R v Camilleri [1999] VSC 162

Supreme Court of Victoria|1999-03-30|Before: VINCENT, J.

A question has arisen in this trial as to what, if any, evidence is before the jury which could properly be regarded by them as corroborative of that given by Lindsay Beckett. He has already pleaded guilty to and been sentenced for the murder of Lauren Barry and Nichole Collins. Accordingly, he has given evidence before this Court in circumstances in which what he has asserted must be viewed with considerable circumspection. It is evident and not disputed by the prosecution that this witness falls into the category of those in relation to whom a corroboration warning would be required in the instructions to be given to the jury [see Appendix A].

What is encompassed by that concept has been the subject of attention by the courts in a large number of cases, over many years, and against a wide variety of evidentiary backgrounds. In this context, it is to be noted that Brennan, CJ. in BRS v. The Queen [1997] HCA 47; (1997) 191 C.L.R. 275 at p.284 adopted with approval the statement of O'Connor, J. made almost 88 years ago in Peacock v. R. (1911) 13 C.L.R. at 671, that:

" ... it may be asked, what is corroboration? It does not mean that all the material facts have to be proved by independent evidence. What it does mean is well expounded in the following passage from the last edition of 'Russell On Crimes' - 'The confirmation need not extend to every part of the accomplice's evidence, for there would be no occasion to use him at all as a witness, if his narrative could be completely proved by other evidence, free from suspicion. But the question is, whether he is to be believed upon points which the confirmation does not reach. And if the jury find some part of his evidence satisfactorily corroborated, this is a good ground for them to believe him in other parts as to which there is no confirmation. So far all the authorities agree; the only point on which any difference of opinion has been supposed to exist relates to the particular part or parts of the accomplice's testimony which ought to be confirmed'."

A little later in the same judgment Brennan, CJ stated:

"It is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends. There is no set formula nor are there rigid categories of corroborative evidence. As Lord Hailsham said in R v. Boardman: 'The rules of logic and common sense are not susceptible of exact codification when applied to the actual facts of life in its infinite variety'." (at 285)

In the same vein, Macrossan J observed in R v. Kerim [1988] 1 Qd.R. 426 at 447 that:

"It is well understood that the corroborative evidence need not, by itself, have the effect of proving guilt, but what will be expected of it and the area in which it must operate will depend on the issues at the trial and the respective versions contended for by the prosecution and defence."

It is evident that whether or not any piece or pieces of evidence are capable of constituting corroboration of the evidence of a particular witness is dependent upon the precise context in which it arises. This involves consideration of the evidence and issues in the trial itself.

The proper approach to be adopted by a trial Judge is determining what, if any, evidence is so capable has been the subject of attention in a large number of cases, in many jurisdictions and over many years. The relevant principles, which are well recognised have, as may be observed from Appendices A and B, not been the subject of any substantial dispute in the present proceeding. Accordingly, I consider that I need make only relatively brief reference to them.

The notion of corroboration itself was considered by the High Court in R v. Doney where it was stated that:

"In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice." (at 211)

The Court has stated on a number of occasions that the essence of corroboration is the presence of some confirmation, support or strengthening of other evidence such that that other evidence is rendered more likely to be reliable. It is well accepted that corroborative evidence need not by itself prove guilt and it is not necessary that the corroborative evidence confirm all of the circumstances of the crime. Corroboration may be provided by circumstantial evidence and there may be independent facts and circumstances proved in a case which, whilst incapable individually of providing corroboration, in combination are perceived as capable of having that effect.

However, the mere fact that evidence shows or might be considered to show that the accomplice is speaking the truth does not necessarily supply corroboration in law. The evidence must be related to a matter in dispute and not merely confirm something that is common between the Crown and the accused. It is not capable of constituting corroboration if indeed it is intractably neutral in the sense that it is incapable of being perceived as supporting the evidence of the accomplice in a relevant way.

As I have indicated, the proper approach to be adopted by a trial Judge when considering the type of questions posed here has not been the subject of substantial dispute in the trial. There were, however, two notable exceptions.

The first was concerned with the use of evidence of statements or conduct asserted by the prosecution to demonstrate the existence of a consciousness of guilt of the crime charged as possibly corroborative of the evidence of an alleged accomplice. As I commented in the course of discussion, I have some difficulty with this notion as once the evidence is accepted by the jury according to the standard which the law would require as demonstrating consciousness of guilt on the part of the accused of the offence alleged against him, there is an adequate basis for conviction in its own right. It is difficult to see how there would be in that circumstance any practical area of operation for the principle of corroboration; in other words, the principle would only come into play once the statement was accepted as indicative of a consciousness of guilt, at which point of time there would be no need for a jury to decide anything else.

If, by some employment of varying standards of proof in relation to such statements, which I perceive as problematic in view of the way in which the issue has been dealt with in a number of cases, in any event it was possible to use what is alleged to be a lie in this fashion, it seems to me that there is a risk of confusion and circularity of reasoning in the minds of the jurors, as well as a possible diminution in the strength of the necessary instruction which a judge is required to give in relation to consciousness of guilt in a criminal trial.

The second area of difficulty which emerged in the course of discussion arose from the reliance placed by counsel for the accused upon the claimed intractable neutrality of almost all of the individual pieces of evidence which the prosecution contends can provide corroboration in this case. On more than one occasion, Mr Mullaly argued that because alternative hypotheses could be advanced in relation to individual pieces of evidence, some of which, he claimed, were more consistent with innocence than guilt, the evidence could not be put before the jury as capable of supporting the evidence of Beckett.

There is more than one problem in this method of approach. First, it does not adequately incorporate the possibility that, considered in combination, a number of pieces of evidence, which individually assessed may be perceived as inconsequential, could provide powerful support in some situations. Second, as I commented in the course of discussion, it appears to me that it involves a misconception as to the role of a trial judge. The weight to be attached to the individual pieces of evidence before the jury and the combined effect to be given to them are matters to be dealt with by the jury and not by the judge where it appears to the judge that the evidence is capable in law of providing support for the evidence of the witness concerned. It is inevitable that there will be, on occasions, competing hypotheses and competing possibilities open with respect to the various items of evidence.

In other words, whether or not a piece of evidence provides support for that of a witness whose evidence is the subject of corroboration instruction is essentially a question of fact to be decided by the jury. It involves consideration of the various hypothesis open in the circumstances and application by the jury to the situation of their experience and reason and their critical judgment of persons and human affairs. Attention must be given in this process not only to the individual pieces of evidence but to their possible significance in combination.

Generally speaking, the judge must be careful not to intrude into the fact-finding task of the jury. The mere existence of competing hypotheses does not mean that evidence is incapable of providing corroboration or support for the evidence of the impugned witness. Obviously, if the Judge concludes that the evidence is incapable of providing support because no basis exists upon which a jury would be entitled to prefer one hypothesis to another with respect to its significance then the evidence is intractably neutral and it cannot provide corroboration.

I have given considerable thought to the various pieces of evidence upon which the Crown seeks to rely as corroborative of the evidence of Beckett. Some of them relate to the existence of a relevant relationship at a time proximate to the events in question. This relationship encompassed, according to the evidence, a joint activity in which the accused man performed a dominant role and involved the abduction, transport over long distance, and unlawful detention for an extended period of time of a young woman who was subjected, according to her evidence, to physical violence and repeated sexual assault.

As I have earlier indicated when dealing with the evidence relating to Miss Gandarias, the fact and character of a continuing and pre-existing relationship between two individuals would be relevant when considering the likelihood or otherwise that the same persons may have been involved in a particular type of joint activity on a specific occasion. That evidence is capable in my opinion of providing support for the evidence of Beckett as to the involvement of the accused in a joint activity on the night in question and the role played by him in that activity.

Next it would seem to be undisputed that Nichole Collins and Lauren Barry were abducted and transported over a considerable distance and, highly likely in the context of the matter, that they were sexually abused. The evidence of Mrs Wilson that the accused was awake and in control of the motor vehicle when the girls were picked up, together with the identification of semen from the accused man on the shirt which it appears was worn by Lauren Barry, the location of the torch in Ben Boyd National Park, the location of the piece of beer carton at the West Wingan track, the location of Lauren Barry's shirt at Old Wallagoot Road, and the geography and terrain at Fiddler's Green Creek, in combination, are capable of providing support for the evidence of the man Beckett that the accused and he were engaged in a joint enterprise throughout that night leading to and incorporating the murder of the two victims.

The Crown has also sought to rely upon the evidence of the actions of the accused and Beckett after the murders were committed. In this context, reference was made to the presentation of a false alibi, the burning of clothing, and the taking of considerable effort to clean the accused man's motor vehicle. In the course of his submissions, Mr Mullaly submitted that there could be very good reasons, quite independently of any involvement in the crime itself, which would explain joint activity of this kind. Clearly, an argument can be advanced that the accused may have been afraid of being wrongly implicated in a crime which he did not commit. I consider that this is a matter which is appropriately addressed by the jury in the context of this particular case.

Again, as I have suggested some of these various pieces of evidence may, separately considered, be perceived by the jury as possessing different degrees of importance. Some, indeed, could be regarded as quite inconsequential when so approached. However, in combination, they can be perceived to constitute a factual matrix which it would be open to the jury to regard as providing strong support for the impugned and otherwise untrustworthy witness.

Finally, the Crown contended, as I have earlier mentioned, that what are asserted to be two deliberate lies indicative of a consciousness of guilt of murder could provide corroboration for the evidence of Beckett. For the reasons to which I have already adverted I do not consider that the matter should be left to the jury on that basis. It appears to me to be likely to introduce undue complexity and possibly compromise the capacity of the jury to deal properly with the issue of consciousness of guilt in the course of their deliberations.

CROWN'S OUTLINE OF RELEVANT CORROBORATION PRINCIPLES

1. Macrossan J observed in R v Kerim (1988) 1 Qd R 426 at 447 that:

'it is well understood that the corroborative evidence need not, by itself, have the effect of proving guilt but what will be expected of it and the area in which it must operate will depend on the issues at the trial and the respective versions contended for by the prosecution and the defence."

[Against this background it is important to note the point made in West's that participation in the rapes leads to an inference of participation in the murder.]

2. The High Court in Doney has stated (at 211) that:

"in the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events related by the accomplice".

3. The High Court has also confirmed that the essence of corroborative evidence is that it confirms, supports or strengthens other evidence in the sense that it renders that other evidence more probable. See Doney at 211; The Queen v Raynor at 30 per Winneke P.

4. It is well accepted that the corroborative evidence need not by itself prove guilt.

5. Further, it is trite that it is not necessary that the corroborative evidence confirm all the circumstances of the crime; see Baskerville at 665.

6. Corroboration may be circumstantial evidence. See Baskerville at 667; Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 211; R v Kerim (1988) 1 Qd R 426 at 447; The Queen v Rayner CCA Vic 25 March 1998 per Brooking JA at p.l; The Queen v Apps CCA Vic 26 May 1998 at 9.

7. There may be independent facts and circumstances proved in the case which are capable in combination of providing an independent source of corroborative evidence. Although a particular fact or facts, when looked at in isolation, may not tend towards the implication of the accused, the combined weight of those facts may do so. Put another way, corroboration can be found in a chain of circumstances. See R v Tadic Vic CCA 31 August 1997 at 27; R v Kendrick (1997) 2 VR 699 at 708; R v Nannette [1982] VicRp 8; (1982) VR 81 at 85; Tucker CCA NSW 13 April 1992 per Lee LJ at 8.

8. Corroborative evidence may have some consistency with both the Crown and defence versions, provided it is not intractably neutral. It must be capable of being regarded as more consistent with guilt than with innocence. See R v Kerim at 447; R v Pisano (1997) 2 VR 342 at 347-348; R v Kendrick (1997) 2 VR 699 at 709; BRS v R at 291 per Toohey J; R v Zorad (1990) 19 NSWLR 91 at 103; Kalajzich & Orrock 39 A Crim R 415 at 432-433; R v Nannette [1982] VicRp 8; (1982) VR 81 at 86.

9. Corroboration may be evidence of a fabrication of an alibi; The Queen v Rayner at 1 per Brooking JA ; R v Thorpe (1978) 66 Cr App R 6 at 18; Edwards v R [1993] HCA 63; (1993) 178 CLR 193; Tripodi [1961] VicRp 30; (1961) VR 186.

10. Likewise the destruction of evidence may amount to corroboration. See The Queen v Rayner at 1 per Brooking J.A; R v Rice (1996) 2 VR 406; R v Tripodi [1961] VicRp 30; (1961) VR 186 at 193.

11. Similar fact evidence can amount to corroboration; BRS v R [1997] HCA 47; 191 CLR 275; R v Kilbourne; The Queen v Rayner at 1-2 per Brooking JA.

The following evidence is to be evaluated in combination with the other evidence in the case including Camilleri's admitted presence throughout the journey and his defence that he was asleep.

2. Wilson's evidence that Camilleri was awake and driving the car when the girls were picked up.

3. The location of Lauren's torch in Ben Boyd National Park.

4. The location of the beer carton at West Wingan Track.

5. The geography and terrain at Fiddler's Green Creek.

6. A combination of the following facts and circumstances make more probable Beckett's account that the adventure was not carried out by one man alone. This evidence shows that the girls were transported hundreds of kilometres to many diverse places over many hours. The evidence that establishes the nature of the journey comprises:

a) location of Lauren's shirt at Old Wallagoot Road;

b) the location of Lauren's torch in Ben Boyd National Park;

d) the location of the beer carton at West Wingan Track;

e) the location of the girls' bodies at Fiddler's Green Creek.

7. Evidence which demonstrates that Camilleri and Beckett were acting together after the crime which makes it more probable that they were acting jointly during the crime .

8. The evidence that they jointly constructed a false story to give to the police - the creation of a false alibi.

9. Camilleri's admission in 1st Mura ROI that he was on speed that night.

10. Camilleri's lie in relation to the TV in the 1st Mura ROI.

11. Camilleri's admissions in 2nd Mura ROI that he was awake and alert at West Wingan Road.

1. The question of whether evidence amounts to corroboration is governed by the simple but fundamental principle

A. that the evidence independent of the accomplice must tend to confirm that the crime was committed and that the accused committed the crime.

Baskerville at 667, Doney at 211, Kendrick 705-6, Pisano 347, Rayner 30 per Winneke P.

2. The re-statement of this principle is important in the context of this case. It is not in issue that the crime of murder was committed by Beckett. What is in issue is that for evidence in this case to be corroborative of Beckett, the evidence must tend to confirm that Camilleri committed murder, by counseling Beckett or acting in concert with him.

3. In addition to the guiding principle set out above other relevant principles assist in the analysis of whether evidence suggested by the Crown is in fact capable of being corroborative. Those principles are:

B. The mere fact that evidence shows or might be considered to show that the accomplice is speaking the truth does not necessarily supply corroboration in law.

D. The evidence must be more consistent with guilt than innocence. It is not corroborative if it is intractably neutral.

E. Lies and inferences to be drawn from subsequent conduct give rise to special considerations as to what inferences can be safely drawn adverse to the accused. In particular the evidence can only be used as corroboration if the jury having set aside other explanations for the conduct or lies conclude that the lies or conduct are the product of the accused realising the truth implicates him in the crime.

F. Prior criminal conduct may amount to corroboration in certain special and limited circumstances. Those circumstances require careful consideration of the evidence and, given the prejudicial nature of the evidence, it is essential that the evidence satisfies the test for corroboration that is it tends to confirm the crime was committed and that the accused committed that crime.

4. The 12 items of evidence suggested by the Crown as amounting to corroboration will need to be analysed with reference to the principles set out above.

5. The defence submission is that upon proper analysis none of the evidence claimed by the Crown as corroboration in fact amounts to corroboration at law.

6. The evidence claimed by the Crown to be corroboration can be conveniently grouped:

(i) Evidence of the journey from Bega to murder scene (1-6)

(ii) Evidence of conduct after the murders including lies (7-11)

(iii) Evidence of previous conduct, the Gandarias incident.(12).

7. Generally, all this evidence tends to confirm is the route taken from Bega to Fiddlers Green Creek. It cannot shed any light on what happened to who and by whom along the way. The evidence is "intractably neutral." For example the absence of a boat at Eden wharf says nothing as to what happened in and around Eden. The presence of a torch at Ben Boyd also says nothing as to what happened there, if anything, and, if so, by who to whom at this place. [see Principle B, C, D]

8. Most importantly the evidence of the journey does not tend to confirm or make more probable that Camilleri committed murder as a counselor or as a party to an agreement to kill. The evidence may have the quality of tending to confirm Beckett's narrative of the journey, in that the fact that he says they went to various places is made more probable by the finding of items or the absence of a boat. The fact that the story of the journey is supported by the finding of the various items may take on the seductive appearance of corroboration, but this evidence does not on any construction or interpretation of it, make more probable that Camilleri was part of the murder committed by Beckett at Fiddlers Green Creek. Evidence which shows or might be considered to show that the accomplice is speaking the truth about various relevant events, does not necessarily supply corroboration in law. [see Principle A, B]

9. The combination of facts that reveals that significant distances were traveled does not make it more probable that the "adventure" was not carried out by one man. The evidence is not supportive of such a proposition and the evidence remains intractably neutral.

10. Leaving aside item 1, the semen stained shirt, each of the items 2-6 do not alone or together tend to confirm Camilleri's active involvement in any part of the journey let alone tend to confirm his involvement as giving the orders to kill.

11. The Wilson evidence that at time of pick-up Camilleri must have been in the driver's seat and awake cannot make more probable that at Fiddlers Green Creek, Camilleri gave orders to kill. The evidence merely sets the point the journey commenced, a fact which is incontrovertible but of no evidentiary value as corroborative of Beckett. [see Principles A, B, C, D]

12. The location of the torch at Ben Boyd: It cannot be inferred from the fact that Lauren owned a torch identical to the torch found at Ben Boyd that therefore she, as opposed to Nicole or Beckett, played any part in where this torch was found. It does not make more probable that the two men as opposed to one or none were involved in activity at this place. It does not make it more probable that any sexual assault took place, or, if so, by Camilleri. The distance of the torch from the carparking area of 7-1Om is of no assistance. To assert that it reveals someone and, if so who, got out of the car is to invite the jury to guess. The location of the torch does not tend to confirm or make more probable that Camilleri committed the crime alleged. [see Principles A, B, C, D]

13. The absence of the boat at Eden wharf, reveals no more than the journey may well have been through Eden and near the wharf. It does not tend to confirm that Camilleri played any role at all let alone as the counselor of murder. [see Principles A, B, C]

14. The VB box at West Wingan: The location of this item is intractably neutral. It does not tend to confirm that Camilleri played any role in this item ending up in the log. It tends to confirm that the car went down the track but it cannot reveal or make more probable anything that may happen there or what if anything the VB box meant. It does not make more probable Camilleri's involvement in the murder and cannot be considered as being more consistent with guilt. [see Principles A, B, C, D]

15. The terrain at Fiddlers Creek Green: The terrain does not make it more probable that Camilleri was involved in taking the girls from the track to the creek. There is no evidence independent of Beckett as to how the girls got to the place where he killed them. The evidence of the terrain in the general location must be more consistent with Camilleri's involvement and guilt. It cannot be said to be so in light of the evidence that the girls traveled to the Creek calmly (albeit tied and with, so Beckett says, both men). Also, if the girls were tied in some way, and were aware of Beckett's knife it cannot be said the terrain in and of itself meant two men must have been involved or make it more probable that two were involved.

16. Lauren Barry's Shirt: Insofar as the shirt is put forward as part of the items which reveal the journey, it is like other items not corroborative of the murders but merely establishes the journey.

17. Insofar as the shirt reveals that sexual activity did occur involving Camilleri and therefore giving rise to a motive to kill the girls, the evidence is not corroborative. For the evidence to have the necessary qualities of corroborative evidence it must be established independently of Beckett that the semen on the shirt was part of a rape. Beckett's evidence is that Camilleri raped Nicole Collins near to the scene where the shirt is located. All the evidence of friends and family is that Lauren Barry was wearing that shirt. Mrs. Wilson who observed the girls in front of her car said they were rugged up, that is had clothes on rather than being carried. There is no evidence independent of Beckett that there was rape, or if so, any evidence as to Camilleri being involved with Lauren Barry at all. In the circumstances it cannot be assumed that any motive was held by Camilleri or that one developed as a result of events that saw semen said to be his left on the shirt sleeve. [see Principle A]

Conduct after the murder including lies told to the police Items7-11

18. Generally, as to the use of lies and other conduct after the crime in question, great care must be taken that the evidence is not elevated to a status it does not deserve. In addition if the evidence of lies and other post crime conduct is to be further used as corroboration it is essential that the evidence and the inferences to be drawn have no other interpretation.

19. For lies and other conduct after the crime to be inculpatory it is necessary that the lies are told (and the other conduct be engaged in) deliberately, they must relate to a material issue, be told because the accused knew the truth would implicate him in the offence and reveals a knowledge of the offence or some aspect of it. Further the jury have to be told that if the lies or conduct have another explanation then the lies or conduct cannot be used for the inculpatory purpose - in this case as corroboration of Beckett.

20. Lies - alibi: The Crown contend that there was a jointly constructed story.

* This relies on Beckett and is not independent of him.

* If it were open to find it was a jointly constructed false story then it requires the jury to rely on Beckett to conclude that it was Camilleri who suggested this course.

* Further to use this conduct as corroborative it is necessary to exclude all other explanations and in particular that Camilleri was fearful of the false accusation that he was part of the murder as opposed to Beckett acting alone.

* If it is a lie what does it reveal. Must be told out of consciousness of guilt of the crime and reveal knowledge of the crime for it to be corroborative.

* Must be guilt as to the crime charged and not some other crime such as rape, abduction or assisting an offender.

22. Conduct: The Crown claims that there is conduct after the murder which shows Camilleri and Beckett acting together and this makes it more probable they acted jointly during the crime. The conduct spoken of would appear to be the events at Theodore's lookout and the washing of the car in Sydney.

23. In this case for the inference to be drawn that the two were acting together after the event as result of acting jointly in the involves

* relying on evidence which is not independent of Beckett; and

* the drawing of inferences adverse to Camilleri which are not the only rational explanations open.

24. With respect to the events at Theodore's lookout the jury would not be able to find that the two acted together in burning incriminating evidence without resort to Beckett**.** He alone says that Camilleri was involved. If it is open to find that clothes, and shoes were involved in the fire on the basis of Mr. Bennett evidence, it is impossible to conclude that it is more probable that Camilleri was involved. It becomes impermissible circular reasoning to conclude that as Beckett says Camilleri told him to burn clothes and clothes were burnt that this corroborates the self same sort proposition in that Beckett says Camilleri told him to kill the girls and as the girls were killed it is more likely Camilleri told him.

25. As to the washing of the car if the jury find they acted together to wash the car, for the inference to flow that in so acting together it is more probable that they acted together in the murder, the jury would have to exclude all rational inferences consistent with innocence. Accordingly to use the inference as corroboration of Beckett the jury must exclude they acted together to cover up the crime committed solely by Beckett and to avoid the real prospect of false accusations against Camilleri. Such an explanation cannot be excluded. Tulloh's evidence adds support to this contention. For the evidence to be capable of amounting to corroboration it must be more consistent with guilt than with innocence.

26. Admissions - as to using speed: Issue is joined by the Crown that Camilleri used heroin at all. Camilleri contended that he used heroin alone and mixed with speed. Any admission to Mura that he used speed is not an admission against interest that could confirm his involvement in the murders. It does not establish a lie, nor make more probable that he was awake because it does not effect the evidence that he used heroin as well.

27. Admission that he was awake and alert at West Wingan: Without Beckett there is no evidence that the place Camilleri speaks about is West Wingan Road. There is no evidence that he was alert, rather that wherever it was, he had heroin and thereafter has little memory of events. Even if accepted that he admitted activity that could found a contention he was awake and alert and the place was West Wingan such an "admission" does not tend to confirm his involvement in the murders. If he was awake and taking drugs it is intractably neutral or more consistent with innocence than guilt.

Events prior to the murder The Gandarias incident Item 12

28. Generally, great care is required in dealing with the use of propensity evidence. It is essential that the evidence claimed to corroborate is genuinely independent of the accomplice and that it more directly tends to confirm that Camilleri gave the orders as Beckett says he did. The contention that the propensity evidence be specific is based on the real prejudice that is contained in the evidence and the real risk that a jury will conclude that if he committed serious crimes before then Beckett must be believed when he says Camilleri committed murder on this occasion.

29. The main thrust of the propensity evidence is that it goes to the nature of the relationship. The evidence of the nature of the relationship on this occasion is solely from Beckett. Gandarias says that when with her, Camilleri was the dominant. On Beckett's version the dynamics at the murder scene are improbable. They are not made more intelligible by Gandarias' single encounter with the men. Because of the prejudice involved in Gandarias' evidence it is necessary that if that evidence is said to be corroborative that it clearly establishes that the relationship was of the kind that if the murder was committed by Beckett then it is more probable that it was done on the orders of Camilleri. The Gandarias evidence does not establish the relationship other than on that occasion Camilleri was more prominent than Beckett in the assaults on her.

30. Simply put that with all the evidence as to Beckett's behaviour it is open that Beckett acted alone in the killing. If so, it ought not be left that Gandarias' evidence permits the inference that if Camilleri was more dominant in the sexual assault on her then it is more probable that he ordered the killings at Fiddlers Green Creek.

31. If it is said that there are similarities between the two events that gives rise to the probability that both were involved throughout, then such similarities must be established independently of Beckett. If this is done then the so called similarities become so insignificant as to not support a contention that they corroborate Beckett

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