extent of disposing his body and remaining silent in the years that followed. Whether it is possible to reason from that involvement, the opportunity available to him as a result of his presence (at least at the residence), and his relationship with PW, to the conclusion that the applicant is guilty of murder, is dependent on what can be drawn from the admissions made by the applicant. The reliability of those admissions is at the centre of this application. At the trial, the Crown Prosecutor in closing set out seven different versions given by the applicant. They were as follows:

   1. (1)

      The applicant did not know anything about the murder. This was said in some phone calls, including to the police and in the first interview with police. This version was a lie.

   2. (2)

      The applicant cut the deceased’s throat. The applicant told his mother and father in the intercepted telephone calls that he had “cut” or “slit” the deceased’s throat.

   3. (3)

      The applicant killed the deceased in a fight to the death after being told by PW to “[f]ight and kill or you die now”. This was first raised by the applicant in a call with his father on 1 September 2019. This version involved the applicant being threatened by PW with a 9mm Glock pistol. (A variation of this in which it was either the deceased or the applicant who would die was raised in the second police interview.)

   4. (4)

      The version told by the applicant in the first interview with police, in which PW told the applicant 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 with a job, or I put you where I’m, in the same spot”. The “job” was to kill the deceased.

   5. (5)

      The version told by the applicant in the second interview with police, that it was SW who wanted PW to kill the deceased. He said SW yelled out to him and PW to “[d]o it already, it’s taking too long”.

   6. (6)

      PW shot the deceased. In the first interview with police, towards the end of the interview, the applicant said that PW shot the deceased. This was said to have occurred after the applicant argued with PW and PW threatened the applicant with a knife. On this version, the deceased stood up for the applicant. PW then used his 9mm pistol to shoot the applicant, but the deceased jumped in between them and was fatally shot in the neck.

   7. (7)

      In both police interviews, the applicant gave a version involving fishing line being used to kill the deceased. At one point in the first interview, the applicant suggested PW used it to kill the deceased, having told the applicant to fetch it. At a later point in the interview, the applicant 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 story evolved to the applicant grabbing the deceased 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 he stabbed the deceased in the chest.

2. [174]

   Clearly, these versions cannot all stand together. In this regard, the respondent submitted, correctly, that it did not have to prove the mechanism by which the deceased was killed, the applicant’s role, or the circumstances surrounding the formation of any joint criminal enterprise (either resulting in liability directly or by way of extended joint criminal enterprise). The Crown’s difficulty in doing so, however, redounds in a difficulty in proving the case against the applicant.

3. [175]

   The Crown Prosecutor at trial closed the Crown case on the basis that the applicant was given three options, consistent with version (4) above. It was further submitted, based on version (7), that the applicant “went to the shed, got some fishing line, went to the round yard, sat on the tyres as he’d been told to do, and waited”. The Crown Prosecutor submitted that the applicant then, at the direction of PW, jumped on the deceased, bringing him to the ground, and that PW then stabbed him to death. However, the basis on which these versions were selected as reliable from amongst the litany of lies is not entirely clear. Plainly, it is not sufficient, in order to find the verdict was unreasonable, simply to find fault in the logic of the closing address. Nonetheless, it is telling. It highlights a difficulty in determining what weight can be put on the various statements made by the applicant.

4. [176]

   Nor can the difficulty be ameliorated simply by pointing to the puzzle created by the applicant’s many and varied admissions. As regards this puzzle the respondent reiterated a submission made in writing on the first appeal to this Court to the effect that acceptance of the applicant’s argument would have the result 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 killing, so as to escape liability for the crime that had been committed”. The submission is not easy to fathom. It will, in every case where an admission has been made but where guilt is contested, be necessary to consider the reliability of that admission. There is no logical connection between the reliability of the applicant’s admissions and what an accused person might do in some other case. Nor was there any evidence or a submission directed to the applicant having engaged in a shrewd plot to subvert the case against him. What is required in the present case is to find a means of reasoning from the applicant’s various admissions, considered in the context of all the evidence, including the significant circumstantial evidence supportive of the Crown case, to satisfaction of the applicant’s guilt.

5. [177]

   Throughout the morass of lies, there was only one direct admission to murder in the course of the many admissions made in the intercepted calls that may plausibly have been true. That was the applicant’s admission to his father on 22 August 2019, that he and one other person had made the deceased “disappear”. While I accept this to be, in context, an admission to murder, one reason this version may stand out amongst the others as plausible is that it lacks detail. When the applicant did, in the second interview, give a version consistent with this version in which he assisted PW in killing the deceased, the detail then given marked the account as false. Further, as discussed above, there are other parts of this call in which the applicant told falsehoods. These are capable of casting doubt on the veracity of the admission made in this call. Quite apart from any doubt created by lies told in other parts of this call is the issue of how this particular admission might be treated as reliable in the context of the many other unreliable admissions.

6. [178]

   Insofar as SW’s mother, Ms W, also gave evidence of the applicant having made a direct admission to involvement in the murder, putting aside any issue with respect to the reliability of her evidence, the circumstances of that confession are, for the reasons discussed above, bizarre. One explanation may be that the applicant wished to, for whatever reason, associate himself with PW and his willingness to engage in murder. Whatever the explanation, the circumstances in which that confession was made, the subsequent evidence demonstrating the applicant’s willingness to attribute to himself acts that caused the deceased’s death, and the absence of any detail against which the statement could be tested, make it difficult, in my view, to put weight on this confession.

7. [179]

   Ultimately, the submission made by the Crown was that it was possible to take from the various admissions a central truth which was, to use my own paraphrase, cloaked in detail which was not necessarily true. By way of example, in relation to the applicant telling his parents he cut the deceased’s throat, it was submitted that, if this did not in fact occur the applicant “floridly describe[d] a mechanism that didn’t happen for something that actually did happen because he wanted his parents to know”. It was submitted the applicant wanted to obtain the support of his parents, leading him to elaborate and exaggerate the detail. As the Chief Justice said in response to the submission, it is “an incredibly irrational pathway”. Had the applicant wanted the support of his parents, he was far more likely to invoke their sympathy and consequently their support by telling them what on the Crown case was the truth - that he was involved, but the killing was orchestrated by PW.

8. [180]

   While it was not put this way, the high point of the Crown case is, in my view, that the applicant implicated himself in the offence in intercepted telephone calls and then told lies to the police as to why he did so, eventually confessing his involvement to the police in a further false version. Can the applicant’s lies in his interviews with the police with respect to his earlier (false) admissions found a conclusion that the applicant murdered the deceased in some shape or form? Suspicion abounds. But so does uncertainty. Ultimately, I cannot reason from my inability to understand the applicant’s actions to satisfaction of his guilt. It is not helpful to speculate on the reasons, nor necessary to draw a positive conclusion that it occurred here, but experience shows people do, on occasion, make false confessions. Indeed, what can be said is that the applicant did make false confessions, at least as to the detail.

9. [181]

   I do not regard the advantage held by the jury as capable of resolving the doubt which I hold. The difficulty of placing weight on what may be perceived by listening to or listening to and watching the recordings when set against the falsity of the accounts, has been discussed above. My own view is that making one’s way through the morass of admissions in a manner that allows acceptance of some parts of some admissions and the rejection of others based on perceived differences in the applicant’s demeanour has the feel of navigating the evidence with a divining rod. In the context of this case, that conclusion is reached based on the conflicting evidence prior to having any particular regard to the caution to be applied in the context of demeanour assessments, as discussed in The King v ZT at [75].

10. [182]

    Nor can the jury’s advantage in determining the meaning to be attributed to various words or phrases account for the doubt which I experience. Where there was a contest as to the meaning of words such as “missing” or “making a person disappear” I have largely preferred the more inculpatory interpretation of the applicant’s statements. The difficulty, as I have sought to demonstrate, is reconciling the inculpatory version with other inculpatory versions and the evidence of what actually did or did not occur, or was likely or unlikely to have occurred.

11. [183]

    I do not forget the advantage of twelve individuals in a collective decision making process. Indeed, authority requires that regard be had to this advantage. I also accept that it might be thought that there is an arrogance in a judge preferring their own view on a question of fact over the view formed by twelve jurors. That a jury of twelve brings their knowledge of human behaviour to the task is not, however, a panacea for a verdict based on evidence that is not able to support it. While acknowledging the advantage held by the jury, the one factor I can call upon that acts as something of a counterbalance is the discipline involved in providing reasons for my conclusion. Having undertaken this process, this is a case in which I find myself having been unable to write to another conclusion: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [108].

12. [184]

    I described this matter at the outset as unusual. Ordinarily, statements against interest will stand out amongst other self-serving statements as being far more likely to be the truth. That, for the reasons I have given, is not the case here. Ultimately, in my view, the conclusion that the applicant has been established to be guilty beyond reasonable doubt requires guesswork rather than the rational drawing of available inferences from the available evidence. I am not satisfied of the applicant’s guilt. Nor am I of the view that any advantage held by the jury is capable of resolving that doubt.

13. [185]

    On establishing that a verdict is unreasonable an applicant will ordinarily be entitled to an acquittal: Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8; The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11. There is no reason in the present case why that order ought not be made and the applicant acquitted of murder. There remains available an alternative verdict of manslaughter which was available to the jury and is potentially available to this Court: Criminal Appeal Act, s 7(2). Based on my reasoning with respect to the offence of murder, however, it follows that there is no basis on which this Court could substitute a verdict of manslaughter.

14. [186]

    I propose the following orders:

    1. (1)

       Leave to appeal is granted.

    2. (2)

       The appeal is allowed.

    3. (3)

       The applicant’s conviction is quashed and a verdict of acquittal is entered in its place.

15. [187]

    YEHIA J: I have had the considerable advantage of reading the draft judgments of Bell CJ and Dhanji J. Their Honours have summarised the evidence and conducted a comprehensive analysis of the multiple admissions made by the applicant in respect of his participation in the murder, for which I am grateful. It is therefore unnecessary to repeat or replicate that task.

16. [188]

    The conclusions reached by Dhanji J accord with my own. As Dhanji J has explained, the Court listened to several conversations captured by telephone intercepts. Immediately following each recording, the parties made submissions about the reliance placed on them. The process adopted during the hearing was helpful both in understanding and evaluating the submissions made in relation to the advantages enjoyed by the jury. Like Dhanji J, in addition to the recordings played in court, I have listened to other recordings (including portions of the police interviews) which were not played in court that had been identified by the parties.

17. [189]

    In undertaking an independent assessment of the evidence, I have had regard to the prosecution’s circumstantial case and the admissions made by the applicant, upon which the prosecution relies heavily. The prosecution does not of course have to prove the mechanism by which the deceased was killed. However, proof of the applicant’s guilt requires credible and reliable evidence capable of satisfying the high standard of proof of beyond reasonable doubt.

18. [190]

    The applicant’s admissions to his participation in the murder fall far short, in my view, of establishing his guilt to that requisite standard. The applicant gave several (conflicting) versions of the circumstances relating to and the mechanism by which the deceased was murdered. Some of those versions were entirely implausible and inconsistent with objective evidence.

19. [191]

    In addition, and of considerable significance, is the fact that the applicant’s admissions, in some instances, elevated his role in the murder by using language which strongly suggested that he committed the murder alone (which is inconsistent with the prosecution case) and by claiming that he had cut the deceased’s throat which is inconsistent with other evidence in the prosecution case.

20. [192]

    Having undertaken an independent assessment, I am of the view that the discrepancies and inadequacies in the evidence give rise to a reasonable doubt. For the reasons expounded by Dhanji J, that doubt is not resolved by the jury’s advantage in seeing and hearing the evidence, even having regard to the jurors’ collective wisdom.

21. [193]

    I agree with the orders proposed by Dhanji J.