37 Mrs Shaw recognised that her submission was based in part upon the appellant's apprehension that I might not decide the matter on the appropriate factual and legal principles. But that is not the test to be applied. Instead, it is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the issues in this case.

38 In this case, in my opinion, no fair minded lay observer would ever think that I might decide this appeal on evidence not adduced on this appeal or ignore evidence adduced on this appeal. No fair minded lay observer would contemplate that, because I heard the appeal in R v Zappia, I might answer the appeal with any preconceived view as to the outcome.

39 The fact that a judge has sat on an appeal in which a conviction entered against a co-offender has been considered does not disqualify that judge from sitting on an appeal against a conviction entered against the other co-offender. Judges of this court routinely sit on appeals where two persons are charged and convicted and where both appeal against their convictions to a Court of Criminal Appeal. The evidence admissible against one might be quite different from the evidence admissible against the other. Judges are trained to consider only the admissible evidence. If Mrs Shaw's submissions were correct it would mean that separate courts of appeal would have to consider the separate appeals of two co-offenders.

40 It was for those reasons that I declined to disqualify myself and I sat on this appeal.

41 On 21 August 2002 counsel for the DPP opened the prosecution case. The case was opened as a circumstantial evidence case and upon the basis that the appellant and Mr Zappia were parties to a joint enterprise to kill the deceased, Mr Rasti. It was the prosecution case that the deceased, Ms Ellul, was either shot as part of the common purpose or common plan or in order to eliminate her as an eye witness to the murder of Mr Rasti.

42 In her opening, counsel said that the Crown "does not know and does not purport to say which one of the two men actually pulled the trigger but, in the event that your Honour is satisfied that the two men went to the Grand Apartments that night, and that one of them did shoot the deceased pursuant to a plan between them, then the accused, Mr Kamleh, is guilty of the crime of murder irrelevant of whether he was the shooter or not". Thus it was that the prosecution case was opened on the basis that the appellant and Mr Zappia were parties to a common purpose to kill or at the very least to cause grievous bodily harm to the victims, Mr Rasti and Ms Ellul.

43 In the alternative, the prosecution case was that in relation to Ms Ellul if there was not an express agreement to kill her or do her grievous bodily harm because of her presence in the unit at the time Mr Rasti was killed, her murder was also contemplated as a possible incident of the originally planned common purpose.

44 The third basis upon which the prosecution rested its case for convictions for murder against the appellant was that he aided and abetted Mr Zappia in the sense that he was present when they were both shot, and either intentionally helped Mr Zappia to commit the crimes of murder or intentionally encouraged him by words or by his presence or behaviour to commit those crimes or intentionally conveyed to Mr Zappia that he was in agreement with or concurred in the commission of the crimes of murder.

45 The fourth basis was that if the court were to find that the appellant and Mr Zappia went to the Grand Apartments with a loaded gun for any unlawful purpose, such as to threaten, assault or rob Mr Rasti, the appellant would still be criminally liable for the murders even if the court found that he was not the person who fired the shots. It was put that he would be criminally liable for their murders if he knew or foresaw as a possibility that Mr Zappia might use the gun to kill or cause grievous bodily harm to either Mr Rasti or Ms Ellul.

46 Finally, the prosecution case was that, if the court were to find that the appellant was the shooter then he would be criminally liable in his own right for the crime of murder.

47 When the prosecution opened its case it had no direct evidence to establish which of the two men had shot and killed the victims. It had circumstantial evidence whereby it could establish that the appellant and Mr Zappia were in each other's company at the time the deceased were murdered. It had circumstantial evidence which put them at the scene of the murder. It had circumstantial evidence which established a motive and some preparatory acts prior to the murders. It had no evidence, as I say, to establish which of the men shot and killed the victims. It had no direct evidence to establish that the appellant and Mr Zappia went to the apartments for any unlawful purpose such as to threaten or assault or rob Mr Rasti.

48 In a sense, whilst the prosecution case was opened on alternative bases on the evidence then available to the prosecution, the only route to establishing criminal liability against the appellant was through a common purpose.

49 The concept of common purpose was clearly explained in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 113. There the High Court said:

"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 the 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. 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 of the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with a 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.

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. 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." (Footnotes omitted)

50 The prosecution therefore needed to establish that there was an arrangement or understanding between the appellant and Mr Zappia that they, or one of them, would kill or inflict grievous bodily harm upon Mr Rasti. Alternatively, the Crown needed to establish that there was an arrangement or understanding falling short of killing or inflicting grievous bodily harm on Mr Rasti but that the appellant contemplated that Mr Rasti might be killed or be subjected to the infliction of grievous bodily harm in the carrying out of whatever lesser common purpose there was.

51 Again, to visit criminal liability on the appellant in relation to the death of Ms Ellul, the Crown had to prove either that there was a common purpose to kill or inflict grievous bodily harm upon her or alternatively that the appellant contemplated that she might be killed or be subjected to the infliction of grievous bodily harm in the carrying out of the common purpose. The Crown could establish criminal liability by proving that there was a common purpose to kill or inflict grievous bodily harm on Mr Rasti and that it was contemplated by the appellant, because of Ms Ellul's presence at the scene of the murder of Mr Rasti, that she might be killed or be subjected to the infliction of grievous bodily harm.

52 At the outset, as I have said, the Crown did not seek to establish who shot the deceased but simply relied upon the common purpose as visiting criminal liability for murder upon both of them.

53 The prosecution, of course, did not open on the basis that it could establish directly the existence of an arrangement or understanding. The Crown case was that such an arrangement or understanding was a matter of inference on the circumstantial evidence which it proposed to lead.

54 During the trial further evidence became available to the Crown. On 30 August 2002, Michael Francis Loader, an inmate at the Adelaide Remand Centre, gave a declaration to the police detailing conversations had with the appellant at the Remand Centre on 16 August, 21 or 22 August and 24 August 2002. Mr Loader was called to give evidence in the trial on 16 and 17 September.

55 Objection was taken to Mr Loader's evidence and the judge conducted a voir dire hearing. Mr Loader gave evidence and the appellant called four witnesses, Nicholas Webb-Myers, Mr Ross Linnane, Mr Leslie Kennewell and Mr Nicholas Treglown. Those four witnesses were called to contradict Mr Loader's account of his conversations with Mr Kamleh.

56 The appellant did not give evidence in the trial or indeed on any voir dire hearing. The fact that he did not give evidence cannot be used to bolster the prosecution case: Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at 74 and 75. However, his failure to give evidence means that there is no evidence from him to contradict Mr Loader's evidence. Obviously, it could not have been a subject he addressed in his record of interview which was tendered in the trial.

57 The trial judge overruled the objection and admitted Mr Loader's evidence. In due course he accepted the evidence finding it to be "generally accurate". He expressly found that the conversation deposed to by Mr Loader occurred and that Mr Loader had recounted the substance of those conversations. In doing so he rejected the evidence of the four persons to whom I have referred.

58 The appellant has contended on this appeal that the trial judge erred in relying upon the evidence of Mr Loader. Ground 15 of the grounds of appeal states:

"15. The learned judge erred in relying upon the evidence of the witness Loader and/or failing to give adequate weight to the features of his evidence which made it unsafe to do so, including the following:-

15.1 The learned judge failed to give adequate weight to the risk that Loader came by information within the prison system, access to newspapers and documents and/or by contact with Zappia (Linnane p1671; Submissions pp1728-1729).

15.2 The learned judge erred in failing to consider whether the evidence of Loader was supported insofar as it implicated the accused in the crimes in question (para 320).

15.3 The learned judge erred in his evaluation of the evidence of the defence witnesses as follows:

(a) His Honour approached the evidence of the defence witnesses as a group rather than in relation to the particular issue in respect of which the evidence of the particular witness was directed.

(b) His Honour approached the evidence of the defence witnesses upon the basis that he was not prepared to act upon the evidence of any one of them unless they were "otherwise supported".

(c) The approach referred to in (a) and (b) above had the effect of reversing the onus of proof (para 331).

15.4 His evidence was contradicted on oath by other witnesses.

15.5 The circumstances in which Loader was placed and the timing of his provision of information rendered it dangerous to act upon such evidence in relation to the charges before the court (Submission p1758).

Alternatively, the learned judge failed to give any or sufficient weight to the foregoing particulars in his assessment of the reliability and credibility of Loader's evidence (Judgment paras 320-334)."

In argument Mrs Shaw contended that, because of his circumstances, Mr Loader's evidence was inherently unreliable and should have been excluded. Alternatively, she argued that the evidence needed to be corroborated. Lastly, she argued that the trial judge failed to give sufficient weight to the evidence of the four men called to contradict Mr Loader's evidence.

59 In my opinion, it is appropriate to deal with Mr Loader's evidence at the outset.

60 If the trial judge cannot be criticised for admitting Mr Loader's evidence and relying upon it, the Crown case has to be considered in quite a different light from that which was opened. The Crown case would be significantly stronger both in respect of its assertion that a common purpose existed and secondly in proving who was the shooter.

61 On Friday, 16 August 2002 Mr Loader was convicted in this court of two counts of murder and he was remanded in custody for sentence. On the same day the appellant was at this court attending the voir dire inquiry being conducted by the trial judge. At the end of that day they were both taken to the Adelaide Remand Centre in the same prison transport.

62 The prison van is divided in halves. Mr Loader was sitting in one half and some other men in the other half. Someone called out: "Is there anybody in the other side of the van?"

63 Mr Loader said he recognised the voice as being that of the appellant. He had met the appellant the year before when they were both in the Adelaide Remand Centre awaiting their trials. Mr Loader said he identified himself and immediately thereafter the appellant said: "Michael do you remember me? Its Jamil, Natale's co-accused". There was then some conversation about Mr Loader singing in the prison chapel and about Loader's trial.

64 Mr Loader said that the appellant then spoke about the appellant's own trial. The appellant said: "None of the witnesses they are bringing up against me can identify me. Nobody remembers me being there or being at the crime scene. You won't believe this; Natale has been into court and he basically told the judge to get stuffed. In fact, he said he couldn't recognise me, how is that? Got up on the stand and he couldn't recognise me."

65 Nothing further was said but Mr Loader saw the appellant in the holding cells after they had returned to the Remand Centre.

66 This conversation was consistent with what had occurred at the voir dire hearing.

67 Mr Zappia had been called on the voir dire hearing. On 8 August he had been called and sworn but had refused to give evidence. He claimed privilege. He refused to accept a direction from the trial judge that he answer questions.

68 During his evidence when asked why he would not give evidence he said:

"A I won't give evidence, because I don't know what - I haven't even met this bloke." [TX VD 68]

69 Mr Loader said that he next spoke to the appellant on the Wednesday or Thursday of the next week. According to Mr Loader, it was a short conversation at the Remand Centre during which the appellant said: "They can't still make the case". Mr Loader said they agreed to talk on the weekend.

70 They next spoke on the Saturday, 24 August, somewhere between Mr Loader's cell and the sink area in Unit 3. Mr Loader recounted the conversation:

"I just said 'How is it going?'. He said 'It's going great. They really can't make a case. They have had about 27 witnesses in three days. Nobody can remember me being there at the crime scene. Natale has been into court again and he has refused to testify. Without his testimony they can't do a thing.' I said: 'What is the story?' He said: 'I was there and I did it but they can't prove it'. He said: 'The only way they can prove it is if Natale testified against me.' We have made an agreement we won't testify against each other but when I am found guilty (sic) of this I will go to court to Natale's appeal and I will tell the court that I am responsible, that I am guilty, but they won't be able to try me twice for the same crime."

There must be an error in the transcript. The appellant would not have said "when I am found guilty". He must have said, if the conversation took place, "when I am found not guilty ...".

71 Mr Loader said that he then told the appellant that he would owe Natale Zappia a huge debt of gratitude if he would not testify against him.

72 The judge charged Mr Zappia with contempt. He was brought to court in connection with that charge on Friday 23 August, the day before the above conversation.

73 Mr Loader said he spoke to the appellant again on Thursday 29 August. Mr Loader said he was surprised to find the appellant in the prison but he was told that "they had the day off". He gave the following evidence:

"Q Could you tell us to the best of your memory what he said and what you said on that Thursday.

1. On Thursday I asked him how it was going. He said it was still going great 'They can't put me there at the crime scene. None of the witnesses can remember me being there. They haven't got the motive. The motive has been thrown out, the mobile phone, they have basically dropped that case. I am going to walk'.
2. Did he say anything about Natale Zappia on that occasion.
3. Yes, he did. He said 'Natale still refuses to testify and he's in contempt for the third time now. He's been in contempt three times'.
4. You mentioned then that he said in that conversation something about a mobile phone.
5. That's correct.
6. Prior to that, had you had any conversation with Mr Kamleh about a mobile phone.
7. No, I had not.
8. Had he mentioned anything about a mobile phone in any conversation he had with you.
9. No.
10. What was the context in which you first heard him discuss the mobile phone.
11. Just in that context of that conversation, just when he said there was no motive, that the motive had been thrown out and that motive had something to do with a mobile phone."

74 The court did not sit on 29 August 2002. Mr Zappia was called to give evidence on 28 August but declined to give evidence and refused to comply with directions to give evidence. He was formally charged with the contempt on 30 August.

75 Messrs Kennewell, Webb-Myers and Treglown deposed to the conversation between Mr Loader and the appellant on 24 August. All three agreed with Mr Loader that a conversation took place but none of them supported the account of the conversation given by Mr Loader.

76 All three said the conversation concerned the appellant's trial. All three said that Mr Loader asked the appellant a number of questions concerning his trial. Mr Kennewell said that the appellant did not respond to Mr Loader's questions. Mr Kennewell said that the appellant had said that the judge was giving Mr Zappia a bit of a hard time and that Mr Zappia was 'going good'. Mr Webb-Myers said that the appellant said something about Mr Zappia refusing to testify. He did not hear the appellant's responses to Mr Loader's questions. Mr Treglown said that the appellant told Mr Loader that Mr Zappia had refused to give any information to the court.

77 The fourth witness, Mr Linnane, said that he was not present at the conversation between the appellant and Mr Loader, on 24 August 2002 but that he did hear a conversation between the two of them at some other time. In that conversation he said that Mr Loader, on two occasions, asked the appellant about his case and Mr Linnane replied on the second occasion:

"Jamil doesn't talk about his case to no cunt."

78 As I have said, the appellant did not give evidence. There was a conflict between the evidence given by Mr Loader and the appellant's witnesses about the contents of the conversation on 24 August 2002 but in a number of respects their evidence supported Mr Loader's account.

79 The trial judge found Mr Loader to be articulate, clear and generally consistent and giving the appearance of being open and frank. The trial judge found that he was direct and responsive but not over polished.

80 On the other hand the trial judge found a number of inconsistencies in the recollections of the three witnesses who spoke of the conversation on the morning of Saturday 24 August 2002.

81 He found that their insistence that they could recall a conversation on the morning of Saturday 24 August 2002 remarkable. There was no reason, I think, on the trial judge's findings as to why these three men would remember this conversation at all. The conversation was quite unremarkable. The trial judge noted the inconsistency in the evidence of the three men compared with the evidence of Mr Linnane. Mr Linnane's evidence was that the appellant would talk to nobody about his case whilst the other three witnesses gave evidence of an account by the appellant of some aspects of his case.

82 The trial judge said of the four witnesses called by the appellant:

"The defence witnesses were unimpressive. It appeared that they came to court to assist the accused regardless of the truth. Unless otherwise supported I am not prepared to act on their testimony. I reject the evidence of the defence witnesses where it conflicts with Mr Loader's evidence. They are not credible or reliable witnesses."

In doing so the trial judge took into account the witnesses' evidence that they had come to give evidence in circumstances where the appellant had broadcast a call generally to all occupants in the unit in which the appellant and Mr Loader were incarcerated. Mr Treglown said that he came forward in response to that call and he had a conversation with the appellant about it in which the appellant tried to jog his memory. Mr Kennewell said that the appellant came back from court one night and told him that he might need to see a solicitor. The appellant did not tell him what the matter was about.

83 Mr Webb-Myers said that the appellant asked him whether he remembered the conversation and as a result of that he came to give evidence.

84 Mr Loader's evidence, if accepted, was evidence of a confession by the appellant that he was present when the victims died and that he "did it". The evidence, if accepted, can lead to the inference that the appellant was the shooter.

85 Evidence of this kind must be treated with very great care. Evidence of "prison informers" as to confessions made by an accused whilst incarcerated are inherently unreliable. In Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 at 586 Deane J said:

"The evidence of a witness about an oral confessional statement allegedly made to him by an accused while the witness and the accused were incarcerated together in a prison is liable to be unreliable for a number of reasons. One such reason is that such evidence is easily concocted. Another is that, where such evidence is concocted, an accused will ordinarily be denied the possibility of corroboration of his denial of it. Another reason is that it is likely that a 'prison informer' will be of bad character. Another is the likelihood that a prison informer may be motivated to fabricate such evidence either by a perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury."

In this case Mr Loader had been convicted of two counts of murder. He is a person of bad character. At the time he gave his evidence he had not been sentenced. He frankly admitted that he was motivated to give the evidence in order to obtain a substantial discount on whatever sentence was to be imposed in relation to his convictions. He was hopeful of obtaining a reduction of somewhere between a third and a half of the non-parole period which would have otherwise been imposed. There were reasons, therefore, from Mr Loader's point of view, why he would concoct this evidence.

86 The trial judge was obliged to ensure that the evidence was scrutinised very carefully and to remain alive to the real risk that the evidence might be concocted for the witness's own advantage.

87 The trial judge was careful to set out the relevant aspects of Mr Loader's evidence and the evidence of the four witnesses called by the appellant. He reminded himself of the possibility that the evidence was inherently unreliable and warned himself accordingly. He said:

"Mr Loader's evidence must be carefully scrutinised having regard to its inherent unreliability. There is a need to guard against the risk that Mr Loader is a calculating and skilful liar. Close attention must be paid to his bad character and his criminal antecedents including his convictions for murder. His antecedents included offences of dishonesty which commenced when he was a juvenile. More recently he was convicted of social security offences. Mr Loader's evidence must be approached with great caution."

88 He reminded himself of the risk that Mr Loader might have been motivated to have given this evidence to obtain a significant reduction on his own sentence of imprisonment. He concluded:

"Mr Loader's evidence has been reviewed with great care. This has been necessary because of the dangers earlier identified and referred to in Pollitt. Mr Loader's criminal antecedents and dishonesty are matters which of themselves require his evidence to be subject to the closest of scrutiny. Regard must also be had to the inherent unreliability of his evidence, his motive to lie, his desire to minimise his time in custody and his previously admitted lies.

I have had regard to all of the factors that have been identified as giving rise to the inherent unreliability of prison informer evidence. I have specifically reviewed and considered Mr Loader's evidence in light of that inherent unreliability. I have examined his evidence closely.

Having carefully scrutinised Mr Loader's evidence, having had regard to all of the factors that might suggest his evidence is unreliable and having considered all of the submissions of both counsel I accept Mr Loader's evidence as being generally accurate. I am satisfied that the conversations he recounted occurred. I am satisfied that substance of the conversations was as recounted. I am prepared to act on his evidence."

89 In my opinion, it was open to the trial judge to accept Mr Loader's evidence notwithstanding the evidence of the witnesses called by the appellant.

90 The appellant's witnesses confirmed that there was a conversation between Mr Loader and the appellant in which the appellant's trial was discussed. The appellant's witnesses do not support Mr Loader's evidence as to all of what was said nor, with the exception of Mr Linnane, did they necessarily contradict it. Mr Linnane's evidence was inconsistent with the evidence of Mr Loader and the other three witnesses called by the appellant.

91 The trial judge was obliged to scrutinise the evidence with great care to remind himself of the risk that the evidence might be inherently unreliable. He did that and having done that, in my opinion, he was entitled to accept the evidence.

92 The appellant's counsel submitted that the trial judge should have looked to find independent evidence corroborating or consistent with Mr Loader's evidence. That evidence is constituted by the quite remarkable coincidence between Mr Loader's evidence and what had occurred at the voir dire hearing.

93 Mr Loader gave evidence of conversations which were factually accurate in respect to Mr Zappia's appearances in the appellant's trial. The timing of the conversations was consistent with Mr Zappia's attendances. What was said about Mr Zappia's conduct in the appellant's trial was accurate.

94 Mr Loader could not have learned of those matters through the media. Orders were put in place suppressing publication of Mr Zappia's refusal to give evidence. That is not to say that Mr Loader could not have learned of the matters elsewhere. However, the objective evidence is consistent with his account.

95 The trial judge used Mr Loader's evidence as recounting a confession by the appellant that he had admitted to Loader that he had killed Mr Rasti and Ms Ellul. The trial judge used it as evidence establishing that the appellant was the shooter. He said:

"However my acceptance of Mr Loader's evidence that the accused had admitted to him that he had 'done it' had satisfied me that the accused fired the shots that killed Mr Rasti and Ms Ellul."

The appellant has failed to establish that the trial judge erred in accepting Mr Loader's evidence. The appellant has not demonstrated, in my opinion, that the trial judge was wrong to conclude that the appellant had admitted to Mr Loader that he had shot and killed the victim. The appellant has failed to show that the trial judge was wrong to conclude on that evidence that the appellant was the shooter.

96 The Crown case then has to be considered in the light of that evidence and the admissibility of other evidence has to be considered in the light of the trial judge's acceptance of Mr Loader's evidence that the appellant admitted shooting the victims.

The relationships between the appellant, the deceased and Mr Zappia

97 Ms Ellul was a prostitute and Mr Rasti was her pimp. They had been living together in a de facto relationship for nearly a year. About two weeks before their murders they moved into the Grand Apartments at Melbourne Street, North Adelaide, living first in one unit but later in unit 22.

98 Mr Rasti was an aggressive and violent man. He displayed violence towards associates and Ms Ellul and her clients. The trial judge described Mr Rasti as being a person who was neither respected nor liked. There was evidence to support that finding.

99 The appellant and Mr Rasti had been known to each other for a number of years although for a time they went their separate ways. Mr Rasti and Ms Ellul were out of South Australia for a period of time and lived in Queensland. They returned to South Australia in February 2000. At that time the appellant and Mr Rasti resumed their acquaintanceship. Apparently the appellant acted as a driver for Mr Rasti and Ms Ellul to facilitate her prostitution. He also provided security for both of them between their return and their deaths.

100 Evidence was called to show the type of relationship between Mr Rasti and the appellant and in particular that Mr Rasti treated the appellant badly. He was aggressive and rude towards him. On occasions he was violent. He publicly humiliated the appellant. About ten days before his death, whilst Mr Rasti and the appellant were at the Arkaba Hotel, Mr Rasti hit the appellant. Mr Prasad gave evidence of an argument between Mr Rasti and the appellant on 29 March 2000 at the Grand Apartments. On that occasion Mr Rasti publicly humiliated the appellant for no apparent reason.

101 The evidence showed that the relationship between Mr Rasti and the appellant was a volatile one.

102 The appellant and Mr Zappia were friends. There is no evidence, however, that Mr Zappia had any association with Mr Rasti other than through Mr Rasti's friendship with the appellant.

103 Neither the appellant nor Mr Zappia had any relationship with Ms Ellul except by reason of her relationship with Mr Rasti.

104 I turn to examine the circumstantial evidence and, in doing so, will note the evidence admitted over the objection of the appellant which the appellant contends on this appeal should not have been admitted. It is convenient to note this evidence setting it out in the chronological order of the events of the days preceding the killing of the victims. The chronology notes the movements of the victims as well as of the appellant and Mr Zappia over the weekend of 1, 2 and 3 April 2000.

105 The Crown called Sebastian Simoniuk, a student at the Flinders University who has been a friend of Mr Zappia for a number of years. He was also acquainted with the appellant for a period of about six months to 12 months before April 2000. Mr Simoniuk was also friendly with a man named Ilyas Khelwaty. His evidence was that in the months before the victims' deaths he and Mr Zappia would go out together nearly every day.

106 Mr Simoniuk said that he saw Mr Zappia before the victims' deaths. It was a Friday night. He thought it was 24 March 2000. Nothing turns on the exact date. I will continue to refer to that date. He saw Mr Zappia parked in a car at McDonalds in Hindley Street. There was another person in the back seat of the car. I think it is tolerably clear from the evidence that the person in the back of the car was not the appellant. Mr Simoniuk's evidence was that the appellant was inside McDonalds at the time. Evidence was led from Mr Simoniuk that Mr Zappia said to him, in the absence of the appellant, that they were planning to catch up with Mr Rasti or meet with him somewhere. The gist of the conversation was that Mr Zappia said that they were going to collect something from him. He owed them something or they had something to settle with him. Mr Simoniuk was asked:

"Q What was your understanding of the attitude which Mr Kamleh and Mr Zappia had towards that person Faraz that night?"

"A I can't comment on the attitude of Jamil because he wasn't there, but from what Natale said, or should I say the way he put how they were going to meet up with him, whether it was to catch up with him or a score to settle, the words that he used to me sounded like they were going to like settle a debt but it was more that Mr Faraz was the one that was owing, that's the way I sort of understood it. That he was the one that had to pay so to speak."

"Q From what Natale Zappia said to you they had something to settle with the man Faraz, who did you understand him to be referring to?"

Again counsel objected but again the question was allowed.

"A I believe that he was referring to himself, Jamil and the gentleman in the back seat."

The admissibility of the evidence that they were planning to catch up with Mr Rasti to collect something from him or to settle with him was challenged on appeal. The appellant claimed it was hearsay evidence and inadmissible.

107 I shall deal with that challenge in due course but in the meantime I would observe that the questions asked of the witness as to his understanding of what was said, in my opinion, were bound to elicit answers which were inadmissible. The witness's understanding of what was said was irrelevant. If the witness could give evidence of a conversation between himself and Mr Zappia, and that is a matter still to be decided, he was bound to give evidence of what was said during that conversation or, if he was not able to remember the actual words, the gist of what was said. He was not entitled, because it was quite irrelevant, to give evidence of his understanding of what was said.

108 On 30 March, Mr Rasti's red Commodore motor car was defected. I mention this fact only because reference is made to the defect notice and its removal in subsequent conversations between the appellant and Mr Rasti.

109 The appellant was interviewed by the Police (Detectives Weeding and Hutchins) on 6 April. His record of interview was tendered.

110 The appellant claimed in his record of interview that on 31 March he lent his blue Nokia phone to Mr Rasti because Mr Rasti needed a second mobile phone to use for an advertisement which he intended to insert in The Advertiser advertising Ms Ellul for prostitution. Two separate advertisements appeared in The Advertiser on Saturday 1 April advertising Ms Ellul for prostitution. Two names were used and two mobile telephone numbers were given one with respect to each name. One of those mobile telephone numbers related to the blue Nokia.

111 A copy of The Advertiser for Saturday 1 April was located in unit 22 on 3 April and a palm print matching the palm print of the appellant was found within the newspaper.

112 At or about 1:00pm on Saturday 1 April two men entered a shop near the Grand Apartments in which Angela Souris worked. She later identified one of the men from a photograph as being the appellant. The other she recognised as the deceased, Mr Rasti, from photographs she had seen in The Advertiser after his death. She said that whilst in her shop the appellant received a number of telephone calls on the blue Nokia and on the fourth call heard him say 'not until tomorrow night'.

113 The appellant said to the police that sometime in the late afternoon or early evening of Saturday 1 April he went to the Grand Apartments and had a conversation with Mr Rasti in the car park. He said in that conversation he talked about Mr Rasti's car "getting off the defect". Mr Kamleh said in that record of interview that he did not stay very long. He said he did not see Mr Rasti after that day.

114 At 9:40pm on 1 April a person fitting Mr Rasti's general description went to the Glenelg Police Station for the purpose of having the defect notice removed from his car.

115 The trial judge found that the conversation between the appellant and Mr Rasti relating to the defect notice must have occurred after 9:40pm on Saturday 1 April. He made that finding because in the conversation as recounted by the appellant Mr Rasti told him how he had got 'off the defect notice'.

116 It was open to the trial judge to find that that conversation must have occurred after 9:40pm because it was not until 9:40pm that the defect notice was removed. He was entitled to find that the appellant was wrong about his evidence that conversation occurred in the late afternoon or early evening.

117 The Grand Apartments are located at 55 Melbourne Street, North Adelaide. They comprise 53 serviced units in a three storey building. Access to the units is from Melbourne Street through double gates and a pedestrian gate. Access can be obtained using a key card or an occupant admits a person through an intercom arrangement.

118 On the weekend of 1, 2 and 3 April 2000 Mr Jeremy Ievins was residing in unit 33 of those apartments. On the night of 1 April Mr and Mrs Davis visited him at those apartments. They arrived at about midnight. At or about 1:00am on 2 April Mr Ievins drove Mr and Mrs Davis back to their place of residence. Mr Davis was sitting in the front with Mr Ievins. As Mr Ievins drove through the Melbourne Street gate he observed two men entering the Grand Apartments. Mr Ievins said that one of the men said "nice car mate" referring to Mr Ievins' vehicle. Mr Ievins described the men:

"One was taller, long haired, dark - long dark hair. I actually noticed that person hanging around the building prior to that. The other one was short - no, actually I can't describe the other one, I'm sorry ....

He was shorter than the first male, stocky; he was Greek or Italian, definitely wasn't Australian but I didn't take much more of a look, didn't get much more of a description of him than that."

Mr Ievins was unable to recall which of the two men had said "nice car mate".

119 Mr and Mrs Davis also saw the two men on this occasion. Mr Davis saw two men on the Melbourne Street side of the gate to the left of the vehicle. He had them under observation for about 30 seconds only. One man he described as being 5'11" tall, stocky, overweight, weighing about 100 kg wearing dark clothing, a skivvy, a dark waistcoat and dark jeans. That man was carrying a large brown shopping bag. He had a moustache and a trim goatee beard. He had an olive complexion but longer than cropped hair. It was this man who, according to Mr Davis, said "nice Commodore mate". He was unable to identify the second man. There was evidence that at this time the appellant had a goatee beard.

120 Mr Davis identified the appellant as the man who had said "nice Commodore mate". He was shown 15 photographs. He was not 100 per cent sure of his selection but was 90 per cent sure that the man he saw was the appellant.

121 Mrs Davis gave a description of both men one of which matched generally the description of the accused. Mrs Davis said that she saw two men at the entrance to the Grand Apartments waiting for the security gate to open. One of them was in his mid 20s with olive skin and of European, Lebanese or Greek extraction. He had short dark hair and a goatee beard. He was wearing dark clothing. She believed that this man said "nice car mate". The second man, she said, was shorter in his early 20s, slimmer and also wearing dark clothing.

122 Mrs Davis could not identify the appellant from a folder of photographs. She thought, however, it was a taller man who made the comment whilst the other witnesses believed it was the shorter man.

123 At 3:00pm on Sunday 2 April Mr Dellapia, who was a friend of the deceased, Mr Rasti, saw Mr Rasti in a cafe in Bank Street, Adelaide. Mr Rasti showed him a blue mobile phone.

124 Mr Oueiss and Mr Noujaim were friends and both were acquaintances of Mr Rasti. Mr Oueiss said he went to the Grand Apartments sometime between 3:00pm and 4:00pm on 2 April. Ms Ellul told him Mr Rasti was not there. Mr Oueiss said he returned to the Grand Apartments at 6:00pm and met Mr Rasti. He and Mr Rasti and a Mr Noujaim left the apartments and went to Salisbury. Mr Noujaim gave evidence that he met Mr Rasti and Mr Oueiss at the Grand Apartments at about 5:00pm and that he left the unit with Mr Oueiss at about 6:00pm or 7:00pm.

125 The appellant said in his record of interview that he slept at Mr Zappia's parents' house on Saturday night and Sunday morning, 1 and 2 April. He says he was woken at sometime between 5:00pm and 6:00pm on the Sunday.

126 Mr Koufalas was also a resident at the Grand Apartments over the relevant period. On Sunday 2 April he left the apartments between 5:30pm and 6:00pm on foot. On his return he noticed two men in a red VR Commodore parked outside the premises. He described the two men. One he described as being 180 to 185 centimetres tall with a goatee beard and black hair of stocky build and of Italian or Middle Eastern extraction. His hair was cut short on the back and the side and left curly on top. The other man he described as being 170 centimetres tall again of stocky build who also had a goatee beard. His hair was short back and sides with some colour on top. He was described as being of Middle Eastern appearance.

127 Mr Koufalas said he had seen both these men previously. The first man he had seen at about 3:00pm on 31 March 2000 and at that stage he noticed the man was talking on a mobile telephone. The second man he had seen on a number of occasions in the car park and at the entrance of the apartments in a red VR Commodore.

128 On 18 August 2000 he selected a photograph of the appellant from a group of 15 photographs. The appellant was, he said, the taller man. His description of the other man generally matched the description of Mr Rasti.

129 The trial judge said of the identification evidence:

"It was accepted by the Crown that none of the witnesses gave positive identification evidence. The evidence suggested that the general appearance of the accused was similar to that of a person seen at or near the Grand Apartments at various times. The photographic selections added to the evidence of general appearance. The identification in court of the accused is of minimal weight.

Ms Souras, Mr Koufalas, Mr and Mrs Davis and Mr Ievins were all witnesses of credit. However their evidence of identification must be assessed with care. Generally their observations were made over a short period of time and often while they were undertaking some other activity. A number of the observations were made at night. The photographic selections were made some months later. Alone each witness's evidence is of limited value. Alone much of this evidence is weak. However when considered together and with all of the evidence in the case it gains some strength. The evidence includes the accused's admission that he was with Mr Zappia on 1, 2 and 3 April 2000. The evidence has a tendency to prove that the accused was in the vicinity of the Grand Apartments at 1:00pm on Saturday 1 April 2000 and at the Grand Apartments about 1:00am on the morning of Sunday 2 April 2000, at or about 6:00pm on Sunday 2 April 2000 and then at about 1:00am on Monday 3 April 2000."

130 The trial judge directed himself as to the use to which identification evidence could be put. He referred to Smith v The Queen [2001] HCA 50; (2001) 75 ALJR 1398; Festa v The Queen (2001) 76 ALJR 291 and Domican v The Queen (1991) 173 CLR 555 at 561-562. The appellant has not complained, on this appeal, about the directions which his Honour gave himself or the findings which he made.

131 The evidence of identification is further circumstantial evidence which may be used to advance the prosecution case.

132 At sometime between 6:30pm and 7:30pm on 2 April 2000 Holly Stewart was standing at a bus stop on Main North Road when a red Commodore stopped. There were four persons in the car, three males and one female, who was sitting in the rear. The driver got out and introduced himself as Isaac. She gave him her mobile number which rang about 20 minutes later. It was Mr Rasti.

133 At some time on Sunday 2 April the appellant, accompanied by Mr Zappia, visited Mr Khelwaty's unit at Hectorville. It is likely that the appellant and Mr Zappia arrived sometime between 8:00pm and 10:00pm. There is some dispute about the time at which they arrived. The appellant said in his record of interview that he was unsure at what time he arrived "about 9 o'clock, 8 o'clock". Mr Khelwaty's evidence was that they arrived at about 8:00pm. Mr Sultani said they arrived about 10:00pm. Both said that the appellant and Mr Zappia stayed 15-20 minutes. Mr Simoniuk said that he had a conversation at the unit with Mr Zappia "around tenish". The trial judge found that the appellant and Mr Zappia were at the unit at about 9:00pm. That finding was not challenged.

134 The prosecution led evidence of the conversation between Mr Simoniuk and Mr Zappia. The appellant was not present at that conversation. Rather than attempt to summarise the evidence I set it out in full:

"Q Did you have a conversation with Natale Zappia that night.

A A private conversation, yes.

1. In that conversation did the topic which you have told his Honour that was raised by Natale the previous week come up.
2. Yes.
3. Could you tell his Honour what was said by Natale Zappia, on that topic.
4. Maybe I can sort of lead-up to that a little bit. Because since the time I saw them at the car park to the time I saw Natale at the flat, I had seen him once or twice in passing, prior to that Sunday night. And I remember asking have they sort of, did they catch up or whatever with whoever they were looking for and on a number of occasions he said no. So when I spoke to him that night, that Sunday night, on the veranda at Ilyas' apartment, I again asked, I was assuming that's what he asked me to step outside for and I asked, you know, 'Did you guys catch up with him? Is everything okay? Is everything fixed up?' and I believe he mentioned again, we are going to see him that night.
5. That they were going to see him that night.
6. Yes.
7. When he said they were going to see him that night to whom was he referring.
8. Himself and Jamil.
9. Did you have any further conversation with Natale about what they were going to do that night.
10. No.
11. Did Mr Zappia ask you for anything that night.

OBJECTION: MR MOFFA OBJECTS.

QUESTION ALLOWED

XN

1. Did Mr Zappia ask you for anything that night.
2. He asked me for ammunition.
3. Can you tell his Honour in what context Mr Zappia asked you for ammunition, to the best of your memory.
4. I'm sorry I don't, it - it would have just been 'can you' I suppose. I'll say that I have been in trouble with sort of firearms offences in the past and Natale knew about that, and he just asked me can I organise some ammunition and I said no.
5. Was there any discussion on the topic of any firearm that night.
6. There was, the conversation I cannot remember word for word, but it was my understanding that they were either on their way to pick one up, or they knew where one was and they were going to organise one or they were trying to organise one.
7. Where was Mr Kamleh whilst you had this conversation with Mr Zappia.
8. I'm unclear about that.
9. When Mr Zappia asked you about getting some ammunition, did he say who that was for.
10. No.
11. Back then did you own a balaclava.
12. Yes I did.
13. Did you see that balaclava at any stage that night.
14. Yes I did, I actually bought it down to Ilyas' apartment with the assumption that we were going fishing tonight. So I had a big jacket and warm clothing and a beanie balaclava.
15. Did you lend that to anyone.
16. Yes.
17. Who.
18. Jamil.
19. At what stage did you lend it to Jamil.
20. I believe it would have been after I had a conversation with him outside.
21. After you had a conversation with who.
22. With Natale.
23. How was it that you came to give Jamil Kamleh your balaclava.
24. Well, I mean amongst friends you go over to somebody's house if there's a hat or a nice jacket lying around I mean you just try it on, and I sort of assumed that's what he was doing. Just put it on and he asked me if he could borrow it.
25. Was that before or after the conversation that you had with Natale about the ammunition.
26. I believe it was after.
27. Did Natale tell you where they were going, after they left your unit that night.
28. I don't recall, from my understanding of that conversation is again -

OBJECTION: MR MOFFA OBJECTS.

MR MOFFA: If he doesn't remember he doesn't remember.

HIS HONOUR

1. If you can recall what was said, those words are still in your mind, you can tell me that. If you can't recall that but you can recall the gist or the substance of the conversation you can tell me that.
2. Okay. Can you ask the question again please?

1. Yes. Did Natale tell you anything about where they were going or what they were going to do that evening.
2. I think I've answered that already. When I asked, you know, like 'How did things go?', 'Did you guys catch up with him when I saw you guys last?' and he said 'No'. Once again I can't remember exactly what words were used, from what I understood they were again going to see him tonight, this person Faraz.
3. Did he say anything on the topic for what purpose; again the gist or the actual words used.
4. No.
5. Are you saying you can't remember.

OBJECTION: MR MOFFA OBJECTS.

MS KELLY: I won't pursue that topic."

Mr Simoniuk was then led on a very short conversation with the appellant a little later on the same occasion.

1. Was anything said by Mr Kamleh immediately prior to the departure of Mr Kamleh and Mr Zappia from Mr Khelwaty's unit that night.
2. Yes.
3. Could you tell his Honour what was said.
4. I can't remember the exact words used, but it was, from memory, 'Natale, come on, we have to go'.
5. Have you ever seen your balaclava again.
6. No.
7. Did Mr Kamleh say anything or ask, tell you anything about why he wanted that balaclava.
8. No, I don't believe that he did.
9. Now, when did you next see Mr Zappia.

HIS HONOUR: Just before you move on.

HIS HONOUR

1. Mr Simoniuk you told me there was a conversation about a firearm, a short while ago.
2. Yes.
3. And you then told me what your understanding was of the position in regard to the firearm, what did you base that understanding on.
4. I'm basing it because he asked me for ammunition.
5. And on anything else.
6. There was some reference to a firearm by Natale but, once again, I don't - I didn't understood whether he actually said on the way to pick one up or whether they've got one in the car or whether they are looking for one. I didn't really understand what sort of transpired from that conversation because my state of mind was that I've had a couple of drinks, this person has told me on numerous number of other occasions that they're going to sort of catch up with him and, to me, it was just another one of those okay, well, you've told me this so many times before sort of."

The appellant also challenged this evidence on this appeal. Like the McDonald's evidence, the appellant claimed this evidence was hearsay and should not have been admitted in his trial. I will discuss that challenge in due course.

The Evidence as to the Movements of Mr Rasti and Ms Ellul

135 Mr Ouiess gave evidence that he and Mr Noujaim, who had previously been in unit 22 with Mr Rasti and Ms Ellul, returned to unit 22 of the Grand Apartments after they had driven to Salisbury with Mr Rasti.

136 Mr Ouiess's evidence was that they were in unit 22 between about 9:00pm and 10:00pm with a woman called Janelle. Mr Noujaim's evidence was that he came to unit 22 of the Grand Apartments at around 5:00pm. Mr Ouiess' car was parked outside but only Ms Ellul was present in the unit. Ms Ellul told Mr Noujaim that Mr Rasti and Mr Ouiess had gone for a drive, and she telephoned Mr Rasti requesting that he return. He and Mr Ouiess returned to the unit and Mr Noujaim and Mr Ouiess then left together at approximately 6 or 7:00pm..

137 The trial judge did not resolve the differences in the evidence of Mr Ouiess and Mr Noujaim and nor, in my opinion, did he need to.

138 Mr Tristan Langan was Ms Ellul's last identified customer. He spoke to her or Mr Rasti at 8:45pm, 9:15pm and 9:28pm. He said that he went to the Grand Apartments to meet Ms Ellul at 9:30pm. He paid her $130 and had sex with her. He said he remained 15-20 minutes. Whilst he was there, he had a disagreement with Ms Ellul about the price she was charging him. Although the witness did not say so, it appears that Mr Ellul then left the room. Mr Langan heard her voice and a male voice outside the room and that male voice talking about the disagreement between Mr Langan and Ms Ellul as to price. Whilst he was with her Ms Ellul told him that she was going to the "Q Club". He said he left at 10:00pm.

139 He was not cross examined. The judge accepted his evidence. The judge made a finding that Mr Langan had attended unit 22 at about 9:30pm on 2 April 2000 and stayed for about 20 minutes. He made the further finding that Mr Rasti was present at the time. That finding was based upon Mr Langan's evidence that he heard Ms Ellul speaking to a male about the price to be charged.

140 Ms Holly Stewart, who had given her mobile phone number to Mr Rasti earlier that day, lives at Blair Athol. She said that at about sometime between 10:30pm and 11:00pm she was visited by Mr Rasti. He was driving the same red Commodore in which he had been before. She said that he stayed for about half an hour or around half an hour. He delivered her a bunch of roses and a box of chocolates. For the reasons which follow, I think that Ms Stewart's evidence is not entirely accurate as to the time when Mr Rasti visited her.

141 There were a number of phone calls made on the blue Nokia that night to Ms Stewart. The first was at 18:59.48 hours on 2 April and the last was at 00:18.59 hours on 3 April. The last telephone conversation continued over a period of eight minutes and 59 seconds.

142 The telephone records were tendered and I set out the summary of those records which was included in the trial judge's reasons.

"The telephone records indicate that SIM card 151 was used in connection with the blue nokia to call or attempt to call Ms Stewart at the following times:

143 I think it is more likely, having regard to the way in which the phone was used in trying to contact her, that Mr Rasti visited Ms Stewart earlier and left before 10:20pm. The phone records show that he was at Dudley Park shortly before 10pm and at Ottoway at about 10.17pm.

144 I think that is confirmed in the evidence of Mr Prasad. He said that Mr Rasti and Ms Ellul visited him at his parent's home at Pennington between 11:00pm and 11:30pm. He said Mr Rasti was driving a red Commodore. They stayed about 20 minutes. Mr Rasti indicated that the purpose of the visit was to apologise for an argument that occurred the previous week. Ms Prasad's parents live at Pennington.

145 However, the precise details of Mr Rasti's movements do not need to be resolved. The evidence clearly discloses that Mr Rasti and Ms Ellul were alive prior to 00:18.59 hours on Monday 3 April 2000 when Mr Rasti spoke to Ms Stewart.

146 Someone made a telephone call on another mobile telephone usually used by Mr Rasti at 00:31.34 on 3 April. The likelihood is that it was Mr Rasti but that also does not need to be resolved because other evidence establishes that Mr Rasti was alive after that time.

147 Mr Ievins was again awake at 1:00am on 3 April. This time he was standing on his balcony smoking a cigarette. That allowed him a view of the Melbourne Street entrance to the Grand Apartments.

148 He saw two men walking from the City heading north up Melbourne Street. One man was taller than the other. He was the man he had seen on the previous night. He could not be sure whether the shorter, stockier man that he saw on the Sunday morning was the same person he had seen on the previous night. In his evidence, he was definite that the taller man was the same person he had seen at or about the same time that is 1:00am on the morning of Sunday 2 April. Mr Ievins was not able to identify the appellant from an array of 16 photographs. He selected the appellant and three other people as "similar looking". Mr Ievins' evidence has to be understood in conjunction with the evidence of Mr Davis. Mr Davis identified the man he saw at 1:00am on 2 April as the appellant. Mr Ievins said that the man Mr Davis identified whom he saw on 2 April was the same man he saw on 3 April. He could not identify that man as the appellant. However, if Mr Davis' identification was accurate and Mr Ievins' evidence accurate, the appellant was at the apartments at about 1:00am on both 2 and 3 April.

149 Ms Stewart gave evidence of one further telephone conversation with Mr Rasti which she said occurred at about 1:00am on 3 April and which lasted for about 10-15 minutes. Her evidence was that whilst she was talking to Mr Rasti he introduced another person to the telephone. She had the impression that the person's name was Jamie. She spoke to him for a short time. She got the impression that he did not want to speak to her.

150 The evidence shows that the appellant was sometimes called "Jamie" by friends and acquaintances.

151 The telephone records show that the last telephone call made from a telephone associated with Mr Rasti was at 1:13.07 hours on Monday 3 April to a Ms Lygos. Ms Lygos was not called in the trial. The call took three minutes and 22 seconds and it was an agreed fact that Mr Rasti made the call to a Ms Lygos. Having regard to that agreed fact it had to follow, and the trial judge found, that Mr Rasti was still alive at 1:16.29 hours on Monday 3 April.

152 At about 2pm on the afternoon of Monday, 3 April the bodies of Mr Rasti and Ms Ellul were found at 2:00pm by Ms Angela Powell, a cleaner employed at the Grand Apartments. Her attention had first been drawn to unit 22 at about 11:00am when she heard the noise of a television on very loud volume. She entered the unit and noticed legs on the bed in the main bedroom. She assumed that the person was asleep and left the unit. She returned at 2:00pm when she discovered the bodies of Mr Rasti and Ms Ellul.

153 The police found Mr Rasti's body lying on a double bed, face up with gunshot wounds to the left eye and throat. Ms Ellul's body was on the floor alongside the double bed. She was lying face down and had sustained a gunshot wound to her forehead.

154 Both deceased had died as a result of .22 calibre gun shot wounds to the head. In the case of Ms Ellul death resulted from a single .22 calibre gun shot wound to the upper central forehead. In the case of Mr Rasti death was caused by two .22 gun shot wounds in the area of the left upper eye and the throat. The shots had been fired at intermediate range.

155 Dr Gilbert, a forensic pathologist, expressed the opinion that the shots were fired at close range. Mr Rasti's body showed evidence of tattooing near the left upper eyelid which indicated that the shooter would have been somewhere between 30cm and 2 metres away from the wound when the gun was fired. Dr Gilbert's opinion was that their injuries were consistent with the shooter standing or sitting near the end of the double bed. Ms Ellul's body did not show evidence of tattooing which suggested that the shot which killed her was fired at a greater distance from her body than the shots which killed Mr Rasti.

156 The trial judge found, consistently with Dr Gilbert's evidence, that all of the shots were fired at close range.

157 In the case of both deceased the precise time of death could not be determined. Dr Gilbert's opinion was that the deceased died sometime between 8:00pm on 2 April and 4:00am on 3 April. The evidence to which I have already referred and which was accepted by the trial judge shows that neither deceased could have died before 1:16.29am. It is highly unlikely that Mr Rasti shot Ms Ellul dead before that time. It follows therefore that the time of death of both victims can be narrowed to between 1:16.29am and 4.00am.

158 A crime scene examiner made a thorough examination of the unit and took a number of items of evidence for testing. A Saturday, 1 April 2000, edition of The Advertiser was found. Cigarette butts were taken for analysis. A green Nokia mobile telephone was found amongst the pillows on the double bed, close to Mr Rasti's right hand.

159 The blue Nokia mobile phone was not found. The importance of that should not be overlooked. The appellant said that he had lent that telephone to the deceased on 31 March and it was the telephone that had been almost constantly used by Mr Rasti up until 1:16.29am on 3 April. It must have been in Mr Rasti's possession until at least the time of that last telephone call.

160 Three spent cartridges and one live round of ammunition were found on the double bed. The spent cartridges had contained .22 ammunition. The live round of ammunition was .22. Expert evidence from Constable Lawrence of the ballistic section of the Forensic Services Branch of the South Australian Police Department was to the effect that the spent cartridges had been fired from the same weapon. He said there were a number of explanations as to why the live round was found. It could have been dropped. It could have been ejected from the gun as a consequence of a fault. There was a mark on the live round which suggested that it had been in a gun at sometime.

161 Constable Ellison from the South Australian Police Department, who is a fingerprint expert, examined a number of fingerprints taken from the crime scene. Numerous fingerprints from Mr Rasti and Ms Ellul were found. She also identified the appellant's fingerprints and those of Mr Zappia.

162 The appellant's palm print was located on the copy of The Advertiser of Saturday, 1 April. Constable Ellison's opinion was that it had been made by the appellant's left hand. She also located the appellant's fingerprint on the inside cover of a notebook which was found in a handbag in unit 22. A drinking glass was found on the coffee table upon which were a number of Mr Zappia's fingerprints. Dr Both, a forensic scientist, was also called and she offered the opinion that DNA taken from the drinking glass matched Mr Zappia's DNA profile.

163 The appellant's account of his movements between 8:00pm on Sunday 2 April and 4:00am on Monday 3 April must be examined in some detail because it occupied a significant part of the trial and because the trial judge relied upon a finding that the appellant's alibi was false as evidence of the appellant's consciousness of guilt.

164 Immediately after the bodies were discovered, the police began their investigations. The trial judge found:

"Television channels ran footage about the incident on the evening news. The footage did not disclose any information about the number of shots fired, the possible jamming of a gun, the volume of the television, the location of the wounds and the position of the bodies."

165 Mr Simoniuk spoke with Mr Zappia on the telephone on Monday 3 April and "a couple of hours later" met him at Mr Zappia's flat. He said that Mr Zappia looked "really nervous" and "very tired". He said that he and Mr Khelwaty proceeded to have a smoke "and I can't remember what it was, whether it was myself or Ilyas but we were sort of stirring him up about what we saw on the news earlier".

166 If that evidence is correct, this conversation must have taken place after 2:00pm when the bodies were found and after the first report appeared on the television. That is the only explanation for them being able to stir him up about what they had seen on the news earlier. His evidence continued:

"Q Sorry, you might have misunderstood my question. Did Natale say anything on the topic of whether they had caught up with the man.

1. Some time that evening, yes, he did.
2. What did he say.
3. Well, specifically I can remember saying him he can't believe he done it, he can't believe he done it, 'shouldn't have to die'. It was more -

OBJECTION: MR MOFFA OBJECTS

HIS HONOUR

1. Don't be concerned about these debates about legal matters. There are rules about admissibility and relevance that cut across perhaps the court hearing a lot of material. If you just listen to the question and answer the specific question asked to the best of your ability.
2. Okay.

1. In that conversation that you had with Mr Zappia, did he tell you that he was in the room when Faraz and Rhiannon Ellul were shot.
2. After having read my statement and refreshed my memory, I believe yes.
3. And did he tell you that he, meaning Natale Zappia, had turned up the television set.
4. During some point, of him turning it up, yes.
5. Did he tell you that Jamil Kamleh had shot Rhiannon and Faraz.
6. Okay, those specific words I can't say I remember.
7. Did he tell you what kind of gun was used.
8. I cannot be sure if the details of the calibre of the firearm - I can't be sure if they were disclosed to me that night.
9. At some stage were they disclosed to you.
10. Yes.
11. If they weren't disclosed to you that night, when would they have been disclosed.
12. Subsequent meetings that I had with Natale, most likely in Ilyas's apartment.
13. Whether or not the conversation occurred the day after or in Ilyas's Khelwaty unit with you some time later, did Natale Zappia tell you how many shots were fired.
14. Yes.
15. What did he tell you.
16. Three shots went off from that firearm.
17. Can you tell us all what he told you on the topic of those three shots and who was shot first.
18. Mr Faraz was shot first suffering an injury in the eye. Then the female, she was shot somewhere in the head. And Mr Faraz again was shot in the throat.
19. Did he say how many shots were fired or attempted to be fired.
20. After Mr Faraz was shot, the subsequent time in the throat, there was another shot fired at which point the gun jammed."

The trial judge found that Mr Zappia's statement to Mr Simoniuk disclosed esoteric knowledge on the part of Mr Zappia. He admitted that evidence in the trial against the appellant.

167 The appellant has complained about His Honour's ruling admitting that evidence which the appellant says was inadmissible against the appellant as hearsay evidence. I shall return to discuss the admissibility of that evidence in due course.

168 Ms Watt was called and said that she telephoned and spoke to the appellant on 4 or 5 April 2000. He told her that his mobile telephone "was now at the police station being used as evidence". He told her not to ring the mobile any longer "because there would be no way for me to contact him through it obviously". She was asked:

"Q Did he tell you how it got to be at the police station.

A He was visiting Fraz the night before and he left it there.

Q The night before what.

A The murder.

Q Did he tell you why his phone was left there.

1. No he didn't; he just said he went to visit him and he just forgotten his phone. I do believe he had told me some sort of story but I couldn't be sure of what it was...
2. You said that Mr Kamleh told you he had left his phone - where did he say he left his phone.
3. In the motel that Fraz and Rhiannon ... were staying."

The trial judge accepted Miss Watt as a witness of truth but he was unable to resolve the ambiguity latent in her evidence. She said that the appellant spoke of the night before. He could have been referring either to the Sunday night or the Saturday night. If the appellant was referring to the night before as being Sunday night that was inconsistent with his account to the police to which I will refer in a moment. If, on the other hand, 'by the night before' he meant Saturday night that was inconsistent with his evidence that he last saw Mr Rasti on the late afternoon but early evening but not materially so.

169 As I have already mentioned, the appellant was interviewed by the police for the first time on 6 April. I have already referred to some aspects of his record of interview.

170 The appellant was asked to account for his movements on Sunday 2 April and Monday 3 April and I set out that part of the interview which deals with the questions and answers in relation to that topic. He was interviewed by Detective Weeding:

"WEEDING. You understand you are not under arrest for anything?

KAMLEH. Oh yeah can I just ask ... am I supposed to be speaking out loud.

WEEDING: If you can speak up, that's the speakers.

KAMLEH. Sorry.

WEEDING. Yep.

KAMLEH. Because you sound like your (sic) radio announcing or something.

WEEDING. Oh sorry, it is just the way I talk. But yeah if you can speak up it would be appreciated.

KAMLEH. Yeah, no problem.

WEEDING. It just makes it easier for the people when they transcribe it.

KAMLEH. Sorry man, I'm not feeling to (sic) well.

WEEDING. That's all right. Jamil, first of all I will just try and get what your movements were on Sunday, the 2nd of this month through to Monday the 3rd. OK. So on the Sunday morning being the 3rd, the 2nd of April this year, where were you?

KAMLEH. In the morning, I was asleep at my mates place.

WEEDING. All right, whereabouts was that?

KAMLEH. At Valley View, with, I was um with my friend Chris or Natale he was at uh his parents house and uh he had made a little thing up for me to sleep next to his like a mattress pulled out from under his bed. I slept on the floor at his house we didn't wake up until like in the evening at his house.

WEEDING. All right.

KAMLEH. We woke up in time to have dinner.

WEEDING. All right, so.

KAMLEH. That was on the Sunday.

WEEDING. What's his full name?

KAMLEH. Um, I'm not sure if he's got a middle name or anything like that, Chris Zappia.

WEEDING. And whereabouts does he live?

KAMLEH. Valley View, Pauls Drive.

WEEDING. What number?

KAMLEH. Oh, I've been there a hundred times and I've never even bothered to notice it is only a few streets, a few houses up from the beginning of the street.

WEEDING. And what's the name of the street?

KAMLEH. Paul, Paul's Drive.

WEEDING. Is that P A U L?

KAMLEH. Yes, I think so.

WEEDING. Drive at Valley View?

KAMLEH. Valley View, yeah.

WEEDING. Do you have a phone number for him?

KAMLEH. Oh, I've got a house number.

WEEDING. A house number? Yeah, what's that?

KAMLEH. Um, I don't know. 8376 6014.

WEEDING. What's his name?

KAMLEH. Chris Zappia.

WEEDING. So you stayed with him on the Saturday night?

KAMLEH. Yeah.

WEEDING. In his bedroom?

KAMLEH. Yeah.

WEEDING. Right. What time did you get up?

KAMLEH. Oh I don't know, his Mum woke us up about time for dinner.

WEEDING. As in lunch, like midday?

KAMLEH. By tea.

WEEDING. Oh, for tea?

KAMLEH. Yeah.

WEEDING. So you slept there all day?

KAMLEH. Yeah.

WEEDING. OK. What time did you get up then?

KAMLEH. Oh, I'm not sure, I'm not sure, about, I'd say about five or six o'clock.

WEEDING. And that's the mother woke you up?

KAMLEH. Yeah.

WEEDING. And what did you do then?

KAMLEH. Then um, after that, we had dinner.

WEEDING. At his house?

KAMLEH. Yeah. Had dinner at his house. Chat with his Mum, sat down with his Dad for a while.

WEEDING. And then what were your movements?

KAMLEH. Um, then we went to see a mate Seb at um, a bloke called Ilyas's place, but I don't know how to spell it.

WEEDING. From that address, you've gone to see another friend?

KAMLEH. Yeah we went to see a mate after that.

WEEDING. So what time did you leave, Chris's address?

KAMLEH. About, I'm not sure about 9 o'clock, 8 o'clock.

WEEDING. OK. Did Chris go with you?

KAMLEH. Yeah, he drove.

WEEDING. Anyone else?

KAMLEH. Nah.

WEEDING. And you drove, what car did you go in?

KAMLEH. We went in his sisters car.

WEEDING. And what sort of car is that?

KAMLEH. Um, Mitsubishi Sigma.

WEEDING. Right, do you know what colour it is?

KAMLEH. Greenie Brown.

WEEDING. Has he got a car, Chris?

KAMLEH. Yeah.

WEEDING. What sort of car's he got?

KAMLEH. He's got an XF Ford.

WEEDING. And what colour is that?

KAMLEH. White.

WEEDING. But you went in the sisters car?

KAMLEH. Blown engine.

WEEDING. OK.

KAMLEH. Blown gearbox.

WEEDING. Have you got a car?

KAMLEH. Yeah.

WEEDING. What sort of car have you got?

KAMLEH. BMW.

WEEDING. Do you know the registration of that?

KAMLEH. EFF517.

WEEDING. How did you get to Chris's in the first place, did you drive there yourself?

KAMLEH. He took me, he brought me from there, he he he'd driven me to his house.

WEEDING. OK. So when you've left Chris's house, who's house did you go to?

KAMLEH. We went to my mates flat, Ilyas I've only been there once, I don't really know what the address is.

WEEDING. Ilyas?

KAMLEH. Yeah.

WEEDING. Do you know what his last name is?

KAMLEH. Nuh. Oh I hardly know the guy, it's one of Chris's mates .......

WEEDING. Do you know roughly where he lives?

KAMLEH. Northern suburbs.

WEEDING. All right.

KAMLEH. Um, Newton, Newton Newton Way.

WEEDING. All right. And what time do you think you got there?

KAMLEH. Not long after we left, but we, we didn't stay long, we just stopped there we we couldn't get in the drive way, because someone parked their car across the drive, so we pulled up and then we ran up for a chat with him for a bit. I just went up ... you know, you know don't want to hang around here all night or not.

WEEDING. All right. So where did you go from there then?

KAMLEH. Then we went to town.

WEEDING. Whereabouts in town?

KAMLEH. Um, we were going to go to the Ballroom, but we decided nah we would go to Q, because my cousin Ray would be at Q. So we said oh we will pop past Q.

WEEDING. Sorry the first place you were going to, was where?

KAMLEH. Ballroom.

WEEDING. And what's that?

KAMLEH. It's a pool hall.

WEEDING. And whereabouts is that?

KAMLEH. Rundle Street, it's just next to, you know where Caffe Buongiorno is.

WEEDING: Yeah.

KAMLEH. Yeah. It's up, but we didn't go there.

WEEDING. Do you normally go there?

KAMLEH. Oh yeah, once in my life, oh yeah, I know the guy who used to own it, long long time ago, that's were I first met Isaac.

WEEDING. All right. Was Ilyas with you then?

KAMLEH. No.

WEEDING. Just still you and Chris?

KAMLEH. Me and Chris.

WEEDING. So you've gone to the Ballroom.

KAMLEH. Yeah, no, no we hadn't gone there, we were going to go there.

WEEDING. You were going to go there?

KAMLEH. Yeah. We decided we would go to Q and stay at Q because if we wanted to go to Ballroom we would have to go to Q after anyway.

WEEDING. All right. So where is Q?

KAMLEH. Um, you know where Cafe Scuzzi is, in Rundle Street.

WEEDING. Yes.

KAMLEH. It's upstairs from that.

WEEDING. And what time do you think you got there?

KAMLEH. Around about quarter to eleven or about elevenish quarter to eleven.

WEEDING. And whereabouts did you park?

KAMLEH. Uh, behind the Stag, not, like behind it, yes, like you k now where you've got, you've got little ally's running down Rundle.

WEEDING. Yeah.

KAMLEH. Yeah.

WEEDING. So just in alley and the back of the Stag.

KAMLEH. Yeah.

WEEDING. Is that where you parked?

KAMLEH. Yeah.

WEEDING. Off Rundle Street or off.

KAMLEH. You can get there off Rundle Street, yeah.

WEEDING. All right.

KAMLEH. You can get there off another street that comes off of Rundle Street as well.

WEEDING. So you went into the Q billiard hall.

KAMLEH. Oh.

WEEDING. Or what is it.

KAMLEH. No it's not a billiard hall on Sunday you can play billiards if you want, but it's mainly, they got DJ Josh, plays dance music.

WEEDING. All right.

KAMLEH. Good DJ.

WEEDING. And who else was there that you knew?

KAMLEH. Oh um, we saw my cousin Raymond that doesn't count does it um, his girlfriend Fiona and this bloke Paul, it was his birthday. He's um, going to be moving in with my cousin Ray. There getting a flat together.

WEEDING. So were these three people together as a group?

KAMLEH. Oh yeah, and a girl called Chelsea, I don't know her though.

WEEDING. Ok.

KAMLEH. We were up there drinking and then I saw my mate Matt up there.

WEEDING. Right. First of all, who is Fiona?

KAMLEH. That is Raymond's girlfriend.

WEEDING. Right. Do you know her last name?

KAMLEH. Oh no, no. I don't really like take notice of people's last names and stuff.

WEEDING. What about Paul.

KAMLEH. I know it's not good.

WEEDING. Do you know Paul.

KAMLEH. Paul's Paul's Ray's soon to be flat mate and it's his 23rd Birthday. Like I say we wanted to go to Q so we didn't end up hitting Ballroom.

WEEDING. Do you do you know where Paul and Raymond are going to live then, if they are going to be flat mates.

KAMLEH. There (sic) not moving out yet, they intend moving out together Ray still lives with his folks and I think Paul still does the same.

WEEDING. Right and where does Raymond live.

KAMLEH. Um, he lives on Anzac Highway.

WEEDING. Do you know the address.

KAMLEH. Um, not really I am I'm not really take notice of that.

WEEDING. That's all right.

KAMLEH. All the time.

WEEDING. Do you know his last name.

KAMLEH. Yeah, Kamleh. Eh.

WEEDING. Yep, so what did you do at Q.

KAMLEH. Drank, just chilled out perved on the girls.

WEEDING. Was it a busy night?

KAMLEH. Not not for the beginning of it the beginning was pretty shitty and then it got good ..........Q

WEEDING. So what time did you stay there to?

KAMLEH. About four. Yeah they close at four and I was complaining that I couldn't get a drink after four.

WEEDING. All right.

KAMLEH. I don't know like oh yeah like no it's all right.

WEEEDING. What's that.

KAMLEH. No I was going to say you know we running around looking for a mate as well that night.

WEEDING. You were.

KAMLEH. Oh, me and Chris, we were looking for a mate who works there, but he didn't get there until later.

WEEDING. And who was that?

KAMLEH. His name is Brad. Me and him we used to be like arguing all the time and then Chris made me make my peace with him so I said I yeah all right I'll make peace with him.

WEEDING. So who's Brad?

KAMLEH. Oh he just works there. He couldn't come up nothing he had to work downstairs so.

WEEDING. But you saw Brad.

KAMLEH. Yeah.

WEEDING. What time do you think you would have seen him.

KAMLEH. About twenty past twelve.

WEEDING. And that was at the front door.

KAMLEH. Yeah, he wasn't allowed to work upstairs, I don't know why.

WEEDING. So how long would you have been speaking to him for.

KAMLEH. Not long. I mean we come down there for a few minutes, give him a smoke, have a chat, you know.

WEEDING. Do you know his last name.

KAMLEH. No, as I said, I never used to like the guy, you know, I mean I made peace with him not long ago.

WEEDING. Are you a regular at Q.

KAMLEH. I wouldn't say regular, I'd say I go there on and off, probably one weekend a month.

WEEDING. Are you known to the staff there.

KAMLEH. No.

WEEDING. No. Apart from Brad.

KAMLEH. Oh, I hardly know him, I just um, as I said, we used to like be arguing and it used to be a bit hard for me to go in there like you know you see the bouncers like and he's the doorman and he doesn't like so kicks us out.

WEEDING. So he didn't use to let you in.

KAMLEH. No, he use to let me in because he knew I wasn't a shit stirrer but then I had um, I had a night out with a few of my mates and he said look you know why don't you go up to him and say your sorry for all the shit, it's a long time ago. Make peace with him, so I said yeah might as well.

WEEDING. Right but you stayed there until it closed.

KAMLEH. Yeah, always Q Sunday night, gotta stay till close because the best DJ doesn't come on till last.

WEEDING. Do you know who the DJ was.

KAMLEH. Josh.

WEEDING. Josh, and that's was the last DJ was it.

KAMLEH. Yeah, all the rest don't count.

WEEDING. Right ok.

KAMLEH. That's the way she likes to put it, she calls herself the people's DJ.

WEEDING. Right. So where did you go when you left.

KAMLEH. Um, Q, We hang out in Rundle Street for about 30, 40 minutes, I'd say 35 minutes.

WEEDING. When you say we who are you talking about.

KAMLEH. Me and Chris and my mate Matt. Who's oh yeah my my mate Oh you want to put someone else up there ... Matt Delapia ...... he was spewing at us because we didn't come with him to Tappas because he said Tappas was better.

WEEDING. So what time did Matt meet up with you,

KAMLEH. He didn't come up until about one o'clock he was not there until about one he went to Tappas before hand. Cough - sorry.

WEEDING. That's all right so where does Matt live.

KAMLEH. I'm not sure, he used to live with his girlfriend in Richmond, but she moved to Melbourne and he's going to follow her up there she moved with the baby and they were trying to set up a computer business, I think.

WEEDING. Do you know his phone number.

KAMLEH. Nuh, but you can catch him in the Hyde Park Hotel he works there, I don't know what days of the week though.

WEEDING. All right, so you leave about four o'clock, hang around Rundle Street for about 40 minutes.

KAMLEH. Nuh, not that about 30, 30-35 minutes.

WEEDING. All right, and where did you go from there.

KAMLEH. Um, we were just trying to decide who's, see usually Sunday someone has a party at their house after, and it was party at your house, nuh, party at your house nuh, party at your house nuh, moved back in with my folks nuh so me and Chris we went to we met Matt and his mate Lewis, yeah Lewis was there to, um, sorry I'm just like trying to work it all out. We met Matt and Lewis back down at Rio's cause that's pretty much it on a Sunday morning.

WEEDING. Yep, so you went to Rio's.

KAMLEH. Yeah.

WEEDING. That's in Hindley Street.

KAMLEH. Yeah.

WEEDING. Yeah.

KAMLEH. And we just played pool with Matt and Lewis.

WEEDING. At Rio's.

KAMLEH. Yep. Went upstairs, had a few more drinks.

WEEDING. Until about what time?

KAMLEH. Pokies, oh we were there a couple of hours.

WEEDING. So where did you go from Rio's."

The interview then records Mr Kamleh's account of his movements after Rio's. Those details are unimportant, having regard to Dr Gilbert's opinion that the latest time the deceased died could have been 4:00am on 3 April.

171 In his interview the appellant offered an alibi over the relevant period. He said that he arrived at the Q Club at around about quarter to eleven or about elevenish. He offered the names of the persons whom he met at the club. He said that he stayed there until 4:00am.

172 The appellant said that he and Mr Zappia looked for a mate with whom he used to argue and Mr Zappia suggested that he make his peace with that man. The person to whom the appellant was referring is Mr Brad Townsend, who gave evidence at the trial. The appellant said that he saw Mr Townsend at 12.20am at the front door. He was asked whether he stayed at Q Club until it closed and he said, yes.

173 Mrs Shaw argued that the record of interview was ambiguous. She said that at no time did the appellant say that he was there all of the time between a quarter to eleven or 11:00pm on Sunday night and 4:00am on Monday morning. In my opinion, the record of interview is quite clear. I think there is no ambiguity in the questions or answers. I think the appellant understood the questions asked of him and intended to convey to the questioner that he was at the Q Club for the whole of the time after he arrived between a quarter to eleven or 11:00pm on Sunday night and 4:00am on Monday morning. I think he also meant the questioner to understand that he had a conversation with Mr Townsend at about 12:20am and that conversation was initiated by Mr Zappia who wished the appellant to make peace with Mr Townsend.

174 The trial judge concluded that in the record of interview the appellant had claimed that he was at the Q Club between 10:45pm on 2 April and 4:00am on 3 April. I agree with the trial judge's finding. That finding is important. In due course the judge used that finding as demonstrating a lie and a lie told out of a consciousness of guilt. That further finding must be addressed after considering the evidence of the witnesses who were called in relation to the appellant's presence at the Q Club.

175 The alibi offered by the appellant was examined in detail by the trial judge.

176 The police interview with the appellant concluded at 1:50pm on 6 April. Four telephone calls were made that day from the Kamleh's land line to the Zappia land line at 2:53pm, 5:07pm, 6:42pm and 7:15pm. In addition a mobile phone associated with the appellant was used to ring the Zappia land line at 7:22pm and 7:52pm. The telephone records indicate continuing contact between Zappia land line and a mobile phone associated with the appellant over the next few days.

177 Two telephone calls between Mr Zappia and the appellant on 13 April 2000 were intercepted by police. Those telephone calls show an awareness of the police investigation and a concern by both men that they may be being followed by the police and that their telephone calls may be intercepted.

178 On 14 April the police interviewed Mr Zappia. The Crown tendered the record of interview with Mr Zappia to establish that both Mr Zappia and the appellant had asserted almost identical movements on Sunday and Monday, 2 and 3 April. The record of interview was not tendered to prove the truth of what was said but only for the purpose of establishing what was said in order to prove that it was identical or almost identical with what the appellant had said.

179 In my opinion, the record of interview was admissible for that purpose, that is to say, to prove similarities in the accounts given by Mr Zappia and the appellant as to their movements on 2 and 3 April. That, coupled with other evidence, allowed the trial judge to find that the alibis and, in particular the appellant's alibi, had been concocted.

180 The trial judge also found that the appellant and Mr Zappia had concocted a false alibi. The appellant has appealed against that finding. The finding also requires an examination of the evidence given by persons present at the Q Club on the night of Sunday 2 April and the early hours of Monday 3 April. I will examine that in a moment.

181 Sometime after 14 April 2000, Mr Zappia's mother, at the request of her son, disposed of a mobile phone which she found in a sock under her daughter's bed. She threw it out with rubbish. Mrs Zappia gave evidence of that instruction. That evidence was admissible. It was not hearsay evidence. It was a direction which explained why Mrs Zappia did what she did. It proved why Mrs Zappia disposed of the mobile phone.

182 Sometime after 14 April, probably shortly after, Mr Zappia left South Australia and went to Queensland. He returned sometime before 8 July. On 8 July he made telephone contact with Mr Simoniuk. That call was intercepted by the police.

183 Over the objection of the appellant's counsel, the Crown tendered evidence of that conversation. The trial judge admitted the conversations as further evidence of Mr Zappia's esoteric knowledge. The evidence, so the trial judge said, was admitted and was used solely for that purpose. He found that the relevant esoteric knowledge, from the conversations, was said to be the fact that the television had been turned up, the fact that three shots had been fired and the scene which would have confronted a staff member on entry.

184 I set out that part of the conversation of 8 July which the judge admitted upon the basis mentioned:

"Mr Zappia: Yeah I turned the fucken TV up, fuck yeah but the thing is man

...

Mr Simoniuk: Do you have to when the waitress, when the waitress from the bar first came up

Mr Zappia: Oh so she would have opened the door and she would have been too panicky and

Mr Simoniuk: Nah nah nah ... that's what I was bout to ask you, do you have as soon as you open the door would she have seen what the fuck happened in there

Mr Zappia: Nah

Mr Simoniuk: Or do you actually have go in

Mr Zappia: No you have to go in

Mr Simoniuk: ... the door

Mr Zappia: ... the door

Unidentified Male: So the door in the ...

Mr Zappia: Yeah, yeah that's right

Unidentified Male: That's what I said ...

Mr Zappia: Fuck yeah ... she should have had a heart attack walking around ... She would have had a heart attack man (laughter) shit. Yeah ...

Mr Simoniuk: ... the TV was still playing

Mr Zappia: Oh yeah it was loud man, so they would have known it was turned up on purpose.

Mr Simoniuk: Do you think if she went to ...

Unidentified Male: Yeah ...

Mr Simoniuk: But anyway she was in the bedroom before she touched the knob

Mr Zappia: ... fucken man like the door was open

Mr Simoniuk: Okay, okay ... do you from the front door

Mr Zappia: No you can't see in

Mr Simoniuk: Okay listen from the front door as you're walking up to the TV would you have seen it rather than walking towards the TV

Mr Zappia: Yes

Mr Simoniuk: Oh fuck yeah ... your prints, your prints would have been on the volume knob or the power buttons on the remote control or whatever they were using or the fucken TV so your prints would have been as well

Mr Zappia I don't know man

Mr Simoniuk Listen to what I am saying, you were sitting on the lounge watching t.v. and he goes I ... am going to have a chat to him for a sec you heard ..."

185 A further conversation between Mr Simoniuk and Mr Zappia was intercepted on 9 July. That too was admitted over the objection of the appellant upon the same basis as the conversation of 8 July. In that conversation Mr Simoniuk and Mr Zappia said:

"Mr Simoniuk: Just listen, say I was in the house, I started watching t.v. next thing Jay ...

Unidentified Male: ...

Mr Simoniuk: He started arguing, the next thing you heard was two shots, three shots, whatever,

Mr Zappia: Three shots"

The conversations on 8 and 9 July were objected to upon the same ground as the telephone conversation that Mr Simoniuk recounted that he had with Mr Zappia on 3 April. That telephone conversation was also admitted upon the same basis. I will deal with those objections in due course.

186 On 15 July Mr Zappia was arrested. Within a few hours the police intercepted a call from Mr Zappia's brother to the accused. In it Mr Zappia's brother said to the accused that his brother had just got picked up and was in gaol. In answer to the accused's question "For what". Mr Zappia's brother said: "For you know what." And the accused said: "Yep". Mr Zappia's brother then said that the accused would know "what's gonna happen if he goes down". Very shortly thereafter the appellant was arrested.

187 I have mentioned in this resumé of the facts the evidence to which objection was taken at the trial and which formed part of the grounds of appeal on this appeal. I can summarise that evidence at this point as being:

η the McDonald's conversation,

η the Hectorville conversation,

η the Zappia conversation with Mr Simoniuk on 3 April,

η the Zappia conversation with Mr Simoniuk on 8 July, and

η the Zappia conversation with Mr Simoniuk on 9 July.

Otherwise there were no complaints on this appeal about the facts or findings which have formed part of the narrative which I have set out. There were no complaints about the directions that His Honour gave himself in relation to the identification evidence which I have discussed.

188 In particular, there was no complaint of His Honour's finding that Mr Ievins and Mr and Mrs David saw the appellant at the Grand Apartments at 1:00am on Saturday 2 April and that Mr Ievins saw the appellant again at 1:00am on 3 April 2000 at the Grand Apartments, although the last mentioned finding has to be understood in relation to a further aspect of the evidence still to be discussed which related to the appellant's alibi. It is necessary before considering the appellant's complaint about the admissibility of the conversations to which I have just referred to have regard to the evidence of the witnesses who were called in relation to the appellant's alibi. That is the evidence of persons at the Q Club.

189 Evidence was given by a number of persons present at the Q Club on the night of Sunday, 2 April and the early hours of Monday, 3 April. One of those witnesses was a Ms Janette Mouroufas. The trial judge accepted her evidence. I summarise the evidence given by the persons present at the Q Club and then consider whether the trial judge was correct in making findings based on the evidence of Ms Mouroufas.

190 Fiona Burton-Moore had been Raymond Kamleh's girlfriend for about a year and a half prior to 3 April 2000. Raymond Kamleh is the appellant's cousin. Ms Burton-Moore also knew Mr Zappia and Mr Zappia's brother, Benito.

191 She said that she arrived at the Q Club at about 11:00pm in the company of Raymond Kamleh. They went upstairs. It was quiet. There were about 20 people there. They stayed about 10 minutes before they went downstairs and walked towards Tappas, stopping first at Falafel House. They met Paul Kendall, Candace Torres and Dominika Kucera at Falafel House. She said that about 20 minutes later they went upstairs to the Q Club, with Candace and Dominika. Raymond, Paul and Janette were also present. They remained there the entire night. When she returned to the Q Club after visiting Felafel House, she did not see either the appellant or Mr Zappia. If her account of times is correct, she would have returned at about 11:20pm.

192 She said she sat in pretty much the same place all night. Later in the night she saw the appellant who was with Mr Zappia. She thought that was an hour after she got there, that is to say, at about 12:30am.

193 She left the Q Club at 4:00am with Raymond Kamleh, Paul Kendall, the three girls, the appellant and Mr Zappia. She confirmed, in cross examination, that she first saw the appellant and Mr Zappia at about 12:30am sitting a couple of tables away and that they remained in her view for a couple of hours.

194 Mr Paul Kendall's birthday was on 2 April 2000. On that night he had dinner at the Lemon Grass and then went to Tappas for a couple of drinks. He was in the company of Candace Torres and a couple of other people he could not remember. At Tappas they met Dominika Kucera and a friend of hers who he could not remember, although he thought her name was Janette. He went with Candace, Dominika, and Janette to the Q Club. He said that when he got there he acknowledged 'Brad' who was on the door. The person called "Brad" is Mr Townsend.

195 Paul Kendall remembers meeting the appellant after they had been there for a couple of hours. He says he was introduced to him by Raymond Kamleh as his cousin. Whilst they were standing together Raymond Kamleh said: "Oh, if anyone asks, will you vouch that my cousin and his mate were here tonight". He said that, when Raymond Kamleh asked him that question, the appellant was standing in the group, a group of four. He said: "Why have you - why d'you have to do that? Have you rolled someone?" He thought that either Raymond Kamleh or the appellant replied: "No, nothing like that".

196 The woman called "Janette" referred to by the previous two witnesses was Janette Mouroufas who was a friend of Dominika Kucera. She said that Dominika rang her about 12:45am on Monday 3 April while she was travelling from her home at Richmond in her car. She said as a result of that phone call she returned home, got changed, and drove to the city with the intention of meeting Dominika Kucera to go to the Q Club. It was her intention to meet her in Rundle Street at the Falafel House. She arrived, she said, not long after one o' clock and only shortly after she had spoken to Dominika Kucera for the second time on her mobile phone. She met Dominika Kucera and Candace Torres at the Falafel House where they stayed for about 15 minutes. She thinks another male was there and they all went upstairs into the Q Club which is only a short distance from Falafel House. It was about 1:30am when they arrived. She had no doubt that she arrived with Dominika Kucera and Candace Torres and some of their friends. When she arrived upstairs she met Fiona Burton-Moore and Raymond Kamleh. She had not met either before.

197 About an hour before the Q Club closed, she was introduced to two men. She had not seen them before. Fiona told her that one of them was Raymond's cousin. She said she met them at about an hour before closing time.

198 Candace Torres went to dinner with Paul Kendall at the Lemon Grass Restaurant and then to Tappas Bar on Rundle Street. There they met Dominika Kucera, who was well known to Ms Torres. Sometime after 12:00 they left Tappas Bar and went to the Q Club where they met Janette Mouroufas. They met with her sometime after one o'clock and at the same time met Raymond and Fiona. She said they stayed at the Q Club until about 3:30am and they left when it closed. She left with Raymond, Fiona, Paul and Dominika. Her evidence, of course, is at odds with Ms Janette Mouroufas, who gave evidence that she arrived at the Q Club with Ms Torres.

199 Dominika Kucera is a friend of Janette Mouroufas. Ms Kucera said that she met Janette at sometime after one o'clock on Monday morning, 3 April. She had arrived at Tappas Bar at about 11:00 to 11:30pm where she met Candace Torres and Paul Kendall. She said they stayed there for about two to three hours. She said they left Tappas just before 1:00am because she had arranged to meet Janette Mouroufas at the Q Club. After they left Tappas, they went to Falafel House to buy some cigarettes. They stayed there for five or ten minutes and then walked to the Q Club which took about two minutes. She remembers meeting Janette Mouroufas sometime after 1:00am. They met Raymond Kamleh and Fiona Burton-Moore about a half an hour after they arrived at the Q Club. Sometime later they were introduced to two males who were both dressed in black. One of them was wearing a cap. Raymond Kamleh introduced one of them as his cousin. They met them about an hour to an hour and a half after they had arrived at the Q Club. In cross examination she admitted the Q Club was dark and it was possible that the two men to whom she had been introduced could have been at the other end of the Q Club playing pool.

200 The last witness called in relation to the Q Club was Mr Brad Townsend to whom I have previously referred in these reasons. Mr Townsend was employed as a security officer at the Q Club. He started work on the door of the Q Club at 12:30am on the Monday morning. His usual hours, if he started work at that time, were 12:30am to 4:30am.

201 He was asked whether he knew Jamil Kamleh or Natale Zappia and said that he did not. He did know a man named Jamie who he described as being overweight, about 5'11", European appearance, moustache, goatee but whom he could not see in court. I repeat that the appellant was called "Jamie" by some friends and acquaintances and at this time had a goatee beard.

202 He said that he did not have a good relationship with Jamie in April 2000. He did see the man he knew as Jamie on the morning of Monday, 3 April. Jamie was with someone else who was not known to him. He was asked:

"Q Just be clear about this: are you able to assist this court as to when you first saw Jamie that night.

In his evidence in chief he said that he was not able to recognise the appellant who was then sitting in court. He also said that he was not able to assist the court as to when he first saw the man he knew as Jamie that night.

203 He was cross examined, in particular, in relation to a statement he had given on 10 April to a Detective Bollingbroke. He admitted that his memory would have been clearer and the events would have been more fresh in his mind when he made that statement. He admitted that he told the police officer that he got to work about 10-20 minutes before he was due to commence and that would have been accurate. The cross examination proceeded:

"Q And you told the police, back then on 10 April, of the year 2000 with respect to this man Jamie, 'I first saw him but it would have been soon after 12.30am'. Do you remember saying that to the police.

1. No, I don't.
2. If I suggest to you -
3. If I said it, it would have been true.
4. If I suggest to you that that is what you said -
5. If that's in my statement that's definitely correct.
6. And accurate.
7. Yes, well, you can't basically always say it's got to be accurate, you know what I mean, when I see so many people in a club. I don't remember exactly what time. How can I definitely be sure what time every person came in? I'm not going to state the time, not for myself.
8. When you said that, that was true to the best of your knowledge.
9. Yes, well, it would have been.
10. That you saw him soon after 12:30 a.m.
11. Definitely."

204 The trial judge accepted Ms Mouroufous's evidence that she had telephoned Ms Kucera at approximately 1:00am on 3 April. The telephone records establish that such a telephone call was made by Ms Mouroufas to the mobile telephone number associated with Ms Kucera at 1:19am. Ms Kucera's evidence was that Ms Mouroufas telephoned her prior to her arriving at the Q Club. She was in Rundle Street when she received the call. The objective evidence establishing the time of the telephone call and Ms Kucera's evidence of where she was when she received that call support Ms Mouroufas' evidence.

205 In my opinion, the trial judge was correct to examine this evidence against the objective evidence of the record of the telephone call of Ms Mouroufas to Ms Kucera. That was the only objective evidence of the times of events.

206 The trial judge accepted that Ms Mouroufas arrived at the Q Club at or after 1:30am with Ms Kucera, Ms Torres and Ms Kendall. In my opinion, the trial judge was entitled to make that finding. Ms Mouroufas's evidence was shown to be reliable by the independent evidence of the telephone record of her call to Ms Kucera. In addition, Ms Mouroufas had not had anything to drink at that time. The other witnesses had been drinking. The trial judge further accepted Ms Mouroufas's evidence that she met the appellant and Mr Zappia about an hour before the Q Club closed at 4:00am. Again, in my opinion, he was entitled to make that finding.

207 If the evidence of Ms Mouroufas is correct, some aspects of the evidence of Ms Kucera, Ms Torres and Mr Kendall could not have been correct. The trial judge rejected their evidence as to the time of their arrival at the Q Club. Contrary to their evidence, he found that they arrived with Ms Mouroufas at about 1:30am on 3 April. Once he had accepted Ms Mouroufas's evidence, that finding was open to him. However, he did accept Ms Kucera's evidence that she met the two men to whom she referred about an hour to an hour and a half after her arrival which would have meant the meeting took place sometime between 2:30am and 3:00am.

208 He specifically rejected Ms Burton-Moore's evidence about the time of her arrival with Raymond Kamleh on the second occasion at 11:30pm. In my opinion, he was correct in rejecting that evidence because it was inconsistent with the evidence of Ms Kucera, Ms Torres and Mr Kendall and, of course, quite inconsistent with the evidence of Ms Mouroufas.

209 The trial judge found that Mr Kendall, Ms Kucera, Ms Torres and Ms Mouroufas all arrived at the Q Club at about 1:30am on 3 April. As I have said that was a finding open to him. In making that finding, he was entitled to rely upon Ms Mouroufas's evidence and to reject those parts of those other witness's evidence where it conflicted with Ms Mouroufas's evidence.

210 Mr Kendall said that he met Mr Townsend at the door when he arrived. Mr Townsend's evidence demonstrates the unreliability of Mr Kendall's evidence. Mr Kendall could not have arrived at 11:00pm as he said because Mr Townsend did not commence work until 12:30am, or at the very earliest 12:10am.

211 Although the trial judge rejected Mr Kendall's account as to when he arrived at the Q Club, he accepted his evidence of what Raymond Kamleh said to the group, including Mr Kendall, in the presence of the appellant. In my opinion, he was entitled to make such a finding. There was evidence to support that finding and Mr Kendall was not shaken in respect of that matter.

212 Mr Raymond Kamleh's statement was made in the presence of the appellant and in circumstances where it could be inferred that he heard what Mr Raymond Kamleh said. His statement was admissible against the appellant. In Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 107, Gibbs, Stephen and Mason JJ said:

"It is trite law that a statement made in the presence of a party is only evidence against him of the truth of the matter asserted if he has in some way admitted its truth."

In The King v Christie [1914] UKLawRpAC 20; [1914] AC 545 Lord Atkinson said at 554:

"As to the second ground, the rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own. If he accepts the statement in part only, then to that extent alone does it become his statement. He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part. It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner and under such circumstances as may lead a jury to disbelieve him, and constitute evidence from which an acknowledgment may be inferred by them."

In this case there is no evidence that the appellant said anything so it cannot be said that he has accepted the statement "by word".

213 A party can, however, by silence or other conduct, acknowledge the truth of a statement. Where a party has failed to deny a statement in circumstances where it might be expected that such a denial would be forthcoming, the absence of that denial or other conduct can lead to the inference "that he has acknowledged the truth of the statement so as to make it his own, or has so conducted himself as to show a consciousness of guilt": R v Thomas [1970] VicRp 87; [1970] VR 674 at 679; R v Strausz (1977) 17 SASR 197.

214 In those circumstances where a party has had an opportunity to deny the correctness of or explain a statement made in his or her presence in circumstances where the party might have been expected to deny that statement, or make some comment in relation to it, that party's reaction or lack of it becomes admissible against the party.

215 It is the response which is admissible and from which the inference might be drawn that he has acknowledged the truth of the statement or shown a consciousness of guilt: R v Salahattin [1983] VicRp 49; [1983] 1 VR 521 at 528.

216 This is not a case where an accused person has remained silent in circumstances where a victim or a person in authority has made an accusatory statement and the accused has remained silent as the accused is entitled to do: Hall v R [1971] 1 All ER 322.

217 In this case the appellant was in a social situation when his cousin asked another person to give the appellant a false alibi and where that other person enquired as to the reason. If Raymond Kamleh's question was unsolicited by the appellant, it would be expected that the appellant would say so. Certainly it would be expected that he would have said something in response to Mr Kendall's enquiry.

218 In my opinion the trial judge was entitled to admit evidence of the appellant's failure to respond to the statement made by Raymond Kamleh in his presence and to infer from that failure that the appellant was a party to the concoction of the appellant's alibi.

219 The trial judge was not prepared to act on Mr Townsend's evidence except as to the time at which he commenced work on 3 April 2000 and his evidence that he saw the appellant at sometime on that morning.

220 I have set out the relevant aspects of Mr Townsend's evidence. He said, in examination in chief, as I have already observed that he did not recognise the man, who he had described as Jamie, in court. He said, in his evidence in chief, that he did not have a recollection of when it was that he spoke with Jamie.

221 I agree with the trial judge that little store could be put on Mr Townsend's evidence which was drawn from him reluctantly in cross examination.

The finding of concocted alibi and lies told out of consciousness of guilt

222 The trial judge concluded this aspect of his inquiry:

"This analysis of the evidence has satisfied me that the accused and Mr Zappia did not arrive at the Q club at or about 11.00 pm on Sunday 2 April 2000 as the accused asserted in his record of interview. I find that the accused and Mr Zappia arrived together at some time between 2.30 am and 3.00 am on 3 April 2000. I am satisfied that Raymond Kamleh introduced the accused and Mr Zappia soon after their arrival to others at the Q club. I am satisfied that when Raymond Kamleh introduced the accused and Mr Zappia to Mr Kendall he did so saying "Oh, if anyone asks, will you vouch that my cousin and his mate were here tonight?" This introduction was made in the presence of both the accused and Mr Zappia. I am satisfied that the accused and Mr Zappia left the Q club at or about 4.00 am on 3 April 2000."

The trial judge's findings meant that the alibi offered by the appellant in his interview with police on 6 April was false and that the alibi offered by Mr Zappia, in his later interview on 8 July, was also false.

223 The trial judge drew the following conclusions from those findings. First, that the appellant had lied to the police on 6 April. Secondly, that Mr Zappia had also lied in his interview. Thirdly, that there was opportunity for the appellant and Mr Zappia to concoct the false alibi. Fourthly, the concoction had commenced as early as when Mr Kendall spoke with Raymond Kamleh and the appellant at the Q Club. Fifthly, the appellant and Mr Zappia had concocted their alibi to avoid having to state truthfully where they were prior to arriving at the Q Club at between 2:30am and 3:00am on 3 April. Fifthly, the concoction and the appellant's statement to police were lies told out of a consciousness of guilt.

224 In my opinion, once the judge made those preliminary findings in respect of the evidence of the witnesses at the Q Club, those further conclusions necessarily followed. Of course, witnesses and accused persons lie for all sorts of reasons apart from a consciousness of guilt. Those reasons were considered by the trial judge in his judgment especially when he referred to Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-211 in the judgment of Deane, Dawson and Gaudron JJ. After referring to that case His Honour said:

"There are possible reasons that explain why an accused may lie. It may result from a conscious exaggeration for effect, a subconscious exaggeration after the passing of time, a concern over an inability to recall precisely what occurred and an attempt to fill the gap, panic, fear, feelings of a need to offer an explanation when it is sought, attempting to improve one's position when it is thought that an explanation offered may not be viewed by others particularly the police as credible and reliable, concern that the circumstances "looked bad" and that the truth may not be believed. There may be other reasons. The remarks of King CJ in Harris v The Queen are apposite:

'The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt."

In my opinion, it was open to find that the false alibi offered by the appellant to the police at the interview of 6 April was a lie told out of a consciousness of guilt. It was not only open but, in my opinion, was an inevitable finding.

225 By reason of the trial judge's acceptance of the evidence of Mr Ievins, Mr and Mrs Davis and Mr Koufalas, the appellant's claim to the interviewing police officer that he did not see Mr Rasti after late afternoon or early evening on Saturday, 1 April was also a lie. The trial judge was entitled to conclude that the appellant deliberately misled the police by that lie in an endeavour to distance himself from the crime. He did so because he knew that that, if he admitted when he last saw Mr Rasti, it would provide evidence of his implication in the crimes with which he was charged.

226 A lie told out of a consciousness of guilt can be used as corroboration of other evidence because it amounts to an admission against interest: Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-211. The trial judge was entitled to use the two lies to which I have referred in that way.

227 I summarise the case thus far before referring to the impugned evidence in the conversations Mr Zappia had with the parties to whom I have already referred.

228 The case was a strong circumstantial case. There was evidence that the appellant had lied on two occasions about material matters which lies were told out of a consciousness of guilt. There was the circumstantial evidence that put him at the Grand Apartments at the relevant times. In addition, he had confessed his guilt to Mr Loader.

229 There was also the evidence of Mr Zappia's fingerprints on the glass on the table in Unit 22 and of the appellant's palm print appearing on The Advertiser of Saturday, 1 April 2000. That evidence becomes relevant because of the appellant's claim that he was always in the company of Mr Zappia.

230 On the basis of all that evidence, the trial judge would have been entitled to find the charges proved beyond reasonable doubt, without referring to the Zappia conversations to which objection had been taken.

231 I now turn to the evidence of the Zappia Conversations.

232 The trial judge accepted the evidence of Mr Simoniuk as to his conversations with Mr Zappia on or about 24 March 2000 (McDonalds), 2 April 2000 (Hectorville), 3 April 2000 (telephone), 8 July 2000 (telephone) and 9 July 2000 (telephone). He also accepted Mr Simoniuk's evidence of his conversation with the appellant.

233 The trial judge admitted the McDonalds and Hectorville conversations upon the basis that they were evidence of things said and done by Mr Zappia in the absence of the accused in furtherance of the common purpose.

234 The conversations of 3 April, 8 July and 9 July were admitted on the basis that they disclosed esoteric knowledge on Mr Zappia's part which was relevant in the case against the appellant because the appellant's case was that he was always in the company of Mr Zappia

235 The appellant has challenged the admissibility of all those conversations. The respondent contended that the statements were admissible upon the grounds relied upon by the trial judge but also on other grounds.

Admissibility of conversations under the co-conspirator's rule

236 The appellant faced substantive charges not conspiracy charges. Nevertheless, out of court statements made by another participant to a common purpose may be admissible. Evidence of acts done or words uttered in the absence of the accused are admissible against an accused where it is alleged that those acts done or words uttered were so done or uttered by a co-participant in furtherance of a common purpose in which the accused is also a co-participant and where there is other reasonable evidence that the accused was a participant in that common purpose: Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1; Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 at 100; The Queen v Corak and Palmer (1982) 30 SASR 404.

237 Ahern v The Queen was a conspiracy case. In Tripodi v The Queen the accused faced a charge of larceny and in The Queen v Corak the charge was possess Indian Hemp for trade. In Ahern v The Queen the High Court (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) said at 99:

"Whether Stephen drew any distinction in this context between 'prima facie grounds' and 'reasonable ground to believe', the latter phrase is reflected in the judgment of this court in Tripodi where it said:

'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.'

In Tripodi the court was speaking of the admission in evidence of the acts and declarations of others outside the presence of the accused in proof of larceny rather than conspiracy, but, as we have said, the principle upon which such evidence is admitted extends beyond cases of conspiracy. The significant distinction between conspiracy and other offences for present purposes is that indicated in Tripodi, namely, that on a charge of conspiracy combination is also an element in the offence and not merely a ground for the admission of the evidence. The question does not, therefore, arise in cases other than conspiracy of the use of evidence of the acts and declarations of others to prove the combination except as evidence of separate acts from which a combination might be inferred. Once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation in the combination, but the offence charged."

"In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant. The words 'reasonable evidence' have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged. If there is any difference between 'reasonable evidence' and 'a prima facie case', which in this context we very much doubt, then the words 'reasonable evidence' are to be preferred providing, as they do, a test of admissibility for which no more precise expression is needed. The aim in limiting the use which might be made of a co-conspirator's acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the term 'reasonable evidence' is desirable."

238 For the evidence to be admissible there must be reasonable evidence of the existence of a common purpose to which the accused is a party. That reasonable evidence must be evidence apart from the acts done or words uttered which are sought to be tendered pursuant to that rule. The acts done or the words uttered must be in furtherance of that common purpose. They must be acts or words uttered by another participant in the common purpose. The expression "common purpose" is used interchangeably with the expressions "common design", "common enterprise" and "pre-concert".

239 The acts done or words uttered must be in furtherance of the common purpose. A narrative statement made by a co-participant will not usually be in furtherance of the common purpose. In Tripodi v The Queen (supra) at 7 the court said:

"From the nature of the case it can seldom happen that anything said by one which is no 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."

A statement made after the common purpose has been discharged would not usually be admissible against another party who was a party to that completed common purpose. There is then no longer any existing common intention: Mirza Akbar v King- Emperor [1940] 3 All ER 585.

240 The first question to be decided is whether there was evidence independent of the McDonalds and Hectorville conversations that would satisfy the test of reasonable evidence as explained in those authorities.

241 In my opinion there was. There was very strong evidence of pre-concert. The appellant's confession to Mr Loader is powerful evidence of the existence of a common purpose to which the appellant and Mr Zappia were parties. The appellant's lies as to his movements on 2 and 3 April and the jointly concocted alibi are also evidence of pre-concert and the appellant's complicity in that pre-concert.

242 The evidence was admissible, if it was relevant, and if it was in furtherance of the common purpose.

243 In my opinion, the statement made by Mr Zappia at McDonalds on 24 March was relevant but it was not evidence of a statement made in furtherance of a common purpose. A statement that Mr Zappia and the appellant intended to catch up with Mr Rasti is no evidence, in my opinion, of words uttered which advance the common purpose. The evidence was not admissible in my opinion under the co-conspirators rule.

244 The evidence was, however, admissible as evidence of Mr Zappia's intention. Mr Millsteed QC who appeared for the respondent on this appeal argued that the statement was admissible to establish Mr Zappia's intention and his intention was relevant because it was the appellant's case that he and Mr Zappia were never outside each other's company over the whole of the relevant period. I agree with that submission. I agree that the statements made by Mr Zappia out of the hearing of the appellant to Mr Simoniuk at McDonalds on 24 March were relevant but only to establish Mr Zappia's intention. The evidence could not be admitted for any other purpose.

245 The second conversation which was admitted under the co-conspirators rule by the trial judge was the conversation between Mr Zappia and Mr Simoniuk at 9:00pm on 2 April at Hectorville.

246 In my opinion that conversation was relevant and it was admissible under that rule. In my opinion, because there was other reasonable evidence of pre-concert between Mr Zappia and the appellant, the request that Mr Zappia made to obtain ammunition was in furtherance of the common purpose and therefore admissible against the appellant.

247 The evidence that Mr Simoniuk lent the appellant a balaclava was not hearsay evidence. It did not depend for its admissibility on the co-conspirators rule. If it was relevant, it was admissible because it was evidence by Mr Simoniuk of an act which he had done. I think, however, that the evidence was not relevant because there was no evidence that a balaclava was used by anyone on 2 and 3 April.

248 The evidence of Mr Ievins would suggest that neither of the two persons who entered the Grand Apartments at 1:00am on 3 April was wearing a balaclava and in particular the person who he identified as the appellant was not wearing one.

249 I think, however, that the admission of that evidence was immaterial in the circumstances of this case. In my opinion, the trial judge did not use it to the disadvantage of the appellant.

250 The three telephone conversations of 3 April, 8 July and 9 July were not admitted under the co-conspirators rule. Nor could they have been in my opinion because they were not evidence of words uttered in furtherance of the common purpose. They were accounts by Mr Zappia of the events which had occurred on 3 April. In those circumstances, they could not have been admissible under that rule: Tripodi v The Queen (supra).

251 The evidence would not be admissible against the appellant because it amounted to a confession by Mr Zappia, even if he were a co-participant in the common purpose. In Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 at 22 Dawson, Toohey and Gummow JJ said:

"As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or a third party."

252 The evidence would not be admissible to show Mr Zappia's state of mind at the time that he made the statement. That was not a relevant fact in issue: Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 288.

253 The trial judge admitted those three conversations on the basis that they disclosed esoteric knowledge on the part of Mr Zappia which was relevant in the case against the appellant because, on the appellant's account, the appellant and Mr Zappia had not been outside each other's company over the whole of the relevant period.

254 Evidence of statements made which disclose esoteric knowledge which would implicate the maker of the statement in a crime is admissible as evidence implicating that person in the crime. The statement does not prove the truth of what was said, but the statement may be used to infer Mr Zappia's presence at the time when the murder was committed and thereby that the appellant fired the shots because the appellant was in his company.

255 In my opinion the statement made by Mr Zappia to Mr Simoniuk on 3 April reflects esoteric knowledge. First, he knew that three shots had been fired. Secondly, he described the wounds of the deceased. Thirdly, he suggested that the gun jammed. There was evidence that the third matter is consistent with the live .22 bullet that was found by the police.

256 I think the esoteric knowledge has been adequately proved by the absence of any publicity about how the victims died at the time the statement was made on 3 April. There is no suggestion that Mr Zappia could have learned of those matters from any source including the police or the cleaners.

257 The conversation on 3 April was, therefore, admissible.

258 However, I do not believe that it was established that the statements made by Mr Zappia to Mr Simoniuk on 8 and 9 July display esoteric knowledge. More than four months had passed by the time those statements were made and, in my opinion, the evidence did not support a finding that anything contained in those conversations was knowledge which could only have been known to someone who was in the unit at the time that the deceased were killed.

259 In my opinion those statements were not admissible. However, I think the admission of those statements caused no miscarriage of justice.

260 The statements made by Mr Zappia on 3 April, which are admissible, are in my opinion far more damaging in the case against the appellant than anything said by Mr Zappia on 8 and 9 July. In particular, nothing said in the conversation of 9 July had not been said in the conversation of 3 April. That is, there were three shots.

261 I accept of course that the conversation on 8 July, if admitted for the truth of what was said, could establish that Mr Zappia co-operated in the common purpose to the extent that he turned the television up. However, that in my opinion is not strong evidence against the appellant. The strong evidence against the appellant are the inferences that may be raised by reason of the admission of the 3 April conversation.

262 In the result, the only evidence which should not have been admitted in my opinion were the conversations between Mr Zappia and Mr Simoniuk on 8 and 9 July. In my opinion, all of the other challenges made by the appellant to the admission of those other conversations which I have discussed, fail.

263 The purpose of the proviso is to empower an appeal court where the appellant has demonstrated that evidence has been admitted in error or that there has been a misdirection to the jury or for any other reason, to refuse to allow the appeal and set aside the verdict "if it considers that no substantial miscarriage of justice has actually occurred": s 353(1) Criminal Law Consolidation Act 1935.

264 In Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 372 Brennan, Dawson and Toohey JJ said:

"Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed." (Footnotes omitted.)

Where error has been shown in a trial by judge alone, the onus lies upon the Crown to show that the appellant's conviction was, on the properly admissible evidence, and upon correct application of the law, inevitable. However, as Gleeson CJ, Kirby P and Grove J observed in R v Whittaker (1993) 68 A Crim R 476 at 484 "... there is a diminished inclination in recent times to invoke the proviso (even in otherwise very strong Crown cases) where misdirection has been shown upon an important ingredient of the law applicable to the trial ...".

265 The proviso may be applied in a trial by judge alone. Section 353(1) applies to "any appeal against conviction". That subsection must apply in its entirety to any such appeal. There is nothing to suggest that it has no application unless the trial is by judge and jury. Whilst the proviso was not applied in R v Starrett [2002] SASC 175; (2002) 82 SASR 115, it was not doubted that it applied to trial by judge alone.

266 In a trial by judge alone, the judge assumes the jury's task of finding the facts. In carrying out that task the judge can only have regard to admissible evidence. If the judge admits and acts upon inadmissible evidence then the accused is liable to suffer a miscarriage of justice.

267 In a trial by judge and jury, an appeal court will be aware of the evidence which has been admitted. It will also be aware of the judge's directions on the law and any directions that the judge has given the jury as to the use to which evidence can and cannot be put. However, whilst it will assume that the jury has followed the judge's directions as to the use to which the evidence can be put, the appeal court will not be aware of the manner in which the jury has proceeded and the importance the jury has attached to the various pieces of evidence properly before the court. By contrast, in a trial by judge alone the appeal court has the benefit of the judge's reasons in which the judge discusses the evidence and makes findings of fact. Thus, the appeal court has an advantage it does not have in a trial by judge and jury.

268 It may be argued that, if evidence has been wrongly admitted, the appeal court should send the matter back to the trial judge to reconsider his or her verdict without the impugned evidence. It may be that in some cases this may be the preferred option. But I do not think that there is an invariable rule that such a procedure should be adopted.

269 In a case where the evidence which has been admitted could not have led to a miscarriage of justice, and where the appellant has not lost a fair chance of acquittal, and where the appellant would have inevitably been convicted by the trial judge, the proviso might be applied. In such a case there is no need to return the matter to the trial judge for his confirmation of this court's opinion. Whether the proviso should be applied depends upon the individual circumstances of each case: Glennon v The Queen (1994) 179 CLR 1 at 10 per Mason CJ, Brennan and Toohey JJ.

270 In my opinion, even though the trial judge wrongly admitted the evidence of conversations of 8 and 9 July, there has been no miscarriage of justice.

271 The case against the appellant was very strong. As I have already noted, the prosecution case, when closed, was considerably stronger than the prosecution case that was opened. That was because of the evidence given by Mr Loader as to the appellant's confession to Mr Loader, which the trial judge correctly admitted. However, that by itself is not enough: Doggett v The Queen (2001) 119 A Crim R 416. The accused is entitled to a fair trial and, unless this court can reach the conclusion that the trial judge would have inevitably convicted, the appellant the appeal must be allowed.

272 In my opinion, even if the trial judge had not admitted the conversations between Mr Zappia and Mr Simoniuk of 8 and 9 July, the trial judge would have inevitably convicted the appellant and in those circumstances this is a case for the proper application of the proviso: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517.