Regina v Quill (a pseudonym)

1. [1]

   DUNFORD J: This is an appeal by Quill against his conviction on two counts of murder, one count of shoot with intent to murder and two counts of set fire to a dwelling house with intent to murder, and three counts of attempted murder. He has also applied for leave to appeal against the sentences imposed on him following such conviction, particularly the life sentences for each of the two murders.

2. [2]

   In the early hours of the morning of 17 August 2000, [name redacted] (aged 8) was woken from her sleep at her home at [address redacted] by a smoke alarm. She took a cordless telephone outside and dialled 000 at 5:50am. Police arrived at the house some time later to find fire well alight in most of the house. Senior Constable Steve Cremerius rescued [name redacted] (aged 5) and [name redacted] (aged 4) who were trapped by the fire in the hallway of the house. [name redacted] had been shot twice in the head although neither bullet penetrated his skull. Cremerius then went to look for a hose around the side of the house and whilst there he noticed a five litre drum in the garage lying on its side on the roof of a motor vehicle with a lit wick protruding from its opening. He informed Sergeant Mahoney of his find and Mahoney proceeded to douse the flame with the hose causing the drum to roll off the car and down the driveway. Fire Brigade officers arrived shortly after and extinguished the fire in the house.

3. [3]

   The bodies of the children’s parents were found inside the house. [Name redacted] was found in the rear family room of the house. Post mortem examination showed that he had died as a result of four gunshot wounds to the head and neck, and he was also found to be under the effect of morphine and cannabis. According to Dr Bradhurst, the pathologist, the injuries to [name redacted] were consistent with his arms being restrained behind his back, with his wrists tied together. The source of the fire in the north-eastern part of the house was found to be on or near the deceased [name redacted], and the fire had collapsed the roof above him onto his body. A cushion was found near [name redacted]’s body with gunshot holes in it and [name redacted]’s blood on it, suggesting the shots had been fired through the cushion.

4. [4]

   [name redacted] was found in the main bedroom of the house. The post mortem examination showed that she had died due to twenty three stab wounds to her chest and four gunshot wounds to her head as well as strangulation, and she was also affected by morphine. The victim’s hands and feet were bound by wire, but the wire around the hands differed to the wire around the ankles. Constable Johnson formed the opinion that the wire tied around her ankles was similar to the wire that had been cut from a Sega adaptor found in the rumpus room, and some months later, the wire around her wrists was found to be ordinary telephone cord. A ligature made of two socks tied together was found around her neck. The fire in the main room had been started on or around the deceased [name redacted], and as with the deceased [name redacted], the roof above [name redacted] had collapsed onto her due to the fire.

5. [5]

   Of the 4 gunshot wounds to her head, none had entered her brain, but one had penetrated into her sinus. Of her 23 stab wounds, 3 had penetrated her heart and 13 had penetrated her left lung. There was a haemorrhage associated with one of the gunshot wounds, the stabbing and the strangulation, which showed that those injuries were sustained while [name redacted] was still alive.

6. [6]

   Lucas van der Walt, scientific officer, examined an undischarged .22 calibre Winchester cartridge that had been found at the back porch of the house and five .22 discharged cartridges also found at the house. He noted that all cartridges were of the same type and brand and the same weapon had been used with all six cartridges. These cartridges could have been fired from a rifle, pistol or a revolver. Another .22 cartridge subsequently found in the ceiling of the appellant’s residence was a Smith and Bellot brand, different to the five cartridges found at [address redacted].

7. [7]

   Detective Senior Constable Barnes, the fingerprint expert who attended the scene, said that due to heat, smoke and the water used by the fire fighting crew, the crime scene had been destroyed. There was one fingerprint found on the Ford that was later matched to [name redacted], and one found on the five-litre petrol drum that had the wick in it which did not match the appellant, [name redacted], [name redacted] or any police officer in attendance. No DNA evidence linking the appellant to the offences was found and, although petrol and components were detected in many areas of the crime scene, none was found on the clothing of the deceased.

8. [8]

   When police arrived at the scene they spoke to the children. [name redacted] said “I saw my father light a car in the garage and then light the house and I saw him run away”. [name redacted] said “My Dad shot me in the head two times…..with a big shotgun…..My mum is dead…..I saw my Dad slash her up”. Later, [name redacted] told Dr Domazet “A man shot me in the head two time…..I don’t know who the man was”. Whilst in the ambulance he kept repeating to his grandmother “the man shot mummy and daddy”. At [suburb redacted] Hospital [name redacted] said, “Daddy lit the fire and I hate him”. She later spoke to Constable Nemec in the presence of her aunt [name redacted], and when asked who was at the house the previous evening said “[name redacted] was, Mum, us three kids, that’s all.”

9. [9]

   She did not know “[name redacted]’s” last name but gave a description of him. She said that he was not there when she went to bed (which she later told Sen Cons Fookes was about 9:30pm after watching Blue Heelers) “but when I woke up the first time after I went to bed, he was. He was with Mum in the kitchen calming things down. When [name redacted] was calming things down, he (Dad) was in the kitchen.” She also said that the last time she saw her father “he was lighting the fire at the car…..seen him run down the driveway after he set fire to the car”.

10. [10]

    Both the deceased used cannabis daily and also used amphetamines, and both had been selling cannabis in small deals. During 2000 both had commenced using heroin, apparently on a daily or near daily basis. They purchased their heroin with cash and not on credit. They had a volatile relationship with a number of separations and during such separations they took different sexual partners. During the early part of 2000, [name redacted] and [name redacted] were separated for a number of months and [name redacted] resided with [name redacted] at their address in a sexual relationship. [name redacted] introduced [name redacted] to the appellant who subsequently supplied [name redacted] and [name redacted] with amphetamines on a continuing basis.

11. [11]

    The appellant lived with his de-facto, [name redacted] and their 2 sons at [address redacted]. [Name redacted] returned to the family home in about February 2000 and [name redacted] moved into the garage for several months before moving to [address redacted] in about May or June 2000, leaving a vehicle and property stored in the garage.

12. [12]

    During the day and evening of 16 August, a number of family members and friends had physical and/or telephone contact with [name redacted] and [name redacted] and there was no indication that they feared for their safety. In particular, [name redacted] had a 10-15 minute conversation with [name redacted] commencing at about 10:31pm when [name redacted] rang her. [Name redacted] did not hear anything unusual in the background, [name redacted] “was in good spirits”, and they arranged to meet the following day. Video footage from the Shell Service Station at [name redacted] Shopping Centre, [address redacted] showed [name redacted] entering the service station at about 9:47pm that evening and [name redacted], who worked at the service station, said he bought some cigarettes and an ice cream and they had a brief conversation. He appeared to be on foot and she thought it was about a 10-minute walk from the service station to his home at [address redacted].

13. [13]

    At about 12:10am on 17 August, [name redacted], who lived nearby, walked past the deceased’s premises on his way home and did not notice anything unusual, but at about 12:30am, he heard what sounded like a gunshot followed by another similar loud bang. About 1:50am, [name redacted], who lived at [address redacted] woke to the sound of screaming and heard a voice call out “No, no.” He heard what sounded like two people running through the house at 52 and then a few seconds’ later five “whip cracking” sounds. [Name redacted] woke up when she heard a bang and then 4 or 5 more, whilst [name redacted], who lived at no. 50, got up twice during the night, and at one stage she heard muffled voices whilst she was in her bathroom.

14. [14]

    At about 8:20pm on 17 August 2002, Detective Sergeant Walpole and Det Snr Cons McCloskey spoke with the appellant at his home at [address redacted]. They told him they were making inquiries into a fatal house fire at [address redacted], that they understood that a man named [name redacted] had been at the house the night before and they asked if it was he. He said, “I know the people that live there but I wasn’t there last night”. When asked, “When were you there last?” he replied, “I was there yesterday in the day”. He was asked, “Were you there last night?” He said, “No, yesterday afternoon only a little while before tea.”

15. [15]

    Det McCloskey said “What time would that have been?” and he said “I don’t know, maybe about 7 o’clock I don’t wear a watch”. Asked if it was dark when he got home, he replied, “It was getting dark”. He said the other persons in the house when he was there was “[name redacted] and [name redacted]” (i.e. [name redacted] and [name redacted]). He said “Their little girl was there, I didn’t see the boys”. Asked whether anyone else came in the house whilst he was there he replied, “No, I just went there to borrow tools off [name redacted].” Det McCloskey asked “Is there anybody by the name of [name redacted] that you have seen at the house?” He said, “There’s a big Maori fellow, dark skinned that I have seen up at the house.” Det McCloskey said “Do you know who he is?” to which he replied “No, but I could probably find out.”

16. [16]

    Neither officer made a record of this conversation at the time because the appellant was considered to be witness and not a suspect, but at about 5:30pm the following day, after completion of the recorded interview with the appellant, Det McCloskey made a note of the conversation in his notebook in consultation with Sgt Walpole. The note was not shown to the appellant.

17. [17]

    About 10am on 18 August 2000, police returned to [address redacted] and invited the appellant to participate in an electronically recorded interview as a witness, which he did. In such interview, the appellant detailed his knowledge of the persons who lived at [address redacted] and said that he went there on the evening of 16 August because one of [name redacted]’s friends ([name redacted]) came over to his home and told him that [name redacted] had gone to Sydney, so he went to see if this was so. He said (AA 82-94) that he arrived between 4 and 7pm on dusk. [name redacted] and [name redacted] were there and he saw the daughter. He said he went inside, sat down and they talked. [name redacted] told him that [name redacted] had moved to [suburb redacted]. He said that [name redacted] and [name redacted] each had a shot of heroin. He did not see the boys.

18. [18]

    When the police informed him that the male body in the fire had been identified as [name redacted], he replied “I thought he was already dead” (AA 240-242). He said that he and [name redacted] had gone up to the shed to get some lawnmower fuel because he was going to borrow [name redacted]’s lawnmower so they checked another lawnmower ([name redacted]’s) but it was empty (AA 277-281). He described handling the lawnmower (AA 309-314). He then said that they went through [name redacted]’s property in the garage and they were going to pack the boxes “when the other bloke turned up and then we went down the house and then they all started fighting” (A 332). He said he had been in the garage for probably an hour (A 351) and left [redacted address] at 7pm (A 355).

19. [19]

    He said that the man arrived whilst he was in the shed with [name redacted] and did so in a dark, sporty car like a Honda Prelude and parked it in the driveway (A 362-376). He did not recognise him. After he arrived, he and [name redacted] started fighting (A 384). They argued about money (A 385-94). There was pushing and shoving whilst the appellant stood 2-3 metres away (AA 396-407). He described the other man as big, bald, goatee “with scruff” olive skin, hard to understand, 6’7” taller than the appellant who was 5’9”, solid build, “Maori or Koori or something” (AA 413-427). The man was demanding money and threatening to take “stuff” out of the house and to stab [name redacted] (AA 449-450). The other man hit [name redacted] in the face and gave him a couple of knees. He described a knife that the other man had (AA 464-69, 473-486).

20. [20]

    He said that he was told to go inside and get [name redacted], and as he came out of the house with her, he saw the other man had the knife up to [name redacted]’s throat saying “I want my money, I want my money”. [name redacted] said “I’m gonna call the cops”, and went inside but could not find the telephone so she went to the bedroom (AA 489-490), whereupon the other man went storming into the bedroom and ripped the phone out of the wall. The appellant tried to grab the phone but the other man swung at him with a knife so the appellant just bolted. He saw the daughter come out “with all the noise” and he told her to “go back to the bedroom, that everything was all right” (AA 489-498).

21. [21]

    The appellant then went out the back and saw [name redacted] all bloodied. Meanwhile, the other man was with [name redacted] in the bedroom arguing and the appellant shut the door to the bedroom (A 498-504). He described [name redacted] lying out the back on the ground in a foetal position, not unconscious but with a lot of blood on him. He was half in and half out the back sliding door. The appellant helped him onto the couch (AA 511-532).

22. [22]

    He said (A 579) that the other man said “Just about money. Come here you fucking bitch or I’m gonna get you. I’m gonna get up and get you. I’m gonna fucking take everything you own…..you owe me money, I want my money. Your car’s a piece of shit”. The appellant said to [name redacted] “do you want me to call the cops?” but he could not find the telephone. [name redacted] said “just fuck it” and the appellant said “Well, ring me tomorrow”.

23. [23]

    He then walked home along [address redacted] past the [name redacted] Shopping Centre, [name redacted] Road near the football field. He had no money to call the police and he did not think of calling 000. He had no idea what time he was heading home but when he got home, he had a couple of beers and put a video on. He said he was at [name redacted]’s house for 2-3 hours maximum (A 622). [name redacted] and the man were still arguing in the bedroom when he left and the man said to him “you know the rules, you know the system” (A 625). When he got home, the “kids were in bed and me missus was in bed. She was half asleep” (A 649). As he walked home, the Tigers Football Club was open (T 689).

24. [24]

    After the interview, he provided police with a blood sample and the clothing he had been wearing on the night of 16 August 2000 which had been washed, but there was no DNA evidence linking the appellant to anything that was found at the crime scene. He also showed police some registered firearms he had in his safe, none of which was a .22 calibre weapon.

25. [25]

    On 20 September 2000, in a lawfully intercepted telephone call, the appellant spoke to [name redacted] in the course of which he said “..…they were tied up with telephone wire…..I mean she was. Tied up with telephone wire. They’ve already – they’ve shown that.” [Name redacted] asked how he knew that she was tied up with that, and the appellant replied “Cause they told me”. Det Waterman said that until that intercepted telephone call, police believed [name redacted] had been tied with the Sega wire but were uncertain, which was why they had seized the speaker wire during an earlier search at [suburb redacted], but it was not until 29 November 2000 that Nicholas Mayeaux, Laboratory Manager of Telephone Equipment NSW examined the wire recovered from the right wrist of [name redacted] and identified it as telephone line cord such as connects the telephone to the wall socket.

26. [26]

    [name redacted], the de facto wife of the appellant said that he went out on 16 August 2000 at about 7pm to see [name redacted] to borrow power tools. She went to bed about 11pm and did not see him again until 9am the following day, when he was jumpy. He told her he had been up to [name redacted]’ house, that somebody turned up and they were fighting; and that it got too heavy so he left. She said that she was woken up by the baby grizzling loudly about 3am on 17 August and got up and got him a bottle from the kitchen. There were no lights on and she did not see the appellant so she was a bit upset that he was not home, although she did not look for him.

27. [27]

    She said that she and the appellant went shopping for most of 17 August. At some point, she heard news of the fire and the appellant told her that the man was pretty big and of dark appearance like a Maori or Islander. He told her that he and [name redacted] had a fight earlier but they resolved it (T 1240). She also said that the appellant had a lot of rifles locked away in a gun safe in the laundry and he had the only key. She said he had a long rifle and a short rifle which he had showed her once in the lounge room.

28. [28]

    On about 12 or 13 September 2000, the appellant spoke with Andrew Kazar of the [name redacted] Chronicle and told him that he had seen a third man who had “bashed [name redacted] in the driveway and had pulled out a knife and attempted to threaten [name redacted], and that at that time, [name redacted] came up out the back, she obviously heard some shouting. She then ran back into the house followed by [name redacted], followed by [name redacted] and followed by the third man.”

29. [29]

    On 18 December 2000, he had a further conversation with Mr Kazar in which he said that the other man was wearing a beanie, that he (the appellant) was in the garage with [name redacted] about 10:20pm and he left about 11-11:30pm. He said when the man followed [name redacted] into the bedroom he “swore at me and threw me out of the room and slammed the door. That was when their daughter came out and I told her to “get back in because Mum and Dad were having a fight…..I then went to the sink, got some water and a tea towel to tidy him ([name redacted]) up, picked up a glass coffee table and wiped blood off it to tidy the place up a bit while I was asking him what was going on.”

30. [30]

    About a month after the fire, the appellant told [name redacted] that he was there that night and there was a large Islander man who came around demanding money from [name redacted] and [name redacted], and who assaulted them. He went to assist them but he was assaulted and left.

31. [31]

    In about October 2000, he told an old friend of his from primary school, [name redacted], that he was there on the night and saw somebody in the house and saw the male and female tied up and fires already lit. He heard shots and “did the bolt”. He went home and “apparently someone had seen him running home”. He was there “to collect his money or some money”. In cross-examination, [name redacted] agreed he had read about 10 articles about the death in the newspapers and that there was nothing in his statement to police about the first telephone call that had said anything about the appellant saying he saw a male and female tied up, fires already lit, that he had heard shots and did the bolt, or that on his way home someone saw him; and he agreed that he could have adopted into his memory details that he had read in newspaper articles.

32. [32]

    On the other hand, approximately three weeks after the fire, the appellant told another friend of his, [name redacted], that he was there collecting some tools that were owed to him by a friend who had given them to [name redacted]. He was in the garage looking for the tools when a car came up the driveway and a fairly large Tongan-Maori man got out of the car, and came up the driveway. [name redacted] met him in the backyard and they had a heated conversation. They went inside whilst the appellant remained in the garage, but a short time later, the appellant went into the house and he could hear an argument coming from the bedroom. He asked [name redacted], who was in the kitchen what was going on and she replied that it was “just business”. The appellant then opened the door, he saw [name redacted] facing him and he asked “[name redacted], what’s happening, are you okay?” to which [name redacted] said words to the effect of “Yes, yes, nick off [name redacted]” and he left after [name redacted] said to him “No, that’s fine. Leave it alone [name redacted]”.

33. [33]

    About a week after the fire, the appellant told [name redacted] that the appellant drove past [address redacted] at about 5am on the morning of 17 August and saw a Fijian or coloured man coming down the driveway, mumbling to himself.

34. [34]

    [Name redacted] gave evidence of a conversation he had with the appellant when he told him that he was at the deceased’s house, but left before anything happened and at some point said “It all went wrong, it wasn’t meant to happen that way”.

35. [35]

    There was evidence of a drive-by shooting in [address redacted] with shotgun pellets on 10 July 2000. After the fire, police found evidence of some damage to [address redacted] although at the time, it appeared that the major damage had been caused to the adjoining premises number 50. The shots had come from a 12-gauge shotgun, and [name redacted] gave evidence that he had been driving the appellant in his car on an occasion, which he thought was in May, when the appellant fired a shotgun in the direction of a house in [address redacted], and when asked to explain, said words to the effect of “They owe me money”.

36. [36]

    The appellant did not give evidence but relied on what he had told police in his recorded interview and there was also called in his case as a witness, [name redacted] who lived in [address redacted] and did not know the deceased. He said at a time around his birthday on 15 August, he went to his niece’s home near the [name redacted] shops and was later walking home past [address redacted] when he heard people talking loudly. The voices were coming from the back of the yard, near the shed of number 52 and as he came past the driveway, he saw a Maori man who had just gotten out of a car speaking loudly, walking towards two people at the back of the house who were arguing. He was a bit scared and continued to walk home.

37. [37]

    In cross-examination, he agreed he did make a statement to police on 23 November in which he told police that about a week before the murders, he had been for a walk about 7pm and when he walked past [address redacted], he saw a man in the front yard of number 52 who scared him. He said that after he made his statement to police, he told the Detective about the Maori he had seen, but agreed he had said nothing about the Maori in his written statement and agreed he had told police that he was concerned that he might have imagined the whole incident about seeing the Maori because he was drinking. He described the car the man exited from as being a dark “old sort of Kingswood hotted up, not a sporty coupe”.

38. [38]

    The appellant was charged with the murders of [name redacted] and [name redacted] on or about 16 or 17 August 2000 at [suburb redacted], with shooting at [name redacted] with intent to murder him and 2 counts of setting fire to a dwelling house with intent to murder [name redacted] and [name redacted] respectively.

39. [39]

    The trial commenced on 5 August 2002 before Davidson AJ and a jury and concluded on 17 August 2002 when the jury returned verdicts of guilty on all counts. On 20 December 2002, the judge sentenced the appellant to imprisonment for life in respect of each of the murder counts and on each of the other counts to imprisonment for 18 years to date from 12 March 2001, the date on which he was arrested and subsequently refused bail.

40. [40]

    The appeal and application for leave to appeal were not instituted within the time prescribed by the Rules but it is conceded by the Crown that it is an appropriate case to grant an extension of time.

Ground 1: The trial judge erred in admitting evidence of the statements allegedly made by the appellant to police on 17 August 2000.

1. [41]

   As noted above, Det Sgt Walpole and Det Snr Const McCloskey gave evidence of a conversation they had with the appellant at about 8:20pm on 17 August in the front yard of his house. No notes of the conversation were made by police at the time. The following day, the police interviewed the appellant and such interview was video recorded. No questions were asked of the appellant during that interview to confirm what he had said in the earlier conversation, and it was only after the video recorded interview that any note was made by police of the earlier conversation. Even then such note was not shown to the appellant and he was not invited to adopt it.

2. [42]

   The account given by the appellant in the earlier conversation was inconsistent with the account given by him in the subsequent recorded interview because in the earlier conversation he claimed he left the house before dark and that he saw no one else at the house other than the victims, and although he said that he had seen “a big Maori fella, dark skinned” at the house, he did not suggest that person was there the previous day. He also claimed in the earlier conversation that he went to the deceased’s house to borrow tools “off [name redacted]”, but [name redacted] gave evidence that he had made no arrangement to lend tools to the appellant and the latter had not borrowed any of his tools.

3. [43]

   The appellant’s case at trial did not dispute that the earlier such conversation had taken place, but claimed that the police version of its content was not accurate. However, although the police were cross-examined as to its content, both on the voir dire and at the trial, no alternative version of the conversation was put to them, and the appellant did not give evidence either on the voir dire or in the trial. This meant that the only version of the conversation before the trial judge (and subsequently before the jury) was that given by the police officers. In a judgment delivered on 12 August 2002, the learned trial judge admitted the evidence.

4. [44]

   Both at the trial and on appeal, it was firstly submitted that the evidence of the former conversation was inadmissible because there had been a failure to comply with the requirements of s 108 of the Criminal Procedure Act 1986, now re-numbered as s 281. The section was formerly s 424A of the Crimes Act 1900.

5. [45]

   That section provides that an admission made in the course of official questioning by an accused person who at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an indictable offence, not being an indictable offence which can be dealt with summarily without the consent of the accused person, is not admissible unless a tape recording of the interview containing the admission is made; or if there is reasonable excuse for not making such recording, there is a tape recording of a subsequent interview in which the accused person states that he or she made the admission in those terms.

6. [46]

   “Investigating official” includes a police officer, and it has been held that an “admission” includes any statement which may be adverse to its maker in the outcome of the proceedings: R v Horton (1998) 45 NSWLR 426, R v Esposito (1998) 45 NSWLR 442.

7. [47]

   His Honour found that the time of the conversation on 17 August, the appellant was not a suspect and further that at that time, he could not reasonably have been suspected of having committed an offence. There is no challenge to the finding that he was not a suspect, but it was submitted that his Honour should have found that at the time the appellant could reasonably have been suspected of having committed an indictable offence.

8. [48]

   Det Sgt Walpole testified on the voir dire as to his state of mind at the time of the first conversation. He said that it looked like a double murder but they were not entirely sure, and there was some suggestion that it may have been a murder-suicide. He had been told there had been a house fire with two adults deceased and that [name redacted] had said that she had seen her father putting fire on the car and that [name redacted] had said that his father shot him. He had also been told that [name redacted] had mentioned that a person named [name redacted] had been at the house during the night, and he thought [name redacted] might be someone who would be able to give them an idea of what had happened.

9. [49]

   He said the police had no suspects. He knew that the appellant was a nominee of the Rebels Outlaw Motorcycle Club and he knew that that club was significantly involved in the supply of drugs in the [suburb redacted] area, but he had no reason to believe that the “Rebels” were involved in the house fire. Det Snr Const McCloskey said that he believed there may been an offence, but he thought it may have been an offence committed by [name redacted].

10. [50]

    At the time, the body of [name redacted] had not been identified and even when it was, the police still considered there was the possibility of a murder-suicide.

11. [51]

    Even after the conversation, the police had no more reason to suspect the appellant. He claimed that he had left the deceased’s house about 7pm before it was dark and as police had information that shots were heard about 1-1:30am and the fire observed at about 5-5:30am, it appeared that the appellant had not been present at any relevant time.

12. [52]

    Whilst it might be conceded that for the purposes of the section there may be more than one suspect, I am satisfied that on the evidence before him, it was open to his Honour to find that at the time, the appellant was not a person who could reasonably have been suspected of having committed an indictable offence. The children had implicated their father and the police response to the appellant’s claim that he had returned home before dark was to enquire about other “[name redacted]s”.

13. [53]

    After the recorded interview on the following day, the appellant was still not a suspect. Even if he had become a suspect as a result of any answers given during that interview, s 108 as it then was, only applied if the person was a suspect or could reasonably be regarded as a suspect at the time the admission was made. The fact that he later became a suspect did not cause the section to have any retrospective effect. In fact, the appellant was not arrested and charged with these offences until 12 March 2001.

14. [54]

    A further submission that the evidence of the admission should have been excluded pursuant to s 90 of the Evidence Act 1995 was abandoned on the hearing of the appeal.

15. [55]

    Finally, it was submitted that his Honour should have excluded the evidence pursuant to s 137 of the Evidence Act. The evidence of the earlier conversation was originally sought to be tendered by the Crown as lies evidencing a consciousness of guilt, but alternatively as lies inconsistent with his later version given in the recorded interview to the effect that the injuries and damage inflicted at the deceaseds’ home that evening had been inflicted by a man of Maori appearance, part of which had been witnessed by the appellant.

16. [56]

    At a later stage, his Honour ruled that the evidence was not admissible as lies evidencing a consciousness of guilt, but that it was still relevant and highly probative. The Crown case was that there were admissions in the recorded interview of 18 August that placed the appellant in the deceased’s house at the relevant time and displayed such knowledge of how he had died, and at the same time contained possible explanations of any forensic evidence such as DNA, kerosene, etc which may be found on him or his clothing, as to indicate that he had the opportunity to commit the offences and the knowledge of how the offences had been committed, so that if the evidence about the other man was discredited, it pointed to the appellant as the offender. The fact that he had given a different version in the earlier conversation was relevant and therefore probative of whether the account he gave in the recorded interview should be accepted, and therefore had considerable probative value, as his Honour pointed out.

17. [57]

    If the jury ultimately concluded that it was reasonably possible that the appellant did leave the deceased’s house and he was at his own house again before it got dark on 16 August, this would be probative of the appellant’s innocence. On the other hand, if the jury rejected this version in the light of the later version given by the appellant, this could have a substantial adverse effect on the credit to be afforded to his claim in the recorded interview that some other unidentified person committed the offences.

18. [58]

    His Honour also considered at [39]-[40] of his judgment of 12 August 2002 whether this probative value was outweighed by unfair prejudice to the appellant and concluded that it was not. I can see no error in such conclusion. On the appeal it was submitted that there was unfair prejudice in that the earlier conversation was not recorded or referred to in the later interview or the police note of the conversation shown to the appellant for adoption by him, but no alternative version of the conversation was put in cross-examination. It was for the jury to determine whether they accepted the police version of the conversation, and I do not see the failure to have its terms adopted by the appellant as constituting unfair prejudice.

19. [59]

    It was submitted that in considering s 137, it should not be assumed that the evidence in question will be accepted by the jury, but if such evidence is not accepted by the jury, it cannot have any prejudicial effect. Either the jury accepted that the conversation had taken place as detailed by the police or they did not. If they did not accept that it took place in the terms alleged by the police, evidence of it could not affect their deliberations. Ground 1 fails.

Ground 2: The trial judge erred in the directions given to the jury in respect of alleged lies told by the appellant.

1. [60]

   The Crown initially sought to rely upon lies told by the appellant as to the times when he claimed to have been at the deceased’s house, as evidence of consciousness of guilt (T 2551). One of his Honour’s concerns was that the establishment of the lie would necessarily involve proving the Crown case. In the discussion which followed, the appellant’s trial counsel submitted that there should be no direction in relation to lies (T 2562). His Honour ultimately ruled that the prosecution could not rely on alleged lies told by the appellant to the police as evidence of “consciousness of guilt” but that it could rely on inconsistencies of his different versions as relevant to his credibility. He doubted that there was an “enormous difference” in the circumstances of this case (T 2563).

2. [61]

   The appellant had admitted in his recorded interview that he had been present at the deceased’s premises on the evening of 16 August and whilst there had witnessed violent conduct towards the deceased by a person of Maori or similar appearance, but denied he was present at the time either deceased had been killed. But there were a number of answers in his recorded interview which indicated his knowledge of facts relevant to the killing of the deceased, as well as a number of other inconsistencies, particularly as to the times at which he was present. The Crown relied on these matters to prove that his version was unreliable and should be rejected, but argued that his knowledge of what had occurred indicated that he was himself the killer, and that there was no Maori man present.

3. [62]

   In her final address, the Crown prosecutor said at (T 2607):

4. [63]

   The Crown prosecutor then gave a number of reasons why she claimed the appellant’s version should be rejected, none of which was the appellant had told lies because of a consciousness of guilt or because he knew that the truth would convict him.

5. [64]

   Nothing was said by Defence counsel in his subsequent address specifically in response to the passage quoted above, nor was any further direction on lies sought by defence counsel either before or after the Summing-Up.

6. [65]

   In his Summing-up, the learned trial Judge summarised the Crown case as being that the appellant had the opportunity (presence at the scene at the relevant time) and the means (access to a shotgun) to commit the offences, and had a detailed knowledge of how the deceased had met their respective deaths; and that once the presence of the unidentified Maori man was excluded, the circumstances (including the accused’s knowledge) pointed to the appellant as the killer and he then listed the various circumstances relied on the Crown. Although he referred to inconsistencies in the appellant’s version, he did not use the word “lies”. He summarised the defence case as being that the Crown had not eliminated the possibility of the killer being the unidentified Maori person.

7. [66]

   The concluding words of the passage from the Crown Prosecutor’s address quoted above could have caused confusion in the minds of the jury and, when the printed transcript is read in the cold light of day some 15 months later, are capable of being understood as meaning that the fact that he told lies was itself one of the circumstances on which the Crown was relying to establish the appellant’s guilt.

8. [67]

   However, I doubt that the passage was understood in that way at the time, particularly in light of the Crown’s earlier remarks:

9. [68]

   Furthermore, as appears from his affidavit of 13 November 2003, it was not so understood by the appellant’s trial counsel at the time, although he now sees it differently on reading the transcript. He says if it had been apparent to him that the Crown was seeking to have the jury apply “consciousness of guilt” reasoning, he would have sought a Zoneff direction.

10. [69]

    In Zoneff v The Queen (2000) 200 CLR 234 at [23], the High Court suggested that where there is evidence of lies but such lies are not relied on as evidencing a consciousness of guilt, a direction similar to the following might appropriately be given:

11. [70]

    It is not necessary to give a Zoneff direction in every case where the appellant’s credibility is in issue, unless there is a risk that the jury may reason guilt from the telling of lies: Dhanhoa v The Queen (2003) 139 A Crim R 41 at [34].

12. [71]

    Although the judge had ruled that lies could not be relied on as evidence of a “consciousness of guilt”, there were a number of inconsistencies between the appellant’s versions and between his version in his recorded interview and other independently proved facts, and the Crown was relying on these inconsistencies to discredit the claim by the appellant that there was another man, of dark or Maori appearance, present.

13. [72]

    True it is that the Crown Prosecutor had said that to the jury that they were not to convict the appellant merely because he had told lies but the concluding words of the passage quoted above could have led to confusion. I think what she was probably intending to convey was that the jury should have regard to the those answers in the interview which showed that a detailed knowledge on the part of the appellant of the circumstances surrounding the deaths of the deceased, and that such knowledge was part of the circumstantial case; but when read in transcript form, the passage is liable to cause confusion. In my opinion, even if it were not strictly essential, this is a case where a Zoneff direction should have been given.

14. [73]

    However, Defence counsel at trial having not sought any such direction and having expressly asked that nothing be said about lies, it is necessary to have regard to Rule 4 and it is also necessary to consider the proviso to s 6(1) of the Criminal Appeal Act 1912.

15. [74]

    The scope and application of Rule 4 has recently been considered by this Court in R v Button and Griffen (2002) 129 A Crim R 242 at [31] to [36] (the report at 54 NSWLR 455 is incomplete), where Heydon JA, with whom Greg James and Kirby JJ agreed, reviewed a number of recent cases concerning the rule including R v Fuge (2001) 123 A Crim R 310, R v Abusafiah (1991) 24 NSWLR 531, R v Sanderson (CCA – 18 July 1994), R v DH [2000] NSWCC 360, and noted what McHugh J had said in Papakosmas v The Queen (1999) 196 CLR 267 at 419, as follows:

16. [75]

    In the present case defence counsel expressly asked that nothing be said by the Judge in his Summing-Up on the subject of lies, and his Honour said nothing. It is now claimed that the need to give a Zoneff direction arose, not because of anything in the Summing-Up, but because of something the Crown said in her final address, but what she said had no apparent significance for defence counsel at the time so that he did not see any need to respond to it in his subsequent address nor to seek any further direction from the judge. In these circumstances, leave should only be given to rely on the point if there is shown to be a risk of a miscarriage of justice.

17. [76]

    On the other hand, the proviso to s 6(1) of the Criminal Appeal Act 1912 provides that even if the points raised on the appeal are decided in favour of the appellant, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The test for the application of the proviso has been stated by McHugh J in Festa v The Queen (2001) 208 CLR 593 at [123] as follows:

18. [77]

    These tests, for relief from Rule 4 and for the application of the proviso, both involve a consideration of the possibility of a miscarriage of justice. They considerably overlap and in many, if not most, cases will lead to the same result. The main difference between them appears to be which side bears the onus of satisfying the requirement. As Howie J said in R v Moussa (2001) 125 A Crim R 505 at [63] (omitting authorities cited):

19. [78]

    In his Summing-Up, the trial judge listed the circumstances relied on by the Crown as follows:

    1. (1)

       The relationship (involving the supply of drugs) between the appellant and both deceased from which the real reason for the visit to their house may be deduced, in contrast to the appellant’s assertion in his ERISP that he went with the intention of borrowing tools from [name redacted] whom he knew was no longer living at the address.

    2. (2)

       The appellant’s admission to his partner that he had a fight with [name redacted] on 16 August 2000, but that it had been resolved.

    3. (3)

       The drive by shooting of 10 July 2000 and the appellant’s access to a shotgun.

    4. (4)

       Opportunity and means to commit the offences.

    5. (5)

       Ballistics evidence that a defective .22 firearm was used on 17 August 2000 together with appellant’s access to a defective .22 firearm.

    6. (6)

       The appellant’s conversation with [name redacted] indicating that he observed both deceased tied up and that he was present when shots were fired and when the house was on fire (but note the cross-examination of [name redacted] referred to at para [31] above).

    7. (7)

       The appellant’s conversation with [name redacted] wherein he revealed his knowledge that telephone wire was used to tie the hands of [name redacted] (On the Crown case this could only have been known by the person responsible and nothing in the ERISP version accounted for such knowledge).

    8. (8)

       Conflict between the appellant’s account in his ERISP and the evidence of witnesses who spoke to one or other of the deceased from about 7:30pm to after 10:30pm in which there was no indication of anything unusual taking place. A neighbour walked past the house at 12:10am and heard nothing.

    9. (9)

       The attendance of [name redacted] at the Shell service station at 9:54pm.

    10. (10)

        The loud screaming that was heard at 1:50am together with whip cracking noises.

    11. (11)

        Contact (by [name redacted]) with the fire brigade about 5:53am. The likely relevant time frame was between 12:10am and 5:50am on 17 August 2000.

    12. (12)

        The appellant’s initial account to police that he arrived home as it was getting dark on 16 August 2000. The appellant also distanced himself from the two deceased and claimed not to know either very well and that he had attended premises to borrow tools from [name redacted]. He also claimed that nobody else came to the house.

    13. (13)

        The appellant’s ERISP account with a different time frame. He said he arrived at the house sometime between 4 and 7pm, on dusk. He detailed the arrival and actions of the unidentified man. He stayed there for a maximum of about three hours. He said that the Tigers Club (which closes at 10pm) was still open when he walked home. On the ERISP version the appellant did not witness any shooting, or tying up prior to leaving, although he witnessed the unidentified man threatening with a knife. His Honour referred to the Crown’s submissions about “inconsistency”.

    14. (14)

        The appellant gave substantially the same version (as in ERISP) to a journalist Andrew Kazar. He said however that it was about 11 or 11:30 that the large Islander man was in the house. He described a knife with which the man was armed.

    15. (15)

        The appellant told [name redacted] that whilst driving past the residence of the deceased about 4 or 5am he observed a coloured man walking down the driveway mumbling to himself.

    16. (16)

        The appellant told [name redacted] “ It all went wrong, it was not meant to happen that way ”. His Honour referred to concessions by the witness as to the content and reliability of the conversation .

20. [79]

    In my opinion, these circumstances constituted an overwhelming case establishing the guilt of the appellant beyond reasonable doubt.

21. [80]

    Therefore, notwithstanding the failure to give a direction in accordance with Zoneff, I am satisfied that the failure to give such a direction has not resulted in a miscarriage of justice. The direction not having been sought at the trial, I would not give leave to rely on the point on appeal. Alternatively, if leave were given to argue the point, I would apply the proviso being satisfied that the failure to give the direction has not resulted in any substantial miscarriage of justice and that the jury would inevitably have convicted.

22. [81]

    I would accordingly dismiss the appeal against the appellant’s convictions.

Application for leave to appeal against sentence

1. [82]

   His Honour sentenced the applicant to imprisonment for life in respect of each of the murder counts and concurrent sentences of imprisonment for 18 years in respect of each of the other counts.

2. [83]

   In his Remarks on Sentence, he found that the applicant went to the deceased’s premises to collect a debt which he believed to be due to him but he felt unable to find beyond reasonable doubt that the debt was drug related or that the amount of such debt.

3. [84]

   His Honour noted that the deceased, [name redacted] was found in the lounge room in what was described as a “foetal position” with his hands loosely tied behind his back having been shot four times whilst [name redacted] was found in the bedroom with her hands tied behind her back with telephone cord. She had also been shot four times, and in addition, stabbed a total of 23 times, 4 of them to the heart and she was also the victim of partial strangulation. He found that specific and deliberate attempts had been made to destroy both bodies with accelerant which had also been used in igniting the house, that both deceased were heavily affected by heroin before and at the time of their deaths, and thus were incapable of resisting violence, particularly from a man armed with a firearm.

4. [85]

   In addition the child, [name redacted] had been shot twice in the head but managed to survive, and an attempt had also been made to burn the house so as to destroy other possible eyewitnesses, particularly [name redacted] who had seen the applicant at the house on the evening or morning of the killings.

5. [86]

   His Honour noted that as a result of an assault on him in gaol, the appellant was presently serving his sentence on protection and he had evidence of the degree and nature of such custody and that such conditions may continue for sometime at least; but considered that the circumstances of the offences far outweighed the onerous nature of such custody.

6. [87]

   He found also found that what motivated the prisoner in forming the intention to take the lives not only of [name redacted] and [name redacted], but also of [name redacted], was to avoid detection, and this demonstrated the depth of brutality to which the applicant was prepared to go, and that this motivation to destroy the evidence linked the commission of the three other charges with the two charges of murder as an aggravating circumstance of the gravest kind, leading to the conclusion that life imprisonment for each of the murder charges was the only appropriate sentence. His Honour said:

7. [88]

   His Honour then referred to s 61 of the Crimes (Sentencing Procedure) Act 1999 and concluded that the overall level of culpability in respect of each of the murders clearly fell within the statutory criteria as to the need for retribution, punishment, community protection and deterrence.

8. [89]

   On behalf of the applicant, it was submitted that his Honour erred in two respects. Firstly, reference was made to evidence, accepted by his Honour in his Remarks on Sentence, that the appellant had said “it was an accident, it all went wrong, it wasn’t meant to happen that way”, and it was submitted that this provided significant evidence that the crimes were unpremeditated, which constituted a mitigating factor.

9. [90]

   His Honour did not make any specific finding one way or the other as to whether the offences were pre-meditated. He did find that the applicant went to collect money at gunpoint, and it follows that, presumably, he had the gun loaded and contemplated that he might use it, and it was not just a device to be used to threaten or frighten the deceased. Moreover, whatever his intention when he first went to the deceased’s premises that evening, he had plenty of time whilst he was there to consider what he was doing, tying each of them up, and lack of pre-meditation is hard to reconcile with the four gunshot wounds to each deceased, the stabbing and strangulation of [name redacted] and the attempted killing of three innocent children in an effort to destroy relevant evidence. In my view, the offences are particularly heinous, irrespective of when the applicant formed the intent to kill.

10. [91]

    It was secondly submitted that his Honour erred in regarding the offences against the three children as an aggravating circumstance of the gravest kind in relation to the murders in that principle required the sentencing judge to consider each offence separately and determine the sentences for each offence before considering possible accumulation, this being on the basis that neither of the murder counts standing alone justified a life sentence. That was the general approach commended in Pearce v The Queen (1998) 194 CLR 610 but that was a case involving different offences, neither of which involved a possible life sentence, where there were some elements common to the offences, and some elements disparate.

11. [92]

    His Honour found a nexus between all offences in that the attempted murders of the children demonstrated the depth of brutality and that the motivation for the attempts to kill the children so as to destroy evidence of the murders effectively linked those offences to the murders.

12. [93]

    The common law permitted a number of murders to be taken into account when considering whether a life sentence was warranted on the basis of totality: R v Street (CCA 17 December 1996) per McInerney J at 49. A similar approach it has been held permissible under s 61(1) of the Crimes (Sentencing Procedure) Act 1999: R v Harris (2000) 50 NSWLR 409 at [94]. Unlike those two cases where the separate killings constituted separate episodes of criminality, here the two murders and the three attempted murders were all parts of the one episode. Although Pearce was not referred to in Harris, I do not consider that it should lead to any qualification of what was said in Harris. The number of offences, whether murders or attempted murders, were relevant when considered together as demonstrating the level of culpability involved in each of the offences separately, and the community interest in retribution, punishment, community protection and deterrence, criteria specifically referred to in s 61. In any event (at ROS 25) his Honour found that:

13. [94]

    The appellant’s episode of criminality involved two defenceless adults being killed, each shot four times, and in addition one was stabbed 23 times (including 4 times in the heart) and partially strangled, one child was shot twice in the head and the house was set on fire thereby destining two other young children to excruciating deaths by smoke inhalation and/or burning unless rescued. The degree of criminality, brutality and callous indifference to human life constituted by these offences was such that, in my opinion, life sentences were more than warranted, and I find no error in his Honour’s approach.

14. [95]

    I would therefore grant an extension of time for filing the grounds of appeal. I would dismiss the appeal against conviction, grant leave to appeal against the sentences imposed, but dismiss such appeal.

15. [96]

    SIMPSON J: I agree with Dunford J.

16. [97]

    HIDDEN J: I have had the advantage of reading in draft the reasons for judgment of Dunford J. I agree that the appeal against conviction should be dismissed for the reasons his Honour has given.

17. [98]

    I also agree that the appeal against sentence should be dismissed, but only after the most anxious consideration. In R v Garforth (CCA, unrep, 23 May 1994) this Court recognised “the terrible significance” of a life sentence, and that significance has been acknowledged in subsequent decisions. I expressed my own view about it in R v Chung [1999] NSWCCA 330 at [25]–[26]. In the same case (in which a life sentence was upheld on appeal), Sully J agreed with what I had to say and added some observations of his own at [3]. I need not set out what was there said. It is sufficient to say that the life sentence should be truly exceptional and, when it is the subject of an application for leave to appeal, should in every case be the subject of careful scrutiny by this Court.

18. [99]

    The appellant was thirty-six years old at the time of the offences and is now forty. He has a minor criminal record of no present significance. A pre-sentence report discloses a background which, though not without its difficulties, appears to have been stable. At the time of sentence he had been in a relationship for some years, which had produced three children, and his partner and the children had maintained contact with him in custody. In short, putting aside such inferences about his lifestyle as might be drawn from the commission of the offences, his subjective case was favourable.

19. [100]

    Yet he has been found guilty of crimes of the utmost gravity. For the reasons given by Dunford J, I agree that it was open to the sentencing judge, in assessing the culpability of the murders, to have regard in the way he did to the offences committed against the children. This is not to deny that such an approach is a delicate exercise. There is a fine line between the legitimate regard to other offences when determining whether a life sentence for murder is called for, on the one hand, and the transgression of the principles enunciated by the High Court in Pearce, on the other.

20. [101]

    No error of principle has been demonstrated in Davidson AJ’s approach to his sentencing task and, in all the circumstances, it cannot be said that the sentences were outside the legitimate scope of his Honour’s discretion.