Regina v Arthur Stanley Smith

COUNSEL : Appellant - W C Terracini SC/J S Stratton Crown - T L Buddin SC SOLICITORS : Appellant - David Giddy & Associates Crown - S E O'Connor CATCHWORDS : MURDER - appeal against conviction and sentence - Jones v Dunkel direction - inconsistent evidence - alternative scenario put to jury - motive to lie - taped confessions - agent of the state - discharge of the jury - unreasonable conviction Criminal Appeal Act 1912, s 6(1) LEGISLATION CITED : Evidence Act 1995, ss 106(b), 138(1) Jury Act 1977, s 22 Listening Devices Act 1984 Black v The Queen (1993) 179 CLR 44 Jones v Dunkel (1959) 101 CLR 298 Palmer v The Queen (1998) 72 ALJR 254 R v Ball [1961] 61 SR (NSW) 37 R v Broyles [1991] 3 SCR 595 R v Buckland [1977] 2 NSWLR 452 R v E (1996) 39 NSWLR 450 R v Gallagher (1989) 29 A Crim R 33 R v George (1987) 9 NSWLR 527 R v Kneebone (1999) 47 NSWLR 450 CASES CITED: R v MM [2000] NSWCCA 78 R v Newland (1997) A Crim R 455 R v Russell-Jones [1995] 3 All ER 239 R v Sandford (1994) 72 A Crim R 160 R v Tangye (1997) 92 A Crim R 545 Richardson v The Queen (1974) 131 CLR 116 The Queen v Apostilides (1984) 154 CLR 563 The Queen v Swaffield, Pavic v The Queen (1997) 192 CLR 159 Veen v The Queen (1987-1988) 164 CLR 465 Webb v The Queen (1993-1994) 181 CLR 41 Whitehorn v The Queen (1983) 152 CLR 657 DECISION : Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence dismissed.

60543/98 STEIN JA DUNFORD J SPERLING J Wednesday, 14 June 2000 Regina v Arthur Stanley SMITH JUDGMENT 1 STEIN JA: Introduction 2 On 14 July 1998 the appellant, Arthur Stanley Smith, pleaded not guilty to the murder of Harvey Francois Jones on 15 July 1983 at Botany, New South Wales. On 9 September 1998 a jury returned a verdict of guilty. Simpson J sentenced the appellant to imprisonment for life on 10 September 1998.

Grounds of Appeal 3 The appellant raised a number of grounds of appeal against conviction and sentence. Some grounds were abandoned and others argued compositely. For convenience, the grounds of appeal may be summarised as follows:

Grounds 1 and 2: Her Honour erred in failing to give a Jones v Dunkel direction against the Crown for its failure to call 'Mr White'. Her Honour erred in not correcting the Crown's submission to the jury that there was 'no basis' for it to call 'Mr White'.

Ground 3: Her Honour erred in directing the jury that it could find the appellant guilty on the evidence of 'Mr Green' alone, or on the evidence of alleged admissions of the appellant to 'Mr Brown' alone, without directing the jury that it would have to consider all the evidence before being satisfied that the appellant had been found guilty beyond reasonable doubt.

Ground 4: Her Honour failed to adequately summarise the defence case in relation to 'Mr Green'.

Ground 5: Her Honour erred in putting to the jury that there was no apparent reason for 'Mr Green' to lie.

Ground 6: Her Honour erred in failing to exclude the evidence of the taped conversations between the appellant and 'Mr Brown'.

Ground 8: Her Honour erred in not discharging the jury.

Ground 9: The conviction was unreasonable and cannot be supported having regard to the evidence. Included in this ground, by leave, is a submission that the conviction was unreasonable because of the Crown's failure to call 'Mr White'.

Grounds 10 and 11 (against sentence): Her Honour erred in finding that the murder fell into the worst category and the sentence was manifestly excessive.

The Crown case at trial 4 On 26 March 1995 the body of Harvey Francois Jones, the deceased, was found buried in the sand at the Foreshore beach, Botany. He had disappeared on 15 July 1983. 5 Approximately six months before the discovery of the body of the deceased, in September 1994, the appellant told a prison informer, who gave evidence under the pseudonym of 'Mr Brown', that he had killed the deceased. The confession was recorded by a lawful listening device. 6 The Crown alleged that on the night of the disappearance of the deceased he was shot dead by the appellant on the beach at Botany. The appellant then directed an associate, who was with him at the time, to bury the body. The associate gave evidence at the trial under the pseudonym of 'Mr Green'. 7 On 22 February 1996 'Mr Green' had been granted an undertaking by the Attorney-General that any disclosure made by him in the proceedings could not be used in evidence against him. Green had met the appellant in 1978 and from 1982 began seeing the appellant socially and working for him. The work included driving the appellant, delivering or collecting packages (sometimes containing drugs or money) and driving during the commission of a robbery. Green was paid by the appellant for his work. 8 On 22 June 1983 the appellant and Green had a telephone conversation wherein they discussed the stealing of an MG car of the appellant's girlfriend, Michelle Hughes. The appellant suspected that the deceased had stolen it. Green thought that the deceased was the appellant's best mate, although he had a loud mouth and followed the appellant around. Prior to the phone call, Green had 'on more than one occasion', drunk with the appellant and the deceased together. The phone call was intercepted pursuant to surveillance of the appellant at that time. The tape of the conversation was tendered in evidence to show the close relationship between the appellant and Green. 9 On 15 July 1983 the appellant had a phone conversation with Green and told him that he could earn some money that night. An arrangement was made to meet at the Star Hotel, Alexandria. Green drove to the hotel in a borrowed van and arrived there between 7 pm and 7.30 pm. There he saw the appellant and the deceased. The appellant said that they were going to earn some money and Green and the deceased left the hotel and got into Green's van without the appellant. Some time later the appellant drove his car around and parked nearby. The appellant then walked over to the van but before getting into the front seat, opened the side sliding door and shut it. The appellant joined the deceased and Green in the front. Green then drove the van, at the appellant's direction, to Botany. The vehicle was parked in the Foreshore Drive adjacent to the beach. 10 The three men then walked down a walkway to the beach. Green stayed on the walkway as he was told by the appellant to keep a lookout. The appellant and the deceased walked up the beach. They were walking back along the beach towards him when Green heard the appellant say to the deceased 'get down'. Green then heard the sound of gunfire a number of shots. Green saw the deceased lying on the sand and the appellant holding a gun. Green went down near to the body and the appellant. The appellant told Green to dig a hole and bury the deceased. A shovel was lying near the deceased's body. 11 Green was unsure how the shovel came to be there. He dug a hole a few metres from the walkway. Green dragged the body to the hole pulling under the armpits. He did not get any blood on himself nor recall any injuries to the deceased's hands. At the appellant's direction, Green removed the deceased's jewellery, a large diamond ring and one or two gold chains. Green could not recall seeing any money on the deceased. Green thought that the body had been placed face up in the hole with the feet towards the water. Green filled the hole with sand, patted it down and placed some weed grass over it. 12 Green and the appellant then drove back to the vicinity of the Star Hotel, Green disposing of the shovel in Alexandria Park. He dropped the appellant at his car. Green was not paid by the appellant for burying the deceased. He never asked to be paid. Green continued to socialise with and to work for the appellant for some years. Green kept his knowledge of the shooting to himself until shortly before the trial. In cross-examination Green denied that he had told the appellant that the deceased was shot with his own gun after a struggle with Alan Dillon or that the body had been dismembered before burial. 13 Green was interviewed by police in August 1995. He denied any involvement in the murder. Green was again interviewed on 9 January 1996 and told police that the appellant had killed the deceased and that he (Green) had dug the grave. Green said in evidence that his confession to the police was made after he had been offered protection by a prisoner. The prisoner was referred to by the pseudonym of 'Mr Black'. Green met Black after discussion with a lawyer, referred to by the pseudonym of 'Mr White'. Neither Black nor White was called as a witness in the trial. 14 In the first few days of 1996 Green contacted White after receiving a message to do so through an intermediary. White told Green that the appellant had said things about Green. Further, that some people were saying that the appellant and Green had killed Harvey Jones. White said he could help Green and would take him to see Black, who would provide Green with protection. Green became scared and nervous and agreed to accompany White to see Black in gaol. Green and Black had been friends when they were young but had not met for 15 years. Green had previously seen White and Black together and knew of White's hatred of the appellant. Green and White visited Black in prison on two or three occasions. Black offered protection for Green if he told police of the appellant's involvement in the murder of Jones. Black asked Green to tell the police that he had helped Green. White then took Green to see Superintendent Laycock, head of Task Force Snowy, established to investigate the appellant's confessions to Brown. Green did not pay White for his assistance, which included applying to the Attorney-General for an undertaking. Green denied being paid by Black or White to give evidence against the appellant. 15 Green was cross-examined about his business, the [ ] Gymnasium. It was suggested that he was the recipient of unexplained wealth, the money originating from Black, via White, as Green's reward for falsely implicating the appellant in the murder. 16 Mrs Jones, the mother of the deceased, gave evidence of her son's relationship and friendship with the appellant. The appellant had helped the deceased pay corrupt police $60,000 to drop charges against him including receiving gold bars. On the day before her son's disappearance, he had been picked up by a friend, Bob Rakich, and had gone to a disco restaurant in North Sydney called 'Sheila's'. That night the police came to her home looking for her son concerning a brawl at Sheila's. She telephoned her son at the brothel which he managed. The next morning the deceased told her that he was going to contact his lawyer and go with him to see the police. He also told his mother that he had an appointment with the appellant at 7 pm and would then come home. That was the last time she spoke to him. During the evening Rakich telephoned her and asked whether she had seen her son. Rakich said that the deceased was to meet him that evening. An hour or more later the appellant rang Mrs Jones and asked for her son. The appellant told her that the deceased had not turned up for their meeting. 17 Rakich phoned Mrs Jones the next day and went over to her home. He told her that he and the deceased had been evicted from Sheila's nightclub and Jones had been in some trouble. Rakich told her that he had dropped the deceased at the Cauliflower Hotel, Newtown at 6 pm on the 15 July 1983 where he was to meet someone, he thought a police officer. 18 About a week after the disappearance of the deceased, the appellant visited Mrs Jones. He told her that he had been making inquiries about the disappearance of the deceased, but without success. He returned a couple of days later. Mrs Jones said that at the time of her son's disappearance he was wearing a ring. 19 Mr Gray was a lessee of a brothel. He saw the deceased between 10 am and midday on 15 July 1983. Gray lent him $4,000 or $5,000, which Jones said he needed for his legal proceedings. Gray said that the deceased had other money on him at the time, possibly $7,000 or $8,000. Mr Rowe was the landlord of Gray's brothel. He also saw the deceased on the morning of 15 July at the brothel. Rowe last saw the deceased between 5 and 6 pm at the Homebush Hotel. The deceased showed Rowe a bundle of money under his shirt, probably thousands of dollars. He told Rowe that he was going to meet some police to 'break a blue down'. The following day the deceased's friend, Rakich, spoke to Rowe and asked if he had seen the deceased. Rakich said that he was to have met the deceased in town on the Friday night but Jones did not turn up. 20 Sergeant Kirton had investigated an incident at Sheila's on the night of 14 July 1983. The deceased had allegedly produced a revolver in the night club and was asked to leave. She was contacted by the deceased's solicitor, Mr Bellamy, who arranged to attend with the deceased for interview at 3 pm on 15 July. Later that afternoon, Bellamy telephoned to say that the deceased had not arrived in his office and the appointment was cancelled. 21 In late November 1983 Detective Tunstall interviewed the appellant at the Gresham Hotel to question him about the disappearance of the deceased. The meeting had been arranged by Detective Roger Rogerson. The appellant told Tunstall that he had gone to the Cauliflower Hotel with Glen Flack but 'Harvey never showed up'. Tunstall also sought to interview Rakich, who refused. Rakich subsequently died in a car accident. 22 In 1994 the appellant admitted to his then cell-mate, who gave evidence under the pseudonym 'Mr Brown', that he had killed the deceased. Before a warrant for the listening device was obtained, Brown had conversations with the appellant about murders. In those conversations, the appellant admitted to the murder of the deceased. The admissions were not recorded electronically although Brown made handwritten notes. Brown had recorded some of the conversations however and he gave the tapes, and his notes, to Detective Wilson. Following the obtaining of a warrant, a legal listening device was installed in Brown's computer. 23 The Crown sought to tender evidence from Brown of the appellant's admissions. Counsel for the appellant took objection that the admissions had been unfairly obtained. The appellant did not dispute the legality of the listening device tapes or the identification of the voices as those of the appellant and Brown. Following a voir dire, her Honour admitted the evidence. In due course, she gave detailed reasons. 24 Brown had been in Goulburn Gaol and applied for transfer to the Special Purpose Prison at Long Bay because he felt in danger. He arrived at Long Bay on 7 April 1994. On 11 April he was placed in a cell next to the appellant. Brown had not known who the other inmate would be until he was moved. For 12 hours of the day he and the appellant could mix freely together. After about two weeks the appellant discussed Harvey Jones. The appellant gave Brown part of a manuscript of a book he was writing. It included a section on the deceased. The appellant told Brown that he rang the deceased to meet him to discuss his antics, such as firing a gun into the roof of a disco. He met Jones and took him to a hotel cellar where he shot him with a .357 calibre pistol. He then took the body to Botany and threw it in the water. This was not the version in the appellant's manuscript. 25 Early on in their relationship in gaol, the appellant and Brown discussed making Statutory Declarations to the effect that they would not discuss any legal matters. These were made in July but not adhered to. 26 Between 7 and 9 July 1994 Brown made handwritten notes of his conversations with the appellant, including conversations relating to the deceased. 27 On 24 September 1994, after Brown spoke with Detective Wilson, police delivered to Brown's cell a computer containing a listening device. Brown started recording that day and continued until 29 September 1994. Six tapes were tendered with their transcripts. 28 In tape 1 the appellant told Brown that he had included lies in his first book in order to throw the law off and that the 'affidavits' they had made would protect Brown from police questioning. 29 Tape 2 included a discussion of the burial of the deceased. The tape was made on 24 September 1994, six months before the body was discovered and 11 years after the disappearance. The tape included (V1 being the appellant; V2 Brown): V1 … I buried one just up from there. You know where the airport is, where the new runway comes out? V2 Yeah, I know it a little bit. V1 There's a sort of sewer thing… V2 Mm. V1 I went….tide there, dug a hole there. Put Harvey in there. LAUGHTER V2 Right, right, got ya. V1 No one ever found the body but. V2 No. Fuck he's been there for a while hasn't he. V1 Ten years. V2 Fuck. He'd be finished, he'd be gone. V1 …. V2 See the trouble is if they find the skeletons they could track who they are. V1 Course they can, but they can't prove I did it. 30 Tape 4 was recorded on 27 September 1994. It included the following: V1 Chop their legs off son. V2 Yeah. V1 That silly [ ] told me when I got him to bury Harvey. V2 Yeah. V1 He said [I…chop…] I'm going to chop his head off, oh the fuckin liar. LAUGHS…he shit himself, what he done, I said chop his head or the leg, couldn't get it oh just chop the leg off, you fuckin liar [ ].

[' '] was a reference to Green. 31 Tape 6 was made on 29 September 1994 and contains the following: V1 And then I said, when I get him he said I'd die for you I said You're about to ya fuckin' mug. V2 LAUGHS V1 Blew his heart out with a big three five seven. V2 Yeah. What did, what did, what did you kill him for, what'd he have to go for? ….

and V1 Anyhow I haven't said, I'm not tellin' nothin' the police don't already know, they just can't prove it you know. …. V1 Bob the Basher was waiting up the pub, up the road for him to come in, he walked in, he seen him meet me out the front and walk in, he never saw him again. V2 Yeah.

V1 I said the cunt never turned up, I rang his mum up to cover meself, I rang [up] his mother and said Look Harvey hasn't turned up and all that shit to give meself some cover. 32 On 7 October 1994 the appellant was moved from his cell and Brown was subsequently released to parole in November 1994. In cross-examination Brown said that he was paid $7,000 by police and a few thousand dollars more after his release. He sold the computer to buy drugs. Brown denied that while he was in custody he contacted Mr White. In February 1995 Brown made a videotape with Ricketson, a film producer. He did this because he felt threatened by Detective Wilson, through White. This followed the publication of an article written by White in the [ ] on [ ]. He feared that the material he had provided to police, relating to the appellant, had been leaked. Brown thought that Wilson was responsible. Brown saw White about this and provided him with information which White published. Wilson had asked Brown to get information from the appellant about Wilson's friend, Detective Brian Harding. 33 Brown agreed that the appellant told him that the deceased was killed in the cellar of a hotel and his body was dumped off a boat by Alan Dillon. This was before the listening device was placed in the computer. 34 Former police officer Wilson gave evidence. He said that Brown had provided evidence concerning another murder (while he was in Goulburn gaol) and had later approached him seeking a transfer to the Special Purpose Centre at Long Bay, as he feared for his safety. This was approved and on 1 May 1994 Brown spoke to him. Later, on 22 July 1994, Brown gave him tapes he had unlawfully made of conversations with the appellant. On 15 September 1994 Wilson was present during a demonstration to Brown of the operation of the listening device placed in the computer. On 5 October 1994 Brown gave him six tapes and the next day, a floppy disc. On 4 November 1994 Brown gave Wilson a manuscript 'Catch and Kill Your Own'. After his release on 11 November 1994, Brown was interviewed by Wilson on several occasions. 35 Wilson was cross-examined on his credit. The basis of the cross-examination was the defence by the appellant that he had deliberately given Brown false information on the assumption that it would be leaked to corrupt police, such as Harding. These corrupt police were engaged in a conspiracy to discredit the appellant, whom they believed would give damaging evidence at the Police Royal Commission. Wilson and Harding were close friends. The appellant had given evidence to the ICAC in the early 1990's against police, including Harding. The Royal Commission was underway when the appellant and Brown were sharing the same cell complex. Brown had told Wilson that the appellant had been visited on three occasions by Royal Commission staff. Wilson agreed that he asked Brown to get as much information from the appellant as he could in order the negate the allegation made by the appellant that he had given money to Harding. Wilson passed information to Harding to help him because of their friendship. He was not aware that White was Harding's lawyer. Wilson agreed that Detective John Burke was a friend of his, as well as Harding, but he did not supply any information to Burke which he had obtained from Brown. Wilson said that he had registered Brown as an informer after meeting Brown in Goulburn Gaol in March 1994. He arranged for Brown (and others) to be transferred from Goulburn. He did not know that the appellant was an inmate of the Special Purposes Centre, Long Bay until Brown told him. 36 Superintendent Laycock gave evidence relating to Wilson's removal from Task Force Snowy because of allegations made to the Royal Commission that he had leaked transcripts to White. Laycock said that he had spoken to White on a few occasions regarding Green. White made it clear that there was considerable animosity on his part towards the appellant. Laycock also provided Black's sentencing judge with correspondence indicating the dealings he had had with Black, through White. 37 Detective Van Leeuwan went to Foreshore Beach on 26 March 1995 and saw the deceased's skeleton. The skull was face up and pointing to the sea. The post-mortem recovered two bullet fragments from the skeleton. Evidence was also given that there were no sewer outlets in Botany Bay but there are stormwater outlets which could be mistaken for a sewer. Medical evidence was given that the body may have been dragged by the lower limbs. At least two bullets were fired into the deceased, one passing through his right hand. Death was due to two or more gunshot wounds to the chest. The badly corroded spent bullets were consistent with being .38 or .357 calibre. Other evidence was given that police had attended a number of hotels, including the Star and the Cauliflower, but found no evidence of gunshot activity or cellars.

38 The Crown also tendered extracts relating to the deceased in two of the appellant's books Neddy: The Life and Crimes of Arthur Neddy Smith and Catch and Kill Your Own, as well as a manuscript of the latter handed by the appellant to Brown. Each contained different versions relating to the circumstances of Jones' disappearance, none of them implicating the appellant in the murder.

Evidence of the appellant 39 The appellant gave evidence that he did not kill the deceased. While the deceased was an embarrassment, and at times a pest, he liked him and mixed with him socially. He had made an appointment with the deceased to meet at the Star Hotel on 15 July 1983 so that the deceased could pay him $11,000, being the balance of his share of a bribe of $60,000 paid to Roger Rogerson. The moneys related to charges concerning the deceased receiving gold bullion and possessing a shortened firearm. The deceased did not turn up. The appellant waited until just after 8 pm and drove home. Between 8 and 9 pm he rang Mrs Jones inquiring about the deceased. In cross-examination, the appellant said that Jones was also to provide money to be paid to bribe Inspector Daly. This was over the incident at Sheila's. 40 The appellant said that it was possible he had telephoned Green on the morning of 15 July, but he did not remember. He sometimes met Green at the Star Hotel. The appellant found out about the incident at Sheila's when he telephoned the deceased at the brothel on the 15 July. The appellant agreed that a number of passages in his books were false including some relating to the deceased. 41 The appellant said that he had influence with corrupt police, including Daly and Rogerson. After the appellant lied at the Lanfranchi inquest, to protect Rogerson, he had been given the 'green light'. This meant that he could commit any crime, short of murder and not be prosecuted as long as he gave the police part of the proceeds. He paid bribes to police, including Harding and Burke, and had once acted as a middle man in a drug rip-off organised by Harding. 42 The appellant said that he had known Green for only a couple of months in July 1983. Green did jobs for him, initially on an irregular basis and did so for a bit over 3 years. Green was a driver and also looked after weapons. Green had told the appellant that he and Bob Rakich had killed the deceased. Another time Green told him that Alan Dillon had done it and dumped his body at sea from a boat. On another occasion Green had told the appellant that he had dismembered the deceased's body and put him in a hole. The appellant agreed that Green's nickname was [' ] the Liar'. 43 The appellant had provided information to the National Crime Authority that assisted in Black being arrested for drug importation. White had acted for the appellant's wife and the two had initially mixed socially. However, animosity between them developed after the appellant had assaulted White in a hotel. 44 The appellant said that two days after he and Brown began sharing a cell complex, he and Brown made statutory declarations. The purpose was to cover himself. He obtained Brown's declaration so that if Brown later changed his mind, he would be shown as a liar. The appellant said that he had feedback from police (and other sources) that Brown was passing on information to Wilson and Harding, and he (the appellant) was giving Brown a chance to confirm it. When they discussed the burial of bodies, he was just playing along with Brown. 45 The appellant's explanation for much of the tapes which discussed the deceased being buried was that he was feeding Brown a load of rubbish. He said that he got carried away making up stories lying to Brown. The nomination of Dillon as the murderer was simply relating what Green had told him. The account to Brown of the appellant telephoning Mrs Jones to cover himself was part fact and part fiction. Fact in that he did ring her but fiction in that 'I was just changing the story to make it look smarter'. The appellant said that he obtained information about Jones' murder from various sources, including Green, Rogerson, other police and the underworld. 46 In relation to the telephone intercept of 22 June 1983 concerning his girlfriend's stolen car, the appellant said he guessed that the deceased had stolen it since Jones needed a lot of money to bribe police. 47 On 18 July 1983 the appellant rang Inspector Daly to 'fix up' the charge against the deceased. He told Daly that the deceased had not turned up for their meeting on the Friday. The appellant denied he had telephoned Daly to set up a false alibi. The appellant did not know until 1992 that the call was being taped. 48 In cross-examination the appellant agreed that he had committed armed robberies where violence was involved. Further, that he had lied in giving evidence at the Lanfranchi inquest and during a trial relating to the robbery of Fielders' Bakery. 49 Detective Keen gave evidence that on 18 January 1995 (four days before White's article in the [ ]) he saw Inspector Burke hand White a box about the size of A4 paper at a Sydney street corner.

Grounds 1 and 2 - failure to call White - failure to give a Jones v Dunkel direction 50 Over the Crown's objection the Court granted leave to the appellant to add an additional limb to ground 9 - that the conviction was unreasonable (previously unsafe and unsatisfactory). The additional ground alleged that the Crown's failure to call White as a witness, when viewed against the conduct of the trial as a whole, led to a verdict which was unsafe and a miscarriage of justice. 51 Because of its relationship to grounds 1 and 2, the parties found it convenient to argue them compositely. It is convenient to approach the submission in the same fashion. 52 It is the appellant's submission that a crucial figure in the defence case was the well known solicitor, White. The submission is put in this way. White and the appellant hated each other. White had tracked Green down and taken him to meetings at the prison with his client Black. Black had offered Green protection if he told police that the appellant was involved in the murder. White then arranged for Green to meet police. White was also the solicitor for a number of police against whom the appellant had made allegations of corruption. Green had an unexplained increase in wealth after meeting White and Black and agreeing to see the police. 53 During the trial the Crown prosecutor had given as a reason for not calling White that his evidence would not have been admissible. Counsel for the appellant sought a Jones v Dunkel direction against the Crown in relation to White.

54 In his address to the jury the Prosecutor said that White was not called as a witness because there was no basis to do so. He noted that Green was cross-examined and had said that he had not made the story up and did not lie. The credit of Green was in issue, not someone else's. There was no basis, according to the Prosecutor, to call another witness who is collateral or goes to an additional issue, such as Green's credit. Counsel for the appellant objected and the Prosecutor said that if the Crown's submission that there was no basis to call White was wrong, her Honour could correct it in Summing-Up. 55 In the Summing-Up her Honour said: Despite the frequency with which his name arose in the trial, White has not been called by either the Crown or on behalf of the accused. At one time during his address, the Crown Prosecutor said to you that there was no basis for the Crown to call him. Accordingly, I give you this direction: If White had any relevant or admissible evidence to give, he could have been called by either party. We don't know what evidence he may have been able to give, had he been called. We do not know whether he has been interviewed by either party, or what either party would have expected him to say, had either of them called him. You must not speculate about what he might have said. The fact is that he has not been called and what you might think he might have said, if he had been called, can't be used to fill in any gaps in either the Crown or the defence cases. 56 On behalf of the appellant, Mr Terracini submits that the allegation that Green had been paid to give evidence against the appellant went to the heart of the defence case. Evidence either confirming or refuting the allegation would have had probative value and been admissible. In such circumstances, the Crown should have called White. Her Honour should have told the jury that the Crown's submission was wrong. Because of the nature of the allegations made about White and his animosity for the appellant, White was a witness who might be expected to be called by the Crown, rather than the appellant. Accordingly, her Honour should have directed the jury in accordance with Jones v Dunkel (1959) 101 CLR 298. 57 Part of the submission made on behalf of the appellant involves drawing an inference that what Detective Keen saw being handed by Burke to White on 18 January 1995 was transcripts of the Brown tapes. This is said to be the only inference to be drawn because the contents of the tapes appeared in the [ ] on [ ] in an article written by White. 58 However, it must be said that this is no more than conjecture. White was acting for Burke at the time and there is not a tittle of evidence as to what was in fact handed over by Burke to White. It is untenable that the only inference available is that what Burke passed to White were transcripts or summaries of the Brown tapes. Indeed, in the absence of any other corroborative material, it is difficult to see how it can be a properly drawn inference at all. 59 In Richardson v The Queen (1974) 131 CLR 116 the High Court noted that the failure of a Prosecutor to call a material witness may result in a miscarriage of justice which will constitute a ground for setting aside a conviction. All available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based should be called, see Dawson J in Whitehorn v The Queen (1983) 152 CLR 657. 60 The High Court laid down a number of general propositions in The Queen v Apostilides (1984) 154 CLR 563. Relevant to this appeal are numbers 1 and 6. First, the Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a Crown witness. Sixthly, a decision not to call a person as a witness will only constitute a ground for setting aside a conviction if it is seen to give rise to a miscarriage of justice. The Court referred to the situation where a prosecutor fails to call a witness 'whose evidence is essential to the unfolding of the case for the Crown'. The appellant argues that White's evidence went to the heart of the defence case. On the other hand, the Crown submits that White was not only inessential to the unfolding of the Crown case, he was irrelevant to it. There was no basis on which to conclude that White was a person whose evidence one would have expected the Crown to call. An alternative way the appellant puts the case is that he expected the Crown to call White in the discharge of its overall duty of fairness. 61 In R v Russell-Jones [1995] 3 All ER 239 the Court of Appeal sought to draw together the principles governing the calling of witnesses by the prosecution. In many ways they echo Apostilides, although they contain more flesh. The seventh principle enunciated is relevant. It is as follows: A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown's own case. No sensible rule of justice could require such a stance to be taken. [at 245] 62 Russell-Jones was approved of by the NSW Court of Criminal Appeal in R v Kneebone (1999) 47 NSWLR 450. 63 Street CJ listed three circumstances in R v Buckland [1977] 2 NSWLR 452 where an expectation might arise that a witness would be called. It is the third circumstance which is relevant here. That is where the witness is one who the Crown would have been expected to call in the discharge of its duty to present fairly to the jury all relevant evidence. In such a case, if the jury asked about the reason for the missing witness, the judge should direct the jury that they should decide on the evidence actually adduced in the trial. They should do so without speculating upon what might have been the content of the evidence of other witnesses. This was the appropriate approach even if the evidence of the witness would have been irrelevant or inadmissible (at 457). 64 Street CJ's approach was reiterated forcefully by Hunt CJ at CL in R v Sandford (1994) 72 A Crim R 160 at 185. 65 In R v Newland (1997) 98 A Crim R 455 Gleeson CJ noted that while a Jones v Dunkel direction applied to criminal as well as civil litigation, it should be applied with caution to a criminal trial. See earlier Street CJ in Buckland. In Newland, neither party called a principal to a felony. The trial judge gave a Jones v Dunkel direction against the appellant and invited the jury to decide who should have called the witness. As Gleeson CJ noted, the direction exacerbated the problem. What was required was not a Jones v Dunkel direction, but an instruction to refrain from speculation as to why a witness was not called or what evidence might have been given. The jury should be told to decide the case on the evidence before them. 66 Chief Justice Gleeson observed that the question of who might reasonably be expected to call a witness might be answered simply in some cases. Other cases however would be far from simple to determine. Hence the need for a deal of caution before invoking Jones v Dunkel. 67 So too here. The question of whether either party could have called White was a matter of some complexity. Any explanation about the law pertaining to it was likely to confuse, rather than assist the jury. 68 On behalf of the appellant, Mr Terracini submits that White could have given admissible evidence. Just how is not apparent since the submission appears to be on the basis that White's evidence would reflect on the credibility of Green's story. However, the credibility rule would prevent this unless saved by the exceptions in s 106 of the Evidence Act 1995. Subsection (b) appears to be the only relevant limb, but just how it could be said to be relevant is very difficult to say. 69 When pressed as to how a Jones v Dunkel direction against the Crown would have assisted the appellant, Mr Terracini submitted that he would have been able to make powerful jury points regarding the absence of White from the witness box. Jury submissions are of course no substitute for evidence. On the other hand, Green gave evidence and, in cross-examination, denied lying. 70 If a Jones v Dunkel direction had been given, all the jury could have been told was that White's evidence would not have advanced the Crown case. It is difficult to comprehend how such a direction, if given, would have affected Green's evidence. At its highest, such a direction would have provided a jury address point. 71 I turn to her Honour's direction in the Summing-Up, with which the appellant takes issue. It has been set out earlier. As mentioned, it arose from an objection which defence counsel made to the Crown having addressed the jury as follows: White was not called, not called because there is no basis to call him. 72 Defence counsel submitted to her Honour that this was incorrect. The Crown said that if her Honour considered it to be wrong, then it should be corrected in the Summing-Up. It seems to me that her Honour was unable to conclude, one way or the other, as to whether the Crown had no basis to call White because it claimed that his evidence would have been inadmissible. Her approach is probably to be understood from the direction she then gave to the jury premised with the words '[I]f White had any relevant or admissible evidence to give'. 73 At least prima facie, it seems that White's evidence would not have been admissible, since it would have been an attempt to bolster Green's credit and was not saved by any of the exceptions to the hearsay rule. It is unnecessary to determine the point because her Honour did not purport to correct the Crown address. 74 Rather she sought to explain how the jury should approach the situation which they faced, where neither party called White. It follows from what I have said that the Crown may have been correct in the position it outlined to the jury. If this is right, then the point falls away. If the Crown address was incorrect, then notwithstanding that her Honour did not tell the jury that it was incorrect, no harm was done by the terms of her direction. In my opinion, what her Honour told the jury was appropriate and would neutralise any error or prejudice to the appellant. 75 Finally, complaint is made about her Honour's direction in that it referred to White not being called by either party, not merely the Crown. Appellant's counsel suggests that it would be forensically inappropriate for the defence to call White. However, assuming that the Crown had no obligation to call White, then forensically dangerous or not, it would have been open to the appellant to call White. Accordingly, I see no error in her Honour directing the jury on the basis that if White had admissible evidence to give, he could have been called by either party. 76 Further, in my opinion no miscarriage of justice was occasioned by the failure of the Crown to call White. I am unable to see how it can be concluded that White was a material witness or that his evidence was necessary to give a complete account of the events on which the prosecution case was based. White's evidence was not essential to the unfolding of the Crown case and I have difficulty in comprehending how it can be said that his evidence was relevant to the Crown case. Nor do I see how the Crown was obliged to call White in the discharge of its overall duty of fairness. No miscarriage of justice was occasioned by the Crown not calling White. 77 Reliance is also placed on the Prosecution Guidelines, in particular clause 15, and on the Bar Rules, 62 and 66B(a). However, in my opinion, these add nothing to the authorities already mentioned. 78 I would dismiss grounds 1 and 2 and also the new ground added by leave to ground 9, relating to the failure of the Crown to call White.

Ground 3 - Direction re 'Green alone' or 'Brown alone' 79 The Crown case was essentially based on two pieces of evidence. Green said that he had seen the appellant murder the deceased. Brown, and the tapes, were evidence that the appellant had confessed to the murder. The Crown case was that these pieces of evidence corroborated each other. The defence submitted that they were inconsistent with one another, and also inconsistent with other evidence. 80 In the Summing-Up her Honour said: … It is open to you, if you are satisfied beyond reasonable doubt that what the accused was saying to Brown was substantially the truth, it would be open to you to convict the accused on that evidence alone. In doing so, you would have to be satisfied beyond reasonable doubt that what he said to Brown in the prison cell was the truth. However, if you are so satisfied, it would be open to you to find the accused guilty on that evidence alone. 81 A redirection was sought by the defence on the basis that the jury acceptance of Brown's version (and the tapes) alone could only be in the context of a rejection of the account of Green. Her Honour refused to give such a direction. 82 Later in the Summing-Up her Honour returned to the question and said: … As I said to you, it would be open to you, simply acting on Brown's evidence alone, to find the accused guilty. In order to do so, you would have to be satisfied beyond reasonable doubt that the admissions that he made to Brown were true and correct and you would have to reject the account he gives you now as being untrue and, in fact, as not being reasonably possibly true. The Crown argues that equally, you could convict the accused on the evidence of Green alone. And that also is correct. If you were satisfied beyond reasonable doubt that what Green said to you about the death of Jones, the accused's involvement in it, is correct, you could convict the accused on the basis of that evidence alone, without reference to Brown's evidence. 83 Later still she said to the jury: After considering all that has been put to you in relation to Green's evidence, if you are satisfied beyond reasonable doubt that he was telling you the truth about the killing of Jones, you will find the accused guilty of murder. In that event, it would be unnecessary for you to consider the other matters put to you. In other words, as has been said to you, Green's evidence can stand alone. It is open to you to find the accused guilty of murder on Green's evidence alone, but only if, after considering all the matters that have been put to you, you are satisfied beyond reasonable doubt that he was telling the truth - the truth about the accused's involvement in the murder. If you are not so satisfied on his evidence alone, there is the other evidence to which you may have recourse and precisely the same thing applies to the evidence of the conversations with Brown, and I have already said that to you. If, after considering everything that has been put to you in relation to that, you are satisfied that what the accused said to Brown on the tapes about the murder of Jones was the truth, and you are satisfied beyond reasonable doubt that his account given to you in this Court is not the truth, then you could convict him on that evidence alone. But I should say, you don't have to look at the two pieces of evidence in isolation. You are entitled to use each piece of evidence in considering whether you accept the other. 84 In his written submissions Mr Terracini says that: It is conceded that the jury was entitled to find the Appellant guilty if the jury was satisfied beyond reasonable doubt, either that Green was telling the truth when he said the Appellant murdered Jones, or that the Appellant's alleged confession was truthful. It is submitted that the directions should have stated that the jury would have to be satisfied on a consideration of all the evidence in the case either that Green was telling the truth, or that the alleged confessional material to Brown was the truth. 85 Close to the end of the Summing-Up her Honour said: It is true that he does not have to prove anything to you, nevertheless he has given evidence, and it is a matter for you whether you think that his explanation of what he said to Brown is reasonably, or might reasonably be correct. If you think it might reasonably be correct, then of course you put that into the equation in your assessment of all the evidence. Then, I think I can finish with these short directions. If you are satisfied beyond reasonable doubt that Green was telling the truth you must convict the accused. When I say that, I am referring to Green's evidence alone. Secondly, if you are satisfied beyond reasonable doubt that when the accused made the admissions that he made to Brown he was telling the truth, you must convict. In order to reach that conclusion you would have to reach the view that there is no reasonable possibility that his response to, or his explanation for those admissions is true or correct. Another way of putting it is to say that you may ask yourselves if you are satisfied beyond reasonable doubt that the accused was not in this Court telling the truth about what he said to Brown, and why he said it. I have put that to you in two separate ways, on the basis of Green's evidence alone or the conversations alone. But you are not confined to considering the matter that way. They may be considered independently. You may be satisfied beyond reasonable doubt either on the evidence of Green alone, or on the evidence of the conversations with Brown alone, having taken into account all that has been put to you. However, they are not really the ultimate questions for you. The ultimate question is whether you are satisfied beyond reasonable doubt that the accused killed Jones. In considering that question, you may use the evidence of the Brown admissions to help you to decide whether you accept Green beyond reasonable doubt, and you may use Green's evidence to help you decide if you were satisfied beyond reasonable doubt that the accused is not telling the truth about his admissions to Brown. In reaching your verdict you must have regard to the totality of the evidence as I have summed it up to you, and indeed to any evidence that you think is important to which I have not made reference. You should also have regard to the arguments that have been put to you by counsel and to my review of those arguments. 86 In my opinion, a fair reading of the Summing-Up as a whole leads to the conclusion that her Honour urged the jury to consider all of the evidence in the case. She stressed this on several occasions, including immediately before they retired. Her Honour also made it clear that the two key pieces of evidence, Green and Brown, did not have to be looked at in isolation but could each be used in considering whether to accept the other. In my opinion, it cannot be gainsaid that the jury would have clearly understood their task. It was put to them that there were alternative bases on which they could convict but only after considering all of the evidence and her Honour's directions with regard to the evidence. I do not accept that her Honour's directions would have left the jury with the wrong impression. I do not see that they would understand from the directions that they could convict on the evidence of Green in isolation, or on the evidence of the alleged confession to Brown in isolation, without having to consider the other evidence in the case. 87 However, the matter became complicated because after the jury retired to deliberate, they sent a note to her Honour, asking for clarification on two points. First, what evidence had been presented that Jones was murdered at any location other than Botany? Second, if a juror is convinced that the accused murdered Jones at a location other than Botany, is it possible to convict? After discussion with counsel her Honour answered the queries. She reminded the jury of the evidence relevant to the first question. 88 In relation to the second question her Honour said: The Crown case has always been that Jones was killed by the accused at Botany. If any juror is convinced that the accused murdered Jones at some other location, that juror could not be a party a verdict of guilty and that is as far I think as I can take the answers to your two questions. 89 I do not understand why the Crown made the concession which lead to the direction being given in this form. It was very favourable to the appellant. It may have been how the Crown had run its case but 'Botany' was not an element in the offence. The issue arises however as to how it bears on the 'Brown alone' direction referred to earlier. Part of the Brown evidence, and the tapes, specified murder locations other than Botany, eg. a cellar in a hotel. How did her Honour's answer to the jury's question impact on her earlier directions that the jury could convict on the evidence of 'Brown alone'? 90 The jury ultimately found the appellant to be guilty. Consistent with her Honour's answer to the question discussed above, the jury must have found that the murder of the deceased by the appellant occurred at Botany. The only evidence of this was from Green. It was fundamental to Green's story that the killing occurred at Botany. It follows that the jury must have accepted Green's evidence on the location where the killing occurred. Accordingly, it is plain that the jury did not convict the appellant on the 'Brown alone' material. 91 At the time that her Honour's answer was given to the jury, defence counsel did not suggest that it was necessary to amend the earlier 'Brown alone' direction because the evidence of Brown and the tapes did not include any reference to the killing taking place at Botany. This may be because her Honour's answer to the jury question that a killing at Botany was essential to convict necessarily amended the earlier direction on 'Brown alone'. The Brown evidence did not include a killing at Botany expressly or by implication, only a burial of the body there. The 'Brown alone' direction must have been understood, in light of her Honour's answer to their 'Botany' question, as requiring the jury to be satisfied from other evidence that the murder happened at Botany. 92 At the time the 'Brown alone' direction was given, it was, in my view, correct. However, since the jury clearly did not act on it, but must have convicted the appellant on the basis of Green's evidence of the killing at Botany, I cannot see how any error, if there be one, matters. If there was error in the direction, it is appropriate to apply the proviso to s 6(1) of the Criminal Appeal Act 1912.

Ground 4 - Failure to adequately summarise defence case in relation to Green 93 The essence of this ground is that the appellant claims that her Honour put to the jury an alternative scenario which was never part of the defence case. That is, that Green was persuaded to give false evidence about the killing as some sort of protection or loyalty within elements of the police force. The complaint is that having put the scenario to the jury, her Honour set about demolishing it with arguments which were never part of the Crown address. The appellant submits that he was severely disadvantaged by what occurred. 94 It is important to understand what actually occurred in relation to this issue. No complaint was made about her Honour's 'alternative scenario' when the opportunity first arose. It only became an issue when the Crown complained about the direction, seeking that it be withdrawn. In fact defence counsel requested that it not be withdrawn, notwithstanding that Green had never been cross-examined about it. Debate resumed over the direction the next morning. Defence counsel said that the judge had not overstated his case whereas the Crown maintained that there was no evidentiary basis for the alternative scenario. 95 Her Honour redirected the jury as follows: I may have put the arguments in terms rather different to those that were used by Mr Terracini and certainly different to those that emerged during the course of the evidence. That means that you have not really had the benefit of hearing what the Crown would have said by way of response, had the argument been put that way by Mr Terracini. It is therefore only fair that I should put to you what the Crown would, in all probability, have responded to the propositions; they are legitimate answers. Firstly, that there is no evidence of any meeting between Green and any police, or any intermediary of the police; there is no evidence and no suggestion that Green received any money or other reward for giving false evidence; there is no apparent reason, and none suggested, why Green would deliberately give false evidence about the accused. The evidence Green gave incriminated not only the accused, but also himself in a very serious crime. No explanation was advanced as to why he would falsely so incriminate himself. In a word, what the Crown would argue in response to all of that is that the proposition is fanciful. As I said, they are legitimate answers. You may indeed find it difficult to make the jump from the facts and circumstances that I mentioned yesterday, a jump that involves ultimately the possibility that Green deliberately and falsely incriminated not only the accused, but also himself.

96 Defence counsel subsequently complained. In the exchange between bench and counsel, her Honour indicated that she had been struggling for seven weeks to understand the way in which the appellant put his case and she noted that counsel had adopted what she had said the day before. Later, defence counsel requested her Honour to withdraw the alternative scenario as never put or relied on by the accused. 97 Her Honour then redirected the jury, in part as follows: The alternative scenario I put to you was that, because of a variety of different circumstances which I will mention in a minute, Green might have been persuaded to give false evidence at the instigation of corrupt police. That, Mr Terracini tells me, is a misunderstanding of what he intended to put to you. What he intended to put to you was that because of those circumstances you might infer that Green was given information by White about what was on the tape recordings of the conversations between the accused and Brown and that, having access to that information, Green was then able to tailor his story, which is a false story, to fit in with the details of what the accused was saying in the cell.

and I am told that Mr Terracini does not suggest, or intend to suggest, that there was some arrangement among police and Green for Green to give that false evidence. What he wants you to draw from all the circumstances is what I just said to you, that is that Green had access to the stories the accused was telling Brown so that he could give an account of the murder that substantially fitted in with that.

98 Also, her Honour at this point in the further directions, summarised the effect of what it was the appellant was seeking to rely on. 99 In my opinion, the further directions of her Honour were such as to leave no uncertainty in the minds of the jury as to how the appellant put his case. No prejudice has been demonstrated by the appellant by reason of the directions. In my view, it cannot be said that the directions severely disadvantaged the appellant.

Ground 5 - Her Honour erred in putting to jury that Green had no reason to lie 100 Part of the defence case was that Green had a motive to lie. Defence counsel had submitted that Green was unable to explain how his [ ] business had banked $425,295 in its first 14 months of trading. It was submitted on behalf of the appellant that on a number of occasions her Honour put to the jury that Green had no motive to lie. 101 Again, in order to understand what occurred, it is necessary to put her Honour's directions in context. First, the jury was informed by her Honour that the fact that Green had been given an undertaking by the Attorney-General in relation to his evidence may have provided him with a motive not to tell the truth. Next, there was evidence which could have damaged Green's credibility and indicated that he was motivated to lie in his evidence. Her Honour extensively reviewed this evidence and the competing submissions raised on it. In this context she said: This matter ultimately does go specifically to whether or not you accept what Green said and it arises in this way: The accused denies Green's evidence. You know he has advanced a number of arguments suggesting that Green himself could not have been involved as he said he was. They were the arguments about whether he had blood on him, whether Jones bled, the position or direction in which the body was buried, the jewellery and so on. All of those things suggesting to you that you wouldn't accept Green's description of his participation in the killing of Jones. You might be asking yourselves why Green would fabricate a story that not only implicated the accused in a murder, but also implicated himself as an accessory or accomplice. It was in this context that Mr Terracini put to Green the questions I mentioned earlier to you. It is appropriate that I remind you precisely of what those questions were. He said: "You see, I suggest to you that at some stage there was talk between White, the solicitor, and Black and you, about you receiving some money which would be provided by Black and be controlled by White in return for you giving evidence against the accused."

That was one of the questions, and another was: "And that White, the solicitor, who you knew had a hatred of the accused, would then deal out the money at his discretion."

The third question was: "And I suggest to you that a figure of $250,000 was mentioned to you as your reward for your co-operation." Although it wasn't specifically put to Green, what was underlying the questions was the suggestion hat he was being paid money not only to give evidence against the accused, but to give false evidence against the accused. As I have said to you, the evidence given by Green not only implicated the accused, but also implicated himself and it is suggested to him that he did that in return for the large sum of money.

… It was argued that there is enough material in the evidence from which you might infer that some such arrangement was in fact made and that this provides an explanation for Green telling a story about the killing which the accused says is nothing but a concoction."

102 Her Honour also dealt, at length and in detail, with the evidence relied on by the appellant to support the proposition that White and Black provided Green with a financial incentive to lie. The direction included reference to the financial position of Green's gym business. Her Honour said: Over a 14 month period up to August 1997, that document shows that the gym banked $425,295. You can extrapolate that back to what the gym would take on that basis in 12 months and it is a gross annual income of $360,000. That is gross annual takings of $360,000. If you look at that against what Green told you about what services and facilities are provided by the gym and the fees and charges, Mr Terracini argued that you would conclude that it could not possible be making that amount of money, therefore there must be some other explanation for the money banked by the gym and he suggested that the explanation is that there was an injection of funds that came from Black in the way that was suggested by Mr Terracini, through White, as a reward for Green telling a false story. … It is a matter for you whether you think that there is adequate explanation for the apparent income, gross takings of $360,000 a year. It is a matter for you whether you think there is any real question about whether the gym has some unexplained income or not. It is important that I emphasise, in dealing with this, that the accused is not required to prove all or indeed any of the components that I have mentioned to you before you can take the argument into account. The question is not whether you are satisfied that Green has been receiving money as suggested, or for the reason suggested. The question is whether, having considered all that has been advanced to you, including the possible scenario that Green was persuaded or paid to give false evidence, you are left with any reasonable doubt about the essential truthfulness of the evidence he gave. I say "the essential truthfulness" because, as in the case of any witness, you don't have to be satisfied beyond reasonable doubt that he is correct on every detail. If, after giving due weight to all of the matters put to you, you are left with no reasonable doubt that the accused was present with Green and shot Jones, you will find him guilty. If, on the other hand, after considering all of the matters that have been dealt with including the questions raised in the topic I am now considering, you are left with a reasonable doubt, you will find him not guilty. To go back to the scenario with which I am dealing, that scenario is put to you as a composite set of facts or circumstances from which you might infer there is a reasonable possibility that the evidence Green gave was deliberately concocted by him at the behest of White and Black. The essential element of it lies in the conclusion you are asked to draw so I will repeat it. That is, that there is a reasonable possibility that Green did give deliberately false evidence. All of the components are put to you as circumstances from the combination of which you might reach that conclusion, so I will recap in a moment what those circumstances are. … I will just run through those circumstances again so you can see clearly, I hope, how the argument is made up. The first is White has hostility to the accused. The second is Black has hostility to the accused. Now, there is no evidence of the reason for White's hostility, but there is evidence of an explanation or reason why Black might be hostile to him. The third is Black's past as a drug dealer, in turn suggesting that he might, even while serving a lengthy prison term, still control large sums of money although, as I say, there was no direct evidence that he did so. The fourth is the friendship between White and Black, suggesting that they might act together to do what it is suggested they have done. The fifth is the circumstances of Green's visit to Black in gaol arranged by White and in rather strange circumstances, the circumstances being that he was apparently admitted to the gaol on some sort of ruse or false pretence. The next is the offer of protection by Black to Green although Black was in gaol, that offer being made in return for Green telling his story. The next is the reduction in sentence that Black received for his assistance in bringing Green forward. And the last is the financial position of the gym which, it was argued, received a boost which could only be explained by the receipt of some illicit funds. From all of that you are asked to conclude there is some reasonable possibility that Black provided money through White to Green and that, in return for that, Green not only gave evidence against the accused but gave false evidence against the accused. What is, as I said, essential to the argument is that there is a reasonable possibility that Green is telling lies about the killing of Jones or telling lies about the accused's involvement in the killing. The other important component is the suggestion that Green received money for telling those lies. It is suggested you should therefore look particularly closely at what was put to you about the financial arrangements at the gym.

103 In Palmer v The Queen (1998) 72 ALJR 254 at 258 the majority said: It is necessary to distinguish between cross-examination of a witness as to the motive of that witness to lie and cross-examination of another witness designed to show that that witness does not know of any fact from which to infer that the first witness had a motive to lie. The distinction was referred to in the context of a criminal trial by Hunt CJ at CL in another passage from his judgment in Uhrig [Court of Criminal Appeal, 24 October 1996, unreported]: "What this Court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth. I believe that is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court's decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all".

The majority of the High Court adopted the NSW position as correct in principle. 104 In the present case, there was no effective reversal of the onus of proof. As the majority in Palmer said (at para 8 p 258) it may overstate the effect of the question in a particular case, that it is to reverse the onus of proof, as referred to by Sperling J in R v E (1996) 39 NSWLR 450 at 464. This is especially so if the judge directs the jury to the contrary. 105 In this regard, and after complaint was made, her Honour said towards the very end of her Summing-Up: … in the course of giving you directions on that, I remarked that the Crown would argue there was no evidence, or no suggestion or explanation of why Green would incriminate himself in that way. I remind you, as I have reminded you a number of times before, that it is not for the accused to prove anything. It may be that you think there was a reasonable possibility that Green was fabricating his story, the accused does not have to establish any motive or reason why he might do so.

106 In my opinion, the redirection was adequate and it may be noted that no further complaint was made. This ground of appeal should be dismissed. For recent discussion of the issue see R v MM [2000] NSWCCA 78.

Ground 6 - Failure to exclude the taped conversations between appellant and Brown 107 Evidence of the taped conversations between the appellant and Brown was admitted over objection and following a voir dire. Her Honour gave reasons on 31 March 2000. The appellant relies on The Queen v Swaffield and Pavic v The Queen (1997) 192 CLR 159. It is submitted that her Honour should have concluded that Brown was acting as an agent of the State because he was a registered police informer and had been provided by police with a listening device, hidden in a computer. Detective Wilson had told Brown to encourage the appellant to talk about murders. Further, it is submitted that Brown's conduct elicited the confessions recorded on the tapes. 108 No submission is made that the admissions were involuntary, or that they had been obtained illegally. The recordings were made in furtherance to a warrant issued under the Listening Devices Act 1984. Further, no trickery was alleged by the appellant. 109 In her written reasons for admitting the tapes, her Honour concluded that Wilson's principal purpose had been to obtain material relating to the appellant's criminal activities. This was certainly open to find on the evidence. Her Honour also placed emphasis on the lawful and regular obtaining of the tape recordings of the conversations. 110 It is difficult to see how the evidence was obtained in breach of s 138(1) of the Evidence Act 1995. Even assuming that s 138(1) was attracted, it is clear that the probative value of the evidence was high; it was important to the proceeding and, bearing in mind the nature of the offence, the desirability of admitting the evidence outweighed the undersirabilty. 111 In examining the appellant's argument relying on Swaffield and Pavic, it is necessary to refer to some of the relevant evidence. Brown was transferred to the Special Purposes Centre at his own request. The accommodation arrangements were made by the Department of Corrective Services and not at the behest of police. Wilson played no part in the arrangements. Indeed, when Wilson found out that Brown was sharing facilities with the appellant, he asked if Brown wanted to be moved. Her Honour was entitled to reject the submission that Wilson had deliberately arranged for Brown to be placed in a cell with the appellant. 112 Brown's evidence was that within two weeks of sharing cell facilities the appellant began speaking to him about murders and that it was the appellant who had initiated those conversations. Indeed, the appellant had invited him to read the manuscript of a book he was writing. As a registered police informer, Brown reported the conversations to police. Arrangements were eventually made by police for the conversations between Brown and the appellant to be lawfully recorded. Before that occurred, it is clear that there was insufficient material available to charge the appellant.

113 The appellant and Brown had signed statutory declarations to the effect that neither would discuss their involvement with past offences. This occurred very early in the relationship. The appellant, it seems, saw the document as a means to protect himself should Brown attempt to give evidence of admissions made to him by the appellant. It is important to note that not only was it the appellant who initiated the conversations containing the admissions, he was obviously quite at ease in speaking with Brown and wanted to use him as a sounding board for his manuscripts. Her Honour was entitled to conclude that the decision to tape the conversations arose because the appellant was indiscreet enough to disclose his criminal activities to Brown, who happened to be a registered police informer in communication with Wilson. 114 In Swaffield (at 200 - 201) the majority discussed the decision of the Supreme Court of Canada in R v Broyles [1991] 3 SCR 595. In that case the accused had made a statement to a friend after arrest and caution. The friend visited the accused in gaol at the request of police and wore a listening device. He questioned the accused about the killing. The meeting was set up and facilitated by the police and parts of the conversations were in the nature of an interrogation. The Court found that the friend was an agent of the state and admission of the evidence would render the trial unfair. 115 Stating the facts in Broyles highlights the differences from this case. It cannot be said that the meeting (between Smith and Brown) was set up and facilitated by the police, or that without police intervention there would have been no conversation. Nor could it be said that there was subterfuge in obtaining the statement which was in violation of the appellant's choice whether to speak or not. The conversations were not 'elicited' by Brown and were not in the nature of interrogations. Indeed, the admissions were contained in flowing conversations. 116 I do not see that it can be concluded that Brown was an agent of the state in the way the Canadian Court used that expression in Broyles. 117 Nor are the present facts analogous to Swaffield. There an undercover police officer had a conversation with the accused wherein he pretended that the accused's brother-in-law was in trouble for burning a car. The accused then made admissions of arson and was subsequently convicted. The majority held (at 203) that the admissions were elicited in clear breach of the accused's right to choose whether or not to speak. Subterfuge had been used to obtain a statement. See also Brennan CJ at 185 and Kirby J at 224 - 225. 118 None of the features identified by the members of the Court in Swaffield are present in the present case. 119 Pavic may be closer to the present facts. Pavic had been questioned about the disappearance of a man. He was cautioned. After the body of the deceased was found, he was again interviewed by police. He maintained his right to silence and was released. Police then spoke to a close friend of Pavic and suggested that the friend speak to Pavic on behalf of the police and carry a recording device. The friend did so and Pavic made admissions of his involvement in the murder. At his trial the evidence was admitted, the trial judge having declined to exercise the discretion to exclude the evidence. 120 In dismissing the appeal Brennan CJ, at 185 - 186 said: In Pavic's case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity "to invent plausible falsehoods". The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions.

121 The majority (at 204) found that Clancy (who spoke to Pavic) was an agent of the state. However, if Broyles was applied, were the admissions elicited by Clancy, or was there an interrogation by Clancy? 122 Their Honours saw no reason to interfere with the trial judges' refusal to exclude the evidence of the conversation. 123 While Pavic is closer to the present case, it is clear that the degree of subterfuge therein was much higher. Notwithstanding, it was not considered to be such as would require its exclusion. I have already referred to some of the factual differences between Pavic and this case. They are such as to demonstrate that her Honour was correct to admit the tapes.

Ground 8 - discharge of the jury 124 This ground arises in the following circumstances. The Summing-Up began on Friday, 28 August 1998 and continued on Monday, 31 August until Tuesday, 1 September. At 12.20 pm the jury retired to consider their verdict. At 3.05 pm the jury asked to be informed of the precise words of their oath and the precise wording of the charge against the appellant. Her Honour complied. The jury continued to deliberate and on Wednesday, 2 September at 2.22 pm they sent a note to her Honour seeking clarification on what evidence there was about the deceased being murdered at a location other than Botany. This has been referred to earlier under Ground 3. After discussion with counsel her Honour answered the jury's questions. 125 On Thursday, 3 September, the jury began its third day of deliberation. At 2.32 pm the jury indicated that they were unable to agree. Her Honour gave them a direction in accordance with Black v The Queen (1993) 179 CLR 44. No complaint is made about that direction. 126 A short time later a note was received indicating that one juror had been unwell all day and was in considerable pain. The juror was unable to continue that day or the next. The jury requested that they be able to continue deliberations on the following Monday. 127 Defence counsel then unsuccessfully sought that the jury be discharged. The trial was adjourned to Monday, 7 September 1998. However, on the Monday morning it appears that another juror was unable to come to court. The defence again asked for a discharge. Shortly thereafter a note was received from the jury that 'two jurors are quite unwell and at least one is unable to continue'. The matter was adjourned to Wednesday, 9 September. On that day, the jury resumed their deliberations. There had been a break of five calendar days, from Friday, 4 September to Tuesday, 8 September. At 3.40 pm on Wednesday, 9 September 1998 the jury returned a verdict of guilty. 128 It is submitted by Mr Terracini that, in the circumstances of the jury's deliberations, in particular the illness of two jurors and the break of five days, the jury should have been discharged. 129 It is plain that the jury should not have been discharged on 3 September after they indicated that they could not agree. In the context of the long trial, it was appropriate to give the Black direction. There was no warrant for discharging the jury at that stage, see R v Tangye (1997) 92 A Crim R 545. 130 The next question to consider is whether the jury should have been discharged when, shortly after receiving the Black direction, the jury indicated that one of its members was unwell and unable to continue that day or the next. The jury note said: 'we would like to consider your instructions and do not feel we will be able to give an immediate answer'. This was clearly a reference to the Black direction and the jury wanting to continue to deliberate but needing more time. The trial judge, quite properly, was anxious not to place the jury under undue pressure, bearing in mind that she had also been told that one member was ill. Her Honour observed that a gap in deliberations 'is not a bad thing in a case such as this … sometimes the process of letting thoughts settle is a beneficial one'. At this point in time her Honour had three choices. She could accede to the jury's request, discharge the jury or discharge the sick juror under s 22 of the Jury Act 1977. The latter course was opposed by defence counsel. I do not see that her Honour erred in failing to discharge the jury upon receiving this request. She was, in my assessment, entitled to adjourn the matter to Monday, 7 September 1998. 131 As observed, further problems unfortunately arose on the Monday when another juror was unwell. Was her Honour correct in then refusing to discharge the jury and instead adjourning the matter to the Wednesday? In discussion on the Monday before, it is plain that counsel for the appellant did not accede to the suggestion that the trial continue with less than 12 jurors. Again, the decision for her Honour was to discharge or adjourn. 132 Her Honour's decision was a discretionary one, R v Ball [1961] 61 SR (NSW) 37. Did her decision not to discharge the jury on Monday, 7 September 1998 lead to a miscarriage of justice, R v George (1987) 9 NSWLR 527? In George, Street CJ referred to the test being essentially one of the necessity of ensuring a fair trial. 133 Assessing the circumstances up to the Monday (7 September) and the problems posed to her Honour on that morning, I am not persuaded that there was a miscarriage of justice involved in the course her Honour decided to take. I do not see that continuing with the trial and adjourning to the Wednesday deprived the appellant of a fair trial. 134 Although one would be naturally troubled by a five day break in deliberations and by the health of the two jurors, this is not a clear case which required a discharge, or that inherent in its refusal was a miscarriage of justice. As Mason CJ and McHugh J remarked in Webb v The Queen (1993 - 1994) 181 CLR 41, the discretionary judgment (on discharge) involves a value judgment. Where no error of principle is involved, appellate courts should be slow to interfere. Their Honours also explained the importance of the trial judge being 'the person on the spot'. R v Gallagher (1989) 29 A Crim R 33 at 41 stressed the balancing process involved in the public interest of securing the accused a fair trial and other relevant matters. In this balancing, in the present case, the observations of the trial judge and her knowledge of the atmosphere of the trial must be given great weight. 135 I am not satisfied that her Honour's discretion in refusing to discharge the jury lead to a miscarriage of justice.

Ground 9 - conviction unreasonable 136 Leaving aside the new limb of ground 9, permitted by leave, and dealt with for convenience along with grounds 1 and 2, this ground covers two matters. The first concerns the appellant's phone call to Sergeant Daly after the death of Jones. The second concerns inconsistencies in the evidence between the appellant's admissions to Brown, Green's eye witness account, the known facts of the death of Jones and the known facts about the disappearance of Christopher Dale Flannery. 137 It is convenient to deal with the latter issues first. 138 (a) Conflicts between Green's account and the finding of the body

These conflicts include Green's statement that the body of the deceased was buried feet towards the sea. The body was found head towards the sea. The bones of Jones' hand were shattered. Green did not see any injury to the hands of the deceased. Green said that he dragged the body under the arms whereas the evidence of Dr Botterill suggests that the body was dragged by the feet.

Given the delay between the trial (1998) and the murder (1983) it is difficult to comprehend how the discrepancies assume very much significance. In a way, they are hardly surprising. In any event, they hardly suggest that Green was not present at the scene or explain why he would falsely implicate himself. 139 (b) Phone call to Mrs Jones

Involved in this discrepancy is the time of the appellant's phone call to Mrs Jones. It is argued that if Mrs Jones' estimate of the time when the appellant called her is anywhere near correct, the appellant could not have killed Jones. The appellant's submission is also based on the premise that both Green and Mrs Jones are reliable in their estimates of time. There is no reason to assume that Green, in particular, was reliable in his evidence of the timing. I do not accept, given the lengthy delay from 1983 to trial, that this was a matter of significance which could lead to a conclusion that the conviction was unreasonable. 140 (c) Appellant's confession contradicted by other evidence

It is submitted that the detail of the alleged confession was contradicted by other evidence. For example, the deceased was said to have been buried near a 'sewer thing' (Tape 2). There were no sewer outlets in Botany Bay but a stormwater outlet was 400m away. At least seven other discrepancies are relied on from the tapes. These include an account by the appellant of killing the deceased at his house at Blakehurst. 141 As against these matters, it may be seen that the appellant's admissions were made 5 months before the chance finding of the body of the deceased. The body was found in the general location nominated by the appellant. The appellant said that the body had been buried 10 years, which was very close to accurate. The tapes also included a conversation in which the appellant told Brown that he phoned Mrs Jones on the night to provide himself with a 'cover'. In another tape the appellant told Brown that he hated digging and told [' '] to bury the deceased. This was consistent with Green's evidence and [' '] was Green's first name. Even more important was that at that point of time, the body of the deceased had not been found, so it was the appellant who first nominated [' '] as his accomplice. 142 The contradictions relied on by the appellant are not of such a nature as to make the verdict unreasonable. This is especially so when considered in the light of the whole of the context of the tapes and other features of the Crown case, particularly, the clear admissions by the appellant to Brown that he had murdered Jones. Moreover, as already mentioned, a number of aspects of the admissions to Brown were consistent with other evidence. This, taken with the implausible explanation by the appellant as to why he falsely confessed to Brown that he killed the deceased, flies in the face of an unreasonable verdict. 143 The appellant said that he told Brown a pack of lies and his motivation to do so was so that the material would find its way to Detective Harding. Harding would then investigate and charge the appellant with murder. The appellant would be acquitted and this would embarrass Harding. The explanation has no credibility. Who would deliberately feed a false murder confession to a detective so as to be charged in order to embarrass the detective? One could readily think of other ways to achieve the objective than such a risk laden strategy. 144 In any event, as her Honour noted in her remarks on sentence, this alleged objective was at odds with a number of other things said to Brown, and with the signed statutory declarations. The tapes include a number of suggestions by the appellant to Brown as to what he should do if questioned by police, as well as one threat to Brown if he revealed anything. 145 The statutory declarations made by the appellant are also relevant to his explanation. First, it seems that the appellant felt anxious enough about his position once he knew that Brown had been recording their conversations to have made the declarations and to seek to explain the statements made to Brown. Secondly, it may be noted that there is no reference made in the declarations to the Harding conspiracy theory put forward at trial by the appellant. 146 Then there is the direct evidence of the eye witness, Green. The appellant was unable to provide any real basis that Green had given false evidence other than to suggest that he had been bribed to give evidence against the appellant. There was no evidence to support this. Moreover, there were some consistencies between Green's account and other evidence. 147 Also relevant to the issue of whether the verdict was unreasonable was the motive of the appellant to murder the deceased. Her Honour noted at least three motives in her remarks on sentence: monetary gain, protecting and preserving his criminal empire and animosity towards Jones. In addition, the credibility of the appellant was considerably damaged without any consideration of his evidence at the trial. For example, he had previously lied on oath, was a career criminal with a vast array of serious crimes and had been given the 'green light' by corrupt police to commit any crime (short of murder) provided he shared the proceeds with those police. Added to these matters was the opportunity the appellant had to kill the deceased. They were to meet on the night of the murder, the deceased wanting his help in relation to the incident the night before at Sheila's. The deceased was likely to have been carrying a large sum of money that night. 148 Taking into account all of the above factors, it is difficult to see that any real importance should be attached to the contradictions between the alleged confession to Brown and the appellant's evidence. 149 (d) Various versions of the confession

The appellant gave Brown a number of versions of the murder of the deceased. Besides the shooting and subsequent burying at Botany, he told Brown that he killed the deceased in a hotel cellar and his body was dumped off a boat at sea. He told Brown that Jones was dumped from a launch in Botany Bay or outside the heads. He said that the person who dumped the body chopped the legs off. 150 All of these explanations were demonstrated to be untrue. However, none of these inconsistent and erroneous explanations lead to any unreasonableness in the verdict, taken with all the evidence. The 'inconsistencies' do not necessarily reflect on his guilt for the present offence. 151 (e) The Flannery material

According to Inspector Laycock, the appellant's accounts on the tapes of the murder of Christopher Dale Flannery were contradicted by known facts. This is said to support the defence case that the appellant was spinning yarns to Brown. Even assuming that the appellant's version regarding Flannery was entirely false, I do not see that it establishes that his version of the Jones killing is also a fabrication. 152 (f) and (g) Motives of appellant and others

The possible motives of the appellant have already been mentioned. It is possible that others also had a motive to kill Jones. However, the evidence of the motives of others to kill the deceased is speculative only. 153 (h) The phone call to Daly

A transcript of a phone conversation between the appellant and a corrupt police officer, Sergeant Daly, was tendered. It occurred after Jones' disappearance. In the conversation the appellant is trying to negotiate a bribe to police for the charges the deceased was facing regarding the Sheila's Tavern incident to be dropped. Mr Terracini asks, why would the appellant be telephoning Daly, after Jones was murdered, to bribe him to drop charges against Jones? Counsel points to the Crown suggestion of an elaborate charade to create a false impression that the appellant believed that Jones was still alive. Counsel submits that this is unlikely, unless the appellant was confident that Daly would report the conversation or confident that the conversation was being recorded by other police. Both of these scenarios are said to be unlikely in the extreme. 154 The response of the Crown is that the appellant did not have 'the green light' to commit murder and knew that suspicion would fall on him. He needed to cover his tracks. One attempt was to contact Mrs Jones, indeed on a number of occasions. He also wanted to see if any investigation into the disappearance had been commenced and Daly would be likely to know. Since the appellant also had an ongoing arrangement with Daly, which involved the deceased, it was necessary to create the impression that it was 'business as usual'. If the occasion arose later for Daly to disclose the phone call, the appellant could reasonably expect that Daly would repeat only that the subject matter of Jones had been raised, not the corrupt payments. 155 Counsel also relies on the conversation being captured by an Australian Federal Police investigation into NSW police and coming to light in the ICAC Inquiry into corrupt police practices. Accordingly, it could hardly be said to be a cunning ruse by the appellant. 156 Moreover, counsel submits that the appellant would not know that there would be a tape of the conversation or that Daly would ever confirm it. There was no nexus between Daly and the murder investigation. 157 In response the Crown submits that the Daly tape is but one piece of evidence to be considered with the balance of the evidence. The jury were addressed on it at some length and it apparently had no impact on their verdict. Nonetheless, it was open to infer that the appellant was attempting to cover his tracks fearing that suspicion may fall on him. It was open to infer that the appellant wanted to create the impression that nothing untoward had happened and it was business as usual. This is especially so in light of the appellant's ongoing relationship with Daly involving the deceased. 158 Some aspects of why the appellant might phone Daly at the time that he did do not readily make much sense. In the end, it may be that the evidence is neutral. In any event, it was before the jury and it was for them to weigh with all of the evidence. It may have been another attempt at 'cover' by the appellant, and it may be reasonable to assume that Daly would mention it to other corrupt police within the coterie, including Rogerson (who was mentioned in the phone conversation). It is also open to interpretation as an attempt to see what Daly knew of the disappearance of the deceased and any police action. 159 Notwithstanding some of the imponderables about the phone conversation, I do not see how it can be said that it lead to an unreasonable verdict. 160 It follows that I am of the view that all of the appellant's grounds of appeal should be rejected and the appeal against conviction should be dismissed.

Grounds 10 and 11 - appeal against sentence 161 Two submissions are made in the appellant's application for leave to appeal against the life imprisonment sentence imposed by her Honour. First, her Honour should not have found that the murder was in the worst category of the offence. Secondly, her Honour failed to take account of the appellant's assistance to the authorities. 162 One of the difficulties for the appellant is that he refused to take part in the sentencing procedure and so instructed his counsel. Accordingly, no evidence was called by the appellant on sentence, nor any submission made. No submission was therefore made that the sentence did not fall into the worst category of offence. 163 Her Honour found that the killing was premeditated, cold blooded and carefully planned. The appellant had involved others in the crime, on whose silence he believed he could rely to see that the offence remained undetected. 164 The appellant sought to conceal the offence and his involvement. Her Honour found that there were at least three reasons for the murder: monetary gain, protection of his extensive criminal empire and because the deceased had become a pest and a nuisance. There was evidence on which it was open to her Honour to find that the offence was motivated by financial gain. The deceased was carrying a substantial sum of money at the time of his death. 165 In Veen v The Queen (1987 - 1988) 164 CLR 465 the High Court said that it was legitimate to take account of a person's criminal history when it illuminates his moral culpability in the offence, shows his dangerous propensity or indicates a need for condign punishment as a deterrence. All of those matters apply to the appellant in the present case. 166 The evidence, including the findings on the appellant's motivation, and the objective seriousness of the offence, amply justify her Honour's conclusion. The sentence cannot be said to be manifestly excessive. As to the complaint that her Honour did not take into account the assistance by the appellant to the authorities, it is correct that he had given some evidence at the trial on the matter. However, since he chose not to do so on sentence, or to have his counsel address on the matter, her Honour was in no position to evaluate it. 167 Her Honour had specifically raised the difficulty she confronted in sentencing the appellant without his participation in that part of the proceeding. It follows that the appellant has failed to demonstrate that it was not open to her Honour to impose the sentence that she did. 168 I would grant leave to appeal against sentence but dismiss the appeal.

3. Appeal against sentence dismissed. 170 DUNFORD J: I have had the opportunity of reading in draft form the judgement of Stein JA. For the reasons given by his Honour the appeal against conviction should be dismissed, leave to appeal against sentence granted but the appeal against sentence should be dismissed. 171 SPERLING J: I agree with the orders proposed by Stein JA and with his reasons. OoO

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