R v Parsons; R v Stocker [2004] VSCA 92

Court of Appeal (Vic)|2004-05-26|Before: BUCHANAN and EAMES, JJ.A. and SMITH, A.J.A.

Criminal law - Murder - Trial judge not required to leave to jury manslaughter as an alternative - Evidence of accomplices - Accused required to establish a witness was an accomplice on balance of probabilities - Accomplice warning not required in the case of an accessory after the fact - Existence of corroboration does not remove an accomplice's motive to lie - Prosecutor's opening address introduced facts of which no evidence was led - Judge's directions prevented miscarriage of justice - Hearsay evidence - Appropriate directions given to jury - Evidence of earlier attempts on life of deceased not propensity evidence - Statements by accused to police - Police did not suspect and ought not to have reasonably suspected accused of having committed an offence.

On 15 September 2000, Paul Parsons returned home after work at about 5.30 p.m. and was brutally murdered in the front rooms of his house. A number of heavy blows with a blunt object to the back of his head left him unconscious and dying, when his throat was cut, quickly killing him. At 8 p.m. the body was discovered by a neighbour who entered the house at the request of the deceased's 38 year old wife. Two metal bars and a knife were found near the body. DNA analysis showed that blood from the deceased was on one of the metal bars and the knife.

The neighbour called the police and they went to the Parsons' house. A policewoman, Sergeant Stein, spoke to Mrs Parsons who said that before her return to the house after 8 p.m., she had last been to the house at 2.30 p.m. Mrs Parsons told the police about two earlier attempts upon the life of her husband. On 22 August 2000, the hydraulic brake lines of the deceased's car were cut while it was parked at the Melbourne Showgrounds. The deceased discovered the cut brake lines after slowly driving the car a short distance. On 24 August, the deceased was pushed off his motorcycle by a person in a passing car. Mrs Parsons told the police that she suspected the man responsible for the attempts was one Dominic Care, a person involved in the sport of wrestling, in the promotion of which the Parsons also participated. Mrs Parsons said that after 6.30 p.m. on 15 September 2000 she had received a telephone call from a female friend she did not wish to name, and had visited her.

Mrs Parsons was confronted by the police with evidence that she had been seen by neighbours at the matrimonial home between 2.30 p.m. and 8.30 p.m. on the day of the murder. Mrs Parsons said that she had forgotten about returning to the house between 6.30 p.m. and 7 p.m. She said that she had dropped off an item in the garage, and had not entered the house. Sergeant Stein requested Mrs Parsons to identify the friend whom Mrs Parsons said she had visited that day. Mrs Parsons admitted that she had lied, and said that she had in fact gone home to "have it out" with her husband "about the children and about him wanting to have sex with me all the time." She said she had not gone inside the house. She explained to Sergeant Stein that she lied because she did not want the police to know she had gone home, or to think that she was stupid.

Mrs Parsons told the police about a phone call she had received from a person she called Bill Williams about wrestling. The police investigated the matter and determined that "Bill Williams" was Belal El-Ahmad, a man aged 23 years. El-Ahmad and Mrs Parsons worked together as shelf fillers at night at the Altona Safeway supermarket. Mobile telephone records showed that on 15 September 2000, Mrs Parsons had exchanged telephone calls with El-Ahmad on nine occasions, including six telephone calls in the period between 5.30 p.m. and 8 p.m. The records also revealed that in the 50 days prior to the murder, Mrs Parsons and El-Ahmad had exchanged a further 215 calls. El-Ahmad's mobile telephone was purchased for him by Mrs Parsons. The police also ascertained that Mrs Parsons was the sole beneficiary of her husband's estate, and would receive a substantial sum as the proceeds of life insurance, an amount established at trial of $896,177. Mrs Parsons was cautioned and formally interviewed on 17 September 2000.

Belal El-Ahmad was arrested and interviewed on 18 September 2000. At his house the police found a mobile telephone and an electronic organizer which came from Parsons' house. El-Ahmad admitted taking those items, with a partner, "from Paul". A coat found in El-Ahmad's house was stained with blood which was found by DNA analysis to be that of the deceased.

On 28 September 2000, the police spoke to Edward Turner. He told them that he had been at the Melbourne Showgrounds on 22 August with El-Ahmad but denied that he was involved in cutting the brake lines on the deceased's car. Turner told the police that El-Ahmad had recruited him to assist in spying on the deceased. El-Ahmad said that Mrs Parsons had told him that the deceased molested their children. Turner followed the deceased on about ten occasions. Turner spoke to Mrs Parsons, who told him that the deceased had molested their children. In a later interview, Turner told the police he was the driver of the car which had been responsible for the deceased crashing his motorcycle. El-Ahmad, who was in the passenger seat, leant out the window and pushed the deceased, causing him to crash. At the trial of Parsons and Stocker, Turner gave evidence which accorded with his statements to the police.

Telephone records identified Justin Strunk as having exchanged many telephone conversations with El-Ahmad at about the time of the murder. The police arrested Strunk on 20 November 2000. Strunk told the police that he had been in contact by telephone with El-Ahmad on the afternoon of 15 September 2000 and with another person, Andrew Stocker, who was the same age as El-Ahmad and was his friend. At 3.45 p.m. on 15 September 2000, Stocker called Strunk on El-Ahmad's mobile telephone and asked if he could pick them up later that day at Werribee. Strunk agreed. Strunk exchanged further telephone calls with Stocker and El-Ahmad between 4 p.m. and 6.03 p.m., confirming the arrangement to pick up Stocker and El-Ahmad. It was agreed that Strunk would go to an address in Werribee and there follow a woman driving a white Rodeo utility with the number-plate TIBBIE. The proposed meeting place was a short distance from the house of the deceased. Mrs Parsons was the driver of the utility. Strunk did as he was told and at some time after 7 p.m. met the Rodeo utility. The Rodeo stopped. A woman got out and opened the rear doors of the utility. El-Ahmad and Stocker alighted and joined Strunk, who drove them home. Strunk gave evidence at the trial of Parsons and Stocker which accorded with his statements to the police.

On 20 November 2000, Stocker was arrested and interviewed. He denied any involvement in the murder. He said that he had spent part of the afternoon in the company of El-Ahmad and left his car in El-Ahmad's garage, but he parted from El-Ahmad and spent most of the afternoon in the company of Strunk. When Stocker was told that Strunk did not support his alibi, Stocker refused to answer further questions.

On 19 November 2001, Parsons, Stocker and El-Ahmad were arraigned and pleaded not guilty to a presentment containing one count of murder against each of them. On 22 November 2001, El-Ahmad was re-arraigned and pleaded guilty to the presentment. A new presentment was filed over in respect of Parsons and Stocker. On 29 January 2002, El-Ahmad was sentenced to be imprisoned for a term of 20 years. A minimum term of 15 years was fixed. Immediately after El-Ahmad was sentenced, Parsons and Stocker were arraigned and pleaded not guilty to the charge of murder. At the conclusion of the Crown case, the accused called no evidence other than each tendering a document. The jury returned verdicts of guilty in respect of each accused. On 13 May 2002, Parsons was sentenced to be imprisoned for a term of 23 years with a non-parole period of 18 years and Stocker was sentenced to be imprisoned for a term of 21 years with a non-parole period of 16 years.

Mrs Parsons has sought leave to appeal against her conviction and sentence and Stocker has sought leave to appeal against his conviction.

Each applicant's notice of application for leave to appeal contained a large number of grounds. The first ground advanced on behalf of the applicant Stocker at the hearing of the appeal, which was adopted by counsel for the applicant Parsons, was that the trial judge erred in failing to instruct the jury that the applicant could be convicted on the alternative offence of manslaughter.

Counsel for Stocker submitted that the evidence led by the Crown was consistent with the view that El-Ahmad and Stocker planned to go to the Parsons' house where El-Ahmad would assault Parsons. The sole harm contemplated by Stocker was something less than serious injury. El-Ahmad and Stocker went to Parsons' house and waited there for him to return. El-Ahmad alone formed the intention to kill Parsons and did so. Stocker was not physically present when El-Ahmad murdered Parsons. While it appeared that El-Ahmad had participated in the murder, for the deceased's blood was found on his clothes, articles belonging to the deceased were found in his possession and the jury were told that Al-Ahmed had been dealt with for murder and hearsay evidence of his statements had been adduced, there was no direct evidence that Stocker had entered the house or was present when the deceased was killed. It was submitted that there was thus an evidentiary basis to infer that Stocker was guilty of the offence of manslaughter by means of an unlawful and dangerous act.

Counsel for Mrs Parsons submitted that the evidence was consistent with the conclusion that El-Ahmad and Stocker went to Parsons' house with the intention of assaulting him but not to kill him or cause him serious harm and later one or both of them formed an intention to kill Parsons. In those events, Mrs Parsons could not have procured murder and could only have been found guilty of manslaughter.

Counsel who appeared for Stocker and Parsons at trial neither requested the trial judge to direct the jury to consider manslaughter nor in their addresses to the jury did they put forward the view of the evidence now advanced on appeal. That circumstance, which may have been due to a forensic decision by counsel, did not relieve the trial judge from a duty to direct the jury to consider an alternative verdict of manslaughter if there was a "viable"[1] case of manslaughter, that is, if there was a view of the facts consistent with manslaughter that was "available"[2] to the jury.

Where death is caused by the carrying out of a joint enterprise of two persons involving violence, and the degree of violence contemplated by one participant exceeds that contemplated by the other, the first may be guilty of murder and the second guilty of manslaughter.[3] In order to conclude that Stocker was guilty of the lesser crime of manslaughter, it was necessary to infer that Stocker was not present at and performed no role in the murder or did not intend that death or really serious injury be caused to the victim or contemplate that death or really serious injury might be caused to the victim.[4] In the present case, I do not think that the evidence permitted such an inference to be described as viable or available. It was theoretically possible, but not reasonably possible.

There was evidence of two attempts upon Mr Parsons' life within a month of his murder. El-Ahmad participated in both attempts. Although the earlier attacks were somewhat inept, they did disclose an intention at least to cause serious injury to Mr Parsons. The fact that the deceased's blood was on the clothing of El-Ahmad and the deceased's belongings were found in El-Ahmad's house warranted the inference that El-Ahmad murdered the deceased. Stocker and El-Ahmad were together during the afternoon of 15 September and were both transported to a street near the murder shortly before the body was found. There was evidence implicating Mrs Parsons in the murder. She was in contact with El-Ahmad by telephone on 15 September. Shortly after the murder she collected El-Ahmad and Stocker near the scene of the murder and delivered them to Strunk. Mrs Parsons drove the same vehicle to the house between 6.30 p.m. and 7 p.m. Mrs Parsons had motives to cause the death of her husband. The attack upon the deceased was ferocious from the outset; the forensic evidence was inconsistent with any preliminary skirmishing or the gradual development of a homicidal assault. Three weapons, two bearing evidence that they were wielded against the deceased, were found near the body. The pathologist who conducted an autopsy on the deceased said:

"One person could theoretically cause all injuries, I guess, but I think it is perhaps more likely two did, given the distinct variety of injuries to the various areas of the body."

In my view, the evidence did not admit a reasonable possibility that Stocker did not continue to participate in the venture without either agreeing to, or at least foreseeing as a possibility, the acts that caused Parsons' death.

A number of the grounds of the applications arose from the evidence of Turner and Strunk. Again, the matters advanced by counsel for Stocker were adopted by counsel for Parsons.

It was common ground at the trial that it was open to the jury to treat Turner and Strunk as accomplices, although the parties differed as to whether they were in fact accomplices. On appeal, counsel for the applicants contended that the trial judge erred in his directions to the jury as to the resolution of the question whether Turner and Strunk were accomplices and as to the content of the warning he gave to the jury, if they thought Turner and Strunk were accomplices.

The trial judge told the jury that they were to determine whether Turner and Strunk were accomplices. He said:

"It is for you, the jury, to consider whether you would regard a particular witness as an accomplice. You should consider whether the conduct of the witness or the connection of the witness with the events was such as to make that witness a person who shared in the guilt of the crime."

Later in his charge, the trial judge used the words "decide", "conclude", "find" and "regard" to describe the process by which the jury were to resolve the question.

Shortly before giving these directions, the trial judge instructed the jury that the accused was not required to prove anything, while the Crown was obliged to prove its case beyond reasonable doubt. He said:

"After this, I will tend to use shorthand expressions from time to time like `you must be satisfied' or `the prosecution must prove'. You treat those expressions as including each time after those words, the words `beyond reasonable doubt'. So you must be satisfied beyond reasonable doubt as to a particular matter, or the prosecution must prove beyond reasonable doubt as to a particular matter."

Counsel for the applicants submitted that the effect of those directions was to convey to the jury that they were not to treat Turner and Strunk as accomplices unless they had concluded beyond reasonable doubt that they were accomplices. As the positive case was being advanced by the applicants, the jury would have understood that they bore the onus of establishing that the witnesses were accomplices.

It is not the practice of trial judges in this State to direct juries that there is an onus lying on a party to prove or disprove that a witness is an accomplice or that such an issue is to be resolved by the application of a particular standard of proof. Appellate courts in other jurisdictions tend to speak generally of the question in the terms which the trial judge in the present case employed, without assigning an onus or specifying a standard.[5] There is, however, at least academic support for the proposition that, where the question arises, the Crown is obliged to prove beyond reasonable doubt that a witness is not an accomplice,[6] and there are judicial statements that it is for the accused to prove on the balance of probabilities that a witness is an accomplice.[7]

In my view, the question whether a witness is an accomplice is not to be viewed as part of the case to be established by the Crown. The evidentiary problem presented by an accomplice giving evidence is that often it is in his or her interest to deny or minimize his or her participation in the commission of a crime and implicate others or increase their culpability. The strength of those tendencies as well as the likelihood of a particular witness being an accomplice will vary according to the circumstances of each case. The extent of the danger of the witness falsely blaming others will often depend upon how complicit the witness was in the commission of the crime. I think it appropriate that in those circumstances the question should be decided according to whether the jury is persuaded that a witness is an accomplice by the party advancing the proposition. As that party will be the accused, the standard of proof should be satisfaction on the balance of probabilities.

In my view, the absence of a direction as to an onus and standard of proof do not constitute appellable error. The jury were told to treat Turner and Strunk as accomplices if they arrived at that conclusion. In my view, the jury would have applied everyday reasoning to the question, which would have involved being convinced, satisfied or persuaded that, on balance, Turner and Strunk were accomplices. I am also of the opinion that there was no danger of the jury thinking that they were required to treat Turner and Strunk as accomplices only if that was proved beyond reasonable doubt. The judge's earlier directions as to the standard of proof were clearly tied to the burden which the Crown bore to establish the guilt of the accused. His Honour made it clear that the standard of proof beyond reasonable doubt did not apply to all evidence, but rather to each element of the crime of murder. I do not think that there was any danger of the jury transferring the Crown's burden to the applicants in resolving the question whether Turner and Strunk were accomplices. Accordingly, I would not conclude that the trial judge erred in leaving the question to the jury as he did.

Counsel for the respondent submitted that in any event no warning was required in respect of the evidence of Strunk, for he was no more than an accessory after the fact. In R. v. Ready and Manning[8] the Full Court held that as an accomplice must be privy to the criminal intent of the principal offender before the commission of the crime, an accessory after the fact was not an accomplice in respect of whose evidence a warning was required. The decision was applied by the Full Court in R. v. Carranceja and Asikin[9], and the Court said:

"Ready and Manning has been followed many times by this Court."[10]

In my view, the law in this State is settled. Counsel for Stocker referred to a passage in the judgment of Callaway, J.A. in R. v. McLachlan[11] and said that the old authorities were now doubtful. Callaway, J.A. said that he would assume that an accomplice warning was required in respect of a witness who was an offender against s.325 of the Crimes Act 1958 and said: "But see Cross on Evidence ... at [15085] and the cases cited in fn.1." In the cases cited in Cross, it was held that an accessory after the fact was not an accomplice for the purposes of the rule. In R. v. McLachlan Callaway, J.A. observed that the point was not argued. The witness in question had been present throughout the commission of the acts constituting the offence. In my view, his Honour's remark does not detract from the authority of R. v. Ready and Manning.[12]

Although an accessory after the fact is not in the category of accomplices, whose status automatically attracts a warning, an accessory, like an accomplice, may have a motive to give false testimony exculpating himself and inculpating others. Whether that is so will depend upon the facts of each case. If it is so, the jury should be warned of the danger of relying on the accessory's evidence and instructed to look for corroboration.

Counsel for Stocker contended that imposing any burden upon the applicant to establish that Turner and Strunk were accomplices could well have reduced the burden of proof upon the Crown to prove the applicant's guilt. In order to find that Turner and Strunk were accomplices, it was necessary to reject part of their evidence. It was submitted that if the applicant failed to persuade the jury that the witnesses were accomplices, the jury might, without more, simply accept their evidence or, if the jury accepted that the evidence of the witnesses was probably true and thus the witnesses were not accomplices, they may have confined themselves, in deciding the question of the applicant's guilt or innocence, to determining whether their evidence met the higher standard of satisfaction beyond reasonable doubt.

In my view, there was no real danger that the jury may have reasoned in the manner contemplated by counsel for the applicant. In the face of the trial judge's clearly expressed enjoinder that they were not to find the accused guilty unless the Crown proved each element of the crime beyond reasonable doubt, I do not think there is any prospect that the jury would have either applied a lesser standard or used their answer to the question whether the witnesses were accomplices as a step or basis to reach their ultimate conclusion as to the guilt or innocence of the applicant.

Counsel for the applicants submitted that the trial judge failed to properly instruct the jury to enable them to resolve the question whether Turner and Strunk were accomplices. It was said that his Honour failed to identify the evidence relevant to the question, failed to summarize the contentions of counsel and failed to relate the law to the facts.

The trial judge described the roles which accomplices could play and told the jury that if they accepted the evidence of Turner and Strunk, they "would not be disposed to conclude that either was an accomplice". His Honour said that the opposite view was suggested in counsel's final addresses. Counsel who appeared for Mrs Parsons at the trial did tell the jury that Turner and Strunk were to be treated as accomplices and that, as their evidence was not corroborated, it was dangerous to convict Mrs Parsons on the basis of that evidence. The Crown case was that the attacks upon Parsons on 22 August and 24 August 2000, in which Turner was involved, were part of a plan to murder Parsons, a plan which finally succeeded on 15 September. The evidence of Strunk, rather than that of Turner, implicated Stocker. Counsel who appeared for Stocker at the trial put to the jury that Strunk was an accomplice because he knew, when he collected El-Ahmad and Stocker on 15 September, that El-Ahmad had murdered Parsons. In his charge, the trial judge told the jury that even if they did not regard Strunk as an accomplice, they should scrutinize his evidence with special care. Strunk initially had been charged with the murder of Parsons. The trial judge told the jury that he "might be seen to have been in a position where he would be tempted to minimize his own role and implicate others."

In my opinion, the directions of the trial judge, in the light of the addresses of counsel, would have left the jury in no doubt as to the issues which would determine whether Turner and Strunk were accomplices, namely, whether Turner was aware that El-Ahmad was engaged in attempts upon the life of Parsons and whether Strunk knew that El-Ahmad had succeeded in murdering Parsons. Nor, in my view, could the jury have been unaware of the evidence relating to those issues.

The next submission of the applicants concerning the evidence of Turner and Strunk was that the trial judge's charge may have led the jury to think that if they did find corroboration of their evidence, the warning to treat that evidence with special care ceased to have effect and their evidence was to be assessed like that of any other witness.

If a trial judge were to suggest to a jury that, once corroboration is found, the jury might treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness, the jury would be misdirected. An accomplice remains a person with a potential motive to lie. He is not an independent witness free of interest in the outcome of the case.[13]

In the present case, the trial judge directed the jury that, if they did not find the evidence of Turner and Strunk was corroborated, they were to have regard to the warning that it was dangerous to convict the accused upon the uncorroborated evidence of the witnesses. His Honour did not tell the jury that if they found corroboration, there remained dangers in acting upon the evidence of the accomplices.

In my opinion, the last step was not one which was necessary to prevent the jury thinking that, if they found corroboration, the accomplices were to be treated like any other witness. The trial judge told the jury that the rationale for the warning was that the experience of the law was that the evidence of accomplices was frequently unreliable in that they may well be motivated to justify their own conduct and implicate others by untruthful evidence. I do not consider that the jury would have thought corroboration removed the accomplice's motive to lie. The rationale for doubting the evidence of accomplices advanced by the trial judge remained, even if the evidence of the accomplices was found to have been corroborated. In the cases relied upon by counsel, juries were told that corroboration removed the dangers in the evidence of accomplices. For example, in R. v. Radford[14] the jury was told:

"Were you to find that the evidence of the accomplice is properly corroborated by other independent evidence, no particular problem arises. You would consider the accomplice's evidence in the same way and subject it to the same tests as I mentioned to you yesterday that you should subject all the evidence to."

Finally, it was submitted by counsel for Stocker that a warning should have been given in respect of Turner's evidence similar to that given in respect of the evidence of Strunk, namely, that even if the jury did not consider Turner to be an accomplice, they should scrutinize his evidence with special care. The failure to give such a warning, it was said, vitiated the verdict. I do not agree. While both Strunk and Turner, if viewed as accomplices, could be seen as witnesses motivated to lie, Strunk was in a different position from Turner in that he had been arrested and charged. Strunk thus had a pressing need to exculpate himself. Counsel at the trial sought no Faure type warning[15] in respect of Turner.

The thrust of the case advanced by counsel for Mrs Parsons on appeal, to which counsel for Stocker subscribed, concerned the opening address of the prosecutor.

El-Ahmad was interviewed by the police. Although he minimized the part which he played in the murder of the deceased, he gave an apparently frank account of the events leading up to and following the murder. The prosecutor in his opening address appears to have relied upon the information supplied by El-Ahmad in his record of interview. The prosecutor said to the jury that Mrs Parsons had told El-Ahmad that her husband abused Mrs Parsons and their children and was a paedophile. Mrs Parsons gave information to El-Ahmad about her husband's movements and persuaded El-Ahmad to follow her husband and spy on him. In order that she might communicate with El-Ahmad, Mrs Parsons bought him a mobile telephone. Mrs Parsons and El-Ahmad hatched a plan. While the deceased was at work Mrs Parsons would collect El-Ahmad and Stocker in her Holden utility. El-Ahmad and Stocker would get into the back of the utility and Mrs Parsons would drive them, hidden in the back of the utility, to the matrimonial home, where she would back the utility up the driveway to enable El-Ahmad and Stocker to slip out of the back and, unseen, enter the house where they would wait for the deceased and kill him. The original plan was that after the murder El-Ahmad and Stocker would walk away from the house to a nearby street and wait for one of their friends to pick them up. The original plan was varied because a neighbour was on the roof of his house adjusting tiles and would see Stocker and El-Ahmad if they walked away from the house. Accordingly, it was arranged that Mrs Parsons would collect El-Ahmad and Stocker from the matrimonial home and drive them to a rendezvous with Strunk. The prosecutor told the jury that El-Ahmad "has already been dealt with in this Court."

Prior to the commencement of the trial of the applicants, El-Ahmad gave evidence on a voir dire. The prosecutor said:

"[T]he Crown proposes to call El-Ahmad to give evidence and it has been arranged that he attend court this morning so that his evidence can be given on voir dire and the court can see what he is prepared to say or not prepared to say."

El-Ahmad was called as a witness. He refused to answer any questions concerning Parsons' murder. Notwithstanding the refusal, the prosecutor said that he intended to call El-Ahmad as a witness at the trial. The prosecutor did call El-Ahmad at the trial in the absence of the jury, but again El-Ahmad refused to answer any relevant questions.

At the conclusion of the prosecutor's opening, counsel for Mrs Parsons said that the prosecutor would not be in a position to prove "most of the things that he has put to (the jury) in his opening where they relate to El-Ahmad ...". He said that the prosecutor was seeking to bolster a weak case by using the opening to put matters before the jury about which he could not lead evidence. The trial judge interpreted the submissions as an application to discharge the jury and refused the application, for he was "not satisfied that there is a necessity to discharge this jury." His Honour said counsel's concern could be met by directing the jury that what was said in counsel's opening address was not evidence and by reinforcing what he had earlier said as to drawing inferences and eschewing speculation.

Immediately after the applicants were arraigned, the trial judge directed the jury that they were to decide the case on the evidence. He said that the prosecutor would open the Crown case and "... will explain to you what he anticipates the evidence is going to be. What he says is not evidence ...". After the application to discharge the jury, the trial judge reiterated to the jury that "what counsel say to you at the start is not the evidence." He continued:

"What you hear from the witnesses and see in the exhibits is the evidence, but it is to give you an idea of what the Crown says is the position and it shouldn't be treated as being the position, the more it might be indicated that would go beyond what the evidence proves to be, the more appropriate that criticism could be made by defence counsel of what the prosecution says."

Again, in his charge to the jury, the trial judge said that the jury were not bound by anything "that counsel says to you about the facts in their submissions ...".

Counsel for Parsons submitted that the opening was likely to have caused the jury to think that the prosecutor was privy to information hidden from the jury which enabled him to give a precise description of the agreement struck by the applicants and El-Ahmad and of the details of its implementation.

The exercise of the trial judge's discretion to discharge the jury when an incident occurs during a trial which may affect its fairness depends upon necessity, that is, whether the discharge of the jury is necessary to preserve the fairness of the trial.[16] In the present case, the trial judge appeared to apply the correct test. Nonetheless, as the trial judge's exercise of discretion to refuse to discharge the jury has been challenged, we are obliged to determine for ourselves whether the refusal to discharge the jury incurred the risk of a substantial miscarriage of justice.[17]

In my opinion, the prosecutor's opening did not imperil the fairness of the trial. The evidence which was led by the Crown enabled inferences to be drawn which, in large measure, supported the prosecutor's opening address. The absence of direct evidence to support parts of the prosecutor's opening was used by counsel for Stocker as a basis for criticizing the Crown case. Counsel was able to say that "What has been put to you ... is entirely a matter of speculation." I do not think there is any real risk that the jury would have failed to heed the trial judge's directions that they were to decide the facts having regard only to the evidence of witnesses and exhibits and that the addresses of counsel were not evidence.

An associated ground advanced on behalf of the applicant Parsons, which counsel for Stocker adopted, was that "The learned trial judge erred in permitting evidence to be given, in effect, of the conviction of El-Ahmad." It was submitted that, if the jury were led to believe that El-Ahmad had been convicted of murdering Parsons, they might more readily conclude that Mrs Parsons counselled and procured the murder, for the Crown sought to closely ally Mrs Parsons and El-Ahmad.

Counsel for Mrs Parsons placed considerable weight upon the fact that the jury were told by the prosecutor and the trial judge that El-Ahmad "has already been dealt with in this Court." This formulation was agreed to by counsel for the applicants before the trial began as a means of neutralizing speculation on the part of the jury as to El-Ahmad's fate as he was not being tried with the applicants. The prosecutor suggested that the jury be told that El-Ahmad had already been dealt with by this Court. The trial judge then said to counsel for Mrs Parsons:

"If it is left on the basis of being dealt with, what do you say to that Mr Scarfo?"

In my view, the agreed solution to the problem posed by the fact that El-Ahmad would figure prominently in the trial but was not on trial was sensible and was likely to have minimized the prospect of the jury reasoning that El-Ahmad murdered Parsons because a court had so found, and, by reason of the communications between Mrs Parsons and El-Ahmad, the former procured the murder. The jury may well have thought that El-Ahmad murdered the deceased, but that conclusion was one which the evidence warranted. Further, in my view, nothing said by the prosecutor or the trial judge went beyond the formulation to which counsel agreed. In my view, this ground of the application has not been established.

The next ground of Mrs Parsons' application, in which Stocker joined, was that the trial judge erred in permitting evidence to be led from police witnesses of statements made by El-Ahmad to the police.

Senior Sergeant Shepherd said that El-Ahmad had been arrested and interviewed and had told the police that a mobile phone and organizer found at El-Ahmad's house had been taken from the deceased. Shepherd said that El-Ahmad had nominated someone else as being involved. This evidence stemmed from Shepherd's cross-examination by counsel for Stocker, who asked Shepherd whether El-Ahmad "had nominated someone as being involved", a proposition to which Shepherd assented. In re-examination-in-chief, Shepherd agreed that El-Ahmad nominated "one other in relation to events in the house" and "another person not relation to events in the house". Detective Senior Constable Gale said that El-Ahmad had told the police that there was more than one assailant. He said that El-Ahmad had made a statement to the police and that the police had relied heavily upon the information supplied by El-Ahmad. Gale told the jury that El-Ahmad had said that he and another person were inside the deceased's house. Gale also said that El-Ahmad had been with the police to a number of sites.

Counsel for Mrs Parsons sought the discharge of the jury on the ground that as a consequence of the evidence of statements made by El-Ahmad, "the jury will have taken a view ... which is based in inadmissible evidence". The trial judge refused the application, saying that "to the extent that it was possible to do so, the detail of Mr El-Ahmad's involvement has been minimised."

It was submitted by counsel for Mrs Parsons that this evidence, combined with matters put forward in support of earlier grounds of the application, may have led the jury to conclude that El-Ahmad was a murderer who had been dealt with by the Supreme Court for murder, that El-Ahmad had confessed his involvement in the murder and had given the police information as to how the murder was planned and carried out, information which had been accepted by the prosecutor as the basis for his opening to the jury.

There was admissible evidence from which it could be readily inferred that El-Ahmad had murdered Parsons. He recruited Turner to follow the deceased and had made two earlier attempts on the deceased's life. The deceased's blood was found upon his clothes, articles belonging to the deceased were found in his possession, and he had been picked up in the vicinity of the deceased's house soon after the murder was committed. The evidence of El-Ahmad's statement to Shepherd that two others were involved in the murder, one in the house and one outside the house, was hearsay. It is unfortunate that the questions were asked and that objection was not immediately taken to them. Nevertheless, I do not consider that the evidence constituted a miscarriage of justice.

The trial judge in the course of his charge told the jury of "a basic rule which requires a person to be called as a witness if the truth of what that person says is to be treated as admissible evidence." His Honour said that an exception to the hearsay rule was that evidence could be given of what another said, not for the purpose of establishing the truth of what was said, but rather to establish that a particular matter had been discussed. His Honour then said:

"That is why some subjects spoken of by Mr El-Ahmad were the subject of some evidence but only in a limited way, in a way calculated to minimise the prospect that you might think it was evidence as to the truth of the facts of the matters stated by El-Ahmad."

Although I doubt that the evidence of El-Ahmad's statements was led to prove only what was said, for that was not relevant, I think the directions would have largely neutralized the effect of the evidence. The judge's directions were supported by counsel's addresses. The prosecutor in his address told the jury that El-Ahmad said there was another man in the house and said that the evidence was hearsay. Counsel for Mrs Parsons, in his address to the jury, said that the evidence of El-Ahmad's statements was hearsay. Counsel for Stocker also told the jury that evidence of El-Ahmad's statement was "entirely hearsay ... . There is simply no evidence." Counsel for the applicants submitted that the trial judge erred in failing to link his general directions about hearsay to the evidence of El-Ahmad's statements. If that was a deficiency, it was made good by the addresses of counsel for all the parties. In my opinion, in the light of the unanimous exhortations of judge and counsel, there was no real danger of a miscarriage of justice because the jury may have been influenced by the evidence of El-Ahmad's out of court statements.

Counsel for Mrs Parsons submitted that the jury should have been instructed as to the use they could make of the evidence given by Turner and one Heather Simpson that on 22 August 2000 the brake lines of Mr Parsons' car were cut and on 24 August 2000 Parsons was run off the road while riding a motorcycle. Counsel said that the jury should have been warned against misusing the evidence. Presumably, counsel would characterize evidence of uncharged acts, which the Crown sought to link to Mrs Parsons, as evidence of propensity. I assume the warning envisaged by counsel was that the jury were not to reason that, if Mrs Parsons counselled or procured attempts on her husband's life, she was the sort of person who would be likely to have counselled or procured the murder which ultimately occurred. Counsel referred the Court to R. v. Grech[18] and R. v. Best[19], which were cases dealing with propensity evidence in trials of sexual offences.

In my opinion, the evidence of the earlier attempts on Parsons' life would not have been viewed by the jury as evidence of propensity, but rather as events in a campaign to end Parsons' life. The unsuccessful attempts were part of the context in which the murder was set. The prosecutor put the Crown case in that way, and counsel for the applicant at the trial presumably took a like view, for he did not seek a propensity warning.

Another ground of the application by Mrs Parsons was that the trial judge erred in failing to exclude evidence of statements made by Mrs Parsons to the police. Mrs Parsons was interviewed by officers Stein and Gale on 15 and 16 September 2000. In the course of later interviews, Mrs Parsons said that she had forgotten about returning to the matrimonial home between 6.30 p.m. and 7 p.m. on the day of the murder, when she had earlier stated that she had not returned home until after 8 p.m. Mrs Parsons also admitted that she had lied when she said that she had visited a friend, when in fact she had returned to the house to speak to her husband.

Counsel for Mrs Parsons submitted that, upon the revelation of the falsity of those statements, the police suspected, or ought reasonably to have suspected, that Mrs Parsons had committed an offence. Accordingly, so it was said, evidence of statements made by Mrs Parsons from that time until the conduct of the formal, tape-recorded record of interview was inadmissible by reason of the provisions of s.464H of the Crimes Act 1958. The section provides that a confession or admission made to an investigating official by a person "who ... was suspected; or ... ought reasonably to have been suspected ... of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless ..." the confession or admission is tape-recorded.

The trial judge conducted a voir dire to determine the admissibility of the evidence and heard evidence from Mrs Parsons and the police officers who interviewed her on 15 and 16 September. He said that the account given by the detectives was "reliable" and found that Mrs Parsons "was not in fact suspected of having murdered her husband until the time on the Saturday when the detectives claimed that she was so suspected." His Honour went on to hold that the police ought not to have earlier suspected Mrs Parsons.

In this Court, counsel for the applicant submitted that the police ought reasonably to have suspected that Mrs Parsons had murdered her husband once they had ascertained that Mrs Parsons had lied to them about her return to the house only after 8 p.m. and her visit to a friend. The statements by Mrs Parsons to the police between that time and the making of the tape-recorded interview were a statement by Mrs Parsons to Stein that when her husband was lying dead in the house his head was covered by a piece of carpet, a fact that Stein at least had not revealed to Mrs Parsons, and the statement by Mrs Parsons to Gale that Bill Williams had telephoned her on the morning of 15 September to talk about wrestling. She said that she did not know Bill Williams' telephone number.

In my opinion, the trial judge did not err in concluding that the police ought not to have reasonably suspected Mrs Parsons of murdering her husband before she was formally interviewed. The information which did link Mrs Parsons with her husband's murder had yet to be provided to the police by El-Ahmad, Strunk and Turner. Without that information and no obvious motive, I do not consider that the police ought reasonably to have suspected Mrs Parsons of murder on the basis simply of false statements about her movements on the day of the murder.

The next ground of Mrs Parsons' application was:

"The Learned Trial Judge erred in not directing the jury to disregard from its consideration the alleged comment made by the Applicant to policewoman Stein concerning the carpet on the head of the deceased's body."

In Mrs Parsons' statements to the police and in her record of interview she claimed not to have seen her husband's body when she returned home on 15 September 2000. The neighbour who discovered the body gave evidence that the upper part of the body was covered by a piece of carpet or mat. He said that he had not told Mrs Parsons about the carpet or mat. On 16 September 2000, Mrs Parsons mentioned to Stein that her husband's face was covered by carpet. Stein said in her evidence that neither she nor any other member of the police force in her presence told Mrs Parsons of this detail. Other police officers who spoke to Mrs Parsons who gave evidence were not asked, either by the prosecutor or by counsel for the applicant, whether they had told Mrs Parsons about the carpet. Hence, counsel said, Mrs Parsons may have learned of the matter otherwise than having been told of it by the murderer or murderers.

In my opinion, the failure of the prosecutor to ask all the police witnesses who had dealt with Mrs Parsons whether they had told her of the carpet did not render Stein's evidence inadmissible. It was relevant that Mrs Parsons had knowledge which could only have come from those involved in the murder. The failure, however, detracted from the weight to be accorded to Stein's evidence, which probably explains why the prosecutor did not mention it in his final address to the jury.

Counsel for Mrs Parsons complained of the failure of the trial judge to exclude altogether hearsay evidence given by Heather Simpson, the secretary of the Sporting Terrier Club of Victoria. The deceased, who owned two terriers, was a member of the club. Ms Simpson was asked by counsel for Mrs Parsons whether the deceased had told Ms Simpson that he believed he knew who had cut the brake lines of his car. The witness said that the deceased told her he thought someone in the wrestling world was possibly responsible. She also said:

"He said Donna (Mrs Parsons) was the only one that knew he had that car that night, it's not his normal car that he drives to a meeting."

The prosecutor joined in by eliciting from the witness that the deceased had told her in the same conversation that he was worth more to Mrs Parsons dead than alive.

The trial judge thereupon sought to shelter the jury from this shower of hearsay by telling them that "it might have been better to exclude all the evidence altogether on the basis that it is hearsay." He said that the material was not to be used to assess the truth of what was said, but simply to establish that certain matters had been discussed. Counsel now says that the jury should have been instructed to disregard the evidence altogether, although counsel at the trial sought no such direction. The trial judge did not mention the evidence in his charge, and again no complaint was made by counsel, who may well have thought his failed attempt to divert attention from his client should not be emphasized or recalled. In my view, his Honour said enough to counter the effect of the evidence.

The trial judge gave directions to the jury as to hearsay evidence in the course of the trial and in his charge. It is now said that his Honour should have identified each piece of hearsay evidence and given precise instructions to the jury as to the use to be made of it.

For the most part, the trial judge dealt with hearsay as it arose. The principal hearsay evidence was that given by Ms Simpson and El-Ahmad. I have canvassed his Honour's directions in respect of that evidence earlier in these reasons. In my opinion, the jury would have understood that hearsay evidence was not admissible, but that what was said by a person not called as a witness might on occasions be admitted as evidence that something was said. The jury could have been under no illusion that such evidence was not admissible to prove the truth of what was said. In my opinion, it was not necessary for the trial judge to analyse any more than he did the evidence of statements made by persons not called as witnesses. Counsel at the trial sought no directions labelling each piece of admissible or inadmissible evidence. In my opinion, his Honour's directions were not deficient and led to no miscarriage of justice.

For the foregoing reasons, I am of the opinion that none of the grounds of the applications for leave to appeal against the convictions of the applicants have been established. Further, I am of the opinion that there was not sufficient strength in the grounds to justify the conclusion that in combination they produced the result that the applicants had been denied a fair trial.

I turn to the application for leave to appeal against sentence by Mrs Parsons. There were but two grounds of the application. They were:

"1. The sentence is manifestly excessive. 2. The Learned Sentencing Judge erred in taking into account as an aggravation of sentence the two alleged uncharged prior attempts to murder the deceased."

Under the first ground, counsel for the applicant relied upon the applicant's personal history and certain mitigating factors. Mrs Parsons was 39 years of age when she was sentenced. She had no prior convictions. The applicant was born in England and lived there until 1996, when she married Paul Parsons and migrated to Australia. Mrs Parsons had two children, daughters aged five and 11 years at the date of sentence. Her counsel said that she devoted considerable time to her family. She worked at night in order that either she or her husband was present in the house and she was heavily involved in school activities. The sentencing judge acknowledged that the applicant was engaged in regular employment, had taken an active part in her daughters' education and would "suffer the more greatly because your punishment will preclude you from having any major contact with your daughters until they are young women."

In the course of the plea, a report by a psychiatrist who had treated Mrs Parsons in prison was tendered. He said that she suffered from "a depressive illness of moderate severity".

The crime was serious indeed. Over a period of some weeks, the applicant planned the murder with El-Ahmad. Her determination was demonstrated by the several attempts she procured upon her husband's life. Not only did the applicant bring about the murder by painting her husband to El-Ahmad as a child molester and cruel husband and holding out the promise of material reward, she participated by transporting the killers to and from the site of the murder. Having regard to the circumstances of the crime, and giving due weight to the mitigating factors on which the applicant could rely, I am of the view that the sentence was within the range of sentences available to the sentencing judge.

Pursuant to the second ground, counsel submitted that the intent of the perpetrators of incidents which occurred on 22 and 24 August 2000 was unknown. He said the incidents could have been the subject of criminal charges against the applicant, and the sentencing judge erred in characterizing them as attempts to kill

and in taking them into account in sentencing the applicant.

In my view, the sentencing judge was entitled to treat the incidents as attempts upon Parsons' life. That conclusion may not have been open if each event was viewed in isolation. The sentencing judge, however, clearly viewed them in context as part of a campaign of increasing efficiency to kill Parsons, when the motives operating upon the perpetrators of the attempts were those present when the murder took place.

I do not think that the applicant was sentenced for an offence with which she was not charged. The earlier attempts did not form a component of the sentences, but were used to throw light upon the relationship between the applicant and El-Ahmad and upon her intention. In other words, I do not consider that the sentencing judge took the earlier events into account as circumstances of aggravation that warranted a heavier sentence than was otherwise appropriate.[20]

I would refuse the application for leave to appeal against sentence.

For the reasons given by Buchanan, J.A., I agree that the applications for leave to appeal against conviction by Parsons and Stocker should be dismissed. I agree too, for the reasons given, that Parsons' application for leave to appeal against sentence should be dismissed. I wish to add some remarks as to only one of the grounds concerning conviction.

As to the complaint concerning the opening address of the prosecutor (who was not counsel on the appeal), I agree with Buchanan, J.A. that his Honour's directions to the jury, taken together with the fact that defence counsel were able to immediately respond in their defence opening statements, overcame any unfairness which had attended the address. Defence counsel asserted that the prosecutor's

opening was full of theory and conjecture, which was not supported by any evidence that would be called. Having said that unfairness was overcome, I do not, with respect, agree with his Honour that the address had not imperilled the fairness of the trial. Had the directions not been given, or had they been given in terms which were inadequate to dissipate any unfairness, then I might well have concluded that the ground was made out.

The prosecutor was very experienced and in my opinion he must have well known that when he opened the case as he did he was sowing in the minds of the jury the thought that he had access to information about "the plan" which justified his opening remarks. On the day before the opening address was delivered El-Ahmad had given evidence on voir dire and made it clear that he would not give evidence in the trial if called. The prosecutor then said "I still intend to call him at the trial and see what he says in front of the jury". Defence counsel said that El-Ahmad ought not be called if his evidence was not going to be opened by the prosecutor and his Honour said "I don't think he can open his evidence because he can't be reasonably confident he is going to get any from him at all". The judge said he could be called on voir dire to see if his attitude had changed, and then the position might be reviewed.

In due course El-Ahmad was called during the trial , but in the absence of the jury and, as foreshadowed by him, he once again refused to answer questions. He was not then called as a witness before the jury.

The opening address led to an immediate application for a discharge of the jury. In responding to the complaints of defence counsel that he had opened matters he knew he could not prove, the prosecutor contended that the matters he had asserted were, indeed, capable of being proved by direct evidence or by inference drawn from evidence. He said that the defence had the opportunity to say to the jury that matters he had opened were incapable of proof, and if that proved to be so then, he said, the jury would acquit. The prosecutor said he believed he was entitled to open as he had and he urged the judge not to say anything to the jury that suggested otherwise.

In my opinion, the prosecutor knew when he opened that it was highly unlikely that El-Ahmad would give evidence. He knew, therefore, that it was unlikely that he could lead direct evidence as to "the plan", and that some of the details of the plan which he provided in his opening would not be capable of being drawn by way of inference from the evidence which would be led. This was not merely an instance of a prosecutor "opening high" as to the probable state of the evidence which would emerge in the trial. In delivering his address the prosecutor must have anticipated the absence of El-Ahmad and that in his absence the evidence would not permit him to tie the case together in his final address in the way he sought to do in his opening.

In ruling that he would give a direction to the jury in response to the defence complaints, the trial judge said he would not criticise the prosecutor in those directions. Nor did his Honour criticise the prosecutor in the absence of the jury. His Honour, it seems, accepted that the prosecutor believed he was entitled to open as he did, and that he was not deliberately adopting an unfair course. Accepting that apparent conclusion by the judge, it remains the fact that the course adopted by the prosecutor in his opening carried a significant risk of either the judge aborting the trial after the opening address, or the Court of Appeal ordering a re-trial. The taking of such a risk was, in my opinion, entirely inappropriate. The unfairness which in fact attended the opening address was removed by the prompt action of the judge. The foolishness of the course adopted remained.

Having had the opportunity to consider, in draft, the judgment of Smith, A.J.A., I add that I agree with his Honour that the questions which were asked of the witness Shepherd in re-examination by the prosecutor were inappropriate. The questions were prompted by the earlier cross-examination of Shepherd by counsel for Stocker as to what El-Ahmad had told police. Those questions were not objected to either by the prosecutor or counsel for Parsons (although the latter had earlier stated that he objected to any hearsay evidence being led in the trial) but they plainly were directed to eliciting hearsay evidence, and did so. Had objection been taken to those questions they ought to have been disallowed. The re-examination by the prosecutor might be seen as a response in kind, save for the fact that the potential damage done by the hearsay evidence he elicited was to the case of Parsons, not Stocker.

Counsel for Parsons complained that the course taken by the prosecutor was a deliberate one, designed to introduce evidence that he knew was inadmissible. The judge did not uphold that complaint and I am not prepared to say that the prosecutor deliberately led evidence he knew to be inadmissible. It seems likely, to me, that the prosecutor thought that once counsel for the co-accused Stocker led hearsay evidence as to El-Ahmad's statements then he was himself entitled to lead hearsay evidence deriving from the same source, but as against Parsons If that was the prosecutor's understanding of the law then, in my opinion, he was quite wrong and he showed poor judgment in adopting the course he did. The likely impact of this evidence, however, seems to me to have been small. In his final address the prosecutor made no reference to what El-Ahmad had said about the involvement of a third person, although he made a passing reference to what El-Ahmad had said about "Charles" or "Drill". He said that evidence was "hearsay" and that whilst it was in evidence, "for what it is worth", said he did not know what weight the jury would attach to it.

Throughout the trial a good deal of hearsay evidence had been introduced but for purposes other than establishing the truth of what had been said. The judge had directed the jury on a number of occasions as to the limited use that could be made of such evidence. In his charge to the jury the judge gave further, quite detailed, directions concerning hearsay evidence and said that the evidence of El-Ahmad's statements made to various people had been led for a limited purpose and were not evidence of the truth of what was said. His Honour gave further directions as to hearsay when summarising the address of counsel. His Honour did not refer expressly to the evidence introduced in re-examination of Shepherd concerning a

third person being involved in the murder, but as Smith, A.J.A. has pointed out, counsel for Parsons did not seek a more specific direction.

Both for the reasons stated above and also those stated by Buchanan, J.A., I am not persuaded that there was a high degree of need[21] for the discharge of the jury and that failure to do so created a risk of a substantial miscarriage of justice[22]. Furthermore, whilst a cautious approach might have dictated that a direction be given that the hearsay evidence about what El-Ahmad said concerning a third offender was not evidence I am not persuaded that the absence of such a specific direction constituted a miscarriage of justice[23]. However, even if it did then it did not constitute a substantial miscarriage of justice, and it would be appropriate to apply the proviso to s.568(1) of the Crimes Act 1958 [24].

I have read the reasons for judgment of Buchanan, J.A. I agree with the conclusions he has reached, substantially for the reasons he has advanced. In relation to the appeal against conviction of Parsons, however, my views differ in some respects - in particular, on the impact on the trial of Parsons of the opening by the prosecutor and of questions, particularly by the prosecutor, which had the effect of placing inadmissible material before the jury. In my view, they raise issues about whether Parsons was denied a fair trial.

In considering those matters it needs to be borne in mind that it was critical to the Crown case to establish that El Ahmad was present at and involved in the act of

killing Paul Parsons and, if the jury were led to believe or encouraged to suspect that

he had confessed to the murder or been convicted of it, the jury would more readily accept that fact and that Parsons had procured the murder.

In opening the case, the prosecutor told the jury that El Ahmad "had already been dealt with in this Court" and put before the jury what he described as the "plan". I refer to the summary by Buchanan, J.A. of the relevant part of the opening, the attempts by the prosecution, in the absence of the jury, to obtain the cooperation of El Ahmad in giving evidence and the subsequent discussion in which the complaints of counsel for Parsons were treated as an application for discharge of the jury.[25]

I agree with the criticisms of prosecuting counsel made by Eames, J.A. in his reasons. The prosecutor was effectively trying to open to the jury facts that depended in large measure on El Ahmad giving evidence when he had every reason to think that that would not in fact occur.

In the context of the prosecutor's opening, counsel for Parsons also complained at the trial about the jury having been informed that El Ahmad had been "dealt with" because, as a result of the manner in which the case was opened, the jury would have concluded that he had been found guilty of the murder of Paul Parsons. In my view, a more neutral expression should have been used such as that El Ahmad was the "subject of separate proceedings". Counsel for Parsons had agreed to the formula "dealt with" but when that consent was given, was not aware of the content of the prosecutor's opening. The opening changed the situation and Mrs Parsons should not now be held to counsel's initial concession.

An accused person is entitled to a trial that is fair and conducted according to law. In my view, the prosecutor in opening in the way he did and, in the context of that opening, asserting that El-Ahmad had been "dealt with", placed at serious risk the fair trial of the accused and went beyond what the law prescribes. However, the prosecutor also took a great risk in opening the Crown case in this way because he ran the risk that he would provide defence counsel with ammunition to attack the Crown case.

His Honour took steps immediately to deal with the issues by considering whether the jury should be discharged. His Honour took the position that defence counsel's concerns could be met with appropriate directions. He had already told the jurors that what the prosecutor said in opening was not evidence and that they had to decide the case on the evidence. He repeated that direction after the discharge issue arose. In those circumstances, it cannot be said that there was the required necessity to discharge the jury. Counsel for Parsons in his opening statement to the jury also addressed the issues and did so effectively. As a result the risks to the fairness of the trial created by prosecuting counsel were substantially addressed.

As indicated above, I have also been troubled about the adducing of inadmissible evidence before the jury about what El Ahmad had said to the police.

Evidence of statements of El Ahmad to the police and of his co-operation with them was led by counsel for Stocker and the Crown. Stocker's counsel wanted to bring before the jury evidence that El Ahmad was involved in the actual killing and that what El Ahmad said to the police exonerated Stocker.

For Parsons, the issue with the evidence led by Stocker, was whether it required directions from the judge and whether they were adequate. I will return to that issue. I simply note at this stage that the principal evidence complained of by counsel for the appellant Parsons was evidence that El Ahmad had told Shepherd that "we took them off Paul" referring to the mobile phone and the organiser found in El Ahmad's possession. In addition, counsel for Stocker obtained evidence from Shepherd that El Ahmad had nominated another person as being involved in events in the house named "Charles" whose nickname was "Drill". I turn to the evidence led by prosecuting counsel.

In re-examination of Shepherd, counsel for the prosecution used the cross-examination by counsel for Stocker, to return to the evidence of what El Ahmad had said to the police. The transcript passage is as follows:

"You answered a question from my learned friend Mr Silbert along the lines, these lines - do understand I am not asking you to tell the court what El Ahmed told police officers, but it was put to you by my learned friend Mr Silbert that he nominated another person involved. Did he nominate one other person involved or two other people involved? --- Just the one. Yes, in relation to the events that had occurred in the house? --- Yes, that's correct. Did he nominate another person but not in relation to the events that had occurred in the house? --- Yes, he did. It was suggested to you by Mr Scarfo that Donna Parsons had always co-operated with the police and made statements and completed a record of interview. Was she in fact interviewed on a second occasion? --- Yes, she was. And on that occasion did she exercise, and I don't say it wasn't a right that she had, but did she exercise her legal right not to answer questions? --- Yes, that is correct. That was on 19 September? --- Yes, it was. Thank you, Sergeant."

Counsel for Stocker had not raised the issue of whether or not a third person was involved and had confined himself to questions about the nomination of "Charles" by El Ahmad and the proposition that it wasn't until they spoke to Mr Strunck that Stocker was nominated as being so involved. The issue of any statement about the involvement of another person not at the house had not been raised. Thus there was, in my view, no legitimate basis to explore, in re-examination, the question whether there was another person involved in the event but not at the house. Further, the evidence adduced by prosecuting counsel in re-examination was inadmissible hearsay; for the relevance of the evidence lay in the truth of the facts asserted. Having led the evidence, prosecuting counsel then immediately introduced Parsons into the minds of the jury by asking questions directed to the issue raised in cross-examination by her counsel about her co-operation with the police. Prosecuting counsel then purported to challenge the alleged co-operation by referring to the fact that she had also exercised her right to silence. This aspect of the re-examination had at least two consequences. One was to suggest to the jury that the third person nominated by El Ahmad was Parsons and the other, despite counsel's qualification, was to criticise her for exercising her right to silence. I would have inferred that the first was the only purpose but for what occurred later.[26]

Counsel for Parsons objected to both aspects at the time but the trial judge overruled the objection. It is relevant to note that early in the proceedings counsel for Parsons had indicated to his Honour and other counsel that he objected to any hearsay evidence. There was then a short adjournment following which counsel for Parsons sought to follow up the objection with a request that the jury be discharged. His Honour ruled that he was not satisfied that the jury should be discharged and said that there was no necessity for it. He stated

"In short, the matters, it seems to me, were simply matters of clarification and matters that were raised in cross-examination".

In my view, the questions asked by the prosecutor did not arise out of or clarify any cross-examination and were not proper matters for re-examination. Further, even if it be that counsel for Stocker had waived any objection to the admission of hearsay evidence on the issue he had raised, the evidence about the statement about the third person was inadmissible against Parsons. It was a further attempt by prosecuting counsel to inform the jury about El Ahmad's statements - this time through inadmissible evidence. In my view, the jury should have been told to disregard the evidence objected to by counsel for Parsons.

Later, prosecuting counsel again sought to re-examine another police officer, Gale, on the issue of the co-operation given by Mrs Parsons on the 15, 16 and 17 September on the basis of her exercising her right to silence when she was arrested on the 19th September. This time he went much further.

"Was she told if she wanted to she could have a solicitor? - - - Yes. Was she given the opportunity to speak to a solicitor? - - - Yes. Did she do so? - - - Yes. Then did you recommence the record of interview? - - - Yes. Did you ask her these questions - - - HIS HONOUR: Is it appropriate to go into the detail of this Mr Horgan? MR HORGAN: Yes, just a few, Your Honour. HIS HONOUR: You object, Mr Scarfo? MR SCARFO: Yes. HIS HONOUR: I am disposed to think it is an appropriate objection, I don't think it is appropriate to go into detail. MR HORGAN: I won't go into detail, can I say this - - - His Honour: It has been raised a number of times, she was told her rights and she exercised them. MR HORGAN: Did she say she wasn't prepared to answer your questions? - - - Yes. Did she say that was on the advice of her solicitor? - - - Yes, she did. And did she in fact refuse to answer - - - HIS HONOUR: I think we have enough of that material. As I say, she exercised her rights. MR HORGAN: Yes, thank you."

The issue of the re-examination on the exercise of the right to silence is not a matter raised in this appeal by Parsons. It seems to me, however, that it is relevant as part of the context for the discussion of the fairness of the trial.

Another example of hearsay evidence adduced by prosecuting counsel in re-examination was the evidence of Ms Simpson about the deceased's statement of a motive for Parsons. The admissibility of that evidence is more debatable because it could be argued that counsel for Parsons had impliedly waived his right to object on the grounds of hearsay.

Prosecuting counsel have a duty to conduct the Crown case fairly.[27] It seems to me that the issue that arises for determination is whether the actions of prosecuting counsel and the responses of the learned trial judge resulted in the accused Parsons being denied a fair trial.

The problems with the opening having been largely addressed at the time they arose, the principal concern, I suggest, is the leading of the hearsay evidence against an accused person. Doing so carries with it more than the problem of possible miscarriage resulting from the erroneous mis-use of questionable evidence. It can also result in serious unfairness. The accused, where the maker of the original statement is not called to give evidence, cannot test the hearsay evidence[28] and, where the evidence is important, is denied the opportunity to confront his or her accuser. In the present case, examples of important evidence would include the hearsay evidence led by the prosecution of El Ahmad's statement that there was another person involved outside the house and Ms Simpson's evidence about the deceased's statement of a motive for Parsons.

There can be cases, no doubt, where the conduct of prosecuting counsel results in the denial of a fair trial no matter what the trial judge may do to address the issues raised. In this case, however, it seems to me that whether Parsons received a fair trial depended upon the learned trial judge's directions to the jury on the use of this and other hearsay evidence. Here I initially had some concern. A strict application of the law would, in my view, have required the jury to be told to disregard the objectionable hearsay evidence led by the prosecution. If led merely to prove that the statement in question had been made, it had no relevance. If relevant for hearsay purposes, it was not admissible. In addition, a strict application would have required a direction that the hearsay evidence led by counsel for Stocker was inadmissible against Parsons and vice versa. The learned trial judge, however, was faced with a situation where both accused wished to rely upon some hearsay evidence. The sort of directions to which I have referred would not have necessarily been welcomed by counsel for either accused. His Honour did give directions. In considering the overall impact of what occurred on the fairness of the trial of Parsons it is highly relevant to consider the reaction of counsel to his Honour's charge. There being no exception taken to his Honour's approach to the hearsay evidence problem, I have concluded that counsel in the end saw no ultimate unfairness for Parson's trial flowing from what had occurred.

I confess to real concerns about the fairness of the trial. I have come to the conclusion, however, that the requisite unfairness cannot be demonstrated.

In the heat of battle, errors of judgment are easily made. Further, prosecuting counsel has a difficult task in presenting the Crown case strongly but fairly. That task is also, at times, a frustrating one because of the rules of evidence and procedure directed to protecting fundamental rights, ensuring a fair trial and minimising the risk of wrongful conviction; for they tend to impose limits upon prosecuting counsel rather than defence counsel. I suggest, however, that the best way for prosecuting counsel to present the Crown case fairly is to conduct it strictly according to the rules and not to conduct it according to what is sometimes referred to as the "rule in Dyer's case".[29] There will, of course, be grey areas where the proper course to follow is unclear. Any uncertainty should be resolved by seeking rulings from the trial judge before proceeding further.

I agree that the sentence appeal should be dismissed, substantially for the reasons advanced by Buchanan, J.A.

I certify that the preceding 36 pages are a true copy of the reasons for judgment of Buchanan and Eames, JJ.A. and Smith, A.J.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 26 May 2004.

[1] Gillard v. R. [2003] HCA 64; (2003) 202 A.L.R. 202 at [26] per Gleeson, C.J.

[3] See Markby v. R. [1978] HCA 29; (1978) 140 C.L.R. 108 at 112-3 per Gibbs, C.J.; R v. Barlow (1997) 188 C.L.R. 1.

[5] See, for example, Davies v. D.P.P. [1954] A.C. 378 at 401-2 per Lord Simonds, L.C.

[6] J.D_._ Heydon_, "The Corroboration of Accomplices_" [1973] Crim.L.R. 264; Glanville Williams, "Corroboration - Accomplices" [1962] Crim.L.R 588.

[7] Khan v. R. [1971] W.A.R. 44; R. v. Cox [1986] 2 Qd.R. 55; R. v. Turnbull and Davidson [1988] 1.Qd.R.266; R. v. Schioparlan and Georgescu (1991) 54 A.Crim.R. 294 at 299-300 per Young, C.J. ; R. v. He and Bun [2001] VSCA 58; (2001) 122 A.Crim.R 487 at 492 per Phillips, C.J and Batt, J.A. See "Wigmore on Evidence", vol. 7, para 2060.

[10] Above at 417. See also R. v. Gill and Mitchell [2003] VSC 321 at [14] per Redlich, J.; R_. v. Clark_ [2001] NSWCCA 494; (2001) 123 A.Crim.R. 506 at [49]- [52] per Heydon, J.A.

[12] See R. v. Weiss [2004] VSCA 73 at [54] per Callaway, J.A.

[13] See R. v. Radford, unreported, Vic CCA 28 February 1992; R. v. Radford (1993) 66 A.Crim.R. 210; R. v. Power and Power [1996] SASC 5653; (1996) 87 A.Crim.R. 407 at 411-2 per Doyle, C.J.; R. v. Baker [2000] SASC 407; (2000) 78 S.A.S.R. 103.

[14] (1993) 66 A.Crim.R. 210 at 237-8 per Phillips, C.J. and Eames, J.

[17] Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427 at 441 per Toohey, Gaudron, Gummow and Kirby, JJ.

[20] Cf. R. v.De Simoni [1981] HCA 31; (1981) 147 C.L.R. 383 at 389 per Gibb, C.J.

[21] See R. v. Brown [2000] VSCA 102, at [19], per Callaway, J.A., and the cases cited therein at fn. 15.

[22] Crofts v The Queen [1996] HCA 22; (1996) 186 C.L.R. 427, at 441

[23] See Kelly v. The Queen [2004] HCA 12; (2004) 78 A.L.J.R. 538, at [131] per Kirby, J.

[24] See Mraz v The Queen [1955] HCA 59; (1955) 93 C.L.R. 493, at 514; R v Konstandopoulos [1998] 4 V.R. 381, at 391-392.

[27] The Queen v Apostilidis [1984] HCA 38; (1984) 154 CLR 563, 575-8 and the cases there cited.

[28] Cf, R v War Pensions Appeals Tribunals [1933] HCA 30; (1933) 50 CLR 228,256.

[29] Don't worry about the rules. Just keep going until the umpire blows the whistle.

At a glance

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Judgment (167 paragraphs)

Cases Cited (2)