4 Each of the applicants was found guilty by the jury on the trial at which they were jointly presented of the murder of Keith William Allan at a place unknown on 28 May 2000.
5 All seek leave to appeal against their conviction, relying upon a number of grounds to which I will return.
The Background[5]
6 At the trial the prosecutor alleged that the applicant, Clarke was the architect
of a plan to murder Allan in order to avoid being held to account for serious deficiencies in a trust account administered by him. More specifically, it was asserted that Clarke, who was employed by Allan in his solicitor's practice had been involved in thefts of monies from the practice's trust account and that he became alarmed when the regulatory arm of the Law Institute of Victoria (LIV) commenced an investigation into various problems that had been detected. He reasoned, it was said, that, if Allan vanished without trace, he would be able to claim that he was innocent of wrongdoing and had simply followed his principal's instructions in relation to all untoward transactions. The applicant, Athanasi, the prosecution claimed, was paid by Clarke to arrange for this to be done and he, in turn, engaged the applicant, Cavkic, to kill Allan and dispose of his body.
7 The murder, according to the prosecution scenario, was committed in the middle of the night on Sunday 28 May 2000. The body of Allan was believed to be buried at some rural location, probably in the Mount Macedon area, and has never been located despite searches by investigating police.
Keith William Allan
8 Allan, a solicitor, conducted a legal practice that he operated at two locations (in Avondale Heights and Springvale). He was a single man with a long term interest in harness racing and would often attend race meetings. Although he enjoyed his involvement in this activity, Allan was not known to bet with large sums of money. He was described by witnesses, as a frugal person who led a relatively humble lifestyle, did not consume alcohol or take illicit drugs, was hard working, mild mannered, and a good employer.
The Applicants
9 Clarke, who became acquainted with Allan through their mutual interest in harness racing, commenced employment as a law clerk in his practice in 1995. In the following year, he became a co-signatory to the practice's trust account.
10 Whilst employed by Allan, Clarke regularly attended the Crown Casino where he gambled. It was there that he encountered Athanasi in 1998.
11 Athanasi met Cavkic at St Albans, during the mid 1980's. Each had a mutual involvement in indoor soccer and a casual friendship developed between the two. They remained in contact, at that stage, for almost three years. This acquaintanceship was renewed when they later met at the Crown Casino.
12 At the time of the disappearance of Allan, neither Cavkic nor Athanasi were employed and both were in receipt of social security benefits.
The Practice
13 There was evidence from a number of employees of the practice, outlining a history of problems with the firm's trust account.
14 Mariam Sutherland, a general assistant at the practice, stated that she had developed some concern in relation to large amounts that were paid into the account and were then immediately drawn upon. When she raised this matter with Allan, he told her not to worry about it.
15 Susan Simonds, a conveyancer at the practice, stated that the firm's auditors had detected deficiencies in the trust account in 1995. She stated that she confronted Allan over this problem. This led to an argument and her employment was later terminated.
16 In 1994, Gary Roberts, commenced employment at the practice to assist with the practice's books. Initially there were minor problems with the reconciliation of amounts received and paid. Later, there were some difficulties encountered relating to incomplete information concerning various account transactions. Allan would usually respond to his queries or concerns about the handling of trust monies by saying that "Clarke would fix it". Roberts said he left the employment as he was unhappy with this situation. He further stated he was never completely satisfied with the explanations provided by his employer in relation to the problems with the reconciliation of amounts paid into and out of the account.
17 Douglas Morey, who was engaged as a consultant solicitor by Allan, stated that until 1995, the trust account was attended to by an accountant and the books would pass audit. He understood that thereafter this responsibility was entrusted to someone else. During 2000, Morey spoke to Clarke on an occasion on which Clarke informed him that he had set up a business as an investment adviser. Clarke told him that he had paid a cheque relating to this activity into the trust account. However, he said, this deposit would not affect the account. In May of that year, Morey checked the trust account ledger in relation to a matter in which he was involved and observed that it was not being properly entered. Morey was aware that Allan had built up large debts to barristers and had been sued by a number of them. However he had observed nothing that led him to believe that Allan may have improperly withdrawn monies out of the trust account, nor did he observe him enter into any transaction that, to his knowledge, contravened the accounting requirements of the Law Institute.
18 Loan Hong Tran, a law clerk at the practice, stated that a week before the disappearance of her employer there was a problem with a trust account cheque for $64,000 that was not cleared by the bank. When she raised this matter with Allan, he told her he would deal with it and to have the cheque re-presented three days later. The witness recalled another instance when the Commonwealth Bank refused to honour a trust account cheque as the account was in debit. On this occasion, when the witness asked Allan whether he was aware that all of the money in the account was missing, Allan responded that he was not sure of the position and that he was securing a bank statement. When the statement was eventually collected, it showed a debit of $53,000 in the account. Shortly before his disappearance Allan had indicated to her that he would try to borrow money over the weekend and that he would see her on the following Monday. He mentioned "in the worst case situation jumping off a bridge", but she dismissed this remark as a joke. The witness also gave evidence that she had had conversations with Clarke in which he indicated that he knew of the firm's financial problems.
19 Suzanne Brown, a settlement clerk at the practice, stated that, in May 2000, there was an occasion on which the trust account had insufficient funds to meet a settlement. She also recalled another instance when a bank statement, that she had been requested to obtain relating to the trust account, showed the account to be in debit.
20 Adele Hancock was also a law clerk at the practice. Approximately one week prior to the disappearance of her employer, the Commonwealth Bank stopped the practice drawing on the trust account. The witness was aware of the involvement of the LIV in looking at the account at the time and stated that Allan told her on the Thursday or Friday before his disappearance that he was going to call the LIV on the following Monday. She said that there was a lunch time meeting, on Friday 26 May 2000, between Allan and members of staff. Clarke was not present. Allan informed them that he did not think there was enough money to meet the settlements for the following week. He intimated that he was in a "bit of strife" and that he could go to gaol. Prior to his departure, on the afternoon of Friday 26 May 2000, Allan came into her office and said he would see her on Monday - "God willing". The witness regarded that utterance as strange as he had never said anything like that previously.
21 On Sunday 28 May 2000, at approximately 12:30 p.m., Kevin Pearce, a friend of Allan, received a call from him. Pearce was told that there were financial difficulties with the practice and that there was money missing out of the trust funds. Allan said that he was considering the possibility of declaring himself bankrupt.
The practice's trust account
22 The practice held two accounts at the Commonwealth Bank at Avondale Heights - a trust account and an office account. The majority of the transactions went through the trust account which was used daily. Clarke did most of the banking.
23 For some time, the Bank adopted a flexible attitude to the banking of third party cheques in relation to the practice. However, in or around August 1999, Clarke presented a third party cheque in the sum of $75,000, that was later dishonoured and Allan was contacted. As a result of this incident, the Bank reverted to strict banking practice and it was noticed that the number of transactions in the trust account reduced.
Examination of the trust account by the LIV
24 On 25 November 1999, Marie Ryan, a trust account inspector with the Victorian Lawyers RPA Ltd, attended at the practice as a result of a complaint regarding the deposit of a $75,000 cheque.
25 Ryan conducted a general routine inspection of the account which revealed that the cheque was connected to a credit financing business that Clarke was conducting. Clarke told her that he had used the trust account to deposit the cheque and that he had drawn on it for that amount. Ryan spoke to Allan about the matter. He indicated that, although he was aware of the circumstances of Clarke's business, he did not know of this deposit until he learned, a month later, that there had been a problem with the account.
26 During this inspection, Ryan found that there were important records missing including client trust ledgers, a trust receipt book, a cash book, a journal book, a trust transfer book and trust bank reconciliation statements. An inspection of the trust ledgers revealed serious deficiencies and that the account was overdrawn ($63,045.88). Although Clarke provided an explanation for this debit balance, it was not supported by any trust ledger entries or other records.
27 On further examination, Ryan discovered that there had been six occasions, between 18 August 1998 and 16 April 1999, when cash payments had been made from the trust account.[6] In addition, there was a deposit of $61,200 into the office account, on 16 June 1999, and a cheque drawn on the same day for cash for $60,000. Ryan asked Clarke for the relevant files for these transactions, but they were not produced. Inspection of the available records also revealed that a ledger had been opened under the heading of "Miscellaneous".[7]
28 Clarke told Ryan that he had been writing up the trust ledger entries for the previous six months, but that he was unable to produce the records as they had been taken (apparently by garbage collectors), when left for a short time on the nature strip outside his home. He said, however, that he would be able to provide some reconstructed records.
29 Ryan re-attended the practice on 26 and 29 November 1999 and 17 January 2000. At the completion of her inspection on 29 November 1999, she informed Allan that he was in breach of sections of the Legal Practice Act and the Victorian Lawyers Trust Account Practice Rules. He was further informed that he was required to arrange for the reconstruction of the trust records. When she pointed out that the trust receipt book from 20 March 1999 to 19 July 1999 was missing, Allan expressed concern, attributing the loss to Clarke.
30 Clarke was then allocated the task of re-constructing the records. He informed Ryan that he could not do so with respect to the lost 1999 ledgers, but she advised him that it could be achieved by the use of records held by the Commonwealth Bank.
31 On 17 December 1999, Ryan forwarded a letter to Allan setting out various rules relating to the handling and recording of trust monies and repeating her request that the trust ledgers be reconstructed from 1 April 1999. She also asked that they be made available for inspection on 17 January 2000.
32 On 17 and 18 January 2000, Ryan conducted a further inspection at the practice and noted that there appeared to have been no attempt to reconstruct the ledgers. Ryan again reminded Allan of his obligations to maintain accurate records in relation to the trust account.
33 On 27 March 2000, Ryan re-attended the practice. Allan told her that Clarke was not present, but that he would courier all the trust records to the practice, as they had been reconstructed. However they did not arrive.
34 When Ryan returned on the following day, both Clarke and Allan were there. Clarke informed Ryan that he had not reconstructed the ledgers, as he was waiting for the bank to forward copies of pay slips to enable him to identify cheques that had been deposited into the trust account between April and June 1999.
35 Ryan understood that Clarke was finding the request to reconstruct the ledger demanding, as he had normal daily work to complete and was attempting to undertake this activity at night. She again reminded Allan of his responsibility with regard to the matter and the importance of the reconstruction of the ledgers. Ryan stated that it was brought to his attention that, in "a worse case scenario", a receiver could be appointed to the practice. Allan indicated that he was troubled by this possible outcome.
36 Ryan informed him that she would again attend the practice, on 5 June 2000, in order to conduct a review of records that had not yet been provided to her. On 2 May 2000, she telephoned him inquiring about the progress of the reconstruction of the client ledgers. Allan indicated that he anticipated that they would soon be ready for inspection.
37 During Ryan's investigations, Allan appeared to be co-operative at all times and repeatedly assured her that he would arrange for Clarke to reconstruct the records as she had requested.
38 Ryan stated that she was unable to ascertain from her inspection how much money Allan drew in professional fees from the trust or office accounts of the practice. However, it was noted by her that there were large amounts of money being deposited into the office account and then withdrawn on the same day.
Police investigation of the trust account deficiencies
39 The deficiencies detected by Ryan were subsequently reported to the Victoria Police Major Fraud Investigation Division and David Pearson, a financial analyst attached to that division, conducted analyses in relation to the financial affairs of the practice.
40 When the trust account transactions for the calendar year 1999 and the 2000 year until May 26 were examined, it was observed that in 1999 the trust account went into debit on one occasion (on 24 December) in the sum of $5,154.20, and, on 22 May 2000, in the sum of $53,563.59. Pearson also noted that the trust account went into debit on two occasions in 1998. The first was, on 23 September, in the sum of $3,948.58 and the second was, on 12 November, in the sum of $8,482.08. The trust account was overdrawn on a fifth occasion, on 19 April 2000, in the sum of $62,045.88, and again, on 4 January 2000, in the amount of $563.77.
41 The proceeds of a cheque drawn for $75,000 on the account, on 20 August 1999, payable to Clarke, were traced into an account controlled by him.
42 Pearson examined a personal cheque account in the name of Allan for the period 30 March 1999 to 3 July 2000 and noted that it was in debit for a small amount. Allan also had a credit card that was in debit for an insignificant sum at the time of his disappearance.
43 Pearson examined a Westpac joint cheque account held by Clarke. In the 12 month period prior to the account being closed on 14 September 1999, the total amount deposited and withdrawn was $4.3 million. There were six occasions on which cheques totalling $63,690, drawn on the trust account, were deposited into this account. In relation to five of these deposits, there were no records in the trust ledgers to describe the payments and in respect of none of them, was Pearson able to identify funds justifying the payment concerned. Pearson stated that there were a total of 53 deposits totalling approximately $3.96 million from the Westpac account into the trust account of the practice over the period.
44 The witness also examined a Commonwealth Bank streamline account in the name of Clarke at the Avondale Heights branch. On 17 March 2000, a deposit of $12,000, by cheque, payable to Clarke, and drawn on the trust account was made and then withdrawn in cash on the same day. On 22 March 2000, there were cheque deposits of $65,656 and $42,344 into Clarke's account. Both were drawn on the trust account and were signed by and made payable to Clarke. Pearson stated that there was a total of about $120,000 paid into Clarke's Commonwealth Bank account from the practice's trust account. He also stated that there were no records of any funds going into the trust account to justify any of the payments made.
45 The witness identified monies passing through the trust account, associated with a man named Frank De Stefano. Between 26 November 1998 and 7 September 1999, there were 32 such transactions where amounts were withdrawn by cheque from the trust account and used to purchase bank cheques that were then negotiated at the Crown Casino. On most occasions, the amount negotiated was $140,000 (De Stefano's roll over limit). The total amount involved in these transactions was $3.751 million. Pearson stated that, whilst the majority of the payments were funded, there was a total of $144,000 in six transactions in which this was not the case. In relation to the unfunded payments, cheques were drawn on the trust account, payable to and signed by Clarke, but insufficient monies were returned to the trust account to compensate.
46 The witness also conducted an examination into cheques being drawn on the trust account in relation to a man named Eng Huan Chew. A number were used to purchase bank cheques that were then negotiated at the Crown Casino. There were 37 transactions of this kind between 2 February 1999 and 19 April 2000. The total amount involved was $961,978.30. Funding was identified for all, save an amount of $29,000. Seven of these transactions were recorded as miscellaneous payments in the books of the practice, seven under the name E.H. Chen, six under the name of Traillon and 17 were not recorded at all.
The Crown Contention
47 In respect of these dealings, it was the Crown's case that, between 1 January 1999 and 26 May 2000, Clarke was responsible for a large number of unlawful transactions in respect of the trust account, totalling $4,715,938.30. In addition, during this period Clarke inappropriately used the trust account causing unfunded transactions to occur in the amount of $426,960.
48 In summary, the prosecution argued that the evidence demonstrated that Clarke frequently attended the Mahogany Room of the Crown Casino and became involved in a "roll-over" system of credit with other gamblers that enabled them to maintain a line of credit with the casino. Clarke illegally used funds from the trust account to operate this system.
Allan's credit card account
49 Mary Clare, a credit card investigator with the ANZ Bank, stated that Allan had an ANZ Bankcard with an outstanding debit balance of $6,421.99. There was a transaction recorded for 30 May 2000. However, the witness stated it was possible for it to have occurred at an earlier time with the possibility that the date of the transaction referred to the date on which the merchant processed the transaction through its own bank.
Fidelity Fund claims against the practice
50 In June 2003, the practice had 69 compensation claims lodged against it by clients under the Legal Practitioner's Fidelity Fund totalling $827,302.07. The Legal Practice Board paid a total of $577,128.44 to a number of persons who claimed to have suffered loss arising from the manner of operation of the practice at Avondale Heights.
51 Leo Leung, a claim investigation manager of the LIV, investigated at least 52 of these claims, most of which were allowed in full or in part. The principal reason for disallowance was the absence of sufficient records to substantiate the claimant's assertion.
52 Ronald Hall, an inspector for the LIV, investigated four of the claims. He stated that he could not locate any cash receipt books for 1999 or 2000 and the claimants could not produce receipts. The witness stated, however, that there was evidence that 38 deposits amounting to $540,630.97 were received by the practice in cash through the trust account for the period February 1999 to April 2000. In relation to one claim, he could find no evidence that the client concerned had paid $30,000, in cash, to the practice as he asserted notwithstanding that part payment of barrister's fees associated with the client's representation had been made by the practice.
53 The claim of another client who alleged that he had paid $9,500 in cash to the practice was also refused as there was no evidence of payment, nor were there any financial records within the practice indicating that the money had been received. However, as in the previous example, the witness was able to establish that a barrister engaged on behalf of the client in the matter was paid in cash by Allan, even though there was no corresponding trust account record.
54 Hall said he was aware that the trust ledger at the practice was only written up until July 1999 and that all subsequent banking records had disappeared. He described the files of the practice as being in a general state of disarray.
Trust moneys going from Clarke to Athanasi
55 According to Clarke when subsequently interviewed, during late April 2000, he approached Athanasi for a $50,000 unsecured loan on behalf of Allan, the purpose of which was to "prop up" the trust account of the practice. Clarke brokered this arrangement on the understanding that Athanasi would be paid $56,000. Athanasi then advanced $50,000 in cash. No written agreement existed concerning this loan and no records were located at the practice with respect to it. Apart from the version given by Clarke, there was no independent evidence that Allan ever received any loan from Athanasi or that he knowingly paid any money to him. All known bank accounts operated by Athanasi were examined without investigators locating any evidence of the alleged transaction or of funds capable of supporting it. However, examination of these bank accounts revealed that Athanasi had received four separate amounts from the practice's trust account, all of which were signed by Clarke. The first payment was by means of a bank cheque purchased by a trust account cheque for the amount of $12,000, dated 12 April 2000. The second was also a bank cheque purchased by a trust account cheque for the amount of $18,000, dated 1 May 2000, and signed by Clarke. The third was similarly a bank cheque purchased by a trust account cheque for the amount of $14,000, dated 12 May 2000, whilst the fourth was made by a trust account cheque for the amount of $26,000, dated 19 May 2000. The total amount received, accordingly, by Athanasi was $70,000.
56 Pearson stated that there was no funding for any of those four cheques, nor did he locate any trust account ledgers relating to them, or any other record or entry justifying any of the payments. However, he did accept that these findings had to be assessed against the background that he did not sight any trust ledger records at all for the year 2000. The amounts were paid into a Commonwealth Bank account held by Athanasi at St Albans, the predominant source of deposits into which were social security payments.
57 The bank account of Cavkic was also examined and there were no traces of moneys linking this account to the trust account of the practice, Athanasi or Clarke.
Allan's activities prior to his disappearance
58 After he left the practice, on the afternoon of Friday, 26 May 2000, Allan attended a harness race meeting in Bendigo in company with his long time friend Cheryl Lahey, her brother Norman Sutherland and his wife Mariam. All four stayed overnight and returned to Melbourne, at around lunchtime, on the next day. Later, they went to the Crown Casino. Allan did not gamble and chose to watch the races on a large television screen in the premises. He returned to his own home, after dropping off Lahey, at approximately 1:00 a.m. on Sunday 28 May.
59 At approximately 4:30 p.m. on that day, Lyle Allan (Allan's brother) accompanied Allan to his practice in Avondale Heights. They travelled together in Allan's blue Mercedes-Benz and stayed there for about an hour.
60 Whilst travelling to the practice, Allan informed his brother that he needed $100,000 urgently. He stated that he had to pay money to a client and asked his brother whether he had access to any funds. When Lyle queried him about this situation, Allan did not proffer any further information, save that he said that there were problems in the practice related to the performance of a member of his staff. Lyle told Allan he had immediate access to $25,000 but that he would need a week to obtain any more.
61 The two men left the practice together and returned home. Lyle did not recall seeing anything on the backseat of the car at time, although he did remember that the vehicle was in its usual spotless condition.
62 Allan then left to travel to Lahey's house. After he had gone, Lyle Allan received a phone call from Clarke who was endeavouring to contact his brother. Clarke was told to call him on his mobile phone. Allan later rang and was informed of Clarke's call.
63 That evening, Allan, Lyle Allan, Lahey and Sutherland went to an hotel in Preston for dinner. Allan appeared to be in good spirits.
64 Lyle Allan left the dinner at about 8:15 p.m. He stated that he expected his brother home within an hour.
65 Allan left at the same time, driving Lahey and Sutherland to Lahey's Preston home where Sutherland had left his car. Allan then took Lahey to a supermarket and then back to her home. Lahey stated that the boot was clean when she removed her groceries from it.
66 Allan told Lahey he was going to meet Clarke. Lahey described Allan's vehicle as being very clean and containing little in the way of property, either in the interior or the boot. Lahey requested Allan to call her from his mobile phone on his way home from the meeting. Lahey did not hear from him after that time.
67 Lyle Allan said that his brother was generally reluctant to permit anyone else to drive his car. However, Lahey stated that Allan would allow close friends to drive the vehicle on occasions.
Allan's meeting with Clarke at the practice
68 At approximately 7:00 p.m. on Sunday 28 May, Clarke arrived at the practice, contacted Allan and arranged for them to meet there later that evening. While waiting, Clarke compiled a letter addressed to Allan in which he expressed his concern at the operation of the trust account and his reluctance to assist Allan with "any further charade". It also presented an image of Allan as a person under pressure and contemplating suicide.
69 Allan arrived at the practice in Avondale heights at about 9:30 p.m. and the two men discussed the financial difficulties confronting the practice. Clarke claimed that he handed the letter to Allan who read it and then threw it back into his face.
70 Police examination of the computer system at the practice revealed that the document was created on Clarke's computer on Sunday 28 May 2000 at 9:27 p.m.
71 Allan and Clarke left the practice at about 9:45 p.m. and travelled separately to a Mobil Service Station in East Keilor. They left separately shortly afterwards. Allan has not been seen or heard from since that time.
72 Clarke drove home to Port Melbourne from the service station, arriving at approximately 10:30 p.m. He went to bed at around midnight and remained at the premises all night.
73 Adele Hancock received a phone call from Clarke, at about 7:30 a.m., on Monday 29 May 2000, instructing her not to come into work as Allan had disappeared and that the office was closing. Clarke also said that he was not coming back. The witness was recalled and it was put to her that she received two calls from Clarke on that morning. She said that she was unable to remember receiving a second call, although telephone company records confirm that there were two calls to her number emanating from the practice in that period.
Police interception of Cavkic and Athanasi in Ayr Street, Laverton
74 At about 2:20 a.m. on Monday 29 May 2000, Senior Constable Strongman and Senior Constable McCarthy who were patrolling the Laverton area, turned into Ayr Street, a "no through" road, and observed two cars parked at the eastern end. The Crown submitted that the location was relatively isolated, although there were a number of houses nearby. There was no street lighting illuminating the area where the cars were parked.
75 One of the vehicles was a white coloured Jaguar sedan with New South Wales registration plates. A male was seated in the driver's seat. He alighted and walked towards them. He identified himself as Costas Athanasi of Keilor Downs. Athanasi informed the two police members that his friend "Sudo" (Cavkic) had telephoned him asking for assistance, as the handbrake on his car was stuck[8]. Athanasi informed the police that he knew Cavkic through their common interest in soccer and that they had been acquainted for about six months. The Jaguar was inspected with nothing suspicious being detected by McCarthy. After the police verified his details, Athanasi returned to his vehicle and left the scene.
76 The second vehicle that the police observed was Allan's dark blue Mercedes Benz. Cavkic was seated in the driver's seat. He provided false details to them, identifying himself as Bruce John Mabbott of the Deer Park Caravan Park. He claimed that he was holidaying in Victoria from Perth and provided an address in that city. Cavkic told them that he rang Athanasi because the hand brake of the car was stuck. He also stated that he had known Athanasi for about six months.
77 Cavkic was questioned by the police and stated that the car belonged to a person named Keith. He told them that he had known Keith for two or three weeks and that they had been on a "pub crawl" together on the previous evening. He further stated that Keith did not know that he had borrowed his car. Cavkic said that he had taken it for a test drive, to see what it felt like, but had become lost and then encountered difficulties with the hand brake.[9]
78 Police observed a large shovel and smaller shovel on the back seat and a petrol tin containing fluid, behind the front passenger seat. There was, they said, fresh soil on the blades of both shovels and on the seat. A small metal bar was located on the floor next to the tin.[10] The interior light globes had been removed from the ceiling of the vehicle.
79 The police also located, between the driver's seat and the front console, a black leather wallet with a driver's licence, credit cards, cash and personal items in the name of Allan. A blue faced Ericsson mobile phone, which they later learned was registered in the name of Cavkic, and a black leather key holder were found on the front passenger seat. When he was asked who owned the phone, Cavkic replied "I don't know, probably Keith, the bloke who owns the car". After McCarthy dialled some of the numbers stored in it, he formed the view that the telephone appeared to belong to Cavkic.
80 A green garbage bag containing a black faced Ericsson mobile phone, a 35mm camera, binoculars, Mercedes Benz paperwork in a black folder, a number of other documents, and a small wooden handle from a skipping rope, were observed in the
front passenger foot well. All of these items, it later emerged, belonged to Allan with the exception of the small wooden handle.
81 The police told Cavkic that they were not satisfied about his professed identity. He was then searched with his consent and found to be wearing a shoulder holster. He said that he had forgotten to remove it.
82 The police also found, in his possession, a small black torch and a length of skipping rope with a wooden handle attached to one end. This handle appeared to match the other handle found in the green garbage bag. A silver cigarette lighter was located in Cavkic's pants.
83 Acting Senior Sergeant Keith Kissack arrived on the scene in order to assist with the inquiries. Cavkic again stated his name as Bruce Mabbott.
84 He was then arrested in relation to the unlawful possession of the vehicle and taken to the Williamstown Police Station where he was further searched. A 7.62mm Russian Tokarev Model TT1933 self loading service pistol with the serial number erased was located, concealed in his pants. There was a magazine containing five rounds in the firearm. There was one round in the chamber and a deposit of partly burnt grains of powder in the bore. However, Kissack stated that he could not recollect the smell of gun powder.
85 The pistol was later examined by Senior Constable Henry Glaser. He found it to be in working order. He stated that he did not detect any odour of recent discharge, but gave a time span of five minutes to 24 hours as the range for the period of time during which the weapon could have been fired and an odour not detected. The pistol had been discharged, but he was unable to express an opinion as to how recently.
86 Cavkic asserted initially, when searched at the police station, that he did not have the pistol with him when the police searched him at the scene, but did not persist with this claim. He then informed them of his true identity and stated he was "stupid" for providing a false name and address. His clothing was seized for examination.
87 Detective Senior Sergeant Rovis, of the Homicide Squad, who had been contacted by the local police, spoke with Cavkic at the Williamstown Police Station. He asked the applicant about the whereabouts of the car's owner. Cavkic told him that Keith lent him the vehicle to pick up a package (the package being the gun wrapped in a plastic bag). Allan told Cavkic, he said, that he could use the vehicle for this purpose and that the arrangement was made at the Taylors Lakes Hotel. Cavkic stated that Keith was "pretty pissed" and on a "pub crawl" and that no arrangement had been put in place for the return of the vehicle to him. When Rovis remarked that the story was a "bit far fetched", Cavkic responded that the owner was not dead and that the gun found on him had not been fired.
Lyle Allan's attempted contact of his brother
88 At 11:30 p.m. when Allan had not arrived home, Lyle Allan called his mobile phone number on two occasions. On both the phone rang, but the call was terminated at the other end. Lyle stated that he had never known his brother not to answer his phone. Finally he rang again at about 12:30 a.m. but the call was rejected.
The Police Investigation
Video tape of Allan's last sighting
89 A video tape, dated 28 May 2000, obtained from the Mobil Quix Service Station in East Keilor showed both Clarke and Allan at the service station at approximately 9:53 p.m.
90 Video camera footage was also obtained from the Taylors Lakes Hotel. According to the evidence, police viewed many hours of tapes and were unable to locate either Cavkic or Allan in the Hotel.
Telephone records of Clarke, Athanasi and Cavkic
91 Telephone call charge records indicated that Clarke's mobile phone contacted that of Athanasi on Sunday 28 May 2000: