R v Camilleri [2001] VSCA 14

2. There is no doubt that on 6 October 1997 two schoolgirls, Lauren Barry, aged 14, and Nichole Collins, aged 16, were murdered in remote bushland at Fiddler's Green Creek. There is no doubt that in the ten hours before their death they had been repeatedly raped and that they had, in the hours of darkness and the early morning that followed, been driven long distances in a car in company with two men, Leslie Alfred Camilleri and his friend, Lindsay Hoani Beckett. There is no doubt that the two girls were murdered by Beckett. He ultimately confessed to the crimes and pleaded guilty without any committal and is now serving two life sentences. Camilleri stood his trial and Beckett was the main witness against him. He was convicted after a long trial and he too is now serving life sentences. Unlike Beckett, who will be eligible for parole after serving 35 years[1], Camilleri was sentenced to life without possibility of parole. He wishes to appeal against conviction and, in the alternative, sentence. He gave no evidence on his trial, which ran from 15 February to 10 April 1999. His defence was that he was in a drug-induced sleep for most of the long car journey and that his companion, Beckett, alone violated and murdered the two girls, who had gone missing in New South Wales near Bega in circumstances which quickly became notorious and whose fate was not known until several weeks after their disappearance.

5. Both girls being dead, the crimes having from the outset attracted very widespread publicity, Beckett's application for leave to appeal against the minimum term having already been dealt with and Camilleri having been tried and sentenced, there is no point in our trying to protect the identity of the victims or their families. That has long been impossible.

9. It was on Friday, 3 October 1997 that the father of Nichole Collins set up a campsite, not far from his home, for the long weekend. It was at "White Rock" on the Tathra-Bega Road and was for use by his daughter and her friend Lauren Barry and other boys and girls from the Bega area. On Sunday, 6 October, Camilleri and Beckett were driving near Bega in a car - a Ford Telstar - belonging to Camilleri or perhaps his de facto wife. They had been drinking beer and injecting each other with amphetamine. The back doors of the car were locked and could only be opened from the outside. The two men were no strangers to each other. They had been friends for two or three years. For a few months Beckett had lived with Camilleri and his de facto wife. By October 1997 the two men were living together in Yass with a man named Andrew Smart in a flat occupied by Beckett. The three evidently made it a practice to steal cars together. On the weekend beginning Friday 3 October Camilleri and Beckett went to Bega. They took with them a pink painted television set belonging to Smart and some cheques of his. (The television set was to figure in the trial.) In Cooma, en route to Bega, Beckett bought a carton of Victoria Bitter stubbies. (The torn-off top of this would also figure in the trial.)

12. Only about three weeks before the events about to be related - on 14 September 1997 - Camilleri and Beckett had, according to Beckett and the woman concerned, picked up a young woman ("Ms G.") in the same car in Canberra and held her captive for about 12 hours, raping her repeatedly. (That this evidence was let in and what the judge told the jury about it are grounds of appeal.)

16. At about 9 o'clock on the night of Sunday 6 October Lauren and Nichole, as we shall call the victims, had left their friends at the White Rock campsite and walked down the dirt track to the Bega-Tathra Road on their way to a party. The Crown case, which we must summarise at some length, was that Camilleri was driving the car along that road; that he pulled up and the girls got into the car of their own free will; that after a visit to the Tathra Beach the car was supposed to be returning to the campsite, to enable the girls to tell their friends they were going to a concert in Bega, when it changed direction and Camilleri and Beckett each produced a knife and Camilleri, who was driving, told Beckett to stab the girls if they tried anything stupid. Camilleri - we continue to summarise the Crown case - drove the car down the Old Wallagoot Road, which ran off the Bega-Tathra Road not far from the girls' homes, until the car reached a rubbish dump. Here Beckett raped Lauren both vaginally and orally notwithstanding that she told him she was a virgin and was having her period and although she was wearing a sanitary pad. While this was going on Camilleri was raping Nichole orally. She was wearing her high school jacket. (On 6 October 1997 clothing belonging to Lauren was found by the side of the Old Wallagoot Road, some distance from the rubbish dump. It included the shirt she was wearing when she last left the campsite. A seminal stain on the shirt was found by DNA testing to match fully a blood sample from Camilleri. Only one person in a million would have had that combination of DNA types. These pieces of evidence were among those at the forefront of the Crown case and were said to be irreconcilable with the defence that, Camilleri being in a drug-induced sleep during the journey, Beckett alone raped and murdered the girls.)

19. After the stop in the Old Wallagoot Road the car drove off in the direction of Merimbula, with Camilleri still at the wheel. They passed through Merimbula and headed towards Eden. The men injected themselves with amphetamine on the way. Before reaching Eden they stopped at Ben Boyd National Park because (as Camilleri told Beckett) he wanted to rape Lauren. The car drove from the main road to a gravel area, where it stopped. Camilleri was still driving. He took Lauren from the car and through some bushes and returned about 20 minutes later, saying that he "couldn't get it in". In the meantime, Beckett had raped Nichole orally. (A small black rubber torch and a tampon were later found in the national park at the carpark.

Lauren owned an identical torch and the girls had it with them when they disappeared. Nichole was menstruating and using tampons at the time.)

23. Camilleri next drove through Eden and stopped at the edge of the town, where a bitumen road came to an end. Here he made Lauren give him oral sex while Beckett did the same to Nichole.

26. After this Camilleri told Beckett to drive and he did so, driving off in the direction of Orbost. In the course of this journey Camilleri raped Lauren orally in the backseat of the moving car. They crossed the border and arrived at Wingan Point. Camilleri said to Beckett he "wanted to have another go at" Lauren and told him to drive along a gravel road into the forest, which he did, stopping near a big log as Camilleri asked him to. By now it was daybreak. Camilleri got out of the car with Lauren, tore the lid off the Victoria Bitter stubby carton and put it on the big log to serve as a marker for Beckett, so that he would know where to stop on his return. Camilleri told Beckett to come back in 10 to 15 minutes. Beckett drove off with Nichole and returned after a short time as requested by Camilleri. He saw Camilleri and Lauren emerging from the forest. She was for the first time wearing Camilleri's T-shirt. With all four back in the car, Beckett continued to drive towards Orbost and Camilleri fell asleep. When he awoke and was told they were going towards Orbost he complained that he wanted to go to Sydney so that the girls could be thrown off a bridge. At about this time he said repeatedly, "They can't go back".

30. On reaching the Cann River the car, still driven by Beckett, stopped travelling towards Orbost and went instead up the Cann River Highway. One of the girls asked if they were going to be killed and Camilleri replied that they were only going to be tied up so that the men could get away. Camilleri told Beckett to find somewhere to turn off the highway and so Beckett turned off at the bridge over Fiddler's Creek, which is not far south of the New South Wales border. He drove some distance up a dirt track and stopped. He tied Nichole's hands with a cloth and Camilleri opened the boot and they both cut lengths from a long piece of rope stored in the boot. Beckett used a length of rope to tie Nichole's hands and Camilleri used another length to tie Lauren's hands. The girls asked more than once if they were going to be killed and Camilleri said that they were only going to be tied up so that the men could get away and would not be caught for raping them.

33. The men led the girls along the dirt track, which ran along a ridge, and then led them through the dense bush for about 150-200 metres, down to a creek. Camilleri was in front, leading Lauren by a six foot length of rope tied to her hands, and Beckett was behind, leading Nichole. It was a very remote and isolated place. At the creek, Camilleri told Nichole to go in the water and wash all the sperm from her vagina. Beckett untied her and she took off her clothes and squatted in the creek and did as she was told. She then dressed herself and Beckett tied her hands with rope again. Camilleri untied one of Lauren's hands. The six foot rope was still tied to her other hand and he was using this to restrain her while swearing at her and telling her not to whinge as she took off clothing and washed herself out to his satisfaction. Then she put on her clothes again. Camilleri made both girls lie on their stomachs on the sand by a large uprooted tree. He made gags by cutting strips from the jeans Lauren was wearing. (Each man had taken his knife with him to the creek.) Camilleri told Beckett to gag Nichole. Before Beckett pushed the gag into her mouth Nichole asked again if they were going to let her go. There was no reply. Camilleri not only gagged Lauren but used a rope to tie her legs and pulled them up behind her buttocks, with her hands tied behind her back and a rope around her neck and twice around her mouth. Camilleri then told Beckett to take Nichole up to the top of an embankment and tie her to a tree, which he did, first untying her hands and then making her sit at the base of the tree while her hands were tied behind it.

36. Next, halfway down the embankment, Camilleri told Beckett to go down and drown Lauren and then go up to Nichole and kill her. Beckett, expecting that they would kill one girl each, said, "No, I don't want to do it", but Camilleri replied, "Just do it, just fucking do it, or I'll stab you here and now." Beckett ran down the embankment and dragged Lauren into the water by the ropes and tried to drown her. She struggled and his knee got wet and so he became angry and pulled out his knife and stabbed her in the throat. As soon as Lauren stopped moving he ran up the embankment to Nichole, who said to him, "You're going to kill me, aren't you?" He told her to shut up and cut her throat three or four times. She struggled and tried to get off the ground, tied to the tree as she was. And so he kicked her a number of times and then tried to keep her down on the ground with his foot. Next he tried to stab her in the throat. After this he took the knife in both hands and stabbed her in the chest. Once Nichole was dead he gathered up the ropes and gags and ran back to the car with much blood on him. There Camilleri asked, "Did you do it?" and he said that he had. Camilleri kept asking him, "Did you see the demon?"

40. They left after only a few more minutes, with Camilleri driving. Beckett had the ropes and gags on the floor of the car in front of him. Once they reached the Cann River Highway they drove in the direction of New South Wales. At Camilleri's suggestion Beckett took clean clothes and changed out of his clothing, which was heavily stained with blood, put the discarded clothing with the ropes and gags and fell asleep. When he awoke they were near a lookout at the entrance to Canberra (Theodore Lookout). Camilleri told him to get a can of petrol from the boot and burn his discarded clothing. He did so, burning his shoes, socks, underwear, jumper, T-shirt and tracksuit pants. He burnt the ropes and gags too. Camilleri then drove to Tuggeranong shopping centre, where he bought a pair of shoes for Beckett, who, having burnt his own, had none. They paused for a light meal and set off again, with Camilleri still driving. By now it was about midday. They reached Lake Burley Griffin and on Camilleri's instructions, when the car was on the Commonwealth Bridge, Beckett threw their two knives out of the car window and into different parts of the lake. (One of the knives was later recovered by police divers. It was exactly the same as one which Beckett had been seen handling shortly before it disappeared from its owner's home.) Camilleri headed in the direction of Yass, where the two men lived, and Beckett fell asleep. When he awoke the car was pulled up at the side of the road outside Canberra. It was Camilleri's sister who woke him up and Camilleri drove the car to her home. Then the two men made a brief visit to Camilleri's former flat. Next they went to Beckett's flat, where the two of them were living with Andrew Smart. (Smart was dead by the time of the trial.) Camilleri's concern at this stage was to recover from Smart some money that was owed for drugs. The three men went into Canberra - apparently on Tuesday 7 October - and committed some crimes together. The three then drove to Sydney, on about Wednesday 8 October, still travelling in Camilleri's car, and stayed with Camilleri's brother, Michael Tierney, for several days. A few days later, when Camilleri, Beckett and Smart were in Campbelltown, they took Camilleri's car to a car wash named Car Lovers and spent six hours or more cleaning it most thoroughly. Not only the carpets but also the seats were removed. The carpet was shampooed and vacuumed several times. The boot was thoroughly cleaned, as was the outside of the car. (Camilleri was later to admit to the police that the three men had given the car a very good cleaning at about this time.)

43. About a week after the abduction of the girls, Camilleri, Beckett and Smart drove to the Theodore Lookout in Canberra, where Beckett poured more petrol on the remains of the burnt clothing and burnt them again. It was at about this time that Camilleri and Beckett returned to the Bega area in an unsuccessful search for the pink television set which, just before the girls entered the car, Beckett, to make room for them, had removed from the rear seat and left at the side of the road. (There was a good deal of evidence at the trial about the sighting of this television set and its removal by a council worker to a rubbish bin.)

46. The Crown relied on other evidence to show that at the time the girls first got into the car Camilleri, far from being insensible, was driving it. Part of this was the evidence of Glenis Wilson, which the Crown said showed that Camilleri was driving the car at a time when Beckett was talking to the girls at the side of the road, shortly before they first got into the car. (Camilleri had told the police that when the girls first entered the car Beckett was driving it, he himself being so affected by heroin as to be incapable of driving.)

50. Now we must go back to what happened after the killings. On 25 October, about three weeks after the abduction, a stolen car searched by police in Canberra after its occupants had fled was found to contain maps of the Bega area and some belongings of Beckett. This was reported to the Bega Task Force, which interviewed Beckett on 5 November and Camilleri on the following day. Each told the same story, which, according to Beckett, had been made up by Camilleri for them both to put forward. The story was that on Sunday 5 October they went to the Bega festival and then visited Yass and Canberra and ultimately arrived in Sydney; that they knew nothing about the girls apart from what they had read in the newspapers; that they had not gone to Tathra; and that they had not jettisoned a television set at the place where one was found on the Bega-Tathra Road, although Camilleri said that he might have had a television set in his car and might have got rid of it somewhere near Bega by leaving it in front of or behind (he said both) St. Vincent De Paul premises.

53. On 12 November the Task Force interviewed Beckett again and he made a full confession. Later that day he went with police to a number of sites and at Fiddler's Creek helped them find what was left of the bodies. That of Lauren was beneath the roots of a big fallen tree which lay across the creek. That of Nichole was among the saplings.

56. On the day of Beckett's confession, and after he had made it, Camilleri was again interviewed at Goulburn, where he had been in custody on other charges since 27 October. The police told Camilleri of Beckett's confession and he gave the following account of events:

"We picked up the girls and went to the beach. I had a shot behind the shed. While the girls were drinking I was trying to OD. We drove around with them. I was asleep most the time. Beckett told me he dropped them off at home. I remember waking up and seeing the girls and then later I asked Beckett where we were and he said Victoria, on the main road somewhere. And I went off my head. I told him to go home, get the fuck out of here. Then I saw him walking out of the bush. He had blood all over him. Told me he cut his finger."

"I said: `Did he tell you how he cut his finger?' He said: `No, he had a knife though.' I said: `How do you know that?' He said: `I saw him throw it out of the car.' I said: `Where was that?' He said: `On a bridge. I think it was in Canberra somewhere.'"

62. Next a record of interview was made, 53 pages long. Because of the answers given in it, quite apart from its length, one cannot provide a summary of reasonable length which adequately conveys the tenor of the interview and its effect upon the mind. Those who wish to form an opinion on the strength of the Crown case should read it in full; we shall come back to it in dealing with the question whether that case can be described as overwhelming. It is enough now to note that in the course of the interview Camilleri said that after going to the music festival in Bega he and Beckett went under a bridge, where Beckett injected him with heroin and also amphetamine, and he went to sleep; that when he awoke Beckett was driving the car on the road between Bega and the beach - he himself being unable to drive because of the heroin - and that Beckett stopped the car and talked to two girls, who got into the back seat after Beckett had taken a television set from there and put it on the side of the road; that he then passed out; that they went to the beach, where Beckett and the girls were drinking while he went behind the surf club shed and prepared a mixture of heroin and amphetamine with which Beckett then injected him; that they all got into the car and he passed out; that when he came to he saw a sign showing that they were at the Victorian border and that he said to Beckett, "Take me back. What the fuck are we doin' all the way here?"; that Beckett then pulled up at a dirt track; that here Beckett injected him with heroin and he went back to sleep; that he then felt someone touch him on the head; that when he woke up they were on top of a big hill and Beckett was coming up from the bush; that he heard some screaming and then he woke up and Beckett was walking up the hill and had blood all over him; that he had been yelling out "Lindsay" for ten minutes before Beckett appeared, coming up the hill with blood all over him; that when he asked what had happened Beckett said, "I was having a shit and I fuckin' cut my finger"; that Beckett had a fair bit of blood on his pants, shoes and shirt but that he felt that a cut finger would explain that; that Beckett got in the car and drove off and that he told Beckett that he smelt like a slaughter house; that he then went back to sleep and when he woke up they were in Canberra; that Beckett set fire to something on the side of the road, using petrol, and that what he burnt was a plastic bag containing what Beckett said was all the papers from a stolen car - earlier in the interview Camilleri had described what was burnt as papers from a stolen car and then as "those clothes"; that Beckett then continued to drive and that when they reached Tuggeranong he bought Beckett a pair of shoes because Beckett told him he had left his shoes behind by mistake somewhere - earlier in the interview he had said that Beckett had asked him to buy a pair of shoes because there was blood all over his shoes; that when they were driving across a bridge in Canberra Beckett threw out of the window a knife which he said was broken; that Beckett probably threw two knives out of the window; that when they arrived in Sydney he saw a newspaper account about the missing girls and said to Beckett, "I hope you didn't do" - meaning kill - "those girls"; that while the two men were with the girls he might have said hello to them but that he did not talk to them because he was asleep most of the time; that after going to Sydney "we" had gone back to the place where Beckett had burnt the clothes and Beckett had burnt them again.

66. Beckett's evidence was that he made room for the girls to get into the car by taking a pink painted television set from the rear seat and leaving it at the side of the road. There was abundant additional evidence confirming that a television set had been left at the side of the road at the place in question. It had been stolen by Beckett and Camilleri from their companion Andrew Smart because of Smart's failure to pay Camilleri some money due for drugs. Beckett's evidence was that about a week after the killings he and Camilleri returned to the Bega area, trying to find the television set. It was part of the Crown case that Camilleri was extremely concerned that the television set would link him to the killings. In his record of interview made on 6 November - the one in which he claimed never to have set eyes on the girls - Camilleri gave answers about the television set which could be regarded as very unsatisfactory. He said he could not remember whether there had been a television set in the car; that he took "some stuff" belonging to Smart and threw it out when they were in Bega behind - he also said in front of - a house belonging to St. Vincent De Paul; that he had taken a television set belonging to Smart (a moment later he said he did not know whether he had taken it); that he did leave an old wooden television set in front of St. Vincent De Paul's premises; that he did not know whether it was a television set or something else. When interviewed on 12 November, knowing that Beckett had confessed, Camilleri said that there was a television set in the back of the car and that Beckett, not he himself, had put it on the side of the road so that the girls could get in. He said it was a big set. Asked whether they had ever gone back for it, he first did not reply and then said no.

70. The Crown also relied on the evidence of Gillian Tulloh, a psychologist at the Goulburn prison. Her evidence was that she made a suicide assessment of Camilleri at the prison in November 1997, when he was depressed as a result of other criminal proceedings against him. The jury were simply told that there were events quite unrelated to the offences for which he was being tried by them. In fact Camilleri had been charged with several offences of rape against a child who was his de facto wife's daughter. The resulting trial had been aborted on 10 September 1997 and he was on bail awaiting retrial on those charges at the time of the Ms G. incident and at the time of these killings. Ms Tulloh gave evidence that she made a suicide assessment of Camilleri on 3 November 1997 and saw him again three days later. This was after he had been interviewed by the police on that day and had made the record of interview putting forward the agreed false story. When Ms Tulloh saw him on 6 November she knew he had been interviewed by the police about some matter but did not know what it was. She asked him what had happened and he told her that the police had been to interview him over the disappearance of the two girls in Bega. She said that in the course of her interview with him the accused was extremely distressed and had difficulty in maintaining a consistent train of thought. He said to her a number of times, of the police, that they knew about "the telly", and said that there had been a television set in the back of the car; that Beckett had told him that they had dropped it off at St. Vincent De Paul; that he did not know where he had been; that he had had a large shot of heroin and had blacked out; that the next thing he remembered was waking up in Canberra; and that he and "Mick" had found a bag of bloodstained female clothing and a towel at Beckett's flat and that they had used petrol to burn it. (In the latter part of his interview on 12 November Camilleri told the police that about ten days before that interview he had come across some clothes that belonged to Beckett with blood on them at the back of a laundromat in King's Cross when he was with his brother Mick and that he and Mick had burnt the clothing because they thought that Beckett was trying to set them up.)

74. Camilleri, as we shall continue to call the applicant, stood mute and called two witnesses, a forensic pathologist, whose evidence need not be mentioned, and a forensic scientist, whose evidence also need not be mentioned having regard to the course of argument. About 70 witnesses in all were called. Then the Crown addressed for rather more than a day. The defence address went for something like 3½ days. The judge charged the jury for well over two days, reviewing the evidence and the submissions with great care and in very great detail.

77. On at least eleven occasions the judge gave counsel a chance to take exception to his charge. This produced very little in the light of what are now said to be fatal defects in the charge. The present case is yet another example of a criminal trial which is now said to have miscarried as a result of errors which to a very large extent were not complained of below.[2] When Camilleri applied for leave to appeal against his conviction, after a trial at which he was represented by two counsel, the senior of whom has most extensive experience in the criminal jurisdiction, he relied only on the alleged erroneous admission of the evidence of the earlier rape victim (Ms G.) and the "unsafe and unsatisfactory" ground, of which no particulars were given. In what we regret to say must be described as the usual way the notice of appeal was extensively amended at the last minute, by which we mean a few days before the long vacation, by the addition of five grounds. Of these, grounds 3 and 5, to which we turn in a moment, concern the directions given about consciousness of guilt and corroboration respectively, while the remaining grounds are as follows:

"4. The learned trial judge erred in his directions regarding the evidence of uncharged acts of rape and violence perpetrated against [Ms G.]. ... 6. The learned trial judge erred in failing to leave manslaughter to the jury. 7. An aggregate of errors caused the trial to miscarry."

84. In considering grounds raising points not taken below, it is helpful to bear in mind what has recently been said by Gleeson, C.J.[3] and by Hayne, J.[4]

"3. The learned trial judge erred: (a) in his directions concerning lies and consciousness of guilt; (b) in directing that `[i]f ... you come to the finding that someone has told a lie by reason of consciousness of guilt, you have in fact found that person guilty because you have decided that the lie has been uttered because the individual is aware of his own guilt, so inherent in that notion is a finding of guilt'." "5. The learned trial judge erred in his directions concerning corroboration."

"Finding of guilt inherent in finding of consciousness of guilt"

93. What the judge told the jury about consciousness of guilt and his ruling on what pieces of evidence should be left to the jury as capable of corroborating Beckett's evidence were both affected by his view of the appropriate approach by a jury to the question of consciousness of guilt, particularly as regards the standard of proof to be applied. The connection between the two grounds was recognised by counsel, they being argued consecutively for Camilleri and together by the Crown. It should be made clear at the outset that notwithstanding the breadth (on one view) of ground 3(a) it has not been suggested as regards this ground that the charge suffers from imperfections which are commonly put forward when a trial is said to have miscarried by reason of failure to direct the jury in accordance with Edwards v. R.[5]. By this we mean that it is not, for example, contended that the judge failed properly to identify the lies put forward by the prosecution as manifesting consciousness of guilt; or that the judge failed to make it clear that what was relied on as a lie had to be shown to be a deliberate lie; or that the judge failed to make it clear to the jury that they could use the lie in the way suggested by the Crown only if they were satisfied that the accused told it because he knew that the truth of the matter about which he lied would implicate him in the commission of the offence. Nor is it suggested that the lies relied upon did not relate to a material issue, or that the need for this was not made clear to the jury, or that it was not open to the jury, having considered other possible explanations, to conclude that the lie was told because the accused knew that the truth of the matter would implicate him in the offence. The case is an unusual one, in that the real point sought to be made under ground 3 relates to a particular view taken by the judge - in this and, it would seem, other cases - and expressed by him in the passage in the charge from which ground 3(b) is drawn:

"Now I want to deal with two pieces of evidence upon which the prosecution has placed some particular reliance as themselves indicating what is termed a consciousness of guilt. The first thing I want to say to you is this concept of consciousness of guilt is one which has proved to be somewhat troublesome in the law because it is very easily misunderstood. If, and you will appreciate why this is so, you come to the finding that someone has told a lie by reason of consciousness of guilt, you have in fact found that person guilty because you have decided that the lie has been uttered because the individual is aware of his own guilt; so inherent in that notion is a finding of guilt."

97. His Honour went on to identify the two lies relied on by the prosecution as demonstrating consciousness of guilt, the first about his whereabouts on the night of the girls' disappearance and the second about the television set, and no complaint is made about this.

Consciousness of guilt and the corroboration ruling

101. The judge's view, expressed in the passage cited, that if a jury found that an accused person had told a lie by reason of consciousness of guilt they had in fact found that person guilty, was the foundation of his ruling that the two lies relied on by the Crown as manifesting consciousness of guilt should not be left to the jury as evidence capable of corroborating that of Beckett.

104. At the virtual conclusion of the evidence the judge received lengthy written and oral submissions concerning what evidence could be regarded as corroborating that of Beckett. Quite early in this discussion junior counsel for the Crown identified the two lies we have already mentioned and said that the Crown submitted that they were of particular significance and went to such material circumstances as to make it proper to rely on them as showing consciousness of guilt and so to rely on them as corroboration. His Honour then said that once a jury found consciousness of guilt, the issue of guilt had been determined, so that it was unnecessary to consider whether the evidence of a witness was corroborated. This discussion as a whole in the absence of the jury made it plain that it was his Honour's view that a jury could use a lie as manifesting consciousness of guilt only if it was satisfied beyond reasonable doubt that a deliberate lie had been told and that the reason for the telling of it was consciousness of guilt. He was later to direct the jury in accordance with this view, which appears clearly from this passage in the ruling on corroboration:

"The first [matter in dispute] 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."

109. Consistently with his view expressed during discussion and also in his ruling on corroboration, the judge directed the jury clearly and emphatically that before finding that a lie showed consciousness of guilt they had to be satisfied beyond reasonable doubt that the lie had been deliberately told, that it related to a matter of importance in relation to the crime of murder and that the only reasonable explanation for the telling of the lie was awareness of guilt of the crime of murder. He also emphasised that in deciding whether the Crown had proved guilt the jury had to consider not pieces of evidence in isolation but the evidence as a whole. The Crown had put a submission, in accordance with what is laid down in Edwards, that in a case like the present, where the lie simply forms part of the body of evidence to be considered by the jury, they may conclude that a lie exhibits consciousness of guilt without applying any particular standard of proof. What is laid down in Edwards in this regard has not, so far as we are aware, been departed from or called in question in any later decision of the High Court.[6] Despite some persisting judicial comments on the question of circularity[7], intermediate appellant courts have of course had constant recourse to Edwards as the leading authority in this field and have accepted, as of course they are bound to do, the distinction drawn in Edwards as regards the standard of proof between cases like the present, where the supposed lie is no more than part of a body of evidence, and other cases.[8]

112. It may be that in forming the view which he did, and charging the jury as he did, his Honour was influenced by certain dicta in a decision of this Court[9]. Be that as it may, those dicta do not and could not impinge upon the rule as to the standard of proof laid down by the High Court in Edwards. The direction given in this case about the standard of proof was undoubtedly more favourable to the accused than the appropriate direction according to the law as authoritatively established by Edwards. The judge's observation in his charge that inherent in the notion of consciousness of guilt was a finding of guilt was itself inherent in his own view on the subject. No exception was taken to it notwithstanding that the distinction drawn in Edwards between cases of the present kind - a lie as part of the evidence - and other cases had been relied on by the Crown and notwithstanding that Edwards has become part of the armoury of every experienced member of the criminal bar. Mr Croucher submitted that there was no forensic advantage to the defence in not complaining of the direction impugned in ground 3(b). We do not agree. Any properly argued submission would have had to accept that the impugned direction was, having regard to Edwards, based on a view of the standard of proof too favourable to the accused.

115. We do not think it can be said that the accused man has been, or may have been, prejudiced by what was said in the charge. Taken as a whole, the charge would have had the effect that the jury would not use the lies as showing realisation of guilt unless they were, on the evidence as a whole, satisfied of guilt beyond reasonable doubt. The suggestion now put forward that the judge had, by the impugned direction, in some way withdrawn from the jury the issue of guilt is far-fetched. The whole of the charge makes it clear to the jury that this is for them and for them alone. If the accused man's counsel had thought that there was any danger of the jury's being misled they would undoubtedly have intervened.

118. Notwithstanding our view on this point, we wish to make it clear that in our opinion it is very undesirable to tell a jury that if they find that the accused has told a lie by reason of consciousness of guilt they have found the accused guilty.

121. Under ground 3 it was also argued, very briefly, that that the judge should have warned the jury that whenever the Crown was suggesting that what the accused had said in his principal record of interview (that of 12 November) was not true they should not treat any of those lies as an admission of guilt. Whether this falls within the ground is doubtful but in any event the point has no substance. Having regard to the conduct of the case, including the addresses, and the charge, such a direction was not necessary and might have confused the jury. Significantly, it was never sought at the trial.

Consciousness of guilt left to jury on limited basis

125. After the decision in Edwards and the numerous attacks on verdicts in this State on the ground that the trial had miscarried because of what had been said or not said to the jury about consciousness of guilt, there arose a marked reluctance on the part of Crown prosecutors to rely, and trial judges to permit reliance, on consciousness of guilt. Attempts have been made in this Court in recent times to correct what appeared to it to be an undue reluctance.[10] In the present case both the Crown and the judge were, not surprisingly, having regard to the number of applications for leave to appeal alleging that consciousness of guilt had caused a trial to miscarry, extremely cautious about the role which it was to play in this trial. The question arose before a jury was empanelled, at a time when a number of questions about the reception and use of evidence were being discussed. Junior counsel for the Crown said that it relied on the fact that Beckett and Camilleri had, in their first police interviews, put forward substantially identical false stories about their movements on the night of 5 October. This, said the Crown, showed concerted action, as did the burning of the clothes, the throwing away of the knives and the cleaning of the car. Thereupon the judge confirmed with counsel that the false alibi was relied on, not as showing consciousness of guilt, but only as further evidence of concert. His Honour went on to express concern that the complication of consciousness of guilt should not be introduced in relation to "a relatively small piece of evidence". The following exchange then took place between junior counsel for the accused and the judge:

"MR MULLALY: [W]hat the Crown intend to do is to put this evidence forward and then confine it in some way that wouldn't permit the benefit that may arise from the proper direction as to the consciousness of guilt that the jury should get. HIS HONOUR: I would be quite happy to give it if you wanted me. [Emphasis supplied.] MR MULLALY: That's the difficulty. HIS HONOUR: The position, Mr Mullaly, is that when I spoke about the complication with respect to consciousness of guilt, I was rather thinking of myself than anyone else. MR MULLALY: But the difficulty arises that if the Crown, as the argument favoured them, were not wishing to put forward - - - HIS HONOUR: He capitulated to my obvious reluctance to introduce that question. MR MULLALY: That's right. ... [I]f the Crown ask that there be an inference drawn that if they were acting cooperatively after the event, that they therefore were acting cooperatively before, it raises this problem, that other inferences are open and to explain those other inferences it is necessary that the defence is put in the peculiar problem that ... arose that there may be other reasons of guilt for which these explanations follow. ... HIS HONOUR: I take your point in relation to this, Mr Mullaly, but I am confronted with a situation in which there are a series of actions undertaken for which they are both present after the event. I am going to have to provide to a jury an instruction as to how those actions can be viewed and the manner in which they can deal with them. It appeared to me that it may be possible to deal with this piece of evidence as just another incident of no different character from any of the other pieces of evidence. It is an instruction and an area with which I would have to deal in any event. The one thing that I did not think made sense was to elevate this particular piece of behaviour beyond any other piece of behaviour and, if one were dealing with the kinds of issues of the inferences to be drawn from behaviours after the event, various burning of the clothes and the cleaning and all that kind of stuff, are things with which I will have to deal. I can't avoid that. What would be the problem of incorporating this piece of evidence in that scenario as being just another piece of that type of behaviour?"

Judge's offer of a further direction declined

130. Mr Mullaly then said that the problem with the particular piece of evidence, that is, the evidence of concerted false denials, was that the Crown would be playing Beckett's record of interview containing the false alibi "in a self-serving sort of way". What the difficulty was said to be in this regard is difficult to see: it was not disputed that Beckett had made the record of interview setting up the false alibi and not disputed that it was false, and the placing of that interview before the jury would not, as it seems to us, have had a tendency to reinforce his evidence on any contentious question. Be that as it may, the judge observed that counsel was raising a different point and suggested that it could be overcome by the Crown's not putting in evidence Beckett's record of interview of 5 November and instead leading from Beckett and the police short evidence of the essence of what had been said in the interview. (This was the course actually adopted at the trial, although Camilleri's record of interview of 6 November and his record of interview of 12 November were both placed before the jury.) It was evidently thought by the judge that the accused man might suffer some forensic disadvantage if Beckett's interview of 5 November and Camilleri's of 6 November were both before the jury in full. The judge made his suggestion already mentioned and Mr Mullaly, having been given a moment for consideration or consultation or both, said, in answer to the judge's remark ("It's not a bad deal"), "That is, in a short-cut way, where we want it to be."

133. Although the immediately preceding discussion had plainly not been confined to the alleged concerted false alibi but extended to the other concerted conduct after the killings, and although Mr Mullaly had, in a passage we have already cited, submitted that consciousness of guilt difficulties might arise if the Crown relied on the actions of the two men after the killings as bearing on concert, no further objection was raised on Camilleri's behalf thereafter. It is to be borne in mind that, again in a passage which we have cited, the judge had said that he would be quite happy to give a consciousness of guilt direction if Camilleri's counsel wanted it. The result of the discussion before the jury was empanelled was that Camilleri's counsel did not persist with the suggestion that it would present difficulties if the Crown relied on what was said and done by the two men after the killings as evidence of concert and that it was accepted that nothing would be said to the jury on the question of consciousness of guilt as regards that conduct. The subsequent conduct of the trial, including in particular the failure to take exception, confirms that this was the position.

136. Mr Croucher advanced to us the argument, not put at any stage below, that the jury should have been given an Edwards direction in relation to what may be called the subsequent words and acts. He did, we think, in the end concede that the ground did not cover this point. No application was made to amend further the grounds of appeal. Had such an application been made we would not have been in favour of granting it, having regard to our view on the merits of the point. True it is that the judge, in summarising the Crown's submission about the subsequent words and acts, used the words "to conceal their involvement in the murder of the two girls". This phrase assumed no significance at the trial: counsel took no point then with regard to it. Mr Croucher accepts that, in accordance with the understanding on which the trial had at all times proceeded, the Crown in fact did not invite the jury to use the putting forward of the false alibi and the acts of the men after the killings as showing a realisation of guilt and that they were relied on only as evidence of continuing concert.[11] As is shown by the passage already set out from the discussion preceding the empanelment of the jury, the accused man's counsel was offered by the judge the direction which it is now said should have been given, but declined it. He had the best of forensic reasons for doing so. The course he adopted is by no means decisive, but it is significant. In his final address counsel invited the jury to attach no weight to the identical false alibis or the acts of the accused after the deaths, saying that his client had obviously panicked and co-operated with Beckett out of fear of being falsely accused. The judge reminded the jury of this submission. In all the circumstances we are not persuaded that the accused man was prejudiced at his trial in the way suggested.

140. With all respect to the judge, who dealt with care with numerous problems in the course of this long trial, we can see no reason why the Crown should not have relied on Camilleri's record of interview of 6 November as evidencing consciousness of guilt. The same may be said of his oral statements which immediately preceded the interview. And if it was open to the jury to find that he had joined with Beckett in burning the bloodstained clothing and other items, and in disposing of the knives, and in cleaning the car, then we can see no reason why the Crown should not have relied on that conduct also as showing consciousness of guilt. In the discussion before the empanelling of the jury the judge was plainly proceeding on the basis that the evidence of the substantially identical false alibis and the other conduct after the killings would be before the jury. It was never suggested that the evidence was not admissible as bearing on whether the men were acting in concert before and at the time of the killings; plainly it was admissible for that purpose. If two persons have jointly committed a crime, it is on the cards that they will act in concert in the days following its commission and that this concerted action will be directed towards preventing their successful prosecution, by giving the same false account and by cleaning, destroying or concealing physical objects that may incriminate them. We find this happening all the time. We must say that it seems to us both sensible and proper that the jury should have been asked to consider in this case whether what the two men said and did shortly after the killings showed them to be men still acting together and doing so with a view to escaping punishment for their crimes. That the jury were asked to consider the subsequent words and acts only as bearing on concert notwithstanding its prima facie guilty character is, we are afraid, the result of the regrettable but understandable tendency, already mentioned, not to rely on guilty lies and conduct in appropriate cases.

144. Having dealt with ground 3, we turn to the related matter of corroboration (ground 5). The judge's ruling, reflected in his charge and in the Crown's final address, was that the evidence capable of corroborating that of Beckett comprised evidence about the following matters: the abduction of and assaults on Ms G.; the observations of Glenis Wilson (relied on as showing that Camilleri was driving at the time the girls entered the car); the seminal stain on Lauren's shirt; the torch identical to Lauren's found some distance from the point which a car could have reached at Ben Boyd National Park; the beer carton marker on the log at Wingan Point; the physical features of the location at Fiddler's Green Creek (said to make it extremely improbable that one man could have taken the girls to their deaths); and the actions of both men after the murders. These actions were the burning of clothing and other items at the lookout, what was done with the knives, the cleaning of the car and the putting forward of the same false alibi.

147. The ground about corroboration is so widely expressed as to be useless as an indication of what is said to have gone wrong with this trial. Although there had been competing submissions about what should be left to the jury as possible corroboration, leading to the ruling already mentioned, most of the criticisms now advanced under cover of this vaguely expressed ground were raised for the first time in this Court. None of the points argued has any substance. In the end it was not submitted by Mr Croucher that any of the evidence left by the judge to the jury as possible corroboration was not capable of being so regarded. What he said rather was that Beckett gave evidence about each of the matters and that there was a danger that the jury would fail to ignore the contribution made by Beckett's own evidence in considering whether his evidence was corroborated. The judge should, it was said, have been more specific in his directions, making it clear to the jury, in relation to each particular matter, what evidence - that coming from Beckett - had to be ignored in looking for corroboration. But the judge, who charged the jury for well over two days, was never asked by counsel to assume, and so impose upon the jury, this further burden. Nor was it necessary that he do so. Time and again he made it clear to the jury that corroboration had to come from a source independent of the accomplice. There is no substance in the complaints that the passage read to the jury from the law reports or the judge's reference to "the statements which are made by Mr Camilleri to the police in relation to his own activities" may have thrown the door open to the jury's use as corroboration of evidence additional to the items specifically left to them.

150. We have not dealt in terms with every argument advanced under grounds 3 and 5, but we are satisfied that neither ground is made out.

"The learned judge erred in admitting the evidence of [Ms G.] and as a consequence a miscarriage of justice occurred."

158. The evidence of Ms G. has thus far only been very briefly mentioned. At Camilleri's trial her evidence was confirmed by Beckett, and these grounds have been argued on the basis that they encompass the evidence of both witnesses. The evidence was that, only about three weeks before the present murders, Camilleri and Beckett abducted a young woman in Canberra, using the same car, with the rear doors with their broken locks. According to the evidence it was Camilleri who started the attack on this woman inside the car by producing a sharp knife and digging it into her ribs, demanding sex. She was subsequently, over a period of time, raped orally, vaginally and anally. She was repeatedly hit on the head by Camilleri to make her co-operate and she was threatened with being tied up. At one stage the car in which she was held captive pulled into a rest area off the Hume Highway near Bowral, New South Wales. She told the men she had to go to the toilet and then managed to flee through the bush, wearing only socks and a T-shirt. Both men pursued her, but she managed to escape by hiding in a wombat hole. She then ran on through the bush, suffering multiple abrasions and lacerations, until she came to a farm house, where she obtained help.

161. At the outset of the trial objection was raised by Camilleri's counsel to the admission of this evidence. The judge heard counsel and gave a ruling. Written outlines of argument had been submitted. Reference was made to them during oral argument. Counsel for the Crown began his oral submissions by citing Pfennig v. R.[12] and referring to s.398A of the Crimes Act 1958, which reads:

"(1) This section applies to proceedings for an indictable or summary offence. (2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence. (3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2). (4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness. (5) This section has effect despite any rule of law to the contrary."

165. Counsel for the Crown went on to submit that "398A does seem to cover the field in terms of what propensity evidence is, whether it be similar fact, relationship or some other description", and said that the Crown sought to have the evidence admitted pursuant to 398A. He further said that Ms G.'s evidence was propensity evidence within the meaning of sub-section (2) of the section and, as such, was admissible if the Court "considers it just in all the circumstances" that it be admitted. He went on to contend that Ms G.'s evidence was relevant in no less than five ways:

"First, it permits the inference that Camilleri played the role attributed to him by Beckett; secondly, it rebuts the defence that Camilleri was asleep throughout the present incident; (c) it goes to sustain the relationship between Camilleri and Beckett, and (d) it goes to Camilleri's knowledge of the likely consequence or outcomes in the present matter; (e) it affords an explanation of the words and directions used by Camilleri in the present matter."

169. We here interpolate that the relevance of the evidence to facts in issue, which is expressly mentioned in the sub-section, was accepted before us by counsel for the applicant.

172. Continuing his argument, counsel submitted that Ms G.'s evidence disclosed, as a minimum, that the applicant:

"...(a) acted together with Beckett; (b) drove the car away; (c) pulled a knife on [Ms G.] and threatened her with it; (d) orally, anally and vaginally raped [Ms G.] on multiple occasions at multiple sites great distances apart; (e) was physically violent towards [Ms G.]; and (f) actively participated in holding her captive for some 12 hours...".

He went on to contend that there was a "underlying pattern" revealed which showed that the applicant was the only one exerting physical violence and giving directions about where the vehicle was to stop and what was to take place. This pattern, so it was said, led overwhelmingly to the inference that the applicant was not passive, as he had claimed to the police, but was actively involved in the present rapes and thus had a strong motive for wanting the victims to be killed.

177. During this submission the judge was supplied with a written list of 37 similarities between matters disclosed by Ms G.'s evidence and others referred to in the evidence of Beckett about the present crimes. That these similarities did exist has not been a matter of dispute before us or at the trial. They are set out as an appendix to the judge's ruling. The central submissions of counsel for the Crown followed and they were that Ms G.'s evidence lent exceptionally strong force to the claims of Beckett about the role Camilleri played during the commission of the present offences, that it made improbable Camilleri's assertions of passivity and that it constituted cogent evidence of the relationship between the two men.

180. It was submitted on behalf of the accused at trial as a "general proposition" that the "ordinary rule" applicable was that evidence of pure propensity should not be admitted and that the prosecution was obliged to show "something compelling as to the relevance of the material" before its admission was warranted: the "compelling character" of the evidence had to be such that it overrode the prejudicial effect. It was argued the prejudicial effect of the impugned evidence on the applicant was overwhelming. Counsel referred to what he described as the "single issue" in the case, namely, whether the applicant gave Beckett orders to murder.

183. In his ruling, which admitted the evidence, the judge appears to have generally accepted the submissions made on behalf of the Crown; he indicated that in the setting of the trial he regarded it as having a "highly probative character". He allowed that its admission might very well have "an adverse prejudicial effect on the accused", and continued:

"There is a potential for the misuse of this evidence. This would include, but is certainly not confined to, the granting of undue weight to the propensity to engage in serious criminal behaviour involving violence and sexual abuse which it may be seen to disclose. It is clearly evidence which must be approached with the utmost care on this basis also." (Emphasis supplied.)

187. In addressing the topic of fairness to the accused, the prosecution and the "wider society", which doubtless related to the question whether it was "just" to admit Ms G.'s evidence, his Honour concluded that it was proper that it be admitted and stated that he thought the risk of prejudice to the applicant could be addressed by instructions to the jury.

190. Before us, counsel for Camilleri fastened on the expression "undue weight" which appears in the passage cited above. It was submitted that this was indicative of his Honour's having misdirected himself in a serious way in his consideration of the provisions of s.398A. Instead of "undue", it was said, established principle required the use of "any". It necessarily followed, so the argument went, that the judge had placed insufficient weight on the risk of prejudice and had overvalued the probative effect of the evidence. Counsel cited, in the above connection, R. v. Best [13] and went on to submit that Ms G.'s evidence was so prejudicial that it was not just to admit it and that its admission would serve to complicate the jury's task, induce them to engage in impermissible reasoning and distract them from central issues. Nor, it was said, could directions redress the matter.

193. Counsel for the Crown drew attention to the circumstance that the relevance and probative value of the impugned evidence had not been disputed on behalf of the accused. The decision whether to admit evidence under the section required the determination of a question of law, it was said, not the exercise of a discretion. (See R. v. Tektonopoulos[14].) His Honour's use of the expression "undue weight" was no more than an expression of concern about the possibility that an impermissible process of reasoning might take place in addition to an allowable process.

196. In our opinion, there is no substance in the argument based on the expression "undue weight". We accept the submission of counsel for the Crown as to what his Honour intended to convey. In reaching this conclusion, we have noted with interest a passage in the joint judgment of Mason, C.J., Deane and Dawson, JJ. in Pfennig, with which case the judge was evidently familiar:

"Because propensity evidence may well have a prejudicial effect which is disproportionate to the probative force of that evidence, it is necessary to maintain an insistence on that evidence having a high level or degree of cogency in the circumstances of the particular case. In this context, the reference to prejudicial effect is a reference to the undue impact, adverse to an accused, that the evidence may have on the mind of the jury over and above the impact that it might be expected to have if consideration were confined to its probative force." (Emphasis supplied.)

200. His Honour also indicated during argument that he had read the case of Best. We think it inherently unlikely that a judge so informed would ever make the error alleged. His Honour used undue in some such sense as "improper", or "not in accordance with what is right", or "illegal"[15], and meant to convey that the use of the evidence for a purpose proscribed by the law was wrong.

203. Otherwise, we think the judge's conclusion that Ms G.'s evidence was of considerable probative significance in the trial was one which was plainly open to him. We consider the reasons he gave for it were sound. It is sufficient, we think, to cite by way of example parts of Ms G.'s evidence that go to the relationship between the applicant and Beckett:

"Q. Where was Kiwi or Mr Beckett at this stage? A. He was told to get back - he was told - Les told him to drive the car. Q. So Les gave him the direction to drive the car? A. Yes." "Q. So Mr Beckett has asked to go first, but Mr Camilleri said no to Les? A. Yes, to Beckett."

207. Further, we are unpersuaded that his Honour's approach to the section was wrong.

211. Ground 4 challenges his Honour's directions touching Ms G.'s evidence:

"The learned trial judge erred in his directions regarding the evidence of uncharged acts of rape and violence perpetrated against Ms G."

215. Counsel for Camilleri complained that the directions were deficient in several respects. First, it was said that the jury were not - but should have been - directed along those lines:

"While it is permissible for the prosecution to identify points of similarity in the allegations of the behaviour during the Ms G. incident and the allegations of the behaviour during the incident leading to the deaths of the deceased and to argue that it is improbable that Ms G. and Beckett would make those allegations unless they were true, nevertheless, even if you conclude that the Ms G. incident occurred, you must not reason from that conclusion that the accused was the kind of person who was likely to have engaged in similar behaviour with the deceased girls."

"Further, even if you conclude that he did engage in similar behaviour with Ms G. and the deceased girls, you must not reason from that conclusion that he was the kind of person who was likely to have directed that the girls be killed or to have acted in concert with Mr Beckett to kill the girls."

222. Counsel also drew attention to certain passages in the judge's charge:

"It would be quite wrong for a jury to reason that because an accused person was found to have acted in a particular way on a separate and unrelated occasion he must have acted in the same way at a later time. I instruct you that you must not reason in this fashion." "Again,, it does not follow that because an individual may have acted in a particular fashion or performed a particular role on one occasion that he must have performed the same role and acted in the same fashion on another." "...nor would it be proper to infer that simply because some joint activity had been undertaken at an earlier point of time that each person and in the context of this matter the accused person would necessarily understand that some similar behaviour was planned or undertaken on the occasion in question."

226. As to these, counsel submitted that the use of the expression "must have" (and, we understood, "necessarily") was calculated to invite the very impermissible reasoning his Honour's warnings were designed to prevent, so that they became nugatory. It was asserted that when trial counsel made complaint about this, the judge declined to redirect.

229. Finally, it was submitted that the jury should have been given a direction in terms that the commission of the alleged sexual acts against the deceased and their killings could be proved only by evidence relating to them outside the scope of Ms G.'s evidence. Counsel cited Best and R. v. Grech [16].

232. For the Crown it was submitted that his Honour had directed the jury that they could use the impugned evidence only as going to the relationship between the accused and its continuity, the respective roles played by them in relation to their activities with the deceased girls and the interpretation of their actions and words therein. Counsel pointed out that in the charge proper no less than three warnings were delivered against impermissible use of the evidence and that his Honour had given an additional warning shortly prior to Ms G.'s entry into the witness box:

"[Senior counsel for the Crown], in the course of his opening, made reference to an occasion which took place three weeks before the abduction of the two young girls here. The accused man is not here facing charges in relation to that incident. That incident can be used for precise legal purposes, or the evidence of that incident, in a way about which I will later instruct you. But you must be careful that you use it in that precise way and do not say because the first thing occurred, accordingly he is responsible for the second. Do you follow? I don't want to get myself down in a situation at the moment in which I deal, in advance of the giving of evidence, of the possible ways it might be given. I simply caution you that you will need to bear in mind that I will provide you with specific instructions concerning that."

236. It was submitted that these warnings were entirely appropriate and that the authorities did not establish the necessity for a specific formulation. Counsel cited a passage in the judgment of Callaway, J.A. (with whom the other members of the Court agreed) in Grech[17]:

"There is no set form of words that has to be used. The direction must be tailored to the circumstances of the case and apparent differences between the formulation in different judgments are often explicable on that basis. An accused is not entitled to a series of directions, each direction reflecting the language of one or other of the authorities."

There was no risk the jurors might misuse Ms G.'s evidence, the argument continued, having regard to his Honour's directions that they had to be satisfied of its truth and accuracy beyond reasonable doubt and that they could only use it in the limited ways set out, and the warnings repeatedly administered.

241. It is here convenient to set out the judge's directions as to the way the jurors could use Ms G.'s evidence - and the limitations on that use. After referring to that evidence his Honour continued:

"As I have said, the evidence is before you for precise legal purposes and it can be used by you only on the basis that I will now outline. First, the fact and the character of a continuing and pre-existing relationship between two individuals would be relevant when considering the likelihood or otherwise that the same person were involved in a particular type of joint activity on a specific occasion. If you have two individuals who are seen to be acting together and who have a continuing relationship, then that is a relevant consideration to take into account when you come to consider the possibility or otherwise of joint action later. However - and I emphasize this - the existence of a relevant relationship cannot of itself provide a sufficient basis for the inference to be drawn that they were involved in some joint activity on a specific occasion. It can constitute a relevant factor to be taken into account together with other material in dealing with this question. Here it is said that the two men engaged in a joint activity in relation to Ms G. They were two persons who were acting in a fashion which demonstrated a close relationship which involved a preparedness to be involved in serious criminal activity involving rape and violence. If you find that you accept the evidence of Ms G. in relation to what happened to her, then this would be a relevant factor in determining in your consideration were they similarly involved three weeks later. Do you understand that? Very well. Secondly, when considering the reliability of evidence relating to the respective roles assigned to specific individuals on a given occasion, the nature of the relationship which may be found to exist between the individuals concerned and the roles played by them on some other but proximate occasion could be considered by the jury to bear upon the likelihood or otherwise that they may have participated in the same or similar fashion on the occasion in question."

His Honour had earlier directed the jury that before they could act on the evidence of Ms G. it was necessary that they be satisfied about the truth and reliability of her version beyond reasonable doubt. Before us, it was not suggested that the above directions were anything other than proper.

246. We would not uphold this ground. In our view, the directions given were adequate in the circumstances of the basis upon which Ms G.'s evidence was admitted in the applicant's trial. We do not consider that the use of the terms "must have" and "necessarily" pointed up the very evil the directions were designed to prevent. We think the language used by the judge was wide enough to encompass and proscribe the notion of the accused man's being regarded as "the sort of person" who would act in a similar fashion to that described in Ms G.'s evidence. We note his Honour's use of the expression "in this fashion". This was not a case where evidence was admitted to provide a setting in which a complainant's evidence could be assessed, nor was Ms G.'s evidence let in to prove a general relationship between a complainant and an accused person.

249. We think that the proposition that the jury should have been directed that the alleged sexual acts and killings could be proved only by evidence outside the scope of that of Ms G. is without substance. The applicant's experienced trial counsel never sought such a direction and, in our view, the judge's directions clearly defined the permissible use of her account.

252. We also note an exchange between the judge and senior counsel for the accused:

"MR LANGSLOW: [M]y concern at the time when Your Honour was dealing with the [Ms G.] material was that one of the ways in which you put that the jury could use it seemed like it was being put on the propensity basis, Your Honour, in other words because they had engaged in conduct of that sort three weeks before, if they found that established. HIS HONOUR: Do you want me to instruct them as to the circumstances in which they can use propensity evidence, Mr Langslow? MR LANGSLOW: Your Honour, I just had a fear that Your Honour had stated - - - HIS HONOUR: I do not think I strayed, but even if I did, I would - - - MR LANGSLOW: I hate it when judges talk to me like that, Your Honour. It sounds like a threat. HIS HONOUR: The point about it is that it is admissible evidence under our law these days and I could spell it out as to the fashion in which it can be used and I am not at all sure that that would be helpful, Mr Langslow. MR LANGSLOW: Very well, sir."

256. In our view, this exchange included an offer by his Honour to give further directions about the proper use of propensity evidence in response to a complaint as to directions already given as to the way that evidence could be used by the jurors. It is evident that counsel declined to pursue that matter. No exception was taken as to the warnings given and the inference is that counsel for the accused considered them sufficient.

259. Nor did counsel seek a direction that the sexual acts and killings involving the deceased could be proved only by evidence relating to them other than Ms G.'s evidence. This is understandable. There was evidence of spermatozoa found on the clothing of Lauren, and expert evidence linking that to the applicant was, in the end, not disputed. This evidence, forcefully referred to on no less than 11 occasions in the final address for the Crown, flew in the face of the applicant's proffered defence. There was also evidence of a like character from an independent witness, Mrs Wilson, from which the jury could conclude that Camilleri was driving the car on the Tathra Road at around 10.00 p.m. on 6 October 1997 shortly before the two girls entered it. And there was the other evidence corroborating that of Beckett. In any event the direction now suggested would have run counter to the basis on which Ms G.'s evidence was admitted, a basis carefully explained to the jurors by the judge. This ground fails.

263. Ground 6 asserted that the judge erred in failing to leave manslaughter to the jury. This was yet another ground in which the complaint did not reflect any application made at the trial by experienced counsel. Nevertheless, it must be accepted that in certain circumstances, even though counsel, for tactical purposes, either fail to take the point or even specifically ask the trial judge not to leave manslaughter, it may remain the duty of the judge to leave the possibility of a verdict for the lesser offence to the jury: see, e.g., Pemble v. R.[18]; R. v. Williamson[19]; Gilbert v. R.[20] The right subsequently to complain exists notwithstanding that counsel at the trial, assessing the effect of the evidence upon the jury and the atmosphere then and there pervading the trial, has seen it as less likely that the accused would be convicted if the alternative verdict was not left open to the jury. For that reason alone, without the need to look for further justification, it is essential that facts which might have given rise to an alternative verdict of manslaughter should not be merely speculative but should be clearly open on the evidence before the conclusion is reached that a charge leaving open a verdict of manslaughter should be given. It has been said that counsel frequently do not ask for a direction on manslaughter merely for the tactical purposes of their address, so that their apparent decision not to raise the matter before or during addresses can fairly be overlooked, but it is one thing for counsel to prefer the tactical simplicity of addressing the jury without the complications that dealing with a possible alternative verdict of manslaughter might cause, and quite another for counsel not to raise with the judge at an appropriate time the possibility of a direction which might lead to a lesser verdict. One should be loathe to ascribe to counsel, certainly experienced counsel, any failure properly to have regard to the possibility that such a direction might lead to an acquittal on the charge of murder, which is doubtless the reason why the rule of practice in Pemble was introduced.

266. In the present case no part of a very detailed and comprehensive charge raised the possibility of a verdict of manslaughter. Counsel on this application seemed to accept that manslaughter could not have been left to the jury on the facts of this case unless the Crown had also put its case on the basis of common purpose, in which case the possibility of a lesser offence being committed in the course of what might be then said to be planned rapes would have required a direction as to manslaughter. The difficulty with the argument is that the Crown never sought to advance its case on the basis of common purpose but confined it to the two bases, one dependent on proof of Camilleri's counselling and procuring[21] the death of the two victims, effectively by instruction, and the other dependent on proof of both Beckett and Camilleri acting in concert. It was argued that before counsel for the prosecution opened the case they had said that they wished to leave murder on the basis of common purpose, but that overstates the significance of the discussion. All that was said at that time, in answer to a separate preliminary submission, was that it was a third way of putting the Crown case which would have to be discussed later. When it was discussed later, the judge said that there was "a significant unreality" about the hypothesis put forward by the Crown that death or serious injury might have been caused by Beckett in circumstances where the original common purpose, as contemplated by Camilleri, was limited to the raping of the victims. From then on it seems that counsel for the prosecution desisted from any suggestion of such a basis in the opening or at any subsequent stage of the trial. Although the judge left open its resuscitation as a basis for liability, he did so only upon the basis that a change might arise depending "upon how the evidence falls". Counsel for the Crown accepted the judge's statements as to unreality and, not surprisingly, counsel for Camilleri was content to accept that the case against his client would not be put in this third way.

269. Nothing in the evidence, to our way of thinking, altered the case as to the nature of the relationship between Beckett and Camilleri, nor did the Crown again seek to put common purpose as a basis for any conviction.

272. It was also argued that another possibility was raised in the course of both opening and closing addresses, namely, that the two victims were to be tied up and left, on the Crown's submission, to die, and, on the hypothetical defence case, merely at risk of death. Of course, the evidence was that they were tied and did die but from specific wounds so that the hypothetical case related to a different understanding or arrangement, which was said to have been breached by Beckett. A case based on leaving the victims to die was never put by the Crown as a basis for holding Camilleri responsible, nor in the circumstances was it reasonably open. It was mere speculation. It is one thing for defence counsel to suggest that the circumstances of a crime may have been different from those which the prosecution has put forward as the basis for a finding of guilt, in order that the defence might persuade the jury that all possible alternative hypotheses have not been excluded with the result that the case has not been proved beyond reasonable doubt; it is quite another for any one or more of those hypothetical alternatives to be put forward as a basis for finding the accused guilty, if there be no sufficient evidence to support any such alternative case. It would be irresponsible for the Crown to do so and wrong for the judge to leave a basis which could not be supported on the evidence, if only to avoid the possibility that the verdict might be challenged as being possibly based on a case which was not supported by the evidence at the trial. Cases such as Pemble usually arise out of a conviction of murder but judges should be careful not to put a hypothetical case of manslaughter to the jury when a conviction of that lesser but still very serious offence might be brought in by a jury, where that verdict could be attacked as having no support on the evidence. Forensic hypotheses of the kind suggested in argument were not and should not have been left to the jury as alternative bases of guilt.

275. The same considerations apply to the judge's treatment of the jury's questions upon which Camilleri also relies. In particular, counsel referred to a question put by the foreman of the jury on the day following the judge's sending them out to consider their verdict. The foreman referred to the judge's direction about concert and to an analogy drawn by him from the circumstance of a bank robbery where the teller indicates to prospective robbers where the cash would be left but the teller goes home. The foreman continued:

"A part of that scenario could have been, for example, the person who drove the robbers in the vehicle to the scene of the crime where the robbers in the course of the committal of their crime may have intentionally or otherwise killed the bank employee and then got away in the car; is the driver then guilty of that crime?"

To this the judge replied, "Not automatically". He then explained carefully to them how the Crown had presented its argument in the two ways already described, explaining again that, if the jury rejected the case based on Camilleri's instructing Beckett to kill the victims, then the alternative Crown case was that the two men jointly decided to kill their victims in order to conceal their crimes, and for that purpose the jury would have to infer, to the requisite standard, that there was an agreement or understanding to that effect, which his Honour had described as the case based on the notion of "concert or joint enterprise". The jury had picked upon an example about a robber who had reached an agreement but then seemingly turned it into a question as to a possible unintentional killing of a bank employee in the course of a robbery. The judge in the course of his response directed the jury that, if an individual acted outside the parameters of the agreement, the others would not be responsible for that act. He conceded to the jury that sometimes it is very difficult to work out what the alleged agreement was and that this might pose a problem, but he said he did not wish "to complicate the scenario":

"I simply want to indicate to you that what is required here is a situation, before you could return a verdict of guilty of murder, in which you either accept beyond reasonable doubt that the instructions were given by Camilleri ... or you are satisfied beyond reasonable doubt on the totality of the circumstances that this was a joint effort and that the killing was a joint effort."

281. Although counsel at the time raised minor points as to how the judge's further directions sat with his earlier directions on these subjects, neither counsel for the prosecution nor defence counsel sought to complicate the nature of the agreement or understanding of the two offenders by reference to what might or might not be within their common purpose. They each thought that the judge's original directions were correct and that the issue on the alternative case was a simple one as to whether there was any agreement to kill the two victims. At the end of the discussion counsel for the Crown returned to the issue of common purpose and to the possibilities raised at the very start of the trial but reiterated that it had been generally agreed that the case should be kept simple and that the case on concert should be confined to proof of an agreement or understanding to commit these murders. Although he wanted some elaboration of the concept of understanding and its proof, neither he nor counsel for the defence sought to expand the case.

284. In our opinion the approach of both counsel and the judge was entirely correct. It was not merely a tactical decision, as was suggested by counsel presently appearing for Camilleri. The jury would indeed have been off on a frolic of their own if they had been allowed to look for some lesser or different plan and then asked themselves whether the killings came within the common purpose of that plan. There was just no basis on the evidence for this complicating alternative and, if the judge had attempted to put a new or different case to the jury at that time, or indeed at any time, notwithstanding that counsel on both sides sought to dissuade him, then there would have been a very real potential for a miscarriage of justice and a possible verdict, whether of murder or manslaughter (however unlikely the latter would have been) on a version of the facts which was simply not open to the jury.

287. Of course the object of the direction now suggested would merely be that the jury might bring in a merciful lesser verdict of manslaughter. The argument takes no account of the risk that the jury might have convicted of murder on the basis of some hypothetical common purpose which was not supported by the evidence. For reasons which are set out elsewhere in this judgment, the likelihood of that was remote because the evidence supporting the prosecution case as put to the jury was so strong. But the possibility of a verdict based on a misconception of the evidence was one which should not be countenanced on appeal in circumstances where this complicated alternative was not open, and rightly was sought by neither the prosecution nor the defence at the trial.

Supposed failure to establish presence at scene of crimes

294. Ground 2 formed part of the original grounds of appeal and was stated in these general terms:

"The verdicts are unsafe and unsatisfactory and as a consequence a miscarriage of justice occurred."

As sought to be argued before this Court the unsafety of the verdicts was confined to a lack of proof of one element, namely, the failure of the Crown to prove, and the absence of evidence, that Camilleri was "present" in the relevant sense at the scene of the two murders. The assumption behind this argument was that the jury may have rejected Beckett's evidence that he was directed or instructed by Camilleri to kill the two victims so that they might have reached their verdicts upon the basis that the Crown had only made out that the two offenders had been acting in concert. For this purpose, so it was argued, presence must be proved and the Crown case was inadequate to establish that fact.

299. Again, this was a point not taken at trial, nor was any point taken that the judge had failed correctly to direct the jury as to presence. It was argued before us simply upon the basis that there was no evidence upon which the jury could be satisfied of that fact. It was not suggested, however, that this Court should examine the whole of the evidence to determine whether otherwise the verdicts were unsafe and unsatisfactory.

302. In the course of argument it was pointed out to counsel that it was difficult to characterise the complaint now made as one which came within the general umbrella of a complaint that the verdicts were unsafe and unsatisfactory. No attempt was made to amend the ground or to add a new ground, but counsel was allowed to argue the point, the Court reserving its position whether the argument could fairly and properly now be raised under ground 2. The better view would appear to be that the point is not covered by the ground, but in any event the Court is of the view that the point is unsound.

305. The argument proceeded upon the factual assumption that it was Beckett who was responsible for all the physical acts which resulted in the deaths of the two victims; in other words, that Beckett inflicted the relevant wounds; and, secondly, that at that time the applicant was some 300 to 500 metres away near the foot of the track in the car or somewhere near where it had been parked. The car had been parked a relatively short distance up the track which led off the Cann River Highway just after it crossed Fiddlers Green Creek in a national park just south of the New South Wales border. It is unnecessary to repeat the details set out above.

308. The essential hypothesis for considering the facts, however, is that the jury had rejected the Crown case based essentially on Beckett's story that he was instructed by Camilleri to kill the victims. On the other hand, the argument here put forward seemed to be based on the hypothesis that Camilleri was in or about the motor car inasmuch as he had said that he was in a drug stupor and was aware of neither the rapes nor the murders. Of course, that is also not a correct hypothesis for the purpose of considering this argument. The jury were invited to consider the alternative Crown case that, although Camilleri may not have directed Beckett, the two offenders were acting in concert in bringing about the death of the two victims. As far as the evidence went Camilleri may have been at a point not far, perhaps 30 or so metres, from the places where the victims were killed or he may have descended some part or indeed most of the way down towards the car. For present purposes it is appropriate to take the view which is least favourable to the Crown, namely, that he had reached a point on the track at or about the parked car. But the assumption for this purpose is also that there was an agreement or understanding between the two offenders that the victims would be killed, whatever precisely was the plan. The question of presence could not arise unless the jury were satisfied that there was such an agreement or understanding of the kind which would satisfy the legal concept of "acting in concert", as it is ordinarily described in Victoria and as it was described in the judge's charge. Although the two men may have been several hundred metres apart at the time of the deaths of each of the victims, the question of presence must on the authorities be considered in the light of their agreement or understanding.

311. We shall assume, for the purpose of this ground, that presence must be established, inasmuch as current authority on acting in concert would seem to insist that presence is required: see, for example, R. v. Jensen and Ward[22] and Osland v. The Queen[23]. Moreover, the application was argued upon the basis that presence at the scene was required. Although there was a consequential complaint as to the form of the judge's charge, the essential issue, therefore, was whether there was sufficient evidence for the jury to be satisfied that the applicant was present at the scene.

314. The contention on behalf of Camilleri that he was not present at the scene of the murders because he was some 300 to 500 metres away has, in the circumstances of this case, an air of unreality about it and cannot be supported on the authorities. It has never, in recent times, been necessary to show that the offenders were next to each other or just a few metres apart.[24] Indeed counsel for Camilleri cited as primary authority for his contentions the statement from the judgment of the Court of Criminal Appeal in R. v. Jensen and Ward[25]:

"For the purpose of these rules as to acting in concert a person is present at the scene of the crime even if he remains some distance away, provided that he is there for some purpose designed to facilitate or encourage the actual commission of the crime; for example to assist in the escape of the person or persons who performed the act or acts which constitute the crime."

Again, counsel for Camilleri cited in support of his argument a passage from a third edition of the early classical text by Sir Michael Foster commonly known as Foster's Crown Law (which included a Discourse on Homicide) where the learned author said[26]:

"When the law requireth the presence of the accomplice at the perpetration of the fact, in order to render him a principal, it doth not require a strict, actual, immediate presence, such a presence as would make him an eye or ear witness of what passeth. Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part assigned him; some to commit the fact, others to watch at proper distances and stations as to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged. They are all, provided the fact be committed, in the eye of the law present at it: for it was made a common cause with them, each man operated in his station at one and the same instance towards the same common end; and the part each man took tendered to give countenance, encouragement, and protection to the whole gang, and to ensure the success of their common enterprise."

It is unnecessary to examine further the authorities relating to the concept of presence, for they add nothing significant to the matters described in the two authorities cited. A brief description of them appears in Gillies, The Law of Criminal Complicity (1980)[27] and in K.J.M. Smith: A Modern Treatise on the Law of Criminal Complicity (1991)[28].

321. The argument seemed to assume that, because Beckett was on one view of the facts several hundred metres away through almost impassable bush and near the creek, Camilleri could not have been present at the scene of the killings. Whether or not the bush was dense or the ground difficult to pass over so that it might take a little time to get from one point to another, the argument misconceives the requirements of presence. Mere presence is, of course, insufficient to impose liability on a person who does not directly carry out the acts necessary to constitute a crime.[29] There must always be a degree of complicity, ordinarily exhibited by some participation or preparedness to participate in the principal offence. Presence is only required in order to give reality to the accused's participation or willingness to participate. The examples of an accused "keeping nit" or waiting in the getaway car (even if never used) are just examples where the complicity is obvious, but the place where the accused is stationed is ordinarily of little consequence, so long as it is in the vicinity and has a practical relevance to the carrying out of the offence.

324. In the present case it has been argued on behalf of Camilleri that one should disregard the role that he played as described by Beckett, so that one should look at an hypothesis which might place him well away in terms of distance from the place where the two victims were murdered. Doubtless that is correct but equally it is not relevant to consider only Camilleri's version which would have him lying in a drugged stupor in the car. Acceptance of that version would have led to acquittal. For the Crown's alternative version to succeed it had to be shown that Camilleri took part in or was willing to take part in some aspect of the two killings which would impose liability upon him as complicit in the commission of those offences. He may have been as far away as the car but the question should have been what was he doing at the car and whether that involved acting in concert with Beckett. If he was merely sitting in the car then, on this hypothesis, there would be strong ground for inferring that he was waiting there to assist in both Beckett's and his own getaway from the scene of the murders. The car had taken the offenders and their two victims as far as practicable off the road for the purpose of effectuating their plan to kill them. The evidence showed that immediately after the murders Beckett returned and they drove off north of the border again, attempting from time to time to destroy evidence of the commission of the murders. Even if the jury were satisfied only that Camilleri was waiting in the car to drive Beckett away once the victims had been killed and that that was all they had agreed, explicitly or implicitly, then that would have been sufficient in the light of the authorities already cited to amount to Camilleri's being present at the scene of the crime.

327. As to distance from the offence, that is clearly of comparatively little significance, for in practical terms many drivers of getaway cars in robberies and the like committed in the city are further away, and yet are treated as being present at the scene. Certainly, they are frequently out of sight and hearing and more often than not there are cars, pedestrians, buildings and the like between the waiting driver and the actual place of the robbery. In the present case doubtless the bush was thick and hard to scramble through but the area was otherwise uninhabited. It was in the far east of Victoria, miles from any centre of habitation. One may readily infer that, apart from an occasional car or truck on the none too busy road, there was nobody within sight or sound, or likely to be within sight or sound. Indeed, that in all probability was the reason Beckett and Camilleri chose that place as suitable for their misdeeds. As the track tailed off as it rose up from the side of the road towards the nearby hills,[30] there was in practical terms only one way out, so that the jury would inevitably conclude that the car was the offenders' only possible means of escape and that Camilleri was sitting in or standing by the car, or was otherwise near at hand, so as to effectuate that escape, as had always been contemplated by them.

330. In brief, therefore, unless the Crown had failed to persuade the jury that the applicant's story as to drug stupor was untrue, the inevitable alternative inference was that the offenders had agreed to terminate the lives of their victims and to get away from the scene as soon as practicable, and that at that scene of the crime, understood widely but properly, Camilleri both was present and had reached an agreement or understanding with Beckett as to both the killings and their own escape. The ground therefore is not made out.

92 The defence was conducted on the basis that, although Camilleri was in the car with Beckett when the girls got into it and remained in the car until some hours after they had been killed, he did no more than perhaps say hello to them, being for the whole of the time grossly affected by heroin and for most of the time insensible. On his case, he was conscious or awake only for a short time and on a few occasions - when the girls were encountered and Beckett, driving the car, talked to them and made room for them by removing the television set; when the girls were with Beckett at the beach and he, Camilleri, absented himself; when Beckett was away from the car murdering the girls; when Beckett used petrol to burn something; when the shoes were bought at Tuggeranong; and when Beckett threw a knife or two from the bridge in Canberra. The Crown was able to suggest to the jury with much force that Camilleri's version was intended to have him emerge from his stupor at convenient points at which he could describe events tending to incriminate his companion before lapsing into a stupor again. We do not think a reasonable jury would have regarded that account, put forward in the police interview of 12 November, as sufficiently credible to leave them in doubt about his guilt. It was an extraordinary and most implausible story, told with hesitancy and suffering badly from inconsistencies and improbabilities. It could not account for the damning seminal stain on Lauren's shirt: that stark and intractable fact could not be explained away. The idea that Camilleri was sunk in a stupor for most of the ten hours, becoming briefly alert only in time to observe certain notable events inculpating his companion, will not bear critical examination. Quite apart from the semen-stained shirt, how did Beckett single-handedly keep two girls prisoner during a ten hour journey punctuated by so many stops and so many sexual assaults? How, for instance, was it that one girl did not make her escape from the car while the other was being sexually assaulted by the only conscious male some distance from it at Ben Boyd National Park? What of the incidents at Wingan Point? Did one girl wait obediently in the car with the stupified Camilleri while Beckett raped the other in the forest? How can the beer carton marker on the log be explained on the defence case? If Camilleri was fast asleep at Fiddler's Creek, how did Beckett manage to get the two girls all the way down to the creek and kill them one by one? The improbability, indeed, the practical impossibility, of this is manifest from the independent descriptions of the country and the photographs. The defence case was that no rope was used to tie the girls' hands or lead them. How did one man control them? Each girl must have been in the most desperate fear for her life at that stage and have thought that nothing could be lost by trying to escape. One should read again Camilleri's extraordinary account to the police of what he saw and heard at Fiddler's Creek; and the whole of what he told them, both in the two formal interviews and otherwise; and the psychologist's evidence of what he told her at Goulburn Gaol; and what he said on two separate occasions about the burning of female clothing and a towel supposedly found behind a laundromat. It is all unconvincing and redolent of guilt.

93 The defence faced altogether too many questions. For example, why did Camilleri and Beckett stay together and act together after the killings? What of the admitted burning at the lookout? What of the admitted throwing away of the knives? What of the admitted cleaning of the car? What of the concerted false denials of any knowledge of the girls? What of the admitted return to the lookout for the second burning? What of the earlier abduction of Ms G.?

94 In his false alibi, at a time when he had no reason to conceal his supposed use of heroin, Camilleri claimed to have been injected not with heroin but with amphetamine. This would not, on the evidence, have made him sleepy: quite the reverse. The Crown said that he changed to heroin in his account once he thought it necessary to confess and avoid his having been in the girls' company.

95 Beckett's admitted role in the rapes and killings, and his character as otherwise shown, made him a man whose evidence had to be approached with great caution. Yet there is much force in the Crown's contention that his evidence, although he was an accomplice and the actual killer of both girls, was uncommonly persuasive. His terrible description of the rapes, and indeed the whole journey, and his account of what took place at Fiddler's Green Creek, both before and during the killings, have a sickening ring of truth about them. They are notable, as the Crown pointed out time and again in its address, for the absence of any attempt to suppress or explain away facts showing himself in the worst possible light. Even to a reader of the transcript, they suggest a man without pity, without conscience, giving a matter of fact account of horrible events as if they were commonplace.

96 No reasonable jury, properly instructed in every way, would have entertained the defence hypothesis of an inert and inoffensive man, stupified by drugs, waking only occasionally and playing no role in a prolonged series of rapes.

97 It was, however, said at the trial, and it is said now, on his behalf, that for the jury to go beyond a finding of rape to one of murder was too great a leap. But there is no gulf between the findings. On the contrary, the allegations of rape and murder, while of course separate and distinct, were very closely related. The Crown case was that the one set of crimes led naturally, indeed, in the particular circumstances of this case, almost inevitably, to the other. The Crown case was that the men hunted together, caught their prey together, sated themselves together and at the end of it all, in order to escape many years' imprisonment, killed together. Once the girls were dead Camilleri, who must on any reasonable view have known that Beckett had murdered them, continued to associate closely with him and to act together with him in ways which tended to conceal their connection with the girls. Camilleri's assertions and denials can only be described as inconsistent, improbable and unconvincing. Once the jury rejected the ten hour stupor hypothesis and found him to be a rapist, they could not, if properly instructed, in the light of all the evidence reasonably have failed to convict him of the murders.

341. The application for leave to appeal against sentence alleges manifest excess, error in failing to fix a non-parole period and error in finding that Camilleri instructed Beckett to kill the girls. This last ground has been abandoned, with the result that there is now no attack on the judge's findings of fact in his careful reasons for sentence. Moreover, it has not been argued that the judge erred in passing sentences of life imprisonment; such a contention would have been entirely hopeless. Mr Croucher has simply attempted to persuade us that a non-parole period should have been fixed.

344. Camilleri was 28 at the time of the offences. He had been before the court nine times for other offences, between 1988 and 1997. The convictions were mostly for offences of dishonesty and wilful damage; some had resulted in sentences of imprisonment; none was an offence against the person. No proceedings had resulted from the incidents concerning Ms G, which had occurred only about three weeks before the present offences. As earlier mentioned, Camilleri was at the time of the present offences on bail awaiting retrial on several counts of raping the female child of his former de facto wife. In passing sentence the judge referred to a psychiatric report prepared in 1993 which spoke of a deprived background and "a pattern of theft and vandalism which have been his reaction to social ostracism, leading to frustration, which because of poor impulse control has ended in explosive outbursts of destructive behaviour."

347. The judge who sentenced Camilleri had also sentenced Beckett. Beckett had eleven prior convictions, some for offences of violence, arising from seven appearances in court. It was accepted by Beckett's counsel that life imprisonment was not only appropriate but the only appropriate sentence. At the end of very careful reasons for sentence his Honour referred to such considerations as could be put forward in favour of leniency and observed that, had it not been for Beckett's undertaking to give evidence against Camilleri, it was highly unlikely that he would have fixed a non-parole period. He went on to fix a period of 35 years and on 3 December 1998 this Court dismissed an application for leave to appeal against sentence, observing that it was not at all persuaded that the sentence was not an appropriate response to the applicant's crimes.

350. In sentencing Camilleri his Honour in terms accepted that the killings had occurred in the circumstances described by Beckett, including the preliminary acts at Fiddler's Green Creek. More generally, he accepted that Beckett's whole account of events was substantially accurate.

353. In finding that Camilleri had instructed Beckett to kill the girls his Honour said this:

"Then, using the control which you clearly had over your weaker willed but equally evil companion, you instructed him to perform acts that, in a somewhat perverse way, it could be said that you probably did not possess the courage to perform yourself."

"I have, I think, made it relatively clear in what I have already said that I consider your level of responsibility for the two murders to be very great indeed, and at least equal to that of Beckett."

359. His Honour's reasons for sentence could, with profit, be set out at greater length but we shall make no further citations from them, beyond noting that his Honour, conscious that the sentence he was about to pass was a terrible one, formed the view that his duty was clear.

362. Mr Croucher has relied on his client's disadvantaged background and his relative youth and has suggested that he will serve his entire sentence in "protection". He contends that other more serious cases of murder can be imagined and have indeed come before the Court. He has referred us to certain other sentences for murder. The present case is undoubtedly one of the worst examples of murder to be found in this State: it is the worst in our experience. We shall not repeat the salient facts making this so, which speak for themselves. Nor shall we cite from any of the important recent authorities in this Court dealing with life sentences and minimum terms for the crime of murder and how multiple killings should be approached. It is enough to mention R. v. Coulston[31], R. v. Lowe[32], R. v. DJH[33] and what was said by the Court in disposing of Beckett's application[34]. We would have been surprised if sentences of life imprisonment without the possibility of parole had

not been passed for these remorseless killings and we regard the application for leave to appeal against sentence as one which could not possibly succeed.

367. On these applications for leave to appeal against both conviction and sentence I have had the advantage of considering in detail the joint judgment of the Chief Justice and Brooking, J.A. Save and except for one matter, which in my opinion is largely peripheral to the issues raised by these applications and determined in the joint judgment, I agree entirely with what is there said both as to the determination of the issues and as to the reasons for disposing of both applications. In particular, I would emphasise my complete concurrence with what is there said at paras.[92]ff. as to the strength of the prosecution case and also as to the circumstances and reasons which ought to lead to the rejection of the application for leave to appeal against sentence. Although my experience in this field is somewhat less than that of the other members of the Court, I likewise have found this the worst case of murder with which I have had to deal.

370. The one subject, represented by ground 3, about which I have some reservations so far as the reasoning in the joint judgment is concerned, is that related to consciousness of guilt. I should first make clear, however, that I agree entirely with the rejection of the ground and with the essential reasoning which leads to the rejection of that ground. Where I differ, and I differ only in that I would prefer not to express concluded views on the issues, is, in the first place, as to the more general observations as to the use of consciousness of guilt evidence and, in the second place, as to whether the Crown should have relied upon, and the judge should have left to the jury, other acts or statements which might have been said to evince consciousness of guilt.

373. As to the specific ground of objection to the learned judge's charge on this subject I would agree that the judge erred in the passage referred to at the end of

paragraph [26] of the joint judgment. In so far as his Honour suggested that a finding that a lie has been told by reason of consciousness of guilt would in itself amount to holding that the person is guilty of the offence charged, I can well understand what the learned judge was driving at, but it was not an observation which should have been made to the jury who, I would venture to suggest, would find the relevant directions relating to consciousness of guilt difficult enough to comprehend. As I would understand it, the theory behind the reception of evidence of consciousness of guilt is that, if it is established, then the relevant conduct may be treated as an implied admission of guilt. But it is no more than evidence of such an implied admission and therefore must be weighed with all the other evidence in determining whether the prosecution case has been made out beyond reasonable doubt. This must be so however compelling the admission may seem, so that even explicit confessions still have to be tested by the jury appropriately: cf., e.g., Burns v. The Queen[35] and McKinney v. The Queen[36]. All I believe that the learned judge was adverting to was the stringency of the tests taken from R. v. Lucas[37], and adopted in Edwards v. The Queen[38], especially as they require that the jury must be satisfied, inter alia, that the conduct sprang from both a realisation of guilt of the relevant offence and a fear that the truth might be discovered. Implicit in the judge's reasoning, moreover, was his belief, as represented by his direction to the jury, that satisfaction as to consciousness of guilt by them had to be established beyond reasonable doubt. As a generalisation, that was likewise erroneous according to the well-known principles laid down in Edwards. Applying such a standard, the jury in making a finding of consciousness of guilt would, as a matter of practicality, necessarily be a long way down the track to concluding that the accused was guilty of the offences charged, however wrong it may be to tell that to the jury.

377. I am not confident, however, that the very experienced trial judge was deliberately refusing to apply the test as to burden of proof in Edwards. What was said about onus of proof in Edwards was expressed by the majority (Deane, Dawson and Gaudron, JJ.) as follows[39]:

"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude the accused is guilty."

Now, although I was first inclined to believe that this evidence was being put forward as part of a circumstantial case against the applicant, in particular on the alternative basis of acting in concert, I am by no means confident that the judge saw it in that way. Rather, I believe his Honour saw the two items as each providing, if accepted as evincing consciousness of guilt, independent evidence of an admission against interest, separate from the circumstantial case and separate from the issue of corroboration. If so, the higher standard of proof would, on the authority of Edwards' case, have been appropriate. Even if I am wrong here, the judge may well have been directing the jury as a matter of caution and simplicity upon the basis that they were either independent implied admissions or part of the circumstantial case, but in circumstances where it was thought preferable only to refer to the one standard of proof, as was suggested in R. v. Laz[40].

382. As to Laz, to which I was a party, and other cases which are said to be critical of an undue reliance upon acts of consciousness of guilt, I should prefer here to express no opinion as it is unnecessary for the determination of this case. It is possible, but only possible, that some of the dicta in that case are inconsistent with later decisions of this Court and in particular with the observations of the majority, although expressed with great generality, in Zoneff v. The Queen[41]. Nor would I wish to make any comment on the extent to which evidence of consciousness of guilt is or is not used in criminal trials at the present: all I can say is that the present tests have produced about twenty appeals on the subject in the last two years in this Court and this is one of three consecutive applications for leave to appeal against murder convictions which I have heard which each have included grounds raising consciousness of guilt findings.

385. Nevertheless, the apparent errors of the learned judge are of no consequence on this application. As I understand the Crown case to be a circumstantial case and that the claims of consciousness of guilt were directed towards that case, the onus of proof according to Edwards and Zoneff was too highly expressed by his Honour. That, of course, favoured the applicant and made it less likely that the jury would have made the relevant findings for the purpose of reaching its verdicts. As to the general comment which appeared to treat such a finding as effectively a finding of guilt, then although erroneous in the strict sense, it was merely an introductory observation, one which strictly did not form part of his directions on the subject and, if anything, made it more likely that the jury would view any such finding as one of gravity and not lightly to be reached.

388. All in all and having otherwise regard to the observations in the joint judgment relating to this matter, I would not uphold the specific objection. Furthermore, the more general part of ground 3, which appears to take objection that the judge's directions as to the lies and consciousness of guilt were generally erroneous, lacks particularity and seems none the better for its exposition in argument. As I would understand it, counsel sought to argue that other examples of lies and consciousness of guilt should have been the subject of specific directions. They were not specifically relied upon by the Crown for that purpose, whatever otherwise may have been the merits of their relying on those items.[42] I would for myself not wish to express any views as to what might otherwise have occurred in this complex trial. If, however, the jury had decided to try to use the items in that way, notwithstanding they were not specifically relied on for that purpose by either counsel or judge, then they had entirely adequate and detailed directions on the subject of consciousness of guilt, together with a higher burden of proof than would otherwise have been appropriate for a circumstantial case. Consequently, the likelihood of their misusing these supposed additional items was negligible, if not non-existent.

391. Ground 3 was therefore not made out and, for the reasons appearing in the joint judgment, none of the other grounds were made out in either application and each should be dismissed.

[1] He sought leave to appeal against sentence without success: R. v. Beckett [1998] VSCA 148.

[2] Compare what is said about the prevalence of late amendments in R v. Challoner [2000] VSCA 32 at [4].

[3] Crampton v. R. (2000) 75 A.L.J.R. 133 at 136-7.

[5] [1993] HCA 63; (1993) 178 C.L.R. 193.

[6] Note in particular Zoneff v. R. (2000) 172 A.L.R. 1.

[7] R. v. O'Brien, unreported, Queensland Court of Appeal, 11 June 1999, BC9903126, in the judgments of McMurdo, P. and Pincus, J.A.

[8] R. v. Trinh [1998] VSCA 137 at [19]; Adam [1999] NSWCCA 189; (1999) 106 A.Crim.R. 510 at 511-2 and other decisions of the New South Wales Court of Criminal Appeal there cited; R. v. Hytch, unreported, Queensland Court of Appeal, 4 August 2000, BC200004971.

[9] R. v. Laz [1998] 1 V.R. 453 at 468-9.

[10] R. v. Chan, unreported, Court of Appeal, 12 March 1998; R. v. Bandiera and Licastro [1999] VSCA 187; [1999] 3 V.R. 103 at 107; R. v. Mazur [2000] VSCA 111.

[11] Conduct after the killings was relied on by the Crown in its final address both in listing the evidence corroborating that of Beckett and in dealing in a general way with the circumstantial case against Camilleri.

[12] [1995] HCA 7; (1995) 182 C.L.R. 461.

[13] [1998] 4 V.R. 603 at 614 and 616.

[14] [1999] VSCA 93; [1999] 2 V.R. 412 at 419

[15] Meanings included in the Oxford English Dictionary.

[16] [1997] 2 V.R. 609 at 614

[18] [1971] HCA 20; (1971) 124 C.L.R. 107.

[19] [2000] VSCA 5; [2000] 1 V.R. 58.

[20] (2000) 74 A.L.J.R. 676; 170 A.L.R. 88.

[21] It was not so described in the charge, so it may be preferable to consider it as another form of acting in concert. Here there may have been agreement, though Beckett said he was unwilling to commit the murders and was threatened by Camilleri.

[22] [1980] VicRp 24; [1980] V.R. 194.

[23] [1998] HCA 75; (1998) 197 C.L.R. 316 esp. at 341-351 paras.[69]-[95] and at 400-403 paras.[205]-[232].

[24] See, e.g. R. v. Betts and Ridley (1930) 22 Cr.App.Rep. 148 at 154.

[29] I.e., the actus reus. See e.g. R. v. Coney [1882] 8 Q.B.D. 534 at 557-558 and R. v. Russell [1933] VicLawRp 7; [1933] V.L.R. 59 at 66.

[30] In any event it seems to have been blocked off by some form of barrier near where the car was parked.

[31] [1997] 2 V.R. 446.

[32] [1997] 2 V.R. 465.

[33] [1998] VSCA 108.

[34] [1998] VSCA 148.

[35] [1975] HCA 21; (1975) 132 C.L.R. 258.

[36] [1991] HCA 6; (1991) 171 C.L.R. 468.

[37] [1981] Q.B. 720.

[38] [1993] HCA 63; (1993) 178 C.L.R. 193 at 208-211.

[40] [1998] 1 V.R. 453 at 468-469.

[41] [2000] H.C.A. 28; 74 A.L.J.R. 895 esp. at 899-900 paras.[15]-[17].

[42] As to the need, on occasions, for a judge to give directions where the prosecution has not directly relied on consciousness of guilt, cf., e.g., Zoneff and R. v. Nguyen [2001] VSCA 1.