R v Cavkic , Athanasi & Clarke

1 On 5 April 2004, the applicants were found guilty and convicted of the murder of Keith William Allan, a solicitor, for which they were later sentenced to terms of imprisonment ranging between 24 and 30 years. On 2 August 2005, this court, constituted by Charles and Vincent JJA and Osborn AJA, allowed appeals against their convictions and ordered that a new trial be had.[1] On 26 April 2006, the applicants were put up again for trial ('the second trial') but, at the conclusion of the second trial, the jury were unable to reach a verdict. On 7 February 2007, however, the applicants were put up again for trial ('the third trial') and, at the conclusion of the third trial on 14 May 2007, the jury returned verdicts of guilty of murder in each case. Following pleas in mitigation of penalty, on 16 August 2007 the judge sentenced the applicant Cavkic to 25 years and six months' imprisonment with a non-parole period of 21 years and six months; the applicant Athanasi to 24 years' imprisonment with a non-parole period of 19 years; and the applicant Clarke to 28 years and six months' imprisonment with a non-parole period of 23 years and six months. Each applicant now seeks leave to appeal against conviction and sentence.

2 Keith Allan was born on 19 November 1946 and consequently was 53 years of age at the time of his disappearance on 29 May 2000. He was the younger of two children, and had been educated at Northcote High School and then the University of Melbourne, from which he had graduated with the degree of Bachelor of Laws. He was admitted to practise as a barrister and solicitor on 1 April 1971 and on 16 July 1973 he commenced practice in Avondale Heights as a sole practitioner under the name or style of Keith W. Allan & Associates. In 1992 he opened a second practice in Springvale, which was and remained secondary to his practice at Avondale Heights. He was a bachelor who was devoted to his parents. He and his older brother, Lyle Allan, lived together in Northcote next door to their parents' home. Their father died in 1993 but their mother lived on in the parental home and the two men remained devoted to her care. By all accounts, Keith Allan was a plain man who led a modest life. He had a long-term relationship with a lady living nearby and he had many loyal acquaintances and friends through the harness racing industry. He liked to punt but the amounts which he wagered were miniscule.

3 The Crown's case at trial, which the judge found the jury to have accepted, was that Keith Allan's murder was a contract killing, conceived and planned by Clarke, who engaged Athanasi to recruit a hit man, who in turn engaged Cavkic to assassinate the victim.

4 For a number of years prior to the deceased's disappearance, Clarke was employed as a law clerk in the deceased's legal practice and thus involved in the deceased's trust account with authority to operate the account on his signature alone. Evidence showed that Clarke had misused the account to sustain the credit at the Crown Casino of Clarke's then partner, Eng Huan Chew, and of a gambling acquaintance, Frank De Stefano, and had also obtained between $420,000 and $560,000 for his own purposes which he spent on gambling and life style.

5 By November 1999, the legal practice had come under the scrutiny of the Law Institute of Victoria and the state of the trust ledgers was shortly to be revealed. The Law Institute required Clarke to reconstruct the ledgers and for a while he proffered various untenable excuses for why that could not be done. Ultimately, however, the Institute's inspector visited the practice on three separate occasions, the last late in March 2000 and, in a subsequent letter dated 29 March, she requested a range of documents and files pertaining to certain payments which were to be reviewed on 5 June 2000. According to the Crown case at trial, Clarke then realised that his illegal activities were likely to be revealed and it was in those circumstances that he conceived the plan to have Keith Allan killed and to foist responsibility for the deficiency on the deceased.

6 The Crown contended that Clarke recruited Athanasi to engage a killer and financed Athanasi's participation by cheques drawn on the trust account in pretended repayment to Athanasi of a personal loan of $50,000. Evidence showed that Clarke had created a false file to mask the true nature of cheques drawn payable to or on behalf of Athanasi on 12 April and 1, 12 and 19 May 2000, totalling $93,000.

7 Matters came to a head in the week commencing Monday 22 May 2000. A trust account cheque required for a conveyancing settlement was dishonoured and, by the Friday 26 May 2000, it appeared that the funds required for two further settlements on the following Monday would not be available. At lunch on Friday 22 May 2000, the deceased informed a number of staff members that the firm was in trouble and that he could go to gaol. Clarke was not present at the lunch but was well aware of the firm's financial situation and, according to the Crown case, it was then that he activated his plan to have Keith Allan killed.

8 As part of the plan, Clarke arranged to meet Keith Allan at the Avondale Heights office of the practice on the evening of Sunday 28 May 2000. Before Keith Allan arrived, Clarke composed a letter purportedly to him as follows:

Keith,

It is with great reluctance that I write this letter.

I cannot however go on with the charade that you have demanded of me.

Keith, I like you very much and there is nothing that I would not do to save your practice and the jobs of [the staff] and myself. I feel that this has not been better illustrated than my complicity in covering your tracks and the sham of trying to delay the investigation by the Law Institute these past 8 months.

It cannot go on any longer.

Unless you have adequate funds in trust to trade and by that I mean to cover all trust balances by 9.30 a.m. Monday 29 May 2000 I will have no alternative to report the matter to the Law Institute unless you have already done so.

Please do not do anything rash. Rather stand firm as the investigation by the LIV may not hold the horrors you fear.

...

Lastly Keith you have indicated to all and sundry your preparedness to take your own life. Put this thought out of reach Keith.

The Crown went to the jury on the basis that the purpose of that letter was to persuade police that the deceased had committed suicide.

9 The deceased arrived at the office at about 9.30 pm (only minutes after Clarke had finished typing the letter) and the two men then spent time talking before both driving their cars to a nearby 'Quix' service station to purchase petrol. Video tape retrieved from a CCTV camera at the service station showed Clarke in the deceased's presence at about 9.55 pm, which was the last time that he was seen alive.

10 Telephone company records showed, that in the hours before that sighting, Clarke was in contact by telephone with Athanasi repeatedly, and that Athanasi had been in contact by telephone with Cavkic repeatedly; that, only minutes after the sighting, Athanasi contacted Clarke again by telephone; and that, four minutes later, Athanasi had contacted Cavkic by telephone. During the subsequent four hour period, there were numerous further telephone contacts between Cavkic and Athanasi, culminating, at around 2.00 am on 29 May 2000, with a call from Cavkic to Athanasi to come and assist him with the operation of the handbrake on the deceased's Mercedes Benz motor car. Those phone records included the following:

28/5/00 9.32 am from Athanasi's mobile (in Mt Macedon) to Clarke's mobile, duration 6 seconds;

28/5/00 2.46 pm from Athanasi's mobile to Clarke's mobile, duration 9 seconds;

28/5/00 3.24 pm from Athanasi's mobile to Cavkic's mobile, duration 15 seconds;

28/5/00 3.30 pm from Athanasi's mobile to Cavkic's mobile, duration 1 minute 18 seconds;

28/5/00 4.08 pm from Athanasi's mobile to Clarke's mobile, duration 6 seconds;

28/5/00 4.49 pm from Athanasi's mobile to Cavkic's mobile, duration 51 seconds;

28/5/00 4.50 pm from Athanasi's mobile to Clarke's mobile, duration 6 seconds;

28/5/00 4.52 pm from Athanasi's mobile to Keith W. Allan & Associates, duration 27 seconds;

28/5/00 5.48 pm from Clarke's mobile to Athanasi's mobile, duration 3 seconds;

28/5/00 6.51 pm from Athanasi's mobile to Cavkic's mobile, duration 9 seconds;

28/5/00 7.28 pm from Clarke's mobile to Athanasi's mobile, duration 13 seconds;

28/5/00 7.52 pm from Athanasi's mobile to Clarke's mobile, duration 12 seconds;

28/5/00 7.58 pm from Athanasi's mobile to Clarke's mobile, duration 24 seconds;

28/5/00 9.10 pm from Athanasi's mobile (in Mt Macedon) to Cavkic's mobile, duration 11 seconds;

28/5/00 10.00 pm from Athanasi's mobile to Clarke's mobile, duration 12 seconds;

28/5/00 10.05 pm from Athanasi's mobile to Clarke's mobile, duration 12 seconds;

28/5/00 10.06 pm from Athanasi's mobile to Cavkic's mobile, duration 29 seconds;

28/5/00 10.10 pm from Cavkic's mobile to Athanasi's mobile, duration 7 seconds;

28/5/00 10.52 pm from Cavkic's mobile (in Mt Macedon) to Athanasi's mobile, duration 52 seconds;

28/5/00 10.55 pm from Cavkic's mobile (in Mt Macedon) to Athanasi's mobile, duration 2 seconds;

28/5/00 10.55 pm from Cavkic's mobile (in Mt Macedon) to Athanasi's mobile, duration 32 seconds;

28/5/00 11.15 pm from the deceased's mobile (in Gisborne) to Cavkic's mobile, duration 10 seconds;

28/5/00 11.22 pm from Cavkic's mobile (in Mt Macedon) to Anthony Agius' landline, duration 17 seconds;[2]

28/5/00 11.24 pm from Cavkic's mobile (in Mt Macedon) to Athanasi's mobile, duration 54 seconds;

28/5/00 11.27 pm from Athanasi's mobile to Cavkic's mobile, duration 23 seconds;

28/5/00 11.50 pm from Athanasi's mobile to Cavkic's mobile, duration 3 seconds;

29/5/00 12.45 am from the deceased's mobile (in Mt Blackwood) to Athanasi's mobile, duration 9 seconds;

29/5/00 1.54 am from Cavkic's mobile(in Altona West) to Athanasi's mobile, duration 1 minute 32 seconds;

29/5/00 2.16 am from Athanasi's mobile (in Altona West) to Cavkic's mobile, duration 57 seconds;

29/5/00 2.18 am from Cavkic's mobile (in Altona West)to Athanasi's mobile, duration 1 minute 34 seconds;

29/5/00 9.35 am from Athanasi's mobile to Clarke's mobile, duration 12 seconds.

11 Fortuitously, Cavkic and Athanasi were intercepted in Ayr Street, Laverton by a local police patrol (Senior Constable Michael Strongman and Senior Constable Travis McCarthy) at about 2.20 am on 29 May 2000. When so intercepted, Cavkic was the sole occupant of the deceased's Mercedes Benz motor car and Athanasi was seated in a Jaguar parked near to the Mercedes Benz.

12 Senior Constable Strongman told Cavkic to get out of the Mercedes Benz and asked him what he was doing. Cavkic replied that the handbrake was stuck. He also gave a false name and address and stated that he had borrowed the Mercedes Benz from his friend 'Keith', without Keith's knowledge, having encountered Keith on a pub-crawl at the Taylor Lakes Hotel. Evidence given at the trial showed that that was a lie. The deceased's brother and friends testified that the deceased was a life-long teetotaller who never lent his Mercedes Benz to anyone apart from his brother and a couple of very close friends; and extensive security CCTV footage from the Taylors Lakes Hotel showed that neither Cavkic nor the deceased had been there at or at any time near the time alleged. The Crown invoked Cavkic's lies as to having borrowed the car during a pub-crawl as evidence of consciousness of guilt.

13 Police also questioned Athanasi at the scene but he gave his correct name and address and was later allowed to leave.

14 Upon looking into the Mercedes Benz, Senior Constable Strongman saw a spade with dirt adhering to it and a hoe similarly encrusted with soil, either on the backseat or in the boot of the car. He also found a green plastic garbage bag in one of the footwells and within it the deceased's camera, binoculars, mobile telephone, hair brush and spectacles. The lenses and globes had been removed from the car's cabin roof lamps and put in the garbage bag. The deceased's wallet, containing money, his driver's licence, credit cards and an ignition key, was found between the driver's seat and the console. A five litre petrol can containing only about 100 millilitres of petrol was found behind the front passenger seat, and Cavkic had a cigarette lighter in his possession. The Crown did not allege that the petrol was to be used to set fire to the deceased's vehicle, but it remained an open question as to whether any petrol from the can had been used in the disposal of the deceased's body.

15 Cavkic was searched and found to be wearing an empty shoulder holster, and then arrested and taken to the Williamstown Police Station. When searched more thoroughly at Williamstown, he was found also to have a partially loaded 7.62 x .25 millimetre Russian Tokarev calibre pistol secreted in the waist band of his trousers, and subsequent DNA analysis showed that portions of his right shoe, right sock, and right trouser leg were stained with the deceased's blood.

16 At 7.06 am and again at 7.10 am on 29 May 2000 Clarke attempted to contact Athanasi and left messages for him. At 9.35 am on 29 May 2000 Athanasi called Clarke at his home but was unable to speak to him. At 4.17 and again at 9.36pm on 29 May 2000 Clarke called Athanasi on his mobile telephone but was unable to speak to him. On 30 May 2000 Athanasi called Clarke at home, without success, and at 5.21pm, 6.09 pm, 6.37 pm, 6.38 pm 8.07 pm, 8.24 pm, 9.21 pm, and on 31 May 2000 Athanasi attempted to contact Clarke by telephone at home or at the office of the legal practice on numerous further occasions. The call at 6.09 pm was recorded as having lasted 17 seconds.

17 At 7.41 am on 29 May 2000, Clarke called Adele Hancock, who was an employee of the deceased, and told her that the deceased had disappeared overnight or gone missing and that she should not attend at the office that day.

18 At 8.25 am, Clarke also telephoned Lyle Allan and, according to Lyle Allans' evidence, told him that:

Ray the newsagent said that the police had been outside [the office] at about five in the morning looking for Keith. Keith's in deep shit. He's got more money going out than coming in and Ron and I have had to cover for him.

19 Clarke later made a police statement in which he falsely declared that Lyle Allan had told him during that phone call that the deceased was missing and that the deceased's car had been found in Altona with someone in it. The Crown relied on the content of Clarke's conversations with Adele Hancock and Lyle Allan as showing that Clarke knew before speaking to either of them that the deceased would not be reappearing.

20 At 9.15 am on 29 May 2000, Clarke telephoned the Williamstown Police Station and told Sergeant Baker of that station that he had called the deceased the previous evening at 7.00 pm and told him that he needed to meet him because there were difficulties at the office. Clarke said that those difficulties concerned the deceased's firm being $400,000 short in their trust account and that he had met the deceased at 9.30 pm at the office and afterwards that they had driven their cars to a service station on Milleara Road where each of them had purchased petrol. The Crown characterised that conversation as an attempt to induce the police to think that Keith Allan had defrauded the trust account and had run away because the theft and its consequences were about to 'blow up'.

21 The Crown also relied on what it said were lies evidencing consciousness of guilt told by Clarke to investigating police as to the nature of the money paid to or to the account of Athanasi; and upon Clarke's conduct, which was said to bespeak consciousness of guilt, in attempting to contact Athanasi on 19 and 20 February 2002, after Cavkic had been charged with murder.

22 At about 9.40 am on 29 May 2000, police questioned Cavkic further about the events of the previous evening. Cavkic then repeated the story of the pub-crawl and meeting the deceased at the Taylors Lakes Hotel but, contrary to his earlier statements, claimed that the deceased had lent him the Mercedes Benz to pick up a package, which contained the gun, in the car park near where Cavkic was intercepted, and that the deceased was happy for him to return the car and gun whenever Cavkic next happened to bump into the deceased. When asked about his association with Athanasi, he said that Athanasi was a friend and that he had called Athanasi because the handbrake was stuck and he wanted help with it.

23 On 15 June 2000 police executed a search warrant at Athanasi's home in East Keilor. Among other things, they found an imitation Colt .45 automatic pistol in a pink child's bag on a desk under some rubbish in the garage.

24 The Crown case against Athanasi was that he had arranged for his friend Cavkic to do the killing and for that purpose had supplied Cavkic with the Russian Tokarev self-loading pistol, ammunition and shoulder holster which police found in Cavkic's possession on 29 May 2000.

25 The Crown relied upon the circumstances that at 9.32 am on 28 May 2000, Athanasi had attempted to contact Clarke from the Mt. Macedon area; at 9.10 pm Athanasi had attempted to telephone Cavkic from the same location; and subsequently, during the four hours between 10.00 pm and 2.00 am in which the killing was alleged to have occurred, that Athanasi was in frequent telephone contact with Cavkic.

26 According to the Crown, it was also a remarkable coincidence that Cavkic should have telephoned Athanasi at 2.00 am to come and assist him to operate the hand brake on the deceased's Mercedes Benz motor car, and that Athanasi should go to Ayr Street Laverton at that time in the morning to do so, unless both were complicit in the killing.

27 As with Clarke, it was contended that Athanasi's conduct on 19 and 20 February 2002 following Cavkic's arrest was evidence of consciousness of guilt. The Crown argued that Athanasi's motive was money to be used to service his gambling activities.

28 The case against Cavkic was that he was the killer in fact who had used the Russian Tokarev self-loading pistol and ammunition supplied by Athanasi either to control or kill the deceased, and then took the deceased's car to where he was found in Ayr Street.

29 Each applicant advances a number of grounds of appeal against conviction, of which some are common, and it is convenient to take them in turn.

Cavkic, Ground 1; Athanasi, Ground 1; and Clarke, Ground 1 - Evidence of Strinavic

30 Under cover of Ground 1, each appellant contends that the judge erred in admitting evidence of Joseph Strinavic as to having seen Cavkic with a pistol and holster at Athanasi's home a few weeks before reading in a newspaper that Cavkic had been found by police in a car with a gun. Counsel for each applicant argued that Strinavic's evidence was so vague and uncertain as to be inadmissible or, if admissible, that its probative value was so far outweighed by its prejudicial effect that the judge was in effect bound to exclude it in the exercise of discretion.

31 Strinavic's evidence in chief was that, at some stage in 2000, he had read in a newspaper that the deceased was missing. He had also read that Cavkic, who was one of Strinavic's friends, had been found in the deceased's car with a gun. Strinavic said that he had seen Athanasi in possession of a gun, in the presence of Cavkic, a few weeks before the deceased's disappearance, and he concluded that it might have been the same gun.

32 The sighting had occurred when Strinavic gave Cavkic a lift to Athanasi's home in Taylor's Lakes. Strinavic was invited into the garage, which faced out on to the street, and once inside he had 'hung around for a bit, just spoke to the guys for a while'. Then Athanasi had 'come out with the pistol and that, put it on the table and I picked it up and put it back down'.

33 Asked what he meant by 'and that', he said that Athanasi had also brought out a holster with the pistol, although he could not say whether the pistol was in the holster. He 'had a quick glimpse of the holster and that's it'.

34 Strinavic was shown Exhibit 16, which was the 7.62 x .25 millimetre Russian Tokarev calibre pistol found in Cavkic's possession and Exhibit 30, which was the imitation Colt .45 pistol which police found in the pink child's bag in Athanasi's garage when they searched it. He said that both guns were of the same general shape as the one he had seen in Athanasi's garage. He was also shown the holster which was found in Cavkic's possession and he said that, while he was not certain, the general colour of the holster appeared to be the same as that which he saw in Athanasi's garage.

35 In cross-examination, he accepted that he had never told anyone of what he saw at Athanasi's garage until the police came 'out of the blue' to interview him at his home on 20 March 2002 at around 8.00 or 9.00 pm in the evening. He said too that the police had told him that they had found his fingerprints on the weapon which had been found in Cavkic's possession.

36 He accepted that he was not shown the holster at the first trial; when shown it in subsequent trials, he could not recall a strap on it; the police had suggested that Strinavic was somehow involved; it had gone through his mind that he had to convince the police that he had done nothing wrong; the police did not tell him that they had found the imitation gun in Athanasi's garage; he could not say positively that the holster found in Cavkic's possession was the holster he had seen in Athanasi's garage; he could not state the calibre of the weapon he had seen in Athanasi's garage; he did not know the difference between a revolver and a pistol; he had not necessarily seen Athanasi bring the holster into the garage or carrying the holster, rather he had seen the holster in the garage either on a table or a chair or 'something like that'; he was clear that he had seen the gun and holster in Athanasi's garage before he read of Cavkic's arrest, but he could not say with certainty how long before, it could have been weeks or even months; the police had not shown him any guns or photographs of guns and they had not shown him any holsters; and the first time he had been shown the holster was during the second trial.

37 Counsel for the applicants prayed in aid of their contentions an observation of Vincent JA in the first appeal that Strinavic's evidence appeared to add little if anything of relevance to the determination of any issues raised in the trial. In counsel's submission, the same held true in the third trial.

38 As counsel for the respondent pointed out, however, Vincent JA also observed in the first appeal that the question of whether Strinavic's evidence would remain as insignificant at any re-trial would need to be considered at that stage. In the events which occurred, it appears to us that Strinavic's evidence did have a significance in the third trial which was not conceived of at the time of the first.

39 At the first trial, Strinavic's evidence was put forward as evidence of identification of the weapon found in Cavkic's possession. Due, however, to his inability to say positively that the weapon he saw in Athanasi's garage was the weapon found in Cavkic's possession, his testimony, as Vincent JA put it, appeared to add little if anything to the Crown case. Contrastingly, at the third trial, Strinavic's evidence was not tendered as identification evidence as such. It was instead relied upon as evidence of the circumstance that, some weeks before Cavkic's arrest, Athanasi had been seen in the presence of Cavkic with a weapon and a holster which looked like the weapon and holster later found in Cavkic's possession. Given the rarity of automatic pistols and holsters amongst the civilian population, that was a circumstance which suggested that the weapon and holster later found in Cavkic's possession were those which Strinavic had seen in Athanasi's possession in his garage.

40 Counsel for Athanasi submitted that, because Strinavic was unable positively to identify the weapon found in Cavkic's possession, the connection between his sighting of a weapon and the issue of whether Athanasi supplied Cavkic with the weapon found in Cavkic's possession was so tenuous as to make the evidence too remote from the issue.[3] Alternatively, he submitted that, given the tenuousness of the connection and the doubts about reliability of the evidence which resulted from Cavkic's cross-examination, the probative value of the evidence was so much outweighed by its prejudicial effect that it ought to have been excluded in the exercise of discretion.

41 We do not accept those contentions. In our view the connection between Strinavic's sighting of a weapon and holster in the garage and the weapon and holster found in Cavkic's possession was not at all tenuous. To the contrary, when one combines the relative paucity of automatic pistols and holsters with the fact that Cavkic was present at the time of the sighting, and the fact that it occurred a relatively short time before Cavkic was arrested, and that Athanasi was with Cavkic when he was arrested, the concatenation of circumstances seems to us to yield a very real possibility that Athanasi supplied the sighted weapon and holster to Cavkic a short time before Cavkic was arrested and thus that it was that weapon and holster which were found in Cavkic's possession.

42 It is true that, inasmuch as the police later found the imitation Colt .45 automatic in Athanasi's garage, it might have been the weapon which Strinavic saw in the garage. But the likelihood of that possibility is diminished by the facts that Strinavic saw no sign of the pink plastic child's bag in which police found the imitation Colt .45 automatic; the police did not find a holster in the garage; when the imitation Colt .45 automatic was later tested against the holster found in Cavkic's possession, it was found to be too large to fit into the holster; contrastingly, when the 7.62 x .25 millimetre Russian Tokarev calibre pistol found on Cavkic was so tested, it was found to fit perfectly into the holster (and was shown by forensic examination of the imprint to have been kept in the holster); and Athanasi was with Cavkic at 2.00 am in the morning when Cavkic was apprehended.

43 It is also true that there may have been some doubts as to the reliability of Strinavic's evidence. As the judge noted in his ruling, there were 'legitimate forensic criticisms of the manner in which the identification of the weapon occurred' and the 'method of identification of the holster', and the witness ultimately was driven to a point where he could not distinguish between the pistol found on Cavkic and the imitation pistol found by police at a later date in the pink plastic child's bag in Athanasi's garage. But, as the judge rightly held, the assessment of the reliability of the evidence was a matter for the jury. As his Honour put it, the Crown was entitled to place the evidence before the jury, in conjunction with other identified evidence, and invite them to draw the inference that Athanasi provided Cavkic with a weapon which could have been used, at the very least, to control the movements of Keith Allan.

44 Counsel for the applicants submitted that Strinavic's evidence could not prove a criminal association between Cavkic and Athanasi in relation to the charged offence, because the evidence was insufficient by itself to sustain an inference that that the gun and holster which Strinavic saw in Athanasi's garage were the gun and holster later found on Cavkic.

45 In our view, that submission should also be rejected. As the judge correctly directed the jury, the nature of a circumstantial evidence case is such that is it not ordinarily appropriate for a jury to go about deciding the case by a series of separate and exclusive judgments on each item of evidence, or by asking what each particular piece of evidence proves or whether it proves guilt. As a matter of ordinary logic and common sense, just as much as authority, the process is rather one of looking to the cumulative effect of all the evidence and considering the totality of the circumstances. Thus, although Strinavic's evidence might not have been sufficient by itself to establish that the pistol and holster seen in Athanasi's garage were the same pistol and holster as were later found in Cavkic's possession, when Strinavic's evidence was combined with the fact of Athanasi's and Cavkic's friendship; Athanasi's presence when the pistol and holster were displayed in the garage; the succession of telephone contacts between Athanasi and Cavkic in the hours before Cavkic's arrest; and that Athanasi was with Cavkic when Cavkic was caught in possession of a pistol and holster, the Crown was entitled to invite the jury to conclude that Athanasi supplied Cavkic with the weapon and holster which were found in Cavkic's possession.[4]

46 Counsel for the applicants argued in the alternative that, if that were so, it remained that Strinavic's evidence was incapable by itself of sustaining an inference that the weapon and holster seen in Athanasi's garage were the weapon and holster later found in Cavkic's possession and, that being so, the prejudicial effect of the evidence so far exceeded its probative value that the judge was bound to exclude the evidence in the exercise of discretion.

47 In our view, that submission should be rejected, for two reasons. First, it is premised upon a misconception of the sort of prejudice which warrants the exclusion of admissible evidence in the exercise of discretion. Evidence is not prejudicial in the relevant sense merely because it strengthens the Crown case. As McHugh, J said in Festa,[5] it is prejudicial only when the jury are likely to give the evidence more weight than the evidence deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task. In this case there is no reason to think that the jury were at risk of according Strinavic's evidence more weight than it deserved, still less of being inflamed by its content or diverted from their task.

48 Secondly, the assessment of the probative value of evidence admitted as part of a circumstantial case is not to be assessed in isolation but rather in the context of the whole of the Crown case and thus the totality of the evidence comprising the Crown case. To adopt and adapt an observation of Winneke P in R v Callaghan,[6] it follows that where evidence like Strinavic's testimony has been admitted in the exercise of a judge's discretion as a 'strand in a cable' in a case which is wholly circumstantial:

the real question which arises for this court is whether, having regard to the whole of the evidence, including the [subject] evidence and its treatment at the trial, it would be unsafe to allow the conviction to stand. This, as it seems to me, must necessarily be so because this case did not stand or fall on the [subject evidence]. It was merely part of what was otherwise a strong circumstantial case and it was inextricably bound up with the other evidence which the jury had to consider.

49 For reasons to which we shall come, we do not consider that it would be unsafe to allow the convictions to stand.

Cavkic, Ground 2; Athanasi, Ground 2; and Clarke, Ground 2 - Domican Warning

50 Each applicant contended as Ground 2 of his application that the judge erred in failing to give the jury a Domican warning[7] or at least directions akin to a Domican warning, as to the dangers of the displacement effect and matters bearing on the reliability of Strinavic's evidence. Counsel for the applicants submitted that the warning should have dealt specifically with the limited opportunity which Strinavic had to observe the weapon in Athanasi's garage, his limited knowledge of guns, uncertainty as to the date of his observations (and hence as to proximity to the alleged offence) and the pressure to co-operate to which he was subjected by police.

51 In our view that submission is not persuasive. As McHugh J observed in Festa,[8] a judge is not ordinarily required to give a Domican warning concerning the dangers of circumstantial identification evidence unless the evidence has an element of positive identification. Strinavic's evidence did not have an element of positive identification - it went no further than evidence of similarity - and the prosecutor made plain that the evidence was tendered only as circumstantial evidence of similarity and thus as a fact which in combination with other facts afforded a basis for inference that Athanasi supplied Cavkic with the weapon and holster of which he was found in possession.

52 To that may be added that Strinavic's evidence was evidence as to similarity as between inanimate objects - not similarity as between people - and that, as was observed in Marijancevic,[9] it is usually only in the case of evidence of identification of people that there is a need for special directions. Generally speaking, jurors may be assumed to possess considerable practical experience in assessing statements of recollection as to the identification of inanimate objects.

53 Of course, each case turns on its own facts. It is recognised that there may be cases in which the identification of inanimate objects forms such an important part of a Crown case that a warning based on Domican would be necessary or desirable. Teague J considered that possibility in Marijancevic,[10] and Tadgell JA essayed the point in Theos.[11] But, at the risk of repetition, this was not a case of identification - Strinavic's evidence was evidence of similarity, not identity; and nothing which has been said in the course of argument persuades us that the jury in this case were at risk of failing to appreciate the limitations inherent in the evidence of similarity. During the trial, defence counsel addressed the jury at length on what were said to be the deficiencies and shortcomings of Strinavic's evidence, and the judge summarised those submissions in his final charge to the jury. In the circumstances of this case, we see no reason to doubt that the jury well understood what needed to be considered.

Cavkic Ground 3; Athanasi Ground 3; Clarke Ground 3 - Standard of Proof

54 Counsel for each of the applicants also argued that the judge had erred in failing to direct the jury adequately as to the required standard of proof. In particular, they contended that it was incumbent on the judge in the circumstances of this case to tell the jury that being satisfied 'beyond reasonable doubt' was equivalent to being 'sure' or 'certain' (as it appears juries are now sometimes instructed in the United Kingdom and Canada). Reliance was placed upon the judgments of Cory J in R v Lifchus[12] and Iacobucci J in R v Russell.[13]

55 That argument is rejected. Hitherto, the approach taken in this court, as in other intermediate appellate courts in this country, has been that a judge should not attempt to define the expression 'reasonable doubt'[14] and should not attempt to expand upon the meaning of that expression unless there is a particular reason to do so.[15] Even then, any amplification should generally go no further than telling the jury that 'reasonable doubt' is a doubt which they as ordinary people may be prepared to entertain.[16]

56 There are exceptions, as is demonstrated by the judgment of this court in the first appeal. As Vincent JA there observed, there are acknowledgments in a number of decisions that, where there is something to suggest that a misunderstanding could occur, it may be necessary for the judge to say enough in explication of the meaning of 'beyond reasonable doubt' to avoid the misunderstanding. But even then, the view taken in the High Court for at least the past 50 years has been that a judge should not condescend to substituting other expressions for the expression 'satisfied beyond reasonable doubt'.

57 As Dixon CJ put it in Dawson v The Queen:[17]

... it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions: see Thomas v The Queen.[18]

Since then, the point has been reiterated repeatedly by other judges of the High Court, including Barwick CJ, and McTiernan and Owen JJ Green v The Queen,[19] Stephen J in La Fontaine v The Queen,[20] Gleeson CJ and Gummow, Heydon and Crennan JJ in Darkan v The Queen[21] and, most recently, Hayne J in Jovanovic v The Queen.[22]

58 Counsel for the applicants submitted that, despite those pronouncements, one can find observations in some of the earlier decisions of the High Court, such as Brown v The King[23] and Hicks v The King,[24] which equate reasonable doubt to 'moral certainty' or perhaps even to 'certainty', or otherwise treat it as the equivalent of being 'sure'. As counsel would have it, nothing which has been said in subsequent cases gainsays the efficacy of those observations. Further, and more fundamentally in counsel's submission, the current approach is premised upon a fiction, inasmuch as juries frequently do seek guidance as to the meaning of 'reasonable doubt' and, as he would have it, it is a pretence productive of injustice to deny them guidance as if they were better off without it.

59 Perhaps, there is some force in those submissions. Reference to earlier decisions does show that there were not always the restrictions on explication which have applied since the decision in Dawson, and that the use of synonyms in order to elucidate 'reasonable doubt' was once not uncommon. Equally, any judge who has sat for a time in criminal trials will know that juries these days frequently do ask for clarification of 'reasonable doubt'. And for that and other reasons one might respectfully take leave to doubt that the expression is any longer used by 'ordinary people' or at least 'understood well enough' by the 'average man (or woman) in the community'. Additionally, for what they are worth, some recent empirical studies, to which counsel referred, appear to support that conclusion.[25]

60 But that said, we consider that it would be a 'grave error' for this court to depart from the approach endorsed by Dixon CJ in Dawson and in the 'seriously considered statements' of other judges of the High Court in a number subsequent cases.[26] Until and unless the High Court says otherwise, we take the law in this country to be as stated in Dawson and our duty to be to apply it.

61 In point of fact, however, the judge in this case gave the jury a number of directions which can have left them in no doubt as to the meaning of 'reasonable doubt' or as to the fact that if they were left with a reasonable doubt they should acquit. For example, early in the course of his charge, the judge told the jury that:

You must consider the case in respect of each accused person separately and ask yourself 'does the evidence admissible on the trial of this particular accused, satisfy me beyond reasonable doubt of his guilt in relation to the offence of murder.

I have already said that it is your task to determine the facts in the case before you. That of course raises the question of how you approach your task of finding the facts. In determining the facts you must firstly consider all the evidence you have heard in the witness box.

The Crown must establish the guilt of the accused of the offence beyond reasonable doubt before a verdict of guilty may be returned against the accused. That standard of proof is the highest recognised in our law. It applies as I say in a criminal trial. Its effect may be appreciated by a simple comparison with the situation which prevails in a civil case. And that example was given to you by one, if not more, counsel, but I need to contrast it again in instructing you as to the law.

In a civil case where, for example, one person is suing another for damages for personal injuries, or for breach of contract, the person who makes the claim must prove his or her case, but need only do so on what is termed the balance of probabilities. Such a person need only show that his or her case is more likely to be correct than the other case. The situation is significantly different in a criminal trial where the Crown bears the onus of proving the guilt of the accused beyond reasonable doubt.

If, at the end of this case, you have a reasonable doubt about any of the elements of the charge under consideration, then it is your duty to acquit the accused...

...

During the course of delivering this charge to you I may, as I have up to the present time, use the expression such as 'the Crown must prove' or 'the Crown must establish' or some similar expression. You will understand that on each occasion, whether or not I expressly state it, the words 'beyond reasonable doubt' are incorporated in what I say.

Then, after explaining what was meant by drawing an inference, the judge added that:

When you are drawing an inference in a criminal trial, and where the inference you draw about facts assumes significance in the Crown case, then you must not draw such an inference unless you are satisfied that it is the only proper inference to draw. If you are drawing an inference about an important matter such as an element of the offence, or about a fact that was significant in establishing an element of the offence, you must not draw such an inference unless it is the only reasonable inference open on the facts. That stems from the burden of proof which rests on the Crown to establish every fact beyond reasonable doubt insofar as the elements of the offence are concerned before any verdict of guilty can be properly reached.

62 During the trial, counsel who then appeared for Cavkic took exception to those directions. He submitted that the judge should define 'reasonable doubt' in terms of it meaning what the jury thinks it means, and other defence counsel adopted that submission. But the judge resisted that submission and, in our view, his Honour was right to do so. As the law stands, the meaning and application of the terms 'beyond reasonable doubt' are the province of the jury. It is, therefore, error on the part of the judge to intrude upon that function by attempting to define the expression. It is also generally undesirable to tell the jury that the phrase is a 'well understood expression' or that whether a doubt is reasonable is for the jury to say by setting their own standards.[27]

63 In this appeal, counsel for Athanasi submitted that the judge was in error in failing to direct the jury that there were particular inferences of which they needed to be sure or which they needed to be certain were the only inferences open on the evidence. Those which counsel so identified were that:

a) Athanasi was paid money by Clarke for the purposes of organising the killing, rather than in repayment of a loan or as part of the ongoing rorting of the trust account;

b) Athanasi provided a firearm to Cavkic to kill or control the deceased;

c) Athanasi attended at Ayr Street, Laverton pursuant to his role as a counsellor and procurer of the killing; and

d) Athanasi's conduct following the arrest of Cavkic in February 2002 was only explicable on the basis that he was aware of his guilt of murder.

64 In our view the judge was not wrong to reject counsel's contention. As already stated, it is not the law that members of the jury must examine each item of direct evidence in isolation and reject it unless satisfied beyond reasonable doubt of its truth and reliability. Nor is it the law that a jury is in all circumstances precluded from drawing an inference from a primary fact unless that fact is proved beyond reasonable doubt. As Deane J observed in Chamberlain,[28] whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt depends not only on the nature of the fact but upon the process by which that juror sees fit to reach his or her conclusion on the ultimate question of guilt or innocence. More precisely, as Dawson J later stated in Shepherd,[29] it is only where it is necessary for the jury to reach a conclusion upon a fact of which the existence forms an indispensable, intermediate step in the reasoning process toward the ultimate inference of guilt that that conclusion must be established beyond reasonable doubt. It follows that a judge should not instruct a jury that they must be satisfied of an intermediate fact beyond reasonable doubt unless the fact is an essential link in the jury's chain of reasoning and, even if it is, particularly when it is obvious, the instruction may not be helpful.

65 In this case, it does not appear to us that any of the identified inferences was necessarily an essential link in the chain of reasoning leading to an inference of guilt. A juror could well have reasoned that, although he or she was not satisfied of any of the identified inferences beyond reasonable doubt, the totality of the evidence persuaded him or her beyond reasonable doubt that the applicants were guilty as charged.

66 But even if there were some jurors who regarded one or more of the identified inferences as an essential link or links in their chain of reasoning to guilt, it seems to us that the judge adequately covered that possibility by directing the jury that:

[Y]ou must keep clearly in mind that any fact that you regard as being of significance, either in your chain of reasoning about the matter or because it constitutes a significant part of the framework with which you make your determination, must be established beyond reasonable doubt.

If you regard a factor as being of significance, so that your reasoning towards the possibility of the guilt of an accused man may be influenced by it, you will understand why that fact has to be established beyond reasonable doubt and cannot be established at some lower level.

67 Obviously, a jury could not properly have drawn the ultimate inference of guilt unless satisfied upon the whole of the evidence that there was no other reasonable explanation consistent with applicant's evidence. But it is clear from the following direction that the judge explained that too:

It is vital that you direct your attention to the various possibilities that exist in a given situation and that every reasonable possibility consistent with innocence has been excluded before a finding of guilt can be made.

68 Given the entirely circumstantial nature of the Crown case, it does not appear to us that the judge was required to give any further direction about the standard of proof and, in view of the many possible paths of reasoning properly open to individual jurors in this case, it would not have been helpful to do so .

Athanasi Ground 4; Clarke Ground 4 - Consciousness of guilt

69 Under the heading of ground 4, it was contended on behalf of the applicant Athanasi that the judge erred by instructing the jury that Athanasi engaged in conduct capable of evidencing consciousness of guilt: first, by telling his girlfriend, Vicki Lester, not to speak in the house or on the telephone; secondly, by attempting to contact Clarke after Cavkic was charged on 19 February 2002; and, thirdly, by attempting through his friend, Toyne, to set up a meeting with Clarke after Cavkic was charged. Counsel submitted that each of those facts was intractably neutral and so therefore incapable of evidencing consciousness of guilt.

70 We reject that argument. As with a number of the applicants' contentions, it appears to us to be premised upon a misconception that the evidential significance of each of the identified acts is to be considered separately and in isolation. As was pointed out in R v Ciantar,[30] however, lies and other post-offence conduct are ordinarily but a species of circumstantial evidence such that an inference of guilt may usually be drawn from a concatenation of circumstances including the lies or other post-offence conduct. It follows that, as with other forms of circumstantial evidence of guilt, a jury may accept evidence of lies and other post-offence conduct and act upon it without necessarily being satisfied that there is no other explanation of the lies or other post-offence conduct reasonably open on the facts. Hence, in this case, the question is whether in the context of the whole of the evidence adduced in proof of the accused's guilt, it was open to a jury to conclude that the conduct set out above was indicative of consciousness of guilt. In our view it was.

71 Starting with the Athanasi's injunction to his girl friend, Vicki Lester, not to say anything in the house or on the telephone, it will be remembered that the circumstances which had preceded it included that Athanasi had produced a pistol and holster in his garage while Cavkic was present some weeks before the deceased's disappearance; Cavkic was arrested in the deceased's car at Laverton on 29 May 2000 at 2.00 am of the morning following the deceased's disappearance; at that time he had the deceased's blood on his trousers; and Athanasi was with him, having been called out to assist him with the operation of the handbrake on the deceased's car. Then on 18 February 2002 the police arrested Cavkic for the murder of the deceased and at 3.27 am of the following morning Athanasi had the following telephone conversation with his girl friend, Vicki Lester:

LESTER: HELLO.

ATHANASI: I ASKED YOU WHO WAS IN THE HOUSE.

LESTER: YEAH'HH.

ATHANASI: YEAH, WHO'S THERE?

LESTER: TROY.

ATHANASI: WELL, WHO -

LESTER: HANG ON, LISTEN TO ME. I GOT PEOPLE COME AROUND TODAY.

ATHANASI: LIKE WHO?

LESTER: SUDO'S BEEN CHARGED WITH MURDER.

ATHANASI: WHAT?

LESTER: SUDO'S BEEN CHARGED WITH MURDER. HE'S BEEN LOCKED UP AND HE'S CHARGED WITH MURDER.

ATHANASI: (SHORT PAUSE) YOU'RE JOKIN'? (INAUDIBLE FEMALE VOICE IN THE BACKGROUND).

LESTER: WHO YOU WITH?

ATHANASI: I (INAUDIBLE).

LESTER: WHY HAVEN'T YOU RANG?

ATHANASI: I DUNNO. DON'T - ITS ALRIGHT, RELAX.

LESTER: YOU - RELAX! YOU SAID AN HOUR, YOU LEFT ME AT YOUR FUCKIN' BROTHER'S HOUSE FOR THREE HOURS.

AHTANASI: RELAX, I SAID -

LESTER: CAN I COME HOME, YOU DIDN'T EVEN RING.

ATHANASI: V-VICKI, DO ME A FAVOUR. DON'T SAY NOTHING IN THE FUCKING HOUSE...[31]

72 Consistently with the evidential principles earlier described, the significance of that conversation is to be seen in the light of the circumstances which preceded it and of those which followed it, including that at 3.29 am (less than two minutes after concluding his conversation with Vicki Lester), Athanasi called Clarke's home telephone and left an urgent message for Clarke to contact him, thus:

RECORDING: SORRY I CAN'T TALK TO YOU RIGHT NOW BUT IF YOU LEAVE A MESSAGE, I'LL GET BACK TO YOU [BEEP].

ATHANASI: HELLO? YOU THERE, MATE? CAN YOU GIVE US A RING, PLEASE? YOU THERE? (SHORT PAUSE) PICK UP, MATE. IT'S URGENT. IF YOU GET THIS MESSAGE, RING ME ASAP.

73 In turn, the significance of that conversation is to be seen in the context of the preceding circumstances, including the conversation between Athanasi and Lester at 3.27 am (in which she told him that Cavkic had been arrested for murder), and the following circumstances, including this further conversation between Athanasi and Lester, half an hour later, at 4.10 am on 19 February 2002:

LESTER: HELLO.

ATHANASI: WHERE'S TROY?

LESTER: GONE.

ATHANASI: GONE WHICH SHOPS?

LESTER: (SHORT PAUSE) WHAT DO YOU MEAN, WHICH SHOPS?

ATHANASI: THE ONES HERE, OUR PLACE? OR THE MAIN ONE?

LESTER: WELL, HE'S WALKING.

ATHANASI: TO WHERE?

LESTER: WELL I'D SAY TO CLOSEST SHOP.

ATHANASI: ALRIGHT.

LESTER: HANG ON.

ATHANASI: I'LL CALL YOU BACK, ALRIGHT.

LESTER: BEF - HANG ON, BEFORE YOU GO.

ATHANASI: YEAH?

LESTER: ARE YOU COMIN' HOME OR NOT?

ATHANASI: YES. (SHORT PAUSE) OKAY?

LESTER: TODAY?

ATHANASI: YES, I SAID.

LESTER: YES, YOU SAID. YOU SAID YOU'D BE AN HOUR.

ATHANASI: OKAY?

LESTER: THE COPPERS HAVE BEEN AND EVERYTHING.

ATHANASI: THEY'VE BEEN THERE?

LESTER: FUCKIN' - YOU WON'T ANSWER YOUR FUCKIN' PHONE.

ATHANASI: THEY LOOKING FOR ME? UH -

LESTER: YOU SAID YOU LOVED ME.

ATHANASI: ARE THEY LOOKING FOR ME?

LESTER: YOU SAID YOU LOVE ME AND YOU WEREN'T PLAYIN' UP. THAT WAS A LIE, WASN'T IT?

ATHANASI: I'M - WELL, WHO SAYS I AM?

LESTER: HO (LAUGHS).

ATHANASI: WHAT THE FUCK -[32]

74 Each of those conversations must then also be considered in the context of the following further conversations, of which the significance is itself informed by the circumstances and conversations gone before. First, at 10.39 am on 19 February 2002, Athanasi spoke by telephone to Toyne to get him to arrange an urgent meeting between Athanasi and Clarke, as follows:

TOYNE: GOOD MORNING.

ATHANASI: IT'S NOT A GOOD MORNING, ALRIGHT?

TOYNE: HOW YA DOIN? -

ATHANASI: UH, LISTEN - LISTEN TO ME. (INAUDIBLE) -

TOYNE: I WAS FUCKIN' SOUND ASLEEP LAST NIGHT WHEN YOU RANG, I DIDN'T EVEN KNOW 'TIL THIS -

ATHANASI: LISTEN TO ME -

TOYNE: MORNIN'.

ATHANASI: JUST LISTEN FOR A MINUTE.

TOYNE: YEAH'HH.

ATHANASI: RING JULE [CLARKE].

TOYNE: YEAH.

ATHANASI: AND TELL HIM TO COME TO ESSENDON QUICKLY.

TOYNE: YEAH.

ATHANASI: ALRIGHT? ALRIGHT TELL HIM TO COME TO, UM, UH - UH, TELL HIM TO GO AND PARK OUTSIDE WINDY HILL.

TOYNE: WINDY HILL?

ATHANASI: URGENT. AND HE'S GOTTA DO IT NOW.

TOYNE: ALRIGHT.

ATHANASI: AND TELL HIM TO WATCH HIS BACK.

TOYNE: ALRIGHT.

ATHANASI: OKAY?

TOYNE: I'LL RING YOU BACK AND LET YOU KNOW.

ATHANASI: OKAY.

TOYNE: ALRIGHT, DUDE.

ATHANASI: SEE YA.

TOYNE: CIAO.[33]

75 Secondly, approximately eight minutes later at 10.47 am on 19 February 2002, Athanasi spoke again by telephone to Toyne:

TOYNE: YO, I THINK IT - I TRIED CALLING YA.

ATHANASI: DID YOU SPEAK TO HIM?

TOYNE: HE'S NOT THERE, NO ANSWER.

ATHANASI: HAS HE BEEN LOCKED - HAS - HAS THE - HAVE THE COPPERS GOT HIM?

TOYNE: NUH, 'COS HE RANG ME THIS MORNING ABOUT, I DUNNO -

ATHANASI: DID YOU MENTION ANYTHING -

TOYNE: AN HOUR -

ATHANASI: ANYTHING ABOUT THE NEWSPAPER?

TOYNE: NUH.

ATHANASI: 'COS THEY TOLD ME -

TOYNE: HE JUST RANG ME - HE JUST RANG ME THIS MORNING. HE SAID HE HAD - LIKE, JUST TO HAVE A CHAT, 'HOW YOU DOIN'? WHAT HAVE YOU BEEN UP TO?' DA DA DE DA -

ATHANASI: SEE, MY - MY MATE GOT ARRESTED FOR MURDER YESTERDAY.

TOYNE: BULLSHIT?

ATHANASI: YEAH.

TOYNE: WHAT F - LIKE, HOW? WHERE? WHAT?

ATHANASI: (SHORT PAUSE) MY MATE. DO YOU UNDERSTAND?

TOYNE: YOU'RE KIDDING?

ATHANASI: DO YOU UNDERSTAND WHAT I'M TALKING ABOUT?

TOYNE: OH'HH. LIKE - YEAH'HH. YEAH. I - I WON'T SAY IT ON THE PHONE, BUT YEAH, I GOT YOU NOW.

ATHANASI: ALRIGHT?

TOYNE: YOU'RE KIDDIN'?

ATHANASI: ALRIGHT?

TOYNE: FUCKIN' HELL. UM, YEAH 'COS HE RANG ME THIS MORNIN' AND HE SAID HE'D -

ATHANASI: AND APPARENTLY -

TOYNE: YOU KNOW -

ATHANASI: CO- COPPERS WENT TO MY HOUSE LOOKIN' FOR ME.

TOYNE: YOU'RE KIDDIN? 'COS WHAT HAPPENED W- LIKE, 'COS - NUH, 'COS LIKE, OBVIOUSLY YOU TRIED CALLIN' ME LAST NIGHT.

ATHANASI: YEAH.

TOYNE: AND THEN HE RANG ME THIS MORING, HE SAID, 'HAVE YOU SPOKEN TO HIM?' I WENT, 'NUH'. I SAID, 'THERE WAS A MISSED CALL FROM HIM LAST NIGHT, BUT I WAS ASLEEP'. HE GOES, 'YEAH, HE TRIED CALLIN' ME AND LEFT A MESSAGE ON THE PHONE, 'JULES/ JULES? LIKE, YOU KNOW? 'FUCKIN' ANSWER THE PHONE', WHATEVER'. AND - AND THEN HE JUST HAD A CHAT AND I SAID, 'ALRIGHT'. AND HE SAID, 'I'LL - I MIGHT COME DOWN LATER ON AND SEE YA.' AND THEN, LIKE, I SPOKE TO YOU BEFORE AND THEN I TRIED RINGIN' HIM THEN AND HE'S NOT HOME. OH, THERE'S NO ANSWER, I SAID, 'JULES, ARE YOU THERE?'

ATHANASI: HE MUST'VE SEEN-

TOYNE: AND -

ATHANASI: THE PAPER.

...

ATHANASI: ALRIGHT. KEEP TRYIN' HIM, ALRIGHT? AND WHEN YOU FIND -

TOYNE: YEAH -

ATHANASI: HIM - I'LL RING YOU, ALRIGHT?

TOYNE: YOU'LL RING ME?

ATHANASI: YOU, 'COS I'M - MY PHONE'S NOT GONNA BE ON.

...[34]

76 Thirdly, at 11.06 am on 19 February 2002, Athanasi spoke by telephone to an unknown male as follows:

ATHANASI: HELLO

UKM: HEY.

ATHANASI: HEY, MATE.

UKM: WHAT HAPPENED?

ATHANASI: UM.

UKM: (INAUDIBLE).

ATHANASI: DIDN'T YOU SEE THE NEWSPAPER?

UKM: HEY?

ATHANASI: I'M TOO SCARED - I'M TOO SCARED TO GO HOME, MATE.

UKM: YOU SERIOUS?

ATHANASI: YEAH. SUDO'S BEEN ARRESTED.

UKM: YEAH?

ATHANASI: HE - HE'S BEEN ARRESTED FOR MURDER.

UKM: UH, OKAY.

ATHANASI: I DON'T REALLY WANNA S - SAY MUCH ON THE PHONE. I'VE ONLY GOTTA RUNG BE - FOR - 'COS I'M WAITING FOR SOMEONE'S - CO - COPPERS WENT TO MY HOUSE LOOKIN' FOR ME YESTERDAY.

UKM: YOU SERIOUS?

ATHANSASI: YEAH.

UKM: MM'MM, NO GOOD.

ATHANASI: AND I'VE HAD ME PHONE OFF EV-EVER SINCE. I PUT IT ON BECAUSE I NEED TO SPEAK TO SOMEONE URGENT.

UKM: ALRIGHT. UH -

...

UKM: ALRIGHT. AND I HAVE TO TALK TO YOU, BUT I HAVE TO SEE YOU TODAY, THOUGH (INAUDIBLE) LIKE YESTERDAY.

ATHANASI: NO, NO, NO, THE NO, I DISAPPEARED ON PURPOSE YESTERDAY, MATE...

77 Fourthly, at 12.09 pm on 19 February 2002 there was this conversation between Athanasi and Toyne:

ATHANASI: HELLO

TOYNE: HE'S ON HIS WAY THERE.

ATHANASI: TO WIND[Y] HILL?

TOYNE: YES.

ATHANASI: OKAY.

TOYNE: I TOLD HIM TO GO TO ESSENDON AND, UH -

ATHANASI: OKAY.

TOYNE: GO TO THE-WINDY HILL AND JUST PARK BESIDE IT.

ATHANASI: OKAY.

TOYNE: ALRIGHT. HE RANG ME FROM A PHONE BOX ...

...

ATHANASI: OKAY.

TOYNE: BUT I SAID TO - HE - HE GOES, 'HAVE YOU SPOKEN TO HIM? I SAID, 'YES, GO THERE, GOT THERE AND WAIT'. I SAID, YEAH -

ATHANASI: OH -

TOYNE: AND HE GOES - UM, I SAID TO HIM, 'DO YOU KNOW WHAT'S GOIN' ON? AND HE GOES, 'YES' AND HUNG UP...

78 Fifthly, at 12.16 pm on 19 February 2002, Athanasi spoke by telephone to his girl friend, Julie Lester, again as follow:

ATHANASI: HELLO.

LESTER: HELLO.

ATHANASI: HEY.

LESTER: WHAT'S GOING ON?

ATHANASI: I'VE GOTTA GO AND SEE SOMEONE.

LESTER: CANT' YOU COME PICK ME UP?

ATHANASI: I'VE GOTTA GO AND SEE HIM, I SAID.

LESTER: DO YOU KNOW HOW IMPORTANT THIS IS?

ATHANASI: I, UH, I UNDERSTAND. I'M GONNA GO AND SEE YOU-KNOW- WHO...

79 That was followed in turn by further telephone conversations between Athanasi and Toyne, apparently acting as a go-between, to arrange a meeting between Athanasi and Clarke. In the first of those conversations at 12.32 pm Athanasi told Clarke that he was half an hour away from the meeting place and to tell 'him' [scil. Clarke] that Athanasi would be there by one o'clock. In the second, at 1.06 pm, Toyne told Athanasi that 'he' [scil. Clarke] had been inside at Windy Hill and that 'he' had asked Toyne to tell Athanasi that 'he' was going outside around the back. The third was at 1.32 pm in which Athanasi asked Toyne to tell 'him' to meet Athanasi at Doncaster Shopping Town and to telephone Athanasi when he was there.

80 At 2.10 pm there was a telephone conversation between Athanasi and Clarke, in which Clarke told Athanasi that he was in the Food Court and Athanasi said that he would be back in half an hour.

81 That was followed by still further telephone conversations between Toyne and Athanasi. In the first of those, at 4.09 pm, Toyne told Athanasi that 'he's [scil. Clarke] been ringin' me all the time' and Athanasi told Toyne that Athanasi was coming back from Kilsyth and that it would be twenty minutes until he got to Doncaster Shopping Town. In the second, at 4.39 pm, Athanasi told Toyne that he had arrived at the Doncaster Shopping Town Food Court but had not located 'him' [scil. Clarke]. Toyne replied that 'He rang me - he rang me ten minutes before you rang me before,... he was just at the Shopping Centre ... at the Four'n Twenty'. In the third at 4.48 pm, Athanasi told Toyne that: 'He's not there, mate. I've just walked all around the Food Court', and asked Toyne to: 'Tell him that my phone's on but only to ring me from a phone booth'. In the fourth at 5.28 pm, Toyne told Athanasi that: 'He's still there waiting for ya', and Athanasi replied that he was already in town and that Toyne should ask 'him' [scil. Clarke] to meet Athanasi in the Old [England] Pub in Banksia Street, Heidelberg.

82 At 5.43 pm Athanasi had another telephone conversation with his girl friend, Vicki Lester, which included this:

ATHANASI: BUT I HAVEN'T BEEN ABLE TO FIND, UH - (INAUDIBLE) WE'VE BEEN FUCKIN' - OH'HH. UM - OH, VIC, I'M STRESSED.

LESTER: I KNOW. SO AM I.

ATHANASI: OH, YOU DON'T HOW I -

LESTER: LIKE, I DO. PLEASE COME HOME.

ATHANASI: I'M GONNA COME HOME, ALRIGHT?

LESTER: OKAY.

ATHANASI: OH'HH. ALRIGHT, I'LL - OH, I'M COMING HOME, I PROMISE, ALRIGHT?

LESTER: ALRIGHT.

ATHANASIS: RIGHT. DON'T - LISTEN? DON'T SAY A WORD TO ANYONE.

LESTER: I WONT'.

ATHANASI: NOTHIN'. DON'T EVEN TALK ABOUT IT IN THE HOUSE, ON THE PHONE, NOTHING ....[35]

83 Finally, the following morning, 20 February 2002, at 10.38 am, Athanasi and Clarke had another telephone conversation in order to arrange a meeting, which included this:

ATHANAISI: CAREFUL WHAT YOU SAY THERE.

CLARKE: YEAH.

ATHANASI: RIGHT, DID YOU CALL ME?

CLARKE: I DID.

ATHANASI: WHAT'S THE MATTER?

CLARKE: I JUST WANTED TO SEE YA.

ATHANASI: ALRIGHT. UM, DO YOU KNOW THE AREA WHERE I USED TO HANG AROUND?

...

CLARKE: UM, OKAY.

ATHANASI: HALF AN HOUR?

CLARKE: UH'HH, NO I'M WATIN' FOR SOMEBODY.

ATHANASI: WHO?

CLARKE: UH, S- SOMEBODY. IT'LL BE TWO HOURS.

ATHANSI: ALRIGHT, SOON AS YOU'R READY. WHAT, IS SOMETHING WRONG?

CLARKE: I'LL TALK TO YA WHEN I SEE YA. ALRIGHT?...

84 Taken together in the circumstances that we have referred to, we consider that Athanasi's actions and statements just described could properly be considered to constitute a powerful indication that Athanasi was conscious of his own complicity in the murder of the deceased for which his 'mate' Cavkic had just been arrested, and that he was seeking to distance himself from it. Possibly, his actions and statements were also capable of explanation on some other basis. The defence argued at trial that they should be seen as a natural response to the fact that Athanasi had been arrested in 2000 and his Jaguar and telephone seized; in effect, as the actions of a man who was concerned that he may once more wrongly be accused of involvement in the killing of Keith Allan. But accepting for the sake of argument that it were so, it would not have precluded the jury from properly rejecting that possibility and being satisfied to the requisite standard that Athanasi's actions and conduct were indicative of guilt. Without purporting to limit the ways in which the jury could properly have reasoned to that conclusion, it was surely open to the jury to conclude that, if Athanasi were indeed an innocent man whose real concern was that he might falsely be accused, he would far more likely have said something to that effect in the course of the many telephone conversations which he had with Lester, Toyne and Clarke than repeatedly enjoining Lester, as he did, to say nothing at all about the matter in the house or on the telephone.

85 Counsel for Athanasi argued in the alternative that, if the telephone conversations were capable of evidencing consciousness of guilt, the judge had nonetheless erred in the directions which he gave as to consciousness of guilt: first, by stating the law under cover of a description of defence counsel's submissions rather than as a binding direction of law carrying the full weight of his Honour's authority; and, secondly, by failing to warn the jury of the dangers of drawing an inference as to consciousness of guilt.

86 Those criticisms are unwarranted. The judge did not put his directions as to consciousness of guilt under cover of defence counsel's submissions. To the contrary, having first identified the conversations and statements on which the Crown relied, his Honour directed the jury expressly on the subject as follows:

Consequently, I need to instruct you on this aspect of the law. I should say immediately that you must first be satisfied, beyond reasonable doubt, that the conversations between Cavkic and the police and Athanasi and the police occurred in the terms to which the police witnesses deposed. That is, you must be satisfied that the relevant words were uttered.

87 His Honour then continued and completed the direction in terms which complied in all respects with the requirements adumbrated in Edwards v The Queen.[36] They included that the jury had to be satisfied in respect of each lie and statement so relied upon that it showed consciousness of guilt; that no other interpretation of it than that was reasonably open; that such required that they be satisfied that it was a deliberate lie told because the accused realised his guilt and feared that the truth would implicate him in the offence; that great care had to be taken to ensure that any such inference was properly drawn; that there were many reasons why people tell lies which have nothing to do with consciousness of guilt (and his Honour gave examples both general and specific); and, beyond reasonable doubt, that no interpretation was open as a reasonable possibility other than that the statement was a deliberate lie told because the accused realised his guilt of the offence of murder and feared the truth coming out.

88 Indeed on one view of the matter, the directions were too favourable to the accused; for, as has already been observed, where lies or other conduct are used as evidence of consciousness of guilt as part of a circumstantial evidence case, as they were in this case, it is not usually necessary to establish the character of the conduct beyond reasonable doubt. Plainly, however, the fact that the direction may have been too favourable to the applicants could not possibly have deprived Athanasi of a chance of acquittal to which he was entitled.

89 Counsel for Athanasi argued further that the judge had erred by failing to redirect the jury in response to defence counsel's exception to the judge's statement that 'in the case of each accused, the Crown point to conversations with or statements made to the police which, it is submitted contain untruths or lies'. The thrust of that submission was that, since the Crown did not rely on any lies as against Athanasi, but only upon other post-offence conduct, there was a danger that without re-direction, the jury might treat the lies told by the other accused as admissible against Athanasi.

90 We reject that argument too. The statement about which complaint is made was only by way of introduction to the subject of consciousness of guilt. Having made it as such, the judge then went individually to the Crown case against each applicant and precisely identified the lies or other post-offence conduct on which the Crown relied as evidence of consciousness of guilt as against that applicant. In the case of Athanasi, the judge thus identified the subject post-offence conduct as follows:

In so far as the accused Athanasi was concerned the significant matters upon which the Crown relied were his conduct and comments after the charging of Cavkic on 19 February 2002. In this regard the Crown pointed to the following matters [which his Honour then listed precisely].

91 As well as that, the judge had earlier directed the jury that:

...you cannot use the statements of Cavkic to the police after his interception in Ayr Street and back at the Williamstown Police Station as evidence against either Athanasi or Clarke. These conversations which the Crown submit contain lies are admissible only in the Crown case against Cavkic. In general terms the reason for this is that the statements made by an accused in the absence of the other accused, and which may contain admissions, cannot be evidence against the absent accused. You might think that is a legal rule of fairness and commonsense since the absent accused is not able to dispute what is being said. So I reiterate, those conversations with the police are only evidence in the case of Mr Cavkic.

Similarly, the written statements made by Mr Clarke to the police are only evidence in his case and not the cases of Mr Cavkic and Mr Athanasi.

As far as Mr Athanasi is concerned, the conversations he had with the police in Ayr Street are relevant only to his case, and not that of his co-accused.

Finally, the telephone conversations involving Athanasi and Clarke and their endeavours to meet in the days immediately following the charging of Mr Cavkic with murder on 18 February 2002 may only be used in evidence in their cases, not in the case of Sudo Cavkic.

92 Given the precision with which the judge identified the material relied upon by the Crown to establish consciousness of guilt on the part of Athanasi, and the earlier directions as to the inadmissibility of one accused's admissions against another, it seems to us that the jury could not possibly have been left in doubt as to the inadmissibility against Athanasi of the lies and other post-offence conduct alleged against the other accused.

93 Counsel for Clarke submitted that the judge had erred in allowing the Crown to contend that the following lies alleged to have been told by Clarke were capable of evidencing consciousness of guilt:

a) That Lyle Allan had told Clarke on the morning of 29 May 2000 that a man had been found in Keith Allan's car.

b) That Lyle Allan had told Clarke to contact the policemen, Sergeant Baker, at Williamstown police station.

c) That payments made from the trust account to or for the benefit of Athanasi, were in repayment of a loan of $56,000 from Athanasi.

94 It was also submitted that the judge had erred by allowing the Crown to contend that Clarke's conduct in attempting to contact Athanasi after Cavkic was arrested was indicative of consciousness of guilt.

95 We turn to the detail of those submissions. As to lies (a) and (b) the argument was that, even if the jury accepted Lyle Allan's evidence that he did not tell Clarke that a man had been found in Keith Allan's car or to contact Sergeant Baker, and, so, concluded that statements (a) and (b) were lies, the lies established no more than that Clarke was aware from another source of the two facts mentioned and possibly had lied about the source of his knowledge. It particular, it was said, the lies were not sufficient to demonstrate that Clarke had lied because of consciousness of his complicity in the death of Keith Allan and wished to distance himself from it.

96 We reject that argument. Like the contention advanced on behalf of Athanasi, it is premised upon the misconception that, because other possible explanations of the lies may have been open, the jury were precluded from excluding such explanations and concluding that the lies were informed by consciousness of guilt. As has been explained in relation to Athanasi, it was for the jury to assess the probability of other possible explanations and to accept or reject such other explanations according to the jury's assessment of all of the circumstantial evidence offered in the case. Among the questions which the jury might then well have posed for themselves in resolving to exclude competing explanations, was what other possible sources of the information there could have been and why, if they existed, there was so little said about them.

97 Under cover of Ground 4 of Cavkic's application, counsel for Cavkic argued that the judge had erred by leaving to the jury without criticism the prosecutor's submission that there was evidence of motive against Cavkic, namely, the payment or promise of money. In counsel's submission, there was no direct evidence of payment or promise of payment and, in those circumstances, it was incumbent on the judge specifically to point out to the jury that there was no direct evidence of motive.

98 We do not accept that argument either. Axiomatically, the point of directions is to ensure that a jury does not fail to understand relevant principles or the significance of the evidence in the case. Consequently, unless there were a realistic possibility of the jury failing to appreciate the absence of direct evidence concerning Cavkic's motive, there was no need for the judge specifically to point it out. Views may differ as to whether it would have been appropriate for his Honour to do so. But in our view, the jury could not have failed to appreciate that the only way in which to find that Cavkic's motive was as alleged was by a process of inference. A specific direction to that effect, therefore, was not required.

99 In the judge's general directions to the jury on the law, his Honour took the jury in detail through what it was that constituted the evidence in the case; the distinction between direct evidence and inferential evidence; the difference between inference and speculation; and the steps required before drawing an inference adverse to any accused. Significantly, no criticism is made or could properly be made of that part of his Honour's charge.

100 Then, in summarising the arguments of counsel, the judge reminded the jury that:

The Crown submit that you should infer that Cavkic received or was promised money for killing Keith Allan.

The Defence point out that there is no evidence whatsoever of any payment of money to Cavkic by Athanasi or of any promise to pay him. Consequently, it is submitted, the Crown assertion may be characterised as sheer speculation.

101 That was followed by the directions already referred to concerning the drawing of inferences and his Honour's injunction to the jury as to the need for satisfaction beyond reasonable doubt of any fact which the jury regarded as 'being of significance, so that your reasoning towards the possibility of the guilt of an accused man may be influenced by it'.

102 It is true that the judge's recitation of defence counsel's argument was not the same thing as a direction that there was no direct evidence of motive. And it is true that in some cases that could make a difference. But in this case the jury cannot possibly have been left in any doubt about the matter. The prosecutor had put motive to the jury solely on the basis that the jury should infer its existence from other evidence. Defence counsel had responded that the absence of direct evidence was such that they could not properly infer its existence. And the judge had reminded the jury of those competing contentions. In those circumstances it would be unreal to conclude that the jury might somehow still have been left thinking that there was direct evidence of motive. We are strengthened in that view by the fact that none of the very senior and experienced counsel who represented the applicants at trial ever asked for a further direction to that effect.

103 Counsel for Clarke argued as Ground 6 of his application that the judge had erred by failing to direct the jury that they could not find Clarke guilty of murder unless they were satisfied beyond reasonable doubt of the motive which the Crown attributed to Clarke.

104 The argument, as we understood it, was that, because the case against Clarke was put on the basis that he was the 'mastermind' or 'architect' of the killing, whose motive was to deflect blame for the trust account fraud to the deceased, the jury could not properly conclude beyond reasonable doubt that Clarke was involved as mastermind unless satisfied beyond reasonable doubt that he was motivated in the manner alleged.

105 We reject that argument. As has already been observed, whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt depends not only on the nature of the fact but upon the reasoning process by which that juror sees fit to reach his or her conclusion on the ultimate issue of guilt. To repeat what was said by Dawson J in Shepherd,[37] it is only where it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process toward an inference of guilt that the conclusion must be established beyond reasonable doubt.

106 Given the circumstantial nature of the case against Clarke, there were in fact any number of alternative reasoning processes by which a juror might properly have reached the conclusion beyond reasonable doubt that Clarke was the mastermind behind the killing. Indeed such was the strength of the evidence of Clarke's involvement in the killing - his association with Athanasi; the payments which he procured to Athanasi; the telephone conversations which he had with Athanasi before the killing; his attempts to contact Athanasi on 29 May 2000 after the killing; his knowledge of the details of Cavkic's arrest; the lies which he told the police; his subsequent conduct; and his dealings with Athanasi after Cavkic was arrested in 2002, - that it is difficult to conceive of a permissible path of reasoning of which the establishment of motive would be an essential link

107 But even if there were some such available reasoning process, as Dawson J said in Shepherd, a judge should not instruct a jury that they must be satisfied of an intermediate fact beyond reasonable doubt unless the fact is a necessary link in a chain of reasoning and even if it is, particularly when that is obvious, the instruction may not be helpful. Given the entirely circumstantial nature of the Crown case, and the judge's directions to which we have already referred, as to the need for jurors to be satisfied beyond reasonable doubt of any factor which they regarded as being of significance in the sense that their reasoning towards the possibility of the guilt might be influenced by it, we do not consider that it was either necessary or desirable for the judge to tell the jury that they could not convict Clarke unless satisfied of his motive beyond reasonable doubt.

Athanasi Ground 5(a) and Clarke Ground 5(a) - Failing to receive a jury question or answer it in open court

108 Counsel for Athanasi and counsel for Clarke both contended that the judge had erred by dealing with a jury question in the absence of the jury, and counsel for Cavkic sought to take advantage of the point by submitting that, if the argument were upheld, it would apply equally to Cavkic.

109 The argument was rooted in the circumstance that, after the jury retired to consider their verdict, the judge received a message from the jury through the tipstaff that the jury wished to be redirected on the law, but that their preferred course for that purpose was to be supplied with a transcript of the directions already given. His Honour then announced to counsel in the absence of the jury that:

Now [the tipstaff] has just indicated to me that they're [the jury] looking to have a break and so that might be an ideal opportunity to - yes, they're [to] go out into the yard and so on so that would be an ideal opportunity to effect the logistics of what we seek to achieve. So if you want to go and put that in train.

The other matter is the question of the repetition of the law. The jury's preferred course, as I understand it, is for them to have that part of the charge so they can just read it. The alternative is that I will read it again, and that will take about an hour and a half, and I do not know what that will achieve.

The prosecutor and defence counsel responded that they had no objection to the judge giving the jury a copy of the relevant part of the transcript, and thereafter that was done.

110 Contrary to the approach of defence counsel at trial, counsel for Athanasi and Cavkic submitted before us that the jury's question should have been asked and answered in open court and that the way in which the judge dealt with it was a serious irregularity which vitiated the trial process.

111 We accept that submission up to a point. Clearly, it is undesirable for jury questions to be channelled through a tipstaff or other court officer in the fashion which occurred in this case.[38] The jury's question should have been asked by the foreman in open court, or preferably put in writing by the foreman and delivered to the judge and then read out aloud by the judge in open court, in the presence of the accused, their counsel and the jury.[39] The judge should not have done what he did in this case and the practice should not be repeated.

112 That said, however, we do not accept that the judge's actions vitiated the trial process. In the events which occurred, the prosecutor and defence counsel were informed of the jury's question before it was answered, and thus had the opportunity (of which they availed themselves) to make submissions as to how properly it should be answered; and it was not contended and it is not now suggested that it was inappropriate to answer the jury's question by providing them with a copy of the relevant part of the transcript. In those circumstances, in our view, there was no injustice to the applicants and there was no such wrongful exclusion of the public from the trial as would constitute a serious irregularity or departure from the well-recognised principle of criminal procedure that the trial must be held in public.[40]

113 Counsel for Clarke submitted before us that, because the jury were merely supplied with the transcript and not asked whether that satisfied their requirements, one could not be certain whether their question had in fact been answered. But in the circumstances of this case, it seems to us that there are two reasons to be confident that it had been. First, assuming the tipstaff correctly conveyed the jury's wishes - and it is not now suggested that he did not - the jury were given further directions in the form that they said they preferred (which is to say a copy of the transcript of directions). Secondly, given that the jury were prepared in the first place to ask for further directions, we see no reason to doubt that, if the copy of the transcript with which they were provided was not sufficient to answer their question, they would have asked for further guidance.

114 Section 43 of the Juries Act 2000 provides that:

A judge may, during a trial, discharge a juror without discharging the whole jury if-

(a) it appears to the judge that the juror is not impartial; or

(b) the juror becomes incapable of continuing to act as a juror; or

(c) the juror becomes ill; or

(d) it appears to the judge that, for any other reason, the juror should not continue to act as a juror.

115 In this case, the judge discharged one of the jurors pursuant to s 43 after the jury had retired to consider their verdict. His Honour did so after consulting the prosecutor and defence counsel, all of whom expressed the view that it was the appropriate course to adopt. Before this court, however, counsel for Clarke argued that the trial came to an end once the jury retired to consider their verdict and since s 43 in terms applies only 'during a trial', there was no power to discharge one juror without discharging the whole jury.

116 In our view that argument should be rejected. As a matter of ordinary acceptation, a criminal trial begins at the point when an accused person is directed to look to his challenges following his or her plea of not guilty upon arraignment[41] and continues at least until the jury is discharged,[42] which ordinarily will not occur until the jury has delivered their verdict. The only point which has been argued against adopting the same construction of 'trial' for the purposes of s 43 is that, because of the possibility that a discharged juror might affect the verdict of the remaining jurors, and because the common law is intolerant of strangers influencing the decisions of juries, it should be concluded that s 43 uses the expression 'trial' in the sense of that part of the trial which concludes when the jury are sent out to consider their verdict.

117 That submission is not persuasive. Section 43 is modelled on s 15 of the Criminal Justice Act 1925 (UK)[43] which it was conceded applied after a jury had retired to consider their verdict. There is no reason to suppose that Parliament intended s 43 to have any different effect. There are also powerful textual indications within the Act that 'trial' in s 43 has the meaning of continuing until verdict. Section 46(2), which relates to majority verdicts, envisages a verdict being taken in the course of trial. Section 46(5) contemplates the return of the verdict during trial. And it is plain that s 48(3) uses 'trial' in the sense that it continues until the presentment is cleared.

118 Of course, when one comes to the exercise of the discretion for which s 43 provides, there may well be cases where the circumstances necessitate the discharge of the whole of the jury. Much may depend on the stage of the trial in which the discretion was invoked. But there is no complaint made here about the exercise of the judge's discretion, and given the circumstances which led to the discharge of only one juror under s 43, it is readily understandable that trial counsel were agreed that it was the appropriate course to adopt.

Cavkic Ground 5; Athanasi and Clarke Ground 8 - Aggregate of errors

120 It was submitted on behalf of each applicant that, if none of the individual errors identified in argument were sufficient in itself, the aggregate effect of the errors was such as to warrant that the applicants' convictions be quashed [44] and a new trial be had.

121 It will be apparent from what we have said about the alleged individual errors that we do not accept that contention.

Athanasi Ground 7; Clarke Ground 9 - Unsafe and unsatisfactory

122 Finally, counsel for Athanasi and counsel for Clarke submitted that this was a case in which the jury, having looked at all the evidence, was bound to have had a reasonable doubt concerning the applicants' guilt,[45] and thus that the verdicts should be set aside as unsafe and unsatisfactory.

123 Counsel acknowledged that a similar submission had been put in the first appeal, and rejected for the reasons given by Vincent JA in that appeal.[46] They did not contend that there was anything wrong with or doubtful about those reasons. But counsel submitted that there were several differences between the first trial and the third trial which warranted a different conclusion in this appeal.

124 The starting point, it was said, was that there were several inferences critical to proof of the Crown case which it was not safe to draw or which were equally consistent with innocence as with guilt:

• First, the inference that Clarke paid Athanasi money from the trust account to organise the killing and created a false trust account file to disguise the true nature of those payments. Counsel for Athanasi contended that the evidence was inadequate to support an inference that the payments were for the killing. It was equally consistent, he said, with the payments being made to Athanasi as part of an ongoing rorting of the trust account which did not have anything to do with killing.

• Secondly, the inference that Athanasi supplied Cavkic with the 7.62 x 25 millimetre Russian Tokarev calibre pistol and holster for the purposes of the killing. Counsel contended that the evidence of Strinavic having seen a pistol and holster at Athanasi's home was questionable, especially in light of the evidence of the subsequent discovery of the toy pistol in Athanasi's garage.

• Thirdly, as to the Athanasi's attendance on Cavkic at 2.00am in the morning after the disappearance of the deceased, it was submitted that it was significant that the Crown did not dispute that his reason for the attendance was to assist Cavkic with the operation of the handbrake on the deceased's car, and that it was important to observe that, when the police arrived, Athanasi was co-operative with police and did not show any signs of anguish such as would suggest that he had been involved in a killing.

• Fourthly, as to the inferences which the Crown sought to draw from the telephone contacts between Athanasi and Clarke on 27 May 2000 (which, it may be noted, were described in detail in Vincent JA's judgment in the first appeal),[47] it was said that they were dependent upon satisfaction that Athanasi was at Mt Macedon at the time of the calls but that there was evidence given by a witness, Khatiz, that it was possible that the caller could have been up to 35 km from Mt Macedon.

• Fifthly, it was contended that it was not open to infer that Athanasi's telephone contacts with Toyne and Lester and Clarke after the arrest of Cavkic were indicative of consciousness of guilt, because, it was said, they were equally consistent with panic the result of concern at the possibility of being falsely accused of the murder.

• Sixthly, as to the attribution of motive to Athanasi, it was contended that it was not possible to infer beyond reasonable doubt that the moneys paid out of the trust account to Athanasi were for arranging the killing.

125 We do not consider that there is any substance in those points. Most of them are repetitive of contentions earlier dealt with, and like those earlier contentions are affected by the misconception that the identified inferences were essential links in the chain of reasoning to guilt (thus requiring proof beyond reasonable doubt); or, alternatively that the existence of another possible explanation for some of the identified inferences precluded the jury from drawing the inference adversely to the applicants.

126 More specifically, as to the argument concerning the false file, it has already been explained how the jury could properly have reached a finding of guilt without necessarily being satisfied beyond reasonable doubt that Athanasi' the motive for the killing was the payments made to him or on his behalf from the trust account. It has also been explained that, if any jurors adopted a chain of reasoning of which it was an essential link that those payments were Athanasi's motive for arranging the killing, the fact that there was another possible explanation for the payments did not preclude those members of the jury from being satisfied beyond reasonable doubt that the purpose was in truth to arrange for the killing. To adopt and adapt an observation of Vincent JA in the first appeal:

It was ... open to them, in the circumstances, to reject that [other possible] explanation as deliberately false and proffered in order to conceal [the] true purpose...[48]

127 Then, as to Strinavic's evidence about seeing a pistol and holster at Athanasi's home some weeks before the deceased's disappearance, for the reasons already given we repeat that, if Strinavic's evidence were not sufficient by itself to establish that the pistol and holster seen in Athanasi's garage were the same as those later found in Cavkic's possession, when Strinavic's evidence was combined with the fact of Athanasi's and Cavkic's friendship; Athanasi's presence when the pistol and holster were displayed in the garage; and that Athanasi was with Cavkic when Cavkic was caught in possession of a pistol and holster at 2.00 am in the deceased's car, the jury were entitled to conclude that Athanasi supplied Cavkic with the weapon and holster which were later found in Cavkic's possession.

128 As to the possibility of an innocent explanation for Athanasi's attendance on Cavkic at 2.00 am in the morning, it is perhaps sufficient to pose the question of why Cavkic would seek Athanasi's assistance with the operation of the handbrake on the deceased's car at 2.00 am and why would Athanasi be prepared to travel at 2.00 am to provide his assistance with the handbrake of the deceased's car, unless both of them were somehow involved in the misappropriation of the deceased's car or something to which it related. To put it at its lowest, the circumstances were highly suspicious, if not sufficient in themselves to satisfy the jury that both Cavkic and Athanasi were involved in the deceased's disappearance and, taken with the other circumstantial evidence which comprised the Crown case, they provided a powerful basis for the ultimate inference of guilt.

129 Turning to the telephone contacts on 27 May 2000, it is sufficient to say that, on any analysis, Athanasi's presence in Mt Macedon was not a fact of which proof beyond reasonable doubt was essential to the inference of guilt. Self evidently, it was but one fact among a raft of circumstances which provided the basis for the inference that he was complicit.

130 Lastly, we have dealt already with the inferences which might properly be based upon the fact of moneys having been paid out of the trust account to Athanasi or on his behalf, and it is unnecessary to repeat what we have said about them.

131 In M v The Queen,[49] the majority of the High Court held that, where a court of criminal appeal is asked to conclude that a verdict is unsafe or unsatisfactory, we must ask whether we think that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Alternatively, it has been said, the inquiry may be put in terms of whether the jury must have had a reasonable doubt as to the guilt of the accused[50] or of whether the jury were bound to have a reasonable doubt as to the guilt of the accused.[51] Our function in this case, therefore, is to determine whether the jury, acting reasonably and appreciating the burden and standard of proof, could have convicted each applicant of murder on the evidence available to support that conviction.[52]

132 For the reasons we have given, we do not doubt that they could and did.

(i) Cavkic Ground 1; Athanasi Ground 1; Clarke Ground 1 - Concealment of body

133 It was contended on behalf of each applicant that the judge had erred in sentencing that applicant by treating as an aggravating circumstance that the applicant had not revealed the whereabouts of the deceased's body. It was submitted that the failure to disclose the whereabouts of the body could be no more than the absence of a mitigative factor, and thus that the judge's sentencing discretion had miscarried.

134 We accept that the failure to disclose the whereabouts of the deceased's body was not properly to be regarded as an aggravating factor but rather should be seen as the absence of a mitigating factor. A murderer's destruction of the deceased's body may be regarded as an aggravating circumstance.[53] So too may the mere act of dumping the deceased's body after the murder.[54] But to treat an accused's failure to reveal the whereabouts of the deceased's body as an aggravating factor would be tantamount to treating the accused's conduct of his or her defence as an aggravating factor; and, as counsel for Cavkic reminded us, it is no longer permitted to take that view.[55] An accused is entitled to conduct his or her defence within the bounds of the law and should not be prejudiced in the exercise of that right. It follows that the judge in this case was in error in describing the applicants' failures to disclose the whereabouts of the deceased's body as aggravating factors.

135 That said, however, it does not appear to us that the error was material to the sentences imposed. As the High Court observed in Siganto, sometimes it is a matter of semantics to distinguish between denying the existence of circumstances of mitigation and asserting the existence of circumstances of aggravation, and judicial statements intended as the former may of occasion be misunderstood as intending the latter. In our view, the distinction in this case is a matter of semantics.

136 So to say is not to suggest that the judge conceived of the failure of the applicants to disclose the whereabouts of the deceased's body as the absence of a mitigating factor. But, in the circumstances of this case, the failure to disclose the whereabouts of the body was in reality the other side of the coin to the applicants' having dumped the body in a place where it was not likely to be found. And inasmuch as the failure of disclosure reflected the circumstance that the body had been dumped in a place where it would not be found, in reality it was not illogical even if inapposite to describe it as an aggravating factor. In any event, for the judge in effect to refer to both the non-disclosure and the disposal of the deceased's body compendiously as an aggravative factor did not result in any greater sentence than if each of the two components had been separately described.

Cavkic Ground 3 - Motive and financial reward

137 It was submitted that the judge had erred in sentencing Cavkic on the basis of a finding that he had killed the deceased 'purely for financial reward'; the argument being that there was no evidence to support that finding.

138 We reject that submission. For the reasons given when dealing with Cavkic's Ground 4 of appeal against conviction, we consider that it was open to the jury, and thus open to the judge, to infer beyond reasonable doubt that Cavkic's motive was financial.

Athanasi Ground 2; Clarke Ground 4 - Fettering the exercise of sentencing discretion

139 It was submitted on behalf of both Athanasi and Clarke that the judge had erred in sentencing the applicants by referring first to the sentences imposed at the conclusion of the first trial and then considering whether there was any reason to impose different sentences. Counsel argued that the judge should have first formed his own views as to the sentences to be imposed and only then referred to the sentences earlier imposed and undertaken a comparison. Counsel contended that the judge's approach was in effect a forbidden two step sentencing process instead of the kind of intuitive synthesis which his Honour was bound to apply.

140 We accept that the judge's approach was technically incorrect. His Honour should have undertaken his own synthesis and then checked the results against the sentence previously imposed. But as with his Honour's error in misdescribing the lack of a mitigative circumstance as an aggravative circumstance, we consider that this error was immaterial. It was not suggested, and in reality it could not be, that the judge was likely to have come to any different result than if he had approached the matter strictly in accordance with principle.

141 It was contended that the judge erred in sentencing Athanasi on the basis that he supplied Cavkic with the pistol and holster found in Cavkic's possession when arrested on 29 May 2000.

142 We reject that contention. For the reasons given when dealing with Athanasi's Ground 1 of appeal against conviction, we consider that it was open to the jury, and thus open to the judge, to infer beyond reasonable doubt that Athanasi supplied Cavkic with the pistol and holster.

Cavkic Ground 4; Athanasi Ground 4; Clarke Grounds 1 and 2 - Manifest excessiveness

143 It was submitted on behalf of Cavkic that his sentence of 25 years' and six months' imprisonment with a non-parole period of 21 years and six months was manifestly excessive having regard to sentences previously imposed; the absence of prior convictions; what was said to be Cavkic's non-violent disposition; the fact that he appeared to have been easily led; the embarrassment and shame he had brought on his family; the long delay between the offence and sentencing; the steps he had made towards rehabilitation in gaol; and the fact that he has had to suffer the ordeal of three trials.

144 It was submitted on behalf of Athanasi that his sentence of 24 years' imprisonment with a non-parole period of 19 years was manifestly excessive, in that he had been in custody since March 2002 but was not entitled to any pre-sentence detention, as such, in respect of that period up to 15 November 2007. Counsel acknowledged that the judge had made an allowance of 10 months in the exercise of discretion in accordance with the principle adumbrated in R v Renzella,[56] but he submitted that 10 months was insufficient as a matter of totality. He also relied on each of the factors in mitigation of penalty which were urged on the judge in the course of the plea.

145 It was submitted on behalf of Clarke that his sentence of 28 years and six months' imprisonment with a non-parole period of 23 years and six months was manifestly excessive in light of previous sentences for murder, Clarke's age (which was 51 years at the time of sentencing) and his lack of prior convictions.

146 We are not persuaded by any of those submissions. The judge expressly referred to and dealt with the mitigatory factors relied upon by counsel, and there is no reason to think that his Honour did not give them adequate weight. The murder of Keith Allan was an appalling crime which, in accordance with current sentencing practices, called for condign punishment. Mitigatory circumstances notwithstanding, given the nature and gravity of each applicant's offence and his moral culpability, we are of the clear view that the sentences and non-parole periods which the judge imposed were well within the range.

147 It was, however, further submitted on behalf of Athanasi that, although the judge was persuaded to make an allowance of 18 months for the delay which had occurred between the time of Athanasi's being sentenced at the conclusion of the first trial and the time of his sentencing at the conclusion of the third trial, and stated that he therefore intended to impose a head sentence and non-parole period which would expire 18 months before those imposed by the first trial judge, in fact, in the events which have occurred, there has been no reduction.

148 We accept that submission in part. When Athanasi was sentenced at the conclusion of the first trial, the first trial judge imposed a sentence of 27 years' imprisonment and directed that:

That sentence operates from today. Pursuant to s 16(1) of the Sentencing Act 1991 I direct that two years of that sentence be served cumulatively upon the sentences [of five years and nine months] imposed by Judge Gullaci in the County Court on 4 July 2003 making a total effective sentence of 29 years' imprisonment. I direct that you serve a minimum term of imprisonment of 24 years before becoming eligible for parole. That minimum term also operates from today. You retain the benefit of the declaration by Judge Gullaci of having served 487 days' pre-sentence detention. That declaration applies to both the sentence of imprisonment I have imposed today and the minimum term I have set.

149 Arguably, the first judge's intentions could have been more felicitously expressed. But the effect of what his Honour said appears to be this:

1. On 4 July 2003, Judge Gullaci sentenced Athanasi for drug offences and breach of an earlier suspended sentence to a total effective sentence of five years and nine months' imprisonment, with a non-parole period of four years and four months, and made a pre-sentence declaration of 487 days.

2. On 10 May 2004, the first judge imposed a sentence of 27 years' imprisonment for murder, of which he ordered that two years be served cumulatively on the sentence imposed by Judge Gullaci, and set a non-parole period of 24 years in respect of all sentences remaining to be served.

3. At the point of sentencing by the first judge, Athanasi had served a further 312 days of the sentence imposed by Judge Gullaci which, when added to the 487 days of pre-sentence detention declared by Judge Gullaci, made for a total of 899 days and, in turn, a balance of 1299 days of the sentence imposed by Judge Gullaci remaining to be served.

4. By reason, however, of s 15 of the Sentencing Act 1991, the sentence of 27 years' imprisonment imposed by the first judge commenced to be served immediately on 10 May 2004 and, for the next two years which the first judge ordered be served cumulatively on the sentence imposed by Judge Gullaci, the balance of the sentence imposed by Judge Gullaci was suspended.

5. Other things being equal, those two years would have expired on 10 May 2006, at which point Athanasi would have begun to serve the remainder of the sentence imposed by Judge Gullaci concurrently with the remaining 25 years of the sentence imposed by the first judge.

6. Had that occurred, the balance of the sentence imposed by Judge Gullaci would have expired on 29 November 2009 and, thereafter, Athanasi would have continued to serve the remainder of the 24 year non-parole period set by the first judge until it expired on 10 May 2028 and, if parole were not then or thereafter granted, would have continued to serve the remainder of the sentence until it expired on 10 May 2031.

150 It is true that the first judge said that the declaration of 487 days' of pre-sentence detention made by Judge Gullaci would apply to both the sentence imposed by Judge Gullaci and the sentence imposed by the first judge. But, plainly, that could not be so. Perhaps, what his Honour meant was that it would continue to count in respect of so much of the sentence imposed by Judge Gullaci as had already been served and, inasmuch as the remainder of the sentence imposed by Judge Gullaci was to be served concurrently with the sentence of 27 years' imprisonment imposed by the first judge, it would also count against that. Either way, however, as will be seen, it does not make any difference.

151 On 16 August 2007, the judge in this case imposed the sentence of 24 years' imprisonment with a non-parole period of 19 years.

152 Consequently, putting aside Emergency Management Days and other such things, and accepting that pre-sentence detention was then nil (as it appears to have been assumed was the case), the sentence of 24 years' imprisonment imposed by the judge in this case would expire on 16 August 2031 (which is to say some three months' after the original expiration date of 10 May 2031) and the non-parole period of 19 years would expire on 16 August 2026 (which is to say more than 18 months' before the expiration of the original non-parole period on 10 May 2028).

153 On 30 March 2009 counsel for both the Crown and Mr Athanasi sought to draw to the Court's attention the error in the calculation of the sentence so imposed.

154 It was then agreed by both counsel that, after taking into account the contents of [149] above, emergency management days and pre-sentence detention, the correct sentence to be imposed on Mr Athanasi should be 22 years and 11 months with a non-parole period of 17 years and 11 months.

155 It follows from what we have said that each application for leave to appeal against conviction will be refused.

156 In the case of each of Sudo Cavkic and Julian Michael Clarke the application for leave to appeal against sentence will also be refused.

157 In the case of Costas Athanasi, the application for leave to appeal against sentence will be allowed and the orders of the Court will be as follows -

Application for leave to appeal against sentence is granted.

The appeal is instituted and heard instanter and is allowed.

The sentence of imprisonment imposed below is quashed. In lieu thereof, the applicant is sentenced to a term of imprisonment of 22 years and 11 months.

A non-parole period of 17 years and 11 months is fixed.

It is declared that a period of 592 days is reckoned as already served to and including 30 March 2009 under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.

[1] R v Cavkic, Athanasi and Clarke [2005] VSCA 182; (2005) 12 VR 136.

1. [2] The Agius' land-line phone rang out late in the evening on 28 May 2000. The next day there was a voice message from a male saying 'Pick up, pick up, pick up.'

[3] R v Stephenson [1976] VicRp 34; [1976] VR 376, 381.

[4] See and compare R v Theos [1996] 89 A Crim R 486, 492 (Tadgell J) and R v Dunmall [2008] VSCA 22, [81]-[93] (Ashley JA).

[5] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 611 [57].

[6] [2001] VSCA 209; (2001) 4 VR 79, 94 [27].

[7] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561-2.

[8] [2001] HCA 72; (2001) 208 CLR 593, 611.

[9] (1993) 70 A Crim R 272, 278.

[11] (1996) 89 A Crim R 489, 494-5.

[12] [1997] 3 SCR 320 [16], [39].

[13] [2000] 2 SCR 731.

[14] R v Chatzidinitriou [2000] VSCA 91; (2000) 1 VR 493; R v McNamara 1/12/1998 QCCA.

[15] Thomas v R [1960] HCA 2; (1960) 102 CLR 584; Dawson v R [1961] HCA 74; (1961) 106 CLR 1; Green v R [1971] HCA 55; (1971) 126 CLR 28; La Fontaine v R (1976) 136 CLR 62; R v Cavkic [2005] VSCA 182; (2005) 12 VR 136, 170[219].

[16] R v Lancefield [1999] VSCA 176.

[17] [1961] HCA 74; (1961) 106 CLR 1, 18.

[18] [1960] HCA 2; (1960 102 CLR 584.

[19] [1971] HCA 55; (1971) 126 CLR 28, 33 (Barwick CJ, and McTiernan and Owen JJ).

[20] (1976) 136 CLR 62, 84 (Stephen J).

[21] [2006] HCA 34; (2006) 227 CLR 373, 395.

[22] [2008] HCA Trans 406 (5 December 2008).

[23] [1913] HCA 70; (1913) 17 CLR 570, esp 585.

[24] [1920] HCA 26; (1920) 28 CLR 36, esp. 43.

[25] Counsel referred in particular to the figures published in the Crime and Justice Bulletin, Number 119, September 2008, 'Juror understanding of judicial instructions in Criminal Trials', and see Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373, 411 [131] (Kirby J).

[26] Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 (24 May 2007), [134] et seq, a civil case but equally applicable in crime on this point of principle.

[27] R v Reeves (1992) 29 NSWLR 109; R v Southammavong and Sihavong [2003] NSWCCA 312.

[28] Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, 626-7.

[29] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 584 -5.

[30] [2006] VSCA 263; (2006) 16 VR 26, 34 [44]-[69].

[36] (1993) 178 CLR 198, 210-11.

[37] [1990] HCA 56; (1990) 170 CLR 573, 584 -5.

[38] R v Stretton; R v Storey [1982] VicRp 21; [1982] VR 251, 255.

[39] R v Gorman [1987] 1 WLR 545, 550-1; R v Black [2007] VSCA 61; (2007) 15 VR 551, 554 [14].

[40] R v Kerr (No2) [1951] VicLawRp 31; [1951] VLR 239, 243.

[41] R v Symons [1981] VicRp 33; [1981] VR 297, 302, 308.

[42] Patton v Buchanan Borehole Carriers Pty Ltd [1993] HCA 23; (1993) 178 CLR 14, 18-19; R v Hodgson [1985] Tas 75, 84.

[43] See Reg v Hambery [1977] 1 QB 924, 929.

[44] In accordance with the principles essayed in R v Kotzmann [1999] 2 VR 112, 157 [114] (Batt JA).

[45] De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85 [67].

[46] [2005] VSCA 182; (2005) 12 VR 136, 144.

[47] [2005] VSCA 182 [91]-[102].

[49] [1994] HCA 63; (1994) 181 CLR 487, 493-4.

[50] Ibid 501-504 (Brennan J) and 524-525 (McHugh J).

[51] (1997) 191 C.L.R. 439, 468 (Kirby J); cf. MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 615 [26] (Gleeson CJ, Hayne and Callinan JJ).

[52] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 504-5 (Brennan J).

[53] Director of Public Prosecutions v England [1999] VSCA 95; (1999) 2 VR 258, 266 [27]; Bell v R [2003] WASCA 216.

[54] R v Von Einem (1985) 16 A Crim R 319 (King CJ).

[55] Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, 667 [34].

[56] [1997] 2 VR 88, 98.