R v Cavkic, Athanasi & Clarke [2005] VSCA 182

1 Having had the advantage of reading the reasons for judgment prepared by Vincent, J.A., I agree that these applications for leave to appeal must be allowed, the verdicts of guilty of murder set aside, and a re-trial ordered, and, subject to the following, substantially for the reasons given by his Honour.

2 The trial judge was faced with a very difficult problem when the jury asked their question as to the definition of "reasonable doubt". The question showed that some member or members of the jury may have been considering the accused's guilt on the basis that they were "70 per cent or 80 per cent sure", an approach which would have been completely mistaken, and might have led to an accused being convicted of murder in circumstances amounting to a very serious miscarriage of justice. It may be that some jurors were drawing a contrast to the civil standard of proof, to which the judge had properly, by way of comparison, drawn their attention. His Honour was plainly mindful of High Court authority[1] that trial judges should avoid further explanation or elaboration of the definition of "reasonable doubt" and his purpose in what was said in response to the jury's question was to focus their attention once more on the conventional directions he had given in his charge. Those directions had, however, previously left the jury or one or more of them, in a state of mind which had led to the asking of the question and the judge's response was, with respect, unfortunately not an answer to that question. Nor did it directly disabuse any of the jury labouring under the mistaken view implicit in the question. The judge's redirection, therefore, may well have left a juror or jurors still in the belief that it was proper to approach the issue of guilt beyond reasonable doubt by reference to a percentage ratio.

3 As Vincent, J.A. has said, the situation did indeed require careful handling. The decisions in Queensland of R. v. McNamara[2] and R. v. Collins[3], quoted by his

Honour[4], are both examples directly relevant to the present case which show that the restatement of the conventional direction on reasonable doubt may give insufficient assistance to a jury which has shown by a question an uncertainty or mistaken view as to the nature of the jury's proper function. The issue in the present case is much like that raised in Collins, where the Court of Appeal decided that the question asked by the jury showed that the jury was confused "about the concepts of probability and beyond reasonable doubt" and took the view that the re-direction given by the judge did not make the distinction sufficiently clear, thus constituting a fundamental defect in the conduct of the trial. Here it was, I think, necessary, for the reasons given by Vincent, J.A., for the judge to have told the jury that they must not approach their task by reference to the calculation of percentages, and that it would be completely wrong for them to do so. I agree with his Honour that the presence of a possible misconception by the jury of the applicable standard of proof constitutes a fundamental defect in the conduct of the trial, and that the verdicts of guilty must accordingly be set aside.

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:

• 5:48:43 p.m. - duration of three seconds, utilising the Port Melbourne Tower

• 7:28:10 p.m. - duration of 13 seconds, utilising the Sunshine East Tower[11].

92 Vodaphone call charge records indicated that Athanasi's mobile contacted that of Clarke's on Sunday 28 May 2000 on four occasions during the day and then at:

• 7:52 p.m. - duration of 12 seconds, utilising the Taylors Lakes Tower

• 7:58:23 p.m. - duration of 24 seconds, utilising the Taylors Lakes Tower

• 10:00:05 p.m. - duration of 12 seconds, utilising the Taylors Lakes Tower[12]

• 10:05 p.m. - duration of 12 seconds, utilising the Delahey Tower

93 The records indicated that Athanasi's mobile phone contacted Clarke's mobile on Monday 29 May 2000 on the following occasion:

• 9:35 a.m. - duration of 12 seconds, utilising the Kensington Tower

94 Vodaphone call charge records indicated that Athanasi's mobile contacted that of Cavkic's on three occasions during the day on Sunday 28 May 2000 and then at:

• 6:51 p.m. - duration of nine seconds, utilising the Taylors Lakes Tower

• 9:10:08 p.m. - duration of 11 seconds, utilising the Mt Macedon Tower

• 10:06:39 p.m. - duration of 29 seconds, utilising the Taylors Lakes Tower

• 11:27:59 p.m. - duration of 23 seconds, utilising the Taylors Lakes Tower

• 11:50 p.m. - duration of three seconds, utilising the Taylors Lakes Tower

95 Vodaphone call charge records indicated that Athanasi's mobile contacted Cavkic's mobile on Monday 29 May 2000 at:

• 2:16:21 a.m. - duration of 57 seconds, utilising the Altona Tower

96 Vodaphone call charge records indicated that Cavkic's mobile contacted Athanasi's mobile on the night of Sunday 28 May 2000 on the following occasions:

• 10:10:11 p.m. - duration of seven seconds, utilising the Broadmeadows Tower

• 10:52:42 p.m. - duration of 52 seconds, utilising the Mt Macedon Tower

• 10:55:50 p.m. - duration of 32 seconds, utilising the Mt Macedon Tower

• 11:24:22 p.m. - duration of 54 seconds, utilising the Mt Macedon Tower

97 Vodaphone call charge records indicated that Cavkic's mobile contacted Athanasi's mobile twice on Monday 29 May 2000:

• 1:54:55 p.m. - duration of 92 seconds, utilising the Altona Tower

• 2:18:34 p.m. - duration of 94 seconds, utilising the Altona Tower

98 Vodaphone call charge records indicated that Athanasi's mobile contacted Allan's practice on Sunday 28 May 2000 at:

• 4:52 p.m. - duration of 27 seconds, utilising the Parkville Tower

99 Telstra call charge records indicated that Allan's mobile contacted Cavkic's mobile on Sunday 28 May 2000 at:

• 11:15:37 p.m. - duration of 10 seconds, utilising the Mt Gisborne Tower

100 Telstra call charge records indicated that Allan's mobile contacted Athanasi's mobile on Monday 29 May 2000 at:

• 12:45:57 p.m. - duration of nine seconds, utilising the Mt Blackwood Tower

101 Justin Starke, manager of the law enforcement of Vodaphone, stated that calls are recorded in circumstances where a phone was not actually answered but a voice message activated. He stated that in relation to the records produced there were no records showing an inquiry of the voice mail service.

102 Jowed Khatiz, a product service specialist with Vodaphone, stated that the tower used for mobile phones transmission have varying ranges of coverage in kilometres. This means that for a call to be captured by a tower, the call would be expected to be within a designated range of that particular tower. This may not occur if there is congestion and it was possible that a call could be picked up by a neighbouring but more distant tower.

Kypros Kypri

103 Kypros Kypri, a cousin of Athanasi, had met Allan at least twice and had met Clarke, several times, including occasions at the Crown Casino.

104 Kypri resided in Queensland at a time when he was contacted, on his mobile phone, by Clarke. This conversation concerned a query as to whether Kypri had taken some money from Athanasi.

105 At around the same time, Athanasi visited the witness in Queensland, staying with him for a period. Kypri stated that, whilst Athanasi was at his home, Athanasi was continually telephoned by Clarke. When Kypri queried him as to the reason for this level of contact, he was informed that Clarke had either given or lent him $50,000.

The pistols and Joseph Strinavic

106 On 15 June 2000, police investigators searched the premises of Athanasi, locating an imitation pistol on shelving in the garage.

107 Joseph Strinavic stated that he knew both Cavkic and Athanasi. Sometime during 2000, Cavkic and he were in Athanasi's garage when Athanasi produced a pistol and a shoulder holster. The witness stated that the pistol was dark in colour and "pretty heavy". The pistol taken from Cavkic was tendered during the course of the trial. When shown to Strinavic, he stated that, although its colour and weight were the same, he could not say that it was the pistol shown to them.

108 About one to two weeks after this incident, Strinavic read about the disappearance of a solicitor.

109 The imitation pistol that was seized in Athanasi's garage was also shown to Strinavic. He stated initially that it was different to the one shown to him but later said, that the two were "very similar" and he could not exclude the possibility that imitation pistol shown was the one that he had seen.

110 Detective Senior Constable Rae stated that both pistols were subjected to forensic testing and no identifiable finger prints were found on either of them.

Purchase of new vehicle by Athanasi

111 Bernie Smith, the owner of Bernie Smith Classic Cars, stated that on 20 April 2000, he met Athanasi who was looking for a car to purchase. Athanasi subsequently purchased the Jaguar vehicle earlier mentioned, making payment in one hundred dollar notes, totalling $12,000.

Clarke and Gibbons

112 David Gibbons was, during the relevant period, in a relationship with Clarke with whom he resided in premises located in Port Melbourne (from 16 May to 16 October 2000.)

113 Gibbons stated that Clarke had also had a relationship with Chew. Clarke had told Gibbons that Chew had a gambling problem and that he had assisted him with short term loans from the practice's trust account. Clarke advised Gibbons that this activity had ceased in September 1999 and that Allan knew of the arrangement. Clarke also told Gibbons that he had provided similar assistance to De Stefano and that Allan was aware that he had done so. Gibbons stated that Clarke described Allan as not particularly business wise and too trusting. Gibbons became aware from Clarke that Allan often did not collect fees in advance.

114 Gibbons stated that he knew of Clarke's association with Athanasi.

115 Prior to Allan's disappearance, Clarke informed Gibbons of his concern about the deficiencies in the trust account and that he was experiencing frustration that Allan was not accepting responsibility for them. Clarke said that he was required to endeavour to recover fees from clients who had not paid their bills. He also said that Allan was withdrawing $2,000 per week from the trust account.

116 Gibbons stated that during the week leading up to 28 May 2000, Clarke informed him that was going to give Allan an ultimatum, requiring him to rectify the problems with the trust account. Clarke also informed Gibbons that, if Allan did nothing about the situation, he would go to the LIV regarding this matter.

117 On Sunday 28 May 2000, Gibbons was at the Port Melbourne premises in company with Clarke. Between 5:30 and 6:00 p.m. Clarke left the address to attend the practice in order to meet with Allan. He returned between 10:30 and 11:00 p.m. and went to bed at about midnight. Clarke remained at the house until the following morning.

Telephone calls made by Clarke on 29 and 30 May

118 At approximately 9:00 a.m. on 29 May, Clarke contacted Allan's brother stating that Allan was in "deep shit". Clarke then referred to the financial difficulties of the practice. At approximately 9:00 a.m. Clarke rang Gary Roberts and stated that Allan was "in a spot of bother" and that "shit had hit the fan".

119 On 30 May, Clarke again rang Roberts and mentioned that he had seen a solicitor and someone from the LIV. Clarke said that approximately $300,000 was missing in trust monies and that he had spoken to Allan on the previous Sunday and had informed him that he would report it to the LIV on Monday. He said that Allan had replied "no way". Clarke also claimed that he had tried to borrow some money on Allan's behalf but that was unsuccessful.

120 On 29 May 2000, Clarke also telephoned Gibbons informing him that Allan was missing. During the days after his disappearance, Clarke expressed the view that either Allan had absconded or that he had met with foul play.

121 Gibbons stated that Clarke had told him that Allan had kept two sets of trust accounts books and that he had asked Clarke to dispose of them. Gibbons stated that Clarke said that he did as requested.

Telephone intercepts between Clark and Athanasi

122 As a part of the investigation into the disappearance of Allan, a telephone intercept was established on Athanasi's mobile between 18 February and 22 March 2002. On 19 February 2002, the Herald-Sun newspaper featured an article regarding the arrest of Cavkic.

123 At 3:27 a.m., on 19 February 2002, Athanasi was informed of this arrest by his de facto partner, Vicki Lester. Athanasi stated that he was "stressed" and told Lester not to "say a word to anyone and not to "even talk about it in the house, on the phone, nothing".

124 At 3:32 a.m. Athanasi contacted Clarke's home and left a message for Clarke to contact him "urgently". Gibbons stated in evidence that Athanasi would often ring at odd hours.

125 Various phone calls made during the day indicated that Athanasi and Clarke contacted each other via a third person (Travis Toyne - Clarke's nephew) and arranged to meet at the Windy Hill Football Ground, Essendon. Athanasi requested that Clarke come quickly and for him to "watch his back", mentioning that Cavkic had been arrested for murder.

126 Police surveillance ascertained Clarke's attendance at the Essendon Football Club's premises, where he remained for a period of time. Clarke appeared to be a little agitated. Athanasi did not attend.

127 As a result of further telephone calls made via Toyne, Clarke and Athanasi arranged to meet at the Doncaster Shopping Town. Again Clarke attended for a period of time and again Athanasi failed to attend. Clarke spoke to Athanasi on the telephone whilst he was waiting there and Athanasi told him to relax.

128 On the same day, Athanasi also had a telephone conversation with an unknown male. In this call Athanasi stated that Cavkic had been arrested for murder and that Clarke was "stressing" about it.

129 On 20 February 2002, Clarke had a further telephone conversation with Athanasi. They arranged to meet. During this conversation Athanasi told Clarke to be careful about what he said.

Forensic Examinations

Cavkic's Clothing

130 Forensic examination on Cavkic's socks, trousers and shoe revealed the presence of a human bloodstain on the hem of the trousers, another on his sock, and three bloodstains on his right shoe.

131 All three sites of blood matched the DNA profile from the material taken from a hairbrush, which it was believed was exclusively used by Allan.

132 The statistical analysis of this DNA match indicated that the blood on Cavkic's clothing was at least nine hundred billion times more likely to have originated from the same source as that on the hairbrush than from another male chosen at random from the Victorian Caucasian population.

Forensic testing of other items

133 Forensic tests were performed on four sites in the interior of Allan's car, the back seat, the two front seat covers and the floor mat.

134 DNA material was located on the front driver's seat that matched the DNA profile of the hairbrush.[13]

135 A pair of optical glasses, optical lenses and two interior light covers and globes found inside Allan's vehicle, were examined. The optical glasses and lenses were identified as belonging to him and the interior light covers and globes were identified as belonging to that model of vehicle.

136 There was mud or dirt on the rear tyres and the lower sill of the door of the car. This was consistent, it was asserted, with the vehicle having been driven on a dirt road.

137 On 30 May 2000, police investigators examined the Jaguar car driven by Athanasi. A business card in the name of Allan and two plastic credit cards were located in the front centre console. Forensic testing performed on the vehicle's interior revealed no trace of blood or the presence of DNA matching the profile of Allan.

138 The petrol container located in the rear of Allan's vehicle was found to contain 100 millilitres of petrol.

139 The firearm seized from Cavkic could, according to the firearms expert, have been carried and used in the holster worn by him.

140 The holster was tested for any material matching the DNA profile of the material located on the hairbrush with negative results.

141 No forensic tests were performed on the shovels found in Allan's vehicle.

142 The wooden handles of the skipping rope did not reveal the presence of blood or DNA material relating to Allan.

143 The boot of Allan's vehicle was also examined for the presence of blood. The results were negative.

DNA Profiles

144 Kathryn Bradley, a forensic scientist, received reference samples from Cavkic, Athanasi and Clarke. These were subsequently analysed for DNA.

145 In relation to Cavkic, a full DNA profile was not obtained. The partial profile obtained, however, matched the biological material found on the pistol and the partial profile obtained from the floor mat of Allan's vehicle.

146 In relation to Athanasi, a full DNA profile was obtained. Testing showed that Athanasi could not be excluded as a contributor to various sites of biological material found in the Jaguar.

147 In relation to Clarke, a full DNA profile was obtained. Testing showed that Clarke could not be excluded as a contributor to various sites of biological material found in the Jaguar.

Telephone activity between the three co-accused.

148 Detective Senior Constable Rae produced charts showing the frequency of -

• mobile telephone calls between Athanasi and Clarke (71 calls between 1 May 2000 and 31 May 2000)

• telephone calls between Athanasi's mobile and the two landlines of the Avondale Heights' practice (61 calls between 1 March 2000 and 31 May 2000)

• telephone calls between Athanasi's landline and the two landlines of the Avondale Heights' practice (25 calls between 1 March 2000 and 31 May 2000)

• mobile telephone calls between Athanasi to Cavkic (57 calls between 1 May 2000 and 31 May 2000)

• mobile telephone calls between Cavkic to Athanasi (94 calls between 1 May 2000 and 31 May 2000)

• mobile telephone calls from Clarke's mobile and the two practice landlines to Athanasi's mobile and landline (63 calls between 1 March 2000 and 31 May 2000).

Interviews with the accused

Clarke

149 On 29 May 2000 and 1 June 2000, investigators obtained signed statements from Clarke.

150 In a statement dated 29 May 2000, Clarke provided a version of his association with Allan. He said that he was aware that the trust account went into deficit in September 1998 in the amount of $140-180,000 and that by July 1999 the debt had increased to at least $190,000. He referred to Allan's interest in harness racing, but stated that he was not a heavy gambler. He further outlined Allan's involvement with a migration business and stated that he believed Allan had lost about $45,000 in that activity. Clarke stated that Allan was taking money out of the trust account for his own personal use. He further outlined what he said were the circumstances regarding the provision of an unsecured loan provided by Athanasi to Allan. This loan was for $50,000 and was brokered by Clarke. It was not documented and was used by Allan to pay outstanding creditors. Clarke stated that he paid back the loan in four instalments in May 2000. Clarke stated that the last occasion on which he saw Athanasi was on Thursday 25 May 2000, and that the last time that he spoke to him was on Sunday 28 May at about 6:00 p.m. when Athanasi refused to provide a further loan to Allan. On Sunday 28 May he attended the practice, at about 7:05 p.m., in order to meet with Allan to discuss matters. Allan arrived at about 9:30 p.m. and they discussed various options. Clarke gave him a letter, that he had compiled, which Allan read. Allan then threw it back at him. Clarke stated that Allan refused to agree to refer the matter to the LIV. Clarke stated that they both left the practice and travelled to a service station to purchase petrol. They then parted ways. Clarke stated that he went to Gibbons' home in Port Melbourne, arriving at 10:30 p.m. and remaining until morning, and that he did not speak to anyone else apart from Gibbons. Clarke stated that he arrived at the practice at 7:30 a.m. on 29 May and telephoned Lyle Allan who told him that Allan was missing. Clarke made reference to Allan speaking about suicide since Christmas. Clarke further stated that he had not spoken to Athanasi on that day.

151 In another statement, dated 1 June 2000, Clarke denied any knowledge of Cavkic, saying that he did not think he had ever heard of him.

152 On 31 October 2002, Clarke was arrested by the Homicide Squad. He was conveyed to the squad office and interviewed regarding the matter. After receiving legal advice he declined to answer any questions.

Athanasi

153 On 29 May 2000, uniformed police conducted an initial interview with Athanasi, in Ayr Street, Laverton, as earlier mentioned.

154 On 19 April 2000, police made an application under s. 464 of the Crimes Act 1958 to interview him further in relation to the matter. The application was successful and he was conveyed to the Homicide Squad. However, as was his right, he declined to answer any allegations.

Cavkic

155 Members of the Homicide Squad interviewed Cavkic on 30 May 2000. He declined to answer any questions and was then charged with the offences of carrying an unregistered handgun without a licence and theft of a motor vehicle. He was later released from custody but re-arrested on 18 February 2000. Save that he denied any knowledge of the matter, he declined to answer any questions surrounding the disappearance of Allan. He was then charged.

The Whereabouts of Allan

156 The evidence indicated that investigators conducted extensive inquiries with all known relatives, friends and associates of Allan as to his possible whereabouts. National inquiries were conducted with government and semi-government agencies, national police databases, banking institutions and utility providers. None resulted in the location of Allan or his remains. There was extensive media coverage of the disappearance and there have been no alleged sightings of him. Detective Senior Constable Rae stated that Allan was not the holder of a current passport, although it was conceded by Detective Senior Constable Hickman, in cross-examination, that the checks were performed only using Allan's name.

The Case For The Prosecution

157 As earlier mentioned, the prosecution contended that Clarke arranged for the murder of Allan in an endeavour to avoid blame for serious deficiencies in a trust account administered by him. He "contracted" the killing to Athanasi and paid him $70,000. In turn, Athanasi "subcontracted" the killing to Cavkic who then carried out the murder.

158 It was submitted that although no body was ever found, the jury should be satisfied, beyond reasonable doubt, that Allan was killed between the time he was last seen at a Mobil Service station, in East Keilor, at about 9:53 p.m., on Sunday 28 May 2000, and some time prior to 2:20 a.m., on Monday 29 May 2000, when two police officers came across Cavkic and Athanasi in Ayr Street, Laverton.

The case against Cavkic

159 When Cavkic and Athanasi were intercepted in Ayr Street, Laverton, by Senior Constables Strongman and McCarthy for a routine check, Cavkic was found in Allan's Mercedes-Benz in which there were numerous personal items belonging to Allan of a kind, the Crown argued, that a person would not have been likely to give to someone else.

160 When questioned with respect to his presence at Ayr Street, Cavkic told Senior Constable Strongman that the hand brake was stuck and that he had called Athanasi for assistance in relation to it. In this context, the prosecution argued that it was significant he had claimed to have sought help from a person who, within the previous few weeks, had received $70,000 from Clarke that had been taken from Allan's trust account.

161 A petrol can was also located in the vehicle containing approximately 100 millilitres of petrol. Cavkic also had in his possession a silver lighter. The Crown submitted that Cavkic had the means to destroy Allan's car and all his personal belongings so that nothing would remain other than a burnt vehicle, effectively destroying the only link between Cavkic and Allan. Regard had to be had also, the Crown submitted, to the telephone communication between Athanasi and Cavkic on that night. Athanasi's presence, in Ayr Street, the Crown argued, was not only to assist Cavkic in destroying the only link to the disappearance of Allan involving Cavkic, but it was reasonable to infer, to provide a means of escape afterwards.

162 At the time that he was intercepted, Cavkic was wearing a shoulder holster. On being subsequently searched at the Williamstown police station, he was found to be in possession of a pistol. Although the Crown conceded it was not possible to say that Allan was killed with that pistol, the Crown argued, it could certainly have been used as a means of control and the fact that he was so equipped was highly unlikely to be coincidental.

163 The police saw two shovels on the back seat of the Mercedes-Benz. Both had fresh soil on them. In the period between the Mobil Service station and the Ayr Street interception, Cavkic was in rural areas, the Crown contended, suitable for the disposal of a body using those implements. Again the presence of those items which were not in the car earlier on that night was, the Crown contended, unlikely to be a coincidence.

164 When questioned by the police in Ayr Street, and subsequently at the Williamstown Police Station, Cavkic, the Crown submitted, told deliberate lies, as to how he came to be in possession of the Mercedes, Allan's personal property, the pistol and holster. The Crown invited the jury to accept that, if Cavkic told the truth about these matters, he would have exposed himself as Allan's killer. He gave the false name of Bruce John Mabbot and stated he was visiting from Perth. On being queried about the car's owner, he gave the name of "Keith" but said that he was unable to give the police a surname. He also claimed that he had just borrowed the vehicle for a drive. When he was questioned about Athanasi, he said his name was "Con" and again that he did not know his surname. This, the Crown argued, was clearly false as there had been significant phone contact between the two during the previous day and in the preceding months. The phone records demonstrated that they were certainly not strangers to each other. When Cavkic was questioned by Strongman regarding "Keith's" whereabouts he provided the explanation that "Keith" was on a "pub crawl". This, the Crown argued, was unlikely to be true given what witnesses had to say about Allan's lifestyle and, in particular, the evidence that he did not drink or take illicit drugs. When Cavkic was asked about "Keith's" possible whereabouts, he told McCarthy that he had left him at the Taylors Lakes Hotel.

165 Cavkic was arrested and taken to the Williamstown Police Station where he was further searched and a pistol was found, concealed in his pants. When subsequently questioned by Detective Senior Sergeant Rovis, he said that Allan had lent him the vehicle to pick up a package (the gun wrapped in a plastic bag) and that there was no arrangement to return the vehicle. Later investigating police looked at approximately 80 hours of video tape from security cameras at the Hotel. Neither Cavkic nor Allan were seen.[14]

166 The prosecution placed emphasis upon evidence of the presence of human blood on Cavkic's clothing which matched the DNA profile of material obtained from a hairbrush belonging to Allan. The DNA from the blood stains found on Cavkic's clothing was, according to the expert evidence, nine hundred billion times more likely to have originated from the source of the biological material on the hairbrush than from another male chosen at random from the Victorian population.

167 The Crown also submitted as significant the fact that telephone company records indicated that Cavkic was somewhere in the vicinity of the Mount Macedon area on that night. This, the Crown advanced, was at the time when Allan was killed and the disposal of his body effected. This evidence, the Crown submitted, in conjunction with the fresh soil seen on the shovel and hoe on the back seat of the Mercedes-Benz, led to the inference that Allan's body must have been buried during that period.

The case against Athanasi

168 The case against Athanasi, the Crown submitted, was that he was paid to arrange for Allan's killing. His presence in Ayr Street indicated that he was not only a party to that arrangement, but was on call to assist, if necessary.

169 With respect to the payments totalling $70,000 from the trust account this, the Crown argued, was a payment by Clarke to Athanasi to arrange Allan's killing, for which Clarke had a powerful motive.

170 The Crown dismissed the notion that this payment was a loan from Clarke or Allan, contending that it would be an "extraordinary thing" to lend money from a solicitor's trust account and make no record of it. Further, it was fanciful to suggest, they asserted, given Athanasi's primary source of income, that he had previously lent money to Allan and that these instalments represented repayments.

171 When intercepted in Ayr Street, Athanasi denied knowing Cavkic's surname, however, the Crown argued, according to his version, he was prepared to attend a remote spot in the early hours of the morning in order to assist a person who he apparently did not know all that well, with a hand brake problem. Furthermore, the Crown submitted, Athanasi, upon learning of Cavkic's arrest on 18 February 2002, was involved in a series of telephone conversations, commencing with a call to Clarke at Gibbons' home and then later arranging contact with Clarke through Toyne (Clarke's nephew).

172 The Crown submitted, as clear, that Athanasi's presence was not for the good Samaritan purpose of helping someone with a hand brake, and that he was fulfilling his part of the arrangement of attending when necessary to provide a means of escape when the Mercedes and all the evidence in it was destroyed.

173 The evidence of Strinavic was also of importance, the Crown argued, as he stated that prior to Allan's disappearance, there was an occasion where he attended Athanasi's garage, with Cavkic, and saw a pistol and holster similar to those seized by the police when Cavkic was searched at Ayr Street and the Williamstown Police Station. Therefore the Crown argued that the pistol and holster found on Cavkic, on 29 May 2000, in Ayr Street and the police station were highly likely to be those that Athanasi had shown him in the garage.

The case against Clarke

174 The Crown argued that it was clear on the evidence that there were problems associated with the practice's trust account. There were cheques not met and there were stages at which the account was in deficit. Ryan, of the LIV, who visited the practice a number of times, spoke to both Allan and Clarke with respect to having their trust records reconstructed, with Clarke indicating that he would undertake this task. However, the Crown submitted, he deliberately failed to do so. His explanation for the absence of records was that he had lost them by leaving them on the nature strip outside his home and that garbage men had taken them. This, in itself, was extraordinary, they argued, particularly when regard was had to the evidence that between 1 January 1999 and 26 May 2000 Clarke was responsible for unlawful transactions, in respect of the account, totalling $4,715,938.30. These transactions involved monies passing through the trust account to Chew, De Stefano, Athanasi and into Clarke's own Westpac, Bank of Melbourne and Commonwealth Bank accounts.

175 The Crown argued that it was apparent that over a very considerable period of time and in respect of the very large amounts, Clarke had control of the trust account and was able to transfer moneys when, where and for what purpose he chose. Such transfers were effected not only for his own direct benefit but also to assist Chew and De Stefano, in what was termed a roll-over arrangement so that they could maintain their lines of credit at the casino.

176 Clarke, the Crown contended, was clearly aware of the Victorian Lawyers RPA investigation and he appreciated that it would not be long before his misuse of the trust account would be revealed. Therefore something had to be done.

177 The evidence showed that between 28 and 29 May 2000, there was a significant number of phone calls made between Clarke and Athanasi, and Athanasi and Cavkic. These contacts were made, the Crown argued, pursuant to an arrangement put in place so that Clarke could alert Athanasi of Allan's whereabouts when he left the Mobil petrol station, with that information then being communicated from Athanasi to Cavkic. It was significant, the Crown submitted, that Clarke lied about his last telephone contact with Athanasi on the night of Allan's disappearance by stating that it was at 6:00p.m. when in fact it was at 10:00 p.m. The reason he did so, the argument provided was that he was concerned to distance himself from the events of that night.

178 Consistent with this approach, Clarke attempted to set up a false trail to enable the suggestion to take hold that Allan had either absconded or committed suicide. The first step in this process was the creation of the document on Clarke's computer at the practice on 28 May 2000. This letter, the Crown argued, basically said that the office could not continue in the manner in which it had and that Allan needed to report the matter to the LIV, otherwise Clarke would. It painted a picture of Allan as a person under pressure and contemplating suicide. Clarke stated that, when he had met Allan at the practice at about 9:30 p.m. on the Sunday night, they discussed the options that were open to him and the business including the potential for obtaining and repaying a loan. Clarke, the Crown submitted, in order to portray Allan as a desperate man stated that Allan indicated his willingness to launder money. According to Clarke, when he gave the letter to Allan, indicating his concerns, it was thrown back in his face.

179 This endeavour to create an image of Allan as a person who appreciated that he was in serious trouble and perhaps desperate enough to disappear or kill himself was not restricted to Clarke's statement and the letter as he also told De Stefano that he believed Allan was overseas and that he had staged his own disappearance. He told Gibbons of his concerns regarding the practice and that he would be prepared to go to the LIV, if Allan was not. Clarke also made a statement in which he asserted that he had been asked to reconstruct the books in such a fashion so that Ryan, from the LIV would not be able to understand them.

180 However, there was, the Crown submitted, evidence that Allan was prepared to face up to those problems, possibly declaring himself bankrupt. He also told his employees of his intention to call the Law Institute on the following Monday, that is 29 May 2000.

The Defence cases

181 The applicants adopted common positions on a number of matters. These included the contentions that the Crown could not establish that Allan was deceased or that, if he were, he had been murdered by anyone, arguing that it was entirely possible that he had gone into hiding in order to avoid the disgrace associated with the demise of his practice and to avoid the possibility of being imprisoned for theft.

182 All disputed the Crown's assertion that Allan was about to "come clean" over the issues concerning the practice's trust account. In this context, they pointed out that, although Marie Ryan from the LIV had first indicated her concerns in November 1999, Allen had done nothing to rectify the problem.

Defence case for Cavkic

183 With respect to the question whether Cavkic killed Allan, his counsel submitted that there was no evidence that he possessed any motive for doing so and that, apart from the suggestion that he had met Allan at the Crown Casino, there was simply nothing to connect the two men. Specifically, there was no evidence of any animosity between them, nor was there evidence of any financial relationship.

184 Although counsel submitted, this applicant was found in possession of the Allan's car without lawful explanation, it was open on the evidence to conclude that he had stolen it. When Cavkic was intercepted and queried as to the ownership of the vehicle, he stated that, "a bloke called Keith lent it to me." This, counsel argued, could not be viewed as inconsistent with the possibility of theft as there were a number of items in the car bearing Allan's name.

185 The applicant's conduct was nothing but co-operative on being intercepted by the police in Ayr Street. When the digging implements were located in the backseat of Allan's car, he did not attempt to escape and he had voluntarily agreed to be searched at the time that the holster was found in his possession.

186 It was submitted by counsel to be significant, that no blood was located in the Mercedes and that blood was found only on the lower parts of Cavkic's clothing. Counsel argued that had blood been found higher up on Cavkic's clothing the inference of violence may have been more easily drawn. In any event, counsel questioned whether it was possible to be satisfied, beyond reasonable doubt, that the blood on Cavkic's clothing had not been contaminated from DNA otherwise found in the car, or that the hairbrush, found in Allan's bedroom, had not been contaminated by the DNA of someone else.

187 There was, it was contended, simply no evidence that the gun found in Cavkic's possession had been fired recently and there was no gunshot residue detected in the car. Counsel submitted that the jury should reject the Crown's proposition that the gun could have been used as a means of control, arguing that it was entirely speculative.

188 With respect to the evidence regarding the calls captured by the Mt Macedon tower, counsel pointed out that, it was important to bear in mind that a call made from 35 kilometres away (the potential range of the Mt Macedon tower) could be captured at that tower when it could not be received by a closer tower due to some interference. Against that background, the Crown's assertion that Cavkic was in the general area of Mt Macedon was unsustainable.

189 Counsel submitted that the jury should reject the Crown's claim that the container of petrol found in Allan's vehicle was to be used as a means to destroy evidence of a murder. He argued it was not an uncommon practice for car thieves to destroy evidence arising out of the act of theft and that the presence of the petrol could be easily accounted for on that basis.

190 Counsel disputed that the soil located on the shovels was fresh, as the Crown had argued, but was rather "dry, caked on, hard and in no sense wet." This, he submitted, gave support to the contention that these implements had been used some time earlier. Counsel also argued that there was no independent evidence, apart from their presence in the Mercedes Benz, to connect Cavkic with the shovels as no fingerprint or DNA analysis had been carried out to suggest that he had even handled them. Also of significance, counsel submitted, was the fact that there was no blood or DNA evidence to suggest that the shovels had come into contact with Allan. This cast doubt, he argued, over the Crown's contention that they had been used to bury his body.

191 With respect to the Crown's submission that Alan was killed in a rural area, counsel for the applicant argued that this contention was nonsensical, pointing out that the evidence indicated that only the rear tyres of Allan's vehicle were dirty whilst the front tyres were almost clean. This, he claimed, was much more suggestive of the car being on a bitumen surface than on a dirt road and that the inference, that the Crown had invited the jury to draw that Cavkic had driven to some rural location to dispose the body of Allan, was not supported by the evidence.

Defence case for Athanasi

192 Ayr Street, where Athanasi was intercepted by the police, was not, as the Crown contended, a "desolate, lonely place", counsel submitted, asserting that it could be seen from the evidence that there were "houses everywhere". The Crown's suggestion that it was proposed to destroy Allan's car in this area, was implausible, he continued, as a fire or possible explosion would undoubtedly have aroused the attention of the neighbouring residents.

193 When Athanasi was queried by the police concerning his presence in Ayr Street, he explained that "Sudo" had called him on his mobile phone, asking for help in relation to a problem he was experiencing with the vehicle's handbrake. His presence, counsel argued, as "a friend helping out" was unremarkable, particularly when regard was had to the undisputed evidence that the hand brake mechanisms of Mercedes Benz motor vehicles sometimes do present difficulties.

194 In relation to the intercepted phone calls in February 2002, counsel argued that, when all of the circumstances were taken into account, the applicant's anxious and agitated state was understandable. He had previously been arrested and subsequently released; and his house and garage had been searched and forensically tested, resulting in the seizure of some items. By the time Clarke was arrested, Athanasi had good reason to fear that he too could be a suspect. Against this background, his conduct, counsel submitted, should be viewed as indicative of a reasonable fear of being wrongly implicated in a murder investigation.

195 With respect to the $70,000 that Clarke paid to Athanasi from the trust account, counsel argued this was not an "extraordinary thing" as the prosecution contended, bearing in mind that Clarke had, in the past, lent more than that to De Stefano. The fact that there were no files or trust ledger entries relating to this transaction was also unsurprising in the circumstances and similar to what had occurred in relation to the loans to De Stefano. The Crown claim that this payment was unfunded, counsel submitted, was more appropriately expressed as the financial analyst's inability to find any funding in relation to those monies as the firm's trust records were in "shambles".

196 The Crown's questions as to why Clarke would pay $70,000 to Athanasi, who had no means of income other than fortnightly social security payments, were answered counsel argued, when regard was had to the fact that he also paid millions to De Stefano when he had no funds to "roll-over" his account at the Crown Casino. The payment of four separate cheques to Athanasi, counsel submitted, was similar to the manner in which moneys were paid to De Stefano and Chew.

197 Counsel for the applicant also submitted that there were a number of implausibilities in the Crown's case, which raised questions as to why Clarke would pay a hired killer in four separate amounts, and by way of trust account cheques, at a time when that very trust account was the subject of an investigation by the LIV.

198 In support of the possibility that Athanasi may have been a client of the firm, counsel submitted that according to Loan Tran, she did recognise Athanasi as being a man she knew as "Con". Tran further believed that Athanasi was a client of Clarke's, but said that, on occasions, Allan would join them in Clarke's office. Accordingly, the argument proceeded, it was not possible to exclude the hypothesis that there was some other reason, not connected with the death of Allan, for the making of payments to him. It had to be remembered that there were no proper records or trust ledgers at all from July 1999. Counsel also submitted that the evidence of Kypros Kypri gave weight to the proposition that, in the past, money had passed between Clarke and Athanasi in the sum of between $40-$50,000, although the nature of the loan was not known.

199 With regard to the evidence of Joseph Strinavic, it was submitted by counsel that there was some confusion associated with the imitation pistol seized from the garage of Athanasi's house, and the real one that was taken from Cavkic at the Williamstown Police Station. This, counsel argued, was significant as the only person who might have been able to identify them could not distinguish between the two. Similarly, counsel also submitted that Strinavic's evidence in relation to the holster was vague and unclear.

200 In addressing the Crown's contention, that the pistol seized from Cavkic was the one seen by Strinavic in Athanasi's garage, he submitted that there was no evidence that Athanasi provided Cavkic with a pistol; and there was no independent evidence whatsoever, such as fingerprints or DNA evidence, which linked Athanasi with the pistol found on Cavkic, on 29 May 2000.

Defence case for Clarke

201 Counsel for the applicant Clarke contested the Crown's contention that his client possessed a strong motive for arranging the murder of Allan.

202 There was a body of evidence, he submitted, that suggested that Allan was, at least, a contributor to the problems of the trust account and as such had a real motive for disappearing.

203 Counsel argued that Allan was culpable for the discrepancies in the trust account not only because he obviously knew about them but because and, specifically with respect to the situation involving De Stefano, he acquiesced, in what must have been to any responsible solicitor, a strange set of arrangements. In support of this contention, counsel queried why an experienced practitioner would not question these activities by his law clerk. Counsel submitted that Allan's conduct allowed for the clear inference that he was a party to, or at least knew, what was occurring.

204 Counsel submitted that, although there were irregularities in the trust account during 1998/99, it had to be remembered that there were also problems associated with it as far back as 1995/96, before Clarke commenced his employment with the practice.

205 Next, he disputed the Crown's contention that the reason the applicant and Allan met, on the night of 28 May 2000, was to lure Allan to the office and then to a position where he could be waylaid by Cavkic. There was no evidence whatsoever of any contact between Clarke and Cavkic and no money could be traced between the two.

206 Dealing with the evidence of Adele Hancock, that Clarke rang at 7:41am, on Monday 29 May 2000, saying "He's disappeared, don't come in", counsel challenged the accuracy of the witness' recollection, relying on the difficulties that some people experience when recalling past events. In support of this argument, he submitted that although Hancock was able to remember the 7:41 a.m. phone call, she was not able to recall another phone call from Clarke at 10:41 a.m. on that same day. Further, he argued that it was highly unlikely that Clarke would have been so foolish as to reveal himself in this manner, to an employee close to Allan.

207 With respect to the frequency of the phone calls between Clarke and Athanasi, in the period leading up to the disappearance of Allan, counsel submitted that these calls were meaningless. Athanasi was, he said, in the main, a client of Clarke and phone communication between them was to be expected.

208 Finally, counsel submitted, there was no possibility that Clarke was involved in the events on the night of Sunday 28 May 2000 as he was at home with Gibbons.

THE APPLICATIONS FOR LEAVE TO APPEAL AGAINST CONVICTION

209 As is apparent from the outline, the cases against the applicants were interlocking and entirely circumstantial. In relation to each of them, the inference of guilt was dependent upon the jury's acceptance of evidence concerning a number of circumstances that demonstrated the presence of a motive, that linked the three applicants, and justified the conclusion being reached that Allan had been murdered.

210 It is against that background that their separate applications for leave to appeal fall to be considered.

The Grounds of the Applicant, Sudo Cavkic

"1. The learned trial judge erred in withdrawing from the jury's consideration the possibility that the applicant was an accessory after the fact to the co-accused.

2. The learned trial judge erred in his direction to the jury on the issue of the applicant being an accessory after the fact rather than being guilty of murder in that:

(a) his Honour failed to relate the evidence to the law in relation to this issue; [and]

(b) the direction was given in terms which encouraged the jury not to give the issue weight.

3. The learned trial judge erred in admitting into evidence the conversation alleged to have taken place between the applicant and Detective Senior Sergeant Rovis on 29 May 2000.

4. The verdict is unreasonable and not supported by the evidence in that on the evidence in the trial the reasonable possibility could not be excluded that the applicant was guilty as an accessory after the fact, and not as a principal in the offence murder.

5. The learned trial judge erred in his directions on lies and consciousness of guilt; and in particular he erred:

(a) in leaving the applicant's assertion about the car's hand brake as a potential lie;

(b) in leaving all the assertions (except those concerning a false name and [Allan's] drunkenness) as capable of being proved to be lies going to the consciousness of guilt when that conclusion could not be reached without first proving that the applicant was guilty of murder, assisting an offender or some other crime;

(c) in leaving all assertions as lies going to consciousness of guilt of murder when it was not open to exclude the possibility that such alleged lies were told out of a consciousness of guilt of assisting an offender;

(d) in failing to direct sufficiently and with the stamp of judicial authority on alternative explanations that must be excluded before the inference of consciousness of murder could be drawn;

(e) in directing in a manner that suggested that proof of lies out of consciousness of guilt of murder was equivalent to proof of murder.

6. The learned trial judge erred:

(a) in failing to direct on the absence of motive on the part of the applicant and of the potential significance of that fact;

(b) in failing to separate the cases against the applicant and the co-accused with respect to motive.

7. The learned judge erred:

(a) in directing that 'if you find Mr Cavkic not guilty of murder you must find Mr Athanasi and Mr Clarke not guilty of murder because they were not there';

(b) in failing to direct to the effect that the co-accused could be guilty of murder only if on the evidence admissible against them the applicant or someone else murdered [Allan].

8. The learned trial judge erred in failing to exclude the evidence of Joseph Strinavic.

9. The learned trial judge erred in his answer to the jury's question on the definition of 'reasonable doubt'; and in particular he erred:

(a) in failing to address that part of the question which related to percentages or ratios;

(b) in failing to direct that they should not reduce the question to percentages but that they should not consider that satisfaction 'beyond reasonable doubt' could be anything near as low as the threshold suggested by their question;

(c) in failing to direct that, because juries are presumed to be made up of reasonable people, they should acquit the accused if they are still in doubt after carefully considering the evidence;

(d) in failing to re-direct on competing inferences and hypotheses.

10. An aggregate of errors caused the trial to miscarry."

The Grounds of the Applicant, Costas Athanasi

"1. The learned trial judge erred by failing to exclude the evidence of the witness Kypros Kypri.

2. The learned trial judge erred by failing to exclude the evidence of the witness Joseph Strinavic.

3. The learned trial judge erred by introducing counselling and procuring as the basis of the applicant's liability when this had not been relied on by the Crown prosecutor in the course of the trial.

4. The learned trial judge erred in his directions relating to circumstantial evidence by:-

(a) not providing any guidance to the jury as to what he meant by reliance on a piece of circumstantial evidence as a '... necessary element in the proof of the circumstantial case ...';

(b) failing to identify which facts needed to be proved beyond reasonable doubt; and

(c) failing to adequately relate the law to the facts and the defence case on the competing hypotheses.

5. The learned trial judge erred in his directions concerning lies and conduct capable of demonstrating guilt by:-

(a) leaving to the jury as lie capable of demonstrating the applicant's guilt of murder the statement by the applicant that the reason for his attendance in Ayr Street was because Cavkic had informed him by telephone that the handbrake was stuck;

(b) failing to direct sufficiently as to the alternative explanations that needed to be excluded before the conduct relied on by the Crown could be used to draw an inference of guilty; and

(c) directing in a manner that suggested proof of lies and conduct was equivalent to proof of murder.

6. The learned trial judge erred in his direction to the jury concerning motive by:-

(a) failing to direct the jury that the motive relied on by the Crown had to be proved beyond reasonable doubt;

(b) failing to direct the jury that the presence of motive was a consideration favouring the applicant; and

(c) failing to separate the case against the applicant in respect of motive from the case against the co-accused.

7. The learned trial judge erred in his directions as to the alternative verdict of assisting an offender by:-

(a) giving the directions in a way that indicated such a verdict was not viable; and

(b) failing to adequately relate the law to the facts.

8. The learned trial judge erred in his answer/re-direction to the jury following the question: 'Definition of reasonable doubt. Also expressed as ratio i.e. 70 per cent or 80 per cent sure?' by:-

(a) ignoring the section of the jury question that related to percentages;

(b) failing to direct the jury that they should disregard percentages when considering whether they held a reasonable doubt;

(c) failing to direct the jury that, because juries are presumed to be made up of reasonable people, they should acquit the accused if they are still in doubt after carefully considering the evidence;

(d) not re-directing the jury in relation to competing inferences and hypotheses.

9. There has been a miscarriage of justice as a result of the aggregation of the defects and errors identified in the above grounds of appeal.

10. The verdict of the jury is unreasonable and cannot be supported having regard to the evidence."

The Grounds of the Applicant, Julian Michael Clarke

"(a) The learned trial judge erred in not re-defining for the jury the law relating to the competing hypotheses when asked to re-define reasonable doubt by the jury.

(b) The learned trial judge erred in that having indicated to all counsel that he was going to direct the jury to disregard the evidence of the witness Kypros Kypri he proceeded in his charge to outline that evidence to the jury.

(c) The verdict of the jury in the particular circumstances of the case is unsafe and unsatisfactory.

(d) The learned trial judge erred in failing to exclude the evidence of witness Kypros Kypri.

(e) The learned trial judge erred in failing to exclude the evidence of the witness Joseph Strinavic.

(f) The learned trial judge erred in his direction to the jury on his directions on lies and consciousness of guilt and in particular he erred:

(i) in leaving as a lie that Athanasi had loaned $50,000 to Keith Allan;

(ii) in leaving as a lie the monies paid to Athanasi were to pay for the execution of Keith Allan by Cavkic;

(iii) in leaving to the jury that when Clarke spoke to Athanasi on the Sunday night it was not for a further loan but for purposes related to the execution of Keith Allan.

(g) The learned trial judge erred in his direction to the jury concerning motive by:-

(i) failing to direct the jury that motive relied on by the Crown had to be proven beyond reasonable doubt;

(ii) in failing to separate the case against the applicant in respect of motive from the cases against the co-accused.

(h) The learned trial judge erred when re-directing the jury following the jury question and the re-direction.

(i) The learned trial judge misdirected the jury when he told them:-

'You must judge the cases individually in respect of each accused and only on evidence admissible in relation to the accused whose case you are considering'.

And then told the jury as this was a:-

'circumstantial case you the jury are entitled to look at the whole of the evidence.' (Counsel's emphasis)

His Honour repeated that direction.

(j) The learned trial judge erred by introducing counselling and procuring as the basis of the applicant's liability when this was not relied on by the Crown prosecutor in the course of the trial.

Alternatively the learned trial judge failed to direct the jury on 'acting in concert' or acting 'pursuant to an agreement between' the applicants as put by the Crown.

(k) The learned trial judge erred in his directions to the jury as to the alternative verdict of assisting an offender by failing to direct that if [that] was the basis on which they reached their verdict they would be obliged to acquit the applicant.

(l) The learned trial judge erred in his directions to the jury relating to circumstantial evidence by:-

(i) not providing any guidance to the jury as to what he meant by reliance on a piece of circumstantial evidence as [a] '... necessary element in the proof of the circumstantial case ...';

(ii) failing to identify which facts needed to be proven beyond reasonable doubt; and

(iii) failing to adequately relate the law to the facts and the defence case on the competing hypotheses.

(m) The learned trial judge misdirected the jury on significant factual matters:-

(i) when he described the prosecution's reliance on 'extensive thefts' by the applicant;

(ii) when he described the alleged murder of Keith Allan as a 'paid execution'."

211 Although reliance has been placed on a number of grounds, by reason of the conclusion at which I have arrived, that is, that a retrial must be ordered, I need not address all of them. I turn then to what I perceive as a fatal defect in the proceeding.

Cavkic Ground 9

Athanasi Ground 8

Clarke Grounds (a) and (h)

In the course of delivering his charge to the jury, the trial judge said:

"The law says and fairness and commonsense also say, that the party which brings the charge has the burden of proving it. It is not the law that if someone is charged that person has to prove she or he is innocent. In Australia the law is and rightly so, that the party which brings the charge has the burden of proving it.

As counsel have correctly told you in a civil case, for example a claim for damages after a motor car collision, the party bringing the claim the plaintiff, has the burden of proving his or her case but there is a vital difference between a civil case such as a claim for damages after a motor car collision and a criminal trial which this is.

In a civil case all that a plaintiff has to do is to prove her or his case is more probable than not for that plaintiff to succeed. But in a criminal trial which this is, the prosecution has the burden of proving the charge beyond reasonable doubt. That is the highest standard known to the law. Beyond reasonable doubt are ordinary English words. I am sure you understand them. Juries act on them every week.

It is quite insufficient for the prosecution to prove its case merely on the balance of probabilities. It has the burden of proving the case beyond reasonable doubt. An accused person has no burden of proving anything at any time in any case."

Clearly no complaint was advanced concerning this instruction which was given in what could be described as the conventional or standard form.

212 However during the period of jury deliberations, the judge's tipstaff was handed a question which read:

"Definition of reasonable doubt. Also expressed as ratio, i.e. 70 per cent or 80 per cent sure?"

It is to be observed that the question was expressed as a general enquiry and that there was no indication as to which of the applicants' cases it may have been directed.

213 His Honour was mindful that "the law is littered with disasters"[15] where judges endeavoured to assist juries with regard to the standard of proof by employing alternative phrases to the expression "beyond reasonable doubt" or by attempting to explain its meaning or by breaking up the expression, so that, for

instance, stress was placed on the word "reasonable".[16] Accordingly, when he raised the matter with counsel in the absence of the jury, he indicated that he did not propose to respond directly to the part of the question relating to percentages, and that he would confine himself to repeating the instructions earlier given to them. The prosecution and counsel for one of the accused agreed with the adoption of this course. However, counsel for the other two each indicated concern that to deal with the matter in that way would not provide the jury with adequate guidance. They expressed doubt that the jury, who were clearly uncertain as to what was involved in the notion of proof beyond reasonable doubt, would receive any assistance from the repetition of an instruction that conveyed little to them, and may not be disabused of the misconceptions that seemed to underlie the question.

214 Counsel for Clarke put his position as follows:

"COUNSEL: Yes. I'm sorry to say Your Honour might be caught by the percentage, and I'm worried about that, more than you'll care to be. I'll leave it up in the air for now till I ---

HIS HONOUR: I agree with you totally ...

COUNSEL: I don't want anybody ---

HIS HONOUR: I don't like the word 'percentage', and that's why I'm not going to say it.

COUNSEL: I know.

HIS HONOUR: I'm not even going to say it when I repeat their question to them.

COUNSEL: Yes, but I heard you say that and it worried me, because I wouldn't like my client convicted on a 70 per cent , or whatever the percentage they ---

HIS HONOUR: I agree entirely with that. I don't think reasonable doubt is anything like as low as 70 per cent, so I agree with you. But I'm not going to go to figures with the jury."

215 It is to be noted that the judge appears to have been under the impression that any response in which the word percentage was used would be problematic, presumably either because the jury might consider that an appropriate percentage for the purposes of the standard could be fixed by them or by inadvertently conveying the idea that there was some objective standard or particular process of reasoning to be applied or because he was apprehensive that anything that he said might be perceived by an appeal court as creating an unacceptable or confusing gloss on the concept of proof beyond reasonable doubt. All of these possibilities were the subject of legitimate and thoroughly understandable concern on the part of a very experienced trial judge who appreciated that the situation had to be very carefully handled.

216 Junior counsel for Athanasi, in order to address the tension between the obvious need to provide a helpful response and the difficulty of provision of directions that would avoid these dangers, proffered the suggestion:

COUNSEL: Your Honour, could I just add something that might come near curing the percentage problem? In my submission, Your Honour should emphasise to them, as judges often do, that if you may have any reasonable doubt, then they're bound to acquit, because whether you call it 10 per cent or five per cent, and I don't invite your Honour to use this terminology, but if you've got reasonable doubt, they're bound to acquit. It's one of the various ways in which it's put.

...

COUNSEL: Your Honour, not because I want to, but I have some explanation for why they might reason upon the ratio is that if you take as your starting point the civil standard, on the balance of probabilities, which means more likely than not, you can get to a 49/51 per cent, or what have you.

HIS HONOUR: Of course.

COUNSEL: And then the jury could be taking that view, therefore we must be able to get to a level where it's beyond reasonable doubt."

217 Counsel may well have been right in his surmise as to the jury's reasoning process. There is a distinct possibility that they thought that, if proof according to the balance of probabilities could be established by the attainment of a degree of satisfaction of 51 per cent, then perhaps 70 - 80 per cent would suffice for proof beyond reasonable doubt. When the jury returned to the Court, His Honour said:

"You have a question which is, 'Could I define reasonable doubt?' And I will answer it in this way. It is not the practice of the courts to further define the expression of 'beyond reasonable doubt', but you will understand the expression in this context.

First, the prosecution has the burden of proving against each accused the charge brought against each accused, of murder. The prosecution has that burden. An accused person does not have to prove he or she is innocent. The prosecution has to prove he or she is guilty. That is the starting point, ladies and gentlemen. The burden of proof is on the prosecution, not just in this case, but in every criminal case, from beginning to end.

Second, the standard of the proof required is proof beyond reasonable doubt.

In a civil case, ladies and gentlemen, for example, a claim for damages after a motor car collision, all that a plaintiff, the claimant, has to do, is to prove her or his case is more probable than not for the plaintiff to succeed. That is in a civil case.

In a criminal case, which this is, the prosecution has the burden of proving the charge beyond reasonable doubt.

It is quite insufficient for the prosecution to prove its case merely on the balance of probabilities. It has the burden of proving the case beyond reasonable doubt. Beyond reasonable doubt is the highest standard known to the law.

So, that is the standard of proof required to prove murder in a criminal case, ladies and gentlemen.

As I have said to you previously, the prosecution does not have to prove beyond reasonable doubt every detail or every step in the story or solve every riddle beyond reasonable doubt. But what the prosecution does have to prove beyond reasonable doubt are the essential elements of the crime charged, and I have set those essential elements out for you on your law sheet, bearing in mind my direction I have previously given you about inferences, which I will not repeat, ladies and gentlemen, but I have already given you those directions.

So, bearing in mind my directions to you previously given about inferences, the prosecution has to prove beyond reasonable doubt the essential elements of the crime charged, set out on your law sheet. That is the highest standard known to the law, and they are ordinary English words. Juries act on them every week, ladies and gentlemen, and I think that is really all I can usefully say to you in answer to your relevant question."

218 The situation confronting the trial judge was extremely difficult. He was acutely conscious of the problems that had arisen in earlier cases in which trial judges had departed from conventional instructions concerning the standard of proof by a criminal trial and the repeated warnings set out in the authorities where this had occurred. He was understandably apprehensive that any further attempt to explain the standard, particularly by reference to percentages, may have been interpreted by the jury as setting a bench mark that could be employed by them and he well knew that as Phillips, J.A said in R v. Chatzidimitriou[17]:

" ... the jury has the task of determining what is reasonable doubt and can properly be so instructed; and that what is a reasonable doubt must be left to the jury to be determined according to the standard which the jurors themselves adopt."

How then was he to deal with the jury's query?

219 In considering that question, it is important to bear in mind that the various authorities that address the question of the appropriate instructions to be given to the jury, with respect to the standard of proof, place very strong emphasis upon the undesirability of any departure from or addition to the conventionally adopted formulation which involves no attempt to define the expression beyond reasonable doubt:

"Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment." [18]

220 There is however an acknowledgement in a number of the judgments, in which the matter is considered, that it may become necessary for a judge to say enough to avoid misunderstanding where there is something to suggest that this could occur.

221 The possibility that a trial judge may need to provide some further instruction with respect to the standard of proof in a criminal trial was addressed, for example, by Thomas, J.A. in a case which came before the Queensland Court of Appeal. He said, and in my view, correctly, that:

"It is to be recognised that there are cases where it may be proper for a trial judge to give directions beyond those which have been referred to above as conventional directions. The commonest of these will be the correction of an error of counsel on either side in relation to the meaning of the term during addresses; another may be when the jury asks a question about the meaning of the term. However the fact that the jury asks the question does not mean that the judge has to answer it by stepping beyond the recognised limits. I would not wish to circumscribe the occasions upon which it may be acceptable for a trial judge to give a jury some assistance beyond the conventional direction in relation to the meaning of the term 'reasonable doubt', but it seems necessary to emphasise that as a general rule it is positively dangerous for a judge to attempt to elaborate beyond the conventional direction."[19]

222 This approach was followed very shortly afterwards in another case in Queensland, R. v. Collins[20]. In that matter, during their deliberations, the jury asked the questions:

"Please explain the difference between the elements and the facts of the case, also the Crown's responsibility regarding proving them.

Reasonable doubt versus no doubt.

Previous comments regarding probably versus improbable[21].

Finally, does probable equal reasonable doubt?"[22]

"It is apparent from the form of the question that the jury was in need of clarification of aspects of the standard of proof and was in doubt about the relationship between the probability that the offences were committed and proof beyond reasonable doubt.[23]

. . .

The learned trial judge gave a redirection in conventional terms, that the phrase 'beyond reasonable doubt' consisted of everyday English words and that it was for the jury to interpret what 'reasonable doubt' amounted to in the circumstances. He said it was necessary for the Crown to prove every necessary element beyond reasonable doubt. He gave a clear direction that the jury should look at all the evidence, decide what facts were found proved and then decide, on those facts, whether they were satisfied of the elements of the offence beyond reasonable doubt. He went on to say that the Crown did not have to prove all matters in evidence beyond reasonable doubt. No complaint was or could be made about that redirection standing alone."[24]

. . .

"Following these redirections, the appellant's counsel, having expressed uncertainty as to what the jury meant in its request for redirections, asked the learned trial judge to give consideration to instructing the jury that if they were to believe the accused was probably guilty, that would not satisfy the test that the Crown had to meet. He said his concern was that they might have some understanding that if they thought he was probably guilty that might be enough to convict.

The Crown Prosecutor expressed satisfaction with the redirection given and suggested that the jury could ask a further question if it was still in doubt. That was an option that had been left to the jury by the learned trial judge at the end of his redirections. The learned trial judge decided not to give a redirection saying:

'I am going to decline to give them a further direction simply on the basis that I have directed them in the classic way. I do not wish to try to compromise the definition of 'reasonable doubt'".[25]

224 The Court concluded that the provision of the conventional instruction was, in the circumstances, insufficient to remove from the minds of the jury the possible misconception that proof on the balance of probabilities would suffice and that, accordingly, a clear direction that it would not should have been given.

225 The argument was advanced in this Court that similarly there was a distinct possibility that the jury may have operated under a misconception of the kind raised by junior counsel for Athanasi, to which I have earlier adverted, that the standard of proof could be satisfied through an assessment of likelihood of guilt expressed as a percentage (assuming that that could ever be a meaningful exercise).

226 In my view there is force in this contention. Not being directed otherwise, the jury may well have regarded a 70 per cent probability as satisfying the test, although I would have thought that the existence of an approximately one in three chance that an accused may not be guilty could hardly be regarded as proof beyond reasonable doubt, however the standard may be identified.

227 It is inherent in the expression of the standard by reference to a percentage chance of guilt or by some assessment of the odds as in a wager, that some doubt must exist that is to be disregarded once the arbitrarily fixed percentage or rate is reached. The law has never proceeded on that basis and, whilst it is for the jury to determine what constitutes a reasonable doubt in their minds, that task cannot be seen to have been undertaken by the adoption of a process which, in effect, enables them to avoid grappling with their own genuine doubts or perhaps, submerging them in a decision which essentially rests upon a pseudo mathematical assessment of probabilities. If they did have such an understanding, the provision of a further instruction in which a comparison was made with the standard of proof in a civil case would not only have failed to provide guidance, but conceivably could have reinforced their misconception of the position.

228 As in Collins, the jury in the present case appear to have held a view of the standard of proof of a kind that could have resulted in the conviction of one or more of the applicants even though they accepted that a significant doubt existed as to the guilt of the individual concerned. That misconception could have been removed by instructing them that the question that they had to determine was whether the prosecution had established the guilt of the accused, whose case they were considering, beyond reasonable doubt. If, after carefully considering the evidence, reasonable doubt existed in their minds, then it was their duty to acquit. They should have been told that they were not to approach their task by reference to some calculation of percentages. To do so, of course, acknowledges the existence of a doubt which may or may not be reasonable, but which is then disregarded.

229 Whilst there is clearly room for argument concerning what may or may not constitute a fundamental defect in a given criminal trial, the presence of a possible misconception by the jury of the applicable standard of proof must be regarded as a matter of such importance that it is to be treated as having resulted in a substantial miscarriage of justice,[26] notwithstanding the apparent, even overwhelming, strength of the prosecution case perceived from the perspective of a judge in an appellate court. This proposition has application in the cases of all of the applicants. Accordingly, no question of the application of the proviso in Section 568(1) arises with respect to any of them.

230 Although, as I have earlier indicated, I am of the view that a retrial of all of the applicants is required on this basis, it is nevertheless necessary to address a number of the grounds of appeal, some however, only briefly.

Cavkic - Grounds 1 and 2

231 Prior to the commencement of the final addresses to the jury, counsel for Cavkic raised the question whether the alternative verdict of assisting an offender should be left for their consideration. This possibility had been mentioned initially by counsel for Athanasi. There was further mention of the matter following the address of the prosecutor and again at the completion of the defence addresses. Neither the prosecutor nor counsel for any of the applicants advanced argument or ever presented the possibility before the jury that a verdict of assisting an offender was open in the case of any particular applicant. However, that was by no means determinative of the matter and his Honour considered that it was necessary to provide oral directions to the jury on this topic. He also gave them a document setting out what the prosecution would need to establish before such a verdict could be returned.

232 When dealing with this matter in his Charge, his Honour said:

"So, if you found [Mr Cavkic] not guilty of murder you would then go on to consider was he assisting the murderer, whoever it was, none of these accused, by helping get rid of the evidence? And that is what assisting offender means, applied to Mr Cavkic."

. . .

"Mr Athanasi would be guilty of assisting offender if the elements set out in paragraph one are proved beyond reasonable doubt. In Mr Athanasi's case that would be if he assisted the killer, whoever he was, including Mr Cavkic, if you found he was the killer, as stated in paragraph one."

. . .

"Now, as I say, no-one, not one barrister has mentioned this before, so I am not going to say any more about it, ladies and gentlemen. I have summarized for you how it could arise. The prosecution does not say any of these men are guilty of assisting offender. The prosecution says this is the three guilty of murder. So, the prosecution says assisting offender does not arise. You would convict each of these accused of murder. The defence in each individual case does not say that any accused is guilty of assisting offender. The defence in each case says their client is not guilty of murder and not guilty of assisting offender, not guilty of anything, so that is how it is put. No one puts assisting offender. I have raised it with you because as a matter of law, depending upon the facts that you find, it could arise. I will say no more about it, ladies and gentlemen. From now on I will just talk about murder, that is the charge against each accused.

233 Before this court, counsel for the applicant Cavkic submitted that the trial judge erred:

(a) in withdrawing from the jury's consideration the possibility that his client was an accessory after the fact to Athanasi;

(b) in failing adequately to relate the evidence to the law in that topic;

(c) in commenting in a manner apt to undermine the jury's consideration of that alternative.

234 In my opinion, his Honour did fall into error, but in none of the ways claimed on behalf of the applicant under this ground.

235 There was, as the summary set out earlier shows, no evidence or hypothesis reasonably arising from or related to any evidence in the trial or the circumstances surrounding the matter that Athanasi may have been present at the time that Allan met his death and certainly nothing that could give rise to any reasonably arguable contention that he may personally have perpetrated the killing of Allan. The prosecution case was conducted on a quite different premise and no-one at the bar table advanced any suggestion to that effect. Clarke, according to the evidence, did not carry out the killing as he was at home at the time that the prosecution contended that Allan was murdered and there was simply nothing in the evidence capable of supporting a finding by the jury that Athanasi had carried out the killing and that Cavkic had later assisted him to dispose of the body. A verdict to this effect would have been unsustainable. In other words, there was nothing that even remotely approached a sufficient basis upon which a trial judge would have been justified in having that possibility before the jury.

236 Nevertheless having reached that conclusion, his Honour indicated to the jury that if they were not satisfied that Cavkic was guilty of murder then they would need to consider whether he had assisted the murderer "whoever it was, none of these accused."

237 Viewed in the context of a trial in which no question arose as to the involvement of any other person, this instruction was directed to an unreal possibility, concerning which there was no issue and which would have strained the credulity of even the most dedicated of conspiracy theorists.

238 The simple position was that if Cavkic was acquitted on the count of murder, there was no foundation on the same evidence capable of supporting a verdict of his guilt of assisting Athanasi or some unknown person. The situation was vastly different from that considered by the High Court in Gilbert v. The Queen[27] where the possibility of an alternative verdict, perhaps based on mercy, was held to have been open in the circumstances.

239 The claimed failure of the trial judge to put these unreal scenarios in an extended form or greater detail cannot be seen as a possible source of a miscarriage of justice in the case of this applicant.

Athanasi - Ground 7

240 Athanasi also contends that his Honour erred in his instructions concerning the alternative verdict of assisting an offender, relying on two assertions namely:

(a) that his Honour gave the directions in a way that indicated that such a verdict was not reliable; and

(b) that he failed adequately to relate the law to the facts.

This ground must fail for reasons similar to those discussed in the case of Cavkic. It raises no issue canvassed in the evidence in the trial and has about it the same air of unreality. Again if the jury had found Athanasi not guilty of murder, as a practical proposition it is difficult to see how they could ever have arrived at a verdict based on essentially the same evidence, and in the particular circumstances of the case, that he was an accessory after the fact to a murder committed by Cavkic, for whatever unknown reason that applicant might have had. Whether or not the position would remain the same on retrial will need to be considered at that time on the basis of the evidence then before the court and the manner in which the respective cases are formulated.

Clarke - Ground (k)

241 For similar reasons, this ground also lacks substance.

Cavkic - Ground 3

242 When interviewed by Detective Sergeant Rovis at the Williamstown Police Station, no caution was administered to him relating to his possible involvement in the homicide of Allan and no tape recording of the conversation was made.

243 Rovis asked:

" 'Can you tell me where the owner of the Mercedes is?' He said, 'I haven't seen him because you blokes grabbed me before I could give it back.' I said, 'How did you come to have the Mercedes?' He said, 'He lent it to me to pick up a package for him'. I said, 'Where was he when he lent you the car?' He said, 'At the Taylors Lake Hotel. I was walking out and he was walking in. He was on a pub crawl and was pretty pissed. He asked me to pick up a package for him.' I said ' What is this man's name?' He said, 'I know him as Keith, I don't know his last name.' I said, 'How do you know Keith?' He said, 'I've met him at Moonee Valley races a few times. We both like to punt and we'd have a few beers together and just became friends.' I said, ' Did you arrange to meet him at the Taylors Lakes Hotel?' He said, 'No, I was there playing the machines and having a drink and when I left he was coming in.' I said, 'Can you tell me exactly what he said to you when you met him?' He said, 'He asked me to pick up a package and I told him I didn't have a car and he told me to take his.' I said, 'How did he get home, did you give him a lift?' He said, 'No, I think there was another person with him and he must have had a car.' I said, 'Did you see this other person?' He said, 'No it's just the way he talked, I thought he had somebody else.' I said, 'What was the package you had to pick up?' He said, 'You know, the gun.' I said, 'Where was the package?' He said, 'In the park just where you got me.' I said, 'That's a big park, how did you know exactly where to find the gun?' He said, 'He told me just to go there and I would find it and I did. It was in a white plastic bag. You can check it, I put the bag in the rubbish bag, it's in the car.' I said 'Who was the other person in the Jag?' He said, 'Con, he's a friend. I called him because the hand brake stuck on the car and I couldn't get it off so I called him to help me. You can ask him.' I said, 'What about the shoulder holster you had on you, was it with the gun?' He said, 'No, he gave that to me at the hotel and I put it on just to see what it felt like. You know, just like John Wayne. I was just fucking around being stupid.' I said, 'What was the arrangement for you to return the package and car to Keith?' He said, 'None, just next time I saw him I would give it to him.' I said, 'Do you mean that Keith was happy for you to have his Mercedes car and a firearm until the next time you just happened to bump into him?' He said, 'Yes, he asked me to pick it up, I was doing him a favour.' I said, 'Do you know why Keith wanted the gun?' He said, 'I don't know. Look this is a big mistake. I was stupid for getting involved. If I can ring a solicitor I can clear this up.' I said, 'Why didn't Keith go and pick the gun up himself?' He said, ' I don't know, he was too pissed. Look, I told you I was doing him a favour.' I said, 'Sudo some of what you're telling us seems a bit far fetched. There are two possible scenarios that I can think of. One is that Keith has been killed and somehow you have his car and two, that Keith is alive and for some reason has not come forward. If he's alive and well and you know where he is tell us now before this whole thing gets out of hand.' He said, 'He's not fucking dead. That gun hasn't been fired. You have tests you can do. You will see that it hasn't been fired.' "

244 At the trial objection was taken to the introduction of this evidence, which was both relevant and inculpatory of the applicant, on the basis that the requirements of s.464H(1)(d)[28] had not been satisfied. Specifically, it was asserted that Cavkic was or ought to have been suspected of the murder of Allan at the time of this interview and, therefore, should have been given a caution directed to that offence. A hearing on the voir dire was conducted as to the admissibility of this evidence at the conclusion of which the trial judge ruled that:

"I consider that at the time of those questions and answers, Mr Cavkic was not suspected by the relevant officers of having committed the offence of murder of Keith Allan nor ought he reasonably have been so suspected."

245 The applicant had been intercepted in suspicious circumstances, in the middle of the night and in a car that he did not own. He provided false personal particulars and was found to be wearing a shoulder holster. Later, he was discovered to be in possession of a pistol. His explanation concerning the possession of the vehicle was patently unsatisfactory. The police were understandably quite curious about what may have occurred and the thought that something untoward may have befallen the owner passed through the minds of some of them; after all, Detective Sergeant Rovis from the Homicide Squad had been contacted and he adverted to that possibility in his interview with the applicant. However it is equally apparent, as a moment's reflection on the circumstances would reveal, that there were many possibilities about which the police could only conjecture until further investigation enabled them to develop some image of what may have happened and perhaps form some suspicion concerning the applicant's involvement in it. It is clear that this, in effect, is what his Honour, who I note was a member of the Court of Criminal Appeal in R v. Alexander[29], found[30]. That finding was open in the circumstances at that early stage of the investigation when the police had only limited information and could only surmise about what might have happened.

246 In this Court a further argument, not presented before his Honour, was advanced that the offence in respect of which a suspicion must be or ought reasonably to be held, in order to attract the operation of s.464H(1), need not be the offence in proof of which the evidence is sought to be had. The argument rested upon the suspicion that the police undoubtedly had arising from the possession by Cavkic of Allan's car in the circumstances set out and the finding on him of a holster and a gun concealed in his pants. Although, by reason of the view set out above, this argument need not be addressed, I will deal briefly with it.

247 The proposition was considered by Brooking J.A. in R v. Hazim[31]. He expressed the opinion that:

"[t]hat part of the subsection which precedes the word 'unless' is wide enough to apply to any confession or admission made to an investigating official by a person who was or ought reasonably to have been suspected of having committed an offence. But the remainder of the subsection shows that its operation is confined to confessions or admissions made either before the commencement of or during 'questioning'. Sections 464 to 464J refer on a number of occasions to questioning and investigation. It is clear that the 'questioning' referred to in pars (c), (d) and (e) of s 464H(1) is questioning in order to determine the involvement (if any) of the suspect in the offence of which he is or ought reasonably to be suspected. See par (c) of s 464(1) and par (b) of s 464A(2)."[32]

248 The provisions of Section 464 of the Crimes Act are, broadly speaking, directed to the protection and enforcement of the rights of individuals who are subjected to investigative procedures of one kind or another on the one hand, and to the clarification and protection of the position of investigating officials on the other. Section 464H is concerned, in particular, with the situation where inculpatory statements are made by a person who is suspected of the commission of a criminal offence or who ought reasonably be so regarded when being questioned. Only in exceptional circumstances which justify the reception of the evidence, if the processes set out in the provision are not followed, would evidence of incriminatory statements made by the individual concerned be treated as admissible. The requirement that any such conversation be tape recorded enables the judge at trial to gain some appreciation of the circumstances and condition of the confessionalist, assists in the determination of the issue of voluntariness, whether the evidence should be excluded in the exercise of discretion, and should remove doubt as to what was said by the parties to the conversation. The absence of any such independent record is regarded as sufficiently compromising a process designed to provide protections and security to both the interrogator and person being interviewed and to avoid disputation concerning what took place. It would be contrary to the legislative intention evident in the structure and provision of s. 464 of the Crimes Act to interpret its terms in a technical fashion that unduly confined its area of operation[33], the extent of which has not yet finally been determined. For more than one reason, the term "offence" must be given a wide meaning. In my opinion, it could not be the position that the offence of which the individual is suspected must be the precise offence for which he is ultimately presented before the Court. However, as I earlier indicated, there is no need to decide this question. In any event, and in the circumstances of the particular case, I see no good reason for the exclusion of inculpatory statements made by Cavkic in response to police questioning about some other matter, concerning an offence of which they know nothing.

Cavkic - Ground 5

Athanasi - Ground 5

Clarke - Ground (f)

249 It is, I consider, sufficient to state in the present context that there is no substance to these grounds. In this Court emphasis was placed upon the use of statements made by Cavkic and Athanasi to the effect that Athanasi had attended at Ayr Street to assist Cavkic with a jammed handbrake as demonstrating consciousness of guilt by each of them. There was evidence before the jury that the handbrake on the particular model of car being driven by Cavkic was known to present difficulties on occasions. It was nevertheless open to them, in the circumstances, to reject that explanation as deliberately false and proffered in order to conceal their true purpose at that time and in that location. His Honour's instructions on this aspect accorded with authority and were adequate in the circumstances. There was, it should also be noted, no exception taken to them in the trial.

Cavkic - Ground 6

250 The complaint is advanced under this ground that there was no evidence that Cavkic possessed any motive whatever for killing Allan and that the trial judge fell into error in not instructing the jury to that effect and further that the absence of a motive in his case had to be taken into account by them in their deliberations.

251 In support of this claim, reliance was placed upon the following passage in the joint judgment of Gaudron, McHugh and Hayne, JJ. in De Gruchy:

"Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. As was observed by Lord Atkinson in R. v. Ball...:

'Evidence of motive necessarily goes to prove the fact of the homicide by the accused ... inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.'

So, too, absence of motive is equally relevant to the question whether the accused committed the offence charged and, as observed by Menzies, J. in Plomp v. The Queen..., 'is commonly relied upon as a circumstance tending in favour of ... a person accused of a crime' (citations omitted)."[34]

"Although absence of motive is relevant, the appellant's argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other ... . In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive... . And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive.

The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of 'positive significance', either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive."[35] (citations omitted)

253 In the present case, the prosecution's contentions with respect to motive were straightforward. Clarke, it was asserted, was concerned to avoid responsibility for his criminal conduct in relation to the handling of trust moneys. Athanasi, they argued, was paid $70,000 to carry out or arrange for the killing and Cavkic was, in turn, engaged to perform it. Why and on what terms Cavkic undertook this role were unknown, the Crown argued, but presumably he was to receive some share of the $70,000. Like the situation considered by the Court in De Gruchy this was a case in which there was absence of proof of motive and not the proof of absence of a motive. The instructions given by the trial judge which again were not the subject of exception were appropriate and adequate in the circumstances.

Athanasi - Ground 6

254 This was not a case in which the trial judge was required to instruct that the presence of an alleged motive, qua motive, had to be established beyond reasonable doubt. Rather the prosecution case, against the applicant, as I have already pointed out, was based on circumstantial evidence of which the payment to him by Clarke of $70,000 was a very important part. If the jury was satisfied beyond reasonable doubt on the totality of the evidence, including the fact of that payment in the circumstances, that the applicant was guilty, the motive for his involvement would, I suggest, seem to follow. Again, this was not a case of proven absence of motive and again no exception was taken at the trial to his Honour's instructions on this aspect.

Clarke - Ground (g)

255 Similarly, the complaint advanced on behalf of Clarke on this aspect lacks substance. As a practical proposition, the entire prosecution case rested upon the contention set out at the beginning of this judgment, that Clarke arranged for the killing of Allan and the disposal of his body in order to avoid responsibility for his conduct in the handling of trust moneys. The alleged motive was clearly before the jury and constituted an important part of the circumstantial material upon which the prosecution relied in proof of guilt. The trial judge gave the jury appropriate directions with respect to the drawing of inferences in a criminal trial and the proper approach to be taken in a case based on circumstantial evidence. Were it not for the difficulties created by the inadequacy of his instructions on the standard of proof earlier addressed, no problem could be perceived on his part.

Cavkic - Ground 8

Athanasi - Ground 2

Clarke - Ground (e)

256 The evidence of Joseph Strinavic appears to have added little, if anything, of relevance to the determination of any of the issues raised in the trial.

257 Whether or not that remains the situation at the time of any retrial will need to be considered at that stage.

Cavkic - Ground 10

Athanasi - Ground 9

258 There is, in the circumstances, no need to address these grounds.

Athanasi - Ground 1

Clarke - Grounds (d) and (b)

259 It is sufficient for present purposes to indicate that I am unpersuaded that the learned trial judge erred in admitting the evidence of Kypros Kypri. Whether or not the same view of its probative value would be taken at a retrial, bearing in mind the matters which arose in cross-examination of this witness, would need to be considered on the basis of the material available at that time.

Athanasi - Ground 3

260 This ground raises the complaint that the trial judge fell into error in directing the jury that the role attributed by the prosecution to Athanasi was that of a counsellor or procurer of Cavkic; in other words that it was asserted that he was an accessory before the fact whereas it was clear that the allegation against him was that he was present in a relevant sense and acted in concert or in a joint enterprise with Clarke and Cavkic; that is as an accessory at the fact.

261 When opening the Crown case and later in the course of his final address, the prosecutor employed a number of different expressions to describe the relationship between Athanasi and the other applicants and the nature of his involvement in the claimed murder of Allan. Save with the possible exception of a reference to his presence on the night, all of them were consistent with the role of a counsellor and procurer in a joint enterprise. It was however never suggested, as I understand the position, that he was present at the scene of the killing or played any direct role at that time. If liability was to be attributed to him for the death of Allan, it could only arise by virtue of his involvement as a participant in a joint enterprise. This is the basis upon which the prosecution case was argued, and justified the formulation of possible liability employed by the trial judge in his charge. There is no substance to this ground.

Clarke - Ground (j)

262 For similar reasons to those just dismissed this ground also must fail.

Athanasi - Ground 4

Clarke - Grounds (i) and (l)

263 There is no need to address this ground as the instructions to be given to the jury relating to circumstantial evidence will be dependent upon the evidence addressed on the retrial. I would add that I am not to be taken as accepting that it was necessary for the judge to direct the jury that proof beyond reasonable doubt was required of each of the matters about which complaint is made. For example, it was clearly not necessary for his Honour to instruct the jury that the prosecution had to establish according to the criminal standard that Strinavic had seen the same gun and holster as those found on Cavkic.

Cavkic - Ground 7

264 When regard is had to the context in which this instruction was given, this ground lacks substance.

Clarke - Ground (m)

265 This grounds also lacks substance and need not be addressed.

Cavkic - Ground 4

Athanasi - Ground 10

Clarke - Ground (c)

266 It is, I consider, apparent from the summary of the evidence set out earlier that a reasonable jury properly instructed could have arrived at a verdict of guilty in the case of each of the applicants.

267 In summary, I consider that the application for leave to appeal in each case should be allowed, each of the verdicts in the court below be set aside and a re-trial ordered.

268 I have had the advantage of reading the reasons for judgment in draft form of Vincent, J.A. I agree with those reasons and the disposal of the appeal proposed by him.

[1] e.g. Green v. The Queen [1971] HCA 55; (1971) 126 C.L.R. 28 at 31-33.

[2] [1998] QCA 405 at [19].

[3] [1999] QCA 27 at [3].

[4] At paras.[222] to [225].

[5] The following outlines have been prepared from the summary provided to the Court, the trial judge's charge and the addresses of counsel as recorded in the trial transcript. Although I have not attempted to set out the totality of the evidence, the major elements are included, in view of the presence of a ground, in the case of each applicant, that there was insufficient evidence to support a conviction and that a verdict of acquittal should be entered.

[6] A practice prohibited by the relevant LIV rules in relation to trust accounting.

[7] Another practice in breach of the rules.

[8] One of the difficulties with this explanation, as will later emerge in this outline, was the evidence of a number of telephone contacts during the night.

[9] I should add at this point that there was evidence adduced that the handbrakes on this model vehicle were known to fail on occasions.

[10] Lahey stated in evidence that these items were not in the vehicle when Allan left her premises to return home on that night. Sutherland also stated that he did not observe them whilst he was a passenger in the vehicle.

[11] This call would have been made from the practice as according to the statement made to the police by Clarke, on 29 May 2000, he attended the Avondale Heights' practice at about 7:05 p.m.

[12] This call was made within a few minutes of the last sighting of Allan at the service station. It is also to be noted that Athanasi rang Clarke five minutes later and Cavkic immediately afterwards.

[13] The DNA profile of Lyle Allan was also obtained and compared to the DNA profile found on Cavkic's sock, trousers and shoe. This comparison excluded Lyle Allan as a donor. The DNA profile of Lyle Allan was also compared to the DNA profile of the hairbrush. This comparison also excluded Lyle Allan as a donor.

[14] The defence response to the absence of any such sighting was that the cameras did not cover the car park outside.

[15] Later he referred to the judgment in Green v. The Queen (1971) 126 C.L.R. 32 as an example.

[16] Graham v. R. [2000] TASSC 153; (2000) 116 A.Crim.R. 108; Neilan v. R. [1992] VicRp 5; [1992] 1 V.R. 57; Pahuja v. R. (1987) 49 S.A.S.R. 191; Wilson, Tohorz & Young v. R. (1986) 42 A.Crim.R. 203; Brown v. R. [1913] HCA 70; (1913) 17 C.L.R. 570.

[17] [2000] VSCA 91; (2000) 1 V.R. 493 at 498.

[18] Green v. R [1971] HCA 55; (1971) 126 C.L.R. 28 at 33 per Barwick, C.J., McTiernan and Owen, JJ.

[19] R. v. McNamara [1998] QCA 405 at [19].

[20] [1999] QCA 27.

[21] This reference related to an instruction given to the jury with respect to their consideration of certain aspects of the evidence and did not relate to the standard of proof in a criminal trial generally.

[22] At [2].

[23] At [3].

[24] At [4].

[25] At [6]-[7].

[26] As McHugh, J. stated in Krakouer v. The Queen [1998] HCA 43; (1998) 194 C.L.R. 202 at 226:

"Misdirection of law in a criminal trial can take many forms. Of few of them can it be said that, at all times and in all circumstances, they constitute a miscarriage of justice. Legal error must often give way to cogent evidence of guilt. But on such matters as the standard or onus of proof or the functions of the jury, the position is different. These matters go to the root of a criminal trial according to law."

[27] (2000) 201 C.L.R. 414

[28] Section 464H(1)(d) reads:

"Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who -

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless -

(d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded; ...

[29] [1994] VicRp 58; [1994] 2 V.R. 249.

[30] The Court there held at 255:

"In the ebb and flow of preliminary enquiry, mere advertence by an investigating officer to the possibility of a person having committed an offence falls far short of the purview of s. 464H(1)(a) and (b). As was stated by this Court in R. v. Heaney ...: 'The section is not concerned with a state of mind founded upon speculation or "mere idle wondering" .... but is concerned with a state of mind arrived upon considerations of known facts out of which an apprehension that a person might possibly have committed an offence is created.'" (citations omitted)

[31] (1993) 69 A.Crim.R. 371

[32] At 372.

[33] This approach was adopted by the New South Wales Court of Appeal in R. v. Rowe [2001] NSWCCA 1; (2001) 50 N.S.W.L.R. 510.

[34] De Gruchy v. The Queen [2002] HCA 33; (2002) 211 C.L.R. 85 at 92-93.

[35] At 93.