FACTS
2 The deceased was shot and killed during the evening of 8 January 1988, outside a house at Lot 2, Villiers Road, Cecil Park, premises at which he had been living with his wife, Vikki Climpson, a sister of the appellant, until a date about six weeks before his death.
3 When police arrived at the Cecil Park premises shortly before 11pm, they found the deceased face down on the ground in a crouched position, beside his motor vehicle. He had been struck by three bullets. One bullet consistent with a .357 or .38 projectile passed through the left side of his chest. Another shot consistent with a .22 projectile passed through his left loin, and a third shot, also consistent with a .357 or .38 projectile, struck him in the back of the skull.
4 A fired .22 calibre cartridge case with the marking "H", was located near an aluminium shed a few metres from his body. Upon the Crown case it was the source of the .22 projectile that passed through the loin of the deceased. A spent .38 calibre bullet was found on the ground near the position of his head. Another .38 calibre bullet, the cause of the chest wound, was extracted from his body during a post mortem examination. The remaining .22 projectile was not found, despite a careful sweep of the area by army officers with metal detectors on 18 January.
5 Dr. Oettle came to the conclusion that the evidence suggested that the first shot had been fired from the passenger side of the car, that the body of the deceased had been moved artificially into the position in which it was found by police, and that he had been shot in the head after he had died from the earlier wounds. Dr. Malouf, however, was of the opinion that the first shot struck the deceased in his chest, causing him to fall, that the second shot struck him in the head, and that the other shot struck him in the loin.
6 When the Cecil park premises were searched, a .22 calibre Stirling rifle (Ex R) and a .22 calibre magazine, were found inside the house. Additionally, a .22 calibre Ruger pistol, in a pouch (Ex A), which was normally carried by the deceased, was found hidden in a washing basket in the main bedroom.
7 At the Westmead mortuary, a .22 calibre Bartram pistol (Ex U) containing four .22 calibre rounds, and two empty cartridge cases, was removed from the pocket of the shirt that the deceased had been wearing. A number of other firearms owned by him were later found by police at the Plough & Harrow, the stock feed, saddlery and riding school business where he had been working and living.
8 At the time of the shooting, the appellant, who was normally resident at Moree, was visiting his parents at Wallacia. His son, Adam Fowler, who had accompanied him to Sydney, gave evidence that the appellant went out during the storm and power failure that occurred during the evening of 8 January, events which it was agreed occurred between 8.15pm. and 9.30pm. The appellant returned, he said, some time after a Sherlock Holmes movie screened that night on television, had concluded. It was established that this movie was screened between 8.30pm. and 11.08pm.
9 Another witness, Debra Dickson gave evidence of seeing the appellant arrive at the Cecil Park premises where she kept some horses, some time after 9.30pm. This occurred as she was leaving. Beyond saying "Hi" to him, there was no conversation between them. The appellant, she agreed, made no attempt to conceal himself. She made no mention of seeing anyone else in his company.
10 Vicki Climpson, who was given a certificate under S 128 Evidence Act, said in chief that the deceased had moved out of their home about six weeks before his death, because of arguments about building a home on her parent's property. She added, however, that he had returned to the house nightly, and had stayed over on some nights, including the night before his murder, but he was not living there permanently. She had last seen him at the house alive at 10.30pm on 7 January, and had last spoken to him by telephone at about 7.00pm. on the night of his death.
11 Pursuant to the leave granted under S 38 of the Evidence Act, she was cross examined by the Crown Prosecutor as to whether the evidence she had given concerning the deceased staying over, and spending the night before his death, at her home, was untrue, in the light of the statements she had made to police and in her record of interview. In the course of this cross examination it became obvious that these prior statements were, to various extents, inconsistent with her evidence at the trial. She agreed, in the course of this cross examination, that she had asked Kevin Bell to lie to police about the movements of the deceased on the afternoon and evening of the shooting, and about the phone call said to have been made by the deceased at about 7.00pm.
12 When giving evidence in chief, she said that, on 7 January, the deceased had placed the .22 calibre pistol (Ex A) in the clothes basket in her bedroom because he wanted her and the children to be safe. This he said he had done, according to her, because Bradley Walsh was causing trouble, following an altercation with him when he had allegedly molested her daughter.
13 Pursuant to leave given under S 38, the Crown Prosecutor put to her that this was untrue, and that the weapon was placed in the basket after the deceased was shot. In the course of the cross examination that ensued, she acknowledged that she had not mentioned the placing of the pistol in the basket to police. Rather, she had said to them that, on 8 January, the deceased had told her "They can try all they like, they won't get me, I've got Percy with me". She had added in this statement, "I knew what he meant … (it) .. was that he had his revolvers with him. He used to carry an automatic .22 calibre pistol with him". She denied, however, that in this passage she had been referring to the weapon found in the clothes basket.
14 In chief, she identified the Bartram pistol found in the shirt pocket as his, and said that the deceased also kept a Browning pistol and another pistol in his maroon bag. Additionally, she said that he had been accustomed to carrying another pistol strapped to his leg, which he called "Percy". She said that he carried large sums of money in the sports bag. She was cross examined by the Crown concerning this evidence, and concerning the answers previously given as to the various weapons the deceased had owned, and in particular as to whether they were carried on his person or kept locked away. The obvious intent was to point out inconsistencies in her accounts and to place in issue her evidence that the deceased was carrying a pistol on his leg at the time of his death, and that he had two concealed weapons in his sports bag. It was the fact that no weapon was found strapped to the leg of the deceased when his body was examined, and his brother said that he did not have the practice of carrying a weapon this way.
15 The witness Anita Usope said, because she had been "stoned" she was unable to remember anything about the night of 8 February 1988, apart from being taken to the hospital and to the police station. This witness was similarly given a certificate under S 128 of the Evidence Act. Leave was sought by the Crown to cross examine her under S 38(1)(b) of the Act, upon the basis that she was not making a genuine attempt to give evidence, but that was refused.
16 She said she had no recollection of Vikki Climpson complaining to her about being mistreated by the deceased. She said that she had seen a handgun in a pouch, lying on top of washing in a clothes basket, a couple of days before the shooting. That weapon, she added, she had seen in that position on a few prior occasions. She recognised it, and the pistol found in the deceased's pocket, as his.
17 Kathleen Lancaster (nee Van-Derzyden) with whom the deceased had been having an affair, agreed, after cross examination by the Crown, pursuant to leave given under S 38(1)(c) of the Evidence Act, that their association had continued for nine years or so, and that she had been visited by him most evenings. She said that he had come to her home at about 7.30 pm and had left there about 10.30pm on the night that he was shot. She said that the excuse which the deceased had given to his wife for his evening absences, while he visited her, was that he had been going "to the dogs".
18 She said that shortly after his death she had discovered $17,000 in a toiletry bag that belonged to the deceased. It emerged from her cross examination, and from the evidence of Virginia Amore, that a brother of the deceased Robert Climpson, subsequently accused her of stealing this money from a safe kept at the premises of the Plough & Harrow, of which he, Robert Climpson was the owner and the deceased was the manager.
19 Robert Climpson said that, in 1987, the deceased had asked him if he could move a caravan onto the site of the Plough & Harrow because he and his wife were "blueing". He confirmed that the deceased was accustomed to carry on his person or behind the seat squab of his utility, the .22 Ruger pistol (Ex A), and that he had kept other weapons in a safe and gun cupboard at the Plough & Harrow.
20 He said that he and the deceased had counted the day's takings, amounting to $19,800 which were placed in the safe, during the afternoon on the day on which he was shot. He said that when the deceased left those premises later that day, he was carrying the Ruger pistol (Ex A) with him.
21 When he looked in the safe, after the shooting, he found that the $19,800 was missing. He said that when he confronted Kathleen Lancaster, with the allegation that she had taken the money, she replied that it was the deceased's money but that she would split it with him (a matter which she denied when it was put to her). He later estimated that approximately $300,000 had gone missing from the business. He was suspicious that she had taken the money but did not believe that the deceased had done so. He acknowledged, however, that he had made a contrary suggestion to the police in January 1990.
22 He recognised the Bartram revolver, which he thought was used for shooting rats, as having belonged to the deceased, but said that he had never seen him with a Browning pistol, nor with a pistol strapped to his leg. He had seen him with a red bag, but did not know if he used it to carry money. He was unaware of what the deceased had been doing in the evenings, or of his affair with Ms Lancaster.
23 The appellant's brother, Gregory Fowler, who was called in the defence case, said that the appellant came to his home early in the morning following the shooting, with his son. He appeared to be "his normal jocular self." When a telephone call came through with the news that the deceased had been killed, the appellant's reaction, he said, appeared to have been one of absolute shock. This witness said that, on the afternoon of 8 January, he had seen the deceased place a small firearm in his maroon sports bag. When he asked him about it the deceased said, "don't ask, don't get involved". He said that he had never seen any signs of injuries to Vikki Climpson during the period over which she had lived with the deceased.
24 Between six and twelve months earlier he said that he had seen bullet holes in one of the vehicles owned by the deceased. He did not, however, speak to him about those holes.
25 A friend of the deceased Jeffrey Williams who was also called in the defence case, similarly gave evidence of having seen bullet holes in a vehicle of the deceased. Williams advised the deceased to report it to police, but he said that he could take care of it himself. In 1985, the deceased had informed him that he was in fear for his life and asked if he could obtain a pistol or gun for him. He refused. Later the deceased said that he had joined a gun club and had obtained a small handgun.
26 The deceased's daughter Lila Climpson, who was similarly called in the defence case, said that she had not seen any violence between her parents. Her father, she said, was accustomed to carrying a pistol. He also kept a rifle in the house. She also gave evidence of her mother arguing physically with Bradley Walsh at a time when it was alleged that he had behaved inappropriately in the presence of some children.
27 When the appellant was interviewed by police on 21 January 1988, he said that he had not seen the deceased since the previous November or December. He had not discussed with his sister their separation, and she had never expressed any concerns to him about her own safety. He said that he had never had a disagreement or falling out with the deceased, and described their relationship as good.
28 He said to police, in this interview, that he had never owned a pistol but acknowledged that he had once owned a .22 calibre Lithgow rifle, and a .222 rifle which he had sold at the beginning of 1987.
29 He said that he had been to Vikki Climpson's house during the day of 8 January, but had left those premises at about 6pm to have dinner with his parents. He had returned to Cecil Park a little later that night, but had left when a woman named Debbie, said that Vikki was asleep. It was his account, in this interview, that he had arrived back at his parents' home shortly after 10.00pm.
30 Following this interview police searched his home at Moree, but found no firearms in those premises.
31 On 19 September 1990, police returned to Moree for the purpose of making a further search of the appellant's home. The appellant and Bradley Walsh were present.
32 The appellant waited in the lounge room while police searched that room. When he stood up and walked away, Detective Keen searched the chair on which he had been sitting. He found a shortened .357 calibre magnum Armi-Jager carbine (Ex Z) hidden under a cushion. The appellant, when questioned about this weapon, said that a truck driver had left it there two or three months earlier, saying that he would pick it upon his way back from Brisbane. He added that he had not seen or spoken to that person since.
33 When Walsh's bedroom was searched, a .22 calibre Stirling automatic rifle with a telescopic sight (Ex H) was found concealed between the mattress and bed base. Walsh informed police that he had purchased the weapon about 8 weeks earlier from someone at an hotel. When he was asked about the weapon, in the course of an interview that day, the appellant said that it belonged to Bradley Walsh, although he did not know where he had obtained it. At the trial he admitted that he now knew this to be incorrect.
34 On 12 October 1990, the appellant's home was searched again by police. On this occasion a small box containing a number of .38 and .357 calibre bullets was located inside a freezer. Unlike other items in the freezer, the box was free of frost. Police involved in the search, however, rejected the proposition put in cross examination, that it had been "planted" by them to assist the Crown case.
35 On 22 September 1993, the Moree premises which were no longer owned by the appellant, were searched yet again by police. On this occasion, police found a hole in the floor and carpet, and also the remains of a spent copper jacketed projectile (Ex KK) underneath a damaged floorboard in the dining room. This evidence was pressed upon the basis that it tended to negate any suggestion by the appellant (as was made in an intercepted telephone conversation with his wife) that the weapon found at Moree had been 'planted' by police, and upon the further basis that it was available to prove a lie, on the part of the appellant, as to the manner in which the .357 magnum found at Moree came to be there.
36 Ian Climpson, the son of the deceased, gave evidence that they had been living together in a caravan on the Plough & Harrow property for about five weeks before the killing. The deceased had informed him that he had moved out of his home because of constant arguments with his wife. However, he had never himself seen bruises on Vikki Climpson and she had not complained to him about being mistreated by the deceased. His father, he said, had spent the night of 7 January in the caravan (and not with his wife). On the night of the shooting he had last seen him at about 8pm.
37 He confirmed that the deceased had owned some rifles as well as the pistol that was found in the clothes basket. This weapon he said was normally carried by his father in a pouch but was also, on occasions, kept in a pull down section of the bench seat in the utility. He was unaware of the deceased owning any other pistols, and specifically said that he had not seen the Bartram pistol before.
38 The .22 calibre Stirling rifle found hidden under the mattress at the appellant's Moree home, on 19 September 1990, he said had been purchased by the deceased about two months before his death, and had been used by the deceased, by himself and by Bradley Walsh to shoot rabbits.
39 He said that the deceased had told him that there had been a dispute between Vikki Climpson and Bradley Walsh, but had made no mention of leaving his pistol with her for protection. He had been unaware of any relationship between his father and Ms Lancaster.
40 Michael Clarke said that the appellant often visited the property at which he worked from mid 1987, at Weemala, to go shooting with him. It was his recollection that the appellant had a .223 mini Ruger semi automatic rifle, and a .222 bolt action rifle. Around June 1989 he had also seen him with two .357 Magnum pistols. In about July 1989, the appellant had asked him if he could leave his weapons locked up on his property because his boys were starting to play with them. The appellant had also instructed him not to show them to anyone.
41 The two pistols, he said, remained on his property until February 1990 when he returned them to the appellant. One he identified as the pistol found in the lounge chair. In October 1990, he handed police a number of cartridges cases (Ex BB) that had been fired with this weapon. He also identified the box of ammunition that had been found in the freezer, as one that had been brought to his property by the appellant. The appellant, he said, had often visited his property with relatives, including Gus Harb, to go shooting.
42 The appellant's former wife, Noella Harb, gave evidence that she had lived with the appellant from 1985 to 1990 at Moree, where they operated the Disco Donuts business. During that period she said he had kept a number of rifles in the house. Although she said that the .22 Stirling with the telescopic sight found under the bed, was "very" similar to one owned by the appellant, it was conceded that she had previously informed police that she had never seen the appellant with such a weapon.
43 It was her evidence that, in 1986 or 1987, the appellant had purchased two pistols, one of which was the .357 Magnum found in the lounge chair, after driving to Newcastle or Singleton one night. She agreed that she had previously informed police that she did not know where the appellant had acquired this weapon.
44 She also gave evidence that three to four months before the shooting, Vikki Climpson rang their house one night. Following a conversation with the appellant, he told her that the deceased was mistreating his sister, drugging her tea and injecting her with drugs. She said that he had appeared to be quite distraught after this conversation.
45 Following the shooting she said that the appellant returned to Moree and removed the guns from the house, "just in case the police turn up". At the earlier trial she gave a somewhat different account, her evidence, it was conceded, then being that she thought that the appellant had said that he wanted the firearms out of the house, because he did not have a licence. Some of the weapons she said the appellant had placed in a car they kept in a storage shed away from the property. When police came to speak to the appellant she said that he had quietly instructed her not to "tell them about the shed".
46 An intercepted telephone conversation between the appellant and this witness on 24 September 1990, was placed into evidence. In it, the appellant remarked that the police had raided his house and were trying to pin the murder on him "because they've turned up some weapons in the house that I have never seen before in my life". When the conversation turned to the Magnum, and whether he had got rid of "those," the appellant cautioned his wife that "telephones have ears". Later in the conversation he suggested that the police had planted the pistol and rifle in his house.
47 In cross examination she agreed, after having been given a certificate under S 128 of the Evidence Act, that before leaving the appellant, she had falsified the books of their business, Disco Donuts, and had extracted money from it. She conceded that she had been arguing with him over her proper entitlement to a wage, and over her fair share of profits from the business. She denied, however, that she had been filled by bitterness towards him in July 1990, the time at which she left him, and the time at which she was interviewed by police. She denied inventing her evidence to ensure that the appellant did not have access to their children.
48 Ronald Doran, a former friend of the appellant, said that, in late 1986, the appellant had informed him that his sister Vikki was having a hard time with her husband and that he would have to do something about him. Doran asked if he would belt the man up? The appellant replied that something more serious was needed, and that he "should be done in". The appellant offered him $10,000 to accompany him to Sydney, for that purpose. Doran refused. The appellant, he said, brought the subject up again a little later, when he said that he was going to Sydney to "sort (his) brother in law out". Doran again refused to assist.
49 He agreed in cross examination that he had not mentioned the offer of money when giving evidence at the first trial. He explained that he had feared for his safety. He denied making the evidence up.
50 Bradley Walsh was called by the Crown. A certificate was given to this witness under S 128 of the Evidence Act, at the Crown's request, in anticipation of the possibility that he might give evidence incriminatory of himself in relation to a variety of offences including perjury, accessory after the fact to murder, conspiracy to pervert the course of justice, concealment of serious offences, indecent assault, and firearms offences. When asked about the matter, he claimed to have no recollection of the events at Moree, or of the events of which he had given evidence at the first trial, or even of having given evidence on that occasion.
51 Leave was sought and given to the Crown to cross examine him under S 38(1)(b)of the Evidence Act concerning that evidence. In the course of that cross examination, it was conceded that he had said at the first trial that, a week before the police search on 19 September 1990, he had seen a .22 calibre rifle under a wooden pallet in the backyard of the appellant's home in Moree; that the appellant had said that he did not have a shooter's licence, and that he had then hidden the weapon under his bed.
52 It was also conceded that he had given evidence of a "man from the pub" leaving a .357 Magnum handgun at the premises a few days before 19 September 1990, which had been accidentally discharged by him towards the floor, after which the appellant had taken it to his bedroom.
53 It was further conceded that Walsh had said that, prior to the police search, the appellant had been "running around" panicking, and had placed the handgun under the lounge chair, and that he (Walsh) had offered to cover the rifle with his own shooter's licence, and had later produced that licence to police. It was also conceded that he had said, at the first trial, that his assertion as to ownership of the rifle, to the police, had been an attempt to help the appellant.
54 During his cross examination by Dr Woods QC (as he then was), this witness attributed his memory problems to a series of open heart operations.
55 The appellant made an unsworn statement in which he denied having been responsible for the killing, and also denied having been told by his sister that the deceased had been ill treating her. He repeated the account given in his earlier police interview, to the effect that he had driven to his sister's home during the blackout that followed the storm, but had left when informed that she was asleep. It was his account that he arrived back at his parent's home at 10.30pm.
56 He said that when he returned to Moree he placed the rifles, that he had kept in his house, in the boot of his car because he did not hold a shooters' licence, and feared being charged for possession of illegal weapons if he was interviewed by police, or if his home was searched. He agreed in this statement that he had lied to police, when they had asked him whether he had any guns, but then gave the explanation mentioned.
57 He also said that some of the relatives of his former wife had brought two pistols and rifles to his house in Moree. The handgun shown to him by police, when they searched his home, he said was similar to one of those pistols. So far as he knew, however, those pistols and rifles had been returned to the relatives. He did not know who owned the Stirling rifle that was found by police underneath Bradley Walsh's bed. He also said that he knew nothing of the box of bullets found in the freezer.
58 He said that he had fallen out with Mr. Doran in late 1986 when he suspected him of having had an affair with his wife. He denied asking him to assist in harming the deceased or discussing any mistreatment of his sister. His relationship with the deceased, he said, was normal for brothers in law and one in which they "got on extremely well".
59 In a separate admission, made on the advice of his counsel, he acknowledged that the .22 Stirling rifle had never been owned by Bradley Walsh.
60 There was a good deal of ballistics evidence concerning the array of weapons, cartridge cases and projectiles, that found their way into the case. In summary, the evidence showed that: