Klein v Regina

Court of Criminal Appeal (NSW)|2007-06-19|Before: Beazley JA, Grove J, Simpson J, Whealy J, Simpson JJ

Background 4 The deceased had operated the mobile phone retail outlet with his brother, Kenan (known as Ken) Moustafa. The appellant is the brother of a previous owner of the store, Danny Kalischer. Adam Kalnins was employed at the store and was at work on the day of the murder. 5 There was evidence that Danny Kalischer owed Kenan Moustafa money and that requests for payment had been ignored. Kenan Moustafa gave evidence that in December 2000, the appellant rang him and told him to "leave Danny alone or you'll get some more of the same treatment". There was also evidence that the business had purchased $1,500 worth of phones from Ronny Kalischer, another of the appellant's brothers. The arrangement was that the deceased would co-sign a cheque for the phones on his return from Melbourne. It appears that that did not happen and in late January 2001, Ronny Kalischer came to the store seeking payment. Kenan Moustafa told Ronny that he would be paid the following month. Kenan Moustafa gave evidence that Ronny was not happy with that. Ronny Kalischer subsequently made numerous telephone calls to Adam Kalnins demanding the money and Adam Kalnins reported this to Kenan Moustafa. 6 There was a further demand for the money on 14 February 2001, when Peter Kalischer, the father of the appellant, Ronny and Danny, rang Adam Kalnins. Adam Kalnins knew Peter Kalischer, as he had boarded with the Kalischer family for a couple of years in his late teens. Adam Kalnins handed the call to Kenan Moustafa who said that he would pay when he was ready. It was apparent from the evidence that Kenan Moustafa was delaying paying Ronny Kalischer until he had secured payment from Danny. There was otherwise an issue as to the content of the conversation between Peter Kalischer and Kenan Moustafa. Kenan Moustafa said that Peter Kalischer told him that "he'd fix him up if he did not pay", but that he understood that to mean that Kalischer would issue a summons against him. Peter Kalischer's version was that he said to Kenan Moustafa, "You'll hear from me". 7 The deceased was killed at about midday on 15 February 2001, when he was shot twice inside the mobile phone retail outlet. The first bullet passed through the deceased's chest, while the second wound was to the back of the head. There was soot around the wound to the back of the head, indicating that the deceased had been shot at close range from between two or three and ten centimetres from the skin. There was no soot around the chest wound. The evidence established that the wound to the deceased's head would have killed him instantly. It was not established that both the fired bullets came from the same firearm, although the ballistics and forensics expert, Christian Pietersen, gave evidence that both bullets exhibited similar characteristics. 8 There was no dispute that the appellant was in the vicinity of the mobile phone shop around the time of the shooting. He was first seen at about 10am, riding a red trail bike in a street that ran diagonally from Victoria Road from behind the phone shop and the adjacent business, a bottle shop, and a Caltex service station adjacent to the bottle shop. He was again seen at about 10.30am riding the red trail bike. At 11.16am, he entered the Caltex service station, his presence being picked up by closed circuit television (CCTV). At 11.30am, the red trail bike was observed being ridden from Victoria Road into Pearson Street and at 11.55am, Telstra technicians, who had seen the appellant earlier in Pearson Street, saw the trail bike rider on the western driveway of the Caltex service station. He entered the service station at about 11.55am and telephoned his brother Ronny Kalischer. 9 The manager of the bottle shop, Stephen Crass, gave evidence that at about 12 noon, he saw someone walking down the footpath at the front of his drive-in bottle shop. He said the body of the person was obscured, but he saw a pair of feet with white shoes and socks and noticed that the person was wearing a white helmet and carried a bag in front of him. The appellant had earlier been identified as wearing a white helmet when he was riding the trail bike and the CCTV footage taken at 11.16am showed him with the white helmet and wearing white socks and sneakers. Mr Crass heard police cars about five to ten minutes after he had observed the person walking along the footpath in front of his drive-in bottle shop. 10 The movements of Adam Kalnins and Kenan Moustafa during this time were also the subject of evidence. Adam Kalnins was seen on CCTV footage entering the Caltex service station at 11.20am. Adam Kalnins gave evidence that he had a conversation with the appellant in the service station at that time, asking the appellant if he was there to collect the money. Adam Kalnins told the appellant that the deceased and Kenan Moustafa were at the mobile phone shop. Kenan Moustafa left the shop at 11.50am to attend an auction in the city. At 11.56am, a minute after the appellant had rung his brother Ronny Kalischer from the service station, Ronny Kalischer rang Adam Kalnins. Adam Kalnins gave evidence that Ronny Kalischer told him to get out of the shop. He did so and went to the service station where he observed the appellant wearing a white helmet and goggles. 11 There was evidence that a "bang" was heard at about midday. Adam Kalnins returned to the mobile phone shop at about that time and said that he found the deceased shot dead. He made a 000 call at 12.02pm. At about that time, a courier walked into the shop and spoke to Mr Kalnins and also saw the deceased lying under a desk. Mr Kalnins said that he had not called the police, but had called an ambulance. The courier said that the police were needed and he went outside and flagged down a passing police car. This was between 12 noon and 12.05pm. At 12.14pm, the appellant telephoned Jacob Compagnon, from Jacob Compagnon's house, also in Gladesville. At 12.48pm, the appellant telephoned Laura Saaib, with whom he had had a short term relationship and told her not to tell anyone that he had been at Gladesville that day. 12 The evidence to which I have referred was, of course, given in greater detail. However, the above provides an overview sufficiently to enable me to deal with the evidence which is central to the main ground of appeal. That evidence was as follows. Jacob Compagnon said that, having received the telephone call from the appellant, he returned to his home and agreed to drive the appellant to Danny Kalischer's home at Kenthurst. In his evidence at the trial, Jacob Compagnon denied having any conversation with the appellant about the murder. However, in an induced statement given to the New South Wales Crime Commission on 10 August 2001, Jacob Compagnon had made this statement: "4. … I got a call on my mobile from [the appellant] … It was during the middle of the day … [the appellant] said something like, 'It's a code five. I'm at your house, how quick can you get here?' A code five means whatever you're doing just leave … But I couldn't leave straight away … I said, 'It's not straight away, about an hour.'

I think it took about an hour and a half to get to my place at 8 Higginbottham Road, Gladesville. [The appellant] was already in the house. I assumed he borrowed the spare key to get in … He said something like, 'You got to give me a lift. There's a secret, but it dies with you' … I think he was wearing jeans and a dark coloured shirt. I think he had a motor bike helmet and a backpack with him. Although he had a motor bike helmet, I didn't see a motor bike.

We then went to my truck … [the appellant] said something like, 'Give me your shirt' … I took my shirt off and gave it to him … He put his shirt in his backpack he had with him. I was driving with no shirt. [The appellant] then said, 'Drive past [the deceased's mobile phone shop] ([which] is a mobile telephone shop at Gladesville, across the road from the old cop shop and next to the tennis ranch …) … I drove east along Victoria Road towards the city. When we went past [the shop] [the appellant] said, 'Look at that.' I looked and saw police and blue and white tape around the shop … As we drove past [the appellant] said, 'I killed someone.' When he said that I knew it was the secret he was talking about. I said, 'Who was it?' [The appellant] said, 'Gary Moustafa.' I said, 'Which one was that?' I think [the appellant] said, 'It's the short one, Ken's brother.'

A couple of days later I heard [the appellant] had been questioned about the murder and the police came back and found my girl's car at his place … I think either I called [the appellant] or he called me to talk about the car. We arranged to meet at the cemetery near my house. It was early morning when I walked to the cemetery and met [the appellant]. I think it was the Saturday after the murder. I said to [the appellant], 'Have you got rid of the gun yet?' [The appellant] said something like, 'Not yet, I gotta get it to get rid of it.' I said, 'Where is it?' [The appellant] said, 'In your roof' … I said something like, 'Get rid of it' …

In my house we went into the bathroom and [the appellant] climbed up on the sink, pushed back the manhole and once you stand on the sink your head is pretty much in the ceiling. [The appellant] then pulled down something like a cotton moneybag. I said, 'Give me a look?' [The appellant] rolled the bag back so his fingerprints won't be on it … [the appellant] handed the revolver to me on the bag. I handled with two hands with the gun on top of the bag. The gun was silver colour, stainless steel, but I'm not sure of the colour of the butt. By looking at the size of the barrel I estimated that the calibre was smaller than a 9 millimetre … After looking at [sic] I handed the gun back to him. [The appellant] then left my house." 13 In his evidence at trial, Jacob Compagnon said that that statement was a lie. Thereafter, the Crown cross-examined Jacob Compagnon pursuant to the provisions of s 38 of the Evidence Act 1995 (NSW). In the course of that evidence, the Crown read to Jacob Compagnon his statement of 10 August 2001, a later statement of 29 August 2001, his evidence at the committal and a further statement of 18 February 2004. 14 In the committal hearing, Jacob Compagnon reiterated that the appellant said that he had killed the deceased. In his statement of 18 February 2004, Jacob Compagnon again said that the appellant told him to drive past the mobile phone shop and that as they drove past, the appellant said, "I killed someone" and, on being asked who it was, he said, "Gary Moustafa" and identified that person as being Kenan Moustafa's brother. Jacob Compagnon also repeated what he had said in his earlier statement relating to receiving a telephone call from the appellant on 15 February 2001, saying it was "a code five" and requesting him to return to his house; that the appellant had made the request to be driven to Kenthurst and that he had said "There's a secret but it dies with you". 15 In his address to the jury, the Crown prosecutor invited the jury to rely upon Jacob Compagnon's prior consistent statements as evidence that the appellant had confessed to the murder and that this evidence could be used as evidence of the appellant's guilt. He said: "Now, we have heard the evidence of Mr Compagnon since where he has withdrawn that and it is a matter for you working that out as to where the true version lies … But if indeed you accept that there was an admission order made by the [appellant] to Mr Compagnon, of his involvement in this murder, that he committed it, well, you wouldn't have to go much further than that given the very strong circumstantial case, you will be satisfied beyond reasonable doubt without doubt that the [appellant] has committed this murder." 16 In the absence of the jury, his Honour raised with counsel the question of the use that could be made of the prior statements of Jacob Compagnon. His Honour said: "The preliminary view I have formed is this; one, so far as Jacob Compagnon's alleged confession is concerned, it seems to me that can only go to the jury, the prior inconsistent statement that he has made in relation to the confession must be confined to his credibility. I think I will make it clear that that would be second hand hearsay to say it was evidence of the truth of the confession. That would be limited, as I see it, to credibility." 17 Notwithstanding this ruling, his Honour gave the following directions to the jury in relation to the Crown case in general and these admissions in particular. Having given general introductory directions, his Honour then stated: "This is a trial in which the Crown has sought to prove its case beyond reasonable doubt in two ways.

First, by the evidence of an alleged confession by the [appellant] to Jacob Compagnon. Throughout my summing-up I will call that the direct evidence case presented by the Crown.

The second way in which the Crown has sought to prove its case is by pointing to a substantial body of circumstantial evidence from which it asks you to infer beyond reasonable doubt that it was the [appellant] who shot the deceased on 15 February 2001." 18 His Honour then referred to the nature of circumstantial evidence. His Honour moved to what he described as "directions regarding the charge of murder and to isolate for you the critical issues in this trial". His Honour explained the essential ingredients of the charge, the need for the Crown to prove the appellant's guilt beyond reasonable doubt and gave a brief overview of the facts. His Honour then said: "In his submissions the Crown has acknowledged that the Crown bears the onus of proving beyond reasonable doubt that it was the [appellant] who shot and killed the deceased on that day. The Crown says that it has discharged that onus by proving the guilt of the [appellant] in two different ways.

First, the Crown argues that you will accept that on 15 February 2001 the [appellant] admitted to Jacob Compagnon that he had killed Gary Moustafa. I shall refer to this as the Crown's direct evidence case and I will give you, as I have promised, details and more specific directions regarding this aspect of the Crown case shortly.

Secondly, the Crown relies upon what has been described as a circumstantial case. It has placed before you a considerable number of circumstances, depending on how you label them, some thirty in all, these circumstances being matters both before and after the shooting of the deceased and it asks you to infer or conclude from an overall consideration of such of those facts as you find proved that it was the [appellant] who shot the deceased very shortly before or after midday on 15 February 2001." (Emphasis added) 19 His Honour then referred to the defence case, including the position it took as to Jacob Compagnon's statements as to the appellant's admission that he had killed the deceased. His Honour then reiterated the two ways in which the Crown was attempting to prove its case. In this regard, he again referred to the admission. His Honour said: "… the direct evidence case is one that is based on the confession allegedly made by the [appellant] to Jacob Compagnon in the afternoon of 15 February 2001." 20 His Honour then gave three specific directions to the jury in relation to the use that they could make of the alleged admission. His Honour said: "So the Crown, in relation to its direct evidence case, seeks to prove its case beyond reasonable doubt, in the first instance by relying upon the confession allegedly made by the [appellant] to Jacob Compagnon.

Members of the jury, if you are satisfied beyond reasonable doubt that Mr Compagnon's account of his conversation with the [appellant] on the afternoon of 15 February 2001, outside or near the shop at Victoria Road, Gladesville, was a truthful one, that is honest and accurate, and if you are satisfied also beyond reasonable doubt that the confession allegedly made was the truth, then you would find the [appellant] guilty. Because, in effect, you would find that [the appellant] had confessed the very fact of murdering the deceased on that day. This is what I described as the direct evidence case." (Emphasis added) 21 His Honour then explained to the jury that the matter had become complicated, because Jacob Compagnon's evidence in the trial had been different and that he had resiled from the statements that he had made, as well as resiling from the evidence he had given at the committal. His Honour summarised the effect of Jacob Compagnon's evidence in this regard, namely, that he said that he had fabricated the confessional statements allegedly made by the appellant. His Honour then referred to another complication which occurred during the trial when evidence was given that the appellant's brother, Danny Kalischer, had, it was said, attempted to coach Jacob Compagnon in the evidence he was to give. This particular matter is the subject of Ground 3. Having reiterated that Jacob Compagnon had said in his evidence that he had fabricated the confession, his Honour then gave this direction: "So may I say this, quite simply: At the end of your conclusions, if, notwithstanding the warnings I shall give you regarding the way in which you approach or should approach the evidence of Mr Compagnon, you are satisfied beyond reasonable doubt that the [appellant] did tell Mr Compagnon on 15 February 2001, that he killed Gary Moustafa, and if you are satisfied beyond reasonable doubt it was the truth, then your duty would be to find the [appellant] guilty of murder.

If, on the other hand, there is a reasonable possibility that the witness Jacob Compagnon may have fabricated the confession, then you are not entitled to find the [appellant] guilty of murder based on that confession.

That of course is but another way of expressing the following proposition; namely, that if there is a reasonable possibility that the confession was fabricated by Compagnon, then you will not be satisfied beyond reasonable doubt that the confession was made, nor would you be satisfied beyond reasonable doubt for the same reason that it was the truth." (Emphasis added) 22 At that point in his address, his Honour concluded the proceedings for the day and recommenced his address the following morning when he commenced dealing with Jacob Compagnon's evidence in detail. His Honour, towards the end of his review of Jacob Compagnon's evidence, said: "If you do not accept Mr Compagnon as a witness of truth in relation to the evidence he gave before you, if you come to the view he was not telling you the truth generally, the question will still remain whether the various statements implicating the [appellant], particularly the confession in the earlier statements, are themselves the truth. In other words, can you be satisfied beyond reasonable doubt on the basis of those various statements and evidence that the [appellant] admitted to Jacob Compagnon on 15 February 2001 that he killed Gary Moustafa, the deceased. You are of course entitled to make use of those earlier statements but, in relation to this alleged confession, only to assess the credibility of the evidence he has given in the witness box . As far as the alleged confession is concerned, you cannot use those earlier statements in any other way.

The Crown has asked you to accept that the [appellant] did make the confessional statement to Jacob Compagnon on 15 February 2001. The Crown asks you to accept beyond reasonable doubt that not only was the statement made by the [appellant], but that it was true.

Of course, as I have said to you a number of times members of the jury, if you are satisfied beyond reasonable doubt of each of those matters, namely that the confession was made and that it was the truth then your duty would be to find the [appellant] guilty on the basis of the alleged confession . That is because you would find that he had confessed the matter that is centrally at issue in this trial, namely that it was [he] who shot the deceased on 15 February 2001." (Emphases added) 23 His Honour then warned the jury that before they could act upon the earlier statements made by Jacob Compagnon and the evidence that he had given at the committal, it was necessary to "act with considerable circumspection". His Honour then continued to summarise the evidence in relation to the making of the statements. He pointed out that prisoners sometimes "work the system" by fabricating material, in the hope that they will receive some benefit. He stated that it was not every prisoner that did that, but from experience, it was known that many prisoners acted in that way. His Honour reiterated that, for the reasons that he had been discussing, the statements made by Jacob Compagnon to the Crime Commission and his evidence at the committal might be unreliable, because they had been fabricated to obtain a benefit. It followed, therefore, that those statements had to be approached with "considerable care and circumspection". His Honour added: "May I make it clear to you that I am not telling you that you should not accept those statements and evidence given by Mr Compagnon regarding the alleged confession. I am making no comment about it at all. I am not expressing any opinion about it and that is because it is a matter for you and you alone as to whether you accept Mr Compagnon beyond reasonable doubt in relation to the statements made to the various authorities at that earlier point of time." 24 His Honour concluded as follows: "As I have said to you earlier if you were, however, to come to a conclusion that you do not believe what Mr Compagnon said in the witness box before you, it would not follow automatically that what he said in his statements to the authorities, the Crime Commission and the police in the earlier period was true. It is possible that Mr Compagnon may be lying before you and yet he may have fabricated the evidence before the Crime Commission. This is particularly so in relation to the confession. It would be obvious to you that if you were to find that Mr Compagnon lied to you in the witness box about anything, or indeed everything as the Crown has suggested to you, that would be a matter that you would be entitled to take into account in relation to his honesty generally. I do not need to tell you that or stress that, that is simply a matter of commonsense and based upon your own experience you could view the matter in that light.

May I conclude on this topic in the following manner: You have to remember throughout your deliberations in relation to Mr Compagnon as a witness, particularly in relation to the confession that he originally said was made to him by the [appellant], that it would be dangerous to convict upon the evidence of a class of witness to which Mr Compagnon belongs, so if you were simply in this trial to take the evidence of Mr Compagnon by itself, ignoring all the other evidence, if that were the only evidence in the case, and if you are asked by the Crown to convict on that evidence alone on the basis that the [appellant] had made a confession, then clearly it would be dangerous to act upon that evidence alone in order to convict the [appellant]. You could do so, but you would have to have regard to the difficulties about his evidence generally, his position as a prison informer, and you would also have to be satisfied at the end of the day, after carefully examining the making of statements to the Crime Commission and the police station, et cetera, that you have been referred to, you would have to be satisfied at the end of the day beyond reasonable doubt, after you made that examination in fine detail, that the evidence of those statements was honest evidence, accurate evidence and reliable evidence. As I have said to you, you are entitled to examine those prior inconsistent statements as evidence against which you may assess the truthfulness of the evidence given before you by Mr Compagnon in the witness box." 25 That concluded his Honour's review of Jacob Compagnon's evidence. He then decided that the jury should have a short break and, in the absence of the jury, asked counsel whether there were any matters that they wanted to raise. Both the Crown Prosecutor and counsel for the appellant at trial responded in the negative.

First ground of appeal: misdirection in respect of confessional evidence 26 The appellant's first ground of appeal was stated in the following terms: "(a) the trial miscarried because of the admission into evidence of prior statements of the witness Jacob Compagnon which contained assertions of what the appellant had said to him, and which were second hand hearsay and inadmissible

(b) the trial miscarried because the learned trial judge did not give the jury adequate directions about what use could be made of the prior statements of the witness Jacob Compagnon which contained assertions of what the appellant said to him" 27 Although this ground of appeal raised two separate issues, the principal argument on the appeal was confined to the issue raised in Ground 1(b). Presumably, this was because counsel for the appellant at trial had agreed that the evidence was admissible by way of the various statements being read to Jacob Compagnon and because his Honour had indicated and it had been agreed by both the Crown and counsel for the appellant that the prior statements could be used, and only used, in relation to the credit of Jacob Compagnon. There is in any event authority that such evidence is admissible on a question of credit: Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60. The essential argument was that the trial judge failed to give adequate directions to the jury as to the use that could be made of Jacob Compagnon's prior statements to the effect that the appellant had confessed to the crime. The appellant needs leave to argue this ground of appeal as no issue was raised by counsel at trial that the direction was wrong: r 4 of the Criminal Appeal Rules (NSW) (the Criminal Appeal Rules). I deal with the question of leave below. 28 In Lee v The Queen, a similar situation arose as occurred here. A principal witness, Mr Calin, had made a statement to the police that the appellant, Lee, had confessed to the crime with which he was charged, namely, assault with intent to rob. He signed a statement to that effect and later confirmed that he was willing to give evidence about the matter. Sometime before the trial, however, he informed the police that he was not willing to give that evidence, because he had heard that he was being called "a dog". 29 Mr Calin was nonetheless called as a witness at the trial, but in evidence said that although he had spoken to Lee on the night of the offence and had asked him about money that Lee had owed him, he did not recall any other conversation with the appellant. The prosecution then sought leave to cross-examine Mr Calin about what he had said in the written statement to police. Leave was granted and, in that cross-examination, Mr Calin admitted signing the document in which he had recorded the confession he said the appellant had made to him, but denied that the statements in that document were his. 30 The trial judge directed the jury that if they accepted that Mr Calin had told police what was contained in the written statement, that was "evidence of the fact that the appellant did say those words". The High Court considered that the effect of the trial judge's instruction to the jury, taken as a whole, was that if the jury were satisfied that the appellant had said those words to Mr Calin, they were a confession by the appellant to the crime with which he had been charged. 31 The High Court said that that direction was erroneous. As their Honours explained at [30]: "… that evidence that Mr Calin had earlier reported that the appellant had confessed was not evidence of the truth of that confession. It should not have been received at the trial of the appellant, as it was, as evidence establishing that the appellant had committed the offence." 32 Their Honours said further at [41]: "Evidence of Mr Calin's prior statements of what the appellant had said should not have been admitted as evidence of the truth of the confession allegedly made by him to Mr Calin. Because those prior statements of what the appellant had said went only to Mr Calin's credit, the trial judge could either have rejected those parts of the statements [(the Evidence Act 1995 (NSW)] (s 137) or, if that course was not followed, would have had to give clear directions to the jury about the very limited use to which they could be put. In the circumstances of this case, the former course was to be preferred." 33 As I have already said, in this case, during the course of discussions with counsel, his Honour had already identified the use to which Jacob Compagnon's prior statements could be put, namely, that they could be used in relation to his credit. However, in the passages of the summing up to which I have referred, other than that in which his Honour stated that the jury could use the prior inconsistent statements only to assess his credibility, his Honour explicitly directed the jury that if they were satisfied beyond reasonable doubt that Jacob Compagnon's account of the conversation with the appellant was truthful, that is, honest and accurate and if they were also satisfied beyond reasonable doubt that the confession was the truth, then not only would they find the appellant guilty, but indeed, had a duty to do so. His Honour further instructed the jury that, if accepted beyond a reasonable doubt, the confession directly proved the appellant's guilt. 34 In those circumstances, I am not satisfied that the directions that his Honour gave, set out at [24] above, relating to Jacob Compagnon's credibility, ameliorated, let alone corrected, his Honour's previous express directions. Indeed, it may be that the jury could have understood these directions set out at [24] to mean that, having regard to the prior statements Jacob Compagnon made, then, if they did not accept his evidence in Court, that being the credit issue, they could reject his evidence and then accept what he had said in the prior statements. 35 The Crown submitted that Lee's case was distinguishable in that, in Lee, the direction which had been given by the trial judge had only involved a single step process, whereas the direction given by the trial judge here involved a two step analysis. Thus, in Lee, the effect of the direction was that if the jury were satisfied that the appellant had said the words to Mr Calin, then those words constituted a confession by the appellant of the crime. In this case, however, it was said that the jury were directed that if they were satisfied beyond a reasonable doubt that the appellant had made the confession to Jacob Compagnon and, if they were also satisfied beyond a reasonable doubt that that was the truth, then their duty would be to convict. 36 I do not consider that there is any point of distinction in the directions given in this case and in Lee. Although in Lee, the precise terms of the directions are not given, I have already stated the effect of the directions as summarised by the High Court. Even on that direction, the jury could not have found the appellant in that case guilty, unless they were satisfied beyond a reasonable doubt that the confession was true. Here, the trial judge stated explicitly what I consider what was implicit in Lee. 37 Senior counsel for the Crown also submitted that, the jury having been given those two steps, were implicitly being directed that they had to be satisfied independently of the confession of the fact that the appellant was guilty. In making the submission, senior counsel for the Crown had to concede that they were not so told explicitly and that the directions could have been better, to indicate that that was what they were to do. In my opinion, there was no such implied direction contained within his Honour's directions to which I have referred. The direction was express and clear on its terms and, with respect to his Honour, was wrong, for the reasons I have given. Indeed, such an 'implicit direction' would have been superfluous. If they were independently satisfied of the appellant's guilt, the reliance on the confession would be unnecessary.

Application of the proviso 38 It was submitted by the Crown that, even if the appellant had established error in the giving of the directions, the Court should nonetheless apply the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act). The Crown submitted that the circumstantial evidence in the case, including other aspects of Jacob Compagnon's evidence, was significant. 39 So far as Jacob Compagnon's evidence was concerned, the Crown relied upon the appellant's telephone call to him within 15 minutes of the shooting, in which the appellant asked Jacob Compagnon to return home. The Crown also relied on the evidence that the appellant had changed his shirt and washed himself and his bike with chemicals. He had retrieved a revolver from the manhole in Jacob Compagnon's bathroom and had taken the revolver away with him. 40 The Crown further relied upon the essentially undisputed evidence of the sightings of the appellant in the vicinity of the mobile phone shop from 10am up until the time of the shooting. It was said that the need to be in the vicinity as an alibi for Adam Kalnins was weak and implausible as, if Adam Kalnins needed an alibi, it would be available from CCTV footage in the service station. 41 In my opinion, this is not a matter where the proviso should be applied. The presence of the appellant in the vicinity of the deceased's business premises was, of course, highly significant. Nonetheless, there was no direct evidence that linked the appellant with the killing and no evidence that the appellant was seen entering or leaving the business premises. 42 Further, the evidence linking the appellant with possession and/or ownership of a gun was itself evidence which depended upon the credibility of the witnesses concerned. In Jacob Compagnon's case, the trial judge had directed the jury, in the passage referred to at [24] above, that it would be dangerous to convict the appellant acting on Jacob Compagnon's evidence alone. Insofar as other witnesses had given evidence of having seen the appellant in possession of a gun, Jacob Compagnon had recanted from statements to that effect made to the Crime Commission. 43 Senior counsel for the appellant also submitted that the evidence as to the appellant's behaviour after the murder was consistent with his case, which was that the appellant had agreed to be in the area to provide a false alibi for Adam Kalnins, who was planning to do a standover robbery of the mobile phone shop. The appellant's evidence was that Adam Kalnins had told him shortly after the event that the robbery had gone wrong. It was submitted that all aspects of his behaviour afterwards were consistent with the knowledge that the robbery had gone wrong. 44 I am not satisfied that a jury would have necessarily convicted the appellant on the circumstantial case upon which the Crown otherwise relied. Accordingly, it could not be said that no substantial miscarriage of justice had actually occurred.

Rule 4 45 Senior counsel for the appellant acknowledged that leave was needed under r 4 of the Criminal Appeal Rules to argue this Ground. The operation of r 4 was explained by Hunt AJA in South v Regina [2007] NSWCCA 117 at [34]: "Rule 4 of the Criminal Appeal Rules provides, inter alia , that no direction or omission to give a direction at the trial shall, without the leave of this Court, be allowed as a ground of appeal unless objection was taken at the trial to the direction or omission by the appellant. In order to obtain such leave, an appellant must first establish at least an arguable case of error - in this case, that there was a misdirection. Next, leave to rely on an error where no point was taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. There is a miscarriage of justice where, by reason of the error made, the accused may have lost a chance fairly open to him of being acquitted. The authorities are collected in Regina v Wilson (2005) 62 NSWLR 346 at [19]-[21]." 46 Senior counsel for the Crown submitted that this Court should be wary of granting leave merely because counsel for the appellant at trial had provided evidence to the Court that there was no tactical advantage sought to be achieved by not taking the point at trial. He referred the Court to Tekely v R; Nagle v R [2007] NSWCCA 75, where Howie J said at [131]: "There is no explanation from trial counsel before the Court for failing to take the point. True it is that counsel might be so incompetent as to have overlooked such a grievous error made in a relatively short summing up but there is nothing otherwise in the conduct of the trial that indicates that this was a possibility. It can be accepted that there could have been no tactical advantage to the accused Nagle perceived by his counsel that might account for the omission to complain. But, as I pointed out in R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 at [63], rule 4 is not overcome simply by showing that there was no tactical advantage for not taking the point at the trial. The real position is that where there is a tactical advantage discernable it would be difficult for the appellant to show that a miscarriage of justice arose from a failure to take the point." 47 On this appeal, counsel for the appellant at trial had filed an affidavit in which he stated that he did not understand that when his Honour limited the use of Jacob Compagnon's evidence of the appellant's confession to murder, to credibility only, that the evidence could not be used as evidence of the fact. He said that it was for that reason he did not seek a redirection. He stated specifically that there were certainly no tactical reasons for not seeking such a direction.

48 For the reasons I have given, there was a misdirection of a significant kind, such that the appellant may have lost a chance fairly open to him of being acquitted. It is apparent from the affidavit evidence that counsel for the accused did not appreciate the significant error in his Honour's direction and that his failure to raise it before his Honour was not due to any tactical decision. Having regard to the observations made in South v Regina; Tekely v R; Nagle v R; and R v Moussa, leave to raise this ground on appeal should be granted and the appeal should be allowed on this ground. 49 Since preparing my own reasons, I have had the opportunity of reading in draft the additional comments of Grove J with which I also agree. 50 That is sufficient to dispose of the appeal. There were three other grounds of appeal which were pressed. Each of those grounds related to matters which occurred during the course of the trial. Whilst I initially expressed concern about the matters that gave rise to Ground 3, the trial judge had given a clear and correct direction and I am not necessarily persuaded that the appellant would have established error, or that it would have been appropriate to apply the proviso. However, the error in respect of Ground 1, in my opinion, is overwhelming and the appeal should be allowed. 51 It follows, therefore, that the appeal should be allowed and I would propose the following Orders:

Order that there be a new trial. 52 GROVE J: I have had the advantage of reading the judgment of Beazley JA in draft form. I agree with her Honour for the reasons which she has given that ground 1(b) which complains of the directions concerning the prior statement of the witness Jacob Compagnon must be sustained and that a new trial be ordered. 53 The submission by the Crown Prosecutor in his final address which her Honour has quoted was made on 20 September 2005. It was on the following day, in the absence of the jury and before the Crown address was resumed that the learned Trial Judge expressed the view that the evidence of the alleged confession claimed to have been made to Compagnon in the statement from which he was seeking to resile should be limited in its availability to the jury's consideration of that witness' credibility. That view was undoubtedly correct. His Honour continued to foreshadow some other proposed directions to the jury and both counsel confirmed that the matters raised were not "a problem for anyone". 54 The summing up commenced on Thursday 22 September and the jury retired to consider its verdict shortly after 10 am on Monday 26 September. From time to time the Court was reassembled to respond to requests for further direction. The jury returned their verdict at 2.18 pm on Wednesday 28 September. The impugned directions were very much in the standard form in which directions are given in a case where the prosecution does rely upon the making of a confession in proof of guilt. That was not this case. 55 It is disappointing to note that neither counsel - and I have set out some chronology to demonstrate the considerable opportunity - seemed to have been alert to the selection of the inappropriate direction and his Honour did not receive any assistance from them. It should have been provided and they must bear some responsibility for the outcome which involves a potential third trial. 56 SIMPSON J: I agree with Beazley JA. I also agree with the additional observations of Grove J. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 CASES CITED: R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 South v Regina [2007] NSWCCA 117 Tekely v R; Nagle v R [2007] NSWCCA 75

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