R v Bagley [2014] QCA 271

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED - where the appellant was convicted of murder - where the appellant had been travelling in a car with the Crown's two principal witnesses, Mr and Mrs Koulis, and the deceased - where the appellant got out of the car and shot the deceased, who was unarmed, in Mr Koulis' presence - where the appellant submitted it was open on the evidence to infer that he genuinely and reasonably believed that there was a shot fired at him, so that he had to respond in self-defence - where the appellant submitted that the evidence of the Koulises that he sought to conceal the killing could not have been accepted because their credibility was irretrievably damaged by inconsistencies - whether on the whole of the evidence the jury should have had a reasonable doubt about whether the prosecution had negatived self-defence - whether the verdict was unreasonable

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - APPEAL DISMISSED - where the appellant was convicted of murder - where the appellant complained that the trial judge's directions gave the jury the impression that they could use his failure to give evidence to draw adverse inferences in considering provocation - where the appellant contended the trial judge misdirected the jury regarding the weight to be given to his exculpatory out-of-court statements - whether the trial judge erred in his comments to the jury

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN THE COURT BELOW - MISDIRECTION AND NON-DIRECTION - GENERAL PRINCIPLES - where both Koulises had taken steps to dispose of the appellant's gun and clothes - where the appellant contended that they were accessories after the fact and that the jury should have been given a warning about the dangers of convicting on their uncorroborated evidence - where the appellant's counsel at trial did not seek such a direction - where the trial judge did give a direction concerning what was said to be inconsistency in Mr Koulis' evidence - whether the trial judge erred in failing to give a warning about the dangers of convicting the appellant on the uncorroborated evidence of accomplices - whether there was a miscarriage of justice

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN THE COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where the appellant was convicted of murder - where no objection was taken at trial to the admission of an interview between the police and the appellant at a remand centre which was recorded, although the appellant was informed that no recorder was operating - where in the interview the appellant protested his innocence but also admitted knowledge of illegal activities - where the appellant contended on appeal that the trial judge was bound to reject the evidence - where the appellant contended the interview's prejudicial effect outweighed its probative value - whether the trial judge erred in admitting the interview into evidence - whether a miscarriage of justice resulted

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied

Mule v The Queen (2005) 79 ALJR 1573; [2005] HCA 49, applied

R v Cox [1986] 2 Qd R 55, followed

R v Ellis (1998) 100 A Crim R 49; [1998] SASC 6597, followed

W C Terracini SC, with E Nicholson, for the appellant

Director of Public Prosecutions (Queensland) for the respondent

[1] HOLMES JA: The appellant appeals his conviction of the murder of Colin Lutherborrow at the Gold Coast on 20 July 2011. His grounds are that the jury's verdict was unreasonable and that the trial judge erred in three respects: in his comments to the jury about the appellant's failure to give evidence; in failing to give a warning about the danger of convicting the appellant on the uncorroborated evidence of accomplices; and in admitting a recorded interview between police and the appellant into evidence.

[2] The Crown case depended heavily on the evidence of two witnesses, George and Claudia Koulis. In July 2011, Mrs Koulis was working as a sex worker and Mr Koulis was her driver. According to their evidence, the appellant became a client of Mrs Koulis about a week before Mr Lutherborrow was killed, and also supplied Mr Koulis with amphetamines on three occasions. Mr Lutherborrow died in the early hours of 20 July; on the preceding night, he had retained Mrs Koulis' services. By arrangement the Koulises picked him up in their Toyota Corolla sedan from an address at Mermaid Waters to take him to an apartment Mrs Koulis used at Biggera Waters, stopping on the way at a hotel for a drink.

[3] Mr Lutherborrow and Mrs Koulis spent two and a half hours together at the Biggera Waters apartment, after which Mrs Koulis offered him a lift back to his home. With Mr Koulis driving, they travelled south, stopping at Surfers Paradise because Mrs Koulis wanted to buy a pizza. While they were stopped there, she contacted the appellant in order to obtain some amphetamines, and arranged to meet him for that purpose in the foyer of the Surfers Paradise apartment building in which he was living. She entered the building while Mr Koulis and Mr Lutherborrow waited in the car in the building's driveway. While she was gone, Mr Lutherborrow moved from the back seat to the front seat, expressing annoyance about not being taken home. The appellant, meanwhile, had insisted on doing the deal in the car, so Mrs Koulis returned to it with him. She got into the back seat, sitting behind Mr Lutherborrow, with the appellant seated behind Mr Koulis.

[4] Mr Koulis pulled the car out of the apartment driveway and drove south down the Gold Coast Highway. Mr Lutherborrow demanded to know who the appellant was, and became increasingly agitated. The appellant initially tried to calm him but the conversation developed into an argument, with the voices of the two men becoming louder and louder. Mr Lutherborrow said that his father was a lifetime member of the Finks and he began to make threats. Mr Koulis turned the vehicle right into Hooker Boulevard. By this stage, Mr Lutherborrow was on one knee facing the appellant in the rear of the car and the two were grabbing at each other. Mr Lutherborrow was making threats to kill the appellant, interspersed with demands to be driven home. Mr Koulis, thinking that they were close enough to Mr Lutherborrow's home, tried to pull over to let him out, but Mr Lutherborrow three times grabbed the wheel to prevent him from doing so.

[5] When the car was stopped at an intersection, Mr Lutherborrow threw a punch which hit Mr Koulis in the face and knocked his glasses off. The appellant responded by hitting Mr Lutherborrow and the two men continued to punch each other. Mrs Koulis, fearing she would be struck, got out of the car. To take Mr Lutherborrow home, Mr Koulis should have turned left at the intersection. Instead, with the green light he drove off straight ahead, but stopped about 20 metres past the intersection, pulled over and told the other two men to get out of the car. He felt an object pressing against his lower back which he assumed to be a weapon, and the appellant said "Just fucking drive Jay". ("Jay" was the name Mr Koulis assumed when acting as his wife's driver.) He drove for another three or four hundred metres down the road with the two other men still shouting at each other. He heard the appellant say "Just take me out bush I'm going to fucking kill him". Mr Lutherborrow was responding with threats of his own such as "Wait 'til I see you next, I'm going to kill you, you're dead".

[6] Mr Koulis stopped the car, reversed into a side street and told Mr Lutherborrow to get out. The latter did so, still making threats. He walked to the front of the vehicle, where he stood waving his hands and arms and continuing to tell the appellant that next time he saw him he would be dead. The appellant got out of the car and fired a shot into the air with what Mr Koulis described as a pistol of some sort. Mr Lutherborrow looked at the appellant and said "You pussy, you can't even shoot me"; at which the appellant lowered his arm and shot Mr Lutherborrow in the chest. The latter fell straight to the ground.

[7] Mr Koulis said that the appellant got back into the car, pointing the gun at the back of his, Mr Koulis', head and directed him to go and pick up Mrs Koulis. Mr Koulis went back the way he had come, telephoning his wife on the way. Once picked up, she immediately began to ask what had become of Mr Lutherborrow; Mr Koulis did his best, through gestures, to discourage her. On Mr Koulis' account, the appellant responded to her questions by saying, "I shot him", with Mr Koulis confirming: "Yeah, you shot him". Mrs Koulis did not give evidence of that conversation.

[8] The appellant could not find his mobile phone and instructed Mr Koulis to turn around and go back. They retraced their route along Hooker Boulevard, to see a security guard standing next to Mr Lutherborrow's body. They did not stop there, but pulled up further down the road where the appellant searched the car for his phone. According to Mrs Koulis, the appellant said that he should kill both her and her husband; if they went to the police they would be dead. He would be "going for self-defence". He demanded to be taken back to his apartment. Once there, he changed his clothes, put them in a bag and the gun in another bag, and gave them to the couple, instructing them to dispose of them. Mr Koulis said that he was told to take the gun hundreds of kilometres away and get rid of it, disposing of the bullets and gun separately and to burn the clothes. The appellant reiterated that if they went to the police they would be dead.

[9] The Koulises drove from the appellant's apartment to Somerset Dam, arriving there at about 6.30 am. Mr Koulis removed the bullets from the gun's magazine, putting them into some massage cream which his wife had. He put the tub of cream back into the bag, but decided against throwing the gun into the dam as he had originally intended. Instead, driving back towards his daughter's home at Beenleigh, he stopped at a hardware store and bought two buckets and two bags of concrete mix. At his daughter's house, he burned the appellant's clothes in the family barbeque. There were some remnants which he put in a box. Next, he mixed the concrete in the two buckets, putting the tub with the bullets in one and the gun in the other.

[10] Leaving his daughter's house, Mr Koulis drove with his wife towards Beaudesert and on a rural road threw the box and its contents out of the car. The couple then made their way back to the Gold Coast, where they retrieved their phones from the Biggera Waters apartment. Having done so, Mr Koulis found that the appellant had been trying to contact him. He telephoned him and they arranged to meet at Surfers Paradise. However, while waiting for the appellant, Mr Koulis saw him arrive with another large man of formidable appearance and decided against making his presence known. Instead, he went later that day to the appellant's apartment. The appellant's fearsome-looking companion was there but left almost immediately. The appellant asked whether Mr Koulis had got rid of the gun and he answered in the affirmative. The appellant said he wanted him to retrieve it; he could have its barrel altered so it would not match the projectile which had killed Mr Lutherborrow. He offered Mr Koulis $5,000 if he returned the gun. He reiterated his threat that he would kill the Koulises if they spoke to anyone about what had happened.

[11] Mr Koulis left the apartment. He formed the perception that a vehicle was following him, possibly driven by the appellant's friend. He detoured through pedestrian areas so as to lose the car, then took a taxi south and contacted his wife, who came to pick him up. They decided they should immediately leave the Gold Coast, and, taking their six year old daughter, drove that night into New South Wales. The buckets containing the bullets and the gun were still in the boot of their car. They stayed that night with a friend in Tweed Heads and left the buckets in his shed, from where they were retrieved a few days later by police. The following day they continued south to Newcastle, where they spoke to a solicitor and made contact with police who interviewed them. A couple of days later, Queensland police interviewed them as well. Subsequently, the Koulises returned to Queensland and Mr Koulis told police where they could find the remnants of the burnt clothing and the buckets containing the gun and bullets.

[12] In cross-examination, Mr Koulis agreed that he had not told the police the complete truth at the beginning; he had not revealed his role in disposing of the clothes and the gun. He said that it was only some three days later, when he was assured of protection, that he decided to be completely frank with the Queensland police then interviewing him. He was conscious that his assistance to the appellant after the crime could lead to his being charged. Mr Koulis agreed that three weeks after the killing of Mr Lutherborrow, he had signed a statement in which he had attributed to Mr Lutherborrow these words at the point at which he had pulled the car over into the side street: "Wait 'til you get out of here. You're fucking dead. Jay drive me home or I will kill him now."

[13] Mr Koulis said the first part of the passage was accurate, but Mr Lutherborrow had not said "drive me home or I will kill him now" at that point, although he had previously said that he would kill the appellant. He accepted also that his statement did not contain the threat he had ascribed to the appellant in his evidence, "Just take me out bush, I am going to fucking kill him". He had been given the opportunity at committal proceedings to make any alterations he wished to his statement and had made some corrections, but had said nothing of these matters.

[14] Mr Koulis agreed that Mr Lutherborrow might have been carrying his mobile phone in his hand when he left the car. He was waving his arms at about shoulder height as he stood in front of the car. It was possible it might have looked as if he had a gun. With three lunges he could have been next to the appellant. In re-examination, Mr Koulis said that he saw no object in Mr Lutherborrow's hands, which were moving all the time when he was at the front of the car. Mr Lutherborrow had stopped at the front of the vehicle and did not make any move suggestive of lunging towards the appellant.

[15] Mrs Koulis, when cross-examined, agreed that she had originally not told the police about getting rid of the appellant's clothes or secreting the gun. She said that until she was assured of protection she was afraid to do so. She agreed that the appellant was reacting to Mr Lutherborrow's aggression, but, she said, both men were fighting. Asked about how much alcohol Mr Lutherborrow had consumed in the three hours or so that she was with him, Mrs Koulis said that he had had a beer at the hotel and a sip of her champagne; that was all.

[16] A number of residents of the area around Hooker Boulevard where Mr Lutherborrow was shot gave evidence that in the early hours of 20 July 2011 they heard two or three gun shots, most of them saying that the sounds were a matter of seconds apart. The preponderance of the evidence was that the noises were heard at about 2.20 am. A witness who had driven along Hooker Boulevard near its intersection with Sunshine Boulevard at about that time said that she had seen a vehicle in which it appeared someone in the back seat was being attacked. It stopped and reversed into a side street. Another witness said that she saw two vehicles on the stretch of road leading up to the intersection, a Toyota Corolla in the centre lane, and another car, a sedan, in the left-hand lane. Both originally had hazard lights on, but the Corolla's were then switched off. It swerved, almost hitting the other sedan. The Corolla subsequently stopped and reversed back into a side street.

[17] A security officer driving along Hooker Boulevard came upon Mr Lutherborrow's body. He was lying on his back with his legs facing the kerb. A mobile phone was beside him. The security officer called police, who secured the area and found two discharged cartridge cases and a bullet jacket. A ballistics expert gave evidence that the cartridge cases had been fired from the Glock 27 pistol retrieved from Mr Koulis' friend's shed. Both the bullet removed from Mr Lutherborrow's body and the bullet jacket had some rifling features similar to those in the pistol, but there was not enough evidence to draw a firm conclusion about whether they had been fired by that gun. No gun shot residue was detected on Mr Lutherborrow's hands; the appellant admitted that fact.

[18] A pathologist who had performed a post-mortem examination on Mr Lutherborrow's body said that the bullet wound was on the right side of the trunk, just below the armpit. It had passed through the eighth rib and the lower part of the right lung into the aorta and through a thoracic vertebra to enter the left side of the body. It was travelling horizontally, slightly forwards and towards the front of the body, from right to left. Blood loss combined with an embolism had caused Mr Lutherborrow to die within minutes of being shot. He had some bruising and abrasions on his face consistent with a fist fight, although some of the injuries might have been caused by his fall onto the road. Mr Lutherborrow had a blood alcohol level of 0.17 per cent. His body would have metabolised the alcohol he had consumed, but it was impossible to say at what rate.

[19] The appellant's former girlfriend gave evidence. Early on the morning of 20 July 2011, the appellant had come to her apartment and told her that "two brothel people", about whom he had previously spoken to her, had just set him up. She went with him to his apartment to collect some property. He showed her his hand, which was swollen, and said that it was the result of a fight he was in; the other man had kept on beating him. He also said that there had been a shooting in which he was involved, with three people there. He said that he was in a car with a man who "started big noting", saying that his father was a lifetime member of the Finks. The car had stopped and as he got out of it a bullet had skimmed his ear. The other man had threatened him, saying that if he ever saw him again he was dead, no matter what, and that he was a "pussy".

[20] The appellant was arrested on 25 July 2011 and taken to the Southport watch house. Some undercover police officers were placed in his cell and recorded their conversation with him. He informed them that he was charged with murder, making a gesture to indicate firing a gun and following it with words indicating that it had occurred near the casino at Broadbeach. He complained of an injured hand and gave a description of an argument which he had "pull[ed] mine from the waistband", going on to say "I was a better shot than that cunt". He gave a description of the other man's pulling a gun on him first and of himself as a quicker and better shot, so that he was hoping to "get manslaughter". The other man had told him he was a Fink. There was a series of blows between the two,

"And he jumped out of the passenger seat, and I jumped out of the back, and he went around the front, I went around the back, I just walked over the top of him, 'boom' 'boom' 'boom'. Fuckin. I was goin nah. But I told my story it was self defence but I can't tell".

[21] In October 2011, in response to a request from the appellant's father, two detectives went to speak to the appellant at a remand centre. The police officers advised the appellant that they had a tape running and gave him the conventional caution. He said that he did not need or wish to speak to them. Later, however, one of the police officers turned his tape recorder off, and advised the appellant that he had done so, although he indicated that he and his partner would still make notes of what was said. However, the other officer's recorder continued to operate, without that being made known to the appellant.

[22] The appellant said that he was not guilty of the charge, and the investigators knew it. There was some discussion about his wanting bail. He said that he could give information unrelated to his case concerning "armoury" and the delivery of "three hundred" to Queensland from overseas. One of the police officers reassured him as he spoke that there was no tape operating. When the appellant enquired about a camera in the cell, the officer responded that it had no audio component. The appellant said that he was confident of beating the charge; if he had done something he would "put [his] hand up". There would be prints on the gun because he had to put it in the car, but the "bottom line" was that some unidentified person, presumably Mr Koulis, was a "lyin'...maggot".

[23] The interviewing officer said that there was nothing the police could do to assist with the appellant's bail and went on to say that his impression was that he may have wanted to speak about "....these... the murders today". The appellant responded that he had nothing to say. The truth was that he was innocent. He mentioned that he thought Glock 27's were "a nice little gun". He reiterated that if he had killed Mr Lutherborrow, he would "put [his] hand up". He said that he knew what had happened; he was there. If he had had his way he "would have knocked him" rather than let him get away with kidnap, but that was a "gee-up". The truth would come out.

[24] It was submitted that on the whole of the evidence the jury should have had a reasonable doubt about whether the prosecution had negatived self-defence. The evidence of the Koulises was that Mr Lutherborrow was the initial aggressor, had assaulted the appellant and threatened to kill him. Those threats continued even after the appellant had got out of the vehicle and was standing in front of it. The inference was open that Mr Lutherborrow had been holding his mobile phone in his hand when he was shot. Mr Koulis had agreed that Mr Lutherborrow had his phone with him and could have had it in his hand when he moved to the front of the car, although he did not see it. He had agreed, too, that it could have looked like a gun.

[25] That evidence from Mr Koulis, combined with the fact that some witnesses spoke of hearing three shots (rather than the two actually fired), gave rise to a further inference that the appellant might genuinely and reasonably have believed that there was a shot fired at him, so that he had to respond to save himself. He had told his ex-girlfriend that a bullet had skimmed his ear. His conversation with the undercover officers suggested that he was under the impression that Mr Lutherborrow had a firearm and was trying to shoot him.

[26] Although Mrs Koulis spoke of the appellant claiming that he would "go for self-defence" and both Koulises said that they had been threatened with death if they went to police about what had happened, their credibility was damaged by the following facts: they had not initially told police about their role in disposing of the appellant's clothes and gun; Mrs Koulis had claimed that the appellant was not drinking, but the blood alcohol reading indicated otherwise; Mr Koulis' evidence was inconsistent with that of the witness who said that she saw two cars pulling up side by side with their hazard lights on, one swerving and nearly hitting the other; and his evidence conflicted with his statement as to the respective threats made by Mr Lutherborrow and the appellant. Those discrepancies should have caused a reasonable doubt about the Koulises' credibility; they could not be explained by the manner in which those witnesses gave their evidence.

[27] There was no disputing in this case that the appellant got out of the car and shot an unarmed man. The critical issue in the jury's determination of whether self-defence was available was whether the appellant had reasonable grounds to, and did, believe it was necessary to shoot Mr Lutherborrow to preserve himself. In the circumstances of this case, that turned on whether the Crown had ruled out the possibility that the appellant reasonably believed that Mr Lutherborrow was firing at him or was about to do so.

[28] There was, of course, no such shot fired; and it was not put to Mr Koulis that there was anything that even resembled the sound of a gunshot, beyond those fired by the appellant. He conceded under cross-examination that Mr Lutherborrow might, without his seeing it, have been holding his mobile phone and that the mobile phone which he did not see might have looked like a gun. But he described Mr Lutherborrow gesticulating with both arms and hands, which was hardly consistent with the latter's aiming a weapon. And as the appellant's submissions implicitly recognised, the fact that the appellant threatened the Koulises with death if they spoke to police about what had happened was hardly consistent with a belief that he had acted in self-defence. If the jury accepted the Koulises' evidence, their conviction of the appellant could hardly be considered unreasonable.

[29] The appellant contended, however, that the Koulises' credibility was irretrievably damaged. In doing so, he confronted, of course, the difficulty that this Court must in assessing the adequacy of the evidence have regard to

"the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, [and] the consideration that the jury has had the benefit of having seen and heard the witnesses."[1]

[30] The matters identified by the appellant as casting doubt on the Koulises' evidence, were not, in my view, of a kind which would compel the jury to conclude that if they were hesitant in speaking to police or wrong in what they said then or later, it was because they were dishonest. Their initial reluctance to reveal the entirety of their role to police, for example, could reasonably have been accepted as reflecting wariness rather than unreliability.

[31] The evidence does not explain how Mr Lutherborrow's blood alcohol reading became as high as it was when, according to Mrs Koulis, he had spent some hours with her not drinking; but it is extremely difficult to see what advantage she would gain by lying about the matter. The jury may have concluded that there was some other explanation in Lutherborrow's drinking habits for the reading - the pathologist was unable to give any estimation of the rate at which he would have metabolised alcohol - or that Mrs Koulis was wrong in what she said on the point. But if the latter were the case, it was not inevitable that they would then find her not credible, rather than having a faulty recollection for that detail. And in assessing the significance of the discrepancy, they had, of course, the advantage already referred to, of seeing Mrs Koulis give her evidence and be cross-examined on the matter.

[32] It was up to the jury whether they accepted the evidence of the witness who described two cars, one swerving close to the other; but they might have thought that if it happened, Mr Koulis, with the distractions of his warring passengers, was simply oblivious to it, rather than being deceitful. Again, it is difficult to see why that kind of discrepancy as to purely incidental detail should reflect on his honesty. The conflict between Mr Koulis' statement and his evidence about whether the appellant had demanded to be taken "out bush" so that he could kill Mr Lutherborrow was significant because he had not otherwise attributed to the appellant any threat to kill; but omission of that matter through oversight was not out of the question. The significance of the inconsistency concerning whether Mr Lutherborrow had said, "Drive me home or I will kill him now" fades when one considers Mr Koulis' unchallenged evidence as to the large number of threatening statements of the kind which he had made. Those matters did not compel rejection by the jury of his evidence as a whole.

[33] The matters identified were imperfections of evidence of a kind which the jury was well placed to evaluate. They were not of such proportions as to cause real difficulty in accepting what the Koulises said. It was open to the jury on that evidence, to be satisfied beyond doubt of the appellant's guilt. The verdict was not unreasonable.

The trial judge's comments on the appellant's not giving evidence

[34] The appellant complained of this passage from the trial judge's summing up:

"Now, you will recall that at the end of the prosecution case the defendant was given the opportunity to give evidence and he has not given, nor has he called, any evidence. That is his right. He is not bound to give or call any evidence. The defendant is entitled to insist that the prosecution prove the case against him if it can. As I have told you, the prosecution bears the burden of proving the guilt of the defendant beyond reasonable doubt and the fact that the defendant did not give evidence is not itself evidence against him. Mr Johnson [defence counsel] told you yesterday that when you go to the jury room, you cannot look at or consider the fact he didn't give evidence and wonder about that and take that into account in your reasoning.

The fact he did not give evidence does not constitute an admission of guilt by conduct and it may not be used to fill in any gaps in the evidence led by the prosecution. It proves nothing at all, and you must not assume that because Mr Bagley did not give evidence that adds in some way to the case against him as to the commission of the offence with which he is charged. It cannot be considered at all in deciding whether the prosecution has proved its case beyond a reasonable doubt and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact the prosecution retains the responsibility to prove the guilt of the defendant beyond reasonable doubt.

That applies in this case both to the prosecution proving the commission of the offence and the prosecution disproving self-defence. Provocation is a little different and I will deal with that a little later."

[35] The appellant contended that the first sentence, referring to the appellant's opportunity to give evidence, was apt to give the jury the impression that the appellant failed to provide an explanation when specifically invited to do so. The last sentence, in relation to provocation, suggested that there was some difference when it came to considering the relevance of the appellant's failure to give evidence to that issue. Later the trial judge had observed:

"In the present case, you do not know a lot about Mr Bagley that may be relevant to determining whether in fact he lost self-control".

[36] In summarising the defence submissions his Honour said,

"Mr Johnson said that in your deliberations you cannot give any consideration to the fact that Mr Bagley did not give evidence. Except on the question of provocation, he pointed out the prosecution has to prove Mr Bagley's guilt, and has to prove that beyond reasonable doubt".

It was submitted that those remarks would convey to the jury that they were entitled to use the appellant's failure to give evidence to draw adverse inferences in considering provocation.

[37] The trial judge had instructed the jury in relation to the appellant's exculpatory out-of-court statements in these terms,

"Mr Bagley also said things which you might view as indicating his innocence. You are entitled to have regard to those statements of Mr Bagley's if you accept them, and you are entitled to give them whatever weight you think appropriate, bearing in mind that they have not been tested by cross-examination."

That instruction indicated, it was submitted, that the jury could give those out-of-court statements less weight because the appellant had not given evidence or been cross-examined. The trial judge had not given any such caveat in respect of inculpatory out-of-court statements. Finally, it was said that the trial judge should have directed the jury that there were many reasons an accused might choose not to give evidence and that it should not speculate as to the reasons or draw the inference that he had not given evidence because he was, or believed himself to be, guilty.

[38] The combined effect of all those remarks was that the jury would have been given the impression that the trial judge considered the appellant should have given evidence; and there was a risk that they might have given the appellant's out-of-court exculpatory statements less weight because he had not done so, or drawn adverse inferences against him. Although the trial judge had given other directions warning that the appellant's failure to give evidence was not itself evidence and did not alter the burden of proof, there was a risk that the jury would have been confused by these comments, said to be contradictory.

[39] The appellant's counsel did not seek any redirection as to these matters, but of course, if the trial judge's instructions conveyed to the jury that the appellant ought to have given evidence, a miscarriage of justice would have resulted. However, the Honour's first remark (set out at [34]) was a simple statement of what the jury had seen when the appellant was called on, and was immediately followed by directions as to the effect of the right of silence. The appellant's submissions as to the final remarks in that passage appear, with respect, to entail some misreading of what the trial judge said. It is, in my view, apparent that his Honour's qualification as to a difference where provocation was concerned related not to the appellant's failure to give evidence, but to the fact that the onus in relation to provocation did not lie on the prosecution.[2]

[40] Similarly, what the trial judge said in summarising the defence submissions reflected what counsel had accurately said: that the onus lay on the prosecution except in relation to provocation. In neither instance did his Honour's comments as to onus have any relationship to the failure to give evidence, and there is no reason to suppose that the jury would have thought otherwise. His Honour's statement that the jury did not have much information as to the appellant's characteristics was simple fact, and contained nothing which suggested the appellant should have given evidence.

[41] The instruction as to exculpatory out-of-court statements was entirely conventional.[3] Exculpatory statements, unlike inculpatory statements, do not have the cogency of being made against interest. It would be entirely appropriate for a jury to give such statements less weight because they were given out-of-court, without being tested by cross-examination in the jury's presence. The High Court has expressly endorsed directions of the kind given by the trial judge here:

"An observation by the trial judge that the appellant's out of court assertions, although disclosed in evidence by the prosecution's tender of the videotape, were not sworn testimony, that, unlike the admissions, they were not against the appellant's interests, and that the jury could give them less weight than the admissions, was proper... It was not a derogation from the appellant's right to silence for the trial judge to point out that the statements made in the course of the interview were not on oath."[4]

[42] His Honour gave ample and proper directions to the jury as to how they should approach the fact that the appellant had not given evidence. It was unnecessary to add the proposed caution to the effect that there were many reasons an accused might choose not to give evidence; indeed the appellant might have been better without the jury turning their minds to that question. The complaint in this regard is untenable.

The ground concerning the failure to give an accomplice warning

[43] The appellant contended that both Koulises, having taken steps to dispose of the appellant's gun and clothes, were accessories after the fact. The trial judge should have given the jury a warning about the dangers of convicting on their uncorroborated evidence and on the aspect of self-interest in influencing an accomplice giving evidence for the prosecution. Mr Koulis' evidence was critical as to whether Mr Lutherborrow had anything in his hand at the time of the shooting and how the event unfolded. Although no such direction had been sought, the failure to give the warning could have affected the jury's verdict.

[44] Section 632(2) of the Criminal Code removes any requirement to give warnings about classes of witnesses, but a judge may of course comment about reliability if a witness' evidence in a particular case raises concerns. This was not a case in which the evidence of the Koulises was the only evidence of guilt; the appellant had admitted, in the watch house conversation, to shooting Mr Lutherborrow. As the trial was conducted, Mr Koulis' evidence that the appellant had been the shooter was not in fact contested; indeed the only part of the Koulises' evidence which was challenged was Mr Koulis' assertion that the appellant had threatened to kill Mr Lutherborrow. The fact that assertion was made for the first time at trial raised a question as to Mr Koulis' unreliability which did call for a direction. One was given, appropriately tailored to the issue.

[45] As counsel for the respondent pointed out, to tell the jury that the Koulises were accessories would raise the question of to what crime they were accessories. The answer, murder or manslaughter, would have been unhelpful to the appellant. It is not surprising that the appellant's counsel at trial did not seek such a direction, and no miscarriage of justice has resulted from its lack.

[46] Notwithstanding the fact that no objection was taken at trial to the evidence of the interview between the police and the appellant at the remand centre, it was submitted that the trial judge was bound to reject it. The appellant had indicated that he did not wish to speak to the police, but the officers continued to speak to him, having indicated that there was no audio-recording taking place. The interview was prejudicial in conveying that the appellant had information about criminal activities, including the delivery of firearms, and was attempting to secure favours concerning his bail. His reference to the Glock 27 was also prejudicial, since a gun of that kind was used in the killing, but was not probative. The police officer had spoken of the "murders", which might have left the jury with the impression that more than one had been committed.

[47] The judge erred in admitting the interview, having regard to the unfairness in the way it was obtained and its substantial prejudicial effect which outweighed its probative value. There was no forensic advantage in defence counsel's not having objected and it was the obligation of the trial judge to ensure a fair trial notwithstanding that lack of objection. The judge should have at least asked counsel whether he wanted to reconsider his position as to the admission of the evidence. A miscarriage of justice had occurred as a result.

[48] The interview undoubtedly had some probative effect, although it was overtaken by the appellant's effective concession, through the questioning of Mr Koulis, that he had fired the shot which killed Mr Lutherborrow. It established that the appellant was at the scene of the shooting and that he had at least handled the gun. There was some prejudicial effect to it, in that it showed the appellant knew of illegal activities. But in a context in which the jury had inevitably become aware that he was an amphetamine dealer, the fact that he knew of other criminal activity was not of great significance. The fact that he was familiar with the Glock 27 was also of some probative value, although once it became clear that he accepted having possessed the gun used in the killing, his knowledge of the weapon was unlikely to have made much difference to anything, either as a matter of proof or prejudice. The isolated slip by the police officer in referring to "murders", plural, was unfortunate, but was unlikely, in context, to have been taken literally by the jury.

[49] On the other hand, the interview contained the appellant's protestation of innocence which, in a case in which he did not give evidence, could reasonably have been considered by his counsel to have some worth. Another factor in counsel's assessment of whether to object, and relevant to consideration of whether if he had done so, the Bunning v Cross discretion must have been exercised in his favour and the interview excluded, was whether there was some deliberate deception. That is simply unknown: whether the police officers realised that the second tape was in fact running, when they reassured the appellant to the contrary, was not explored at the trial. That fact that the police officer advised the appellant that notes would be made of what he said suggests that they were not intending to lull him into a false sense that he could speak freely without consequence. This is not a case in which it is so clear that the evidence must have been excluded that this court could conclude there was a miscarriage of justice in its admission.

[50] I would dismiss the appeal against conviction.

[51] GOTTERSON JA: I agree with the order proposed by Holmes JA and with the reasons given by her Honour.

[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493.

[2] Section 304(7) of the Criminal Code 1899 places the onus on the defendant to prove that provocation applies so as to make him liable to conviction only of manslaughter.

[3] R v Cox [1986] 2 Qd R 55 at 65; R v Ellis [1998] SASC 6597; (1998) 100 A Crim R 49 at 52.

[4] Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 at 1578.