Friend v Regina

PARTIES: Catherine Margaret Friend Regina

COUNSEL: D. Arnott SC - Crown J. Stratton SC/D. Yehia - Appellant

SOLICITORS: S. Kavanagh - Crown Walker Smith - Appellant

IN THE COURT OF CRIMINAL APPEAL SPIGELMAN CJ SULLY J HISLOP J

22 February 2007 Catherine Margaret FRIEND v REGINA Judgment

Introduction 3 The appellant, Mrs. Friend, was formerly the de facto wife of one Jason Friend. In the very early hours of Friday 18 January 2002, and at some time between midnight and 12.30 a.m. or thereabouts, Mr. Friend, (hereinafter "the deceased"), was shot to death. He had been sleeping alone in the bed which he normally shared with the appellant. Forensic investigations established that a single gun-shot had been fired into the back of the deceased's head, and at point blank range, killing him instantly. It was similarly established that the murder weapon was probably a 12-gauge shotgun; but the actual murder weapon has never been found. 4 In due course the Crown brought to trial jointly, before Adams J and a jury, the appellant and one Philip Grubb. The Crown case against Mr. Grubb was that he had fired the shot that killed the deceased. The Crown case against the appellant was that she had been, at the time of the killing, present in the premises within which the killing took place; and that she had been there aiding and abetting Mr. Grubb. 5 The joint trial commenced on 11 May 2005 and concluded on 30 June 2005. The jury found the appellant guilty of murder; but could not agree upon a verdict in respect of Mr. Grubb. He was subsequently re-tried; but, for a second time, the jury could not agree upon a verdict. 6 The appellant, having been found guilty of murder, was formally convicted of that crime and was sentenced to a substantial term of imprisonment. The appellant now appeals against her conviction; but she does not apply for leave to appeal against her sentence and nothing more need now be said on that latter topic. 7 The following grounds of appeal were notified and argued: "1. The jury's verdict was unreasonable and inconsistent with the evidence. 2. His Honour erred in admitting into evidence the previous consistent statements of the witness Dupon. 3. His Honour erred in not giving a 'Shepherd' direction (Shepherd v The Queen (1990) 170 CLR 573) in relation to the evidence of Mr. Dupon, to the effect that the jury would have to be satisfied beyond reasonable doubt of his evidence before the jury could return a verdict of guilty. 4. His Honour erred in not ordering that the appellant be tried separately from her co-accused, Phillip (sic) Grubb. 5. His Honour erred in directing the jury that 'there may have been witnesses in this case, for all we know, who had a very adverse view about the accused'. " 8 It will be convenient to deal in due course and in the stated order with those grounds of appeal. Were ground 1 to be upheld, then the appropriate order would be one directing the entry of judgment and verdict of acquittal. Were any of the remaining four grounds to be upheld then the proper order would be one for a new trial unless the Court was of the view that, notwithstanding the particular blemish, there had been no substantial miscarriage of justice.

9 At the time of the deceased's murder, he and the appellant had been living in a de facto relationship for about 4 years. There were two children of that relationship, a son then aged about 3 and a daughter, Georgia, then aged about 12 months. Living in the household also was another son of the appellant from a previous relationship; that child was then aged about 6 years. 10 The Friend family lived in a house, the address of which was 28 Wyattville Drive, West Hoxton. Wyattville Drive is not a straight road, but it is convenient to think of it as running generally in a north-south direction. 28 Wyattville Drive fronts onto the eastern side of that street. The house is located in a block bounded on the north by Vlatko Drive and on the south by Ormiston Avenue. Opposite 28 Wyattville Drive is the Greenway Park Primary School. It has a lengthy frontage to the western side of Wyattville Drive. The playground area of the school is, broadly speaking, opposite 28 Wyattville Drive. 11 Exhibit E at trial was a sketch plan of 28 Wyattville Drive. The floor plan of the premises as thus depicted is, broadly speaking, as follows. 12 The front door of the premises gives immediately into a fairly large open living room. A person walking in a straight line from the front entrance of the premises reaches, after crossing the living room, a hallway at the opposite end of which is a door giving into the main bedroom which was the site of the shooting. Rooms open both to the left and to the right off that hallway. Moving from the living room down the hallway in the direction of the main bedroom, the rooms opening to the left are, successively, a kitchen; a fairly large family room; a fairly large laundry; and a full bathroom. Moving in the same direction, the rooms opening to the right are, successively, a bedroom containing double bunks and associated items of bedroom furniture; a bedroom which was being used at the time as a study; and a bedroom which was being used as a nursery for the baby, Georgia. 13 At the front of the premises is a double garage. It fronts onto Wyattville Drive. On its southern side it shares a wall with the living room. On its eastern side it shares part of its wall with the wall of the kitchen. That part of the eastern wall of the garage which is not shared with the kitchen, and the northern wall of the house proper, enclose a very narrow court-yard. There are several ways of obtaining access to that court-yard. There is a door in the eastern wall of the garage; there are sliding glass doors in the wall of the family room; and there is an ordinary door in the northern wall of the laundry. Windows in the northern walls of, respectively, the kitchen, the laundry and the bathroom look out towards the court-yard area. 14 The only windows in the main bedroom are located on the eastern wall of that room. There are three window panels. The centre panel is fixed; and each of the other two panels is a sliding panel which can be opened or closed at will. At the relevant time there were fly-screens attached to the outsides of the two sliding panels. 15 At the time of the shooting the appellant, instead of sleeping with the deceased in the bed that they normally shared, was sleeping on a mattress which had been arranged on the floor of the living room at the front of the house. It was the appellant's case that she had arranged to sleep in that area because the baby, Georgia, was unsettled because she was teething, and the appellant thought that it was better for her to attend to the baby in some place removed from the main bedroom, so that the deceased could sleep uninterrupted. 16 At the time of the shooting the two boys were sharing the bedroom equipped with double bunks. The room which was being used as a study and the room which would normally have been Georgia's nursery were unoccupied. 17 On the northern side of the premises at 28 Wyattville Drive there stood premises, the address of which was 26 Wyattville Drive. These premises were, to all practical intents and purposes, identical with the premises at 28 Wyattville Drive. The premises at 26 Wyattville Drive were occupied by a Mr. Dupon, who became a significant witness at the appellant's trial, and the detail of whose evidence it will be necessary to consider later in these reasons.

An Overview of the Crown Case 18 The Crown case at trial was a wholly circumstantial case. There was a total absence of any physical evidence capable of linking the appellant directly to the shooting. There was, for example, no fingerprint or footprint; no blood spot; no strand of hair; no gunshot residue on her personal clothing; no thread of clothing caught on the edges of cuts to the fly-screens on the bedroom window; no incriminating DNA sample. 19 The essential structure of that circumstantial case is summarised helpfully and as follows in paragraph 57 of the Crown's written submissions made in connection with the present appeal:

"To seek to dissect and analyse each strand of the circumstantial case against the appellant is to divert attention from the combination of facts producing a significant body of "illumination". The circumstantial case against the appellant was significant (sic) based upon the following categories of evidence (which are not necessarily exhaustive): (a) At the time of the murder the appellant and the deceased, although living together, were in a fractured relationship; (b) The extreme unlikelihood that an intruder would enter the house to murder the deceased knowing that it was likely that the appellant and her children were inside and would be a problem in one way or other. The house was a small one with relatively flimsy walls and had hard, tiled floors from the front door to the main bedroom door. There were also two dogs; (c) The difficulty of a gunman getting inside the house without the complicity of the appellant; (d) The appellant separating herself from the deceased on the night in question, through the manipulation of the child Georgia - sleeping in the lounge room; (e) Given the enormous noise the shotgun must have made her explanation relating it to a car outside was implausible. In any event, the shot came from the back of the house not out from the street; (f) The evidence of Mr. Dupon that he heard the appellant talking to a man in the courtyard. This indicated that what the appellant said about the events were false and that she was in league with the intruder; (g) How the morning unravelled. Her conversations with Mr. Dupon. The many inconsistencies in her statements to police, officials and other witnesses; (h) The appellant's description of what she did that morning did not adequately fill the 38 minutes from 6.30 a.m. (when the deceased was supposed to wake up) and 7.08 a.m. (when she eventually saw that he was dead and telephoned her mother); (i) Before making the triple 000 call at 7.08 a.m, there was first of all the false suggestion of a suicide; (j) Actions of the appellant, whilst to some degree explained by shock, when all added together presented a picture of someone setting about creating a false scenario and organising support for herself when police arrived: telephoning for the support of her mother and good friend before ringing 000; (k) She told Snr. Constable Turner that upon hearing the noise she turned on the outside light to investigate and yet Mr. Dupon did not see the light turned on; (l) Evidence from Mr. Dupon and his partner that the appellant told them she tried to get into the deceased's room at the time she heard the shot but his door was barricaded. She also told them the intruder had taken the deceased's keys and wallet although there was no evidence of that; (m) Evidence from Sgt. Hamshere and Dr. Pailthorpe that the flyscreen to the deceased's bedroom was cut from the inside. The Crown case was that the appellant did this to permit the intruder to come inside that way or to make it look as though he entered that way to hide the fact that the intruder entered by some other way that might implicate the appellant; (n) It was open to conclude that the appellant (sic) it was an unguarded moment when she told the real estate agent concerning the flyscreens, "I noticed them two weeks ago"; and her explanation in evidence was unsatisfactory.

(o) Indications that she was not overly distressed by the deceased's death."

20 In the present case it is helpful to advert, in addition to the foregoing summary, to the way in which the Crown concluded its final address at trial: "When you come to look at these two cases you can do so on separate logical bases, and the Crown invites you to do that, because if you accept that Mr. Philip Grubb is the gunman and that it is he who is carrying out a scheme which has previously been engaged in with Catherine, then you would convict both of them of this offence. If, however, you accept that Catherine was there and assisting the gunman, you would convict her whether or not you were satisfied beyond reasonable doubt that that gunman was Philip Grubb. So that if your level of satisfaction about him falls below the standard, you will still look at the substance of her involvement, both as an issue for which there is ample opportunity for preconcert and a range of circumstances that I have pointed to in the days leading up to all of these calls, events, the pressure being put on Mr. Grubb personally, as indicating her involvement, but, as I said to you earlier, if you are not satisfied of that beyond a reasonable doubt, if you are satisfied that she is there and she is assisting the gunman, whether or not he is Philip Grubb, beyond a reasonable doubt, you will convict Catherine Friend also, and I commend that course of action to you." [T 1881] 21 I propose to consider in due course, and particularly in connection with the discussion of Ground 1, each in turn of the fifteen "categories of evidence" that make up the summary put forward by the Crown in paragraph 57 of its written submissions. In doing so I acknowledge that the Crown submissions state expressly that those "categories of evidence" are "not necessarily exhaustive"; but it seems to me that, whether "necessarily exhaustive" or not, the fifteen stated items do in fact dissect the essential matters of fact and circumstance upon which the Crown relied at trial and relies in connection with the present appeal, as constituting its circumstantial case against the appellant.

Ground 1 22 I apprehend that it is useful to preface a discussion of this ground with a reminder of some well established and relevant propositions of law. I take them from a decision of this Court, (Sully, Dunford and Bell JJ): R v Micallef (2002) 136 A Crim R 127. 23 In the course of Dunford J's reasons, his Honour says: "39. In Plomp v The Queen (1963) 110 CLR 234 at 243, Dixon CJ repeated what he had said in Martin v Osborne (1936) 55 CLR 367 at 375 as follows: If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person, the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. (emphasis added) 40. After referring to the type of matters which cannot be taken into account, such as character, reputations, associations etc., his Honour went on: But the class of acts and occurrences which may be considered includes circumstances whose relation to the facts in issue consists in the probability or increased probability, judged rationally upon common experience , that they would not be found unless the fact to be proved also existed. (emphasis added) See also Knight v The Queen (1992) 175 CLR 495; 63 A Crim R 166. 41. It is also important to bear in mind that in considering a circumstantial evidence case, it is not the individual circumstances that need to be considered, but the combination and totality of the circumstances taken together; and the jury can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference: Chamberlain v The Queen (No. 2) (1984) 153 CLR 521 at 536. 42. There is often a tendency in cases of this nature to consider whether each individual circumstance can be separately explained away as being consistent with innocence; or to consider whether a path, however tortuous, can be found through a combination of the circumstances, which as a matter of strict logic, is capable of being reconciled with a conclusion of innocence. The correct test, however, as explained by Dixon CJ in the passages quoted above, is whether, judging the matter rationally in the light of the common experience of human affairs, the combination and totality of the facts proved are consistent with innocence. 43. The question for this Court is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty; and in answering that question it must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence; but if this Court concludes that, even making full allowances for the advantages enjoyed by the jury, there is a significant possibility that an innocent man has been convicted, the court is bound to act and set aside the verdict: M v The Queen (1994) 181 CLR 487 at 492-494; 76 A Crim R 213 at 216-217."

I note that the propositions advanced in M v The Queen were reaffirmed by the High Court of Australia in MFA v The Queen (2002) 213 CLR 606. 24 In my own reasons in Micallef I said, agreeing with Dunford J's analysis: "2. So far as concerns the first ground of appeal, I think that the process of reasoning that appears in [39]-[44] inclusive is convincing. My own consideration of the matters of which his Honour speaks in those paragraphs has been influenced by the discussion which is to be found, in particular, in the judgments of Dawson and McHugh JJ in Shepherd v The Queen (1990) 170 CLR 573; 51 A Crim R 181. I note that Gaudron and Toohey JJ published separately simple concurrences with the judgment of Dawson J. Dawson J says (at 579-580; 185): 'As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury might quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately. ' (Emphasis added) 3. McHugh J notes (at 592-593; 194) an observation of Lord Simon of Glaisdale in Director of Public Prosecutions (U.K) v Kilbourne [1973] AC 729 at 758 that: 'Circumstantial evidence … works by cumulatively, in geometrical progression, eliminating other possibilities.' 4. McHugh J then proceeds: "If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular fact has been proved beyond reasonable doubt. Suppose on a charge of murder, the jury thought that the Crown had proved beyond reasonable doubt that the murder weapon belonged to the accused and that he had a motive for killing the deceased, but the jury did not think that these two facts proved his guilt beyond reasonable doubt. Suppose further, however, that the jury also thought that it had been proved on the balance of probabilities that the accused had been seen near the scene of the crime shortly prior to the murder and that he had been inexplicably absent from his employment for a period sufficient to enable him to kill the deceased. The inference that the accused, actuated by his motive, had used his weapon to kill the deceased would be greatly strengthened - probably beyond reasonable doubt - by the further probabilities that he had the opportunity to commit the murder, that he had been inexplicably absent from his employment and that he was in the vicinity of the murder scene at the time of death. Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances - often numerous - which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance" (emphasis added)

· Item (a) 25 The relevant principles of law respecting motive as a consideration in criminal cases are discussed conveniently in a recent decision of the High Court of Australia: de Gruchy v The Queen (2002) 211 CLR 85. The relevant principles are discussed in the joint judgment of Gaudron, McHugh and Hayne JJ at paragraph 28 of that joint judgment; and at paragraph 119 of the separate judgment of Callinan J.

It is not necessary to set out in detail those paragraphs. It is sufficient to understand the propositions: that motive is not an essential element of a criminal offence; that evidence of motive is always admissible as part of the proofs in a Crown case alleging a criminal offence; that, particularly in a circumstantial case, proof of motive constitutes proof of a matter capable of constituting a circumstance forming part of the particular Crown case; and that a failure on the part of the Crown to establish in a particular case a plausible motive for the alleged offence tends to weaken the Crown case, particularly if it is a circumstantial case, by reason of the fact that common experience of the human condition suggests that, at least as a general rule, a person does not commit a serious criminal offence without having at least some identifiable motive for doing so. 26 In the present case there was a large body of evidence called at trial about the general condition of the relationship of the appellant and the deceased. It was reasonably open to infer from that evidence that the relationship was, to say the least, volatile. In 2001 there had been a separation and a subsequent reconciliation. The deceased had alcohol and drug problems and he seems to have been somewhat feckless in his general approach to his responsibilities. 27 The appellant herself had a chequered history of personal relationships. A significant feature of them was that she had never seemed to have any problem about simply breaking them off whenever she was minded to do so. Her relationship with her co-accused followed, indeed, precisely such an on-gain, off-again pattern. There was plenty of evidence about the strength of his feelings for her and of, in particular, financial assistance that had been given, from time to time, by him to her; but there was no evidence of what might be described as sexual, or indeed any other, passion on her part for him. 28 It was reasonably open to infer that there had been a violent domestic episode of some kind on New Year's Eve 2001. It seems clear that an incident of it had been the breaking by the deceased of the windscreen of the appellant's car. It is not altogether clear whether that was done by the deceased's having hurled a brick, rather than a beer bottle, at the windscreen. To pin down quite what had in fact happened was not made any easier by evidence given by a close friend of the appellant to the effect that the appellant, although basically good-hearted, was something of a "drama queen" and somewhat an attention seeker. 29 It was reasonably open to infer that by the time of the murder, the appellant and the deceased were not in what a normal observer would regard as a close and loving relationship; but there was nothing from which such an observer could have reasonably inferred that the appellant had developed such an antipathy towards the deceased as would explain a decision on her part to be complicit in his murder. 30 It was, similarly, reasonably open to infer that the appellant, at the time of the murder, had insufficient household income to meet regularly various recurrent, but unremarkable, household expenses. There was, however, no evidence that she stood to gain financially, in any direct and significant sense, from the death of the deceased. 31 It seems to me that it is possible to cobble together from various pieces of trial evidence a picture of domestic dysfunction such as could raise a suspicion of a motive in the appellant to be complicit in the deliberate killing of the deceased; but in my opinion a view which is informed by the common sense experience that juries are routinely instructed to employ, would not see such a suggested motive, standing alone, as being a particularly strong one.

· Items (b) and (c) 32 The relevant bedroom had only one door and one window. The killer, in order to gain access to the bedroom, must therefore either have walked through the doorway or have climbed through the window. 33 In order to have entered through the doorway, the killer must first have gained access to the interior of the house. In order to have done that, he must have entered the body of the house either through the front door, or through one of the other doors and windows in the peripheral walls of the house. There was evidence that the front door of the house had been left open because of the very hot prevailing weather conditions; but that the security door at that entrance had been closed and locked, the key to the lock having been left in it. It is to be observed in that connection that the security door at the front entrance to the house consisted of a metal peripheral frame encasing a screen made of security mesh. There was no evidence whatsoever of any forced entry either at the front door or at any of those other points. The only possible alternative was that the killer was let into the body of the house by some other person already inside. The evidence did not suggest that anybody other than the appellant could have performed that function. There was, however, no direct evidence of any kind that the appellant had in fact done so. 34 It is likely that such a process of reasoning explains why the Crown case, both at trial and on appeal, tended to concentrate upon an hypothesis that the bedroom window was the killer's point of both entry and exit. It will be necessary to consider later and in some detail the way in which the evidence at trial bears upon this hypothesis concerning the bedroom window. 35 The jury was directed, clearly and in the conventional terms, about the presumption of innocence. It is reasonable to proceed upon the basis that the jury gave effect to that direction. In that event it is reasonable to suppose that the jury considered, - and it was in any event well open to the jury to consider, - what reasonable possibilities suggested themselves upon the assumption that the appellant had not been complicit with the killer, whoever that killer might have been. Such an approach throws into stark relief some obvious problems from the appellant's point of view. 36 First, an intending killer acting independently of the appellant must be supposed, speaking in sensible and practical terms, to have reconnoitred the subject premises before entering them for the purpose of shooting the deceased. What he would, or might, have thus established must depend, of course, upon when and how such a hypothetical reconnaissance had been carried out. A reasonable jury could well have reasoned that any sort of competent reconnaissance of the premises would have established that not only the deceased but also the appellant and their children were residing in the premises. 37 Secondly, an intending killer acting independently of the appellant was running some extraordinary risks by entering the premises, by whatsoever means, in the early hours of the morning. A competent reconnaissance of the premises might well have located the main bedroom, and might well have established, at least broadly speaking, a time at which it was safe to assume that the deceased ought to be in bed and asleep. There would have remained outstanding, however, some significant and potentially very awkward possibilities. One obvious one is that the deceased might have been in bed but either not asleep or only sleeping lightly. Another is that the appellant might have been sleeping where she might have been supposed normally to sleep: that is to say, in the matrimonial bed and alongside the deceased. 38 Thirdly, it is uncontroversial that the murder weapon was not, for example, a pistol fitted with a silencer so that the sound of a shot would be so muffled that anybody not standing immediately nearby would be unlikely to hear the sound. All to the contrary, the murder weapon was a shotgun and there is no evidentiary basis whatsoever upon which it could be concluded reasonably that the shotgun was fitted with any kind of silencer. Nor was there any evidence to suggest any other attempt to muffle the sound of a shot fired from the shotgun. The whole of the relevant evidence at trial was that the shot had made a great noise, attracting the immediate attention and interest of some of the immediate neighbours. 39 Fourthly, an intending killer acting independently of the appellant must have been concerned, not only to get into the bedroom without impediment and without being observed and potentially identified; but also to get out of the bedroom, and thereafter away from the house itself, without impediment and without being observed and potentially identified. Such an intending killer would have to take, in all those respects, risks of such obvious potential danger to himself as would have justified a reasonable jury in rejecting an hypothesis that the killer did in fact take the risks. 40 No doubt it was a recognition of the foregoing problems that caused so much attention to be paid at trial to the condition of the flyscreens on the bedroom window. It must be, however, that a killer acting independently of the appellant would have needed quite extraordinary skill and dexterity to have fired a shot capable of being heard by neighbours; and then immediately to have manoeuvred himself and a shotgun through a not particularly large flap cut in a not particularly large flyscreen; and thereafter to have decamped wholly unobserved, and leaving absolutely no identifying trace. 41 In my opinion all of the foregoing matters which have been discussed in connection with items (b) and (c) could have given a reasonable jury cause to think that the practicalities on the ground, so to speak, were such as to suggest very strongly that the killer, whoever he might have been, could not have done what he did without some complicity on the part of the appellant. · Item (d) 42 There is no evidence capable of supporting such an inference of manipulation. It was not put to the appellant in cross-examination that the baby had not been unsettled to the extent where it might have made sense for her mother to sleep with her and in some place other than the main bedroom. · Item (e) 43 It is easy to say that it cannot be that the appellant did not realise that what she had heard was something other than a noise made by a motor vehicle. It is, however, the case that of all the many neighbours who heard the gun-shot, only one recognised it for what it actually was; and he was a person with some experience of firearms. One other neighbour thought, indeed, that the sound was like one made by a motor vehicle. · Item (f) 44 The evidence of Mr. Dupon, and to a lesser extent that of Miss Lynette Morrison, whom Mr. Dupon described as his "girlfriend", was a significant component of the Crown's circumstantial case against the appellant. 45 Mr Dupon made a number of statements to the investigating police. The first of them was made on 18 January 2002. It describes as follows the relevant events. "4. I got home from work around 8.45 last night. (17th January, 2002). I went to bed about 12 o'clock. Lynette went to bed a bit earlier, about 11 o'clock. She was asleep when I came to bed, but I woke her up as I got in. Our bedroom is at the back of the house. We have one window and it was open when I came to bed. 5. I was in bed for about 15 minutes trying to go to sleep when I heard a loud bang. It was only one big bang, like someone tried to kick something in, like a sound similar to something hitting tin. It was very loud and very clear. It sounded like a bang. It didn't occur to me at the time that it was a shot. I just remember it being very loud. 6. Lynette and I were just dozing and it woke us up. I got out of bed and went and looked out the window to see if someone had broken into the house at the back, because it was all quiet. I couldn't see anything because it was all quiet. I then got some clothes on and was going out the front to have a look and couldn't see anything either. Lynette thought someone may be trying to break into our car because it doesn't lock. We opened the front door and had a bit of a look out and we couldn't see anything. 7. About 15 minutes later, Lynette and I went back to bed and I noticed that the next door neighbours' lights went on. They live at number 28. It was their inside light. I believe it was either their bathroom or laundry light. I noticed this because it shone straight into my daughter's room. The room she stays in when she comes over. The curtains were open so the light shone straight into this bedroom which in turn shone into Lynette and my bedroom. The light was on for approximately 20 minutes and I noticed this because it was keeping me awake. The lights went out and then I tried to get to sleep, eventually, and the next I knew it was daylight. Our alarm goes off about 6 am in our place. ……………………………………………………………………………. 8. That bang was so loud last night that it would have woken up more people up than just me. Especially if it came from their house (Kathy's). It would have had to woken them up for sure. It woke us up." [AB 1134, 1135,1137] 46 On the following day Mr. Dupon made a second statement. It says, relevantly: "3. On Friday the 18th of January, 2002, I made a statement at Green Valley Police Station to Detective Junee about something that happened next door to where I live. 4. While I was at the Police Station Kathy tapped me on the shoulder to get my attention. I turned and we had a conversation. 5. (I said, "Hi Kath, how are you going?" She said, "Alright". I said, "Where did you find him?" She said, "In the bedroom. I heard his alarm go off around 6.30 and his alarm went on and off, on and off so I made him a cup of coffee and went to wake him up. That's when I found him dead. I was asleep on the lounge all night with the baby".) 6. I continued making my statement and one of the other Detectives took Kathy away. I did not get a chance to talk to her any further. 7. After I made my statement I went home. I stayed at home for the rest of the day. There was no one else home until my girlfriend came home about 7 pm. 8. Some time after it was dark Kathy came over to our house. It could have been 9 or 10 o'clock. Lynette opened up the door and I walked out from the computer room. Lynette and I spoke with Kathy about making arrangements to look after her dogs for the night. 9. (I then said to Kathy, "Didn't you hear the shot last night?" She said, "Yes I did but when I went to have a look I couldn't get in because the door was barricaded".) 10. I didn't speak with her any more about what happened. Kathy left and about 30 seconds later Detective Junee came to the door. I told Detective Junee something." [AB 1141, 1142] 47 Some two years and two months later, and on 18 March 2004, Mr. Dupon made a third statement. This new statement contains fresh material upon which the Crown relied significantly at trial. The fresh material, in the words of the statement, was this: "5. I have previously made two statements to Police in relation to the murder of Jason FRIEND. These two statements are true and correct, but since reviewing the statements I believe a piece of information I recall has not been included in the statements. 6. The information relates to when I heard the loud bang around 12.15 am on 18th January 2002. Just to further describe the loud bang, it was like someone banging a brick on a colourbond fence. It was certainly very, very loud. After hearing this loud bang, as described in my previous statement, I made a thorough check around my house and also went out to the front of my house to check my cars. While out the front, I do not remember the front porch light of 28 Wyattville Drive, Carnes Hill being on. 7. I came back from outside the front, this would have been around ten to fifteen minutes after hearing the initial bang. It took this long, because I did check around our house quite a bit, as well as looking out towards Vince VLATKO'S house at the rear for a while. I also put on clothes prior to going outside. Outside I made a thorough check of my cars and the outside of my house. The loud bang did concern me and I was worried about damage to my house or cars. 8. When I came back inside, I walked down to the kitchen to get a drink from the cooler. It was while I was in the kitchen that I noticed either the bathroom or laundry light of 28 Wyattville Drive, Carnes Hill come on. Both the bathroom and laundry are directly next to each other and I can not say for sure, what light came on. I finished my glass of water and started to walk down my hallway towards my bedroom. I got to the open door of my little girl, Rebecca's bedroom, which is indicated on the map as bedroom 3. (I have custody of Rebecca every fortnight and she was not at the house on this night.) 9. When outside the bedroom of Rebecca I heard the sound of a male and female voice talking together from the courtyard of 28 Wyattville Drive, Carnes Hill. I am definitely sure it was male and female, and I actually recognised the female voice as Catherine who was living there at the time. (I have spoken to Catherine on a number of occasions and I always hear her voice talking.) I am sure it was her as the female voice. I did not recognise the male voice and did not pay a great deal of attention to it, although I am definite it was a male voice. I just assumed they were checking on the loud bang like I was. I did not hear what they were talking about, however I do remember Catherine say 'Shut up', which I assumed was at her two dogs (she would say this quite often to her dogs). The bedroom window of Rebecca's bedroom …….. was open and Catherine and the male seemed to be talking in the courtyard of 28 Wyattville Drive, just near the window of Rebecca's room. 10. As mentioned I did not pay much attention to this as I assumed they were checking their house. I only stopped outside Rebecca's room for a few seconds before continuing to my bedroom where I tried to go back to sleep as mentioned in my earlier statement. When I was checking my house and walking around, I did not turn on any lights. 11. I do not know why this was not included in my earlier statement. I thought I mentioned it to Police on the morning I made my statement, however I was very shocked that morning and tired but I still thought I mentioned it to Police. I never reviewed my statement (at) a later date to see if the part about hearing Catherine and a male talking after the loud bang was included. It was not until I spoke to the prosecutors on the 18 March 2004 that I realised that it was not included in my statement. I was surprised to see that it was not included." (AB 1144, 1145] 48 This statement is captioned: "In the matter of: Philip GRUBB" 49 On the very next day Mr. Dupon made his fourth and final statement. It, too, is captioned: "In the matter of Philip GRUBB". The statement develops somewhat Mr. Dupon's recall of the murmured conversation of which he had spoken in his third statement. The relevant material is: "3. On the 18 March, 2004 I made a statement to Detective Paul SMITH at the Surry Hills Police Station. This statement is true and correct. 4. Further to this statement, I do not know a person by the name of Philip GRUBB. It is possible I may have seen this person if he did live at 28 Wyattville Drive, Carnes Hill in 2001, however I can not put a face to the name and because of this I would certainly not be able to recognise his voice. Besides Jason FRIEND, I do not know any other male person who lived at 28 Wyattville Drive with Catherine. I work long hours and pretty much go straight inside my house when I get home. I do not really socialise with neighbours. 5. In relation to Jason FRIEND, I spoke to him on a number of occasions, however these were only brief conversations, most times just saying 'hello, how are you going'. I did speak with him once or twice about the removalist trade however, again these were only brief conversations. I can not say if the male voice was that I heard that morning was that of Jason FRIEND. At the time I assumed it was because he was the only male there and I believed they were checking the loud bang like I was. 6. When I heard the voice of Catherine and the male that morning of 18 January 2002 I again definitely remember it as Catherine talking with a male. The first voice I heard was that of the male who said about four words. I then heard the female say about three or four words back. Both voices were mumbled like thy were talking quieter than you would normally speak and I could not hear what was being said. I then heard the female say 'shut up'. This was a little bit louder and clearer and I recognised this as being the voice of Catherine FRIEND. The male person then said about four or five words. I was of the belief that as they were walking they were moving along the courtyard towards the backyard. I could not see them but just from the sound of the voices it sounded like they were moving down the courtyard outside my daughter's room towards the back yard. All up I heard this over about four or five seconds, before I went back to my bedroom to go to sleep. I did not her any more talking after this. 7. I did not make any notes of this at the time. I did not really speak to my wife about it. At the time I did not think of it as being unusual. As mentioned I believed I told it to Police that day. I made a statement to Detective JUNEE that morning and she also came to my house later that evening on the 18 January, 2002. I am fairly sure I would have told her about Catherine and the male voice talking. I think I would have told her when Detective JUNEE came to my house in the evening. I really thought I told her about this. The next day I made another statement to a male Detective. This statement was about the conversations I had with Catherine on the evening of 18 January 2002. It did not receive any copies of my statement from the Police and as such was never able to check the statements to see if they included everything I heard and saw. Also it was the first time I had ever made any statement to the Police and I don't know the system of what is important or not. ……………………………………………………………………….. 10. Even though the murder of Jason FRIEND occurred two years ago, I still have a good recollection of what happened that evening. It is the only time that someone I knew has been murdered and as such what happened that evening is still clear in my mind." [AB 1148, 1149] 50 Mr. Dupon, when called at trial by the Crown, gave evidence of what he said he had overheard. When cross-examined by counsel then appearing for the appellant, Mr. Dupon reiterated that he had heard the appellant say on other occasions the words: "shut up"; that she had been speaking on those occasions to her two dogs; and that "when I heard (the appellant) saying 'shut up' I was more inclined to say it was not meant to the person she was talking to but towards the dogs". Mr. Dupon agreed with the cross-examiner that, when giving evidence on an earlier occasion, he had said that at the time of hearing the words "shut up", he had heard the feet of the dogs and a sound that he then thought to be the sound of the dogs "jumping". Mr. Dupon agreed that, contrary to something said in a later statement, he had in fact received copies of his first two statements before being re-interviewed in 2004; but he had filed them away and had forgotten about them. 51 Mr. Dupon adhered throughout his evidence at trial, and notwithstanding close cross-examination, to the propositions: that he heard the two voices; that the appellant was one of the two; that she had said "shut up"; that his best present recall was that he had not heard the appellant's dogs during the period following the noise of the gun-shot; and that there had been no indication that the appellant's TV set was then switched on. 52 Miss Morrison's evidence was brief. Its principal present importance is that she, like Mr. Dupon, saw no indication, after the gun-shot, that the appellant's TV set was then switched on. 53 The evidence of Mr. Dupon, if accepted by the jury, was capable of establishing: (i) that the appellant was physically present in the courtyard of her home at a time proximate to the sound of the gunshot;

(ii) that some person having what Mr. Dupon judged to be a male voice was there with her;

(iii) that they both seemed to him to be moving towards the back-yard;

(iv) that he never at any time actually saw either of the two persons whom he was describing;

(v) that there was brief conversation, lasting a few seconds, between those two people;

(vi) that the only particular words that Mr. Dupon could recognise were the two words: "shut up" spoken by the appellant;

(vii) that Mr. Dupon, at the time he first heard the words, had the immediate impression that they were being addressed to the appellant's dogs, who sounded as if they were "jumping" ;

(viii) that Mr. Dupon, by the time he gave evidence at the appellant's trial, had resiled completely from any suggestion that he heard the appellant's dogs in the immediate aftermath of the gun-shot;

(ix) that Mr. Dupon had not included his evidence about the conversation in either of the statements that he had given to the police on 18 and 19 January 2002; and had made no further reference to the incident in any official statement until 2004;

(x) that the failure to include in either of the 2002 statements the material about the conversation was due to a police mistake;

(xi) that he had briefly mentioned the overheard conversation to the man who became his new neighbour about 3 months after the shooting and after the appellant had ceased to reside at the subject premises. 54 Such an analysis throws into stark relief the importance to the Crown case of Mr. Dupon's evidence. If that evidence were reasonably capable of establishing that the appellant and some unidentified male person had been in hurried, and softly spoken conversation in the appellant's courtyard immediately following the gun-shot, then some colour of credibility could thereby be given, in the eyes of the jurors, to the Crown case theory that the two of them had been complicit in the shooting of the deceased. That theory must have been significantly strengthened were it to be accepted that the voices had not only been heard in the manner described by Mr. Dupon; but had been heard moving towards the rear yard of the subject premises. 55 The appellant, in her evidence given at trial, denied flatly any such incident as that narrated by Mr. Dupon. It was quintessentially a question for the jury at trial to resolve the conflict between the evidence of, on the one hand, Mr. Dupon, and on the other hand of the appellant. This Court is, in my opinion, in no position to say that the jury was not entitled to accept the evidence of Mr. Dupon and to reject the contradictory evidence of the appellant. Mr. Dupon's evidence, if accepted, constitutes in my opinion a very powerful circumstance supportive of the Crown's overall circumstantial case. That is not so much because of the possible import of the words: "shut up". Those words themselves are, in my opinion, ambiguous and might as well have been said to the dogs as to the unidentified male. What is important about Mr. Dupon's evidence is, rather, that the evidence, if accepted, puts the appellant, in the immediate aftermath of the firing of the fatal shot, in the court-yard of her home and in muted conversation with a male person. It was, in my opinion, well open to the jury at trial to conclude that the events narrated by Mr. Dupon ought to be accepted; and that, so accepted, those events were consistent with the Crown case theory that the appellant had been complicit with the actual killer; and were inexplicable by reference to some other alternative hypothesis consistent with the appellant's innocence. · Items (g), (i), (j), (k) and (l) 56 These items all deal, in some way or other, with aspects of the appellant's behaviour in the aftermath of the shooting. 57 At 7.08 a.m. on 18 January the appellant telephoned her mother, Mrs. Hope. According to Mrs. Hope, the appellant said: "Mum, mum, quick. Come quick. Jason, something's happened to Jason". 58 At about 7.10 a.m. the appellant telephoned her good friend, Susan Plotek. The appellant was crying. She said words to the following effect: "There's blood everywhere. Can you get over here? Help me. Help me. Please, there is blood everywhere. I don't know what to do". M/s Plotek tried to get a clearer picture of what had happened; and the appellant repeatedly said: "I think he shot himself". M/s Plotek asked whether the appellant had called 000; and the appellant replied: "Oh, I'm getting there". 59 At 7.12.10 a.m. the appellant called 000. A transcript of that call became Exhibit C at the trial; and part of the actual taped record of the call was played to this Court during the hearing of the appeal. 60 According to Exhibit C the call lasted from 7.12.10 a.m. until a second or so past 7.24.30 a.m. The transcript runs to 10 pages of typescript and it is not practicable to reproduce the entirety of that material. The particular portions that have a bearing on the ground now being considered are as follows. 61 During exchanges with the operator, the appellant, while giving the operator various requested particulars, makes these statements: · "I, I can't wake him up and my husband there's blood everywhere in our bedroom. …… I can hear the alarm going off." · "I was asleep in the lounge room with my baby …… And he's locked himself in the bedroom and his alarm's been going off for about a half an hour and …….. just left him and so I went into the room. And I walked in and there was blood everywhere. ……. And there was blood, he didn't hear me ……. ." · "….. …… In the middle of the night, I'd been up all night with my one year old baby, she's been teething. And in the middle of the night I heard a really loud bang. But I thought it was someone outside at the cars and so I checked out there. I didn't think to check anywhere else." · "I, I think 'cause he's been working and he's very, he's very tired and the baby kept waking him up. So I stayed in the lounge room with a mattress with her." "…… we had a little fight last night." · "Oh, why, why?" · "We had a few finance problems. We've been fighting a little bit, you know. We have three little kids. Things have been a bit hard. But, you know, he came in the night, last night, and he told me that he loved me. He was in a funny mood last night. And I did hear a loud noise in the middle of the night. But I didn't …… I thought it was something outside. I can't believe it. I love him so much. Why, why?" 62 Shortly thereafter the appellant's mother arrives at the house and takes over the conversation with the operator. When considering the drawing of any inferences from any or all of the quoted passages, it is important to remember that the operator frequently interrupts the flow of what the appellant is saying. Sometimes the interruption is a bare: "Yeah". Sometimes it takes the form of a question. Sometimes it takes the form of some comforting words. Throughout the portion of the call that was actually played to this Court, the appellant sounds to be genuinely beside herself with shock and disbelief. 63 The appellant's mother, her friend M/s Plotek, and ambulance and police officers arrived, fairly close together, at the house. 64 The appellant's mother, upon her arrival, took charge of the three children and removed them from the crime scene. The two boys were taken by Mrs. Ellis. The appellant and the baby went to the appellant's mother's home. The appellant's mother described the appellant as having been distraught when they first met at the crime scene. 65 M/s Plotek said that she reached the Wyattville Drive premises about 20 to 30 minutes after the conclusion of her telephone conversation with the appellant. According to M/s Plotek's statement to the investigating police, the appellant gave her the following account: "Georgia went back to sleep on the mattress in the lounge. I couldn't settle because the noise in the street, it sounded like a V8 car going up and down the street. I went out the front to see what was out there. I noticed other people's garbage tins were out … I went out and got our garbage tin and put it out. Georgia was still asleep. I went and made myself a cup of coffee and had a cigarette. I heard what I thought was a car backfiring and as I only had the front security door closed it sounded like it came from the front …. I heard Jason's alarm going off. It had gone off more than three times. Jason told me that if it goes off more than three times I should wake him. I went to the bedroom door. It was locked. I went round to the outside window to see if he was awake. I noticed some blood. I went back inside to open the lock on the door …. I went in and said 'Wake up Jason'. He didn't move. I touched his leg to shake him. He slumped on to his back. There was blood and brains everywhere. I went out and locked the door again so the children couldn't go into the bedroom and rang mum, you and then I rang the police." (T500-501) 66 The ambulance and police officers arrived almost simultaneously and at 7.31 a.m. One of the ambulance officers, Hayley Tomlinson, gave this evidence of conversations with the appellant: "Q. Did she say words to the effect of, "He's inside. We've been having financial problems and I think my husband has killed himself. He has been upset lately? A. Yes. Q. Did you say, "Why do you think he's killed himself"? A. Yep. Q. And did she say, "I slept on the lounge the night before with my baby. I went to go into the bedroom but it was locked. I went out the back and looked through the window and saw blood. I then called my Mum and the police" ? A. Yes. Q. Was she very upset whilst talking to you and continuously sobbing? A. Yes." (T 68)

"Q. And did the police apparently decide to seal the house off?. A. Yes. Q. And you and Robert went out to the front yard? A. Yep. Q. And did the wife approach you and speak with you? A. Yeah. Q. And did she say words to the effect of, "Is he dead"? I know he's dead. Get back in there and do something."? A. Yeah Q. And was she still upset and sobbing? A. Yes. Q. Did you say, "I'm sorry, there's nothing we can do for him"? A. Yep." (T 70) 67 The first police officer to take a narrative from the appellant was Snr. Constable Turner. She gave in chief this evidence: "Q. And subsequently, did you have a conversation with Catherine Friend? A. Yes, I did. Q. And she was still sitting on the front porch? A. That's correct. Q. And did she tell you some things? A. Yes, she did. Q. Can you recall now what she said, unassisted? A. She told me that she had been sleeping in the lounge room. Q. Yes? A. And that Mr. Friend earlier that night had been assisting her with the young baby Georgia, and she had a temperature due to some teething problems, and that it had been decided that Catherine Friend was going to sleep in the lounge room and Mr. Friend was going to sleep in the bedroom so that he could sleep uninterrupted, as he had to go to work, and that she was going to tend to the baby's needs during that night. Q. Yes? A. And that he went to bed at approximately 11.30. She was woken around 10 past 12 by noises. She heard a dog barking and what sounded like a V8 car and people near there, noises near the two cars that they had in the driveway. She got up, turned on the outside light, and couldn't see or hear - couldn't see anything. She has realised that it was the night garbage bins went out, so she has gone outside, put the garbage bins near the kerb, before going back inside, checking on the baby, and going back to sleep. And she has woken around 3 am, and has gone and checked the baby's temperature before going back to sleep. And she was woken again about quarter to 7 by Mr. Friend's mobile phone alarm going off in the bedroom. And she has got up around a quarter past 7, because the alarm has gone off again; so she has gone to open the door of the bedroom, which she found locked, so she has gone around to the window to see if she could raise Mr. Friend, and next she has noticed blood around Mr. Friend, so she has gone back inside, found a tool to open the door. She has gone inside, noticed the injuries to Mr. Friend, gone and contacted triple 0. Then she has gone back and locked the bedroom door so that the children wouldn't go into that bedroom, and then she has contacted her mother and told her what she has seen." [T 89] 68 In cross-examination Snr. Constable Turner added the following: "Q. …… You see, when the wife, Miss Friend, said to you that she could not understand why he would want to kill himself, you informed her that the victim may not have taken his own life. Is that right? A. That's correct. Q. That's correct? A. (Witness nodded) Q. In fact, I would suggest that you may have in fact explained to her the reasons why you thought that that may have been the case? A. I would have explained to her parts of the reason, without upsetting her even further. Q. No, sure. But I have asked you some questions previously in relation to this, and you couldn't recall clearly, but I would suggest you concede that it was possible that you discussed that there was no weapon found in the room? A I possibly could have. Q. Yes, and what we would also refer to is the signs in relation to the observations that you made in respect to the window and the fly screen? A. I possibly could have. Q. And when you have said this to her, that the victim may not have taken his own life, she has said to you: "My God. My God. I didn't kill him. My God". Is that right? A. That's correct." [T 98,99] 69 Later in the day the appellant attended Green Valley Police Station and there gave to Detective Hohnen a lengthy statement which was engrossed in the normal form of a witness statement taken by investigating police. This was the first formal, signed statement given by the appellant to the investigating police; and it is, therefore, useful to note the appellant's version as actually given by her: "17. This is my account of what happened yesterday Thursday 17 January 2002. I woke about 6.30 a.m and got out of bed as did Jason. I made Jason a coffee and he drank it. He had a shower and left the house about 6.45 am and then went to work. I took my son Thomas to kindergarten at Hinchinbrook at 9.30 a.m. I returned and we had breakfast and I dressed the kids. 18. About 11 am I took the kids outside and I mowed the back lawn. I then went inside and closed our bedroom windows and hosed them down because on the outside of the window from mowing the lawns. I put a couple of loads of washing on the line and then hosed the back verander down. I did not notice any damage to the fly screen on our bedroom window at this time. 19. Later on I took the kids out the front and I mowed the front lawn. About 3 pm I went in had a shower a coffee. I opened our bedroom windows and blinds about 6 inches. I put the kids in the car and picked up Thomas. This was about 4.30 pm. 20. I returned home about 4.45 pm and Jason was already home. I had stopped on the way to get cigarettes from the Woolworths service station at Carnes Hill. At home I was making dinner and the kids were watching TV. 21. At this time Jason was really quite and I asked him what was wrong. He told me that he was okay. We ate dinner which was a tuna casserole with pasta. After dinner I changed the kids into their pyjamas and put them in bed. I think Jason was giving Georgia a bottle in the loungeroom. 22. After the kids went to bed I went outside and watered the front lawn. This was about 7.45 am. My friend Sue called and I spoke to her for about 15 minutes. About 8.30 pm I went back inside. Jason made her a bottle but she did not want it. Georgia is teething at the moment. 23. Jason rocked Georgia to sleep and this was about the time law and order SVU was on. Jason put her into the cot in her room. This would have been towards the end of it. It finishes at 9.30 pm. 24. After this Jason came back into loungeroom and we watched the cricket for a while. Jason got himself a bowl of ice cream and sat back on the lounge and ate it. While eating the ice cream Jason received a text message on phone. I said, "Who is ringing you at this time of night?" He said, "Don't worry about it". He was agitated after receiving the message. I made a cup of tea for both of us and we both had a cigarette. 25. After the cigarette I told Jason to go to bed and I would make sure that Georgia settles. As Jason was walking down the corridor towards our bedroom I heard Georgia crying. Jason got her out of the cot and gave her to me. He said, "Gee that did not last long that was a cat nap" or something similar to that. He said, "Do you want me to sit up with you". I told him to go to bed because he had to work. He made a comment that it was only Friday tomorrow and he would be working half day so it didn't matter as much if he was tired. I told him that if she did not settle I would sleep with Georgia in the loungeroom on the floor. At this time Jason seemed adamant that he would sit up with me. I told him not to worry and go to bed because he was the one working. At this time I think it was about 11 pm when he went to bed. It has only been on a few occasions since we got that back together that we haven't sleep together in the same bed. As a rule we always made up prior to going to bed. On the few occasions Jason drank recently I would not sleep with him because he would often wet the bed. If Georgia had of went to sleep I would have sleep in our bed. 26. Prior to Jason going to bed I asked him to get me a mattress and pillows which he set up on the loungeroom floor. While he was doing this I went into the bedroom and put a white night dress on which has a pig up the front of it. I then went to the toilet. Prior to this I was wearing a pair of blue sports shorts and a white T-shirt which says, "Rush 4 way sky diving team". This is also on the back. 27. I was walking up and down the hallway with Georgia and she fell asleep. At this time I thought that I would try and put Georgia back into the cot. I closed our bedroom door and the boys door because I had Georgia's melody piano switched on and this is quite loud. 28. From memory I did not lock our bedroom door. Our bedroom has a lock on the door. It is a flick type lock which easily locked by accident. A number of times during the day the kids will accidentally locked the door. You can open the lock with a fork its actually quite easy. 29. I then went back into the kitchen and made another cup of coffee and drank it in the kitchen at the back door. We have two small dogs which were inside at this time. I then put the dogs out. A short time after this the dogs starting barking and were running up and down the back yard. I yelled out "shut up" and then let them back inside. I locked the back door and then Georgia woke up again. 30. I got her out of the cot and turned the TV off and layed down on the mattress with her. She went back to sleep. At this time the front door was open but the security screen door was locked with the key. 31. The next thing I woke to a car going up and down the street. It sounded like a loud V8. I then heard this car idling outside the house or near the house. I got up and went outside the front of the house and stood in the driveway. At this time both our cars were in the driveway. I did not see anything but I still heard this car idling so I assumed it was around the corner. The dogs were in the loungeroom at this time and they going berserk and were barking. 32. One thing that was really strange was the Schitzu Priscilla kept going to our bedroom door and scratching on it. She kept walking up and down the hall. She also kept scratching on the back door to go out but then wouldn't go out. I smacked and then went back to bed in the loungeroom. 33. The next thing I remember was the garbo coming collecting the garbage. I got up and saw it was 6.30 am. I also heard Jasons mobile phone alarm going off. I made Georgia a bottle and made myself and Jason a cup of coffee. Georgia was crawling down the corridor towards our bedroom and I grabbed her and put her back in the loungeroom. At this time I heard his alarm go off again. 34. After hearing the alarm go off about 6 times I decided that I should go and wake Jason. I went to the bedroom and went to open the door but it was locked. I knocked on the door and called out "Jason". I heard no reply. I don't know why but I went outside and looked through the bedroom window. I had a quick look in and saw a bit of blood on the wall next to him. I do not know if the window or blinds were open or not. I new (sic) something was wrong so I went back inside went to the kitchen and got a kids fork out of the draw and opened up the door. The windows in the bedroom are normally opened about 6 inches on each side. The curtains are opened about the same. 35. I went inside the room and saw Jason laying on his left side facing the wall. His face was half in the pillow and I saw stuff running out of the left side of his face. There was blood and stuff on the floor. The doner (sic) was still covering Jason and for some reason I said, "Jason Jason" and I touched the doner. At this time I realised he was dead and he was a funny colour. 36. I panicked and I ran out of the room and locked the door and I was screaming. I tried to ring Green Valley Police but I must have ran the wrong because I got a recorded message. I then ran my mum and told her to hurry and come over. I told her that Jason had killed himself or something. I am unable to remember the exact conversation that I had with my mum. I then phoned the "ooo" and I spoke to a male operator and told him to send the police. I got the kids and took them out the front on to the verander (sic)." 70 Two days later the appellant gave a second statement to the investigating police. Much of the second statement deals with details of her relationships with, respectively, the deceased and her eventual co-accused, Philip Grubb. So far as concerns the events of 17/18 January, the appellant gave the following additional information: "28 In paragraph 31 of the first statement I said that I was woken by the sound of a V8 car. I now think that the reason I woke up was because I heard the gun shot. But all I know is that I was woken by something very loud. I don't know what order I herd (sic) the sound though. The sound that woke me also woke Georgia up and she sat up. I layed (sic) her back down and she rolled over and hit the wall. I can honestly say that I was woken by something that was very loud. As the same time the car was driving up the road too. 29. After I woke up I went out the front to see if anyone was out the front. I did not see anyone but heard a car idling around the corner. I noticed the garbage bin was not out to be collected and it should have been. I put the garbage bin out and went back inside. We keep the garbage bin in the front yard of the house near the big electricity box. 30. Also forgot to mention that when I went back inside I had a coffee and a smoke and sat at the back door. I think I went to the toilet and I remember the toilet seat was up and there was urine in the toilet still. We do not flush the toilet of a night because it wakes the kids. As far as I no (sic) the kids were not woken up. 31. I went back into the loungeroom and layed (sic) back down on the mattress with Georgia and pretty much went back to sleep. The next thing that woke me was the garbo. 32. In paragraph 34 when I mention that I went outside I peered through the window. I cannot recall if the fly screen was cut or not." 71 On 21 March 2002 investigating police took a statement from M/s Karen MacDonald who was the deceased's half-sister. The statement itself was put into the witness' hands during her cross-examination; but it seems not to have been either admitted as an exhibit or marked for identification. The evidence of M/s MacDonald concerned a conversation that she and the appellant had after the shooting. The transcript does not disclose exactly when this conversation took place. Counsel for the co-accused, Philip Grubb, cross-examined M/s MacDonald; and the terms of the cross-examination suggest that counsel so cross-examined upon the basis of the statement of 21 March. M/s MacDonald, when so cross-examined, gave this evidence: "Q. And when Catherine came on that day, she spoke to you about the night of the murder, is that right? A. Yes. Q. She told you that Jason was in bed and the baby was climbing all over him, grabbing at his goatee beard? A. Yes. Q. Any troubles remembering these details please, just let me know and I can ask for your statement or a copy of it to be produced, if you don't have one with you. Catherine took the baby out to the bedroom and Jason came out to have coffee and said he was going to have a sickie from work. Is that right? A. Yes. Q. Catherine told him that he had taken too many sickies and he was better off going to work? A. Yes. Q. And Catherine told you that Jason and she had sex on the lounge whilst the baby was in the loungeroom? A. Could you repeat that, please? Q. Catherine told you that Jason and she had had sex on the lounge whilst the baby was in the loungeroom? A. Yes. DALTON: Q. And Jason then went back to bed whilst she stayed in the lounge room with the baby? A. Yes. Q. Catherine said that she must have dozed off when she heard a noise like a car backfiring outside? A. Yes. Q. She went outside to have a smoke? A. Yes. Q. She said it was around 11.30 pm or midnight or something? A. Mm, yep. Q. Catherine said she slept in the lounge room with the baby that night? A. Yes. Q. The next morning for some reason she went to go back into the bedroom with Jason, you thought his phone alarm was going off, and she was going to get him up for work? A. Yes. Q. She said that the door was stuck because the dressing table was blocking the door from the inside? A. Yes. Q. She said she nearly killed herself trying to push the door open with the dressing table in the way? A. Yes. Q. Catherine told you that she managed to push the door open? A. Yes. Q. She got into the room and saw Jason had been shot whilst he was lying on the bed? A. Yes. Q. Catherine told you that she went over to him and grabbed him and said something like "Don't die on me, you bastard, don't leave us"? A. Yes. Q. Catherine said that whilst she was holding Jason like that her daughter Georgia was crawling on the bed and Jason? A. Yes. Q. When she saw Georgia doing that she freaked out and ran out of the room with her, went into the boys' room and grabbed Sam from the top bunk and told Sam to grab Thomas? A. Yes. [T 1206, 1207] 72 I have some difficulty in understanding some of this evidence. The evidence seems to suggest that, according to the appellant, the baby Georgia actually crawled over the bed and the body of the deceased after the discovery of the deceased's corpse; and that the appellant herself had actually cradled the corpse. That is so contrary to all of the other evidence that it cannot be safely accepted. The witness was cross-examined briefly to the effect that the appellant had not made some of the statements attributed to her by the witness; the witness refuted the suggestions thus made; and the matter was taken no further. 73 Both at trial and on the hearing of the appeal the submissions of the Crown drew attention to various inconsistencies in various things said by the appellant in her various statements and interviews. It is, in my opinion, plainly the case that there are such inconsistencies. In considering what inferences are properly available to be drawn from the existence of the inconsistencies, it is important to distinguish carefully between inconsistencies capable of damaging the credit of the appellant as a witness at her trial; and lies capable of evidencing a consciousness of guilt and available, therefore, as circumstances supportive of the Crown's overall circumstantial case. Of course, inconsistencies capable of damaging the credit of the appellant as a witness at her trial, but not being lies capable of evidencing a consciousness of guilt, are not available to support a circumstantial Crown case. As the Crown Prosecutor told the jury: "but, of course, there is a big difference between a failure to disclose and positive lies and simple exaggeration". [T 1873.30]. The final position taken, in that connection, in the closing address of the Crown at trial was this: "I don't think much purpose would be served in my going through all of the details of the inconsistencies that are plain to be seen in those statements and against the evidence that she gives here. Whether those inconsistencies are outright or deliberate lies, whether those inconsistencies are born of a person who habitually exaggerates and is unable to give some coherent and accurate narrative, I leave entirely up to you. But at the end of the day what I do say to you is, despite the fact that she has the benefit of good character and the presumption of evidence, that when you come to weigh the evidence in this case, she is not a person on whose word you would rely unless it was independently corroborated by other material, such is the want of credit in her assertions." [ T 1874(10 - (25) ]

The learned trial Judge, during the course of his charge to the jury, gave the jury these instructions: "You must not infer from any lies that you are persuaded one or other of these accused expressed that they are guilty of this crime. The Crown Prosecutor has not suggested, and rightly not suggested, that any of the things stated to be untrue are untrue because of consciousness of guilt." [SU 52] 74 It was, once again, quintessentially a question for the jury whether the appellant's evidence given at trial was to be accepted as truthful and reliable evidence. This Court is, in my opinion, in no position to say that the jury was not entitled to disbelieve the evidence of the appellant, and in particular her flat denial of having had any complicity whatsoever in the killing of the deceased. · Item (h) 75 This proposition does not lead, in my opinion, anywhere in particular. The appellant was not asked at any time to account in any particular fashion for that particular span of 38 minutes. I do not perceive in the Crown submissions any precise proposition(s) as to what the appellant is supposed to have done between 6.30 a.m. and 7.08 a.m. that would constitute some circumstance(s) tending to implicate her in the murder of Mr. Friend. · Item (m) 76 The Crown's essential position as to the fly-screen evidence, if I may so describe it, is summarised as follows at paragraph 67 of the Crown's written submissions: "The Crown case was, whether or not the fly-screen was cut from the inside or outside, it was cut by or with the complicity of the appellant and was designed to remove suspicion from her. It made no sense for a real intruder to cut the very light fly-screen when all that was needed to be done was for it to be lifted off in a moment (Crown final address, T 1876.37, 1866.24). If the fly-screen was cut from the inside, it made it even more likely, of course, that the appellant was involved." 77 In that connection Detective Sergeant Van Leeuwen, the Senior Forensic Officer and Field Operations Controller of the initial police investigation of the crime scene, gave this description: "Q. If we can move to the outside. What observations did you make of the northern fly-screen? A. Ma'am, it had been tampered with. The fly-screens are a removable panel and it had been - appeared to have been cut to allow access. Q. And that matter was of course photographed? A. Yes, ma'am. Q. And what did you observe concerning the southern fly-screen? A. The southern fly-screen was undamaged." [T 903] 78 Later, and in re-examination, Detective Sergeant Van Leeuwen gave this evidence: "Q. In relation to the opinion that you were taken to that you formed a view at some early point of this investigation that something was consistent with somebody lying in wait and entering? A. Yes ma'am. Q. Could you explain that view, please? A. Yes, ma'am. There was no indication given to me by detectives of forced entry into the premises other than through the window. Q. Yes? A. There was no indication given by the detectives that a person had - I am trying to work out how to phrase this - there was no indication given to us by detectives that any person within the premises was involved in this shooting. Having the indication of the cut fly-screen and the open window and there being no other damage throughout the premises, and given the information we were told at the time, I formed the opinion that a person had laid in wait in a side street, in a block of land close by and carried out this crime, as there was no indication that it had been carried out by people within the premises at the stage when we were doing our examination, hence, the collection of the items found within the streets versus the non-collection of the cigarette butts within the premises. Q. So that it was that view of yours that caused that discrepancy in relation to those two different groups of potential evidence? A, Yes, ma'am. HIS HONOUR: Q. In short you assumed it was a intruder? A. Yes, your Honour, I did. CROWN PROSECUTOR: Q. And you assumed that the intruder would have waited their time? A. I beg your pardon. Q. And you assumed that the intruder would have waited their time? A. Being a person laying in wait, they could have arrived at the premises and been there a very short time or they may have laid --- HIS HONOUR: Q. No. I think the point of the Crown Prosecutor is that they may have needed to wait until people inside went to bed and the light went off? A. Yes, your Honour; well, yes, I would agree with that. CROWN PROSECUTOR: Or to await some signal. HIS HONOUR: Well, we are getting into speculation. That is common sense. It is not a matter for expert evidence. ……………………………………………………………………..' [T 1098, 1099] 79 Three witnesses gave evidence, two in the Crown case and one in the defence case, in connection with the cuts that had been made to the northern fly-screen on the bedroom window. In order to make sense of that evidence it is necessary to say something further about the construction of the particular fly-screen. 80 The fly-screen was of normal appearance: that is to say, it consisted of mesh framed by a metal peripheral frame. The fly-screen was fitted to the external face of the bedroom window. At the base of the metal frame was a plastic device which it is convenient to describe as a finger-grip. The finger-grip was in appearance like an upturned capital U. It sat in the bottom of the metal frame on the bedroom-interior side of the fly-screen. A great deal of time was taken, both at the trial and on the hearing of the present appeal, in exploring the significance of this finger-grip in connection with the assessing of whether the cuts which somebody had obviously made to the mesh of the fly-screen had been made from the outer, that is to say the back-yard, side of the screen; or from the inner, that is to say the bedroom-interior side, of the screen. 81 The first of the three expert witnesses was Sergeant Jeffrey Hamshere. He gave evidence of having been trained in various areas of forensic science; and in particular in the area of the microscopic examination of hair and of fibre analysis. Sergeant Hamshere examined both the flyscreen over the northern sliding panel of the bedroom window; and the flyscreen over the southern sliding panel of the bedroom window. 82 The flyscreen proper to the southern window panel had an area that was cut across the bottom and extended slightly upwards. The cut across the bottom extended for about two-thirds of the width of the screen, looking from right to left and about 15 or 20 cm up the side of the frame. Some of the fibres around the finger-grip were stretched and were not as cleanly cut as was the case in other areas of fibre. The mesh had been in his opinion, clean-cut; but at the extremities of the cuts, the fibres had been stretched. In Sergeant Hamshere's opinion these cuts made it possible to open up a hole in the mesh; but he thought that the area thus opened up was too small to have permitted any normal adult to get through the opening into the bedroom. 83 The fly-screen proper to the northern sliding panel of the bedroom window, also, had been cut across the bottom of the frame, but it had a much longer cut up the side. Sergeant Hamshere thought that those cuts would have provided an opening sufficient to permit of the passage from outside the window into the bedroom, of a fully mature person. The cut across the bottom was generally clean cut; but the area around the finger-grip was an irregularly shaped cut. Both sides were slightly stretched and torn at the extremities. Under microscopic examination there was no damage to the frame of the fly-screens that would have been consistent with forced entry. Sergeant Hamshere could not determine in which direction the cuts had been made. 84 Sergeant Hamshere caused to be manufactured a fly-screen identical in dimensions with the northern and southern fly-screens taken from the relevant window. He performed with a Stanley knife a number of test cuts. He made four such test cuts. All of them were made in laboratory conditions and in normal daylight. Two of the test cuts were made from the inside of the frame; that is to say, on the side of the frame which would be, with the frame normally fitted to a window, the bedroom-interior side; and the other two cuts were made to the opposite side of the test screen. Comparisons were then made between the results of the test cuts and the observable damage to, in particular, the northern fly-screen from the relevant bedroom window. 85 Based upon those tests and examinations, Sergeant Hamshere concluded that the cuts which had been made to the northern fly-screen of the bedroom window had been made from the inside of that screen. He said that of the four test cuts which he had made, the two that he had made from the inside of the test screen "were most consistent with the damage to the fibres in the ………… (actual, original) ………fly-screen". 86 The second of the two Crown experts was Dr. Michael Pailthorpe, a PhD in Textile Technology with better than 30 years of practical experience as a consultant in that field. 87 Dr. Pailthorpe, too, examined the fly-screens that had been taken from the northern and southern window panels of the relevant bedroom window; and he, too, manufactured his own test frame upon which he, too, did a number of test cuts. Dr. Pailthorpe, like Sergeant Hamshere, formed the opinion that the observed cuts on the fly-screen proper to the northern panel of the bedroom window were consistent with cuts made from the inside rather than from the outside of the screen when it was properly in position over the window panel. 88 Dr. Pailthorpe did give, however, the following evidence which seems to me to have real significance in connection with the topic now being discussed. The material quoted is taken from Dr. Pailthorpe's cross-examination: "Q. I take it that in terms of the clean cuts that are observed in the photographs, and which you have given evidence about, you are not able to offer an opinion, just a clean cut itself, whether that was performed from inside or outside? A. Looking at the cut on its own? Q. The cut on its own, putting aside the finger-tab. A. Looking at the cut on its own, you couldn't tell whether it was cut from the inside, outside, cut with a left-hand stroke or right-hand stroke. It is just a clean cut. Q. And the tears at the edges - and I am not asking you to consider the finger-tab - you can't tell whether that is pushed or pulled? A. These are the top right, looking from inside the top right and the bottom left. Q. Yes? A. No. It could have been pulled in or out. HIS HONOUR: Q. So what it boils down to really is an application of common sense, to the effect of the tab or the tab guard, on someone using the knife to cut the bottom of the netting? A. Yes. Yes, your Honour. Q. On one side there is some obstruction. On the other side there is not? A. Yes. That's my opinion. …………………………………………………………. " [T 399,400] 89 The witness who was called in the appellant's case at trial was Associate Professor Andras Abel. Professor Abel gave evidence that he was an aeronautical engineer and also a qualified metallurgist holding a PhD in the latter discipline. Professor Abel had vast teaching experience in his areas of expertise. He was a Fellow of the Australasian Institute of Metals and a Member of three particular engineering Institutes. 90 Professor Abel examined the northern and southern fly-screens from the appellant's house; and he examined as well the control fly-screens that had been manufactured for Sergeant Hamshere and for Mr. Pailthorpe. Professor Abel's method did not entail his making test cuts; but entailed, rather, examinations of fibres, and in particular of fibre endings, with a sophisticated optical microscope. It is, perhaps, best to quote rather than to paraphrase Professor Abel's description of this method of microscopic examination: "I used the optical microscope for this examination, which has a very low depth of focus. The low depth of focus allows you to see in a good resolution on the surfaces without any depth. And with this approach, I managed to look at the cut fibre in relation to the two edges of the cut fibre for a possible difference in elevation. As it turned out, this approach was the best for the present case." [T 1804] 91 The questions and answers immediately following provide a convenient overview of what Professor Abel concluded, and a process of reasoning upon which his conclusion rests: "Q. Just in terms of cutting of these, the fly-screen itself, you cut, a cutting tool such as a knife comes against a fibre. Can you tell the Jury what happens when a knife comes across a fibre in terms of the dimensionality of the cut? A. I think, if you are taking a fibre and let me just use my tie for the demonstration. If the cutting edge is coming from here, you can see a curvature developing. If the cutting edge is coming from here, you can see the curvature developing in the opposite direction. If I am cutting in this way, the curvature ensures that the entry level is going to be lower than the exit level for the cutting tool, knife or whatever. Consequently, the cut fibre is going to be a little bit lower at the point of the entry of the knife than at the exit level. Q. Just to ask you there, is that because of natural forces in the fibre itself? A. Because of the curvature, the geometrical formation of the fibre, any fibre under force is going to develop this curvature to a certain extent. And the optical microscope was good enough to measure, not to estimate but to measure to micro size, micro being one 000th of a millimetre and I went through, systematically, all the samples provided to me and came to the conclusion and produced the photographic evidence that the fibres were cut from outside." 92 Professor Abel was cross-examined by the learned Crown Prosecutor, but it was not put to him that his analytical method was wrong; or that his scientific postulates were in any way mistaken. As the learned trial Judge told the jury: "It was not suggested to him that his scientific theory was mistaken or that the scientific, physical basis, his description of the material was wrong, or that his measurements were mistaken or that his analysis of the control were wrong." [SU 97] 93 The approach taken by the two witnesses called by the Crown can be summarised as follows:

[1] A person cutting the fly-screen from the outside could make a clean cut along the bottom of the screen, and either from left to right or from right to left, without being impeded by the plastic finger-grip.

[2] A person cutting from the inside could not make such a clean, lateral cut unimpeded by the plastic finger-grip. A person cutting from the inside and wishing to make a lateral cut sufficiently long to create a flap which, when opened up, would permit a normally-sized adult to climb into the bedroom, would need to make a lateral cut up to the side of the plastic finger-grip; would have then to disengage the cutting implement, re-insert it into the mesh base inside the perimeter of the finger-grip; cut through that small width of mesh; again disengage the cutting implement and resume the lateral cutting motion from the other side of the metal grip.

[3] Examination of the northern fly-screen taken from the appellant's house showed, within the finger-grip, an area of cutting of the mesh base of a kind which was consistent with a cutting from the inside; and was inconsistent with a cutting effected from the outside of the screen. 94 It seems to me that there is a significant lacuna in that method of reasoning. That lacuna arises from what seems to me to have been a failure on the part of both Sergeant Hamshere and Dr. Pailthorpe to probe further their proposition that it was possible to make a clean, unobstructed cut to the base of the fly-screen from the outside. 95 It can be allowed at once that the evidence established that it was possible to make such a cut from the outside; and to do so in a way that avoided any obstruction from the plastic finger-grip. It is, however, essential to the validity of that hypothesis that the point of the cutting implement, whatever it was, had not been pushed through the mesh, at the commencement of the lateral cutting motion, to a depth which carried the point of the cutting instrument past the line of the plastic grip. A person cutting from the outside, and taking no particular care about the depth to which the point of the cutting implement penetrated when first inserted through the mesh, could well have found that the point had passed beyond the line of the plastic grip so that the lateral cutting motion, albeit one made from the outside rather than the inside, was apt to strike exactly the same impediment from the finger-grip as would have been encountered by a person cutting from the inside rather than the outside of the fly-screen. 96 This lacuna, as I have described it, in the evidence of Sergeant Hamshere and Dr. Pailthorpe, was not canvassed at all during the course of their respective evidence at trial. It was not necessary for Professor Abel to canvass it at all, because his approach was different in kind and was based upon scientific principles focused differently from the principles by which the testing done by Sergeant Hamshere and by Dr. Pailthorpe had been informed. 97 It does not seem to me to be quite to the present point to say that it was open to the jury to accept the evidence of the two Crown experts and to reject the contradictory evidence of the defence expert. The point is, rather, that acceptance by the jury of the expert evidence called by the Crown entailed the acceptance of an hypothesis, the supporting reasoning of which contained, as it seems to me, the lacuna of which I have hitherto spoken. 98 When there is added to that consideration the further consideration that the substance of Professor Abel's evidence was not challenged in cross-examination, then it seems to me that the fly-screen evidence did not have the connotations that it otherwise might have had as circumstantial evidence supportive of the Crown case. 99 Dr. Pailthorpe gave some brief evidence of what he described as a "possible tool mark" on the outside of the plastic finger grip. Dr. Pailthorpe, having first examined that mark at the time of his original examination of the fly-screen, and having closely re-examined the mark immediately prior to the giving of his evidence at trial, "…….. discounted that nick or mark as being connected to the cut because of its position". [ T 394]

· Item (n) 100 This item summarises an argument that is put more precisely in paragraph 19 of the Crown's written submissions: "Two weeks after the murder the appellant handed in the keys of her house to the real estate agent, Ms Trimarchi. During the course of their conversation in which the agent expressed her condolences, the appellant told the real estate agent, 'I blame myself for not reporting the fly-screens. I noticed them two weeks ago'. [T 410]. In evidence the appellant said she meant to convey the fly-screens were damaged around the time of the murder because they were not damaged when she hosed them down after mowing the lawn (T 1778)."

101 That conversation took place on 2 February 2002. The Crown sought at trial to use this conversation as the basis for the drawing of an inference that the appellant had know, prior to the night of 17/18 January, that the screens had, somehow, been cut. The following cross-examination explored the point: "Q. So what you were asserting to Miss Trimachie was that the screens had been damaged prior to the night on the occasion of Jason's death, weren't you? A. No, I was talking about two weeks prior to me seeing her. Q. What were you talking about two weeks prior to you seeing her? A. Sorry, I don't understand the question. Q. What was it you were trying to tell her about two weeks prior to seeing her? A. I was trying to explain to her that I should have replaced the fly-screens and paid for the carpet but I didn't have the money and I was worried about the cost to the owner. I wanted to hand the house back the way it was when he gave it to me. Q. So what was it you blamed yourself for not reporting? A. Because I should have told her when I was moving out of the house, because she was a bit upset that I told her that day when I handed the house back, that the owner had so many repairs to do. Q. Are you telling this court now that you weren't asserting that the damage to the flyscreens was done prior to Jason's death? A. I know the screens weren't damaged before because I had hosed them down after mowing the lawn. Q. How did they get damaged between when you mowed the lawn and the morning of the 18th? A. I don't know." (T 1777(45) - 1778(21))

102 If the submission now made is that the explanation thus given was "unsatisfactory" in the sense that a reasonable jury could not accept it, then I would reject the submission.

· Item (o) 103 This item summarises an argument that is put more precisely in paragraph 34 of the Crown's written submissions: "There were also indications that after the deceased's murder, the appellant's mind quickly turned to other matters. On Saturday 19 January 2002 David Grubb and his partner Marlene Ellis (who took care of the children following the murder) went to the appellant's mother's house in Casula. The appellant spoke about holiday pay owing [to the deceased], superannuation and Victim's Compensation, 'what she was entitled to' and that it was '$500,000, around that mark somewhere' (T 256.55 - 257.2) including something like $50,000 victim's compensation for each child (T 348). Marlene Ellis considered this conversation to have been in indecent haste. It was suggested to Ms Ellis in cross-examination, being the appellant's case, that the appellant had not discussed financial matters on that day (T 371). Ms Ellis disagreed with this suggestion. By 22 January a letter had been composed and completed claiming Victim's Compensation to cover funeral expenses. It was, in fact, ultimately the case to cover funeral expenses. It was, in fact, ultimately the case that the deceased's superannuation and life insurance went to the appellant (Exhibit BM at page 30 or 31)."

104 Even if the evidence of M/s Ellis be accepted, it was nevertheless open to the jury to take the view that it was not unusual, let alone indicative of culpability for the murder of Mr. Friend, that the appellant would be concerned about the financial consequences not only for herself, but also for the three children for whose support she was now wholly responsible. The appellant was entitled, if a victim of crime in the relevant statutory sense, to apply for an award of compensation for herself and for the children pursuant to the statutory scheme of compensation for the victims of violent crime. She was equally entitled to make a similar application for assistance with funeral expenses. It is not controversial that the appellant's financial circumstances were, at the very least, straitened. It was, in my opinion, open to the jury to take the view that it was not untoward in any way now relevant that the appellant cast about for ways of satisfying her contingent needs for funds that she simply did not have.

105 It now becomes necessary for this Court to step back, as it were, from the foregoing discussion of each of the individual items put forward by the Crown in support of its circumstantial case; and to consider whether it was reasonably open to the jury to find, upon the whole of that case, that the appellant was guilty of murder. 106 In my opinion it was reasonably open to the jury to conclude that the considerations which I have discussed in connection with the items (b) (c) and (l), when viewed overall, pointed very strongly to the complicity of the appellant in the murder of the deceased. It was open to the jury, in my opinion, to reject the appellant's evidence flatly denying that she had had anything to do with the killing of the deceased. Once that position was reached, then it was, in my opinion, open to the jury to take the view that the evidence of motive, with all its weaknesses as I have previously herein discussed them, added at least something of weight to the incrementally strengthening circumstantial Crown case. It was, in my opinion, then reasonably open to the jury to take the view, by what I might describe as a process of incremental reasoning, that all of the evidence which they had heard about the fly-screens was either a red herring, as the Crown had contended in address; or was insufficient to establish that the killer, whoever he might have been, had been an intruder who had both entered and exited from the bedroom through the cut flap of the relevant fly-screen, and acting throughout independently of any advice or assistance given by the appellant. 107 I have come to the conclusion that Ground 1 has not been made good.

Ground 2 108 It is submitted for the appellant that the prior consistent statements made by Mr. Dupon were not admissible notwithstanding that the appellant's counsel at trial had extensively cross-examined upon some at least of the contents of the statements. It is contended that the statements made by Mr. Dupon in 2004 and the notes of his conferences with the Crown Prosecutor who interviewed him in advance of the trial, were not admissible by reason of the provisions of section 66 of the Evidence Act 1995 (NSW). It is submitted also that the effect of admitting that prior consistent material "would have been to give the evidence of the witness Dupon greater weight in the jury room". As a result, the appellant suffered real prejudice". 109 Mr. Dupon made four statements to the investigating police. The first of them was made on 18 January 2002; and the relevant parts of that statement are set out in paragraph 43 of these reasons. The second statement was made on 19 January 2002; and the relevant parts of that statement are set out at paragraph 44 of these reasons. The third statement was made on 18 March 2004; and the relevant parts of that statement are set out at paragraph 45 of these reason. The fourth and final statement was made on 19 March 2004; and the relevant contents of that statement are set out at paragraph 47 of these reasons. The contents of the Crown Prosecutor's notes have not been set out previously herein, but there is no need to reproduce the details of those notes in connection with a discussion of Ground 2. 110 Mr. Dupon was first cross-examined at trial by counsel then appearing for the appellant's co-accused, Mr. Grubb. Counsel cross-examined Mr. Dupon extensively upon various aspects of his statements. At two separate points during the cross-examination counsel sought to tender, on the first occasion the 2002 statements, and on the second occasion the 2004 statements. On each occasion counsel then appearing for the appellant objected to the tender upon the basis that the tenders were premature. The statements were marked, accordingly, for identification. 111 In due course Mr. Dupon was cross-examined by counsel then appearing for the appellant. That cross-examination, also, canvassed extensively material contained in the various statements that Mr. Dupon had made to the investigating police and about the circumstances of his pre-trial conference with a Crown Prosecutor. 112 Both cross-examiners tested Mr. Dupon closely and vigorously; but my reading of the transcript of the two cross-examinations does not suggest that it was ever put to Mr. Dupon, either expressly or by necessary implication, that he was simply fabricating his evidence-in-chief about having heard, in the immediate aftermath of the sound of the shot that killed Mr. Friend, the appellant and an unidentified male person carrying on a muted conversation in the court-yard of the appellant's home. What was put to Mr. Dupon, consistently and strenuously, was that his recollection of having heard such voices at that time was, quite simply, mistaken. In aid of that proposition, both cross-examiners stressed the absence from either of Mr. Dupon's 2002 statements of anything consistent with his evidence at trial about his having overheard the two voices in the court-yard. 113 The transcript of Mr. Dupon's cross-examination by counsel then appearing for the appellant, records at T 691 the conclusion of that cross-examination. There is no note of any actual re-tendering of the statements and notes; but there is recorded the following statement made by the Crown Prosecutor to the learned trial Judge: "Your Honour, I join in the tender of all those four statements. My friend made an application. No doubt it can be argued at a later time. I also seek to tender much (sic: but this seems to be an incorrect transcription of "such") of the notes of the conference of the 18 March 2004 as appear on the bottom half of page 3. There is no number on the page but it's the third page of four." 114 His Honour asked counsel then appearing for the appellant whether he objected, in particular, to the proposed tendering of part of the pre-trial conference notes; and counsel replied simply: "It needs to be determined". Mr. Dupon's re-examination was thereupon continued and, shortly thereafter, he was excused. 115 That portion of the conference notes was then marked for identification. 116 There matters rested until two weeks or so later when the Crown was preparing to close formally its case. 117 In the context of interchanges as to what remained to be done before the formal closing of the Crown case, the following occurred: HIS HONOUR: I think I prefer to deal with the Dupon material now. Precisely what is the material you wish to tender, Madam Crown? CROWN PROSECUTOR: I wish to tender all of his statements and notes. They are all cross-examined upon. They were all cross-examined to suggest that, in effect, an across the board inconsistency by Mr. Lowe. HIS HONOUR: I can understand why his statements fall into a class, but I am less sure about the notes The notes were cross-examined on. CROWN PROSECUTOR: Yes, the notes were cross-examined on and they were produced and there was a suggestion that there was some inconsistency between those notes and the statement subsequently taken on the 18th or 19th of March. Your Honour will recall the circumstance was Mr. Dupon came, saw the Prosecutor and Miss Smith. Miss Smith was the notetaker. The notes are marked for identification amongst the papers. There was subsequently cross-examination by Mr. Lowe in relation to those notes - sorry, as soon as that matter became known a further statement was obtained. He was sent out and completed a further police statement which is his final statement and there was cross-examination in relation to apparent discrepancies.":[T 1449, 1450] 118 There was some discussion between his Honour and the Crown Prosecutor concerning the collating of the relevant materials, and then this: "HIS HONOUR: Is it your case that the material cross-examined on and re-examined on does not sufficiently set out the relevant omissions or statements for the jury to determine the issue - well, the controversial issue? CROWN PROSECUTOR: That's the primary count (sic: but, as it would seen, 'point'] of contention. …………………" [T 1450] 119 The relevant materials having been located and collated, the following occurred: "HIS HONOUR: I think it is fair to say, is it not, that aside from the conversation that Mr. Dupon said he heard, his evidence is really not controversial. That is so, is it not, Mr. Lowe? There was some cross-examination about the brick, but you weren't disputing his account of what was said. As I remember your question, it was really what was intended or conveyed as a result of what he said. LOWE: That is so, your Honour. The real issue here is the conversation and obviously his travailable (sic) movements throughout the house and what he saw as at a particular time. But that is of very short confine. It is not disputed he saw a light, the issue is what he saw. HIS HONOUR: Here the point is how, and there was a great deal of evidence, how did it come about that in earlier statements this fact was not mentioned, then in a later statement it came to be mentioned and what was the sequence of events by which this material unfolded. That is the crucial point. I must say it does seem to me why it seems clear that the statements are relevant to that issue. LOWE: Yes, they are relevant. Again, that's the issue in my respectful submission. I can't doubt that they are relevant. The issue is one of the credibility of this particular witness as to the recognition of the voices. HIS HONOUR: And accordingly, in considering that credibility the way in which the material was disclosed. You rely on a mode of disclosure to show that it is unreliable. The Crown relies on the mode of disclosure to justify such a conclusion, when you actually look at the detail of how it came about it does not justify that conclusion. For myself I find it very difficult or I think the jury would find it very difficult to evaluate that matter without having the whole of the statement before them. Because, in a way, it is the subject matter of each entire conversation with the police which is crucial to understanding how the disclosure of the part came about. LOWE: I can understand your Honour's position. It is relevant in that sense to understand the progress of these things and I will be relying on it in any event. HIS HONOUR: Do you maintain your objection to the tender of this material? LOWE: There are others - generally the documents are always tendered by the Crown, and I don't mean this in great disrespect, without any editing at all. There are other matters which were not the subject of any cross-examination and there should be some editing of this particular or these statements insofar as they may go to other issues which were not relevant to the determination of this case and weren't subject to cross-examination." [T 1450, 1451 - Mr. Lowe was counsel appearing at trial for the present appellant.] 120 There followed a deal of discussion about the editing of various parts of the statements and notes; and then this interchange: "HIS HONOUR: I won't exclude that but in all events that's not really why the Crown wants them. The Crown wants them to show when you have a look at the sequence of events together with the police officer's evidence as to how these statements came to be written and the subject matter with which they dealt, that it explains why and how Mr. Dupon's assertion about hearing voices came to be known and can be regarded as reliable. That's really what they go to. I think what you do need to do is identify the particular passages and let the Crown know. The Crown may agree or disagree. I will then rule. But I can tell you now that, aside from what I might call as inadmissible expressions of opinion which have not been elicited thus far from the witness, aside from those matters and I think there are not many of them, I understand you to be conceding the admissibility of the statements, but in all events sit seems to me they are plainly admissible. LOWE: I have cross-examined at length and it may be plainly difficult for the jury to understand the cross-examination. HIS HONOUR: I think so and it would be difficult to understand the police officers about the way in which the statements were sustained. That deals with Dupon with the exemption of the need perhaps to edit some small portion of those statements." [T 1453] 121 There seems to have ensued some editing of some of the contents of the statements and notes. The statements and notes were formally tendered, without any recorded formal objection, at T 1595. When the appellant's counsel at trial came, in due course, to make his final address to the jury, he dealt at length with Mr. Dupon's evidence. His submissions respecting Mr. Dupon's evidence occupy the whole or part of some 14 pages of transcript: T 1889-1902. The flavour of the submissions, read fairly as a whole, emerges in their very opening paragraphs: "Before I discuss the evidence of Mr. Dupon it's clear in the Crown case that his credibility - I won't say this - his account is a very important aspect of the Crown case. It's important from Catherine Friend's perspective to scrutinise his account of the voices in the courtyard with care. Not only is it an important part of the Crown case, but the evidence of Mr. Dupon that he told the police from the very start about the voices in the courtyard has to be evaluated by reference to what others say in the call, the people he says he spoke to about this, other police officers. By looking at the internal consistency of what he records in his witness statement about these issues, the unfolding nature of his witness statements is also another telling aspect which in my submission you could take into account in evaluating this evidence. His knowledge of what is omitted from the witness statement and his reaction in that regard, his contemporaneous account of what he heard and the accuracy of those statements and other issues associated with his account. Now one can take into account, in evaluating the reliability of his observations about the sounds and the voices in the courtyard, the delay in disclosing the written form, going to the authorities and saying there were voices in the courtyard, and you can take into account my cross-examination of Mr. Dupon in determining his reliability in this regard………………. " [T 1889,1890] 122 Counsel's submissions continued with a careful and detailed canvass of aspects of Mr. Dupon's evidence at trial and of aspects of the contents of the various pre-trial statements that Mr. Dupon had made to the investigating police. Towards the end of this portion of his closing address, counsel put these propositions: "……… Ultimately, I would be submitting to you when you come to evaluate Mr. Dupon's evidence, you will have the benefit of his Honour's directions of law regarding that evidence. Catherine Friend does not say that Mr. Dupon is necessarily wrong about his recollections, however, we don't concede it is right what he says. He may quite genuinely be mistaken about everything associated with this. Of course, he made no concession that he was mistaken. I have read to you when I put to him "you may be mistaken". But by that stage, the stage of this trial, he has furnished the last witness' statement, the one I have just taken you to, the one of March 2004, where he records voices in the courtyard for the first time. Of course, he says to you, the Jury, he told all and sundry, in terms of police officers, three of them - well no, two of them, not Sergeant Hohnen - those police officers, that salient fact. I will take you through the rest of the evidence in that regard. But I will be submitting to you this: that in the course of human affairs, common sense will dictate that an individual who has finally prepared a witness' statement about voices in the court-yard two years after the event may be extremely reluctant to admit any form of concession they are mistaken. It is very significant evidence in this trial against Catherine Friend. Let us not make any distinction in that regard. There would be, in my submission, a natural reluctance to admit any sort of mistake." [T 1900, 1901] 123 Counsel rounded out his submissions concerning the evidence of Mr. Dupon by putting to the jury the following submissions: "So what we have is Mr. Dupon's evidence that he told police officers about this very important piece of information. Junee can't recall it and Sparkes says it wasn't volunteered or disclosed to him. And the first police officer to actually ask Mr. Dupon about his evidence, it is not disclosed, at least in terms of the note. Common sense would dictate to you, even if you were investigating a murder such as this, that hearing voices in the court-yard after a discharge of a firearm is very significant and important and if told to you, you would remember it. In considering Mr. Dupon's evidence as a whole, I would ask you to consider he is mistaken about this, certainly about the identification of the sex of the individual, a male individual, mumbling in the court-yard. It can be TV in the middle of the night. It is a quiet night, apparently. He can hear the TV. Could be the dogs. Could be my client. You have heard my client's explanation, she was subject to cross-examination on the issue." [T 1902] 124 It is useful to complete the present survey of the relevant course of events at the trial, by noting the way in which his Honour dealt with Mr. Dupon's evidence in the summing-up. Early in the summing-up his Honour gave the jury the following general directions and observations: "So then, this was no more than a recollection of something that took only a few fleeting seconds, to which he was not paying any particular notice and when he was going off to bed to resume the sleep that had been so rudely interrupted by the loud bang. I make the common sense observation, members of the Jury, but of course it is a matter for you, that it is actually quite difficult when you are relying on hearing alone and even when you are paying attention, to place where any noise is coming from. When you are not really paying any attention to it, you have no reason to assess the reliability or question the accuracy of your immediate impression. In this respect, the impression that the voices were, as it were, following him along the corridor might be significant. It is a matter for you, because it might suggest some other source than the court-yard for them, since voices might well have been carried by the peculiarities of high paling fences and surrounding building. When that happens, when the sound is being bounced around, it might well seem to follow you, you may think. This is just part of ordinary, human experience. Moreover, the power of assumption is very significant. If, during the few seconds in question, Mr. Dupon assumed that he was hearing voices from the court-yard, perhaps that was indeed where Catherine Friend's voice came from. It might be very difficult for him later to separate the assumption from the actual experience. Of course, once the idea is planted, probably unconsciously, it becomes by and large, does it not, the reality. It cannot be effectively re-examined or revisited. In other words, if you didn't pay attention at the time, later thinking about it doesn't help. You are still thinking about something that you didn't pay much attention to at the time. So that in this case, upon this consideration, the evidence of Mr. Dupon that he heard the voices coming from the court-yard is truly his honest evidence. It is this difficult area between the experience and the opinion or belief that a witness has about it, that you need to explore in asking yourself whether it is safe to rely on Mr. Dupon's evidence, not that he heard voices but where those voices were coming from. Now, the evaluation of these matters, it is a matter for you and I expect that I am merely bringing to your attention questions that you have already thought about and no doubt discussed. However, I feel that I would be very remiss in my duty if I did not impress upon you the need to be very cautious indeed about regarding the evidence of Mr. Dupon about hearing a conversation between the accused Catherine Friend and a male in the court-yard at 28 Wyattville Drive as being reliable enough to act upon. If, on the other hand, after thinking about the matter carefully and exercising the necessary caution that you must, given the whole of the circumstances and the importance of that question, you are persuaded that indeed he did hear that evidence, well that would be a very important factor which you would bring to bear in your consideration of the issues in this case, in particular the case of Catherine Friend." [SU 18, 19, 20 and 21] 125 Towards the end of the summing-up, and having made a carefully detailed canvass of Mr. Dupon's evidence at trial, his Honour said: "Now, the parties rely in different ways on the way in which Mr. Dupon brought this conversation to the attention of police. I think the only matter that I want to refer you to specifically, because you have got all his statements, is the point that there was a door knock. The police had gone around asking people what they had seen and heard. Constable Hohnen was one of those police. I do not think his notebook is before you because it was extracted in oral evidence. The important point, you might think, about his evidence is this. He is asking whether anything was, in particular, seen and heard, and Mr. Dupon talked about hearing the bang and does not talk about hearing the voices. Now, it may be that he simply overlooked it. It did not occur to him that it was important. There are a number of possible explanations. Nevertheless, it does seem that the first time he is asked about what he heard that might be important, he does not advert to the voices at all. That point is perhaps less significant than it might otherwise appear, though it's a matter for you, in that he doesn't mention that he heard Catherine Friend's voice and it's not disputed that indeed she did say something in the patio. The strange thing you might think, ladies and gentlemen, about this aspect of the evidence is this, especially when it comes to Mr. Dupon's statement to the police, and that is he assumed; he told you that conversation was between, he had heard a conversation between Jason and Catherine, but he learnt very early in the morning that Jason was shot and that that was the bang that he heard or almost certainly the bang that he heard, yet he did not, it seems, realise that it followed that the voice that he heard could not be that of Jason Friend. He simply never made the link." [SU 81, 82, 83] 126 Against the whole of the foregoing background, it is necessary to attend, next, to sections 45 and 108 of the Evidence Act. 127 Section 45 provides, relevantly: "(1) This section applies if a party is cross-examining or has cross-examined a witness about: (a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; ……… (2) If the court so orders or if another party so requires, the party must produce: (a) the document; or (b) such evidence of the contents of the document as is available to the party to the court or to that other party. (3) The court may: (a) examine a document or evidence that has been so produced; and (b) give directions as to its use; and (c) admit it even if it has not been tendered by a party. (4) Sub-section (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3. (5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document." 128 Section 108 provides relevantly: "………….. (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement." 129 The two statements made by Mr. Dupon in 2002 were, in my opinion, prior inconsistent statements in the sense that they did not record, at times immediately proximate to the date of the shooting, the post-shooting murmured conversation that Mr. Dupon subsequently said, both in subsequent statements and in his evidence at trial, he had heard in the court-yard of the appellant's home. There can be no disputing that the appellant's counsel at trial cross-examined Mr. Dupon, properly and closely, about the manifest inconsistency between what he was saying in his evidence about that conversation, and the complete absence of any reference to the conversation in either of those two contemporaneous 2002 statements. 130 It was, in my opinion, correct for the trial Judge to admit those two statements into evidence. The admission of the statements was not proscribed by any of the relevant provisions of Chapter 3. It was fair to admit the statements because it was important for the jury to be in a position to see for themselves, and to assess for themselves, the overall cast of each of the statements: that is to say, both the whole of the contents of the statements and the circumstances in which the statements had been, on the one hand obtained by the investigating police, and on the other hand supplied by Mr. Dupon. 131 It was, in my opinion, correct for the trial Judge to admit the two subsequent 2004 statements and, as well, the relevant portions of the pre-trial prosecution conference notes. The admission of the two 2002 statements satisfied the requirements of section 108(3)(a). The course of cross-examination of Mr. Dupon by the appellant's counsel at trial was, in my opinion, such as to bring the case within section 108(3)(b), not because of any suggestion of fabrication; but because the suggestion was clearly made that Mr. Dupon was mistaken in his recollection of the particular conversation; and the course of the cross-examination to that effect suggested, in my opinion, at least by implication, that the mistake manifested a reconstruction by Mr. Dupon of a fleeting and fragmentary instant of conversation which Mr. Dupon honestly believed he had overheard, and which he has reconstructed, honestly but mistakenly, from memory. 132 It was obvious from the course of the trial that the evidence of Mr. Dupon was, to say the very least, of the greatest significance to the piecing together of the skein of circumstances upon which the Crown's circumstantial case depended. It was, beyond any questioning, proper to test with the utmost permissible rigour the reliability of Mr. Dupon's evidence, in particular, of the conversation which he said he overheard. Fairness required, however, that in the circumstances of this case the jury should have placed before it not only extracts of the particular statements and notes, but the entire sequence of the making of the statements and of the notes. Placing the whole of the material before the jury ensured, for one thing, that particular alleged inconsistencies about which Mr. Dupon had been cross-examined could be assessed fairly by reference to the entirety of the context of which they formed a part. The form and the contents alike of each of the documents was capable of giving relevant and proper assistance to the jury in the making by the jury of a fair and balanced overall assessment of how Mr. Dupon had come to state at various times the various matters respectively recorded in his statements and in the pre-trial conference notes. 133 In my opinion there was, in any event, no prejudice to the appellant at her trial by reason of the admission of these statements and notes. The learned trial Judge said not very much at all about the statements as particular items of evidence; and by the time his Honour did deal with that topic, he had already given the jury, clearly and properly in my respectful opinion, strong and precise warnings of the care which the jury must properly take in assessing the reliability of, in particular, Mr. Dupon's evidence about the conversation which he said he had overheard in the immediate aftermath of the firing of the fatal shot. 134 What has been said thus far does not overlook the specific reference in the appellant's submissions to section 66 of the Evidence Act.

135 Chapter 3 of the Evidence Act deals compendiously with what is described as: "Admissibility of Evidence". The chapter contains a great deal of material arranged in 13 discrete parts. Part 3.2, of which section 66 is a part, deals with the hearsay rule. Part 3.7, of which section 108 is a part, deals with the credibility rule. Whenever it is sought to tender a piece of evidence and the tender might be justified either by reference to section 66 or by reference to section 108, then it is important that it be clear from the relevant record upon which of those possible alternative bases the evidence, if admitted at all, has in fact been admitted. That there is a clear distinction between admitting a piece of evidence upon the basis of section 66, and admitting the same piece of evidence upon the basis of section 108, is, I should have thought, plain from a reading of the Act itself; but if there be any doubt about the matter, it is settled, at least so far as this Court is concerned, by the decision of this Court, (Meagher JA, Simpson and Howie JJ) in DBG (2002) 133 A Crim R 227: see in particular per Howie J at paragraphs 56 and 57.

136 I have canvassed in detail, earlier in the present discussion of Ground 2, the course of events at trial leading up to the tender of the statements. It is true that there is no indication in the trial transcript that anybody actually asked in terms for the admission of the material pursuant to leave granted by the trial Judge pursuant to section 108(2). It seems to me, however, that this Court is entitled to draw common sense inferences from the material that is available in the trial transcript. Approached in that way, it seems to me that the fair view of what actually happened on the ground at trial was exactly what would have happened had the Crown Prosecutor said, not that she was tendering the material, but that she was applying for leave pursuant to section 108(2) to tender it. It seems to me to be clear from a fair and sensible reading of the transcript that it was understood by all concerned that the statements were being tendered as an exception, grounded in section 108, to the credibility rule.

137 For the whole of the foregoing reasons I would not uphold Ground 2.

Gound 3 138 At the conclusion of the taking of evidence at the appellant's trial, and before the commencement of the closing addresses, the learned trial Judge entertained a number of applications for rulings and directions. One such application, made by counsel then appearing for the appellant, was: "………………… whether in terms of the reliability, the credibility of Mr. Dupon's account of the voices in the court-yard, whether that is a matter that requires a Shepherd-type direction as an indispensable change of reasons (sic: but, as it would seem, 'chain') …….. ." 139 His Honour replied: "No, I don't think it does. I think the case against your client, although that is an important aspect against your client, I do not think that absent that evidence the jury would necessarily acquit. They might well do so but I do not regard it as an essential link in that sense. It's an important link and in the result it may be a vital one but I do not think in the absence of it I would direct the jury they should acquit." [T 1851] 140 In Minniti v The Queen (2006) 159 A Crim R 394 I observed, at paragraph 35 of my reasons: "Ever since the decision of the High Court of Australia in Shepherd v The Queen (1990) 170 CLR 573; 51 A Crim R 181, any case of the present kind has to be dealt with in the shadow of two contrasted forensic metaphors. The first is the 'links in a chain' metaphor. The second is the 'strands in a cable' metaphor." 141 Thereafter, and at paragraphs 36 through 43, I expressed some views about how, in any particular case, a trial Judge might identify with a proper professional confidence whether the case in hand was properly to be dealt with as a "links in a chain" rather than as a "strands in a cable" class of case. There is, fortunately, no need in the present particular case to re-examine the detail of what is said in those paragraphs. 142 That is so because his Honour, notwithstanding his earlier indication that he did not think that a Shepherd direction was called for in respect of Mr. Dupon's evidence, gave in relation to that evidence directions which are, in substance and effect, Shepherd directions. 143 Thus, and during the course of examining with the jury particular aspects of the Crown case which his Honour was suggesting to be central elements in that case, his Honour said: "The other evidence is of course the evidence of Mr. Dupon. If in fact he heard voices, as he said, including the voice of a male coming from the court-yard when Catherine Friend is there talking to Miss Friend (sic) as he asserted, then the Crown says look, that shows that she, it's only explicable upon the basis that it must have been the intruder and she was in some way in league with him, otherwise how does this conversation possibly arise? Furthermore it shows that everything that she says about the events of that night, at least after the shooting, is false, so that's very important piece of evidence from the Crown's point of view. If you formed the view that you would not convict Catherine Friend unless you were satisfied that the wire was cut from the inside or if you were of the view that you will not convict her unless you were satisfied with the reliability of Mr. Dupon's evidence, then that particular fact becomes a link in the chain because what you are in effect determining is that that fact is essential to be proved before you are prepared to convict. Now some of you may take one view about one of those items of fact and others may take another view about the other items of fact. But if a matter of fact becomes in your minds essential to the chain of proof linking the accused with the crime, then it must be established beyond reasonable doubt. It's not enough if it's established probably." [SU 41, 42] 144 Almost immediately thereafter, his Honour said: "………………. (T)he Crown Prosecutor has also said that you would accept the evidence of Mr. Dupon, that you would accept it as both truthful and reliable. Now if you were minded to consider that they were not essential to proof but you would be satisfied, together with all the other evidence, if they were a high order of probability to be true, providing at the end you were satisfied that adding everything else, and you were satisfied beyond reasonable doubt of guilt, then you would be entitled to convict. If, on the other hand, as I say at the end of the day if you think that any particular item, and these are the only particular items that I think might fall - I am not saying they do - might fall into that category, any particular item that falls into this category of essential to be proved before you would convict, then that fact must be proved beyond reasonable doubt. It's not just a strand in the cable. If that's your view of the importance of that fact then it becomes a link in the chain." [SU 43] 145 It suffices to say that, in my opinion, a fair view of the entirety of the foregoing facts and considerations leaves no sensible scope for the proposition that the relevant directions gave, or might fairly be supposed to have given, rise to a miscarriage of justice. 146 I would not uphold Ground 3.

Ground 4 147 The guiding principles of law are not in doubt: they are summarised by Hunt CJ at CL in Regina v Middis (NSWSC, unreported, 17 March 1991). It is submitted for the appellant that the case against the appellant's co-accused, considered objectively, was stronger than the available case against the appellant. I do not agree. In my opinion there was available to the Crown a strong circumstantial case against both the appellant and her co-accused. It is true, of course, that the precise circumstances said to constitute the Crown's circumstantial case against the appellant did not tally in every particular with the precise circumstances put forward by the Crown in proof of its circumstantial case against the appellant's co-accused. That is, of itself, not to the present point. For reasons which I have explained earlier herein, I am of the opinion that the circumstantial case available to the Crown against the appellant was, in particular respects, a strong one. I am unpersuaded that the available Crown case against the appellant's co-accused was, in any significant sense, a stronger circumstantial case. 148 The appellant places particular emphasis upon a lawfully intercepted telephone conversation between her co-accused and the co-accused's mother. That conversation took place on 3 June 2002. A transcript of the relevant parts of the conversation was Exhibit CY in the joint trial. The conversation adverts to, among other things, the theft from Mr. Grubb's mother's then home of a shotgun. There is evidence that there had been a break-in at the home in October 2001 and that various items had been pulled from the shelf in the cupboard in which the shotgun had been normally stored. The conversation included, as well, some self-serving assertions by the co-accused to his mother about a conversation in which, according to him, the appellant had told him that she knew where she could get a gun. 149 Throughout the trial, but particularly during the charge to the jury, the learned trial Judge was at pains to keep separate in the minds of the jurors the separate respective cases of the appellant and of her co-accused. It is not necessary to set out, chapter and verse, the directions and warnings thus given by his Honour to the jury. It suffices to say that there were many of them; that they were clear and fair; and that they cannot have left the jury in any way confused about how particular pieces of evidence led in the case of one of the two co-accused could not be used by the jury in any way when they came to consider the separate case of the other co-accused. 150 His Honour, speaking of the very telephone conversation between Mr. Grubb and his mother, upon which the appellant's present submission so greatly relies, told the jury in terms: "Now that is evidence - insofar as it is worth anything, it is a matter for you ladies and gentlemen whether it is, I suspect you will not think it is worth very much but if you think it is worth anything - that is evidence in the case of Philip Grubb. It cannot be used, in any way, in the case against Catherine Grubb (sic: but "Grubb" should read "Friend"). [SU 24] 151 In my opinion no miscarriage of justice has been shown to have resulted from the joint trial of the appellant and Mr. Grubb. 152 I would not uphold Ground 4.

Ground 5 153 In order to evaluate fairly the words of which complaint is now made in connection with Ground 5, it is necessary to set the particular words fairly into the context of which they form but a small part. The following excerpt from the summing-up, (SU 28, 29), will sufficiently provide that context: "The defence have called or elicited from a number of witnesses evidence of the accused's good character, both generally and as to whether or not they were the kind of persons who might commit the dreadful crime with which they have been charged. Now, it is perfectly obvious, in one sense, that the persons from whom such evidence would be forthcoming are persons who know the accused well. In that situation it is probably not surprising that you hear evidence from family and friends. There may have been witnesses in this case, for all we know, who had a very adverse view about the accused and members of the jury; the Crown was entitled to ask those questions. Now, on the face of it I got the vibes, perhaps you didn't, it is a matter for you, that David Grubb wasn't altogether happy about being here. One got the impression too, you might think, that he wasn't all that favourably disposed towards his brother. The Crown Prosecutor was perfectly capable of seeing that, just as I was and just as you may have and was perfectly entitled to ask the question, what he thought of his brother, both his honesty and his liability to commit an act of calculated, cold-blooded brutality, by putting a shotgun to the head of someone and pulling the trigger. She didn't ask that question. The Crown, no doubt for perfectly good reasons, is content to allow this matter to go before you upon the basis that these are indeed persons of good character. You would therefore, ladies and gentlemen, not place in the scales against the reliability or persuasiveness of the evidence of those who have given evidence of good character the possibility that, because they were the friends or the family of the accused, they were therefore not candid or truthful about their honest opinion. Now, of course, one has to move from honesty to reliability. Some of these persons knew each of these accused for a long time in very different circumstances over their lives. They had an opportunity to observe them in good times and in bad. The law says that evidence of this kind is entitled to be taken into account by a jury, for the purposes of examining or evaluating the honesty of those persons in this case, what has been said, both inside and outside the court by these accused and whether or not they are the kind of person who might commit the crime here alleged." 154 The nub of the present complaint of the appellant is put succinctly and as follows as part of paragraph 219 of the written submissions put in for the appellant: "To say the least this direction diminished the value of the evidence of the appellant's good character and the benefit she should have gained from this evidence." 155 In my opinion a fair reading of the entirety of the material which I have quoted from pages 28 and 29 of the summing-up makes that submission untenable. I am strengthened in that view by the simple fact that the appellant's counsel at trial, who defended her vigorously and who took every available point, did not seek any re-direction in connection with the few lines upon which Ground 5 has been rested. 156 I would not uphold Ground 5.

Conclusions and Order 157 For the whole of the foregoing reasons I have come to the conclusion that no one of the five Grounds of Appeal against conviction has been sustained. 158 In my opinion the Court should order that the appeal against conviction be dismissed. 159 HISLOP J: I agree with Sully J. **********

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