R v Freer & Weekes [2004] QCA 97

Director of Public Prosecutions (Queensland) for the respondents

[1] JERRARD JA: Gavin John Freer and Bradley John Weekes were convicted by a jury in the Supreme Court in Townsville on 21 May 2003 of having murdered Dennis Keith Steele on or about 11 June 2002 in Ayr. They were each sentenced that day to life imprisonment and each appeals against his conviction.

[2] Mr Freer argued three grounds of appeal. These were that:

1. the appellant was deprived of a fair trial because of the prosecutor's inflammatory, emotive and highly prejudicial final address to the jury;

2. the learned trial judge erred in failing to discharge the jury after the prosecutor's emotive and highly prejudicial address to the jury;

3. the learned trial judge erred in failing to direct the jury about lies in the terms of Edwards v R (1993) 187 CLR 193.

[3] Particulars were provided in the grounds of appeal of the passages from the transcript of the Crown Prosecutor's final address upon which Mr Freer relied for ground 1, and particulars of references by the Crown Prosecutor to lies allegedly told by the appellant were supplied in the outline of submissions on behalf of Mr Freer. Particulars of why the learned judge was said to be in error in failing to direct the jury in terms of Edwards were given in the original grounds of appeal.

[4] In addition to those grounds of appeal Mr Davis of Counsel, appearing for Mr Freer, made what he described as "precautionary" submissions to the effect that exhibit 27, an exhibit tendered by Mr Freer's counsel during the trial (not Mr Davis), was properly admitted in Mr Freer's trial on his behalf. This ground was advanced because counsel for Mr Weekes was given leave on the hearing of his appeal to argue a ground of appeal that complained that that exhibit was properly the subject of a claim of legal professional privilege by Mr Weekes and should not have been admitted over that claim; and further that the document which was exhibit 27 was not admissible in the case of the accused Freer and should not have been admitted in the trial "against the appellant" (Mr Weekes). Apart from that ground, Mr Weekes argued on his appeal:

"(a) that the learned trial judge erred when he declined to discharge the jury after the learned Crown Prosecutor's closing address;

(b) that the appellant was deprived the opportunity to secure an acquittal because of the inflammatory nature of the closing address of the learned Crown Prosecutor."

Counsel for Mr Weekes, Mr Griffin SC, was also given leave to add a further ground that:

"The trial judge gave no proper direction to the jury as to the use they could put to alleged lies of the appellant Weekes." (sic).

[5] Counsel for each appellant conceded in the respective written outlines provided to the court that there was no basis on which either appellant could contend that he was entitled to an order of acquittal. Each appellant sought orders quashing his conviction and for a retrial.

[6] The two appellants had arrived in Ayr from Melbourne on the Saturday preceding Tuesday 11 June 2002. They were looking for cane cutting work. Mr Freer had known an Ayr resident, Clifford Hodgson, for some three and a half years, and he and Mr Weekes had been staying since that Saturday with Clifford Hodgson's parents, Clive and Sandra Hodgson, at their home at 59 McKenzie Street in Ayr. Clifford Hodgson was staying at that time at 42 Bowen Street Ayr with a Sherry Biddle and a Nathan Montgomery.

[7] On 11 June 2002 Sherry Biddle took Mr Freer and Mr Weekes to a local real estate agent to help them arrange their own accommodation. During that day Mr Weekes met Dennis Steele (the deceased) for the first time, when the two men were each at the local Centrelink premises. At some stage that day Mr Weekes went with Mr Steele to the latter's residence in a flat at 109 Edward Street, Ayr, and alcohol was consumed. Mr Freer was not with them at this stage.

[8] Later that same day, and probably in the evening after they had left the residence of Ms Biddle, Mr Weekes and Mr Freer visited Mr Steele's residence, perhaps on their way to the house at 59 McKenzie Street. In any event, all three men consumed some alcohol and each of Mr Freer and Mr Weekes may have sparred at some point with Mr Steele. Mr Weekes and Mr Freer did spar or wrestle with each other, apparently without malice, and made enough noise in doing that to disturb the two female occupants of the flat below Mr Steele. Some time after so disturbing those occupants, the three men visited that flat below as a group, and all three appeared to the two occupants to have been consuming liquor, and to be unharmed. Mr Steele told the two occupants that Mr Freer and Mr Weekes had been wrestling. He described them as his friends.

[9] The three men returned to the upstairs flat. At some stage that evening they went, apparently at the suggestion of Mr Steele, to the residence of a man Mr Steele felt was accusing him of impropriety with a female. That gentleman was not at his residence; the parties returned to the flat. Mr Steele had apparently wanted what he described to the other two as "back up".

[10] More noise was heard from the upstairs flat. Over the course of the next hour or so, after the three men had returned upstairs from the visit to the downstairs flat, Mr Steele was brutally assaulted. He suffered severe injuries. The forensic pathologist who examined Mr Steele's body described those as including:

* abrading and bruising to the skin on both sides of the face;

* abrading to the skin of the forehead on the right side, with a .8 cm abrasion at the hair line;

* having both eye lids swollen and slightly bruised;

* scattered abrasions to the limbs, including a 6 x 7 x.42 cm long abrasion to the right shoulder and other abrasions to the body, of or about 2 cm in length;

* a 14.7 cm long "hinge-type" fracture to the base of the skull, extending across the back of the head approximately from ear to ear;[1]

* bruising to the lungs and small amounts of blood stained fluid in the pleural cavities surrounding each lung;

* five fractures to right side ribs, and six fractures to ribs on the left side of the chest.

[11] In the pathologist's opinion, Mr Steele's death was caused by brain swelling from repeated head trauma.[2] He described Mr Steele as having suffered severe trauma to the head, rather like that in a mild car accident, which trauma in the pathologist's opinion had caused Mr Steele's very rapid demise after he had suffered multiple blows to the head. He thought those were in the order of 10-20.

[12] The pathologist's opinion was that "....the main injury to the head is caused by a compressive type injury, typical of that associated with either kicking or stomping on the head"[3], and he also expressed the opinion that the rib injuries were likely to have been caused by what he described as a compressive force[4], not necessarily kicking,[5] ("as opposed to stomping"). His opinion was that those rib injuries were unlikely to have occurred from Mr Steele having been thrown into or against a window[6], and he clearly said[7] that the fractures to Mr Steele's ribs did not cause his death. The Crown did not attempt to lead from him any opinion suggesting that either those rib fractures, or the use of the force upon Mr Steele which caused them, had in any way assisted in causing, or accelerated or contributed to, his death caused by brain swelling from head trauma.

[13] One of the occupants of the downstairs flat, a Ms Kim Stephenson, who went upstairs to complain at "banging" noises coming from Mr Steele's flat, saw both Mr Freer and Mr Weekes in that flat together during the period in which the beating was being administered to Mr Steele which ultimately caused his death. It was common ground that only those three men were there upstairs at that time. The two appellants were also seen outside and downstairs together by the other occupant of that downstairs flat, Ms Tracey Fry, a little later; and the two appellants were undoubtedly the two men seen outside and in the vicinity of the building Mr Steele lived in, when seen around 11.00 p.m. that night by occupants of other buildings. When seen upstairs in Mr Steele's flat by Ms Stephenson, Mr Freer spoke aggressively to her; when the two men were seen downstairs by Ms Fry, Mr Weekes spoke aggressively to her; and the two men seen and heard by neighbours in other premises were speaking aggressively to each other.

[14] Mr Freer and Mr Weekes left each other's company at some time that evening and after quitting Mr Steele's flat and the area surrounding it. Mr Weekes was next seen at the residence of Clive and Sandra Hodgson, which Clive Hodgson described his entering about 11.45 p.m. Mr Weekes went straight to his bed and the evidence established that he was in fact then carrying a CD player he had taken from Mr Steele's premises. Mr Weekes fell rapidly into a very heavy sleep.

[15] Mr Freer had meanwhile made his way to the residence at 42 Bowen Street where Clifford Hodgson was staying. Clifford Hodgson estimates Mr Freer arrived there around 11.00 p.m. Whether or not that estimate is accurate, Clifford Hodgson, Sherry Biddle, and Nathan Montgomery each described in evidence having heard Mr Freer admit to and describe his own participation in an assault upon a man, about which whose condition Mr Freer expressed concern, and whom he said he and Mr Weekes had assaulted. The Crown relied heavily in its case against Mr Feer on those statements made then, and on what the Crown contested was a subsequent and progressive "softening" of Mr Freer's description if his own role.

[16] Sandra Biddle and Clifford Hodgson, upon learning that Mr Weekes had gone to Clive Hodgson's residence, went there on foot. There they woke Mr Weekes, with difficulty, with the assistance of Clive Hodgson. They borrowed a vehicle from Clive Hodgson and returned to Bowen Street. Neither of the appellants could then describe to the residents of 42 Bowen Street where the premises were at which Mr Freer and Mr Weekes had assaulted their victim, about whom Mr Freer continued to express concern. Mr Freer claimed to have himself gone to the Ayr Police Station prior to arriving at 42 Bowen Street, and to have knocked but received no response. Accepting what he said, Sherry Biddle and Nathan Montgomery went and got petrol from a Home Hill service station, expecting that they would have to drive to the Townsville Police Station to get assistance. However, when they returned to 42 Bowen Street, Mr Freer was able to describe the location of Mr Steele's flat "as the place where John lived", (a description which made sense to Ms Biddle), and she then dialled 000 and police subsequently arrived at number 42.

[17] Mr Freer had telephoned his ex-partner and the mother of his children, resident in Western Australia where both Mr Freer and Mr Weekes had previously lived, and that call was made from number 42 before the police arrived. The Crown rely on what he said in that phone call then as an admission against his interests. At some stage before the police arrived, the two appellants left the flat at number 42 and spoke together across the road from that flat. It seems that that was where they were when the police came.

[18] The appellants each were described as volunteering some limited statements, about what had occurred to Mr Steele, in the police car travelling to Mr Steele's flat. The two uniformed constables who attended at number 42 arrived there shortly after 12.45a.m., and on going to Mr Steele's flat with the appellants they found him lying dead on the floor, with quite an amount of blood under his face, on the floor under his head. The appellants were subsequently each interviewed more than once in audio and tape recorded interviews at the Ayr Police Station. That process took a number of hours. The final upshot of all interviews was that each of the appellants ultimately asserted to the interviewing detectives that the other appellant had returned alone upstairs to the deceased's flat, after they had left it together whilst the deceased was alive but injured, and that the appellant who had not so returned upstairs had heard "thuds" or "thumps" coming from the flat and apparently occurring when the other (acting alone) had further assaulted the deceased.

The Specific Evidence Admissible against each Appellant

[19] To understand and evaluate each of the grounds of appeal, it is necessary to consider the specific case made against and for each appellant, the submissions by counsel, and the directions to the jury. The evidence specially admissible against Mr Freer included his statements to the witnesses Clifford Hodgson, Biddle and Montgomery. Clifford Hodgson swore that he heard a knock on his backdoor, he and Ms Biddle went down to answer it, he opened the door and saw Gavin Freer there. He described Mr Freer as being drunk, with some little "bit of blood" on his wrists and thumb. Mr Freer came inside and:

"....just basically repeating all the time that he'd smashed someone and he started to tell me the story how they had met this guy from CentreLink and they'd gone back to his house to - drink with him, and they went away from the house they were drinking to help this other guy out with a problem that he had, and when they went back to the place and they - they drank a little bit more and the guy called Gavin a poofter and - and he smashed him."[8]

[20] Mr Hodgson said that Mr Freer also said that:

"...after he had smashed the guy he told me the guy was lying on the ground. He said he checked to see whether he was still breathing or not. He said that he had bubbles coming out of his nose and that he placed him - he picked him up off the floor and placed him in a chair and he - he - he decided to leave straight after that, after he'd found out that the guy was still breathing so ----."

[21] Not long after that Clifford Hodgson went to his parent's home with Ms Biddle (telephone calls had established that Mr Weekes was there), and Clifford Hodgson said Mr Weekes "obviously had been drinking as well. His words were slurred. He didn't really know where he was"[9]; and that it "took a long time to wake him up".

[22] After Mr Weekes, Ms Biddle and Clifford Hodgson had returned to number 42 Bowen Street, and while Ms Biddle and Mr Montgomery were away getting petrol, Clifford Hodgson had some further conversations, predominantly with Gavin Freer. It appears, but is not entirely clear, that Mr Weekes may have been present and able to hear and comprehend those conversations. In any event their contents are admissible for and against Mr Freer. They included that:

"as he was walking out of the flat, after he had attacked the guy, he heard - he was coming - he reckons he heard Brad jumping on ---."[10]

Mr Hodgson was interrupted by the questioner and did not complete that sentence in his evidence but, in response to further questioning by the Crown, said that Mr Freer had said:

"Well, that he had pushed the guy up against the windowsill. He had punched him a few times. Like he said, the guy was on the ground, he picked him up onto this seat, checked his breathing. As he was leaving, he heard ----."

Again he was interrupted by the Crown and did not complete the sentence. Neither of the counsel for either accused invited him in cross-examination to complete or explain it. Mr Freer's counsel established in his cross-examination that Mr Hodgson recalled Mr Freer describing how the deceased had called Mr Freer a "poofter or something like that", following which Mr Freer had described having thrown Mr Steele against a window, heard his ribs crack, punched him, and then picked him from the floor on which he had fallen and placed him on a chair.[11] At that stage the deceased was described by Mr Freer as still breathing but with blood or bubbles coming from his nose.

[23] Counsel for Mr Weekes put to Clifford Hodgson that the first thing Mr Freer had told him was that:

to which the cross-examiner received only the answer "mmm". Counsel did not seek further specific agreement with his proposition implicating Mr Freer, but did establish that Mr Hodgson's opinion was that Mr Weeks was very intoxicated when woken up, and still heavily intoxicated at number 42. None of Clifford Hodgson's evidence of incriminating statements made by Mr Freer was admissible against Mr Weekes, he being shown to have been still intoxicated when they were made, and not being shown to have heard them.

[24] Ms Biddle recalled in evidence that Mr Freer had arrived between 11.15 p.m. and 11.20 p.m. at her residence, and she recalled Mr Freer saying words to the effect:

"Help me, help me, Sherry, I think we've killed someone."

"Oh, we were at this guy's flat and there was a fight and Brad kept jumping on his head and punching and hitting him. And I got him up on the couch, then he was breathing and there were bubbles coming out of his nose, I know he was alive and I took off"

She said he asked for the police to be called.[12]

[25] She said[13] that Mr Freer said to her:

"I punched him, Sherry, I hit him. I admit I hit him, but I promise I only hit him once.";

and that Mr Freer said that Mr Weekes "just started punching him" (the deceased) "and kneeing him in the head and jumping on his head."[14]

She described Mr Freer as being very concerned and worried, and recounted Mr Freer's description of his having attempted to raise the Ayr Police.

[26] She described a conversation that involved both Mr Freer and Mr Weekes, after the latter had been collected from the Hodgson residence. This was that Mr Freer had said to Mr Weekes:

"Oh, you shouldn't have hit him so much, you shouldn't have hit him so much,"

"Oh well, I get me dole tomorrow, I'm out of here."[15]

[27] She also described another response from Mr Weekes, either before or after the one just quoted, in which she said Mr Weekes responded with words to this effect:

"I jumped on the cunt's head 15 times, his brains are splattered on his face".

She described how Mr Weekes got up at some point (apparently at the time of that last statement) and:

"showed us how he pulled the man into his knee. And he kept saying "I just went like....like that",

demonstrating pulling his knee up and pulling the man's head into his knee. She did not think Mr Weekes seemed to be intoxicated at that time.

[28] She was challenged in cross-examination about her description of Mr Weekes having said he had jumped on the deceased's head 15 times, and it was put to her that that was not said.[16] However, she insisted that it was, and that the demonstration had been given as described. That evidence, of those responses by Mr Weekes to recrimination by Mr Freer, was admissible against Mr Weekes. Mr Feer's statements were also admissible both for and against Mr Freer, as was Ms Biddle's evidence that Mr Freer had some blood on his arms, "like a brush of blood. You know, like, I don't know, just like a whisk of blood",[17] which he washed off.

[29] The cross-examiners established that Ms Biddle could not recall Mr Freer saying he had seen Mr Weekes jumping on the deceased, rather that as Mr Freer left the premises he could hear Mr Weeks doing that. Counsel for Mr Weekes established that at the committal hearing Ms Biddle had hugged Mr Freer and wished him good luck; and the jurors were entitled to think that Ms Biddle's evidence rather favoured Mr Freer viz a viz Mr Weekes.

[30] Mr Montgomery was only 16 years old in June 2002, and agreed in cross-examination that when he went to bed that night at 7.30 p.m. he was "stoned". Clifford Hodgson had likewise admitted to Mr Freer's counsel in cross-examination that he had had "some marijuana" that night, but Ms Biddle had denied knowing that either male had consumed any marijuana that evening. She swore she had not had any intoxicants herself.

[31] Returning to Nathan Montgomery, his evidence was that after being woken up by the arrival of Mr Freer, he saw that the latter had spots of blood on his clothing, under his left arm, and on his forearm and left hand; and swore that he recalls Mr Freer saying:

"I've killed somebody. I know he's dead." (1 at AR 324)

"He started telling us a story. He met this fella - a fella at CentreLink and they invited him back for a drink at his house. He wanted to go bash some guy and one - one of the boys - actually offered to help him out. They went along and they didn't help him out. Then Gavin told us that `he called us - called us poofters; so I punched him off his chair. I picked him up, rammed him into the windowsill, broke his rib. And he got back up, hit me. So, I hit him a couple more times. And then Brad pushed - pushed me out of the way and started jumping on his head. And I walked away and I heard him jump on his head 15 times."[18]

He added that Mr Freer said the man was bleeding out of his nose and there was blood everywhere.

[32] Those statements were admissible against Mr Freer but not Mr Weekes. What was admissible both for and against Mr Weekes was the further evidence of Mr Montgomery, that after Mr Weekes had been brought to 42 Bowen Street, Mr Freer said in the presence of Mr Weekes:

"Yeah, he pushed me out of the way and started jumping on his head".

Nathan Montgomery's evidence was that Mr Weekes at that time had his head down, shaking his head from side to side as in "the expression no"; but Mr Montgomery also said that Mr Weekes:

"was saying, `we've killed him' and he actually had his head down, but he was laughing - he was laughing about it".

It was up to the jury to determine whether Mr Weekes was responding or not to what Mr Freer said; Nathan Montgomery said both men were quite drunk at the time of that interchange, if it was one.

[33] Finally, in this body of evidence largely admissible only or significantly against Mr Freer, there is the evidence of his ex-partner Shannon Bernhardt. This was that Mr Freer was the father of her children, she and he having lived together for some time in Western Australia, and she knew Mr Weekes. Mr Freer had telephoned her a week or two before he left Western Australia, and he told Ms Bernhardt that he expected to be gone for about two years. The question she was asked implied that the telephone call announcing his departure was itself made in June 2002; her important evidence was the content of the telephone call she received from Mr Freer and made from Ms Biddle's residence. It was apparently a very short conversation, in which Mr Freer told her that "he and Brad had just murdered this bloke"[19], to which Ms Bernhardt responded by asking Mr Freer to stop "hassling" her and to leave her alone. Her evidence was she thought the call was a joke.

Evidence of the Witnesses living below Mr Steele's Flat

[34] Ms Stephenson's evidence was that she was staying with her friend Tracey Fry, and had heard some banging and loud "drunken type" talking at about 9.00 p.m.[20] Somewhere around 9.15 p.m. she called out, requesting that the noise be kept down, and heard Mr Steele say "no worries Tracey" (confusing her with Ms Fry). Soon after that the three men visited from upstairs, with Mr Steele describing them as his "friends" who had been "play wrestling". The men stayed about 20 minutes, leaving somewhere around 9.45 p.m.

[35] She went to bed and heard some more banging noises at around 10.30 p.m. Just before 11.15 p.m. on her recollection she went upstairs, calling out, as she recalled "could you shut the fuck up". She was met at the door, it appears common ground, by Mr Weekes, and then she saw Mr Freer inside Mr Steele's flat. The latter was "worked up and sweaty" and said to her:

"Have you ever seen someone with bleeding from their nose?";

to which she replied no, and Mr Freer then said "well, do you want to?" She described him as[21] speaking "in a real smart tone". She said she could see the bottom half of a person sitting in a lounge chair, with the person's leg extended out. Again, it was common ground at the trial, and seems indisputable, that that was Mr Steele. Ms Stephenson left and heard very little noise thereafter. She did hear footsteps walking down the stairs, at a time she though was just before midnight. Her evidence put both appellants together in the flat at a time when, on Mr Freer's later description, Mr Steele had already received the assault which caused him to bleed from the nose and had been placed in a chair. Mr Freer obviously had not left at that stage.

[36] Ms Fry's evidence was that she left for her work at the Invicta Sugar Mill for the midnight shift between 11.00 p.m. and 11.10 p.m. that night, and that when she did she saw the two appellants, when she was outside her flat walking to her car. They were both standing downstairs and one of them, identified as Mr Weekes in his own later statement to the police, approached her and said "get the fuck out of here". She had noticed when she first saw the two men that they were standing in a way that made her believe that they were angry with each other; and after Mr Weekes spoke to her, she did not again see Mr Freer. She had the impression the two men had gone back upstairs.

[37] She recalled the visit by the three men to her flat as being at around 9.30 p.m. that night, and she thought Mr Steele was very drunk at that time. On her description she also thought Mr Weekes was quite drunk, and that Mr Freer was "not very drunk at all."[22]

[38] Some evidence of limited relevance was called from two other people, describing behaviour of two men whom the jury were entitled to find were the appellants. A Mrs Mary Arrate, who lived in what she described as a side street from the position of the deceased's flat, heard two men arguing together in that street at or about 11.00 p.m. that night. They spoke of leaving the next day after the crushing, and were apparently concerned about some object. One asked the other where "did you throw it" and she heard one say that "I'm fucking going back". She also heard a reference to a cigarette lighter. Mrs Arrate also recalled hearing one of the men say to the other "Come on, hit me. I'll even bend so you can hit me". She heard no response to that statement.

[39] A Mr Keith Peach, living in the same street, heard two men arguing at about the same time, with the argument appearing to come from the direction of outside the building containing the flat occupied by the deceased. He heard queries about "where is it.....what did you do with it"; and the next day found a wooden meat mallet in that general area. Forensic examination did not suggest that it had played any part in any assault on Mr Steele. Mr Weekes did tell the police, in an interview which began at 6.35 a.m. on 12 June 2002, and which was played before the jury[23], that when he and Mr Freer had gone with Mr Steele earlier that evening, to give him support with the man causing Mr Steele some trouble, that Mr Freer had taken a knife and that he, Mr Weekes, had "like - what was it - like a mallet thing, yeah". Undoubtedly, that statement, although admissible only against Mr Weekes, tended to identify the two men heard and seen by Mr Peach and Mrs Arrate as the two appellants.

[40] The evidence of the examination by a forensic scientist, Catherine Allen, of the clothing of the two appellants was particularly damaging to Mr Weekes. This was that blood consistent with the DNA of Mr Steele had been found on the tracksuit pants worn by Mr Weekes.[24] These were found on the inside of the front and back of the right leg of those pants (on the bottom third of that leg), and on the inside of the front (near the bottom) of the left leg. (AR 153). Likewise there were small stains on both shoes Mr Weekes had worn consistent with the DNA of Mr Steele. His right sock had Mr Steele's DNA on it.

[41] Mr Freer's counsel drove the point home, in cross-examination of Ms Allen, that the stains on Mr Weeke's tracksuit pants were numerous and too many for her to have been able to count them. Likewise there were numerous such stains on Mr Weekes' right shoe and six on his left shoe. These were all small and discrete stains. In her opinion the stains observed could not be explained by Mr Weekes, with blood on his hands, having simply touched his own trousers, shoes and socks. That cross-examination by Mr Freer's counsel significantly clarified the strength of the circumstantial case against Mr Weekes; since Mr Steele seemed only to have bled from his head and face, the results of the forensic examination strongly supported the inference Mr Weekes' shoes had had forceful contact with Mr Steele's head.

[42] Likewise, Mr Freer's counsel made the point for Mr Freer that the DNA of Mr Steele, found by Ms Allen in samples of blood staining on the right and left leg of the tracksuit pants worn by Mr Freer, were limited to two small stains on each leg. On the right leg these were situated a few centimetres below the right knee cap of those trousers and on the left leg were near the bottom of the pants. All stains were light, diffuse ones about a half centimetre in breadth.[25] Ms Allen agreed that those stains on those pants could have been caused by Mr Freer having pulled off the pants when his hand had some of the deceased's blood on it.[26] No visible blood stains were found on either Mr Freer's shoes or socks and they were not subject to any further examination. No human blood was found on the meat tenderiser located by Mr Peach.

What the Appellants said to the uniformed Police

[43] Police Constables Rickerby and Carleton had arrived at 42 Bowen Street, collected the two appellants and taken them to Mr Steele's unit at 109 Edward Street. In the police car Mr Freer said, according to the unchallenged evidence of Constable Rickerby, that "I hit him really hard" and "just with my fist", plainly referring to Mr Steele. Constable Rickerby gave evidence, challenged in cross-examination, that Mr Weekes had said "I think I broke his ribs". That latter evidence did not appear in either Officer Carleton's statement or his evidence.

[44] There was no challenge to what the interviewing detectives elicited from each appellant, since those accounts were tape recorded. Mr Freer's first interview began at 3.20 a.m. and his second at 4.55 a.m. on 12 June 2002. The transcripts of those interviews were exhibits 15A and 15B. In those, Mr Freer described himself as having consumed three "long necks" of VB, and three glasses of sherry. He described how he and Mr Weekes were on their way home when they came to Mr Steele's premises, Mr Weekes having met Mr Steele previously at Centrelink, and how they had gone up to Mr Steele's flat and drunk sherry. Mr Weekes had left at one stage to get another flagon of sherry, and at some stage Mr Weekes and Mr Steele had a "spar" or "slap around". Then Mr Weekes and Mr Freer had a "slap around" (apparently boxing with open hands). He described having walked to the house of the man who was causing Mr Steele trouble, how they had returned and spoken to "the girls", and how when they had returned upstairs Mr Steele had called Mr Freer a poofter.

[45] Mr Freer said that he "had a bit of a slap around"[27] with the deceased, which he described as giving the deceased a punch in the face. He said the deceased had been bleeding from the nose and Mr Freer had placed him on a chair, inquiring whether the deceased was all right. He at first said he could not recall what then occurred, but could recall Mr Weekes getting "stuck into" the deceased, and Mr Freer stood between them, telling Mr Weekes to "leave him alone."[28] When Mr Weekes was "getting stuck into him" the deceased was back on the floor. Mr Freer persuaded Mr Weekes that they should both leave and they did, and then Mr Freer remembered that he had left his hat upstairs and went back by himself and got it. He saw Mr Steele still lying in the same spot, still bleeding and still "bubbling out of his nose."[29] Questioned further, Mr Freer described how when Mr Steele had "started saying stuff to me", Mr Freer had "got stuck into him and pushed him into the windowsill", placed him in a chair, established he was all right, and then "sort of went for a bit of toilet break then."[30] Hearing a commotion "out there", he came back into the room to discover that Mr Steele had "went back down". He had heard "yelling" and a "scuffle" while on the toilet break.[31]

[46] He described having himself punched Mr Steele on the nose once, and pushed him into the windowsill, but conceded that he was the cause of Mr Steele's rib injuries. He insisted that he had not actually seen Mr Weekes striking Mr Steele at all, but had heard "crash and banging" whilst in the toilet.[32]

[47] His account, as it developed, included near its end a description of how after the two men had left the premises together, and after Mr Freer had returned downstairs from collecting his hat, Mr Weekes had gone back upstairs and into Mr Steele's flat by himself. Mr Freer then heard "quite a few thuds",[33] about five,[34] "like someone's stomped on a floor board".[35]

[48] The overwhelming picture emerging from the evidence of Mr Freer's statements, to police, his statements to non-police witnesses, and the evidence of other witnesses, was that Mr Freer and Mr Weekes were together at all relevant times, had consumed alcohol that evening, possibly a good deal, and that physical and verbal aggression characterised their interactions that night with each other and with Mr Steele. This picture also emerged from Mr Freer's police interviews; save that he contended that Mr Weekes had twice attacked Mr Steele in his absence, first when he was in the flat toilet and again later, while Mr Freer was outside having recovered his hat. His answers when interviewed developed that theme, of independent assault by Mr Weekes. There were obvious inconsistencies in the accounts recalled by the witnesses Hodgson, Biddle, and Montgomery, and the account given to detectives. Hodgson recalled an explanation that Mr Freer had put Mr Steele on a chair and was leaving when Mr Weekes attacked Mr Steele; Montgomery that Mr Freer was pushed out of the way by Mr Weekes, who then attacked Mr Steele; the police were told both that Mr Steele had gone to the toilet and Mr Weekes then attacked Mr Steele, and that Mr Weekes had returned alone to the flat where an apparent further assault occurred. These apparently inconsistent accounts of the circumstances of independent assaults by Mr Weekes weakened Mr Freer's assertion that any independent assault occurred; they did not establish positively that Mr Steele's death was caused by conduct for which Mr Freer was criminally responsible.

[49] Mr Weekes described having met Mr Steele at the Ayr CentreLink premises on the morning of 11 June 2002, having borrowed a cigarette, returned to Mr Steele's flat to have a few drinks, and then later returned there with Mr Freer that night. On Mr Weekes' description Mr Steele was "pretty rowdy", and Mr Steele and Mr Freer had "punch on" (apparently some open handed sparing).[36] Mr Weekes described how he went and got a bottle of sherry from a bottle shop and returned to find Mr Freer and Mr Steele arguing. He saw Mr Freer push Mr Steele into a window, and then Mr Weekes gave Mr Steele "a hit on the head" because Mr Steele had "called us a poofter."[37]

[50] He at first admitted kicking Mr Steele, then withdrew the admission; and said he had punched Mr Steele once or twice. He denied having actually seen Mr Freer physically punching Mr Steele, but recalled seeing Mr Freer push Mr Steele and Mr Steele fall to the floor. Mr Weekes then left.

[51] In further questioning he recalled that he had punched Mr Steele when Mr Freer pushed him, recollected how when outside the unit Mr Freer had returned to get his hat while Mr Weekes "sort of kept on walking (home)",[38] and how before that Mr Freer and Mr Weekes had had "a little blue, playing around"; and he was quite clear that Mr Steele was on the ground bleeding when he left the premises.[39]

[52] He recalled that he had not hit the deceased "very hard",[40] and that he and Mr Steele had had "a little scuffle" in which they were just "having a spar" with "slaps and that",[41] following which they shook hands and sat back down. It was then that he went to get some further sherry.

[53] A second interview was conducted with him at 6.30 a.m. on 12 June 2000, which included a lengthier account of how they had gone to another man's home after Mr Weekes had returned with that sherry, and how Mr Steele had wanted to fight that other man, who was not home. This was when Mr Steele apparently needed "backup"; and on this occasion Mr Weekes could recall how when he and Mr Freer had a "little, like a spar", a "girl" had come up from downstairs and told them to be quiet.[42]

[54] In the second interview he described Mr Freer pushing the deceased into a window and hurting his ribs, Mr Steele falling to the ground, and Mr Freer then giving Mr Steele "either a kick or a knee", at which time Mr Weekes had "laid a punch or two into" Mr Steele. This had occurred because Mr Steele called either one or other man "a poofter or some shit like that."[43] He also described in that second interview how Mr Freer had returned upstairs to get his hat after the two men had left, and how Mr Weekes had then heard some noises upstairs and that while "I didn't take nothing of it", he had walked back upstairs to see the deceased lying on the ground and bleeding "pretty hard."[44] He described the noises he had heard as being like "five thuds"[45], which occurred when Mr Freer had been upstairs by himself for about three minutes collecting his hat.

[55] Mr Weekes also described in this interview an argument the two men had had, apparently after leaving the premises at 42 Bowen Street and when outside before the police arrived, in which Mr Freer had threatened to kill Mr Weekes because "you're going to dob me in."[46] Eventually the two men shook hands and, on Mr Weekes' account Mr Freer was invited to kill Mr Weekes if he wanted to. This conversation, admitted against Mr Weekes, made Mr Freer appear very much the aggressor, and the account given by Mr Weeks generally blames Mr Freer for having independently assaulted Mr Steele and caused his death.

[56] That was the Crown case made against each appellant. Against Mr Weeks its force lay in the forensic evidence implicating him in using his feet to strike Mr Steele's head, which acts the jury were entitled to conclude had substantially contributed to Mr Steele's death. Apart from that, there was the asserted confession and demonstration recalled by Sherry Biddle. That Crown case entitled the jury to convict him as principal offender, whose assault with his feet to Mr Steele's head was accompanied by an intention to cause Mr Steele at least grievous bodily harm. It did not depend upon Mr Weekes being shown to be criminally responsible for acts committed by Mr Freer.

[57] Against Mr Freer, the Crown case was considerably weaker. His acknowledgement of having caused the rib injuries was an admission of having done grievous bodily harm, but without any description of the probable circumstances, since the unchallenged medical opinion was that it was unlikely this was due to the only proffered cause, namely throwing against a window. Accordingly, Mr Freer had given no account of how that grievous bodily harm occurred at all but even so, and even if that was done with intent to cause that harm (or worse), those rib injuries were not shown to have contributed at all to Mr Steele's death. The Crown thus could not avoid the necessity of establishing to the jury that Mr Freer was criminally responsible for death contributing kicks administered by Mr Weeks, there being insufficient evidence of acts done by Mr Freer from which the relevant intent could be inferred and which could be concluded to have significantly or substantially contributed to or caused death.

[58] The case against Mr Freer as an offender whose own conduct significantly contributed to Mr Steele's death was arguably strengthened by his counsel's insistence at trial in having a document, exhibit 27, admitted in his case. Exhibit 27 was a hand written statement by Mr Weekes[47] addressed "To The Court Of Aye" (sic), no doubt intended to be addressed to the court at Ayr. Mr Freer called evidence in his case from a Mr Torkington, a solicitor from the firm acting for Mr Weekes in late August 2002. On 28 August, Mr Torkington had attended the Ayr Magistrates Court to appear on Mr Weekes' behalf at a call-over, and Mr Weekes handed exhibit 27 to Mr Torkington. Mr Torkington produced exhibit 27 to the court and it was read to the jury.

[59] Things occurred in that fashion because the learned trial judge had earlier conducted a voir dire to determine a claim of legal professional privilege in respect of exhibit 27, which Mr Torkington produced before the jury in response to a subpoena. The learned judge accepted evidence from Mr Freer on that voir dire that he had asked Mr Weekes, in a conversation held in the Townsville Prison, to provide Mr Freer with a statement "of some sort saying the truth", Mr Weekes having already allegedly told Mr Freer that "I can't let you go down for something you haven't done."[48] Mr Freer's evidence was that prior to their going to the Ayr Courthouse, he had asked Mr Weekes if he had "that statement for me"[49], and had been told "yes", and that at the Courthouse Mr Freer told his own solicitor, a Mr Figg, that "Brad has a letter for you."

[60] It appears that Mr Figg caused the documents to be handed by Mr Weekes to Mr Torkington, Mr Figg considering that more appropriate; and Mr Torkington later declined to provide it to Mr Figg or any other legal representative for Mr Freer. This refusal actually led Mr Freer, according to the evidence given before the learned judge on the voir dire, to request the provision of another statement, and this one was eventually written by Mr Freer and signed by Mr Weekes. That all occurred in the prison too. That second document was exhibited before the judge on the voir dire[50] but was not placed before the jury.

[61] Mr Weekes agreed on the voir dire that there was no pressure placed on him to write exhibit 27, and that he had had a conversation with Mr Freer about it, and had told him he had written a letter for his benefit.[51] He agreed he addressed "the letter" to the court, and agreed that he expected that his solicitor would give exhibit 27 to "the court" for Mr Freer.

[62] The learned trial judge held that on the evidence which he accepted, exhibit 27 was not brought into existence having as its dominant purpose the seeking of legal advice or as a communication between Mr Weekes and his solicitor in connection with those legal proceedings.[52] The learned judge thought it significant that a second "letter" was admittedly signed by Mr Weekes for Mr Freer's apparent benefit, and ruled that if exhibit 27 was produced in response to a subpoena and a claim for privilege made in relation to it, no such claim was maintainable. Accordingly, Mr Freer caused its production without objection before the jury.

"I herby writing a new and true statment on the night of the offence we were drinking together all arguing I went up to the bottle shop for Dennis and got some port and myself a beer I returned to Dennis's place with the alcohol. And we all stared to fight and arguing what happened was Gavin pushed Dennis into the window and hit him I reashed over the table and hit him also he fell to the ground bleeding Gavin lent down to pick him up in my last statment I said Gavin could have kneed him I'm still not shaw he got put on his chair and we left while we were downstairs Gavin said to me I'm going back upstairs I wated downstairs and one of the girls was going to work I said to her quick fucking get out of here I was scared Gavin was up there about two minutes I think he grabed his hat I said to him when he come back downstairs I going up I went upstairs and Dennis said to me you are a poofter so I walked to him and he kicked me in the groin in took a while to sink in what he had done I hit him in the head and he fell down and then I kicked him about two or three times in the head and walked away when I was leaving I grabbed his CD player that he told me earlyer in night that I could have it so I took it. I walked home with it and then Cliff Hodgson came and picked me up from his mums house and took me to his house and then his girlfriend called the police and they came and we took them to the crime scene and that's the true statment and some bits out of my old one which I lied because I was intoxicated at the time and scared so I felt bad about lieing at wrote it as it happened.

I truelly sorry that it did happened but we were drinking at the time and I was confused when he kicked me and am truely sorry.

[64] What is curious about the description is that it asserts that Mr Steele was capable of both speech and aggressive action after the time at which Mr Freer had recovered his hat. The accounts both appellants had given to the interviewing detectives had consistently described Mr Steele lying on the floor, bleeding, and apparently incapable of either speech or movement at that time. This was the account Mr Freer gave, at AR 674; and which Mr Weekes gave, at AR 733. Mr Freer had claimed to have spoken to Mr Steele when getting his hat and asked if he was "all right" and Mr Freer said that "he didn't respond and grabbed my hat and left"[53]. Mr Weekes said, when interviewed, that Mr Steele at that same stage was "on the ground bleeding pretty hard."[54] The jury were therefore entitled to conclude that it was highly improbable that Mr Steele could have acted and spoken as described in exhibit 27, after the time when that hat was retrieved.

[65] What exhibit 27 did introduce into the case against Mr Freer was admissible evidence of the fact that Mr Weekes had previously made a statement (in his interview with detectives) in which he had accused Mr Freer of either kicking or kneeing Mr Steele. The fact that that accusation had been made earlier was described in exhibit 27 and the qualified accusation in the exhibit itself provided the jury with a description of conduct capable of explaining the fractured ribs Mr Freer admitted fracturing. The evidence did not establish when that conduct, never admitted or described by Mr Freer, actually happened.

[66] Exhibit 27, and the evidence of Mr Torkington, was the only evidence called in Mr Freer's case. The only evidence called in Mr Weekes' defence was that of a forensic chemist, Murray Nystrom. Mr Nystrom is a Director of a company Australian Forensics Pty Ltd, and from 1976-1988 had worked in the Queensland Police Service. He had considerable training and exposure to the examination of blood splatter patterns while in the Queensland Police Service, and had trained crime scene examiners on that in Queensland. He had examined the statements of the various Crown witnesses and photographs produced by the prosecution, and the essence of his evidence was that if Mr Weekes had kicked Mr Steele's head up to 15 times, he would have expected to have found blood on the soles of the shoes Mr Weekes was wearing. None was reported to have been found.

[67] Mr Freer's counsel established in cross-examination of Mr Nystrom that Ms Allen had performed only a visual test of those shoe soles, judging from her statements; and also established that the opening of evidence of Mr Nystrom, given by Mr Weekes' counsel, contained the apparent concession that Mr Weekes had kicked the deceased, and that what appeared to be in dispute was the intention with which the kicks were administered and the number of kicks.[55] The Crown did not cross-examine Mr Nystrom.

[68] Counsel for Mr Weekes referred to exhibit 27 in his submissions to the jury, in these terms:

"Now, you've got the letter that my client wrote where he admits kicking him twice."[56]

He submitted further that the jury could not reject "my client's version that he kicked him once or twice - two or three times, sorry? and if - if you're at the point where you say ok we accept that it was two or three, then where - where can you infer from that the intention to kill or do grievous bodily harm?"[57]

[69] It is clear from those submissions that Mr Weekes' counsel used exhibit 27 as an admission by Mr Weekes, in the course of the argument made to the jury on his client's behalf, and argued that its contents tended to negate an inference of murder. Counsel referred to "the kicking which my client admits to doing"[58], and submitted that "What you would accept is that there's two to three kicks, and if that's the case then certainly there is no case of murder against my client."[59] He did not suggest his client could be acquitted of manslaughter, and inferentially sought that verdict. Exhibit 27 was really central to that address.

[70] Mr Freer's counsel asked for an acquittal for his client, and his lengthier submissions essentially argued that that Crown had proved Mr Weekes caused Mr Steele's death, but not that Mr Freer had contributed to it. He particularly pointed to the fact that Mr Weekes did remove the CD player from the premises, and the absence of evidence that Mr Freer had known this had happened. Counsel submitted that the jury could conclude that Mr Weekes did not have the CD player with him when he spoke aggressively to Ms Fry, and accordingly the jury could conclude he had returned back upstairs, killed Mr Steele, and stolen the CD player. That was the essence of the submission, which included that "his own counsel, in his address,.....they admit that he kicked him. Right?"[60], and the submission that "and the kicker had blood splatters on them (sic), too numerous to count, and he confessed to his lawyer."[61]

[71] During the course of the address on Mr Freer's behalf, his counsel made reference to Nathan Montgomery as a "16 year old pot head", but then corrected himself to observe that "I shouldn't say pot head, he said he was stoned and we all know what the vernacular of stoned means."[62] That was the only possibly colourful statement made in a lengthy and forceful address, which carefully dissected the evidence to which counsel wished to refer.

[72] The Crown submission about Mr Weekes was very short. It was that:

"I'm not all that concerned about Mr Weekes. Mr Weekes has gone. Mr Weekes had to go, because Mr Weekes, ladies and gentlemen, had the blood spots. He had to go and moreover, you could be confident that it was Mr Weekes who did some kicking because his own barrister tells you that he had instructions from Mr Weekes that he did do the kicking."[63]

That submission, that Mr Weekes' counsel had told the jury of instructions he had from Mr Weekes, echoed what had been submitted by counsel for Mr Freer, but seemed to overstate the position. This was that counsel for Mr Weekes had conceded some kicking, rather than describing his instructions. There is no complaint on appeal about that misdescription; this observation is made only because counsel for Mr Weeks did complain in the jury's absence that he had no recall of having told the jury he possessed instructions his client had "done the kicking."[64] Although nothing turns on this misdescription of what had occurred, counsel is entitled to have that point corrected.

[73] The vast bulk of the Crown address focused on Mr Freer, as the Crown Prosecutor told the jury. The prosecution said:

"My submissions to you, ladies and gentlemen, are primarily designed - going to be designed - to persuade you, or to attempt to persuade you that it is the accused Freer who's also guilty."

* when speaking with the police Mr Freer had had to "duck and weave, tell lies", and minimise his involvement;[65]

* Mr Freer had made an unguarded phone call to the mother of his children, with whom Feer felt comfortable and in whom he chose to confide what the Crown contended was the truth;

* Clifford Hodgson, Sherry Biddle, and Nathan Montgomery were also people with whom Freer felt comfortable, and to whom he had largely told the truth;

* Mr Freer must have been present and observed that Mr Weekes had kept "jumping on" Mr Steele's head, because he was able to describe that occurring;

* Mr Freer had become concerned after Mr Steele's death about protecting himself from a conviction for murder, (it being open to the jury to find that Mr Freer was present when all the violence was inflicted);

* Mr Freer was more intelligent than Mr Weekes, as demonstrated by Mr Freer's descriptions which (dishonestly) contended he was not present when all of the violence was being inflicted, compared with Mr Weekes' less guarded statements;

* What Mr Freer described himself doing could not have caused the rib injuries he admitted causing;

* the contents of the exhibit 27 contradicted Mr Freer's own description of how Mr Steele was bleeding and immobile when Mr Freer recovered his hat;

* it was unlikely that Mr Freer had intervened to prevent Mr Weekes assaulting Mr Steele, as he claimed, because Mr Steele in fact died from injuries received;

* the jury should reject the proposition that Mr Weekes had returned alone to inflict the more serious injuries to the deceased;

* Mr Weekes, realising that the forensic evidence would convict him, was prepared to exculpate Mr Freer; but the jury should reject the proposition exhibit 27 was an accurate account;

* the jury should find the two appellants had each responded in an egotistic way to being called "poofters", and their alcohol consumption had aggravated their reaction, which was jointly to inflict a terrible beating upon the deceased; resulting in his death, for which each was therefore criminally responsible.

[74] Each of those propositions is contained in the Crown address. The appellants, principally Mr Freer who was the subject of the submissions, complain about the way the Crown Prosecutor put the argument. Before considering that ground, it is convenient to deal first with the arguments on appeal about exhibit 27.

[75] The Crown had referred to exhibit 27 in its submissions to the jury, as a confession written by Mr Weekes[66], submitting its contents could not be true. The learned trial judge directed the jury, with respect to Mr Weekes, that they should consider whether the Crown had excluded beyond reasonable doubt a possible defence of self defence derived from its contents.[67] The learned judge thus inferentially treated exhibited 27 as admitted against Mr Weekes, as had both his counsel and counsel for the Crown. Those directions by His Honour were consistent with the remark he made[68] in the absence of the jury that exhibit 27 "becomes evidence against the accused Weekes as well", in response to submissions, which included one from counsel for Mr Weekes that a defence of provocation, which should be put to the jury, had been raised in exhibit 27. Counsel submitted that that defence was only raised in that document, but the learned judge observed in argument, and directed the jury, that a complaint about being called a "poofter", and an explanation that that caused whatever assault Mr Weekes committed, had been given in statements made by Mr Weekes (elsewhere than in exhibit 27).

[76] It was submitted on appeal by Mr Griffin SC that the jury should have been directed that its members could not use the statements in exhibit 27 in the case against Mr Weekes. It was contended those statements could only be against interest if produced by the prosecuting authority[69], and were only properly regarded as confessional statements if put in by the Crown.[70] No authority was cited for the submission, which would mean that an innocent person jointly charged with murder, (or any offence), who obtained a tape recorded out of court confession by her or his co-accused (say in a conversation with a third party) to committing the offence single handedly or without any assistance from the innocent person accused, could not put that out of court statement before the jury. The submission lacks both persuasive force and authority. A statement against interest has that character, when made by a party, irrespective the object or interest in the proceedings of any other party who has evidence of such a statement being made.

[77] The complaint that exhibit 27 was used against Mr Weekes ignores the beneficial use actually made of it by his counsel in the closing stages of the trial. Had the jurors heard the evidence given on the voir dire, they would have been entitled as a matter of common sense to regard exhibit 27 as being little better than a self serving statement made by Mr Freer, dressed up as a written confession by Mr Weekes. They were entitled to accept the submission by the Crown that its contents were at variance with the description that Mr Freer (and Mr Weekes too for that matter) had given about Mr Steele at the time when Mr Freer recovered his hat. They plainly rejected that part of exhibit 27 in which Mr Weekes attempted to exculpate Mr Freer. There is therefore no merit in the complaint about exhibit 27 made in the appeal by Mr Weekes, since the very passages towards the end of the document which exculpated Mr Freer, and which the jury must of necessity have rejected, were those which inculpated Mr Weekes.

[78] The fact that the particularly incriminatory statements made in exhibit 27 by Mr Weekes were very likely inaccurate did not make them inadmissible against Mr Weeks. In R v K; ex parte A-G (Qld) [2002] QCA 260, this court heard an appeal in which two persons had stood trial together on charges of torturing, doing grievous bodily harm to, and having assaulted and caused bodily harm to, their infant son. The male accused was acquitted of all charges and the female accused acquitted of torture, but convicted on all other counts. A confession, of being solely responsible for the child's injuries, had been made by the male accused, which in its details was not borne out by the injuries themselves, or the mechanics of their likely cause, and the judgment of this court records that neither the police nor the prosecution, nor even the male accused's own legal advisors, were prepared to accept the truth of what that accused had told them about his participation in those acts.[71]

[79] The judgment of McPherson JA, with whom Atkinson J agreed, records that "Having those admissions of guilt, which were admissible only against him, the Crown decided to prosecute him, and he was indicted jointly with (the female accused)."[72] That judgment also records that:

There were reasons for doubting the truth of those admissions; but, once he gave them, it could scarcely have been wrong to charge him with committing the offence to which he confessed."[73]

[80] Applying that reasoning, those statements by Weekes in exhibit 27 were admissible against him, even if very unlikely to be true. That being so, and since they were actually applied to his forensic benefit when treated as confessional statements, that part of his appeal which complains of the admission of those statements in his case must be dismissed. That makes it unnecessary to rule upon the complaint made on his behalf that exhibit 27 was not admissible at Mr Freer's instigation in the latter's case; but I make the following observations.

[81] The trial judge had admitted the out of court written statement by Mr Weekes in Mr Freer's case because he considered he was obliged to do so by the judgments of this court in R v K (supra); R v Martin, Klinge, and Sambo [2002] QCA 443 ; and R v Zullo [1993] Qd R 571.[74] In the first of those cases to be decided, R v Zullo, that appellant had twice been tried (and convicted) of killing one Gilligan on 2 May 1991. On the second trial he was convicted of manslaughter. The relevant incident had occurred at about 3.00 a.m. at Orchid Avenue, Surfers Paradise, with a substantial number of people in the vicinity, some of whom had been engaged in a fight or fights shortly before a stabbing with a knife occurred. That stabbing caused Gilligan's death. Two people, occupants of a taxi in the vicinity, claimed to have seen the stabbing and both said the assailant was a man in a red shirt or one of similar colour. The Crown case was that Mr Zullo was that person, and he was not otherwise identified. There was some evidence from two police officers that 11 days later they spoke with him and the course of their conversation he made statements tending to incriminate himself.

[82] The critical point which emerged from the evidence of the two occupants of the taxi was the colour of the shirt of the person who wielded the knife, neither occupant being able to identify Mr Zullo as the killer, but there being evidence that Mr Zullo had a shirt on of a reddish colour, and that he was in the vicinity when Mr Gilligan died. There was no suggestion that any other person wearing a red shirt was involved in the fight which preceded the killing.[75]

[83] An under-cover police officer gave evidence, led by the Crown on Mr Zullo's second trial, that another person who was present at the scene, a Mr Beard, had confessed to that undercover officer that he killed Mr Gilligan. There was evidence that Mr Beard used to carry a knife with him, and Mr Beard was one of the group involved in the melee which culminated in the stabbing of Mr Gilligan. There was evidence before the jury on that second trial that when interviewed by the police officers to whom Mr Zullo had made apparently incriminating statements, Mr Beard had asserted that Mr Zullo was the killer; when asked about the confession at the second trial, (at which he was called as a witness, as recorded in the judgment in R v Zullo), Mr Beard claimed privilege on the ground that answer might tend to incriminate him.

[84] In a joint judgment, this court held that Mr Beard's confession was evidence which the jury had to consider when coming to their ultimate conclusion on the guilt or innocence of Mr Zullo. This court suggested, obiter, that that out of court confession by Mr Beard was admissible at the instance of the defence; and it was to be considered by the jury for what they thought it was worth.[76] I respectfully observe that the fact that Mr Beard had made a confession to the murder was a matter relevant to the accuracy of the "identification" of a red-shirted man as the killer. The fact that confession was made was properly led before the jury.

[85] The judgment of McPherson JA in R v K (supra) records that he had sat on Mr Zullo's appeal against his earlier conviction for murder at the first trial, and that the success of that appeal was based at least in part on what was said to be counsel's incompetence in failing to adduce evidence of the existence of that confession.[77] In the second Zullo appeal this court held that "the Beard confession was simply a piece of evidence to be considered along with the rest, in the jury's task of determining whether the appellant's guilt had been proved."[78] This reasoning, and common sense, requires that the jury be able to evaluate an out of court confession by a third party which is put in evidence, and that the jury hear the available evidence about the circumstances in which that confession was made, and, where the maker can be compelled, from the person said to have made it.

[86] In Bannon v R, (1996) 185 CLR the High Court found it unnecessary and inappropriate in that case for it to determine whether it should follow decisions in Canada and the United States, which extended the exceptions to the rule against hearsay to include third party confessions. The joint judgment of Dawson, Toohey, and Gummow JJ in Bannon noted (at CLR 24) that in the years immediately prior to that (1995) decision, Canadian courts had taken an approach to the admission of hearsay evidence which permitted such evidence to be adduced where it was reliable, and its reception in hearsay form was reasonably necessary. That judgment also noted (at CLR 27) that the test for admissibility developed in Canada and the United States required that where the hearsay evidence was of a confession, that confession must have been to the immediate prejudice of its maker.

[87] In R v Martin, Klinge, and Sambo, McPherson JA, whose judgment was that of the court, adhered to the (obiter) view he had expressed in R v K, that courts in Queensland were bound by the decision in R v Zullo to admit hearsay statements (whether from an alleged co-offender or a stranger to the proceedings, as in Zullo), claiming responsibility for a killing, in favour of another person charged with the offence. In R v Martin & Ors, McPherson JA was not persuaded that the judgment of the High Court in Bannon v R [1995] HCA 27; (1996) 185 CLR 1 was necessarily inconsistent with that line of authority, and held it therefore followed that until overruled by the High Court, that principle declared in Zullo continued to be binding in Queensland. In R v Martin, Klinge and Sambo, it was applied to hold admissible in favour of Mr Klinge, who was tried jointly with Mr Sambo and another (on a charge of murder), an out of court confession by Mr Sambo to a non-police witness, in circumstances making it capable of being credible, that Mr Sambo alone was responsible for the killing.

[88] The circumstances in which out of court confessions were made were established before the jury in R v Zullo, in R v Martin, Klinge, and Sambo, and in R v K, (where, interestingly, those out of court statements implicating solely the co-accused do not seem to have been admitted on the joint trail in favour of the convicted female appellant). The circumstances in which Mr Weekes made his out of court statement were not put before the jury in this matter, and consistently with the implication of the decision in R v Zullo, they ought to have been. That is, the jury ought to have heard of Mr Freer's conversations with Mr Weekes surrounding each of the confessional statements and before both those statements were admitted in Mr Freer's case; that evidence was particularly relevant to assessing the credibility of those out of court confessions, and both should have been admitted if one was.

[89] Furthermore, it is arguable that in this matter Mr Weekes' out of court confession would fail both a reliability test as to admission, and the immediate prejudice test. It would fail the first because of the circumstances in which it could be shown to have been made, which give rise to a strong suspicion that Mr Weekes was prevailed upon to exculpate Mr Freer, and because Mr Weekes' confession contradicted facts otherwise apparently established by admissible evidence. It might fail an immediate prejudice test because it was not particularly against interest, since Mr Weekes already faced a strong Crown case of murder and thus imprisonment for life, irrespective of whatever unconvincing further confessions he made to that murder, or to the commission of other offences. In Zullo and Martin & Ors, the out of court confessions would have passed both tests; the confession in R v K would have failed a reliability test.

[90] It is important to keep in mind warnings of the kind given by Brennan CJ in Bannon v R. At CLR 9, His Honour reminded that unless careful principles were adopted limiting the admissibility of evidence of out of court declarations against penal interest, false confessions untested by cross-examination would bedevil criminal trials. That learned judge foresaw that absent such limits, gaol-house confessions allegedly made by prisoners, who would decline to admit guilty testimonially, would be a common place; to that example one might add confessions by prisoners already serving life who might also, having been schooled, actually admit guilt in the witness box where they really had little to fear from confession to other offences, even others carrying life; and perhaps something to gain. There then is the possibility, mentioned in argument on this appeal, of written confessions being received from far away places, such as Alaska, with little prosect of the author being seen in the witness box.

[91] The decisions in Zullo and R v Marin & Ors did not impose any specific test, but the requirement implicit in the reasoning in Zullo, that the jury learn all the circumstances in which it was made, is consistent with the requirements of a reliability test. An immediate prejudice requirement is really a facet of reliability; the "Alaska" confession, the maker of which could not be called (or charged) would be prima facie unreliable. The circumstances and actual decisions in Zullo and Martin & Others are consistent with the requirement of a reliability test as a condition of admissibility of such confessions, although the latter decision of this court did not impose one. I respectfully suggest such a test would be appropriate.

[92] The passages to which specific objection was taken all appear in Mr Freer's grounds of appeal.[79]

(i) "And perhaps to a lesser extent, ladies and gentlemen, the accused Freer felt comfortable with the hillbillies at 42 Bowen Street, with Cliff Hodges, with Biddle and the pothead, Nathan Montgomery, because after all, they were his mates, sort of. He'd known Cliff for three and a-half years. Look, they were kindred spirits. They were people he could bank on, and of course he could bank on them because that's why he went to them". (R494:49-57).

(ii) "Because, you see, you only have to consider the evidence of Dr Williams, gruesome as it is". (R503:12-14)

(iii) "This man received a flogging. The living daylights were kicked and flogged out of this man for calling somebody a poofter". (R503:29-30)

(iv) "Well, of course, more did happen and more was done and the prosecution cares not at all who did it. The prosecution is totally indifferent because the prosecution says this, ladies and gentlemen - this whole thing was started by one thug who is sitting behind me and it was continued by another. And the prosecution cares not at all what other involvement the accused Freer had except that he didn't distance himself. He stayed there". (R503:41-48)

(v) "...that is what is on tape, that the accused, Freer, said, "Look, I saw Weekes getting stuck into this fellow and I got in between them". That was very good of him. That was just a sporty thing to do but unfortunately, Mr Steele died. You wonder how". (R505:38-42)

(vi) "Now, ladies and Gentlemen, for goodness sake, what a detail. What a man. What detail to come up with that to the police that you go upstairs, the blood will tell you that Mr Steele didn't lie here, there and everywhere. Mr Steele was lying there bleeding to death and not even that. Poor Mr Steele wasn't given the chance to bleed to death because death was so quick. Well, perhaps he was fortunate in that respect if he had to die". (R506:14-21)

(vii) "But you wouldn't for a moment accept that these fellows did not know what they were doing. It's the herd mentality. It just shows you that we're one step removed from up the trees there because it looks as if they came straight down from the trees. You see blood, you see violence. Oh, God help us, young fellows and alcohol. Well, you see, this is what it is. The alcohol does not excuse it, in my submission. The evidence does not show that. If these fellows are capable of thinking - that are walking to the police station and finding your way to Mackenzie Street in all of that. Sure, there were intoxicated, but the alcohol just explains why they more readily engaged in violence, in my submission, than they otherwise would. And, of course, why do people commit crimes? It's because of their brittle pathetic egos, and that's come into being as well". (R508:28-43)

(viii) "He finished up - he finished up like a - like an animal. Slaughtered at the door; facing the wall with a crack in the wall". (R510:6-8)

(ix) "You see, this is the bloodlust of the heard mentality animal. This is the man who's really hyped up to go and engage in violence. There he was sitting. Its ready to go. And then after she left there was more violence". (R510:16-19)

(x) "Then you look further and say did that killing get accompanied by the specific intention of either doing grievous bodily harm or death? Well, look, you're jumping on somebody's head, you might think, would even to blind Freddie indicate even - even somebody half drunk, even somebody - a halfwit like Weekes would realise that his would cause serious bodily harm. This is what is was all about. It's the blood sport. It's the blood sport." (R515:27-34)

(xi) "Well, I don't know about you, ladies and gentlemen, I've just about had it and I'm sure that you would have just about had it too". (R516:4-6)."

[93] Counsel for both appellants applied for orders discharging the jury[80] almost immediately upon the conclusion of the Crown Prosecutor's address. Counsel complained of the inflammatory and emotive tenor of the remarks, quoting from their notes a fair number of the remarks quoted herein. The Crown Prosecutor apologised for calling the appellant Weekes a halfwit, but otherwise did not respond to the application; the learned judge was not persuaded that what the Crown Prosecutor had said in what the judge described as a fairly spirited address warranted the discharge of the jury.[81] The judge did undertake to direct the jury to ignore the reference to Mr Weekes being a halfwit and to remind the jury that they should confine their attention to the evidence and that they should approach that in a dispassionate and detached way. I consider the trial judge was justified in the view that the jury should not be discharged at that stage, and in the view that directions to be given to the jury could remedy or negate the unfair effects of the prosecutor's address. The issue on this appeal is whether the trial process was unfair, or either appellant denied a chance of acquittal otherwise open, taking into account both the prosecutor's remarks and the later directions by the judge.

[94] The particular portions of the prosecutor's address which have caused me concern are those in (iv), (vii), (ix) and (x). The other passages contain some unnecessarily insulting descriptions of other people including both appellants, but that would be obvious to the jury. They are also rather emotional, but that would also have been obvious. The most obvious error is that in (iv), where the prosecutor referred to both men as thugs, of whom one had started "this whole thing" and the other had continued it, and then said "and the prosecution cares not at all what the other involvement the accused Freer had excepted that he didn't distance himself. He stayed there". That submission contained the inaccurate proposition that merely by remaining and not distancing himself from what Mr Weekes was doing, Mr Freer was criminally responsible for the latter's conduct. That proposition is wrong. For Mr Freer to be criminally responsible (if they accepted he remained and waited while Mr Weekes kicked Mr Steele's head) the jury had to be satisfied that he had both aided Mr Weekes in fact by his presence, and had intended to aid Mr Weekes by that presence.[82] The aiding described is the encouragement resulting from presence, signifying a readiness to back another up and the pointlessness of resistance.

[95] The learned trial judge corrected this error[83], identifying it as an error by the prosecutor, and directing the jury that presence alone would be insufficient, and that it would have to have the character of encouragement by signifying support and a readiness to back up if necessary. Later, in response to a request by counsel for further directions, the judge also directed the jury that that assistance or aid must involve an intentional conveying of readiness to back up and overcome resistance,[84] and he repeated the necessity for there being an intention to convey by presence a readiness to assist, when giving the jury further directions at their own request. In those circumstances I consider the judge sufficiently corrected the prosecutor's misstatement of what could constitute a sufficient Crown case against Mr Freer.

[96] The other paragraphs quoted from the prosecutor's address convey what is confirmed on reading the address in full, namely that it was a somewhat emotional one. The Crown Prosecutor's personal regrets and anger over the events of that night, and that such a pointless killing occurred almost casually, is made clear and to a degree that is understandable. Thomas JA, with whose comments the other members of this court appear to have agreed, observed in R v Day [2000] QCA 313 that:

"....it would be absurd to hold that advocates, whether for Crown or defence, are prohibited from appealing to the emotions or that they must perform their work without any passion, and without reference to human emotion."[85]

Nevertheless, as Thomas JA also observed in the same paragraph of that judgment, considerable care is necessary to ensure that jury verdicts are not based upon prejudice, sympathy, fear or irrelevant emotion, and numerous statements may be found in the cases about the undesirability of inflammatory or emotive conduct by counsel and in particular by Crown Prosecutors. Thomas JA referred to some of those cases, including R v Hay and Lindsay [1968] Qd R 459 and R v Ciseau CA 470 of 1993 and 155 of 1994, judgment delivered 8 November 1994.

[97] In Ciseau the joint judgment of this court observed than an intemperate and improper address by a Crown Prosecutor can result in a miscarriage of justice and lead to the setting aside of a conviction; and that it is also important that Crown Prosecutors address in such a way that the jury is not distracted from the true issues. That judgment held that where a complaint is made about the content or tenor of a prosecutor's address, the issue is whether there has been a real risk that the remarks wrongly influenced the verdict thus resulting in an unfair trial. I respectfully observe that those observations and that description of the relevant issues accord with other judgments and description of the applicable tests, such as those in R v Day (supra) at [28], R v M [1991] 2 Qd R 68, R v Pernich and Maxwell (1991) 55 A Crim R 464, and R v L [2001] QCA 535.

[98] The inflammatory references in the prosecutor's address to the appellants as "thugs" in (iv), to the "herd mentality" and to "you see, you see violence, oh God help us, young fellows and alcohol" in (vii), to "the blood lust of the herd mentality animal" in (ix) and to "it's the blood sport, it's the blood sport" in (x) had the effect in toto that they invited the jury to treat both the accused men as indistinguishable members of a herd, whose individual actions were inseparable from the actions of other herd member(s) acting with a common intent. That dramatically expressed proposition was capable of seriously misleading the jury, because it assumed what had to be proved. What the jury were required to do was consider the separate evidence admissible in the two separate cases it was trying, and consider whether the Crown had proved beyond reasonable doubt that Mr Freer was criminally responsible for what the Crown Prosecutor's address conceded was a death caused by an assault committed by Mr Weekes.

[99] In my opinion the evidence in Mr Freer's trial would have entitled the jurors to find:

* that Mr Freer broke Mr Steele's ribs, as he admitted to the Detectives;

* that he did that by the use of his knees to apply a compressing force, as described by Dr Williams, and not by throwing Mr Steele against the window;

* that Mr Weekes had seen Mr Freer use that compressing force with his knees, as adverted to in exhibit 27;

* that Mr Weekes was incited by the sight of Mr Freer's use of force also to assault Mr Steele with his feet, that assault having occurred after Mr Freer had assaulted Mr Weekes;

* that Mr Freer had been present at and witnessed that assault by Mr Weekes using his feet, that conclusion being open both because of the inconsistent accounts Mr Freer gave of how and why he had not witnessed that, and because Mr Freer was able to describe that it happened, which description fitted the results of the forensic analysis;

* that Mr Weekes was in fact aided and encouraged to assault Mr Steele with his feet by the presence of Mr Freer while he did it, that presence signifying to Mr Weekes a readiness to "back up" Mr Weekes if necessary, or signifying to Mr Steele that resistance would be pointless because there was another person ready to overcome that resistance if necessary.

[100] I consider that the critical decision for the jury was whether Mr Freer intended to encourage Mr Weekes in that assault by his presence, assuming the jury found against Mr Freer on all of the other matters last mentioned. Whether they did make that finding was quintessentially a jury matter. The critical question in Mr Freer's appeal, but much less important in that of Mr Weekes, is whether the Crown Prosecutor's address so distracted the jury from its task, of analysing that evidence to determine whether the jury was satisfied beyond reasonable doubt of each of the above described findings necessary and sufficient to establish Mr Freer's guilt of murder (or so satisfied of any other findings necessary to establish that guilt), that there is a real risk the remarks wrongly influenced the verdict.

[101] The learned judge did direct the jury as he had intimated to counsel, including informing the jury that the prosecutor acknowledged he should not have called Mr Weeks a "half-wit." The directions the judge gave included a detailed reminder of the evidence the jury had heard in the trial, presented in an admirably dispassionate summing up. The judge had told the jury on at least three occasions[86] during the trial, and before the summing up, that statements made or conversations had with one of the two accused in the absence of the other were evidence only in the case against the person who had made the statements. One of those reminders occurred during the evidence of Sherry Biddle, and another during the evidence of Ms Bernhardt. The judge then reminded the jury of that important matter at the commencement of the summing up[87] when explaining that two separate trials were being conducted in the one proceeding, and again when giving redirections to the jury at counsel's invitation[88], when the judge remarked that:

"I have told you a number of times and I cannot repeat it often enough, that you must consider the case against each accused separately and that what was said by one in the absence of the other is evidence against the person saying it and that even where something is said by one in the presence of the other unless that person adopts it, agrees with it it is evidence only in the case of the person saying it."

[102] The jurors were thus reminded they were hearing two separate cases, were reminded in detail in the summing up of all of the evidence they had heard, and reminded of a critical principle of admissibility of that evidence. They were given careful directions on the elements of murder and manslaughter about which there is no complaint, and likewise on s 7 and criminal liability, about which there is no complaint either. It was a lengthy summing up which commenced at 4.41 p.m. on day six of the trial, was adjourned at 4.47 p.m. that day until it resumed at 9.08 a.m. on day seven, and after redirections ended at 1.09 p.m. on day seven. The jurors themselves requested further directions, given at 3.44 p.m. that day and, in response to a request by the jury, at 12.33 p.m. on day eight, ending at 12.39 p.m. that day. More directions were given then at 12.41 p.m. The jury then returned their verdict at 3.09 p.m. on day eight. In those circumstances, while the inflammatory and emotional references quoted from the prosecutor's address would have distracted the jury from the true issues, those issues were put before them by the trial judge at considerable length. The effect of the prosecutor's remarks would have dissipated as time went on and as the jury received correct directions, and I consider there is no real risk that those wrongly influenced the verdict. Accordingly, that ground of appeal by Mr Freer and Mr Weekes should be dismissed. At all times it was a ground seriously arguable only in Mr Freer's appeal.

[103] My Freer has complained, and Mr Weekes echoes his complaint, of the Crown Prosecutor's reference to lies, "ducking and weaving", "minimising involvement", telling "porkies" and being "caught out" in the address. Eleven such occasions are identified in paragraph 10 of counsel's outline of submissions for Mr Freer; the gist of the prosecutor's argument was that Mr Freer had told the truth about his own conduct in direct proportion to the extent to which he trusted the person to whom he spoke, and had progressively minimised his own involvement in the descriptions he gave as time passed.

[104] Although Mr Freer's grounds of appeal contended that the judge erred in failing to direct the jury about lies in terms of Edwards v R, (as to whether the jury could conclude those lies showed a consciousness of guilt of murder, and were thus evidence of that guilt), at the end of his submissions on the appeal Mr Freer's counsel submitted that a direction in accordance with that suggested at paragraph [23] of the majority judgment in Zoneff v R (2000) 200 CLR 234 should have been given,[89] (that it was for the jury to decide what significance any suggested lies had, but to be wary of reasoning that telling lies was evidence of guilt). Counsel conceded on the appeal that it would have been a disadvantage to Freer for the judge to have given an Edwards direction.

[105] The learned trial judge was not asked to give either an Edwards or a Zoneff direction by any of the counsel at the trial. The Crown Prosecutor specifically disclaimed at the trial any suggestion from him that that jury be directed in terms of Edwards. I respectfully consider that the absence of any request for a direction to the jury about lies, and the change of position of Mr Freer's counsel as to whether an Edwards or Zoneff direction was requested, demonstrates that the learned trial judge was sensible in not giving directions on the issue of lies told by Mr Freer, and in leaving it to the jury to determine whether they accepted the prosecutor's argument as a fair comment on Mr Freer's descriptions over a short time about what had happened, and whether he had attempted to minimise and misdescribe his own involvement.

[106] I respectfully consider that the learned trial judge's conduct in this regard was in accordance with the later published reasons of the High Court in Dhanhoa v R [2003] HCA 40; (2003) 199 ALR 547, in which Gleeson CJ and Hayne J wrote at [34] that:

"It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards or the kind referred to in Zoneff, every time it is suggested in cross-examination, or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her credibility. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that a jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case."

[107] I consider those remarks applicable here, and respectfully observe that McHugh and Gummow JJ also wrote (at [59]) that:

"It is not necessary for a trial judge to give a direction concerning lies as evidence of guilt whenever a prosecutor suggests directly or indirectly that an accussed's out of court statement is a lie."

(McHugh and Gummow JJ did consider that in that case the jury were entitled to think that that appellant had lied because he was conscious that he was guilty, a view Gleeson CJ and Hayne J did not share). In this case the substantial evidence of Mr Freer's involvement lay in his statements to other people, and the jury of necessity had to evaluate and analyse those. Directions about lies would really have added nothing that assisted the jury in that evaluation.

[108] It follows that this ground of appeal by Mr Freer should be dismissed also. The complaint likewise made by Mr Weekes should also be dismissed, although far fewer references had been made to him in the prosecutor's address, and thus far fewer references to alleged lies he told. On the appeal his counsel did not elect whether the directions the absence of which was the subject of his complaint should have been ones pursuant to Edwards or Zoneff; none were sought at the trial. I would dismiss his appeal too.

[109] Accordingly, I would dismiss the appeals by both appellants.

[110] JONES J: I have had the advantage of reading the reasons of Jerrard JA. I concur in these reasons and agree that the appeals of both appellants should be dismissed.

[111] HOLMES J: I agree with the reasons of Jerrard JA and with the order he proposes.

[8] This and the next quotation are from AR 225-226

[11] This cross examination is at AR 235

[12] These quotations from Ms Biddle's evidence are at AR 243

[23] At AR 378; the transcript is exhibit G

[25] This evidence appears at AR 148, 149

[50] Copies of it are at AR 664 and 666

[52] The applicable test for legal professional privilege: see Esso Australia Resources Limited v F.C.O.T. [1999] HCA 67; (1999) 201 CLR 49 at 73, 107

[63] At AR 493, and essentially repeated at AR 502

[71] This appears in [15] of the reasons for judgment of this court

[73] In reasons [17]. In that appeal, counsel for the female accused who had been convicted had submitted that it was not proper for the Crown to charge the male accused jointly with the female, when, despite the male accused's confession, it was never the intention of the Crown to suggest that he was actually guilty.

[74] The ruling by the learned judge that those cases bound him, and accordingly that the written statement was admissible, it appears at AR 61a

[75] These facts are taken from the judgment in R v Zullo

[76] These rulings and observations appear at page 571 of the Qd R

[77] This appears at [17] in the reasons of McPherson JA in K v R

[81] The ruling on the application is at AR 428a

[82] See R v Beck [1990] 1 Qd R 30, at 38 (LL 15-20) in the judgment of Macrossan CJ, agreed to by McPherson J, approving R v Clarkson, Carroll and Dodd (1971) 55 Cr AR 445 and R v Wylie, Payne and Harper (CA 27, 28 of 1977, unreported judgment given 25 March 1977)

[85] R v Day at [28], judgment of Thomas JA

[86] Two are recorded at AR 263 of AR 345; in the first of those the learned judge refers to it being a repetition of what he has already said to them, probably in the un-transcribed introductory remarks at the start of the trial

[89] Transcript of argument on the appeal at 66, 67