In considering this ground it is necessary to set out the background which resulted in the tender of Ex AA.
Prior to giving evidence before the jury, Witness E was called on the voir dire. Having been asked questions about his sentence and his undertaking to give evidence, Witness E was asked about his participation in a record of interview with police following his arrest and the contents of that interview. He gave a series of answers to questions put by the Crown, which were generally unfavourable to the Crown case. When cross-examined on the voir dire he claimed that his memory of relevant events was adversely affected by, inter alia, the time that he had spent in custody.
Following the conclusion of the voir dire, the Crown made an application to cross examine Witness E pursuant to s 38 of the Act. The trial judge concluded that it was appropriate to determine any application under s 38 once any evidence in chief had been led before the jury. At that time, the Crown Prosecutor informed the trial judge that Witness E had indicated that he did not wish to speak with him.
Witness E was then recalled on the voir dire at which time the trial judge reminded him of the importance, when giving evidence before the jury, of answering only the particular question that he was asked. The trial judge also made Witness E aware of the fact that it was open to him to object to answering any question on the grounds that it may tend to prove that he had committed an offence with which he had not been charged.
On the following day Witness E's treating medical practitioner, Dr Etties, was called to give evidence. Having produced the records of medical treatment administered to Witness E, Dr Etties confirmed that Witness E was not under any medication at the time, but was to undergo a treatment regime for cancer.
Following Dr Etties' evidence the Crown Prosecutor informed the trial judge that Witness E had refused to see him for the purposes of a conference, and had asked to be given some time to "look over some documents" before being called to give evidence before the jury.
Witness E was then called to give evidence before the jury. Having been taken through the details of the sentences which were imposed upon him, the Crown commenced to ask him about his association with Anthony Perish and, in particular, whether Anthony Perish had spoken to him about "anything to do with his grandparents". He was then asked a number of further questions, the answers to which were generally unfavourable to the Crown. These answers culminated in the Crown making an application under s 38 of the Act.
Over the ensuing days, an agreement was reached between all counsel that an edited copy of the interview between Witness E and the police would be tendered. The trial judge then formulated a direction for the jury, with which all parties agreed, regarding the Crown's cross-examination of Witness E on the contents of the interview.
Witness E was then recalled by the Crown. The trial judge confirmed a grant of leave to the Crown under s 38 "to cross-examine on the matters in the edited transcript". The edited interview with Witness E was then admitted without objection. It became Ex AA and was played to the jury.
Witness E was then asked questions based upon what he had told the police during that interview.
[2]
The third appellant's submissions
Counsel for the third appellant submitted that there was no proper basis for the tender of Ex AA. In particular, it was submitted that Ex AA was not admissible because:
1. it was plainly hearsay;
2. it was therefore not admissible to prove the truth of its contents, unless it was admissible for some other purpose;
3. the only basis on which it was admissible was that it constituted credibility evidence;
4. because of the credibility rule in s 102 of the Act, it was not admissible unless it fell within one of the exceptions to that rule;
5. the only possible relevant exception was that contained in s 106 of the Act; and
6. the pre-requisites contained in s 106(1)(a) of the Act, namely that:
1. the substance of the evidence be put to the witness; and
2. the witness deny, or not admit or agree to, the substance of the evidence
were not satisfied
In developing these submissions, counsel for the third appellant argued that at no stage did the Crown Prosecutor seek to put the substance of Ex AA to Witness E before tendering it. It was submitted that as a consequence, Witness E was not given the opportunity to admit or deny what had been recorded and that accordingly, the exception set out in s 106 was not available to exclude the operation of the credibility rule, and that accordingly, the evidence was not admissible. Again, in making these submissions counsel for the third appellant accepted that r 4 applied.
[3]
The Crown submissions
The Crown submitted that in light of the circumstances which led to the tender of Ex AA there had been adequate compliance with s 106(1)(a) of the Act. It was submitted that by the time Ex AA was played, the jury were necessarily aware of the extent of Witness E's recollection of events and that after Ex AA had been played, Witness E had been given the opportunity to admit, deny or agree to the substance of the evidence, but had continued to maintain that he had no recollection of relevant events.
The Crown further submitted that in any event, Ex AA was properly admissible under s 103 of the Act which governs cross-examination as to credibility. It was submitted that the provisions of that section were attracted in light of the fact that Ex AA was adduced in cross examination of Witness E pursuant to a grant of leave under s 38 of the Act.
[4]
Consideration
Section 102 of the Act is in the following terms:
102 The credibility rule
Credibility evidence about a witness is not admissible.
Section 106 of the Act creates an exception to the credibility rule and is in the following terms:
106 Exception: rebutting denials by other evidence
(1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if:
(a) in cross-examination of the witness:
(i) the substance of the evidence was put to the witness, and
(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and
(b) the court gives leave to adduce the evidence.
(2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness:
(a) is biased or has a motive for being untruthful, or
(b) has been convicted of an offence, including an offence against the law of a foreign country, or
(c) has made a prior inconsistent statement, or
(d) is, or was, unable to be aware of matters to which his or her evidence relates, or
(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.
Before this Court, both the Crown and counsel for the third appellant accepted that Ex AA was "credibility evidence". Section 102 of the Act provides that such evidence is "not admissible". Sections 103 to 108 of the Act create a number of exceptions to the application of the credibility rule.
Counsel for the third appellant submitted that the line of reasoning in the authorities set out above at [261]-[270] should no longer be followed. For the reasons already expressed we do not accept that submission. Given that Ex AA was admitted without objection, it was admissible irrespective of the provisions of s 106.
Counsel for the third appellant specifically submitted that the line of reasoning in such authorities should not be followed in light of s 190 of the Act which is in the following terms:
190 Waiver of rules of evidence
(1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of:
(a) Division 3, 4 or 5 of Part 2.1, or
(b) Part 2.2 or 2.3, or
(c) Parts 3.2-3.8,
in relation to particular evidence or generally.
(2) In a criminal proceeding, a defendant's consent is not effective for the purposes of subsection (1) unless:
(a) the defendant has been advised to do so by his or her Australian legal practitioner or legal counsel, or
(b) the court is satisfied that the defendant understands the consequences of giving the consent.
(3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if:
(a) the matter to which the evidence relates is not genuinely in dispute, or
(b) the application of those provisions would cause or involve unnecessary expense or delay.
(4) Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account:
(a) the importance of the evidence in the proceeding, and
(b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding, and
(c) the probative value of the evidence, and
(d) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
It was submitted that the authorities in [261]-[270] ignored the provisions of s 190 and that, in particular, if the absence of objection was sufficient to exclude (in the context of the present case) the operation of the credibility rule, s 190 would have no practical work to do.
That submission is contrary to authority. In WC, Meagher JA (with whom Simpson and Wilson JJ agreed) rejected such a proposition at [24]-[25]:
"[24] It was submitted that by not rejecting the record of S's evidence as excluded by the hearsay rule the trial judge was to be taken to have dispensed with the application of s 59 in Pt 3.2 in relation to that evidence in circumstances where WC's consent to the making of such an order was not effective because neither of the conditions in subs 190(2)(a) and (b) was satisfied.
[25] This argument must be rejected simply because in admitting the relevant evidence the trial judge made no order under subs 190(1). Nor was it necessary for him to do so. The hearsay evidence was not admissible over objection and no objection was taken. It was not necessary to dispense with the application of s 59 in order to admit the evidence."
Quite apart from the fact that Ex AA was admissible in the absence of objection, and on a fair reading of what transpired prior to the admission of Ex AA, there was compliance with the provisions of s 106 of the Act in any event. Prior to the admission of Ex AA, Witness E had effectively refused to acknowledge what he had said to the police when previously interviewed.
Section 106 does not require the adoption of a mechanistic approach, in which each and every proposition contained in the evidence in question is put to the witness. It requires only that the substance of the evidence be put. In the circumstances of the present case, that requirement was met.
For all of these reasons, leave should be refused in respect of this ground.
[5]
The directions of the trial judge
Central to this ground is the following direction given by the trial judge:
"The evidence of Witness A of being given money by Andrew Perish and the discussions with Andrew Perish about the repairs to the boat is available for you to consider in the cases of each of the accused, even though Anthony Perish and [the third appellant] may not have been present when the acts were done or the statements made, not only as establishing the existence and nature of the alleged conspiracy but if they were done or made in furtherance of the alleged conspiracy as establishing the participation of each of the accused in it."
[6]
The third appellant's submissions
In advancing this ground, counsel for the third appellant acknowledged that much of the evidence led against the third appellant was admissible to prove the nature and scope of the alleged conspiracy, even if the evidence touched upon acts which did not specifically involve the third appellant.
However, counsel for the third appellant submitted that the trial judge had erred in directing the jury that they were entitled to take into account acts of one of the co-accused which were entirely unconnected with the third appellant.
It was submitted that the vice in the trial judge's direction set out above at [482] was that it invited the jury to conclude, on the basis of acts with which he was entirely unconnected, that the third appellant had participated in the conspiracy. It was submitted that the effect of the trial judge's direction was to permit the jury to conclude that the third appellant was a participant in the conspiracy, in the absence of any evidence of his participation. Counsel submitted that these circumstances led to a miscarriage of justice, such that leave should be granted under r 4.
[7]
The Crown submissions
The Crown submitted that the approach to this ground adopted by counsel for the third appellant overlooked other directions given by the trial judge, in which the jury had been specifically directed as to, inter alia, the elements of conspiracy to murder. It was submitted that when the summing up was read as a whole, there was no risk that the jury would have used the evidence of the conversation between Witness A and Anthony Perish as evidence of the participation, by the third appellant, in the conspiracy.
The Crown again emphasised that no further direction was sought by experienced senior counsel who appeared for the third appellant at trial. It was submitted that the only conclusion which could be drawn in these circumstances was that counsel perceived no danger that the jury might misunderstand the directions which had been given by the trial judge.
[8]
Consideration
For a number of reasons, there is no merit in this ground.
As counsel for the third appellant expressly acknowledged, evidence which did not directly implicate the third appellant was nevertheless available to prove the nature and scope of the conspiracy.
Moreover, the approach taken by counsel for the third appellant in respect of this ground again failed to have regard to the summing up as a whole, and ignored a number of other directions given by the trial judge. Having regard to those other directions, the jury could not possibly have been in any doubt about the evidence which was available to them to consider in determining the issue of the participation of the third appellant in the conspiracy.
Specifically, having directed the jury in relation to the general nature of a conspiracy, the trial judge then said:
"In order for you to find any of the accused guilty the Crown must satisfy you beyond reasonable doubt of the following essential legal elements in relation to the particular accused whose case you are considering:
1. That there was in fact an agreement between two or more persons to kill Terrence Falconer, and
2. That the particular accused whose case you are considering participated in the agreement in the sense that:
(a) the particular accused agreed with one or more of the other persons referred to in the count of conspiracy to murder that the unlawful objective of the conspiracy, that is the killing of Terrence Falconer, should be carried out and
(b) at the time of agreeing to this he intended that unlawful objective - the killing of Terrence Falconer - should be carried into effect" (emphasis added).
These directions were specifically set out in MFI 79. Having directed the jury in those terms, the trial judge reminded the jury of the requirement to consider the case against each appellant separately.
The trial judge then directed the jury in the following terms:
"Let us now consider together the second essential legal element which the Crown must prove beyond reasonable doubt. That is that the particular accused whose case you are considering participated in the agreement to kill Terrence Falconer. In order for an accused to have participated in the agreement, the Crown must prove beyond reasonable doubt that he knew that the objective of the agreement was to kill Terrence Falconer, and must have intended to carry that objective into effect. It is not necessary for the Crown to prove that the agreement was carried into effect, but it is necessary for the Crown to prove beyond reasonable doubt that the particular accused intended that it be carried into effect. He must have been a party to that common design with at least one other person ….. Please remember that you must consider the case against each accused separately. The Crown relies on circumstantial evidence to prove that there was an agreement to kill Mr Falconer and each of the accused participated in that agreement" (emphasis added in each case).
The trial judge then set out those matters specifically relied upon by the Crown to establish the third appellant's participation in the conspiracy (such matters having been considered in respect of Ground 1). He repeated some of those matters in the passage extracted above at [444].
Finally, the trial judge returned to the issue of the necessity to consider the cases separately:
"It is important, members of the jury, that I now provide you with some assistance with the evidence that is available for you to consider on the count of conspiracy to murder. As you know, I have emphasised that there are three trials going on here. A trial against each of the accused. I have directed you during the trial at relevant times about particular parts of the evidence and have done so to assist you to understand whether a particular piece of evidence is available for your consideration in the case of a particular accused.
I have also referred during these directions to two distinct legal elements in a charge of conspiracy. The existence of the conspiracy and the participation of the accused in that conspiracy. Please remember that proof of the existence of the conspiracy does not mean proof that a particular accused participated in it. The evidence against each of the accused may include evidence relating to what the accused did or said. It might also include what was said or done by other alleged conspirators in the presence of the particular accused.
Generally speaking an accused is not to be held liable for the acts or statements of others if he is not present when those acts were done or those statements were made. However, there is an exception to this rule in the case of a charge of conspiracy. This exception permits in certain circumstances, and for certain limited purposes, evidence of acts done, and statements made by other alleged conspirators in the absence of one of their number to be admissible in the case against him" (emphasis added in each case).
Contrary to the submission advanced by counsel for the third appellant, the jury were not invited to conclude that the third appellant had participated in the conspiracy on the basis of acts with which he was entirely unconnected. The trial judge directed the jury, with precision, as to the evidence upon which the Crown relied to establish the third appellant's participation. That direction was given in the context of the jury being directed as to the necessity to consider the case against each of the appellants separately, as well as being directed as to the fact that establishing the existence of the conspiracy was quite separate from establishing the third appellant's participation in it.
In all of these circumstances, there is no room for a suggestion that the effect of the trial judge's directions was to permit the jury to conclude that the third appellant was a participant in the conspiracy in the absence of any evidence of his participation.
It is unsurprising in these circumstances that no issue was taken by experienced senior counsel at trial in respect of the trial judge's directions. Leave to appeal in respect of this ground should be refused.
[9]
Conclusion
We would make the following orders:
1. In respect of Ground 1, appeal against conviction dismissed
2. In respect of each of Grounds 2, 3 and 4, leave to appeal refused.
[10]
Amendments
20 May 2016 - Cover Sheet - Representation
Change "Ms A Lewer" to "Ms G Lewer"
31 May 2016 - Pars [329] [332] [333] [334] [337] change "I" to "we"
02 November 2016 - Par [228] name anonymised
01 February 2017 - Pars [15] [129] change "Justin Burkhill" to "Justice Birk Hill"
[99] change "Witness C" to "Witness E"
[190] change "later" to "lateral"
[203] change "760mm" to "1760mm"
[221] change "Parramatta" to "Turramurra"
[227] anonymise name
[233] change "Parramatta" to "Silverwater"
[242] change "CLR 524" to "CLR 594"
[244] change "[227]" to "[228]"
[265] change "VSCA 141" to "VSCA 121"
[268] change "NSWCCA 232" to "NSWCCA 186"
[327] change "184 CLR 487" to "181 CLR 487"
[361] change "eight" to "nine"; change "called Witness A" to "called or texted Witness A"
[388] change "[27]" to "[26]"
[403] change "Dr" to "Mr"
[411] change "254 CLR 259" to "83 ALJR 579"
[478] change "Simpson JA and Wilson J" to "Simpson and Wilson JJ"
03 February 2017 - Par [384] Change "none of the jurors would not have been" to "none of the jurors would have been"
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.
Decision last updated: 03 February 2017
58
R v Spathis [2001] NSWCCA 476
Ross v The Queen [2012] NSWCCA 207
Selstam v McGuinness [2000] NSWCA 29; 49 NSWLR 262
SKA v The Queen [2011] HCA 13; 243 CLR 400
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Velkoski v The Queen [2014] VSCA 141
Walker v Walker [1937] HCA 44; 57 CLR 630
WC v The Queen [2015] NSWCCA 52
Texts Cited: J D Heydon, Cross on Evidence (10th ed 2015, Lexis Nexis)
Stephen Odgers, Uniform Evidence Law (11th ed 2014, Thomson Reuters)
Category: Principal judgment
Parties: Anthony John Perish - Applicant
Andrew Michael Perish - Applicant
Matthew Robert Lawton - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr H Dhanji SC/Ms G Lewer - Applicant Anthony John Perish
Mr J Trevallion - Applicant Andrew Michael Perish
Mr P Lange - Applicant Matthew Robert Lawton
Ms S Dowling SC/Mr F Veltro - Respondent Crown
Solicitors:
Legal Aid NSW - Applicant Anthony John Perish
Archbold Legal - Applicant Andrew Michael Perish
Matouk Joyner Lawyers - Applicant Matthew Robert Lawton
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2009/1480022009/1501112009/145260
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Criminal
Citation: [2012] NSWSC 355
Date of Decision: 13 April 2012
Before: Price J
File Number(s): 2009/148002
2009/150111
2009/145260
[This headnote is not to be read as part of the judgment]
Anthony Perish (the first appellant), Andrew Perish (the second appellant) and Matthew Lawton (the third appellant) were jointly charged with conspiracy to murder Terrence Falconer (the deceased). The first and third appellants were jointly charged with the murder of the deceased. The first appellant pleaded not guilty to both charges but guilty to manslaughter, a plea that was not accepted by the Crown. The second and third appellants pleaded not guilty to all charges.
It was the Crown case that the first and second appellants, who were brothers, believed the deceased had murdered their grandparents. The Crown argued that the appellants planned and coordinated the abduction and murder of the deceased, who was on work release from Silverwater prison. The abduction was performed by three men including Witness E. Witness E's car had been altered with wheels provided by the third appellant to give it the appearance of a detective's car. The abductors, dressed as police officers, then purported to arrest the deceased. The deceased was handcuffed, subdued with chloroform or a similar agent, placed in a metal box and transferred to another van.
Witness E then drove the deceased, unconscious in the metal box, to the first appellant's residence in Turramurra where the first and third appellants were waiting. There was conflicting evidence as to whether the deceased was alive when he arrived at Turramurra. It was submitted by the first appellant that his intention in directing the kidnapping of the deceased was to interrogate him and thereafter return him to prison. He submitted that the deceased was already dead when they opened the box at Turramurra. In a recorded interview with police, Witness E claimed the deceased was still alive when they reached Turramurra, that he attempted to get out of the box and that the first appellant slammed his head back down and shut the lid. At trial, Witness E claimed to not remember many of the key events but appeared to remember the deceased coughing in the back of the van when they arrived at Turramurra.
After a number of unfavourable responses to questions regarding what was said in the recorded interview, Witness E was determined to be an unfavourable Crown witness and, after consultation between the parties, an edited transcript of the recorded interview was admitted into evidence (Ex AA).
There was evidence that Witness E had given different accounts to different people, claiming that he was responsible for killing the deceased. Witness E claimed the reason for these different accounts was "because then if someone goes bad you can tell who".
At trial, Witness C gave evidence that Witness E told him he was concerned that he was going to be in trouble with the first appellant because the deceased had died before he got to him but "[the first appellant] said that it didn't matter, that's how he would have ended up anyway". No objection was made to this statement by trial counsel for the first appellant. In an affidavit filed by the first appellant, trial counsel for the first appellant indicated that she had not objected to the evidence as she wished to have the initial representation, that the deceased had died before they got to the first appellant, admitted into evidence and believed this could not happen if she objected to the latter representation.
It was common ground that after meeting at Turramurra, the first and third appellant and Witness E drove with the box to a property at Girvan, to which the first appellant had access. There they dismembered the body of the deceased using saw blades, packaged the body parts in plastic bags wrapped in chicken wire and disposed of the bags in the Hastings River. Witness E gave evidence that there were three plastic body suits available to be worn during the dismembering, plastic floor sheeting, a block and tackle to suspend the body and chemicals to clean the floor.
It was the Crown case that the appellants had initially made plans to dump the body parts at sea. This was derived from the evidence of Witness A, a member of the Rebels Outlaw Motorcycle Club (the Rebels), of which the second appellant was also a member. His evidence was obtained across a number of meetings with police, often in situations where the detectives could not take notes. He stated that he was approached at his home by the third appellant's wife who handed him $1000 and told him to attend a dinner with the first appellant. A few days later, he was picked up by the second appellant and driven to dinner in Newtown. Present at the dinner were the first and second appellant. The first appellant proposed that he would pay for repairs to Witness A's boat so that it could be used to dispose of human remains beyond the Continental Shelf. The first appellant told Witness A he would be waiting at a wharf in the Central Coast with eskys containing the body parts. The second appellant dropped Witness A home, gave him $2000 for boat repairs and told him a phone would be dropped to him the following day.
Witness A stated that he put the boat in for repairs the following morning. A receipt indicated that it was put in on 12 October 2001 yet phone records indicated that contact between Witness A and the second appellant began on 9 October 2001. A few days after the dinner, Witness A claimed the third appellant delivered a phone to him registered in the name McDowell (the McDowell phone) and told him it was from the first appellant.
Around a week after the dinner, Witness A stated that he travelled to Newcastle and the Salamander Bay area for reconnaissance with Witness F, his girlfriend at the time. Phone records from Witness A's personal phones and a receipt from the Salamander Shores Hotel indicated he stayed there on 31 October 2001.
Witness A stated that he saw the second appellant on a number of occasions when he arranged for money to be given to Witness A for repairs and expenses. Witness A claimed he saw the first and third appellants on three to four occasions when they visited him at his home to check on the progress of the boat. He claimed that he recorded each of these visits on security cameras but that Witness F had accidentally taped over all but one. On the second last visit, Witness A stated that the first appellant showed him a police document revealing the deceased was prepared to give evidence against the Rebels. On the last visit, of which Witness A still had a recording, albeit without audio, Witness A claimed that the first appellant had told him to hurry up because "this cunt goes Friday regardless".
Witness A gave evidence that he never intended on following through with the plan. After the final meeting, there was no further conversation between Witness A and the appellants and the McDowell phone was turned off. Phone records indicated that the second appellant attempted to call Witness A's personal phone on the Wednesday and Thursday before the murder, which occurred on a Friday. The records could not establish if there was any attempt to contact the McDowell phone.
Witness F did not recall Witness A being handed the $1000 by the third appellant's wife or taping over Witness A's security tapes. She denied travelling with Witness A to Newcastle and Salamander Bay.
Witness A indicated that when he was approached by police he was in a state of hyper-vigilance and feared for his life as he had given evidence against the Rebels and had been stabbed 7 times when in custody in Lithgow gaol. While giving evidence to police he reported a number of bizarre incidents indicating paranoia.
Witness A agreed to speak to the second appellant while wearing a listening device. On one occasion he said "I need to know that fuckin' piece of paper you showed me about Terry Falconer is gone because it's got my fuckin' prints on it", referring to the document the first appellant had shown him on the second last visit. The second appellant had answered "It's gone mate, don't worry". On another occasion, the recording was affected by background noise of which Witness A was not aware. He gave evidence that the second appellant said "nobody knows we done it". This was not audible on the recording. On a further occasion Witness A said "Remember the conversation we had? … And you said nobody knows who done it?" the second appellant said "Yeah" and Witness A said "Fuckin' everybody knows who done it".
Witness B, a relative of the first and second appellant, gave evidence that the first appellant told him "we killed [the deceased] at [Witness E's] mother's property up the coast". He also gave evidence that the first appellant said to the second appellant "this cunt's been talking" and tapped the side of his nose. Witness B did not know that Witness A's nickname was "Nosey".
The trial judge gave warnings to the jury that Witness A and Witness E's evidence should be scrutinised with care and was potentially unreliable by reason of them having been criminally involved in the matters about which they gave evidence.
The issues on appeal were:
First Appellant
The first appellant's submissions
The first appellant submitted that the evidence of Witness C contained a representation that the first appellant had told Witness E that the deceased was going to end up dead anyway. He submitted this evidence was second hand hearsay and not admissible under any of the exceptions to s 59 of the Evidence Act 1995 (NSW) (the Act).
Senior counsel for the first appellant submitted that the significance of the evidence lay in the fact that there were two significant strands of evidence: that of Witness A and that of Witness E. He pointed out that the evidence of Witness A was significant to the Crown case because he gave evidence that established a pre-existing intention to kill the deceased, however, he was not involved in the events leading up to the deceased's death.
Senior counsel pointed to the fact that Witness E gave evidence that the original plan was to abduct the deceased and return him to Silverwater. He pointed out that Witness E ultimately gave evidence consistent with there being an intention to kill, referring to the evidence of the first appellant's assault on the deceased and the placement of him back in the box for a number of hours. He submitted that the difficulty with that evidence was that it was dependent upon the jury being satisfied beyond reasonable doubt that the deceased was alive when he arrived at Turramurra.
Senior counsel for the first appellant submitted that by contrast the hearsay evidence the subject of this ground of appeal suggested it was always intended the deceased was going to be killed. He described it as a crossover between the two bodies of evidence and thus powerful evidence in favour of the Crown.
Senior counsel for the first appellant accepted that the evidence was admitted without objection. In that context he made two submissions. First, to the extent that r 4 of the Criminal Appeal Rules had any application, the admission of the evidence gave rise to a substantial miscarriage of justice. Second, he submitted that notwithstanding its admission, it was not available to prove the truth of the representation complained of. In this context, he submitted that the direction of the trial judge, which at least impliedly accepted that the evidence was admissible to prove the truth of the representation said to have been made by the first appellant, was erroneous. He submitted this gave rise to a substantial miscarriage of justice such that r 4 applied.
The first appellant filed an affidavit by trial counsel. It is convenient to set out the relevant paragraphs of that affidavit in full:
"3. I recall that a critical issue in the applicant's trial was whether the deceased was still alive when he arrived at Turramurra. In this regard it was an important part of the applicant's case to establish that the deceased was already dead by this time, or at least there was a reasonable possibility that this was so.
4. I have, in the course of preparing this affidavit been reminded that Witness E gave his evidence before Witness C. Prior to witness C giving evidence I anticipated that he would give evidence of a conversation he had with Witness E. I cross-examined witness E on the basis of the evidence I anticipated that witness C could give. In particular I have been shown the transcript of my cross-examination of witness C at T1216.39ff where I put the following to witness C:
Q. What I want to suggest to you is that after the event, in one of the conversations you had with witness, when you were telling him what happened, you said to him that you thought you were going to be in trouble with Steve - that was a name that Anthony Perish used, wasn't it?
A. Yeah, I remember that.
Q. Because Falconer was dead before he got him?
A. I don't recall having a conversation with [Witness C], what the content was, but - I would have had a conversation with him, but I can't comment on what was said. I can't comment on whether that's true or not.
Q. And one of the other things that you said to Witness C was that: 'I really fucked up there. He was only supposed to be taken to somebody else. I fucked up?
A. I can't remember the content of the conversation. I would definitely have had a conversation with him.
5. I asked the above questions as the statements made by Witness E to Witness C (on the expected evidence of Witness C) were inconsistent with Witness E's evidence including the evidence in his recorded interview. As noted above, I wanted to discredit Witness E's evidence that the deceased was still alive when he reached Turramurra.
6. When C gave evidence I was of the view that it was important to prove the prior inconsistent statement that I had put to witness E. I am aware that the following evidence was given by witness C in his evidence in chief (at T1273.18):
Q. Was there any further conversation about the episode other than that?
A. He relayed that he was concerned at the time that Steve was going to be, he was going to be in trouble with Steve because Falconer had got to Steve but he died before he got to him and [Witness E] went on to say that Steve said it didn't matter, that's how he would have ended up anyway.
7. At the time witness C gave evidence I was aware he was likely to give the above evidence having regard to the evidence he gave at committal. I did not turn my mind to the fact that the evidence 'it didn't matter, that's how he would have ended up anyway' was second hand hearsay and may have been rejected had I objected to it.
8. I was of the view that the representation 'Steve said it didn't matter, that's how he would have ended up anyway' was damaging to the applicant's case. However I did not object to this part of the evidence as I was of the view that in order to have the first part of the conversation, that is the statement: 'he was concerned at the time that Steve was going to be, he was going to be in trouble with Steve because Falconer had got to Steve but he died before he got to him' I had to accept the second part of the conversation would be admitted.
9. Thus, whilst I was of the view that the statement attributed to the applicant 'it didn't matter, that's how he would have ended up anyway' was damaging to his case, it was my forensic decision that I was prepared to have that evidence in if it meant that the evidence that Witness E had previously made a statement that the deceased was dead at Turramurra would also be admitted.
10. I am aware that in cross-examining witness C, I asked him questions (at T1282) with respect [to] the utterance that the deceased was already dead before he got to the applicant but did not ask any questions in relation to the utterance 'Steve said it didn't matter, that's how he would have ended up anyway'. This was because I wanted to highlight the helpful part of this evidence and not the damaging part."
Consideration
The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen [2011] HCA 13; 243 CLR 400 (SKA) at [11]-[14] the Court stated that the approach to be adopted was that laid down in M v The Queen [1994] HCA 16; 181 CLR 487 (M) at 492-494. The Court is required to make its own independent assessment of the evidence. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen and heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the Court also stated, at 494, that in most cases the doubt experienced by an appellate court would be a doubt which a jury ought also have experienced and that it is only where a jury's advantage in seeing or hearing the evidence is capable of resolving the doubt that the court may conclude no miscarriage of justice occurred: See also MFA v The Queen [2002] HCA 53; 213 CLR 606 at [59].
As is apparent from the summary of the Crown case, the case against the first appellant does depend significantly on the evidence of Witnesses A and E. However, a number of factors were either undisputed or unchallenged. First, the first appellant accepted that he was part of the joint criminal enterprise to kidnap the deceased. Second, it was not disputed that the first appellant was responsible for directing that the deceased's body be disposed of by transporting it to Girvan, dissecting it at a property to which he had access and disposing of the parts by dumping them into the Hastings River. Further, the Crown case showed that the first appellant had a motive to kill the deceased, namely his belief the deceased was responsible for the death of his grandparents. Even on the defence case, the deceased was to be abducted for the purpose of being questioned about their death.
We are prepared to accept that the jury should have had a reasonable doubt that the deceased was alive when he reached Turramurra. That has two consequences. First, for the jury to convict of murder it would be necessary for them to be satisfied beyond reasonable doubt that the first appellant intended that the deceased be killed from the time of his abduction or at least embarked on the criminal enterprise involving the abduction with reckless indifference to his life. Second, if the evidence of Witness E as to what occurred at Turramurra could not be accepted beyond reasonable doubt, it raised further issues as to his credibility.
It is convenient to deal first with the evidence of Witness A. The first matter which should be noted was that Witness A's evidence as to what was proposed to him by the first appellant, namely that the dismembered body of the deceased be placed in eskys and deposited into the sea, bore a marked similarity to what in fact occurred. Although it may have been possible for the jury to have concluded that Witness A learnt about the disposal of the deceased's body from other sources and wove it into his story, it was not unreasonable for the jury, having seen the witness, to reject this hypothesis.
Consideration
The manner in which this Court should approach its task pursuant to s 6(1) of the Criminal Appeal Act was set out in M, MFA, R v Nguyen [2010] HCA 38; 242 CLR 491 and SKA. When considering whether a verdict was unreasonable, the Court is to make its own independent assessment of the sufficiency and quality of the evidence. The question for the Court is whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in the circumstances to let the verdict of guilty stand. Put another way, the question 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.
In carrying out that task, the Court must not disregard or discount that the jury is the body entrusted with the primary responsibility of determining guilt or the consideration that the jury has had the benefit of having seen and heard the witnesses. As McHugh, Gummow and Kirby JJ observed in MFA at [59] the determination by an appellate court as to the reasonableness of a jury's verdict "involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials".
Tortuous reasoning in order to explain every individual circumstance as being consistent with innocence should not be engaged in: R v Micallef [2002] NSWCCA 480; 136 A Crim R 127 (Micallef); Burrell v The Queen [2009] NSWCCA 193 (Burrell) at [55]. Finally, the burden of persuasion that appellate interference is required rests with the party who impugns the verdict: MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 370.
The thrust of the second appellant's submission on this ground is that Witness A was so unreliable that the verdict against him, which rested mainly on his evidence, was unreasonable. The problem with that submission is that it fails to acknowledge a substantial body of evidence which corroborates Witness A, that the murder of the deceased eventuated in the manner discussed at Newtown by the second appellant and Anthony Perish and the unchallenged evidence of motive adduced against the second appellant. The second appellant's submissions also fail to acknowledge the great advantage which the jury had in seeing and hearing Witness A give his evidence.
In Atai v The Queen [2014] NSWCCA 210, R A Hulme J (with whom Basten JA and Schmidt J agreed) said:
"134 In considering a ground asserting the unreasonableness of a verdict it is necessary that the Court 'must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses': M v The Queen [1994] HCA 63; 181 CLR 487 at [7]. The assessment of the credibility and reliability of the evidence of Yazin was quintessentially one for a jury to determine and, in the circumstances of this case, difficult for this Court to gainsay."
Ground 1 - That a miscarriage of justice occurred as a result of the appellant being tried together with his co-accused.
In order to better understand the submissions in respect of Ground 1, some further factual background needs to be set out. On 14 December 2010 the second appellant applied to be tried separately from the co-accused. The application was heard by Latham J, who handed down judgment refusing the application on 17 December 2010. At the time of the application, the two co-accused had each been charged with murder and only the second appellant had been charged with a count of conspiracy to murder. By the time the matter came to trial, however, the indictment charged conspiracy to murder against all three of the appellants.
Orders for the separation of trials are governed by s 21 of the Criminal Procedure Act 1986 (NSW). Relevantly, that section provides:
"21 Orders for amendment of indictment, separate trial and postponement of trial
…
(2) If of the opinion:
(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,
the court may order a separate trial of any count or counts of the indictment.
…"
The second appellant relied upon the following matters, arising from the joint trial, as giving rise to a miscarriage of justice. The first was the evidence of Witness B of a statement made to him by Anthony Perish many years after the murder that he and the second appellant had killed the deceased. The second appellant submitted that this evidence gave rise to significant prejudice against him, despite directions by the judge that the evidence was inadmissible against him. The second appellant submitted that the prejudice was so great that it could not be appropriately offset by such a direction.
The second matter relied upon by the second appellant was that the evidence against him was significantly weaker and different to that admissible against the other two appellants. He submitted that the evidence against his co-accused was of a kind which was so prejudicial that although it was not admissible against him, it gave rise to a real risk that the Crown case against him would be made "immeasurably stronger" because of that prejudicial material.
The second appellant supported that second submission by reference to the evidence against him. He submitted that the Crown case against him derived almost exclusively from Witness A and comprised an allegation of the second appellant playing a very small role in the planning of the murder of the deceased. The second appellant submitted that the effect of the evidence of Witness A was that he was no more than a conduit for the passing of money between Anthony Perish and Witness A. He submitted that the only evidence from which an inference could have been drawn that he was aware that the deceased was the intended victim and that he was to be dismembered was Witness A's evidence of what was said at the Newtown restaurant meeting. The second appellant submitted that whether the meeting took place and what was said at the meeting were matters of considerable controversy.
Remarks on sentence
His Honour found that in accordance with the verdicts of the jury, all three offenders entered into an agreement to kill the deceased and that each of them participated in that agreement. His Honour identified Anthony Perish as the mastermind behind the plan to abduct the deceased, kill him and dismember his body and to dispose of his remains.
In relation to the second appellant, he said:
"63 Andrew Perish was present at the Newtown Dinner and knew that the plan was to kill Mr Falconer, dissect his body and [A] was to be used to dispose of the remains. He assisted his brother in recruiting A, paid for the repairs to his boat and authorised him to proceed with further repair work to the vessel which Andrew Perish paid for. Andrew Perish with his brother, Anthony, were the only persons that A was to contact on the McDowell phone. He endeavoured unsuccessfully to ring A on 14 and 15 November 2001. There is no evidence that Andrew Perish played any part in the procurement of E or that he knew E was to abduct the deceased. His role was confined to A. The Crown has not established beyond reasonable doubt that Andrew Perish played any part in the agreement to kill Mr Falconer after 15 November 2001. His culpability for the conspiracy to murder is less than that of Anthony Perish."
His Honour accepted that the second appellant agreed to kill the deceased for the principal reasons that he believed he was involved in the murder of his grandparents and had become frustrated with the lack of progress in the police investigation. His Honour found that although this might explain the agreement to kill the deceased, it did not mitigate the objective seriousness of the offence. His Honour observed that a civilised society could not condone the second appellant's conduct:
"67 … It is well established that resort to criminal conduct as a response to a crime believed to have been committed by the victim is to be severely discouraged. In our society crime must be investigated by police and dealt with by the courts: Barlow v R [2008] NSWCCA 96; R v Mitchell [2007] NSWCCA 296. The existence of such a motive remains relevant, however, to questions of personal deterrence and protection of the community."
His Honour reviewed the second appellant's subjective case as follows:
The second appellant was born in January 1971, was aged 30 at the time of his offending and 41 at the time of sentence. He had a criminal record. In September 1994 he was convicted of conspiracy to manufacture a commercial quantity of a prohibited drug. In 2007 he was convicted of stalking with intention to cause fear. In March 2009 he was imprisoned for manufacturing a commercial quantity of a prohibited drug and possession of an unauthorised pistol. In December 2011 he was convicted of attempting on 9 June 2010 to wilfully dissuade Witness A from giving truthful evidence against him in committal proceedings. His Honour concluded that the second appellant's criminal history did not entitle him to leniency, but it was not such as would amount to a matter of aggravation.
Consideration
His Honour did not in terms assess the objective seriousness of the offending. It is clear, however, from the effect of his Honour's remarks, that he regarded this as a serious example of offending. His Honour specifically noted that an agreement to kill "is a most serious crime" and that the second appellant, along with his co-offenders, took steps directed at its successful completion. His Honour specifically found that the second appellant was present at the Newtown dinner, was aware of the plan to kill the deceased and dispose of his remains and that the second appellant specifically recruited Witness A for that purpose. He took positive steps to promote the conspiracy by arranging for the repair of the boat and by regularly communicating with Witness A. His Honour also noted that vigilante behaviour was to be severely discouraged.
His Honour comprehensively reviewed the second appellant's subjective case, keeping in mind that the second appellant did not give evidence. He had been continuously employed since leaving school until he commenced his first sentence of imprisonment in 2007. There were no psychological problems, although he had a history of alcohol, ecstasy and cocaine abuse. The absence of any remorse and poor prospects of rehabilitation were important considerations. Although his Honour did not specifically refer to this in the context of the second appellant, general deterrence was an important consideration in this sentencing exercise. The effect of his Honour's analysis was that the second appellant's subjective case was not particularly strong. Apart from the motive it did little to mitigate the seriousness of the offending.
To make good this ground of appeal, the second appellant was obliged to satisfy the Court that the sentence was manifestly excessive in the well-recognised sense that it was unreasonable and plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370; Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8]-[9]. It is not sufficient that this Court be of the view that had it been sentencing the second appellant, it might have exercised its discretion differently to that of the sentencing judge. Intervention is warranted only where error is demonstrated in accordance with the principles in House v The King.
The fact that the second appellant did not play an active part in the murder does not reduce his culpability for this offence. Had he taken a more active role, he may well have been charged with the more serious offence. In any event, the cessation of his participation in the conspiracy was due to the withdrawal of Witness A, not because of any change of heart on his part. The call charge records suggest that the second appellant was still actively pursuing Witness A to participate in the conspiracy until the day before the murder.
Consideration
We have set out above at [327] and [350]-[352] the principles governing the setting aside, by an appellate court, of the verdict of a jury.
The Crown case against the third appellant was circumstantial. As such, the evidence must not be analysed in a piecemeal way. The whole of the evidence, and the inferences which are available to be drawn from it, must be considered and weighed: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46].
To some extent, the approach taken by counsel for the third appellant in both written and oral submissions involved concentrating upon specific circumstances relied upon by the Crown and then seeking to advance, in response, an innocent explanation in relation to each of them. The emphasis placed by counsel for the third appellant upon the meetings between the first appellant and Witness A, at which the third appellant was said to have been excluded from discussions, exemplified that approach.
An approach to the assessment of a circumstantial case which concentrates upon certain parts of the evidence to the exclusion of others is erroneous: Gilham v The Queen [2012] NSWCCA 131; 224 A Crim R 22 at [466] citing Micallef at [42] and Burrell at [55]. Moreover, the adoption of that approach in the present case resulted in other evidence being overlooked which, contrary to the submissions of counsel for the third appellant, supported a conclusion the third appellant was indeed present when important discussions about matters relating to the kidnapping of the deceased took place.
There was, in our view, evidence of a number of circumstances which, when considered together, supports the conclusions reached by the jury.
First, the third appellant delivered the phone to the premises of Witness A. This occurred only a few days following the meeting at the Newtown restaurant between Witness A and Anthony Perish.
Secondly, when delivering the phone the third appellant made it clear to Witness A that he was delivering it on behalf of Anthony Perish.
Thirdly, the third appellant also made it clear that the phone was to be used solely for the purposes of contact between Witness A and Anthony Perish.
Fourthly, between six and ten days after the boat was taken for repairs, Anthony Perish and the third appellant visited Witness A to check on the progress of such repairs. On that occasion the third appellant was driving the same vehicle has he had been driving when he delivered the phone to Witness A. On that occasion, contrary to the submissions made on his behalf, the third appellant was present during the discussion between Witness A and Anthony Perish regarding the repairs.
Whether a miscarriage of justice was occasioned by the admission of the evidence of Witness C that Witness E told him that the first appellant said "it didn't matter [that the deceased had died before he got to the first appellant as] that's how he would have ended up anyway" (the second hand hearsay evidence);
Whether the trial judge erred in directing the jury with respect to the second hand hearsay evidence such that the evidence was available to the jury as evidence of an admission by the first appellant;
Whether the verdicts of the jury were unreasonable or could not be supported by the evidence where there was reasonable doubt as to whether the deceased was alive upon reaching Turramurra and otherwise rested significantly on the evidence of Witness A.
Second Appellant
Whether the verdicts of the jury were unreasonable or could not be supported on the evidence where the verdict against the second appellant rested mainly on the evidence of Witness A;
Whether a miscarriage of justice occurred as a result of the second appellant being tried together with his co-accused;
Whether the sentence imposed was manifestly excessive.
Third Appellant
Whether the verdicts of the jury were unreasonable and could not be supported by the evidence where the conclusion that the third appellant had any knowledge of the conspiracy prior to the deceased's arrival at Turramurra rested on the evidence of Witnesses A and E;
Whether a miscarriage of justice arose in circumstances where the trial judge directed the jury that the first appellant had offered to plead guilty to the offence of manslaughter where that plea was inadmissible against the third appellant;
Whether the trial judge erred in admitting Ex AA where the substance of Ex AA had not been put to Witness E in accordance with the prerequisites of s 106 of the Evidence Act 1995 (NSW) (Evidence Act);
Whether the trial judge erred in directing the jury that it could take into account evidence of Witness A being given money by the second appellant as evidence of the third appellant's participation in the charged conspiracy.
The Court held (Bathurst CJ, Hoeben CJ at CL and Bellew J) dismissing the appeal:
First appellant
Admission of second hand hearsay evidence
(i) In circumstances where trial counsel made a conscious decision not to object to the evidence and there was, objectively speaking, a rational basis for not objecting to the evidence, admission of the evidence did not mean the first appellant lost the chance of an acquittal fairly open to him: [254]-[259] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
TKWJ v The Queen [2002] HCA 46; 212 CLR 124 applied
(ii) Even if it could not be said that the decision not to object to the evidence was a rational forensic decision, the first appellant did not in fact lose a real chance of acquittal where the Crown did not place reliance on the evidence complained of, where there was a caution about its use and where both parties contended the witness was unreliable: [274]-[277] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
ARS v The Queen [2011] NSWCCA 266; Poniris v The Queen [2014] NSWCCA 100 applied
Trial judge's direction regarding the second hand hearsay evidence
(iii) There is a consistent, although not uncontroversial, line of authority that the words "not admissible" mean "not admissible over objection". That construction is not plainly wrong: [261]-[269] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
R v Reid [1999] NSWCCA 258; R v Spathis [2001] NSWCCA 476; R v Lyberopoulos [2002] NSWCCA 280; R v Kaddour [2005] NSWCCA 303; 156 A Crim R 11; Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232; WC v The Queen [2015] NSWCCA 52; Selstam v McGuinness [2000] NSWCA 29; 49 NSWLR 262; Gray v Ware Building Pty Ltd [2013] NSWCA 271; Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 applied
Velkoski v The Queen [2014] VSCA 141 considered
Walker v Walker [1937] HCA 44; 57 CLR 630 distinguished
(iv) The construction of "not admissible" meaning "not admissible over objection" is consistent with the adversarial nature of a trial: [268], [270]-[271] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 applied
(v) The effect of the supported construction is ameliorated by the fact that the trial judge retains his or her overriding obligation to ensure a fair trial according to law and would thus have an obligation to exclude inadmissible evidence or direct a jury not to take account of a particular piece of evidence if it would otherwise deny a fair trial: [272] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Pemble v The Queen [1971] HCA 20; 124 CLR 107; James v The Queen [2014] HCA 6; 253 CLR 475 applied
(vi) Even if the trial judge's direction was erroneous, the first appellant did not in fact lose a real chance of acquittal where the Crown did not place reliance on the evidence complained of, where there was a caution about its use and where both parties contended the witness was unreliable: [274]-[277] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
ARS v The Queen [2011] NSWCCA 266; Poniris v The Queen [2014] NSWCCA 100 applied
Unreasonable verdict
(vii) Where a verdict is challenged as unreasonable, the appellate court is required to make its own independent assessment of the evidence. The verdict should be set aside only if the Court is still in doubt after taking into account the primary responsibility of the jury and its benefit of having seen and heard the evidence: [327] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
SKA v The Queen [2011] HCA 13; 243 CLR 400; M v The Queen [1994] HCA 16; 184 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606 applied
(viii) It was not unreasonable for the jury to believe the evidence of Witness A where his evidence of what was proposed bore a marked similarity to what in fact occurred and to reject the hypothesis that Witness A had discovered this information from other sources and weaved it into his story: [330] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
(ix) Whether Witness A's testimony was put in doubt by his paranoid behaviour was a matter particularly for the jury who saw and heard his testimony: [331] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
(x) The objective evidence did not undermine Witness A's testimony such that there was reasonable doubt regarding the key elements of his testimony: [332], [334] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
(xi) Even if the jury rejected the evidence of Witness E in some respects, namely whether the deceased was alive upon reaching Turramurra, it was open for the jury to accept his evidence in other respects, in particular the material that was available to dismember the body at the Girvan property, which supported an intention to murder the deceased: [336] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Second appellant
Unreasonable verdict
(xii) When considering whether a verdict is unreasonable, the question for the Court is whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in the circumstances to let the verdict of guilty stand, or put another way, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: [350] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
M v The Queen [1994] HCA 16; 184 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; R v Nguyen [2010] HCA 38; 242 CLR 491; SKA v The Queen [2011] HCA 13; 243 CLR 400 applied
(xiii) Where a verdict is challenged as unreasonable on the basis of the credibility of a witness, the Court must be acutely conscious of the advantage of the jury in seeing and hearing the evidence the witness gave: [351], [354] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Atai v The Queen [2014] NSWCCA 210; MFA v The Queen [2002] HCA 53; 213 CLR 606 applied
(xiv) Tortuous reasoning in order to explain every individual circumstance as being consistent with innocence should not be engaged in: [352] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
R v Micallef [2002] NSWCCA 480; 136 A Crim R 127; Burrell v The Queen [2009] NSWCCA 193 applied
(xv) In circumstances where Witness A came under sustained cross-examination on each of the bases identified on the appeal, where his evidence was independently supported by extrinsic evidence, where the trial judge gave the jury all the warnings required by law and where discrepancies between his evidence to police and at trial were explicable, it was open to the jury to accept the evidence of Witness A: [355]-[368], [372]-[375] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
(xvi) Despite criticisms that Witness A exhibited paranoid behaviour, there were justifiable reasons for this and no indication of mental instability at the time of the trial. In those circumstances it was open to the jury to accept his evidence: [369]-[371] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Joint trial
(xvii) No miscarriage of justice occurred where much of the evidence against the co-accused was necessary to establish the context in which the second appellant's participation in the conspiracy occurred. This factual matrix could not be dealt with by an agreed statement of facts where much of the evidence was controversial: [389]-[391] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
(xviii) Where the risk of inconsistent verdicts, inconvenience to witnesses and substantial delay is high, there is clear public interest in conducting a joint trial which is to be given weight in assessing whether there was a miscarriage of justice: [388], [391], [397] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Ross v The Queen [2012] NSWCCA 207 applied
(xix) Where the evidence that could not be used against the second appellant, namely the admission by the first appellant to Witness B, was readily severable from the rest of the evidence and comprised a very small part of the evidence at trial, any prejudice was easily overcome by directions to the jury: [393]-[394], [396]-[397] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
R v Pham [2004] NSWCCA 190 distinguished
Gilbert v The Queen [2000] HCA 15; 201 CLR 414 applied
Manifestly excessive sentence
(xx) In order for the second appellant to show that his sentence was manifestly excessive, it was necessary for him to show that the sentence was unreasonable or plainly unjust. It was not sufficient that the appellate court would have exercised its discretion differently: [411] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Markarian v The Queen [2005] HCA 25; 228 CLR 357; Carroll v The Queen [2009] HCA 13; 254 CLR 259 applied
(xxi) The sentence was not manifestly excessive where the second appellant's role in the conspiracy was not found to be minimal. He was a committed and knowing participant in the conspiracy up until the day before the murder. The fact that the second appellant did not play an active role in the murder did not reduce his culpability for the conspiracy offence, rather it affected the charge brought against him: [412]-[414] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Third appellant
Unreasonable verdict
(xxii) Where the case against the third appellant was circumstantial, concentration on certain parts of the evidence to the exclusion of others was erroneous. When analysed as a whole, there were a number of circumstances that supported the conclusion that the third appellant was involved in the criminal enterprise not only after the death of the deceased but in the preparations leading up to it: [426]-[442] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Directions regarding the first appellant's plea
(xxiii) There was no misdirection where the trial judge made it clear to the jury that, in determining the case against the third appellant, it was necessary to consider (a) the existence of the joint criminal enterprise and (b) the third appellant's participation in it and that it was imperative to consider the cases against each of the appellants separately by reference only to the evidence properly admissible against each of the appellants: [452]-[454] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
(xxiv) To show that the direction regarding the first appellant's plea led to a miscarriage of justice, it would be necessary to show that there was reasonable doubt as to the substance of that plea, namely that the first appellant was involved in the kidnapping of the deceased: [455] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Admissibility of Ex AA
(xxv) As Ex AA was admitted without objection, it was admissible irrespective of the provisions of s 106 of the Evidence Act: [475]-[478] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
WC v The Queen [2015] NSWCCA 52 applied
(xxvi) In any event, s 106 does not require the adoption of a mechanistic approach in which each and every proposition contained in the evidence is put to the witness. The substance of the evidence was put to the witness such as to satisfy s 106 of the Evidence Act: [479]-[480] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
Direction regarding matters which could be taken into account
(xxvii) Evidence which did not directly implicate the third appellant was nevertheless available to prove the nature and scope of the conspiracy: [489] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
(xxviii) When taken in the context of the summing up as a whole there was no misdirection, particularly where the trial judge repeatedly reminded the jury of the requirement to consider the case against each appellant separately, set out the matters specifically relied upon by the Crown to establish the third appellant's participation in the conspiracy and directed the jury that establishing the existence of the conspiracy was separate from establishing the third appellant's participation in it: [490]-[497] (Bathurst CJ, Hoeben CJ at CL and Bellew J).
The first appellant contended that if, objectively speaking, the decision to not object to the evidence was not a rational forensic decision, the only question which remained was whether the first appellant had lost the chance of an acquittal.
In that context, senior counsel for the first appellant submitted that the evidence in question contained three representations. First, Witness E told Witness C that the deceased was dead before he got to the first appellant. Second, Witness E told Witness C that he was worried as to the first appellant's reaction to that fact and third, that Witness E told Witness C that the first appellant told him the deceased was going to end up dead anyway.
Senior counsel for the first appellant submitted that the first two representations were admissible but the third was not. He submitted it was not a rational forensic decision not to object to the third representation. For the reasons indicated above, he also contended that the admission into evidence of the third representation constituted a miscarriage of justice.
In support of this proposition, senior counsel for the first appellant referred to the cross-examination on this topic by trial counsel. He submitted that the cross-examination of each of Witnesses C and E avoided any examination on what we have described as the third representation. He submitted this showed that the admission of the unfavourable portion of the communication could not be justified as a rational forensic choice.
Senior Counsel for the first appellant also submitted that irrespective of whether the evidence was not objected to, it had no probative force. This was because, even after admission, the effect of s 59 of the Act was that the evidence was not admissible to prove that the first appellant had stated that the deceased would end up dead. Thus, he said, it had no relevance and the trial judge erred in effectively directing the jury that they could take it into account. He also submitted, referring to Poniris v The Queen [2014] NSWCCA 100 (Poniris) at [49] that where, as in this case, the danger of unfair prejudice was manifest there was an obligation on the trial judge to exclude the evidence under s 137 of the Act as part of his or her continuing obligation to ensure a fair trial according to law. He submitted that the trial judge should have at least directed the jury that they could not take account of the evidence. In that context, he accepted that r 4 applied but submitted there was a substantial miscarriage of justice in the direction given.
Senior counsel for the first appellant accepted that trial counsel was aware of s 59 of the Act and the manner it was interpreted in Lee v The Queen [1998] HCA 60; 195 CLR 594 (Lee) but submitted that this did not alter the fact that s 59 applied to the evidence. He also submitted the evidence was irrelevant to Witness E's credit.
There were other matters of concern with respect to Witness A's evidence. The incidents he reported to the police (see above at [65]-[66]) could well indicate some sort of mental disability. However, as the first appellant accepted, he had good reason for his fears. Whether these incidents were such as to cast doubt on his evidence was particularly a matter for the jury, which had the advantage of seeing him.
We do not think the fact that Witness A's evidence may have been incorrect as to the date of the November dinner necessarily led to there being reasonable doubt as to the question of whether it occurred, particularly when considered in conjunction with the similarity between what occurred and the proposal which Witness A said was put to him at that dinner. For similar reasons, the fact that a call from one of Witness A's mobile phones was logged at Badgery's Creek on 11 October does not, in our opinion, coupled with other evidence concerning the date of the November dinner, lead to there being reasonable doubt that that dinner occurred, although there may be uncertainty as to the precise date on which it took place.
In dealing with the November dinner, the Crown relied on what was said in a recorded conversation between Mr Andrew Perish and Witness A on 30 September. However, the exhibit was not tendered against the first appellant and in those circumstances we have not taken it into account.
We have referred to the submissions concerning the telephone conversations between the first appellant and Mr Andrew Perish above and it is unnecessary to repeat them. However, in circumstances where the evidence was such that it was impossible to conclude one way or the other whether Mr Andrew Perish contacted Witness A on the McDowell phone and, importantly, that Mr Andrew Perish was endeavouring to contact Witness A on the days immediately prior to the murder, there is nothing in the phone records which, in our opinion, cast doubt on Witness A's testimony.
In these circumstances, taking into account the fact the jury saw and heard Witness A, it was open to them to conclude beyond reasonable doubt that the first appellant intended to kill the deceased.
Witness E supports this conclusion. Even if the jury was unable to accept his evidence that the deceased was alive at the time he reached Turramurra, it was open to them to be satisfied of his evidence that he abducted the deceased at the request of the first appellant and his evidence regarding the method of the disposal of the body. Furthermore, it was open to the jury to infer that the disposal was prearranged, further strengthening a conclusion that the first appellant intended to kill the deceased or was at least recklessly indifferent to that outcome. He was not challenged on his evidence concerning the suits, plastic or chemicals which were available at Girvan to accomplish this object.
In these circumstances applying the principles in M and SKA, we are of the view that the verdict was not unreasonable. This ground of appeal has not been made out. In reaching this conclusion we have not taken any account of the second hand hearsay the subject of Grounds 1 and 1A.
That observation is apposite when considering the position of Witness A in this case. In a case such as this where the second appellant has attacked the credibility of a witness, the Court must be acutely conscious of the advantage of the jury. Witness A came under sustained attack on each of the bases now identified by the second appellant. For each of those allegations, he had a cogent and persuasive response. In many respects, his evidence was independently supported by extrinsic evidence and it was well open to the jury, who observed this sustained cross-examination, to accept his evidence.
Moreover, the trial judge gave the jury all the warnings required by law in relation to Witness A's evidence. No complaint was made, nor could be made, about the summing up. Price J warned the jury to scrutinise Witness A's evidence with care and directed them that he was potentially unreliable by reason of having been criminally involved in the matters about which he gave evidence. His Honour reminded the jury of each of the problems now identified by the second appellant which were also raised in each closing address by defence counsel.
The second appellant submitted that his relatively modest role was to be contrasted with that of the co-accused who were charged with kidnapping and murdering the deceased in rather gruesome circumstances. The second appellant submitted that according to the detailed accounts of witnesses involved in the abduction and murder, he had no involvement. The second appellant submitted that in those circumstances, there was a high probability that he would be associated with the horrific details surrounding the abduction and murder by the jury, even though there was no evidence to that effect.
The second appellant submitted that he suffered significant prejudice as a result of the joint trial because of the large body of brutal and gruesome evidence against his co-accused in circumstances where much of that evidence might not have been admissible in a separate trial against him. He submitted that added to that prejudice was the admission by Anthony Perish to Witness B that he and the second appellant killed the deceased. The evidence of Witness B was that Anthony Perish expressly referred to the second appellant as included in "we" by using the nickname "Undies" (see above at [112]).
The second appellant submitted that this alleged admission by Anthony Perish to Witness B raised two significant issues. The first was that it was made by his brother so that it was likely that the jury would consciously or unconsciously consider it improbable that his brother would implicate him in a murder if he had not in fact been involved. The second appellant submitted that the evidence would also have (again consciously or unconsciously) impacted on the jury's assessment of Witness A's credibility. The second appellant submitted that when assessing Witness A's credibility, it would be unrealistic to assume that none of the jurors would have been consciously or unconsciously influenced by his brother's admission.
The second appellant placed considerable weight on the observations of Adams J (with whom Spigelman CJ and RS Hulme J agreed) in R v Pham [2004] NSWCCA 190 (Pham) where his Honour said:
"32 It is obvious from what has been set out above that Phong's account was dramatic and memorable and, so far as the relationship between him and his brother, their fear of the deceased, the circumstances in which this arose and the motive for an arrangement to kill the deceased up to the appearance of Lam on the scene were concerned, compelling. Not only did the transcription of the interview become an exhibit, but the jury watched the interview on video and needed carefully to analyse and evaluate what Phong said in connexion with the case against him. Moreover, Phong was not implicating a stranger or mere associate but his own brother. This situation was very different to the cut-throat defence by a co-offender. First, and most significantly, the statements that incriminated the appellant also incriminated Phong and the Crown placed considerable reliance on them to procure Phong's conviction. It was therefore inevitable that, in order to accept these parts of the interview, the jury had to conclude that they were reliable. It was necessary, therefore, that they should disregard that conclusion - which was very much in dispute - when they came to consider the appellant's case. In the cut-throat defence situation, the allegations against the co-accused need only to raise a reasonable doubt to justify acquittal and it is unnecessary - indeed, juries are so directed - to determine that the allegations are truthful. There is a very significant difference between an attempt to entirely disregard prejudicial material that might possibly be true on the one hand and, on the other hand, the attempt to entirely disregard material that has been carefully evaluated after extensive debate and relied on as true as against a co-offender. Secondly, it is obvious that a co-offender has a very strong motive to place responsibility on the other offender and thus a cut-throat defence will inevitably attract significant scepticism. In the present case, however, Phong had no motive for implicating his brother. Indeed, to the contrary. And the fact that he did so gave a considerable persuasive thrust to the Crown's submission to the jury that they would conclude that Phong's incriminating statements were truthful and reliable. In this context, the fact that the appellant was implicated in the offence by his brother gained additional significance. Furthermore, Phong's statement provided significant corroboration of Lam's claim that his presence at the scene was innocent."
The second appellant submitted that Pham was relevant not only because of the statement of principle in it, but because of its factual similarity to the circumstances of this case, i.e. the possibility, despite directions to the jury, of an alleged admission by one brother being wrongfully relied upon in the case against another brother.
Consideration
The second appellant did not in terms challenge the decision of Latham J not to order separate trials and thereby become involved in an argument as to whether her Honour had correctly exercised her discretion in accordance with House v The King [1936] HCA 40; 55 CLR 499 principles. Rather, the burden of his submission was that the result of the joint trial was to give rise to a miscarriage of justice, i.e. that the trial was not fair. Accordingly, what the Court has to do is to look at what happened at trial to assess whether such a miscarriage of justice occurred.
It was common ground that the relevant principles were summarised by Allsop P (with whom Hidden and Davies JJ agreed) in Ross v The Queen [2012] NSWCCA 207 at [24]-[26]:
"24 The appellant and the mother were jointly charged with a number of the offences. In the ordinary course one would not expect them to be tried separately: R v Demirok [1976] VR 244 at 254; Demirok v R [1977] HCA 21; 137 CLR 20; and see generally R v Fernando [1999] NSWCCA 66 at [199]-[212]. The danger that may exist is by the admission of evidence against one only of the accused. This risk is to be obviated by express and careful directions as to the use of evidence: R v Harbach (1973) 6 SASR 427 at 433. There is a public interest in the avoidance of the risk of inconsistent verdicts, of inconvenience to witnesses, and in ensuring finality is reached as expeditiously as possible by having one trial. The interests of justice in this respect are not limited to those of the accused: Demirok; Webb and Hay v R [1994] HCA 30; 181 CLR 41 at 89.
25 In R v Baartman (NSW Court of Criminal Appeal, Gleeson CJ, Powell JA and Smart J, 6 October 1994, unreported), the Chief Justice accepted as stating the relevant principles what Hunt J had said in R v Middis (Supreme Court of NSW, 27 March 1991, unreported):
'1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and
2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and
3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,
a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.'
26 There is a balance to be struck between the public interest and any prejudice to the accused, relevant to which assessment is whether there is positive injustice to the accused: R v Dellapatrona (1993) 31 NSWLR 123 at 133."
As is apparent from the evidence against the second appellant, referred to in the discussion of Ground 2, it was not of a kind which could be neatly separated from that against the co-accused. This is particularly so in relation to the evidence of Witness E. His evidence was admissible against the second appellant on the basis that the carrying out of the abduction of the deceased and subsequent dismemberment of his body, was in accordance with the plan described by Anthony Perish to Witness A in the presence of the second appellant. The effect of that evidence could not be realistically dealt with by a statement of agreed facts or some similar technique. This was particularly so since much of what Witness E said was challenged by the co-accused.
It is also not correct to say that the evidence of the actual dismemberment of the deceased's body was so gruesome as to unfairly give rise to irreversible prejudice against the second appellant. Such a submission fails to have regard to the evidence that at the Newtown dinner the dismemberment of the deceased's body was specifically raised by Anthony Perish in the presence of the second appellant without any demur from him. On the contrary, the second appellant thereafter was actively engaged in assisting Witness A to repair the boat so as to implement the final phase of the dismemberment process, i.e. the disposal of the body. That fact, unpleasant as it is, formed an important part of the Crown case against the second appellant.
If a separate trial of the second appellant had taken place, not only would there have been a risk of inconsistent verdicts, inconvenience to witnesses and of substantial delay, there was a real risk that if most of the evidence actually led at trial was not adduced against the second appellant, the context in which his participation occurred would have been substantially distorted. This would also have been so if an attempt had been made to rely upon agreed facts. In the circumstances of this trial where so much of the evidence depended upon persons such as Witness A and E whose evidence was controversial, it is unrealistic to suggest that an agreed statement of facts could be formulated which would adequately inform the jury of the context in which these events occurred.
It is also not without significance that senior counsel for the second appellant, who appeared before Latham J in the separate trial application, accepted and conceded that had the conspiracy to murder charge been brought against all three co-accused, he would not have brought a separate trial application. While that, of course, is not conclusive, it gives weight to the proposition that once that charge was brought against all of the appellants, it was necessary to establish the full background and context in which the conspiracy was entered into.
The outcome and statements in Pham provide little assistance for the second appellant. In Pham the part played by the evidence of his brother Phong, was pivotal. It was described as "dramatic and memorable". In that case, the jury were not only provided with a transcript but also watched the interview on video. The statement of Phong had to be carefully examined by the jury so that they could determine which parts were reliable and which were not. As was pointed out in the passage cited from that case in the second appellant's submissions, the task required of the jury was an impossible one if a joint trial were to take place. On the one hand they were required to carefully assess the Phong statement, but then entirely disregard it when considering the actions of Pham.
What occurred in this case was very different. The evidence of Witness B to which the second appellant has referred comprised a very small part of the evidence in the trial. It was readily severable, not only from the other evidence at trial but from most of the evidence given by Witness B, particularly when that evidence was directed entirely at Anthony Perish, with this being the only reference to the second appellant. This was clearly a circumstance in which a direction from the trial judge that the evidence could not be used against the second appellant would be easily understood by the jury and easily implemented by them.
It is not accurate to characterise the part played by the second appellant in the conspiracy as that of a mere "conduit". His role in preparing for the disposal of the deceased was important. He arranged the meeting between Anthony Perish and Witness A, he was present when Anthony Perish outlined the plan and he was active in providing funds to enable the boat to be brought to a state whereby the plan to dispose of the deceased's body beyond the continental shelf could be implemented. The funds which he expended for that purpose were substantial. The high level of communication by phone and text between him and Witness A is confirmatory of the second appellant's substantial involvement in the conspiracy, especially in relation to that part which concerned the disposal of the deceased's body. It is true that the second appellant played no direct role in the eventual abduction, death and disposal of the deceased. That situation only arose because the plan to use the boat was no longer viable after the withdrawal of Witness A. This significant role of the second appellant was another reason why it was important for the jury to have before them evidence of the factual matrix in which these events were taking place.
As to the efficacy of directions given by the trial judge in respect of the evidence of Witness B, there was no suggestion at trial that the jury would not comply with judicial directions, particularly a simple direction as was given here, that a small piece of evidence not be used against the second appellant. That direction was given in circumstances where there was no attempt by the Crown to rely upon such evidence against the second appellant. It is a fundamental assumption that juries will act in accordance with directions: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [31]-[32]. This is particularly so where, as happened here, the jury was given the direction at the time the evidence was adduced and was twice reminded in the summing up that the admission was not available against the second appellant.
There was a clear public interest in avoiding the risk of inconsistent verdicts, inconsistent credit findings, inconvenience to witnesses and in ensuring that finality of the litigation was reached as expeditiously as possible by having one trial. Much of the evidence at trial was common to all three appellants and they all stood trial for the same conspiracy. Careful and clear directions were given to the jury about the manner in which they should approach the evidence, particularly that of Witness B. Given the narrow compass of that evidence, any potential prejudice to the second appellant was capable of remedy by the careful directions given by the trial judge. It follows that the second appellant has failed to demonstrate that a miscarriage of justice has occurred as a result of the joint trial. This ground has not been made out and should be dismissed.
The second appellant did not give evidence during the trial or upon sentence. There was tendered on his behalf a psychologist's report from Mr W John Taylor, dated 9 March 2012. This provided some details of his personal history.
He was one of five children and was raised on the family poultry farm at Leppington. He left school at the age of 17 after completing the Higher School Certificate. He completed a plumbing course at TAFE and obtained a certificate for the safe handling of chemicals. He worked for the Department of Works as a plumber for four years, then as a plumbing sub-contractor and eventually commenced his own business, contracting to farmers. That job involved using a Bobcat, slashing grass and other services. He also ran a beef feedlot and supplied butcher shops for some seven or eight years. These activities ceased when he went to prison in 2007. He was a long-time member of the Rebels Motorcycle Club.
Mr Taylor recounted that the second appellant experienced a great deal of grief and trauma following his grandparents' murder. His consumption of alcohol increased and he began abusing drugs, such as speed, ecstasy and cocaine. While in prison the second appellant undertook counselling and had completed the "Enough is Enough" program. Mr Taylor was of the opinion that the second appellant had a low to moderate risk of recidivism and good prospects for rehabilitation.
His Honour noted that consistent with his plea of not guilty, the second appellant had neither expressed nor shown contrition for the offence and no allowance could be made for those factors in mitigation. His Honour also noted that the second appellant had not accepted responsibility for his actions and accordingly, his prospects of rehabilitation remain guarded. His Honour disagreed with the assessment of Mr Taylor that the second appellant was unlikely to re-offend or had good prospects of rehabilitation. Nevertheless, his Honour found that the motive of avenging his grandparents lessened the need for personal deterrence and protection of the community.
His Honour took into account that he was required to sentence the second appellant in accordance with sentencing practice in 2001. His Honour determined to commence the second appellant's sentence on 4 October 2010, being the date on which the non-parole period expired for a sentence which he was then serving. In the absence of any submissions as to the existence of special circumstances, the sentence imposed by his Honour was that to which reference has already been made, imprisonment for 12 years with a non-parole period of 9 years. The maximum penalty for the offence was imprisonment for 25 years.
The second appellant's submission was that having regard to the minimal role which he played in the conspiracy, his motive and other favourable subjective circumstances, the sentence imposed by his Honour was simply too long.
As has been stated elsewhere, contrary to the second appellant's submissions, his role in the conspiracy was not minimal. He actively recruited Witness A and helped him organise the repairs to the boat which was to be used to dispose of the deceased's remains. The payments of money occurred over a number of weeks and were substantial in amount. It was the second appellant's intention that Witness A play an important role in the murder, i.e. disposing of the body in such a way that had the plan proceeded to fruition, the crime might never have been discovered. The second appellant was a committed and knowing participant in the conspiracy to murder, right up until the day before the killing.
When the lengthy and complex planning to which the second appellant was a party is taken into account, including his knowledge of the ultimate fate that faced the deceased, a sentence of 12 years with a non-parole period of 9 years imposed after trial cannot be considered as plainly unreasonable or unjust. This ground of appeal has not been made out.
Fifthly, there was a further visit by Anthony Perish and third appellant to Witness A, at which time a document regarding the preparedness of the deceased to assist police was handed to Witness A.
Sixthly, there was a further visit by Anthony Perish and the third appellant to Witness A at which there was discussion about readiness of the boat. The evidence was that the discussion which had taken place between Anthony Perish and Witness A on that occasion, in which Anthony Perish had said to Witness A "This cunt's going on Friday regardless", was conducted in circumstances where they had separated from the third appellant.
Seventhly, the third appellant sourced and painted the wheels that were placed on the vehicle of Witness E which was used to kidnap the deceased. Those steps were obviously taken for the purpose of disguising the vehicle. There was, in these circumstances, an available inference that the third appellant knew of that purpose.
Eighthly, the third appellant was present at Turramurra when Witness E arrived with the body of the deceased.
Ninthly, in accordance with a direction from Anthony Perish, and in possession of a gun, the third appellant drove to Girvan, that being the location to which the deceased's body was taken.
Tenthly, upon arrival at Girvan, and at the third appellant's direction, the third appellant and Witness E waited for Anthony Perish. The third appellant's attendance at Girvan was corroborated by fingerprint evidence.
Finally, following the arrival of Anthony Perish at Girvan, the third appellant:
1. assisted in taking the box containing the deceased's body into a shed;
2. assisted in removing the deceased's body from the box; and
3. participated in dismembering it.
Contrary to the tenor of the submissions advanced by counsel for the third appellant, the evidence of the third appellant's involvement in the enterprise was not confined to matters occurring after the death of the deceased. As outlined above, he was responsible for sourcing and painting the wheels fitted to Witness E's vehicle, delivering a telephone to Witness A and directing him as to the purpose for which it was to be used. He was also present at two meetings between Anthony Perish and Witness A. Although there was discussion at the third of those meetings to which the third appellant was not privy, this was not the case with the first two, at each of which he was present when matters germane to the conspiracy were discussed.
In our view, on the whole of the evidence, it was open to the jury to conclude that the Crown case against the third appellant was established beyond reasonable doubt. It follows that this ground is not made out.