R v Bikic

GILES JA : The appellant was indicted on two counts of murder. By the first count it was charged that on 5 April 1998 at Bankstown in the State of New South Wales he murdered Orhan Yildirim. By the second count it was charged that on 5 April 1998 at Bankstown in the State of New South Wales he murdered Mehmet Unsal.

The trial before Hidden J and a jury began on 7 March 2001. On 14 May 2001 the appellant was found not guilty of murder but guilty of manslaughter on the first count and guilty of murder on the second count. On 6 July 2001 he was sentenced to an effective term of imprisonment until 5 September 2016 with a non-parole period to expire on 5 September 2011.

The appellant appealed against the convictions. He did not appeal against the sentences.

The grounds of appeal as filed were - “1. A miscarriage of justice was caused by the absence at the trial of evidence to be adduced on the appeal. 2. The trial judge erred in his directions to the jury as to the elements of the offence of murder. 3. The trial judge erred in failing to leave the defence of provocation to the jury in respect of the death of Mehmet Unsal. 4. The trial judge misdirected the jury regarding the evidence as to the reputation of Mehmet Unsal and Orhan Yildirim. 5. The trial judge erred in failing to provide any assistance to the jury in respect of the drawing of inferences. 6. The convictions are unreasonable.”

By the hearing of the appeal the submissions in support of ground of appeal 3 had taken up the defence of self-defence in addition to the defence of provocation. At the hearing of the appeal ground of appeal 4 was abandoned and a further ground of appeal was added; it can conveniently be regarded as ground of appeal 2A, and was - “2A. The trial judge erred in his directions to the jury as to the elements of the offence of manslaughter.”

Yildirim and Unsal were shot in an affray at 71 Allum Street, Bankstown (“the premises”) on the evening of 5 April 1998. On the Crown case, the appellant and eight other men went to and were at the premises to ambush Yildirim and Unsall, taking guns and rope with which to tie them up; when Yildirim and Unsal entered the premises, there was the affray ending in their deaths. The other men were Raymond Curry, Goran Mackic, Mark May, Carl Mullany, Satuala (Nance or Nances) Nanai, Zeljko (Steve) Nitrovic, Russell Oldham and Arben (Benny) Puta.

The appellant underwent an earlier abortive trial. He and six of the other men were charged with the murders of Yildirim and Unsal, and went to a joint trial before Hidden J and a jury commencing on 3 April 2000. The six men were Curry, Mackic, Nanai, Nitrovic, Oldham and Puta. May and Mullany received indemnities against prosecution and gave evidence for the Crown. On 13 June 2000 the appellant was discharged from the joint trial. The joint trial continued in relation to his former co-accused, and all were found guilty of murder or manslaughter.

At the appellant’s separate trial he formally admitted a number of matters, including that Curry, Mackic, Nanai, Nitrovic and Oldham went to the premises on the evening of 5 April 1998; that Puta was present when they arrived; that Yildirim and Unsal then entered the premises; that there was a violent struggle; and that Yildirim and Unsal were shot and killed. May and Mullany again gave evidence for the Crown, in which they admitted their presence at the premises and their participation in the affray. The killings of Yildirim and Unsal, and the general participation of the appellant’s former co-accused and of May and Mullany, were common ground.

The Crown contended that the appellant also went to the premises and participated in the affray. The Crown did not assert that the appellant had shot either Yildirim or Unsal; on the Crown case, the appellant was criminally responsible for the murders of Yildirim and Unsal as a party to a joint criminal enterprise in pursuance of which the killings occurred. The case was left to the jury as one in which the central issue was whether the appellant was present at the premises at the time of the killings, and the jury was instructed that he should be found not guilty if they were not satisfied that he was present. It was expressly stated in the appeal that “the Crown case was never put on the basis of [the appellant] being anything other than present at the premises”.

May did not know the appellant and did not identify him as a person present at the premises on the evening of 5 April 1998, although he gave a description of a man who went to the premises and participated in the affray whom the Crown suggested was the appellant. Mullany did know the appellant, and identified him as a man going to the premises and participating in the affray. None of the appellant’s former co-accused gave evidence at the appellant’s separate trial.

The grounds of appeal were of three kinds: first, errors in the trial judge’s summing-up in relation to questions other than the central issue (grounds of appeal 2, 2A, 3 and 5); secondly, unreasonable verdicts with particular reference to the central issue (ground of appeal 6); and thirdly, miscarriage of justice in the light of further evidence. The evidence in outline

In the two month trial there was a great deal of evidence. In the way the appeal was conducted, it is not necessary to canvass it all in detail. What follows is against the background that the appellant’s formal admissions included - “3. The premises at 71 Allum Street, Bankstown were, as at 5 April 1998, residential premises and they were leased to Arben Puta and were the residence of Arben Puta and other persons. 4. The persons Steve Nitrovic, Raymond Curry, Goran Mackic, Russell Oldham and Satuala Nanai on the night of 5 April 1998 travelled with others from the 777 Café in Goulburn Street, Sydney to Bankstown stopping on the way at Central Avenue, Marrickfille. The persons travelled in two motor vehicles, a red Falcon registration number TKA 407 and a black BMW registration number 777 888. The red Falcon was driven by Nitrovic. 5. The two vehicles, the red Falcon and the black BMW, arrived at Bankstown at approximately 9.30 pm on 5 April 1998 and parked in Bower Street, Bankstown. 6. The occupants of the two vehicles then walked together to 71 Allum Street where they entered the premises. 7. When they entered the premises, Arben Puta was present. 8. After a period of time Puta left the premises. 9. At about 10.20 on 5 April 1998 Unsal and Yildirim entered the premises and a violent struggle ensued. Unsal and Yildirim were shot and died.”

The admissions also included that the Ford was registered in the name of Nitrovic’s mother and that the BMW was registered in the name of Mercrest Pty Ltd and was available for the appellant’s use.

The premises were a small suburban dwelling. A hallway ran from the front door into a combined lounge room and kitchen/dining area at the rear of the premises. The hallway was a little wider for approximately the front half of its length than for the rear half, and it did not run straight from the front door to the entrance to the lounge room but had the rear half off-set to the right as one passed down the hallway from the front door by about half a metre. On the right as one passed down the hallway from the front door were doorways to three bedrooms, which became known as bedrooms 1, 2 and 3. The doorway to bedroom 1 was a little before the offset and the doorway to bedrooms 2 and 3 were after the offset. The doorway to bedroom 3 was near the entrance to the lounge room. On the left as one passed down the hallway from the front door were a doorway from the attached garage, before the offset and almost opposite the doorway to bedroom 1, and just after the offset a doorway to the bathroom opposite the doorway to bedroom 2. A linen cupboard on the offset faced the front door, between the garage doorway and the bathroom.

The hallway was about five and a half metres in length and quite narrow, a little over a metre wide for the front half and a little less than a metre wide for the rear half before the entrance to the lounge room.

When the police attended Yildirim’s body was lying in the hallway adjacent to the doorway to the garage. His feet were near the linen cupboard and his head was towards the front door. He had been hit twice on the head, the wounds being consistent with being hit with the butt of the Ruger automatic pistol later mentioned, and had been shot seven times. A bloodstain pattern indicated that Yildirim had been dragged a short distance from nearer the front door. Nitrovic’s blood was found on the wall of the hallway outside bedroom 1.

Yildirim had been shot in the back, although the track of one of the wounds was downwards and consistent with him being bent over facing the person firing the gun. Some of the wounds would have been received when Yildirim was not upright, perhaps when he was falling down. At least three of the wounds were from the Ruger automatic pistol, the bullets from that gun being found in his body. At least one of the wounds was from another gun, possibly the Smith & Wesson revolver later mentioned. From deposits left on and in Yildirim’s clothing and his wounds, the guns had been very close or close (up to 600 mm) to Yildirim when fired. As well, there were holes in or damage to Yildirim’s shirt, without corresponding wounds. One bullet had grazed his collar as if fired at Yildirim whilst he was facing the person firing the gun, and another had passed through his shirt in a manner indicating that his shirt had been pulled away from his body as if in a struggle.

Yildirim had a knife in his right hand when found. The DNA analysis matched Yildirim’s profile.

Unsal’s body was lying in the hallway outside the doorways to bedrooms 2 and 3, with his feet towards the front door and his head towards the entrance to the lounge room and approximately a metre from that entrance. There were two areas of bruising to his head, consistent with being hit with the butt of the Sportco rifle later mentioned, and he had been shot twice, in the head and neck: the neck wound would have brought immediate death. The gun which caused the head wound was fired from up to 450 mm away, and the gun which caused the neck wound was at one point said to have been fired from up to 150 mm away and at another point from up to 600 mm away. A bullet fired from a Ruger revolver was found in the lounge room, having struck the door jamb of bedroom 2 and been deflected into that room, and the neck wound was probably from this bullet. A bullet hole was found in the floor beneath Unsal’s head, but the bullet was not found. Unsal had no defence injuries.

A number of guns were found in and in the vicinity of the premises.

A Ruger automatic pistol was found in a garden bed in Bower Street some distance from the premises. A swab taken from the gun and subjected to DNA testing matched Nitrovic’s DNA profile, described as a profile occurring in 1 in 750,000,000 in the general population, and Nitrovic’s clothing had residue consistent with proximity to firing a gun. Six spent cases from the Ruger automatic pistol were found in the hallway of the premises. Apart from the bullets in Yildirim’s body, one bullet was found embedded in the floor in the hallway near the front door, one bullet passed through the floor near the front door and was found in the under-floor cavity, and the sixth bullet was not found.

A Ruger revolver was found in the lounge room. All five bullets in its chamber had been fired, and three bullets were found. One was the bullet which probably caused Unsal’s neck wound. Another passed through the linen press into the bathroom, having first been deflected from its normal axis of flight: the deflecting contact could have been with many things, including a person or item of clothing. Another bullet passed through the linen press door.

A Smith & Wesson revolver was found in a garden bed near the front door of the premises. Four of the six bullets in its chamber had been fired. One bullet was found on the carpet towards the front of the hallway. Some pieces of copper jacket were found in the under-floor cavity near the front door, either part of a single bullet or parts of two different bullets. The other bullets were not found.

A Glock automatic pistol was found on the grass verge of Braunbeck Street some distance from the premises. It was registered to Unsal, and a case found in the top pocket of Unsal’s coat had been fired from it, although it could not have come from a firing at the time. An unfired bullet for the Glock automatic pistol was found in another of Unsal’s pockets. When the Glock automatic pistol was found two bullets were jammed in the magazine, although at least one shot already in the chamber could have been fired before the gun jammed: there was no evidence that a shot had in fact been fired. A swab taken from this gun and subjected to DNA analysis matched the profile of Nitrovic. There was no gunshot residue on Unsal indicating that he had fired a gun.

A sawn-off Sportco rifle was found in the hallway not far from Yildirim’s body. Its magazine held seven bullets. No fired bullet cases or bullets were found in the premises. A box of identical bullets was found on the top of a cupboard in the lounge room. The box when unopened contained 50 bullets. It had been opened, and contained 43 bullets.

As well as the fatal wounds to Yildirim and Unsal, others were wounded in the affray.

Mullany was wounded in the right hand. The gun which fired the bullet was not identified.

Mullany gave evidence of Nitrovic shouting that Yildirim had a knife, that Yildirim was “thrashing wildly” with what appeared to be a knife, and that Nitrovic appeared to have been cut and “crumpled back” against a wall. A treating doctor gave evidence that Nitrovic had two stab wounds in his right arm and two in his left leg. The appellant’s formal admissions included that Nitrovic was wounded in the affray and was then taken by Curry to Liverpool Hospital.

Mullany also gave evidence that as he, May and Oldham ran out of the premises Oldham said “I am cut” and was holding his side. May gave evidence that the man who must have been Oldham said he had been shot. There was evidence that when examined in November 1998 Oldham had lesions consistent with a bullet wound to the chest and a tangential bullet wound to an arm.

Mullany gave evidence that Nanai had blood around his shoulder area at one point in the affray. There was evidence that when examined in November 1998 Nanai had a lesion on his right shoulder estimated at three to four months old.

Puta was shot in the right thigh. The bullet was not found and the gun from which the bullet was fired was not identified, but the gun was fired at a close distance.

Trails of blood led from the premises to the street and surrounding streets, and there was evidence of blood on clothing. By DNA analysis - (a) Mullany’s blood was found on Yildirim’s trousers; (b) blood found on Puta’s T-shirt mostly matched the DNA profile of Unsal, but some of it matched the DNA profile of Mullany; (c) blood found on Puta’s jeans matched the DNA profile of Nitrovic; and (d) blood found on Puta’s shoes matched the DNA profiles of Unsal, Nitrovic and Mullany.

May and Mullany gave evidence of distribution of rubber gloves to the men and Mullany gave evidence of distribution of rope. Lengths of rope were found beneath Yildirim’s leg, in the bathroom and in the sink, and a coil of rope was found on the dining table from which the lengths appeared to have come. Rubber gloves were found in and outside the premises. A glove found in bedroom 3 showed DNA which could have been that of Mullany or Nanai. A pair of gloves found in Glassop Street carried blood matching Mullany’s DNA profile. Other gloves or pieces of gloves were found in and around the premises and in the surrounding streets. The appellant’s formal admissions included that the Ford was located by the police and contained Mackic’s mobile telephone and a box of Ansell rubber gloves, and that the box bore two of Nitrovic’s fingerprints. The rubber gloves were sold in boxes of fifty, and the box as found had 33 gloves.

The appellant was one of the lessees of premises in Goulburn Street, Sydney at which there was conducted the 777 Café. His close friend and business associate Tony Vincent was another lessee. They were the proprietors of the café. The stopping-place at Central Avenue, Marrickville on the way to Bankstown was Vincent’s home. The appellant’s formal admissions included that the appellant had been acquainted with Curry for about two years, with Mackic for about three years, with Nitrovic for about 15 or 16 years and with Puta for about 15 years, all before April 1998, and that as at 5 April 1998 Mullany was capable of recognising the appellant. They also included that Curry, Mackic, Nitrovic and Oldham were acquainted with each other; that Curry was acquainted with May, Mullany and Nanai; that Nitrovic was acquainted with Mullany and Puta; and that Mackic was acquainted with Mullany, all prior to 5 April 1998. Vincent also knew the appellant’s former co-accused, with the exceptions of May and Nanai, and as to some was a long-standing friend.

May and Mullany gave evidence of events prior to the affray itself, as well as of the affray.

May was a cousin of Curry, and was close to him. He had known Nanai for about three years, and Nanai was at his home when he received telephone calls from Curry. After the telephone calls May went in Curry’s car with Curry, Nanai and a man identified only as Colin to the 777 Café. On the way to the café they picked up Mullany. May said that he believed Curry “wanted us to go out with him. That was it, to probably go out, maybe just be with him.”

Curry, May, Mullany and Nanai were dropped at the café, and Colin took the car away. May and the others were introduced by Curry to “everybody” in the café, and took a seat at a table in a back corner.

May described some of the people in the café. Two men were playing pool, from the descriptions being Mackic and Oldham. There was also “an older guy with long hair” (“the older guy”): this is the man whom the Crown suggested was the appellant. May’s description of the older guy was - “Q. This older guy with long hair, how old would he appear to be to you? A. Say late 40’s. Q. Can you tell me anything else about his appearance? What about his height for example? A. About the same height as me. Q. Can you describe in more detail his hair? A. Shoulder length black hair. Shoulder length black hair and that’s about it. Nothing really striking about it. Q. Now when you say shoulder length, can you tell us what you mean by that? A. Hair that comes down to about here (indicated) all the way round here (indicated) so quite long. Q. You are touching your left shoulder? A. Yes, just about here (indicated) Q. You indicated your left shoulder with your right hand? A. Yes. NICHOLSON: And then he went back to his right shoulder and left shoulder and said “all the way round here”, that is what the witness demonstrated. HIS HONOUR: That is right. CROWN PROSECUTOR: Q. Are you able to say what the texture of the hair was? A. Black straight hair. Q. Had you ever seen this person before? A. No. Q. What was this person doing when you saw him? A. He looked like he was running the cafeteria. People were coming in and he was serving them.”

May was about 5 feet 9 inches in height. In cross-examination May repeated that the hair of the older guy was straight and dark, and said that it was down to his shoulders, and “not thick” and “thin”. He agreed that it was “the sort of hair that would be taken by two hands and pulled around the head and put in a ponytail”. He also said that the older guy was fair skinned and “wasn’t dark or olive. He was Caucasian”, and was slimmer in build than the others. May had been shown an array of 20 photographs, amongst which was a photograph of the appellant, and had been asked to say if he recognised or identified anyone. He had not picked anyone. The photograph of the appellant had been taken at the time of his arrest in November 1988, when his hair was short.

To diverge for a moment from May’s evidence, the appellant gave evidence. He said he had asked Curry, in context after May’s evidence as to the older guy was known or anticipated and it was appreciated that the Crown case included that the older guy was the appellant, who the older guy was. He said that Curry had said that the older guy was a friend of Nitrovic and Puta; that he asked Nitrovic and Puta who the older guy was, and that they had declined to tell him, “No they never want to discuss between themselves even”. He said that Nitrovic and Puta “knew who this person definitely they knew”, that he had not found out from them, and “I been intending to call them but I get legal advice they explain who it was”.

Returning to May’s evidence, after about fifteen minutes Curry told May to follow him into the back room of the café. There was no one else there. Curry gave a bundle of money, about $1,000, to May, saying it was “just for coming here”. May said - “Q. When he said that to you, what did you understand your task would be by ‘being there’? A. I actually thought it was something, believe, I thought actually something was going to happen at the cafeteria, I thought, when he picked us up I thought there must be something going on at the cafeteria, I thought also must have been a fight happening at the cafeteria or something. Q. You thought there was going to be a fight at the cafeteria, was there? A. No. Q. What did you do with the money? A. Put it in my pocket. Q. Where did you go once you had done that? A. I went back and sat at the table.”

May said that he saw Mullany and Nanai also go into the back room with Curry and return.

About twenty minutes later a man “came up to us and told us where to go”. From May’s description the man was Nitrovic, as appears to have been accepted at the trial, and I will hereafter refer to him by name. May accompanied Curry, the older guy and another man to a dark blue or black two door sports car, and believed that Mullany, Nanai and “whoever was left at the cafeteria” went to a different car. The sports car must have been the BMW. Curry drove, May sat behind him, the older guy sat beside May in the back seat, and the other man sat in the front passenger seat. When asked about the other man in cross-examination May said he was able to say only that he was aged about 30; he had seen him in the café.

Curry drove to a street in Marrickville. During the journey the older guy produced a small hand gun, which was passed around and admired. There was talk in the car, although May could not remember saying anything. He tried not to look at the older guy because he wanted to keep to himself. He did not think that the older guy had an accent.

The Ford was at the street in Marrickville, and May saw a number of men sitting on a brick fence. Mullany and Nanai were amongst them. He joined the men, as did Curry and the older guy. May, Mullany and Nanai remained sitting on the brick fence, the other men were “sort of milling around and talking amongst themselves with Raymond”. A bag containing rubber gloves and maybe some surgical tape was produced, and the gloves were handed around. May put them on.

After a time the men went back to their cars. The occupants of the BMW were as before. They drove to a place in Bankstown. The two cars stopped together. Someone said, “Take off your jewellery”, and May saw Mullany “taking or maybe taking off a watch or something like that”. The group of men included Curry, May, Mullany, Nanai and the older guy. They walked to the premises and went in the front door. May saw at the premises another man whom he believed to be the owner and to be named Puta.

May, Mullany and Nanai sat at the dining table in the kitchen/dining area, and the other men were “just milling around the living room”. May marked the positions of the men on a plan of the premises, including the older guy sitting on the lounge. Nine men in all were marked, including “home owner” which must have been Puta. Nitrovic approached May and his companions, and - “Q. Can you tell us what he said? A. He said, I know what he said to me, he said ‘Not to worry. This is a pay back’. He had been threatened before. Someone had put a gun to his head, was going to kill him, and all he wanted us to do was restrain him, hold him down. That is about it.”

May saw “some guns being handed around” by the cupboard in the lounge room. The only person he saw actually receive a gun was Nitrovic: it looked like an automatic silver pistol. Another gun looked like a cut down small rifle, and May thought there was a third gun. May heard Puta say, “’No guns, no guns, no shootings.’ Something to that effect.” After the guns had been handed out he heard Puta say, “I go get them. I go get them.” Puta walked towards the front door in the company of the older guy. May did not see either of them again.

Nitrovic broke the men up into groups. May and Nanai went into bedroom 3. After a little while Nitrovic came into the bedroom, and “he told us to grab the big guy. That he will be coming in first and that he’s got a gun.” Nitrovic also said, either before the men were separated into groups or to May and Nanai in bedroom 3, something like, “There is going to be no shooting. It’s only if they shoot.” May said he thought that Nitrovic “was just saying that to try and calm us down.”

The lights in the premises went out. After five or ten minutes May heard “some knocks on the front door”, and 20 or 30 seconds later some people walking down the hallway talking. He said - “The lights went on. I heard someone, don’t know if they are the exact words but think I heard someone say ‘grab them’. Rushed out behind Nance because he was standing in front of me, down the hall say 20 [sic: ?2] metres, 8 feet away, looked like a bit of a scuffle, a bit of fighting. I just grabbed the nearest person facing me. I grabbed him from around the waist. I spun around. I was now facing a wall. A split second later I heard ‘bang, bang, bang’. I sort of froze for a sec. I spun around and saw what looked like one bloke lying on the ground and looked like another bloke over the top staggering. I jumped over him, grabbed the door. It was not locked, it was open, and I run out the door.”

This was amplified. The man May grabbed was near the linen cupboard, and May’s back was towards the front door. May marked the position of the man he grabbed on a plan. When he grabbed the man there were other men around, but he did not know what happened to them. The man must have been Unsal, since the man lying on the floor over whom May jumped must have been Yildirim. May heard “like six loud bangs, really loud bangs” and coming from behind him, that is in the direction of the front door, and heard something whistle past him which he thought was a bullet. There were other men in the area, “it seemed quite a few people around there”. The man standing over the man lying on the floor was Nitrovic. May was followed out the front door by three other men. From May’s descriptions two of the men were Mackic and Oldham, as appears to have been accepted at the trial, and again I will hereafter refer to them by name. The third man was Mullany. May had not seen Mullany since going into bedroom 3: when he went into bedroom 3, Mullany was at the dining table.

May said he thought that the man standing over the man on the floor (Nitrovic) had been shot, because he looked injured and was bent over. In cross-examination he said that Unsal was still “on his feet and alive” when he (May) released him. He said he thought Oldham said he had been shot, and that Oldham was bleeding from a shoulder wound: May gave his T-shirt to Oldham. As May was running down the street he saw that he had blood on his hands and was no longer wearing his gloves.

It is not necessary further to detail May’s evidence of what happened after he left the premises.

Mullany said that he was picked up by Curry, after a telephone call, at about 7 pm on 5 April 1998. May and Nanai were in the car, and were known to him. Also in the car was a person introduced as Colin.

Curry drove to the 777 Café, where the car was parked and its occupants entered the café. Mackic was there, and was already known to Mullany, and another man introduced himself as Russell. Mullany sat with May and Nanai. Mullany gave evidence - “Q. Whilst you were at this table did anybody else come up to you? A. Yeah, a person I know as Steve came over. Q. This person Steve, had you met him previously? A. Yes, I had. Q. In what circumstances? A. Also I met him through Ray; I think the first time I met him was when I was working at a King Cross hotel. Q. Did you see anybody else there? A. Ned was also there. Q. When you refer to Ned, who do you mean? A. Mr Bikic. Q. Had you met Ned Bikic previously? A. Yes, I had. Q. Can you tell me the previous occasions you had met him; where that was? A. Yeah. Again, I met him first through Ray; I had been out to dinner with him on one occasion that I can remember. Q. Where had you seen him? A. I had seen him at DCM nightclub. Q. Had you seen him anywhere else? A. I had seen him at the coffee shop as well. Q. How many times on previous occasions to this particular evening we are discussing had you seen Ned at the coffee shop? A. Probably two or three times. Q. Had you observed any particular position he seemed to occupy there? OBJECTION Q. Did you see what he did there when you were there on some previous occasions? A. Yeah. One time I was there he gave me a coffee and some bag of chips I think. Q. On this evening of 5 April 1998 did you see Ned at any time with Ray? A. Yes, I did. Q. Did you see where they went or what they did? A. Yeah, I saw them talking outside on the footpath.”

Elsewhere in his evidence Mullany described what the appellant looked like that night; his description was - “I would say in his 50’s, quite slim, and he had sort of medium wavy hair, it was a bit longer at the back, it hung down the back with little curls, his complexion was a bit rough.” A photograph of the appellant close to this time showed him with fairly lengthy hair, described at one point in the appeal as a mullet. Mullany said that the appellant had a thick accent. There was other evidence that the appellant was just under 6 feet tall.

Curry took Mullany into the back room. The appellant was there. Mullany greeted the appellant, who greeted him back. Curry said to Mullany, “There is $600 dollars there for a standover job. It’s easy money.” Mullany agreed, and was given one of a number of piles of money on the table. He returned to where he had been sitting. He saw Mackic, May and Nanai go separately into the back room with Curry.

In cross-examination Mullany agreed that in the committal proceedings he had said that he had not seen the appellant before going into the back room with Curry. He said that he was probably confused.

Mullany then saw Curry talking to the appellant. Curry said to Mullany, “Okay, let’s go”, and told Colin to take the car home. Curry, Mackic, Nanai, Nitrovic, Oldham and Colin left the café. The appellant was still in the café when Mullany left. In cross-examination Mullany agreed that in the committal proceedings he had said that the appellant had already left the café when he (Mullany) left. Curry told Mullany, “You go with Steve”.

Mullany followed Nitrovic to the Ford. Nitrovic sat in the driver’s seat. Mullany sat behind him, with Mackic and then Nanai to his left in the rear seat, and Oldham sat in the front passenger seat. The BMW pulled alongside. In it were the appellant in the driver’s seat, Curry in the front passenger seat, and May in the rear seat.

The cars drove off. Nitrovic drove the Ford to Newtown, where he stopped near an Amcal chemist. There was a question at the trial and in the appeal over whether, in saying in his evidence that the Ford did not follow the BMW to Newtown, Mullany had contradicted what he had told the police in a statement: I will return to this. Mackic left the car, and returned with an Amcal chemist bag.

Nitrovic then drove to Marrickville. The BMW was already there. May, Mullany and Nanai sat on a small brick fence, and Mullany saw Curry and the appellant standing talking on the footpath. He saw Vincent come out of the house and engage Curry and the appellant in conversation. He himself exchanged hellos with Vincent.

Curry came over to Mullany and his companions sitting on the brick fence. May “asked him why there were so many guys and what we were getting involved in”. Curry replied, “It’s just a standover. We want this done quickly and quietly , no noise because of the neighbours.”

The men returned to their cars. Mullany saw Curry get into the driver’s seat of the BMW, and said that the appellant sat in the front passenger seat and May sat in the rear seat. There was no one else in the car.

The cars drove to Bankstown, where the men got out. Curry had a cardboard box in his hands, and from it gave a pair of rubber gloves to Mullany and told him to put them on. There was evidence indicating that the box of gloves had been purchased from the Newtown chemist. Some of the men did put gloves on, Mullany thought the appellant was one who did. Mullany did not put the gloves on at that time, but put them in his pocket. Curry also told Mullany to take his jewellery off, and Mullany did so and put his jewellery and his wallet in the BMW. The men walked to the premises and went in the front door. The door was opened by a man who was introduced to Mullany as Benny; he identified him from photographs as Puta.

Mullany went into the lounge room and sat on the lounge. May and Nanai sat with him. Curry, Mackic, and Oldham were there, and he saw Puta speaking to the appellant. Curry “was probably the most active, he was moving between most of the parties”. He saw one of the group of Mackic, Nitrovic and Oldham take a box of bullets from a bag on top of the cabinet in the lounge room.

Curry came over to May, Mullany and Nanai. He said, “I want this done quickly and quietly, no noises because of the neighbours. Once on the ground I want you three to walk outside calmly.” Mullany put his rubber gloves on, and saw that “at that time everyone had their gloves on too”. He heard someone say, “gag them and tie their hands, no noise”, and Nitrovic say, “Benny will go and get them.” Puta left the lounge room.

A mobile phone rang, and somebody said, “They’ve arrived.” Nitrovic said, “There will be a warning knock and then they will come in.” Curry then told May, Mullany and Nanai that “there was to be two guys, one was larger and one was smaller. He said to Nance and Mark, ‘You guys take the first guy to the house from the third bedroom.’” Mackic produced some nylon rope and said “Gag them, tie their hands”, and demonstrated with the rope. Mullany was given a length of rope.

Curry told May and Nanai to go into bedroom 3, and they did so. Mullany went into bedroom 2 with Curry. Curry said to him, “You, Steve and Goran are to take the second guy into the house” and “the others will get them from the front”. Mullany saw Nitrovic and Mackic go into the bathroom.

After about ten minutes Mullany went out of bedroom 2 to the entrance to the lounge room. He saw the appellant sitting on the dining table accompanied by Curry and Oldham. He spoke briefly to Curry, then went back into bedroom 2.

After about five minutes there was a knock on the front door, and about two minutes later the front door opened. The only lights on were the lights in the lounge room. Mullany saw what he thought was a person pass the doorway to bedroom 2. He heard a loud thud from the direction of bedroom 3. He went out into the hallway. Looking towards bedroom 3, he saw “Like movement of like three bodies like I could see Nances and what I presumed was the first person into the house and also it appeared that Mark was there too”; he said, “It was like they were wrestling.” Nanai had some blood around his shoulder area. Mullany looked towards the front door and saw “the second person enter the house, at about the doorway to bedroom 1”. Nitrovic and Oldham were near him. He marked on a plan the positions of the various persons. It showed Mullany outside the doorway of bedroom 2 and towards the front door, the second person nearer the front door at the doorway to bedroom 1 with Nitrovic and Oldham close to him and near the linen cupboard, and the first person at the end of the hallway near the entrance to the lounge room with May and Nanai on each side of him.

The second person was “thrashing his arms about” and seemed to have “some sort of metal object in his hand. Nitrovic “appeared to be cut and he was screaming ‘He’s got a knife. He’s got a knife.’; he sort of was holding himself and he crumpled back against the wall.” Mullany lunged at the second person and went to punch him.

Mullany heard “a sound like a gun shot coming from behind me”, and thought that something hit or grazed his arm; in fact he suffered a graze wound to his hand. He turned in the direction of Nitrovic and saw Nitrovic standing firing a pistol in the direction of the second man. He heard other gun shots. The second man fell towards the floor. Nitrovic was still firing into that man. The man and Nitrovic were facing each other.

Mullany heard other gun shots, “It seemed like they were coming from the direction of the lounge room but it was like gun shots were going off everywhere at that time.” He turned towards the lounge room, and - “Q. When you turned what did you see? A. I saw the first victim into the house was also lying on the ground. Q. Did you see anybody else down there? A. Yes, I saw Ned and Ray. Q. Where was Ned? A. Standing in the hallway just before it goes into the lounge room. Q. Did Ned have anything? A. He appeared to have something in his hand. Q. What did he have in his hand? A. I couldn’t say exactly, it was hard to tell, but he had something in his hand. Q. Are you able to describe say shape or size? A. Yes, it looked to be quite straight in shape. Q. Can you tell us its length? A. I would say probably 20 to 30 centimetres. Q. Where, relative to that man on the ground or on the floor, was Ned? A. He was standing near the man’s head. Q. What about Ray, where was he? A. He was standing alongside Ned. Q. Who was the closest of Ned and Ray to the man’s head? A. Neither, they both appeared to be the same. Q. The same distance from the head? A. Yes. Q. Did you see anything in Ray’s hands at that time? A. No, I didn’t, no.”

Mullany said that the object the appellant was holding appeared to be “like a dark metal object” and “a weapon of some type”. The man near whose head the appellant and Curry were standing had his feet closer to Mullany.

At the time Oldham “was pretty much standing alongside myself”. Mullany did not see where Mackic, May or Nanai were at that time. Then he saw May alongside him in the hallway. May said, “Let’s get out of here”, and May, Mullany and Oldham ran out the front door.

Oldham “was carrying what appeared to me to be a sawn off shotgun or was quite a long type of rifle or something”, and said “I’m cut” and appeared to be holding his side. As he was running some distance from the premises Mullany saw Mackic also running, and said that Mackic was carrying a small pistol. Mullany took off his gloves and dropped them in the gutter.

Mullany said that, apart from Yildirim and Unsal and the appellant, Curry, Mackic, May, Nanai, Nitrovic, Oldham, Puta and himself, no one else was at the premises that evening.

Again it is not necessary to detail Mullany’s evidence of what happened after he left the premises.

Mullany was cross-examined at some length to confirm that the man at whom he saw Nitrovic shooting, who must have been Yildirim, was facing Nitrovic, and to elicit that Mullany did not see May or Nanai in the vicinity of where Nitrovic was shooting Yildirim. He was cross-examined to the effect that he was making up his evidence of the appellant’s presence and participation in order to receive favourable treatment from the authorities, which he denied, and I will return to this also.

Residents in Allum Street, Bankstown and surrounding streets gave evidence of the cars arriving and men getting out, of men running from the premises, and of other such matters: none of this evidence went directly to the appellant’s presence and participation in the affray.

Telephone records from mobile phone carriers and land line operators in respect of calls made to or from mobile and home telephones of the appellant, various of his former co-accused and others were admitted and tabulated. There were many calls between the appellant and Nitrovic, Oldham, Puta and Vincent, and from the appellant to the 777 Café, in the few days preceding 5 April 1998. There were calls on 5 April 1998 from Nitrovic to the appellant, Curry, Mackic and Puta, including from Nitrovic to the appellant’s mobile phone at 5.31 pm, and there was a call from the 777 Café to the appellant’s home at 6.30 pm on that day. There were calls from the appellant’s mobile phone through a relay tower close to the café to Vincent at 7.54 pm and 7.56 pm on that day. There were calls from the appellant’s mobile and home telephones to Mackic and Vincent in the early hours of 6 April 1998, to Vincent in the early morning of that day, and a little later to a solicitor, who went to Nitrovic at Liverpool Hospital.

In his evidence the appellant denied any knowledge of Yildirim and Unsal and any involvement in their murders. He said he had not seen Curry, May, Mackic, Nanai, Nitrovic, Oldham or Puta on 5 April 1998. He denied ever serving customers at the 777 Café, and said that it was managed by Vincent’s son Seamus Vincent. He gave an account of his movements on 5–6 April 1998 which included that he had lost his mobile phone on the afternoon of 5 April 1998, had bought a new one, and had left the new one at the 777 Café; that he allowed Nitrovic (amongst others) to drive the BMW and the keys to the BMW had been given to Nitrovic through others on the afternoon of 5 April 1998; and that he had been at his unit on the evening of 5 April 1998 and late in the evening had gone to the Sydney Casino, then to a nightclub and a hotel, and in the early hours of 6 April 1998 back to the Casino.

The appellant said that when he was travelling he allowed others to use the BMW, including Nitrovic and Vincent. He flew to the United States on 6 April 1998, on a ticket booked in January 1998, and said that he had arranged with Nitrovic that Nitrovic would pick the car up from where it was parked. Further as to the appellant’s movements on the evening of 5 April 1998, he said that until he left the unit he was with his girlfriend Nevana Radivojevic, and that after various telephone conversations Seamus Vincent arrived with a man named Awin Mawardi at about 10 pm and the appellant and Mawardi went to the Casino. The appellant then went to the nightclub and so on.

An alibi notice was given naming Nevana Radivojevic and Mawardi. Nevana Radivojevic was not called, and there was evidence that she had gone to Yugoslavia and would not return. Mawardi was not called, and some correspondence with Mawardi’s lawyers was tendered. Seamus Vincent gave evidence of telephone conversations arranging to take Mawardi to the appellant’s unit, and that he took Mawardi to the unit at 10 pm on 5 April 1998. A Jim Byrnes gave evidence of dropping Mawardi at the 777 Café between 5.30 and 6.30 pm on 5 April 1998, and that Mawardi said that he (Mawardi) intended to go to the Casino with the appellant.

Seamus Vincent also gave evidence of receiving the keys to the BMW and passing them on to Nitrovic, that he had never seen the appellant serving customers at the 777 Café, and that he was unable to identify any person fitting the description of the older guy given by May. Vincent gave evidence to the effect that Oldham arrived at his home at Marrickville at about 8 pm on 5 April 1998 and gave him the keys to the appellant’s unit.

Dobri Maksimovic gave evidence that he had arranged to meet the appellant at the nightclub, and that he met him at about 11.30 pm on 5 April 1998.

Each of these defence witnesses was extensively cross-examined, and there were other elements of their evidence and other witnesses in the defence case to which I have not referred. The cross-examination was quite effective, and it was well open to the jury to find the evidence of Vincent, Seamus Vincent and the others unconvincing and otherwise to see little weight in the evidence on which the defence sought to say that the appellant could not have gone to and been at the premises on the evening of 5 April 1998. The trial judge observed in the summing-up that the primary attack was on the honesty of Mullany, and on appeal the unreasonableness of the verdicts was said to lie in doubt which should have been experienced about Mullany’s evidence of the appellant’s involvement for reasons not turning upon strength of the defence evidence. While the evidence as a whole is to be considered, I have therefore not set out in greater detail the evidence of witnesses called in the defence case. Ground of appeal 2: The trial judge erred in his directions to the jury as to the elements of the offence of murder Ground of appeal 2A: The trial judge erred in his directions to the jury as to the elements of the offence of manslaughter

As will appear, the framing of these grounds of appeal did not really match the grounds as put in submissions. The Crown did not object to the mis-match. There were two limbs to the grounds of appeal as put in submissions. One was concerned with the directions as to what had to be contemplated by the appellant as a possibility in order that he be criminally responsible for the killings of Yildirim and Unsal. The other was concerned with the directions as to possibility.

The jury was directed that the Crown did not allege that the appellant and the other men planned to kill Yildirim and Unsal, and that on the Crown case the plan “was to assault them”. These grounds of appeal took up the evidence underlying that aspect of the Crown case - (a) from May, that Puta said “No, guns, no guns, no shootings. Something to that effect”. (b) from May, that Nitrovic said that “all he wanted us to do was restrain him, hold him down”, and something like “There is going to be no shooting. It’s only if they shoot”; (c) from Mullany, that someone said “gag them and tie their hands, no noise”; (d) from Mullany, that Mackic produced some nylon rope and said, “Gag them, tie their hands”, and demonstrated with the rope; (e) that rope was handed around and was found at the premises; and (f) of the number of men involved, all physically strong and most with martial arts or security work experience (I have not thus far referred to the evidence to that effect, but this general summation is sufficient.)

The appellant submitted that the criminal enterprise was not one of shooting Yildirim and Unsal , but one in which there was not to be any shooting unless (as Nitrovic indicated) Yildirim and Unsal themselves started shooting. He submitted that it was open to the jury to infer that any shooting by the men in the ambush party was only to be in self defence. He submitted that the trial judge should have directed the jury that, to find the appellant guilty of murder, they must be satisfied beyond reasonable doubt that the appellant realised that one or more of the parties to the criminal enterprise might shoot at least one of Yildirim and Unsal intending to kill him or inflict grievous bodily harm upon him otherwise than in self defence ; and should have directed the jury that, to find the appellant guilty of manslaughter, they must be satisfied beyond reasonable doubt that the appellant realised that one or more of the parties to the criminal enterprise might fire a gun otherwise than in self defence . The errors lay in the absence of directions to the effect of the underlined words.

As can be seen, although the grounds of appeal as framed were in terms of the directions as to the elements of the offences of murder and manslaughter, this limb of the grounds as put in submissions was concerned with the directions as to what had to be contemplated by the appellant as a possibility in order that he be criminally responsible for the killings of Yildirim and Unsal. I use the language of contemplation as a possibility. That language has been used in the cases. Other language can be used, for example, language of realisation or foresight that something might happen, and has been used in the cases. For present purposes nothing turns on the mode of expression, and I will generally stay with the perhaps stilted language of contemplation as a possibility.

The Crown submitted that the directions for which the appellant contended were not required both in principle and according to the law as explained in Osland v The Queen (1998) 197 CLR 316; that in any event the trial judge’s directions would have been understood in the manner for which the appellant contended; and that, again in any event, there was no miscarriage of justice because on the evidence the appellant could not but have contemplated the possibility of a shooting otherwise than in self defence.

It is convenient first to go to the trial judge’s directions.

The Crown submitted that the summing-up when considered as a whole conveyed to the jury not only that before the appellant could be convicted of murder or manslaughter they would have to be satisfied beyond reasonable doubt that he contemplated the possibility that murder might be committed, but also that the contemplation that murder might be committed was a contemplation of the possibility of a killing occurring otherwise than in self defence. The same applied, it was said, in relation to the directions concerning manslaughter. And, it was said, the absence of complaint by the very experienced counsel appearing for the appellant at the trial indicated that the jury was sufficiently instructed that if the only killing contemplated as a possibility by the appellant was one done in self defence, then he should be found not guilty.

The trial judge said - “Ladies and gentlemen, let me turn then to the basis upon which the Crown says that the accused is guilty of each of those crimes, that is the basis in law. It is not the Crown case that the accused himself shot either of the deceased. True it is Mr Mullany gave evidence that he saw the accused standing over the prone Mr Unsal, the accused holding what looked like a gun. I will explain to you the relevance of that evidence in a moment. But I emphasise it is not the Crown case that it was the accused himself that shot either of these two men. The Crown does not have to prove who it was that shot either of them. What the Crown sets out to prove is that, in the circumstances, the accused was criminally responsible for each of those shootings. As I have said, the central issue in this case is whether the accused was even present when those two men were shot. However, if you were satisfied that he was, I must explain to you how he might in law be criminally responsible for those shootings. This involves examining firstly the criminal responsibility of whoever did shoot those two men: that is, whether the shooting in each case was unlawful and, if so, whether it amounts in law to murder or manslaughter. You may think it is almost impossible to determine from the evidence who shot Mr Unsal. That is a comment about the facts which you can accept or reject as you see fit. That is your province. However, there is evidence from Mr Mullany that it was Mr Nitrovic, Steve Nitrovic, who shot Mr Yildirim and, on Mr Mullany’s evidence, that appears to be immediately after Mr Yildirim had stabbed Mr Nitrovic, inflicting upon him quite serious wounds. In relation to the killing of Mr Yildirim, then, that evidence raises a possible issue of self-defence by Mr Nitrovic, which would make the killing lawful . Alternatively, it raises an issue of what we call in law provocation which would make the killing manslaughter rather than murder. The best way to go about my task then, I think, is to explain to you first how a person acting alone might be criminally responsible for a killing and how that killing might be classified as murder or manslaughter. Then I will turn to the situation where that person kills in the company of another person and we will examine how that other person might become criminally responsible for that killing.” (emphasis added)

The trial judge began the first explanation - “Let us look first at the situation of a man killing a person acting alone, not in company of anybody else. As we all know, people can be killed in a wide variety of circumstances. Some killings are entirely by accident or misadventure in circumstances where whoever caused the death is not guilty of any crime. Some deliberate killings are lawful. The more common example being a killing done in self-defence. That is a matter I will turn to shortly. When we talk about unlawful killings the law classifies them either as murder or manslaughter. Broadly speaking by the term ‘murder’ we mean the more serious class of killings. The term ‘manslaughter’ killings which, for one reason or another, are seen as less blameworthy. That does not alter the fact that manslaughter is still a very serious crime. I am not going to give you a law lecture but I have to tell you as much about murder and manslaughter as you will need to know to decide the issues raised by the evidence in this case.” (emphasis added)

The trial judge gave directions about the elements of the crime of murder. He then said - “I call them the basic ingredients of the crime of murder because, even if each of those ingredients is proved, that does not necessarily mean that the person charged is guilty of murder. The killing, even with that intent, may be lawful . In other circumstances a killing with that intent might be partly excused, so as to be classified as manslaughter rather than murder. Let me deal with killings that may be lawful. For present purposes I am talking now about killings in self-defence . As I have said, that arises here because of the possibility that Mr Nitrovic shot Mr Yildirim at a time when he, Mr Nitrovic, was himself under attack. I will say a little more about that in a moment.” (emphasis added)

The trial judge gave directions about what was involved in self defence, in the course of which he said that the issue arose because of Mullany’s evidence that Nitrovic shot Yildirim and that Nitrovic was heard to shout that Yildirim had a knife and was injured by the knife: hence, the trial judge said, there was a question whether it was Nitrovic who shot Yildirim and, if so, whether at that moment he was acting in self defence.

The trial judge dealt with provocation in relation to Nitrovic shooting Yildirim. He then continued - “Although neither Counsel addressed you on this matter or the matter of self-defence, they are matters which I am required to raise with you because they are issues which do arise on the evidence. I emphasise that these issues of self-defence and provocation arise only in relation to the killing of Mr Yildirim. It may arise from Mr Mullany’s evidence that it was Mr Nitrovic who shot Mr Yildirim and Mr Mullany’s evidence of the circumstances in which this occurred. If you consider it reasonably possible that it was Mr Nitrovic who shot Mr Yildirim and that he did so in self-defence, then that killing would be lawful and not amount to a crime at all . Alternatively, if you considered it reasonably possible that Mr Nitrovic shot Mr Yildirim and that he did so under provocation then that killing would be classified as manslaughter rather than murder.” (emphasis added)

The trial judge turned to manslaughter. He said - “Ladies and gentlemen, what I am about to say now is applicable to both charges, both the killing of Mr Yildirim and the killing of Mr Unsal. There is another way in which a person who kills unlawfully would be guilty of manslaughter rather than murder. That is if the person who killed did not intend to kill or inflict grievous bodily harm. Nevertheless, that person might be guilty of manslaughter on the basis that the killing was the result of an unlawful and dangerous act. For present purposes, an unlawful act means an act not done in self-defence. That issue appears to arise here only in relation to the killing of Mr Yildirim. There is no evidence to suggest that the killing of Mr Unsal was done in circumstances which would make it lawful .” (emphasis added)

Directions were given as to the elements of manslaughter.

The trial judge then said - “Ladies and gentlemen, that is a thumb nail sketch of the basic principles of the law of homicide when one examines the conduct of a person who actually did the killing. I want to turn now to the situation where a person kills someone whilst he is involved in a criminal enterprise with another man or other men. The question, which is of central importance in this case, is how the other man or those other men might be criminally responsible for that killing. The principle is the same no matter how many people you are talking about. For convenience I will talk about a criminal enterprise in which two men are joined. If two men set out to commit a crime, each of them is responsible for what the other does in committing that crime. However, it may be in the course of that criminal enterprise one of the men commits an additional crime, a crime other than the one which they had planned. In that event, the other man would also be guilty of that additional crime if he contemplated the possibility that it might be committed in the course of carrying out the criminal enterprise they had planned. That contemplation is sufficient to make that other man criminally responsible for that additional crime. It would be no defence for that other man to say, ‘That is not the crime we planned to commit’ or, I didn’t want that to happen’ or, ‘I hoped it wouldn’t happen’. Provided the other man realised it could happen, he also is guilty. Here the Crown does not allege that Mr Bikic and the other men said to have been involved in this enterprise planned to kill Mr Yildirim and Mr Unsal. The plan, the Crown says, was to assault them. For present purposes I do not need to go into he law of assault. It is sufficient to say in law the notion of assault is not confined to striking someone. Even to restrain someone physically amounts to an assault. If the enterprise here were to ambush the two deceased and to physically restrain them in some way, whatever else might have happened, that would be a criminal enterprise because it would involve an assault. However, this accused is charged with murder not with assault. In the event Mr Yildirim and Mr Unsal were shot dead. Let me turn then to explain to you precisely how this accused might be criminally responsible for each of those shootings and I will do that after a short break.” (italics added)

The short break became an overnight adjournment, and the next morning the trial judge continued - “HIS HONOUR: Ladies and gentlemen, good morning. Yesterday you will remember I took you to some basic principles of law. I commenced by dealing with circumstances in which a killing may be justified so as to be lawful . Then I dealt with unlawful killings and how they might be classified as either murder or manslaughter depending on the circumstances. I then began to take you to the law of what we call common purpose. That is how, when two men combine to commit a particular crime, and one of them commits an additional crime, the other man might be criminally responsible for that additional crime. As I explained to you that principle is relevant here because it is not suggested by the Crown that the plan was to kill either Mr Yuildirim or Mr Unsal. The plan was to assault them but, as it happened, in the course of that assault both were killed. I reminded you it is not the Crown case that the accused himself killed either of them. But the question is: Is he criminally responsible for those killings? For him to be criminally responsible for either of those killings you would have to be satisfied, in the first place, beyond reasonable doubt, that he was a party to that enterprise to assault the two men. You would then turn to the question whether he realised that, in the course of carrying out that assault, one or more of his companions might shoot at least one of the deceased. If you were satisfied that he realised that, then he himself would be responsible for the shootings in law, even though he himself did not do them. It is at this stage, ladies and gentlemen, I would like to distribute to you a very brief outline of principles of law which, I hope, will help you follow what I am about to say.” (emphasis and italics added)

Copies of the outline of directions were handed to the jury, and became MFI 76.

The trial judge said - “Ladies and gentlemen, I start with the obvious proposition: If you are not satisfied beyond reasonable doubt that the accused was present when the deceased were killed, that is the end of the matter. Go no further. He must be found not guilty of both charges. The directions of law I am about to give you apply only if you are satisfied that he was present at that house that night. As I have said, the accused would be criminally responsible for the shootings if he took part in this enterprise to assault realising that, in the course of it, one of his companions might shoot at least one of the deceased men . Of course, you would have to be satisfied that Mr Yildirim and Mr Unsal were killed by one of the accused’s companions in this criminal enterprise, although, as I have said, the Crown does not have to prove which one of them it was. It is for that reason that the crucial question here is whether the accused was a party to a plan to ambush the deceased realising that in the course of that ambush one or more of his companions might shoot at least one of the deceased. However, to be found guilty of murder you would need to be satisfied that the accused realised that that shooting could occur in circumstances amounting to murder; that is that one of his companions might shoot at least one of the deceased intending to kill him or to inflict grievous bodily harm upon him. The accused could not be found guilty of murder unless you are satisfied he realised one of his companions might fire a gun with that intent . In addition, you would have to be satisfied, as to each of the deceased, that whoever did shoot him did in fact shoot intending to kill or to inflict grievous bodily harm. Otherwise that shooting would not amount to murder in law. In other words, you would have to be satisfied, as to each deceased, that he was killed in circumstances mounting to murder. If the circumstances in which the deceased was killed were lawful then that killing would be no crime and the accused himself could not be found guilty of any crime arising from it. If the circumstances in which either of the deceased were killed amounted to manslaughter, rather than murder, then the accused himself could not be found guilty of anything more than manslaughter. As I have said, there was evidence that it was Mr Nitrovic who shot Mr Yildirim and that he did so acting in self-defence. If that were so the killing of Mr Yildirim would be lawful and the accused would not be criminally responsible for it. He could not be found guilty of either murder or manslaughter in relation to the killing of Mr Yildirim. As I have said, the issue of self-defence being raised, it is not for the accused to prove Mr Yildirim was killed in self-defence, it is for the Crown to prove beyond reasonable doubt that he was not. So, the question is whether you think it is reasonably possible that Mr Nitrovic killed Mr Yildirim and that he did so in self-defence. Unless the Crown can exclude that possibility beyond reasonable doubt the accused must be found not guilty of the murder or manslaughter of Mr Yildirim . The accused must be acquitted outright.” (emphasis and italics added)

The trial judge turned to the outline of directions provided to the jury. The appeal papers before us did not contain a copy of MFI 76, and neither the appellant nor the Crown provided a copy in order to take us to it.

From reference in the summing-up, the outline included in a summary of the ingredients of murder, “that the shooting was unlawful”. In going through the outline of directions the trial judge again referred, at some length, to self defence as an issue arising in relation to the shooting of Yildirim. He then said - “As I say in the outline in relation to Mr Yildirim, the question whether his killing was unlawful arises only because there is evidence that Mr Nitrovic may have shot him and may have done so in self-defence. In that event, the killing would be lawful if Mr Nitrovic believed on reasonable grounds that it was necessary to shoot Mr Yildirim in self-defence. Unless the Crown could exclude beyond reasonable doubt the possibility that Mr Nitrovic shot Mr Yildirim in self defence, the accused must be found not guilty of both the murder and manslaughter of Mr Yildirim.” (emphasis added)

The trial judge later said - “The basis of manslaughter that I am going to turn to now focuses on the state of mind of the accused himself, what he foresaw might happen in the course of this assault. As I have said, to find the accused guilty of murder you would have to be satisfied that he took part in the assault upon the deceased realising not only that one or more of his companions might shoot at least one of the deceased, but also that that person might do so intending to kill or inflict grievous bodily harm upon that deceased. This accused could not be found guilty of murder as to either charge unless you were satisfied that he foresaw that one of his companions might fire a gun with that intent. If you were not satisfied of that, you would have to consider whether the accused foresaw that a gun might be fired but not to kill or seriously harm either of the deceased but perhaps to frighten without aiming at them. You would also have to consider whether a person doing that in those circumstances would be committing a dangerous act, that is, an act exposing either of the deceased to the appreciable risk of serious injury. If you were satisfied of those things then it would be open to you to find the accused guilty of the manslaughter rather than the murder of both the deceased . Let me go back to the outline; we are now on page 4 under the heading Manslaughter – Contemplation of the Accused. This issue arises if you are satisfied of the first, second, fourth and fifth points set out on page 1 but not satisfied of the third. Assume you are satisfied that the accused was a party to the enterprise to assault, that he knew one or more of his companions had a gun, that one or more of his companions did in fact shoot the particular deceased intending to kill him or inflict grievous bodily harm upon him and that shooting was unlawful, but you are not satisfied that the accused realised that one of his companions to the enterprise might fire a gun with that intent, might fire a gun intending to kill or inflict grievous bodily harm. If you are satisfied that the accused realised that one of the parties to the criminal enterprise might fire a gun but without intending to kill or inflict grievous bodily harm upon either of the deceased but in such a way as to expose either of them to an appreciable risk of serious injury, in that event the accused should be found not guilty of murder but guilty of manslaughter in respect of both charges. This basis of liability focuses not upon what the killer actually did or what the killer intended but what the accused realised might happen when participating in this enterprise. If his anticipation of what might happen went no further than foreseeing one of his companions might fire a gun but not intending to kill or seriously hurt anyone, at most the accused could be found guilty of manslaughter of the two deceased, he could not be found guilty of the murder of either of them .” (italics added)

Towards the end of the summing-up the trial judge said that the Crown submitted that the jury would be satisfied of the honesty and accuracy of Mullany’s evidence and that it put the appellant at the scene and apparently holding a gun himself, and continued - “From that evidence it is said you would conclude that all the elements of the crime of murder, which I have set out in this outline, are made out. The Crown says you could conclude the accused was at the house, that he was a party to an ambush, that he had a gun or knew others did and that he realised a shooting might occur amounting to murder . The Crown submitted you would accept that it was Mr Nitrovic who shot Mr Yildirim, although, as I have said, the Crown does not have to prove it, but the Crown argued you would reject that shooting was done under self-defence or provocation but in circumstances amounting to murder. True it is there is no eyewitness evidence to the shooting of Mr Unsal. The Crown submitted you would conclude beyond reasonable doubt that he was shot by one of the accused’s companions in this criminal enterprise and that shooting also occurred in circumstances amounting to murder .” (bold added)

The Crown referred particularly to what it said were occasions on which the trial judge made clear that a killing in self-defence was lawful. I have emphasised relevant parts of the passages set out. It then said that, when giving directions about joint criminal enterprise, the trial judge told the jury that what the appellant needed to contemplate as a possibility was a crime. The result, it said, was that putting these things together the jury would have understood that the appellant could not be found guilty if he had only contemplated the possibility that there might be a killing or a shooting in self-defence, because that would not have been a crime. In the passage last set out from the summing-up, it said, the trial judge in effect so directed the jury, because he repeated the Crown’s contention that the jury could conclude that the appellant “realised a shooting might occur amounting to murder” and the shooting by one of the appellant’s companions “occurred in circumstances amounting to murder”. I have put those parts of the passage in bold.

I do not think the Crown’s submissions in this respect should be accepted.

Although the trial judge did make clear that a killing in self-defence was lawful, he did so in relation to the ingredients of murder. How that translated to manslaughter was perhaps not explained in the passages I have set out, but it is not necessary to explore that matter. He did so expressly with reference to the killing of Yildirim alone, excluding self defence as an issue in the killing of Unsal. As I have said, the appellant’s submissions now under consideration were concerned with directions as to what must be contemplated as a possibility for liability by reason of the killings of Yildirim and Unsal. What is contemplated is different from what happens in fact, and a person may contemplate the possibility that there might be a killing only in self defence although as events turn out there is no issue of self defence; conversely a person may not contemplate any such possibility although as events turn out there is an issue of self defence.

Thus, making clear that a killing in self defence was lawful did not without more address what must be contemplated for criminal responsibility by reason of the killings of Yildirim and Unsal. When the trial judge came to the directions about joint criminal enterprise, he did not put together the lawfulness of a killing and the appellant’s contemplation. I have italicised relevant parts of the passages set out. The first italicised part speaks of contemplation of commission of a crime. But the other italicised parts speak of contemplation of shootings. Overall, the effect on the jury would not have been that, because a killing in self defence was not a crime, the appellant could not be found guilty if he had only contemplated the possibility that there might be a killing or a shooting in self defence. The effect would have been that contemplation of the possibility that there might be a killing or a shooting was sufficient, together with other matters, for criminal responsibility as party to the criminal enterprise. Whether the killing or shooting was a crime because not in self defence was relevantly not part of the directions.

Further, even if the jury had put together lawfulness of a killing and contemplation of possibility of a crime, they had been told that there was no issue of self defence in relation to the killing of Unsal. In the manner the matter was left, there was removed from their consideration any contemplation involving the killing of Unsal in self defence, and so any need to be satisfied that the appellant contemplated the possibility that one of the parties to the criminal enterprise might shoot Unsal otherwise than in self defence.

I am not persuaded, therefore, that the Crown is correct in its submission that the directions would have been understood in the manner for which the appellant contended.

I go then to whether the directions for which the appellant contended were required.

In McAuliffe v The Queen (1995) 183 CLR 108 the Crown case was that the victim was killed in an attack pursuant to a common purpose to rob or roll someone, and included that the members of the group contemplated the intentional infliction of grievous bodily harm as a possible incident in carrying out the common purpose. The directions given were summarised in the High Court (at 113) as conveying to the jury - “ … that, even if the common purpose of the three youths did not embrace the intentional infliction of grievous bodily harm, there was a sufficient intent on the part of either appellant for the purposes of murder if he contemplated the intentional infliction of grievous bodily by one of the other participants as a possible incident in the carrying out of their joint enterprise and continued to participate in that enterprise.”

The accused contended on appeal that it was necessary that all parties to the criminal enterprise contemplate the intentional infliction of grievous bodily harm as a possible incident of the carrying out of the enterprise so as to form part of the common purpose. That contention was rejected, and it was held (at 118) that either a shared common intention or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the enterprise would be a sufficient intention on the part of either of the accused for criminal responsibility for the killing.

In the course of its reasons the Court said of its earlier decision in Johns v The Queen (1980) 143 CLR 108 - “In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns in the passage which we have cited above spoke in terms of an act which was in the contemplation of both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robyn Cooke observed [in Chan Wing-Siu v The Queen (1985) AC 168 at 175], the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.” (at 117-8)

The appellant relied for his submissions upon this passage, taking up the references to commission of a crime and submitting that if the contemplation had to be of the possible commission of a crime, then it was insufficient that the appellant contemplated that there might be a shooting in self defence as an incident of the criminal enterprise.

I do not think that McAuliffe v The Queen supports the submission. The Court’s references to commission of a crime were plainly not intended to address that matter. By “crime” the Court meant the relevant acts – in that case, the acts constituting the crime of murder. On numerous occasions in the course of the reasons the Court spoke in terms of the acts or actions in contemplation, one instance being (at 118) that the prosecution case was that the death of the victim “was caused by an act or acts for which each of the appellants was responsible”. The distinction being made by the appellant in the present case between acts in contemplation not constituting a crime and acts in contemplation constituting a crime was simply not in question.

Apart from authority, the appellant submitted that there could not be the commission of a crime by reason of contemplation of something unless that which was contemplated was itself a crime. In principle, it need not be so. There is no reason in principle why an accused’s criminal responsibility should not be attached to the acts of another person even if that person is not guilty of a crime, and no reason why the criminal responsibility should not be attached to acts of the accused done with the contemplation of related acts of another person even if the acts of that person do not amount to a crime. If the accused’s criminal responsibility is not derivative from and dependent on the guilt of another person, but is primary, the guilt of the other person or contemplation of acts of the other person amounting to a crime is not mandated.

The question is whether the appellant’s criminal responsibility was derivative, and more particularly whether, although not mandated, one of the constituents of his crime was that the contemplated shooting by one of the ambush party was a crime because not in self defence.

The nature of liability for participation in a joint criminal enterprise was discussed in the judgment of McHugh J in O sland v The Queen. Kirby and Callinan JJ agreed with his Honour’s discussion.

McHugh J said (at 341-2) - “[70] At common law, a person who commits the acts which form the whole or part of the actus reus of the crime is known as a "principal in the first degree". There can be more than one principal in the first degree. However, a person may incur criminal liability not only for his or her own acts that constitute the whole or part of the actus reus of a crime but also for the acts of others that do so. The liability may be primary or derivative. … … [71] Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who were merely present, encouraging but not participating physically, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative. [72] However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others.”

His Honour cited from R v Lowery and King (No 2) (1972) VR 560 at 650, R v Tangye (1997) 92 A Crim R 545 at 556-7 and Brett, Waller & Williams, Criminal Law , 8th ed, 1997 at 465, and continued (at 343-4) - “[75] As a result, a person may be found guilty of murder although he or she did not commit the acts which physically caused the death of the victim and the person who did is found guilty only of manslaughter. In R v Howe, all their Lordships were of the opinion that R v Richards, which had held that the person who did not perform the acts could not be guilty of a more serious charge than the actual perpetrator, was wrongly decided. Lord Mackay said - ‘[W]here a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant.’ This statement is conclusive in England, at all events, in showing that it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert. If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence, provocation, duress or insanity.”

Saying that this was “almost certainly” the view of the Privy Council in Hui Chi-Ming v The Queen (1992) 1 AC 34, and considering and citing from that case, his Honour repeated (at 345) that “it is the acts of the actual perpetrator which are attributed to a non participant who is acting in concert and is present at the scene”. He said (at 345) - “The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea. In Matusevich v The Queen , this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence.”

His Honour said (at 346) - “ Markby v The Queen also supports the conclusion that it is the wrongful acts of the perpetrator which are attributed to the person acting in concert and present at the scene. Markby establishes that if violence is one of the contemplated incidents of a joint criminal enterprise and one of the accused kills a person, the other accused can be convicted of manslaughter even though the killer is guilty of murder. This decision is consistent only with the conclusion that it is the acts constituting the actus reus, and not the crime, of the actual offender which are attributed to the other party. The liability is direct or primary, not derivative.”

After reference to further cases, McHugh J said (at 350) - “[93] Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.”

The Crown submitted that the position as thus established was conclusive of the present question. The appellant could be guilty of murder or manslaughter if he contemplated the possibility of a shooting even where the person or persons who shot Yildirim and Unsal were acting in self defence: to repeat from the judgment of McHugh J (at 344) - “ … it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert. If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence , provocation, duress or insanity.” (emphasis added)

The appellant submitted that what was said in Osland v The Queen did not extend to the situation in this case. He submitted that what was said was confined to where there was agreement to do an act, and established that there could be liability for the doing of the act even though the person who did the act was not guilty of a crime; but that what was said had no bearing on “extended common purpose”, that is, where the act was not agreed but was only contemplated as something which might be done in carrying out the joint enterprise, as in McAuliffe v The Queen . In the latter situation, it was said, the accused’s liability should be regarded as derivative rather than primary.

Although in Osland v The Queen McHugh J’s discussion generally took up agreement to commit a crime, more correctly to do the acts constituting the actus reus of the crime, when noting Markby v The Queen (1978) 140 CLR 108 his Honour also referred to violence as one of the contemplated incidents of a joint criminal enterprise. In Markby v The Queen it was held that even if the victim’s death was an unexpected consequence of carrying out the agreement to rob the accused could be guilty of manslaughter. His Honour appears to have regarded the liability as primary, not derivative, even where the act was not agreed but was contemplated as a possibility.

In my opinion, there is no sound reason for distinguishing in the present context between criminal responsibility for an act which is agreed as part of a criminal enterprise and criminal responsibility for an act which is contemplated as a possibility in carrying out the enterprise. In both cases there is the common purpose of carrying out the criminal enterprise. In both cases the act of another person is attributed to the accused, in the one case because the accused agreed that the act should be done and in the other case because the accused contemplated the possibility that it might be done. Agreement is a form of contemplation, contemplation that something will be done, and at bottom it is the common purpose and what the accused contemplated will or might be done in carrying out the criminal enterprise which founds the accused’s criminal responsibility. Thus in McAuliffe v The Queen , as is evident from the passages earlier set out, the reasoning was that both an act within the common purpose (agreed) and an act incidental to the common purpose (forseen as a possibility) sufficed for criminal responsibility. And where the parties have agreed to do the acts constituting the actus reus of a crime and are present acting in concert, the objects of the criminal law are equally served by making them liable for acts of each other contemplated as possibilities in carrying out the common purpose as by making them liable for acts of each other agreed to be done. The McAuliffe v The Queen basis of liability so recognises.

Hence I do not agree that the appellant’s liability should be regarded as derivative, requiring a different approach for that which is contemplated as something which might be done from the approach for that which is contemplated as something which will be done.

The appellant submitted that even if the act rather than the crime of the other person was attributed to the accused, it was necessary that the accused have mens rea. He drew attention to McHugh J’s references in the passages I have set out to possession of mens rea in addition to attribution of the actus reus, and submitted that there would not be mens rea if all that was contemplated was the possibility of a killing in self defence.

This, it seems to me, does not assist the appellant. The relevant mental element in cases such as the present is the accused’s contemplation. In R v Powell (1999) 1 AC 1 it was argued that murderous intent in the party to the criminal enterprise was necessary. Lord Hutton (with whom the other members of the House agreed, in some cases with additional reasons) considered (at 25) the possible anomaly “that if foreseeability of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carries out the killing, it is sufficient to constitute mens rea in a secondary party”, but on public policy grounds considered that the anomaly should not assist the argument. And in McAuliffe v The Queen at 116 the Court cited with approval from R v Hyde (1991) 1 QB 134 at 139, itself founded on Chan Wing-Sui v The Queen (1985) AC 168 - “If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder.”

If the acts and not the crime of the actual perpetrator are attributed to the person acting in concert, to use the words of McHugh J, and the actus reus is thereby established, the relevant mens rea is contemplation of those acts as a possible incident in the carrying out of the joint enterprise. There is no added mental element to the effect that the accused contemplated the acts in circumstances amounting to a crime.

In my opinion, therefore, the trial judge was not required to give the jury the directions for which the appellant contended. It may be noted that the direction that, unless the Crown excluded beyond reasonable doubt that Nitrovic killed Yildirim in self defence the appellant must be found not guilty of the murder or manslaughter of Yildirim, appears to have been more favourable to the appellant than the law required.

Although it is not material to the outcome of the appeal, there remains the Crown’s submission that in any event there was no miscarriage of justice because on the evidence the appellant could not but have contemplated the possibility that there might be a shooting otherwise than in self defence. Here in particular the Crown raised the absence of complaint by the appellant’s counsel at the trial, suggesting that realistically there was no question of contemplation of a shooting in self defence. Of course, counsel’s silence could equally be attributed to an appreciation that the directions for which the appellant contended in the appeal were not required.

The jury was generally directed by reference to shootings, rather than infliction of grievous bodily harm. If the jury accepted the Crown case, they would have been satisfied that the appellant contemplated the possibility that Yildirim or Unsal might be shot by one of the ambush party. Could they properly have regarded the contemplation as contemplation of a shooting in self defence?

There was an ambush, with the intention of restraining Yildirim and Unsal and tying them up. If Yildirim and Unsal were readily overpowered there would be no shooting. Any shooting would come if Yildirim or Unsal resisted the attack made on him, possibly but not necessarily in a manner endangering the life or limb of one or more of the ambush party. If the ambush developed in this way, the shooting would either be the better to subdue the man shot, or alternatively in response to the threat to life or limb. As events turned out the alternatives may be thought unreal, and that comes up under ground of appeal 3, but at this point the appellant’s contemplation is under consideration.

So far as the shooting was the better to subdue the man shot, there would be no question of self defence. So far as the shooting was in response to the threat to life or limb, the self defence would not be of the kind making the killing lawful: see R v Nguyen (1995) 36 NSWLR 397, in which Priestley JA said (at 407) - “That kind of self-defence has as its starting point a person who, not wanting to fight, is attacked or threatened with attack in a way leading the person to believe self-defence is necessary for the person's own protection from harm. Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason. Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self-defence in one sense will be necessary, which may lead to the injury or death of the opponent. That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing has been unlawful. The last sentence may need qualification in some circumstances, as for example, if a fight is going on according to broadly understood conventions intended to prevent serious harm and one fighter suddenly breaks the conventions by producing a lethal weapon. That kind of possible qualification does not arise in the present case.”

So also in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 it was said (at 664) - “The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist — where, eg, he is engaged in criminal behaviour of a violent kind — then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.”

On the evidence before the jury, if they were satisfied that the appellant contemplated that Yildirim or Unsal might be shot by one of the ambush party I do not think that they could properly have regarded his contemplation as contemplation of a shooting in self defence. It was not a situation where Yildirim or Unsal might escalate any conflict to one where life or limb of the men in the ambush party was threatened – plainly shooting by Yildirim or Unsal was forseen. Nor was it a situation where the men in the ambush party might break off their attempt to restrain Yildirim and Unsal but be pursued – equally plainly the ambush party were at all times to be the aggressors. For these reasons also the directions for which the appellant contended were not required.

I go to the second limb of grounds of appeal 2 and 2A.

The appellant submitted that the trial judge erred in directing the jury to the effect that it was necessary that the appellant realise that one of the ambush party might shoot Yildirim or Unsal, or contemplate the possibility that an additional crime might be committed in the course of carrying out the criminal enterprise. Language of this kind appears in the passages earlier set out. The submission was directed to the notion of possibility. The appellant submitted that the jury should have been directed to the effect that, if they thought it a reasonable possibility that a risk of a shooting or an additional crime might have occurred to the appellant, but that the risk might genuinely have been dismissed by him as altogether negligible, the contemplation of the risk was insufficient for criminal liability.

The description of a risk which might genuinely have been dismissed as altogether negligible was taken from Chan Wing-Sui v The Queen. In that case it was submitted that, while it was not necessary to have foreseen as more probable than not a contingency in which a weapon might be used, it was necessary to have foreseen that if the contingency eventuated it was more probable than not that the weapon would be used. Delivering the advice of the Privy Council, Sir Robyn Cooke said (at 178) that on the facts there was no evidential foundation for an argument that if one of the accused foresaw the use of knives by the other two, it was “only as a risk so remote that he disregarded it”. He continued (at 179) - “Where there is an evidential foundation for a remoteness issue, it may be necessary for the judge to give the jury more help. Although a risk of a killing or serious bodily harm has crossed the mind of a party to an unlawful enterprise, it is right to allow for a class of case in which the risk was so remote as not to make that party guilty of a murder or intentional causing of grievous bodily harm committed by a co-adventurer in the circumstances that in the event confronted the latter. But if the party accused knew that lethal weapons, such as a knife or a loaded gun, were to be carried on a criminal expedition, the defence should succeed only very rarely. In cases where an issue of remoteness does arise it is for the jury (or other tribunal of fact) to decide whether the risk as recognised by the accused was sufficient to make him a party to the crime committed by the principal, Various formulae have been suggested – including a substantial risk, a real risk, a risk that something might well happen. No one formula is exclusively preferable; indeed it may be advantageous in a summing up to use more than one. For the question is not one of semantics. What has to be brought home to the jury is that occasionally a risk may have occurred to an accused’s mind – fleetingly or even causing him some deliberation – but may genuinely have been dismissed by him as altogether negligible. If they think there is a reasonable possibility that the case is in that class, taking the risk should not make that accused a party to such a crime of intention as murder or wounding with intent to cause grievous bodily harm. The judge is entitled to warn the jury to be cautious before reaching that conclusion; but the law can do no more by way of definition; it can only be for the jury to determine any issue of that kind on the facts of the particular case.”

In R v Powell at 30-31 Lord Hutton expressed agreement with what his Lordship described as - “ … the judgement of the Privy Council in [ Chan Wing-Siu v The Queen ] that the secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible”.

The appellant submitted that in the present case the more detailed directions postulated in Chan Wing-Siu v The Queen were called for. In substance, he said that the directions should have gone beyond unembroidered language of possibility, and should have conveyed that the possibility had to be substantial rather than remote; that where there was to be an ambush in which Yildirim and Unsal would be overpowered and tied up, and the ambush party comprised something like eight men many of great physical strength and experienced in martial arts or security work, the risk of something going awry whereby death or grievous bodily harm would be occasioned to Yildirim or Unsal was one which the appellant could have dismissed.

In McAuliffe v The Queen the Court spoke on a number of occasions in terms of possibility, and approved directions in those terms. The Court’s citation from Chan Wing-Siu v The Queen included reference by Sir Robyn Cooke to a crime foreseen as a possible incident of the common unlawful enterprise. The Court did not advert to different or additional directions where there is “an evidential foundation for a remoteness issue”.

Apart from McAuliffe v The Queen , directions in similar language to that used by the trial judge have been consistently approved, see for example Johns v The Queen ; Mills v The Queen (1986) 61 ALJR 59; R v Sharah (1992) 30 NSWLR 292; and R v Jenner & Masters (2000) 110 A Crim R 512. In the last of these cases it was argued that the directions should have included that the possibility had to be more than a slender chance, and had to be a substantial risk. The Court considered that it was not a case calling for the added directions and that the commonly given directions adequately brought home to the jury the issue they had to decide. On the facts, being agreement to commit a burglary while one of the party had with him a crossbow and a bolt with which it might be loaded, the directions were “not likely to cause the jury to take into account speculative or hypothetical possibilities” (at 518).

Perhaps in some cases more detailed directions will be appropriate, but they are not necessary in all cases. It is not necessary further to consider whether or when more detailed directions will be appropriate. It is fanciful to suggest that they were required in this case.

There was evidence that Yildirim possessed a gun and was proficient in handling guns, and there was evidence that Unsal was a very strong man competent in martial arts, possessing guns and acting as bodyguard for Yildirim. Perhaps some of this should be put aside in the absence of clear evidence that the ambush party knew of these qualities of the persons whom they were to ambush, although May’s evidence included Nitrovic saying before the ambush that “the big guy” (Unsal) had a gun. It remains that guns had been handed out amongst the ambush party, that they spoke of shooting if Yildirim or Unsal shot first, and that their preparations showed that they considered Yildirim and Unsal no easy targets. If the jury accepted the Crown case, I do not think they could have taken the view that the appellant contemplated a remote or insubstantial possibility, or something which could be dismissed as altogether negligible. The directions given by the trial judge sufficiently guided the jury on this aspect of their task, and it may be noted that the appellant’s counsel at the trial did not seek different or additional directions. Ground of appeal 3: The trial judge erred in failing to leave the defences of self defence and provocation to the jury in respect of Mehmet Unsal

Counsel for the appellant at the trial asked the judge to leave the defences of self defence and provocation to the jury in respect of the killing of Unsal. The trial judge declined to do so, saying that “[t]here does not appear to me to be any evidence sufficient to raise those issues in respect of that count”. The transcript of counsel’s submissions in this respect at the trial is by way of a summary only, and is not easy to understand, but the substance seems to have been that the evidence going to Unsal’s shooting permitted an inference of a struggle, with a possibility that Unsal shot and “did not shoot last”, and that the uncertainty was such that the defences should be left to the jury.

I pass over whether, in the light of what I have said concerning grounds of appeal 2 and 2A, any error in failing to have the defences to the jury in respect of Unsal would matter. I do not think there was error.

The appellant submitted that there was evidence sufficient for the defences to have been left to the jury. There was evidence that Unsal had possessed Glock guns, and from its registration to him and the bullet found in his pocket it could be inferred that the Glock automatic pistol found on the grass verge some distance from the premises had been in Unsal’s possession when he entered the premises. One shot could have been fired from the Glock automatic pistol before it jammed. Puta had been shot, and had Unsal’s blood on his clothes consistent with involvement with a struggle with Unsal. Although the evidence was that Unsal’s neck wound would have brought immediate death, it was open to infer, it was submitted, that Unsal brandished the Glock automatic pistol before he was shot, and even that he fired it, and that he was then shot by a man in the ambush party when the man was confronted by a real danger of himself being shot.

It is enough that there was evidence which, if believed, might reasonably lead the jury to fail to be satisfied that the man who shot Unsal was not acting in self defence or under provocation ( Van den Hoek v The Queen (1986) 161 CLR 158 at 162; R v Kear (1997) 2 VR 555 at 557, R v Thorpe (1998) 102 Cr App R 278 at 283). But the jury must act rationally, and not by way of speculation: see R v Lane (1983) VR 449 at 462 and R v Kear at 557. So in R v Marshall (CCA, 17 July 1990, unreported) it was said that to ask whether a question of self defence arises on the evidence involves asking whether there was a realistic possibility that the jury might reach a view of the facts, “that is to say, the evidence and the inferences to be drawn from that evidence, as distinct from the speculation”, which would leave open an arguable case of self defence. The suggested self defence was held to be mere speculation “too far removed from any available view of the evidence to require consideration”.

Accepting that the Glock automatic pistol was Unsal’s, there was no evidence that it had been fired. May and Nanai were told “to grab the big guy” (Unsal), and that he had a gun. May did grab Unsal, and there was nothing in May’s evidence indicating that Unsal was able to or did brandish the Glock automatic pistol before May left the premises. Mullany saw May and Nanai and a person who must have been Unsal, “it was like they were wrestling”. He looked towards the front door and saw what he then described, and then he turned towards the lounge room and saw the prone Unsal. The precision of the order of events will be considered later in these reasons, but even on the view most favourable to the appellant Unsal must have been shot within moments of May releasing him.

Unsal had been struck on the head, and had no defence injuries. From his wounds and the mark on the door jamb and hole in the floor, Unsal first suffered the neck wound and was shot again as he fell to the floor. Perhaps Unsal had been able to free the Glock automatic pistol from wherever he carried it, since someone must have taken it from the premises, but, in my opinion, it would be no more than speculation to infer that he brandished it before he was shot so as to incite his own shooting, let alone to infer that he fired it. The evidence did not provide the necessary foundation for the defences to be left to the jury.

Moreover, Unsal was set upon by men who had waited in ambush for him and were intent on restraining him and tying him up. There should be recalled what I said when dealing with the second limb of the submissions in relation to grounds of appeal 2 and 2A. Even if Unsal had managed to brandish the Glock automatic pistol so as to incite his own shooting, in the circumstances revealed in the evidence any self defence of the man who shot him would not be of the kind making the killing lawful. By parity of reasoning, any notion of provocation does not arise.

It may not have been appropriate to leave self defence and provocation to the jury in relation to the killing of Yildirim, but that favoured the appellant. In my opinion, the trial judge was correct in declining to leave self defence and provocation to the jury in relation to the killing of Unsal. Ground of appeal 5: The trial judge erred in failing to provide any assistance to the jury in respect of the drawing of inferences

In his introductory directions to the jury the trial judge said - “As I have also said, it is for you to decide what inferences or conclusions you draw from the evidence. You must bear in mind, however, that any inferences or conclusions must be fairly available from the evidence. There is no room in a trial such as this for speculation or guesswork. The central issue here is whether or not the accused was present at the house at Bankstown when these killings occurred. However, if you were satisfied that he was present, then questions will arise as to his knowledge of the presence of guns and as to the state of mind of the persons who fired them. Those matters are very much matters of inference or conclusion from the evidence and I will have more to say about those matters later.”

The trial judge did not thereafter specifically direct the jury in relation to drawing inferences or conclusions from the evidence, although he again referred to drawing inferences at the conclusion of the summing-up.

The appellant submitted that the Crown case significantly called for the drawing of inferences from circumstantial evidence. The inferences were of various kinds, for example whether the older guy described by May was the appellant, whether calls in the telephone records showed the appellant’s involvement in preparations for the ambush, and whether the appellant (if a party to the criminal enterprise) contemplated the possibility of the shootings. He submitted that the trial judge should have directed the jury that where they relied on circumstantial evidence, guilt should not only be a rational conclusion but also the only rational conclusion that could be drawn from the circumstances; further, that the trial judge should have directed the jury that they could not draw an inference of guilt unless the facts they accepted pointed so clearly to guilt that they could not reasonably be explained in any other way.

In Shepherd v The Queen (1990) 170 CLR 573 Dawson J, with whom Mason CJ and Toohey and Gaudron JJ agreed, said (at 578-9) - “The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge's Case ; Peacock v The King , Plomp v The Queen . Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick CJ, speaking for the Court, observed in Grant v The Queen : ‘Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed.’ Similarly, in McGreevy v Director of Public Prosecutions , the House of Lords refused to lay down a rule that any special direction should be given in relation to the use of circumstantial evidence.”

The issue in Shepherd v The Queen was whether it was necessary to direct the jury that they could not use a fact as a basis for inferring guilt unless that fact was proved beyond reasonable doubt. It was held that it was not necessary. Dawson J said (at 579) that circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts; that in some cases the jury could draw the ultimate inference of guilt without expressly identifying intermediate facts themselves inferred; and that sometimes it would be appropriate to identify an intermediate fact as indispensable and appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But, his Honour said, this should not be done where the evidence consists of strands in a cable rather than links in a chain, or where it would be unnecessary or confusing to do so, and - “It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.”

The speech of Lord Morris in McGreevy v Director of Public Prosecutions (1973) 1 WLR 276 to which the Court referred is instructive. His Lordship said (at 285-6) - “In my view, it would be undesirable to lay it down as a rule which would bind judges that a direction to a jury in cases must be given in some special form, provided always that in suitable terms it is made plain to a jury that they must not convict unless they are satisfied of guilt beyond all reasonable doubt. In the present case there were only two possible verdicts: one was a verdict of not guilty and the other a verdict of guilty. In the judgment of Lowry CJ it is noted that during the course of a long summing up the learned judge had on at least 10 occasions warned the jury of the need to be satisfied beyond reasonable doubt. The issue before the jury was whether it was the appellant or whether it was someone else who killed the deceased. If the jury were satisfied beyond reasonable doubt that it was the appellant they must have been satisfied beyond reasonable doubt that it was no one else. They could only have been satisfied beyond reasonable doubt of the appellant’s guilt if the evidence which they accepted led them irresistibly to that conclusion. To introduce a rule as suggested by learned counsel for the appellant would, in my view, not only be unnecessary but would be undesirable. In very many criminal cases it becomes necessary to draw conclusions from some accepted evidence. The mental element in a crime can rarely be proved by direct evidence. I see no advantage in seeking for the purposes of a summing up to classify evidence into direct or circumstantial with the result that if the case for the prosecution depends (as to the commission of the act) entirely on circumstantial evidence (a term which would need to be defined) the judge becomes under obligation to comply when summing up with a special requirement. The suggested rule is only to apply if the case depends ‘entirely’ on such evidence. If the rule is desirable why should it be so limited? And how is the judge to know what evidence the jury accept? Without knowing this how can he decide whether a case depends entirely on circumstantial evidence? If it were to apply, not only when the prosecution case depends entirely on circumstantial evidence, but also if ‘any essential ingredient’ of the case so depends, there would be a risk of legalistic complications in a sphere where simplicity and clarity are of prime importance. In agreement with the Court of Criminal appeal I would reject the contention that there is a special obligation upon a judge in the terms of the proposition of law that I have set out. There should be no set formulae which must be used by a learned judge. In certain types of cases there are rules of law and practice which require a judge to give certain warnings though not in any compulsory wording to a jury. But in the generality of cases I see no necessity to lay down a rule which would confine or define or supplement the duty of a judge to make clear to a jury in terms which are adequate to cover the particular features of the particular case that they must not convict unless they are satisfied beyond reasonable doubt.”

In Grant v The Queen (1975) 11 ALR 503 Barwick CJ had said (at 504) that there was neither a rule of law nor an invariable rule of practice that the direction must or should be given in a case in which the prosecution relies upon circumstantial evidence, and in a passage which includes the shorter passage cited in Shepherd v The Queen that - “It must be remembered that the direction suggested by Baron Alderson in R v Hodge , supra, is an amplification of the direction that the Crown must prove its case beyond all reasonable doubt. Unquestionably, there are cases which depend upon circumstantial evidence in which it would be proper and, indeed, there are cases in which it is necessary, for the trial judge to assist the jury by way of some such direction as is now being sought. Whether or not it is either proper or necessary is a matter which, in the first place, the trial judge must resolve for himself. I use the word “proper” because I can well understand that in some cases the direction might confuse more than assist the jury, depending on the nature of the case and of the evidence given in support of it. Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed. The trial judge, therefore, in the case where circumstantial evidence is relied upon by the prosecution, must consider whether or not the case calls for the assistance of the jury by the giving of a direction specifically directed to the application of the onus of proof to circumstantial evidence. A Court of Criminal Appeal when the adequacy of a summing up is challenged, for want of a special direction, will itself consider whether the case is one in which it was necessary to give a further direction. If it concludes that the circumstances of the case call for the assistance of the jury by the giving of the special direction, the court will then consider whether the summing up as a whole was inadequate in its instruction of the jury. But it will be the inadequacy of the summing up as a whole to instruct the jury as to their task which warrants the Court of Criminal Appeal in setting aside the conviction and ordering a new trial.”

In Knight v The Queen (1992) 175 CLR 495 Mason CJ and Dawson and Toohey JJ repeated (at 502) that the direction is “no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt”. In this Court, in R v Clarke (CCA, 29 March 1995, unreported) Hunt CJ at CL said of a direction to the effect of the directions presently in question - “There is no invariable rule of practice, let alone rule of law, that such a direction is required in every circumstantial evidence case. Although helpful in most cases, it is (in turn) no more than an amplification of the rule that the Crown must establish its case beyond reasonable doubt. In some cases, however, such a direction may be necessary to enable the jury to go about their task properly. Where such a case arises, and the direction is not given, this Court must consider whether the summing up, regarded as a whole, is inadequate.

Thus there is no question of an overarching requirement to give the directions which the appellant submitted should have been given. It is necessary to consider the particular circumstances, and as was pointed out in R v Clarke that includes what innocent explanations of the relevant facts were fairly available. And it is necessary to consider the adequacy of the summing-up as whole, with particular regard to whether directions as to proof of the Crown case beyond reasonable doubt were sufficient or whether further assistance was necessary.

As the Crown case was left to the jury, it was less of a circumstantial case than the appellant’s submissions suggested. The jury was told that the central issue was whether the appellant was present at the premises at the time of the murders. It was also instructed, expressly as a direction of law, that “you could not find this accused guilty of either of these charges unless you were satisfied that Mr Mullany’s evidence about his involvement in this event is honest and accurate”; this was repeated later in the summing-up. The direction may have been more favourable to the appellant than the evidence warranted, but it was given and must have focussed the jury’s attention on Mullany’s direct evidence of the appellant’s involvement. Of course, the jury was still faced with inferring further facts from basic facts, both in deciding whether it accepted Mullany’s evidence of the appellant’s involvement and in addressing, for example, the appellant’s contemplation. But on the core matter of acceptance of Mullany’s evidence of the applicant’s involvement as honest and accurate, it was not a case of an innocent explanation for what Mullany said occurred. The appellant was there or he was not there, and the appellant’s counsel starkly put to the jury that Mullany was a liar.

Early in the summing-up the trial judge fully directed the jury that the Crown must prove beyond reasonable doubt the elements of each of the charges brought against the appellant. On a number of occasions thereafter the trial judge reminded the jury of this, including when dealing with the appellant’s alibi evidence, with self defence, and with provocation. When the written outline of directions was provided to the jury the trial judge told them that they must be satisfied beyond reasonable doubt that the appellant was present when Yildirim and Unsal were killed, and when going through the written outline the trial judge repeatedly referred to the need for satisfaction beyond reasonable doubt.

The trial judge concisely summarised the cases for the Crown and the appellant, with particular reference to whether the appellant was present at the premises on the evening of 5 April 1998 and to Mullany’s evidence. At the conclusion of the summing-up the trial judge reminded the jury that, if they were satisfied that the appellant was present at the relevant time, it still fell to them to consider whether the elements of either murder or manslaughter were made out, “which involves examining the evidence and drawing inferences, if you can, about the state of mind of whoever actually shot either of those men and the state of mind of the accused himself”. The trial judge said, “I have set out those matters in the outline.”

In the overall summing-up, it is scarcely conceivable that the jury failed to appreciate that insofar as they acted by inference they should not speculate or guess, and that the appellant’s guilt had to be a rational conclusion and with satisfaction beyond reasonable doubt. That excluded there being any fairly available innocent explanations. The appellant’s counsel at the trial did not seek the directions for which the appellant contended on appeal, and it must be concluded that with his intimate knowledge of the trial he did not consider that, in the circumstances, the directions were necessary in order that the jury properly fulfil their task.

In my opinion, in the circumstances the summing-up was sufficient and neither the directions nor the further assistance for which the appellant now contends was required. That is confirmed by the absence of any request by counsel for the appellant at the trial. Ground of appeal 6: The convictions are unreasonable

It was common ground that the Court’s approach was that described in M v The Queen (1994) 181 CLR 487 at 493, that - “ … the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that 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. On the contrary, the court must pay full regard to those considerations.”

The reasons in M v The Queen continued (at 494-5) - “In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

The submissions in support of the ground of appeal were directed to the appellant’s presence at the premises. As has been noted, the central issue at the trial was whether the appellant was present at the premises at the time of the killings. The appellant contended that it was not open to the jury to be satisfied beyond reasonable doubt that he was present.

The focus was on the evidence of Mullany. Only Mullany identified the appellant as one of the men going to and at the premises. May gave evidence as to the older guy, but the appellant said that May’s description of the older guy did not well match the appellant’s appearance at the time and that May’s recollection that the older guy did not have an accent was inconsistent with the appellant’s speech. As has also been noted, the jury was directed that they could not find the appellant guilty unless they were satisfied that Mullany’s evidence about his involvement was honest and accurate.

In summary, the appellant submitted that the jury ought to have experienced doubt that Mullany’s evidence about the appellant’s involvement was honest and accurate because - (a) Mullany’s credibility was compromised by what occurred when he was interviewed by the police and by his giving evidence under an indemnity; (b) his evidence was not consistent with the forensic and ballistic evidence and the evidence of May; and (c) he had been shown to be incorrect in other respects.

Before going in more detail to the submissions as to Mullany’s evidence, I should deal with one element in the appellant’s submissions. So far as he relied on inconsistency with the evidence of May, the appellant emphasised that, when warning the jury in relation to the evidence of Mullany the trial judge said that both Mullany, and May were involved but - “My warning, however, is directed only to the evidence of Mr Mullany. Both the Crown and Mr Nicholson put forward Mr May as an honest witness. The Crown has submitted to you in some respects he might be mistaken on his recollection, but both sides put him forward as an honest witness. The Crown put forward Mr Mullany as an honest witness. Mr Nicholson, make no bones about it, says he is a liar.”

This does not, however, make May’s evidence a touchstone by which the purity of Mullany’s evidence is tested. An honest witness may be mistaken. The appellant’s counsel at the trial was not likely to brand May as a dishonest witness, given May’s evidence as to the older guy. It is evident that the Crown put both May and Mullany forward as honest witnesses, and if there were inconsistency May could have been the one who was mistaken: the Crown put him forward as in some respects mistaken in his recollection. Inconsistency would, of course, be material to the reasonableness of the jury’s verdict, and inconsistency of Mullany’s evidence with the forensic and ballistic evidence would be another matter. But so far there was inconsistency between May and Mullay the jury’s task included deciding which of May and Mullany was to be accepted, and it was not bound to act on May’s evidence. Indeed, he can hardly have presented as giving an open account of how he came to be one of the ambush party.

In the light of the directions earlier mentioned, the jury must have accepted that Mullany was reliable and credible in his evidence that the appellant went to the premises and participated in the affray. The jury did not have to accept that he was reliable and credible in everything he gave in evidence. The trial judge gave appropriate directions in relation to the assessment of witnesses, including that it was entirely a matter for the jury whether they accepted the whole of a witness’s evidence, some of it, or none of it. That a jury is entitled to do so has particularly arisen in relation to alleged inconsistency in verdicts on different counts, and in that context has recently been considered in R v Markulevski (2001) 52 NSWLR 82. It was there affirmed that, if a jury has a reasonable doubt about a complainant’s evidence going to one count, it is not thereby obliged to have a doubt about the complainant’s evidence going to another count – it depends upon the particular facts and the directions which the jury was given. It was open to the jury to believe Mullany as to the appellant’s going to and being at the premises, but not as to every detail, and a verdict is not necessarily unreasonable because all the evidence can not be reconciled or because not all the evidence of a key witness is accepted.

I go in more detail to the submissions as to Mullany’s evidence. (a) Compromised credibility

Mullany was taken into custody at either 10am or 12.35pm on 12 November 1998. His formal interview commenced at 8pm on that day. He implicated the appellant in his statement. At the appellant’s trial Mullany gave evidence to the effect that the police painted a bleak picture of his future unless he cooperated and that he was assured that if he did cooperate some pending drugs charges would be made to go away; he agreed that the police in effect offered a life in gaol or being a witness against the appellant and the other men. The police officers gave evidence denying Mullany’s evidence in this respect and to the effect that no pressure or inducements were used to obtain Mullany’s cooperation. In cross-examination Mullany agreed that he knew the police wanted evidence against the appellant.

The appellant submitted that on any view Mullany’s evidence was compromised. If he was subjected to pressure or inducements, that tainted his evidence; if he was not, he was a liar. In submissions the knowledge that the police wanted evidence against the appellant was elevated to the police naming the appellant to Mullany, and it was suggested that the long period prior to the formal interview provided ample time for the pressure or inducements and for the appellant to be identified by the police as a man whom Mullany could profitably implicate. The indemnity, it was submitted, was a product of these occurrences, and provided further reason for Mullany to implicate the appellant and in due course give his evidence that the appellant was one of the men going to and at the premises – evidence, it was suggested, the more deceptive because Mullany was in a position to inject participation by the appellant into an otherwise correct and therefore credible account.

There was something of a dilemma for the Crown in the divergence between Mullany and the police officers, but the Crown submitted that in reality Mullany’s position supported the key evidence of the appellant’s participation in the affray. Mullany denied falsely naming the appellant in order to gain an advantage for himself, and as to the police naming the appellant in effect said that he was the first to use the appellant’s name, Ned, and that the police then added the appellant’s surname. It was quite clear that when he gave evidence Mullany knew that there was no question of the drugs charges going away, although it was equally clear that he could possibly obtain a sentencing discount for assisting the authorities. The indemnity was dated 2 February 1999, and Mullany was protected from prosecution in relation to the killings only if he told the truth. Mullany was most unlikely to have invented the appellant’s participation in the affray, it was said, when in November 1998 or February 1999 for all he knew the appellant had an unassailable alibi – the risk of Mullany ending up without the benefit of the indemnity but even worse off was one he would not have taken. All this was overtly left to the jury as going to whether Mullany was telling the truth in his evidence of the appellant’s involvement, and the trial judge reminded the jury that Mullany might “weave a false account around a framework of events which he knows can be independently established” and gave the jury copious warnings as to his evidence. (b) Consistency

There was no forensic evidence demonstrating the appellant’s presence at the premises. This was correctly acknowledged as a matter of little significance. On the Crown case, the members of the ambush party took steps to avoid leaving traces of their presence (the rubber gloves and removal of jewellery). There was no forensic evidence to the contrary of the appellant’s presence at the premises, nor was the absence of forensic evidence demonstrating his presence at the premises in the circumstances noteworthy.

Inconsistency otherwise with the forensic evidence and inconsistency with the ballistics evidence and the evidence of May is best considered as a whole. It received the greatest attention in the appellant’s submissions.

There were some differences between May and Mullany as to the gathering at the 777 Café, although except as to the continued presence of Colin they were not really inconsistencies. There was inconsistency as to who drove the BMW (Curry; the appellant then Curry) and who was in the BMW (Curry, May, the older guy and another man; the appellant, Curry, May.) There was a degree of inconsistency as to what took place at the address at Marrickville (rubber gloves handed around; rubber gloves not handed around until Bankstown), and Mullany gave evidence of some happenings there which May did not mention. May and Mullany put themselves in different places in the lounge room and kitchen/dining area after entering the premises (at the dining table; on the lounge), and each gave some evidence of happenings in the waiting period which the other did not give.

May said that he grabbed Unsal near the linen cupboard, and the appellant suggested that the forensic and ballistic evidence indicated that Unsal’s neck wound was suffered when Unsal was towards the front door end of the hallway because the bullet which probably caused the neck wound struck the door jamb of bedroom 2. Therefore, the appellant submitted, Mullany can not have seen May, Nanai and Unsal “like they were wrestling” when he went into the hallway from bedroom 2 and looked towards bedroom 3. To see Unsal, he would have had to look towards the front door.

From where Yildirim was found, the drag marks, and Nitrovic’s blood on the wall outside bedroom 1, the appellant suggested that Yildirim was shot when he was on the garage door side of the hallway and Nitrovic was on the bedroom 1 side of the hallway. Of more importance, it was said, from Yildirim’s wounds he was not facing whoever shot him. Therefore, the appellant submitted, Mullany can not have seen Nitrovic near the garage door shooting at Yildirim when Nitrovic and Yildirim were facing each other. Yildirim would have been on the other side of the hallway and with his back to Nitrovic.

Mullany gave no evidence of seeing Puta, either when he saw May, Nanai and Unsal “like they were wrestling” or when he saw Curry and the appellant standing near the head of the prone Unsal. From the forensic evidence, it was suggested, Puta must have engaged with Unsal because of the blood on his T-shirt, and Mullany must have had some contact with Puta because his blood was on Puta’s T-shirt and shoes. Therefore, the appellant submitted, Mullany was not giving an honest account of what he saw.

On Mullany’s evidence, after he saw the prone Unsal he saw May alongside him in the hallway and they and others ran out the front door together. The appellant suggested that on May’s evidence May ran out the front door with Mullany and others immediately after disengaging from Unsal, and that Unsal must still have been standing at the time. Therefore, the appellant submitted, Mullany can not have seen Curry and the appellant standing near the head of the prone Unsal. Mullany would have run out of the front door before Unsal was shot.

Lack of congruence in evidence, and differing recollections of some events, is a common manifestation of variance in observation and recall. In particular, it is not surprising that, with something like ten men struggling violently in the ill-lit hallway of a small suburban dwelling, recollections of events measured only in seconds should differ. Nor would it be surprising if in some respects the recollections were inaccurate. It was, as the Crown described it, a “highly kinetic incident”. Yildirim and Unsal were both hit on the head, probably with the butt of the Glock automatic pistol and the butt of the Sportco rifle respectively. Fifteen shots were fired from at least three different guns, wounding members of the ambush party as well as killing Yildirim and Unsal. Yildirim used his knife to some effect. The Crown submitted that so far as there were the discrepancies in the last few paragraphs on which the appellant relied, they were no more than could be expected, and did not undermine the key elements of Mullany’s evidence - that there was a violent struggle and the appellant was seen standing near the head of the prone Unsal.

The Crown submitted that May was not necessarily reliable as to the other man in the BMW, because he could not describe him and when he marked the positions of the men on the plan of the premises the number of men did not allow for the other man. As to May’s description of the older guy, May said that he was trying not to look at the older guy and was “worried about the situation” and “just kept to myself and tried not to pay attention to anyone”. The Crown submitted that May could not be expected to have been precise in his description of the older guy, and that he was substantially correct in his description (long hair, slim, Caucasian (May was of Tongan ancestry), about 5’ 9”, late 40’s) and was less than firm in his recollection of no accent. More important, the Crown said, May saw the older guy serving people in the 777 Café, and “he looked like he was running the cafeteria”. Mullany’s evidence included that the appellant had served him, and there was evidence that no one else who served in the café at the time had long hair. The Crown submitted that overall the conclusion that the older guy was the appellant was well open to the jury, and that the difference between May and Mullany about who drove the BMW was explicable because both had Curry driving after the stop at Marrickville: May could have elided the two stages of the journey.

As to other differences in the evidence of May and Mullany of events prior to the affray itself, the Crown said that they also were unexceptional, and that in any event May could have been the one who was mistaken: that was a matter for the jury. There was general consistency, it was said, in the gathering at the 777 Café and, in particular, in the pay-offs in the back room, in the going to Marrickville and sitting on the brick fence, and in the going on to Bankstown. It must be recognised, however, that general consistency did not greatly bear upon the involvement of the appellant, since there was no doubt that the ambush party gathered at the café and travelled to Bankstown via Marrickville.

As to the affray itself, the Crown emphasised the “highly kinetic incident”. It pointed out that May did not give evidence of Puta’s engaging with Unsal any more than did Mullany, although Puta must have been in the affray. May’s evidence that he did not see Puta after Puta left to “get them” did not mean that Puta was not there, as Puta clearly was there; nor (the Crown submitted) did it mean that the older guy whom May said left with Puta was not there. Unsal must have moved or been moved in the struggle for the very short distance from where first grabbed by May towards the end of the hallway near the entrance to the lounge room, because that was where his body was found, and May’s recollection can not have been complete. This was quite consistent with the bullet causing Unsal’s neck wound striking the door jamb of bedroom 2, because the distances were so small. Mullany could well have seen May, Nanai and Unsal “like they were wrestling” as he said, and the relevant time was so short that he could well have run out the front door with May and others after Unsal had been shot. After all, Yildirim had been shot and was on the floor when May and Mullany ran out, and Unsal’s shooting must have been either just before or just after Yildirim’s shooting. It could not realistically be thought that Yildirim and Nitrovic were or were always in the same places in a small hallway.

The Crown submitted that at least one of Yildirim’s wounds was consistent with him facing the man firing the gun, the holes in or damage to his shirt suggested shots while he was facing or struggling with the man firing the gun, and in the brief and no doubt stressful moment Mullany could have come away with the incomplete recollection of Nitrovic firing at Yildirim. Indeed, Mullany did not say that Nitrovic and Yildirim were facing each other throughout – Nitrovic was firing into Yildirim as Yildirim fell – and some of Yildirim’s wounds must have been from being shot by someone else.

The Crown submitted that Mullany’s recollection of the affray was within acceptable bounds of the capacity for observation in the circumstances, and that it was clear that Unsal’s body was where Mullany said he saw it. Mullany’s evidence was not to be measured on the assumption that May’s evidence was correct in all respects, and could be accepted consistently with the forensic and ballistic evidence. (c) Otherwise incorrect

Mullany was said to have been shown to be incorrect in at least three respects. The first two were the differences from his evidence at committal proceedings earlier noted. The Crown submitted that they were not significant or the kind of variation in recollection to cast doubt on credibility. The third was that in the police statement Mullany had said that the Ford followed the BMW to Newtown and the BMW kept driving when the Ford stopped outside the Amcal chemist, but at the trial Mullany said that the Ford did not follow the BMW and he had not seen the BMW in Newtown. Mullany said that what he told the police was mistaken, but denied having lied to the police and said that what was recorded in the statement was badly worded: reading his evidence as a whole, he meant that he had not meant to convey that the two cars travelled together to Newtown. The statement on a fair reading did convey that: the Crown submitted that it was capable of being read as ambiguous, and that it was for the jury to decide whether they accepted Mullany’s explanation and, if they did not, what the consequences were for Mullany’s credibility and reliability.

Each of the appellant and the Crown added further matters to this Court’s assessment of the answer to the question identified in M v The Queen .

The appellant relied on the alibi evidence, but properly conceded that there were “weaknesses” in it because the two alibi witnesses in the alibi notice, Nevana Radivojevic and Mawardi, did not give evidence. As I have said, there was extensive cross-examination of Vincent, Seamus Vincent and others called in the defence case, and the appellant acknowledged that their evidence did not establish unequivocally that the appellant was not at the premises. He submitted that in combination with the matters to which I have earlier referred the defence evidence could contribute to raising a reasonable doubt that the appellant was present at the premises at the time of the killings.

The Crown relied on the telephone records, submitting that they supported the appellant’s involvement in preparations for the ambush, his presence at the 777 Café when the ambush party gathered before leaving in the cars, his notifying Vincent that the party would be arriving at Marrickville, and his dealing with the aftermath of the affray. The telephone records could have been so viewed, and the appellant acknowledged that the telephone records could found the inference that the appellant was involved without being present at the premises, but they did not have to be so viewed and of themselves were not weighty in establishing the appellant’s presence at the premises. The Crown further submitted that, from the cross-examination of Vincent and Seamus Vincent, it could have been concluded they had concocted their evidence to assist the appellant: again, this was open on the evidence, but was not itself weighty in establishing the appellant’s presence at the premises at the time of the killings.

These further matters must be borne in mind, but for ground of appeal 6 the focus was properly on the evidence of Mullany.

The Crown submitted that Mullany’s evidence was confirmed in a great many respects, such that he could generally be regarded as credible and reliable. For example, his evidence of an initial telephone call from Curry was confirmed by the telephone records, and his evidence of being driven to the 777 Café, seeing Mackic and Oldham, sitting at a table, and being taken to the back room was consistent with May’s evidence and with the admitted participation of Mackic and Oldham in the ambush party; his evidence of rubber gloves being handed around was consistent with May’s evidence although divergent as to when, and was confirmed by the findings of the box of gloves and discarded gloves; his evidence of rope being handed around was confirmed by the finding of rope; his evidence of his own wound was confirmed by a trail of his blood. Much more was pointed to, which the Crown submitted told against Mullany’s evidence being inherently unacceptable or lacking probative force.

On examination of the evidence as a whole, I am not persuaded that the jury should have had a reasonable doubt that the appellant was guilty. Mullany gave evidence as a man who had been involved in the killings and a man whom the jury was invited to think falsely implicated the appellant in order to obtain a benefit for himself. The jury was properly warned as to those matters, and they did not mean that a conviction from acceptance of Mullany’s evidence was not open – that would make a farce of the warnings. Mullany’s evidence was confirmed in many ways not directly concerned with the appellant’s part in the ambush party and presence at the premises, and I do not think it should be regarded as tainted or lacking probative force such that the jury could not accept it as establishing the involvement of the appellant. The jury saw and heard May and Mullany, and was squarely faced with such differences between them as there were; the jury had the task of deciding whether they accepted Mullany’s evidence notwithstanding those differences and with regard to forensic and ballistic evidence and the evidence as a whole. The matters on which the appellant relied in the appeal do not in my assessment go beyond matters which the jury could properly resolve, in fulfilling that task, with satisfaction beyond reasonable doubt of the appellant’s guilt. Ground of appeal 1: A miscarriage of justice was caused by the absence at the trial of evidence to be adduced on the appeal

The appellant and each of Curry, Mackic, Nanai, Nitrovic, Oldham and Puta gave evidence in the appellant’s case in the appeal. In the Crown case in the appeal there was evidence from the appellant’s counsel at his separate trial, Nicholson QC, from counsel’s instructing solicitor Kara Goodsell, and from a former girlfriend of Curry who was the subject of a non-publication order and whom I will identify only as S. All of the witnesses were cross-examined.

The appellant relied on further evidence of three kinds. The first kind was evidence that he was not at or was not seen at the premises on the evening of 5 April 1998. Evidence to that effect was given in the appellant’s case in the appeal by Curry, Mackic, Nanai, Nitrovic, Oldham and Puta. The second kind was evidence that a Mischa Lukic and a friend of Mischa were passengers in the BMW and were at the premises. Evidence going to those matters was given in the appellant’s case in the appeal by Curry, Mackic, Nitrovic and Oldham, with an oblique reference by Puta and some associated evidence about two other men talking to Puta at the premises: it emerged on minimal notice in the course of the appeal. The third kind was evidence from Puta that he (Puta) shot Unsal. It first came out during cross-examination, and was amplified in re-examination and taken up by the appellant without objection from the Crown.

By s 6 of the Criminal Appeal Act 1912 an appeal shall be allowed if the Court - “ … is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice … “. (emphasis added)

An appeal is upheld on the ground of further evidence, that is, evidence adduced in the appeal but not called at the trial, if the court is thereby of the opinion that there was a miscarriage of justice, and “it is important to remember that the fundamental question is whether a miscarriage of justice has occurred, and that the principles that may be extracted from the authorities ‘should not ... be regarded as absolute or hard and fast rules’: Green v The King (1939) 61 CLR 167 at 175”: Gallagher v The Queen (1986) 160 CLR 392 at 395 per Gibbs CJ; see also at 402 per Mason and Deane JJ and 410 per Brennan J.

The submissions in the appeal nonetheless call for consideration of principles found in the authorities. They include a distinction between further evidence which is fresh evidence, that is, evidence which was not available at the trial or could not have been available with the exercise of reasonable diligence, and further evidence which is not fresh evidence.

Before undertaking that consideration, it is necessary to understand more about the evidence on which the appellant relied. I go to the evidence of the first two kinds: it is convenient to leave the evidence from Puta that he (Puta) shot Unsal for separate attention.

The appellant’s former co-accused gave evidence in the appeal in the order Oldham, Mackic, Curry, Nanai, Puta and Nitrovic. The hearing of the appeal commenced on 12 December 2001. At the end of 13 December 2001, while Mackic was under cross-examination, it was adjourned to 25 February 2002, and it continued on and from that date. There is some point in noting the order and the timing. Brief affidavits of Oldham, Mackic and Curry sworn on 17 November 2001 were read. Mackic and Curry gave additional oral evidence in chief, in the case of Mackic by leave when his re-examination went beyond proper bounds. The evidence in chief of Nanai, Puta and Nitrovic was wholly oral, in the case of Puta with further evidence in chief by leave in the middle of his cross-examination.

Oldham said in his affidavit that he “did not see the appellant on 5 April 1998”. He said that he was seen by Nicholson, it seems at a time after the appellant’s separate trial had begun; he informed Nicholson “in bare terms of the evidence that I would give if called”; and he was told by Nicholson that he would be called to give evidence on behalf of the appellant.

Mackic said in his affidavit that he “did not see the appellant on the evening of 5 April 1998”, and that he met Nicholson and a solicitor on two occasions and said to Nicholson that he would be happy to give evidence on behalf of the appellant. The occasions were not specifically placed in time, but in context were after Mackic had been convicted in the joint trial.

Mackic initially did not add to his affidavit, but in re-examination the appellant’s counsel took him to identification of the men walking from the cars to the premises and he referred to Mischa (the name is also spelt Misha in the transcript). The Crown objected that the evidence did not arise out of cross-examination, and it did not, but leave to re-open was requested and given.

The evidence was - “Q. Who did you know of the group that was walking towards Allum Street? A. I know from my car, all the people. Q. Let us go through the car. Who was in the car? A. Russell Oldham, Steve Nitrovic, me in the middle, Sacha Malinkovic and Nanai – I don’t know his name. Q. You know him by the name of Nanai? A. Yes, and Carl Mullany. Q. They were in this group walking towards the Bankstown house at Allum Street? A. Yes. Q. Who else did you know? A. I know Ray Curry, I know Mark May, I know a guy name Mischa. Q. Just stop there for a moment. A guy named Mischa? A. Yes. Q. Do you know his full name? A. No. Q. Can you describe Mischa? A. Similar to me, little bit chubby, I think so, a little bit shorter than me. Shorter than me, yes. Q. What colour hair? A. Black. Q. Are you able to recall what length his hair was at that time? A. I don’t know, is longer than mine. I don’t know, it’s like normal, up to collar (indicating), something like this. Q. Collar length? A. Collar length. I don’t really recall -- OBJECTION. NOT ARISING OUT OF CROSS-EXAMINATION. [At this point leave to re-open was requested and given] ODGERS: Q. You have described his hair as being collar length? A. I think so. Q. Did you say it was dark hair? A. Dark hair, as dark as mine, I don’t know. Q. How old would you estimate he was? A. I think so he was older than me. Q. How old are you? A. 42. Q. How much older than you, roughly? A. I don’t know, I just can’t guess. I just think he looks older than me. I don’t know, I think so he older than me. About 45, 50. Q. How did you know Mischa? A. I know him through some dancing club at Kings Cross, just would be around some dancing club, 777 club or something like this. Q. On how many occasions had you seen him before 5 April 1998? A. I have seen him once in six months, once in three months, once in one month, that has been nothing unusual. Q. Had you seen him earlier that day before you saw him walking towards the Allum street house? A. 777. Q. You had seen him at the 777 nightclub? A. Yes. Q. Had you spoken to him there? A. No. Q. Are there any other characteristics about him that you can remember about how he appeared? A. I know just was chubby and all these dark clothes and things, that is all I remember. Leather jacket, something like this. Q. You recall him wearing something like a leather jacket on 5 April? A. Dark brown, not black. I know I saw him before this. Q. Who else do you recall in this group of people other than the people you have mentioned so far? A. I recall another, probably, two or three persons. They walk on straight by us, wasn’t part of group or part of us. I don’t know, I recall some people walking house to house. Was big group, was pretty big group. Q. Is there any of these people that you know the names of, that you have referred to? A. No, I just know this man, I know Mischa, that’s all.”

This was the first mention of Mischa. It came after the adjournment from 13 December 2001 to 25 February 2002. Oldham had not mentioned him. Going to Oldham’s cross-examination for a moment, he had said that at Bankstown there were, in addition to himself, Curry, Mackic, May, Nitrovic and Puta and three others. He could not name the other three, although one was “of Mediterranean or Arabic sort of complexion” and one was “a younger slim fellow”. Oldham was not recalled to give evidence about Mischa. The man Sacha Malinkovic to which Mackic referred early in this evidence was not at any other time said to have been in the Ford, or even mentioned at all. The reference to him was ignored in the appeal.

Mackic continued - “Q. Can you tell the court who you saw in the house on that evening? A. All of these people were there, including, I don’t know, I can’t remember seeing him outside but I know I have seen him before, but I saw him inside the house, Mischa. Q. Do you recall where you saw him inside the house? A. I can’t. I can’t recall what position he was in the house, whether he was in room or not, I don’t know. I presume he was in the house. Q. You don’t know if you saw him inside the house, you presume he was in the house? A. Yes. Q. Did you see anyone else other than the people you have named in the house? A. No, I just heard voices from left of the room. As I was going into the bathroom, there were voices from the left of the room. I don’t know who it was.”

Mackic marked on a plan where the voices came from, being bedroom 3, and said that he did not see “anyone else other than the persons [he] referred to in that house on that night”. Although there were unidentified people in the group, since Mackic knew the appellant no doubt this was intended to convey that he did not see the appellant in the house on that night.

Curry said in his affidavit that he “did not see the appellant on 5 April 1998”; that he spoke to Nicholson on a number of occasions, the last being before the appellant was discharged from the joint trial; and that he told Nicholson that he did not see the appellant on 5 April 1998 and would be happy to give evidence on the appellant’s behalf, but would rely on the advice of his own lawyers as to whether or not he could give the evidence in a manner that would not prejudice him.

In his oral evidence Curry described going to the 777 Café on the evening of 5 April 1998 with May, Nanai and Colin, and said - “Q. Who did you know there at the time? A. I recall seeing Goran Mackic, Russell Oldham; I saw a guy by the name of Misha - Q. Stopping there. Do you know what Misha’s full name is? A. I believe it to be Lukic. Q. Sorry, I interrupted you. Who else did you see? A. That is all I can recall. Q. Was the appellant present at the club that day when you were there? A. No.”

Curry said that he spoke briefly to all the men he mentioned, and to May and Mullany, and that he gave May $1,000; he said that he had earlier been given the $1,000 by May in order to buy steroids for May from Mullany, but because Mullany did not have the steriods with him he gave the $1,000 back to May. He denied giving any money to Mullany.

Curry said that Nitrovic “approached me and asked me if I could lend him a hand for later on that evening”, saying “that a friend of his was in a bit of strife and wanted to see if I could help him with his problem”. Curry said - “Q. Did he tell you or give you any other details as to what the strife was? A. He told me that we would have to go out to Bankstown. To my knowledge that was it, go out to Bankstown. Q. Did he tell you what you would be doing at Bankstown? A. If need be show a degree of force, or along the mediation lines. Q. As best you can what did he say to you Mr Curry? A. That there was two different groups of guys getting together and if we were needed or called upon then we were to try and keep them apart from each other and try to mediate the situation. Q. You referred to the use of force in an earlier answer, Mr Nitrovic’s referred to the use of force? A. Yes. Q. What did he say? A. If need be and force was required we were to do that.”

Nitrovic gave Curry the keys to the BMW. Curry’s evidence continued - “Q. You then drove the BMW is that correct? A. Yes Q. Tell the Court if you can who was in the BMW? A. Myself in the driver’s seat. In the passenger’s side was Misha. Behind Misha driver’s side passenger seat was a friend of Misha’s, who I forgot to mention, who was at the Triple 7 that night. Directly behind me was Mark May. Q. This friend of Misha’s, do you know his name? A. No, I don’t know. Q. Can you describe him” A. He was thin, Mediterranean, longish sort of hair about four inches past his neck line. He was white or going grey on the sides. He had his hair up in a pony tail that night. I had never observed him to speak English. Q. You say you had seen him at the Triple 7 Club? A. Yes. Q. Was he with anyone? A. He was with Mischa. Q. Were you able to estimate his age? A. Late 40s. Q. Did you describe his hair? A. Yes. Q. How did you describe it again, I missed that? A. It was longish, about four inches past his neck line. It was whitening on the sides, going greyish on the sides and he had it up in a pony tail. Q. How would you describe his build? A. Think. Q. Did he speak in the car? A. No, not that I recall. Q. Is there anything else you can recall about him? A. I recall I was introduced to him through Misha and after Misha had introduced us he said something in a foreign language and all I could understand was my name and the guy’s just turned around and he just shook my hand.”

This was the first mention of Mischa’s friend.

Curry said that at the premises he saw Mackic, Mullany, Nanai, Nitrovic, Oldham, Puta, Mischa and Mischa’s friend. He said that he saw Mischa and Mischa’s friend in conversation with Puta when he (Curry) went into the house. He saw Puta later that evening, but did not again see Mischa and Mischa’s friend.

Nanai said that he was a passenger in a car which went to Bankstown on the evening of 5 April 1998; that he “assumed” that the other passengers were Mackic, Mullany, Nitrovic and Oldham; that he saw a black BMW parked at Bankstown in front of the car in which he was a passenger but did not see who was in it; and that walking to or at the house in Allum Street he also saw Curry, May and Puta. He said that there may have been more people, but that he did not see the appellant. Nanai did not name or describe Mischa or Mischa’s friend.

Puta initially said only that he was present at the premises on the evening of 5 April 1998; that he knew the appellant well; and that he did not see the appellant in or around the premises on that night. He gave no evidence of Mischa or Mischa’s friend, or of the two men whom Curry had said were in conversation with him.

After the leave to give further evidence in chief was given, Puta was asked about other people at the premises. He named a man called Eddie and a Turkish man called Ali, with much elaboration, and gave descriptions. He was talking to them in the hallway, and asked Eddie why so many people had come; Eddie replied, “Nothing is going to happen, just in case they try to be smart with us, we teach them a lesson”. After some more talk Puta went to get “them”, apparently Yildirim and Unsal. He did not see Eddie and Ali when he returned. At the end of this came the leading questions - “Q. Do you know a man called Misha? A. Yes, I know. Q. Do you know what his full name is? A. No, I know him because I see him in the club, big man. Q. Did you see him on 5 April at any stage? A. I saw him in the city but I didn’t see him any more. Maybe he was in the house, I am not sure. Q. You didn’t see him in the house? A. I am not sure, could be there.”

It may be that it was hoped that in the further evidence in chief Puta would name Mischa and Mischa’s friend and say that he was in conversation with them. He did not, and on his evidence the men he was talking to were Eddie and Ali.

Nitrovic said that he was in the Ford when it and the BMW went to the premises on the evening of 5 April 1998, and - “Q. Mr Nitrovic do you know who was in the black BMW when it drove from 777 Club to Marrickille and then Bankstown? A. Not in the whole car. Q. Who do you know was in the car? A. Ray. Q. Ray Curry? A. That is right. Misha. Q. Who is Misha? A. Just another bloke we know. Q. Do you know his full name? A. No. Q. Is it Mr Lijic [sic]? A. Yes I think it is. Q. Who else? A. Mark May and another bloke, I don’t know his name at all. Q. Can you describe this other man? A. Dark complexion, dark hair may be, that’s about it, really. Q. What about the length of his hair? A. May be around his shoulders. Q. What would you estimate his age to be? A. 40 something. Q. And do you know what nationality he was? A. No. Q. Did you ever hear him speak? A. No. Q. Had you seen him on any other occasions? A. I can’t be sure, I might have, might not have. Q. Did he, to your knowledge, have any acquaintanceship with the person Mischa? A. Yes. Q. To your knowledge what was his link with Misha? A. I don’t know, friends, I suppose. Q. How did you know that they were friendly? A. That night they were together. Q. Do you know the circumstances in which they had got into the BMW? A. I can’t be specific, no.”

Nitrovic then gave evidence “Q. Now, at Allum Street are you able to say who was present at Allum Street on that evening? A. I can’t be specific, no. Q. Do best you can and tell us who was there? A. Benny. Q. Benny Puta? A. That’s correct. Myself, Russell, Goran, Carl, Nanai, Ray, Misha, Mark, that bloke that came with us. Q. That bloke you haven’t been able to give a name too [sic]? A. I don’t know his name, and I think there was some other people too. Q. You think there were other people, are you able to give us names for the other persons? A. No I don’t think I saw these people before. Q. Can you describe them please? A. Dark complexion, older looking, maybe in the 40s too, I didn’t pay much attention to them because they were there, I think, before we got there. Q. How many persons are you referring to? A. I think there were only two. Q. Two men? A. Yes. But I didn’t go, did we go – yeah I think it was only two. Q. Was there any other person who came from the two cars to Allum Street other than the people you mentioned? A. No, the other two were already there when we got there. Q. Where were they in the house? A. I think it was around the corridor or living room. Q. Did you have a conversation with these men? A. No. Q. Did you see anyone confer with these men? A. Yes. Q. Who had a conversation with them? A. Benny. Q. That’s Mr Puta? A. That is right. Q. Where was this conversation? A. Around the corridor area I think. Q. Where were you at that time? A. I just walked in. Q. How far away from them were you at the time you observed this conversation? A. I didn’t observe it, I heard it, we all went in together and they were talking.”

Nitrovic said that he and Curry left to move the cars, and when he returned he did not again see the two men who had been talking with Puta; nor did he again see Mischa or Mischa’s friend. He said that the appellant was not “anywhere in or around the Allum Street house” on 5 April 1998.

It will be seen that the evidence in chief of these witnesses in the appellant’s case went beyond evidence that they did not see the appellant or that the appellant was not at the premises on the evening of 5 April 1998. Curry and Nitrovic identified Mischa and his friend as passengers in the BMW. If they were passengers in the BMW, the other occupants of the car being Curry and May, they accounted for the older guy and the other man of whom May spoke and the older guy could not have been the appellant. Mackic identified Mischa as present at the premises, Curry and Nitrovic identified Mischa and Mischa’s friend as present at the premises, and Puta was led to the possibility that Mischa was at the premises. May and Mullany could have mistaken Mischa’s friend for the appellant.

This emergence of Mischa and Mischa’s friend, particularly coming as it did, was very much in question in the appeal. I have already referred to the appellant’s evidence at his trial of unsuccessfully asking Curry, Nitrovic and Puta who the older guy was; the complete evidence should now be appreciated - “Q. Have you ever asked Raymond Curry who was the older guy with long shoulder length straight black hair in his late 40’s, described by Mr May as being in the BMW that night? A. Yes. Q. Did he tell you? A. Well he said it is Benny or Steve’s friend. Benny and Steve’s friend. Benny and Steve know him. Q. Who told you that? A. Ray Curry. Q. Did you ask Benny or Steve who the friend was? A. Yes. Q. Did they tell you? A. No. Q. They didn’t give you a name? A. No. they never told me how many people even in the car. Q. So Raymond has told you it was Benny and Steve’s friend? A. Yes. Q. And didn’t they tell you who he was? A. No they never want to discuss between themselves even. Q. Sorry? A. No discuss between themselves either, anything about the case. Q. But you see Mr Bikic you must have been very concerned to know who this person was because they were being mistaken, weren’t they? A. I have definitely not – me going to help me and whoever else is. Q. Two of your long standing friends you tell this jury know who that person was? A. They knew who this person definitely they knew. Q. And you haven’t found out from them who that person was? A. No I been intending to call them but I get legal advice they explain who is it. Q. You know that people can be subpoenaed to come to court? A. Yes. Q. And you cannot tell us here today the name of this person that you say was in the car? A. No. Q. When did you have that conversation with Raymond? A. Two months after the arrest. Q. How many times have you asked him about that person? A. I don’t know. Generally I been talking with all of them. Q. With all of them? A. Yes but I hear different story from each of them. Q. Have any one of those persons who were your friends who were in the house that night told you the name of who this person, this other person in the BMW was? A. No. Q. You must have been very anxious to find out? A. Might have been anxious but especially Benny has got more knowledge than anybody about this person but he doesn’t want to say anything.”

There is no doubt that, on the appellant’s case, he knew at his separate trial that his former co-accused would give evidence that they did not see him or that he was not at the premises on the evening of 5 April 1998. The appellant submitted that, because of the circumstances in which they were not called at his trial, their evidence to that effect should be regarded as fresh evidence; it was said that he “should not be held to the decision made at the trial”. Although it was less clear, I think it was also submitted that because his asking Curry, Nitrovic and Puta who the older guy was brought no success, so far as the evidence was of Mischa and Mischa’s friend it should be regarded as fresh evidence. And although it was rather dealt within passing, I think the appellant should be taken to have submitted that the evidence that Puta shot Unsal should be regarded as fresh evidence. But the appellant submitted that, even if the evidence was not and was not regarded as fresh evidence, it could and did establish a miscarriage of justice.

That takes me to the principles found in the authorities.

In Ratten v The Queen (1974) 131 CLR 510 the petitioner said that evidence had become available which was not available at his trial, and that it showed that his conviction was a miscarriage of justice. The evidence related to matters of ballistics and to a telephone conversation at about the time of a shooting. It was fresh evidence, but Barwick CJ, with whom McTiernan, Stephen and Jacobs JJ agreed, discussed more generally “the correct course to be adopted by a court of criminal appeal in considering an appeal against conviction based upon the production of evidence not given at the trial” (at 514).

Barwick CJ noted (at 516) that miscarriage is not defined in the legislation. He said that there is a miscarriage where on the evidence at the trial the accused is shown to be innocent or the court considers that there is such doubt as to guilt that the verdict should not be allowed to stand, or where the accused has not had a fair trial. These situations did not involve further evidence.

In this connection his Honour made observations which were not accepted in later decisions of the High Court; I mention them so that the significance of those decisions to the principles presently in question may be better understood. They were (at 516) - “It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.”

His Honour then turned to further evidence, saying (at 516-8) - “There is lastly the situation where the miscarriage is that the jury did not have before it evidence not available to the appellant at the time of his trial which, if believed by the jury, was likely to lead to an acquittal, the jury not being satisfied beyond reasonable doubt of guilt. This may be regarded as an instance in which the accused has not had a fair trial. It will be observed that I have limited the last of these instances of miscarriage to the case of the production of evidence not available to the appellant at his trial. The rule in relation to civil trials is that evidence, on the production of which a new trial may be ordered, must be fresh evidence; that is to say, evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case. However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law. But the underlying concepts of the adversary nature of a trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to the trial of a criminal offence. As Smith J. rightly said in expressing the reasons of the Full Court in this case, "Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence". It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial. Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial. But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair. Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction. ” (emphasis added)

The emphasised words are to be contrasted with what precedes them. The Chief Justice identified what for brevity I will call innocence/doubt of guilt miscarriage leading to acquittal and fair trial miscarriage leading to a new trial. He said that the production of fresh evidence may be regarded as an instance of fair trial miscarriage leading to a new trial, and considered that if the evidence was not fresh evidence there was no such miscarriage, but by the emphasised words further evidence which was not fresh evidence could establish innocence/doubt of guilt miscarriage. And, as will appear, further evidence which was fresh evidence could also establish innocence/doubt of guilt miscarriage. The appellant relied on the emphasised words.

The Chief Justice then came to “what a court of criminal appeal should do in relation to each of these situations in which there may be a miscarriage and in which new evidence is tendered for the court’s consideration” (at 518). He said that the court must assess the credibility of the evidence, in some situations deciding whether it believes the evidence but in other situations it being enough that the evidence is capable of being believed and likely to be believed by reasonable men. The evidence must then be weighed for its cogency having in mind the evidence at the trial. For these purposes the evidence can be tested by cross-examination, and other evidence can be received tending to support, contradict or weaken the new evidence or the inferences which might be drawn from it.

The Chief Justice continued (at 518-9) - “It is now necessary to differentiate the use which the court may make of the new evidence according to which of the instances of miscarriage it is considering. If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged. Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial. Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice. Also, as I have already said, it will not matter in such a case that the trial was fair and without blemish. But if the material before the court of criminal appeal does not convince the court of such a miscarriage, or if the appellant's claim is only for a new trial, the fact that the new material is not wholly fresh evidence in the sense I have described will be material. I have already pointed out that the non-production by the accused of evidence available to him at the trial—available actually or constructively in the sense I have mentioned—will not make the trial in any sense unfair. But there is the situation where, although the trial so far has been fair, evidence is discovered after the verdict which could not reasonably have been available at the trial: that is to say, fresh evidence is produced to the court of criminal appeal. The claim on behalf of the appellant, whether as an alternative to a claim to the absolute quashing of the conviction, or as his sole claim, is that without the consideration of the fresh evidence by the jury a miscarriage will have occurred: the trial will not have been a fair trial. In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take.” (emphasis added)

The Chief Justice concluded (at 520) - “To sum up, if the new material, whether or not it is fresh evidence , convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.” (emphasis added)

The same distinction between innocence/doubt of guilt miscarriage and fair trial miscarriage was carried through in these passages. Further evidence could make out innocence/doubt of guilt miscarriage although it was not fresh evidence, and from the emphasised words further evidence which was fresh evidence could also make out innocence/doubt of guilt miscarriage. It was not enough that the court considered that the further evidence was capable of belief and likely to be believed by a reasonable jury. For innocence/doubt of guilt miscarriage the court decided whether it believed the evidence, and whether the evidence showed innocence or “appropriate doubt”: I will use his Honour’s expression without exploring what it means. If innocence/doubt of guilt miscarriage was not made out, fair trial miscarriage could still be made out, but only if the evidence was fresh evidence. The court did not decide whether it believed the evidence and whether the evidence showed innocence or appropriate doubt. It was enough that the court considered that the evidence was capable of belief and likely to be believed by a reasonable jury.

Many later cases have discussed the quality required of fresh evidence before it will ground a successful appeal. It must be credible in the sense that a reasonable jury could accept it as true, although it is not necessary that the court should think that a reasonable jury would believe it, and it must be such that, when viewed in combination with the evidence given at the trial, it can be said that there is a significance possibility that the jury, acting reasonably, would have acquitted the appellant. It is sufficient to refer to Mickelberg v The Queen (1989) 167 CLR 259 at 302 and R v Stackelroth (CCA, 3 April 1996, unreported). These principles, however, have been as to fresh evidence where the court does not decide whether it believes the evidence and whether the evidence shows innocence or appropriate doubt. The cases after Ratten v The Queen have tended to concentrate on fresh evidence and the approach appropriate to what I have called fair trial miscarriage. What of innocence/doubt of guilt miscarriage, whether or not the further evidence is fresh evidence?

In Lawless v The Queen (1979) 142 CLR 659 the Crown had held the statement of a person who observed material events, but that person was not called and the existence of the statement was not made known to the accused. The statement was relied on as fresh evidence.

Barwick CJ considered that it was not fresh evidence, since it was known that the person existed and should have been known that she may have observed the material events. While his Honour referred to Ratten v The Queen , he did not further discuss miscarriage where the evidence was not fresh evidence. It seems that he did not think the evidence of significance because the accused’s defence had been that he had been elsewhere, and he said only that he did not think that miscarriage had been shown.

Stephen J considered that the statement qualified as fresh evidence, but thought that it lacked the necessary degree of cogency. His Honour’s references to Ratten v The Queen (at 669-71) were as to fresh evidence which might cause a reasonable jury to reach a different result. His Honour did say of some other evidence that the defence had been aware of it and that that was sufficient to dispose of the matter; he did not elaborate.

Mason J said (at 674-6) - “In Ratten v The Queen this Court recently considered the duties of a court of criminal appeal in dealing with an appeal against a conviction on the ground that a miscarriage of justice has occurred based on the discovery of material evidence not given at the trial. There the Chief Justice (with whom McTiernan, Stephen and Jacobs JJ concurred) stated the principles which are to be applied. His Honour observed that when the evidence not called at the trial, whether or not it be fresh evidence in the strict sense of that expression, when taken in conjunction with the other evidence tendered at the trial, shows the accused to be innocent or when it raises a reasonable doubt as to his guilt, the conviction must be set aside outright. The Chief Justice went on to point out that when the evidence not called at the trial, though it fails to show that the accused is innocent or fails to raise a doubt as to his guilt, none the less shows that it is likely that a verdict of not guilty would have been returned by the jury had it had the benefit of the fresh evidence, the court should set aside the conviction and order a new trial, if and only if the evidence in question is fresh evidence properly so called, that is if it is evidence of which the accused was unaware at the time of his trial and it is evidence which he could not have discovered with reasonable diligence. In both these cases the newly adduced evidence, considered in conjunction with the evidence tendered at the trial, reveals a miscarriage of justice showing, as it does, that it would be unsound or unsatisfactory to allow the conviction to stand, in the one case because the appellant should be acquitted, and in the other because there is a likelihood that the accused would be acquitted on a re-trial based on the fresh evidence. The quashing of the conviction by a court of criminal appeal in these cases is based, not on the existence of any irregularity in the conduct of the trial, but on the perceived injustice or unfairness in allowing the conviction to stand when it is viewed against the totality of the evidence including the newly adduced evidence. However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence. The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself it all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand. After all, in a criminal appeal uncomplicated by the existence of newly adduced evidence it is not a ground for the setting aside of a conviction and the ordering of a new trial that the appellate court itself considers that it was unlikely on the evidence that the jury would have convicted. If there was evidence on which the jury could reasonably convict, the verdict must stand, for in such a case there is no miscarriage of justice. So it is when evidence not called at the trial, not being fresh evidence when considered with the evidence given at the trial, leads to the conclusion that the jury could reasonably convict, though it appears to the appellate court that it would be unlikely to do so. There is then no miscarriage of justice because the jury has arrived at a verdict which is unimpeachable and the new evidence produced on the appeal falls short of establishing that the accused should not have been convicted, it being the fault of the accused that the new evidence was unavailable at the trial.”

Mason J thought that the evidence was not fresh evidence, and said (at 677) that it “does not show that there is a likelihood that the jury would have returned a verdict of not guilty had the evidence been led at the trial”.

Murphy J dissented, and his Honour’s reasons did not elaborate the principles. Aickin J said that Ratten v The Queen contained the material principles, but did not relevantly discuss them. His Honour considered that, assuming the evidence was fresh evidence, it was not likely to result in a different verdict.

No doubt because of the manner in which it was argued, Lawless v The Queen reveals the tendency to which I have referred. In Ratten v The Queen Barwick CJ had said that for what I have called innocence/doubt of guilt miscarriage it did not matter whether the evidence was fresh evidence, and so that until the court decided that there was no miscarriage of that kind there was no need to consider whether or not the evidence was fresh evidence. In Lawless v The Queen the petitioner seems to have committed his fortunes to the evidence being fresh evidence, and innocence/doubt of guilt miscarriage even if it was fresh evidence was not considered in any detail. The facts did not lend themselves to showing innocence or such doubt of guilt that the accused should have been acquitted, and perhaps the petitioner saw his hope in what a reasonable jury might do rather than what the court would do.

Only Mason J clearly noted the distinction between what I have called innocence/doubt of guilt miscarriage and fair trial miscarriage, and in what he then said his Honour emphasised that where the evidence was not fresh evidence it had to do more than provide material on which there was a likelihood that the jury would have returned a verdict of not guilty. In that connection, his Honour did not expressly advert to the court itself deciding whether the further evidence was to be believed, although that would seem to be involved in deciding innocence or doubt of guilt. Nor did his Honour elaborate on what had to be established over and above a likelihood that the jury would have returned a verdict of not guilty.

Whitehorn v The Queen (1983) 152 CLR 657 and Chamberlain v The Queen (No 2) (1984) 153 CLR 521 were not further evidence cases. In a number of the judgments there was disagreement with the observations of Barwick CJ in Ratten v The Queen concerning the operative reasonable doubt being the doubt in the mind of the court, see for example at 660, 687 and 523-4 It was said , in summary, that it was for the jury to evaluate the evidence and for the court of appeal to maintain the standards required by law, and that the separate functions should be recognised so that trial by three judges who had not heard the evidence should not be substituted for trial by twelve jurymen who had; so the question was the doubt which ought to have been entertained by a reasonable jury, not the doubt which the court had.

In M v The Queen it was said (at 493-4) that Barwick CJ’s observations had been qualified, and that led to the passage set out earlier in these reasons concluding with the statement that the ultimate question is whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

This was all in relation to miscarriage of justice not involving further evidence. The ultimate question was stated as it was to avoid “substituting trial by a court of appeal for trial by jury” ( M v The Queen at 494). The concern that the jury’s function should not be displaced, however, has implications for where there is further evidence, whether or not fresh evidence, on which the court is asked to determine innocence or appropriate doubt.

The implications do not seem to have been squarely addressed. Gallagher v The Queen , from which I have already cited a brief passage from the judgment of Gibbs CJ, was a further evidence case. But the focus was again on fresh evidence, diverting attention from the court being asked to determine innocence or appropriate doubt.

Gibbs CJ noted (at 396-7) that in Ratten v The Queen Barwick CJ had distinguished - “ … between cases in which the court is considering whether the verdict of guilty should be set aside outright and those in which the court is considering whether there should be a new trial, and said that in the former cases the court should form and act upon its own belief in, or disbelief of, the evidence, whereas in the latter cases it should consider whether the evidence was capable of belief and likely to be believed by a jury.”

His Honour’s reasons then considered the formation by the court of a view as to whether the fresh evidence is trustworthy or unreliable, or only apparently credible or capable of being believed, and if of the latter kind as to what influence it might have had on the jury if it had been available at the trial. His Honour referred to alternative expressions of the test to be applied in the latter event.

Gibbs CJ then said (at 398-9) - “Before I return to consider these suggested tests, it is convenient to refer to another aspect of the judgment of Barwick CJ in Ratten v. The Queen . In that case the learned Chief Justice commenced by considering the various ways in which a miscarriage of justice can arise when there is no question of fresh evidence. He said that there is a miscarriage of justice when on the evidence given at the trial the court is of opinion that there exists such a doubt as to the guilt of the accused that the verdict should not be allowed to stand and added ‘It is the reasonable doubt in the mind of the court which is the operative factor.’ Subsequently this Court has felt unable to agree with that view. In Whitehorn v. The Queen and Chamberlain v. The Queen [No. 2] , it was held that the proper approach is to ask whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused, and that the Court of Criminal Appeal is not entitled to usurp the function of the jury simply because it disagrees with the jury's conclusion. Rather different considerations are raised in a case where fresh evidence is adduced, and the question is whether the court should act upon its own view of the effect of the fresh evidence, or should consider what effect a reasonable jury might have attributed to it, because in that case the Court of Criminal Appeal has to consider material which was not available to the jury. Nevertheless, it seems more consistent with the proper role of the jury that the Court of Criminal Appeal should inquire what effect the fresh evidence might have had if it had been before the jury. … It seems to me, with all respect, that where the trial was by jury, the accused was entitled to have the question of his guilt determined by the verdict of the jury, and that the Court of Criminal Appeal, in considering the effect of the fresh evidence, should consider what effect it might have had upon a reasonable jury.”

His Honour then considered the suggested tests being tests for the quality required for fresh evidence before it will ground a successful appeal, see earlier in these reasons.

I confess to uncertainty, but it seems to me that Gibbs CJ used the expression “fresh evidence” to refer to further evidence, whether or not fresh evidence, and his Honour considered that the court should always consider the effect the fresh evidence might have had upon a reasonable jury. What this meant for the court forming and acting upon its own belief in, or disbelief of, the evidence was, however, not made clear.

The reasons of Mason and Deane JJ referred to the court examining the probative value of the fresh evidence, but for the formulation of the court’s task went to the passage from the judgment of Barwick CJ in Ratten v The Queen concerning fair trial miscarriage - the second of the uses which the court could make of the further evidence and a use which it could make only if the evidence was fresh evidence. Their Honours referred also to a passage from Craig v The King (1933) 49 CLR 429 at 439, again concerned with fresh evidence. Their Honours addressed the finding on appeal that the fresh evidence did not have the requisite plausibility or credibility, and rejected (at 402) the submission that the court had itself did not accept rejected the evidence and had tried for itself the issue of a likelihood of change of the verdict. What I have called innocence/doubt of guilt miscarriage was not in question.

Brennan J said (at 408) - “Although the question for determination in Ratten was the character of fresh evidence required to establish a miscarriage of justice, Barwick C.J. went further, expressing a view as to the approach of a Court of Criminal Appeal in reviewing the evidence in cases where fresh evidence is not produced. His Honour's judgment as to the approach of a Court of Criminal Appeal in cases where fresh evidence is produced commanded the support of McTiernan, Stephen and Jacobs JJ, but his view as to the approach in cases where fresh evidence is not produced has not been accepted in later cases: see Whitehorn v. The Queen ; Chamberlain v. The Queen [No. 2] . The authority of Ratten has not been maintained except in respect of cases in which fresh evidence is produced. Barwick CJ distinguished between cases where the new material ‘convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand’, and cases where fresh evidence is, in the court's view, ‘properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict’. In cases of the former kind, the court quashes the conviction outright; in cases of the latter kind, a new trial is ordered. (The distinction which his Honour drew between new material that is fresh evidence and new material that is not need not detain us here: the new material in this case is fresh evidence.)”

Brennan J distinguished between new material and fresh evidence. His Honour recognised what I have called innocence/doubt of guilt miscarriage, and may have carried through the departure from Barwick CJ’s observations to disapproval of the Chief Justice’s “approach of a Court of Criminal Appeal in reviewing the evidence in cases where fresh evidence is not produced”. But that he did so is contra-indicated by the words in parentheses. It is also not consistent with his Honour’s judgment in Chamberlain v The Queen (No 2) , where in joining in the disapproval of Barwick CJ’s observations concerning the operative doubt being the doubt in the mind of the court he said (at 603) - “The issue which fell for determination in Ratten defines the scope of the principle for which the judgment of Barwick C.J. is authority. His Honour was emphasizing the independent assessment by the appellate court of evidence including evidence not given at the trial in order to determine whether any "miscarriage of justice" has occurred — one kind of miscarriage being a conviction where the appellant is shown to be innocent or where a reasonable jury should entertain a reasonable doubt as to his guilt. In such cases, it would be wrong to allow the conviction to stand and it would be pointless to order a new trial, for a reasonable jury could not convict upon the whole of the evidence that has become available. The function of evaluating evidence not given at the trial and of deciding whether a verdict should be set aside and whether a verdict of acquittal should be entered or a new trial ordered is a function which falls in all its aspects upon a Court of Criminal Appeal. Ratten establishes that when the court itself must evaluate evidence not given at the trial, particularly in deciding whether a verdict of acquittal should be entered, it is of no practical consequence whether the doubt about the appellant's guilt is expressed as a doubt entertained by the court itself, or a doubt that any reasonable jury ought to entertain.”

Dawson J also referred to Barwick CJ’s observations in Ratten v The Queen saying (at 419-20) with reference to Whitehorn v The Queen and Chamberlain v The Queen (No 2) that reasonable doubt or the absence of reasonable doubt on the part of an appellate court was not in every case the same thing as a reasonable doubt or the absence of a reasonable doubt on the part of a jury. His Honour’s remarks were in connection with the assessment of the probative value of fresh evidence not for the purpose of determining the likely outcome of a new trial, but for the purpose of determining whether a miscarriage of justice had occurred because of the absence of the evidence at the previous trial. The issue was the level at which the probative value had to be assessed. I do not think Dawson J had in mind what I have called innocence/doubt of guilt miscarriage, and his Honour specifically put to one side (at 414) “where the new evidence, whether fresh or not, conclusively establishes that the conviction is unsound”.

In Mickelberg v The Queen the focus was again on the evidence as fresh evidence. There was consideration of the quality required of fresh evidence. Deane J and Toohey and Gaudron JJ adverted to reliance on evidence which was not fresh evidence.

Deane J said (at 288) - “The circumstances in which this Court would be justified in receiving further evidence on an appeal from the Full Court of a State Supreme Court are necessarily exceptional. It would not, however, be appropriate to seek to identify them exhaustively in advance. As a general matter, it can be said that, in the context of the policy in the public interest that there should be an end to litigation, further evidence should only be received on such an appeal to this Court in a case where common sense or the requirements of justice plainly require that it be received. Those circumstances will ordinarily not exist if the further evidence is not "fresh" in the sense of not having been available at the time of the hearing in the court below or if it is apparent that the further evidence would not, even if accepted as true, be "cogent" in the sense of raising a significant possibility that it either would or should have affected the decision of the court below.”

Toohey and Gaudron JJ said (at 301) - “The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see, eg, Gallagher v The Queen . There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen , per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen .”

I respectfully have some difficulties in the approach in Ratten v The Queen to further evidence, whether or not fresh evidence, on which the court is asked to determine innocence or appropriate doubt.

The distinction made by Barwick CJ in Ratten v The Queen is driven by whether the outcome is, or perhaps should be, acquittal or a new trial. That is not what determines miscarriage of justice. In either event there has been miscarriage. Why in the one case does the court determine whether it believes the evidence and what its impact on the verdict is, but in the other case determine whether the reasonable jury would be likely to believe the evidence and what the reasonable jury would be likely to think its impact is? (I do not use this as precise language – the comparison is between the court’s belief and thought and the jury’s belief and thought.) This is not a new observation. Ipp J in R v Ilic (2000) 118 A Crim R 378 at 387 said - “In a sense, there is an inconsistency between the approach to be adopted in dealing with a submission that an accused should be acquitted on the ground of new evidence, and that required in dealing with a submission that a new trial should be ordered. In both instances, the determinative factor is whether a miscarriage of justice has occurred, but in the former the determination is based on the new evidence irrespective of whether it is fresh. In the latter, the new evidence is ignored unless it is fresh. It is not clear to me what the rationale is for the "sharp distinction" (per Barwick CJ in Lawless at 665) between the two instances. The existence of a miscarriage of justice is the relevant ground on which this Court is empowered to set aside the verdict of the jury and is the essential question in regard to the admission of new evidence: Bradshaw (unreported, Court of Criminal Appeal, WA, No 142 of 1996, 13 May 1997) per Malcolm CJ. Any qualification or compartmentalising of the inquiry into whether there has been a miscarriage of justice is not based on a rule of law: compare Leuschel v Police (SA) (1999) 75 SASR 231 per Doyle CJ (at 232).”

Although on my understanding of the reasons Gallagher v The Queen did not go so far, an approach by which the court decides whether it believes the further evidence and, if appropriate, gives effect to that belief by acquittal, is not easy to reconcile with the emphases in Whitehorn v The Queen , in Chamberlain v The Queen (No 2) and in that case on the jury’s function of evaluation of the evidence. It is for a jury finally to judge the credibility and impact of evidence.

The dual approach to fresh evidence can bring confusion; perhaps it is the source of the tendency earlier mentioned. The court first determines whether the evidence is to be believed and what its impact on the verdict is. Assume the Court believes the evidence, but does not think it shows innocence or such doubt that the accused should have been acquitted. The fresh evidence test is then applied. No doubt the evidence would be judged by the court credible in the sense that a reasonable jury could accept it as true, but could it be judged that it is such that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant? Assume the court does not believe the evidence. Again the fresh evidence test is then applied. How could it judge the evidence credible and such that there is the significant possibility?

In some circumstances the court may not be in a position properly to decide whether it believes the evidence, or whether the evidence when believed shows innocence or appropriate doubt. Depending on the circumstances, it may be that the court can not properly decide whether it believes A, who says in the court that the cat was black, without hearing and seeing B, who had said at the trial that the cat was white, and without hearing and seeing both witnesses in the atmosphere of the trial and as part of the evidence as it unfolds. Depending on the circumstances, it may be that the court can not properly factor its belief in the evidence into the evidence at the trial if there was otherwise conflicting evidence and it can only infer from the verdict how the jury resolved the conflicts. Again, this is not a new observation, see for example Gibbs CJ in Gallagher v The Queen at 397.

Beneath this respectful discontent is that the statutory test is miscarriage of justice, and there have been many statements to the same effect as the statement of Gibbs CJ in Gallagher v The Queen that the fundamental question is whether a miscarriage of justice has occurred, and that the principles that may be extracted from the authorities should not be regarded as absolute or hard and fast rules. His Honour also said (at 399) that - “ … no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.”

Any power must be exercised in a principled way, and so the principles in the authorities. But they are the servant of the statutory test, not its master. The ultimate question is miscarriage of justice. When the evidence is not fresh evidence, but was known and deliberately not called at the trial, it can be said with some force that there was not a miscarriage of justice. Perhaps evidence of impeccable credibility and of manifest cogency to innocence or such doubt that the accused should have been acquitted will show miscarriage, but miscarriage must be assessed against the features of our system of criminal justice in which the autonomy of the parties to the trial process is valued (see Doggett v R (2001) 182 ALR 1 at 2-3 per Gleeson CJ). Hence, to take up what was said by Mason J in Lawless v The Queen , it is not enough that it show a likelihood that the jury would have returned a verdict of not guilty. Evidence of the exceptional kind is hardly likely to have been passed over without the flagrant incompetence referred to in R v Birks (1990) 19 NSWLR 677, but then the miscarriage is because the incompetence deprived the accused of a fair trial. In the absence of incompetence, why should an accused be able to ask an appellate court itself to decide whether it believes the evidence which was known and deliberately not called, and its impact on the verdict?

If I were to believe the evidence of the appellant’s former co-accused as to the appellant not being at this premises, on the facts in this appeal I accept the appellant’s submission that innocence or at least doubt such that the convictions could not stand would be shown. But I respectfully doubt whether the absolute of belief or non-belief will always be appropriate. I would prefer to ask myself whether on consideration of all material matters, the most material being the circumstances in which the appellant’s former co-accused were not called to give evidence that he was not seen at or present at the premises, the emergence of the evidence as to Mischa and Mischa’s friend, and the credibility of the further evidence in an assessment of the prospects of its acceptance by a reasonable jury, a miscarriage of justice has been shown.

However, the judgment of Barwick CJ in Ratten v The Queen received the concurrence of three other members of the Court, and in Lawless v The Queen was regarded as stating the correct principles. I do not think that the course of the court deciding for itself whether further evidence should be accepted has been rejected in later decisions in the High Court, and it has been taken in, for example, R v Koeleman (2000) 2 VR 20 at 37-8, 41 (although the alternative of miscarriage of justice from incompetence was also considered). I consider myself bound to follow the principles in Ratten v The Queen so far as the appellant relied on the evidence of his former co-accused for what I have called innocence/doubt of guilt miscarriage. I must decide whether I believe the evidence and, acting on that belief and my own view of the evidence at the trial, whether I am satisfied that the appellant was innocent or whether there is such doubt as to his guilt that the verdicts of guilty can not stand. If the determination is adverse to the appellant, I must then decide whether the evidence in whole or in part should be regarded as fresh evidence, and if it is address the further question of the quality required of the evidence before it will ground a successful appeal.

In case my understanding as to Ratten v The Queen be in error, I will nonetheless also address more generally the ultimate question of miscarriage of justice. (a) The evidence as further evidence, whether or not fresh evidence

I go first to the evidence concerning Mischa and Mischa’s friend, now including the cross-examinations on that evidence.

The evidence should be considered together with the appellant’s evidence of his unsuccessful inquiries of Curry, Nitrovic and Puta as to who the older guy was.

I have set out the evidence the appellant gave at his trial. In his cross-examination in the appeal, which was before the evidence as to Mischa and Mischa’s friend emerged, the appellant was taken to this evidence. He said, “I never discussed with them who is it, what is it, at some stage an older gentleman in the car, that is up to them to explain”. Over some pages of the transcript he generally adhered to what he had said at the trial. He asked Nitrovic who the older guy was and Nitrovic told him to ask Curry; he asked Curry and Curry told him to ask Nitrovic; he also said, in relation to asking Curry, that Curry said that the man was “a friend of the bloke who is in the front seat and Steve and Benny because I went to his house”; he asked Puta but Puta was “very difficult to talk because [he] give you one answer like I give to you there, then after five minutes a different answer and then after ten minutes a different answer …”; he said as to Nitrovic and Puta, “They don’t want to talk about other people, that’s the only reply I get”.

The appellant was asked what efforts he had made since his trial to find out who the older guy was. He said that he had not seen his former co-accused until “just now”, and had not had anyone “write any letters or anything of that kind to make inquiries about who this person might be”. So far as the appellant’s evidence in the appeal went, he still did not know that Mischa and Mischa’s friend were said to have been occupants of the BMW.

Mackic said that he had not previously told anyone about Mischa. He had “just heard” that Mischa was dead, that information being in a Serbian newspaper he received in gaol. He agreed that Mischa was smaller than him (Mackic) and chubby; he knew him, but did not like him much. In his evidence in chief Mackic had said that he saw Mischa inside the premises, then changed to presuming that he was in the premises, and in cross-examination Mackic said he did not see Mischa in the premises. His evidence included - “Q. Mr Mackic, I suggest you have just made this up about Mischa? A. No, I don’t. That is not correct. That is true that is my first evidence of remembering him doing things. Q. Have you been speaking to your other co-accused about this? A. No. Q. About, “Maybe we can use Mischa because he is dead”? A. No. Q. Have you ever discussed that with your other co-accused? A. No. Q. Have you heard any of your other co-accused mention this name Mischa, or Miraslav Lukic at any time? A. Oh, some stage everybody knows he was there but nobody don’t discuss.”

Mackic denied that Mischa’s presence was made up to try “to fool the court into thinking that probably he was there and Ned Bikic wasn’t”.

Curry said that the first time he “ever told anybody about Mischa being there that night” was when he spoke to the appellant’s solicitor at some time in the month preceding 25 February 2002. He had not told anybody else about Mischa because “I have never been asked”. The appellant’s solicitor told him that Mischa was dead. He knew Mischa “through some clubs” and used to see him “out and about with his friends”; he knew him “just to say hello and goodbye to”. He did not recall seeing Mischa’s friend before, could not tell the Court anything about Mischa’s friend, and had “no idea” why Mischa’s friend was there.

Curry did not agree that, during a period of some weeks of the joint trial prior to the appellant’s discharge from that trial, there were opportunities for him to speak to the appellant, although he agreed he could have passed notes to the appellant. He said - “Q. Whilst Mr Bikic was still in that trial, you were present when Mr May gave a description of the person he described as this long-haired older gentleman? A. Yes. Q. It must have occurred to you then that that person was apparently being mistaken for Ned? A. The description that Mark gave was the same description that I gave in my statement and I thought to be correct, but I didn’t think it was needed at any stage, no. Q. You must have understood it was May’s evidence that was suggested was a description that coincided with Ned? A. Yes, I believe that to be the implication. Q. You understood that at the time? A. Yes, I do. Q. It was obvious? A. Yes. Q. Why didn’t you tell Ned? A. Tell? Q. Tell Ned about Misha’s friend? A. It wasn’t up to me to do the investigation. My trial was myself. I wasn’t overly concerned about anyone else. Q. Ned was a friend of yours? A. I have never denied that. Q. If you genuinely believed that Misha’s friend was being mistaken for him, then Ned was being wrongly accused, wasn’t he? A. Yes. Q. It was a terrible thing that he should be at that trial? A. Indeed. Q. Why didn’t you tell him about Misha’s friend – say hey Ned, I understand what’s going on here. He has mistaken Misha for you? A. I understand what you are saying but Ned being a person that wasn’t involved, I don’t think had any right to know anything about the case. Q. Are you serious about that? A. Yes. Q. You could have lent your friend, Mr Bikic, a hand by giving him access to information that might very well prove him innocent? A. Mr Bikic at the time, to my belief, had already had his alibi for the evening. Q. How did you know that? A. He was running an alibi defence. Q. How did you know that? A. I spoke to Mr Nitrovic. Q. You didn’t think to tell Ned, for whatever reason, you decided not to tell him because you thought perhaps he was being mistaken for Misha’s friend. A. I knew that was the implication, but no, I didn’t tell him. Q. Can I suggest that the reason you didn’t tell Ned about Misha’s friend is that you have made Misha’s friend up very recently, haven’t you? A. I disagree with that. Q. Did Ned at any stage ask you who was this person in the car? A. No, he didn’t. Never mentioned it. Q. He never asked you whether you knew anything about this person in the car? A. I have never ever discussed the case with him. Q. So if Ned were to say that he had spoken to you about that, that would be wrong? A. Well I don’t recall any conversation between myself and Mr Bikic. Q. You have said quite clearly that you never discussed the case --? A. I don’t believe I have. Q. You want to change that now, do you? A. My recollection is, as I said, we didn’t have a conversation. Q. You would remember it now, wouldn’t you, if you had a conversation about who this person in the BMW was – wouldn’t you? You would remember that if you had that conversation? A. Yes. Q. You remember no such conversation? A. No, I don’t recall any conversation.”

Curry had been visited by the appellant in prison just before the commencement of the appellant’s separate trial. In further cross-examination he at first denied discussing, then said that he did not recall discussing, anything about the appellant’s case.

In re-examination Curry said - “Q. You have been asked questions about any conversations between you and the appellant regarding who was in the BMW? A. Yes. Q. Have you given any information to him as to where he might find out who was in the BMW? A. I thought it would have been obvious – my co-accused. He could have asked any one of them. Q. You think any one of them would have known? A. I know that Goran and possibly Steve but I certainly did not say anything to him. Q. What about Arben Puta? A. I don’t know Arben Puta.”

Puta was cross-examined about Eddie and Ali. It was shown that at his trial he had declined to identify anyone he saw at the premises. He denied that he was making them up. He was not cross-examined about Mischa, or directly about the appellant asking him who the older guy was: the closest was - “Q. Mr Puta, you had some gaol visits from Mr Bikic, is that so? A. Yes. Q. And when you were visited by him you discussed this case didn’t you? A. Little bit, yes. Q. And you discussed what you were going to say? A. No, he know what I am going to say any way, I explained about my position what happened with me and my house, that’s it, nothing, he knows exactly what’s happened, he my friend, I explain to him.”

In re-examination Puta said that he told the appellant the names of Eddie and Ali, and that “I explain to him happened”. This was unwelcome; the appellant’s counsel then suggested to Puta that he had not told the appellant any names, and Puta said that possibly he had not, he was not sure.

Nitrovic confirmed that Mischa was dead. He said he had not told anyone about Mischa prior to the day on which he gave evidence (although presumably that does not exclude telling the appellant’s lawyers at some previous time). It was put to him that he was in the dock with the appellant at the joint trial when May described the older man in the BMW. He said that he had “never spoken to Ned about this matter”. He said - “Q. Didn’t it occur to you at the time that Mark May was mistakenly pointing the finger at Ned Bikic when in fact it was Mischa’s friend? A. Yes, but I did not want to implicate anybody else that was not already charged. Q. Wasn’t this a chance of pointing out for your good friend Ned that here was the answer to his problem, this was the man who may have been mistaken? A. But I never thought Ned would be convicted of this because not being there, I could not see him getting convicted. Q. You say you never mentioned the presence of Mischa’s friend to Ned. A. No. … Q. Did Ned ever ask you who was this person in the BMW? A. After the incident many people ask me what happened and I told them I did not remember and for months and months after I did not remember. I probably did not want to remember what happened. But once I started reading the brief bits and pieces came back to me and I started to remember bits and pieces of it. I told the police I did not really remember what happened”

Nitrovic denied that the evidence about Mischa and Mischa’s friend was made up.

I do not find any of this credible. The appellant had been acquainted with Curry for about two years, and was a long-standing friend of Nitrovic and Puta and a particularly close friend of Nitrovic. That Mischa and Mischa’s friend accounted for the people in the BMW, and that Mischa’s friend was the older guy, was highly important to the appellant’s assertion that he was not at the premises on the evening of 5 April 1998. It is beyond reasonable belief that, if Curry and Nitrovic knew that Mischa and Mischa’s friend were occupants of the BMW and Puta knew that Mischa was at the premises, they would not have told the appellant what they knew. They would have done so even if they had not been asked by the appellant, and Mackic would be expected to do the same. Indeed, according to Mackic, Mischa’s presence was common knowledge. According to the appellant he asked without success, although that was not borne out by Curry and Nitrovic, and Puta’s all but worthless mere possibility that Mischa was at the premises would only add to the difficulty in accepting the evidence of Curry, Mackic and Nitrovic and of the appellant.

The recent emergence of Mischa and Mischa’s friend, Mischa being conveniently dead and his friend being otherwise unidentified, was in my view an invention. I do not accept the appellant’s evidence of unsuccessfully asking Curry, Nitrovic and Puta who the older guy was.

In reaching this conclusion I have had regard to other matters relevant to acceptance of the evidence of the appellant’s former co-accused, particularly their evidence that the appellant was not at the premises or was not seen at the premises on the evening of 5 April 1998, and the conclusion is relevant to those other matters. The evidence should be, and has been, considered as a whole.

Curry, Mackic, Nanai, Nitrovic and Oldham were at the premises with rubber gloves, rope, and guns, waiting in ambush. Some of them qualified in their evidence the use of gloves, and all denied that they had rope and guns; the objective evidence undermines the denials. A natural question is, why were they there? Their explanations for their presence were not believable.

It was put to Oldham that he participated in a plan to surprise and assault Yildirim and Unsal. His answer was, “I was there initially to be part of a mediation. I was not there to be part of an assault”. He was later asked - “Q. I would like you to tell me more about this mediation. What sort of mediation was it? A. I was my understanding there was going to be a meeting between some people. There was a problem to be sorted out. I don’t know what the nature of the problem was, and I still don’t on this day. I suppose as the night went on the probability of a confrontation became more so but I never abandoned the idea of a mediation. Q. What makes you say the probability of it becoming a confrontation became more apparent as the night went on, what happened to make you think that? A. The fact we went into the premises before they arrived. There was, I suppose, a curious development, sinister if you like, but difficult to put together.”

When the rubber gloves were handed out Oldham was “not comfortable with the idea”, and “[i]t seemed a strange development”, but he dismissed the thought.

Oldham was unable to say why he went into the bedroom, although he said that at that time he “expected my role to be one of possible confrontation with these two men, having possibly to restrain them”. He thought it was for Puta, and that his role was “as providing some sort of solidarity” with the other men who were there. He felt solidarity towards them because some of them were friends and good acquaintances.

Mackic said that he happened to be at the 777 Café, and that there was no pre-arrangement. He got into the Ford “[j]ust like always, a group of people in the club and nightclub and we go together”. There was no particular conversation, he got into the car because Nitrovic was his friend and he thought he was “going off for a drink or something”. He did not know why the car stopped at Marrickville, he presumed that it was lost and was not interested to ask. Only when the car arrived at Bankstown did he think something unusual was happening. He spoke to Nitrovic, and Nitrovic said only “we will be here for a short time and we are going back to the city”. He saw some people with rubber gloves, but denied being given gloves. He said - “Q. What do you think they needed gloves for? A. I don’t know. Q. As you are sitting here today, what do you think? A. Maybe help somebody around house. Maybe work. Q. You are not serious with that answer? A. I am serious. Q. You thought there might be work around the house? A. Maybe some removal, maybe some friendship --- Q. You thought you may be helping with the washing-up or something? A. Possibly. I don’t know.”

According to Mackic he had an upset stomach, and went twice into and spent much time in the toilet at the premises, so that he did not see guns being handed out. He said that while at the premises he though he was “just spending time. Having talk and going to the city.” He denied producing rope and showing how it should be used. He said he went again into the bathroom, not because of his upset stomach but because Nitrovic told him “maybe people would come and talk” and that “ninety per cent nothing will happen but if it happen maybe you come out and help us”. He thought that he was asked to go into the bathroom because he presumed “this man doesn’t want nobody to see us”. There was no suggestion of danger, and he did not ask Nitrovic any more about what was happening. He heard noise, came out of the bathroom and ran off.

Curry gave some evidence in chief on this subject. I have earlier set it out, but repeat it in summary. He said that he was at the premises at the request of Nitrovic, who approached him on the evening “and told me he would be needing my help later that evening, that a friend of his was in a bit of strife and wanted to see if I could help him with his problem”. Nitrovic told Curry that he would have to go out to Bankstown and “[i]f need be show a degree of force, or along the mediation lines”: Nitrovic said “[t]hat there was two different groups of guys getting together and if we were needed or called upon then we were to try and keep them apart from each other and try to mediate the situation”. If need be and force was required “we were to do that”.

In cross-examination Curry said that he used the word mediation quite often, and denied that he had heard Oldham use the word or that he had agreed with Oldham to call what was to occur a mediation. According to Curry, the request from Nitrovic came after he had arrived at the 777 Café, and he denied that he had picked up May, Mullany and Nanai before going to the café in order to have “muscle power”. He did not ask Nitrovic any more about what might occur, he acted out of friendship.

Nanai said that he thought that he was getting a lift home. At his own trial he had said that the first he knew of anything untoward was when he and May were in bedroom 3 and May told him that Mullany had said “there are some guys coming and if there is any trouble we have to hold someone”. At that time some gloves were produced and given to him. After May told him this he left bedroom 3 and spoke to Curry, and Curry told him that “someone will have to resolve some issues with these men” and that he should not worry and should just stay in the bedroom. Nanai adhered to this in his evidence in the appeal. It was not what Nanai had told the police when interviewed. He had told them that he was not at the premises, and had agreed at his own trial that it was a lie.

Nanai denied seeing guns or rope, and said that while in the lounge room he was “just waiting for my lift”.

Nitrovic said that his understanding was “that there was some sort of meeting and we were going there to make sure that it all went smoothly”, an understanding gained from a discussion at the 777 Café although he could not be sure with whom the discussion had taken place. He thought that he was doing it “for a friend of a friend”, although he was not sure who; he knew Puta was involved “and that was enough for me to go there”. Although he said he could not go into detail, he thought that Puta was going to be “an intermediary between two sets of groups”, and that it was “spur of the moment” and “you could say that I was going to go there to make sure there was going to be no grief”. At Bankstown he anticipated the possibility of a fight, and (importantly) said, “That is why we brought all those muscle heads with us”. However, he did not ask and did not care who the opposition might be, it did not occur to him that they might be armed, and he did not have or use a gun on the evening. That in particular was controverted by the forensic evidence.

It is sufficient to say that, in the light of the objective evidence, these inconsistent and inherently dubious stories are just that, stories. They are not credible. There was an arranged ambush party, equipped with gloves, rope and guns. The purpose was not mediation, even on an unusual use of the word, or house cleaning. The telephone records showed many telephone calls consistent with making arrangements for the gathering of the party, its journey, and its aftermath. When they were put to various of the appellant’s former co-accused, the responses were to the effect that they were in frequent social communication. If so they were remarkably sociable, and it remains that the records contribute to there being an arranged ambush party.

Puta can be dealt with more generally; for the moment I still pass over particular reference to his evidence that he shot Unsal. I have already said that at the joint trial Puta had refused to say that the appellant was not present at the premises on the evening of 5 April 1998, giving a variety of reasons not all of which were rational but some of which could reflect adversely on the appellant. He was taken to that evidence in cross-examination. The variety of reasons was increased, without greater rationality. Why Puta now was prepared to say that the appellant was not present at the premises on the evening of 5 April 1998 was not well explained. He seemed to say that he had been told that he would be in contempt of court if he did not give the evidence, but his earlier refusal had been under pain of contempt of court and he had been charged with contempt. According to Puta, Nitrovic had said that he would be coming to the premises for a meeting and he (Puta) was surprised when so many men arrived, although at one point he said that he had explained that he was concerned if the people he was to bring to the premises were armed and did not want any shooting. Recital of much else in Puta’s evidence is not necessary. Puta was shown to be a liar and to well merit Nicholson’s description (see later in these reasons), “evasive and unpredictable and sometimes incredible in his evidence”. It would be difficult to place any weight at all on his evidence; specifically, I do not think any weight can be placed on the evidence given in the appeal to the effect that the appellant was not at the premises on the evening of 5 April 1998. Puta, of course, did not support Mischa’s presence, but my view of Puta’s credit is such that I do not take that into account one way or the other.

None of the appellant’s former co-accused came to the witness box as a man whose word would readily be accepted, and throughout the evidence of each there were instances of lies, answers at odds with objective evidence, or plainly unbelievable answers, apart from in the areas to which I have already gone. I do not propose to detail them.

The cross-examinations were directed, amongst other things, to what the witness did and saw at the 777 Café, on the drive to Bankstown, and at the premises. The lack of knowledge and inability to recall on a great many matters was as marked as the minimising of any involvement in the affray, and few of the witnesses who were asked whether they had discussed with another or others, or the appellant, the events of the evening acknowledged that they had done so. As a general statement, the distancing from the appellant and from the events of the evening extended well beyond why they were there. I give a particular illustration as to each of why his evidence was not satisfactory. Mackic gave three different explanations for leaving his mobile telephone in the Ford. Curry, a friend of the appellant and frequent driver of the appellant’s car with a 777 number plate, said he did not know the appellant had anything to do with the 777 Café. Nanai had said more than once at his own trial that he could not say one way or the other whether the appellant was at the premises on the evening of 5 April 1998, at a time when he knew what the appellant looked like. Nitrovic’s explanation for parking so far from the premises at Bankstown was that he did not want the cars “implicated” if there was a fight, which is at odds with his other evidence downplaying the significance of any fight. Having heard and considered all the evidence, none of the appellant’s former co-accused appeared or appears to me to be reliable or believable, in the case of Puta strikingly so.

I do not believe the evidence that the appellant was not at the premises on the evening of 5 April 1998 or, so far as it was given, the evidence as to Mischa and Mischa’s friend. I am not satisfied that the appellant was innocent or that there is such doubt as to his guilt that the verdicts of guilty can not stand.

S had given a statement to the police on 24 September 1998. Through an affidavit sworn on 20 February 2002, she gave evidence in the appeal that its contents were true and correct.

The statement included that at about 5 pm on 5 April 1998 S rang Curry and was told, “I’m in the middle of something. We’ll talk later. I’m on my way to pick up Mark.” Some time before midnight that evening Curry came to S’s unit. He was distressed, and said, “Steve’s going to die. It’s wrong, it wasn’t supposed to happen this way.” Curry made a number of telephone calls, and told S something of what had happened. In particular, he said, “I went back into the house and Ned was still in there”, and expressed concern about what happened to May, Mullany and Nanai “when everybody split”. Then or over the next few days Curry said to S words to the effect that the reason they were at the premises that night “was because those two men were hired hit men who had a contract out on Ned”, and that the appellant “was shot and has gone to America”.

There was much more in the statement, including evidence capable of supporting various of the appellant’s former co-accused being associated as a gang using physical force for debt collection, but for reasons which will become apparent I do not go to it.

The cross-examination of Curry in the appeal had put to him, from the statement, that he had told S of the appellant’s presence and involvement, and he had denied doing so. The Crown relied on the evidence of S to prove that Curry had made prior inconsistent statements, see s 106(c) of the Evidence Act 1995, and also as evidence generally available. The appellant did not object to the evidence or its use as hearsay, saying only that its hearsay nature must be taken into account. His counsel cross-examined S principally to suggest that she had earlier lied to the police, had included in her statement of 24 September 1998 matters which had not in fact occurred in order to assist the police and avoid prosecution for her earlier lies, and as part of that had fabricated conversations with Curry in order to implicate the appellant. S agreed that she had earlier lied to the police, saying that she had lied so that they “wouldn’t harass me any longer”, but maintained the correctness of her statement.

I comfortably reach my conclusion that the appellant’s former accused are not to be believed without regard to the evidence of S. If I were to pay regard to her evidence, I would accept it in preference to the evidence of Curry, but it is not necessary to address what use it could properly be put to in the appeal. It certainly does not and would not assist the appellant. As an aside, the statement was known to Nicholson and without doubt could be seen as a reason for not calling Curry at the appellant’s separate trial. (b) The evidence as fresh evidence

As I have indicated, the appellant submitted that the further evidence should be regarded as fresh evidence; he urged an approach similar to that in R v Ilic . In that case Ipp J said that he “approach[ed] the question whether the new evidence tendered by Ilic … is to be regarded as fresh in accordance with the broad approach as to whether there has been a miscarriage of justice … “(at 389). Notwithstanding that Ilic knew the witnesses on whose evidence he relied as fresh evidence, knew that they had been very near the scene of the crime and might give evidence to assist him, and deliberately decided not to speak to them, the evidence should be taken into account in the appeal. That was principally because Ilic believed that the witnesses were antagonistic to him and would not help him, a belief which his Honour considered was correct. The result was a new trial, not innocence or doubt leading to acquittal. It was specifically said that the accused had not made a deliberate decision not to rely upon the evidence.

It is first necessary to make findings as to the circumstances in which the appellant’s former co-accused were not called at his separate trial.

The appellant gave his evidence in chief by an affidavit sworn on 19 November 2001.

The appellant said that prior to the commencement of the joint trial his lawyers had obtained statutory declarations from Curry, Mackic, Oldham and Puta each stating that, to the best of the knowledge and belief of the declarant, the appellant was not present at the premises on the evening of 5 April 1998. The statutory declarations were obtained in contemplation of a separate trial application. The application was unsuccessful, but the appellant was later discharged from the joint trial. When his separate trial began the appellant “desired and understood that Mr Nicholson would call all the co-accused as witnesses in the defence case in my trial”, and was not aware of anything which might prevent that.

During his trial the appellant heard Nicholson tell the Crown that Puta would not be called in the defence case. He had not been aware that Nicholson was considering not calling his former co-accused. He wanted Puta called so the jury would know of his admissions that he (Puta) shot Unsal. He asked Nicholson why , and was told, “I don’t know what he (Puta) is going to say about what happened in the house”. The appellant said to Nicholson that he did not care what Puta was going to say about what happened in the house, “We already have his statement and if he tells the truth and says that I was not there, nothing else matters”. Nicholson replied, “No. I don’t want to call him. I’ll go and see the others.” The appellant took this to mean that Nicholson would ensure that he would call the others and that their evidence would cover any evidentiary gap that might otherwise be left by the failure to call Puta.

Nicholson later told the appellant that he had visited Mackic and Oldham and that he would be calling them in the defence case. However, during the appellant’s cross-examination some days later and without any prior consultation, Nicholson “advised the Court that none of the co-accused would be called as witnesses”. The appellant spoke to Nicholson, asking why Nicholson was not calling his former co-accused, and Nicholson replied, “We don’t need them. We are home. I’m running the case.”

The affidavit concluded - “At this time I thought there was nothing I could do. Over the preceding months, I had had many arguments with Mr Nicholson but I was never able to persuade him to do what I wanted in respect of the conduct of the case. It did cross my mind that I could sack him for failing to follow my instructions in relation to Mr Puta and the other co-accused, but I was deterred from this course by two significant considerations. First, I was conscious of the duration of my association with Mr Nicholson and the fact that he of all people should have been in the best position to assess my case. I did not feel that I could argue against his assessment even though it conflicted with my instructions as to the conduct of the defence case. Secondly, I was aware of the fact that my trial had been plagued with a lot of difficulties and that the Court might think that I was simply trying to abort another trial by the process of sacking my counsel. I thought that I would lose my bail and that I would be forced either to proceed unrepresented or be forced into another trial at short notice with the difficulties of instructing a new counsel on such a complex case. Against my better judgment, I decided that I had little choice but to not sack Mr Nicholson and to accept the decision he had made without consultation. I now bitterly regret that decision. The only explanation that Mr Nicholson gave to me for his decision, was that the co-accused were not needed because I was going to be found not guilty. However, the trial took considerably longer than had been anticipated. I understand that Mr Nicholson was booked to conduct a trial for another client, a Mr John McGarvy. Mr Nicholson regularly met with Mr McGarvy during luncheon adjournments in the latter half of my trial, During addresses and directions to the jury, he read Mr McGarvy’s brief on the bar table. I believe that Mr McGarvy’s trial was listed to commence on a date before the ultimate conclusion of my own trial and that Mr Nicholson was able to obtain a brief postponement of the trial date. I believe that there would have been no possibility of Mr Nicholson being able to appear for Mr McGarvy had my co-accused been called as witnesses in my trial.”

It should be said at once that I do not accept this evidence as a correct account of what occurred between the appellant and Nicholson in relation to calling the appellant’s former co-accused, or of the nature of the appellant’s acceptance that they not give evidence. Further, the less than direct allegation that Nicholson was distracted from the appellant’s trial by, and determined that the appellant’s former co-accused should not be called so that he could appear in, another trial is without foundation and is rejected: the appellant’s lawyers should not have been party to that unsubstantiated and unworthy element in the appellant’s case in the appeal.

Nicholson did not agree with this account of the circumstances in which the appellant’s former co-accused were not called. His evidence in chief was by an affidavit sworn on 10 December 2001. Cross-examination brought affirmation and amplification, but not departure.

Nicholson agreed that the statutory declarations were obtained in contemplation of the separate trial application. However, it was not his advice when the separate trial commenced that each of the appellant’s former co-accused should be called. From the commencement of the trial there was continuing discussion of which, if any, of the former co-accused might be called in the defence case. At the beginning of that trial the appellant wanted some of them called, probably all, but he (Nicholson) reserved the position.

Nicholson agreed that at the commencement of the trial the appellant wished that Puta be called to say that he shot Unsal, but said that throughout the Crown case there was discussion of whether this should be done and that he advised the appellant that it would be against this interests to call Puta. Nicholson’s advice was based upon the evidence Puta had given at the joint trial and his demeanour generally, in addition to his assessment of the state of the evidence in the Crown case. All of this, and the reasons for the advice, was discussed with the appellant before Nicholson told the Crown, at the end of the Crown case, that Puta would not be called. The appellant accepted the advice.

Nicholson and Kara Goodsell saw Mackic and Oldham at Long Bay on 7 April 2001, and told them that they would probably be called in the defence case. Nicholson did not go to facts with either of them, but simply told them to tell the truth, and although he told them that they would probably be called in the defence case he had not finally decided whether or not that should occur but wished to have it open; he had in fact decided that they should not be called unless circumstances changed. He told the appellant that if anyone were to be called it should be Mackic and Oldham, as the most plausible of the former co-accused. He thereafter finally decided that none of the appellant’s former co-accused should be called in the defence case, and so advised the appellant, again with discussion of the reasons for the advice with the appellant. The advice was founded on Nicholson’s assessment of the Crown case, and was accepted by the appellant. That occurred prior to the opening of the defence case.

The reasons for Nicholson’s advice to the appellant were explained at length and a number of times in his affidavit and cross-examination. They were founded on a detailed analysis of the evidence made by Nicholson and continually updated during the trial. For present purposes they can be summarised briefly, in the light of the appellant’s arguments in support of ground of appeal 6 and the submission that the jury ought to have experienced doubt that Mullany’s evidence of the appellant’s involvement was honest and accurate.

In Nicholson’s assessment, the defence could rely upon the attack on Mullany’s credibility, inconsistency between Mullany’s evidence and the forensic and ballistic evidence, and the evidence of May. Calling one member of a gang to say that the appellant, alleged to be the leader or a member of the gang, was not present at the scene of the crime for which the members had been convicted, could shift the focus of the trial from the exculpation offered via May’s evidence to the association between the gang members and the appellant and whether the gang members were lying to protect the appellant, and to the gang members’ contradictions of May’s evidence. As to Puta in particular, at the joint trial Puta had refused to say that the appellant was not present at the premises on the evening of 5 April 1998. He had been erratic and unreasonable in his answers at this time, and (although Nicholson did not put it this way) there was a flavour of fear of retribution; as well, Puta had what the appellant himself referred to an erratic presentation in the witness box and what Nicholson at one point referred to as an unusual aggressive demeanour. He was “evasive and unpredictable and sometimes incredible in his evidence”.

Nicholson denied that he advised the appellant that he would be found not guilty (“We don’t need them. We are home.”). He advised the appellant that his prospects of acquittal were quite reasonable. There were no arguments with the appellant, there was constant consultation and discussion, and the decision not to call the appellant’s former co-accused was made after consultation and discussion with the appellant and with his informed agreement.

Kara Goodsell gave evidence generally confirmatory of Nicholson’s evidence. I do not think it necessary to go to it in detail.

As will by now be evident, the appellant’s cross-examination went beyond the circumstances in which his former co-accused were not called. As to that matter, he was inconsistent (for example, at one point denying that Nicholson discussed the calling of Nanai and at another agreeing that there was discussion and that he “had input”), and he was incredible (for example, saying that he “had no option but to let [Nicholson] run the case” because “I did not want to upset Mr Nicholson. If I upset him I am in more trouble”; and “if I push anything he turn his back on me”; and “If I provoked him he going to do something else, he going to call them and ask the wrong question, I don’t know”). He contradicted his affidavit (for example, saying that he did not argue with Nicholson at any time, because he “backed off all the time”). His stance was that he had no choice but to go along with the way Nicholson wanted to run the case, although he did not agree with it. At times he accepted that there was discussion of the advantages and disadvantages of calling witnesses.

Timorous acquiescence is at odds with the appellant’s clear close involvement in the detail of his trial. Nor is it consistent with him being an obviously forceful personality – he is no shrinking violet – and of some intelligence. I have no hesitation in preferring the evidence of Nicholson to that of the appellant.

The appellant expressly disclaimed a case that Nicholson was incompetent in his conduct of the trial. In my opinion, the appellant’s former co-accused did not give evidence at the trial because Nicholson reasonably advised the appellant that it would be against his interests to call them and the appellant made an informed decision to follow the advice. The appellant himself considered that it was the more advantageous course in his interests.

As to the McGarvy trial, the correct name was McGeary. Nicholson said that McGeary lived in Queensland, that he did not have the McGeary brief on the bar table although he did read it in the barrister’s room at the court after the jury had retired in the appellant’s trial, and that the McGeary trial had been the subject of a flexible ruling that it should commence at the conclusion of the appellant’s trial. At no stage during the appellant’s trial was his attention distracted by consideration of the McGeary trial, he did not turn to it until after the jury had retired, and there was no connection between the McGeary trial and the decision not to call the appellant’s former co-accused in the defence case. Nicholson was not cross-examined upon this. I accept it.

For the evidence that the appellant was not seen or was not at the premises on the evening of 5 April 1998, on these findings any approach similar to that in R v Ilic is not available. The evidence can not be regarded as fresh evidence.

Although the appellant did not clearly give it separate attention, it is arguable that the evidence as to Mischa and Mischa’s friend is in a different position, in that it may be said that despite reasonable diligence the appellant did not know until after his separate trial that some of his former co-accused could give evidence that Mischa and Mischa’s friend were in the BMW and at the premises.

If the evidence as to Mischa and Mischa’s friend was fresh evidence, the question would be whether a reasonable jury could accept it as true and whether, when viewed in combination with the evidence given at the trial, there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant. My conclusion that the evidence is an invention does not deny it the status of evidence. But whether it was or should be regarded as fresh evidence is a matter for this Court. The appellant knew that Curry, Mackic, Nitrovic and Oldham went to and were at the premises, and from their statutory declarations that Curry, Mackic, Oldham and Puta were prepared to give the evidence there indicated. The most minimal diligence would have included asking them about the older guy, and more generally about who was in the cars and at the premises, and if the evidence were genuine and not a recent invention would have led to the identifications of Mischa and Mischa’s friend. To hold that the evidence as to Mischa and Mischa’s friend was or should be regarded as fresh evidence, I must be satisfied that the appellant asked and was fobbed off.

I am not satisfied. I do not accept the appellant’s evidence of unsuccessfully asking Curry, Nitrovic and Puta who the older guy was. On the assumptions that the evidence as to Mischa and Mischa’s friend was not an invention and was not known to the appellant, it was available to the appellant by the exercise of minimal diligence and no acceptable evidence explains why it did not become known. It was not and should not be regarded as fresh evidence.

For completeness, even if the evidence as to Mischa and Mischa’s friend were to be regarded as fresh evidence, it follows from what I have earlier said that I do not think it has credibility such that a reasonable jury could accept it as true. Although nothing was said of it in submissions, a step in this should be exposed. At the time of the appellant’s separate trial Mischa was still alive. If the evidence in chief as to Mischa and Mischa’s friend had then been given, rather different considerations going to its credibility would have been in play, whether Mischa was called to give evidence being one. To whatever extent the fresh evidence is to be placed hypothetically before the original jury, however, it seems clear enough that it is the credibility of the evidence assessed as matters stand at the time it is raised in the appellate court which matters. Much fresh evidence would not have been in existence at the time of the original trial, and it would be artificial to treat it and whatever bore upon its credibility as given in evidence at the time of the original trial.

It is appropriate now to deal with Puta’s evidence that he shot Unsal. It must have been anticipated by the appellant’s counsel, since his written submissions prior to the hearing of the appeal referred to it. As I have said, however, it first came out during cross-examination, and then really because introduced by Puta unresponsively. It came out as little more than the assertion that he shot Unsal in self defence, and was then amplified in re-examination.

In re-examination Puta said that he was attacked by someone. He got free, and then saw Unsal “with the gun trying to put it in the firing position”. He ran forward and grabbed Unsal and the gun. They struggled, the gun went off and Puta was shot. The struggle continued “and during the struggle Unsal got shot in the neck and he lost power and went down and I shot him one more time and he was died”.

The appellant submitted that Puta’s evidence contradicted Mullany and that it also provided a basis for the shooting of Unsal being in self defence, and related these two matters to the submissions on grounds of appeal 6 and 3. Amongst other matters, he suggested that Mullany had mistaken Puta for the appellant as the man standing over the prone Unsal.

It is sufficient to repeat that I regard Puta as a witness of no credibility, and specifically do not accept this evidence. The evidence is not and should not be regarded as fresh evidence, since on the appellant’s case he wanted Puta called to say that he shot Unsal. If it was or was regarded as fresh evidence, it follows from my view of Puta’s credibility that I do not think it had credibility such that a reasonable jury could accept it as true. For these separate reasons, understood in the light of what I have said about the other further evidence, the evidence does not avail the appellant. It is not necessary to consider what effect, if any, the evidence could have on the findings of guilt. (c) Miscarriage of justice more generally

I am able to explain quite shortly why I do not think a miscarriage of justice has been shown to have occurred, drawing upon what I have already said. The appellant knew that his former co-accused would give evidence to the effect that he was not at the premises on the evening of 5 April 1998. On the assumptions earlier made for the evidence as to Mischa and Mischa’s friend, minimal diligence would have made it known to the appellant. The appellant knew of the availability of evidence that Puta shot Unsal. On the findings I have made, he made an informed decision to accept the advice of Nicholson that his former co-accused should not be called, himself considering that it was the more advantageous course in his interests, and on the findings I have made no reason has been shown for the evidence as to Mischa and Mischa’s friend being unknown to the appellant. Putting aside whether I believe the evidence of the former co-accused, I have no hesitation in finding that it lacks credibility and that there is not a significant possibility that the jury, acting reasonably, would have acquitted the appellant. On the contrary, if the appellant’s former co-accused had been called at his separate trial I consider that there would have been a shift in focus of the kind of which Nicholson spoke, to the detriment of the appellant. Neither procedurally nor in substance did justice miscarry. The result

I propose that the appeal be dismissed.

SULLY J : I have read the judgment of Giles JA. I agree respectfully with the entirety of his Honour’s reasons. I agree with the order proposed by his Honour.

LEVINE J : I have read in draft the judgment of Giles JA. I respectfully agree with his Honour’s reasons and the order he proposes.