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[2000] SASC 454
Supreme Court of SA
2000-12-21
Trial P
Original judgment source is linked above.
APPEALS AGAINST CONVICTION Appellants convicted of two counts of murder and one count of attempted murder - victims were shot at the premises of an automobile repair business - prosecutor alleged at trial that the appellant P was the gunman and the appellant G drove the getaway van. CO-ACCUSED - USE OF ONE ACCUSED'S DEMEANOUR AS EVIDENCE AGAINST THE OTHER Audio and video tapes of police interviews with G admitted into evidence which contained admissions on G's part - evidence of G appearing agitated and nervous during interviews - trial judge directed jury that the contents of the interrogation were only admissible against G, but G's demeanour was also admissible against P as evidence of G's state of mind - whether G's demeanour during interview was relevant and admissible against P - whether link to case against P could be demonstrated - whether, if direction faulty, it was capable of producing a miscarriage of justice. Evidence of statement by G to witness which constituted evidence of joint criminal enterprise - trial judge directed that such statement could only be used against both accused if the jury had determined that a common purpose to murder existed at the time the statement was made - admissibility of statement - adequacy of direction. Applications made by G and P for separate trials refused - whether trial judge erred in refusing to direct separate trials - whether a miscarriage of justice resulted from joint trials - whether trial judge's directions were adequate to alert jury as to which evidence admissible against which accused. LENGTH AND COMPLEXITY OF TRIAL P argued the complexity of the legal and factual issues before the jury, and fragmentation of trial through recalling of important witnesses whose credit was in issue, produced a miscarriage of justice - longest criminal trial in State's history - jury deliberated for over eight days - whether evidence of confusion or uncertainty amongst jury - whether evidence that jury did not comprehend evidence - role of trial judge considered. Much important evidence obtained through use of covert listening devices - warrants issued pursuant to s 6 Listening Devices Act 1972 - warrants in form provided for in Listening Devices Rules 1992 - validity of warrants - whether if warrants invalidly issued, the evidence should have been admitted in the trial judge's discretion - whether evidence obtained through listening devices should be excluded due to illegal conduct on part of police in securing P's absence from his home so that listening devices could be installed - allegation that police officers punctured tyre of P's motor car to prevent him returning home whilst installation was still in progress - whether trial judge erred in exercise of the discretion to admit the evidence. Trial judge allowed P to be cross-examined on some previous convictions after he forfeited the protection of s 18(1)(VI), Evidence Act 1929 - whether P gave evidence of his own good character and made imputations on the character of other witnesses which were not necessary for the presentation of his defence - nature of imputations against other witness - whether P's defence could have been presented without such imputations - partial loss of shield - P represented himself at trial - whether P lost his shield intentionally or inadvertently - whether trial judge made P aware of consequences of loss of shield - whether jury could use character evidence as evidence of domination of G by P in the carrying out of criminal activities - whether trial judge's directions to jury on use of character evidence were adequate. P put matters to later witness concerning dealings with an earlier witness where he had not put the same allegations to the earlier witness - whether trial judge was correct to grant prosecution request to recall earlier witness in rebuttal - relevance of P's lack of representation. Whether various other facets of trial individually or in combination caused a miscarriage of justice - conduct of P's solicitor regarding production of tapes of telephone interceptions prior to P's election to represent himself - whether any injustice arising from such conduct remedied by earlier appeal decision in R v Gillard and Preston - alleged factual errors in trial judge's summing-up - misquotation of witness in summing-up - evidence led late in the prosecution case of the location of P's mobile telephone at time of shootings which contradicted earlier evidence that such tracking was not possible in 1996 - alleged failure of prosecution to lead evidence which they had advised they would lead - access by jury whilst considering verdict to transcripts of telephone interceptions - whether a miscarriage of justice resulted from alleged irregularities. FRESH EVIDENCE EFFECT OF LACK OF ACCESS AT TRIAL TO MATERIAL SUBSEQUENTLY PRODUCED ON APPEAL Application by P to admit fresh evidence on appeal, namely tapes and transcripts of telephone interceptions and listening device recordings of which production was ordered in R v Gillard and Preston - whether denial to P of access to tapes and transcripts before trial produced miscarriage of justice - whether prosecutor's cross-examination of P was unfair in the absence of access to relevant tapes and transcripts. Evidence of G's interviews with police - evidence of exculpatory statements made by G - whether trial judge's directions to the jury on the exculpatory portions of G's interviews were adequate - prosecution alleged G was vague in the interviews - whether trial judge erred in permitting the argument that G was vague in the interviews to be put to the jury. COMPLICITY Circumstantial evidence of G's complicity in the criminal enterprise - whether trial judge's directions to the jury on the circumstantial evidence in relation to the issue of G's complicity were adequate - whether trial judge's directions on complicity in a general sense were adequate. LIES Evidence of a continued association between the appellants after the shootings, which was inconsistent with statements made by G to the police - whether G lied to the police about his association with P after the shootings - whether the alleged lie disclosed a consciousness of guilt - whether trial judge adequately addressed the issue of the alleged lie in his direction. Evidence of G's flight after the shootings - whether G's flight was suggestive of guilt - whether trial judge's directions were adequate. Evidence of G's bad character - whether evidence of bad character was relevant to an assessment of G's credibility when G did not give evidence at trial - whether evidence of G's bad character was admissible - whether trial judge's directions were adequate. Trial judge gave accomplice warning to the jury in relation to the evidence of certain witnesses - whether jury might have adversely applied those directions to G - whether trial judge's directions were adequate. ELECTION BY DEFENDANT NOT TO GIVE EVIDENCE AT TRIAL Comment by trial judge to jury on failure of G to give evidence - whether trial judge's directions on G's failure to give evidence were adequate. G stated in the police interviews that he thought P was going to rob, not murder, the victim K - whether there was sufficient evidence of a common purpose between G and P to murder K - whether the murder of the victim R and the attempted murder of the victim T were a part of that common purpose - whether trial judge adequately directed the jury on the question of a common purpose - whether a verdict of manslaughter was open to the jury in relation to G - whether trial judge erred in not putting the alternative verdict of manslaughter to the jury in relation to G. MOTIVE G claimed on appeal that it was difficult for the prosecution to disprove on the evidence that his motive extended no further than robbery - whether trial judge adequately directed the jury on the question of the evidence supporting G's alleged motive to rob. SUBSERVIENT RELATIONSHIP BETWEEN THE CO-ACCUSED Whether the trial judge adequately directed the jury on the evidence of G's subservience to P. SPECULATIVE REASONING Whether the prosecution and the trial judge invited the jury to speculate on statements made by G to the police. Whether verdicts in relation to G are unsafe and unsatisfactory.
Counsel: MR D PEEK QC WITH MR A RICHARDS - Solicitors: J A RICHARDS
Counsel: MR C KOURAKIS QC WITH MR M BARNETT - Solicitors: GEORGE MANCINI & CO
Counsel: MR S MILLSTEED QC WITH MR A KIMBER - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)
Judgment No. [2000] SASC 454
(Court of Criminal Appeal: Duggan, Lander and Bleby JJ)
Court of Criminal Appeal: Duggan, Lander and Bleby JJ
1 DUGGAN AND BLEBY JJ. The appellants were convicted of the murders of Leslie Knowles and Timothy Richards and the attempted murder of Kim Traeger at Lonsdale on 15 August 1996. They have appealed against these convictions.
2 The charges arose out of a shooting incident which took place at the Lonsdale workshop of Mr Knowles who conducted an automobile repair business. Mr Richards was a friend who worked at the workshop on a casual basis. Mr Traeger and another man, Stephen Leane, were employed at the workshop as mechanics.
3 Shortly after midday on Thursday 15 August 1996 Knowles and Richards were in an office at the front of the workshop. Leane and Traeger were in the main workshop area working on motor vehicles. Leane was working under a utility and Traeger was standing next to this vehicle. A yellow van pulled up at the entrance to the workshop. A masked man alighted from the front passenger door of the van and walked through the workshop into the office. He was heard to say "Are you Les? Are you Les?". Knowles and Richards both replied that they were not "Les". The man then aimed a pistol at Knowles and shot him in the head. He then shot Richards in the head.
4 As he walked out of the office and through the workshop the man saw Traeger. He said "Are you Les?". Traeger denied that he was Les and offered to produce his driver's licence. The man then raised the pistol and aimed it at Traeger who dropped to the ground as the gun was fired. The bullet grazed the inside of his left wrist. The man then got back into the van which was driven off by a driver who had been sitting in the van. Knowles and Richards died from their injuries.
5 According to the prosecution case, the gunman was the appellant Gerald Preston ("Preston") and the driver of the van was the appellant Gillard. The prosecution alleged that the killings were carried out at the behest of a man named Tognolini who was said to have promised Preston approximately $10,000 to kill Knowles.
6 Approximately 25 minutes after the shootings a yellow Ford Econovan was found burning in a car park at the rear of a shop on Beach Road, Christies Beach. The car park is situated approximately 900 metres from where Preston was living at the time. Gillard also lived in the area, although a little further away from the car park. The van had been stolen on Monday 12 August and the prosecution allege that it was the vehicle used in the shootings.
7 The initial police enquiries focused upon the van. Police officers investigated a report of a van answering the description of the vehicle used in the robbery which had been seen in the car park of a block of units at Hilton in the days leading up to the shootings. They doorknocked the units and spoke to the appellant Preston's brother, Ronald Preston, who occupied one of the units.
8 At about this time, police officers installed listening devices in Preston's home and also intercepted telephone calls made to and from his home and mobile telephones.
9 Preston was arrested and charged with the offences on 3 November 1996. On the same day a Luger pistol was recovered from the boot of a vehicle owned by Preston's father and step-mother, Ivy Preston. The vehicle was located at their home at Moonta. Forensic tests established that the pistol was used in the shootings. In a police interview conducted on the day of his arrest Preston denied any knowledge of the shootings. At a later interview he declined to answer further questions.
10 The appellant Gillard left South Australia and travelled to Queensland in late October or early November, 1996. A warrant for his apprehension was issued on 6 November 1996. He was arrested in Brisbane on 9 December.
11 At first Gillard denied involvement in the shootings. However he was further interviewed on 12 December 1996. In the course of this and subsequent interviews he admitted that he had driven Preston to the workshop on the day of the shootings. He said he had stolen the van some days beforehand at the request of Preston. He had delivered it to the units in which Ronald Preston was living. In accordance with an arrangement made with Preston, he picked Preston up at the train station at Colonnades on the morning of the alleged offences. They drove past the workshop and obtained the telephone number of the business from a sign on the wall. Gillard said that Preston then told him to ring the workshop from a public telephone box to ascertain whether Knowles was present. Gillard said he rang the workshop and was told Knowles was there. When Knowles came to the telephone Gillard terminated the call.
12 They then proceeded to the workshop after putting hoods over their heads. Gillard said that Preston had not told him why they were going to the workshop. He thought it was to carry out a robbery. The radio was turned on in the van at the time and he did not hear any shots. He said he had not seen a gun in Preston's possession. Preston said nothing to him about the incident when he returned to the vehicle. He said he received nothing for his part in the incident. He said he drove to the rear of a shop on Beach Road and Preston got out and left. Gillard said that he then set fire to the vehicle. He said he heard about the shootings on the news that evening.
13 The prosecution case was that Preston was the gunman and that he was driven to and from the scene by Gillard. Gillard did not give evidence at the trial. Most of what was contained in his statements to the police was inadmissible against Preston. The jury was instructed on many occasions during the course of the trial that they could not use Gillard's statements to the police as evidence against Preston.
14 Mr Traeger had died before the trial from causes unrelated to the shooting. The statement he had made to the police was admitted into evidence. Neither he nor Mr Leane were able to identify the gunman, whose face was covered by his hood. They did see the yellow van in the doorway of the workshop and saw the gunman get into the passenger's seat after the shootings. Their description of the height and build of the gunman was not inconsistent with that of Preston.
15 The case against Preston was based in part on admissions allegedly made by him to close relatives. It was also based on conversations with a number of witnesses which, in the circumstances, and when considered with other evidence against him, could be considered as admissions of his involvement. It was based in part on recorded conversations between Preston and others obtained through listening devices placed in Preston's home, and on recorded telephone conversations. In addition, however, there was a large body of circumstantial evidence.
16 The clearest admissions were allegedly made by Preston to his brother and to Vicki Preston, his former wife.
17 Ronald Preston gave evidence that several days after the shootings, after there had been much publicity about them, he had a conversation with Preston in which Preston confessed to being the gunman, that he had carried out the shootings for Tognolini, that he had been paid $10,000 for the shootings but had also done it as a personal favour for Tognolini.
18 Vicki Preston gave evidence of a telephone conversation she had with Preston on the day following the shootings. She was living in Bendigo and had heard about the shootings through the media. She perceived that he might have been involved, and by pretending that she knew about it, obtained answers from him which admitted involvement in the killings, and in which he expressed surprise at the detail she seemed to know. She also gave evidence of an incriminating conversation on the following Sunday at Tullamarine Airport when Preston was about to return to Adelaide which, if it occurred, would seem only to be referrable to the fact that Preston was involved in the killing.
19 Of some importance in the case against Preston was evidence concerning the yellow van. Twenty-five minutes after the shootings, a yellow Ford Econovan was found burning in a car-park behind a shop at Beach Road, Christies Beach, a few kilometres from the scene of the shootings. The vehicle was then approximately 900 metres from Preston's then home, and a slightly longer distance from Gillard's home. The van had been deliberately set alight with an accelerant. There was compelling evidence to show that the van in question had been stolen from North Terrace, Adelaide, between 9.30am and 3.30pm on Monday, 12 August 1996, three days before the shootings. Witnesses inside and outside Mr Knowles' workshop at the time of the shooting gave evidence that the burnt out van was similar to the one they saw outside the workshop, but that the number plates at the time were different.
20 There was also evidence to show that the vehicle which had been burnt was the one which had appeared in the car-park of the block of units at Hilton, a suburb of Adelaide, on the day it was stolen. The evidence showed that it remained in a car-park belonging to Unit 5 which, at the time, was occupied by Ronald Preston. The van disappeared from the car-park on the day of the shooting. There was one other circumstance which linked the burnt vehicle with the getaway vehicle and that was, according to the owner, that it blew a lot of smoke out of the exhaust, a fact observed by one of the witnesses who saw the vehicle outside the workshop.
21 There was evidence to suggest that Ronald Preston was an accomplice to the crime. He gave evidence which, if believed, showed that Gillard came to the unit when he brought the van there on the Monday morning. According to Ronald Preston, Gillard said: "Don't touch it, it's coming from your brother", and that the van was to stay there for a couple of days. The admissibility of that evidence against Preston is challenged in the appeal. It will be necessary to return to that in due course.
22 There was further evidence from Ronald Preston that, when he was leaving his unit on the morning of the shootings, he saw both the appellants walking towards the van as he went to catch his bus, although the prosecution suggested that he was mistaken in identifying the presence of Preston at that time.
23 Ronald Preston also gave evidence about some number plates which had been left at his house by a man named Slobodian, who was a friend of Preston, and a signwriter. Slobodian gave evidence that he had been asked by Preston to make up two sets of number plates about a week prior to the shootings. He had been requested by Preston to drop them off at Ronald Preston's unit, which he did. They were vinyl number plates with adhesive backings.
24 There was also evidence in the recorded conversations to which Preston was a party that he was familiar with a common method of stealing Econovans with foreign ignition switches. There were other references in some of those conversations to the van in question, tending to confirm his association with it at the time of the shootings.
25 At the time when the police found the murder weapon, a Luger pistol, in the boot of Preston's father's car at Moonta, they also found with it an ignition switch and key which was capable of starting the Econovan in question.
26 There was a substantial body of evidence which showed a relationship of some standing between Preston and Tognolini in Melbourne, and of the latter's association with the Hell's Angels. Vicki Preston gave evidence that she was present several years ago in Melbourne when Preston purchased a Luger pistol from Tognolini which Tognolini claimed had been stolen. It was the same as the murder weapon. The murder weapon was identified as having been stolen in Melbourne in 1994. Vicki Preston recounted an occasion in which Preston was involved in a road accident in Melbourne whilst carrying the gun and of his expressing some concern that it might be found on him. According to her, Preston had told her that, after he moved to Adelaide, it was being looked after by his father at their house at Moonta.
27 There was other circumstantial evidence linking Preston with the murder weapon. Ivy Preston had been married for 17 years to Preston's father. They had previously lived in the house in which Preston was living at the time of the murders. It was their house. On 10 May 1996 they went to live at Moonta. She said that prior to that, the Luger gun had been kept in a tin box under her husband's bed. It went with them to Moonta. She claimed that in late June 1996 Preston asked her to bring the gun to Adelaide and to meet him, which she did, and handed over the gun and ammunition to him in a city car-park. She said that that was because Preston did not want Vivienne Pitts, Preston's defacto wife, to know about it because she was scared of guns. Preston had told her that he wanted to sell the gun.
28 Ivy Preston and her husband had made arrangements to come to Adelaide on the Friday or Saturday following the shootings for the purpose of picking up items of personal property from Preston's house that belonged to Ivy Preston and her husband. Preston had cancelled that arrangement shortly after the time of the shootings so that he could go to Melbourne. He telephoned them again on Monday, 19 August, asking them to come down that day, which they did. Whilst there was no evidence as to how the gun, some ammunition and an Econovan ignition switch and keys found their way in to Mr and Mrs Preston's car, they were there when they arrived back at Moonta. Her evidence was that both Gillard and Preston were at the premises when the car was packed.
29 On 2 November 1996 the police published on television and in The Advertiser newspaper that they wanted to speak to the person or persons who previously occupied the Hilton unit. By that time Ronald Preston had moved from that address. Police said that they had established that the van had been used in the shootings. That evening, by means of a listening device, the police heard a conversation between Preston and Vivienne Pitts who discussed burying something and ringing his father to take "it" away from where they then had it. During the course of the conversation Pitts said: "If they find that that's the end of the story, isn't it" to which Preston replied: "That's the whole ball game". Pitts commented: "When we went through Melbourne you weren't willing to throw it out the window". Preston said: "I'd rather lose it now".
30 Preston then telephoned his father. He was guarded as to what he felt he could say on the telephone, but he told his father to throw "it" down a hole so that he could get it back at a later stage.
31 On the following day, police searched the Prestons' Moonta home and found what subsequent ballistic analysis confirmed was the Luger pistol used in the shootings. It was found in a tin of wet cement in the boot of Mr Preston's car. In another tin, also in wet cement, were two pistol magazines, a quantity of ammunition and the ignition switch and key capable of starting an Econovan of the type used in the murder. Ivy Preston confirmed in her evidence that the items had been placed in wet cement that morning as a consequence of the phone call from Preston the previous evening. There was also evidence from Ivy Preston linking the number imprint on the gun of which she and her husband had custody from time to time with the number imprint on the murder weapon.
32 There was also evidence of a long-standing relationship between Preston and Gillard, evidence largely given by Ronald Preston and Vicki Preston. For a time, this continued after the shootings, Gillard looking after Preston's house on at least two occasions when the latter went to Melbourne, including the weekend immediately following the shootings. There was evidence of other frequent contacts, at least until 18 September.
33 On 16 September 1996, the police conducted a door knock of the units at Hilton seeking information about the van which had been parked there prior to the shootings. Ronald Preston was then still living in his unit, and of course became aware of the inquiry. At that time he denied any knowledge of the van to the police. On 18 September police recorded a telephone conversation between Preston and his brother. His brother reported the fact that the police had been inquiring about the van. Preston disbelieved his brother, but his brother said that he was getting out of the unit as he did not wish to be questioned again, and was concerned that the van had been seen in his parking spot.
34 That police inquiry was also significant in another respect. It was the Crown case that not only did Preston become aware of the fact that police were inquiring about the van but that Gillard did also. Gillard moved out of his lodgings, and stayed at various hostels in the city of Adelaide until he went to Queensland late in October or early November. His contacts with Preston after that were very few, and then only by telephone. During this period police recorded conversations involving Preston expressing concern at the whereabouts of Gillard, and speaking of attempts to locate him. The inference which the prosecution sought to draw from the lack of contact and Preston's expressions of concern was that Preston feared for what Gillard might do or say which would implicate Preston in the crime. There were certainly expressions of increasing concern by Preston in recorded conversations as more information concerning successful police investigations became public.
35 The prosecution case was that Preston had gone to Melbourne on the weekend following the shootings to collect his payment from Tognolini. There was evidence that he had little or no available money prior to that time to meet some outstanding commitments. Through Vicki Preston, whom Preston also met in Melbourne, there was evidence that Preston had acknowledged contacting Tognolini that weekend, and there was evidence that whilst in Melbourne he purchased for cash a number of items amounting to several hundred dollars, and paid Vicki Preston four hundred dollars in one hundred dollar notes on account of his son's maintenance. His son was then in her custody. She saw a number of one hundred dollar notes in his wallet. On the following Monday he deposited nine hundred dollars in his bank account in one hundred dollar notes and paid $1,000 to Ivy Preston when she came to Adelaide. The prosecution calculated that by the end of Monday he had paid out $2,400 in cash, all in one hundred dollar bills. Later that week he paid $4,000 on account of the purchase of a motor car. In short, the evidence suggested that he had paid out $6,900 in cash within one week of being in Melbourne.
36 There was a further conversation recorded between Preston and Vicki Preston on 6 October concerning the welfare of their child and the reluctance of Vicki to allow him access in the light of recent events. When asked by Vicki why he got involved "in this shit", he said that he would not talk about it on the telephone. He said: "I only end up with the pocket money just by providing something, now let's not talk about it beyond that.". There were further references to his being sorry that he had spoken to her, and that it was "not her problem". He said: "It never was, it's all over and done with.". The inference the Crown invited the jury to draw from that conversation is that it was about the murders.
37 For most of the trial Preston conducted his own case. He gave evidence at the trial. He claimed that much of the evidence against him was untrue. The trial judge gave accomplice warnings in respect of Ronald Preston, Ivy Preston and Slobodian. Preston offered explanations for much of the circumstantial evidence that had been led. The jury was reminded in great detail by the trial judge of all Preston's explanations that he gave and of his cross-examination of the witnesses whose evidence was challenged. His case was that he had nothing to do with the murders, and that on the day in question he had been at a Comskill computer course in Adelaide.
38 The prosecution case was that he may have been there in the morning and that he may have returned there in the afternoon, but that he had taken the train to Noarlunga, had been met by Gillard in the van, had committed the murders and had returned to the city by train. The prosecution led evidence that his mobile telephone had rung at 1.32pm with a call from a public telephone at Noarlunga, received when his mobile telephone was at or near Seacliff Railway Station, consistent with the person in possession of the telephone having taken a train departing Noarlunga at 1.13pm. The prosecution led evidence that this allowed him time to walk from the abandoned van to his home and then walk to the station to catch that train. There was also evidence that he had operated an automatic bank teller machine at 2.00pm in King William Street, Adelaide, that time being within about walking time from the arrival time of the same train at the Adelaide Railway Station. Preston gave evidence to explain those events as well, but it appears that his evidence was rejected by the jury in favour of the large body of evidence which pointed to his involvement.
Preston's appeal, Ground 1 - Admissibility of evidence of Gillard's demeanour against Preston
39 As has been pointed out, the appellants were jointly charged after the trial judge had ruled against a submission that they should be tried separately. That ruling and the consequences of it are the subject of a separate ground of appeal which is dealt with below.
40 The case against Gillard included the admission into evidence of comprehensive audio taped and video taped records of interview, in which Gillard made a number of important admissions, and in which he also implicated Preston as his passenger in the Econovan, both immediately before and immediately after the shootings. For present purposes it is not necessary to record the detail of those admissions or of that evidence. It is sufficient to record that the trial judge, on many occasions during the course of the trial and during his summing-up, stressed to the jury that those records of interview could not be used as evidence against Preston.
41 Reference has already been made to the fact that there was evidence that the relationship between Gillard and Preston changed after Preston became aware of the police doorknock at Hilton on 16 September 1996. The few recorded telephone conversations between the appellants indicated that Gillard was wary of Preston and was keen to ensure that their friendship was still close. There was evidence that Preston too was anxious to maintain contact with Gillard. Preston made efforts to locate Gillard, and the acuteness of his concern about Gillard was illustrated by a number of recorded conversations.
42 In his house on 25 October 1996 Preston was heard to say:
"If he's too fucking scattered, if he's too scattered and he can't ......... then he's too fucking dangerous to have lying around here, he's too fucking dangerous."
43 On 31 October 1996 there was a conversation between Preston and Ronald Preston at Preston's home in which Preston said: "Oh well hopefully he's fucking dead.... he might have fucked off - he might have got his dole payment and buggered off.".
44 In the telephone call to his father on 2 November in which he spoke about burying "it", which the prosecution suggested could only refer to the gun, Preston said of Gillard: "He's gone I think.... I don't mean gone-gone,.... but I think he's, I think he's buggered off.... I wish he was gone gone.... That's another story but that, that's, that's the next round.".
45 Against that background there was evidence of Gillard's arrest in Queensland and of when he was first spoken to by Queensland Police on 9 December 1996. He was apprehended at the St Vincent de Paul hostel in Brisbane on the evening of 9 December.
46 When he was apprehended by Queensland police at the hostel, he was told that police wanted to speak to him about an incident which had occurred in South Australia. Gillard made no comment but agreed to accompany them to the police station. At the Dutton Park police station Detective Lacey told him that the police had received information that he might be involved in a murder in South Australia. He said he did not know anything about it. Detective Lacey asked if he was prepared to wait until other detectives arrived who wanted to talk to him, and according to Lacey's evidence, Gillard then cradled his face in his hands. He was quiet and reserved. According to Lacey, Gillard then said: "This is going to get me killed". The conversation continued:
47 In relation to that episode the trial judge directed the jury that evidence of Gillard's demeanour was admissible against both accused. He immediately added that evidence of the conversation was only evidence in the case against Gillard. There was nothing of significance in relation to Preston in the interview which followed, which was shown to the jury on video tape, but the trial judge in his summing-up, and in relation to that interview, said that that evidence enabled them to see the demeanour of the accused Gillard during the interview in the manner in which he responded to questions. The trial judge said, of the whole interview, that it was not evidence in the case against Preston.
48 Detective Campbell gave evidence of a further conversation which took place after the conclusion of the formal interview. His evidence proceeded as follows:
"I noted that the accused person appeared agitated and nervous. I said 'You seem a bit anxious. Is there something else you'd like to tell me?'
The accused said 'You know why. Because of who's involved.'
I said 'Well, we've just given you an opportunity to tell us on tape what you know. If you'd like, you can tell me whatever you know now.'
The accused said 'I'm not saying any more. I don't know anything.'"
49 In his summing-up the trial judge said of that conversation that the jury might think that that was "also a fact and circumstance which is important". The trial judge continued:
"The accused Gillard appeared agitated and nervous. He would not say any more because of who was involved which you might think suggests that he did have more that he could say. You might conclude, if you accept the evidence, given his earlier conversation, that he was frightened of someone, possibly bikies."
50 Nothing was said at that time of that particular demeanour or conversation as to its admissibility in the case against Preston, although the trial judge had on many occasions told the jury that evidence of conversation between Gillard and police officers was not admissible against Preston.
51 On the next day, 10 December, Gillard appeared in the Magistrates' Court in Brisbane. Detectives Campbell and Benson informed him late in the afternoon of that day that Adelaide detectives would be coming to Brisbane the next day (Wednesday) and would be making application of his extradition. There was a short discussion about what would then happen. The transcript of Campbell's evidence then proceeds:
"The accused then appeared to become very agitated.
I said 'You said that last night. Is there something you want to tell me?'
The accused said 'I've had a lot of time to think about this. I think I'm all right by myself.'
I said 'Are you worried about someone in particular that's tied up with this murder?'
I said 'Who would that be? Someone from a bikie group?'
The accused said 'They'll get to me wherever I am. There's nothing you can do.'
The accused said 'To shut me up. I'm not saying any more.'"
52 The trial judge read that passage to the jury, although the transcript of the summing-up reports it as having been read with some minor but, in our opinion, immaterial variations. No direction was given at that time about the admissibility of that particular conversation against Preston, but it was no doubt covered by the directions, many times repeated, that such conversations generally were not admissible against Preston.
53 On the morning of Thursday, 12 December there was a recorded interview which also took place in Brisbane but this time involving two major crime task force investigators from Adelaide and Detective Campbell. It was during this interview that Gillard made a number of admissions as to his own and Preston's involvement. At the beginning of the interview he was asked what had made him decide to come forward and answer questions in relation to the matter. The conversation then continued:
54 Of that particular passage the trial judge directed that that was not evidence in the case against Preston. It is a passage which might, however, be taken as evidence of Gillard's state of mind at the time.
55 Towards the end of that interview and in another which took place in Adelaide on the following day, Gillard reported having been fearful for his life at various other periods between the shootings and his apprehension. There was, however, one portion of Gillard's interview with police in Adelaide on 13 December 1996 which might be said to be indicative of his then state of mind. Constable Sherry was about to terminate the interview when the following conversation occurred:
"A. I'm fucked so it doesn't really matter. Might as well help myself as much as I can.
Q. You just mentioned then you said 'you were fucked.' What do you mean by that.
A. Well I'm under the impression I'm going to get killed.
A. I just understand because I've said what I've said and er -
A. Gerry or Les Knowles' mates or someone in gaol. I just know it's coming."
56 In the trial judge's summing-up the jury was reminded of that passage, but without further comment other than the general direction that such conversations were not admissible against Preston.
57 Reference has already been made to the trial judge's direction that evidence of the demeanour of Gillard at the Dutton Park police station on the evening of Gillard's apprehension was admissible against Preston but that what Gillard said was not. Some time earlier than that in his summing-up the trial judge had identified fifteen items of circumstantial evidence on which he later elaborated at some length in his summing-up. In summarising them, and in relation to the last item he mentioned, the trial judge said:
"The last matter is the demeanour of the accused Gillard in Brisbane at St Vincent de Paul and at Dutton Park police station on 9 December, which is evidence against both accused, and what he said about bikies, if you find it proved beyond reasonable doubt that that is what he did say, and what he said about being in a state of fear, if that is what you find beyond reasonable doubt he did say. What he said, of course, is only evidence against him, and not evidence against the accused Preston."
58 The other relevant direction as to the demeanour of Gillard occurred in the course of some general directions about the evidence of Gillard's statements to the police. His Honour was dealing in detail with the case against Gillard, not that against Preston. He said:
"It is not just, you might think, what the accused Gillard said that is important, although that, of course, is important; but the way in which he behaved, which, you might think, is important. You will remember my directions to you that what he said is not evidence in the case against the accused Preston, even though it involves him, because he has been named. You put that aside entirely when you consider the case against the accused Preston. But the demeanour of the accused Gillard, which I will mention in a moment, the evidence about it, is evidence in the case against both accused."
59 In the directions which followed there was included reference again to the evidence of demeanour at the Dutton Park police station, reference to Gillard's demeanour during the video tape interview which followed and evidence of Gillard's appearance after the interview, namely that he appeared agitated and nervous. There was also reference to Detective Campbell's evidence of Gillard's appearance and the conversation which occurred on 10 December. The summing-up continued by reference to each of the particular records of interview to which reference has already been made, including the passages indicative of Gillard's then state of mind.
60 Preston complains that the directions regarding Gillard's demeanour were wrong in law. He says that there was no explanation given as a matter of law, judicial experience, commonsense or logic why it might be that Gillard's demeanour was admissible against Preston, but not what he said. A direction was not given as to how Gillard's demeanour might be logically probative of anything in the case against Preston or how that might go towards proving any element in the charge against Preston. It was also said that the direction was confusing when taken in conjunction with the trial judge's directions about what was said by one accused not being evidence against the other.
61 Was the direction confusing or otherwise flawed because of the direction that Gillard's statements to the police were inadmissible against Preston?
62 The evidence of Gillard's demeanour plainly had relevance to the case against Gillard. Leaving aside Gillard's spoken expressions of fear and anxiety, the only evidence of his demeanour was that of police officers who variously described him as "cradling his head" or "putting his face in his hands", "quiet and reserved", "anxious", "agitated" and "nervous". Without reference to the conversations, it was quite impossible for anyone to tell what the cause of Gillard's anxiety or agitation, etc might be, other than by reference to the fact that he had been arrested. It is difficult to see how it might be linked to any part of the case against Preston. Without the associated conversation, there can be no evidence of what caused Gillard to become anxious or agitated, quiet, reserved or nervous, as the case may have been.
63 Taken literally, the directions of the trial judge required that the jury could have regard only, in the case against Preston, to the description by the police officers of Gillard's demeanour. Shorn of its associated conversation, the relevance of that evidence to the case against Preston is not established. It was a direction that the jury could have regard to irrelevant evidence in the case against Preston. However, it was a technical misdirection only. If that were the effect of the direction, it is difficult to see how the jury could possibly have used the evidence of Gillard's demeanour at various times to assist in proving the case against Preston at all. The fact that upon his arrest and on being questioned by police he exhibited a particular demeanour said nothing about the guilt or innocence of Preston. It would neither assist nor hinder them to reach a verdict of guilty against Preston. It would be a case where such a direction could cause no substantial miscarriage of justice, and it would be an appropriate case for the application of s 353(1) of the Criminal Law Consolidation Act 1935.
64 However, the jury might have interpreted the directions in another way. That is, that the conversations accompanying the other evidence of Gillard's demeanour, especially to the extent that they refer expressly or by implication to Preston, could not be used as direct evidence of Preston's involvement in the crime for which Gillard was being interrogated, but the words could be used as the necessary background to other evidence of Gillard's demeanour or state of mind at that time. In other words, the fact that Gillard spoke of Preston or of persons with whom Preston might have been associated in the context of displaying particular emotions could not be used in itself to suggest that Preston or his associates were somehow involved in or perpetrated the crime, whatever use may be made of the conversation as being the occasion for or the subject of Gillard's display of anxiety, etc. It is quite conceivable that the jury, if they were to place any weight on Gillard's demeanour in the case against Preston, could only do so by using the subject matter of the conversation as being the cause of Gillard's demeanour as observed by the police. If the direction were treated in that way, then subject to the question of relevance of that evidence to the case against Preston, the direction could not be criticized.
65 Whichever way the direction may have been taken, the trial judge was in fact giving a direction more favourable to the accused than was necessary. Evidence of what a person said may, in some circumstances, be led as evidence of that person's state of mind. The justification for that exception to the hearsay rule is to be found in the joint judgment of Wilson, Dawson and Toohey JJ in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 304:
"An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co Ltd v Carlyle [1940] HCA 44; (1940) 64 CLR 514. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten [1972] AC, at pp 389 - 390; Reg v Andrews [1987] AC 281, at pp 300 - 301: see also Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR at p 531. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v Vocisano (1974) 130 CLR 267, at p 273. But if sometimes there is an element of hearsay in evidence which is led of statements made by a person other than a witness for the purpose of founding an inference concerning that person's state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind. Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay."
66 One of the issues in that case was the admissibility of the evidence of a witness that a murder victim had said to her child, M, in the course of a telephone conversation with a third party: "M., daddy's on the phone and....". It was important to the prosecution to prove that the caller on the phone was the accused. The statement was admitted as evidence of the deceased's state of mind, which was held to be a relevant issue. Mason CJ said (at 292):
"This statement clearly constituted hearsay to the extent that it was tendered in order to prove the identity of the caller, since it amounts to an express assertion as to that person's identity. The trial judge, however, seems to have regarded the statement as evidencing the deceased's belief and, as such, forming an integral part of the statements concerning intention. He therefore admitted the statement, whilst warning the jury not to use the statement as evidence of the identity of the caller. I am not persuaded that the trial judge erred in admitting the statements when he warned the jury in strong terms not to use them as evidence of the identity of the caller."
67 R v Matthews (1991) 58 SASR 19 involved an appeal by a person convicted of the rape and murder of his wife. Evidence was given by witnesses of statements made by the deceased to them or in their presence to the effect that she was in fear of and did not wish to see the appellant. This Court held that such evidence was admissible to prove the state of mind of the deceased if that was relevant, as it was, to the charge, but not to prove the truth of the facts contained in the statements. The relevance of the evidence went to the question of whether the deceased consented to intercourse, and whether the deceased permitted the accused into her home and received him in the manner suggested by him.
68 In this case, the verbal expressions by Gillard which went to reveal or confirm his state of mind, and which explained his demeanour, were reactive to particular situations. They were more than voluntary assertions made outside some other factual context. If the demeanour of Gillard on those occasions was otherwise relevant to the case against Preston, those parts of the conversation which explained that demeanour and which indicated Gillard's then state of mind were admissible. Subject to the question of relevance, the trial judge's direction ruling the conversations inadmissible against Preston was unduly favourable to Preston and could not amount to a misdirection.
69 To the extent that the jury may have taken the conversations into account either as forming the background to the observations of demeanour or as evidence of Gillard's state of mind, the next question to address is the relevance of that evidence to the case against Preston.
70 On the assumptions so far made, the evidence reveals a state of mind of fear, agitation, nervousness and apprehension of some harm being done to Gillard at the instance of Preston or his associates.
71 The respondent justifies the admissibility of that evidence, so far as the case against Preston is concerned, as being relevant to an evaluation of the prosecution contention that Gillard went to Brisbane to distance himself from the shootings and from his accomplice, Preston. It was also relevant to the question why Preston was looking for Gillard in Adelaide after he became aware that the police had been making inquiries on 16 September 1996 about the presence of the van outside Ronald Preston's unit at Hilton. The respondent readily acknowledged that standing alone the evidence could not prove Preston's involvement. However, it was evidence which tended to support those aspects of the prosecution case. It was part of the matrix of circumstantial evidence - "a ray of light so feeble that by itself it will do little to elucidate a dark corner" but, when with others "all converging and brought to bear on the same point, and, when united, [produce] a body of illumination which will clear away the darkness which you are endeavouring to dispel": Bellhaven and Stanton Peerage (1875) 1 App Cas 278 per Lord Cairns at 279.
72 The evidence, standing by itself, was weak. However, to the extent that the conversations and Gillard's demeanour indicated his state of mind at the time when he was being spoken to by the police officers at the relevant times, and to the extent that they disclosed the subject of Gillard's fear and anxiety, etc, the conversations and the demeanour became relevant circumstantial evidence admissible against Preston as tending to establish the facts relied on by the prosecution as part of the wider circumstantial case against Preston. Preston's complaints about the trial judge's direction do not justify any interference with the verdict on this ground.
Preston Appeal, Ground 2 - Admissibility of Ronald Preston's evidence of his conversation with Gillard
73 This ground challenges the admissibility of a portion of Ronald Preston's evidence that when Gillard came with the yellow Econovan to his unit on the Monday morning before the shootings, Gillard said to him: "Don't touch it, it's coming from your brother.".
74 In relation to that conversation the trial judge reminded the jury what he had said in general terms about joint criminal enterprise, namely that if they concluded that a common purpose existed between Gillard and Preston to murder Mr Knowles, evidence as to what one of them did in furtherance of the common enterprise was evidence against both of them. He went on to direct them that if they concluded that by the time of that conversation the common purpose had been formed to murder Mr Knowles and to steal the van in furtherance of that purpose, and that if the act of Gillard in delivering the van to Ronald Preston's unit and the instruction not to touch it or do anything with it was also in furtherance of the common purpose, then that conversation would be evidence against Preston as well as against Gillard.
75 Mr Kourakis QC, for Preston, conceded that in relation to the instruction "Don't touch it", it was open to the jury to find that those words were a direction by Gillard to Ronald Preston not to do something in relation to the van, and that that was arguably in furtherance of the joint criminal enterprise. He took exception to the admissibility against Preston of the phrase "It's coming from your brother". It was argued that the giving of that information was not in furtherance of the joint enterprise but was merely an explanation as to the origin or source of the van. Mr Kourakis argued further that in any event the direction was inadequate, and that the trial judge should have directed the jury that if they did not find that a common purpose to murder Mr Knowles existed at the time of the utterance, they were to ignore the utterance when considering the case against Preston.
76 It is convenient to note what the High Court said in Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 at 7:
"When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case....It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is not more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. It is customary at criminal trials simply to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of any of its usefulness."
See also Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 at 100; R v Corak and Palmer (1982) 30 SASR 404 at 405 - 406.
77 There were two respects in which the direction given by the trial judge was unduly favourable to Preston. He told the jury that if they concluded (and by virtue of his general directions to them this meant beyond reasonable doubt) that by that time the arrangement or plan which formed the common purpose was in place, and if they considered the conversation to be an act in furtherance of the common purpose, they could use it against Preston.
78 In the first place, proof of the common purpose beyond reasonable doubt is not necessary. Reasonable evidence of the common purpose is sufficient: Tripodi (ibid); Ahern (ibid).
79 Secondly, it was for the trial judge to determine the admissibility or otherwise of the conversation against Preston. It was therefore for him to determine whether, at the relevant time, there was sufficient evidence of a joint criminal enterprise between Preston and Gillard, and hence whether the statement was admissible against Preston. In Ahern the High Court said (at 103 - 104):
"The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity."
80 It would appear from an exchange between the trial judge and counsel that there was, in the judge's view, reasonable evidence of preconcert at that time. His Honour contrasted this with the lack of evidence of preconcert at the time when Mr Slobodian said that he received a request from Preston to make up the number plates. His Honour could therefore have directed the jury that the evidence was admissible against Preston if they considered it to be in furtherance of the common purpose.
81 There can be no complaint about the form of the direction that the trial judge gave, even though his Honour said that the jury could only act on the evidence in Preston's case if they were satisfied that by that time the common purpose had been formed. There is no material difference between putting it that way and saying that if they did not find a common purpose had been formed, they were to ignore the utterance when considering the case against Preston.
82 However, by making the admissibility of the utterance against Preston dependent upon the jury's satisfaction as to the existence of the common purpose at that time, the trial judge was in fact giving a direction more favourable to Preston than if he had directed them that they could use it because he was satisfied that there was independent evidence of the common purpose.
83 As to the question whether the words "It's coming from your brother" were words uttered in furtherance of the common purpose, the passage quoted above from Tripodi makes it clear that evidence of directions, instructions or arrangements, or of utterances accompanying acts will be regarded as acts in furtherance of the common purpose. The words in question were an integral part of the instruction "Don't touch it". That was an instruction from Gillard because either the message or the van was coming from Ronald Preston's brother, and that Ronald Preston was to allow the van to be left in his car-park. It was also an utterance accompanying an act in furtherance of the common purpose, namely the conduct in delivering the van to Ronald Preston's car-park for the purpose of its being kept there until required for the commission of the offence.
84 Accordingly, Preston's challenge to the admissibility of the utterance must fail.
Preston's appeal, Ground 3 - Refusal to direct separate trials
85 Applications were made by both Preston and Gillard that they should both be tried separately. The applications were refused. His Honour subsequently published reasons for that and other rulings made before the jury was empanelled.
86 Preston's complaint was twofold. In the first place he argued that the trial judge erred in not directing separate trials. In addition, however, he argued that the joint trial in fact resulted in a miscarriage of justice, so far as Preston was concerned, by virtue of a combination of the reasons justifying the order for separate trials, on the one hand, and the way Gillard in fact conducted his trial, on the other hand. However, the order having been made, the only question relevant to this appeal is whether there was in fact, by virtue of the joint trial, a miscarriage of justice: R v Harbach (1973) 6 SASR 427 at 433; R v Collie [1991] SASC 2996; (1991) 56 SASR 302 at 310. Nevertheless, it is relevant to note the well-established principles governing the exercise of the Court's discretion to grant separate trials. It is against these principles that any alleged miscarriage of justice must be balanced.
87 Prima facie, there should be a joint trial where accused persons are charged with committing a crime jointly. The factors which justify that approach and which require balancing considerations if separate trials are to be ordered are conveniently expressed by the Full Court of the Supreme Court of Victoria in R v Demirok [1976] VicRp 19; [1976] VR 244 at 254:
"The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials."
88 Those principles were cited with approval by this Court in R v Collie (supra) at 308 - 309. The Court there acknowledged, as had the High Court in The Queen v Darby [1982] HCA 32; (1982) 148 CLR 668, that in some cases, particularly cases of conspiracy, the cases against particular defendants may be significantly different, such as to raise an impediment to a jury finding that A is guilty of conspiring with B, and at the same time to find that B is not guilty of conspiring with A, because of the difference in evidence led against the two parties. However, this merely illustrates the type of prejudice to an accused person which might, in some circumstances, outweigh what King CJ referred to as "strong reasons of principle and policy" (R v Webb and Hay (1992) 59 SASR 563 at 585). The principles were endorsed by Toohey J in Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 89, where Toohey J also spoke of the need to obviate the risk of the jury relying on inadmissible evidence by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.
89 Preston acknowledged that most of the one hundred or so witnesses called by the prosecution were relevant to the cases against both defendants. Reduced to their essentials, his complaints were fourfold.
90 The first complaint related to the admission into evidence of the records of interview of Gillard in which he confessed to being the driver of the stolen Econovan, saying that Preston was the one who went inside the workshop and, by implication, did the shooting, but that he (Gillard) was not a party to a joint enterprise for murder but for robbery only. Preston's defence was alibi, and that the persons to whom he allegedly made confessions were lying. In those circumstances, it was argued that the prejudice caused by the admission of Gillard's statements could not be cured by the directions that were in fact given by the trial judge. He argued that the admissibility of the confessions against Gillard, as an admission against interest, had the effect of reinforcing in the jury's mind the alleged confessions by Preston to Vicki Preston and Ronald Preston as being confessions against his interest, coupled with the fact that those confessions coincided factually, and were therefore supported by, the confessions made by Gillard.
91 The short answer to that contention is that the trial judge was careful to identify all the evidence that was inadmissible against Preston and to repeat on many occasions that it was inadmissible against him. There could have been no doubt or confusion in the jury's mind about the inadmissibility of the statements made by Gillard in the case against Preston.
92 Preston's submission in this regard is little more than a thinly veiled attack on the assumption which the law makes that juries are capable of appreciating the use that may be made of evidence which they are told is inadmissible. Not only did the trial judge in this case give clear and adequate directions about the admissibility of the evidence, but he also told the jury on a number of occasions that they must consider separately the case against each accused. Furthermore, his Honour went to great lengths to summarise the prosecution case and the evidence against each of the accused separately. There could have been no misapprehension on the part of the jury as to what their function was. If they followed the trial judge's clear directions, there could have been no risk of them using evidence inadmissible against Preston as some sort of bolster to the evidence led and separately discussed in the summing-up in the case against Preston.
93 True it was that as a consequence of the accomplice direction concerning Ronald Preston's evidence, the trial judge indicated that Gillard's statement to the police could be used as evidence corroborating Ronald Preston's evidence, but that was only in the case against Gillard. The trial judge was careful to give separate directions about what would amount to corroboration of Ronald Preston's evidence in the case against Preston. That case as his Honour said on many occasions, was to be considered separately from the case against Gillard.
94 Preston's second complaint related to the expressions by Gillard to the police of his fear of Preston or those associated with him. The nature of that evidence has already been discussed in relation to Ground 1 of Preston's appeal. We agree with the observations of the trial judge on that aspect of Gillard's statements in the course of his Honour's reasons for refusing separate trials:
"These statements were made in the context of the period after the murders. There is no suggestion that he was asserting that the accused Preston was otherwise of violent disposition or propensity. I did not think that they gave rise to any prejudice extending beyond the statements made by him implicating the accused Preston in the murders. He claimed that his fear stemmed from their joint involvement in the murders. In the context of all of the evidence, I did not think this matter would loom so large that appropriate directions to the jury would not suffice."
95 As has already been observed, directions were given, the effect of which was to exclude all such statements in the case against Preston, a direction which went further than was necessary in the circumstances. The evidence was capable of being dealt with by an adequate direction of the trial judge. The direction in fact was favourable to Preston.
96 The case is to be distinguished from circumstances such as those which arose in R v Jones and Waghorn (1991) 55 A Crim R 159. The defendants in that case were jointly charged with murder. After making statements to the police implicating Waghorn, Jones, in due course, made full admissions. Waghorn denied to the police any knowledge of or involvement in the killing. Jones made an unsworn statement at the trial. Waghorn did not give evidence. Both Waghorn's involvement and causation were issues in the case against Waghorn. Waghorn's appeal on the basis that there should have been separate trials was successful. However, not only did Jones' statements to the police implicate Waghorn, but there were a number of other features which tipped the scales in favour of allowing the appeal. Jones' statements suggested a motive for Waghorn to kill the deceased, when no motive was apparent from any other evidence led against Waghorn. The statements contained a less than veiled suggestion that Waghorn was capable of killing and was likely to kill his wife and daughter. His statements also included evidence damning of Waghorn's character, including evidence of a disposition to violence and murder, which was of particular significance in a case where the Crown relied heavily on conduct of Waghorn showing a consciousness of guilt in its case on causation and involvement against Waghorn. The evidence was of a type which, so the Victorian Court of Criminal Appeal held, the jury could not be expected to keep out of their minds, even if given appropriate warnings, and would be likely, despite appropriate warnings, to accept the allegations as true (at 184).
97 This case contained no evidence of that nature. It is evidence which could be and which was in fact quarantined by adequate directions. The limited use to which it could have been put was also the subject of an adequate direction in all the circumstances.
98 The third complaint related to the manner in which Gillard conducted his defence. Gillard's case was that what he had said to the police was not true, and was said under great stress, in support of which evidence was led from a psychiatrist. His case at trial was that he was not there. Preston's case was based on alibi. It was said that Gillard's counsel, in the course of cross-examining Crown witnesses, elicited evidence that was prejudicial to Preston's case. No examples were given of this, but it was further said that the damage to Preston was compounded by his being denied the opportunity of cross-examining Gillard when, contrary to expectations raised by the way Gillard conducted his case, he did not give evidence.
99 In our opinion there is no substance to this complaint. The fact that there was no congruence in the defences would appear, in the circumstances of this case, to have no bearing on any suggested injustice as a result of the joint trial. Furthermore, it cannot be assumed by any party to a criminal trial that an accused person will abandon the right to silence, even if, at different stages of a long trial, suggestions are made that it is likely that a co-accused will give evidence. There is no reason to believe that Preston, even though unrepresented, was unaware of that possibility, or that he was incapable of properly presenting his defence by reliance on a misplaced belief that Gillard would probably give evidence. Furthermore, there was no explanation how Preston might have conducted his defence differently had he been aware of Gillard's future silence. It is also difficult to see how there could be any profit for Preston in cross-examining Gillard on what Gillard had told the police in the light of the repeated directions of the trial judge that such conversations were not admissible against Preston. As has been pointed out already, almost all of the witnesses called were relevant to the cases against both appellants. It is not as though the prosecution cases against each of them were widely disparate and reliant to a large extent upon different evidence.
100 The fourth complaint related to the length and complexity of the trial. It was the longest criminal trial in South Australian legal history, but so far as Preston was concerned it was reasonably straightforward. Preston argued that because the factual and legal issues for the jury's consideration in respect of each of the defendants was considerable, requiring the jury to deliberate for over eight days, and because important witnesses, whose credit was in issue, were recalled, these factors, compounded by the joint trial, caused an injustice.
101 However, there was nothing at any point in the trial to indicate that members of the jury were confused or uncertain or that they did not adequately comprehend the evidence, the issues or the course they should follow in considering the evidence. There was nothing to suggest that they convicted Preston other than on a proper consideration of the evidence. All the prosecution evidence in the case was admissible against Preston except the statements of Gillard to the police, and the trial judge repeatedly and correctly instructed the jury that they could not be used against Preston. The trial judge's summing-up was careful and comprehensive, with useful and helpful directions as to how the members of the jury might go about their task in approaching the mass of evidence before them.
102 In Carter v The Queen (1997) 19 WAR 8, the Full Court of the Supreme Court of Western Australia, after reviewing many authorities on the topic concluded (at 22):
"It is plain, from these authorities, that it should ordinarily be assumed that, if there is proper trial management, juries are, in normal circumstances, capable of judging the issues involved even in long and complex cases. We share that view, more particularly having regard for new pre-trial procedures and technological advances which have aided in the conduct of long trials. The question is whether there were any circumstances, in this trial, which prevented the jury from giving proper consideration to the issues before it or which caused there to be a danger of the jury not reaching a safe verdict."
103 We respectfully agree with the assumption made. It has not been demonstrated in this case that there were any circumstances which prevented the jury from giving proper consideration to the issues before it or which indicated a danger of the jury not reaching a safe verdict.
104 In our opinion, none of the matters of which Preston complains, whether taken separately or together, constituted any injustice to Preston in the conduct of his trial.
Preston's Appeal, Ground 4 - Validity of the warrant to install listening devices.
105 Important evidence against Preston was contained in tape recordings of conversations which took place in Preston's house over a period of some weeks during the course of the police investigation. Recordings were obtained by means of listening devices placed in Preston's home under a warrant issued pursuant to s 6 of the Listening Devices Act 1972. Warrants were also obtained for the installation of listening devices in Ronald Preston's home. The trial judge disallowed a challenge to the validity of the warrants. This ground of appeal renews that challenge.
106 Warrants were issued on 4 September 1996, resulting in an installation on 18 and 19 September 1996 in Preston's home. A further warrant was issued on 25 September 1996, resulting in the installation of another listening device in the same premises on 26 September 1996. Both warrants were renewed on 18 October 1996 for a period of 90 days. The devices were recovered on 14 November 1996 and the warrants cancelled on 19 November 1996 pursuant to s 6(8) of the Listening Devices Act.
107 There was no dispute that the police officer who applied for the issue of the warrants was entitled to do so, and that the requirements of s 6(3) of the Listening Devices Act were observed.
108 The power to issue a warrant is vested in a judge of the Supreme Court. Subsections (6) and (7) of s 6 provide:
"(6) A judge may issue a warrant under this section if satisfied -
(a) in the case of a telephone application, that because of urgent circumstances it was necessary to make the application by telephone;
(b) that the issue of the warrant is justified having regard to -
(i) the extent to which the privacy of any person would be likely to be interfered with by use of a listening device pursuant to the warrant;
(ii) the gravity of the criminal conduct being investigated;
(iii) the extent to which information that would be likely to be obtained by use of a listening device under the warrant would be likely to assist the investigation;
(iv) the extent to which that information would be likely to be obtained by methods of investigation not involving the use of a listening device;
(v) the extent to which those methods would be likely to assist the investigation or to prejudice the investigation, through delay or any other reason;
(c) in the case of a warrant authorizing entry onto premises, that it would be impracticable or inappropriate to use a listening device pursuant to the warrant without entry onto the premises.
(a) may specify conditions relating to the use of a listening device;
(i) may restrict entry to within specified hours during a day;
(ii) may provide that entry may be made without permission first being sought or demand first being made and, if it does so, may specify the measures by which entry may be gained;
(c) must specify the period of which it is in force (not being a period greater than 90 days);
109 The Act does not prescribe the form of any warrant issued under s 6. This Court has passed rules known as the Listening Devices Rules 1992 which do prescribe a form of warrant. Rule 4 does not require the seal of the Court, but provides that the warrant is valid and effectual for all purposes if signed by a judge.
110 The warrant issued in respect of Ronald Preston's unit was in the following form:
"To: Robert John Reichman a member of the South Australia Police. WHEREAS application has been made to me by Robert John REICHMAN, a member of the South Australia Police for a warrant authorising the use of listening devices. AND WHEREAS I [the name of the Judge], a Judge of the Supreme Court of South Australia, am satisfied that the issue of the warrant is justified upon the conditions hereinafter appearing. NOW THEREFORE I, pursuant to Section 6 of the Listening Devices Act, 1972, HEREBY AUTHORISE YOU and any police officer acting upon your authorisation:- 1. To use two listening devices to overhear, record, monitor, or listen to any private conversation, which may take place in or on premises situated at Flat 5, 14 Washington Street, HILTON, in the State of South Australia. 2. To enter upon the premises referred to in paragraph 1 hereof, either alone or in company with other members of the South Australia Police for the purpose of installing, maintaining, using or recovering the listening devices without permission first being sought or demand first being made at any time, and entry to the said premises may be effected by means thought appropriate in the circumstances. AND subject to any renewal thereof, this warrant shall be in force for a period of 45 days from the date hereof. DATED the 4th day of September 1996. [the signature of the Judge] A Judge of the Supreme Court of South Australia."
111 The warrants in respect of Preston's home were in similar form, but bearing his address in paragraph 1 and the appropriate periods for which the warrants were to be in force. The forms used were in accordance with the requirements of the rules.
112 The invalidity was said to arise out of the second recital in each of the warrants. Although the recital might reflect the issuing judge's satisfaction with the requirements of sub-paragraph (b) of subsection (6), it said nothing about his satisfaction that the requirements of sub-paragraph (c) had been met. It was argued that there was therefore a flaw in the warrants which was apparent on their face.
113 By reference to the reasoning of the various judges in Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, a case which dealt with the validity of a warrant issued under the equivalent Victorian Act, the trial judge held that the warrants were valid. Mr Kourakis sought to distinguish the requirements under the Victorian legislation from those under the South Australian Act. He submitted that where no form was prescribed by the Act, the common law required a recital that the issuing authority was satisfied as to all relevant aspects. He further argued that compliance with the form in the rules did not cure the defect, as this Court had no power to make such rules. It is not necessary to elaborate or pass on these arguments. We agree with the trial judge that the recital that the judge is "satisfied that the issue of the warrant is justified...." can only mean that the judge is satisfied that all the requirements of paragraphs (a), (b) and (c) of subsection (6) have been met, to the extent that they apply in a particular case. Therefore, in this case, such a statement means that the judge was also satisfied that it would be impracticable or inappropriate to use a listening device without entry onto the premises.
114 However, in any event, the trial judge went on to express the view that even if the warrants were invalid, he would have exercised his discretion to admit the evidence obtained through the listening devices. He said:
"If the warrants were invalid, the evidence would have been obtained illegally in at least two respects. First, in contradiction of s4 of the Act and secondly in consequence of illegal entry in the home of the accused Preston. It must be acknowledged that illegal activity of that kind is a serious breach of the law and a substantial invasion of privacy. It is to be expected that should police officers disregard the provisions of the Act, it is very likely that evidence thereby obtained illegally would be excluded.
However, such is not the case here. Sergeant Reichman observed the provisions of the Act to the letter. He made application to a Judge of the Court in the manner and form provided by the Rules made by the Judges. The grounds of his application were contained in his affidavit. The Judge heard the application and issued the warrant substantially in the form laid down in the Rules. Sergeant Reichman acted entirely properly in every respect.
He installed the listening devices pursuant to the terms of the warrants. He had no reason to suppose that the warrants issued by a Judge of this Court in accordance with its own established procedures were in any way suspect and considered that he was behaving entirely lawfully, properly and within the law. Also, assuming illegality, it did not affect the cogency of the evidence. There was no suggestion that Sergeant Reichman attempted to circumvent the law in any way or that he was lax or indifferent to correct procedures.
The charges against the accused are of the most serious kind and the evidence obtained was an important part of the Crown case, particularly against the accused Preston. Paying due regard to the policy of the Act preventing the use of listening devices unless authorised, the case for exercising the discretion in favour of admitting the evidence is, in my view, overwhelming. Application of the considerations in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 in this balancing exercise lead to this conclusion. This view was taken in Ousley by Toohey J at p519, Gaudron J at p572 and Kirby J at p573." (These page references refer to (1997) 148 ALR.)"
115 In exercising his discretion in that way, the trial judge carefully took into account all the relevant factors giving rise to the issue of the warrant and the fact that the officers installing the listening devices considered that they were acting lawfully and properly. In our opinion there could be no successful challenge to the exercise of the discretion in that manner, even if there were some technical invalidity on the face of the warrants.
Preston's Appeal, Ground 4 - Discretionary exclusion of listening device evidence
116 There was another ground on which Preston had sought exclusion of the evidence obtained by means of listening devices. It related to alleged illegal conduct by the police in order to secure Preston's absence from his home so that they could complete the installation of the listening device. Because it also has some bearing on ground 7.2 of Preston's appeal and the reliance by Preston on some fresh evidence which, he argues, affects the trial judge's findings in this regard, it is convenient to set out the trial judge's summary of the evidence and findings that he made on this topic:
"On 18th September 1996 the first listening device was installed in the home of the accused Preston. At about 8.00 am police officers involved in that activity, and in surveillance of the accused Preston, met at a nearby oval for a briefing. Detective Sergeant Sharp was in charge of covert surveillance of the accused Preston by police officers. They were instructed to keep the accused Preston and his defacto wife, Ms Pitts, under surveillance, which occurred.
Sergeant Reichman was informed that both Ms Pitts and the accused Preston had left the home at about 9.00 am by motor vehicle. They drove to a carpark near the Noarlunga Railway Station and the Colonnades Shopping Centre at Beach Road, Christies Beach, which was a short distance away from the home. The accused Preston went to work at the TAFE College near the shopping centre and Ms Pitts returned to the home in the vehicle. At about 9.50 am, Ms Pitts again left the home in the motor vehicle and returned to the carpark where she left the motor vehicle and went to the railway station and caught a train into the city at 10.04 am. Sergeant Reichman was informed of these matters. He entered the home with two technical officers at a time between 10.35 am and 10.45 am. He was in radio communication with the surveillance police officers and with Sergeant Sharp by mobile telephone.
At 11.35 am he received information that the accused Preston had left the TAFE College and was walking towards the motor vehicle in the carpark. He immediately informed the technicians. About five minutes later, Sergeant Sharp informed him that the accused Preston would not be leaving the car park immediately as his vehicle had a flat tyre. Nevertheless Sergeant Reichman and the two technicians left the home a little after 11.40 am. The listening device had not been satisfactorily installed.
Sergeant Reichman and the technicians returned on the next day and completed the installation. There was another briefing that morning at about 9.30 am to 9.35 am. Surveillance personnel were instructed by Sergeant Reichman that it may be necessary to speak to Ms Pitts or the accused Preston to allow sufficient time to complete the installation. The flat tyre was mentioned as a possible topic to discuss with the accused Preston should such an approach be necessary. At this time the accused Preston was again at the TAFE College and Ms Pitts was on the way to the City. They were both under surveillance. The vehicle was again in the same car park.
The technicians and Sergeant Reichman again entered the house at about 9.55 am. After about 10 minutes, he was informed that the accused Preston had again left the TAFE College and was walking back to the vehicle. He again instructed the technicians to leave and then instructed two police officers, Detective Adams and Detective Martin, to approach the accused Preston in conversation if he went to the vehicle.
Those police officers did approach the accused Preston and spoke to him about the flat tyre. At that stage the task of installing the listening device had not been completed. Detective Adams and Detective Martin took the accused Preston to the Christies Beach Police Station and there had a conversation with him. In that way, they delayed him and the installation of the listening device was completed. Although a further listening device was installed in the house on 26th September 1996 in another room to permit more effective electronic surveillance, it may be accepted that the installation of the first listening device was necessary to enable the impugned conversation to be overheard.
The existence of the flat tyre was of benefit to Sergeant Reichman and his technicians. On 18th September 1996 it caused a delay which enabled them to get out of the house without the risk of being discovered by the accused Preston. On the next day, it afforded to the police an excuse to speak to the accused Preston and to delay him in case he was intending to return to the house.
The suggestion is that a police officer, or police officers, damaged the tyre of the vehicle to cause it to go flat in order to prevent the accused Preston from going home and discovering Sergeant Reichman and the two technicians in his house. Such conduct, in damaging the tyre, would plainly be illegal as it would constitute a criminal offence.
Sergeant Sharp carried out surveillance of the accused Preston on 18th September 1996. After Ms Pitts had returned to the car park, he took up a position to watch the motor vehicle at about 10.00 am and continued to do so. He saw the accused Preston approach the motor vehicle at about 11.35 am. From his action, Sergeant Sharp could see that the accused Preston had seen that a rear tyre of his vehicle was flat and he changed the wheel. He then went to his house.
Detective Sharp gave evidence on a voir dire hearing as to whether the evidence obtained through the listening devices should be excluded in the exercise of discretion. He said he did not see anyone approach the vehicle or interfere with it whilst he had it under surveillance. He gave no instructions to any police officer to interfere with the motor vehicle. However, he did see people in the vicinity but he did not see anyone go to the vehicle.
On the next day Sergeant Sharp again saw the motor vehicle in the car park. The accused Preston left the TAFE College at 9.56 am and went to the motor vehicle. He was about to open it when he was approached by Sergeant Adams and Detective Martin who spoke to him and then took him to the police station.
I saw no reason not to accept the evidence of both Sergeant Reichman and Sergeant Sharp. I accepted both of them as witnesses of truth. Neither of them gave any instructions for the interference with the motor vehicle. As far as Sergeant Reichman was concerned, the flat tyre was a fortuitous event which was of benefit to him. I accept that Sergeant Sharp did not see anyone interfere with the motor vehicle or give instructions that it should be done.
Detective Martin also gave evidence. He was part of the surveillance team on 19th September 1996. He kept the motor vehicle under observation in the car park. When he spoke to the accused Preston at the car park, he understood his purpose was to delay him because of what was occurring at the house. He and Sergeant Adams spoke to him about the flat tyre on the previous day. Detective Martin told the accused Preston that they were investigating offences which had occurred on motor vehicles in that area on the previous day and that his vehicle fitted the description that had been described to them as having been the subject of interference. The accused Preston said that a tyre on his vehicle had been flat the previous day and he had assumed he had a puncture.
The accused Preston also gave evidence. He said that when he took the tyre to be repaired on the Saturday, he saw evidence of such a puncture on the outside exposed wall of the tyre and it had the appearance of having been caused by a knife. According to the accused Preston, one of these police officers told him, at the car park, that the tyre had been stabbed. Detective Martin denied that allegation.
I did not accept the evidence of the accused Preston. I preferred the evidence of Detective Martin and I found that nothing was said by him or Sergeant Adams about the tyre having been stabbed.
At the police station, the police officers took a statement from the accused Preston and purported to check the motor vehicle for finger prints. Finger printing was a ruse and part of the delaying tactics. In all, the accused Preston was delayed by those delaying tactics for about half an hour.
According to Detective Martin, illegal interference with motor vehicles in the car park was common place and the deflation of tyres was not uncommon. He agreed that his involvement with the accused Preston on 19th September was in fact a ruse and not a genuine police investigation.
Ms Pitts also gave evidence. According to her, the accused Preston told her about the flat tyre on 18th September but did not say that it had been stabbed. She saw a split in the tyre that night when she tried to put air in it. She said the tyre had previously been in good condition.
The evidence did not justify a finding even on the balance of probability that the police were in any way responsible for the deflation of the tyre on 18th September 1996.
If the tyre was deflated by a puncture by knife of the wall of the tyre, the evidence does not disclose when that occurred. I accept that Sergeant Sharp did not see it occur. It could have occurred when he was not looking or before he took close surveillance of the vehicle in the car park. There was no evidence as to how long it would take for the tyre to deflate if punctured as described by the accused Preston and Ms Pitts if their evidence is true. I did not regard either of them as reliable and truthful witnesses and I am not prepared to accept their evidence that such damage to the tyre was present without other supporting evidence. No such evidence was called, including from staff at the tyre retailer where the tyre was seen. So, there is a paucity of reliable evidence that a knife was used.
Also, it is appropriate to look at the position of the police. If they wanted to delay the accused Preston by deflating the tyre, they could simply have undone the valve. The tyre could be expected to deflate quickly and there would be no evidence of damage. No evidence of interference would exist.
It is possible that someone else interfered with the vehicle without being seen by the police. That matter has not been proved but the possibility does exist given the evidence of Detective Martin who was a local police officer.
Whilst suspicion clearly falls upon the police, it was not proved that they were responsible and consequently it is not established that they were guilty of any illegal or unlawful conduct.
On the next day they delayed the accused Preston deliberately by a ruse to suit their own ends and for a period of about half an hour. This conduct was neither illegal nor unlawful. It did not affect, in any way, the probative value of the evidence which was obtained through the listening devices. It did not cause the accused to provide the evidence but only assisted in the means of overhearing the conversations. There was no deception for an improper purpose. I do not think the police should be criticised for utilising this tactic to secure legitimate ends."
117 The trial judge concluded, on the basis of those findings, that there was no reason, in the exercise of his discretion, to exclude the evidence obtained through the listening devices.
118 Although it is not entirely apparent from the trial judge's findings, the evidence did disclose a period of time when Preston's car was not under observation by the police in the car-park. At 9.48am Sergeant Sharp was informed that Ms Pitts was driving the Camira back towards the Colonnades Shopping Centre. He was informed that she had parked the vehicle in the north-western car-park. She had been followed into the railway station and he was told that she had boarded a train at four minutes past ten. He said that at that time he was moving around "to take up a position on the vehicle so I could keep it under surveillance". He then located the vehicle and commenced his surveillance. Thus, although he said, as the trial judge found, that he commenced to watch the motor vehicle at approximately 10.00am, that evidence must be read in the light of the description of his movements prior to and immediately following Ms Pitts boarding the train at four minutes past 10. There was therefore a period during which the vehicle was not under surveillance, from the time it was parked by Ms Pitts to the time, after 10.04am, when Sergeant Sharp located the car in the car-park. It is also possible, on the evidence before the trial judge, that the tyre had been punctured by some means before the car arrived at the car-park.
119 On the material findings of fact by the trial judge, there was a paucity of reliable evidence that a knife was used to puncture the tyre. The inference was that he was not satisfied that the tyre had been punctured in that manner, although he did not dismiss the possibility entirely. His Honour further found that nothing was said by Preston or by Sergeant Adams on 19 September about the tyre having been stabbed the previous day.
120 Mr Kourakis argued that the coincidence of the deflated tyre with the attempt to install the listening device, coupled with the use of that event as a pretext for delaying Preston on the following day, was too much of a coincidence to justify the rejection of Preston's evidence, and that on balance the trial judge's findings were not open to him. We reject that argument.
121 The trial judge obviously accepted the police officers as witnesses of truth. Where there was a conflict as to the content of a conversation, he rejected the evidence of Preston. He did not reject the possibility that the tyre had been interfered with. Whilst he accepted that suspicion fell upon the police, the evidence did not satisfy him that the police were responsible if the tyre was interfered with. That finding was plainly open to the trial judge, and it is not one with which this Court can properly interfere. On that basis there was no reason to exclude the evidence in the exercise of the trial judge's discretion.
Preston's Appeal, Ground 5 - The loss of Preston's shield
122 Upon the application of the prosecution during the course of Preston's giving evidence, leave was given to cross-examine Preston as to certain of his prior convictions. Section 18 of the Evidence Act 1929 relevantly provides:
VI. A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless -
(a) the evidence to be elicited by the question is admissible as tending to show that he is guilty or not guilty of the offence with which he is charged;
(b) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character; or
(ba) he forfeits the protection of this paragraph by virtue of subsection (2);
(c) he has given evidence against any other person charged with the same offence:
(2) A defendant forfeits the protection of paragraph VI of subsection (1) if -
(a) the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or a witness for the prosecution; and
(b) the imputations are not such as would necessarily arise from a proper presentation of the defence.
(3) Notwithstanding the provisions of subsection (2), a defendant does not forfeit the protection of paragraph VI of subsection (1) by reason of imputations on the character of the prosecutor or a witness for the prosecution arising from evidence of the conduct of the prosecutor or witness -
(a) in the events or circumstances on which the charge is based; or
(b) in the investigation of those events or circumstances, or in assembling evidence in support of the charge; or
(c) in the course of the trial, or proceedings preliminary to the trial."
123 The respondent argued that by virtue of certain evidence that Preston had given he had forfeited the protection of s 18(1)(VI) of the Act which made evidence of his past convictions admissible as tending to show that he was guilty of the offence charged (s 18(1)(VI)(a)), that he had given evidence of his own good character (s 18(1)(VI)(6)) and that he had made imputations on the character of Ronald Preston, a witness for the prosecution, which did not necessarily arise from a proper presentation of his defence (s 18(2)).
124 The trial judge agreed with the submission of the prosecution that Preston had attacked the character of prosecution witnesses, and had also put his own character in issue. He permitted cross-examination of Preston on the relationship with his brother in an armed robbery in 1980. He also permitted cross-examination of Preston as to any criminal conduct committed jointly with Gillard, as to his activities subsequent to August 1996 until the time of his arrest and his prior criminal record, including prior convictions for armed robbery.
125 Before turning to the particular events by which the respondent alleged that Preston had forfeited his shield, it is necessary to observe that on a number of occasions during the course of the trial the trial judge had advised Preston about the operation of s 18 of the Evidence Act and the circumstances in which his shield might be lost. In the absence of the jury, during Preston's cross-examination of prosecution witnesses, warnings were given of the implications of s 18 by the prosecution raising such issues with the trial judge. At his request, Preston was supplied with a copy of s 18 and of the commentary thereof in Lunn, "Criminal Law South Australia" Volume 1 (Butterworths). Preston was therefore fully alive to the consequences of throwing away his shield.
126 The first instance relied on by the prosecution came at the very beginning of Preston's evidence in chief. He was speaking about the relationship with his brother Ronald. He said:
"In 1979 is probably the first real contact I ever had with my brother, the first relationship I ever had with him. He came over for the Christmas break from his work and resided with myself in Melbourne. Now, we didn't get on really well. Ronnie returned to Adelaide, and, in 1980, Ronnie was charged with an armed robbery that he had committed with some of his friends. I wasn't around at that time, but, when he was arrested, rather than finger his friends, he fingered me. That earned him a suspended sentence. I never had anything to do with Ron after that."
127 That evidence could have three possible imputations. In respect of any of them, Preston was implying that he had been convicted of an armed robbery of which he maintained he was not guilty.
128 The first imputation was that adopted by Preston in argument before the trial judge when opposing the respondent's application. Preston was explaining to the trial judge why he had not put the allegation to Ronald Preston in cross-examination. He said (AB 5345):
"Now, at that time I wasn't of a mind to raise the issue of him fingering me for that armed robbery that he had done. I wasn't of a mind, at that time, because I hadn't read s.18. But, your Honour provided me with s.18 and, when I read through s.18, in suggesting that Ron Preston fingered me for an armed robbery that I had no part in, I did that to support the issue that I would present in my defence that I wouldn't trust this fellow as far as I could kick him."
"I never put it to Ronald Preston about the armed robbery and fingering me for it, because at that stage I wasn't clear if I was able to do that. But, after I read s.18, and s.3, part 3, I formed the opinion that it was quite clearly a part of my defence that I wouldn't trust this fellow and I had good reason not to trust him because, in the past, he's demonstrated, well, his lack of trustworthiness, I would suggest."
129 The imputation that Preston sought to draw from the evidence was that if he (Preston) were engaged in any criminal activity, Ronald Preston is a person whom he would not trust by engaging him in any peripheral activity, such as harbouring the van, or in making any confessions to him, thus implying that Ronald Preston's evidence must be false. We will return to discuss this imputation in due course.
130 The second imputation was that Ronald Preston had "fingered" Preston before and the relationship was such that he was likely to do it again in order to save his own neck. The trial judge considered that this might have been a proper imputation in the hands of a competent advocate.
131 The third, and perhaps most obvious, imputation is that Ronald Preston is a person of bad character who cannot be believed. Not only has he in fact committed an armed robbery, but he has then blamed an innocent person for the same robbery in order to minimise his own involvement.
132 As the trial judge pointed out, the third imputation is a very sinister allegation. It is an allegation that Ronald Preston was not merely a person who would give false evidence in order to secure a conviction of his brother, but would seek to blame an innocent person for a crime which he had actually carried out.
133 We return to the first possible imputation. If that were the only imputation, it would be a matter relevant to Preston's defence and would be insufficient to remove his shield. However, it is the least likely of the possible imputations, and Preston's accompanying explanation reveals a certain element of ex post facto justification in the light of his reading of s 18 of the Evidence Act. If that imputation was Preston's intention, it could have been achieved by conveying to the jury that his brother Ronald had given information to the police before about Preston, which information had resulted in his being convicted of an armed robbery of which Preston claimed he was not guilty. That would be sufficient to indicate why Preston would not trust his brother about any crime in which he was involved, if indeed he were so involved. It was not necessary to allege either that Ronald Preston had in fact given false evidence to police in order to secure a conviction of Preston, or indeed that Ronald Preston had also sought to blame an innocent person for a crime which he (Ronald Preston) had in fact performed. As the trial judge pointed out, it was a particularly serious and unnecessary allegation.
134 The second possible imputation was one which the trial judge himself acknowledged could properly form part of the Preston's defence. However, his Honour considered that the actual imputation went much further than was necessary for the reasons we have just mentioned.
135 The third possible imputation was that which the trial judge considered was the actual imputation. There can be no doubt that he was correct in so holding. In our opinion he was also correct in holding that it was quite unnecessary for Preston's defence, and that it justified Preston losing his shield.
136 Mr Kourakis argued that the trial judge had confused the operation of s 18 of the Evidence Act with the failure of Preston to put the allegations to his brother in cross-examination, the implication being, as we understood the argument, that that carried some influence in the decision that Preston had lost his shield. In our opinion, that formed no part of his Honour's decision that the evidence justified removal of Preston's shield.
137 Consideration of the failure to put the allegation to Ronald Preston arose in the course of considering the exercise of the trial judge's discretion. His Honour was clearly of the view that, handled by competent counsel, what we have described as the second imputation could have been put, as indeed could the first have been similarly put, without removing Preston's shield. In the course of argument with the prosecutor, his Honour was considering whether, in the exercise of his discretion, some allowance should be made for the fact that Preston was self-represented, and lacked the advantage of skilled counsel in putting the appropriate questions. In the end, the trial judge concluded that the allegation was so serious and so sinister (as indeed it was), that to leave it unanswered in circumstances where Ronald Preston had not been given an opportunity to answer it, caused the discretion to be exercised against Preston. In our opinion, it was a proper exercise of the discretion. The trial judge in fact went on to exercise the discretion in relation to that particular piece of evidence by qualifying, in Preston's favour, the right to cross-examine on his record. That was done in a manner which required the prosecutor not to mention that two of the previous offences committed by Preston involved deliberate shootings of persons not involved in the criminal activity. With respect, his Honour rightly took the view that that feature of the conduct would be extremely prejudicial to Preston in this trial.
138 Subject only to some further considerations of general application to all the passages of evidence on which the prosecution relied, this ground of appeal, insofar as it concerns this passage in the evidence of Preston, must fail.
139 Some time later in his evidence in chief Preston was asked by the trial judge about how he regarded Gillard. The question and answer were as follows:
"Q. Before you get to [Mr Tognolini], is there anything you want to tell the jury about the evidence that has been given, by Vicki Preston, and Ronald Preston, about how you regarded Mr Gillard, and how you treated him.
A. Well, I never ever treated Kevin badly. Sometimes he was irresponsible I believe, and I probably would tell him that. But, I always had his interests at heart. I never - I never - I never introduced him to other people. I guess that is another issue. I didn't - he wasn't, as I said, he wasn't particularly sharp and so, I guess, I didn't want to get him in any sort of trouble. I don't know if I can say much more than that."
140 Vicki Preston had given evidence of Preston's relationship with Gillard. She described him as "very dominating. He basically seemed to have no respect for Kevin, although he was always quite nice to him to his face normally". Later, she agreed with counsel for Gillard that from her observations Preston thought Gillard to be an idiot. On the other hand she considered that Gillard "sort of loved [Preston] like a brother and very much thought very highly of him". Gillard looked up to Preston and trusted him. Ronald Preston had described their relationship as "fairly close" in a variety of circumstances.
141 Other relevant background to the prosecution's submission based on this statement was that in the course of the prosecution case Preston had admitted that he knew how to start up an Econovan using a substitute ignition switch. That admission was made in order to prevent the prosecution adducing evidence from Vicki Preston that he and Gillard were jointly involved in stealing Econovans using that method. The prosecution was also in possession of information that Preston had been convicted of a burglary in Victoria which he had committed with Gillard and that he had been convicted in South Australia of receiving a stolen computer from Gillard. As he later admitted, that was only one of about a dozen occasions when he had purchased stolen computers from Gillard.
142 The imputation from the passage of evidence in question is, as Mr Millsteed QC, for the prosecution, submitted that Preston's relationship with Gillard was that of a "guardian angel". It was an assertion of good character, an assertion that he would not want to get Gillard into any trouble, and was an assertion that was relevant to a key issue in the case, namely whether he had enlisted Gillard's assistance to commit the shootings. Not only had Preston asserted his own good character, but it put the nature of the relationship between the two men in issue, thereby justifying cross-examination of Preston in relation to his criminal activities with Gillard by virtue of the provisions of s 18(1)(VI)(a).
143 Mr Kourakis suggested that the fact that the relevant answer was given in response to a question by the trial judge reflects on the view or purpose behind giving the evidence, in that Preston, being self-represented, felt obliged to answer the question, and that that in some way renders inadvertent the removal of the shield. He submitted that it was also relevant to the exercise of the Court's discretion. However, as the trial judge subsequently pointed out, it was open to Preston in response to his Honour's question to say that he wanted to say nothing about what other witnesses had said of the relationship.
144 The third instance relied on by the prosecution was when Preston was later asked if he wished to comment on what he said to Vivienne Pitts about Gillard. Preston said:
"Well, when I say 'he is too dangerous to have lying around' if we go back to the mobile phone conversations that were between Kevin Gillard and myself, which were index number 6 and 7, where he rang me up drunk in the city; now, he spent all his pension money, and he was suggesting, over the phone, to me, that he could be involved in something, over the phone. Now, that's the sort of stuff that this fellow is capable of any pension day. Gets drunk, wandering around all over the place, getting himself in trouble. Now, in my situation, I am growing marijuana at home, I am trying to wrap all that up. I am - well, I am not involved in any of those sorts of activities. What I am trying to do is maintain, well, maintain a good lifestyle, a lawful lifestyle, so that my issues can be resolved with regard to Family Court."
145 Mr Kourakis argued that this passage did not assert positive good character because of the reference to growing marijuana at home, and also when taken in the context of previous evidence of his drug trading activities. He submitted that the effect of the answer was simply to give Preston's explanation for his concern about Gillard and why he referred to Gillard as being "dangerous". However, in our opinion not only does the passage confidently assert that Preston has been living a crime-free life, but it also casts an imputation on the character of Gillard by alleging some type of criminal behaviour with which Preston does not wish to be associated.
146 The fourth instance concerned another of Preston's conversations about Gillard. He said in his evidence:
"A. The 'well hopefully he's fucking dead' is an off-the-cuff remark. What I am essentially - I just don't want any more problems with the fella, that was all. When I say that, what I am saying is he has worn me out. He has worn me out. I have enough problems of my own [with]out having to worry about his problems too, that's all.
Q. What do you mean when you say he had worn you out.
A. Just some of the irresponsible things that had been going on, you know, things that, you know, things that I don't want any part of, things that I don't want to be involved with, that's all, the likes - we just related it back to that phone call on the 2nd of October. I don't want any more of those sorts of phone calls in the middle of the night. I don't want him showing up with whatever he shows up with. Ronnie Preston, for instance, showing up with a van, a stolen van, in my driveway, with stolen computers in it. I don't want any of that sort of crap. This is the sort of stuff I'm talking about. My own life is moving on. I didn't need to be dragged down by that sort of stuff."
147 The phone call of 2 October referred to in that answer was a telephone call between Gillard and Preston on 2 October 1996 about "our work", which Preston acknowledged was Gillard talking about the stealing of computers. Once again Mr Kourakis submitted that in its context it did not assert good character on the part of Preston. However, it was also inconsistent with another conversation recorded through a listening device on the same night as he made the "off the cuff" remark about Gillard - a conversation during which Preston discussed with his brother a plan to steal computer equipment from the Noarlunga TAFE College. In our opinion the evidence justified leading evidence of Preston's convictions by virtue of paragraphs (a) and (b) of s 18(1)(VI).
148 It was argued on behalf of Preston that, even if he had given evidence of his own good character or had impugned the character of a prosecution witness, in the exercise of the Court's discretion, the prosecution should not have been permitted to cross-examine him on his previous convictions. That revealed some very serious criminal offences, including offences committed in conjunction with Gillard. It was argued that the prejudicial effect of that material far outweighed the small advantage that Preston might have gained in the comments he made, and in particular in the circumstances in which some of them were made, namely in response to a question from the trial judge.
149 It is now clear that the discretion to be exercised is unfettered and at large. This was the conclusion reached by White J after a discussion of many cases in R v Beech (1978) 20 SASR 410 at 416-420. That conclusion has since been reinforced by the High Court in Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, where Mason, Wilson, Brennan and Dawson JJ said at 55:
"It is an unfettered discretion governed, once it fairly arises under the statute, solely by what the interests of justice require in a particular case."
150 In exercising the discretion, one of the factors to be borne in mind is the devastating effect that the loss of the shield may have. As Hunt CJ at CL said, with the concurrence of Bruce and Dowd JJ in R v Fuller (1994) 34 NSWLR 233 at 240:
"The evidence of bad character which becomes admissible in order to rebut the evidence upon which the accused relies is not necessarily limited to the particular type of character raised by the accused; the whole of the character of the accused may be exposed, provided that it tends to disprove his assertion of good character: Stirland v Director of Public Prosecutions [1944] AC 315 (at 326-327). It is recognized that prejudice is inevitable from the admission of such evidence, and the mere existence of that prejudice will not alone justify the discretionary exclusion of the evidence of bad character, even where (as was the case in R v Stalder [1981] 2 NSWLR 9) it consists of convictions for crimes of the same general type as that with which the accused had been charged: R v Hamilton (1993) 68 A Crim R 298 at 299)). That is why raising character involves such an enormous risk for an accused."
151 However, just because the loss of the shield may have those consequences, that in itself is no reason for exercising the discretion in favour of an accused. What will be more relevant is whether the accused is considered to have intended to put his character in issue. Hunt CJ at CL continued in R v Fuller (at 240):
"It is submitted that the judge should merely have prevented counsel for the appellant from putting a positive submission to the jury of the appellant's good character, rather than permitting this prejudicial material to be placed before the jury. That is a course which is sometimes followed where the evidence of good character has unexpectedly been given, and where there had been no intention to put character in issue. It would, however, be quite inappropriate where the evidence has been given with that intention, for it would give to the accused a wholly unfair advantage. A fair trial is one which is fair to both parties, the accused and the Crown - which prosecutes on behalf of the whole community. As Street CJ said in R v Stalder (at 21):
'The trial judge, being sensitive to the atmosphere at the trial, was particularly well placed to reach a value judgment on the competing considerations of undue prejudice and legitimate probative significance. The law committed this judgment to him as a matter of discretion. ...'
The trial judge is indeed particularly well placed to decide this question in the context of the issues raised in the atmosphere of the trial itself. I am not persuaded that the discretion committed to the judge has been shown to have been wrongly exercised so as to attract the appellate intervention of this Court."
152 The importance of a trial judge directing his or her mind to the question whether an accused has accidentally or deliberately put his or her character in issue can be seen from R v Stantchev (1995) 81 A Crim R 200, where a retrial was directed in circumstances where the trial judge had failed to address that question and had failed to address the proper exercise of the discretion. Mr Kourakis sought to make more of that case by reference to the particular circumstances which arose in it, but in our opinion it can stand for no more than the proposition to which we have referred.
153 In this case the trial judge carefully considered whether, in the passages of evidence concerned, Preston had intentionally or accidentally removed his shield. He concluded that it was intentional. There was ample justification for that conclusion. He took into account the fact that Preston was not represented. He took into account the previous warnings he had given Preston on the topic. The trial judge also carefully considered whether there should be any limitations put upon the cross-examination by the prosecutor. He did in fact impose a restriction. In the interest of fairness to the accused he ruled that cross-examination as to previous armed robberies could not include leading evidence of the fact that, in the course of such robberies, Preston had shot at a non-offender. His Honour considered that to lead such evidence in the circumstances of this case would be unfair to the accused.
154 In our opinion the exercise of the discretion was carefully considered by the trial judge. He took all relevant matters into account, and there are no grounds on which this Court could possibly interfere.
155 Mr Kourakis also attacked the directions given to the jury in respect of Preston's previous convictions. The trial judge quite properly informed the jury that that evidence could be used in their assessment of Preston's credit as a witness. However, he stressed that it could not be used as evidence that he committed the offences charged or that because of his character it was more likely that he was guilty of such offences. There were clear directions against any propensity reasoning.
156 However, later in the summing up the trial judge directed that evidence of Preston and Gillard's involvement in criminal conduct could be used for another purpose. He said:
"The purpose of the evidence of criminal activity together of these two men is simply this, in this context: As I have said to you before, because you find that either or both of these accused have been involved in criminal conduct in the past is not evidence of their guilt in this matter. Its significance here is that you might think that men who are engaged together in criminal conduct ordinarily have trust in each other. They are able to rely upon each other to perform their respective roles, and they can trust each other, perhaps, to keep quiet about what they have done. So that's a matter for you to consider in the context of this association."
157 Later, in discussing the relationship between Preston and Gillard, the trial judge told the jury that they could use evidence of the relationship (including, by implication, the relationship in criminal activities) to determine whether it had elements of dominance by Preston and obedience by Gillard. It was argued that such directions were impermissible, and constituted misdirections by the trial judge. We disagree.
158 Mr Kourakis pointed to the following dictum of Brooking J in R v Perrier (No 1) [1991] VicRp 36; [1991] 1 VR 637 at 703:
"There is some difference of opinion on the use that may be made of evidence of bad character led by the Crown where the accused has sought to put himself forward as a person of good character. It is clear that if the jury finds the accused to be either of good character or of bad character it may use that finding in considering his credibility. It is clear that if the jury finds the accused to be of good character, it may use that finding as making it less probable that he is guilty of the offence charged.
The doubt which exists is on whether, if the jury finds the accused to be of bad character, it may not merely treat him as losing the benefit of the rule that a person of good character is unlikely to commit an offence, but in addition use his bad character positively against him on the question of guilt. In R v Gilday [1923] ArgusLawRp 110; [1924] VLR 42, at p 45, the Full Court observed that prior convictions could be used not only on the credibility of the accused 'but also to show that it is not improbable that he would commit the offence with which he is charged, and that he has a disposition to commit that offence'. The last 10 words in this passage raise the question now under discussion.
In dismissing an application for special leave to appeal, the High Court intimated that it must not be taken as affirming all the reasons given by the Full Court for its judgment. The trial judge there had simply told the jury that the previous convictions were proved 'to show you the class of man he is'. This decision was cited by counsel for the Crown in Donnini v R [1972] HCA 71; (1972) 128 CLR 114, where the judge charged the jury that it could not draw any inference adverse to the accused by reason of convictions. Barwick CJ, at p 123, thought that where a prior conviction was proved for the purpose of combating a suggestion of good character it could not be used as tending to the guilt of the accused. Menzies J., at pp 133-4, discussed in general terms the question of the effect of evidence of bad character elicited in answer to evidence of good character. In R v Stalder [1981] 2 NSWLR 9 at p 18, Street CJ expressed the opinion that where the Crown attempts to negate evidence of good character the Crown is not entitled to assert a counter proposition of likelihood of guilt."
159 It was not necessary to resolve the question in that case, as the jury had been instructed that prior convictions could only be used in assessing the credibility of the accused, and could not be used as rendering guilt more likely.
160 If there is any doubt as to the use to which the evidence may be put, in our opinion it relates only to the possibility of some type of propensity direction. No such direction was given in this case, and that question does not arise.
161 In so far as directions were given as to an additional use to which the evidence could be put, it was as part of the circumstantial matrix from which guilt might be inferred. The trial judge was careful to direct the jury that the fact of the criminal activity in itself could not be used as circumstantial evidence tending to show that Preston was guilty of the shootings. Having been admitted, however, the evidence could properly be used by the jury to draw inferences as to whether Gillard and Preston could trust each other. In determining the nature of their relationship, those matters were of some relevance and importance in the circumstantial case against Preston. There was nothing to prevent the evidence being used in that way.
162 In R v Beach (supra) at 421-423, White J discussed the need for clear directions as to the use that could be made of evidence of bad character in a particular case, and emphasised the need for both positive and negative directions to the jury as to how they could or could not make use of the evidence. In our opinion, the trial judge in this case did just that. It has not been established that there was any misdirection as to the use that could be made of the evidence of Preston's bad character.
163 It follows that the trial judge is not shown to have erred in exercising his discretion to allow the prosecution to cross-examine Preston as to his previous convictions. His Honour also gave proper directions as to the use that could be made of that material. Ground 5 of Preston's appeal must fail.
Preston's Appeal Ground 6 - The calling of Vicki Preston in rebuttal
164 When Vicki Preston gave evidence for the prosecution she was cross-examined by Preston about her having made a telephone call to Vivienne Pitts from Ivy Preston's home. She admitted having made such a call. Her evidence continued:
Q. Did you ever improperly advise her over the phone.
165 No specific allegation of any improper advice was put. Vicki Preston was then asked whether she had subsequently met Vivienne Pitts in person. She acknowledged that she had, for the purpose of collecting from her a stamp album which Preston had wanted to give to his son. She was asked if she had ever improperly advised Vivienne Pitts on that occasion. She denied having done so, but again no specific allegations were put.
166 Earlier in the cross-examination of Vicki Preston it had been suggested by Preston that she had advised Ivy Preston to say that she was able to identify the gun used in the shooting as having been in the possession of Preston prior to the shootings. That suggestion was denied by Vicki Preston.
167 Vivienne Pitts was called by Preston. During the course of her evidence-in-chief, objection was taken to a line of questioning about some telephone calls that she had had with Vicki Preston after Preston's arrest. There was some doubt as to whether the evidence was merely to discredit Vicki Preston, or whether it had some other relevant issues in the case. In order to rule on the objection, the evidence was led on the voir dire in the absence of the jury. The trial judge allowed the evidence to be led in the trial, and Vivienne Pitts said that during the course of a telephone call she had from Vicki Preston whilst the latter was in Moonta, Vicki Preston said to her: "Why don't you tell the police that he did it, that you have seen the gun".
168 Included in the topics on which the trial judge allowed Preston to lead evidence from Vivienne Pitts was evidence of her having met Vicki Preston in Adelaide on an occasion subsequent to the telephone call. Her evidence was that on the occasion of that meeting Vicki Preston asked her if she had Preston's stamp collection which was to be given to Preston's son. Her evidence was that she told Vicki Preston that she had been told not to give the stamp collection to her.
169 Having heard the evidence on the voir dire, Preston submitted in respect of both topics that the evidence was relevant because Vicki Preston was motivated by fear that she believed that Preston was going to take his son from her, and that she was prepared to ask Vivienne Pitts to lie for her and to tell the police that she (Vivienne Pitts) had seen the gun. Further, he submitted that the evidence was relevant as being indicative of Vicki Preston trying to create animosity by inferring that there was some sort of relationship continuing between Preston and Vicki Preston during the period that he was living with Vivienne Pitts.
170 In the course of argument as to whether the evidence should be admitted, the trial judge told Preston that should the evidence be given before the jury, that might lead to an application by the prosecution to call rebuttal evidence, and that if such an application were made, it was "quite likely" that he would grant it. Having been given that warning and having ruled that Preston could call the evidence, Preston proceeded to do so.
171 The prosecution applied to call Vicki Preston in rebuttal on the topic "that relates to conversations that she is alleged to have had with Vivienne Pitts in relation to the gun and speaking to the police". Counsel was not asked to elaborate, as the trial judge indicated that he was aware of the topic. The application was based on the fact that the evidence given by Vivienne Pitts was never put to Vicki Preston during the course of her cross-examination. The trial judge allowed the application, and Vicki Preston gave evidence both as to the telephone conversation and as to the subsequent meeting with Vivienne Pitts in Adelaide. She denied having had any discussion with Vivienne Pitts about the shootings. She denied telling Ms Pitts to tell the police that Preston did the shooting or that she had seen the gun. She offered a good reason why she would not say so. She also said that she had no idea whether Vivienne Pitts had seen the gun or not. She assumed that she would not have seen it. She agreed that in the subsequent meeting Vivienne Pitts had told her that Preston had written to her about the stamp album and said that Vivienne Pitts did not have the stamp album with her.
172 Preston submits that the trial judge erred in permitting the prosecution to call this evidence in rebuttal. He does so on four bases.
173 In the first place he says that, if it was relevant to expand on the circumstances of Vicki Preston's denial of an improper suggestion to Ms Pitts, as had been put to her in cross-examination, that should have been done in re-examination. However, it is difficult to suggest what else she could have properly been asked in re-examination. It was only after the specific allegations had been led through Vivienne Pitts by Preston that the need to deny that specific allegation and the circumstances surrounding that denial became relevant.
174 In the second place it was said that the prosecution should reasonably have foreseen the allegation by Vivienne Pitts and should have dealt with it in Vicki Preston's evidence. This should have been foreseen from the way that Preston conducted his case and from his cross-examination of other prosecution witnesses. Because of that it is said that it was not an appropriate case for the exercise of the trial judge's discretion: R v Chin [1985] HCA 35; (1985) 157 CLR 671 at 676. We reject the submission. The prosecution had no reason to know that Vivienne Pitts would say what she did, especially when no such suggestion had been put to Vicki Preston in cross-examination. There was no other indication in the evidence that Vicki Preston had ever suggested to Vivienne Pitts that she lied to the police. That was the effect of Vivienne Pitts' evidence. In any event, the suggestion put to Vicki Preston in cross-examination that she had given improper advice to Ms Pitts had been denied by Vicki Preston.
175 Thirdly, it was suggested that the issue was collateral, going to Vicki Preston's credit, and therefore not a proper matter for rebuttal evidence. The implication from Vivienne Pitts' evidence was that Vicki Preston had suggested to her that she falsely implicate Preston. We agree with the respondent's submission that that was evidence of bias on behalf of Vicki Preston. Vicki Preston's evidence denying such bias was admissible on that basis in rebuttal: R v Mendy (1977) 34 Cr App R 4 at 6.
176 Finally, it was suggested that the circumstances did not meet the test of falling into the exceptional category of case justifying the calling of rebuttal evidence where the circumstances included the fact that Preston was unrepresented, and when the application to lead rebuttal evidence was based on his failure to comply with the rule in Browne v Dunn (1894) 6 R 67 (HL). We have already said that the prosecution could not reasonably have foreseen the evidence given by Vivienne Pitts. The trial judge, in the interests of justice permitted Preston to lead the evidence from Vivienne Pitts. Having done so, as he fairly warned Preston before he led the evidence before the jury, it was also in the interests of justice to permit the rebuttal evidence.
177 Preston further argues that the prosecution was not given leave to lead the additional evidence of the subsequent physical meeting between Vivienne Pitts and Vicki Preston. There is some lack of clarity in the short exchange between the trial judge, the prosecutor and Preston at the time when his Honour gave leave to call the evidence in rebuttal. The application by the prosecutor related to "conversations" that Vicki Preston was alleged to have had with Vivienne Pitts. It was plainly directed at more than one. We have little doubt that, in granting the application, the trial judge was intending to grant it in respect of both the telephone conversation and the subsequent physical meeting. Both had been led on the initial voir dire. Both had been the subject of comment by the trial judge to Preston that, by leading the evidence before the jury, Preston was inviting an application to lead evidence in rebuttal. However, even if the second conversation were not properly the subject of rebuttal evidence, there was no prejudice to Preston in any event, as there was no conflict of substance between the two witnesses on that topic. Both gave evidence that Vicki Preston asked for the stamp album. Vivienne Pitts said that she did not have it and that Preston had told her that she was not to give it to Vicki Preston. Vicki Preston in the rebuttal evidence agreed that it was not given to her, the reason apparently being contained in a letter which Vivienne Pitts said had been sent to Vicki Preston by Preston but which she (Vicki Preston) had not received.
Preston's Appeal, Ground 7 - Miscarriage of justice
179 This ground identifies a number of features of the trial which either individually or in combination were said to constitute a miscarriage of justice. Some of the grounds (sub-grounds 7.1, 7.2 and 7.4) related to the fact of the joint trial of both appellants, and have been adequately dealt with in the consideration of Ground 3.
180 Ground 7.3.4 relates to the conduct of Preston's solicitor until Preston chose to represent himself. That conduct became the subject of evidence before this Court when the appeal was first called on, and an application was made by Preston for an order for the production of copies of audio tapes of telephone and other conversations which Preston had not had an opportunity to hear before the trial. The relevant facts giving rise to that application are set out in some detail in this Court's earlier decision in R v Gillard and Preston (1999) 76 SASR 76. If any prejudice to Preston in the conduct of his trial arose out of the conduct of his former solicitor, it was conduct which occurred before the trial and which was remedied by the orders that this Court made for production of copies of the tapes following the hearing of that application. It is therefore not necessary to consider this ground further.
181 The remainder of sub-ground 7.3 raises three classes of occurrence which, by virtue of Preston's being unrepresented, gave rise to an alleged miscarriage of justice.
182 The first is that certain alleged factual errors in the trial judge's summing-up which were adverse to Preston's case were not corrected. These were identified by reference to paragraph 44 of an affidavit sworn by Preston on 16 November 1999 and paragraph 5 of a further affidavit sworn on 17 November 1999. In our opinion, there is no substance in any of the alleged omissions or failures. We are satisfied that in respect of each complaint the summing-up was neither factually inaccurate nor, in all the circumstances, misleading. The trial judge's directions on all the challenged topics were adequate. There was no misdirection.
183 There was one minor error when the trial judge misquoted what a witness, Mr Martin, had told the police about the height of the gunman, which statement was inconsistent with what Mr Martin had said in evidence. The slip was immaterial, and, as the trial judge said, Mr Martin was not asked if he adopted that height rather than the estimate of the height he had given in evidence.
184 The second topic related to objections not being taken to what was said to be objectionable evidence. This was identified in Preston's affidavit sworn on 16 November 1999, paragraph 34. It related to the admission, late in the trial, of documentary evidence, plainly admissible under both s 45A and s 59B of the Evidence Act, tending to prove the location of Preston's mobile telephone at particular times on the day of the shootings. The evidence came to light relatively late in the prosecution's case. Prior to the commencement of the hearing both the prosecution and Preston's legal advisers had been informed that it was not possible to determine the location of a mobile telephone at that time in 1996. Indeed, a witness from Telstra gave evidence to that effect. As a result of a later inquiry by Preston as to evidence of the location of his mobile telephone in Melbourne on the following weekend, it was discovered, in the course of those inquiries that the earlier evidence was incorrect. The evidence was found to be available and was accordingly led by the prosecution.
185 There was no unfairness to Preston in the admission of the evidence. Preston's case to that point in the trial had not been inconsistent with the evidence that was then led. It was otherwise relevant and admissible.
186 The third occurrence relied on was the failure of the prosecution to lead evidence which it was alleged the prosecution had agreed to lead. These incidents are referred to in paragraphs 42 and 43 of Preston's affidavit sworn on 16 November 1999.
187 The first relates to the failure to read a statement of Constable Crouch as requested. The respondent acknowledged that that was an oversight, perhaps understandable, given that during the course of its case Preston requested the calling of eight witnesses, the recalling of ten witnesses and the reading of statements of an additional ten witnesses, all of which requests were complied with.
188 Preston does not suggest that there was any prejudice to him by the failure to read the statement. Indeed, it is difficult to see how he could. The statement was that of a police officer who was a dog handler who attended Mr Knowles' workshop with his dog the day after the shootings. The dog was trained to respond to the odour of illicit drugs. It reacted to a plastic bag which contained a large quantity of cash. The only apparent purpose of the statement would be to show that Knowles was in possession of large amounts of cash and was possibly involved in the drug trade. However, there was abundant evidence of those facts, which was undisputed, and the possession by Knowles of a large amount of money and his possible involvement in drug trading was not inconsistent with the Crown case.
189 The other complaint related to the failure of the prosecution to call an employee of Comskil who was called on the voir dire in order to allow Preston to decide whether he wanted her called at the trial. At the conclusion of the evidence on the voir dire, in response to a question by the trial judge, Preston said that he probably wanted her called. However, he never subsequently indicated that he did want her called. Preston has not identified any prejudice as a result of her not being called.
190 Accordingly, in our opinion there is no substance in sub-ground 7.3 of this ground of appeal.
191 The final matter said to give rise to a miscarriage of justice (sub-ground 7.5) was that the trial judge permitted the jury, whilst considering their verdict, to keep copies of or to have access to the transcripts of the listening device evidence, transcripts of telephone conversations between Preston and Ronald Preston and transcripts of telephone conversations between Preston and Peter Preston.
192 Whether or not the jury should have had access to transcripts of the tapes was a matter for the trial judge's discretion: Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180 at 187 - 188. The transcription is received not as evidence of the conversation or other sounds recorded, but as a means of assisting in the perception and understanding of the evidence tendered by the playing of the tape: Butera v DPP (ibid).
193 The volume of the recorded evidence was very great. No doubt the trial judge considered that the balance of convenience favoured permitting the jury to have access to the transcripts, even if only for ease of reference in being able to pinpoint a particular passage on a particular tape. His Honour gave clear directions as to the use that could be made of the transcripts in that they were not in themselves evidence of the conversations. The jury was directed on a number of occasions during the course of the trial that where the tape was indistinct they were required to make their own decision as to what could be heard. We do not consider that there is any substance in this sub-ground.
194 There was no miscarriage of justice by reason of any of the individual matters complained of in Ground 7. They are not of sufficient substance, when considered together, to raise any serious suggestion of a miscarriage of justice.
Preston Appeal - Application to admit fresh evidence
195 As has already been mentioned, when this appeal was first called on, Preston applied for an order for production of copies of tape recordings of conversations recorded by listening devices and of telephone calls to which he had not been given access before the trial. That application was granted in terms set out in this Court's previous decision: see R v Gillard and Preston (1999) 76 SASR 76 at [73]. The further hearing of the appeal was then adjourned to enable the tapes and other information to be supplied to Preston.
196 On the resumption of the hearing, Preston applied to admit as fresh evidence some of the tapes, transcriptions of them and associated material. The purpose of admitting the fresh evidence was to raise a further ground of appeal that the denial of access of Preston to the tapes before his trial occasioned a miscarriage of justice and the loss of a reasonable chance of acquittal: Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514.
197 We have already decided that, in fairness, Preston was entitled to have access to the tapes - access which he was denied through no fault of his own before the trial. For that reason, with one exception to which reference will be made, they constitute evidence that was not reasonably available to him at the trial.
198 It was argued that tapes relating to seven topics would have been admissible in evidence or would otherwise have been used by Preston in his defence if he were aware of their existence. We deal briefly with each of them in turn.
199 Conversations involving the deceased, Knowles. Preston argued that these indicated that Knowles was in fear of his life because a substantial amount of money was missing, that Knowles was possibly involved in illegal activities, probably drug dealing, and that persons other than Preston and his associates had a motive to murder Knowles.
200 The jury might have inferred from some of the conversations that Knowles did fear for his life because of some missing money. That was not inconsistent with the prosecution case. Neither did it tend to exculpate Preston. There was also other evidence at the trial which provided a basis for inferring that Knowles could have been involved in illegal activities. The tapes concerned did not add to or detract from that evidence. Knowles' possible involvement in criminal activity was not inconsistent with the prosecution case at the trial.
201 In so far as it was suggested from the tapes concerned that others may have had a motive to kill Knowles, the argument was entirely speculative. The tapes did not suggest a reasonable possibility that someone else was behind the shootings. A bare or speculative possibility is not enough. There must be "a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial": Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 399, 402. To the extent that the conversations might have indicated that someone had a motive to kill Knowles, they did not exclude Preston's involvement as the perpetrator, and certainly not in light of the substantial body of direct and circumstantial evidence that Preston was the gunman. There is no significant possibility that the jury, acting reasonably, would have acquitted Preston if these tapes had been admitted at the trial. We would reject their tender on the appeal as not providing any reasonable prospect of a successful ground of appeal.
202 Telephone conversations with Michael Slobodian. It will be remembered that Mr Slobodian gave evidence of making up false number plates and delivering them to Ronald Preston's unit. Preston's case was that Slobodian's evidence was fabricated, and his cross-examination was directed to that end, and to discredit him as a witness. It was part of Preston's case that Slobodian had paid him $2,000 on 17 August 1996 and before he went to Melbourne. According to Preston, that explained, to some extent, how he had money after the shootings. Slobodian denied the payment. He admitted making payments to Preston at other times over a period, the payments amounting in all to $1,000 for a van he had purchased from Preston.
203 The tapes in question were of conversations involving Slobodian between 10 and 27 September 1996. Preston claimed that the tapes of these conversations revealed that Slobodian had paid more money to Preston and had access to more money than Slobodian admitted in evidence, that Slobodian was growing marijuana at his house and was involved with others in commercial production of marijuana, and that Slobodian's involvement or relationship with Preston was quite different from that described in evidence by Slobodian. Preston further claimed that the conversations would have assisted him in recalling his movements and activities in September and October 1996.
204 The tapes concerned did not have any direct bearing on whether Slobodian paid any money to Preston on 17 August. They did tend to confirm a payment of $1,000 to Vivienne Pitts on behalf of Preston in respect of a debt owed to Preston by a Mr Kolar, being a payment which Slobodian had doubted in evidence. The fact that another payment could be shown to have been made later did not establish that Slobodian made a payment on 17 August. It was that payment that was the fact in issue crucial to Preston's case. We incline to the view that the respondent's contention that the tapes would have been inadmissible as going only to Slobodian's credit is correct. At best, they could only contradict Slobodian's evidence on a collateral issue. Slobodian's answers on those questions would have to have been treated as final: Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533 per Latham CJ at 545; R v Slobodian (1982) 30 SASR 161 per King CJ at 164.
205 It is not correct, as was suggested in Preston's written submissions in reply, that this rule is generally applied more flexibly in criminal cases. It will be relaxed if the statement is also relevant to the issue to be tried: R v Busby (1982) 75 Cr App R 79. And it may be that courts are beginning to take a more flexible view as to what is relevant, in this context, to an issue to be tried: see Natta v Canham [1991] FCA 470; (1991) 104 ALR 143 at 158 - 161; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471. We do not consider that the conversations sought to be admitted bear any relevance to the issues to be tried. The fact that they establish payment by Slobodian of $1,000 in September in relation to Mr Kolar's debt does not tend to show that Slobodian paid Preston $2,000 on 17 August for what Preston suggested was for payment for a van and "bits and pieces".
206 The taped conversations may indicate that Slobodian was involved in growing marijuana. They do not suggest that that was a source of any significant revenue for Slobodian, but in any event, on his own case, Preston was aware of Slobodian's cannabis activities, and they were not the subject of any cross-examination as to the commercial nature (if any) of the operation.
207 In any event, we cannot see that there is a significant possibility that the jury, acting reasonably, could have acquitted Preston if the tapes had been admitted. They merely supported an assertion by Preston that he had at some stage received a payment from Slobodian for a debt unrelated to any transaction said to have taken place shortly before or immediately after the shootings, and such later payment was not categorically denied by Slobodian in any event.
208 As to having his memory assisted by reference to the tapes in relation to his movements and activities in September and October, Preston's argument made specific reference to a trip to Melbourne on the weekend of 14 and 15 September 1996. In fact, on that trip he was under police surveillance. He was given details of that surveillance, which became the subject of a set of agreed facts. It also became the subject of evidence from a police constable.
209 We would not be prepared to admit this evidence. It could not possibly affect the outcome of the appeal.
210 Telephone conversations with or about Kevin Gillard. It will be remembered that part of the prosecution case was that on 16 September 1996 police conducted a doorknock in Ronald Preston's group of units, making inquiries about the Econovan, and that after that event Preston became concerned about Gillard and his whereabouts because Gillard was prone to drink heavily. Preston wanted to ensure that he did not say anything which might reveal their involvement. Preston did not dispute that he was looking for Gillard, but he maintained that it was in connection with disposing of his marijuana operation to Gillard, and his concerns were the possibility of disclosure to police of his (Preston's) involvement in that activity. It was also part of the prosecution's case that Gillard became wary of Preston and that he wanted to remain on the right side of him but at a safe distance. There was some evidence to support the prosecution's contention on these issues.
211 Preston's argument is that the fresh evidence of conversations involving Gillard rebuts the prosecution contentions, and that the additional conversations with or about Gillard indicate that Preston regarded Gillard's behaviour during the period as normal or typical, that relations between Preston and Gillard appeared normal and cordial, that Preston was not unduly anxious to locate Gillard, and that there was certainly not any sinister intention on his part with respect to Gillard.
212 The latter assertion was not part of the prosecution case, although Gillard's alleged fear of Preston was. To the extent that the tapes do not suggest any such sinister intention, they do not detract in any way from the prosecution case. Furthermore, to the extent that Preston relies on calls preceding 16 September 1996, they cannot assist his contention, as the prosecution did not suggest that relations were other than normal before that date.
213 The calls concerned are numerous. We have had regard to the submissions both of Mr Barnett, for Preston, and to the written submissions of the respondent. In our opinion, none of the conversations are inconsistent with the prosecution case. Some of them could be said to confirm the prosecution case, and one of them would have been inadmissible as evidence of the relationship between the two men, it being a telephone conversation between Vivienne Pitts and Ivy Preston.
214 In our opinion this evidence should not be admitted.
215 Telephone conversations with Tognolini. It was the prosecution's case that Mr Tognolini paid Preston $10,000 for performing the shootings. Preston now argues that the additional conversations reveal that Preston travelled to Melbourne and sold marijuana to Tognolini for $3,500 per pound, that Preston had agreed to set up an Internet website for Tognolini and that, consistent with Preston's evidence, he (Preston) intended to stop growing marijuana and pursue lawful income producing activities.
216 As to the first point, there was a conversation recorded by a listening device on 22 September 1996 which Preston claimed supported his evidence that he was regularly paid $3,500 per pound when he sold marijuana to Tognolini. It is not a conversation between Preston and another male but between Preston and a female as to the amount that "Terry" (Tognolini) wanted per pound. We agree with the respondent's submission that the particular recording would not have been admissible. Its only apparent purpose could be to introduce a prior consistent statement in order to bolster the credit of a witness. That does not render the statement admissible: R v Fraser [1995] SASC 5335; (1995) 65 SASR 260 and especially the discussion on this topic by Doyle CJ at 266 - 269. See also R v Martin (No 2) (1997) 68 SASR 419 at 430.
217 There was no suggestion made that Preston's story was a recent invention in the sense described in the cases. Prior consistent statements may be admissible to answer an allegation of recent invention, i.e. invention sufficiently recent for a previous consistent statement to be able to answer the allegation, rather than just to strengthen the witness's credit: R v Fraser (supra) per Doyle CJ at 264, where the Chief Justice continued:
"If it is alleged that the witness fabricated a story just after the incident in question, it will be that much more difficult to produce to the court a previous consistent statement which rebuts the suggestion. If it is merely suggested that the witness is fabricating testimony, then there will be no point in proving an earlier statement to the same effect. This does not go to answer the allegation, and has no more legal relevance than any other previous consistent statement; the witness might have fabricated the earlier statement too. If however it is suggested that the witness recently (or after a certain stage) fabricated the story (possibly for a suggested motive) then an earlier statement will possess some probative effect."
218 Preston's evidence did not fall into that latter class. His evidence about what he was paid from time to time by Tognolini for marijuana did not even go to the question whether and for what purpose Tognolini may have paid Preston any money shortly after the shootings.
219 In any event the conversation relied on is not evidence suggesting that Tognolini was paying Preston $3,500 per pound of marijuana. The conversation was directed not to what "Terry" was prepared to pay for marijuana but to the amount that "Terry" wanted. Neither does it support the evidence of any such transactions having occurred in the past. The conversation occurred on 22 September 1996. What was relevant was the money that Preston had at his disposal within a short time after the shootings. Furthermore, the best evidence of any such transactions could have come from Tognolini himself. He was not called, although in his opening Preston indicated that it was his intention to do so. There was one other telephone call relied on by Preston on this topic, but it does not advance his argument.
220 As to the provision of computer services to Tognolini, there was other evidence at the trial, introduced at the request of Preston, showing that he and Tognolini had discussed the supply of computer software. There was other evidence that Preston was engaged in providing computer services to Tognolini. However, the principal telephone call which Preston seeks to have admitted to prove this relationship, during which the supply of software is discussed, is a call the transcript and tape of which was provided to Preston at the trial. It is not fresh evidence. The other tapes sought to be admitted take the matter no further.
221 As to tapes which, it is alleged, show that Preston was abandoning criminal pursuits, such calls would have been irrelevant if tendered at the instance of Preston. If used as evidence of his own good character, they would have constituted further reason for Preston abandoning his shield.
222 In our opinion it was not possible that any of these tapes, if admitted, would have led to any significant possibility that a jury, acting reasonably, would have acquitted Preston. For that reason they should not be admitted on this appeal.
223 Conversations relevant to Ivy Preston. We have already referred to the evidence of Ivy Preston concerning the existence of a gun similar to the murder weapon which was given by her to Preston at his request in late June 1996. Preston claimed that it was delivered to him at his request for the purpose of sale. We have also referred to the evidence of Ivy Preston about coming to Adelaide with her husband shortly after the shootings, and how a gun, which was subsequently proved to be the murder weapon, was put in the luggage in the boot of their car on their return to Moonta. Preston's evidence about the alleged sale of the gun was contradicted by Ronald Preston. It was important for his case that Preston should discredit the evidence of Ivy Preston. He claimed that when he received the gun from his father and Ivy Preston he gave them $1,000 by way of loan for some bathroom renovations. Ivy Preston denied that. Her evidence was that Preston gave her $1,000 on 19 August 1996, which included an amount of $800 for arrears of rental payments, and that on that day Preston offered her a loan of $1,000 to enable her to repair the plumbing at Moonta. She did not accept the offer. There was other evidence that Preston gave his father and Ivy Preston another $1,000 for rent early in October 1996. The real issue in the case which centred around Ivy Preston's evidence was whether the gun given to Preston in June was the murder weapon which was subsequently returned in the boot of the car to Moonta.
224 Three conversations recorded by listening device at various times in October 1996 are sought to be admitted. They are statements by Preston asserting that at various times he had given Ivy Preston $2,000. They are in a similar category to others, in that they are purely self-serving and breach the finality rule. They are not conversations on which Ivy Preston could have been cross-examined. They were relevant only to a collateral matter, being matters on which Ivy Preston's answer could not be challenged. They were not relevant to a matter in issue in the trial.
225 Preston's counsel also submitted, in connection with these conversations, that the prosecutor's cross-examination of Preston was unfair because tapes of two telephone conversations between Preston and his father had been destroyed. However, it seems that only one such tape was accidentally destroyed. There remains a synopsis of it, but that does not suggest that it contained any discussions about financial arrangements concerning the gun.
226 Other tapes of telephone conversations are sought to be admitted for the purpose of suggesting that marijuana plants grown at Moonta belonged to Ivy Preston and not to Preston. We agree with the submission of the respondent that the ownership of the plants was irrelevant to any issues at the trial and had no bearing on Ivy Preston's evidence relating to the gun.
227 In our opinion the tapes sought to be admitted on this general topic would have been inadmissible, and should not now be admitted.
228 Vivienne Pitts and the Camira motor car. Reference has already been made to the fact that, within a few days of his return from Melbourne after the shootings, Preston was involved in the purchase of a motor vehicle for $4,000 in cash. The vehicle in question was a Camira. It was subsequently registered in the name of Vivienne Pitts. The vehicle was purchased privately through a person named Daenke. Preston test drove the vehicle and then gave Daenke $4,000 in cash. The prosecution argued that the proper inference to be drawn from all the surrounding circumstances was that the money was part of the payment that Preston had received the previous weekend in Melbourne for his role in the killings. Preston and Vivienne Pitts both gave evidence that the vehicle belonged to Vivienne Pitts and that the money for the purchase of the car had been borrowed by her from her sister. Vivienne Pitts also said that the money had been looked after by her mother for several weeks before the purchase. Neither Vivienne Pitts' mother nor her sister were called by Preston. There was other evidence suggesting that the car in fact belonged to Preston. However, the key issue to which all this evidence was directed was the source of the monies to pay for the car.
229 Preston argues that tapes of telephone conversations between himself and a third party and of other conversations between Vivienne Pitts and third parties support the evidence of Preston and Vivienne Pitts on the topic. In the conversations to which Vivienne Pitts is a party, but Preston is not, she asserts that it is her car, but for their apparent joint use. She also says that Preston paid for it. In the conversation involving Preston he asserts that he bought the car and gave it to Pitts.
230 The tapes of conversations to which Preston was not a party would have been inadmissible at the trial as hearsay evidence. In any event, the conversations are not inconsistent with the prosecution case. The conversation involving Preston would be admissible against him, but it only goes to strengthen the prosecution case. We would not admit the evidence of these conversations.
231 The deflated tyre. We have already recited the detailed findings of the trial judge in rejecting Preston's application to exclude evidence obtained through listening devices (see Ground 4 above). The trial judge was not satisfied on the evidence before him that the tyre of Preston's car had been deliberately stabbed while it was in the car-park at the Noarlunga Centre, although his Honour allowed for the possibility that someone had interfered with the vehicle without being seen by the police. His Honour was certainly not satisfied that the police were in any way responsible for the deflation of the tyre on 18 September 1996. His Honour also found that nothing was said by the police in their discussions with Preston in the car-park about the tyre being stabbed. His Honour concluded:
"Whilst suspicion clearly falls upon the police, it was not proved that they were responsible and consequently it is not established that they were guilty of any illegal or unlawful conduct."
232 He therefore admitted evidence obtained by means of the listening devices placed in Preston's house with the aid of Preston being delayed in the car-park by reason of the deflated tyre, and on the next day, by reason of being engaged in conversations with police about the flat tyre.
233 Preston seeks the admission of recordings of additional telephone calls where tyres are referred to and of conversations in the house recorded by listening devices which are said to confirm his evidence and that of Vivienne Pitts given on the voir dire, and which may therefore have affected the trial judge's findings which gave rise to the listening device tapes being admitted into evidence. He further alleges that one of the telephone conversations and a conversation recorded by the listening device was able to refresh his memory as to where and when he purchased replacement tyres, and this would have enabled him to have made arrangements to call the repairer to prove the stabbing.
234 Apart from the conversations just referred to, the only other relevant telephone calls referred to the fact that a tyre on the car was deflated on 18 September 1996. So much was common ground.
235 There are recorded conversations where Vivienne Pitts mentions the deflated tyre. However, all of these are consistent with her evidence given on the voir dire that Preston had told her on the day of the event that he had been delayed by a flat tyre, with no suggestion from him as to the reason, and that on the following day, after his discussion with the police, he said to her that some young lads may have interfered with the car. They are also consistent with her evidence that she was the one who first observed the damage to the tyre at close quarters, consistent with a cut to its side wall. Preston's reaction to the news from Vivienne Pitts that the tyre appeared to have been cut suggests that this was something new which he would pass on to the police. There are other conversations recorded where Preston mentions the tyre. They all reflect his belief that someone had cut the tyre.
236 However, all the conversations were no more than prior consistent statements - consistent with the evidence Ms Pitts or Preston, as the case may be, gave before the trial judge on the voir dire. They do not come within any recognised exclusion. They would not have been admissible as proof that the tyre was slashed or that it was slashed by police.
237 A telephone conversation recorded on 28 September and a listening device conversation of the same day referred to the fact that on that day (10 days after the tyre was deflated) Vivienne Pitts reported to a third party that Preston had "gone down to get tyres on the car". In the listening device tape Preston referred to having taken the tyre to a particular repairer. It was that reference, he argued, which refreshed his memory about where the tyre had been repaired and his ability then to be able to call a witness from that repairer. In other words, he claimed that for the first time since preparing for his trial, he was able to establish where it was that he took the tyre to be repaired, and when. However, in giving evidence on the voir dire, he was able to say that the repairer was located just around the corner off O'Sullivan Beach Road at a point he indicated just off a map (Exhibit P1) that he was then shown. He also said that he had given the receipt for the tyres to Vivienne Pitts. In those circumstances it is difficult to conceive that he was prejudiced by not having access to the recording of that particular conversation.
238 We would not allow any of this evidence to be admitted. It could not have affected the trial judge's ruling on the admissibility of the material obtained by means of the execution of the warrant under the Listening Devices Act.
239 It follows that none of the fresh evidence comprised in tape recordings of telephone conversations and other conversations should be admitted on the appeal. There was no prejudice to Preston in the evidence that he was able to lead in his defence or in his cross-examination of prosecution witnesses brought about by his failure to have access to the relevant tapes before or during the trial. He has not, on that account, lost a chance of acquittal which was fairly open to him: Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514.
240 There remains the argument that he was cross-examined on the topic of his request for tapes so as to suggest that there had been a deliberate forensic choice made by him not to request tapes, this choice having been made in the knowledge that the content of the tapes would not assist his case, and to suggest further that his evidence about conversations which might have been recorded on the tapes was therefore false. It was suggested that the jury was left with the clear impression that Preston's failure to adduce evidence in relation to the tapes was his fault, and that the evidence of the contents of the tapes that might have been adduced was either irrelevant or contrary to Preston's sworn evidence.
241 The cross-examination in question (AB 16:5699 ff) arose when Preston was cross-examined about whether, in conversations he may have had with Vivienne Pitts on 2 November 1996, he may have told Vivienne Pitts that, consistent with his case, Ronald Preston had stolen the Econovan. He said in evidence that he thought he "probably" had told her that on that day. He said it was possible that the conversation was in a recording which had not been transcribed.
242 He was then cross-examined as to the opportunities provided to him to request transcripts of recorded conversations. He admitted that he had been provided with transcripts of any conversation which he had requested; that he had not asked for a transcription of tapes which contained a conversation between him and Vivienne Pitts in which he told her that Ronald Preston had stolen the van; and that he had not asked to be produced tapes for all conversations on 2 November. It was then put to him:
"Q. That is because you know that there is no conversation that took place on that day between you and Vivienne Pitts in which you told her that Ron had stolen the van.
243 In the course of that cross-examination Preston made it clear that he had asked for the production of "any tape recording you've ever had". He went on to explain that he had made his position clear from the beginning and that he wanted an opportunity to scrutinise all tapes of listening device conversations and of telephone calls, and of requests that he had made to his lawyers. In the course of further questioning by his Honour, he admitted that he knew that he could have any tape that he asked for, but he added, somewhat incongruously, "I didn't want to have (to) listen to two and a half months worth of surveillance though".
244 On the following day, in the absence of the jury, Preston returned to the previous day's cross-examination. He said:
"ACCUSED PRESTON: There is a matter I would like to raise. Yesterday, Mr Millsteed's conduct in cross-examining me might have led the jury to interpret the fact that I hadn't asked for particular listening device recordings. There is an indication that I was aware that there was no conversation supportive of my case on them. In fact, that's not the case at all. I always wanted those conversations. I have brought along with me correspondence that exchanged between myself and my own counsel. I made it known from my very first letter of instruction to them that I wanted all listening device conversations. As matters progressed, Mr Braithwaite prepared a draft subpoena which I have brought along with me as well, and I was always led to believe that this matter would have been dealt with with counsel, and, when the matter came to trial, there was no-one more surprised than myself when the trial proceeded and I didn't have that material.
When I discharged my counsel, the trial was already underway, and I was mindful of that fact. I did ask for certain recordings to be provided, but nobody was more keen to get the trial on and running than myself, and I realistically didn't want to sit down and listen to two and a half months worth of recordings, because I didn't know what I was looking for. There were some things that I was aware I was looking for, and those I requested. Mr Millsteed suggested yesterday to the jury that I knew there was no conversation supportive of my case, and that's not the case at all.
HIS HONOUR: There are two ways of dealing with that, Mr Preston: One is for you to respond in re-examination, as a matter of evidence; the other is to ask if you can make an explanation during the course of your cross-examination. It is for you to say which way you want to do it. You might think it is better for you if you ask to make that explanation, and then it leaves Mr Millsteed to take it up with you if he wants to."
245 In due course Preston took the opportunity offered to him and gave a full explanation to the jury in re-examination about his requests for an opportunity to listen to all tapes, his dealings with his solicitors over the matter, and how that request had not been complied with.
246 A number of observations need to be made about the course of events which we have described. In the course of the cross-examination Preston acknowledged that he had always been supplied with recordings made on any topic or any occasion which he had requested. When the question of additional conversations about Ronald Preston having stolen the van was raised in cross-examination, the cross-examination was directed only to conversations identified as having occurred on 2 November 1996. The cross-examination was testing the veracity of Preston's case that Ronald Preston had stolen the van. 2 November was significant for a number of conversations with Vivienne Pitts concerning the van because of further media coverage involving the van and the shootings that morning. It became clear that Preston had not asked to hear tapes of any conversations recorded on that day other than those which had by then been admitted into evidence. In the course of the cross-examination an offer was made to Preston before the jury to produce the tapes for 2 November. That brought the response "You can produce them if you wish".
247 It is also abundantly clear from the cross-examination that all that Preston was saying to the jury was not that there was another relevant conversation but that it was possible that there might have been, and that he did not know that there was not such a conversation. If there was any prejudice to Preston arising out of the cross-examination it was in relation to his failure to request tapes of other conversations which occurred on 2 November, which he seemed to think might be relevant, and which would have been produced to him if he had requested them.
248 Having now had an opportunity to hear the tapes as a result of this Court's order made on 13 December 1999 ((1999) 76 SASR 76 at [73]), and nothing relevant to any further conversation on 2 November on the topic in question having been produced, it is quite clear that if the tape had been available to Preston at the trial, Preston's assertion that a particular conversation could have occurred would not have been made or would have been the subject of further harmful cross-examination.
249 In the circumstances the cross-examination was fair. It did not put Preston in a bad light over his inability to listen to other tapes. When the matter of some alleged prejudice was raised before the trial judge on the next day, the trial judge accurately informed Preston of his rights, and Preston availed himself of that opportunity in terms which were not objected to and which were not disputed. There was no miscarriage of justice on that account arising out of Preston's failure to have access to the tapes.
250 It follows that no ground of appeal relating to the non-production of the taped conversations can succeed.
251 It also follows that, as none of Preston's grounds of appeal are made out, his appeal must be dismissed.
252 The jury were instructed that in order to convict Gillard of the offences it had to be established beyond reasonable doubt that he was a party to an agreement or understanding with Preston to murder Knowles and, in relation to the other counts in the information, that Gillard foresaw that the murder of Mr Richards and the attempted murder of Mr Traeger might be committed during the course of the carrying out of the plan or arrangement to kill Mr Knowles. The basis of liability is discussed further at a later stage in these reasons.
253 The case against Gillard was based principally on his admissions to the police, the unlikelihood of him not being aware that Preston intended to carry out the murders in the circumstances, the theft of the getaway vehicle, the making of the telephone call to see if Knowles was present, the burning of the van and Gillard's dealings with Preston after the shootings.
254 The police officers who gave evidence of the admissions made by Gillard were cross-examined by his counsel with a view to suggesting that the appellant was subjected to violence and duress. It was suggested that the information which the appellant gave concerning his involvement in the matter was obtained from the police officers and then fed back to them in the answers to their questions. These allegations were denied by the police officers and the appellant Gillard did not give evidence at the trial. As the trial judge told the jury, it remained for them to decide whether the admissions were made and whether they were truthful in so far as they implicated the appellant.
255 Furthermore, the trial judge dealt at some length with Gillard's assertion in the police interviews that he thought Preston was involved in a robbery and not a murder. His Honour directed the jury that if there was a reasonable possibility of this being true, then Gillard could not be found guilty of any offence.
256 It was not argued on appeal that there was insufficient evidence for the jury to find that the admissions were made and that they were truthful up to the point where the appellant denied his involvement in a plan to commit murder. However, it was argued before the jury that the admissions, if proved, and the remainder of the evidence against Gillard could not support a verdict of guilty of the offences charged.
The directions on the exculpatory portions of Gillard's interviews with the police
257 At the hearing of the appeal Mr Peek QC, for Gillard, placed particular stress on the exculpatory aspects of the interviews between his client and the police. It was claimed that the learned trial judge failed to direct the jury adequately on the way in which to approach a consideration of the exculpatory portions of the interviews.
258 It is well settled that where the prosecution tenders a statement which contains a mixture of admissions and self-serving statements, the whole statement goes before the jury and it is for the jury to decide what weight they will attach to the various parts. (Griffiths v The Queen [1994] HCA 55; (1994) 69 ALJR 77 at 81; M v The Queen [1994] SASC 4618; (1994) 62 SASR 364 at 369; Spence v Demasi (1988) 48 SASR 538 at 540). The failure of the accused to give evidence is a matter which the jury is entitled to take into account when evaluating the self-serving statements.
259 The issue raised by the exculpatory statements in the interview was an important aspect of the case because it went to the question of whether the appellant Gillard had been party to a common enterprise to murder. However, because it was an important part of the case, the learned trial judge gave extensive directions in relation to it. His Honour recognised that, although the effect of the defence case was to deny the reliability of anything said in the police interviews, it was essential to direct the jury on any matter which reasonably arose on the evidence even though disavowed by the defence (Pemble v R [1971] HCA 20; (1971) 124 CLR 107 at 117-118).
260 We have referred already to the directions given by the trial judge that murder and not just robbery must have been in the contemplation of the appellants. When summarising the police interviews the trial judge reminded the jury of the exculpatory aspects of the interview as well as those matters which were inculpatory. He reminded the jury that Gillard said he was not given any inducement or money and that he thought he was going "nicking and stealing". He referred to Gillard's comment to the police officers that he thought it was a robbery and that he did not see the gun which was used in the shootings before Preston went into the workshop. His Honour reminded the jury of Gillard's claim that he was not aware, at the time, that the men were killed and that Mr Traeger was shot. The jury were also reminded of Gillard's statement that Preston did not say anything to him when he got back into the van and that he found out about the murders that night.
261 Later in his summing-up the trial judge returned again to what he called "the alternative defence" which was raised by the statements of the appellant Gillard in his interrogations. His Honour said:
"You are the sole judges of the facts. It is for you to say what facts you have found proved and what matters you accept as a reasonable possibility. It is within your province as the judges of the facts to reject the approach of the accused Gillard of this trial and to consider whether the Crown is able to prove any of the charges against him on the facts as you find them to be. Let's approach the matter on the basis that you find the accused told the truth when he spoke to the police. He said that he had no idea there was to be a murder or a shooting. He did not know that the accused Preston had a gun. He thought they were going nicking as they had before. He didn't pull the trigger. He didn't go into the workshop. You'll remember the directions that I've given you about joint criminal enterprise and of which I've just recently reminded you. If you conclude that what the accused Gillard told the police was true, then [sic] there was no common enterprise or agreement then the accused Gillard would not be guilty of any charge. If one man goes there with one purpose in mind and the other goes there with a totally different purpose in mind, then there is no common purpose. So, if [sic] perpetrator went there to kill Mr Knowles and the accused Gillard went there to carry out theft, nicking or robbery, then there would be no common purpose. You might think that his conduct in agreeing to participate in the robbery would be reprehensible but he is not charged with that offence and, as we know, there was no robbery.
It seems clear, does it not, from the evidence of Mr Traeger and Mr Leane, that the perpetrator of the shootings was not about robbery. It appears that no money or property was taken. And also, ladies and gentlemen, you'll remember my direction to you that the accused does not have to prove any explanation consistent with his innocence or any defence. It's the Crown which must prove beyond reasonable doubt that there was a joint criminal enterprise by the two accused with the common purpose to murder Mr Knowles.
Ladies and gentlemen, I have reminded you of the salient features of the Crown case and that is that you should reject this explanation by the accused Gillard because it doesn't stack up with the known facts that he must have known that there was a shooting to take place and that he is the one who rang up and asked [sic] Mr Knowles, and I won't go over those matters again, but if you accept the Crown case, then, of course, you reject this alternative defence as I call it.
I'm not suggesting what conclusion you should reach. I'm merely raising for your consideration the matters which seem to me to arise for your consideration.
Is it a reasonable possibility that, given the nature of the relationship between these two men, and the nature of the personality of each of them, as you are able to find it to be, that the accused Gillard would simply do what asked to do without enquiry, without information and without knowing what was to happen? Is it a reasonable possibility that the accused Gillard believed that they were going off to do some stealing or a robbery and that murder was something that he never knew about, never contemplated and was in the mind only of the perpetrator."
262 In our view the directions on this aspect of the matter were adequate. The jury were left in no doubt as to the requirement to consider the version provided by Gillard to the police and it was made clear that he was entitled to a verdict of acquittal if that version was reasonably possible.
263 Various criticisms were made of the trial judge's directions on circumstantial evidence. In particular, it was claimed that his Honour failed to relate the directions sufficiently to the issue of complicity and that he failed to give a Peacock direction (Peacock v The King [1911] HCA 66; (1911) 13 CLR 619).
264 If the jury decided to act upon the admissions made by Gillard in the course of the police interrogations, there was evidence that Gillard stole the vehicle which was used in the venture, drove Preston and himself to the scene, rang the premises to ensure that Knowles was present, waited in the vehicle while Preston entered the premises and drove the vehicle away from the premises before destroying it, presumably to leave no trace of the use of it by Preston and himself. There was, therefore, clear evidence of actions consistent with involvement in the offences with which he was charged. However, the prosecution was required to go further and establish complicity in the offences charged in the information. The trial judge directed the jury that as part of that requirement it was necessary, in the circumstances of the case, to exclude as a reasonable possibility the proposition that, to Gillard's knowledge, the plan was restricted to an intention to rob.
265 The first step in the process of assessing the evidence in relation to complicity was to enquire what, as a matter of law, had to be proved. We have no doubt that the directions on this aspect were adequate. Some of the relevant directions are set out above. The jury were told that a common understanding was required before Gillard could be convicted of any offence and that the understanding must have encompassed an intention to murder.
266 The next step was to consider the nature of the evidence upon which the prosecution relied to establish complicity. This evidence depended for its efficacy on inferences to be drawn from proved facts. It was for this reason that Mr Peek submitted that the case called for a Peacock direction with specific instruction being given that the jury should not draw an inference of guilt unless there was no other explanation consistent with innocence which was reasonably open on the evidence.
267 Whereas such a direction is appropriate in certain cases, particularly those depending entirely or substantially on circumstantial evidence, the direction is not called for in every case involving deduction from proved facts. Such a direction was held to be inappropriate in La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62, a murder case in which the state of mind of the accused was the principal matter in issue. (See also Dean v The Queen (1995) 65 SASR 234 at 240).
268 In Britten v The Queen (1988) 49 SASR 47 the main issue for the jury was whether the accused Britten contemplated that there was a substantial risk that his co-accused would deliberately shoot somebody as they entered the premises on which the alleged offences took place. The learned judge gave the jury a direction which would have been relevant if the case had been based on circumstantial evidence. King CJ commented on this aspect (54):
"I do not think that the necessity of inferring the accused's state of mind from surrounding circumstances is sufficient to justify the onus of proof direction appropriate to cases of circumstantial evidence. There are possible views of the facts which could give the case a circumstantial component. I dare say the learned judge had that in mind in giving the direction, but he referred the jury only to the question of the accused's state of mind. I consider that in the absence of an explanation relating the direction to possible views of the evidence which would give the case a circumstantial component, the circumstantial evidence direction was inappropriate. This is made clear by La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62. The same case makes it clear that the circumstantial case direction ought not to be given unless the case does depend at least in part upon circumstantial evidence."
269 A similar situation arose in Tillott (1991) 53 A Crim R 46. The appellant was charged jointly with another accused with being armed with intent to commit an indictable offence. It was argued on appeal that a circumstantial evidence direction should have been given. Hunt J said (50):
"It was submitted that the Crown case, both as to the actions done by the accused and as to the state of mind with which those actions were done, relied substantially upon circumstantial evidence, so that such a direction was required: Barca [1975] HCA 42; (1975) 133 CLR 82 at 104; Chamberlain (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 536, 570, 599. Even in a truly circumstantial case, however, the obligation to give such a direction is not an inflexible one: Grant [1905] ArgusLawRp 161; (1975) 11 ALR 503 at 504; Shepherd (No 5) [1990] HCA 56; (1990) 170 CLR 573 at 578; [1990] HCA 56; 51 A Crim R 181 at 183-184.
In the present case, it is necessary to look first at the extent to which the actions of the two accused (as opposed to the intention with which they were done) were to be established by circumstantial evidence. This was not, in my opinion, a case in which a circumstantial evidence direction would have been appropriate in relation to those actions. It is true that certain inferences were required in relation to the physical acts done, but the central issue in the case was whether the appellant was a party to a joint enterprise with Wilson to commit an armed robbery of the Auburn Hotel. That was an issue relating to the appellant's state of mind.
The one situation in which it has certainly not been the practice to give a circumstantial evidence direction is where the only inference (or the only substantial inference) which has to be drawn is one as to the accused's state of mind. Where (as in the present case) there is no evidence by way of admission as to what an accused's state of mind was, that state of mind must always be established by way of inference - usually from what the accused has said or done; a person's actions often provide the most convincing evidence of the intention with which he does those actions. In such cases, that practice has existed because no circumstantial evidence direction is required by law.
In McGreevy v DPP (1973) 57 Cr App R 424 at 437-438, Lord Morris (with whom the other members of the House agreed) saw no advantage in giving such a direction where the accused's state of mind is the only ingredient of the crime which could not be established by direct evidence. The practice in relation to giving a circumstantial evidence direction in relation to any issue is, of course, less rigid in England than it is in Australia: Barca at 104-105. However, in La Fontaine [1976] HCA 52; (1976) 136 CLR 62 at 71-72, 81, 85, it was said quite unequivocally that no question of circumstantial evidence arose in a trial for murder where there was direct evidence of the act of the accused which caused the death charged but where an inference had to be drawn as to the intention with which that act was done. In that case, that state of mind was the only real issue."
270 In our view, the judgments in Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 are not inconsistent with the views expressed in the cases to which we have referred. When dealing with a ground of appeal which alleged that a finding that the accused was guilty of attempted murder was unsafe and unsatisfactory, the court pointed out that the only real issue was the state of mind of the accused. Mason CJ, Dawson and Toohey JJ held that, in the circumstances of the case, the question on appeal was whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired the gun without an intent to kill. It is true that this echoes the language of Peacock's case as well as two cases cited in the judgment, Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 and Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 243. However, their Honours were not commenting on the manner in which the issue should have been left to the jury; they were expressing a test which they considered appropriate to employ when deciding whether the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the appellant.
271 The appropriate direction to give in a particular case will depend on the circumstances of that case. In the present case the main issue was whether Gillard took part in a joint criminal enterprise in which murder was contemplated. The prosecution were required to prove this element beyond reasonable doubt. The appellant Gillard asserted in his interviews with the police that only robbery was contemplated and so it was appropriate to direct the jury that, if the version given by Gillard to the police was reasonably possible, then he was entitled to an acquittal. In explaining the onus and standard of proof in their application to this process, we think the traditional terminology of proof beyond reasonable doubt was appropriate. It was pointed out in Knight v The Queen (p 502) that the circumstantial evidence direction is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt.
272 On a number of occasions throughout his summing-up the learned trial judge directed the jury that it was essential to find a common enterprise to murder proved beyond reasonable doubt and that if the evidence raised a reasonable possibility that robbery only was contemplated, the appellant Gillard was to be acquitted.
273 At one point in the summing-up the jury were directed as follows:
"If you accept beyond reasonable doubt the evidence of the police officers and that the admissions of the accused Gillard are reliable, then you must consider whether he has told the truth about his involvement. You will remember my directions to you. If you conclude beyond reasonable doubt that there was a joint criminal enterprise between the two men with the agreed common purpose to murder Mr Knowles then you will find the accused guilty of the first charge. If you have a reasonable doubt about the existence of the necessary elements or any of them of such a joint criminal enterprise you will find the accused Gillard not guilty."
274 In the passage set out in para 273 above the trial judge related these directions to the exculpatory portions of the police interviews. He made it clear to the jury that an understanding on the part of Gillard that no more than a robbery was contemplated would not be sufficient to implicate him in the murders or the attempted murder. As will become apparent later in these reasons, the trial judge gave similar directions when answering jury questions.
275 In addition to this assistance the learned trial judge gave the jury extensive directions on the nature of circumstantial evidence. He told the jury that circumstantial evidence can assist in deciding important issues in the case and he illustrated his explanation of circumstantial evidence with an example. He directed the jury that the only facts which they were to consider in assessing this issue of complicity were facts established beyond reasonable doubt. When dealing with circumstantial evidence generally, he gave the jury a direction which could be described as a Peacock direction. He said:
"Ladies and gentlemen, when you have marshalled all of these relevant facts which you have accepted as being proved beyond reasonable doubt, and you consider what inferences you are to draw from them, you must not draw an inference that the accused, or either of them, were involved in the murders unless you are able to exclude any reasonable possibility to the contrary. You cannot infer that the particular accused whom you are considering at the time was involved in the murders from circumstantial evidence, unless you are able to exclude any reasonable possibility that he was not involved, because you cannot find an accused guilty unless you are satisfied of his guilt beyond reasonable doubt."
276 It is true that his Honour was there speaking in a general way and he referred to the appellants, or either of them, being "involved in the murders", but other directions identified the extent of the involvement which had to be proved in the case of the appellant Gillard before he could be convicted of the offences charged.
277 In our view, the issue of Gillard's complicity was explained to the jury in an adequate fashion. The requirements necessary to found a conviction based on complicity were identified and accurate directions were given in relation to the onus and standard of proof. The evidence relied upon by the prosecution to establish complicity was identified as was the exculpatory material in the interrogations which, if found to be reasonably possible, would require an acquittal.
The association between Gillard and Preston after the shootings and the directions on the lie which it was alleged arose out of this evidence
278 There was evidence of a continued association between the appellants after the shootings. The prosecution argued that this was inconsistent with the version Gillard provided to the police. First, it was said that it was unlikely that Gillard would have associated with Preston after the incident if, as Gillard said, the shootings were a complete surprise to him and Preston told him nothing about the shootings even after they had taken place. Secondly, it was argued that Gillard told a lie to the police about the extent of his association with Preston after the shootings. The learned trial judge directed the jury that the alleged lie was capable of being used as positive evidence of guilt.
279 Mr Peek argued that the evidence of association did not support the prosecution case. He said that, in any event, the trial judge failed to give adequate assistance to the jury in relation to their approach to this evidence. Mr Peek also submitted that the trial judge erred in directing the jury that the alleged lie could be used for the purpose indicated by the judge.
280 In order to address these arguments it is necessary to have regard to the evidence relating to the association between the two men after the shootings and what Gillard said to the police on this topic.
281 There was evidence that the two had seen each other on a number of occasions after the day of the shootings. According to the evidence of Preston, Gillard went to his home on Monday 19 August and assisted Preston's father and step-mother load their trailer. According to Preston he asked Gillard to give the gun which had been used in the shootings to Preston's father so that it could be taken up to Moonta. Preston said he did not tell Gillard that the gun had been used in the shootings. Gillard told Preston at a later stage that he had done as requested.
282 Preston also gave evidence that Gillard looked after his house when he, Preston, went to Melbourne on the weekend following the shootings. He drove Gillard home after he returned from Melbourne. Gillard came back the following day and helped load the trailer.
283 According to the evidence, Gillard looked after Preston's home on subsequent occasions. The first was on 31 August and 1 September 1996. Then, when Preston went to Melbourne again on 13, 14 and 15 September Gillard looked after the house. It appears from telephone interceptions that Gillard rang Preston twice on 2 October 1996. There was further evidence that on 16 October Gillard rang Preston on his mobile telephone and went to meet him at his place of work. He paid back $70.00 he owed Preston and went home with him on that evening although he did not stay the night.
284 During Gillard's first interview with the police on 13 December 1996 the following conversation took place:
285 In the course of the second interview on 13 December Gillard was asked further questions concerning the extent of his contact with Preston after the shootings:
"Q What was the next contact you had with Gerry Preston?
A I don't know, day or so later. Two days later I suppose.
A Oh I can't - Word for word I can't really, but 'Are you alright?' 'Yeah.' I know I was just like a stunned. I'd been like a stunned mullet ever since. Like a week after I found out what had happened I, I was just a fucking mess. I just drunk for a fucking week.
Q Did Gerry give you any instructions as to what to do from that point on?
A I don't know if he would have got money from there or not.
A From the, from the factory. I don't know, and I mean if I would have known anything like that was happening - You know, I mean robbing someone, but killing someone's a different fucking story. Something I wouldn't participate.
Q Did you have any other contact with Gerry after that?
A Oh I saw him probably, you know, sort of like after I found out things were just different. I just weren't, weren't the same fucking bloke. I knew I was wanted for murder, or attempted murder, or whatever it was - accessory to murder, and I was just a fucking babbling idiot.
Q Did you receive any, any money or any other benefit as a result of the activities that you -
A Honestly I can't recall. I have no idea, no idea."
286 The fact and extent of Gillard's association with Preston after the shootings were relevant issues. The effect of Gillard's version to the police officers was that Preston had involved him in serious offences without telling him about the true purpose of why they went to the workshop. He said he "nearly died" when he heard on the news what had happened. And yet he had significant and apparently amicable contact with Preston shortly after the shootings and for some time thereafter.
287 There is no substance in the argument that the trial judge failed to give adequate assistance to the jury on this topic. He explained the nature of the prosecution argument and, after a request from Gillard's counsel, he mentioned some of the defence arguments, namely, that Gillard might have been acting out of loyalty to Preston; that he might have associated with Preston because he was fearful of him; and that he might have been there because he did not know what else to do. He did not mention the further argument that Gillard might not necessarily cut off all association at once, but that seems to have been implicit in what the trial judge did say about the defence arguments.
288 The more contentious issue is whether Gillard's comments to the police about the extent of his contact with Preston disclosed a lie told out of a consciousness of guilt.
289 In his directions to the jury the learned trial judge focused on the interview of 12 December. The effect of what Gillard said was that he had nothing to do with Preston after the shootings, although he may have spoken to him. He said he could not recall if he had spoken to him.
290 The trial judge gave a direction which was in accordance with Edwards v R [1993] HCA 63; (1993) 178 CLR 193. He told the jury that they had to decide whether Gillard's statement was a lie. He explained that the mere fact of telling a lie is not, of itself, evidence of guilt as opposed to being relevant to credibility. However, he explained that a lie might provide evidence of guilt if it was told by the appellant as a result of a realisation of his guilt and an awareness that the truth would implicate him in the crime.
291 His Honour then expanded on these directions and told the jury that the lie must be in relation to a matter material to guilt or innocence of the charges against the appellant. He warned the jury that they should not be too ready to view the telling of a lie as indicative of a consciousness of guilt and explained that people tell lies for motives which have nothing to do with the alleged offence.
292 In our view, it was appropriate to leave this evidence to the jury as being capable of disclosing a lie told from a consciousness of guilt. If the jury accepted the evidence to which we have referred Gillard had extensive contact with Preston after the shootings and this does not align with the impression he created in the first interview. On one view of the matter the extent of the contact does not sit well with the attitude to be expected of a person who was used in the manner alleged by Gillard. This issue was quite material to the case and capable of being viewed as a lie told because the truth would tend to implicate him in the offence. Of course, it was open to the jury to reject this motive, but that should not have prevented the matter being left to the jury on the basis put by the trial judge. The reticence to disclose the extent of the contact between the two men is apparent in the subsequent interview, but the most important evidence resides in the first extract quoted above.
293 It was argued that, even if Gillard did tell a lie, it might have been because of his involvement in other offences such as the theft and arson of the van and acting as an accessory after the fact. He had also acted as the getaway driver in what he viewed as a criminal enterprise. However, his involvement in these matters was disclosed by him in the same interview. He was not hiding his involvement in those respects. If he had been involved in the murders, however, he had good reason to play down his role in the manner suggested by the prosecution.
294 There is no merit in the further argument that, because other possible lies were mentioned by the learned trial judge elsewhere in his summing-up, the jury may have been given the impression that they could use these lies also as positive evidence of guilt. It was said that this impression might have been contributed to by the fact that his Honour referred on occasions during his summing-up on this issue to "lies" as opposed to the particular lie under consideration. His Honour appears to have used the plural noun when speaking in a general way about the relevant law, but he made it clear in the same direction that the only lie which was relevant to the consciousness of guilt direction was that relating to the extent of contact with Preston.
295 In any event, the trial judge redirected the jury on the issue at the request of Gillard's counsel. He said:
"The second thing is that I am not talking here about everything that you might find in your deliberations to have been a lie. I am talking about that particular lie that he had not seen the accused Preston again. You will remember that later on in a subsequent interview he said that he did see him a few days later, and that was the occasion that I mention the ignition switch. If you do find that the accused Gillard told other lies, for instance that he didn't know of or didn't know Mr Tognolini, or he had not heard shots fired and things like that, they are matters that you might consider when you evaluate the overall credibility of what the accused Gillard said to the police, but they are not matters about which you should regard as positive evidence of guilt because of their having been told out of the consciousness of guilt. It is just that one lie that I was referring to that he had no subsequent association with the accused Preston."
296 After this redirection there was no room for any confusion; the trial judge was clearly confining the matter to the one statement by the appellant.
297 The learned trial judge referred to the fact that some time after the shootings Gillard went to Queensland. After reminding the jury of Gillard's demeanour during the police interview in Queensland his Honour gave the following directions:
"Does the demeanour of the accused assist you to decide whether he went to Queensland to get away from the consequences of the murders and from the accused Preston, or from someone else? When you do consider this evidence, with the evidence that the accused Preston was looking for him in Adelaide, and that the two accused were not in contact, do you reach the conclusion that the accused Gillard went to Queensland because of his involvement in the murders? Of course, you should not reach this conclusion having considered this matter standing alone, but you must consider whether you reach that conclusion upon consideration of all of the facts and circumstances.
Or is this the sort of thing that the accused Gillard normally did, that he would settle for a while in a particular location, and then he would go away, as the accused Preston told you, and is supported, to some extent at least, in the past, by the evidence of Vicki Preston."
298 Mr Peek criticised these directions. He said the evidence was equivocal and he referred to R v Power and Power [1996] SASC 5653; (1996) 87 A Crim R 407 where Doyle CJ considered the directions which were appropriate where there was evidence of flight. The Chief Justice commented on the fact that it will not be often in such cases that the evidence will be unequivocally indicative of guilt. He expressed the view that where the evidence was not intractably neutral it was appropriate to follow the course indicated by Sheperdson J in Melrose (1987) 30 A Crim R 232 at 338-339:
"I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person's flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference."
299 It appears from the direction given by the trial judge that he was not prepared to suggest to the jury that, by itself, the fact that Gillard went to Queensland was suggestive of guilt. In any event, his direction was even-handed and we do not think it could have occasioned any unfairness to the appellant Gillard.
300 Complaint is made of the trial judge's directions in relation to evidence of Gillard's bad character. No point is taken that such evidence was improperly adduced. There was evidence before the jury that Gillard had been involved in robberies. He also spoke about stealing Ford Econovans on previous occasions and he mentioned that he had stolen computers.
301 The trial judge told the jury that this evidence was relevant to Gillard's credibility. He continued:
"Under our law, the guilt of a person must be proved by evidence of the offence or offences charged against the accused, and the verdict is not to be influenced by prejudice arising from the past of the accused. It is important that you not attach any greater relevance to the evidence of the past record and character of the accused than it properly bears. It may affect your estimate of the credibility of the accused Preston as a witness. You may have regard to his true character when considering what weight you should attach to his evidence, or, in the case of the accused Gillard, to his statements to the police. You are entitled, if you think fit, to consider that the word of one or both of them is less to be trusted by reason of bad character.
The evidence reflecting on the character of each accused is not, however, evidence that he committed the crimes charged. It would be wrong to reason, in relation to either of them, the accused is of bad character, and therefore is more likely to be guilty.
Also, it would be wrong to say that either accused committed offences in the past, therefore he probably committed these offences. To do that would be contrary to fairness and to the law, because the law, in its wisdom and fairness, provides that an accused person is not to be judged by his past, but by the evidence as to the conduct which is the subject of the charge."
302 First it was argued that this evidence was not relevant to an assessment of Gillard's credibility. It is well established that evidence of bad character may be relevant to the general credibility of a witness (The Queen v Fricker (1986) 42 SASR 436 at 440). In our view there is no reason why a distinction should be drawn between the assessment of credibility in relation to a version given to a police officer on the one hand and before a jury on the other. Before the jury could give any effect to the appellant's exculpatory statements they were required to assess them. As we have said, they were entitled to take into account that the appellant failed to give evidence. The jury did not have the advantage of hearing Gillard give evidence on these topics and be cross-examined on it. We do not think that the process of assessing the explanation he gave to the police should be further restricted by preventing the jury from taking bad character into account when considering the credibility of Gillard in the context of the making of the statements.
303 Nor do we think that the direction was legally incorrect. In Fricker's case it was not established that the conviction disclosed was relevant to the issue of credibility. The nature of the offence which was the subject of the conviction was not known; nor were the circumstances in which it occurred. This is not the position here. The appellant Gillard admitted to various offences of dishonesty and, in our view, this consideration is of some relevance in assessing his credit.
304 The trial judge was criticised for not specifically directing the jury that the evidence of previous offending was also relevant to Gillard's claim that he thought that a robbery was planned and not a murder. However, the judge reminded the jury of the references by Gillard in the police interview to this reasoning when Gillard said that he thought it was a robbery because "that's all I do". The reminder took place as part of the directions on bad character and there was no suggestion by the trial judge that the evidence could not be used in the manner now argued for by Gillard's counsel. The fact that it could be so used was self-evident.
305 The learned trial judge gave the jury the usual warning pertinent to the evidence of accomplices in relation to the witnesses Ronald Preston and Ivy Preston. The warning was also given in relation to the evidence of Michael Slobodian who stated that he made false number plates for Preston shortly before the shootings. It was argued that the jury might have applied these directions in some way adverse to Gillard because the prosecution alleged that he was an accomplice. In our view there was no such danger. The directions were concerned with evidence which might be used to convict one or both of the appellants. They could not reflect adversely on Gillard who did not give evidence and whose statements to the police which were aimed at exculpating him could only be used in relation to his own case.
306 Mr Peek criticised an argument put forward by the prosecution at trial that Gillard was vague in his interrogation by the police when talking about the plans for the robbery. There was no reason why this argument should not have been put to the jury. There was an obvious vagueness in the appellant's version to the police as to how he understood the robbery would be carried out. It might be expected that, in those circumstances, he would have asked for more details from Preston as he was to be involved in a serious offence. On the other hand, if the plan was to murder then there would have been no discussion as to how a robbery was to be carried out. The prosecution quite properly pointed out that a reason for the vagueness might well have been that no discussion concerning a robbery took place.
307 The learned trial judge commented on the appellant Gillard's failure to give evidence in the following terms:
"I now turn to the course which the accused Gillard took at this trial. He did not give evidence, he remained silent. He is not obliged to give evidence, he was perfectly entitled to adopt the course which he did. He was entitled to remain silent and see if the Crown has proved the case against him. You must not assume that he is guilty of any of the charges because he did not give evidence. True it is that you have been deprived of hearing what he has to say and of hearing his version of events such as it might be tested in cross-examination, but you must not assume him to be guilty or to draw any inference of guilt because he has not gone into the witness box. Of course, his not giving evidence has, as I say, deprived you of hearing from him and has left evidence in the Crown case which incriminates him, you might think, or may incriminate him, uncontradicted, and you will bear that in mind when assessing the weight which is to be attached to the incriminating evidence.
Furthermore, his not giving evidence in the circumstances means that there is no evidence at all to support the various allegations made to police officers by his counsel, mainly about the circumstances in which he made various admissions to the police, and also about other matters. I shall mention those matters later, however I repeat that you must not assume that he is guilty or draw any inference of guilt against him because he has not given evidence."
308 Gillard's counsel at the trial asked the trial judge to advise the jury that there may be reasons why the appellant did not give evidence which "may be unknown to the jury". The trial judge replied that he was not prepared to give that direction because there was no evidence to support it. It was argued on appeal that the judge erred in refusing to direct the jury further.
309 There was nothing to prevent the trial judge from telling the jury that there are many reasons why an accused person may not want to give evidence and that the jury must not speculate as to why the accused has not given evidence. As the High Court pointed out in RPS v The Queen [2000] HCA 3; (2000) 168 ALR 729 at 733 this is an acceptable direction. However the aim of a direction on this topic should be to discourage the jury from adopting an impermissible chain of reasoning and, in our view, this was fulfilled in the present case when the trial judge told the jury that the appellant was perfectly entitled to adopt the course which he did and that they should not assume guilt because he did not give evidence. It was not essential to add to that an observation that there might be many reasons for a decision not to give evidence.
310 Various criticisms are made of the directions given by the trial judge on the issue of complicity.
311 The trial judge commenced his directions on this topic by advising the jury that, in order to convict Gillard of any offence, it was necessary for the prosecution to establish beyond reasonable doubt that there was a common understanding or agreement between him and Preston to murder Knowles and the other two victims. His Honour said:
"The basic legal principle is that if two or more persons act together in pursuance of a common unlawful purpose, every act done in furtherance of that purpose by any of them, if there were more than two, either of them, if there were two, is, in law, done by them all. In other words, the combined actions of two or more persons with a common criminal intent which is previously agreed upon by them will make them all guilty of the resulting crime."
312 After discussing the application of this principle to the facts of the case his Honour continued:
"In order to prove that a person who is not the actual perpetrator, not the shooter, is guilty of the crime charged, it is necessary for the prosecution to prove the following matters beyond reasonable doubt:
First, that the alleged crime was committed. You might think there is no doubt about that, Mr Knowles was murdered.
Secondly, that the non-perpetrator was party to a common purpose or agreement with the actual perpetrator to commit that crime. Later, ladies and gentlemen, we will look at the evidence in a little more detail that points in that direction.
The third matter is that the common purpose or agreement included the commission of the crime charged. In this case it was to murder Mr Knowles, but when you come to consider the second charge and the third charge, then this third element becomes of more importance: Was it part of the common purpose to murder Mr Richards or to attempt to murder Mr Traeger?
Let's just stop for a moment, ladies and gentlemen, and think about this. This doctrine of joint criminal enterprise involving the common purpose does not affect the case against the perpetrator. The perpetrator is guilty or not guilty due to the perpetrator's own actions and state of mind. What we are talking about is the non-perpetrator. Do you understand that? Let me put that to you again.
If the accused Preston was the shooter, then his guilt or innocence depends upon proof of the matter. If the accused Gillard is not the shooter, but was present in the van, his guilt or innocence depends upon this doctrine of joint criminal enterprise.
There is a fourth matter: That the non-perpetrator was present at, or in the vicinity of, the scene of the crime, either playing his part in carrying out a common purpose, or ready to do so if required."
313 In his address to the jury the learned Crown prosecutor argued that Gillard could also be found guilty of murder if he drove the van believing that Preston was going to commit a robbery and foreseeing the possibility that, in the course of carrying out the robbery, Preston might commit murder. This was put on the basis that a person who is a party to a joint enterprise to commit a crime is liable for any crime which he or she foresees as a possible incident of the originally planned venture.
314 The learned trial judge told the jury that they were not to accept this proposition and that Gillard could not be convicted of murder other than in accordance with the direction on common purpose which we have set out above.
315 The trial judge then turned his attention to counts 2 and 3 in the information. He said:
"If you reach the conclusion that the joint criminal enterprise was limited to the murder of Mr Knowles, and that what happened to the other men was spontaneous, unplanned activity by the perpetrator, then, under this principle, the accused Mr Gillard would not be guilty of the murder of Mr Richards, or the attempted murder of Mr Traeger. However, there is another way in which he could be guilty, if the murder of Mr Richards and the attempted murder of Mr Traeger was not directly included as part of the common purpose. It is this: if there was this common purpose between the two accused to murder Mr Knowles, but not anyone else, the accused Gillard, as the non-perpetrator, could nevertheless be guilty of the crime of murder of Mr Richards if he foresaw that the murder of Mr Richards might be committed during the course of carrying out the plan or arrangement to murder Mr Knowles. The same consideration applies to the attempted murder of Mr Traeger. Each must be considered separately, but I expect that you may well reach the same conclusion with respect to both of them.
There does not seem to be any evidence, ladies and gentlemen, to suggest that the accused Gillard knew Mr Richards or Mr Traeger. It is not suggested that he, as far as I understand the case, would actually have foreseen the shooting of those two particular men. Such a suggestion couldn't be supported by the evidence. However, what is suggested by the Crown is that, in participating in the common enterprise to murder Mr Knowles, the accused Gillard foresaw that others present, or nearby, at the time, might be shot, to kill them, and he nonetheless continued with the joint criminal enterprise to murder Mr Knowles. If that matter is proved beyond reasonable doubt, then the accused Gillard would be guilty of the murder of Mr Richards and the attempted murder of Mr Traeger."
316 His Honour gave further directions in relation to counts 2 and 3 at a later stage in his summing-up:
"You will remember my direction to you that there are two ways in which the accused Gillard could be guilty of the murders and attempted murder. The first is if the Crown proved beyond reasonable doubt that the accused Gillard participated in the joint criminal enterprise. The Crown must prove that he acted with the accused Preston in pursuance of a common purpose with a common criminal intent which was previously agreed upon by them, and that common purpose was the commission of the crime charged. I have been discussing the charge of murder of Mr Knowles. It is for you to say whether the elements of common enterprise have been proved.
Here the evidence does not directly suggest that there was an actual agreed common purpose to murder Mr Richards or Mr Traeger, so I remind you of my directions about the second way in which the accused Gillard could be guilty of the murder of Mr Richards and the attempted murder of Mr Traeger.
If you accept beyond reasonable doubt that there was a common purpose agreed upon by the two accused to murder Mr Knowles, but not anyone else, the accused Gillard would be guilty of the charge of murder of Mr Richards if he foresaw that that crime might be committed during the course of carrying out the plan or arrangement to murder Mr Knowles, and nonetheless continued with the joint enterprise to murder him. The same consideration applies to the attempted murder of Mr Traeger.
If you reach this conclusion, that there was a joint criminal enterprise with a common purpose to murder Mr Knowles, and nothing else, then the accused would be guilty of the first charge of murdering Mr Knowles, but not guilty of the second charge or the third charge unless the Crown prove beyond reasonable doubt that the accused Gillard foresaw that that conduct, that is the shooting of Mr Richards and Mr Traeger, might occur in carrying out the common purpose of murdering Mr Knowles.
To take you back to the word you mentioned, 'spontaneous'. If you were to conclude that it was a reasonable possibility that all that happened was that the accused Gillard didn't foresee that those shootings would occur, and they were merely spontaneous shootings by the perpetrator and not part of the common enterprise, then the accused Gillard would not be guilty of the second charge or the third charge."
317 Additional directions on complicity were given in answer to questions from the jury. The first question was raised in the course of the summing-up.
"JUROR: Can you clarify something for us we are not sure of? You were saying the bit about if one went with the intention of murder and one went with the intention of robbery. No common purpose at all. If the gun was seen by the person who was going for the robbery are they still guilty of murder?
HIS HONOUR: That depends upon what ultimate conclusion you reach. The seeing of the gun in the circumstances that you've mentioned may indicate to you, as the finders of fact, that the person who said that he thought there was going to be a robbery was not telling the truth.
JUROR: If he is telling the truth that is was only a robbery?
318 The second question was asked in the course of the jury deliberations. The jurors returned to the courtroom and the following discussion took place:
"HIS HONOUR: Ladies and gentlemen of the jury, I have your question which I have revealed to counsel and Mr Preston, and I will answer it. The question is:
'If person A goes with the intention of murder, person B goes with the intention of robbery, person B sees the gun beforehand, can person B be innocent of murder if he could have foreseen that someone could have been killed?'
I answer it in this way: you appreciate that, as I directed you before, when you get to this stage of the case you are considering a question of criminal responsibility of the non-perpetrator, the person who did not do the shooting. For the person who did not do the shooting to be guilty of the crime, and here we will focus only for the moment on the crime of the murder of Mr Knowles, then that person is guilty if there is a joint criminal enterprise between the two men with the common purpose of murdering Mr Knowles. You will remember I told you of the four matters that must be present.
In order to find Mr Gillard guilty of this charge of the murder of Mr Knowles you must be satisfied beyond reasonable doubt that this joint criminal enterprise with that specific common purpose existed at a time before the killing.
What you must do then is to reach your conclusions about the facts, what occurred, and then apply the law to those facts. You will remember my direction to you than an accused person does not have to prove any defence or explanation consistent with innocence. It is for the Crown to disprove either of those matters beyond reasonable doubt. The Crown must prove beyond reasonable doubt that if Mr Gillard was the driver of the van and did see the gun that there was a common purpose to kill Mr Knowles. The Crown must exclude as a reasonable possibility that he had himself some other purpose, namely robbery.
Ladies and gentlemen, as a matter of fact what you have to consider and decide is whether the purpose of Mr Gillard could change. Did he go to the workshop with the intention of committing a robbery? If he saw the gun and the gunman go into the workshop with a gun did he join in a common enterprise to murder Mr Knowles? Did he become part of that enterprise by participating in that common purpose? That is a matter that you would have to find proved beyond reasonable doubt before you could find Mr Gillard guilty, and, of course, you would have to consider all of the circumstances, factual circumstances of the events leading up to the perpetrator going into the workshop, but if after consideration of all of those matters you are not satisfied beyond reasonable doubt that there was a common purpose to murder Mr Knowles, then the accused Gillard would be not guilty. Does that answer your question? I will ask whether there is any matter that anyone wants to raise with me. Is there any other matter you want to raise with me now?
319 The answer in response to the first question does little more than confirm his Honour's directions that the jury could not convict if Gillard understood that a robbery and not murder was contemplated.
320 In relation to the directions following the second question, it is argued that they represented a change in the structure of the case; that the question of onus was not made clear to the jury; and that there was no factual basis to support a finding that Gillard saw the gun.
321 The question itself raised the issue of two persons going to the scene, one with the intention of robbery and the other with an intent to murder. The jury were interested in the legal consequences which would follow if the person with robbery in mind saw the other man with a gun and foresaw that someone might be murdered.
322 The trial judge began his answer to the question by reiterating his earlier direction that in order to convict of the crime of murder there must be a joint criminal enterprise with murder as the common purpose. The jury were then reminded of the four matters which had to be proved before a conviction could result. These are the matters set out in paragraph 312.
323 His Honour then told the jury that the common purpose had to exist prior to the killing. At this point he reminded the jury of the onus of proof. He said it was for the prosecution to exclude as a reasonable possibility that Gillard contemplated robbery only.
324 The jury question raised the possibility of a change in Gillard's understanding and so it was necessary for the judge to address that issue. It was appropriate to tell the jurors, as his Honour did, that any change in Gillard's understanding which might lead to complicity in the offence of murder would have to be proved beyond reasonable doubt.
325 The trial judge did not suggest to the jury that the sighting of the gun would be sufficient, by itself, to lead to a change in Gillard's understanding of the nature of the enterprise. He told the jury that they would have to consider all the circumstances, including the events leading up to the arrival at the workshop. Finally, his Honour returned to the requirement of proof beyond reasonable doubt.
326 Mr Peek argued that it was necessary for the trial judge to direct the jury's attention to the fact that if the sighting of the gun were to play any role in a change of understanding that fact would have to be established beyond reasonable doubt. He referred to Shepherd [1990] HCA 56; (1990) 170 CLR 573. His Honour had earlier directed the jury that any item of circumstantial evidence relied upon by the jury had to be proved. In the context in which he gave this direction it was clear that he was directing the jury that these matters had to be proved beyond reasonable doubt. This direction was somewhat favourable to the appellants in that it extended to every item of circumstantial evidence. Furthermore the jury question itself was based on the assumption that a finding was made that one person saw the other person with the gun. The jury wanted to know the legal consequence if that fact were established.
327 We do not accept that these directions gave rise to a significant change in the nature of the case which had been presented against Gillard. It had been argued by the prosecutor in the course of his final address that Gillard would have seen the gun before the other man went into the workshop. It was a factor which may have been relevant to Gillard's understanding of what was intended and it was referred to as one of a number of considerations which the jury were entitled to take into account in reaching a conclusion in relation to his understanding. This approach was also reflected in the trial judge's answer to the question when he reminded the jury that it was necessary to consider all of the events. In our view if all the events had been taken into account it was open to the jury to find that Gillard had seen the gun in the circumstances postulated in the jury questions.
328 No criticism was made of the directions in relation to counts 2 and 3 in so far as they stated the relevant law. However, it was argued that the evidence was insufficient to support convictions on this basis and that the jury were given inadequate assistance to approach the task of determining whether the prosecution case was proved in this respect.
329 If the jury concluded that Gillard was a party to a common or joint enterprise to murder Mr Knowles, then we think there was sufficient evidence to establish that Gillard foresaw that other persons might also be shot with the intention necessary to establish the charges set out in counts 2 and 3. Gillard knew when he made the telephone call shortly before the shootings that Knowles was not alone in the workshop. Obviously, he could not have foreseen the precise events which transpired, but if he realised that Preston was intent on killing one of the men present, then it was open to the jury to find that he foresaw that another person or persons might be shot at with the same intention.
330 In the course of the presentation of its case the prosecution argued that there was an alternate route to a conviction for murder being recorded against Gillard which would arise if Gillard took part in the venture believing that Preston was going to commit an armed robbery and foreseeing the possibility that, in carrying out the robbery, Preston might commit murder. It was argued that in these circumstances Gillard would be guilty of murder assuming that the crime of murder was committed by Preston and even although robbery was not within Preston's contemplation. The learned trial judge told the jury that a conviction for murder could not be recorded against Gillard on this basis because there would be no common purpose in that Gillard would be contemplating a robbery and Preston would be contemplating a murder.
331 The prosecution also submitted to the trial judge that the alternative verdict of manslaughter should be left to the jury. It was said that if the jury found that Preston intended to commit the crime of murder, but Gillard contemplated that a robbery only might be committed and if Gillard was aware of the fact that Preston was carrying a gun, then there would be a sufficient basis for a finding that Gillard committed the offence of manslaughter. According to the submission, Gillard would be guilty of manslaughter in these circumstances if he was a party to the commission of an unlawful and dangerous act, namely, the presentation of the gun. Defence counsel at the trial opposed leaving manslaughter to the jury as an alternative verdict. His Honour rejected the prosecution argument on the ground that there would be no common purpose in the circumstances referred to by the prosecution.
332 Mr Peek argued before this court that manslaughter should have been left to the jury on the basis put forward by the prosecution. He also pointed out that the failure to do so has an important consequence in the light of the recent High Court decision in Gilbert v The Queen (2000) 170 ALR 88. In that case a majority of the High Court declined to follow Ross v R [1922] HCA 4; (1992) 30 CLR 246 which was authority for the following proposition which was summarised in the subsequent case of R v Evans and Lewis [1969] VicRp 109; [1969] VR 858 at 871:
"If the trial judge correctly instructs the jury on the essential elements of the crime of which the appellant is convicted and fully and fairly puts to the jury the defence set up by the appellant the verdict of guilty amounts to a finding by the jury of every essential element of the crime and if those findings negate a verdict of guilty of a lesser offence then the verdict cannot be disturbed by a suggestion that the jury might have found him guilty of that lesser offence if the judge had informed them they were at liberty to do so."
333 It follows from the rejection of this proposition in Gilbert's case that, where manslaughter has not been left to the jury in a case where it was open on the evidence, a finding of guilty of murder does not relieve an appellate court from the duty to enquire whether the misdirection or non-direction should result in the quashing of the conviction. The test for the application of the proviso in such circumstances would be whether a jury, properly instructed, would necessarily have returned a verdict of guilty of murder in any event.
334 In the present case, therefore, it is necessary to determine, in the first place, whether a verdict of guilty of manslaughter was open in the case of Gillard.
335 We have pointed out that Gillard's claim that he thought he was engaged in a robbery was made in the course of his interviews with the police. He told the police officers that Preston asked him to steal the van. He said he thought he was going "nicking, stealing". He said he thought he was going on a robbery. He denied seeing any gun. He said he had no idea how the robbery was going to be carried out and he did not see Preston with a weapon at any time.
336 The prosecution argued that, in addition to these admissions, it was appropriate to take into account that it was open to the jury to find that Gillard was aware that Preston was carrying a gun. Earlier we expressed the view that it was open on the evidence for the jury to find that Gillard saw Preston with a gun before he went into the workshop. However, if it is assumed that he contemplated only a robbery, it is more difficult to find support for a finding that he nevertheless knew the gun was loaded. Nevertheless, as we have said, the prosecution based its argument that manslaughter was open in these circumstances on the ground that Gillard contemplated that the robbery attempt would involve an unlawful and dangerous act.
337 This submission requires a closer analysis of the doctrine of common purpose. The doctrine was stated by the High Court in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 113 it the following terms:
"The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission (see Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473). But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission (cf R v Lowery and King [No 2] [1972] VicRp 63; [1972] VR 560 at 560, per Smith J.).
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture (Mansell and Herbert's Case [1794] EngR 2078; (1556) 2 Dyer 128b [73 ER 279]; Ashton's Case (1698) 12 Mod 256 [88 ER 1304]; R v Radalyski [1899] ArgusLawRp 25; (1899) 24 VLR 687; R v Kalinowski [1930] NSWStRp 89; (1930) 31 SR (NSW) 377. See generally Smith, A Modern Treatise on the Law of Criminal Complicity (1991), pp 209-214.). However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose (see R v Johns [1978] 1 NSWLR 282 at 287-290, per Street CJ.)."
338 It will be seen that there must be a meeting of minds in relation to the criminal design. This is crucial to the concept inherent in the doctrine that a non-perpetrator authorises the perpetrator to do all that is required to carry out the common design. It is also relevant in determining extended liability for other crimes which might be said to fall within the scope of the common purpose.
339 If Preston had murder in mind and Gillard contemplated a robbery only, it is difficult to identify a relevant common criminal purpose. Whilst acknowledging that there will be cases in which such a purpose can exist without there being an agreement or understanding with respect to a precise offence or offences, there is a clear difficulty in reaching the conclusion that, in the circumstances postulated, there was an agreement or understanding with respect to any category of criminal conduct. The effect of Gillard's statements to the police is that he was duped into becoming involved in what he later discovered were intentional killings. The discovery was made well after the killings. He understood that he was helping to carry out a robbery. Nothing Preston said indicated that to him. He said he simply assumed that such was the case because this is what he had done in the past.
340 We have pointed out that, according to the prosecution argument, these circumstances would have given rise to an agreement or undertaking to commit an unlawful and dangerous act and that, as death resulted, Gillard was at least guilty of manslaughter. If the offences of murder and robbery are considered separately in the context of the present case, it might be argued that each could encompass an unlawful and dangerous act, although there may be some difficulty even with that proposition if Gillard did not contemplate the use of a loaded gun. And in the case of murder by Preston it seems somewhat artificial to isolate out those aspects of his conduct which would amount to an unlawful and dangerous act. In any event, however, we do not think that the jury could find an agreement or understanding which would satisfy the requirement of a defined and common criminal purpose.
341 But there is a further difficulty in the way of the submission that a verdict of guilty of manslaughter was open in relation to Gillard. Whereas unexpected incidents in carrying out the common design would not stand in the way of accessorial liability, the secondary party will not be liable for acts clearly outside the common purpose. In certain situations this consideration will prevent liability as an accessory to manslaughter from attaching, even if there is an agreement to carry out a joint assault and the principal offender unexpectedly decides to kill the victim or cause grievous bodily harm. (Gillies, The Law of Complicity (1980) p 99).
342 In Borg v R [1972] WAR 194 the appellant was convicted of manslaughter in circumstances where it was alleged that he agreed with the principal offender to demand money by threats of force. The principal offender shot the two victims after he was dropped off in a car driven by the appellant. On the assumption that the appellant did not know a loaded gun was to be used, it was held that the killings were "so far outside the common purpose as to constitute a separate and distinct crime, entirely foreign to the plan" and the verdict of manslaughter was set aside.
343 A further example is provided by R v Anderson and Morris [1966] 2 QB 110 where it was alleged that Anderson and Morris went to premises with the intent of assaulting the occupant. Morris knew that Anderson picked up a knife before he went to the premises. There was a fight during which Anderson stabbed the victim to death. Anderson was found guilty of murder and Morris guilty of manslaughter. However, Morris' conviction was set aside. The Court of Criminal Appeal accepted the proposition that:
"...where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act."
This case was referred to by Barwick CJ in Varley v R [1906] ArgusLawRp 84; (1976) 12 ALR 347 at 353 without disapproval.
344 It is true that in the present case the prosecution has argued that the jury might have found Gillard knew Preston was carrying a gun. However it must also be acknowledged that if the prosecution relied on an understanding by Gillard that robbery only was involved it followed that Gillard had been duped by Preston from the start because Preston planned an offence which was entirely different and was carried out by Preston without informing Gillard of his intentions. As we have said, in these circumstances there would have been no agreement or understanding to commit a particular offence, but even if Gillard understood that Preston intended to carry out a robbery which included an unlawful and dangerous act, Preston's intentions and actions were far removed from this understanding.
345 Mr Peek relied upon the following passage taken from the judgment of Cooke J in R v Tomkins [1985] 2 NZLR 253 at 256:
"Accordingly in joint enterprise cases where an accused is charged with murder as a party it may be appropriate to direct as follows. He will be guilty of the murder if he intentionally helped or encouraged it. He will also be guilty of it if he foresaw murder by a confederate, and in the kind of situation which arose, as a real risk. But if he knew only that at some stage in the course of the carrying out of the criminal plan there was a real risk of a killing short of murder, he will be guilty of manslaughter. So too if he foresaw a real risk of murder but it was committed at a time or in circumstances very different from anything he ever contemplated: so different that the jury are not satisfied that the murder should fairly be regarded as occurring in the carrying out of the plan. In the latter case they can still convict of manslaughter if satisfied that he must have known that, with lethal weapons being carried, there was an ever-present real risk of a killing in some way."
However, it cannot be said in the present case that, if Gillard contemplated no more than robbery, that there was an ever-present and real risk of a killing in some way.
346 For these reasons, we are of the view that the learned trial judge was correct in not directing the jury that a verdict of guilty of manslaughter was available on the facts of the case.
The prosecution's submission to the jury on complicity
347 It was argued that one of the matters which contributed to an unsafe and unsatisfactory verdict was the fact that, in opening the case to the jury, the prosecution incorrectly explained one aspect of the law relating to complicity and that this was not corrected until the trial judge summed-up to the jury.
348 In the course of the prosecution opening it was said:
"It is the case for the prosecution that Kevin Gillard was a party to a joint enterprise with Preston to murder Les Knowles. The prosecution will be inviting you to find that that is the irresistible inference to be drawn from the evidence to be presented in this case. If you find that Kevin Gillard was a party to such a joint enterprise, then he would be guilty of Knowles' murder, even though it was Preston who pulled the trigger.
Under our law, where two or more persons reach an agreement or an understanding that, together, they will commit a crime, and each of them knowingly plays a part in the execution of that agreement or understanding, then each person is guilty of the offence committed pursuant to that agreement or understanding, regardless of the part that each of them played.
In this case, Kevin Gillard will be guilty of Knowles' murder if he drove the getaway van pursuant to a plan or an understanding that Knowles was to be murdered.
As I mentioned a moment ago, the accused Gillard told police that he drove the van believing that Gerald Preston was going to rob Les Knowles. The prosecution will be inviting you to find that Gillard's claim that he believed that he was participating in an attempted robbery is untrue. Even if it were not, Gillard may still be guilty of the murder of Les Knowles. The law provides that a person who is a party to a joint enterprise to commit a crime is liable for any crime which he foresees as a possible incident of the originally-planned venture. For example, assume that two men plan to hold up a bank and, pursuant to that plan, one man goes into the bank and holds up the staff with a shotgun. Further assume that the second man remains outside the bank to keep a lookout for the police. If, in the course of holding up that bank, the gunman shot a teller or a customer, the man who remained outside would be liable for the shooting if he foresaw the possibility that, in the course of holding up the bank, his partner in crime might shoot someone.
So, ladies and gentlemen, in this case, Gillard would be guilty of Knowles' murder if you are satisfied that he at least foresaw the possibility that Preston might shoot Knowles with the intention of killing him, or causing him grievous bodily harm.
Similarly, if you conclude the Gillard was a party to an agreement or understanding to murder Knowles, or to rob him, he would be guilty of the murder of Tim Richards and the attempted murder of Kim Traeger, if he foresaw that possibility that, in the course of carrying out their planned crime, Gerald Preston might deliberately shoot someone, or, specifically, some other person, with intent to kill.
It is the prosecution's contention that, if Gillard was a party to a plan to murder Knowles, or to rob him at gunpoint, he must have foreseen the possibility that, in carrying out their planned venture, Preston might intentionally kill someone else, for example an eye witness, or someone who tried to assist Knowles to defend himself."
349 In his final address to the jury Mr Millsteed said:
"As I mentioned earlier, the prosecution invite you to find that Mr Gillard spoke the truth about having driven the van for Preston on the day of the incident, but lied when he suggested that he thought it was only going to be a robbery. However, the point needs to be made that Gillard may be guilty of murder even if he drove the van believing that Gerald Preston was going to commit a robbery. He would be guilty of murder if he foresaw the possibility that, in the course of carrying out the robbery, Preston might commit murder. Our law provides that a person who is a party to a joint enterprise to commit a crime is liable for any crime which he foresees as a possible incident of the originally-planned venture.
You may remember the example that Mr Kimber gave you when he opened the Crown case. Assume that two men plan to hold up a bank, and that, pursuant to that plan, one man enters the bank and holds up the staff say with a shotgun, while the second man waits outside, keeping a lookout for the police. If the gunman murders a teller or a customer, the person who remained outside will be liable for murder if he foresaw the possibility that, in the course of holding up the bank, his partner might shoot someone, shoot someone with the requisite intent to murder.
In this case, Mr Gillard will be guilty of Knowles' murder if you are satisfied beyond reasonable doubt that he foresaw the possibility that Preston might shoot Knowles with the intention of killing him.
Similarly, if you find that Mr Gillard was a party to a joint enterprise to murder, or to rob Knowles, or understood or believed that Knowles was going to be robbed, then he would be guilty of the murder of Tim Richards and the attempted murder of Kim Traeger, if he foresaw the possibility that, in the course of carrying out what he understood was going to be a robbery, Preston might deliberately shoot some other person with intent to kill. The critical issue in relation to Mr Gillard is foresight of the possibility that someone might get killed in the course of carrying out the shootings. That's the critical issue, even if he believed, which the prosecution challenges, that a robbery was going to take place."
350 There is some vagueness in these propositions because it is not made clear that the prosecutor was referring to a situation where one party contemplated one crime and the other party contemplated another crime. The submissions would be incorrect if they were to be applied to a situation where Preston contemplated murder and Gillard contemplated robbery so that it could not be said that there was a common purpose either to murder or to rob.
351 The learned trial judge did not accept the submissions and the case was not put on this basis to the jury. On several occasions during his summing-up the trial judge stressed that the appellant Gillard could not be found guilty if he understood that robbery only was to be committed.
352 At one point in his summing-up the trial judge said:
"During this course of his address Mr Millsteed said that you were to take the law from me and not from anyone else and, of course, I've said that to you and I'm the one who tells you what the law is and you must follow what I say to you. I've given you the directions about joint criminal enterprise and common purpose. Mr Millsteed put to you, for your consideration, that the accused Gillard may still be guilty of murder if he drove the van believing that the accused Preston was going to commit a robbery: That he would be guilty of murder if he foresaw the possibility that, in the course of carrying out the robbery, the accused Preston might commit murder. He went on to say that our law provides that a person who is a party to a joint enterprise to commit a crime is liable for any crime which he foresees a possible incident of the originally planned venture.
Ladies and gentlemen, I've given you my directions about the law and they are different from what Mr Millsteed put to you in that limited respect. So, I direct you to reject what he has put to you. I won't go over it all again but I stress that there must be a common purpose. You can't have the perpetrator going there for one purpose, the accused Gillard going there for another purpose, and there is in this case simply no suggestion of the perpetrator going there to carry out a robbery. No such thing happened. All the evidence that you've heard makes it plain, you might think, that there was to be a robbery."
353 The trial judge made the same point in is answer to the jury questions referred to elsewhere in these reasons.
354 The jury were told on a number of occasions, including during the prosecution opening, that they were to follow his Honour's directions and to ignore anything which counsel said which was inconsistent with those directions. In our view there was no room for misunderstanding on the jury's part in relation to this particular topic by the time they came to deliver their verdicts. The prosecution stressed from the commencement of the case that it was the prosecution case that both men took part in a common purpose to commit murder. We do not think that what was said about the alternative basis of liability at the commencement of the case would have had any adverse effect on the jury's assessment of the evidence as it was being led. The learned trial judge's directions dealt specifically with the alternative prosecution argument and the jury were told that a verdict on that basis was not open. In our view, it could not be said that the prosecution's submissions contributed to a miscarriage of justice.
Criticism of directions on particular aspects of the evidence
355 Mr Peek complained about the trial judge's directions or lack of directions in relation to certain aspects of the evidence. The first topic to which he drew attention was motive. He suggested that it was difficult for the prosecution to disprove that Gillard's motive extended no further than robbery and he said there was evidence of huge sums of money on the premises and rumours of Knowles being a drug dealer. These considerations were said to support Gillard's claim that robbery was the motive. However there was no evidence that Gillard was aware of either of these matters.
356 Mr Peek argued that Gillard had no motive to harm Knowles, whereas Preston had a relationship with Tognolini whose alleged criminal activities may have given rise to a motive on Preston's part. However, the uncontested facts establish that Preston's motive was not robbery and it was open to the jury to conclude that Gillard might have been paid to assist in the killing. The trial judge refused to direct the jury on the absence of motive in relation to Gillard. In our view this decision cannot be criticised. If his Honour did embark upon such a direction it would have been appropriate to refer to the possible motive on Gillard's part to which we have referred. It is true that the prosecution relied on evidence of sudden wealth by Preston, whereas no such evidence was adduced in relation to Gillard. Evidence of a display of wealth is probative in circumstances such as these, but we do not think that equal significance necessarily attaches to the absence of such a display. We reject the suggestion that the trial judge should have directed the jury that they were to take into account the inability of the prosecution to adduce such evidence in Gillard's case.
357 Mr Peek referred to the evidence of some of the witnesses, including Ronald Preston and Vicki Preston, the appellant Preston's former wife, which suggested that Gillard was subservient to Preston. Mr Peek submitted that this evidence was relevant to the question as to whether Preston might have encouraged Gillard to be the driver without informing him of the true nature of the enterprise.
358 When summarising Vicki Preston's evidence the learned trial judge said:
"She said that she got on well with the accused Gillard. She liked him. They were friends. She did not regard him as an idiot. The accused Preston regarded him as an idiot. He had no respect for him, although he did not show that to his face. He dominated the relationship. The accused Gillard drank a lot. He looked up to the accused Preston, and trusted him. They were like brothers. It is no part of the accused Gillard's case, perhaps, but you might, when you come to consider the case against him, whether the nature of the relationship between the two men is a matter of some importance."
359 The learned trial judge was not bound to canvass all the evidence on this issue. However, in the context of discussing evidence as to Gillard's subservience, he told the jury that it was relevant to consider the nature of the relationship between the two men.
360 Mr Peek argued that the evidence of Dr Raeside, a psychiatrist, was important in this respect. It was Dr Raeside's view that Gillard suffered from a personality disorder. He could not detect any psychiatric disorder, but he said that the appellant was suffering from stress when he examined him. He exhibited a number of the features of a post-traumatic syndrome. Dr Raeside said that a feature of Gillard's personality disorder was that he was antisocial. He went on to describe features of an antisocial nature and he agreed with the trial judge that, in relation to certain aspects, he was speaking generally. However it is clear that he was describing a feature of Gillard's disorder as antisocial. The crown prosecutor's description of Gillard's disorder in this respect is accurate and the criticism of it should be rejected.
361 There appears to be nothing in Dr Raeside's evidence which throws light on the issue of subservience. Furthermore, as the trial judge remarked, the difficulty about Dr Raeside's evidence was that it was, in large part, based upon what Dr Raeside was told. Gillard did not provide the jury with an evidential basis upon which the views expressed by Dr Raeside could be based.
362 Mr Peek raised a further complaint in relation to the evidence of Vicki Preston and Dr Raeside. He said that Gillard was entitled to a direction that his mental state and general history were relevant to the inferences which might be drawn from his behaviour and his reaction to the circumstances in which he found himself. Mr Peek said that inferences which might be drawn in relation to an ordinary person might be less safely drawn in relation to a person with the appellant's characteristics. Mr Peek referred by way of analogy to those cases where intoxication may have to be taken into account when assessing aspects such as the state of mind of the accused.
363 We have set out the passage in which Vicki Preston's evidence is dealt with at para 358. His Honour did put to the jury that the nature of the relationship between the two men was a matter of some importance when considering the case against him. We do not agree with Mr Peek's submission that this was a direction contrary to the appellant's interests. We are also of the view that the trial judge was not required to go further and relate any aspect of Dr Raeside's evidence to the drawing of inferences from Gillard's behaviour. The condition described by Dr Raeside was not particularly relevant to the drawing of inferences concerning Gillard's state of mind. We do not agree with the submission that the summing-up in so far as it related to this evidence was unfair to Gillard.
364 Reference has been made on a number of occasions to the telephone call made by Gillard to determine whether Knowles was present in the workshop. The trial judge mentioned this incident when referring to facts from which the role of Preston might be inferred. He said:
"You must not speculate about what was in the mind of the accused Gillard. You cannot find him guilty of either of those charges unless you are satisfied beyond reasonable doubt that he did foresee the crime that you are considering might occur. The basis of such a conclusion can only be from drawing an inference from all of the proven facts. You would start with the nature of the association between the two accused. You must look at the proven facts about the shootings and the explanation which the accused gave to the police - the accused Gillard gave to the police, if you are prepared to act upon it. The telephone call was to see if Mr Knowles was present. The caller asked for Mr Knowles. It seems clear that he was the only target identified at that stage.
There is evidence, as I have mentioned, that the accused Gillard knew that there was more than one person in the workshop because of what happened when he made the call. However, is there any reason to suppose that he saw anyone in the workshop when he pulled up in the van?"
365 Mr Peek argued that the issue should not have been left to the jury in this manner. He said the evidence is just as consistent with a desire to ensure that Knowles was present at the workshop so that he could be robbed.
366 In our view, the trial judge was justified in not putting this alternative to the jury. If the telephone call was made at the behest of the man who did the shooting, then it is obvious that the call was not made for the purpose of robbery. It might have been appropriate for the trial judge to refer to Gillard's comment to the police in relation to the telephone call "I suppose it was to rob him". However, the jury heard this evidence and the submissions of Gillard's counsel. We do not think that the trial judge was bound to remind them of this answer.
367 Finally, Mr Peek drew attention to what he described as a speculative argument relied upon by the crown prosecutor and mentioned in the summing-up of the trial judge. In the course of his address to the jury the crown prosecutor attacked Gillard's assertion to the police that he did not hear shots while Preston was in the workshop. The submissions were made by Mr Millsteed as part of a general submission to the jury that the exculpatory parts of the interview did not ring true. There was evidence that some people outside the workshop heard the gun shots. Gillard told the police officers he did not hear any shots. He said he kept the engine of the van running and there was a "good song" on the radio, so he turned it up. It was open to the jury to reject this version as highly unlikely and to decide that Gillard was attempting to play down his role in the matter.
368 Gillard's counsel argued that the verdicts were unsafe and unsatisfactory in that the evidence was insufficient to support them. It was claimed that it was not open to the jury, acting reasonably, to reject as a rational inference that Gillard was not part of a joint enterprise to murder (R v Cervelli (1997) 95 A Crim R 329; R v Knight [1992] HCA 56; (1992) 175 CLR 495).
369 If the jury accepted that the descriptions given by Gillard to the police as to his actions were true, there were sufficient facts from which to infer that he was knowingly assisting Preston in the crimes alleged against Preston. He stole the van and drove Preston to the premises. He made the telephone call to the workshop to ensure that Knowles was present. He acted as the driver to ensure a speedy getaway. He burnt the vehicle later in order to destroy evidence.
370 It was argued on behalf of Gillard that the inferences as to knowledge of what was involved which might otherwise be drawn from such circumstances should not be inferred in this case because of the exculpatory factors put by Gillard to the police. However it was open to the jury to find that these exculpatory matters had been disproved. It was open to them to find that it would be highly unlikely for Preston to embark upon such a venture, enlisting Gillard's aid to play an essential role and not informing him of what was involved. And from Gillard's viewpoint it might be regarded as highly unlikely that, if he assumed that this was a robbery, he did not ask for more details. It was also open to the jury to reject Gillard's version that he had no idea of what was going on in the workshop while the three men were shot.
371 The jury were also entitled to reject his version that Preston said nothing about the shootings when he returned to the van or at all and that Gillard did not enquire as to what had happened when Preston returned to the vehicle. In his version to the police Gillard did not suggest that Preston told him what had happened at any time thereafter. If Gillard had been used in this way, then the jury were entitled to find that he would not have reacted in the manner in which he did after the shootings, particularly in relation to his attitude towards Preston. Furthermore Gillard gave no evidence before the jury and, in evaluating the prosecution evidence which we have summarised, this was a circumstance which the jury were entitled to bear in mind when considering the probative value of that evidence. (Weissensteiner v R [1993] HCA 65; (1993) 117 ALR 545 at 553).
372 After reviewing the evidence in the manner required by M v The Queen [1994] HCA 63; (1994) 181 CLR 487 we have concluded that the verdicts are not unsafe or unsatisfactory either by reason of insufficiency of evidence or because of a combination of the matters arising out of the other grounds of appeal which have been dealt with in this judgment.
373 In our view Gillard's appeal should be dismissed.
374 LANDER J. I agree for the reasons given by Duggan J and Bleby J that both appeals should be dismissed.
R
GILLARD AND PRESTON No. SCCRM-98-266, SCCRM-98-267 [2000] SASC 454
(1999) 76 SASR 76
(1989) 166 CLR 283
(1991) 58 SASR 19
(1961) 104 CLR 1
(1988) 165 CLR 87
(1982) 30 SASR 404
(1991) 56 SASR 302
(1982) 148 CLR 668
(1992) 59 SASR 563
(1994) 181 CLR 41
(1997) 19 WAR 8
(1997) 192 CLR 69
(1978) 20 SASR 410
(1985) 159 CLR 45
(1994) 34 NSWLR 233
(1985) 157 CLR 671
(1987) 164 CLR 180
(1955) 93 CLR 493
(1986) 160 CLR 392
(1940) 63 CLR 533
(1982) 30 SASR 161
(1995) 65 SASR 260
(1997) 68 SASR 419
(1991) 104 ALR 143
(1992) 28 NSWLR 471
(1994) 69 ALJR 77
(1994) 62 SASR 364
(1988) 48 SASR 538
(1971) 124 CLR 107
(1988) 49 SASR 47
(1992) 175 CLR 495
(1976) 136 CLR 62
(1995) 65 SASR 234
(1936) 55 CLR 367
(1963) 110 CLR 234
(1993) 178 CLR 193
(1986) 42 SASR 436
(2000) 168 ALR 729
(2000) 170 ALR 88
(1995) 183 CLR 108
(1990) 170 CLR 573
(1992) 30 CLR 246
(1976) 12 ALR 347
(1993) 117 ALR 545
(1994) 181 CLR 487
(1940) 64 CLR 514
(1974) 130 CLR 267
(1973) 6 SASR 427
(1978) 141 CLR 54
(1972) 128 CLR 114
(1911) 13 CLR 619
(1975) 133 CLR 82
(1984) 153 CLR 521
(1975) 11 ALR 503
(1985) 156 CLR 473