Court of Appeal (Qld)|2008-10-10|Before: McMurdo P, Mackenzie AJA and Atkinson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
McMurdo P, Mackenzie AJA and Atkinson J, Separate, reasons for judgment of each member of the Court, each concurring as to the
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
UNREASONABLE OR
INSUPPORTABLE VERDICT – defence admitted at trial that a man called Cullen
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –UNREASONABLE ORINSUPPORTABLE VERDICT – defence admitted at trial that a man called Cullenkilled the deceased person by stabbinghim with a knife – prosecutionadmitted at trial that the appellant was not present at the killing – theprosecutioncase against the appellant relied on s 7(1)(b), s 7(1)(d) or s 8Criminal Code – appellant and others discussed Cullen giving thedeceased a lethal injection of drugs called a "hot shot" – the methodofkilling discussed prior to the offence was not the method ultimately used byCullen – circumstantial evidence linking theappellant with Cullen –judge directed jury on s 7(1)(b), s 7(1)(d) and s 8 Criminal Code –whether it was open to the jury to find that the common unlawful purpose under s8 was to do serious harm to the deceasedby whatever means seemed appropriate to
Cullen – whether the guilty verdict was unreasonable or cannot be
supported having
regard to the evidence
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY –
used term "the offence" in directing the jury on s 7(1)(b), s 7(1)(d), s 8 and s
9 Criminal Code – judge directed on s 9 after explaining s 7(1)(b)
and s 7(1)(d) and before discussing s 8 – whether, in the light of
s 2
Criminal Code, the judge ought to have particularised the act constituting
"the offence" for the jury – whether the judge's directions were
unclear
as to how the jury could use s 9 – whether the judge misdirected the jury
on s 7(1)(b), s 7(1)(d) or s 8 Criminal Code
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS
NOT RAISED IN COURT
BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES –
Cullen gave two statements to the
police that differed on some details of the
killing – Cullen's second statement said he withheld information in the
first statement
because the appellant threatened him – prosecution did not
rely on the evidence of threats as showing a consciousness of guilt
on behalf of
the appellant – defence counsel did not ask for the jury to be given an
Edwards direction – whether an Edwards direction was
appropriate
CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO
WITNESSES AND ACCUSED PERSONS – CORROBORATION –
DIRECTION OF JURY
– ADEQUACY OF WARNING – Cullen had made inconsistent statements to
police – Cullen was an accomplice
of the appellant on his evidence –
Cullen was declared a hostile prosecution witness at trial – judge
directed the jury
that it would be dangerous for them to convict on Cullen's
evidence unless it were corroborated by independent evidence – judge
directed that lies told by the appellant in police interviews could not be used
to infer guilt – whether the judge should have
clearly identified all
potential lies told by appellant which could be used to corroborate Cullen's
evidence – whether such
a direction would have been favourable to the
defence
Criminal Code 1899 (Qld), s 2, s 7(1)(b), s 7(1)(d), s 8, s 9,
s 632, s 668E(1)
Evidence Act 1977 (Qld), s 17
The Queen v Barlow (1997) 188 CLR 1
[1997] HCA 19,
considered
Conway v The Queen (2000) 98 FCR 204
[2000] FCA 461,
applied
Dhanhoa v The Queen (2003) 217 CLR 1
[2003] HCA 40,
applied
Edwards v The Queen (1993) 178 CLR 193
[1993] HCA 63,
distinguished
Giorgianni v The Queen (1985) 156 CLR 473
[1985] HCA
29, cited
M v The Queen (1994) 181 CLR 487
[1994] HCA 63,
applied
MFA v The Queen (2002) 213 CLR 606
[2002] HCA 53,
applied
R v Ancuta [1991] 2 Qd R 413
[1990] CCA 200, cited
R v
Anderson and Morris [1966] 2 QB 110, cited
R v Bellino and Conte
[1993] 1 Qd R 521
[1992] QCA
097, cited
R v Brien and Paterson [1999] 1 Qd R 634
[1998] QCA
70, cited
R v Johnston [2002] QCA
74, compared
R v Keenan [2007] QCA
440, distinguished
R v Smith (Wesley) [1963] 1 WLR 1200
[1963] 3
All ER 597, cited
Varley v R (1976) 51 ALJR 243, cited
Zoneff v
The Queen (2000) 200 CLR 234
[2000] HCA 28, applied
Judgment (542 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - defence admitted at trial that a man called Cullen killed the deceased person by stabbing him with a knife - prosecution admitted at trial that the appellant was not present at the killing - the prosecution case against the appellant relied on s 7(1)(b), s 7(1)(d) or s 8 Criminal Code - appellant and others discussed Cullen giving the deceased a lethal injection of drugs called a "hot shot" - the method of killing discussed prior to the offence was not the method ultimately used by Cullen - circumstantial evidence linking the appellant with Cullen - judge directed jury on s 7(1)(b), s 7(1)(d) and s 8 Criminal Code - whether it was open to the jury to find that the common unlawful purpose under s 8 was to do serious harm to the deceased by whatever means seemed appropriate to Cullen - whether the guilty verdict was unreasonable or cannot be supported having regard to the evidence
[2]
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - STATUTORY PROVISIONS - CODE PROVISIONS - judge used term "the offence" in directing the jury on s 7(1)(b), s 7(1)(d), s 8 and s 9 Criminal Code - judge directed on s 9 after explaining s 7(1)(b) and s 7(1)(d) and before discussing s 8 - whether, in the light of s 2 Criminal Code, the judge ought to have particularised the act constituting "the offence" for the jury - whether the judge's directions were unclear as to how the jury could use s 9 - whether the judge misdirected the jury on s 7(1)(b), s 7(1)(d) or s 8 Criminal Code
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - Cullen gave two statements to the police that differed on some details of the killing - Cullen's second statement said he withheld information in the first statement because the appellant threatened him - prosecution did not rely on the evidence of threats as showing a consciousness of guilt on behalf of the appellant - defence counsel did not ask for the jury to be given an Edwards direction - whether an Edwards direction was appropriate
[4]
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - DIRECTION OF JURY - ADEQUACY OF WARNING - Cullen had made inconsistent statements to police - Cullen was an accomplice of the appellant on his evidence - Cullen was declared a hostile prosecution witness at trial - judge directed the jury that it would be dangerous for them to convict on Cullen's evidence unless it were corroborated by independent evidence - judge directed that lies told by the appellant in police interviews could not be used to infer guilt - whether the judge should have clearly identified all potential lies told by appellant which could be used to corroborate Cullen's evidence - whether such a direction would have been favourable to the defence
[5]
Criminal Code 1899 (Qld), s 2, s 7(1)(b), s 7(1)(d), s 8, s 9, s 632, s 668E(1)
Director of Public Prosecutions (Queensland) for the respondent
[24]
[1] McMURDO P: The appellant, John George Weisz, was convicted on 13 September 2007 after an eight day trial in the Supreme Court at Brisbane of murdering Daryl Graeme Swinton on 21 October 2004. He appeals against his conviction. Mr P J Davis SC, who appears for Weisz, contends that the trial judge erred in a number of ways. First, he submits the judge did not give any directions as to the use to be made of, and the limitations of, the evidence of Philip Gary Cullen that, after he gave his first statement to police, Weisz threatened him.[1] Mr Davis's second submission is that the judge did not adequately warn the jury about relying on Cullen's evidence in that they were not directed as to what evidence was, and was not, capable of corroborating it.[2] His third submission is that the judge did not give adequate directions to the jury in relation to s 7 and s 8 Criminal Code 1899 (Qld).[3] Mr Davis also contends Mr Weisz's conviction is unsafe and unsatisfactory as it was not open to the jury to convict him either under s 8; or s 7(b); or s 7(d) with the aid of s 9 Criminal Code.[4]
[25]
[2] The prosecution case was that Cullen murdered Swinton by intentionally killing him by stabbing him with a knife and that Cullen did this at the direction of Darren Flanagan, Michael Thompson and Weisz (sometimes known as "Yuckie Truckie") because Swinton was indebted to Flanagan for drug purchases. Weisz's trial proceeded only against him.
[26]
[3] The defence made the following admissions. On 21 October 2004 at around 2.30 pm, at Munruben, Cullen murdered Swinton by stabbing him with a knife.[5] Records of Sunstate Travel in Maryborough show that on 14 October 2004 Swinton booked a bus ticket to travel from Maryborough to Brisbane on 15 October 2004.[6] Records of Sunstate Travel in Maryborough show that on 20 October 2004 a ticket for Swinton to fly from Maryborough to Brisbane on 21 October 2004 was paid for by Swinton's father, Graeme Swinton.[7] Toxicology records from blood taken from Swinton after his death show no traces of illegal drugs in his system.[8] The prosecution admitted that at the time of the murder Weisz was not present at the scene of the murder.[9]
[27]
The grounds of appeal relating to Cullen's evidence of Weisz's post-offence threats[10]
[28]
[4] Cullen pleaded guilty on 7 November 2006 to murdering Swinton on 21 October 2004 and was sentenced to mandatory life imprisonment. He was a key prosecution witness in Weisz's trial. Cullen provided two statements to police, the first on 15 November 2004 and the second on 1 December 2006. In both statements he admitted intentionally killing Swinton by stabbing him with a knife. Paragraph 4 of his second statement recorded:
[29]
"When providing my original statement I withheld this information because I was in fear of my safety, and scared for my life. I had continually received threats against myself and my family from Michael Thompson and Yuckie Truckie. I was and still (sic) in fear of these persons and afraid that they may try and seek some sort of revenge against me."
[30]
[5] In his evidence at trial, Cullen claimed that, because of his long-term drug abuse, he could not recall the events surrounding his killing of Swinton. The primary judge did not accept his claim of lost memory, considered him an adverse witness and declared him hostile. Her Honour gave leave to the prosecutor, Mr Edwards, to cross-examine Cullen about the contents of his statement of 15 November 2004 "subject to any further application made by the defendant to exclude any parts of that statement on the basis that the prejudicial value outweighs the probative value." The statement was tendered.[11] Her Honour also reserved the issue of whether to give leave to Mr Edwards to cross-examine Cullen about his statement of 1 December 2006 because it related almost entirely to an alleged co-offender, "Thompson's involvement at the time of the killing and on that basis paragraph 4 ... may be unfairly prejudicial ... as the balance of the statement is unlikely otherwise to be relevant." Her Honour noted that, on the other hand, the prosecution should not split its case.
[31]
[6] Counsel for Weisz at trial, Mr Nolan, foreshadowed that he might cross-examine on the statement of 1 December 2006. Mr Edwards indicated that, if so, he would tender the statement. Mr Nolan stated that he probably would cross-examine Cullen about his second statement because it showed that Weisz had given a later statement inconsistent with his first statement and this would benefit Weisz's case. Mr Nolan told the judge not to "worry about ruling on that. I can tell you now that in all probability I will cross-examine on every bit of it." If so, he said he would either tender it or ask Mr Edwards to tender it. Mr Edwards indicated that, in that eventuality, he would tender the statement.
[7] In his statement of 15 November 2004, Cullen told police the following. He came to know Flanagan as a supplier of the drug known as "speed". Cullen often purchased speed from him in the Rocklea area, usually two to three times a week and sometimes daily. Cullen's drug habit got out of hand. When Cullen did not have cash, Flanagan would provide the drugs "on tick". In about mid-2004 Cullen met Thompson and Weisz, whom he knew as "Yuckie". At about this time, Cullen lost his job at the meatworks because of his drug abuse and he had trouble paying his drug debts to Flanagan. Flanagan pressured Cullen to repay him saying he needed the money to pay others. Cullen began to sell speed on Flanagan's behalf to make money to repay Flanagan, although he used most of the drugs himself. When Flanagan realised Cullen was using the speed instead of selling it he was "pretty pissed". Flanagan said, "Hurry up and get the money or bad things will come of it". Weisz was present and added, "Yeah. Real bad things." Cullen understood that Weisz was Flanagan's debt collector. Cullen described him as "a very hairy and ugly looking sort of man. He has a long beard, is sort of fat".
[34]
[8] One night Cullen heard Weisz say to Flanagan, "I will be your debt collector [Flanagan] and I can go around and collect the money off people who owe you on tick." Cullen moved out of accommodation he was sharing with a family because the father was worried that something bad might happen in front of his young children. He lived in his car for about three weeks. Flanagan and Weisz began to increasingly "hassle" him about money. Thompson tried to help him by letting him park his car in his driveway; he provided Cullen with food and helped keep Flanagan and Weisz off Cullen's back. Both Flanagan and Weisz continued to pressure Cullen. On one occasion Weisz said, "If you don't come up with some money soon, you are going to cop a flogging". In the meantime, Thompson looked after Cullen by providing him with free speed and by keeping the others away.
[35]
[9] On Tuesday, 19 October 2004 at about 10.30 pm or 11 pm he was in the back seat of Thompson's car when Thompson drove into Pacific Petroleum at Rocklea. Thompson's girlfriend, Natalie, was in the front passenger seat. Thompson went over to Flanagan and Weisz. After a while Thompson called Cullen over. Flanagan said, "We have got a job for you to do to clear your bill." He thought this would involve running some drug deliveries, selling speed or purchasing oil on a stolen fuel card. Cullen stayed with Thompson and Natalie that night.
[36]
[10] Early the next morning they booked into a motel. Cullen was driving one of Thompson's cars because his own was not registered. That night, he drove to the BP Rocklea to buy some speed from Flanagan. Flanagan was parked on a side street. Flanagan said he did not have any speed but he would have some later. Flanagan added, "You know about that job to clear you debt. There is a bloke getting dropped off at the airport tomorrow. I want you to go and get him and give him a hot shot and get rid of him." He then looked at Cullen "straight in the eyes" and said, "Don't fuck it up."
[37]
[11] Cullen returned to Thompson and Natalie in the motel room and said, "That job that I gotta do for [Flanagan] and that. I have to get rid of someone." Thompson said, "Alright. Who is it?" Cullen responded, "I don't know at the moment." Thompson replied, "Alright then let's go and see them." All three then drove off to see Flanagan. On the way, Thompson said, "What have you got to do?" Cullen responded, "I don't know what the whole go is. All I know is that I got to give someone a hot shot. I don't know who he is or what he looks like but I know it's a male." Thompson said, "OK, no worries."
[38]
[12] They pulled up behind Flanagan and Weisz, who were standing at the rear of Flanagan's truck. Thompson and Cullen got out of the car but Natalie stayed in it. Cullen said, "What the fuck is going on?" Flanagan said, "There is a bloke pulling up at the airport tomorrow called [Swinton]. I want you pick him up and give him a hot shot and then get rid of him." Cullen said, "Who the fuck is he?" Weisz said,
[39]
"You can follow [Thompson] over and [Thompson] will pick him up for you and then you can go and do it. There will be three syringes. The first one will be [Thompson's], the second one will be marked, which is [Swinton's], which is the hot shot and the third one will be your own. Make sure you don't fuck it up or you will be next. I guarantee you that you will be next if you fuck it up."
[40]
Cullen was in shock. Flanagan said, "[Thompson], I will get the hottie for you tonight." Thompson said, "Yeah, not a problem." Weisz said, "I will call youse in the morning."
[41]
[13] Thompson and Cullen walked back to the car. Cullen said, "I really don't want to do this." Thompson said, "You've got no choice now." Cullen said, "That's just fuckin' great." They returned to the motel room. Thompson said that he and Cullen would go over to the airport at about 9.30 or 10.00 in the morning. They each had some speed. Thompson fell asleep. At about 7.30 am Weisz called on Thompson's mobile which Cullen answered. Weisz asked, "Where's [Thompson?]" Cullen said he was asleep and he could not wake him. Weisz said, "Hurry up and get the fuck over there before he gets a cab or some other way to leave the place." Cullen said he would again try to wake Thompson. Weisz said "Ok then I will ring back."
[42]
[14] About 45 minutes later, Weisz rang back and spoke to Thompson. Thompson then told Cullen and Natalie, "Get all our shit together, we got to go." They packed their belongings into the two cars. Thompson and Natalie went in the blue car and Cullen drove the silver car. They met up in front of some shops near Breakfast Creek. Cullen asked Thompson about the hot shot but Thompson said he did not have one. Cullen asked what would he do. Thompson replied, "Take him for a drive." Cullen said he did not know the area. He took a street directory from Thompson's car. Natalie said, "I know a place where you can go where there is some abandoned houses. There was a murder there about twelve months ago where they found someone that had been murdered. You will find somewhere down there." She pointed to Norris Creek Road in the street directory and marked the page with a piece of paper. Cullen understood Thompson to be suggesting that he should take Swinton away from the airport and kill him. Thompson said, "Follow me to the airport and then get out of the silver car and get into my car and I will take you around there to go and pick him up."
[43]
[15] Cullen followed Thompson's car to the airport memorial where they both pulled over. Cullen left the silver car and transferred to the back seat of the blue car. Thompson drove the blue car to the airport. He told Thompson he did not want to do "this". Thompson said, "If you don't they are going to get pretty nasty with ya." They drove around until Swinton walked towards them. Swinton got into the back seat and said, "How are you going mate?" Thompson said, "Yeah, alright." They then drove back to the memorial. Thompson said, "Just go for a walk around and look at the monument because there is a heap of under cover cops around." Cullen and Natalie got out of the car. Swinton went with Thompson. Natalie said to Cullen, "[Thompson] said to just walk around and look at the monument because there are a heap of cops here." After a while they all got back into Thompson's car and drove to a service station nearby. At Thompson's direction, Cullen took Swinton into the toilet to make sure he was not wearing a wire. Thompson continued to be concerned about "cops hanging around". Swinton enquired about his "laptop and other stuff". Thompson said, "It has been moved out to an abandoned place at Norris Creek Road." Thompson told Swinton to go with Cullen, adding, "he will take care of you."
[44]
[16] Thompson left with Natalie. Swinton and Cullen caught a taxi back to the silver car. Swinton told Cullen to pull up at a service station for petrol in case they did not have enough. They stopped for petrol for which Swinton paid. Cullen drove Swinton out to Munruben. There was very little conversation on the way. Cullen decided what he was going to do. He would use a knife which was in the back of the car. It was part of a set he owned from his time working at the meatworks.
[45]
[17] They eventually stopped at an abandoned house in Mahogany Drive, Munruben. Cullen told Swinton to go one way and he went the other. Cullen took the knife from the car and put it down the side of his pants. Swinton bent down to look at some property. Cullen leant over and, using his left hand, brought the knife across Swinton's throat from right to left, cutting it. Swinton ran off. Cullen chased him because Swinton was still alive. He claimed he did not want Swinton to be in pain. When he caught him he stabbed him in the chest. Cullen thought he saw someone and ran back towards the car. As he ran off he cut himself on the right arm with the knife which he was carrying in his left hand.
[46]
[18] Cullen drove as fast as he could away from the scene. He changed his clothes at the side of the road because he had blood on his shorts. He met up with Flanagan and said, "It's done and do you have any gas on ya?" Flanagan said he would have some at 6.00 pm. Cullen then went to the BP at Rocklea where he met up with Weisz. Cullen said, "It's done." Weisz "seemed real happy about it" and said, "Oh, good." Thompson and Natalie then pulled up and he told them, "I have done it." Cullen had something to eat and then dropped the knife and clothes in a 44 gallon drum used as a rubbish bin at Pacific Fuels, down the road from the BP. Weisz phoned Cullen and told him "You got to drop the car off to [Thompson's wife] and I will come and pick you up and drop you back out."
[19] As noted earlier,[14] in his second statement to police on 1 December 2006, Cullen said he had previously withheld information because he was scared for his life; he had continually received threats against himself and his family from Thompson and Weisz and was still afraid of them.
[49]
[20] He gave police further information including the following. When he woke up in the Kangaroo Point motel room, he discussed with Natalie and Thompson their problem: the plan was to kill Swinton with a "hot shot" but they did not have one. Cullen said, "What the fuck are we suppose[d] to do?" Thompson said, "Have you still got your knife?" Cullen responded affirmatively and Thompson replied, "That's what we will do. We will use them to kill him." When they drove from the airport memorial to the airport to pick up Swinton, they were all in Thompson's blue Ford XR6. Thompson was driving and Natalie was in the front passenger seat. Cullen was behind Thompson. Swinton got into the rear seat beside Cullen. They drove to a Shell service station near the airport. Cullen and Swinton went into the toilet where Cullen "patted him down to see if he was wearing a wire". They returned to the car. Swinton gave $1,000 to Cullen who handed it to Thompson. Thompson then drove them to the monument near the airport where the silver Ford XF was parked.
[50]
[21] Thompson, Cullen and Swinton transferred into the silver XF. Natalie moved to the driver's seat of the blue XR6. Cullen drove the silver XF with Thompson in the front passenger's seat and Swinton in the back. Natalie turned off the Gateway motorway in the blue XR6 and Cullen drove the silver XF over the Gateway Bridge to Munruben. Thompson and Swinton engaged in friendly conversation. Cullen followed the open street directory to Mahogany Drive, Munruben. He pulled into a driveway of a house which he thought was the one Natalie had referred to earlier that morning. The three men got out of the car and looked around the property. Cullen "started to get a bit spooked by the whole thing". They all got back in the car and drove around for a while time before returning to the same house. All three men again got out of the car. Cullen said, "We will have another look."
[51]
[22] Cullen had the knife with him which he had previously hidden under the car seat. The three separated and then met up at the back garden shed where Swinton was looking for his property. Thompson was outside the shed. Cullen reached across and cut Swinton's throat. Swinton ran past Cullen and Thompson towards a neighbouring property. Cullen chased after him. Thompson was right behind Cullen. Swinton fell onto his back on the ground. Cullen stabbed him several more times in the chest and neck. Thompson was standing right behind Cullen. When Cullen realised what had happened he stopped and ran back to the car. A short time later Thompson ran around from the side of the shed to the car. He said, "Get the fuck out of here."
[52]
[23] They both jumped into the car. Cullen drove off as fast as he could towards Brisbane. Thompson said, "It's done now mate. It's done. It's all over." Cullen saw he was covered in blood and had a cut on his arm. He stopped at a service station where he washed the blood off his arm. He returned to Thompson who had stayed in the car. They drove off and met up with Weisz.
[53]
[24] He said that, otherwise, his statement to police on 15 November 2004 was correct.
[54]
[25] As he anticipated, Mr Nolan cross-examined Cullen on his second statement of 1 December 2006. Cullen agreed he had used drugs heavily during his life, including at the time of the events discussed in his statements and that this had "fried [his] brain". Abuse of amphetamines, he agreed, could sometimes cause hallucinations; his "whole life's been a jumble for years". Cullen explained his understanding of the term "hot shot" as something that would "make you crook or kill you".
[55]
[26] He agreed that he had not given any reason why Weisz wanted revenge against him. He claimed that the police had pressured him into falsely implicating Thompson in the murder. Cullen said that he was scared and confused when he incriminated others in the murder. He agreed that he was pressured into making false statements implicating Weisz, Flanagan and Thompson. During cross-examination, Mr Nolan stated that he would be "asking the Crown to tender" Cullen's statement of 1 December 2006.
[56]
[27] In re-examination, the prosecutor acceded to Mr Nolan's request and tendered Cullen's statement of 1 December 2006.[15] Cullen said that his claim in that statement, that he had previously withheld information because he had been threatened by others including Weisz, was not true.
[57]
[28] Mr Davis contends that the learned primary judge erred in failing to give the jury any directions of the kind discussed in Edwards v The Queen[16] as to the limited use to be made of Cullen's evidence in his second statement to police of Weisz's post-offence threats. He submits that the judge should first have identified to the jury that part of Cullen's statement which contained the threats. The judge should then have told the jury that the fact that a threat may have been made does not mean that it automatically follows that Weisz was guilty, and that persons who are not guilty may very well make threats to avoid the risk of being charged with an offence.
[58]
[29] It is common ground that no such direction was given by the learned primary judge and nor was one requested by defence counsel.
[59]
[30] The prosecution case was not that Cullen's evidence in his second statement, that Weisz had threatened him after the killing, demonstrated a consciousness of guilt on Weisz's part. In his jury address, Mr Edwards referred only in passing to this aspect of Cullen's evidence.
[60]
[31] The present case is not within that category of cases where a direction of the sort discussed in Edwards is required. Cullen's evidence of Weisz's threats to him after the killing was not relied on by the prosecution as evidence of a consciousness of guilt on Weisz's part. Very little emphasis was placed on this aspect of Cullen's evidence at trial. In those circumstances, an Edwards direction was not only unnecessary but inappropriate: Dhanhoa v The Queen.[17] Had the judge given the directions now sought, it would have drawn the jury's attention to the evidence of Weisz's post-offence threats which had not been emphasised by Mr Edwards. In these circumstances, where there was a large body of admissible and persuasive evidence that Weisz was Flanagan's intimidatory debt collector, the direction the subject of these contentions was more likely to damage than to assist the defence case.
[61]
[32] I am not persuaded that the directions now contended for were necessary or that their absence has resulted in a miscarriage of justice. These grounds of appeal must fail.
[62]
[33] Before turning to the remaining grounds of appeal, it is necessary to set out in some detail other aspects of the evidence at trial.
[63]
(a) Evidence from others of Weisz's contact with Swinton before the killing
[64]
[34] The prosecution called evidence that, some time before the killing, Weisz had taken possession of Swinton's motor vehicle, apparently as some sort of security for Swinton's drug debt to Flanagan. Police officers gave Weisz traffic infringement notices on 3 and 5 October 2004 when he was driving Swinton's vehicle.
[65]
[35] On 12 October 2004 Thompson delivered Swinton's vehicle to his associate and fellow truck driver, Alan Hill. Hill took it to the house of a friend where it remained until collected by police after the murder.
[66]
[36] Luke Kitzelmann gave evidence that he saw Weisz with Swinton's vehicle about two weeks before the killing. Weisz told Kitzelmann that he had bought the vehicle from Swinton and offered to sell it to Kitzelmann for about $3,000. Earlier, Weisz gave Kitzelmann the vehicle to use when Kitzelmann had no fuel in his own car. Kitzelmann saw Weisz, Flanagan and Thompson remove items, including a lap top, mobile phones, clothes and gun cases, from Swinton's vehicle. They offered him anything he wanted from the vehicle.
[67]
[37] Kitzelmann also gave the following evidence. He was present when Weisz collected about $1,000 from Swinton at the Oxley Hotel-Motel. A week or two later he returned there with Weisz. Kitzelmann heard Swinton telling Weisz he had no money left. He heard Weisz and Flanagan discussing Swinton's use of "a couple of hundred dollars worth [of speed] a day". On one occasion, Kitzelmann used a vehicle belonging to Weisz to pick up Swinton. Flanagan, in Weisz's presence, instructed him to take Swinton to Maryborough, collect his gear and a tax cheque and then return him to a log cabin where someone would pick him up. In the end, he did not take Swinton to this log cabin because he decided something was not right. Instead, he took Swinton to a place where he was to be collected by a friend. Kitzelmann told Flanagan he had dropped Swinton at the log cabin. Kitzelmann then travelled around Australia for some months living out of his truck. He had no further contact with Weisz, Thompson or Flanagan.
[68]
[38] Weisz did not give or call evidence but his account of his involvement was before the jury. He gave police an exculpatory statement on 22 October 2004.[18] He was then interviewed by police over 13 hours on 25, 27 and 28 October 2004. Transcripts of the recordings of those interviews[19] were used by the jury as an aid when listening to them. Weisz gave rambling and contradictory accounts of the events preceding and following Swinton's killing which were partly exculpatory and partly inculpatory. To fairly deal with the remaining grounds of appeal and to give the real flavour and context, it is necessary to refer at length to these interviews.
[69]
[39] The transcript of the interview of 25 October 2004 was 127 pages long and concluded at 10.41 pm. Weisz gave police information, including the following. He had his own trucking business. He spent a lot of his time at Pacific Petroleum, Rocklea. On Saturday, 25 September 2004, he met a person, Daryl, who was known as "Ned" because he had a tattoo of Ned Kelly on his back. He later found out that Daryl was Swinton. Swinton had a Toyota four-wheel drive. He walked awkwardly because of an injury from an accident. His mind was "very scattered and schizzed out". Swinton said that he "escaped from a nut farm". Weisz decided he would spend that night in a nearby suburban motel and, because he felt sorry for Swinton, he asked him along. Swinton was acting very strangely and claimed that "some people were after him and trying to rort him or rip and that and inject him with some stuff or something."
[70]
[40] Weisz had used amphetamines for over 21 years, only stopping the previous Monday when his partner found drugs in a syringe belonging to him. He decided then that if he did not stop using drugs they would kill him.
[71]
[41] Weisz and Swinton continued to stay at the motel until Weisz left for work at 7.00 am on Monday 27 September. Swinton was expecting money to come through to him. Weisz drove Swinton's vehicle because it was more economical than Weisz's truck and Swinton did not want to drive. Swinton's four-wheel drive was full of his property and probably contained most of his belongings. He had two rifles in army camouflage carry cases.
[72]
[42] Weisz returned to the motel to see Swinton on the night of Monday 27 September. Swinton was interested in getting "dirty girls" but Weisz was not. Weisz left the motel in Swinton's vehicle and drove back to his truck which was parked at Rocklea. He spent that night in his truck.
[73]
[43] On Tuesday 28 September, Swinton telephoned him and told him his money had come through. Weisz returned to the motel room at about 6.30 pm. Swinton's mental state was steadily improving. Weisz spent Tuesday night again in his truck as he preferred this to the motel. His partner came to Brisbane on Wednesday 29 September and he stayed with her at a different suburban motel. Weisz continued to use Swinton's vehicle with Swinton's consent. Weisz cleaned the vehicle and fixed its tail lights and indicators. Weisz visited Swinton at the motel on Thursday 30 September and Friday 1 October after finishing work. Weisz understood the motel was paid up until Saturday 2 October.
[74]
[44] Weisz was driving Swinton's vehicle on Sunday 3 October near Warwick when he was pulled over by police for having a radar detector. At 2.10 am on 5 October 2004 he was driving Swinton's vehicle in Brunswick Street, Fortitude Valley, where police charged him with disqualified driving.
[75]
[45] On Wednesday 6 October, Swinton telephoned him and said he could not pay for the motel or the $50 phone bill. He said he had more money coming through at the end of that week. Weisz noted Swinton's four-wheel drive had gone and assumed Swinton had collected it. Weisz had left the keys under the mat inside the vehicle so that Swinton could take it whenever he wanted. Swinton telephoned him and told him he was at home with his dogs. Weisz understood Swinton lived about three hours drive away and assumed he lived in Gympie.
[76]
[46] Weisz denied knowing Flanagan. He knew a truck driver called "Mick" but claimed to be unaware of someone called Michael Thompson.
[77]
[47] The interviewer told Weisz that, on Sunday 3 October 2004, Swinton rang his father and said, "They've got my vehicle and everything, everything that's in it and the phones. To get it back I have to pay money." Weisz said he did not understand why Swinton would say this.
[78]
[48] The interviewer told Weisz that in Maryborough at 4.15 pm on 20 October 2004 Swinton made a phone call to Weisz's mobile number in the presence of Swinton's father and spoke about being picked up from Brisbane airport. The interviewer also told Weisz that Swinton kept a diary in which he had Weisz's mobile phone number. The diary noted, "$1000 owing to pick up toyota and all pozeshans".[20] Weisz said he knew nothing about this.
[79]
[49] When told that he had been seen with Flanagan, Weisz conceded that he knew him, although not by that name; he knew Flanagan as "Donkey". After being confronted with text messages recently sent to Flanagan's phone, he also conceded he knew Thompson, his wife, Maree, and her 14 year old daughter. The interviewer told Weisz that Swinton arrived at Brisbane airport at 8.07 am on Thursday 21 October 2004 (the day he was killed). Weisz agreed that he knew the person "Monk" short for "Monkey Boy". (It is common ground that this is Cullen.) Weisz conceded that he first met Swinton through Swinton purchasing drugs from Flanagan and that he had Swinton's vehicle after Swinton returned to Maryborough.
[80]
[50] Weisz then provided the following information. Flanagan told Weisz that Swinton owed him $1,000. Weisz was unable to meet Swinton at the airport and he arranged for Thompson and Cullen to meet Swinton and pick up the money. Thompson and Cullen had admitted to Weisz that Cullen had stabbed Swinton in the throat and the chest; Cullen was "skiting" about it. Weisz was shocked: he "just couldn't believe it". He asked Cullen why he did it. Cullen responded that it was because Swinton was a "rock spider". Weisz understood this to mean "[j]ust like a low life". Cullen appeared "jumpy, bouncy ... like he was under the influence of a drug ... amphetamines." Weisz went to his truck. He did not believe what Cullen had said. Thompson then arrived. He said he had the $1,000 from Swinton to give to Flanagan.
[81]
[51] The police interviews with Weisz continued on 27 October 2004 over almost four hours. After he was informed of his right to remain silent, he provided information, including the following.
[82]
[52] When he first met Swinton, Flanagan injected drugs into Swinton's arm. That night Swinton was very "scatterd-scitsy... frantic ... paranoid" about people, thinking they were after him. He was not sure what happened to Swinton's property in his four-wheel drive; Thompson took his fridge. Swinton owed Flanagan in excess of $3,000. Swinton came to Brisbane on an earlier occasion before his death and paid $2,300. Weisz's memory was not good because of his drug taking during this period. Whilst Weisz was staying at the motel with Swinton, he gave Weisz $1,200 to purchase a hand gun. Weisz understood from Swinton that Swinton believed others were chasing him for money and for his four-wheel drive. Weisz also understood the four-wheel drive was "under finance". Weisz claimed that at the time of Swinton's death, Swinton owed only $1,000 to Flanagan. As far as Weisz was concerned, once Swinton paid this $1,000, Weisz would return the vehicle to him. Weisz thought that on the following Monday Swinton phoned him and said that he had "rustled up" the $1,000 and he was coming down to Brisbane the next morning. Weisz did not tell Swinton that he and Flanagan were working and would not be collecting him. Weisz arranged for Thompson to see Swinton and pick up the $1,000 debt to Flanagan.
[83]
[53] Weisz said: "That's when they said they were going to give him a hot shot." He continued:
[84]
"There's blokes from down south wanted [Swinton] out of the way for some reason. ...
[85]
Wanted [Swinton] out of - out of - out of the picture and a couple of times [Flanagan] told me that this bloke wanted him pushed aside, so to speak.
[86]
... I'm not a hundred per cent certain of why but I think it's - there was some involvement there to do with - quantity amounts of Sudafed there for the purpose of - of making amphetamine drugs, and I don't know how [Swinton] had any involvement in it or anything, but apparently he - he knew a fair bit about it, the circumstances and where it is and who [indistinct] or - but [Swinton] had some sort of connection there as well and this is where this person down south wanted [Swinton] out of the way.
[87]
... [Flanagan] told me a couple of occasions that this person wanted him out and I asked [Swinton] why this person is chasing him from - from Beaudesert or - his name comes to mind now as Bevan or Brenton.
[88]
... I did mention it to him why this person was after him and chasing him and that, and [Swinton's], like I said, said he didn't know why sort of thing and - and then I said to him, "Is it something to do with a fucken warehouse full of Sudafed's?" And he did know something about that."
[89]
[54] The following exchange between Weisz and the police officer then occurred:
[90]
"And how does that relate to you talking about a hot shot or hot shots?-- This is when I've told [Thompson] that he'll have to go in and collect the money because by this stage me, [Flanagan] and [Thompson] have sort of - [Flanagan] and [Thompson] were - we were in partnerships and we've got a business to start with and [indistinct] let me come in as a - as a third member with the drugs, ... I believe I mentioned to [Flanagan] that [Swinton] was coming in. I couldn't arrange to be there to go and - to get the money that he was owed. [Flanagan] couldn't be there because we were both working and so I - I arranged it for [Thompson] to go - to go and see him. And this when - well, this - [Thompson] knew from previous times before that these people down south wanted to wack him, and then [Thompson] said, "I'll organise a hot shot and put him out."
[91]
... That [Thompson would] have to go and meet [Swinton] at the airport and pick up the thousand dollars.
[92]
Well, he just sort of said, "Well, when's - when's that?" I said, "Well, that's tomorrow, 8 o'clock in the morning. You know I had had, you know, "You got to be there." And it's like I said, well I don't remember the words in between but he said that, "He'll go and organise a hot shot for him that - that night to [indistinct] fucken he'd be there.
[93]
... Because he had to go out of his way - out of his way to go and find someone who - to make a hot shot up for him.
[94]
... And - and in the back of my mind I felt that it was just all a load of bullshit.
[95]
Okay. What - what in your mind what's a hot shot? What's that mean?-- An injection in the head to make him fall really ill. To sort of drop someone down to their knees sort of thing.
[96]
Yeah. And why do you think [Thompson] was saying that for? Why would he do that to [Swinton]?-- I don't know why - why but I got - it's got something to do with this - these Sudafed's the [indistinct] - [Thompson] had buyers for these Sudafed's, boxes and that, and someone was going to manufacture them into amphetamines, and that's to their involvement with this person from down south.
[97]
Do [Thompson] and/or [Flanagan] have an association with this person from down south?-- I'm - I don't know if it's a direct association or not. I really don't know.
[98]
So [Flanagan] has - does have a conversation with you when he tells you about this fellow from down south who wants [Swinton] out of the way?-- Yes.
[99]
[55] Later in the interview Weisz, said he met Thompson, Cullen and Natalie at the BP Rocklea the night before Swinton's killing, somewhere between 8.00 and 10.00 pm:
[100]
"... [Thompson] was yakking on with - with [Flanagan] and that, and even then he - he sort of said, "No. I'll give him a hot shot with black and wack, you know." And then it was like - said that he'd do it in a toilet at the airport..
[101]
... The way [Thompson] was, he was - he was dosed up on drugs as well and was really buzzing himself sort of thing."
[102]
[56] Weisz later added that Thompson was "bragging, skiting and - and - oh, just general bullshit and such as well. And - and along - along somewhere in the - in the conversation he goes that he'll - he'll give him the hot shot, give him a wack in the - in the airport toilet." Weisz said that Thompson looked in bad shape from his drug taking. He tried to tell him "to lay off the gear because he was on that downhill slide of losing the plot and everything". Thompson was "always skiting and bragging" so that Weisz did not take any notice of what he was saying. He said that Thompson asked him to telephone him at 6.00 am to wake him up. As soon as Flanagan gave Thompson some drugs, Thompson and Cullen left.
[103]
[57] Weisz agreed with the police suggestion that he was in partnership with Flanagan and Thompson in their drug business.
[104]
[58] Weisz added the following information. After Thompson and Cullen left, Flanagan and Weisz discussed drug debts owed to them. Weisz went back to his truck where he spent the night. As arranged, he rang Thompson at 6.00 am. Natalie answered because Thompson and Cullen were both asleep. Cullen came to the phone. Weisz told him to get Thompson because Weisz was not happy dealing with "some fucking monkey head". Weisz rang back later and Thompson finally came to the phone. He said, "Yep, I'm on my way." Swinton rang Weisz on his mobile phone that morning from the airport. Weisz told him to "just sit tight". Swinton rang three times around 9.30 am to find out why no-one had met him at the airport. On each occasion Weisz assured Swinton that someone would be there soon.
[105]
[59] At about sundown, Cullen pulled up close to Weisz's truck in the side street at the BP Rocklea. Cullen said that Thompson was coming shortly. Cullen said that he, or perhaps "they", got the money, and added something like, "I stabbed the rock spider in the throat." Weisz said this "... took me back a little bit, you know, 'cause I didn't understand, sort of thing." Weisz added: " ... by then, [Thompson's] pulled up and - and said that [Cullen] did it and all his debt was cleared with [Flanagan]." The police officer asked what he understood that to mean. Weisz replied: "That he's - he's gone and - and knocked [Swinton] over."
[106]
"Okay. And what debt would that be referring to? Why is he debt free? What debt did he have?-- Well, I - I - just presumed that - that is the debt that he held with [Flanagan].
[107]
Okay. Are - are you personally aware of a debt that he had with [Flanagan]?-- He - he owed nearly $2000 to [Flanagan].
[108]
Why would he be debt free if he's - if he - ah - if he killed [Swinton]? - I really don't understand that myself, mate. ...
[109]
Doesn't that imply that [Flanagan] then-----?-- [Flanagan's] never told him to go and do - do this job.
[110]
He hasn't?-- Not that I ever heard him say to do it.
[111]
Okay. So if - perhaps -----?-- Well, I never told him to go out-----
[112]
-----[indistinct] have no knowledge-----?-- and do this job either.
[113]
... As I said before - um - Mick said he was going to give him a hot shot which - which I - I - I led to believe was - was - was baloney, really, and - and he's - he's gone to pick up $1000 which [Swinton] was going to pay - pay out his bill and that for - for - and - and we didn't have his car or anything like that - ah - held for - ah - ransom till he paid his bill or anything.
[114]
Yep. When you say "we", who's "we"?-- Well, me - me or [Flanagan] or - or - or - ah - or - or [Thompson]. Really - well, [Thompson] wanted to keep his fridge. I - I - [indistinct]. That - that was his now, you know, sort of thing. If he - he wanted it he's got it and he's not going to let go of it.
[115]
So you're saying you didn't. None of youse were doing that?-- No."
[116]
[60] Weisz said that Thompson told Cullen that he would have to go away. Weisz told Cullen to "lose [my] name and number as well and don't ever ring [me] for nothing."
[117]
[61] Towards the end of this interview, the following exchange occurred:
[118]
"Did you kill [Swinton]?-- No I did not. I'll look at you in the eyes, mate, and tell you, no, I did not, and, no, I was not near that vicinity. I don't even know whereabouts exactly he was killed or - or picked him up to kill him or anything, and believe it or not, I liked the man."
[119]
[62] The final interview between Weisz and police officers took place the next day, 28 October 2004, between 3.00 pm and 11.46 pm. When questioned again about the events of the evening before the killing, Weisz said:
[120]
"[Thompson] mentioned about the hot shot. He said he was going to give him a hot shot, but [Flanagan's] just sitting there listening, right? Yeah - we're just sitting there and listening. He's always bombing like that - like - he didn't say it to him, 'Go and kill him'."
[121]
[63] Weisz drew a distinction between "killing" and "hot shotting". The police officer suggested that "a hot shot" meant to give someone an overdose of drugs, with a view to them dying, adding: "That's what a hot shot is, to make it look like a non-suspicious death. That's what a hot shot is?" Weisz replied: "Yes, and then, I'm trying to give it as well that I've heard people say that they've had hot shots and that, and it's made them really crook."
[122]
[64] The following exchange occurred between the police officer and Weisz:
[123]
Okay, a hot shot, the terminology means you give someone an overdose of drugs?-- [Mmm-hmm][21]
[124]
Do you concede that people [die][22]from having overdoses of drugs?-- Well, people do, yes.
[125]
Okay. So is it your assertion that they were going to take him to the toilet of the airport, give him a hot shot-----?-- It was mentioned that -----
[126]
-----and he would just give a-----?-- That was mentioned.
[127]
And he would just be seeking the toilet of the - of the airport?-- Basically, yes.
[128]
Remove the $1000 [indistinct] for his debt?-- Hmm-mmm.
[129]
[65] The interviewer then played to Weisz a telephone conversation on Friday 15 October 2004 between Swinton and the emergency 000 telephone operator recorded from a public telephone in Racecourse Road, Hamilton. Swinton told the operator that he was in trouble and had been "ripped off": his money, car and possessions had been stolen, including a gold chain worth $3,500. Swinton complained that he had been picked up from the airport and taken to a bank to get the rest of his money. His assailants told him that he had better pay up because they had his mobile phones containing his home phone contacts. They then drove off in his car. Weisz responded, "He wasn't ripped off. As to his possessions and that, they were not held in lieu of [indistinct] - until his debt was paid. That was not the case at all."
[130]
[66] The interviewer asked Weisz about his mobile telephone records.[23] At 8.15 am on the morning of Swinton's killing (21 October 2004) Weisz made a call to Cullen's mobile phone number. Weisz said he did this because he could not raise Thompson. The previous day at 11.46 pm he also phoned Cullen's mobile phone. Weisz again said this was because he could not raise Thompson on his phone. Between 12.45 am and 6.14 am on the day of the killing Weisz sent three text messages to Thompson's phone and one to Cullen's phone. Weisz said this was to see what they were doing. Between 6.18 am and 8.15 am on 21 October Weisz rang Thompson's phone on several occasions but could not raise him. He also texted Flanagan on three occasions between 7.01 and 7.02 am. Weisz said he did this to see if Flanagan was with Thompson and that all this telephone contact was drug related. At 8.22 am Weisz spoke to someone on Cullen's phone for two minutes and 39 seconds and then sent text messages to Flanagan. At 9.19 am Weisz rang Thompson for about three minutes; Thompson said he was on his way to the airport. Weisz then received four phone calls from a pay phone at Brisbane airport which Weisz said were from Swinton. Between 10.33 am and 2.05 pm Weisz sent four text messages to Flanagan and one to Thompson. Weisz said these were to find out whether Thompson and Cullen had picked up the money from Swinton and paid Flanagan: Thompson was unreliable because he was "drug-fucked" and there was an outstanding debt with Flanagan's supplier that needed to be paid. Between 2.55 pm and 3.20 pm Weisz texted Flanagan nine times and Flanagan phoned Weisz five times. But for a period of about 45 minutes, from about 2.10 pm until 2.55 pm (around the time Swinton was killed), there were no incoming or outgoing calls or text messages on Weisz's mobile phone. Weisz had no explanation for this absence of activity.
[131]
[67] The interviewer returned to Weisz's meeting with Cullen and Thompson at the BP Rocklea after the killing. Weisz said that even when he saw the bag of property belonging to Swinton he did not "really comprehend that he was been murdered." He was questioned about a series of phone calls and text messages sent from his mobile phone to Flanagan and Thompson shortly after Cullen had told him he stabbed Swinton in the neck. He said these were all related to drug matters and not to Swinton's killing. The interview continued:
[132]
"So I'm having problems with this so I'm just going to say it so you can clear my mind; Darren Flanagan has a drug business?-- Yeah.
[133]
[Swinton] owes him another thousand dollars after paying him about four or five grand already. He owes him a thousand dollars. He's present for a conversation where [Thompson] says he's going to give him a hot shot at the airport. You're at a service station where [Cullen] tells you he stabbed him in the neck. You all then go your separate ways, albeit having mad phone contact with each other, but this phone traffic is about drugs. It's not anything to do with a man that's been murdered at Munruben?-- No, it's not. It's not to do with -----
[134]
You speak to Darren Flanagan - Flanagan after speaking with [Cullen] and you don't say to him, "Hey, Darren, you won't believe what [Cullen] just told me he did." You say, "Oh, I want to get on." Is that what you're saying?-- Yes, mate.
[135]
You're honestly saying that you didn't-----?-- [indistinct]
[136]
-----mention this to any people and all these SMSs relate to drugs?-- Yes, mate.
[137]
And that's-----?-- I can't remember a lot of things that I've
[138]
Why did you all meet something like - so many times on that night after the murder/
[139]
[68] Weisz told police that only when Cullen told him that he had killed Swinton did he tell Cullen to lose his name and phone number. He maintained his claim not to remember the topic of his many subsequent phone conversations and text messages.
[140]
[69] Later, after police exhorted him to tell the truth, Weisz said:
[141]
"... I know that [Cullen] didn't kill [Swinton]. That, ah - that someone from down south of, ah, ah - towards Beaudesert there somewhere that wanted him out of the way - [Swinton] out of the way. [indistinct] [Flanagan] told me that this person wanted him out of the way. Ah, that he was going to get a hot shot and whacked, or put out, on the 21st, and, ah, that afternoon, I first seen [Cullen] and he [indistinct] that he had done it.
[142]
... The truth was, um, um, originally, I thought that [Swinton] would get his vehicle back as such - um, returned to him. I didn't really believe that he was just going to get knocked over and put out."
[143]
[70] He said that in mid-October he decided he did not want to use Swinton's vehicle any more. He explained:
[144]
"...They were talking about hot-shotting [Swinton]. Putting him out of action, so to speak.
[145]
So that conversation you were saying before when this set of tapes started that someone south, Beaudesert, wanted him out of the way - [Flanagan], you said, told you that he - he was - [Swinton] [indistinct] killed and, ah, talked about him receiving a hot shot and being whacked, you're saying that conversation - you were aware of that conversation before going to [Thompson's] house with the four-wheel drive and the diesel?-- Yeah. After, ah, [indistinct] it was mentioned a few times that people wanted him out of the way.
[146]
How much debt did he have, [Swinton]?-- 3,000 [indistinct] by [Flanagan]. I believe it had to be for drugs and [indistinct] equipment.
[147]
When you met him at the airport on the 15th of the 10th with [Thompson] and you say he gave 23 hundred dollars, which is written in his diary?-- Yes.
[148]
Isn't it true that at that time of meeting at the airport, [Thompson] had his vehicle and you didn't think he was going to give it back?-- I knew the extent that - that [Thompson] was going to go and hot-shot him or get a hot-shot organised for him and everything like that. At the same time, I didn't really believe in my own mind that, um - that when [Thompson] had the vehicle and that, that I didn't know what was going to happen to the vehicle or anything.
[149]
Why was [Thompson] the one that was going to give him the hot-shot?-- I'm not sure why he was going to do it. Because he had some sort of connection that someone could make up a cocktail of some description. There was a lot of things that, ah, [Thompson] and [Flanagan] were talking about. I was kept in the dark about things to a degree.
[150]
Was there a conversation between you, [Flanagan], [Thompson], [Cullen] in relation to [Swinton] being killed?-- There was mention there that - of this hot-shot, and [Thompson] said he was going to organise a hot-shot for him the day before arriving. Um, that him and [Cullen] would go and do it, ah, the day before arriving.
[151]
Which occasion?-- On the 21st. They'd been wanting to go and do it for over a week. They'd been sort of like wanting to work out how to go and do it.
[152]
So are you saying that there was discussion that when [Swinton] arrived on the 21st he was going to be murdered?-- Hot-shotted, yes.
[153]
And-----?-- No-one mentioned the word "murdered" or "killed." [indistinct] hot-shot him or whack him, so to speak.
[154]
Was that an indication that he would die as a result of the hot-shot?-- I think that's what the intentions were, yes.
[155]
And where was this conversation?-- Um, be at the Pacific. A lot of talk happened, ah, sitting around in [Flanagan's] truck and that, or [Flanagan] would be sitting in the truck and I couldn't hear him that clearly as well and there was still people coming and going there [indistinct] drug related matters."
[156]
[71] The interviewer then returned to the events surrounding the incident when Weisz and Thompson met Swinton on Friday, 15 October 2004, earlier in the week he was killed. Weisz claimed that Swinton was not threatened but he conceded that he may have been intimidated by the way Thompson was acting "[l]ike half psychotic, you know. His manner wasn't polite sort of thing. ... it pissed [Thompson] off that he had to come all that way and come and pick up the money and it wasn't there. .." Weisz said that Swinton repaid $2,300 of the $3,000 owing. Although Swinton then owed $700 he and Thompson told him, "It just went up to 1,000 for fucking us around". The interview continued:
[157]
Volunteered his chain. His chain was worth more than the debt?-- Yes.
[158]
And you're saying he volunteered his chain and had already paid 23 hundred dollars and was going to pay another 1,000?-- Yes."
[159]
[72] Weisz said that Swinton was paying money for the return of his property because he believed that Flanagan had "de-bugged" the property. Weisz agreed with the suggestion that he and Thompson had taken advantage of Swinton and that demanding payment for the alleged de-bugging of Swinton's equipment was "a rort" of someone whom he thought was a "nutter".
[160]
"... you guys have intimidated him to pay money and demand he pay more money for property you never thought he was going to get back?-- Yes.
[161]
And what's the conversation in relation to the bank [indistinct] being taken to the bank?-- He went to the bank there to check it, ah, and then come back and he didn't have any. Um, he tried to ring his parents. He talked to his parents, actually, on the phone and was asking them to send him a - send $1,000 up to him, and he was saying, "I need it. I have to have it." And I don't think they were going to give it to him.
[162]
He's told his parents, from the statement of his father, that he was going to be killed if he doesn't pay - pay money and so forth?-- I don't know about that, but-----
[163]
Well, [indistinct]-----?-- ---- I never said anything like that to [Swinton] or threatened him like that ever.
[164]
Well, how did you threaten him?-- I didn't threaten him at all.
[165]
You said you intimidated him. How did you do that?-- Ah, just told him - well, he still - he owes $1,000 - $700. The extra three was for fucking us around and not paying it all.
[166]
Okay. What about his mobile phone? He makes mention of taking - that his phone has been taken from him?-- Um, when he got in the car at the airport, I said to him, "Give us your phone" and he passed it over and I turned it off."
[167]
[74] Weisz said that he received three and a half grams of amphetamines from Flanagan for his involvement in this episode.
[168]
[75] Later the interviewer returned to the discussion before Swinton's death about what was to be done to him:
[169]
"But, on your recollection, there is some discussion previous to him going in to him and receiving a hot-shot?-- [Flanagan] kept, ah, um, ah - he kept referring to the person down south that wanted him out of the way, and they wanted it done. You know, that's basically how it come across.
[170]
So you said previously you'd never met this person from down south?-- No.
[171]
So who in your association - who in your group of associates is responsible for this talk about killing [Swinton]?-- It was mentioned through [Flanagan] 'cause [Flanagan] had contact with this person. This person had, ah, maybe bought drugs off of [Flanagan], but I've never met him in the weeks that I've [indistinct].
[172]
You said [Flanagan] [indistinct] [Flanagan] ask him for someone to kill [Swinton]?-- No, he's not asking. He's saying that it had to be done.
[173]
And who was going to do it?-- [indistinct] I didn't know who was going to do that because in my mind I'm not going to go and do that.
[174]
Did [Flanagan] ever say to you - or intimate to you that you were to do it?-- No.
[175]
Were you ever present when [Flanagan] said to anyone, "Go do it"?-- He didn't say as such to anyone that - just that, ah, in the conversations with me, um, [Thompson] [indistinct] around, ah, um, come across like it had to be done and so and so wants it done and it has to be done, or, ah, um - or someone [indistinct] going to do it [indistinct] down south was going to do it and things like that.
[176]
DET THOMPSON: Yeah, just - can you remember the date when you first found out about this hot-shot, John?-- It was about a week after I met [Swinton] that, ah - no, sorry, maybe a week and a-half, two weeks - oh, sorry, that the hot-shot [indistinct]. Um, sorry, I can't recollect.
[177]
That's okay. Perhaps it's better to say how long before [Swinton] came down on the 15th did you know? Was it weeks before the 15th, days before the 15th?-- Yeah. I'd only be guessing, but like a week before the 15th before he come down that maybe a hot-shot was mentioned.
[178]
Why didn't that happen on the 15th?-- Why? Because I went to pick up the money and I wasn't going to give no-one a hot short or nothing.
[179]
And who decided that you should go?-- I guess I'd go on the 15th and go and see [Swinton] because he rang me and - and I informed [Flanagan] that he was coming down and I'd just play the role that I'd go and pick it up.
[180]
You're in the car, and I know that, ah, [indistinct] has spoken to [Swinton] [indistinct]. I still don't understand that you have his motor vehicle, which by this stage you've admitted that you didn't think that he was going to get it back. You've got his, ah - I believe there's an Engel fridge, a laptop computer, some mobile phones and a hand-held scanner and he's paid 23 hundred dollars. So he's got $700 owing. You then say, "Well, here's another $300 bill for fucking us around"?-- Yes.
[181]
So you've got all of his property and he owes $1,000 and now all of a sudden he decides to give you his big gold chain that's worth, ah, three and a-half thousand dollars?-- Yes.
[182]
The value of the property that you have of his is looking to be in excess of, you know, upwards of over 5,000. That's a very cheap valuation of all that property?-- Right.
[183]
Do you just understand that it doesn't-----?-- I do understand, but, ah, I - it was never said, "Well, take that gold chain off" and [Swinton] actually said, "Well, I got this as" - "like a security thing."
[184]
To me, that sounds like he's - he's - he's trying to - he's fearful. [indistinct] to give a three and a-half thousand dollar necklace for essentially a $700 bill doesn't make sense. You said -----?-- Yeah.
[185]
[W]e were - we were speaking about the - ah - around the 15th of this month in regards to - ah - you and [Thompson] travelling to pick up - um - [Swinton] at the - ah - Brisbane airport; is that correct?-- Yes.
[186]
Okay. We - ah - we established just in the last tape there that you knew approximately - or one to two weeks after meeting [Swinton] that you'd found out about this hot shot; is that correct?-- Yes.
[187]
And - ah - who at that time did you think was - was the - ah - the person that wanted [Swinton] dead?-- Ah - I don't know who that person is but the person that - that wanted to do him in, I believe, is someone from Beaudesert there, this - this other truck driver."
[188]
[76] He agreed with the interviewer that although he could not remember what Thompson said to Swinton on 15 October 2004, it would have made Swinton feel uncomfortable. He agreed that Flanagan had told Weisz that some truck driver from down south in the Beaudesert area had said that Swinton has "got to go". The interview continued:
[189]
"Okay. Um - the last question was in relation to this money and - and your dealings with it. [Flanagan] has told you what the debt is?-- Mmm-hmm.
[190]
If it's [Flanagan's] debt, why doesn't [Swinton] contact [Flanagan]? Why does [Swinton] contact you [indistinct]?-- [Swinton] ... entrusted in - in me. From - from the time I met him he felt comfortable around me and - and what-not and-----
[191]
Well, how does he feel about you when he's given you cash and he's not getting his stuff back? How did he feel about you then, when you left him on the side of the road on the 15th of the 10th?-- I don't know how he felt about me then - um -----
[192]
How did you feel about him on the 15th of the 10th when you've taken-----?-- How did I feel about him?
[193]
Mmm. You've taken 2300 bucks from him?-- And - ah - I knew it was all - all becoming to be - be - be a scam then and - and I didn't feel good about it at all."
[194]
[77] Later the interviewer returned to the topic of the hot-shot:
[195]
"Okay?-- And - and - and then sort of, like, during the week sometime there it - it - it was mentioned that a person down south there wanted - wanted him out of the way and - and [Thompson] said, well, he knew someone who could make up a cocktail and give him - give him a hot shot.
[196]
So prior to [Swinton] coming down-----?-- Mmm-hmm.
[197]
-----who said the person down south wants him out of the way? - [Flanagan] did.
[198]
And [Thompson] said, "I know someone who can make up a cocktail and give him a hot shot"?-- Yeah. He'll - he'll go and get - ah - the cocktail - the hot shot there. He knew the person and-----
[199]
When was this? When was this [indistinct] when [Swinton] came down?-- I'm not sure what day that was. I thought [Thompson] was just making out that he knew someone who could make the cocktail. The night before [Swinton] come down and he - he proceeded off to - to go and get this - this hot shot made up.
[200]
So the night - ah - you received a phone call from [Swinton] on - at 4.15 on the 20th - Wednesday, the 20th of October?-- Mmm.
[201]
He tells you he's coming down tomorrow-----?-- Yeah, and-----
[202]
-----and he's got the cash?-- And - and [Thompson] was going to go and make - make that - that hot shot thing up.
[203]
After you received the phone call from [Swinton] on the 20th, the day before he come down-----?-- Yeah.
[204]
Did you tell anyone else he was coming down?-- Ah - ah - I told [Flanagan] first.
[205]
Yep?-- And - ah - I - I'm not sure if I rang or spoke with - or - or [Thompson] was there and - and said to him that he's coming down and I think [Thompson] was [indistinct] going to go. [indistinct] drug - drug dealings are still going on as well all around and - and [Thompson] was going to go and see this person and go and get a hot shot made up.
[206]
Is this the conversation you said took place - you went inside and got some chips and some drinks and come outside and [Thompson], [Cullen] and the girl in the car?-- Yes.
[207]
And you said [Flanagan] was in his truck-----?-- Yes.
[208]
-----and that when you come out [Thompson] was in - half in the passenger door and drug transactions are occurring?-- Uh-huh.
[209]
And you heard [Thompson] saying, "I can get a hot shot. I'll get it tonight", and so forth?-- "We'll go and do that", there and then, sort of thing and go and get organised and-----
[210]
Okay?-- Um - the morning beforehand - I - I - I can't remember if it was the morning or - or - or that night. I think it must have been in the morning. He - he - he said that the night before that he'd got it and that it was all done work. I - I didn't see it or anything 'cause they weren't around. It must have been through a message or - on the phone.
[211]
So that night before [Swinton] come down-----?-- Yeah. He's got it and they've got it on him, the - the hot shot, so to speak. Um - then by the next morning they can't find it - ah - and then - that's why I believed that nothing was going to happen because it just sounded like it was all bullshit, fucking making up fairytales.
[212]
Was [indistinct] - um - like at 12.46 a.m. in the morning there's an SMS from you to ... Thompson?-- Mmm.
[213]
There's two - three of them, actually. No, there's two at around that time of the morning. Is that what you're talking about? Is that your knowledge of how they had the hot shot and then they didn't have the hot shot? Is that possibly the contact you're referring to? - Um - yeah, it-----
[214]
That's the morning of-----?-- I can't remember if it was a conversation or - or - or - or it was messages.
[215]
Very well. At 11.46 p.m. on the day before [Swinton] come down you had a conversation from your mobile phone to [Cullen's] mobile phone?-- Mmm hmm. I - I don't know if - um ----
[216]
And there's two messages from your mobile phone to Thompson's mobile phone about 12.45 a.m. or so on the day of his death?-- Ah - in the morning - ah - yeah, I - I honestly can't remember what the conversations were about. I was-----
[217]
So essentially-----?-- They had - they had - ah - some hot shot already made up.
[218]
And then later they told you they'd lost it?-- Then - ah - um - sometime - yeah, way after then that - that - I think it was the next morning that they had lost it or something.
[219]
Now, what - what was the plan then if they'd lost that? What did they say?-- That - that - that they'd go and make up something themselves.
[220]
Okay?-- I don't know if that was - ah - um - on the phone talking to them or - or they were - through message. I think that was over the phone.
[221]
So what did you think when you were at the BP the night before or the evening before and the conversations you had with these two people, [Cullen] and [Thompson], the morning of the 21st when - ah - [Swinton's] killed? What did you think was going to happen to [Swinton] when he got off that plane?-- That - that he - he was going to receive a hot shot there in - in a toilet at the airport and - and I - I - I honestly believed that - that - that - that - wasn't going to kill him and that and I - I - I really, honestly, believed it was - it was just all - all - all talk.
[222]
Even with all the talk you say that was happening with - with [Flanagan] saying that he's got to go [indistinct] they want him to go, he's got to go?-- A - a lot of things are starting to come [indistinct] more that - that a lot of it sounds like bullshit, you know, like - like - like the - sort of like [indistinct] the things and - and carry ons and - and stuff like that, someone's supplying drugs and someone's behind it - um - but other things that they say and - and - I can start to see this is all been like - like bullshit and I can see that - that [Thompson's] running around and all - all he wants to do is - is get another whack in his arm and - and he's trying to chase gear and he's trying to be - be the - ah - um - the big time person, the dealer, and - and what-not.
[223]
Did you think that [Swinton] was going to be killed when he arrived at the airport or any time after arriving at the airport that day?-- I didn't think he was going - going to be killed - ah - no. I thought he was going to be hurt.
[224]
So did you think that someone - some harm was going to come to him the next day at the airport?-- Ah - I believed there could've been, yes.
[225]
And what made you believe that?-- Just that those two were down there. Um - when I was told about the - the - the hot shot that they supposedly had and didn't have it and lost it the next morning, I - I was sort of, like, more relieved that it wasn't there and - and thought in my head - um - that was just all made up bullshit anyway and - and they were going there to pick up the money and - and I didn't know what was going to happen from there.
[226]
Why are you trying to contact - or why did you send all these SMSs to um - to ... Flanagan and ... Thompson?-- Um-----
[227]
On the morning of [indistinct]?-- Just sort of like to say that - that - um - the - the idiots that have - he's - he's lost his hot shot, you know, sort of [indistinct] - ah - been trying to point out to [Flanagan] that - that [Thompson's] mind is fried - um - and - and he's just scamming and rorting - and - and showing him and pointing it out to him that - he says - he goes to you and - and his missus has washed his pants with his fucking bag in it and bullshit like that and - and pointing it out to him, well that's what someone does when they're - they've used it and want more and I'm trying to point out that he's - he's - he's made out that he's - he's fucking lost the hot shot, sort of thing, you know. It's all been bullshit.
[228]
Okay. And - and you're - again, between 7.15 and 8.15 you're trying to contact [Thompson]. You sent a couple of SMSs but you try and contact ... Thompson?-- Yeah, that was to get - get him up and motivated and go the airport and - and pick up the $1000 but I - I - I'm still thinking of the - the money that's coming in.
[229]
John, do those phone calls and SMSs relate to the fact that the plan is not going to plan, that - because they're saying they've lost a hot shot and things of gone, you know, a little bit skew-whiff there in the morning? Is that you trying to find out what's going on and what is going to happen?-- Those are um - I was - I was pointing it out to [Flanagan] [indistinct] pointed out to him that what [Thompson] had been saying and that was all - all been bullshit and - and - um - what - what they were saying - and - and - and that this - they've fallen asleep, they've overslept, and - and - and they're fucked up about going there to meet him at the right time and - and what-not. That - that that was, like - yeah, as you say, the plan was - that they didn't show up at the right time. The plan was that - yeah. Yeah, they fucked up.
[230]
Yeah. What was the plan?-- To go - go there at 8 o'clock and - and - and meet him.
[231]
And do - honestly, what was the plan? To go to the airport, yes, and ------?-- They wanted to hot shot him and whack him in the - in the toilets. I didn't know how they were going to handle it from - from there. Um-----
[232]
And how did you feel about that plan?-- I sort of thought to myself that - that - that this plan - that - um - [indistinct] the plan - ah - that they might've gone to give him a whack or something but just - just to make him sick but to actually go - go out and - and - and murder someone and kill them, I - I didn't really think that then - he's got [Cullen] and he's talking - talking about [Cullen's] going to do it on him.
[233]
Who said that?-- Like - like [Thompson] turns around - he's not doing it but [Cullen's] going to go and do it.
[234]
Well, what would be the value - like, what would be the value of them taking $1000 from [Swinton] at the airport and then taking him and giving him a hot shot and then leaving him? What's the value of that? I just don't understand it. I mean, what's the value of giving him a hot shot and then leaving him? How is that better than going to the airport and taking the $1000 and then leaving him? What's - why - why give him a hot shot?-- Because - um - this person down south wanted him out of the way and I - I guess they were trying to big note themselves that - um - they'd go and do it.
[235]
So the person down south wanted him - wanted [Swinton] dead?-- Yeah, wanted - wanted him out of the - that's right.
[236]
And [Thompson] is saying that he'd go do that?-- Yes.
[237]
When you say-----?-- I - I - I really didn't understand - um - ah - because, like, [Swinton] knows about - about certain things with the Sudafed or - or - or such things, that they'd want him out of the way for that.
[238]
But the person down south who wants him out the way--?-- Yeah.
[239]
You didn't hear that from him because you - you haven't spoken with him, so who did you hear that from?-- From - from [Flanagan] - that's right.
[240]
[Flanagan] says that the person down south wants him out of the way?-- Yeah.
[241]
You say you understand that to mean that he wants him dead?-- Yeah.
[242]
And [Thompson's] saying that he'd look after that by giving him a hot shot?-- Yeah.
[243]
And that's - is that all the day before he comes down that this has taken place, this conversation?-- The - that things like that have been mentioned, yes.
[244]
And then the day of - that he comes down - I know - I know [Swinton's] ringing you?-- Yeah.
[245]
And you're obviously ringing them, "Where the hell are you?" Um - when does it say - 'cause you just said that [Thompson] is then saying that [Cullen's] going to do it. When's that conversation?-- Ah - like, the night before - ah - um - that they're going to use [Cullen] to go and do it.
[246]
Why him?-- Because he's the Monk and he's the monkey boy.
[247]
And how did he feel about that?-- I think [Cullen] was more like me and - and went along with it and just played along with it. I - I don't know if - ah - um - [Cullen] could see that he's - he's going to physically actually do it but he - he has done it**.**
[248]
And does [Cullen] have any debts to Flanagan as well?-- Yes.
[249]
What sort of debt does he have?-- Ah - ah - I think around the $2000 mark.
[250]
Do you know if he still has that debt to Flanagan?-- Ah - after - ah - ah - the murder and - and I seen them go to the BP there, [Thompson] come along and - and said [Cullen's] no longer the Monk. He's - he's - he's - ah - um - I can't remember the wording but, like, I - ah - he's - he's debt free now.
[251]
Okay?-- And - and I feel like - believe he might've done something to - to [Swinton] but still didn't really believe that he'd - he'd actually killed him as such.
[252]
Okay. This conversation and some - I agree with you that someone answered but - and you've sent the SMS - some SMSs - but you do have conversations with-----?-- Yes.
[253]
-----these people. Can you outline what you were saying to these people on the morning of - when you were speaking to them - after hearing from [Swinton] you were speaking to them?-- I - I did write some things down yesterday, some of the things that I - I was messaging to - ah - [Flanagan]. And some of the things like messages [indistinct] keep them - make notes - make sure that they're going to get up there and - ah - collect the money, sort of thing, but - ah - like - like - um - some of the things that were - were, like - I'm on drugs myself and - and my mind is buzzing and thinking and - and - and [indistinct] message - message there that - well, there's cameras up there, you know, and they're going to drive up the freeway into the airport with the cameras.
[254]
What's your reference to cameras? What's your-----?-- Well, you've got cameras all the way up the freeway and - and - and around the airport.
[255]
And?-- So - so there's - there's cameras there watching them.
[256]
Okay. So who did you send that to?-- Ah - I believe I sent most of them to [Flanagan].
[257]
And what are you saying to [Flanagan] by that? What do you mean by that, there's cameras up there?-- I - I - I just thought that - like - like [Flanagan] and - and - and [Cullen] were all - all there fooling around with this slut the night before and that. So - so that's why I couldn't get a hold of them and things.
[258]
Where - whereabouts do you think they were?-- At - at some motel.
[259]
Do you know where that motel was?-- I - I believe it would be - ah - towards town, off the Ipswich Road there somewhere.
[260]
And what makes you think that they were all there with her?-- Ah - I - I knew on another occasion there that [Flanagan] had went to a - to a - some - some place there at 2 o'clock or - or some description there and - and had his way with one of the girls and - um - the week beforehand and that and - and [Thompson] was out there rooting around and - and then I was, like, thinking, well - two or three times beforehand and that there's been - been cases where I couldn't get a hold of them and that and they weren't answering and I'm - I'm thinking, well, that - that's - maybe that's what they're always up to or-----
[261]
So specifically though, what made you think they were at a hotel off Ipswich Road near Brisbane?-- Because [Thompson] hadn't been home and - and - and - ah - I can't remember who [Thompson] said - or mentioned that - said that they were at this motel off - off the Ipswich.
[262]
Okay. What essentially are you doing by sending that message to - to [Flanagan]?-- I sent many messages, like - like when my mind is clicking over and-----
[263]
But that one, that message about the cameras, what are you saying to him? Are you concerned about cameras?-- No, it was just a message that - well, that - that's what come to my head, was there's - there's cameras all up there. Um-----
[264]
What do cameras do?-- Well, cameras see what people are doing.
[265]
And what would you be worried about those cameras seeing?-- Well, they're going to be driving up there picking up [Swinton]. So - so the cameras are going to show them that they're picking up [Swinton].
[266]
Yep. And?-- Well - ah - maybe - maybe - ah - it might've been a bit more - ah - unconsciously thinking, well, it's a - a scare tactic, if the cameras are seeing you pick him up.
-----[indistinct] - just [indistinct] John [indistinct] I understand - I understand what you're saying. You sent - I understand you sent a message to [Flanagan] saying, well, there's cameras all the way up there and at the airport. I understand that?-- I - I'm not certain myself, mate, 'cause I - I - I've had a big dose of drugs myself at the time and - and my mind is [indistinct] over one after another and I'm just sitting there-----
[269]
You're clearly worried about someone being - being shown on camera?-- Not - not - not them being on camera but - ah - just to point out that - that there is cameras.
[270]
Well, are you - are you worried that [Cullen] and [Thompson] would be seen collecting [Swinton] from the airport? Is that what that message [indistinct]?-- Well, they - they were originally going to just give him a hot shot in the - in the toilets and that and - and I just thought - sent a message that it was going to be on camera.
[271]
Okay. Well, were you worried about them getting caught?-- I - I think more of them that - that - to throw them off and - from doing anything, really.
[272]
Okay. So at the time you sent that message, were you believing that they were going to do something to [Swinton] to cause him harm in some way that day?-- I believed, yeah, that they were going to cause him harm, yes.
[273]
Okay. What else have you got? What other messages?-- Another message to [Flanagan] - um - was like - he's coming at a certain time and - and for them to be there and not to fuck up. Ah - another message was - was they've got this slut with them all the time and - and if she's sitting there listening to all - all dealings and conversations going on all the time.
[274]
So you were concerned about her?-- Concerned about her but, like - ah - also [Thompson] was - was - ah - um - was fucking up himself with her and - and the drug side of things - ah - that [Flanagan] is giving her drugs and that and - and - and [Thompson's] got his way with her because he's got the drugs on him and - and she's there for a free ride.
[275]
Right. At about - ah - 7 a.m. you said you were sending messages - ah - to [Flanagan], the - the day they lost the hot shot?-- That was - it was - ah - and also said "the fucking idiots".
[276]
But why - why was - why is that any of your concern or [Flanagan's] concern?-- I - I - I was just pointing out to [Flanagan] that they're fucking idiots. They can't organise shit, you know. Like - like, it was - it was more of a put down towards [Thompson].
[277]
See, the impression-----?-- To show - show [Thompson] - show [Flanagan] that [Thompson's] - [Thompson's] mind is fucked up on the drugs.
[278]
Well, if - if you're showing that - that [Thompson's] mind is, you know, fucked up on the drugs, is it that you're saying that so that perhaps something else can be done now that - now that the hot shot is out of - out of the picture? Is it so that perhaps something else could be done?-- No, not - not something else that could be done, no.
[279]
But you're - then you're sending - so you're sending to [Flanagan] a message saying that - oh, well, basically the hot shot is out of the picture?-- Yeah."
[280]
And then you send him a message saying that there's cameras up there? - Um - I - I know what you're saying - ah - what it looks like but that's not what's going through my mind, for something else to be done. It was - it was - I - I'm just really hoping that - that that's all they're going to do, go there and just - just get the money and - and - and at worst, that [Swinton] might get beat up or something, you know.
[281]
All right. Well, your next message - or one of the next messages is to the effect that, you know, he's - ah - he's going to fuck up and that he's got this slut with him and that they're - they're telling her everything and that - ah - and that was going on. Why - why are you relaying all of this to [Flanagan]?-- Ah - hopefully, [indistinct] - ah - to - all of them to call it off, sort of thing, you know.
[282]
So you were fairly certain something was doing that day?-- I'm certain that something was going to happen, yeah, but - but I'm - I'm hoping that - that it's not and - and they're bragging and talking and - and in the back of my mind I was - I was really hoping that it wasn't_._"
[283]
[78] Weisz then provided the following account. He again told police that his phone calls to Thompson and Cullen on the morning of the killing were to wake them up so that they could get Swinton from the airport and collect his $1,000 debt. Weisz then had four phone conversations with Swinton who rang him from the airport at 8.12, 9.06, 10.16 and 10.29 am. Weisz told Swinton that Thompson would collect him and that Swinton should wait at the airport. He then rang Thompson and Cullen and told them to collect Swinton and the $1,000. Thompson and Cullen were to be responsible for giving Swinton the hot shot or whacking him. The interview continued:
[284]
"Why didn't you tell [Swinton] that you felt that his life was in danger when you spoke to him on those four occasions that day?-- Um, I thought myself that - that he'd be all right. That nothing was going to happen.
[285]
The night before they said about the hot shot or whacking him?-- That - that was like it was just all like boys standing there at the pub
[286]
they're bragging and skiting. [indistinct] it, you know.
[287]
And in your own version you say that it varies sometimes to the fact you thought he was going to get a hot shot, he was going to get a hot shot, he was going to get killed-----?-- Mmm-hmm.
[288]
----- to, oh, maybe, I thought he was going to get seriously hurt and beaten up. You just haven't decided what one at the moment but you vary [indistinct]?-- Well I didn't know how it was going to happen or - or -----
[289]
I think, I'm not trying to put words in your mouth but what you've said to us is that it's been decided that he was going to die that day?-- That he was going to get a hot shot, yes.
[290]
But in your mind you don't want to believe that's what's going to happen?-- No - yes. That's - that's true. I - I----
[291]
But there was a conversation between the four of you were present and perhaps-----?-- [indistinct].
[292]
-----the female was in the car and heard this conversation where it is discussed that he's going to get a hot shot and die?-- As such, yeah.
[293]
And that's the night before he comes in?-- But like - like when you say he's going to get a hot shot and die that wasn't said like - like in those terms. It was just said in those that he was going to get a hot shot, he was going to get a whack."
[294]
[79] Weisz told police that if Swinton had been given a hot shot it would have looked like a suicide but if his property was stolen it would look like "a robbery murder type thing". Weisz agreed that he sent a text message to Flanagan to the effect that if the others went ahead with the plan and did this to Swinton it might look like a robbery-murder. He texted this information to Flanagan because in the back of his mind he knew that if Swinton was killed the police investigation would lead to all of them. He sent Flanagan the text as:
[295]
"... a scare tactic to sort of like say that it shouldn't be sort of like done. I didn't say that to them but like pointing out the obvious to them, you know?
[296]
... Because it would lead back to us and - and - and I don't want to be involved in a murder. [indistinct].
[297]
Well you concede - can you concede that you are involved in a murder?-- Yes, I can, yes.
[298]
Because you've been part of the conversation where they acknowledge they're going to kill him and then you were actively giving information to these people [indistinct] on your account that watch out for the cameras. If they're going to do it like a hot shot-----?-- Yeah.
[299]
-----make it look like it's not a robbery?-- Yes, yes, I can understand that and - and things like that [indistinct] it looks like I'm [indistinct] myself. I'm sort of [indistinct] that this sort of like shouldn't be going down.
[300]
What?-- Without - without actually saying to them or showing them that I'm - I'm a chicken or-----
[301]
Would you agree that the easiest way to do that is to tell [Swinton] when you speak to him half a dozen times?-- [indistinct], yeah. [indistinct].
[302]
And then if - if in fact you did think that he was all right that you wouldn't be doing what I-----?-- Yes.
[303]
----- clearly believe is some form of, you know, assistance and that, you know-----?-- Like I've said that to you as well, yes.
[304]
That's right. But you didn't tell [Swinton]?-- No.
[305]
[80] Weisz told police that when he rang Thompson at the motel on the morning of the killing he wanted Thompson and Cullen to go to the airport and pick up the $1,000 from Swinton and he was hoping that "this whacking job wasn't going to go through". He said that Thompson:
[306]
"...said that he's lost his fucking hot shot but the thing is that he's going to, ah, go and make something up himself.
[307]
What did you say to that?-- Ah, I - I still persisted in saying get up there and go and pick up the money."
[308]
[81] Weisz again confirmed that he used his mobile phone to telephone and text both Thompson and Flanagan during the day Swinton was killed. The following conversation ensued:
[309]
"What was the nature of these messages you sent [to Flanagan]?-- That, ah, to see - the nature of those messages was to see if - if they'd got [Swinton] and - and done what they were going there pick up [indistinct] and - and did he hear back from [indistinct]-----
[310]
You were close there, John, saying going there to do what they were meant to do. That almost came out, didn't it?-- Yes, mate, yes. To go there to do what they were meant to do and-----
[311]
Which was?-- Was give [Swinton] a hot shot and go and pick up the money. Pick up the money, give [Swinton] a hot shot and - and to see if [Flanagan] had seen them [indistinct] and give them money and what was happening.
[312]
-----did you think that they were going to give him a hot shot and he was going to die when-----?-- [indistinct] that day there I knew something was going to happen.
[313]
Okay. And is this you almost desperately trying to find out what had happened?-- Yes.
[314]
[82] The interviewer asked Weisz about his text messages to Flanagan's phone at about 2.00 pm on 21 October 2004. He responded that he wanted to know whether Thompson and Cullen had seen Swinton, got the $1,000 and passed it on to Flanagan. The interview continued:
[315]
"And you're curious, aren't you, as to whether [Swinton] is alive or dead, aren't you?-- Not - not curious to know if he was dead, no. Um, curious to know if - if they'd been to the airport and see him and - and got the money as well.
[316]
But if they had been to the airport and seen him and got the money on what was discussed previously and what you thought that morning, what else was going to happen?-- What else was going to happen?
[317]
Mmm?-- I - I didn't know what else was going to happen. They would hot shot him, yes. [indistinct] ... Um, I did receive a - ah, a phone call from [Thompson] saying that, ah, um, they went and seen [Swinton] and picked up [Swinton] and [Swinton] was with - with, ah, [Cullen].
[318]
Hang on a second. The same day 21st at, um, 2.10 p.m. you send another text message to Flanagan?-- Yep.
[319]
Okay. And then you don't make any other phone calls between 2.10 p.m. and 2.55 p.m. A 45 minute period-----?-- Yep.
[320]
[83] The following conversation occurred towards the end of the interview:
[321]
"Was there anything in you putting it off early in the week because you knew that - as you knew later on, that they wanted to do something to [Swinton]?-- Again, I didn't believe that they were going to do it. I thought it was all just big talk.
[322]
-----at that time you knew that they were talking about doing something to [Swinton]?-- They wanted to do stuff, yeah, to him, but, look, at the same time, it was a scam, it was a rort-----
[323]
Yeah?-- -----they wouldn't want - to knock him over and also that I needed to go back to work and do it and sort of like [indistinct] and stuff.
[324]
Knocking over is to kill; is that right? Dead?-- To hot shot at the time, yes.
[325]
Okay. Do you have any knowledge that [Swinton] was going to have some harm or be killed on the 15th - when he came down with $2,300?-- I had no knowledge of that was going to happen, yeah."
[326]
[84] When the police told Weisz they were charging him with murder, he responded: "Me? ... I didn't murder him. ... I'm not guilty. You know that. You understand that."
[327]
The ground of appeal relating to the adequacy of the judge's warning to the jury about relying on Cullen's evidence[24]
[328]
[85] Mr Davis's second submission is that because Cullen murdered Swinton he was Weisz's accomplice and, notwithstanding s 632 Criminal Code, the judge was required to not only warn the jury of the danger of acting on Cullen's evidence where it was not supported by independent evidence, but to also then identify for the jury the evidence capable of corroborating Cullen's evidence and to point out which evidence was not so capable. Mr Davis submits that the primary judge's pertinent jury directions were inadequate and unhelpful because they insufficiently sifted the potentially corroborative evidence from that which was not. He argues that this was necessary because it was open to the jury to find that Weisz told various lies in his rambling interviews with police officers over 13 hours on four days, some of a trivial kind and others more significant. The judge should have identified for the jury the general categories of potential lies or inconsistent statements which were and were not capable of corroborating Cullen's evidence implicating Weisz in the offence.
[329]
[86] The judge gave the following directions on this issue:
[330]
"The prosecution suggests that you would be satisfied that Cullen's first statement was an accurate statement of the relevant facts, including the defendant's involving in procuring Cullen to kill Mr Swinton.
[331]
The defence, Mr Nolan, suggests to you that there are so many changes in Cullen's version of events that you could not be satisfied that any statements made by Cullen at any time, whether against the defendant or otherwise, were accurate.
[332]
There are many matters that you have to consider when evaluating the evidence of Cullen. It would be dangerous to convict Mr Weisz on any evidence given by Cullen unless you find that that particular piece of evidence is supported in a material way by independent evidence.
[333]
Now, I probably can't tell you much about the records of interview because you've seen and heard them just as much as I have. You have to evaluate, however, what Mr Weisz said in the records of interview for its reliability and credibility in the same way as you do for other witnesses.
[334]
On any view of the matter, there has been a progression in the account and detail provided by Mr Weisz to the police, commencing with the statement dated the 22nd of October 2004, which was Exhibit 6, through each of the interviews on 25, 27 and 28 October 2004. The statement and interviews reveal many inconsistencies.
[335]
You have heard submissions from the prosecution which attribute lies to [Mr Weisz], even in the final interview. You will make up your own mind about whether [Mr Weisz] was telling lies at each stage, and if so whether he was doing that deliberately. And it's for you to decide what significance those lies have that you find were told by Mr Weisz, to the extent that you find them, in relation to the issues in this case.
[336]
If you do find that [Mr Weisz] has lied in a particular piece of evidence, or in a particular statement that he made in the record of interview, then you just put that lie to one side, because if you do find [Mr Weisz] has lied, that affects whether you can rely on that piece of evidence, but you may also find that it affects his credibility in evaluating the other statements that [Mr Weisz] made in the record of interview, and you take that effect on [Mr Weisz's] credibility into account in evaluating what you might accept as truthful of the statements made by [Mr Weisz] in those records of interview.
[337]
I have to give you this warning: do not follow a process of reasoning to the effect that just because [Mr Weisz] may have told a lie about something that is evidence of guilt of the offence of murder or of manslaughter. And it will be obvious to you that that's not a path that you can follow in this trial as I have pointed out to you how you go about your task and it's a lot more complicated than that.
[338]
The mere fact that a defendant tells a lie when interviewed by the police is not in itself evidence of guilt. A defendant may lie for many reasons - to protect other people, to conceal disgraceful conduct of his own short of commission of the offence, or out of panic or confusion."
[339]
[87] Neither Mr Nolan nor Mr Edwards sought any re-directions on this point.
[340]
[88] Mr Davis does not contend that the learned primary judge erred in the circumstances of this case in directing the jury that it would be dangerous to convict on Cullen's evidence unless it was supported in a material way by independent evidence. Despite the provisions of s 632(1) and (2), such a direction was required here: s 632(3) allows a judge to make any comment on the evidence "that it is appropriate to make in the interests of justice". As Cullen was allegedly Weisz's accomplice in the murder of Swinton, and Cullen had made inconsistent statements and had been declared an adverse witness for the prosecution, it was entirely appropriate to direct the jury of the danger of acting on Cullen's evidence without corroboration.
[341]
[89] Whilst there are many cases where it is appropriate for a judge to assist the jury by identifying the evidence that is or is not capable of amounting to corroboration of a witness whose evidence has questionable weight, warnings like this must be tailored to the requirements of the particular case. It would have been an Herculean task for the judge here to have identified every potential lie or inconsistent statement in Weisz's lengthy and discursive police interviews. It is clear from the extracts set out earlier that, had the judge given the directions now sought by Mr Davis, the jury would inevitably have been overwhelmed by the large number of potential lies and inconsistent statements. Nor did the number and variety of lies and inconsistent statements readily lend themselves to being sorted into categories of those which were and those which were not capable of corroborating Cullen's evidence. A direction like that now sought by Mr Davis would almost certainly have highlighted portions of Weisz's interviews with the police officers which were especially damaging to his defence.
[342]
[90] Importantly, the judge's direction on this issue did, however, highlight to the jury that they should not act on Cullen's evidence unless it was supported by independent evidence and that if they found that Weisz lied in giving a particular statement to police, they should not treat the lie as supporting Cullen's evidence unless they were satisfied he was deliberately telling lies. The judge also warned the jury that the fact that he may have told a lie was not evidence of his guilt of the offence of murder or of manslaughter because people tell lies for many reasons other than because they are guilty of the charged offence. Her Honour's directions on this aspect of the prosecution case were appropriately tailored to this case: see Conway v The Queen.[25] They complied with the suggested direction in Zoneff v The Queen.[26] It seems likely that the reason why neither of the experienced trial counsel sought any re-direction on this point was because the directions given were fair, balanced and appropriate in the circumstances and the giving of directions of the kind now sought would have inevitably emphasised evidence which did not favour the defence case. The direction given was not erroneous and nor has it resulted in any miscarriage of justice. This ground of appeal fails.
[343]
The ground of appeal relating to the adequacy of the judge's directions on s 7(1)(b), s 7(1)(d) and s 8 Criminal Code[27]
[344]
[91] Mr Davis's contentions on this ground are as follows. The prosecution case against Weisz was left to the jury under s 7(1)(b), s 7(1)(d) and s 8 Criminal Code. The evidence at its strongest was that Weisz was part of a plan with Cullen, Thompson and Flanagan to give a "hot shot" to Swinton. Mr Davis accepts the trial judge correctly directed the jury on s 9 Criminal Code in the context of s 7(1)(d) but says that s 9 has no application to s 8. He contends that because the jury may have relied on s 8 rather than s 7(1)(d) in reaching their verdict, the judge should have directed them that s 9 could only be used in aid of s 7(1)(d) and not s 8.
[345]
[92] Mr Davis also contends that, at least since The Queen v Barlow,[28] the term "offence" in s 7, s 8 and s 9 means the act or omission giving rise to criminal liability, here, Cullen's fatal stabbing of Swinton with a knife. For Weisz to be convicted of murder under s 7(1)(b), he had to have done some act for the purpose of enabling or aiding Cullen to intentionally kill Swinton by stabbing with the knife and Weisz must have intended that that assistance would enable or aid Cullen to intentionally kill Swinton with the knife.
[346]
[93] He submits that, similarly, under s 7(1)(d), subject to s 9, the prosecution must establish that Weisz knowingly counselled the intentional stabbing of Swinton by Cullen. Under s 9, because the plan involving Weisz and others at its highest was to kill by administering a hot shot, he contends that the question under s 7(1)(d) was whether the intentional killing of Swinton by stabbing was a reasonable consequence of Weisz's counsel.
[347]
[94] Mr Davis also contends that Weisz's criminal responsibility under s 8 on the prosecution case at its highest was that he was part of a plan to kill Swinton by a hot shot and, in prosecuting that purpose, an offence (killing Swinton by stabbing) was committed and that the killing by stabbing was a probable consequence of the prosecution of the plan to kill by hot shot. He relied on R v Keenan,[29] R v Johnston[30] and R v Brien and Paterson.[31] Mr Davis argues that the judge erred in failing to direct the jury in these terms. He further argues that, even accepting there was evidence that Weisz's involvement in the plan with Flanagan, Thompson and Cullen went beyond a plan to kill Swinton by a hot shot to a plan of causing general violence to Swinton, the judge's directions on s 8 did not focus the jury on the crucial question of the extent of the plan and the probable consequence of it as required by Barlow and Keenan.
[348]
[95] He contends that the jury would have been confused even further by her Honour's directions on manslaughter by way of s 8. Mr Davis contends the judge should have instead directed the jury in these terms:
[349]
"If you are not satisfied beyond reasonable doubt that intentional killing by stabbing was of such a nature that its commission was a probable consequence, you would consider whether the commission of an offence of killing by stabbing without the requisite intent was a probable consequence of carrying out the common unlawful purpose."
[350]
[96] Before returning to Mr Davis's contentions, it is necessary to set out her Honour's directions on s 7, s 8 and s 9. The judge commenced these by handing the jury a typewritten sheet (ex "E") which contained the following terms:
[351]
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
[352]
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
[353]
(d) any person who counsels or procures any other person to commit the offence.
[354]
(1) When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial ... whether the offence is committed in the way counselled, or in a different way, provided ... that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
[355]
(2) ... [T]he person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by the other person.
[356]
When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."
[357]
[97] Exhibit "E" effectively set out the relevant portions of s 7 under the heading "Parties to offences" (s 7(1)(b) under para (b) and s 7(1)(d) under para (d)); s 9 under the heading "Mode of execution immaterial" and s 8 under the heading "Common purpose". The judge invited the jury to link paragraph (d) to the heading "Mode of execution immaterial".
[358]
[98] In her oral directions to the jury, her Honour read part of ex 'E' headed "Parties to offence" (s 7(b) and (d)) and continued:
[359]
"In the case of paragraph [(b)], for the prosecution to prove that Mr Weisz did an act for the purpose of enabling or aiding Cullen to commit the offence, it must prove to your satisfaction beyond reasonable doubt four things. I am going to go through those four things, and if you have the wording of the provision there in front of you you will see how what I am about to say to you relates to that wording. The first one is that Cullen committed the offence of murder. Well, I don't think that is in issue here. That is common ground between the prosecution and the defence. Two, Mr Weisz did acts for the purpose of enabling or aiding Cullen to commit the offence. So we are not talking about an omission to do an act in this case. We are talking about doing an act, and the prosecution case is that Mr Weisz did acts for the purpose of enabling or aiding Cullen to commit the offence. That is what really is the crux of the factual issues that you are going to have to decide. Then you also have got to be satisfied beyond reasonable doubt if you were to find criminal responsibility of Mr Weisz on the basis of paragraph [(b)], number 3, that Mr Weisz did so. That is, Mr Weisz did the act for the purpose of enabling or aiding Cullen to commit the offence with the intention to aid Cullen to commit the offence. So that is the intention that you would have to be satisfied beyond reasonable doubt that Mr Weisz had at the time that he did the act, that was for the purpose of aiding Cullen to commit the offence of murder, that he did the act with the intention to aid Cullen to commit the offence. And, fourthly, that Mr Weisz had actual knowledge or expectation of the essential facts of the principal offence, including the state of mind of Cullen that at the time of the killing he intended to cause Mr Swinton's death or at least to cause him grievous bodily harm. This is where it becomes relevant that I told you before what the elements of the offence of murder were.
[360]
So basically for the Crown to prove criminal responsibility under paragraph [(b)] you would have to be satisfied beyond reasonable doubt that Mr Weisz did an act for the purpose of helping Mr Cullen to commit murder, and at the time that he did that act that Mr Weisz knew that Cullen intended to commit the offence of murder, and that Mr Weisz knew what was involved in the offence of murder; that he knew either that Cullen would do an act to Mr Swinton for the purpose of killing him, or at least to cause him grievous bodily harm.
[361]
Now, proof of aiding involves proof of acts by Mr Weisz intentionally directed towards the commission of the offence of murder by Cullen, and proof that Mr Weisz was aware that was the offence that was to be committed. To aid simply means to assist or help. The prosecution must prove that Mr Weisz knew that the offence of murder was the offence that was intended to be committed by Cullen.
[362]
This is very important, what I am about to tell you. It is not enough for the prosecution to prove that Mr Weisz knew only of the possibility that the offence of murder might be committed by Cullen, for Mr Weisz to be liable as a party to the offence of murder under paragraph [(b)]. What the prosecution has to prove is that Mr Weisz knew that the offence of murder was the offence that was intended to be committed by Cullen. So we are not talking about possibilities here. We are talking about Mr Weisz acting, knowing that Cullen was going to commit the offence of murder.
[363]
Now, the acts that the prosecution attributes to Mr Weisz, that the prosecution says were done for the purpose of aiding Cullen to commit the offence of murder, are urging Cullen to kill Mr Swinton. That is the primary act that the prosecutor was relying on, but he also frames his case in an alternative way, and that is that in knowing of the plan by others to kill Mr Swinton, that what Mr Weisz did was urge Cullen to give Mr Swinton a hot shot, told Cullen and Thompson on 20 October 2004 when and where he could locate Mr Swinton, and made a number of telephone calls on 21 October 2004 in order to coordinate the meeting of Cullen and Thompson with Mr Swinton. Now, the prosecution doesn't have to prove all of those acts were done with that intention. The prosecution has to prove at least one of those acts was done by Mr Weisz for the purpose of aiding or enabling Cullen to murder Mr Swinton. So that is paragraph [(b)].
[364]
Mr Nolan spoke to you in terms of whether you would be satisfied beyond reasonable doubt that [Mr Weisz] orchestrated the killing of Mr Swinton. The prosecution does not have to prove that [Mr Weisz] was the only person who aided Cullen to commit the offence of murder. It has to prove criminal responsibility of [Mr Weisz] as a party to the offence within the meaning of the provisions of the law that I am telling you about. The prosecution hasn't set out to prove, and it doesn't need to prove, that Mr Weisz was the only person involved in this matter. For the prosecution case against the defendant it has to prove the criminal responsibility of Mr Weisz in the manner that I am indicating to you, and I have already dealt with paragraph [(b)].
[365]
I am now going to go to paragraph [(d)]. So, if you would like to look at paragraph [(d)] under the heading "Parties to offences" while I go through the four things that the prosecution has to prove beyond reasonable doubt in order to establish liability on the part of Mr Weisz for the murder of Mr Swinton under paragraph [(d)]. For the prosecution to prove that Mr Weisz counselled or procured Cullen to commit the offence of murder it must prove to your satisfaction beyond reasonable doubt each of the following things: (1) Cullen committed the offence of murder; (2) Mr Weisz counselled in the sense of urging or advising Cullen to commit the offence; (3) Cullen committed the offence after being urged or advised by Mr Weisz to commit the offence; (4) Cullen committed the offence when carrying out that counsel.
[366]
In considering whether Mr Weisz urged or advised Cullen to commit the offence of murder you must consider what it was, if anything, that Mr Weisz urged or advised Cullen to do. The prosecution case is that Mr Weisz urged or advised Cullen to give a hot shot to Mr Swinton in order to kill him. The manner in which Mr Swinton was killed was by Cullen stabbing him. As a matter of law I tell you that if you are satisfied beyond reasonable doubt that Mr Weisz had counselled Cullen to commit the offence of murder against Mr Swinton by administering a hot shot, it is immaterial that the offence was committed by Cullen stabbing Mr Swinton to death rather than being committed in the way counselled of administering a hot shot, provided the offence of murder by stabbing was a probable consequence of carrying out that counsel or advice to kill by administering a hot shot.
[367]
Now, what I just read out to you was my application of the provision of the law that I have set out for you under the heading "Mode of execution - immaterial", and you will see when you look at that in an anonymous way it actually sets out what I have just said to you. So, basically, if you were going to find that there was any counselling by Mr Weisz to Cullen, it would be in respect of giving a hot shot. I mean, the only evidence you have heard, basically, is along those lines, and you know that that is not the manner in which Mr Swinton was killed. He was killed by stabbing, but the provision of our law that I have set out under the heading "Mode of execution - immaterial", is relevant here and what you have got to consider is whether the offence of murder by stabbing was a probable consequence of carrying out the advice, if you find that advice was given to kill by administering a hot shot.
[368]
Now, a probable consequence is more than a mere possibility. For a consequence to be a probable one it must be one that you would regard as probable, in the sense that it could well have happened. The facts constituting the offence actually committed murder by stabbing, must be shown to be a probable consequence of carrying out the counselling to kill Mr Swinton by administering a hot shot, in the sense that murder by stabbing could well have happened as a result of carrying out the counselling to kill Mr Swinton by administering a hot shot.
[369]
Now, I think overall there's only been a little bit of evidence of what a hot shot actually entails, and you have really got to act on the evidence and the evidence that you accept, and it is up to you whether you accept any of the evidence that has been given in this trial on what a hot shot is."
[370]
Her Honour then set out some of the evidence on this issue.
[371]
[99] Her Honour then turned to the issue under the heading "Common purpose" on ex "E" (s 8), which read:
[372]
"When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such a purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence".
[373]
"Basically what that means is that if two or more people plan to do something unlawful together, and in carrying out the plan an offence is committed, the law is that each of those people is taken to have committed that offence if it is the kind of offence that could well have been committed as a result of carrying out that plan.
[374]
For the prosecution to prove that Mr Weisz is guilty of the offence of murder, relying on this basis of criminal responsibility, it is necessary for you to be satisfied beyond reasonable doubt of three things. One, there was a common intention to prosecute an unlawful purpose, and for that you must consider fully and in detail what was the alleged unlawful purpose and what carrying out that unlawful purpose was intended to involve. This involves a subjective test. Two, the offence of murder was committed by Cullen in carrying out the unlawful purpose. That is, that Cullen committed the murder of Mr Swinton in carrying out the plan. Three, the offence of murder was of such a nature that its commission was a probable consequence of the prosecution of that purpose, and that involves an objective test.
[375]
The nature of the common intention to prosecute an unlawful purpose has to be determined in the light of the evidence that you accept, and particularly with respect to the state of knowledge of Mr Weisz. It is Mr Weisz's own subjective state of mind which decides what was the common intention to prosecute an unlawful purpose. The prosecution case is that Mr Weisz had a common intention with Cullen and others to do violence to Mr Swinton, whether by administering a hot shot or otherwise. If you are satisfied beyond reasonable doubt there was a common intention involving at least Mr Weisz and Cullen to inflict violence on Mr Swinton, you must ask if you are satisfied beyond reasonable doubt that the offence of murder was committed by Cullen in the prosecution or carrying out of that unlawful purpose. If you are so satisfied, then you must consider whether you are satisfied beyond reasonable doubt that the offence of murder was such that its commission was a probable consequence of the prosecution of that common unlawful purpose. A probable consequence is a consequence which would be apparent to an ordinary, reasonable person in the position of Mr Weisz, with Mr Weisz's state of knowledge at the time when the common purpose was formed.
[376]
The test is an objective one, and is not whether Mr Weisz himself recognised murder as a probable consequence, or himself realised or foresaw it at the time the common purpose was formed. The test is whether an ordinary, reasonable person in the position of Mr Weisz, with Mr Weisz's state of knowledge when the plan to do violence to Mr Swinton was formed, would have foreseen the murder, that is the intentional killing of Mr Swinton, as a probable consequence of carrying out that plan.
[377]
Now, I have used the term a probable consequence. Again, it has the same meaning that I told you before when I was using it in relation to looking at paragraph [(d)]. A probable consequence is more than a possibility. I will say that again. A probable consequence is more than a mere possibility. For a consequence to be a probable one it must be one that you would regard as probable in the sense that it could well have happened.
[378]
The prosecution also has an alternative case based on the common purpose provision. If you are not satisfied beyond reasonable doubt that the offence of murder was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose, in that instance you would consider whether the commission of an offence of manslaughter, unintentional killing, was a probable consequence of carrying out the common unlawful purpose.
[379]
In relation to this alternative case, if you are satisfied beyond reasonable doubt that an unlawful killing of another person in circumstances which would amount to manslaughter, and the acts committing such an offence were committed by Cullen, and that in the commission of those acts the offence of manslaughter was objectively a probable consequence of prosecuting the subjectively agreed unlawful purpose, then you could find Mr Weisz guilty of manslaughter even though Cullen went beyond the agreed or probable consequence and committed the more serious offence of murder.
[380]
Now, I have just given you the directions on the law, and the prosecution seeks to prove the case against Mr Weisz in respect of the offence of murder in the three different ways that I have identified for you. The prosecution need only satisfy you beyond reasonable doubt of [Mr Weisz's] guilt of the offence of murder in one of these three alternative ways. If the prosecution is unable to prove the offence of murder beyond reasonable doubt, the prosecution also has an alternative case against [Mr Weisz] in respect of the offence of manslaughter, based on the common purpose provision."
[381]
[101] After the jury had been considering their verdict for some time, they sent the judge the following note: "Will her Honour provide a hard copy of conditions to be satisfied under the points (b) and (d) parties to offences and the common purpose." The judge provided them with the following document (ex "J"):
[382]
[1] In the case of paragraph (b), for the prosecution to prove that Mr Weisz did an act for the purpose of enabling or aiding Cullen to commit the offence it must prove to your satisfaction beyond reasonable doubt each of the following things:
[383]
(2) Mr Weisz did acts for the purpose of enabling or aiding Cullen to commit the offence;
[384]
(3) Mr Weisz did so with the intention to aid Cullen to commit the offence;
[385]
(4) Mr Weisz had actual knowledge or expectation of the essential facts of the principal offence including the state of mind of Cullen that at the time of the killing he intended to cause Mr Swinton's death, or at least to cause him grievous bodily harm.
[386]
[2] In the case of paragraph (d), for the prosecution to prove that Mr Weisz counselled or procured Cullen to commit the offence of murder, it must prove to your satisfaction beyond reasonable doubt each of the following things:
[387]
(2) Mr Weisz counselled, in the sense of urging or advising, Cullen to commit that offence;
[388]
(3) Cullen committed that offence after being urged or advised by Mr Weisz to commit the offence;
[389]
(4) Cullen committed the offence when carrying out that counsel.
[390]
[3] For the prosecution to prove that Mr Weisz is guilty of the offence of murder relying on this basis for criminal responsibility, it is necessary for you to be satisfied beyond reasonable doubt of three things that:
[391]
(1) There was a common intention to prosecute an unlawful purpose for which you must consider fully and in detail what was the alleged unlawful purpose and what carrying out that unlawful purpose was intended to involve. This involves a subjective test.
[392]
(2) The offence of murder was committed by Cullen in carrying out that unlawful purpose. (i.e. Cullen committed the murder of Mr Swinton in carrying out the plan).
[393]
(3) The offence of murder was of such a nature that its commission was a probable consequence of the prosecution of that purpose. This involves an objective test."
[394]
[102] Her Honour then told the jury that in respect of paragraph (d) it was relevant to take into account the passage in ex "E" under the heading "Mode of execution immaterial" (s 9) and that this section "links up with" paragraph (d) (that is, s 7(1)(d)).
[395]
[103] Her Honour then turned to "Common purpose" (s 8) and continued:
[396]
"... when I was dealing with the common purpose provision in relation to the - the case of the prosecution for the offence of murder, they were the three things that I set out that you would have to be satisfied beyond reasonable doubt. And you might also remember I summed-up to you on the Crown's - or the prosecution's alternative case based on the common purpose provision for the offence of manslaughter.
[397]
So if you had concluded that the defendant was not guilty of murder and that would mean that you were satisfied - you - that the Crown had not proved beyond reasonable doubt the guilt of murder in relation to any of the three basis relied upon, you'd look at manslaughter. I didn't do you up a separate paragraph for manslaughter, but it's the - basically the same three conditions except you substitute the offence of manslaughter instead of - the offence manslaughter in paragraph 3 of the conditions.
[398]
All right. And, of course, I should say the offence of murder, which is referred to in paragraph 2 of the conditions of common purpose has all the elements of manslaughter, but the additional element of intent. And so it doesn't matter for the alternative case that, as you know, the offence that was actually committed by Cullen was the offence of murder."
[399]
[104] Before directly turning to Mr Davis's contentions, it is helpful to summarise the most significant evidence capable of supporting the guilty verdict of murder on the basis of s 7 or s 8.
[400]
[105] Cullen's statement of 15 November 2004[32] was evidence of the following. Weisz had previously assisted Flanagan in his drug business through his threatening and overbearing behaviour in encouraging Cullen to repay his drug debts to Flanagan. Weisz was present on the night of 19 October 2004 when Flanagan said he had a job for Cullen to clear his bill. The next night, Flanagan told Cullen in Weisz's presence to pick up Swinton from the airport the following day and "give him a hot shot and then get rid of him". After Flanagan elaborated on the preparations for obtaining the hot shot, Weisz said, "I will call youse in the morning." True to his word, Weisz called Thompson's mobile phone early the next morning and Cullen answered. Weisz said, "Hurry up and get the fuck over there before [Swinton] gets a cab or some other way to leave the place." Weisz rang back about 45 minutes later and spoke to Thompson who then instructed Cullen and Natalie, the woman with them, to get their belongings together and go to the airport. Cullen then set out in his statement the events leading up to him killing Swinton with a knife he had in the back of his car. Cullen claimed that after killing Swinton he met up first with Flanagan and then with Weisz. Cullen told Weisz, "It's done" and said that Weisz "seemed real happy about it ... and said, "Oh, good."
[401]
[106] Other evidence clearly established that Weisz was in possession of Swinton's vehicle a few weeks prior to Swinton's death. Weisz admitted that he kept the vehicle as security for Swinton's debt to Flanagan. Weisz knew that Swinton's property from the vehicle had been distributed to others well before his murder. Kitzelmann saw Weisz remove property from the vehicle.
[402]
[107] Weisz told police that he met Swinton a few weeks before his killing. He stayed with him at a motel for at least seven days before Swinton returned home to Maryborough. Swinton originally owed Flanagan in excess of $3,000. Swinton travelled from Maryborough to Brisbane on 15 October 2004 where he met up with Thompson and Weisz and paid $2,300 off that debt. Weisz agreed that he and Thompson behaved in an intimidatory way towards Swinton. Swinton complained of robbery with personal violence in respect of this episode in a 000 call on 15 October 2004.
[403]
[108] When Swinton was in Maryborough at 4.15 pm on 20 October 2004 (the day before his death) he telephoned Weisz and spoke about being picked up from Brisbane airport. Swinton's diary noted Weisz's mobile phone number and recorded: "$1000 owing to pick up Toyota and all pozeshans".
[404]
[109] Weisz gave police the following information. Swinton telephoned him and told him he had the further $1,000 and was coming to Brisbane the next morning. Weisz arranged for Thompson to pick up both Swinton and the $1,000 owing to Flanagan. Weisz said, "That's when they said they were going to give him a hot shot." Weisz was in partnership with Flanagan and Thompson in a drug dealing business. Thompson was to collect the money because Flanagan and Weisz were working. Weisz claimed that he, Thompson and Cullen all knew that some "blokes from down south" wanted Swinton "out of the way". Thompson volunteered to look after that by organising a hot shot to "put him out". Weisz said he thought a hot shot was "[a]n injection in the head to make him fall really ill. To sort of drop someone down to their knees sort of thing". The night before the killing Thompson was bragging and skiting that he would give Swinton a "hot shot with black and wack". Although no-one used the words "murdered" or "killed", there was discussion in Weisz's presence that it was intended that Swinton would die as a result of the hot shot.
[405]
[110] In a later interview Weisz initially drew a distinction between "killing" and "hot shotting" but he agreed that a hot shot was an overdose of drugs with a view to making the resulting death look non-suspicious. Weisz then qualified this by adding that he had also heard the expression used as meaning making someone "really crook" by an overdose of drugs. He agreed that the plan was for Thompson and Cullen to take Swinton to a toilet at the airport, give him a "hot shot" and take the $1,000 owed by Swinton.
[406]
[111] Weisz's mobile telephone records showed frequent contact between Weisz's mobile phone and Flanagan and between Weisz's mobile phone and Thompson's mobile phone on the day of the killing, both preceding and after the killing. There was no phone contact around the time of the murder which was at about 2.30 pm. Weisz told police that these phone contacts were to ascertain whether Thompson had picked up the $1,000 from Swinton and paid it to Flanagan. When asked whether there had been a conversation between Weisz, Flanagan, Thompson and Cullen in relation to Swinton being killed, Weisz said there "was mention ... of this hot shot, and [Thompson] said he was going to organise a hot-shot for him the day before arriving. ... that him and [Cullen] would go and do it." The police asked Weisz whether he was saying that there was discussion that when Swinton arrived in Brisbane on 21 October 2004 he was to be murdered. Weisz responded:
[407]
"[h]ot-shotted, yes. ... No-one mentioned the word 'murdered' or 'killed'. ... hot-shot him or whack him, so to speak.
[408]
Was that an indication that he would die as a result of the hot-shot?-- I think that's what the intentions were, yes."
[409]
[112] Later he told police that during the week preceding Swinton's killing there was mention that a person down south wanted Swinton "out of the way" and Thompson volunteered that he knew someone who could make up a cocktail and give him a hot shot. He understood that "hot shotting" meant putting Swinton out of action or "whacking" him. He agreed that on the morning that Swinton was killed, Weisz knew that Thompson did not have the hot shot and that they would go and make something themselves. Although he often protested that he did not think Thompson and Cullen would kill Swinton, he repeated that "this person down south wanted [Swinton] out of the way"; he understood that this person wanted Swinton dead and Thompson said he would look after that by giving Swinton a hot shot.
[410]
[113] He agreed with police that on the morning of the killing he sent messages to Flanagan expressing his concern that Cullen and Thompson might be recorded by airport cameras when they collected Swinton. When he sent those messages he believed that Thompson and Cullen were going to cause Swinton some harm. He was "certain that something was going to happen" that day but in the back of his mind was "really hoping that it wasn't".
[411]
[114] The police officer pointed out Weisz's inconsistent statements as to his knowledge about what Thompson and Cullen were to do to Swinton, asking: "I'm not trying to put words in your mouth but what you've said to us is that it's been decided that he was going to die that day?" Weisz responded: "he was going to get a hot shot, yes." Weisz added that he did not want to believe that Swinton would in fact be killed. Weisz later agreed that he had sent a text message that morning to Flanagan to the effect that if Thompson and Cullen went ahead with what was planned for Swinton it might look like a robbery murder.
[412]
[115] It should again be noted that neither counsel sought re-directions on her Honour's summing-up on s 7, s 8 or s 9 Criminal Code.
[413]
[116] Barlow makes clear that the term "offence" when used in s 7, s 8 and s 9 Criminal Code means "offence" as defined in s 2 of the Code: "an act or omission which renders the person doing the act or making the omission liable to punishment". In the present case, the offence for the purposes of s 7, s 8 and s 9 was Cullen's intentional killing of Swinton by stabbing him with a knife.
[414]
[117] To be liable under s 7(1)(b) it is necessary that an accused person has actual knowledge of the essential circumstances of the offence ultimately committed; the accused person must have intended to encourage or aid the actual offender to commit the offence: Giorgianni v The Queen.[33] It is not, however, necessary that the accused person, who does an act or omits to do an act for the purpose of enabling or aiding the actual offender, to know every detail of the offence ultimately committed: R v Ancuta.[34] The judge was not required to so direct the jury here. Nor is there any reason to think that the jury did not understand that the learned primary judge's use of the terms "the offence" or "the offence of murder" in her directions on s 7(1)(b), s 7(1)(d), s 8 and s 9 was referring to Cullen's act of killing Swinton by stabbing him with a knife. The jury had with them in the jury room the defence admission that Cullen had "murdered Swinton by stabbing him with a knife". From the way the case was conducted and from her Honour's directions, the jury could have been in no doubt that "the offence" for the purposes of s 7, s 8 and s 9 (the act or omission which rendered Cullen liable to punishment) was Cullen's intentional killing of Swinton by stabbing him with a knife in respect of murder and in respect of manslaughter Cullen's killing of Swinton by stabbing him with a knife without that intention. The contention that the jury were mis-directed as to the meaning of "offence" in s 7(1)(b), s 7(1)(d) and s 8 is not made out.
[415]
[118] Her Honour's directions[35] and re-directions[36] made clear that s 9 (contained in ex "E" under the heading "Mode of execution immaterial") applied only to s 7(1)(d) and not to s 8 which was set out by her Honour in ex "E" and ex "J" under the heading "Common purpose". In ex "E" and ex "J", s 9 ("Mode of execution immaterial") followed s 7(1)(d) and preceded s 8 ("Common purpose"). The contention that the jury may have thought s 9 applied to s 8 is not made out.
[416]
[119] The defence case was that the jury could not be satisfied beyond reasonable doubt that Weisz aided or counselled anyone to commit the offence of murder or manslaughter; that Cullen acted in an impromptu and unplanned way in killing Swinton, perhaps because he was in a drug-affected state; and that the telephone traffic on Weisz's phone was consistent with Weisz's concern only that Cullen and Thompson collect Swinton's $1,000 debt. The defence did not dispute that on the morning of the killing, the original plan to "hot shot" Swinton had changed because no hot shot was available.
[417]
[120] There was cogent evidence before the jury of the following matters. Weisz knew the plan to "hot shot" Swinton was, at least by the morning of the killing, one of Thompson and Cullen doing him harm by whatever means became available to them. Weisz then continued to assist in the joint enterprise to kill Swinton by making telephone calls to the others involved: he urged Thompson and Cullen to collect Swinton and the $1,000 debt; expressed his concern that Thompson and Cullen might be videoed on the airport road; and was worried that their planned criminal acts against Swinton could later be discovered and regarded as a robbery murder connected to Flanagan and Weisz. If the jury accepted that view of the evidence, then the common intention in which Weisz had joined, at least by the morning of 21 October 2004, was to kill Swinton by whatever means Cullen and Thompson could devise so that Cullen's intentional killing of Swinton by stabbing him with a knife was a probable consequence of that common unlawful purpose. This is consistent with the principles recently discussed by this Court in Keenan[37] and the cases referred to there, including Varley v R;[38] R v Anderson and Morris[39] and R v Smith (Wesley).[40] The present case fell clearly and squarely within that category of cases discussed in R v Johnston[41] where a jury is entitled to rely on s 8 even where the offence actually committed varies from the common unlawful purpose because the jury could infer that the common unlawful purpose was to do serious harm to the victim by whatever means seemed appropriate to the actual offender. This case is clearly distinguishable on its facts from Keenan. There, the common unlawful purpose was to "punch up" the victim with "fisticuffs" or, at its highest, with a baseball bat, but where the actual perpetrator of the offence, quite outside that common unlawful purpose, instead shot the victim with a gun. Unlike in the present case, in Keenan there was no evidence of a broad common intention to kill or seriously harm the deceased person by whatever means the perpetrators might find available or bring to hand.
[418]
[121] As this Court explained in Keenan,[42] s 8 has a unique role in Ch 2 Criminal Code and in the Code generally. It extends criminal responsibility to offences that the offender may not know are to be committed. Section 8 has the result that an accused person has committed an offence if the offence (here, Cullen's intentional killing of Swinton by stabbing) is of such a nature that its commission was a probable consequence of prosecuting the common joint intention. The primary judge's directions, in combination with the subsequent re-directions set out earlier in these reasons, made clear to the jury that they could only convict Weisz of murder on the basis of s 8 if satisfied beyond reasonable doubt that he formed a common intention with at least Cullen to prosecute an unlawful purpose, namely to inflict serious harm on Swinton by whatever means Cullen and Thompson might devise and that, in carrying out that purpose, Cullen intentionally killed Swinton by stabbing him with a knife and that this offence was a probable consequence of the prosecution of that purpose.
[419]
[122] Mr Davis's contention that the judge's directions on s 8 were flawed is not made out.
[420]
[123] In ensuring that the issue of manslaughter was left for the jury's consideration, by reference to ex "J" the trial judge invited the jury, if not satisfied beyond reasonable doubt of Weisz's guilt of murder under s 8, to substitute in her directions on s 8 in ex "J", the term "offence of manslaughter" for her use of the term "offence of murder". Her Honour explained to the jury that the offence of manslaughter involved the offence that was actually committed by Cullen (which, according to the defence admission in ex 1, was intentionally killing Swinton by stabbing him with a knife) but without the element of intent. Her Honour also told the jury in considering the case of manslaughter against Weisz under s 8, that it did not matter that the offence that was actually committed by Cullen was the offence of murder. The effect of these directions was that the jury could only convict Weisz of manslaughter under s 8 if they were satisfied that he formed a common intention to prosecute an unlawful purpose (determining what was the alleged unlawful purpose and what was intended to be involved in carrying it out); that the offence of manslaughter (Cullen's killing of Swinton by stabbing him with a knife) was committed in carrying out that unlawful purpose and that the offence of manslaughter was of such a nature that its commission was a probable consequence of the prosecution of that purpose.
[421]
[124] Mr Davis's contention that the judge's directions on manslaughter by way of s 8 were flawed is not made out. These grounds of appeal fail.
[422]
The grounds of appeal relating to whether the jury verdict was unsafe and unsatisfactory[43]
[423]
[125] Mr Davis also contends that the verdict of guilty of murder was unreasonable or cannot be supported having regard to the evidence: s 668E(1) Criminal Code. A consideration of this ground of appeal requires a consideration of whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen[44] and MFA v The Queen.[45]
[424]
[126] The evidence set out in some detail earlier in these reasons, and especially the extracts to which I have referred in considering the preceding ground of appeal, amply demonstrates that the jury were entitled to conclude beyond reasonable doubt that Weisz either intentionally aided or intentionally counselled Cullen to intentionally kill Swinton by stabbing him with a knife. That evidence was equally capable of convincingly proving beyond reasonable doubt that Weisz formed a common intention with Flanagan, Thompson and Cullen for Cullen and Thompson to seriously harm or to kill Swinton with a "hot shot" or whatever means Cullen and Thompson were able to devise; and that Cullen's intentional killing of Swinton by stabbing him with a knife was a probable consequence of the prosecution of that purpose. The prosecution evidence amounted to an overwhelming case against Weisz under either s 7(1)(b), s 7(1)(d) or s 8. This ground of appeal also fails.
[425]
[127] It follows that the appeal should be dismissed.
[426]
[128] MACKENZIE AJA: This is an appeal by the appellant against his conviction for murder. The victim, Daryl Graeme Swinton was murdered by Phillip Gary Cullen, by cutting his throat with a knife and stabbing him, at a location at Munruben, south of Brisbane. Cullen pleaded guilty to that offence. There were formal admissions that he had killed Swinton in that way and that the appellant was not there when the murder happened. Cullen was called as a witness, firstly on a voir dire and secondly at the trial. He claimed that his memory of events was severely compromised by long term drug use. He was declared adverse under s 17 of the Evidence Act 1977 (Qld) and statements given by him around the time of his apprehension by police and after he had pleaded guilty were in evidence.
[427]
[129] He did give some evidence before the jury. His evidence-in-chief was characterised by extreme forgetfulness on most relevant issues, and denials of the truth of inculpatory parts of the statements concerning the appellant. Under cross-examination, there was a similar pattern, which included evidence that he had been put under pressure to implicate Thompson falsely in being at the scene of the killing. He also attributed his bad memory to excessive drug use.
[428]
[130] The appellant was alleged to be a party to the offence by virtue of the operation of s 7(b), 7(d) in conjunction with s 9, and s 8 of the Criminal Code. The substituted grounds of appeal may be summarised as follows:
[429]
1. Failure to give any directions as to the use to which the evidence of post offence threats by the appellant to Cullen;
[430]
2. Failure to give any directions as to the limitations on the use of that evidence;
[431]
3. Failure to give an adequate warning against relying on Cullen's evidence, in particular that there was no direction as to what evidence was capable of corroborating Cullen's evidence and what was not;
[432]
4. Failure to give adequate directions in relation to s 8;
[433]
5. That the conviction was unsafe and unsatisfactory, as it was not open to the jury to convict the appellant in reliance upon s 8 or upon s 7(b) with the aid of s 9.
[434]
The comprehensive reproductions of relevant passages of evidence in the judgment of McMurdo P make it unnecessary for me to do so independently except where it is necessary to quote passages for emphasis.
[435]
[131] It is convenient to explain why, if there is no misdirection requiring a retrial to be ordered, there was ample evidence to conclude that the appellant was a party to the offence of murder. Following this approach will provide an overview of the evidence and provide a framework for consideration of some of the other issues in the appeal.
[436]
[132] In his first statement of 15 November 2004 Cullen said that he had regularly been buying speed from a truck driver called Darren Flanagan. When he could not afford it, he was given drugs on credit. About the time that this commenced, in mid-2004, he met the appellant through another truck driver Michael Thompson. It was also about that time he lost his job at a meatworks because of his increasing drug use. When he got into difficulties in repaying his debt, Flanagan put pressure on him. Cullen then started getting drugs from Flanagan to sell intending to pay any profits he made to reduce the debt. Instead, he compounded the problem by using most of the drugs himself. More pressure was put on him by Flanagan and the appellant whom he had heard on one occasion speaking about being Flanagan's debt collector.
[437]
[133] At this time, Cullen was associating with Thompson whom he thought was protecting him to some extent from Flanagan and the appellant. By way of explanation of the connection between the men so far named, it can be seen that, in the course of long and contradictory accounts given by the appellant during his interviews with police, there was an evolution from denials of knowing Flanagan and knowing Thompson only by his first name, to an acceptance that he knew them, to an admission that he was a partner in their drug business. Swinton, who lived in Maryborough, was also indebted to Flanagan for drugs and under pressure to pay.
[438]
[134] On 19 October 2004, Cullen went in Thompson's car to a service station where Flanagan and the appellant were. Cullen was called over and told, without any detail, there was a job for him which would clear his debt. The following evening, he went to the service station to try to get more drugs from Flanagan. Flanagan told him that the job to clear the debt was to collect a man from the airport the next morning, give him a "hot shot" and get rid of him. The appellant was not there at that time. Cullen went back to the motel where Thompson and Thompson's girlfriend were staying and told him.
[439]
[135] As a result they all went back to the service station where Cullen saw Flanagan and the appellant. When he asked what was going on, Flanagan repeated what he had said previously, adding that the man's name was Ned. There is other evidence that that was a nickname given to Swinton. The appellant then told Cullen that he could follow Thompson who would pick him up and then he could go and do it. He explained that there would be three syringes provided, one each for him and Thompson and a marked one which was the hot shot. Cullen was warned in threatening terms to make sure that he carried out the task properly.
[440]
[136] The following morning, the appellant phoned on Thompson's mobile which was answered by Cullen because Thompson was still asleep. The appellant told them to hurry up and go to the airport before Swinton got a cab or left in some other way. About 45 minutes later, the appellant rang again, as a result of which they left for the airport. The remainder of that recorded interview is concerned with events on the way to the airport and at the airport. The only important feature for present purposes is that it is said that, on the way, Thompson said that he did not have a hot shot and that at the airport, when Swinton inquired about the whereabouts of his personal property (which other evidence suggests was being held as security for his drug debts but was already being appropriated by others), it was decided between Thompson and him to take him to Munruben and kill him. Cullen said that after the killing had occurred he drove back to the service station where he saw the appellant on the side of the road. He told him, "It's done", to which the appellant replied, "Oh good".
[441]
[137] In the second statement on 1 December 2006, after he had been sentenced for the murder, he said that he had withheld some information from his original statement because he was in fear of his and his family's safety because of threats from Thompson and the appellant. He then gave another version of events on the day of the killing. The main differences were as to when he found out that there was no hot shot (before they left for the airport instead of on the way), and saying that Thompson was in his company at the time of the murder, contrary to what he had said in his original statement. He adhered to his version of events that led to his involvement.
[442]
[138] So far as the appellant is concerned, on 22 October 2004, the day after the murder, he gave a statement to the police in which he said that on 25 September 2004, Swinton had walked up to him while he was working on his truck and introduced himself. When it became apparent that Swinton had nowhere to stay and had no money until a cheque was cleared, he offered to let him stay in a room at a motel in which he was also staying. The following Monday, Swinton offered the use of his four wheel drive to the appellant, who drove it the following weekend to Maryvale where he resided and to which he usually returned on weekends. It was not until Monday 4 October 2004, after the appellant told him that he was not going to pay for the motel room any more, that Swinton left. The picture painted of Swinton by the appellant was that he was friendless and that he had something wrong with him mentally although, towards the end of the period he seemed to be "doing well". The appellant also accounted in the statement for his movements on the day of the murder.
[443]
(d) Record of Interview 25 October 2004 - Appellant
[444]
[139] The appellant participated in recorded interview on 25 October 2004. After he had been questioned, with an air of scepticism on the part of the investigators about his willingness to share a room with a man who had no money and who appeared to him to be mentally odd, and that Swinton had given him his motor vehicle to use, he was confronted with a variety of issues that emerged from other investigations that had been made. The jury would have been entitled to form the view that, as a result of the raising of those issues, he had been caught out on them, without giving any plausible response to them. They included:
[445]
• The extent of his knowledge of Thompson and his family;
[446]
• Whether Swinton had made arrangements with him the day before his death by telephone to be picked up at Brisbane Airport;
[447]
• Whether Swinton owed money and that the appellant was the person who was to collect it;
[448]
• Whether Swinton's vehicle and possessions were being held as security for the debt;
[449]
• When the appellant had last been associated with Swinton's vehicle; and
[450]
• The reason why he had stayed with Swinton at the motel.
[451]
[140] After a break in which the tapes were changed, the appellant made concessions concerning some of them. He also said that he was supposed to meet Swinton at the airport to collect the money on Flanagan's behalf. However, because he had work commitments the following morning, he told Flanagan of his difficulty and volunteered to get Thompson and Cullen to go. He said that he did not know that Swinton had been taken from the airport until late in the afternoon. He claimed that he was unaware that Swinton was going to be harmed and was shocked when Cullen told him what he had done.
[452]
(e) Record of Interview 27 October 2004 - Appellant
[453]
[141] He was further interviewed on 27 October 2004. One of the purposes was to give the appellant the opportunity to give further information. He gave an interpretation of an entry made by Swinton in his diary which had the appellant's Christian name and phone number in it and a reference to $1,000 being owing to pick up the vehicle and his possessions. He said that Swinton had left his vehicle and possessions with him but denied that they were being held "in ransom" for the outstanding debt. He said that on a previous occasion, he and Thompson had gone to the airport to collect the debt which was at that time $3,000. Swinton paid $2,300 which the appellant passed onto Flanagan. (Later, the fact that $1,000, rather than $700 remained owing was accounted for by the debt being increased because he had not paid in full on that occasion).
[454]
[142] He also said, in the context that someone else had designs on Swinton's vehicle, that he had told Flanagan and Swinton, at different times, that he would resist any attempt by another person to take the vehicle. As he explained it:
[455]
" - I'm not a standover tactic or a strong arm or anything but, ah, ah, I'm more like a chicken than anything else - more of a teddy bear sort of a person but people sort of like - like freak out just by the look of me but I'm not a standover person or a bully or a fighter or anything but, ah, [indistinct] just fucking try and take it, you know."
[456]
[143] It was in this interview that the appellant said that when he spoke to Thompson to get him to collect the balance of the money from Swinton at the airport, Thompson said that he was going to give him a "hot shot". He related that Swinton had told him previously that someone from Beaudesert wanted him out of the way. The appellant believed that it had some connection with Swinton knowing too much about a supply of Sudafed. The questioning proceeded:
[457]
"Are you saying that you told him that Ned's coming in and you said, "Go to the airport and get the thousand dollars off him"?-- Yes, yep. I said, "You'll have to go to the airport and meet him there and pick up the thousand dollars."
[458]
And he said to you, what?-- Well, he just sort of said, "Well, when's - when's that?" I said, "Well, that's tomorrow, 8 o'clock in the morning. You know I had had, you know, "You got to be there." And it's like I said, well I don't remember the words in between but he said that, "He'll go and organise a hot shot for him that - that night to [indistinct] fucken he'd be there.
[459]
You say he organised a hot shot for him the night before Ned
[460]
Okay?-- Because he had to go out of his way - out of his way to go and find someone who - to make a hot shot up for him."
[461]
"In the back of my mind I felt it was just a lot of bullshit."
[462]
"--An injection in the head to make him fall really ill. To sort of drop someone down to their knees sort of thing."
[463]
He said that he had a conversation with Flanagan about the fellow who wanted Ned out of the way.
[464]
[145] The appellant also said that on the evening before the murder, he was at the BP service station where he heard it mentioned in a conversation between Flanagan and Thompson that Swinton would be given a hot shot in the airport toilet. He said that Cullen was also in the vicinity of the service station on that evening.
[465]
[146] He was asked about his statement that he, Flanagan and Thompson were partners in the drug business. He was asked if he came on board when they asked him to. He said that he was not asked. It was more that they accepted him into the partnership with them. He said that Flanagan was around the area during the day. The appellant wanted to be there around the nightshift and that Flanagan wanted to use Thompson on the weekends. Shortly afterwards, he said that he believed he had been kept in the dark in relation to certain things.
[466]
[147] He also said that on the evening before the arrival of Swinton in Brisbane, he and Flanagan had talked about other people who owed money and seeing about getting it recovered from them. When asked about his involvement in relation to outstanding debts, he said that a couple of times someone owed money and when Flanagan was unable to go and see the person, he would go around and collect it for him.
[467]
[148] He also spoke of his attempts, on the morning of 21 October 2004 to contact Thompson to get him to go to the airport in a timely way. He confirmed that he spoke to Cullen during one of these calls. He also said that Swinton had phoned from the airport on several occasions and that he had told him to "sit tight" until the others arrived.
[468]
[149] He also said that when Cullen had returned and told him that he had killed Swinton, he also said that he was debt free. The appellant said that he knew that Cullen was in debt to Flanagan but denied telling Cullen, or having any knowledge of Cullen being told, to kill Swinton to extinguish his debt.
[469]
(f) Record of Interview 28 October 2004 - Appellant
[470]
[150] Another recorded interview was conducted on 28 October 2004 commencing about 1.00 p.m. At that time the appellant had taken the detectives to various locations previously mentioned in the record of interview so that the police could familiarise themselves with what he had been describing. Early in this interview, there was a discussion as to whether something said by the appellant earlier implied that Flanagan had, by his body language, approved the administration of the hot shot to Swinton. The appellant denied that interpretation. He also took issue with the suggestion that the people engaged in the conversation were talking about killing Swinton. He said:
[471]
"Okay, well, we'll debate, I think, the terminology of a hot shot. You think it means giving someone an injection to make them sick. A hot shot simply means to give them an overdose of drugs, with a view of them dying.[46] That's what a hot shot is, to make it look like a non-suspicious death. That's what a hot shot is?-- Yes, and then, I'm trying to give it as well that I've heard people say that they've had hot shots and that, and it's made them really crook."
[472]
[152] It was open to the jury to conclude, by the manner of his response to that question and to further questions immediately following, that he agreed with the propositions that a hot shot meant giving someone an overdose of drugs and that people died from overdoses of drugs. He also said he understood that the suggestion being made in the conversation was that Swinton would be taken to a toilet at the airport, given a hot shot and left there.
[473]
[153] Also in this record of interview, a phone call to 000, made from Racecourse Road, Ascot on 15 October 2004 in which the caller identified himself as Daryl Swinton, was played to him. He agreed that the person speaking sounded like Swinton. The effect of the call to 000 was that Swinton had been picked up at the airport by two males and ripped off. He was paying them money to get his car back. He was taken to a bank to get money. The men took the money he had, his mobile phone and his gold chain and also had his car. The appellant denied that Swinton had been ripped off, said that he had voluntarily handed over the gold chain, and once again said that his possessions were not being held as security for payment of the debt. He could not understand why Swinton called 000.
[474]
[154] In a previous interview he said they had dropped Swinton off at Toombul Shopping Town. On this occasion, however, he said they had taken him there because he had not brought all the money but had said that he could get some money from a bank there. However, he came back and said that he had none in the account. The appellant claimed that he went to the airport with Thompson on that occasion to help out Flanagan. He denied threatening Swinton, but accepted in later questioning that Swinton may have felt intimidated.
[475]
[155] He was then questioned about the large number of telephone and text calls on the morning of the killing. He was asked why, during the period when the killing was taking place, there was a complete absence of phone messages or text messages between the various people concerned. He was unable to advance any explanation for that at that point.
[476]
[156] Some of the most critical passages in this record of interview are after the resumption at 4.50 p.m. Evidently during the intermission the appellant had expressed concerns over his safety if he told the truth. Once the tape recommenced he was asked what the truth was. He said that someone from the south towards Beaudesert, wanted Swinton out of the way. Flanagan had told him that. Flanagan had said that he was going to get a hot shot and whack, or put out, on 21 October.
[477]
[157] Just after that, evidence (from another witness) that the appellant had used Swinton's vehicle after the time he originally said he had last seen it was revisited. The appellant said that Thompson had said that he wanted it. The appellant had said that he (the appellant) had not wanted to use it any more. Asked why, he said:
[478]
"They were talking about hot shotting Ned. Putting him out of action, so to speak."
[479]
[158] A passage of questioning fully set out in paragraph [70] of McMurdo P's reasons shows that the appellant knew before Swinton's arrival in Brisbane on 21 October 2004 that Thompson was intending to hot shot him or organise for it to happen. Thompson said he would organise it and Cullen would do it. Then the following was said:
[480]
"So are you saying that there was discussion that when Ned arrived on the 21st he was going to be murdered?--
[481]
And ------?-- No-one mentioned the word "murdered" or "killed." [indistinct] hot-shot him or whack[47] him, so to speak.
[482]
Was that an indication that he would die as a result of the hot-shot?-- I think that's what the intentions were, yes."
[483]
[159] He was then further questioned about the events of 15 October 2004. The appellant said that Swinton had told him that he was coming to Brisbane and that Thompson was the means of transport to enable collection of the money. He was reticent about agreeing that it was his job to collect debts, but said that Flanagan told people that he was on board with them. He was therefore mistaken for a "strong arm tactic". Because of his appearance, people paid their bills. He answered vaguely when asked why he took such an interest if the debt were owed to Flanagan. Perhaps a more cogent explanation of his interest in ensuring that the money was got in is contained in a later passage where he referred to the fact that Flanagan owed money to people above him in the drug supply chain and it was necessary to keep those payments up to date for fear of retribution from those who collected debts for them. As a person connected with Flanagan, he had interest in ensuring that debts were paid by people supplied by Flanagan.
[484]
[160] In another passage, the appellant said that Flanagan's references to the man from the south wanting Swinton out of the way were made to convey that it had to be done. He was never asked to do it himself but had made up his mind that he was not going to do so. A little later, in the week before the killing, Flanagan said again that the person from the south wanted Swinton out of the way. Thompson said he knew someone who could mix up a hot shot. According to the appellant he heard from Thompson, probably during the night before the killing, that he had got a hot shot but by the morning it was apparent that it could not be found. He said he believed that the plan, if they had lost it, was that they would make something up themselves. He was then asked about his thoughts at the service station the night before the killing when the discussion was occurring about what would happen. He replied that he thought that Swinton was going to receive a hot shot in the toilet at the airport but believed that it was not going to kill him.
[485]
[161] The passage shows the competing influences on his mind of knowing the action that had been foreshadowed and feeling that because Thompson and Cullen were so unreliable or inept that it would not happen. Shortly after that, he was referred to several phone calls and texts sent during the morning of the killing. He was asked whether they were sent because they had lost the hot shot and the plan was not going as it should. He said that he was pointing out to Flanagan that although the plan was that they would give Swinton a "whack" in the toilets, he did not know how they were going to handle it from there.
[486]
[162] He went on to say that he thought that they might give him a whack but he did not really think that they would murder him. He later said in the same passage that he thought that, because the person down south wanted Swinton out of the way, Thompson and Cullen were trying to "big note" themselves and they would go and do it. The police officer said:
[487]
"Yeah I wanted --- him out of the -- that's right."
[488]
"And (Thompson) is saying that he'd go do that?" --- "Yes."
[489]
[163] The appellant then said that during the morning of 21 October 2004, he raised with Flanagan the risk of cameras on the freeway and at the airport seeing Thompson and Cullen picking Swinton up. He rationalised raising this concern as a possible deterrent to anything happening. He said that at the time he sent the messages, he had believed that Thompson and Cullen were going to cause Swinton some harm. He acknowledged that sending messages about the risk from the cameras might imply that, because the hot shot was not feasible, something else might be done. He said that really he was hoping that all that would happen would be that they would get the money, and at worst, that Swinton would be beaten up. He concluded by agreeing that he was fairly certain that something was going to happen but was hoping it would not.
[490]
[164] The appellant then volunteered that one of the texts he had sent to Flanagan was to the effect that what was done should not look like a murder robbery. He was then asked a series of questions which culminated in him saying that if the actual participants had been seen on cameras, it would lead to all of the other people involved. He agreed that that was in the back of his mind when he texted the message about the concerns to Flanagan. He said he did not want to be involved in a murder, but conceded, in agreement with a question put to him, that he was involved because had been part of the conversation where it had been acknowledged that Swinton was going to be killed.
[491]
Possible Conclusion Open to a Properly Instructed Jury
[492]
[165] There were obviously major issues for the jury to consider about Cullen's creditworthiness. If the evidence in Cullen's statement concerning the appellant's involvement in the conversation on 20 October 2004, particularly the admonition not to fail, were accepted, it would provide strong evidence that the appellant was directly involved in a plan to kill Swinton. Taking the evidence in Swinton's records of interview by themselves, the evidence could lead a properly instructed jury to conclude that the appellant had been an integral part in a plan which he realised was intended to bring about Swinton's death. Despite any scepticism about the ability of Thompson and Cullen to carry it out, his concern, demonstrated by his actions during the day, including his anxiousness, as the plan proceeded, that they may be recorded on surveillance cameras with Swinton and lead the police to him, suggested that he still accepted that the objective of the plan might still be carried out. Despite any hoping against hope on his part that it might not, or any mental reservation about it, he did nothing to effectively withdraw from the enterprise.
[493]
[166] Cullen's first statement was inculpatory of the appellant. It was accepted by the appellant that it was admissible. The second statement was also inculpatory of the appellant to the extent that it verified that Cullen adhered to what he had said in the first statement, which included the appellant's role prior to the events of the day when the killing occurred and his apparent satisfaction when told of the killing. It was accepted that, if the first statement was admissible, it was imperative for the defence to establish that Cullen had given a different version of at least part of the events on the day of the killing with a view to inviting the jury to conclude that they should not act on his evidence at all. If cross-examination was conducted on that basis, firstly, the substance of the statement would be brought out and, secondly, the reason why the evidence had been changed would have been elicited.
[494]
[167] The complaint pressed was that no direction had been given to the effect that, merely because a threat had been made, it did not automatically follow that the appellant was guilty. Innocent persons who are not guilty may very well make threats to avoid being placed on trial and at risk of conviction.
[495]
[168] Four observations may be made as to this submission. Firstly, there was an issue, explored in submissions in this Court, whether it may have been considered inadvisable to elaborate on the threats, having regard to the way in which the matter had gone to the jury. Secondly, while it is not fatal, no application for redirection was sought. The fact that the appellant had been represented by experienced counsel may shed light on the forensic approach to the issue. Thirdly, the most substantial change to the statement was the implication of Thompson in the killing. If there were threats made by the appellant, they were not operative in affecting the information given about his role, because that had been revealed in the first statement. Fourthly, as also explored in submissions in this Court, the appellant had admitted knowing that doing serious harm at least, to Swinton, or, depending on the conclusion drawn about the meaning of his statements, killing him, was in contemplation in the days leading up to the killing. The real issue was his criminal responsibility for the events that actually occurred. It was not a case where the making of any threat was of such fundamental importance that the direction in the form contended for was obviously necessary or desirable.
[496]
[169] In my view neither of grounds of 1 or 2 are made out.
[497]
[170] There was no dispute that it was appropriate to give the warning that was given by the learned trial judge that it would be dangerous to convict the appellant on any evidence given by Cullen unless the jury found that the particular piece of evidence was supported in a material way by independent evidence. Nor was it disputed that there was evidence in the record of interview that was capable of corroborating Cullen in material respects.
[498]
[171] The direction given is quite economical, and in some cases, might have benefited from expansion. However, in this particular case, it was, in my view, sufficient.
[499]
[172] Mr Davis conceded in oral submissions that there were lies in the records of interview, at least to the extent that the contents of the records of interview were not internally consistent. He also conceded that there were, in the records of interview, bodies of evidence that were capable of being corroborative. He said that his submission about the possibility of misapplication of the principle went to the possibility that the jury may have wrongly used lies as supporting an inference of guilt.
[500]
[173] He said that it was not a case where an Edwards[48] direction was sought. He accepted that an appropriate Zoneff[49] direction had been given but submitted that the learned trial judge should also have given a more detailed direction as to particular evidence that could be corroborative evidence or was not capable of being corroborative evidence. The accomplice warning was nullified by the failure to do so, having regard to the fact that the taped records of interview were of about 13 hours duration.
[501]
[174] There is no immutable rule that any particular approach should be taken or any particular content included when giving a warning with regard to corroboration. Cases such as Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204 at 256 and R v Bellino [1993] 1 Qd R 521 at 531-532 show that it can, in cases where there is lengthy evidence, be sufficient to give a broad indication of the sort of evidence which may be treated as corroboration and, if thought desirable, an indication of the areas of the evidence in which it may be found without more specific elaboration.
[502]
[175] In the particular circumstances of this case, I am not persuaded that the direction given was inadequate. The jury would have clearly understood from the direction given that lies they found to have been told by the appellant could not be used to corroborate Cullen's evidence.
[503]
[176] Mr Davis' proposition with respect to ground 4 was that there was too a broad a focus on the summing up with regard to sections 7, 8, and 9. The concentration should have been on whether the appellant had aided, under s 7(b), or counselled, under s 7(d), the relevant act, and under s 8, whether the relevant act was a probable consequence of the prosecution of the unlawful common purpose. He accepted that the act of killing with the knife was the relevant act. He submitted, essentially, that the focus in the summing up was more on the commission of a generic offence of murder than on the question that he submitted was appropriate.
[504]
[177] He relied on the approach derived from R v Keenan [2007] QCA 440 which drew on The Queen v Barlow (1997) 188 CLR 1 and R v Brien and Paterson [1998] QCA 70; [1999] 1 Qd R 634 and R v Johnston [2002] QCA 74. While there was a formal submission by the Crown that Keenan was wrongly decided, the argument was not developed beyond that. Mr Martin submitted that, in any event, proper application of the principle to be derived from Keenan meant that the directions were appropriate. It therefore became of fundamental importance to consider the proper character of the "offence" for the purpose of s 7(b), and s 7(d) subject to s 9. In the case of s 8 it became necessary to consider what the common intention to prosecute an unlawful purpose was and whether the offence committed in the prosecution of the unlawful purpose was of such a nature that its commission was a probable consequence of its prosecution.
[505]
[178] With regard to those issues and the directions given, I have had the opportunity to read in draft form, McMurdo P's reasons and I am in agreement with what has been written. For that reason, ground 4 is in my view not made out.
[506]
[179] For the reasons given by McMurdo P and on the basis of the survey of the evidence earlier in these reasons, I am satisfied that the conviction is not unsafe and unsatisfactory. Ground 5 also fails.
[507]
[180] The appeal against conviction should be dismissed.
[508]
[181] ATKINSON J: I agree that the appeal should be dismissed for the reasons given by the President.