R v Spathis; R v Patsalis

Court of Criminal Appeal (NSW)|2001-11-29|Before: Heydon JA, Carruthers AJ, Smart AJ, Kirby J, Mr P

The application for leave to appeal against sentence is dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60093/00 60139/00

HEYDON JA CARRUTHERS AJ SMART AJ 29 November 2001

1 HEYDON JA: After a trial lasting 55 days before Kirby J and a jury, Michael Patsalis and Alexios Spathis were on 24 September 1999 convicted of murdering Klaus Peter Ludwig on 11 April 1996 at Botany. On 23 February 2000 Patsalis was sentenced to penal servitude for 21 years and 6 months, consisting of a minimum term of 16 years and an additional term of 5 years and 6 months. Spathis was sentenced to penal servitude for 19 years, consisting of a minimum term of 14 years and an additional term of 5 years. 2 Each has appealed against his conviction and sentence, though only Patsalis advanced arguments in relation to sentence. Accordingly Spathis' application for leave to appeal against sentence will be dismissed. These reasons deal with Patsalis' appeal. Background 3 The background circumstances are important in understanding the grounds of Patsalis' appeal. They are also important in evaluating the force of various arguments he advanced to the effect that there had been a miscarriage of justice because those arguments must be assessed in the light of the very strong Crown case. It is convenient to foreshadow a general conclusion: the factual issues to which Patsalis' complaints go, however they were to be decided, would not affect the Crown case as proved before the jury and as set out in the trial judge's remarks on sentence. "Mr Patsalis and Mr Spathis each provided lengthy interviews to the police. Each gave evidence at the trial. Neither gave evidence on sentence. In some important respects their accounts correspond. In others they differ markedly. I will begin by identifying the common ground.

Mr Patsalis and Mr Spathis were friends, although not of long standing. Mr Spathis had a business serving food at the Three Swallows Hotel. Mr Patsalis was a patron of that hotel. They shared certain interests. In the year or so before Mr Ludwig's murder, Mr Spathis advanced $16,500 to Mr Patsalis by way of loan. They gave strikingly different accounts of the circumstances in which the debt accumulated. It was, however, acknowledged by Mr Patsalis that certain advances had been made in circumstances where he had deceived Mr Spathis. The money was used for gambling, and lost. Mr Patsalis was not in a position to repay the loan. And so the friendship soured. It was in the context of that debt, that Mr Patsalis became acquainted with Mr Ludwig.

Mr Ludwig had a small business restocking cigarette vending machines. One such machine was located in a small coffee house at Restwell Parade, Bankstown. The coffee house was frequented mainly by persons of Greek origin. They included Mr Patsalis. Mr Patsalis was attracted by a card game in which patrons played for money. Mr Patsalis met Mr Ludwig. He discussed with him the prospect of obtaining cheap cigarettes, which was a matter of interest to Mr Ludwig. Although Mr Patsalis may describe it otherwise, I am satisfied that he persuaded Mr Ludwig that he was able to arrange the supply of cheap cigarettes through contacts he had. Mr Ludwig, on the evening he met his death, believed that he was travelling to a warehouse at Botany where he would exchange the cash he was carrying ($58,500) for a large consignment of contraband cigarettes.

The accounts given by Mr Patsalis and Mr Spathis as to the events before and after the stabbing of Mr Ludwig were not remarkably different. They met at 3.00pm at Mr Patsalis' flat. Thereafter a number of purchases were made. There were two pairs of gloves, two knives, a tarpaulin, and one tin of petrol. Mr Patsalis and Mr Spathis differed from each other as to the circumstances in which the purchases were made, and their knowledge of the items purchased. They both denied having any appreciation of the sinister purpose of these items, as revealed by the events of that evening. I will return to this issue shortly.

Arrangements were thereafter made to meet Mr Ludwig at Bankstown. Two vehicles were driven from Bankstown to the Marrickville RSL. Mr Spathis drove his car [POZ 344]. Mr Patsalis was a passenger in the truck driven by Mr Ludwig. It was common ground that Mr Spathis, having left first, doubled back in order to follow the truck, and thereby ensure that the truck was not being followed. This fact was communicated to Mr Patsalis. Both, therefore, knew that Mr Ludwig was alone.

Once at Marrickville, Mr Spathis parked his car. He then entered the truck, sitting alongside Mr Ludwig, with Mr Patsalis on the other side, nearest the door. Mr Spathis then drove to Botany.

At some point the vehicle parked by the side of the road at Botany. Whilst parked, Mr Ludwig was stabbed. Mr Patsalis and Mr Spathis each blamed the other for the stabbing. Each asserted ignorance of the sinister purpose of the other. Both acknowledged that money was removed from Mr Ludwig's jacket after the stabbing by Mr Spathis. Mr Spathis asserted (and Mr Patsalis denied) that he did so at the direction of Mr Patsalis.

Mr Spathis drove the truck back to Marrickville with Mr Patsalis as a passenger. Mr Ludwig's body remained in the cabin. Mr Patsalis then alighted. He thereafter drove Mr Spathis' vehicle. Mr Patsalis was covered with blood. The car seat was protected by the plastic tarpaulin purchased earlier in the day.

The two vehicles were driven to Terrey Hills, although by a circuitous route. Each asserted the other led the way. At Terrey Hills the body was removed from the cabin by Mr Spathis, and left by the side of the road. It was doused in petrol. Further money was removed from the jacket of the deceased. The body was then set alight. There were differences as to who removed the money, and who set fire to the body.

The vehicles then left the scene, although in circumstances which were somewhat chaotic. The burning of the body, and the rapid exit from the area, were witnessed by the occupants of a number of vehicles which were in the area.

The vehicles proceeded to Mr Patsalis' flat at Homebush. Mr Spathis drove the truck, whilst Mr Patsalis remained in Mr Spathis' car. Having met at Homebush, the two vehicles were then driven to Chester Hill, where the truck was set alight. Mr Patsalis placed his bloodstained clothes inside the truck, so that they were also destroyed.

The Crown contended, and the jury accepted, that both Mr Patsalis and Mr Spathis were responsible for Mr Ludwig's murder. The Crown case was put in three ways. · First, a joint attack by both accused. Two knives had been purchased. Mr Patsalis and Mr Spathis were arranged on either side of Mr Ludwig. The wounds were consistent with both knives (or either knife), although it was not possible to say, simply based upon the wounds, whether they came from the left or the right, or from both directions. · Secondly, a joint criminal enterprise to either rob and/or murder Mr Ludwig. If the agreement was to rob, it was the Crown case that the accused who did not do the stabbing was aware of the possibility (amounting to a substantial risk) that, in the course of the robbery, his co-accused may intentionally kill, or cause grievous bodily harm, to the person being robbed, Mr Ludwig. · The third basis upon which the Crown suggested that both accused were responsible, was felony murder, either as the person who stabbed the deceased, or

'… being aware that the co-accused was armed with a knife, the accused was aware that there was a substantial risk that his co-accused might immediately before, during, or immediately after the commission of the robbery, stab (the victim) seriously injuring him or killing him.' …

By any standard, this was a cold-blooded and shocking crime. The deceased was lured into a trap. He was alone. There was no suggestion that he was armed. He was out-numbered. He was taken at night to a deserted location where he was attacked. He was repeatedly stabbed, such that he died almost at once. Counsel for Mr Spathis submitted that the wounds suggested frenzy, and were consistent with panic. Certainly, there were multiple wounds, front and back, and to the head. The victim was given no chance. There is nothing in the evidence which suggests panic to my mind. Mr Ludwig was deliberately slain where he sat, between Mr Patsalis and Mr Spathis.

The Crown asserts that the crime was premeditated, and that is a circumstance of aggravation. Counsel for Mr Spathis sought to refine the issue by asking what crime was planned? It was said, on behalf of Mr Spathis, that the Court should not find beyond reasonable doubt that there was premeditation of murder. Rather, the crime in contemplation, in respect of which there was planning, was robbery, where one at least of those involved was carrying a weapon. Although the same submissions were not made on behalf of Mr Patsalis, the same issue arises. It requires an examination of the events which preceded the stabbing.

It was Mr Patsalis who befriended Mr Ludwig. He sought to gain his confidence. They met a number of times at the Restwell Parade coffee shop, and at the Bankstown Sports Club. Mr Patsalis gave evidence that, on Saturday 6 March 1996 (five days before the murder), he discussed at length the purchase by Mr Ludwig of contraband cigarettes for cash. I have no doubt that he persuaded Mr Ludwig to become involved. He did so, knowing that there were no cigarettes on offer.

Mr Patsalis' purpose, rather, was crime. I will leave to one side, for the moment, the nature of that crime. Certainly, his purpose included robbing Mr Ludwig of the cash which he was required to bring to a meeting which was then organised.

Mr Patsalis gave an account to the jury which involved Mr John Spathis, an uncle of Mr Alexios Spathis. He said that he believed, as Mr Ludwig believed, that Mr John Spathis had available a large consignment of contraband cigarettes. He described discussions with Mr John Spathis, before the murder, concerning such cigarettes. Mr John Spathis, it should be said, had a small supermarket at Ashfield. He stocked, amongst other things, cigarettes. Mr Patsalis said that Mr John Spathis had told him that he had spoken to Mr Ludwig.

It is reasonable to suppose that the jury rejected Mr Patsalis' account. It is hardly surprising that they should have done so. It was implausible. In a lengthy interview to the police upon his arrest, Mr Patsalis made a passing reference to Mr Alexios Spathis' uncle. He did not include the detail of the matters which were to emerge as his 'defence'. His account, moreover, was not supported by the text of the letter Mr Ludwig left behind, written the day before his murder (Exhibit AX). I repeat, that I have no doubt that Mr Patsalis knew full well that there were no cigarettes on offer, and that he was luring Mr Ludwig into a trap.

I have made reference already to the purchases which were made on the afternoon of 11 April 1996, the day Mr Ludwig was murdered. The meeting with Mr Ludwig was arranged for 5.00 pm. As it happened, he was late. He arrived shortly after 5.30 pm. Between 3.45 pm and 4.38 pm a number of items were purchased. The times of each purchase can be fixed with precision by reference to the computer print-out of the cash registers within the stores from which the purchases were made. The items purchased were as follows: · At 3.35 pm from BBC Hardware, Yagoona, two pairs of gloves, and one blue tarpaulin/ground sheet. · Between 4.00 pm and 4.20 pm, a can of petrol from a Mobil service station at Yagoona. · At 4.38 pm at K-Mart, Bankstown Square, two knives (one with a 7 inch blade and the other with a 9 inch blade), each within a protective knife sharpener, which was like a scabbard. It may be helpful if I first state the position of each prisoner in respect of these purchases. Mr Patsalis acknowledged that he made the first purchase (at 3.45 pm). Mr Spathis was not present. Mr Spathis denied knowledge of the gloves. He saw the blue tarpaulin, but thought nothing of it.

Mr Patsalis also made the purchase of the can of petrol. He did so on the instructions of Mr Spathis. Mr Spathis acknowledged having given those instructions. They were given because he noticed his car was running low on fuel. Mr Spathis said that he did not enter the petrol station because he was aware that petrol stations have video surveillance. He had no wish to be filmed in circumstances where he was assisting in a transaction which involved contraband cigarettes. The petrol was in a 5 litre tin. It was put in the boot. It was not added to the tank.

Mr Patsalis was present when the knives were purchased from K-Mart. He insisted that they were purchased by Mr Spathis. He was sufficiently concerned to enquire of Mr Spathis as to his purpose. He was told that they were required for Mr Spathis' business at the hotel. That explanation satisfied him.

Mr Spathis denied having purchased the knives. He waited in the car park at K-Mart whilst Mr Patsalis made the purchases. When Mr Patsalis returned to the car, he was carrying a shopping bag. Mr Spathis asserted that he was not aware of the contents of the shopping bag, namely the knives, before the stabbing.

Mr Patsalis therefore knew of each purchase; the two pairs of gloves, the tarpaulin, the petrol and the knives. He said he had no appreciation of the purpose of these items, and specifically their connection with the crime which was about to occur. The jury verdict may be taken as a rejection of that assertion, at least in respect of the knives. The jury was directed that it was an essential circumstance in the Crown case that each accused should have known of the knives, or at least one knife, and should have been aware of the possibility (amounting to a substantial risk) that his co-accused may use the knife to rob Mr Ludwig or cause him serious harm.

The Crown attached considerable significance to the purchases made that afternoon. The purchase of two knives and two pairs of gloves pointed to a joint criminal enterprise between Mr Patsalis and Mr Spathis, in its submission.

The goods purchased, moreover, defined the nature and scope of the enterprise according to the Crown. They were the tools for the night's work. The knives were to attack Mr Ludwig. The gloves were to avoid fingerprints. The petrol was to burn the body and the truck. The tarpaulin was ultimately used that evening to protect Mr Spathis' car. Mr Patsalis' trousers were soaked in blood. The tarpaulin prevented the transfer of that blood to the car seat. It is possible that the tarpaulin may have been intended to wrap Mr Ludwig's body.

I am satisfied that Mr Patsalis had these purposes in mind, and that there was, in his case, premeditation of murder.

Mr Spathis is in a slightly different position. On his own account, he was aware of the tarpaulin, and the petrol. I accept that Mr Spathis was not present when the knives were purchased from K-Mart. However, by the jury verdict, he must be taken to have been aware of at least one knife, and the purpose of that knife, namely, to rob or cause serious harm to Mr Ludwig. It was urged on behalf of Mr Spathis that I should not find (beyond reasonable doubt) premeditation of murder. If one confined oneself to matters which Mr Spathis acknowledges he knew, or which he can be taken to have known, by reason of the verdict, that may be so. However, in drawing the appropriate inference, I do not believe that the available material is so limited. Mr Patsalis gave the following account to the police of an episode at the Marrickville RSL. It provides insight into the role of Mr Spathis on this evening. Mr Spathis, having parked his car at Marrickville, then joined Mr Ludwig and Mr Patsalis at the truck. According to Mr Patsalis, there was an argument about who should drive the truck. Mr Patsalis, in his interview to the police the day after the murder, described what happened in these words: 'Then what occurs was - and they had a bit of a dispute about this - was who should drive the truck. Alex wanted to drive the truck, Peter wanted to drive the truck. Alex said to him, 'Listen, I want to make sure that we're not being followed.' And he goes to him, 'Crikey, he takes a lot of precautions', something along those lines. He goes, 'I'm, the one who should be worried.' Alex said to him, 'Well, listen, I know the way and it's better for me to drive because that way I don't have to tell you to turn right and turn left at the last moment and you miss a turn,' and so he convinced Peter to allow him to drive. And Peter made a big fuss over that if Alex was to have an accident that Alex would pay for the damage.' Mr Spathis denied that account. However, I have no doubt that it occurred. Mr Ludwig had hired the vehicle from Thrifty Rent-A-Car. The Hiring Agreement included a clause (Exhibit W), which stated 'No other driver permitted'.

Mr Patsalis' account is consistent with the Hiring Agreement, and the picture of Mr Ludwig which emerged from the evidence. I infer that it was important to the arrangements between Mr Patsalis and Mr Spathis that evening that Mr Spathis should drive the truck.

Counsel submitted that each of these matters was consistent with the possibility that the common purpose was robbery (with possible wounding), rather than murder. The petrol may have been purchased to burn the truck. Mr Ludwig, when stripped of his money, could hardly complain to the police. He had chosen to embark upon what he knew was an illegal enterprise.

However, I am not persuaded. I accept in the case of Mr Spathis, as I did in the case of Mr Patsalis, that there was premeditation of murder. I do accept, nonetheless, that Mr Patsalis was the dominant party in the enterprise. It was Mr Patsalis who planned the crime. It was Mr Patsalis who seduced Mr Ludwig into believing that there were cigarettes on offer. It was Mr Patsalis who made the purchases. Mr Patsalis persuaded Mr Spathis to assist him. Mr Spathis, weakly, agreed to do so.

Mr Patsalis before these events, was a compulsive gambler. His gambling lies at the heart of his involvement in this crime. He is described by Dr Lisa Brown, psychiatrist, as a pathological gambler."

4 In discussing a submission by Patsalis that he should be given a discount for assisting the police, the trial judge said: "There is no question in my mind that Mr Patsalis recognised that the crime, in its execution, had gone badly wrong. It appears that Mr Spathis may have panicked when at Terrey Hills, so that Mr Ludwig's body was left by the side of a suburban road, where it was then set alight. However it came about, Mr Patsalis appreciated that they had been seen. I accept the account of Mr Spathis, given to the police the day following the murder, where he attributed to Mr Patsalis these words, spoken as they were about to part company:

'He said, 'Don't say anything ever, you know, even if, even if, you know, you get caught, you know, if, if your name, 'cause they seen your car.' Either shortly before, or shortly after, saying these words, Mr Patsalis determined that he would go to the police. He went to the Hilton Hotel at 4.00 am the morning following the murder. He began to write out his story. He presented himself at the Bankstown Police Station shortly after 6.00 pm. His motive was entirely self interest. It had nothing to do with assisting the authorities to solve the crime. It was a pre-emptive strike against Mr Spathis. Nonetheless, Mr Patsalis provided the police with important information concerning Mr Spathis, and the crime. Because it served his purpose (in that he was less likely to slip up), he substantially related events as they occurred. However, he omitted entirely his role in these events. The information provided by Mr Patsalis could hardly be described as full and frank. It did, however, contribute to the success of the prosecution against Mr Spathis, and also, ironically, against Mr Patsalis himself. In blaming Mr Spathis, Mr Patsalis unwittingly incriminated himself."

The nature of Patsalis' submissions 5 Patsalis was not represented on the hearing of the appeal. His oral submissions were relatively brief. Most of his submissions were advanced in written documents which he had prepared with little assistance. They were supplied in five parts. Two were supplied before oral argument, one late on the first day of the appeal, and the others after the court had reserved judgment. The first consisted of 93 pages (principally attacking Mr MacGregor QC), to which were attached a further 36 pages (principally attacking Mr Amor-Smith). The second consisted of 10 pages (principally dealing with the failure of both counsel to secure a separate trial). The third consisted of 56 pages (principally dealing with attempts to tender further evidence on the appeal and with Mr Amor-Smith's alleged incompetence). The fourth (97 pages) repeated and developed various earlier submissions. The fifth (24 pages) dealt with sentence. The submissions annexed a substantial amount of evidentiary material and referred to a great deal more. Not surprisingly, the Crown felt obliged to respond to these bulky submissions at some length. Because they are repetitive and ill-organised, it is far from easy to reduce Patsalis' submissions to order, summarise them coherently and consider them in a concise way. Spathis' grounds of appeal 6 Patsalis adopted all the grounds of appeal advanced by Spathis. Those grounds are rejected for the reasons given by Carruthers AJ in relation to Spathis' appeal.

Incompetence of Patsalis' lawyers: background 7 Patsalis expressed the initial grounds of his appeal against conviction as follows. "In support of the notice of appeal which was previously lodged the appellant agitates the following grounds of appeal:

Procedure - Defence counsel fails to put case to Crown witnesses - form of the 'Browne v Dunn' direction (UK Browne v Dunn (1893) 6 R 67).

A. Evidence - Witnesses - Cross-examination - Need to cross-examine on case on which reliance to be placed - Rule in Browne v Dunn - Criminal Proceedings - Part of defence case not put - Application to criminal proceedings - Consequences of failure to observe rule - Inferences to be drawn - Caution in directing on.

B. Criminal Law - Evidence - Burden of proof - Defences - Need to cross-examine on case on which reliance to be placed - Rule in Browne v Dunn - Criminal proceedings - Part of defence case not put - Application to criminal proceedings - Consequences of failure to observe rule - Inferences to be drawn - Caution in directing on.

Criminal law - Conduct of legal practitioners - Incompetence of counsel - Relevant principals.

C. Criminal law - Miscarriage of justice - Improper admission of evidence.

D. Legal Practitioners - Barristers - Incompetence of counsel - Criminal trial - Whether ground for contending miscarriage of justice - Relevant principals."

8 Despite the way in which these grounds of appeal are expressed, the essential complaint was that the lawyers representing Patsalis had behaved with such incompetence as to cause him prejudice amounting to a miscarriage of justice. 9 The trial, which ran for a much longer period than it was originally contemplated that it would, proved to be a difficult one. There was scarcely any procedural issue on which the parties agreed, and on most of them each party had a separate position, usually not precisely coincident with that taken up by the trial judge. This led to repeated interruptions in the flow of evidence before the jury. There were difficulties caused by illnesses, late arrivals and absences on the part of jurors, counsel and Patsalis. But the greatest difficulties were created by Patsalis' dismissal of his two counsel and his solicitors. Patsalis was represented by Mr M MacGregor QC from at a time just before the commencement of the trial on Monday 28 June 1999 until Friday 23 July 1999, when Patsalis dismissed him. Patsalis was represented by Mr J Amor-Smith from Friday 30 July 1999, and Mr Amor-Smith announced his appearance on Monday 2 August 1999. On 2 September 1999 Patsalis dismissed him. Throughout the periods in which Patsalis had counsel, he was also represented by solicitors. They withdrew from the case on 27 July, but returned to it on the same day. The attack on them was much less specific than on counsel. Legal principles 10 Patsalis referred to the principles of law stated in relation to incompetent representation in R v Birks (1990) 19 NSWLR 677 at 679F, 685B-F, 689G and 703A. He referred to numerous cases relating to the rule in Browne v Dunn (1893) 6 R 67, particularly R v Foley (1998) 105 A Crim R 1 (Qld CA). In fact, despite the terms of the grounds of appeal set out above, his submissions did not centre on breach of the rule in Browne v Dunn; instead they selected particular passages from R v Foley which were said to advance other contentions. 11 The essence of the test to which Patsalis appealed in relation to his lawyers' alleged incompetence turns on whether there has been a miscarriage of justice, whether caused by the flagrant incompetence of counsel or otherwise. The most favourable authorities from Patsalis' point of view are those holding that a miscarriage of justice may be found if the court has a lurking doubt that an appellant has suffered some injustice because of incompetent advocacy. General nature of attack on Mr MacGregor 12 Patsalis' attacks on the competence of Mr MacGregor face several hurdles. 13 One group of hurdles consists of statements by the trial judge, counsel for other parties, and Patsalis himself. The trial judge told Patsalis, the day after Mr MacGregor had been dismissed, that "his conduct of the case on your behalf appeared to be completely professional". Perhaps less materially, both the Crown, expressly, and counsel for Spathis, implicitly, praised it immediately after Mr MacGregor was dismissed. Even Patsalis said that Mr MacGregor's "knowledge and application of the law was exceptional and beyond reproach", and that he followed instructions while the court was actually sitting. 14 Another hurdle is that in large measure Patsalis' criticisms rest on factual contentions which could only succeed if supported by evidence (for example, that Mr MacGregor failed to follow pre-trial instructions and failed to seek appropriate instructions). There is no evidence to support them. 15 Despite these hurdles, Patsalis made the following general complaints about Mr MacGregor. He lacked the time to prepare for the trial, and failed to read all the relevant material. He failed to understand the complex nature of the brief. He was not fully instructed, and failed to understand instructions given to him by Patsalis. On occasion (it is alleged without evidence) he approached the dock to obtain instructions in the presence of the jury, creating an undesirable spectacle in comparison with the position of Spathis "in the dock, at least, having been afforded the opportunity to fully brief counsel with instructions and having a case fully prepared". In consequence he relied "on advocacy skills in law to conceal a lack of knowledge and understanding" of the case and of the evidence. He failed to visit and investigate the sites visited by the appellants on 11 and 12 April 1996. He failed to have appropriate subpoenas issued. He failed to obtain "independent certificates of expert evidence". He failed to call independent witnesses to contradict the Crown case and Spathis' assertions. He failed successfully to object to the reception of inadmissible exhibits. 16 In consequence of these failures, it was alleged that he did not properly cross-examine the Crown witnesses. He asked questions which invited witnesses to answer by commenting on the truthfulness of other witnesses. 17 He did not seek judicial directions which would overcome the consequences of the above difficulties, and Patsalis himself lacked the legal knowledge to do so. 18 All these factors made the result unsafe, and unfairly influenced the jury on the all-important matter of Patsalis' credit. Patsalis' affidavit 19 Patsalis read an affidavit sworn by him on 25 July 2001. The Crown then objected to many parts of it. Patsalis then indicated he wished to withdraw the affidavit, a course to which the Crown did not object. 20 As has already been indicated, Patsalis made many specific factual allegations against his lawyers. For example, Patsalis submitted that by 2 July 1999 it was "clear that counsel had not read the majority of the material" and that at a conference between himself and Mr MacGregor on 1 July 1999 "counsel was familiarising himself with the ERISP material". The consequence of there being no affidavit before this Court from Patsalis is that there is no direct evidence of many factual allegations which Patsalis made against his lawyers, and they can be supported if at all, only by inferences from the transcript and the trial record generally. History 21 It is convenient to set out as a matter of background the history of the trial with particular reference to matters to which Patsalis pointed on the appeal as supporting his argument that there was a miscarriage of justice because of his lawyers' incompetence. 22 The trial commenced on Monday 28 June 1999. Mr MacGregor QC, an extremely experienced criminal counsel of nearly forty years' standing, announced his appearance for Patsalis. He said: "There are some problems in relation to my retainer. I would need to announce my appearance pro bono at the moment until certain events may happen during the course of the day. The reasons for that are set out in [a letter of 8 June 1999 to the Legal Aid Commission]." The rest of the day was spent in discussing procedural questions, particularly those relating to an application which Mr MacGregor made for a separate trial. 23 On Tuesday 29 June 1999, the second day of the trial, Mr MacGregor indicated that most of the difficulties with the Legal Aid Commission had gone, and that he proposed to continue in the matter. The bulk of that day was spent in the trial judge hearing Mr MacGregor's application for a separate trial. Late that day Mr MacGregor requested a daily transcript free of charge. He said: "I foreshadow that unless the government of New South Wales, either through the office of the Director of Public prosecutions or the court system or otherwise affords to my client free of charge a day-to-day transcript of the trial then I will make an application for the trial for my client be permanently stayed, or stayed until such time as he has the benefit given to both the judge and the Crown to have a detailed daily record of the evidence, it being professionally incumbent upon me to take proper objection to assist your Honour to determine the case according to law, which is a duty because I do not have total recall or the facility to take a full note, nor do I have a junior, I will be seriously impeded and wholly unfairly impeded in the proper conduct of the defence if the playing field is so imbalanced that the State makes a copy of the transcript freely available to the prosecutor and denies it to an accused on Legal Aid."

24 On Wednesday 30 June 1999, the third day of the trial, the trial judge rejected Patsalis' application for separate trials. 25 On Thursday 1 July 1999 the court did not sit. 26 On Friday 2 July 1999, the fourth day of the trial, Mr MacGregor said at the outset: "I indicated to your Honour on the first day of the trial that I was appearing in the matter pro bono until such time as I would be adequately compensated for the trial. For the purpose of the pro bono aspect of the matter I spent some time reading as much of the material as I could and preparing submissions. I spent some five and a half hours of viewing video. The Legal Aid Commission pays for no conferences at the start and two conferences per week thereafter at $120 per conference.

In order for me to discharge my professional duty I set about having a full day's conference with my client yesterday. At that stage I believed that I might have to open to the jury some time this afternoon so I was concerned to sort out in my mind what had to be done in the time available, in the expectation that the matter would be called on today. When I was informed that it was not to be called on today it was clear that I would have to spend all weekend preparing for the trial on Monday. I don't make any point about that but it does impose enormous obligations upon us.

On Tuesday I had a conversation with Mr Power [counsel for the Crown], knowing he was anxious to open the case and I indicated that I would go through the material and indicate to him, if I was able, at about 3 o'clock yesterday afternoon any issues that arose.

I commenced a conference at about 9.20 or 9.30 in the morning with my client, who was under some considerable stress; I was in conference all afternoon until Mr Power rang me on my direct line and complained about breaches of undertakings."

27 Mr MacGregor then said, referring to what became Exhibit G, a statement written out by Patsalis before he went to the police on 12 April 1996 and which he handed over to them: "The other matter I have to investigate and I have not been able to investigate but had proposed to do so this morning if I were not occupied so unnecessarily, was to ascertain from my client precisely the circumstances of what warning he was given before the production of that document."

28 Mr MacGregor a little later said: "I've not had a chance to fully prepare my client's defence". The trial judge replied: "I must say I don't under-estimate for one moment the enormity of the task the defence and for that matter the prosecution has in being ready for this trial and I don't under-estimate in particular the problems that Mr MacGregor has relating to his retainer." Later on Mr MacGregor said: "I have given full advice to my solicitor and because English is not his native language there is a little bit of a problem there but it can be resolved." This was a reference to Mr Ho, a solicitor working in the firm of which Mr Coustas was a principal. 29 On Monday 5 July 1999, the fifth day of the trial, Mr MacGregor said he had now obtained instructions about Exhibit G. The indictment was read, the accused pleaded not guilty, and a jury was empanelled. A problem about the empanelling then arose, and the jury were discharged. Mr MacGregor and other counsel then debated various issues of evidentiary admissibility for the rest of the day. In that period Mr MacGregor showed considerable familiarity with the documents he was dealing with - certainly equal to that of the other counsel. 30 On Tuesday 6 July 1999, the sixth day of the trial, those debates continued. While Mr MacGregor was objecting to what became Exhibit G, the following exchange took place with the trial judge: "HIS HONOUR: But if it transpires that the evidence is that Mr Patsalis simply turned up at the Bankstown police station and said to the constable on the desk; I have just witnessed a murder; I have prepared a document in this book which I now hand you, which gives some background to the story, I would like to tell the police about it, and hands it over, then how can there be any suggestion in that circumstance of any impropriety?

MAGREGOR: With respect, that is not really the question. I think the question is this, is it not; we don't know what arose before the document was handed over. If Mr Patsalis, for instance, had said - and I have no instructions to this effect - but if there was sufficient communication between a person who came in off the street to say: I know you are investigating the setting fire to the body in Frenchs Forest last night, I was there when the fellow was stabbed, and I was there when the body was set fire to, then clearly there is information in the hands of the police arising from that statement which gives rise to the necessity to warn the person against self incrimination." The indictment was then read again, the accused pleaded not guilty again, and a second jury was empanelled. They were told they could go and need not return until Monday 12 July 1999. The rest of the day was spent on taking evidence on the voir dire from a police officer in relation to Exhibit G. 31 Wednesday 7 July 1999, the seventh day of the trial, commenced with the following statement by Mr MacGregor: "I have got a couple of housekeeping matters. My instructing solicitors are in the course of preparing subpoenas to be directed to the police officers Bowditch, Cook, Young and Jubelin for the production of their notebooks and duty books and contemporaneous records relating to their attendance on 12 April 1996; and subpoenas for the attendance to give evidence on the voir dire of Detectives Cook, Bowditch and Jubelin."

32 On Monday 12 July 1999, the eighth day, Mr MacGregor, on instructions, asked that a particular juror be discharged. After that matter was dealt with, the jury was addressed by the judge and all counsel. The taking of police evidence on the voir dire then resumed. 33 That process was continued on the ninth day, Tuesday 13 July 1999. In the course of Mr MacGregor's cross-examination of Detective Hull, he expressed a desire to see a certain police record. The trial judge said: "I think to some degree, though perhaps not completely, in fairness, the issues were predictable and perhaps ought to have been predicted and covered by subpoenas in advance so that one wouldn't have forever a postponing of the actual time at which one finally concludes the evidence." Mr MacGregor responded: "Indeed. My response to that, may say two things, first, I indicated to your Honour the extraordinarily difficult position I, as counsel, are placed, particularly as senior counsel undertaking responsibility of a murder trial and the circumstances in which that arose, and particularly the reticence of the police to provide this information fully and immediately." The Crown undertook to make inquiries with a view to having the records brought to court. The first witness to give evidence before the jury was then called. Mr MacGregor cross-examined that witness, Mr Jefferis, without apparent difficulty. He was followed into the witness box by Mrs Jefferis. Mr MacGregor began to cross-examine her. 34 On Wednesday 14 July 1999, the tenth day, the Crown announced that the documents sought by Mr MacGregor had been produced. Mr MacGregor and the Crown then put submissions on the voir dire. The trial judge said, in relation to the notice requirements in relation to material in the records of interview which might be tendency evidence: "I assume that the statement and the ERISP indeed formed part of that committal, that it was served in the usual way after the committal, that the accused and those representing him have been on notice of this material, so that the only issue is that there has apparently been, by oversight, no formal communication that reliance would be had upon this provision of the Evidence Act in so far as the material fell within it." The transcript then records: "MACGREGOR: Well to the extent that your Honour may be thought to have been critical of the conduct of the defence for not issuing subpoenas, the absence of notice is directly relevant to that question. Now I don't suggest for one moment that your Honour's criticism - conduct of the defence is really relevant and I don't apprehend that your Honour's criticism was a severe censure.

MAGREGOR: But your Honour can see what I'm suggesting.

MAGREGOR: If there was no notice we could not be criticised for not dealing with the matter in advance until such time as we had notice that it was sought to be raised." The case soon after resumed in the presence of the jury. Mr MacGregor completed his cross-examination of Mrs Jefferis. He and counsel for Spathis cross-examined the next witness, Mr Groves, briefly. Neither cross-examined the following witness, Mrs Groves. She was followed by her son, Mr A D A Groves, whom Mr MacGregor cross-examined briefly. Detective Hill gave evidence in chief. Mr Jackson gave evidence without being cross-examined by either defence counsel. 35 On Thursday 15 July 1999, the eleventh day, various short witnesses gave evidence, some being cross-examined by Mr MacGregor. Patsalis' record of interview was then played. 36 On Friday 16 July 1999, the twelfth day, this process continued. A video of Patsalis and Detective Hull visiting various locations on 13 April 1996 was then played. Certain documents were tendered. Mr MacGregor cross-examined Detective Hull about his movements with Patsalis on 12 and 13 April 1996. Mr MacGregor showed no difficulty in questioning him, and no lack of familiarity with the areas he questioned him about. Counsel for Spathis then cross-examined Detective Hull. Detective Kelly began his evidence in chief. 37 On Monday 19 July 1999, the thirteenth day, Detective Kelly continued his evidence in chief. Mr MacGregor cross-examined him about Patsalis' arrival at the police station on the evening of 12 April 1996. Detective McGillicuddy then gave evidence in chief about events at the police station on 12 April 1996. Mr MacGregor cross-examined him briefly. Detective Sergeant Jacob then gave evidence in chief about his observations of the victim and materials found on and near the victim, and about the arrest of Spathis. Spathis' record of interview was played. 38 On Tuesday 20 July 1999, the fourteenth day, Mr MacGregor was absent at the outset for a medical reason. In his absence, the playing of Spathis' record of interview continued to its conclusion. On Mr MacGregor's arrival, Detective Sergeant Jacob continued his evidence in chief. Mr MacGregor then cross-examined him at some length, in part on relevant locations, with which Mr MacGregor showed familiarity. Counsel for Spathis then cross-examined Detective Sergeant Jacob, and he was re-examined. Some short witnesses followed: Detective Hull, Ms Penny and Mr Greentree. The last two were cross-examined briefly by both defence counsel. Detective Fitzgibbins then commenced his evidence in chief. 39 On Wednesday 21 July 1999, the fifteenth day, Mr MacGregor cross-examined Detective Fitzgibbins. In part this dealt with relevant locations, and showed Mr MacGregor's familiarity with them. The same is true of his cross-examination of the next witnesses, Detective Locke, Detective Young, Ms Hamilton, Detective Langford and Detective Kehoe. The day concluded with evidence in chief from Detective Gibbs. In the course of that day the following exchange, on which Patsalis now relies, took place: "MACGREGOR: My learned friend tendered some tracksuit trousers. At the time I was conscious of some material in my client's record of interview but, as I understand it, there is no evidence linking the tracksuit trousers found at Mr Spathis' home with the tracksuit trousers referred to in my client's record of interview and indeed, as I understand it, I have just been informed that in Mr Spathis' record of interview he says he disposed of those tracksuit trousers aliunde.

HIS HONOUR: I must say I was somewhat puzzled by the evidence for a number of reasons. (1) Mr Spathis says in relation to the trousers he was wearing he put them in the bin at work. In relation to Mr Patsalis, the jeans went into the truck, and in relation to the substitute trousers, they were said to be put in a bin at Earlwood, so that these blue trousers may have nothing to do with anything, where they lead I'm not quite sure.

MAGREGOR: They don't constitute in my submission evidence against my client. It took my client to point that out to me and he's entirely right. I didn't have the grasp of the evidence that your Honour had but under s 161, contrary to my client's interests, but I do object to the tender against my client and I understand my friend is prepared to withdraw it."

40 On Thursday 22 July 1999, the sixteenth day, the jury was not present for some time while a voir dire was conducted and counsel addressed. When the jury returned Constable Wood gave evidence about his investigation of the burnt vehicle; Mr MacGregor cross-examined him. Mr Gould, who extinguished the fire on 12 April 1996, then gave evidence. The jury then left. On their return, they heard evidence from Ms Taylor, Mr Youlten, Mr Zografos and Detective Kendall. A voir dire examination of Mr Clugston then commenced. After Mr MacGregor's cross-examination of Mr Clugston on that voir dire, Mr MacGregor said: "That is the point I wanted to make your Honour, and I needed the assistance of my client to do it". 41 On Friday 23 July 1999, the seventeenth day of the trial, the following events happened. Mr MacGregor announced at the outset that his instructions had been withdrawn. He sought and obtained leave to withdraw. Patsalis had not withdrawn his instructions from his solicitors. At this stage the trial judge had been told that the Crown case was within one week of finishing. Patsalis said: "I am going to have to weigh all my options up. It was a decision that I have been thinking about for two weeks since the beginning of this trial and I made the decision late last night." Patsalis then expressed a desire to explain his position by reading from a prepared statement, but the trial judge said it was better to wait until the following Tuesday after he had taken legal advice. 42 On Tuesday 27 July 1999, the eighteenth day, Mr Coustas, who was a principal of the firm of solicitors retained by Patsalis, said that new counsel could be obtained for the following Monday. He then said: "However, in discussing the matter with my client, my client is of the opinion that would not be appropriate to his case, that it would be insufficient time for a person to be made fully aware of the full - all of the matters contained in the brief, and on that basis he believes he will be in no better position than the situation he was in with his former counsel." Mr Coustas said that he had been invited by Patsalis to conduct the defence, but said he felt he had neither the ability nor the time to do so and had only accepted instructions on the basis that counsel would be briefed. The trial judge gave him leave to withdraw. Patsalis then began reading notes to the Court. He said he would undertake his own defence. He referred to the retaining of fresh counsel and said: "But that would place me in the same predicament I was in previously, that being, counsel not being prepared in relation to the facts of the matter. For every statement contained within the brief, no matter what its substance is, is important to varying degrees in relation to the proceedings in my case. If I was to obtain new counsel then I believe I would be worse off. Therefore, having taken into consideration what his Honour told me on Friday, I have no other option but to undertake my defence." After Patsalis raised various issues about the future progress of the matter, the trial judge urged him to seek fresh counsel, and said picking up the brief would not be a substantial burden for experienced counsel. Patsalis said: "I, I'd like to elaborate on what your Honour has said to me because I think it's very important that you do realise that, and I do not wish to degrade anyone in this matter, your Honour stated earlier than an experienced counsel should be able to pick up a brief such as this being two folders, as your Honour stated, and see the relevance in relation to the statements that are contained in there. Now it amazed me, this is my perception, that how quickly you picked up the material yourself. That means your reading the brief.

In my view, and you may have become aware or may not, I'm sitting here in the dock and I'm passing instructions to my counsel to explain issues in relation to witnesses. I would spend - I would leave the court and I would go home and I would write instructions in relation to the witnesses that would arrive the next day and pass them on to my counsel. Now obviously there was - it's very hard for me to understand." After the trial judge, Crown counsel and counsel for Spathis stated the desirability in Patsalis' interests of being represented by counsel, a short adjournment was granted. Mr Coustas then sought leave to represent Patsalis again, said he expected counsel to be ready by Friday, and asked for an adjournment until Monday 2 August 1999. The trial judge granted that application. 43 On Monday 2 August 1999, the nineteenth day, Mr Amor-Smith, a junior counsel of fourteen years' standing, announced his appearance for Patsalis. He applied for the matter to be adjourned for a week, or alternatively two or three days, to enable him to prepare the case. The trial judge granted an adjournment for the balance of that day only. While making that adjournment application Mr Amor-Smith said: "At about approximately 4.30 last Friday afternoon I received formal instructions to appear in this matter for Mr Patsalis. I had a lengthy conference from 4.30 until about 9pm. The next morning I received certain papers. I have read certain papers.

The totality of the brief in mass is about 60 centimetres or about 2 feet. I have read very little of that. I have been supplied with three video recordings which I haven't seen. As I understand it they relate to records of interview and a cook's tour of the locus in quo. There are transcripts of various days which I have seen in a bundle but haven't read." The trial judge said: "The jury was not summoned until certain preliminary issues were dealt with. They occupied substantially the first two weeks of the time allocated for the trial. Having been disposed of it was everyone's hope that the thing would run more or less continuously, and it substantially has. There have been the usual interruptions, but by and large it has proceeded relatively smoothly until this particular problem arose. Since then of course the jury on Friday week ago was sent away until Wednesday and was thereafter notified on the Wednesday not to return until today. It was certainly my hope and intention that the matter would proceed today, though I had had signalled to me that because of the particular dilemma of another counsel who preceded you it may be necessary to put the matter over until tomorrow.

I have to say that beyond that, especially having regard to the fact that there has been a weekend intervening, and I would hope and have expected that some substantial part of that may have been devoted to reading the material, that the matter would proceed, if not today then certainly tomorrow. I sympathise with the problem, but a lot of the material, as I say, has been dealt with by way of preliminary issue and has been disposed of so that what remains I don't think is within a very broad compass. It is certainly within two lever arch folders so far as the Crown brief is concerned, and even that as I understand it has been pared down quite considerably through jettisoning certain witnesses no longer thought to be essential. What remains is therefore simply the proving of the various circumstances which themselves necessitate a variety of particular witnesses but nothing, one would imagine, that would take a great deal of time to master or to deal with." The trial judge then said that the Crown would initially be calling witnesses relating specifically to Spathis, not Patsalis. Crown counsel said those Spathis witnesses would take one to one and a half days. After the adjournment application was disposed of, there were some further procedural debates. 44 On Tuesday 3 August 1999, the twentieth day, the evidence of Mr Lajkowski and Mr Eldridge, which was said to be tendered only against Spathis, was taken. The following testimony against both accused was then received: that of Mr Ghobrial, Constable Wells, Mr Gentles and Mr Najjar. There was then debate about the admissibility of parts of the anticipated testimony of Mr Stratikopoulos, on which the trial judge ruled. Mr Stratikopoulos then gave his evidence. Spathis' wife (Elizabeth Spathis, nee Figueira) then gave evidence. 45 On Wednesday 4 August 1999, the twenty-first day, proceedings opened with a debate about an inspection of a truck similar to that used on the night of the crime and a debate about whether an order under s 38 of the Evidence Act 1995 should be made in relation to Mrs Spathis. The trial judge refused the latter application. The inspection then took place. Mr Millard, who hired the truck to the victim, then gave evidence. Mrs Spathis' evidence then resumed. It was interrupted, pending a further s 38 application, by the evidence of Mr Harrison and Mr Clugston. 46 On Thursday 5 August 1999, the twenty-second day, there was a debate on the further s 38 application. In the course of that debate the Crown relied on certain inconsistencies to which Mr Amor-Smith had drawn attention in his cross-examination of Mrs Spathis. The Crown said: "while certain matters were put to Mrs Spathis yesterday afternoon by Mr Amor-Smith - and of course he did ask her to read through those sections of the statement which I was addressing your Honour about yesterday when this argument was dealt with in the morning - there was no specific detailed cross-examination about those inconsistencies and it might well be that my learned friend chose to take that course for a deliberate reason. …

It might well be that my learned friend Mr Amor-Smith chose to adopt that course for a deliberate reason, which as I say he is entitled to adopt. But it would be the Crown's submission that the Crown could take it further." The transcript thereafter records the following: "HIS HONOUR: I must say I was not sure having re-read the cross-examination of Mr Amor-Smith whether it was proposed to suggest, for instance, in the final address that by reason of the differences between the statement as originally given and the evidence as given that Mrs Spathis was not to be believed or was in some way motivated by some desire to assist her husband. If that was the purpose then that wasn't put.

CROWN PROSECUTOR: Yes, your Honour, and my view would be that the Crown might well want to put that, as you can well appreciate, and he is somewhat restrained because it wasn't put to suggest, as I certainly am entitled to, that she has embellished her evidence in some way, she has added to it considerably and that in actual fact - and I will be entitled to put this - it is not in accordance with what she originally recalled, that she has added to it to help her husband. I don't have a foundation for putting that in the sense it hasn't been put to the witness. Technically I think I am precluded from doing that. I suppose I could qualify that by saying there is a more liberal interpretation taken by Browne v Dunn than possibly was traditionally thought and certainly it is not always felt that specific things have to be put to a witness.

CROWN PROSECUTOR: Yes, and it could be open to suggest that commonsense would lead one to suggest she could be a biased witness being married to the accused. I do not think that would necessarily have to be put, it would be open to the jury to infer that.

HIS HONOUR: Perhaps I should enquire of Mr Amor-Smith, is it proposed or was it proposed to ultimately make a submission along those lines?

AMOR-SMITH: No, I was more concerned to let the jury see the comparison of the two versions of what could be called the truth. For logistical reasons I was mindful of the calibre and the age group of the jury, the differences --

HIS HONOUR: I am not really asking to you justify it, I am simply asking you to understand, you are not proposing as I rather gather the Crown is proposing that to put to the jury that the version given to this court on oath by Mrs Spathis should not be believed because she is motivated by a desire to assist her husband?

AMOR-SMITH: In my submission that could be an argument that I will advance.

AMOR-SMITH: I am going to reserve my position." Somewhat later the trial judge referred to Mr Amor-Smith's having "reserved his position - whether he is entitled to do so or not is another matter … ." Yet later the transcript records the following: "HIS HONOUR: … Another aspect that concerns me is this, if Mr Amor-Smith does seek to reserve his position in respect of putting to Mrs Spathis that she is giving untruthful evidence or to put it at its lowest she is colouring her account in order to assist her husband then it seems to me that should have been put and put directly.

CAMPBELL: In my respectful submission it is akin to a cross-examiner in a sexual assault trial failing to put to a complainant, 'I suggest to you that your motivation of your evidence because of some ill will towards the accused by reason of an unhappy family lawsuit' if you don't put it you can't make the submission. You have got to do it when the witness is there.

HIS HONOUR: I think the position is as you stated, it has to be put if it is going to be ultimately submitted. I therefore am concerned that Mr Amor-Smith if he wishes to put that this would necessitate leave and no doubt you would say something about it, but he should seek leave to put that question.

CAMPBELL: It also has forensic consequences. He has made a forensic choice at this point because he knows that if he does make an assertion of that kind and s 108 is invoked or may be invoked.

CAMPBELL: And he may have taken the view, I don't know, I haven't spoken to him, he may have taken the view that he does not wish to run the gauntlet, as it were, of additional evidence being led to re-establish the credibility of the witness. For example, if I could use just a very simple example, it may be if someone does that I could [lead] evidence from another person to whom she spoke very shortly after the so called representation because s 108 and 66 seem to permit that. It is no easy matter and he for no doubt good reason chose not to introduce the question of motive or bias or recent invention or fabrication or anything of that description." The trial judge granted the s 38 application on three issues. After Mrs Spathis' evidence concluded, evidence was called from Miss Hall, Mr Walburn, Miss Croxson, Mr Rohlfs, Mr Weigner, Mr Heyn, Detective Fam and Detective Sergeant Olen. 47 On Friday 6 August 1999, the twenty-third day, little useful was achieved since one juror was absent through illness. The same is true of Monday 9 August 1999, the twenty-fourth day, because two further jurors were ill. The matter was adjourned to 11 August 1999. On Wednesday 11 August 1999, the twenty-fifth day, after some debate in the absence of the jury, one juror was discharged. Mrs Hamilton was recalled. Evidence was taken from Miss Rodwell, Mr John Spathis, Mr Walter, Mr Ashworth and Detective Senior Constable Gibbs. 48 On Thursday 12 August 1999, the twenty-sixth day, the trial judge said that the jury had requested a copy of the transcript of Mr John Spathis' evidence and of the original of a letter from the victim held by Mr Rohlfs. The former request was acceded to and the second deferred. Evidence was then taken from Detective Senior Constable Gibbs, Mr Manovski, Detective Senior Sergeant Forbes, Mr Haniotis, Mr Anastasios Spathis (Spathis' father), Mr Grisdale, Senior Sergent Mesker, Mr Wilson and Mrs Moffatt. 49 On Friday 13 August 1999, the twenty-seventh day, Dr Lawrence gave evidence. A statement of Mr Redfearn, and his evidence at the committal hearing, were read. Procedural questions were discussed. 50 On Monday 16 August 1999, the twenty-eighth day, one juror was absent through illness. Patsalis personally presented submissions in support of an application, which he advised Mr Amor-Smith that morning he desired to have made, to conduct a voir dire in relation to Exhibit G and motor vehicle POZ 344. Patsalis was given leave to give sworn evidence in support of that application. The trial judge declined to alter his ruling on Exhibit G, and ordered Mr and Mrs Jefferis to be recalled to be further cross-examined on behalf of Patsalis in relation to POZ 344. 51 On Tuesday 17 August 1999, the twenty-ninth day, the Crown announced that Mr Amor-Smith had informed him that Patsalis did not now require the recall of Mr and Mrs Jefferis. The Crown case was closed. Patsalis began his evidence in chief. 52 On Wednesday 18 August 1999, the thirtieth day, Mr Amor-Smith announced that though Patsalis had suffered severe chest pains overnight he wished to proceed. Patsalis continued his evidence in chief. Near the end of it he gave the following evidence: "Q. In relation to the record of interview that was conducted via the video system, have you had time to reflect on that record of interview?

A. I have had three, three years and a bit to reflect on that.

Q. Is there anything in that record of interview which you now wish to amend?

A. There was a lot of mistakes which I did make, but - a lot.

A. Not without having my transcript in front of me, you know.

Q.. Are there some highlights that you can identify?

A. The major point would have to be - because of my, as I said, because of my state of mind at that time I made a lot of errors - the one major one that has always bothered me was when I mentioned that Alex Spathis was standing next to us in relation to when Peter was talking about precaution. Now that didn't occur, the first - if you look at page 39 of my record of interview and then you go back to when I talk about the precaution I make mention of us being in the truck at first when I actually start talking about the precaution which was correct, that was a correct version. The correct start of it. And later on on the following page I make mention that he was standing next to us and I even in my record of interview I recall that even said standing next to me - and I'm not saying this because that has - it's because of what I now know, I've always known it all along, it's just that at that time I could not express myself and even now I still feel I don't express myself as I should. Because - but back then it was much worse than what it is today. I was under great - I was suffering from shock and that was the reason for me drafting up these notes, because I wanted to say the whole truth in relation to this matter and that is why I even incorporated - I went back in time and mentioned my debts to Mr Spathis in - and how it all coincided. Now I wanted to be truthful in every aspect, my intentions, I knew that I had to - I had to - when I went to the police I had to tell them the whole truth in relation to all of the matters and all the matters included my debt to him and because that had bearing on how everything came into being, if I can use that term. And my state of mind at that time and that is why I tried all along throughout the following day and that was when I went to the Hilton Hotel and when I went and bought this notebook was so that I could put it all down in writing and not speak it.

Q. Was there another reason why you went to the Hilton Hotel, besides writing your notes?

A. Yes, because I didn't have a place to stay because there was no way I was going back to 1 Arthur Street, Homebush, because I didn't know if Mr Spathis was going to return or not or what was going to occur in relation to him because he had always made threats to me and now from my point of view I've just witnessed him kill somebody. I was the only witness to that killing. He did not know what I knew in relation to the precaution and that I was Peter's security. Now for me I could have - and I knew when I gave him - it goes back to the 6th of the 4th of 1996 when I gave Peter my licence details. I knew that I could not in any way, shape or form hurt him or do anything to him because he, if I can use the term, had something on me. And if anything was to happen to him it was all going to come back into my direction." The trial judge warned the jury that having Patsalis' evidence in chief, and knowing that Spathis' record of interview contradicted it, it was important for them to keep an open mind. 53 On Thursday 19 August 1999, the thirty-first day, Mr Amor-Smith informed the court that Patsalis was still suffering ill health. After the procedural consequences of that and other difficulties were discussed, the trial judge said: "HIS HONOUR: The question was not asked in terms: Is everything you said in the record of interview true? It is clear, the implication of the questions put, namely, the invitation to correct anything which was not accurate, so that Mr Patsalis' interview is now evidence, generally, available.

CAMPBELL: Subject to matters I will come to later. He has not expressed its veracity on oath.

HIS HONOUR: I don't know whether that was an oversight on the part of Mr Amor-Smith or whether that was quite deliberate.

AMOR-SMITH: I thought the video record of interview had gone into evidence some time ago.

HIS HONOUR: It has. You did not put to him, specifically, is everything you said to the police before you were interviewed and after you were interviewed true; is there anything you want to withdraw or modify?

AMOR-SMITH: As I understand it, I asked him questions referable to the record of interview, is there anything you wish to change? He said there were things there but he would have to look at his record of interview. I then said, any specific you wish to raise at this time? He then said, one issue referable to a particular matter. Otherwise, if we were to go through that procedure, it could take half day or so, and if that is required, I, certainly, will do it.

HIS HONOUR: What I had anticipated you would do is to put a question along the lines I have just put, is everything you said to the police both before your interview and during the course of your interview true? One would anticipate that he would say, yes. However, there were some inaccuracies that came into the interview of which these are the important ones. One he mentioned. If there are any other important ones, I would have thought that it was fairly important that he also mention them. I just want to be clear in my own mind as to how it is put, so that I can, ultimately, tell the jury whether or not this is evidence which is available, generally, in the case against both accused which, if it is incorporated, as I would understand the position it would be, if it is incorporated by reference that what I said then, I now say that everything I said was true, although I was inaccurate in this or that respect, it then becomes evidence, generally; is that not right?

AMOR-SMITH: Yes. That be the situation, I may have to seek your Honour's leave to adduce further evidence in relation to that area.

HIS HONOUR: It is your case. All I am seeking is clarification.

AMOR-SMITH: I made an assumption, perhaps I was wrong, that the record of interview had gone in.

HIS HONOUR: It has, but it is at the moment only in your client's case.

AMOR-SMITH: I would want to put further questions in that area. I seek instructions in the matter of inconsistencies and if there are, where they are.

HIS HONOUR: This is not an invitation to down tools to comb through the record of interview. I thought you would have been in a position to say at once, leaving aside minor slips of the tongue, but to say these matters on the evening for whatever reason I got wrong and now I want to correct. You have corrected one. If there are others, it seems to me it should be corrected." Mr Amor-Smith successfully applied to call further evidence in chief. Part of it was: "Q. Yesterday I was asking you some questions about your record of interview, do you recall that?

Q. As I understand it you subsequently received a hard copy of that record of interview, do you recall that?

Q. I show you a folder, would you open that black folder and what is contained within that black folder?

A. The record of interview that I gave on the 12th of the 4th 1996.

Q. Is everything that you said in that record of interview to the police before, during and after the record of interview true and correct?

A. Except for the mistakes that I mentioned yesterday that I had made.

Q. As I recall your evidence you said that there were some mistakes or some things that you would like to fix up in that record of interview, is that correct?

A. Well, I fixed up the mistake in relation to the precaution and how it was only told to me and not in the presence of Mr Spathis.

Q. Are there any other matters contained within that record of interview, the hard copy that you have got in front of you, which you now wish to amend, change and/or alter?

A. Not only that I can really think of at this time, no.

Q. So other than the matters that you amended and/or altered and/or changed yesterday everything that you say in that record of interview during, before and after the record of interview is true and correct, is that what you say?

A. To the best of my recollection, yes." The trial judge delivered a judgment permitting certain categories of cross-examination concerning Patsalis' character. The cross-examination of Patsalis began. 54 On Friday 20 August 1999, the thirty-second day, Patsalis' cross-examination by the Crown continued. The brief evidence of Patsalis' sister, Betty Patsalis, was then interposed. Mr Amor-Smith was then given leave to ask further questions in chief about Exhibit 8P. The Crown cross-examination then resumed. 55 On Monday 23 August 1999, the thirty-third day, Patsalis' cross-examination by the Crown concluded. His cross-examination by counsel for Spathis then commenced. 56 On Tuesday 24 August 1999, the thirty-fourth day, Patsalis' cross-examination by counsel for Spathis continued. 57 On Wednesday 25 August 1999, the thirty-fifth day, Patsalis' cross-examination by counsel for Spathis finished and re-examination started. 58 On Thursday 26 August 1999, the thirty-sixth day, Mr Amor-Smith applied for and obtained an order for a view of Bankstown Square. Mr Andrew Patsalis, Patsalis' brother, gave evidence. 59 On Friday 27 August 1999, the thirty-seventh day, Mr Amor-Smith applied unsuccessfully for an extended view. Debate about procedural issues and jury directions took place. 60 On Tuesday 31 August 1999, the thirty-eighth day, a juror was discharged and the view took place. 61 On Wednesday 1 September 1999, the thirty-ninth day, argument took place on an application made by Mr Amor-Smith on Patsalis' instructions that Exhibit AG (a jacket allegedly worn by Spathis during the crime and found in his house) should be excluded. The trial judge concluded that it should not be. Detective Sergeant Jacob gave some evidence about photographs. Patsalis was recalled to deal with a plan relating to access to Bankstown Shopping Mall in relation to which Spathis' legal advisers had made an error. The Crown then re-opened its case to recall Mr John Spathis to enable further cross-examination by Mr Amor-Smith to be conducted without objection from Spathis. The case for Patsalis was then closed. Debate then ensued in which the following was said: "CAMPBELL: "I take it at the end of the day your Honour will give the jury some kind of direction along the lines of Mr John Spathis was recalled because there was an oversight which was corrected. The normal principle is that somebody has an opportunity to contradict an assertion, a Browne v Dunn type principle. The jury asked for the transcript of his earlier evidence, they obviously were concerned about his evidence regarding it as of importance. We would see it as important that they understand the forensic reason why he was brought back when he was and the way in which he was and why other witnesses have not.

HIS HONOUR: As I say, at some point I am going to invite each of you to catalogue all the warnings and directions that you believe I ought to include somewhere or other. I will certainly make a note that that is one matter that you specifically have drawn to my attention.

CAMPBELL: It is not just the one that has been brought back, it is the ones that haven't as well in our submission." Counsel for Spathis then opened his case and Spathis began to give evidence in chief. 62 On Thursday 2 September 1999, the fourtieth day, while the Court waited for a late juror, the following debate took place: "HIS HONOUR: Mr Campbell, if I could just address something to you. Following your remark about Mr John Spathis, I was looking at the sort of Browne v Dunn type point, and the directions that are given in that context, and I haven't got beyond, I have to say, looking at the convenient summary which appears in criminal directions. There are a number of things for instance that it is perhaps surprising that questions were not asked of various witnesses, and that might apply to you as much as - not perhaps as much as, but some degree as it does to Mr Patsalis. And one could understand good forensic reasons for this, but nonetheless I'm looking at the viewpoint of the jury, Mr Amor-Smith chose not to open up the issue of the exclusion from The Three Swallows Hotel with his brother, nor threats against his brother. Nor did you. Now, who would ordinarily be expected to take that up? I can understand you not going into it when he does not.

HIS HONOUR: It is a tactical decision in some respects, and from the viewpoint of the jury, if I were to give a direction, it would have to be a fairly wishy-washy sort of summary; on the one hand this, on the one hand that, and it's a question for you, you know, and I am not sure that it is appropriate in that context at all, so that I think you will need to define very precisely in the areas where you say there has been some default. That is the first thing.

The second thing is I do think it is the fact that it has been said repeatedly by Mr Patsalis that there was a difficulty in his case, and it was evidence that there was the change of counsel, and in the nature of things Mr Amor-Smith had a large task in taking up what was then already a fair mass of paper, whatever I might have said at the time, and I do not resile from that. It was fundamentally two folders, but it is to get the flavour and the feel of a case, when you come into it partway through I think is not easy.

CAMPBELL: Of course in any case people do miss things." After other procedural debate, Spathis' examination in chief continued until the luncheon adjournment. On resumption, Mr Amor-Smith said: "AMOR-SMITH: As your Honour will recall and appreciate Mr Patsalis has substantially prepared his own case. He has now informed me that he has prepared his cross-examination of Mr Spathis and he has prepared his closing address for the jury. He has worked for the last six weeks preparing those two aspects, that is the cross-examination and the closing address.

He has now given formal instructions to my instructing solicitor my instructing solicitor's instructions are to be withdrawn at 3.30pm, 2 September 1999. On that basis my instructing solicitor has advised me that as their instructions are withdrawn my instructions will also be withdrawn.

The situation came about this way, the indication was that I would be at some stage cross-examining Mr Spathis. Mr Patsalis advised me last Tuesday, or was it Monday, that he was preparing a thousand page question and answer for me and that I was to contract with him rigorously to ask those questions and only those questions and I was not to divert from his thousand page question and answer transcript. I advised him that that would be an impossibility and I could not contract, nor could I give an undertaking that I would ask any or all of those questions.

I indicated to him that I have prepared my cross-examination which consists of approximately 98 points but I haven't got a question and answer format because my questions and answers would vary according to the questions and answers as the case proceeded. Mr Patsalis has considered that aspect and just prior, 1.55 this afternoon, the question was posed, 'Will you or will you not be cross-examining yourself?' It was agreed that Mr Patsalis would complete the rest of the case on his own initiative. On that basis at 3.30 this afternoon, subject to your Honour's leave, I propose to withdraw from the proceedings as do my instructing solicitors." Soon afterwards Spathis' evidence in chief concluded and the Crown's cross-examination began. 63 The course of proceedings thereafter can be summarised more briefly. On Monday 6 September 1999, the forty-first day, the Crown's cross-examination of Spathis finished. Patsalis' cross-examination of Spathis started. It continued on Tuesday 7 September 1999, Wednesday 8 September 1999, Thursday 9 September 1999 and Wednesday 15 September 1999. Re-examination of Spathis concluded on that day. The Crown address began and concluded on that day. On 16 September 1999 counsel for Spathis addressed the jury, and Patsalis addressed the jury. On 17 September 1999 Patsalis was unfit. On 20 September 1999 he finished his address. On 21, 22 and 23 September 1999 the trial judge summed up. On 23 September 1999 the jury retired. On 24 September 1999 they convicted each accused of murder.

Some general submissions of Patsalis 64 There are some general submissions advanced by Patsalis that should be considered first. 65 Patsalis submitted that he had been forced into direct participation in the trial because there was no junior and Mr Ho's English was inadequate, and because "counsel was impeded by not having a junior or solicitor competent enough to point out various inconsistencies". There is no evidence that Mr Ho's English was inadequate: Mr MacGregor described it only as creating "a little bit of a problem". Nor is there any evidence that Mr Ho was incompetent. It is true that Mr MacGregor had no junior, but no other counsel at the trial had a junior either, and innumerable serious criminal trials, including murder trials, are conducted by barristers who have no juniors. These factors do not support the view that there was any miscarriage of justice. 66 Patsalis submitted that if Mr MacGregor lacked time to prepare, he should have sought an adjournment. Despite the manner in which the trial judge was solicitous, almost to a fault, for the interests of the accused and in particular Patsalis, it is highly unlikely that that application would have been granted. In any event the delays in the first two weeks of the trial amounted in substance to an adjournment. 67 Patsalis drew attention to Mr MacGregor's statements on 2 July 1999 to the effect that he had not yet read the whole brief, that he had not yet received instructions about Exhibit G, and that he was under time pressure. He submitted that it followed that Mr MacGregor had behaved with flagrant incompetence. That submission is rejected. Mr MacGregor would only have behaved incompetently if he had not used all reasonable endeavours in the time available to master what materials he had. The evidence does not show that he had not mastered them. It does show that he had put significant effort into dealing with the particular tasks that had arisen in the first week. He objected to a significant quantity of Patsalis' record of interview. His argument on the first and second days in support of the application for separate trials was vigorous and impressive. He revealed familiarity with the contents of both records of interview. He had protested with appropriate force about various difficulties he was facing, such as transcript difficulties. To some extent those of his assertions from which Patsalis sought to infer unpreparedness can be read as the somewhat exaggerated claims of an advocate seeking to achieve a particular forensic purpose. The jury was not empanelled, the indictment was not presented, and the accused did not plead until Monday 5 July 1999. That empanelling miscarried. The indictment was not presented a second time, the accused did not plead and the jury which heard the trial was not empanelled until Tuesday 6 July 1999. Various voir dires and other procedural activities took place in the absence of the jury until 12 July 1999, the eighth day: not until then did the Crown and counsel for the accused open. The first witness before the jury was not called until 13 July 1999, the ninth day. 68 The point is that even if Mr MacGregor felt he was less than fully prepared on 2 July, the rather stuttering progress of events over the succeeding days gave him ample opportunities to become more fully prepared in the next ten days, and in particular before any evidence was called before the jury. 69 A particular submission about Mr MacGregor's conduct on 2 July 1999 related to the warnings given before the production of Exhibit G. Patsalis submitted that if Mr MacGregor had read the brief, he would have seen the statements of Detective McGillicuddy, Constable Kelly and Constable Agnew, which described the warnings. That misses Mr MacGregor's point which was that he wanted to "ascertain from my client precisely the circumstances of what warnings he was given" - not from the police officers. In any event by Monday 5 July 1999 Mr MacGregor had examined the police statements. 70 Patsalis submitted that the observation by Mr MacGregor on Tuesday 6 July 1999 "I have no instructions to this effect" showed that Mr MacGregor's promise on 2 July 1999 to obtain instructions about Exhibit G had not yet been fulfilled. Patsalis submitted that this conduct "is not professional, nor is it honest or in the interests of" his case. However, the submission rests on a misunderstanding of what Mr MacGregor was doing. He was engaged in a hypothetical debate with the trial judge. He was not saying that he had not sought instructions; merely that his instructions did not correspond with the hypothetical example he gave. 71 Mr MacGregor was criticised for relying on a Crown assurance that the police documents he wanted in connection with Exhibit G were being produced, because it was naïve to expect police officers in trouble to produce evidence adverse to them. If this unjustified attack on the officers were sound, of course, they could have made a selective response to any subpoena as well. Mr MacGregor was not incompetent in relying on Crown counsel. Defence tactics: general 72 In relation to what Patsalis called "subpoenas, certificates of expert evidence and the summonsing of independent parties", he submitted: "The absence of notice relating to the production of certificates of expert evidence, and the summonsing of independent parties left various critical matters unresolved, unchallenged and open to speculation. Such critical matters, it is respectfully submitted, gave an unfair advantage to a party who lies by and belatedly produces a version tailored to meet the evidence.

Whilst various subpoenas were issued during the course of the trial, they were filed incorrectly, or very late, or the wrong information was recorded and therefore, when the subpoenas were answered the material was useless. With respect the subpoenas only begin to be filed due to the continued insistence of the appellant, or by the direct participation of the appellant whilst the trial was in progress.

The issues that required investigation were highly predictable and therefore it is respectfully submitted, ought to have been anticipated. The absence of notice is directly relevant." So far as this rests on allegations of fact, they are unsupported either by any affidavit or by the transcript. 73 It is now necessary to go to specific instances advanced by Patsalis.

Subpoenas Subpoenas to Spathis 74 Patsalis submitted that Spathis should have been served with a subpoena for "All work, home and mobile telephone records for the period" 1 January-12 April 1996 in order to demonstrate supposed errors in Spathis' distancing of himself in his record of interview from the cigarette transaction with the victim, and to achieve other goals of supposed value to Patsalis. For example, Patsalis said that if the records showed a closer association between the victim and Spathis, the jury would infer how clever Spathis was in keeping himself at a distance while leaving Patsalis to do the preparatory work. "It could then be inferred that such a terrible crime was in the mind of only one person. It is consistent with the innocence of one of the men in terms of their joint agreement or joint participation or joint knowledge." 75 The first problem with this submission is that Spathis would have been highly likely to rely on his privilege against self-incrimination. The second is that Patsalis has not demonstrated that the materials which he submitted Spathis (or Telstra, if a subpoena were directed to it) would produce would in fact be useful. It is wholly speculative whether anything of value would have turned up. Subpoenas to Mr John Spathis 76 Patsalis submitted that subpoenas should have been served on Spathis' uncle, Mr John Spathis. The documents sought were telephone records from 1 January-12 April 1996, as well as those permitting an "independent investigation" into Mr John Spathis' business activities relating to his dealings with his cigarette purchases and sales". Patsalis submitted: "The material could provide a logical nexus between the ERISP and evidence of the appellant with the precautionary letter (Exhibit AX), with the note found in Mr Ludwig's home (Exhibit 8P), with the statements of Mr Redfern and with the statements of Mr Grisdale.

It is respectfully submitted, that it is naïve, or it would be naïve simply to accept Mr John Spathis' statement and evidence at face value. The existence of Mr Redfern and Mr Grisdale's statements, and the Exhibits AX and 8P were critical matters in the defence case." In Exhibit AX the victim said, in a note only to be opened after 11pm on 11 April 1996, that Spathis' uncle was supposedly involved in the cigarette business. Exhibit AP is a typed list of notes made by the victim. The reference to Mr John Spathis' statement and evidence is a reference to his denials that he knew Patsalis, to his statement that Spathis had never approached him with a proposal to buy or sell cigarettes, and to his statements that he never bought illegal cigarettes. In cross-examination Mr Amor-Smith put to Mr John Spathis, who ran a supermarket which sold cigarettes, that he, Spathis and Patsalis had a conversation in October 1995 at the Three Swallows Hotel in which Patsalis discussed acquiring soft drinks from Mr John Spathis for a charity night being run by Patsalis' sister at the Bankstown Greek Orthodox Church. Mr John Spathis denied this. Mr Amor-Smith also put to John Spathis that he had seen Patsalis on at least fifteen occasions at the Three Swallows Hotel. Mr John Spathis denied this too. Mr Amor-Smith further put to Mr John Spathis that he and Patsalis had a conversation in late March or early April 1996 about supplying cigarettes to the victim with the involvement of Spathis; and that he and Spathis were to sell cigarettes to the victim through Patsalis as middleman for a commission of $3,500. Mr John Spathis denied this. He also denied any knowledge of the victim. Patsalis submitted that the documents he claimed should have been subpoenaed "may have been able to reveal" that both Mr John Spathis and Spathis were lying and that Patsalis' account of the transaction was correct. 77 There is no evidence that Patsalis ever gave Mr MacGregor or his instructing solicitors during the time when Mr MacGregor was briefed instructions along the lines of the propositions underlying the questions put to John Spathis by Mr Amor-Smith. Propositions along those lines do not appear in Exhibit G (the handwritten statement Patsalis composed before going to the police) or in his record of interview. Mr MacGregor did not mention them in opening. This casts a grave doubt over those propositions. Nor, even given the furtiveness with which, according to the propositions put by Mr Amor-Smith, Mr John Spathis behaved, is it likely that the telephone records would have corroborated them. 78 Further, subpoenas wide enough to support the "independent investigation" of Mr John Spathis' business activities would probably have been set aside by the court at the instigation of Mr John Spathis as an abuse of process. It would have been natural for an uncle to advance his nephew's interests in this way Subpoenas to Metropolitan Security Services and its officers 79 Metropolitan Security Services was Patsalis' employer in the period before the victim died. 80 Patsalis submitted that Spathis in his record of interview and his evidence had suggested that Patsalis was out of work and dependent on Spathis for living expenses. 81 Patsalis submitted that Metropolitan Security Services should have been served with a subpoena to produce documents showing, and Mr Harding (Operations Manager) and Miss Jenkens should have been called to say, that Patsalis had been "in stable employment and had a steady income" from 24 November 1994 on, even while he was on workers' compensation or while placed on light duties. 82 Contrary to what Patsalis told the trial judge on 8 September 1999 (2411 lines 16-20), there is no evidence that he had ever asked his lawyers to serve a subpoena on Metropolitan Security Services. According to what Patsalis told the trial judge on 8 September 1999 (2411 lines 22-45), Metropolitan Security Services had been taken over by Chubb and Mayne Nickless Ltd. On that day the trial judge said he remembered a subpoena addressed to Chubb, which had said there were no documents (352 line 28). That subpoena had been issued by Spathis. On 9 September 1999 counsel for both Spathis and the Crown said they had no records from Patsalis' employer (2447 lines 44-49). In those circumstances it would seem that any attempt by Patsalis' legal advisers to pursue Metropolitan Security Services by a subpoena duces tecum would have been futile. 83 There is a sharp contradiction between the reason now advanced for the utility of the subpoena to Metropolitan Security Services and the reason which Patsalis gave the trial judge for the supposed instruction to his solicitors to obtain his 1995-1996 work records. The reason now advanced is that the subpoena could have produced documents discrediting Spathis by showing that Patsalis was in employment. The reason then advanced was that the documents produced would "perhaps" give Patsalis an alibi in relation to some unspecified meetings with Spathis. Inquiries - in which the trial judge arguably went well beyond the call of the Court's duty to an unrepresented litigant - proceeded with a view to establishing the alibi which Patsalis desired. The Crown's solicitors had dealings with Mr Harding (2511-2512). The Crown made inquiries of the police (2527 line 55). Patsalis suggested that examination of his pay slips might assist, which the trial judge doubted (2528 lines 26-37). Further dealings between Detective Hull and Ms Williams suggested that Patsalis was not at work for various periods including a crucial period in February 1996. Patsalis then suggested that an examination of Mr Coustas' workers' compensation file might be fruitful (2530 lines 4-32). A little later Patsalis said he was deciphering some manuscript records (2535 line 55). Patsalis then said he needed a document which he had at home to prove he was working in January 1996 (2536 lines 19-29). In the next sitting day (Monday 13 September 1999) Patsalis said further difficulties had been caused by the illness of the lady who had promised him all necessary information (2534 line 10-2555 line 13). On the next sitting day (Tuesday 14 September 1999) Patsalis reported that further inquiries of Mayne Nickless had been fruitless (2562-2564). 84 The fact is that the Crown never appears to have alleged that the reason why Patsalis kept asking Spathis for money was a lack of income, and Spathis himself put little stress on that proposition. Spathis' main point was that Patsalis kept borrowing money to feed a gambling habit. The Crown's point was that Patsalis' motive was a need to repay his debts to Spathis, who was putting pressure on Patsalis to repay those debts. Patsalis in fact repeatedly admitted both that he was a heavy and unsuccessful gambler and that he owed Spathis about $16,500. None of these matters could have been affected by proof that Patsalis had been in regular employment. 85 This chain of events suggests that in truth there was no real prospect of obtaining useful records by a subpoena to Metropolitan Security Services; that even if there was, and even if his lawyers failed to get them, the trial judge would have allowed Patsalis himself to issue any relevant subpoena right up to the close of the evidence; that what Patsalis was trying to prove at the trial is different from what he says now that he was trying to prove; that what he says now that he was trying to prove would not have assisted his cause at the trial; and that what he was trying to prove at the trial was so marginal to the very strong case against him that his failure to prove it, whatever the cause, did not produce any miscarriage of justice. Subpoena to Dr Mahony 86 Patsalis submitted that it would have been useful for him to establish that his acquaintance with the victim was "simply a coincidence" in that the victim had a business of restocking cigarette vending machines, one of which was at 12B Restwell Street, Bankstown, and that Patsalis only went there in order to have minor surgery from Dr Mahony because of a work-related injury. 87 A perusal of this part of Patsalis' written submissions might suggest that there was no material from Dr Mahony before the jury. In fact both Patsalis and Spathis tendered material from Dr Mahony. It did not support the point which Patsalis now says Dr Mahony's material would have supported. But Patsalis himself could have subpoenaed any other material; and proof of the fact which Patsalis says he wishes to establish would have made no difference whatever to the case against him. Subpoenas to Mr Clark or Mr Harding 88 Patsalis submitted that subpoenas to the Metropolitan Security Services Training Officer (Mr Clark) or Operations Officer (Mr Harding) to give evidence would have enabled him to refute Spathis' suggestion that Patsalis knew of a "Gun Club" at Terry Hills, which Metropolitan Security Services used for training. Patsalis could have issued the subpoenas himself. And it is impossible to see how the evidence in question would have created any chance of acquittal. Failure to call expert evidence 89 Patsalis submitted that Dr Lawrence, the only forensic pathologist who testified at the trial, was not independent, and that an independent witness should have been called. 90 Patsalis and Spathis each said that the other was sitting in the driver's seat, i.e. on the victim's right. Dr Lawrence expressed the view that some of the wounds could have been caused by either knife found at the scene. He also said that three of the wounds on the left hand side of the victim could have been inflicted from the left side, while seven wounds could have been inflicted from the right, as their wound tracks were mostly from right to left. This left it open to the jury to find that two knives were used and that the victim was attacked from both sides, that is, that each accused stabbed the victim. Dr Lawrence said that given the unknown movements of the victim at the time of the stabbing, it would only be speculation to estimate whether they all came from the right or some from the right and some from the left. Dr Lawrence also said that the wounds could have been caused by one knife, two knives, or by many other knives. 91 Patsalis was acting for himself when the time came for the calling of expert evidence in his own case. There is no explanation why, if he found Dr Lawrence's evidence vulnerable, he did not do so. There is no reason to suppose that it was vulnerable. Patsalis did not point to anything which any witness might have said which would have contradicted Dr Lawrence. That in turn means there was nothing useful which could have been asked of Dr Lawrence which was not asked. Patsalis did not submit that he gave any instruction to Mr Amor-Smith that the latter should ask the questions which Patsalis now contends should have been asked. K-Mart Store subpoena 92 Patsalis submitted that a subpoena should have been issued to obtain film of the person who bought knives at the K-Mart Store. There is no evidence that appropriate inquiries were not made. There is every possibility that no relevant record had been kept, or that it was indistinct. Subpoena re telephone booth near Patsalis' house 93 Patsalis said that his lawyers had failed to subpoena the telephone records relating to the telephone booth near his home to confirm calls made to the victim. In fact there was documentary evidence of a call made at the relevant time from another booth (Exhibit BB), and the jury was entitled to accept it. Subpoena to Commonwealth Bank 94 Patsalis said he wished to prove that he had procured payment to Spathis of a Commonwealth Bank cheque from a Green Orthodox priest. Since Spathis admitted this, no prejudice was caused by the failure to issue any subpoena. In any event, the point was entirely trivial. Independent report about fire 95 Patsalis submitted that counsel should have had independent tests conducted "to ascertain the height of the flames when the fire was first lit" and "to ascertain how long the body of [the victim] had been subjected to fire". Patsalis did not, however, explain how those tests would have helped his case. Failure of counsel to visit relevant scenes 96 Patsalis submitted, first, that counsel failed to "visit and investigate crime scenes critical to the case" and, secondly, that this led to an inability of counsel to understand the facts. 97 There is no evidence that counsel did not conduct appropriate visits. And even if counsel did not do this, there is nothing to suggest any misunderstanding of the evidence. Mr MacGregor's cross-examinations of relevant witnesses, in particular, showed adequate familiarity with the scenes. Though criticism was made of Mr Amor-Smith's cross-examination in relation to the K-Mart Store at Bankstown, that criticism was unconvincing. In any event, issues about the details of particular locations were quite minor. Failure of counsel to object Exhibit AA 98 Exhibit AA consisted of certain tracksuit trousers. Initially they were admitted without objection. This was said by Patsalis to illustrate that so far as Mr MacGregor was concerned "there was next to no preparation done". Mr MacGregor and the trial judge then discussed the matter on 21 July 1999 in a passage set out above. 99 If counsel erred, it was a harmless error, since the trial judge excluded the evidence (766). Exhibit AG 100 Exhibit AG was a jacket allegedly worn by Spathis on 11 April 1996. It was tendered during the evidence of Detective Gibbs, who said he found it in a search of Spathis' home. Patsalis has not demonstrated why Exhibit AG was inadmissible or how its reception unfairly prejudiced him. Errors in cross-examination Clugston 101 Patsalis made lengthy criticism of Mr MacGregor's handling of Mr Clugston the day before Mr MacGregor was dismissed. Patsalis attributed the fact that Mr MacGregor applied to examine Mr Clugston on the voir dire to Mr MacGregor's lack of preparation. That is not a safe inference, since Mr MacGregor cross-examined Mr Clugston effectively to establish the system administered by Mr Clugston at the Bankstown Sports Club. 102 Patsalis attributed his decision to dismiss Mr MacGregor to Mr MacGregor's statement that he needed Patsalis' assistance to get a point made through Mr Clugston. That statement does not establish that Mr MacGregor was incompetent; it was probably only an attempt to change the atmosphere in a manner favourable to Patsalis. And since the cross-examination was on the voir dire, not before the jury, any defects in it cannot have reduced Patsalis' chances of acquittal. Kehoe and Kendall 103 Patsalis criticised Mr MacGregor's cross-examination of Detective Kehoe and his failure to cross-examine Dr Kendall. His submissions, however, do not demonstrate either that Mr MacGregor committed any blunder or, if he did, that it prejudiced Patsalis. Jacob 104 Patsalis' criticism of Mr MacGregor's cross-examination of Detective Sergeant Jacob depends on repeated assertions of Mr MacGregor's unpreparedness. That proposition of fact has not been demonstrated. Nor, in the absence of evidence from Mr MacGregor, can it be said that he was not pursuing rational tactics. Patsalis also suggested a large number of questions which Mr MacGregor should have asked. Most of them appear to be open to valid objection. Caruso 105 Patsalis submitted that Caruso should have been cross-examined with a view to revealing that Spathis was more likely to have been standing near the victim's body at the place where it was found than Patsalis was. It might equally have assisted Spathis by demonstrating that one imprint near the body was made by Mr Caruso, not Spathis. It is hard in any event to see how Patsalis lost any chance of acquittal. The same is true of the suggestion that Mr Caruso should have been asked questions directed to showing that the area was a built-up residential area. Langford and Hull 106 Patsalis submitted that since counsel for Spathis cross-examined Detective Langford on whether video surveillance cameras existed at the K-Mart Store, while Mr MacGregor did not, the jury could have been left with the impression that Patsalis was sensitive about possible footage. 107 Patsalis also suggested that Detective Langford and Detective Hull should have been questioned about the time of purchases made on 11 April 1996 with a view to negating pre-planning and revealing that Patsalis had a clear conscience. 108 The lack of the questioning which Patsalis submitted ought to have been engaged in does not suggest that Patsalis lost any chance of acquittal. Other mistakes 109 Patsalis relied on various other supposed errors of Mr MacGregor, and, for example, on occasional statements by Mr MacGregor in the course of conducting questioning to the effect: "I made a mistake, I apologise" (336 line 26). Virtually every cross-examination contains minor "mistakes". No mistake has been shown to have caused Patsalis to have lost a chance of acquittal.

Further evidence: Martinez statement 110 It is convenient at this point to consider two applications made by Patsalis to rely on further evidence. That evidence provides background to Patsalis' arguments about both Mr MacGregor and Mr Amor-Smith. 111 Patsalis attempted to tender for the consideration of this Court a statement of Mr Francisco Martinez dated 18 April 1996. He was a Senior Travel Consultant with Jetset Travel, Wynyard. His statement related to his dealings on 11 and 12 April 1996 with a person at that time known as Elizabeth Figueria, who at the time of the trial was Mrs Spathis. In April 1996 they were engaged and living together. His statement said: "While at work on Thursday the 11 April, 1996 about 10 or 11 am I received a phone call to check availability of a package over the weekend period of 13 and 14 April, 1996. This call was from a female, giving her name as Elizabeth. She said, 'I'd like to look into going up to the Gold Coast for two people over the weekend on one of your five night specials'. I said 'I can check availability of flights, but I'd have to get back to you regarding accommodation'. She said 'That's fine, can you get back to me something this afternoon'. I said 'Yes, can I have your particulars, so if there is anything available I can provisionally book it for you and you can advise me if it's suitable or not'. She said 'The names are Elizabeth Figueira and Alex Spathis'. I said 'Can I have a contact so I can get back to you?' and she said 'That's fine, its 3981230'. I said 'I'll get back to you this afternoon'. I then ended the call.

I then made some inquiries and then called Elizabeth about 2 or 3 pm that day. I introduced myself and explained the alternatives that I had listed for her. I specifically remember her asking for the Moroccan Beach Resort. She said 'Can you look into the Moroccan for me, otherwise I take the Surfers Beachside or The Shrangi La Apartments'. I said 'I'll get back to you and you can decide'. The call then ended.

Within half an hour I called her back letting her know that the Moroccan was unavailable. She then confirmed to me that she wanted to go ahead with the Shrangi La Apartments.

I then gave her the costings and details of flights and accommodation and told her that I'd need payment by cash or bank cheque only, by 10am Friday morning. She said 'That's fine, I'll be in first thing Friday morning to pay for it.'

About 9.30am on Friday the 12 April 1996 I was at work and Elizabeth Figueria came into the shop and gave me a total of $993.00 cash, which I then receipted and gave her an itinerary and confirmation. I then told her to come back within a ten minute period and I'd have her tickets ready. I requested no formal identification from Elizabeth, because it was a domestic booking and she paid by cash.

She went away and then came back about ten minutes later. I then gave her the documents and she left.

After taking the money I put it in my drawer, then within ten minutes Nagwa Kaldas came from upstairs in the office and took possession of the money after signing a receipt on the top right corner of the receipt that I had filled out. She then took the money away."

112 Patsalis said, without giving evidence on the point, that he was ignorant of the existence of Mr Martinez' statement at the trial. 113 The purpose of seeking to tender Mr Martinez' statement was not directly to demonstrate the incompetence of Patsalis' lawyers. Rather Patsalis submitted that the statement of Mr Martinez was relevant in establishing errors in the evidence of Mrs Spathis and Mr Stratikopoulos. The essential differences from which these "errors" were inferred were as follows. Mrs Spathis said that during the morning of 11 April 1996 she spoke to Mr Martinez "confirming some departure times" and said that her first contact was on 10 April 1996; Mr Martinez suggested not that he was confirming times on 11 April 1996, but was making initial inquiries on that day and that there had been no inquiry on 10 April 1996. Mr Martinez' statement suggested that the proposed holiday was not arranged prior to 11 April 1996, while Mr Stratikopoulos (Mr Spathis' business partner) said the holiday had been discussed with him "about four, five months, three months before" and that the holiday was planned to take place from Monday 15 April to Friday 19 April (the latter being the date of Mrs Spathis' birthday). 114 These arguments proceed on narrow differences between Mr Martinez' statement and Mrs Spathis' evidence. They also overlook the vagueness of Mr Stratikopoulos' evidence and thereby exaggerate its significance. They attribute excessive significance to the fact that a five day holiday from 13 to 17 April 1996 does not precisely coincide with Mrs Spathis' birthday on 19 April. 115 Mr Martinez' statement was not "fresh" evidence. It was either known to Patsalis or to his advisers at the time of the trial, or ought reasonably to have been known to them: the Crown informed this Court, without contradiction, that the statement of Mr Martinez was among the committal papers; that Patsalis' solicitor was informed that the Crown did not intend to call Mr Martinez at the trial; and that the Crown received no request to call him at the trial. Further, in the course of the trial the Crown mentioned, at a time when Patsalis was represented by Mr Amor-Smith, that it had evidence taken from a person at the travel agency with which Mrs Spathis had dealt. 116 Since the evidence is not "fresh" evidence, there is no point in admitting it unless it could lead to the quashing of the conviction, and it will not have this result unless the Court is "convinced that there has been a miscarriage of justice": R v Henry (1992) 28 NSWLR 348 at 351 per Loveday J, Priestley JA and Sully J concurring, citing Ratten v R (1974) 131 CLR 510 at 517-518 per Barwick CJ, McTiernan, Stephen and Jacobs JJ concurring. 117 Even if Mr Martinez' statement was "fresh" evidence, so far as it goes only to credit it is less likely to lead to a new trial: R v Zaidi (1991) 57 A Crim R 189 at 193 et seq per Priestley JA, Allen and Badgery-Parker JJ concurring. 118 Whether or not the precise rules governing the reception of further evidence on appeal, "fresh" or not, can be said to be entirely clear, and whether or not it is desirable that they be entirely clear, are not questions which it is necessary to examine in detail. That is because it is clear that even if the evidence is not "fresh", "the strength of the … evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial": Gallagher v R (1986) 160 CLR 392 at 395 per Gibbs CJ. 119 Mr Martinez' statement lacks sufficient strength to raise the possibility of a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912. That is not because it was not available. It is because it went to peripheral and marginal issues. The precise dealings between Mrs Spathis and Mr Martinez, and the precise question of whether the holiday was in fact planned and for how long would not have affected the conclusion to which the jury came in view of the strength of the direct evidence against Patsalis. If the question is whether, in the language of Mason CJ in Mickelberg v R (1989) 167 CLR 259 at 273, applied by this Court in R v Drummond and Domican (No 2) (1990) 46 A Crim R 408 at 419 by Kirby ACJ, Campbell and Studdert JJ concurring (which were both cases of "fresh" evidence), there was "a significant possibility that the jury acting reasonably would have acquitted the [accused] of the charge if the new evidence had been before it at the trial", the answer should be "no".

Further evidence: production of police records 120 Patsalis indicated a desire to obtain production of certain computer records dated 12 April 1996 associated with the investigation into the murder of the victim. He described what he hoped to prove thus: "I will prove that no police inquiry was made on the computer system until well after 6.30pm on the Friday evening of 12 April 1996. In the court transcript and on the voir dires in particular where counsel continually cross-examined the police officers their in court testimony was that at about ten past six in the evening of 12 April 1996 that they received a telephone call from particular witnesses i.e. Mr and Mrs Jeffries who passed on the car registration of POZ-344 which was the vehicle of Mr Spathis. And in turn they used that information to find out Mrs Spathis' home address at Randwick and they specifically testified to these events as being true and correct.

What I will be hoping to prove to the court are two matters: one is that no search was made until after 6.30pm on that evening. Two, that the in court testimony of the police officers was from the voir dires false and two particular police officers had in fact lied. Three, it then goes to the admissibility of Ex G and how it was illegally obtained and fourthly it will allow me to make further allegations that two witnesses' statements were manufactured in the police brief and I will be able to prove all that through those two documents." 121 Patsalis gave no satisfactory explanation for why he had taken no effective steps to obtain the documents in the twenty months that passed between his conviction and the hearing of the appeal. The Crown said it had not received any notice since the trial that Patsalis wanted the material included in the appeal papers. The Crown also said that the Registrar of this Court had warned Patsalis that all relevant material had to be before the Court by 2 July 2001. And the Crown pointed out that even if the police records recorded no call before 6.10pm, it would not follow that none had been made. None of these propositions was controverted by Patsalis. 122 Leaving aside the wholly unsatisfactory failure to bring this matter before the Court with appropriate speed and the fact that Patsalis evidently and unacceptably contemplated that the appeal could be adjourned as often and for as long as he desired, no substantive ground was made out for an adjournment of the appeal or for an order to be made under s 12 of the Criminal Appeal Act 1912. That is because the matter of whether Exhibit G was admissible was thoroughly investigated at trial. Even if the production of the documents sought might have showed that some part of the relevant police officers' evidence was mistaken, it was not shown how any part of the trial judge's reasoning in support of the admission of Exhibit G was flawed in such a way as to raise any reasonable possibility that the conclusion was wrong. 123 Further, even if further police records would reveal that Exhibit G was handed in by Patsalis at a time when one of the circumstances described in s 139(1)(a) or (5)(a), (b) or (c) of the Evidence Act 1995 existed, it is inconceivable that the trial judge would have exercised his discretion under s 138 against reception of the evidence. All the material factors bearing on the problem pointed towards admission.

Alleged incompetence of Mr Amor-Smith: general 124 Before examining the detail of Patsalis' complaints about Mr Amor-Smith's alleged incompetence, some preliminary matters should be borne in mind. 125 When Patsalis was being cross-examined by counsel for Spathis on 24 August 1999, he was asked, and he answered the following question: "Q. You sat here and had your counsel put your case with great care and thoroughness, day in and day out. He spent two days taking you through your account, didn't he?

A. And I did all the preparation in relation to a lot of works sir because I don't have anyone to just jump in and take control of the situation." No doubt Patsalis did a lot of preparation, but he did not dissent from the description of Mr Amor-Smith as having shown "great care and thoroughness". Further, the trial judge described Mr Amor-Smith's written submissions on sentence as being "helpful". There are other instances where the trial judge praised Mr Amor-Smith's efforts, though he, like the other counsel, was also subjected to observations of an apparently critical character from time to time by the trial judge. 126 So far as Mr Amor-Smith was attacked by Patsalis for not having prepared the case, the author of this state of affairs was Patsalis himself. It flowed from his decision to dismiss Mr MacGregor, which was foolish at best. It may be that if the possibility of a miscarriage of justice emerged, it would be no answer to a challenge to the conviction that that possibility was the result of the accused's own doing. But an issue would then arise whether what Patsalis did was only foolish or was part of a more sinister tactical ploy. Some support for the view that it was a tactical ploy might be afforded by Patsalis' dismissal in turn of Mr Amor-Smith, and by his behaviour in the days before final address, in which much time was frittered away in vain inquiries about Patsalis' employment records. But it is not necessary to investigate that issue. 127 Patsalis criticised Mr Amor-Smith's lack of preparedness on Monday 2 August 1999. That is an invalid criticism, since Mr Amor-Smith had only been briefed the previous Friday. Mr Amor-Smith's account of what he had done is entirely consistent with having spent the whole weekend on the case. So far as Patsalis made criticisms of Mr Amor-Smith's lack of preparation and knowledge of the case thereafter, they have not been made out. 128 Patsalis submitted that Mr Amor-Smith's account of his dismissal on 2 September 1999 was "dramatic and unusual which created unfairness and prejudice" to Patsalis. Any such outcome was entirely self-induced. It was not open to Mr Amor-Smith simply to depart in meek silence without some explanation to the trial judge for his departure. In any event, Mr Amor-Smith account was given in the absence of the jury. 129 Patsalis complained that there was a failure to ask the trial judge for a direction to the jury not to speculate about the reason for the termination of the retainer of a kind similar to that which the trial judge gave after Mr MacGregor was dismissed. Yet it was Patsalis who failed to apply for the direction, not Mr Amor-Smith. Mr Amor-Smith's role had ceased at 3.30 pm on 2 September 1999. 130 Patsalis pointed out that the trial judge said that Mrs Spathis, from Spathis' viewpoint, "got off reasonably lightly, in terms of cross-examination" by Mr Amor-Smith. This was said to be a criticism by the trial judge of Mr Amor-Smith. Yet in the same breath the trial judge indicated that that statement was made without "in any way disparaging Mr Amor-Smith, who was plainly doing his best and doing a professional job". 131 Patsalis complained that Mr Amor-Smith failed to put questions in accordance with instructions. It is for counsel to form a judgment as to what questions to ask. Non-compliance with a client's instructions about the lines to be taken in cross-examination is not evidence of incompetence, let alone prejudice or a miscarriage of justice.

Complaints about Mr Amor-Smith's examination in chief of Patsalis 132 Mr Amor-Smith was said by Patsalis to have been flagrantly incompetent for not verifying "the accuracy and truthfulness" of Patsalis' record of interview. By this Patsalis meant that he had not been asked in terms while testifying near the end of his evidence in chief on 18 August 1999 whether everything he said in his record of interview was true. But as the trial judge said when the matter was discussed on 19 August 1999, Mr Amor-Smith's questions achieved the same ultimate result as if he had asked Patsalis to verify the record of interview, namely putting the record of interview in evidence for all purposes by asking Patsalis to correct anything that was inaccurate. And the record of interview was explicitly stated to be true and correct, but for some mistakes, in further evidence in chief given by Patsalis on 19 August. If there is any error here, it was certainly not prejudicial. 133 Patsalis then submitted that Mr Amor-Smith should have given him an opportunity to point out the inaccuracies, particularly the important inaccuracies, in the record of interview; an opportunity to explain why they occurred; and an opportunity to modify and correct the inaccuracies. Yet when the matter was dealt with in the additional evidence in chief given by Patsalis, Mr Amor-Smith repeatedly gave Patsalis opportunities to correct inaccuracies. It was for Patsalis, who was giving the evidence, not counsel able to do no more than elicit it by non-leading questions, to identify inaccuracies. Further, it is far from clear that evidence in chief explaining why the inaccuracies occurred would, strictly speaking, have been admissible. Arguably questions directed to that would have been questions seeking evidence which "merely bolsters the credibility of a party": Palmer v R (1998) 193 CLR 1 at 21 per McHugh J. "Only facts in issue should be led in chief. A witness may not lift himself by his own bootstraps to enhance his credit": R v Connelly [1991] 2 Qd R 171 at 173 per Thomas J, Dowsett J concurring. Arguably the evidence in chief suggested would have been a "premature attempted rebuttal of [a] challenge", which is a practice which "should cease": at 173-174. Patsalis submitted that he suffered prejudice in not being assisted in understanding "his possible rights particularly in connection with any compromise of the case". The reference to a compromise, which is not unique in Patsalis' submissions, is totally unrealistic. Patsalis submitted that the matter was dealt with on the run, without him having had the opportunity to reflect on matters. Yet he had just given lengthy evidence in chief on the twenty-ninth and thirtieth day of the trial: he had had every opportunity to reflect on the errors in his record of interview. 134 Patsalis submitted that Mr Amor-Smith's examination in chief of him was equivalent to cross-examination, it being repetitive and intimidating, despite the "precision" of Patsalis' answers. Yet in fact it was largely Mr Amor-Smith's persistence which enabled clarity to be brought into those answers.

Complaints about Mr Amor-Smith's failure to object to questions in cross-examination of Patsalis 135 Mr Amor-Smith was criticised for not objecting to questions asked by counsel for the Crown and Spathis of Patsalis inviting his assent to the proposition that other witnesses were giving "deliberately misleading" or "false" or "made up" or "completely made up" evidence, or "were lying" or "lied". Among other cases, Patsalis cited R v Foley (1998) 105 A Crim R 1 at 8 for the proposition that counsel should not invite a witness to answer by commenting on the truthfulness of other witnesses. But he did not mention the following statement by the Queensland Court of Appeal in that case: "There must of course be a certain degree of tolerance of loose practices in cross-examination, and such errors commonly occur without impairing overall the receipt of a fair trial by an accused person". 136 Patsalis submitted that the use of the inadmissible questions "forced [him] to retract his evidence, in order to preserve his credit and credibility and to prevent the cross-examination from escalating and continuing along the same lines. 137 So far as the questions merely asked Patsalis to agree that if his evidence was correct, that of other witnesses was incorrect, they were not impermissible. That is merely a strong way of identifying precisely what the evidence of Patsalis was in relation to that of other witnesses. Contrary to Patsalis' submissions, the questions did not go so far as to seek Patsalis' views on why the other witnesses were lying. Patsalis submitted that some questions by the Crown "by implication" asked the question "Why would witnesses be in conflict with Patsalis?" This is incorrect. The closest the questioning came to a question of that prohibited kind is one asked when differences between Patsalis' evidence and that of the Jefferis family were being explored. At 1575 line 6-10, the evidence was: "Q. You've got no reason you can suggest to the court that they would completely make up their evidence, have you?

A. That's not what I'm referring to when I say it's totally false." That question asked why the Jefferis family might be lying but the mischief was removed by Patsalis' contention that they were not. At 1660 lines 21-39 the following appears: "Q. Would you agree with me that it is impossible to reconcile the two versions, in the sense your version is very different from their version?

Q. Would you agree with me that it is impossible to reconcile the two versions, in the sense that your version is very different from their version?

A. The only thing that I can think of sir is in relation to perhaps they may have seen me when I came out of the car when I was parked behind the red car. I don't know. When I was driving up that road, I certainly don't recall seeing a car as is in the diagram that we saw of Mr and Mrs Jefferis, so - they gave their evidence and as you stated earlier they are independent. We have never met so they wouldn't hold a grudge against me, so, I don't know. I have no explanation for that." To ask for an "explanation" in one sense invites the possible answer "They are lying and I am not". That was not an answer which Patsalis gave. Further, Patsalis' submission that in final address the Crown asked "Why would the Jefferis family lie?" is also quite baseless. There were questions in which Patsalis was asked to accept characterisations of the evidence of other witnesses as being deliberately untrue. In general that is a form of questioning to be avoided. But Patsalis has not demonstrated the proposition that he was forced to retract his evidence or that the style of questioning "pressured and bullied" him. And he has certainly not demonstrated that the questioning not objected to has caused any prejudice. Further, non-objection may well have been seen as a prudent tactic, and that perception has solid justification. Triers of fact often do not like to see excessive protectiveness of party-witnesses on the part of the counsel calling them. Trial judges often resent the flow of cross-examination being interrupted by objections even if they have some technical force because they may be seen as an attempt to rest the witness or to hint at particular answers. Successful resistance by a party-witness, unassisted by helpful objections, to an aggressive cross-examination can improve that party-witness's acceptability in the eyes of triers of fact. These are all valid tactical considerations which may well have influenced Mr Amor-Smith's approach. 138 The same answer invalidates Patsalis' complaint that Mr Amor-Smith failed to object to questions which were, or which Patsalis submits were, inadmissible by reason of s 41 of the Evidence Act 1995. 139 In general Patsalis submitted that the Crown's cross-examination of him was impermissible to the extent that this caused a miscarriage of justice. Any departure by the Crown from what the law strictly requires of a cross-examiner was not sufficiently prejudicial to the interests of Patsalis to amount to appellable error or to create any risk of a miscarriage of justice, whether considered by itself or with any other complaint.

Re-examination by Mr Amor-Smith 140 Patsalis submitted that Mr Amor-Smith failed to clarify ambiguities which had been left unexplained and incomplete during the cross-examination which counsel for the Crown and Spathis conducted of Patsalis. In large measure Patsalis submitted that much of this re-examination could have been conducted "by simply picking up the appellant's record of interview and addressing the areas in question". This is the same record of interview, of course, which Mr Amor-Smith was criticised for failing to have corrected in the evidence in chief. However, since the contents of the record of interview were in evidence in relation to Patsalis because the Crown had tendered it, and in evidence for all purposes by reason of Patsalis' adoption of it in the witness box, it is hard to see how any evidentiary gap was created which might have led to a miscarriage of justice. Much of the suggested re-examination would not have been permissible, because the cross-examiners gave Patsalis an opportunity to give explanations and because in many instances there was nothing to clear up in the sense that any re-examination would merely have been an invitation to Patsalis to change his testimony. A large part of the suggested re-examination would have been an invitation to Patsalis to give evidence which he had opportunities to give in chief or in cross-examination, and which he often had given (for example, evidence about his fatigue while being interviewed by the police). Further, many of the points which Patsalis submits should have been cleared up were trivial to a degree. 141 A failure to re-examine is not necessarily a sign of incompetence. It can flow from a conscious and sensible decision based on the desire to reduce forensic damage. A lengthy re-examination can be a tribute paid to cross-examining counsel for the latter's great success in cross-examination - a tribute which it can be unwise to pay in the presence of the trier of fact. 142 In no respect has any possibility of a miscarriage of justice arising from defective re-examination been demonstrated.

Mr Amor-Smith's capacity to argue legal submissions 143 Patsalis submitted that Mr Amor-Smith did not satisfactorily advance arguments of law to the trial judge. Many of the examples given relate to the period just after Mr Amor-Smith came into the case. Patsalis submitted that he was prejudiced by Mr Amor-Smith's "ineptness and inefficiency in matters of law". Mr Amor-Smith's knowledge and application of the law were also said to be "deficient, appalling and incompetent in the extreme". 144 These submissions should be rejected. A perusal of Mr Amor-Smith's contributions to legal argument does not reveal either that they were incompetent (in particular, given the time at which they were made) or that they were likely to create any possible miscarriage of justice. Patsalis' submissions fail to distinguish between the proposition that some of Mr Amor-Smith's arguments failed and the proposition that Mr Amor-Smith was incompetent.

Mr Amor-Smith's failure to seek adjournments 145 Patsalis submitted that Mr Amor-Smith should have sought an adjournment or adjournments soon after he came into the case to enable him to prepare it. It is highly unlikely that the trial judge would have allowed any substantial adjournment in view of the terms of what he said to Mr Amor-Smith on 2 August 1999.

Mr Amor-Smith's admissions 146 To some extent Patsalis relied on various self-deprecating remarks Mr Amor-Smith made. For example, at 2015 line 48 he said he had been trying to catch up since he came into the case. That and other similar remarks are understandable, but they do not indicate that Patsalis was not being professionally served by Mr Amor-Smith or that any possibility of a miscarriage of justice was generated. They are no more significant than similar remarks which Mr MacGregor had made.

Non-separation of trials 147 Patsalis propounded arguments in support of a supplementary ground of appeal that the trial judge's failure to separate the trials led to unfairness arising from the admission of prejudicial evidence which was otherwise inadmissible. To some extent the arguments overlap with arguments based on the supposed incompetence of both Patsalis' counsel. 148 So far as Patsalis' arguments contended that the trial judge should have ordered separate trials from the outset, they were all put to and considered by the trial judge in his reasons for judgment delivered on 30 June 1999 in which he rejected Mr MacGregor's application on behalf of Patsalis for separation: [1999] NSWSC 649. Those reasons for judgment are a model of their kind. They are adopted as part of these reasons for judgment. It is only necessary to add, in particular, that it cannot be said that the evidence against one accused was significantly weaker than and different from the evidence against the other. 149 Patsalis submitted that even if the trial judge's initial decision was correct, it should have been reconsidered when Spathis gave evidence and swore to the truth of his record of interview. Patsalis has not, however, demonstrated that any greater prejudice then arose than that which the trial judge had already taken into account. Further, an application for separate trials at that stage would mean that at least one trial would have to start afresh even though the very lengthy hearing was nearly over. That is not an outcome which the trial judge could have been expected to have accepted with any equanimity.

Accomplice warning 150 Patsalis submitted that the trial judge erred in giving an "accomplice warning" to the jury pursuant to s 165(1)(d) of the Evidence Act 1995, and that Mr Amor-Smith was incompetent in permitting this. Far from this being an error, if Mr Amor-Smith had not permitted it to happen, and if the trial judge had not given the warning, an appeal brought by Spathis might have succeeded, subject to the application of the proviso.

Warning about Patsalis' evidence 151 Patsalis submitted that when the trial judge warned the jury, near the end of his evidence-in-chief, to keep an open mind about the issues, he erred. At worst that warning appears harmless; at best it was necessary from Spathis' point of view.

Alleged failure of Mr Amor-Smith to cross-examine Spathis' wife, uncle, father and business partner 152 Patsalis submitted that his credit was the most vital issue in the case. He submitted: "Counsel ought to have protected the appellant's credit by cross-examining critical witnesses on the primary facts associated with the essential elements of the eventual case by one, challenging on oath the evidence of various witnesses to determine their 'mettle under attack', two, challenge the corroborative evidence, three, to highlight and illustrate the various inconsistencies and contradictions, four, to challenge the explanations or qualifications made by a witness, five, to contradict a witness's evidence especially when it related to or concerned directly the case of the appellant … ."

153 To some extent this submission was supported by authorities on the rule in Browne v Dunn (1893) 6 R 67. That rule is a rule intended to protect the party whose witness was not cross-examined, and also to protect that witness; it is not intended to protect the party represented by the counsel who does not cross-examine. However, in general the description of counsel's duty as propounded by Patsalis may be accepted. The question is whether any significant breach of it took place.

Mrs Spathis 154 Patsalis submitted that Mr Amor-Smith should have cross-examined Mrs Spathis about precisely when she withdrew $1,000 from an automatic teller machine to pay for the holiday she and Spathis were planning to take on the Gold Coast. This was said to have been a "highly relevant" issue "as it allows one to further draw a number of inferences upon such matters as time and telephone calls which originated between the two on Thursday 11 April 1996". Whether this refers to calls between Mrs Spathis and Spathis or Mrs Spathis and Mr Martinez, Patsalis never explained why it was highly relevant and what significance the supposed inferences would have had. 155 Patsalis criticised Mr Amor-Smith for not cross-examining Mrs Spathis on her evidence that at 4.40pm on Thursday 11 April 1996, she called Spathis; asked him where he was; and was told he was parked outside Bankstown shopping centre reading the Trading Post since he was looking for a car part. She testified that they talked about the holiday and he asked what she wanted for her birthday. She testified that they discussed whether she would attend The Three Swallows Hotel that evening and that she would call him back at 7pm to confirm this. 156 Patsalis drew attention to the fact that in her statement of 12 April 1996 she said Spathis "was apparently doing some running around for the holiday in between lunches at the bistro [run by Spathis and Mr Stratikopoulos at The Three Swallows Hotel] and re-opening". Patsalis submitted that this was surprising since she had not yet informed Spathis she had provisionally booked the Gold Coast holiday, and one would have expected her to have told him what she had done in the 4.40pm telephone conversation. Yet the call only lasted one minute and twenty-five seconds, which was insufficient to pass on all the details. 157 Patsalis submitted: "As has been previously discussed Mrs Spathis' prior-statements make no reference of Mr Spathis having parked outside the Bankstown Shopping Centre, that he was reading the Trading Post looking for car parts. There is no discussion recorded between the two that Mr Spathis asked his wife what she wanted for her birthday, and that they made arrangements for her to go to the Three Swallows Hotel that evening. Counsel failed to put or even challenge the conversations in this call, on the basis that they were recently invented to accord with the objective facts ie the telephone records (Exhibit BB), the records of interview and in particular that of her husband and ultimately upon the proof of evidence of her husband to which she was privy."

158 However, Mr Amor-Smith may well have thought the differences immaterial. He may have thought that to allege that Mrs Spathis was "privy" to anything improper or was lying, leaving aside the ethical question of whether he had any instructions or adequate material on which to do this, may have been adverse to Patsalis' interests. Further, to put that allegation might attract the reception under s 108(3)(b) of the Evidence Act 1995 of prior consistent statements of Mrs Spathis, which might have worsened Patsalis' position by enhancing Mrs Spathis' credibility. This was a matter flagged in argument both before the trial judge's s 38 rulings and after Mrs Spathis left the witness box on 5 August 1999. That supports the conclusion that Mr Amor-Smith may well have had this problem in mind. Whatever Mr Amor-Smith thought, however, Patsalis has not shown any possibility that because Mr Amor-Smith cross-examined in the way he did, as distinct from the way which Patsalis now says should have been employed, a miscarriage of justice was caused. 159 Patsalis submitted that Mr Amor-Smith should have challenged Mrs Spathis' evidence that while she and her husband were driving into the city on the morning of Friday 12 April 1996 to pay for their Gold Coast holiday tickets, he suggested that they not do so that day, she broke down in tears and told him he was "really stressed out". Patsalis submitted that this was not mentioned in her statement of 12 April 1996 or her record of interview. Patsalis submitted: "Mrs Spathis' in-court testimony could be characterised as quite a dramatic and an emotional breakdown by her whilst in the car with Mr Spathis comforting her laying the foundation for the submission later on that he was troubled about what had happened." Other differences were relied on. But it was open to Mr Amor-Smith to decline to cross-examine on the basis that Spathis' distress in fact supported Patsalis' case. 160 Patsalis also submitted that Mr Amor-Smith "failed to put to Mrs Spathis that she was lying to assist her husband with his case, tailoring her evidence to fit the objective facts." Patsalis pointed to the fact that at 8.44pm on 11 April 1996 Spathis rang his wife from the Ryde-Epping area. In that call he falsely said his car had broken down and he was waiting for a tow. Mrs Spathis timed that call at about 8.30pm in her testimony in chief, and at 8.44pm in her cross-examination. She explained that improved specificity by having had access to telephone company records. Patsalis pointed out that in her statement of 12 April 1996 she had timed the call at 7pm. This difference by itself is scarcely significant. However, Patsalis said that in her testimony, unlike her 12 April 1996 statement, her husband sounded as though he was in a state of anxiety. Patsalis said this reflected badly on him, and that Mr Amor-Smith failed to notice this. However, in the course of argument on 4 August 1999 during the Crown's first s 38 application, he did notice it (924 lines 34-38). He said he would return to her statement of 12 April 1996 (924 line 53). He did so (955 line 49-961 line 35). In the course of the Crown's second s 38 application on 5 August 1996 counsel representing the Crown noted that while Mr Amor-Smith drew attention to differences between Mrs Spathis' testimony and her statement, he did not cross-examine in detail about it. The fact is, however, that Mr Amor-Smith did expose to the jury many differences between what Mrs Spathis said in her 12 April 1996 statement and what she said in chief. This left it open to the jury to draw inferences about her bias. His instructions may not have permitted him to do more. Even if they did, he may have thought a frontal assault on Mrs Spathis imprudent, and likely to cause the jury to sympathise with her husband and become prejudiced against Patsalis. That tactical approach would be understandable. Mr Amor-Smith evidently had some tactical plan in mind, and he was interrupted while endeavouring to explain it to the trial judge (981 lines 3-24). But in any event no chance of any miscarriage of justice exists, because the Crown prosecutor later cross-examined Mrs Spathis on the inconsistencies. He put to her the accusations of embellishment and lying in order to assist her husband which Patsalis criticised Mr Amor-Smith for not putting. She denied them as put by the Crown prosecutor, as she no doubt would have denied them if they had been put by Mr Amor-Smith. 161 Patsalis attacked Mr Amor-Smith for not cross-examining Mrs Spathis about the clothing Spathis was wearing when he came home on the night of 11 April 1996. Few of the suggested questions would have assisted Patsalis' case and in any event Patsalis could have suggested them to Mr Amor-Smith if they had seemed appropriate at the time.

Mr Stratikopoulos 162 Patsalis submitted that Mr Stratikopoulos said he was happy when phoned by Spathis to say he would not be coming to work on the night of 11 April 1996 at the bistro in The Three Swallows Hotel which the two of them ran, because if Mr Stratikopoulos worked that late shift, he could have the nights of Friday 12 and Saturday 13 April off. This was contradicted, said Patsalis, by Mrs Spathis' 12 April 1996 statement indicating that she travelled to pick up her husband from work at 9.30pm on 12 April, which would not have been possible if Mr Stratikopoulos was not on duty to work the late shift. Yet there are possible explanations for the difference between Mr Stratikopoulos' expectation on Thursday night of what would happen on Friday night and what actually did happen on Friday night. This and similar points made by Patsalis on peripheral issues do not reveal the risk of a miscarriage of justice. 163 Another area of Mr Stratikopoulos' evidence which Patsalis said should have been the subject of cross-examination was that which related to Patsalis' boasting in The Three Swallows Hotel in the presence of Spathis about his contacts with police and use of them by Patsalis to enable Spathis to regain his licence, to his flashing of a bank book to Mr Stratikopoulos and Spathis revealing an amount of over $0.5 million in the bank, and to his showing of a car boot full of cigarette cartons to Spathis. Before Mr Stratikopoulos gave evidence for the Crown, counsel for Spathis foreshadowed that he would be cross-examining to elicit that evidence in order to establish "a foundation for a belief on [Spathis'] part that Mr Patsalis was a person who had contacts, who could arrange various things relating to cigarettes", as the trial judge said at 855 lines 38-40. This was in order to rebut a Crown contention that the absence of any cigarettes was adverse to the accused. 164 Patsalis' submission assumes that Mr Amor-Smith was given instructions that these allegations were incorrect and that he failed to cross-examine Mr Stratikopoulos to suggest they were incorrect. 165 There are several problems with the submission, apart from the lack of sworn evidence that the instructions were given. 166 First, as Patsalis' submission acknowledged, "Mr Stratikopoulos had no personal knowledge upon most of the matters to which he testified". By that Patsalis meant that though Mr Stratikopoulos claimed to have heard and seen what he said Patsalis did in his presence, he did not know the truth of the underlying suggestions Patsalis was making. He could not be cross-examined about those suggestions. 167 Secondly, so far as Mr Stratikopoulos gave evidence of the regular presence of Patsalis at The Three Swallows Hotel, it was confirmed by Patsalis' own evidence in chief (1317-1318). So far as Mr Stratikopoulos said Patsalis flashed his bank book and represented that he had over $0.5 million on deposit, Patsalis said the same in his evidence in chief (1326-1329), his record of interview, and in Exhibit G. So far as Mr Stratikopoulos suggested that Patsalis gave Spathis the impression he had valuable police contacts, Patsalis had admitted this in his record of interview (questions 61 and 68). So far as the evidence about a car boot being full of cigarette cartons was concerned, Mr Stratikopoulos was only describing what Spathis told him. Mr Stratikopoulos did not claim that he himself had seen the cigarettes. The appropriate person to cross-examine was Spathis, and when the time for cross-examining Spathis came, Patsalis was representing himself after the dismissal of Mr Amor-Smith. 168 Patsalis complained that Mr Stratikopoulos' evidence that the two knives used in the killing, Exhibit AC, were not of a type to be used by the bistro should have been the subject of cross-examination along the following lines: "1. Counsel failed to put to Mr Stratikopoulos that Exhibit AC were in fact knives used by them in their bistro?

That such knives were stuck up on the wall near the knife rack?

To challenge Mr Stratikopoulos that they had indeed bought knives whilst Mr Spathis and he ran the bistro?

To put to Mr Stratikopoulos what would your taxation records filed at the Australian Taxation Department reveal in respect to purchasing knives?

Counsel failed to put to Mr Stratikopoulos questions referable to the Bistro.

a) Was it his usual practice to allow patrons in the bistro?

b) Why it was that the appellant had unrestricted access to the bistro?

c) To his knowledge whilst present how many times over the two year period had the appellant been inside the bistro?

d) To describe the layout of the bistro, particularly where the knives were 'struck up' on the tiling and where the knife rack was situated?

e) The assistance provided to him and to Mr Spathis whilst they were busy.

f) The various duties and tasks performed by the appellant on their behalf in respect to the shopping?

g) Mr Stratikopoulos' knowledge of Mr Spathis attending The Bankstown Shopping Centre, for shopping purposes."

169 This submission reveals how inconsequential the supposed deficiencies in Mr Amor-Smith's cross-examination were. The questions proposed veer between the unanswerable, the irrelevant and the harmful. Under cross-examination Patsalis said that had he been cross-examining Mr Stratikopoulos, he would have cross-examined about the knives, but that is highly questionable. He could have asked Mr Amor-Smith to do so. Mr Amor-Smith successfully obtained leave to cross-examine Mr Stratikopoulos further (896) some time after Mr Amor-Smith's first cross-examination of Mr Stratikopoulos had ceased. 170 Patsalis complained that Mr Stratikopoulos' testimony introduced into the evidence the proposition that Patsalis was a former police officer. That was the result of a considered decision of the trial judge. There was nothing more Mr Amor-Smith could have done than he did. For Mr Amor-Smith to have cross-examined Mr Stratikopoulos about it would have worsened matters from Patsalis' point of view. When the Crown prosecutor dealt with aspects of his training at the Police Academy, Mr Amor-Smith argued against admissibility: his opposition failed, but again there was no more he could have done. 171 Patsalis criticised Mr Amor-Smith for not cross-examining Mr Stratikopoulos about the fact that Patsalis stopped coming to The Three Swallows Hotel. Mr Stratikopoulos only gave evidence about the time, not about the reasons. This conformed with a ruling of the trial judge: Mr Amor-Smith could not have cross-examined without contravening that ruling, and it was a ruling which the trial judge had made in the interests of Patsalis. 172 Patsalis also submitted that Mr Amor-Smith should have cross-examined Mr Stratikopoulos about his knowledge of Patsalis' debts to Spathis. The existence of these debts was common ground, readily admitted by Patsalis. A lack of cross-examination on the point was not adverse to Patsalis' interests. 173 Any deficiency in Mr Amor-Smith's cross-examination of Mr Stratikopoulos is readily explained by the fact that Mr Stratikopoulos gave evidence on Tuesday 3 August. It was only on Monday 2 August that Mr Amor-Smith had announced his appearance. He had been granted an adjournment only until 3 August. The Crown said on 2 August that for the next one to one and a half days witnesses relating only to Spathis, not Patsalis, would be called. That prediction was not fulfilled, because though the first two witnesses that day were in that category, as the Crown frankly conceded at 854, the third-sixth witnesses were not, and nor was the seventh, Mr Stratikopoulos, or the eighth, Mrs Spathis.

Admission of Exhibit G 174 Patsalis mingled submissions complaining about the misuse by counsel for the Crown and for Spathis of Exhibit G and about Mr Amor-Smith's failure to object to this misuse. 175 Spathis in his appeal complained about the use of Exhibit G as relationship evidence. The arguments advanced on his behalf were, mutatis mutandis, also advanced by Patsalis. Those arguments, as advanced by Patsalis, should be rejected for the reasons given by Carruthers AJ in relation to Spathis. In particular, the trial judge ruled carefully on the limited use to be made of those parts of Exhibit G that did not touch directly on the events surrounding the crime and gave careful directions about Exhibit G. The cross-examination to which Patsalis says Mr Amor-Smith should have objected remained within the trial judge's rulings: in particular, it went to admissible relationship evidence, not inadmissible evidence in the nature of similar fact evidence.

Failure of Mr Amor-Smith to attack Spathis' character 176 Patsalis submitted that when counsel for Spathis elicited from Detective Sergeant Jacob the fact that after inquiries were made about Spathis, it was found that no matters were known against him, Spathis threw away his shield. Patsalis submitted "Mr Spathis having raised his character at trial, it afforded counsel the opportunity to challenge and to discredit the co-accused on his character." 177 Three items of discreditable behaviour were referred to. 178 The first related to a mobile phone. Patsalis submitted that Mrs Spathis should have been cross-examined to elicit the fact that mobile phone number 0419444766 was connected in her name but was used by both her and her husband; and that they found it a month or two before 12 April 1996 in the toilets at Coogee. Patsalis submitted that she should have been asked" "1. Was any attempt made to take the phone to the police?

In your statement you state 'We found it', who actually found the mobile telephone?

Was it ever attempted by you or your husband to call the original owner to return the mobile phone?

How was it possible for you to activate the phone?

You needed to remove the initial owners phone card chip from the back in order to have the phone activated?

Generally such behaviour is dishonest." (Patsalis also incidentally submitted: "Counsel having come into the case quite late could not appreciate the relevance and importance of the Coogee area. Had counsel's knowledge been of the required level, counsel would have been required to ask specific questions about the Coogee Bay Hotel, Coogee Beach, the distance between their residence at 18 St Paul Street, Randwick and Coogee Beach. How often it was that Mr and Mrs Spathis frequented Coogee and for what purpose? Such questioning would be later used to accord with the appellant's version of events." But Patsalis did not explain how.) 179 The second item related to a car which Spathis said in his record of interview had been in his possession for seven or eight months but had not been registered. Patsalis submitted that Mr Amor-Smith should have cross-examined "Mrs Spathis about her husband buying and selling … cars which were never registered in his name." 180 The third item was put thus: "Counsel also failed to challenge Mrs Spathis upon her historical recollection of Mr Spathis' anti-social behaviour. (Her knowledge of Mr Spathis' past ie rock and roll bands, a girlfriend who was addicted to drugs who played in the band etc)."

181 The possession of an unregistered car is not unlawful. Only its use on the road is. Participation in rock and roll bands is not of itself discreditable. The circumstances in which having as one's girlfriend a drug addict who played in a rock and roll band would affect one's good character, particularly one's character as far as testimonial credibility is concerned, would have to be precisely defined and are likely to be somewhat confined. And while dishonest dealing in mobile telephones is not creditable, it is very likely that the trial judge would have rejected questions directed to Mr Spathis in the terms identified either in the exercise of his discretion under s 135 or in the exercise of his duty under s 137 of the Evidence Act 1995. Even if the questioning had been permitted, Mr Amor-Smith, had he turned his mind to it, which is unlikely in view of the far-fetched and indeed pointless nature of Patsalis' suggestions, would have formed the view that the questioning would have been counter-productive, since it was likely to increase jury sympathy for Spathis and reduce it for Patsalis. 182 It is noteworthy, incidentally, that Patsalis never cross-examined Spathis on the three matters he contends Mrs Spathis should have been cross-examined on. That shows that this thought of Patsalis is no more than an afterthought.

Mr Amor-Smith's failure to call witnesses to contradict Mr Stratikopoulos and Spathis 183 Patsalis submitted that Mr Amor-Smith should have called witnesses to contradict Mr Stratikopoulos and Spathis. He did not, however, identify them (apart from Mr Aroney, Operational Manager of The Three Swallows Hotel). Nor did he identify the subject-matter of their evidence, except for citing a reference which Mr Amor-Smith made to "several witnesses to be called in relation to Mr Patsalis being at The Three Swallows Hotel in the bistro area during 1996" before Patsalis' case closed (see 2002 lines 23-25; see also 1608 lines 43-45, 1613 lines 6-17 and 1871 lines 3-10). After 26 August 1999 they were not mentioned again before the case did close. Patsalis has not established either by direct submission to this Court or by cross-reference to what Mr Amor-Smith said how the failure to call any evidence of this kind created any possibility of a miscarriage of justice. The examples which Patsalis gave are peripheral or have been dealt with earlier or both.

Mr John Spathis 184 Patsalis submitted that Mr John Spathis was important because he was the supplier of the cigarettes to be purchased by the victim, because his name was recorded as being involved in the cigarette business in the victim's letter to be opened after 11pm on 11 April 1996 (Exhibit AX) and because on 12 August 1999 the jury asked to see a transcript of his cross-examination on 11 August 1999. Patsalis submitted that had a "detailed and precise cross-examination" of Mr Stratikopoulos and Mr Spathis taken place, it would have illustrated "how the witnesses weaved and tailored their testimony to accord and fit with the objective facts", and "the means and lengths to which the wife and person friend/business partner were willing to lie, embellish, tailor and manufacture their testimony …". Patsalis then submitted that this in turn: "would have laid the foundation for the jury to be more diligent when assessing and evaluating the evidence of other family members of Mr Alexios Spathis and in particular the evidence of Mr John Spathis. It would also allow counsel a foundation upon which he would later be able to use whilst cross-examining Mr John Spathis." However, Patsalis did not demonstrate that any cross-examination of Mr John Spathis which did not take place would have created any greater possibility of acquittal. 185 Mr Amor-Smith was also criticised for not making an application under s 106(a) of the Evidence Act 1995: but Patsalis did not identify the evidence of bias or motive for untruthfulness to which the application would have related. 186 Mr Amor-Smith was criticised for not cross-examining Mr John Spathis about lending $5,000 to Spathis, putting this line of questioning to Mr Anastasios Spathis, and having to have Mr John Spathis recalled. No prejudice was caused. The proposition that Spathis borrowed "from his father, sister and other relatives" derives from Patsalis' record of interview. Spathis' father denied not only a $5,000 loan but a $1,000 loan. Mr John Spathis, when he was asked about the $5,000 loan, denied it. The fact that before this Patsalis was asked one question in cross-examination by Spathis' counsel to the effect that Mr Amor-Smith had not questioned Mr John Spathis about the loan cannot have had any impact on the jury's assessment of Patsalis' credibility, particularly after Mr John Spathis' recall. 187 There were numerous subjects on which Patsalis said Mr Amor-Smith should have cross-examined Mr John Spathis. It has not been shown that any of this cross-examination would have created the possibility of acquittal.

Spathis' exploitation of Mr Amor-Smith's failure to question witnesses 188 Patsalis submitted that during the summing up counsel for Spathis continually asked the trial judge to remind the jury that various witnesses were not challenged on particular matters. Some of these requests were declined because the points were trivial. Other contentions were rejected (e.g. the contention that Patsalis should not have submitted that Mrs Spathis was trying to do her best for her husband) because she had been given an opportunity to deal with the proposition that she was colouring her evidence to assist her husband. No prejudice in this respect has been shown to flow from the nature of Mr Amor-Smith's cross-examination which was either defensible or, as the trial judge specifically noted during the arguments which occurred in the course of the summing up in relation to Mrs Spathis, explicable by his extremely recent arrival in the case.

Exhibit 7B 189 Patsalis submitted that Mr Amor-Smith failed to deal properly with evidence of a call made on 8 March 1996 at 2.23pm by the victim from the Parramatta area to The Three Swallows Hotel. Patsalis suggested that this established a link between the victim and Spathis. That is speculative, since it has not been shown that the victim did not know other people at the hotel. In any event, the evidence was before the court. Even if it did establish the link suggested, that would not have assisted Patsalis, partly because of the evidence of Patsalis' links with the victim and partly because of the strength of the evidence against him on 11 April 1996.

Mr Grisdale and Mr Haniotis 190 Patsalis criticised Mr Amor-Smith for not cross-examining Mr Grisdale (who had dealings in tobacco with the victim) and Mr Haniotis (an habitué of the coffee shop at 12B Restwell Street, Bankstown). None of the questions suggested could have improved Patsalis' chances of acquittal.

Conclusion on conviction 191 None of the arguments advanced by Patsalis in support of his appeal against conviction succeed.

The position of counsel 192 Neither Mr MacGregor nor Mr Amor-Smith was called to give evidence. No-one represented their interests on the appeal. In these circumstances it is appropriate to say the following. There is no doubt that for both Mr MacGregor and Mr Amor-Smith the trial was most burdensome - because of the nature of the case, because of their late arrival in it, and because Patsalis must have been a difficult client. There is also no doubt that Mr MacGregor and Mr Amor-Smith each put his best efforts into protecting Patsalis' interests. Lest the reasoning set out above leaves any doubt about it, it should be recorded that nothing in Patsalis' challenge to their performance supports any suggestion that Patsalis received less than professional and capable service. Though it is not necessary to reach any conclusion about this, there are grounds for thinking that he received more than that.

Sentence 193 Patsalis submitted that the sentence was in itself too severe; that there was a lack of parity in relation to Spathis' sentence; and that the trial judge failed to take into account the assistance he gave to the police. 194 So far as Patsalis' assistance to the police is concerned, the trial judge's reasons for not discounting the sentence have already been set out. Patsalis did not advance specific arguments demonstrating error in that reasoning. The trial judge was entirely entitled to conclude that Patsalis' decision to go to the police was not motivated by a desire to assist the police in solving the crime but to ensure that Spathis, and only Spathis, could be blamed for it. The trial judge was entitled to conclude that though Patsalis' dealings with the police helped them in relation to Spathis, his account to them was untruthful, incomplete and unreliable. 195 The other two arguments were supported in part by references to authorities on parity and on the standard of proof, and in part by a repetition and development of some earlier arguments. Patsalis submitted that the trial judge erred in his fact finding in part because of the alleged incompetence of counsel. The primary errors alleged related to the extent to which Patsalis knew the victim, to the personal characteristics of the victim, and to the role of Mr John Spathis. Patsalis also pointed out that the Crown had not submitted that there was any difference in the culpability of each accused. 196 The trial judge based his findings of fact both on what was necessarily implicit in the jury verdict and on his own impressions. Both the jury verdict and the trial judge's impressions were based on a judgment of the credibility of numerous witnesses. No convincing reason has been assigned for doubting the trial judge's findings. 197 It follows that the sentence in itself was not excessive for so serious a crime and it follows that the conclusions on which the trial judge based the difference in sentences are not assailable. Once those conclusions are accepted, the difference between Patsalis' sentence and Spathis' sentence is not such as to leave Patsalis with a justifiable sense of grievance. The trial judge was entitled to reach a different view as to relative culpability from that which the Crown put to him.

Spathis appeal 198 I agree with the reasons of Carruthers AJ.

Orders 199 The following orders are proposed in Patsalis' appeal. 1. The appeal against conviction is dismissed.

The application for leave to appeal against sentence is dismissed. 200 The following orders are proposed in Spathis' appeal. 1. The appeal against conviction is dismissed.

The application for leave to appeal against sentence is dismissed. 201 CARRUTHERS AJ: With regard to the appeal by Michael Patsalis I agree that the appeal should be dismissed for the reasons expressed by Heydon JA whose judgment I have had the benefit of reading in draft form. I also agree that Patsalis should be refused leave to appeal against sentence for the reasons expressed by his Honour. 202 I turn then to the appeal against conviction by Alexios Spathis. As the relevant background facts are set out in the judgment of Heydon JA, it is not necessary for me to repeat them here, except where reference to specific facts is essential. 203 The first ground of appeal (as amended) of the appellant Spathis is in the following terms: - "The Appellant received an unfair trial in that the felony murder charge should have been left as an alternative count in the indictment to mens rea murder, and as a consequence the trial judge failed to properly or adequately direct the jury as to the ingredients of each offence." 204 The indictment in this matter reads as follows: - "On 10th June 1999 the Director of Public Prosecutions on behalf of Her Majesty charges that Michael Patsalis and Alexios Spathis on 11 April 1996 at Sydney in the State of New South Wales did murder Klaus Peter Ludwig." 205 This count was of course laid under the provisions of s 18 of the Crimes Act 1900, as amended, which section is in the following terms: - "Murder and manslaughter defined 18. (1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his or her own defence." 206 Bearing in mind that the Crown had no independent direct evidence of what actually transpired within the cabin of the truck at the time Mr Ludwig (to whom I shall hereafter refer as "the victim") was fatally stabbed, it was necessary that the Crown formulate its case on alternative bases. Necessarily, felony murder had to be one of the alternatives. It is of course well established that where the essential facts upon which the Crown relies show a clear case against the accused, the Crown may rely on alternatives. The appellant does not challenge that proposition. As is clear from the formulation of the above ground, his contention is that as one of the alternatives upon which the Crown sought to base its case of murder was that of felony murder, that alleged basis of liability should have been the subject of an alternative count in the indictment to what was described as mens rea murder. The appellant contends that the failure to do so by the Crown occasioned him unfairness to such an extent that the conviction should be set aside. 207 It is convenient then to note the way in which the Crown opened its case to the jury. The first limb was described as one of individual responsibility or liability and categorised as mens rea murder. That is to say, in relation to each accused, the Crown alleged that the accused was guilty of murder on the basis that the death of the victim was caused by an act done by the accused himself, namely stabbing the victim, and that act was done with the intention of killing or inflicting grievous bodily harm upon the victim. 208 The second limb was that of joint responsibility. It was based upon the concept of a joint attack by the accused with a common intention to kill or inflict grievous bodily harm upon the victim. 209 The next limb was a common intent to rob the victim in company, during which robbery the victim was wounded, albeit there was no specific intent to kill the victim. That then was felony murder, with a foundational offence of (bare) robbery in company. By the time his Honour summed up to the jury, the Crown had identified armed robbery with wounding under s 98 of the Crimes Act as the foundational crime. The "felony murder" provisions in s 18 displace the common law principles. Accordingly, a preferable expression is "constructive murder". However, as his Honour and counsel throughout the trial, and on this appeal, used the term "felony murder", I will, for the sake of consistency, use that expression in this judgment. 210 During the course of the summing up, his Honour provided the jury with written directions which embraced the various alternatives of criminal liability posited by the Crown. Counsel for all parties agreed to the form of the written directions. Those directions are in the following terms: - " MURDER WITH INTENT

As to each accused - The accused is guilty of murder if it has been proved beyond reasonable doubt:

(a) that the death of Klaus Peter Ludwig was caused by an act done by the accused himself, namely stabbing him; and

(b) that that act was done by him with the intention to kill or inflict grievous bodily harm.

If two people together attack a third person, with similar weapons, and in a similar fashion, and with a common intention at the time of the attack, to kill or inflict really serious injury upon that person, and one inflicts a fatal wound, then, even though it is not possible to determine which of the two inflicted the fatal wound, both will be guilty of murder.

Joint criminal enterprise - (1) The law is that where two persons carry out a joint criminal enterprise each is responsible for the acts of the other in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two (or more) persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime is committed. The circumstances in which two (or more) persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) If the agreed crime is committed by one or other of the parties to that joint criminal enterprise, or if each played some part in committing that crime, each party is equally guilty of the crime regardless of the part he played in its commission. (4) If, instead of the agreed crime, another crime is committed by one or other of the parties to that joint criminal enterprise, or if each played some part in committing that other crime, each party is equally guilty of that other crime regardless of the part played by him in its commission provided that the Crown also establishes that the parties to that enterprise had contemplated that other crime as a possible incident in the execution of the agreed crime. It does not matter that the crime committed does not correspond in every detail with that contemplated by the parties. What must be contemplated by the parties is the substantial risk, not merely a slender chance, that it will be committed. (5) If, instead of the agreed crime, another crime is committed by one or other of the parties to that joint criminal enterprise, all parties are equally guilty of that other crime regardless of the part played by each in its commission provided that the Crown has also established that: (a) the accused had contemplated that other crime as a possible incident in the execution of the agreed crime, and (b) that, with that state of mind, he had continued to participate in the enterprise even though he may have expressly rejected any agreement that that other crime be committed. It does not matter that the crime committed does not correspond in every detail with that contemplated by the parties. What must be contemplated by the parties is the substantial risk that it will be committed, not merely a slender chance. (6) A person participates in a joint criminal enterprise either by himself committing the crime charged itself or, with knowledge that the crime is to be committed, by intentionally assisting or encouraging another party to the joint criminal enterprise to commit that crime. (7) The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the agreed crime.

He is guilty of murder if it has been proved beyond reasonable doubt that:

(a) his co-accused stabbed Klaus Peter Ludwig; and (b) his co-accused, at the time when he stabbed Klaus Peter Ludwig had the intention of killing him or inflicting grievous bodily harm; and

(c) he was party with his co-accused to a joint criminal enterprise (ie, a plan or a scheme), one object of which was to kill or inflict grievous bodily harm upon Klaus Peter Ludwig.

He is guilty of murder if it has been proved beyond reasonable doubt that:

(a) his co-accused stabbed Klaus Peter Ludwig; and (b) his co-accused, at the time when he stabbed Klaus Peter Ludwig, had the intention of killing him or inflicting grievous bodily harm; and

(c) he was party with his co-accused to a joint criminal enterprise (that is a plan or a scheme), one object of which was to rob Klaus Peter Ludwig; and

(d) being aware that his co-accused was armed with an offensive weapon, namely a knife, he was also aware that there was a substantial risk that, in the course of the robbery, his co-accused might stab Klaus Peter Ludwig, with the intention of killing him, or inflicting grievous bodily harm.

Elements of the foundational felony - 1. In order to prove that the accused is guilty of felony murder, the Crown must prove beyond reasonable doubt the elements of the offence of robbery whilst armed with an offensive weapon with wounding. 2. The elements of the offence of robbery whilst armed with an offensive weapon with wounding are: (a) an act done with intent to steal; and (b) the use of an offensive weapon to inflict force or to convey the threat of force so as to procure the submission of the victim; and

(d) that immediately before, during, or immediately after the robbery, the victim was wounded. 3. Whether something is "an offensive weapon" depends upon the type of weapon (in this case a 5 inch or 7 inch knife), and the intention of the carrier or user. What might, in other circumstances, be a domestic item, may become an offensive weapon where it is used for an aggressive purpose to threaten or inflict injury. 4. A person is "armed with an offensive weapon" if the offensive weapon is ready for use.

Accused did the Stabbing He is guilty of murder if it has been proved beyond reasonable doubt that: (a) he inflicted the stab wounds that killed Klaus Peter Ludwig; and

(b) he did so immediately before, during, or immediately after the commission by himself and/or his co-accused of the offence of robbery while armed with an offensive weapon.

He is guilty of murder if it has been proved beyond reasonable doubt that: (a) his co-accused inflicted the stab wounds that killed Klaus Peter Ludwig; and (b) the stab wounds were inflicted immediately before, during, or immediately after the commission by himself and/or his co-accused of the offence of robbery while armed with an offensive weapon; and

(c) being aware that his co-accused was armed with such a weapon, namely a knife, he was aware that there was a substantial risk that his co-accused might immediately before, during or immediately after the commission of the robbery, stab Klaus Peter Ludwig, seriously injuring him or killing him.

Undecided as to Who did the Stabbing He is only guilty of murder if it is proved to your satisfaction beyond reasonable doubt: (a) That there was a joint criminal enterprise between both accused to rob Klaus Peter Ludwig of the money he was carrying; and

(b) That at least one of the accused was carrying a knife; and (c) That one of the accused, either Mr Patsalis or Mr Spathis, stabbed Klaus Peter Ludwig, and the other was present when he was stabbed; and (d) That the person who stabbed the deceased did so with the intention of killing him or inflicting grievous bodily harm; and (e) That the stab wounds were inflicted immediately before, during, or immediately after the robbery of Klaus Peter Ludwig; and (f) That the one who did not do the stabbing either agreed to the stabbing, or was aware that: (i) his co-accused was carrying a knife at the time of the robbery; and (ii) there was the possibility, amounting to a substantial risk, that in the course of the robbery, the co-accused may stab Klaus Peter Ludwig, thus wounding him, and yet continued to participate in the enterprise. In the circumstances identified in 3, both are guilty of murder, even though you may be uncertain as to either:

At a glance

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Judgment (259 paragraphs)

Legislation Cited (3)

Cases Cited (38)