R v Lewis [2000] VSCA 140

R v Lewis [2000] VSCA 140 - VSCA 2000 case summary — Zoe

[28]

The members of the Higgins' family became increasingly concerned about the inability to contact Mr. and Mrs. Higgins during the Saturday and Sunday. On the Sunday, Amanda went to the premises. They were locked and she had no key to enter. The newspapers were scattered around the front drive and the dogs appeared to be without water or food. She enlisted the aid of a Michael McLennan, a friend who lived in the area. From his place, she rang Deanswood Road but, again, all she received was the "answering machine". She bought some dog food and, with McLennan, took it around to give to the dogs. They noticed that the house was fully secured and, by looking through the rear window to the garage, noticed that the Porsche was still missing. The garage itself was locked. She spoke to her sister, Kerry, on the Sunday night and agreed to meet her and John Mitchell on the following morning at the house. They met at Deanswood Road on the morning of 24 April. They were able to open a window at the rear of the house and thus gained entry. There were a number of things which aroused their suspicions. Although the house appeared undisturbed, the carpets were damp and smelled of "cleanser"; the clothes in the washing machine were damp; the coffee pot was still "half full"; and the gate to the swimming pool was open and the pool cleaner was switched on. None of these things was consistent with their parents' habits. They also found the "McEwan's receipt" inside the back door. Amanda rang a number of her parents' friends, but none knew where the Higgins were. She called the applicant on his mobile phone. He told her "not to worry, they have probably gone away for the week-end". He also told her that he had been in Sydney "selling cocaine for his friend, Colin". Unsatisfied, they called the police. The local police came first but, after initial inquiries, they called the Homicide Squad. The suspicions of that Squad were aroused, particularly by what appeared to be freshly turned soil in the garden area around the pool. They forced entry into the separate bedrooms of Mr. and Mrs. Higgins, which were locked, and found that many of their clothes were missing. In the early hours of the morning of 25 April, they uncovered the bodies of Mr. and Mrs. Higgins in the garden by the pool. Their inquiries from the family members, as we have said, led them to suspect the applicant, and they alerted police both in Sydney and Brisbane. By 25 April 1995 they knew, from information received from Allyson Morgan, that he was staying at the Hi Ho Apartments in Surfers Paradise.

[30]

On the morning of Monday 24 April, the applicant enquired of the receptionist at the Nikko Hotel whether he could change $US 20,000 into Australian currency. On the same day he and Woodbine drove to "A.S.A.P. Printing" at Liverpool, a business conducted by one Barry Davidson, an acquaintance of Woodbine. Woodbine asked him to print some false driver's licences and passports. Davidson said he would if they procured some photographs. Woodbine and the applicant then obtained the photographs and the applicant took them back to Davidson. On the same day, they attended at Michael Simeon's Car Yard and enquired whether they could have the Porsche transported by truck to Surfers Paradise. Simeon said that, if the car was stolen, it could be "traced back" to them. Woodbine said it was then arranged that the applicant would drive the car to Surfers Paradise and that he, Woodbine, would travel by bus. Woodbine arrived at the bus station at Surfers Paradise on the morning of 25 April. The applicant arrived some 20 minutes later. He checked into the Hi Ho Apartments at Broadbeach. Woodbine said that, shortly afterwards, the applicant asked him to go into the shopping centre at Surfers Paradise to change the American currency and to buy some jewellery with the credit cards. Woodbine said that, when he attempted to use Mr. Higgins' credit card, there appeared to be a "check" on it and he abandoned the attempt. He then told the applicant that the card was no longer "effective". According to Woodbine, the applicant became enraged, said that there were "thousands of dollars" in the account, and that "the old man was a tight old bastard who would not let him marry Amanda, because he did not want a `black baby' in the family". Woodbine said that the applicant had then told him that he had confronted Mr. Higgins in the lounge room and had stabbed him a couple of times in the back and a couple of times in the chest. The applicant said that Mr. Higgins had screamed "Why are you doing this?" and the applicant said that he had replied "because you're a tight old bastard". The applicant had further told him that he had dragged Mr. Higgins' body into the toilet because he had heard Mrs. Higgins arriving home, and that he was fond of her and did not want to kill her. He said he had tried to persuade her to have a coffee and attempted to keep her in the kitchen. Because she said she needed to go to the toilet, he had no choice but to kill her too. Woodbine said that the applicant told him he had come up behind her with the knife and "came over her shoulder" and stabbed her in the chest. He said that she had put her hand out to stop it and he had "nearly cut her thumb off". He further said "you wouldn't believe how easy it is, how easy a knife goes into a person's body"; it is "like pushing a knife into warm butter". He further told Woodbine that he had obtained tape and gloves and spent the night burying the bodies in the back yard and cleaning up the blood. He said it had taken him "ages" because he only had a small shovel. Woodbine also said that the applicant had then produced the knife from his overnight bag - a "diver's knife, 25 cm-30 cm long, with a moulded plastic handle and a serration on the back of the blade". Woodbine observed that the blade was a "rusty brownish colour". He said that the applicant moved towards him with the knife and said: "I'm going to have to kill you now". Woodbine said that he was terrified but tried to pacify the applicant by saying that the best he could do was to go back down to A.S.A.P. Printing to get the false identification, and that the applicant could then leave the country. The applicant appeared to calm down and said: "O.K., do that". The applicant gave him sufficient money to buy a bus ticket. The applicant, he said, also gave him his grey overnight bag containing the knife and told him "to get rid of it". Woodbine said that he left, caught a bus to Sydney and then fled to Perth where, ultimately, he made a statement to police.

[33]

By the time the applicant had spoken to his sister and a solicitor, it was 4.15 p.m. The interview proceeded, in stages, until approximately 10.30 p.m. when the applicant was charged with the murders of Mr. and Mrs. Higgins and placed into custody pending an application on the following day for his extradition to Victoria. During the initial stages of the interview, the applicant made many statements inconsistent with the facts as the police knew them to be; as to his movements on Friday 21 April and Saturday 22 April; as to his possession of clothes and other items belonging to Mr. Higgins; as to the whereabouts of the Porsche motor vehicle; and as to his relationship with and his knowledge as to the whereabouts of the persons whom he described to the police only as "Mike" and "Colin". As the interview proceeded, however, the police put a number of matters to him which, as the Crown contended, must have indicated to the applicant that they knew much more about what he had been doing than he had believed was the case. Such matters included the provenance of the Cartier cigarette lighter and credit card holder found in his possession; the fact that he had been to Deanswood Road on Friday 21 April with flowers for Mrs. Higgins; the fact that he had been to McEwans store on the evening of 21 April to buy polytarp, ducting tape and a spade; the fact that he had been with others to the "Guys & Dolls" clothing shop in Sydney on 22 April; that he had spoken to Carolyne in Sydney on 22 April; that he had endeavoured to exchange U.S. currency in Sydney; that he had been seen driving Mrs. Higgins' Porsche motor vehicle; that he had purchased a "diver's knife"; and several other matters. At some stage during the interview they informed him that they had located the Porsche motor vehicle, without its number plates, in the basement of the Aegean apartments. At approximately 7.50 p.m., the police asked him if he would be willing to participate in an identification parade in Broadbeach. He said that he would and the interview was suspended at 7.55 p.m. Shortly thereafter, the applicant called for Harrison and Maher and told them that he wished to speak with them "off the record". In the course of that conversation, he informed the police officers of the circumstances surrounding the deaths of Mr. and Mrs. Higgins. When the interview resumed at 9.15 p.m. "on the record", the applicant agreed that the events, which he had earlier described, had occurred and that no "threat or inducement" had been held out to him by the police officers which led him to make the "off the record" statements. When the recorded interview resumed, he was asked by Harrison to "tell us, as you told us before, the circumstances surrounding [the deaths]". The applicant then recited, in narrative form, those circumstances.

[34]

In its essence, the applicant then told the police that, on 21 April, he had taken flowers to the Deanswood Road premises to speak to Mr. and Mrs. Higgins about his relationship with Amanda. He had told them that Amanda was pregnant and that he was happy with the news "and so forth". He said that Mr. Higgins had become enraged and had shouted that "there was no way his daughter was going to have a black baby" and that he would see to it that she would have the child aborted. Mr. Higgins had then told him to "get out of the house". He said that he had hailed a taxi and was taken back to Amanda's car which he could not drive to the Higgins' house because Mr. Higgins did not like him using it. He had then driven to Little Kent Street. Amanda was angry because she was unable to keep her doctor's appointment. She had then driven off to her sister's place. Shortly thereafter, Mr. Higgins had rung him on his mobile telephone, saying that he (Mr. Higgins) wanted to talk to Amanda. When he told him that Amanda was not there, he was told that he was a liar; that he (Mr. Higgins) would see to it that Amanda had an abortion; and that he would "see me in the gutter". Mr. Higgins had then "hung up". The applicant said that he had rung back and told Mr. Higgins that he wanted to speak with him "face to face". Mr. Higgins said that he did not want to speak to the applicant. The applicant said that he was "hurt and angry". He said he called a taxi "at about 4 or 5 p.m.". He did not know what had possessed him to take the knife with him. When he arrived at Deanswood Road, Mr. Higgins came to the door, but Mrs. Higgins was not home. Mr. Higgins would not open the security door to let him in and was abusive to him. He said he was going to "ruin me". The applicant said that, after a while, he got Mr. Higgins to let him in. He accused the applicant of "getting Amanda back onto drugs", and that they began to struggle. He said that Mr. Higgins "went crazy", grabbed him by the shoulders and said "I'll kill you". He said that they were pushing each other and that he "managed to spin him around and the knife went in and it kept going". Mr. Higgins fell to the floor and that he, the applicant, kept stabbing him. Mr. Higgins became still and he pulled him towards the toilet. He heard the front door close and knew that Mrs. Higgins had come home. She had seen Mr. Higgins on the floor. He had then panicked, grabbed her and pulled her to the floor. She was "kicking and yelling", it was "all a blur" and he kept stabbing her. He said he pulled the body of Mr. Higgins into the toilet; and Mrs. Higgins' body into the laundry. There was blood on the floor and on him. He said that he had then called for a taxi to take him into the city. He was "walking around the Bourke Street Mall" when "the phone rang and it was Mike". He told Mike what he had done and Mike told him "what to do" - "to grab a shovel and some stuff to wrap them up in, and some tape". Mike had told him that he would help him and that he "would be there soon"; and "to find some place for them". He had then gone to McEwans and bought the shovel, plastic and tape, and had thereafter taken a taxi back to Deanswood Road. He said he had sat outside wondering "where to dig a hole" and "what to do". He sat there "until Mike turned up". Mike then "took over". They had then identified the "pool area" as the best place to bury the bodies. He started digging, while Mike went inside "and started cleaning up and cutting the plastic". He dug until 3 or 4 o'clock in the morning. He said he could not remember what time Mike had arrived but it was "a few hours after the telephone call". They wrapped the bodies and dragged them out and put them in the hole. He said that, whilst he was covering the bodies, Mike went inside to "see what he could get". He "grabbed the wallets" and came outside with the keys to the Porsche. He could not find the keys to the Mercedes. They had then "split up"; he (the applicant) had taken the Porsche and he believed that Mike had taken a taxi. The police told him that a person had seen him leaving Deanswood Road in the Porsche. He agreed that it was probably him. It was "starting to become daylight". He drove to th e airport and took a taxi back to Little Kent Street. Amanda was there but he "could not look at her". He said that he "grabbed his gear" and told Amanda that he was "flying to Sydney". In fact he had taken the taxi back to the airport, where he had put his belongings into the Porsche which he then drove to Sydney. He said he had "met up with Mike" at King's Cross and had booked into the Landmark Hotel. Mike had the credit cards and the money. Mike had said "let's have some fun". He said "I'll get your mind off it; come with me"; and he "took me to this bloody whore house". He said he had "checked the credit card and it was O.K.". The applicant stated that, on the following day, Mike had arrived at his hotel early and said: "we're going out to use this card"; and "we're meeting up with Colin", whom the applicant said he had never met before. He said that he went out with Mike; that Mike had gone to get his hair cut and had come back with it dyed "bleached blond". Later, they had met up with Colin and had a drink. He had then gone back to his hotel because he was tired. On the following day Mike "made a few phone calls" and had told the applicant to "head up here" (that is, Surfers Paradise) and that he would "meet me here". Mike had said that he had it "sorted out" and that he "could get us some I.D.". The applicant said that he and Mike had agreed to meet in Surfers Paradise and that, when he had arrived, Mike had called him on his mobile telephone. They agreed to meet in the Surfers Paradise Mall. They had done so. Mike had told him that he would "take the car and get rid of it". Mike had then taken the car, and he had booked into the Hi-Ho Apartments. He had been there waiting for Mike to call him, but Mike did not call. He had simply "taken all the money, apart from what I had .. and just disappeared". The applicant said that, when he was arrested that morning, the police had told him they had a "tip-off". He said that there was "only one person who knew where I was". He further said that he had bought the knife in Melbourne in Bourke Street and that Mike had taken it. He said that Mike had supplied the "surgical gloves" which he had used when disposing of the bodies, and that he had disposed of all the clothes which he had been wearing on the Friday night in a disposal bin on his way to Sydney. When his attention was directed to what appeared to be blood on the sleeve of the "Christopher George shirt", recovered from the Hi-Ho Apartments, he said that it must have got there "when I was stabbing them". In conclusion, the police asked the applicant a number of questions regarding "Mike's" description, the clothes which he had been wearing, and where he was likely to be. The applicant was then charged with the murder of Mr. and Mrs. Higgins.

[35]

When the applicant was lodged in the cells at the Southport Watch-house, another person was in the cell into which he was placed. That person was, in fact, Constable Jason Somerville - a young member from the Covert Surveillance Unit of the Queensland Police Force. He was posing as a University student who had been arrested for possession of drugs. In truth, he was there pursuant to an arrangement which had been made at about 5 p.m. on the afternoon of 26 April between Sergeant Bunton, his "controller", and Senior Sergeant Maher. Maher and Harrison gave evidence that the arrangement had been made during the early part of their interview with the applicant, at a time when it appeared to them that the applicant was not prepared to tell them the true circumstances surrounding the deaths of Mr. and Mrs. Higgins. Following the receipt of the confessions to which we have referred in the preceding paragraph, Maher and Harrison said that they had decided to continue with the covert operation because they wished to receive further information about the identity and whereabouts of the man named "Mike" who, according to the applicant, was an "accessory after the fact" to the murders, and who, on the applicant's version, may still have been in Surfers Paradise and in possession of the murder weapon. Following the conclusion of the interview, during which the applicant conceded that he had been "fairly treated" by his interviewers, Maher spoke again to Sergeant Bunton, the "controller". Sergeant Bunton agreed that Somerville could be used in an attempt to gather further information about "Mike". In accordance with what was said to be proper police procedure, no person other than "the controller" could give instructions to the undercover operative. Somerville said, and the judge accepted, that the briefing which he received was limited; namely "to go into the cells and to try to get [the applicant] to talk". Somerville said that he knew something about the allegations made against his "cell-mate" from wide-spread media publicity. He had concealed on his body a micro-cassette tape, designed to record conversation. The conversation was recorded in two parts; from approximately 11.20 p.m. for some 40 minutes, following which Somerville was removed from the cell. Shortly after, he was returned to the cell and spent a further 35 minutes with the applicant. Somerville's evidence, the tape of his conversations and a transcript of them were admitted into evidence over the objection of the applicant's counsel. At the outset of the trial, the learned judge had declined an application to exclude the evidence. The Crown relied upon statements made during the first of these conversations, but placed no reliance upon the statements made in the second.

[77]

The applicant gave sworn evidence at the trial. Indeed he had given sworn evidence at each of his previous trials. His defence was that he had not committed the murders, but that Amanda had. He did not take issue with the chronology of events attested to by prosecution witnesses. He gave explanations for those events, including explanations for each of the telephone calls upon which the prosecution relied. He agreed, as we have said, that he had purchased the murder weapon on 19 April, but said that he had done so for innocent purposes. He further agreed that the murders had occurred early in the afternoon of Friday, 21 April 1995, but asserted that Amanda had killed her father in his presence and that, after he had left the premises, had killed her mother - a fact which he had learned from Amanda later in the afternoon. He said that he had been told by Amanda, on or about 13 April 1995, that she was pregnant to him, and that thereafter he had become increasingly concerned about the effect which her resumed drug use would have upon their unborn child. He agreed that, on 21 April 1995, he had set off for work in Amanda's car at about 9 a.m. He received a call from Mrs. Higgins at about 10.50 a.m. asking him to come to Deanswood Road. He denied taking flowers to the house on that day. He said that he had gone to Deanswood Road at Mrs. Higgins' request and had spoken with her and her husband. Mr. Higgins wanted to know who was supplying Amanda with drugs and he told him whom he believed it was. He recalled that, during the conversation, Mr. Higgins had gone to speak to someone at the front door and that, when he returned, he wanted to know about the loan which had been obtained on the security of Amanda's car. As a result of the conversation he realized that Amanda's drug addiction was more long-standing than he had believed; and that the Higgins knew more about it than he did. Mrs. Higgins was sympathetic and comforted him, but Mr. Higgins demanded that he leave at once and to bring Amanda to the house. Mrs. Higgins said that she had to go to lunch and said that it could wait until the following day. Mr. Higgins, however, repeated his demand and the applicant left the house with Mrs. Higgins. He went back to where he had left the car in Forest Hill and drove it back to the flat at Little Kent Street. He told Amanda that her father knew about the loan and her resumption of drug abuse and that he wanted to see her immediately. She said she would come but was annoyed with him for talking to her parents. He said that, before leaving, she smoked some marijuana and that, on the way, she "snorted" some white powder "through a rolled $10 note". He said that she drove the car into the garage at Deanswood Road, having first "looked through the side window" to see if there was room. Thereafter, a row had erupted between Amanda and her father over her drug taking. The applicant said that Amanda was "stoned" and that her father had told her that she was "going back into rehabilitation" and that he was "taking the car". He said that Amanda became belligerent in a way which he had never before observed. Mr. Higgins then told the applicant to leave the house and started to push him. The applicant told Mr. Higgins that Amanda was "old enough to look after herself" and that "she was pregnant". Mr. Higgins had replied by saying that he was not going to have a black grand-son in his family and that he, the applicant, was not "good enough". Amanda became enraged and came up behind her father screaming. At first he thought she was merely hitting him with her fists, but that Mr. Higgins fell to the ground. He, the applicant, grabbed him as he fell and they both fell to the floor. Amanda then continued to hit her father and it was then that the applicant saw she had the knife. He said he took hold of the knife and then realised that Mr. Higgins was dead. Amanda had asked him to help her and he had replied that he was not "getting involved". She responded by telling him that he was "already involved" because his fingerprints were on the knife, and that police would believe her, not him. He said that Amanda called for a taxi and told him to go back to the flat. He got into the taxi and left, but decided to return to get Amanda. She refused to come because, he said, she wanted to stay and talk to her mother. He then returned to the waiting taxi and went to Box Hill, whence he took a train to Richmond. He said that, whilst on the train, he made a call to Twilley. He asked Twilley to get Woodbine to call him because Woodbine knew people who could get false passports and drivers' licences. He said that as he was walking up Punt Road at about 4 p.m. he saw Amanda driving her car towards him. When he got into the car Amanda told him that she needed him to assist her in "getting rid of them". He then knew that she had killed her mother as well, and that he was obligated to assist her in disposing of the bodies. His evidence was that all that happened thereafter was done at Amanda's direction, including the purchase of materials from McEwans, the telephone calls to Spiteri and Carolyne Mitchell, and the theft of the credit cards, money and car from the premises. It was her idea that she would see Dr. Pellegrini and then go to Carolyne's birthday party to make it appear that all was well. She would give him a call from the party to make arrangements to meet him at Deanswood Road. In accordance with this arrangement, she had rung him at about 10 p.m. (a call which did not show on the Telstra records). He then went to the vicinity of the house but "not too close" because the dogs would bark. Amanda arrived some half an hour later and they set about disposing of the bodies. He dug the hole; she cleaned up the house; and together they wrapped and carried the bodies to the hole. She encouraged him to take the Porsche and told him that there was "money in the house". He said that she left before him saying that she would go back to Little Kent Street to "pack his bags". According to him, Amanda told him that she would give him as much time as possible to leave the country, and that, at some later time, they would meet up in another country.

[96]

His Honour, we think, was entitled to conclude that the police conduct could not be so categorized. We agree with Mr. Coghlan, who appeared for the Crown in this Court, that it was perfectly understandable and legitimate for the police, in the situation in which they found themselves, to wish to identify and locate the applicant's associate whilst he was still in the locality. In those circumstances, the use of the undercover policeman was in aid of investigating, not the applicant, but his alleged co-offender. As his Honour concluded, and in our view was entitled to conclude, there was nothing defiantly unlawful or contrary to contemporary standards in using an undercover operative for such a purpose. The provisions of sub-division 30A of Part 3 of the Crimes Act 1958 (Vic.) did not, strictly speaking, apply to the circumstances of this case. Mr. Holdenson, on the hearing of this appeal, did not contend that they did. However, in determining the propriety of the police conduct, and the gravity of its departure from contemporary standards, the Court will, as his Honour did, measure such conduct against what is required by the Crimes Act[12]. As the judge noted, however, an "investigating official" for the purposes of the sub-division does not include an "undercover operative" (s.464(1) Crimes Act 1958). Nor, in our view, is there anything to be found in s.83 of the Service and Execution of Process Act (Cth.) which rendered the police conduct in this case unlawful. It is true, as Mr. Holdenson submitted, that once a person has been apprehended pursuant to the relevant warrant, he is to be taken before the magistrate "as soon as practicable". The provisions of Part 5 of the Act constitute a code, so it was submitted, for the apprehension and management of persons apprehended outside the state of jurisdiction[13]. In the circumstances which existed here, that requirement was complied with. We do not read into s.83 a legislative prohibition against further questioning of the person apprehended, as Mr. Holdenson submitted, pending compliance with s.83(1) of the Act. More particularly, it does not seem to us that, for the purposes of the exclusionary discretion, the propriety of introducing an undercover operative into the cell of a person apprehended pursuant to an extradition warrant should be treated any differently from circumstances in which such an operative is introduced into the cell of a person who has been placed in custody in the State of jurisdiction. No doubt there is always a degree of deception involved in the use of an undercover operative but, as has been frequently said, the investigation of serious crimes (our emphasis) cannot always be played out in accordance with a sportsman's code of conduct[14].

[97]

Accordingly, we can see no reason to differ from the view which the judge took that such breaches of statute or police procedures as occurred during the "Somerville interview" were not so great as to make the conduct unacceptable, but rather warranted that they should be treated only as "a factor of some significance" in the exercise of the discretion. It is in the nature of their job that police undercover operatives do not identify themselves to those to whom they are talking, nor give to them the usual "caution", a factor recognized by the court in Swaffield/Pavic.[15] Provided that they do not abuse their position or exploit the vulnerability of the person in custody, the latter takes the risk that he may be talking to an informer. In this case, his Honour was satisfied that Somerville did not abuse his position; nor did he take advantage of the applicant. The inter-action between them was not in the form of interrogation or elicitation by Somerville, but rather in the nature of conversation in which each of the parties was on equal terms. Mr. Holdenson attacked these conclusions, contending that they were not warranted by the written material. However, our own observations of that written material would not lead us to the view that his Honour was in error in concluding as he did. Furthermore, his Honour was in a position of advantage, because, unlike this Court, he had the opportunity to listen to the tapes - something which he did on several occasions. In this vexed area of the admissibility of confessional material given to a police undercover operative, some store appears to have been placed by the authorities upon the question of whether the operative has "elicited" the impugned material or whether it has been willingly conveyed to him during "neutral conversation"[16]. It has been suggested, we think with some justification, that such a subjective and nebulous test is an unsafe touchstone to guide the trial judge's discretion on the question of admission or exclusion of relevant and admissible evidence[17]. However whether one regards the appropriate test as focussing upon unacceptable police conduct deliberately undertaken to circumvent fundamental rights of the accused; or upon the question whether the conduct, in all the circumstances, is acceptable according to contemporary community standards; or upon narrower issues such as "elicitation", we are firmly of the view, for the reasons which we have stated, that there is no basis for interfering with the exercise of his Honour's discretion not to exclude the "Somerville statements". If it matters, we also agree with his Honour's conclusion that the probative value of that evidence far exceeded its prejudicial effect, notwithstanding that some of the statements were couched in language which could reasonably be regarded as cold, calculating and callous.

[113]

In our view, the applicant's argument in this respect is misconceived and incorrect. It is true that for the purposes of the defence, namely that the applicant was doing no more than disposing of the knife on behalf of Amanda Higgins, it did not matter whether he or Woodbine on his behalf had disposed of the knife. But the applicant's arguments both in the written outline and counsel's submissions to us failed to address the critically important evidence that Woodbine was not only giving evidence as to the production of the knife at the Hi Ho apartments, but also that the applicant produced it in circumstances where he admitted the killings with it, then threatened Woodbine with a like fate, ultimately agreeing that Woodbine should dispose of the knife for him. This evidence, capable of being accepted or rejected by the jury, founded the basis of the Crown submission, namely that it was imperative to the applicant that he distance himself from the Woodbine version concerning the knife because, if accepted, it linked him directly into the homicides, not merely accessory conduct. Thus the argument could be and was legitimately advanced that he told a lie about earlier disposal because he was conscious that it pointed to his guilt of the crimes of homicide with which he was charged. That is, to use the words from the judgment of the majority in Edwards v. The Queen that it was open to the jury to view the lies as being told "by the accused in circumstances in which the explanation for the lie is that he knew the truth would implicate him in the offence." Thus, since in Woodbine's evidence the disposal of the knife was bound up with a confession, it was open to the jury to find that the reason and motive for the lies of Lewis about the knife were to deny the confession made to Woodbine and sever the incriminating line that would then have run from the possession of the knife in Queensland to the murder of the two deceased. It was open to be put to the jury, and for them to find, that the lie, if they thought it was a lie, was directly connected with a consciousness of guilt of the killings of Mr. and Mrs. Higgins because he had to extricate himself from the effect of Woodbine's evidence. As the Crown submitted, this led to the lie that he had already dumped the knife in New South Wales. Thus the submission made by senior counsel for the Crown that a failure to deny Woodbine's evidence, or even a concession that the knife had been disposed in the way described by Woodbine, must have undermined the applicant's contention that he had never confessed to Woodbine, and incidentally his claim that what he had said to Somerville was untrue. Doubtless, these matters accounted for the failure by then counsel for the defendant (counsel of vast experience) to raise any objection when the judge took the matter up with him prior to addresses and later after the charge to the jury. The argument advanced is fallacious and this ground of appeal must fail.

[120]

The empanelling process was evidently somewhat more complicated than usual and the learned judge had planned its management on that footing. A large panel had been summoned, no doubt in the expectation that many applications to be excused would be made once the probable duration of the forthcoming trial was made known to those who had been summoned. Moreover, the killings which had given rise to the charges against the applicant, and his previous trials upon them, had generated a degree of publicity. This, together with the very large number of Crown witnesses due to be called, was thought likely to cause some members of the panel to feel unable to act as demonstrably impartial jurors. Mindful of these considerations, the judge carefully explained to the panel in general terms the background circumstances and the function of a jury in a criminal trial. He notified them of the principal individuals associated with the matter and gave each member of the panel for perusal a list of prospective Crown witnesses in case any should be known to them. Then, having separated out those of the panel who indicated that they did not wish to apply to be excused, the judge was left, so far as may be discerned from the transcript, with a considerable number who did so wish. His Honour had regard to what he called a "difficulty of trying to deal with so many people and so many excuses in a very public way", and to the likelihood that "some of you might not wish to have very publicly indicated health or other problems". He therefore announced that he proposed to give an opportunity to those seeking to be excused to write the reason on the back of the witness list that he had provided to each of them. His Honour indicated that it was not necessary to give a reason in writing, and that those who wished might, instead, state one to him orally. The judge then indicated that he would leave the bench and consider in his chambers the written reasons after they had been collected and brought up to him by his tipstaff, and would return later to indicate, on the basis of the written material, those applicants who would be excused and those, if any, from whom further information might be required; and that he would then deal also with any oral applications.

[128]

In our opinion the interpretation of the words "or otherwise in writing" that is so contended for is not open. The words were added to each of subss. (1) and (2) of s.13 of the 1967 Act by s. 2(1)(a) of the Juries (Amendment) Act 1975. Before the addition of those words s.13 required proof "on oath or by affidavit or by statutory declaration". The words "on oath or by affidavit" might be thought a little odd and not to indicate a dichotomy for, of course, an affidavit was and is often - indeed usually - made on oath. That formula as used in the 1967 section has, however, a long history, reaching back at least to s.2 of the Juries Act 1904 of this State, in which it was presumably intended to distinguish between proof orally given on oath or affirmation and proof by written statement made on oath or affirmation. Although the 1904 Act did not refer in terms to an affirmation, the term "oath" doubtless included it: ever since the enactment of s.2 of the Oaths and Evidence Act 1890 a person objecting to being sworn was entitled (subject to conditions) to make a solemn affirmation having the same force and effect as an oath. When s. 2 of the 1904 Act was re-enacted as s. 13 of the Juries Act 1915 the formula "oath or affidavit" was expanded to include a statutory declaration, and that was continued in succeeding re-enactments down to the present. Notably, none of the statutes from 1904 onwards that contained the old formula, or the expanded version of it that now exists, required the oath, affidavit or statutory declaration (whatever it was) to be taken or made necessarily by the person summoned and seeking to be excused. That consideration of itself would appear to detract from the argument now advanced on behalf of the applicant to this Court. Nor does there seem to us to be any good reason to interpret the added words "or otherwise in writing" as contemplating that the applicant should necessarily provide, subscribe to or otherwise verify the writing. That is to say, what is "otherwise in writing" in support of an application for excusal might be provided by someone on behalf of the applicant, just as an affidavit or statutory declaration might be made and provided by another on behalf of an applicant.

[134]

The submission that the accused was prejudiced by the judge's considering in his chambers written reasons relied on by panel members in support of their applications is also, in our opinion, without substance. The contention was that the procedure unwarrantably deprived the accused of information relating to members of the panel whose applications were refused that could have been useful to him in exercising his right of challenge. Again, the submission fails at the threshold for want of evidence of any such refusal. Assuming once more, however, that the judge did refuse an application, the submission presupposes an entitlement on the part of the accused to know the basis on which the application was made and the reason for its failure. There is, we think, no such entitlement. It was said in support of the submission that, as a matter of long-standing practice in this State, an application for excusal made by a member of a jury panel is always heard and determined in open court, so that the accused knows who makes it, the ground on which it is made and the basis of any refusal of it. That is, it may be conceded, the common practice; and it is presumably the norm because it is generally convenient. We were referred to no authority however, and we know of none, requiring such a practice to be followed and decreeing that, in default, there is a mistrial. We were referred on behalf of the applicant to R. v. Fitzgerald[28], a case in which the jury, having retired to consider their verdict, sent a message asking a question of the judge, who had left the court; and he, without communicating with the accused or his counsel, sent an answer in writing by the sheriff to the jury. There was a division of opinion of the majority constituting the Full Bench[29] upon a Special Case whether what occurred had been unlawful or merely irregular; but it was at all events held, whether there had been an illegality or an irregularity, that the trial had thereby been rendered a nullity. The decision is quite understandable on the footing that the communication between judge and jury should properly have been regarded as part of the trial, the accused having been still in the jury's charge; and that what had been done infringed the fundamental principle that the prisoner or his counsel is to be afforded the opportunity of hearing and seeing all that takes place during his trial[30]; or at least all that takes place bearing on matters pertinent to any of the issues between the Crown and the prisoner.[31] There is room for debate as to whether, at the time any member of the jury panel might have sought to be, or to have been, excused a "trial" had begun in the sense in which Williams, J. used the word: cf. R.v. Symonds[32]. Even assuming, however, that the applicant's trial should be taken then to have begun, we do not consider that there is any principle of the common law or of criminal practice or procedure in this State with which the learned judge's course was inconsistent.

[141]

For the purpose of this application the respondent admits the factual foundation outlined in ground 10. The Crown had peremptorily challenged some members of the jury panel in reliance on information supplied to the Crown in advance of the trial by the Chief Commissioner of Police. The Chief Commissioner had obtained the information as a result of inquiries made pursuant to his obligation to make them for the specific purpose imposed by s. 21(3) of the Juries Act 1967, namely to ascertain and to inform the sheriff whether any person disqualified under s.4 of the Act from serving as a juror was named on the panel. Defence counsel complained about the supply of the information to the Crown but the judge, applying the decisions of this Court in R. v. Su & Ors[34] and R. v. Katsuno[35], as he was no doubt bound to do, did not accede to the complaint. On 30 September 1999, well after the trial in this case concluded, the High Court delivered its judgment in the appeal against this Court's decision in Katsuno. By majority decision the appeal was dismissed. All justices, however, disagreed with this Court's conclusion that the Chief Commissioner's practice of supplying to the Crown details or information of the kind relied on by the here unless some other flaw in the trial were shown. In the circumstances ground 10 does Crown in this case was not in contravention of s.21(3). The High Court decided that the practice was unlawful, essentially because that sub-section, properly interpreted, requires that the Chief Commissioner report the result of his enquiries only to the sheriff. The majority decision in Katsuno was that, despite the unlawfulness of the practice, it did not in that case result in the denial of a fair trial to the accused, and so the trial was not thereby rendered a nullity. Counsel for the applicant conceded that by parity of reasoning ground 10, although made out, could not avail the applicant not avail the applicant since counsel was disposed to rely on it only in combination with ground 9.

[154]

There is, we think, nothing in this ground of appeal. The judge's directions of law to the jury are required to be moulded to meet the particular circumstances of the case before them. His obligation is to give them so much of the law as will guide them to a decision on the real issues in the case[41]. There is no rule of law or practice which prescribes that, whenever a confession is tendered in evidence, the jury must be directed in the manner in which Mr. Holdenson submitted they should have been directed in this case[42]. In some cases, of which D'Orta-Ekenaike (supra) is an example, the circumstances may be such that the judge is required, at least as a matter of prudence, to tell the jury that they should be satisfied, before acting on confessional evidence, that the confession was in fact made and/or that it was a truthful acknowledgement of the accused's guilt of the crime charged. That was a case in which the Crown led in evidence and relied upon a plea of guilty tendered at a committal hearing; and the accused asserted that he did not understand the legal or factual ramifications of such a plea and that it had been tendered on advice which had been received at the time. The judge had given no appropriate instruction to the jury as to the manner in which they should approach such evidence and the Court of Appeal took the view that, in the circumstances of that case, the directions were insufficient. Again, in Robertson (supra), the alleged admissions were so unspecific that the Court concluded that the judge was duty bound to give the jury express directions as to how they should treat and use that evidence[43]. In this case, however, the issues were clear-cut. In respect of the admissions alleged to have been made to Woodbine and Twilley, the defence case was that they were concocted by Woodbine and Twilley. In the case of the admissions made to the police and to Somerville the defence case was that they were deliberate falsehoods concocted by the accused for reasons which he gave. These issues were clearly before the jury, the Crown asserting that in each case they were made and were true; and the defence asserting that in two instances they were not made at all and, in the other two instances, that they were made, but were false. The judge identified those issues and left them to the jury. In our view the circumstances were such, and the issues so clearly defined, that no duty rested upon the judge to tell the jury what must have been clearly apparent to them - namely, that they had to be satisfied that the confessions were made and were true before they could act upon them[44]. The views expressed by the Full Court in Burns[45] are, we think, apposite to the circumstances of this case. The Court said:

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