R v Brooks [1999] VSCA 5

R v Brooks [1999] VSCA 5 - VSCA 1999 case summary — Zoe

There were three pieces of evidence principally relied on by the Crown as inculpating the applicant. First, there was evidence, from an independent source, of statements made by the applicant that amounted to a complete admission that he had killed (or participated in the killing of) the deceased and had done so in order to prevent her from identifying him as the burglar of the garage. Paul James Oxley, who was undergoing medical treatment following the amputation of a foot in 1988 and who regularly obtained prescriptions from two doctors for antibiotic and analgesic medication, had the prescriptions dispensed and took the medication, gave evidence that on 3 April 1995, he attended the surgery of Dr. Wood, Dale Spinks Pharmacy and the Bendigo Building Society, all in Kerang. He then visited a public toilet block in Scoresby Street, between Fitzroy and Victoria Streets, Kerang, between 1 p.m. and 2 p.m. He said that he was sitting on the toilet in the end cubicle when he heard two persons walk in and overheard a conversation between two males. The first voice said, "Don't dog on me, don't dog on me". The second voice said, "Don't dog on me, Grassy". The first voice said, "We shouldn't have gone back there, I didn't mean to kill her, Frog. I only wanted the stuff out of the shed. I didn't want her to know who I was." Oxley stated that he realised that the two persons were talking about the recent murder. He decided to remain where he was until after the two men had left. He then walked out of the toilet block and, instead of going to the right straight to his car, he circled around the back of the toilet block before doing so. He then observed two men crossing Scoresby Street about 30 to 40 feet in front of him. He recognised one of the men as the applicant, whom he knew as "Grassy". Oxley stated that he then walked back toward the chemist as fast as he could. He caught up with the two men, passed between them, went to the chemist, collected his prescription, and drove off.

[7]

The second piece of evidence particularly relied upon by the Crown was a prison confession by the applicant to the murder of the deceased. Stephen Rowley, a heroin addict with a long list of prior convictions for offences of violence and offences of dishonesty, gave evidence that, while he was serving a prison sentence, he met the applicant in F Division at Pentridge Gaol. The applicant told him that he was wanted for the Kerang murder and was frightened that the other inmates might find out about the murder. Rowley said that he and the applicant shared a cell and that he eventually got sick of the applicant's continually talking about being charged with murder and obtained a transfer to another cell. (Detective Senior Constable Jones, as he was in 1995, agreed that prison records showed that the two prisoners were not allotted the same cell.) He continued, however, to have contact with the applicant in the exercise yard and at work. On one occasion in, it would seem, mid-June 1995, after exercising, Rowley and the applicant fell to talking about the applicant's trial. Rowley asked the applicant whether he had done it and he said "Yes". He told Rowley that it was a bungled burglary and that he got caught in the act of doing it and just went too far. He told him that he and a mate, named "Peter", "Fred" or "Frog", had stolen a car, gone to Kerang, looked around and "found a place with heaps of tools hanging across the fence". They entered the property, took goods and got caught doing it by a young girl. He saw her and ran and attacked her with what he had in his hand, "I think it was a hammer or something, I think it was". His mate finished her off. The applicant wanted to plead guilty and suffer a lesser sentence, but there was a pact between him and his friend and he would be lagging on his mate if he did that. The applicant told Rowley that they killed the girl because they did not want to get caught for armed robbery. Rowley said that the applicant told him that they threw something down the river and got rid of the car, he thought by burning, and that the girl died ten days later. The applicant told him that "they" (the police) had no evidence against him.

[8]

Thirdly, the Crown relied upon the applicant's answers in a video-taped interview conducted on 15 May 1995 at the Swan Hill CIB offices. Two aspects of the applicant's answers were relied on. First, the account which he gave of his movements on the evening of 21 March 1995 was said to be at variance with the account which he had earlier given to police as early as Wednesday 22 March in some respects, such as, whether after playing in a squash competition that evening he and Frichot had proceeded to the Gilbert Club Hotel in Kerang before returning to Frichot's home; whether the applicant had purchased beer at the hotel on the credit of his mother and taken it away with him; whether Mrs. Frichot cooked a meal for them when they returned or whether they had merely made themselves coffee; and whether the next morning he heard about the incident involving the deceased while having coffee with Mrs. Frichot. (The hotel keepers, the manager of the squash court and a neighbour of Frichot were called to give evidence concerning the applicant's movements on the day and evening of 21 March. One of the hotel keepers said that the applicant had on one occasion during the day purchased half a dozen stubbies or cans of beer on the credit of his mother, although the possible times of that purchase seem to have been before the game of squash.) One of the interviewing police asserted to the applicant that the account he had just given was similar to that which Frichot had given them and asked him whether he and Frichot had spoken about their movements. The applicant said that he thought so: they said they were at squash and went home from there. It was put to him that both their stories were different from what he had said only a day after Tuesday 21 March. Subject to the possible effect of the applicant's low intelligence (a matter discussed later), he gave an answer and amplification that was capable of being understood by the jury as admitting that he and Frichot had agreed upon a version of events to be given to the police and that he had unintentionally departed from it. He said in part, "I was meant to tell these blokes when they were talkin' - talkin' to me - but I've got me answers mixed up - or." The interview continued:

[40]

For the reasons which follow, I do not accept this submission. It must be steadily borne in mind that this ground, like others, involves the contention that the judge, in the circumstances, was obliged in law to give the direction, as opposed to repeating counsel's comments or making his own. The argument proceeded on the unavoidable concession that Oxley did not fall into any of the specific categories of witnesses in respect of whom a special warning is by law or practice required that were considered in the cases reviewed in Faure, such as an important witness with a mental disability, the sole Crown witness who has a criminal connection, a witness as to disputed identification, a prison informer, and a victim of a sexual offence. The question is whether Oxley was, to use the language of Faure at 503, "in that general class of witnesses about whom a warning should be given to avoid a risk of miscarriage of justice." The submission that was accepted in that case was that Mrs. Faure was a "tainted or potentially unreliable witness". Later the words "significantly tainted or for some other reason ... inherently unreliable" were used. In Bromley v. The Queen [1986] HCA 49; (1986) 161 C.L.R. 315 at 319 Gibbs, C.J. (in whose judgment Mason, Wilson and Dawson, JJ. agreed) spoke of a case where the evidence of a witness "may be potentially unreliable". (The emphasis in each of the last three quotations is mine.) It could not be suggested that Oxley was a tainted witness: he was not an accomplice, had no hostility towards the applicant, was not, despite defence counsel's efforts, shown to have a motive to lie, and did not have criminal connections. But was he a potentially unreliable witness? I should not be taken to accept the validity or even the arguability of every one of the nine circumstances put forward by Mr. Priest. But I do not think it necessary to go into detail about that, for it is undoubtedly the case that there were numerous discrepancies as to dates, times and sequence of events between the several versions of his account which Oxley came to give over the course of time. I would, however, say that there were explanations for most, if not all, the discrepancies, such as that when he made his first statement Oxley put a caveat on the accuracy of the date of hearing the conversation until he had checked it with his records; that it was not shown by cross-examination of Oxley or Detective Senior Constable Miller that Oxley had, before he corrected it, been told of the "problem" created by the date of 13 April that he had originally given; and that the diary could not, it would seem, have been tendered by the Crown and was not called for by the very experienced senior counsel then appearing for the applicant. Again, as to the ninth point, the question is whether the subject of the infinitive "to kill" is singular or plural and it was open to the jury to understand this conversational sentence as signifying "I didn't mean that we should kill her, Frog". Moreover, and more importantly, whilst by no means all the elements of the conversation were told by Oxley to the first police officer to whom he spoke (Senior Sergeant Gunning), Oxley did not retract in any way the version of the conversation which he gave in evidence in chief (as clarified in further evidence in chief). Indeed, the evidence as to the conversation occurring between 1 p.m. and 2 p.m on 3 April and as to its contents has the air of verisimilitude: it is capable of fitting with police evidence of a (probably) 15-minute visit to the Frichot home at 1.15 p.m. and the likely ensuing expression by the two men of mutual concern that they would be implicated in the homicide, and it involves information Oxley could not possibly have possessed, viz, that the applicant was known to the deceased and that there had (on one interpretation of the conversation and of evidence of Mrs. Rogers in response to a suggestion in cross-examination) been a visit by the two men to the Rogers property the previous evening. There was no support in the evidence for a view that Oxley's ability to hear and to recount what he heard was adversely affected by his long use of strong drugs for therapeutic purposes or that he suffered from any mental disability. Indeed Dr. Odell's evidence is quite to the contrary. Dr. Llewellyn, Oxley's other treating doctor, did not accept that Oxley had been telling him lies to obtain drugs. His evidence as to the effect of habituation to Oxycodone accorded with Dr. Odell's. In my view, the inconsistencies and other matters relied on, even if all are arguable and even if the compelling features of Oxley's essential evidence be disregarded, do not show Oxley to have been a "potentially unreliable witness". That expression does not include a witness who may possibly or may well be wrong, and a warning of the kind in question is not required for a witness of whom no more than that can be said. The expression requires, I consider, a pre-existing proneness to or likelihood of unreliability which is inherent in the general nature of the witness or his or her relationship to the accused, the victim or the events. Thus, a drug-affected person, a mentally disabled person, and an alternative suspect are persons whose general description shows them to have the potentiality or latent capacity to be unreliable. To repeat myself, perhaps, mere possibility of mistakeness is insufficient. See R. v. Campbell (unreported, Court of Criminal Appeal, 14 November 1994) cited in R. v. Latina (unreported, Court of Appeal, 2 April 1996). Simply to read the catalogues of circumstances in Faure at 503 and Hickey & Komljenovic at 569 is to see that Oxley was not of the same kind as the witnesses there considered.

[42]

"We readily acknowledge that there are rules prescribing the directions that a judge must give in particular classes of case. The warning required with respect to the evidence of an accomplice is a familiar example. But such rules should not be unduly expanded. A trial judge should retain the flexibility to deal with the almost infinite range of factors that affect criminal trials. Where there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice. ..... The factors calling for the warning must be of such a character that it is unsafe to leave the jury to rely on the arguments of counsel. ...... an appellate court will attach weight to the judge's assessment of what was required and, in appropriate cases, will infer from counsel's not taking an exception that the direction in question was not required. .... Counsel for the applicant must identify a specific factor or group of factors that could not safely be left to trial counsel to deal with in his address but required a direction that had the authority of the judge's office. When it is said in the authorities that the necessity for a direction arises from the circumstances of the case, what it meant is that those circumstances must include such an identifiable factor or group of factors and that the form of the direction must be tailored to the facts of the case. ..... In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge: cf. Bromley v. R. [1986] HCA 49; (1986) 161 C.L.R. 315 at 324-5 and Carr v. R. [1988] HCA 47; (1988) 165 C.L.R. 314 at 330. Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury."

[50]

In my view, the latter portion of that statement is applicable in respect of Rowley's evidence: that the applicant made the confession to Rowley which Rowley said he did or any like confession was directly challenged and Rowley was cross-examined with a view to showing that he was dishonest and unreliable. If the jury were satisfied that the applicant made the confessional statements to Rowley there was virtually no basis for doubting that the statements were true. There was no suggestion in the evidence of any violence against or mistake or illness on the part of the applicant inducing him to confess. Nor did the nature of the statements or the circumstances in which they were made suggest a desire to earn respect or curry favour or create fear by the making of false claims. As regards the applicant's intellectual deficits, besides Mr. Joblin's evidence, the jury had had the chance, as had the judge and as indeed has this Court, of seeing the applicant's performance in response to interrogation, and might well have thought that he had no difficulty in understanding and generally in expressing himself, though sometimes he had to correct verbal slips or stumbles. I recognise that in Burns the trial judge had, during the evidence, given the direction sought, albeit in relation to another accused, and had, in relation to Burns, during the evidence, given a direction that the statement could be used against him if the jury thought it was truthful and accurate. But, as the passage cited shows, the case is in fact authority for the proposition that there is no fixed requirement to give, even if during the course of the evidence, the direction contended for. The other case cited for the applicant, R. v. D'Orta-Ekenaike [1998] 2 V.R. 140 at 147, does not, I think, require a different conclusion. It is true that the language of Winneke, P. (with whom the other members of the Court agreed) is very general ("in every ... case where an alleged confession of guilt has been challenged"). But his Honour did go on to use the words "in the circumstances". More importantly, that was a case of a "curial confession" by plea and a case where there was no doubt about the making of the alleged confession and where, rather, the dispute was as to its meaning and effect. In other words, the case is the reverse of the present case and of the case considered in the second portion of the passage quoted from Burns. Here for the reasons already given, the second limb of that direction was, in my view, not necessary in the circumstances.

[51]

The question whether a direction in terms of the first limb (that is, that the jury must be satisfied that the alleged admissions to Rowley were made) was necessary depends on all the circumstances. Those circumstances include the fact that the judge gave a detailed and very strong prison informer's direction in the course of which, as it seems to me, he played down the force of the two pieces of evidence which he identified as capable of providing independent support for Rowley's evidence. He directed the jury that, whilst they could act on Rowley's evidence in the absence of independent supporting evidence, though it would be dangerous in the extreme to do so, they would have to be satisfied as to the reliability, accuracy and honesty of the witness beyond reasonable doubt. His Honour made it clear that Rowley was a "tainted" witness and reminded the jury in general terms at first and later in considerable detail of his record of convictions for dishonesty, violence and drug offences. Further, it could not have been more obvious to the jury that there was a real contest whether the admissions had been made. In all the circumstances, I do not think that the jury could have been in any doubt that, before they could act upon the alleged admissions to Rowley, they had to be satisfied that they were made. In my view, the contended for direction was not necessary, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice, to apply the principle stated in Miletic at 605 and referred to earlier. I am confirmed in that view by the fact that the experienced senior counsel appearing below for the applicant did not by way of exception or otherwise seek such a direction. For the foregoing reasons, I consider that his Honour did not err in failing to give the jury the direction contended for or otherwise fail in directing them concerning the admissions allegedly made to Rowley. I should, however, add that I respectfully think that it would have been preferable, though I have decided that it was not necessary, to give the direction.

[54]

This ground was said to be linked to ground 2. It was based on the evidence of Mr. Joblin, which I have set out earlier. It was contended for the applicant that the applicant's low intelligence called for special directions from the trial judge concerning the evaluation of admissions allegedly made by the applicant. But it was complained that his Honour merely recounted the evidence of Mr. Joblin without any direction as to its use. It was said that it was dangerous to act on the admissions of a person of such low intelligence. Such a person, it was asserted, might try to impress his peers (presumably, Rowley). It was pointed out that, had evidence been called from a person aged eight years six months in years in support of the Crown case, then at common law a jury would have been warned to approach the evidence (whether sworn or unsworn) with extreme care. More precisely the jury would have been warned that, though corroboration was not strictly essential, where the child gives sworn evidence, the jury must not convict on the uncorroborated evidence of a child except after scrutinising it with extreme care: R. v. Dossi (1918) 13 Cr.App.R. 158 at 160-161; and Hargan v. The King [1919] HCA 45; (1919) 27 C.L.R. 13 at 18, 24-25. Here, it was said, the statements of a person aged eight years six months in intellect were used in proof of the Crown case and the general policy of the common law ought to have dictated that a special warning be given to the jury as to acting upon the applicant's admissions. A trial judge, it was pointed out, is required to give any direction necessary to avoid a perceptible risk of a miscarriage of justice, and reference was made to Miletic at 605 and 606, which I have cited earlier. Similarly, it was submitted, although the applicant was not intellectually disabled according to law, he was very close to it and at common law the evidence of such a person, if called for the Crown, might well have attracted a warning. Reference was made to the position now obtaining under s.23(2A) and (2B) of the Evidence Act 1958.

[60]

There is, in my opinion, nothing in this ground. Indeed, during argument, Mr. Priest conceded that, if there was nothing in any other ground, this one would not vitiate the conviction. First, at the commencement of his prison informer direction, his Honour spoke of the witness as a "tainted and unreliable source" and went on to speak of "individuals who ... have, through their own conduct, demonstrated that they are unreliable, untruthful people." He made it clear that Rowley was such an individual. At the end of the direction, his Honour referred to Rowley as not only a tainted witness, but "a person with a substantial history of violence, deception and so forth." Secondly, his Honour, in summarising Rowley's evidence, repeated in considerable detail the cross-examination of Rowley as to his prior convictions. Thirdly, as indeed his Honour reminded the jury in general terms very early in his charge, counsel for the applicant addressed the jury in scathing terms about Rowley's dishonesty and life of crime, referring to many of the convictions which he had sustained, and asking, in substance, how the jury could convict on the word of this admitted fraudster and liar. Fourthly, even without that address, it must have been obvious to the jury, at least after the cross-examination of Rowley as to his convictions, that in deciding whether to accept his evidence they would have to pay close regard to his prior convictions. In other words, they could not have been unmindful that prior convictions went to his credibility and reliability. Nor could they have been unmindful of the force of the prior convictions. The relevance and effect of Rowley's prior convictions was well within the capacity of the jury to evaluate in the light of their own experience and with the benefit of counsel's addresses. This clearly was not a case where the direction contended for was necessary to avoid a perceptible risk of miscarriage of justice, within the principle discussed in Miletic. Here, again, the absence of any exception or request for direction or re-direction on the part of counsel then appearing for the applicant is, in my view, eloquent of the fact that it was apparent to those taking part in the trial that the jury were well aware of the relevance and effect of the evidence of prior convictions.

[61]

The cases cited for the applicant under this ground do not support it. Mr. Priest in fact conceded that they do not establish a universal proposition that the direction contended for is necessary. In Bugg v. Day [1949] HCA 59; (1949) 79 C.L.R. 442 at 467, where there is a discussion of the effect at common law and by statute of prior convictions of a party or a witness, the direction which Dixon, J. considered was proper, but not necessary, was a direction limiting the use to which prior convictions of a party could be put. That case was considered in the second authority cited, R. v. Aldridge (1990) 20 N.S.W.L.R. 737 at 741, which deals with the relevance of prior convictions and the exercise of the statutory discretion to exclude them. But it does not deal with directions as to prior convictions. The third case cited, R. v. Kizon & Kizon (1985) 18 A.Crim.R. 59 at 71-72, where Rowland, J. who dissented on the point, expressed the view that to prevent sinister implications being drawn against the accused persons from the proof of the criminal records of their witnesses, being persons with whom they travelled to the scene, the trial judge should have directed the jury that the sole purpose of allowing evidence of character and prior records against the witnesses was simply to establish that each was not a witness of truth; that if the cross-examination as to credit had the desired effect it was that the evidence was to be ignored or not accepted to the extent sought by the defence; and that the evidence of bad character and prior convictions could not be used to indicate that by their association with those people the accused had thereby in some way shown a propensity for the type of offence charged. That is a direction protective of the accused and somewhat similar to the direction considered by Dixon, J. in Bugg v. Day. It is a direction designed to limit the use to which prior convictions can be put, and it was only incidentally that the use to which prior convictions could be put was to be stated.

[69]

56 At the trial there was nothing to suggest that at the time he spoke to the police Rowley knew, or had the means of knowing, that a hammer was missing, and acceptance of that was implicit in the oral argument to this Court on behalf of the applicant. In further written submissions, however, Mr. Priest referred to a search warrant said to have been executed in the presence of the applicant at the home of the applicant at 5 Adams Court, Kerang, on 18 May 1995, that is before his arrest and incarceration with Rowley. Item (c) of the things to be searched for reads "Hammer". It was put in written submissions that at the time the applicant was in custody with Rowley he would thus have known that police were searching for a hammer quite independently of any knowledge that may have flowed from the commission of the crime. I reject this after the fact attack upon the corroboration direction. The written submission shows that there was evidence in the depositions of Detective Senior Constable Miller and other police executing such a warrant in the applicant's presence. It was well open to defence counsel to cross-examine police about the execution of the warrant and to require its production and tender. Sarah Rogers' evidence had been given early in the trial. It is, I consider, quite wrong, by attempting to introduce new evidence before this Court, to seek to show that a piece of evidence left to the jury as potentially corroborative was not capable of corroborating. Even if it were permissible for this Court to take into account what is said in the written submissions about the search warrant, the conclusion contended for would not, in my view, follow without yet further evidence. The mere fact that the warrant was executed in the presence of the applicant does not mean that he read or was told its contents. He was not, after all, the owner of the house. Even if the warrant had been produced to him, it may be thought unlikely that he would have been offered time, or taken the trouble, to read it. That unlikelihood is increased if regard is had to the intellectual deficits on which reliance was placed before us.

[73]

In support of this ground Mr. Priest's outline of argument simply referred to certain paragraphs of the outline relating to the previous ground, and in oral argument he scarcely, if at all, elaborated this ground. Having re-read the argument below on the objection to the recall of Mrs. Rogers and his Honour's reasons, I consider that his Honour's discretion in no way miscarried. He expressly considered the relevance and significance of the proposed further evidence (which in the event was given in the terms foreshadowed) and the question of prejudice to the defence. Despite concluding that there was some prejudice, his Honour nevertheless granted leave to recall Mrs. Rogers. It is implicit that he took the view that it was nevertheless just to allow Mrs. Rogers to be recalled. In that, he was, in my opinion, clearly correct: it is to be remembered that justice is not a one-sided thing. Cases show that the recall of a witness may even be allowed in extraordinary circumstances after the close of the defence case. Here application was made before, albeit very shortly before, the close of the Crown case and the failure to lead evidence about the tools from Mrs. Rogers earlier was due to the inadvertence of the prosecutor, caused, it would seem, in part by the terms of Rowley's statement in the deposition material and, so far as whipper-snippers were concerned, by the fact that Rowley had not mentioned them in his evidence-in-chief, though it seems they were referred to in his statement. (The suggestion in argument for the applicant below that evidence could have been led from Sarah Rogers about the whipper-snippers is misconceived: there is no suggestion that any set of whipper-snippers was missing after the burglary.) Finally, factors bearing upon the credence or weight to be given to Mrs. Rogers' further evidence were dealt with by his Honour at the time he gave the jury directions about the corroboratory capability of that evidence in a way which could scarcely have been more favourable to the defence. In other words, any possibility of any miscarriage of justice was made even more remote by his Honour's address. But, as I hope I have made clear, I do not consider that there was any such possibility. That does not mean that the evidence might not have been significant, for it had the ring of truth which found an echo in Rowley's evidence. But it is not a miscarriage of justice for the defence to be precluded from capitalising upon the absence of significant evidence (which in the event was scarcely challenged) due to the inadvertence of the prosecutor. There is no suggestion that the defence was unable to make a challenge to Mrs. Rogers' evidence, whether by cross-examination or by calling a witness, which it would have been able to make if she had given the challenged evidence before Rowley was called.

[83]

I have already summarised at some length the main evidence in the trial. The Court was taken in argument and in later written submissions to many other aspects of the evidence or lack of evidence, in some instances with reference to the deposition material. Many other points on which evidence was led could be mentioned, but I do not propose to lengthen these reasons by travelling in writing down each pathway indicated in the oral and written submissions. It is sufficient to say that, so far as the material seems to me to be proper to consider, I have considered it. It is a striking feature of the case that, although some clues were left, there was no forensic evidence connecting the applicant to the crime. As against that, there were the "three planks", to use Mr. Priest's expression, of the Crown case. Mr. Priest described them in his opening as inherently weak. I do not agree. Whilst, as I have already said, there were considerable inconsistencies between the various versions of the occurrences on the day on which he visited the public toilet in Scoresby Street which Oxley gave over the course of time, Oxley, as Mr. Priest acknowledged to the Chief Justice during argument, did not retract the version of the conversation he claimed to have over-heard which he gave in evidence-in-chief, the essential features of which were an acknowledgment of participation in the killing, on an occasion of attempting to steal "stuff" from a shed, of a female victim to whom he was known. Even if regard be had to Oxley's first communication with the police about the murder, namely, his telephone conversation at 1.10 p.m. on 26 April 1995 with Senior Sergeant Gunning, he did at least report hearing the essential matter (though no more), namely, "When I hit her, I didn't mean to kill her." It is true that in that communication, as recorded by Gunning, there is no reference to "dogging", "Frog", going back to the shed or not wanting the victim to know who the interlocutor was. There are, of course, explanations, based not only on the circumstances in which the telephone call was made but also upon Oxley's hesitancy about contacting the police, which readily spring to one's mind for the brevity of the communication and thus its failure to refer to the other matters which, according to Oxley's evidence in court, he did hear said. In any event the terms of Oxley's first communication to the police were before the jury. But the (to my mind) compelling feature of Oxley's evidence is its independence and the inherent unlikelihood of its fabrication: it is evidence of a chance occurrence from a person not shown to have any hostility against the applicant and the content of the conversation fits well with the facts in a way that Oxley could not have known in advance. What I said under ground 1 about the air of verisimilitude which Oxley's evidence had is relevant here (as indeed are other comments under ground 1). I do not repeat it, but I note that, when sentencing the appellant, his Honour said that, "[A]lthough a wide-ranging attack was made on the credibility of Mr. Oxley**,** at no stage was it ever suggested that he knew or possessed any means of ascertaining that the deceased and you had been acquainted ..." The better view of the evidence is, I think, that, although a State Government reward had not been offered, a media release notified that there was an entitlement to a reward for information given to "Crime Stoppers" leading to the conviction of the murderer or murderers. But it was not Crime Stoppers that Oxley telephoned and the jury were well entitled to reject any suggestion that Oxley approached the police in order to obtain the reward: what he had already received together with what he was expecting to receive was ample for his needs and desires. His evidence about this reads compellingly. It derives support from the evidence of his reluctance to approach police given by Dr. Wood and Senior Sergeant Gunning.

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