Regina v Galea

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 70040/98 FILE NUMBER(S) : LOWER COURT Sully J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60088/04

IPP JA HULME J HISLOP J

Wednesday 28 July 2004 REGINA v RAYMOND GALEA Judgment 1 IPP JA: The appellant was charged with being an accessory after the fact to murder. The charge was in the following terms: "That whereas Keng Hwee Yeo [also known as Kathy Yeo] between about 5 June 1997 and about 10 June 1997, at Sydney in the State of New South Wales did murder Christopher Mark Dorrian, thereafter between the time of the murder and 21 June 1997 at Sydney in the said State did assist the said Keng Hwee Yeo". 2 The appellant pleaded not guilty to the charge. The trial lasted almost seven weeks, from 19 February 2003 to 8 April 2003. The appellant was found guilty as charged. The trial judge, Sully J, sentenced him to imprisonment for five years with a non-parole period of two and a half years. The appellant appeals against the conviction. 3 The trial before Sully J was the third trial faced by the appellant on the charge of being an accessory after the fact to the murder of Mr Christopher Dorrian. The appellant was originally jointly tried with Ms Yeo. At that trial Ms Yeo was convicted of murder. The appellant was acquitted of murder but convicted as an accessory after the fact. Both Yeo and the appellant successfully appealed to this Court: R v Galea; R v Yeo [2001] NSWCCA 270. A retrial was ordered on the charge of the murder by Ms Yeo and on the accessorial charge in relation to the appellant. At the second trial, before James J, Ms Yeo was again convicted of murder. The jury were unable to agree on a verdict in relation to the appellant. The appellant was then tried before Sully J and a jury. 4 The following facts were agreed at the trial:

(a) Ms Yeo murdered Christopher Dorrian prior to 21 June 1997.

(b) The severed heard of Christopher Dorrian was found on a bank of Cook's River on 21 June 1997.

(c) Christopher Dorrian was killed by three gunshots wounds to the head. 5 The Crown contended that the appellant was guilty as a result of his participation in -

(b) The cleaning of a unit in which Ms Yeo had lived with the deceased between 30 May 1997 and 6 June 2007; and

There was evidence on which the jury could find that Ms Yeo had been assisted in these respects. 6 The Crown put its case to the jury on the alternative basis that, if it had not established the appellant's participation in all three events, it had, at least, established beyond reasonable doubt his participation in one of the three events. 7 Prior to living with the deceased, Ms Yeo had lived with the appellant. She was a nurse and worked at Palm Court, a drug and alcohol rehabilitation facility at Rozelle Hospital. The deceased admitted himself to Palm Court on 17 April 1997 and discharged himself on 6 May 1997. Ms Yeo was one of his counsellors. On 23 May 1997 Ms Yeo moved out of the home in which she was living with the appellant and into the nurses' quarters at Rozelle Hospital. On 26 May 1997 she entered into a lease in respect of a unit in Maida Street, Lilyfield. On 30 May 1997 she moved into that unit with the deceased. She moved back to the appellant's home on 6 June 1997. The appellant assisted Ms Yeo in moving back into his house. 8 Ms Yeo terminated the lease on 10 June 1997. A real estate agent inspected the unit on 12 June 1997 and found it to be in a clean condition. A forensic examination of the unit on 25 June 1997, however, found blood on the floors and doors of the bathroom, in the bathtub, in the kitchen area, under the stove and under the carpet. Hair and tissue were found in the bath. DNA swabs were consistent with the deceased. 9 The Crown case in relation to the appellant was largely circumstantial. It relied on the relationship between the appellant and Ms Yeo, and in particular his strong feelings for her (despite her infidelity), evidence that the appellant had been seen at the block of units where Ms Yeo and the deceased had lived at about the time the Crown alleged the events the subject of the charge took place, and evidence obtained by listening devices hidden in the appellant's home. The Crown contended that the latter evidence established a consciousness of guilt on the part of the appellant. 10 The consciousness of guilt evidence fell into two categories. The first category was said to be the dishonest coaching of the appellant by Ms Yeo. After Ms Yeo was interviewed by the police, conversations were recorded between her and the appellant involving a discussion of what she had said to the police and what he should tell the police. The second category involved statements, picked up by the listening devices, which the Crown contended established that the appellant knew of, and was involved in, the murder of the deceased. 11 During the trial, the defence raised the possibility that one Mark Benjamin (who had also had a sexual relationship with Ms Yeo) had (to the exclusion of the appellant) assisted Ms Yeo after the murder. As it was put in the appellant's written submissions "Mark Benjamin became a key figure in the trial". 12 Mark Benjamin was a patient at Palm Court from 3 October 1996 to 13 November 1996. Ms Yeo was his "secondary nurse". Ms Yeo and Benjamin commenced a sexual relationship during the time Benjamin was a patient (while Ms Yeo was in fact living with the appellant). After Mr Benjamin's discharge he continued to see Ms Yeo daily. 13 Mr Benjamin testified that his sexual relationship with Ms Yeo ended in about March 1997. He nevertheless, thereafter, on his way to the railway station, regularly walked past the house in which Ms Yeo lived with the appellant. Mr Benjamin testified that after her arrest Ms Yeo wrote to him from gaol and they exchanged a number of letters. 14 On one particular occasion, when Mr Benjamin happened to be walking past the house in which the appellant and Ms Yeo were living, he saw the appellant packing Ms Yeo's belongings into his car. Mr Benjamin offered to assist the appellant and he accepted. They went to a flat where they unloaded Ms Yeo's property. 15 Mr Benjamin testified that some days later he saw the appellant in the front yard of his house unpacking his vehicle. The appellant told him that Ms Yeo was moving back in with him. On this occasion the appellant refused Mr Benjamin's offer of assistance. 16 Mr Benjamin said that in July 1997 he became aware of the police investigations. On 14 July 1997 Mr Benjamin visited Ms Yeo to ask her whether the appellant was involved. 17 The appellant contended at the trial that Mr Benjamin's visit of 14 July 1997, and the conversation recorded by the listening device on this occasion, were inculpatory of Mr Benjamin. 18 The notice of appeal contains six principal grounds of appeal. Only five, however, were argued. There are a number of sub-grounds asserted under the first ground of appeal. 19 Before dealing with the grounds, I would make the following preliminary comments. 20 I have already referred to the duration of the trial, which was seven weeks. The addresses of counsel, alone, took five days. The judge gave lengthy and detailed oral directions to the jury. These were supplemented by written directions. Grounds 1 and 4 challenge certain of the directions. These challenges, to a large extent, focus on isolated statements by the judge. The directions, however, must be considered in the context of the directions as a whole, particularly in a case such as the present where there were lengthy and detailed directions given after a lengthy and complex trial. 21 Secondly, certain challenges to the respondent's directions engage r 4 of the Criminal Appeal Rules. Rule 4 provides: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal." 22 The importance of the approach embodied in r 4 has been stressed in a number of authorities. 23 In General Motors-Holden's Proprietary Limited v Moularas (1964) 111 CLR 234, Barwick CJ said (at 242-243): "But the common law in this matter is quite clear. Without attempting an exhaustive statement, it is established that, generally speaking, a criticism of the summing up which is capable of being cured at the trial must be taken at the trial and the judge asked to correct it. If this is not done in a case where it ought to be done, a new trial on the basis of that criticism of the summing up will, in general, not be ordered. Again, the matter is not the subject of any hard and fast rule, because the court retains a general discretion and is able in a proper case in the interests of justice to relax the requirement."

24 In R v Sanderson (unreported, NSWCCA, 18 July 1994), Gleeson CJ said: "This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of rule 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration, then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred." 25 In R v ITA [2003] NSWCCA 174 I observed (at [98]): "The existence of r 4 … imposes a duty on counsel to inform the trial judge of all points that arise from the summing up that reasonably could give rise to an appeal. It will lightly not be assumed that this duty has been breached. Rather, unless there is good reason to hold the contrary, it will be inferred that decisions not to raise such matters with the trial judge are taken for sound forensic reasons." 26 I turn now to the grounds of appeal themselves. 27 Ground 1(a) is in the following terms: "The trial judge erred in his directions to the jury in relation to the onus of proof in failing to direct the jury that the Crown bore the onus of excluding the possibility that some unknown person had, to the exclusion of the appellant, assisted Kathy Yeo as the accessory after the fact to the murder." 28 The argument was put this way in the appellant's written submissions: "The onus was on the Crown to exclude any reasonable hypothesis … If the appellant was innocent (a presumption to which he was entitled) he could not be expected to know who had assisted Yeo. By actively exploring at trial the possibility that Benjamin was involved, the appellant cannot be taken as having abandoned any other possibilities. It is submitted that the trial judge erred in not directing the jury in relation to the need to exclude the possibility that some other person assisted Kathy Yeo, thereby excluding the appellant." 29 Sub-ground 1(a) has to be seen in the context of directions given by Sully J that are not the subject of challenge. 30 In written directions that he provided to the jury Sully J stated: "The case for the accused has two broad and complementary thrusts, namely: (1) The proposition that the whole of the available evidence does not give rise to only one rational inference, namely the guilt beyond reasonable doubt of the accused as now charged; (2) The proposition that the whole of the available evidence leaves open as a reasonable possibility that Mark Benjamin was, to the exclusion of the accused, a true accessory after the fact to the particular murder. Insofar as the case for the accused rests upon an argument that it remains open, at the end of the day, as a reasonable possibility, that Mark Benjamin was, to the exclusion of the accused, the real accessory after the fact to the murder of Mr Dorrian, then part of the burden of proof carried by the Crown is the burden of establishing that what the defence is suggesting about Mark Benjamin does not remain open as a reasonable possibility." (emphasis in original) 31 Here the judge made very plain to the jury, in written directions likely to have more enduring effect than those given orally, that the onus was on the Crown to "exclude the possibility that some other person assisted Kathy Yeo, thereby excluding the appellant." 32 His Honour's summing up to the jury took place over more than one day. At the end of the first day, his Honour asked counsel whether they had any comments on the directions he had so far given. Counsel acting for the appellant referred to the passage in the written directions which I have quoted and said: "The proposition that the whole of the available evidence leaves open as a possibility, because of the way that I have made suggestions, that it doesn't have to be just Mark Benjamin or some unknown person was to the exclusion of the accused." 33 Sully J replied: "No, no, you can't do that, not in the way this trial has been run. You can't, Mr Hogan. This trial has been conducted from the time you opened it upon the basis that part of the response that would be made by the accused to the Crown's case was that there was a man called Mark Benjamin, and that after all of the evidence that would be heard about him was in hand the jury would be persuaded that it remained open as a reasonable possibility that he had been the real accessory after the fact …" 34 The following exchange then occurred: "Counsel: That is true, but I referred to unknown persons. Kathy Yeo could have recruited anyone. There is no evidence but I have put that to the witness. His Honour: No, I don't think you can have that, I think that is pure speculation …"

Sully J went on to say that "The way the case has been structured from the time it started until the time you sat down this morning" was based on the proposition that Mark Benjamin was a reasonable possibility as the accessory. Counsel replied: "Well, your Honour, with respect, the same as in a murder trial the Crown have to exclude the reasonable possibility of anybody else, reasonable possibility of there being another murderer." 35 By that reply, counsel tacitly acknowledged that the trial had been conducted on the basis that Mark Benjamin could have been the person who assisted Ms Yeo, and the defence had not suggested that anyone else did so. Counsel was thereby submitting that, despite the way in which the case for the appellant had been conducted, the Crown had to exclude "the reasonable possibility" that some person other than Benjamin was involved. 36 Sully J then said to counsel: "You can look at this over the weekend and give me the assistance of authority, for there is authority on the point …"

His Honour also said words to the effect that it had not been the defence case "that somebody wholly unidentified in any way by any evidence, but neither the accused nor Mr Benjamin, could have given her assistance". He proceeded: "If that overlooks something you will put it all together for me at the weekend and tell me on Monday morning".

Counsel replied: "Well it is a reasonable possibility she could have recruited anyone."

Sully J inquired: "But where is the evidence?"

Counsel replied: "I will think about what your Honour has said."

Sully J remarked: "There is simply not a scintilla of concrete evidence that I can recall that would enable the jury to come to any such conclusion [that any person other than the appellant or Mr Benjamin could have been an accessory after the fact]". 37 The following exchange then occurred: "Counsel: I am reluctant to say it, but in the last trial Justice James, and I will find the direction he fashioned at the start, he prepared a document for us of what he said to the jury, and that is actually what triggered it with me while I was thinking about your Honour's document and I only thought of it in the last few minutes, even though I did in some of my submissions say someone, persons unknown, could have gone there on the Saturday, for instance, but I will think about it. His Honour: As I told you before, Mr Hogan, I will hear you on any submission or application you want to make of course, but I have to tell you in all frankness that last submission is drawing far too long a bow." 38 Two points need to be made from the last exchange. Firstly, it is apparent from trial counsel's observations that his request for a direction that some unknown person was an accessory after the fact was simply an afterthought. It was only "in the last few minutes" (that is, in the last few minutes of the first part of his Honour's directions) that counsel thought of the possibility that it could be said to the jury that some unknown person had been an accessory after the fact. This reinforces his Honour's observation that the case was not run on the basis that some unknown person might have been the accessory who assisted Ms Yeo after the murder. 39 Secondly, notwithstanding the judge's invitation to counsel to return after the weekend with references to evidence that supported this last-minute contention, and any authority supporting the need to give a direction in regard to it, counsel made no response. This omission also reinforces his Honour's view as to how the case was run and as to whether he was required to give any further direction. 40 In Barca v The Queen (1975) 133 CLR 82 Gibbs, Stephen and Mason JJ said (at 105): "However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted." 41 In the present case, it seems to me, the prospect of some unknown person having been involved was "groundless speculation". In my view, his Honour was entitled to proceed as he did. 42 After the exchanges which I have quoted above, his Honour directed the jury as follows: "The case for the accused is, effectively, a two pronged case, although there is some unavoidable overlap between the two ways in which the defence case is put. I have put them separately in the hope that that will make it easier for you to keep the two in some proper but discrete relationship. The first proposition upon which the defence case rests is, of course, the proposition that, Mark Benjamin to one side in any event, the aggregate of facts and circumstances upon which the Crown relies cannot carry the ultimate inference reached beyond reasonable doubt that the accused is guilty in the sense that it can be proved beyond reasonable doubt that each of those four material ingredients is established beyond reasonable doubt by the whole of the evidence. The second, and as I say related to some extent, overlapping thrust in the defence case has to do, of course, with Mark Benjamin. The basic proposition concerning Mr Benjamin is the one in the paragraph numbered two. I would invite you to attend to it with some care. The proposition is that the whole of the available evidence leaves open as a reasonable possibility that Mark Benjamin was, to the exclusion of the accused, the true accessory after the fact to the particular murder." 43 Appellant's trial counsel, when invited to comment, said nothing in regard to these directions; the inference being that he was satisfied with them. I would add that his Honour's comment on the "first proposition upon which the defence case rests" comes very close to expressing that which the appellant contends should have been said. 44 In the circumstances, I would not uphold sub-ground of appeal 1(a). 45 Sub-ground 1(b) asserts: "The trial judge misdirected the jury in relation to the onus of proof generally." 46 The appellant submits that the judge gave a number of directions to the jury that had the potential to mislead in relation to the onus of proof. These all concerned the involvement of Mark Benjamin. 47 Sully J directed the jury: "Implicit in the Mark Benjamin argument, if I may so describe it, is not merely that he is a reasonable possibility as an accessory, but that the things that make him a reasonable possibility as an accessory necessarily exclude the accused." 48 The appellant now submits that the effect of this direction was "to place a burden on the appellant such that he was entitled to an acquittal only if there was a reasonable possibility that Mark Benjamin acted as an accessory and that there was no possibility that the appellant was also an accessory". 49 The appellant also submits that the jury would have understood this direction to mean: "[F]irst, the appellant had assumed an onus to establish that Mark Benjamin was a possibility, and second, once that onus was satisfied, there was an additional onus on the appellant to demonstrate that Mark Benjamin acted to the exclusion of the appellant." 50 Immediately after the direction, to which I have referred, Sully J directed the jury: "So when you are looking at the Mark Benjamin limb of the matter, bear that in mind please: that what you are looking at is the proposition that the whole of the evidence, viewed fairly, leaves it open for you to infer, - that word again, infer, - by a process of reasoning, that Mark Benjamin is a reasonable possibility as having been the true accessory after the fact to the exclusion of the accused." 51 Again, it is submitted that by this direction the jury would have understood there to be a requirement that the appellant establish positively the possibility that Mark Benjamin was involved as the "true" accessory (that is, the only accessory). 52 The appellant submits that the effect of these directions was exacerbated by another direction given by his Honour when dealing with the strength of a circumstantial case. Sully J said to the jury: "One defeats a circumstantial case, if at all, by demonstrating that even the combined strength of everything … can be rationally broken."

The appellant submits that this direction suggested to the jury that the onus was on the appellant to demonstrate that the Crown case could be "rationally broken". 53 The appellant conceded that his Honour did, at other parts of the summing up, correctly direct the jury as to the onus of proof in a circumstantial case. Nevertheless, the appellant submits that the effect of the misdirections was such that, taken together, the jury were not adequately instructed in relation to the onus of proof. 54 It is necessary to set out the other directions given by his Honour on the issues complained of now by the appellant. 55 In his written directions Sully J stated: "The basic principle is this: a Crown case that depends for its proof upon circumstantial evidence cannot succeed unless the Crown proves … beyond reasonable doubt that the ONLY rational inference to be drawn from the WHOLE of the proven circumstances is the inference of guilt as charged."

The emphasis is that which appears in his Honour's written directions. 56 I have drawn attention to that part of his Honour's written directions in which he said: "[P]art of the burden of proof carried by the Crown is the burden of establishing that what the defence is suggesting about Mark Benjamin does not remain open as a reasonable possibility." 57 His Honour said in his oral directions: "The first principle concerns the burden of proof. The fixed position of our system of criminal justice is this: a person who is brought to trial charged with having committed a criminal offence is presumed to be innocent unless and until the Crown, which has brought him into Court and to trial, proves its case against him. From first to last the burden of proof in this trial rests upon the Crown. In the circumstances of this particular trial the burden of proof the Crown bears has two related, but not quite exactly the same, aspects. The Crown must prove beyond reasonable doubt, a concept to which I will come in a moment, the essential ingredients of the charge that it has brought against the accused. The accused has made a response to that case. His response, in large part, suggests that it remains at the end of the day a reasonable possibility that the man Mark Benjamin was the true accessory after the fact to the exclusion of the accused. That proposition having been raised, it is not the burden of the accused to establish it. It is part of the burden of the Crown to rebut it. I will have more to say about that to you later, of course. Just take hold for the moment of the basic principle. The burden of proof does not ever shift in this trial from the Crown to the accused. The Crown bears the burden of proof at every stage." 58 Thereafter, his Honour told the jury that the Crown must prove beyond reasonable doubt that the appellant "did some act or acts apt to help Kathy Yeo to escape being brought to justice for what she had done" and that "when he did the particular act or acts, he intended so to help Kathy Yeo". He pointed out that the Crown must prove beyond reasonable doubt the essential ingredients that go to make up the crime. 59 Then, his Honour said: "In so far as the case for the accused rests upon an argument that it remains open at the end of the day as a reasonable possibility that Mark Benjamin was, to the exclusion of the accused, the real accessory after the fact to the murder of Mr Dorrian, then part of the burden of proof carried by the Crown is the burden of establishing that what the defence is suggesting about Mark Benjamin does not remain open as a reasonable possibility. The defence case does not go to you upon the basis that the defence has proved in some way or other that Mark Benjamin remains open as a reasonable possibility. The defence case goes to you, and is entitled to go to you, upon the basis that it is for the Crown to negate Mark Benjamin as a reasonable possibility for the role of accessory after the fact. You will observe that that is an anomalous kind of situation in this sense: that it calls upon the party carrying the burden of proof, not as is normally the case, to prove a positive, but to disprove, well prove a negative, and disprove what is essentially a negative proposition." 60 Immediately thereafter Sully J repeated: "[T]he Crown has to disprove the proposition that it is a reasonable possibility at the end of the day that Mark Benjamin is, indeed, properly to be fixed with the identity of the true accessory after the fact." 61 Towards the end of his directions Sully J said: "What matters is … ultimately, has the Crown proved beyond reasonable doubt the four essential ingredients in that connection? Has it repelled the hypothesis that Mark Benjamin is in fact, and to the exclusion of the accused, the true accessory?" 62 At the end of his Honour's charge his Honour repeated the standard directions in regard to the onus of proof. 63 It can be seen, therefore, that on several occasions Sully J emphasised that the onus was on the Crown to disprove, firstly, that Mark Benjamin was an accessory after the fact and, secondly, that Mr Benjamin was the "true" accessory - to the exclusion of the accused. 64 I do not accept that, when regard is had to the directions as a whole, the jury could have had any misunderstanding whatever as to the correct onus of proof to be applied. Certain of the passages complained of are, at best for the appellant, possibly ambiguous when read in isolation. Any ambiguity in them, however, is removed by the clarity, force and repetition of the many other directions his Honour gave on the same topic. 65 Trial counsel did not at the trial raise any objection to his Honour's directions of the kind now sought to be made under sub-ground 1(b). In all the circumstances I would refuse leave to appeal under r 4 in respect of this sub-ground. 66 Sub-ground 1(c) asserts: "The trial judge erred in his directions in relation to the standard of proof." 67 The first direction complained of by the appellant is as follows: "The standard of proof is proof beyond reasonable doubt. The words 'beyond reasonable doubt' you must understand are not words of legal art. They are words of ordinary English and that is how you are to understand them. The expression 'beyond reasonable doubt' means what it would mean to a person of normal intelligence having a normal conversation in normal English." 68 The appellant submits that this direction is flawed in two respects. Firstly, it is said that it required the jury to attempt to define the expression "beyond reasonable doubt" by reference to someone other than themselves, namely, "a person of normal intelligence having a normal conversation in normal English". Secondly, the appellant submits that the reference to "a normal conversation" would have suggested to the jury that they "were not to have regard to the gravity of the situation". 69 I would reject these submissions. In my view, the words complained of meant nothing more than the expression "beyond reasonable doubt" was a well-understood phrase and the words were to be given their ordinary meaning. In my opinion, this part of his Honour's direction did not constitute error. 70 I also reject the submission that the reference to a person having a "normal conversation" would have given the jury the impression that the process in which they were engaged was less significant than it ought be regarded by them. In any event, a consideration of his Honour's charge as a whole leaves no doubt whatsoever that his Honour impressed upon the jury the solemnity of the occasion and the seriousness of their task (see R v Southammovong [2003] NSWCCA 312 at [23]). The absence of merit in this argument is emphasised by the omission of trial counsel to make any complaint whatever about the directions given by the judge in the respects challenged. 71 Next, under this sub-ground, the appellant complains of the following direction: "The second, and as I say related to some extent, overlapping thrust in the defence case has to do, of course, with Mark Benjamin. The basic proposition concerning Mr Benjamin is the one in the paragraph numbered two [of the written directions]. I would invite you to attend to it with some care. The proposition is that the whole of the available evidence leaves open as a reasonable possibility that Mark Benjamin was, to the exclusion of the accused, the true accessory after the fact to the particular murder. Shall we just pause for a moment and take up one or two particular things drawn from what is said in that paragraph numbered two? You will see the paragraph speaks of a reasonable possibility. Please bear in mind we are not playing semantic games in this trial. We are not discussing elegant hypothetical debating points. We are looking at what commonsense, applied fairly to the given facts suggests to be, not a mere possibility, but a reasonable possibility. As I said to you on Friday, and it will bear repeating one more time, reason, not instinct. Reason not intuition. Is the possibility a reasonable possibility?" 72 The appellant submits that these directions equated reasonable doubt with the reasonable possibility that Mr Benjamin had committed the crime, to the exclusion of the appellant, (and the onus was on the appellant to prove the involvement of Mr Benjamin). 73 I do not accept this argument. In these directions, his Honour was merely dealing with the way in which the defence had put its case. The defence case was that there was a reasonable possibility that Benjamin was, to the exclusion of the accused, a person who assisted Ms Yeo after the murder. In the light of the judge's directions as a whole, the jury would have understood that the onus was on the Crown to prove the guilt of the appellant beyond reasonable doubt, and that onus remained on the Crown, in those terms, to negate the defence raised by the appellant. I have set out above several passages from his Honour's directions in which this aspect of the matter is emphasised. It is unnecessary for me to repeat them. 74 The appellant submits: "It was for the jury to determine whether an alternative hypothesis should be a reasonable possibility, a slight possibility, a mere possibility or some other standard before it gave rise to a reasonable doubt."

The appellant submits that Sully J, by stressing that any possibility was required to be 'reasonable', gave the standard of proof an impermissible gloss. 75 In my opinion, Sully J did not make any error in his reference to a "reasonable possibility" of Mr Benjamin being the accessory. 76 In Velevski v The Queen (2002) 76 ALJR 402 the central question was whether it was open to the jury to conclude, as it did, that the prosecution had proved beyond reasonable doubt that the appellant had murdered his wife, Mrs Velevska, and their children. In coming to the conclusion that it was open, Gleeson CJ and Hayne J said (at 409): "The critical differences [between the expert called by the opposing parties] turned upon whether there was a reasonable possibility that Mrs Velevska had acted as [a certain pathologist] suggested in his evidence"

Gaudron J accepted that the issue before the jury was whether it was able to exclude, as a reasonable possibility that Mrs Velevska had not been murdered but had committed suicide (see at 417 and 418). Her Honour said (at 423): "Early in his directions to the jury, the trial judge instructed the jury that they could only convict the appellant if satisfied beyond reasonable doubt that he was guilty. Additionally, his Honour instructed the jury that, if satisfied only that the appellant 'could have killed his wife and children, or might have killed his wife and children, or probably killed them', they must acquit. A little later, his Honour instructed the jury that, to convict, they 'must be satisfied beyond reasonable doubt that the killer could not have been [Mrs Velevska]'. The above direction is not of itself inadequate. However, the trial judge had earlier told the jury that the words 'beyond reasonable doubt' needed no explanation. Ordinarily that will be so. But because the case, as presented, was postulated on true alternatives, the full implication of the direction that the jury could not convict the appellant unless 'satisfied beyond reasonable doubt that the killer could not have been [Mrs Velevska]' may not have been entirely clear. It would have been preferable for the jury to be instructed that, if there was any reasonable possibility that [Mrs Velevska] killed her children and then committed suicide, they should acquit and, conversely, they could only convict if that was not a reasonable possibility." 77 Sully J, in the present case, adopted the approach suggested by Gaudron J. 78 In McKinney v The Queen (1991) 171 CLR 468, Mason CJ, Deane, Gaudron and McHugh JJ said (at 475-476): "A heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end." (my emphasis)

Their Honours went on to say (at 476-477): "The question which is inevitably raised by a challenge to police evidence of confessional statements is, as earlier noted, whether it is a reasonable possibility that the police evidence is untruthful … " (my emphasis) 79 Similar statements as to the use of "reasonable possibility" were made in Pfennig v The Queen (1995) 182 CLR 461 (at 474, 485, 486 and 490) and Mickelberg v The Queen (1989) 167 CLR 259 (at 302, 303). 80 In Murray v The Queen (2002) 211 CLR 193, Gaudron J again dealt with the manner in which a jury should be directed where the prosecution has to negative a defence raised by the accused. Her Honour said (at 201-202): "Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury's determination with respect to murder as the question whether it accepted the prosecution's or the appellant's version of events. That was the central or critical direction in her Honour's summing up. And as the issue for the jury was not whether it should accept the appellant's version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt." 81 These authorities bear out that Sully J did not err in directing the jury that the Crown had the onus of proving "that what the defence is suggesting about Mark Benjamin does not remain open as a reasonable possibility". I do not accept that his Honour thereby "gave the standard of proof an impermissible gloss". 82 The appellant also complains that the effect of his Honour's directions was that "the Mark Benjamin possibility did not lead to an acquittal unless that possibility necessarily excluded the appellant." The appellant submits that it was "only necessary that it possibly excluded the appellant". 83 In my view, when his Honour's directions are regarded as a whole, the overwhelming impression the jury would have received was that it was necessary for the Crown to prove beyond reasonable doubt that it was not reasonably possible that Mark Benjamin was the accessory. I do not accept the appellant's submissions to the contrary. 84 Finally, under this sub-ground, the appellant submitted that the directions given by Sully J to the effect that the alternative possibility was to be reached by "a process of reasoning", and that a circumstantial case is defeated if it can be "rationally broken", were in error in that they undermined the standard of proof by stressing to the jury that any alternative must be "rational" or based on "reason". 85 I am not persuaded by these submissions. As the Crown has pointed out, this was not a case in which the jury was invited to embark upon a detailed analysis of mental processes. The judge merely instructed the jury to exercise judgment rather than intuition or instinct. His Honour's directions did not involve an invitation to the jury to undertake an objective analysis of the kind discussed in Green v The Queen (1971) 126 CLR 28 (at 32-33). 86 Counsel representing the appellant at the trial did not raise any of the matters argued under this sub-ground. In my view r 4 applies and in all the circumstances I would not grant leave to appeal in respect of this sub-ground. 87 Ground 2 is in the following terms: "The trial judge erred in refusing to admit the evidence of Mr Ross Colquhoun, a clinical psychologist, whom the appellant sought to call as a witness in his case." 88 Counsel representing the appellant at the trial informed Sully J that he wished to call as a witness in the defence case a clinical psychologist, Mr Ross Colquhoun, to give an opinion of the likely effect on Mark Benjamin of the latter's reported drug use at the relevant time. A report dated 17 March 2003 had been obtained from Mr Colquhoun setting out the evidence he would give. Sully J, in a judgment given on 26 March 2003, refused to admit the evidence. 89 Mr Colquhoun recounted in the report his understanding of Mark Benjamin's history of drug use. This formed the factual premise for the opinions expressed. Mr Colquhoun did not examine or see Mr Benjamin, personally. 90 The evidence that Mr Colquhoun proposed to give fell into two distinct categories. The first concerned Mr Benjamin's ability to remember the events that took place over the relevant period and his credibility, generally. The second concerned Mr Benjamin's capacity to act responsibly and his susceptibility to influence during the relevant period. 91 Section 55 of the Evidence Act 1995 (NSW) provides: "(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness …" 92 The Crown accepted that if there was a reasonable possibility that Mark Benjamin had assisted Ms Yeo, the appellant should be found not guilty. Thus, proof that the appellant had relevantly assisted Ms Yeo depended, to a significant degree, on whether there was a reasonable possibility that Mr Benjamin assisted her. It was not in dispute that whether Mr Benjamin assisted Ms Yeo was a fact in issue in the proceeding within the meaning of s 55. 93 Mr Benjamin denied that he had assisted Ms Yeo. Mr Colquhoun's testimony, in so far as it applied to the impairment of Mr Benjamin's memory and his ability to recall whether he had assisted Ms Yeo is arguably evidence that was relevant under s 55. For the purposes of this appeal I shall assume that it was so relevant. 94 Section 102 of the Evidence Act (the credibility rule) provides that evidence that is relevant only to a witness' credibility is not admissible, subject to specific exceptions which include: · certain evidence adduced in cross-examination (ss 103 and 104) and · certain evidence in rebuttal of denials (s 106). 95 Sully J held that the only relevant exception was that which concerned evidence adduced in cross-examination (that is, the s 103 exception). The evidence of Mr Colquhoun, however, was evidence the appellant sought to adduce in chief (as Sully J recognised). In my view, therefore, s 103 (which provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness, if the evidence has substantial probative value) was not engaged. 96 On appeal, the appellant sought to rely on s 106. Section 106 provides: "The credibility rule does not apply to evidence that tends to prove that a witness: … (d) is, or was, unable to be aware of matters to which his or her evidence relates; or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under Australian law or a law of a foreign country, to tell the truth; if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence". 97 The appellant first contended that Mr Colquhoun's evidence constituted an exception to the credibility rule under s 106(d). 98 Section 106(d) applies, however, only to matters of which a witness is "unable to be aware" and not to matters which an accused is unable to "recall": R v PLV (2001) 51 NSWLR 736 (at 742-744) per Spigelman CJ. To the extent that the appellant's argument is based on Mr Benjamin's ability to recall matters and not to matters of which he was "unable to be aware", it must, therefore, fail. 99 The appellant then, in the oral submissions advanced on his behalf, sought to rely on the exception provided by s 106(e) . 100 The ambit of s 106(e) is debatable but, whatever its reach, counsel for the appellant was unable to point to any evidence of Mr Colquhoun that was possibly relevant by virtue of its terms. At best, he submitted that Mr Colquhoun's opinion that the use of opiates could affect "the ability to integrate and absorb new information" was relevant. This opinion, however, had no bearing on the reliability of Mr Benjamin's testimony that he did not assist Ms Yeo. Accordingly, s 106(e) does not assist the appellant. 101 The appellant then submitted that Mr Colquhoun's evidence to the effect that the drug use indulged in by Mr Benjamin could have diminished his capacity to act responsibly and increased his susceptibility to influence "went directly to the possibility that Mark Benjamin acted as an accessory after the fact to the murder" and, hence, was admissible otherwise than as credibility evidence. The appellant argued that this evidence tended to show that Mr Benjamin's history of drug use meant that he was more likely to have assisted Ms Yeo than another person not so addicted. 102 On this basis, the evidence sought to be adduced falls under s 97(1) of the Evidence Act, which provides: "(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." 103 The difficulty with this submission is that at the trial, counsel then acting for the appellant expressly stated that he was not seeking to have Mr Colquhoun's evidence admitted on the basis that it went to Mr Benjamin's propensity to have been an accessory. After discussing with counsel whether Mr Colquhoun's evidence should be admitted because it was relevant to the credibility of Mr Benjamin, Sully J said: "If you don't get up on that argument [that is, the credibility argument], are you wanting to argue … that the evidence is admissible as showing a tendency within the ambit of the tendency rule and its exceptions to do what is now suggested Mr Benjamin did?"

Appellant's counsel replied: "No, your Honour."

Sully J then said: "I would have thought myself you couldn't have it on that basis but I wanted to be sure how you actually structured the alternatives as being open to you. If we don't have to worry about tendency we don't have to worry about it. That takes us back to the s 55 issue on the first defined issue of fact and to s 103 on the second defined issue of fact. Is that a fair way of putting it?"

Counsel replied: "It is." 104 Subsequently, the appellant's trial counsel made some further references to the propensity or tendency argument but never, either expressly or impliedly, indicated that he was tendering the evidence on that basis. 105 I accept that the omission to tender Mr Colquhoun's evidence on the basis that it was admissible under s 97 is not necessarily fatal to the appeal. The decision by trial counsel however is a strong indication that he did not consider that the evidence was admissible under s 97. The inference is that trial counsel did not consider that the evidence of Mr Colquhoun satisfied the element of "significant probative value" under s 97(1)(b). 106 In his report Mr Colquhoun stated: "Mr Benjamin may have been susceptible to behaving in an irrational manner and being coerced to behave in [ways] which may have been contrary to social norms. The importance of the relationship with Ms Yeo may have been exaggerated in his mind."

As I have mentioned, Mr Colquhoun never examined Mr Benjamin and had no discussion with him. His evidence was based simply on written material comprised of transcripts of court hearings and certain medical reports. 107 In my opinion, trial counsel was right in his assessment that it was not worthwhile attempting to submit that Mr Colquhoun's report was admissible under s 97. It did not have significant probative value. 108 In the circumstances, I would not uphold ground 2 of the appeal. 109 Ground 3 of the appeal is in the following terms: "The trial judge erred in refusing to allow counsel for the appellant to cross-examine Mark Benjamin in relation to his criminal convictions for offences of dishonesty." 110 Mr Benjamin had a fairly detailed criminal history. At the trial, counsel for the appellant sought to cross-examine Mr Benjamin on his prior convictions. By judgment given on 7 March 2003 Sully J refused to allow this cross-examination. 111 The appellant contended that Mr Benjamin's prior convictions were relevant to his credit. The issue so raised engaged s 103 of the Evidence Act which provides: "(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value. (2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and (b) the period that has elapsed since the act or events to which the evidence relates were done or occurred." 112 Sully J refused to allow cross-examination on the ground that the requirement of "substantial probative value" in s 103 was not met. 113 In his judgment on the issue Sully J described the offences committed by Mr Benjamin as follows: "Learned counsel for the accused wishes to cross-examine Mr Benjamin upon a number of recorded convictions in his relevant antecedent record. Mr Benjamin was arrested, it would seem, on 17 July 1997. He was charged with the offence of breaking and entering a building and committing a felony, namely stealing, a matter as to which he was dealt with by a community service order ordered 24 September 1997. He was charged as well with the offence of having been conveyed in a conveyance taken without the consent of the owner. He was dealt with in that regard by way of a s 558 recognizance ordered, also, on 24 September 1997. Thereafter, the relevant record shows that throughout 1997, 1998, 1999 and in 2002 Mr Benjamin had a number of convictions for what might be described in broad terms as offences of dishonesty. He does not seem to have been sentenced to imprisonment for any one of them save only for a sentence of periodic detention for four months passed on 25 March 1998 in respect of a shoplifting charge; and a sentence of periodic detention for three months passed on him on 13 May 1998." 114 Sully J, in explaining why he would refuse to allow Mr Benjamin to be cross-examined on his prior convictions, said: "It seems to me that simply to establish that Mr Benjamin has the particular matters of which I have spoken standing against him on his criminal antecedent record cannot be said to have the capacity to establish 'substantially' that it is likely that what he is giving in evidence on affirmation in this trial is comprehensively untruthful, and such as simply cannot be relied upon in whole or in part in aid of proof of the Crown case of the accused's guilt beyond reasonable doubt." 115 The jury were well aware that Mr Benjamin had criminal convictions for dishonesty. Trial counsel for the appellant said in opening that Benjamin "has multiple [convictions for dishonesty], that he had a raging heroin and cocaine addiction throughout the period from when he met Ms Yeo and then enrolled in Palm Court". He later said, "you have someone who leads a drug fuelled existence, who is a criminal with multiple dishonesty convictions." In his closing address he made similar observations, although, as the jury were told, counsel's addresses are not evidence, what was said must have clearly brought home to the jury the significance of the evidence which did exist as to Mr Benjamin's antecedents. 116 Sully J, in his summing up, reminded the jury of evidence Mr Benjamin had given: "The second thing you need to bear in mind when you are making a careful assessment of Mr Benjamin are his criminal antecedents. There is, as it happens, not a great deal about them, but there is some evidence. May I remind you of what it is. He was taken in re-examination to a passage of his evidence, which I am sure you recollect, in which it had been put to him that he had told a medical practitioner that the reason for his readmission to rehabilitation was because he had felt guilty for a crime that he had committed. And that he, in the course of that cross-examination, the notion of using the word 'crime' generally had come up, that is the context. He was asked would he explain what he meant when he used that expression, and he gave this answer: 'What I meant was that part of the reason I wanted to address my heroin addiction was because I did feel guilty about some of the crimes I had committed to maintain that habit, some of the dishonesty that I had to be involved in'. And he had been asked earlier in the piece … some additional matters about his antecedents, and all that was really added to the mix on the particular topic was that he had had some involvement with the law in July of 1997, on the 10th and 17th it would seem." 117 I accept that the appellant would have obtained a forensic advantage had the judge allowed Mr Benjamin to be cross-examined on his prior convictions. By reason of his Honour's order, the jury did not know the precise detail of Mr Benjamin's convictions. Nevertheless, the jury knew that Mr Benjamin was a heroin and cocaine addict and had been such since 1996. They knew he had participated in a rehabilitation program at the end of that year but could not resist using drugs while in the program. They knew that in June 1997 he had a severe heroin and cocaine addiction and between April and August 1997 had spent some $30,000 he inherited from his grandmother on these drugs. They knew he had supported his habit by a number of offences involving dishonesty. In these circumstances, I am not persuaded that his Honour erred in holding that the evidence about which the appellant's trial counsel sought to cross-examine Benjamin did not have "substantial probative value" as this phrase is used in s 103. I would dismiss this ground of appeal. 118 Ground 4 is in the following terms: "The trial judge erred in failing to give adequate directions to the jury as to the possible unfairness to the appellant resulting from deficiencies in the police investigation." 119 The investigating police officer, Detective Williams, denied that Benjamin had ever been a suspect. Nevertheless, on 8 June 1999, he wrote a memorandum stating that Benjamin had not disclosed his full knowledge of the circumstances of the murder and may possibly be involved in assisting to dispose of the body of Dorrian. 120 The appellant's counsel, in closing, said: "[W]e know that he has a criminal history … We know on 10th and 17th July 1997 that Mr Benjamin was charged for which he was convicted and sentenced, we know what those offences are. In re-examination, the Crown led from Mr Benjamin, that he, Mr Benjamin anticipated that he had many things that he was ashamed of but they were his dishonesty offences … So we know that Mr Benjamin, on his own admission, is someone who has been convicted of dishonesty offences. He is a man who is having these massive quantities of cocaine." 121 In his address to the jury, counsel for the appellant submitted that the police investigation of Mr Benjamin was incompetent and that he was a suspect. He dealt at length with this aspect. He criticised the fact that the police did not search Mr Benjamin's premises and did not seize any of his clothing. He criticised the fact that Mr Benjamin was not questioned by the police about what he was doing between 5th and 10th June 1997. He said to the jury that the police had "done a half-hearted investigation, because they've already got their suspects, and then after that they've sanitised their evidence whether he ever was a suspect … [T]hey failed in their investigation". 122 Sully J referred to this argument when directing the jury. He said that the argument was as follows: "The investigating police came fairly rapidly to a point where they felt they had a case against Ms Yeo and Mr Galea. They proceeded accordingly and arrested them and in due course charged them. Thereafter the police clung through thick and thin to their theory that Ms Yeo and Mr Galea are the people properly to be brought to book in connection with the death of Christopher Dorrian; and the police simply turned a blind eye - my paraphrase, but that is what the submission comes to, - turned a blind eye to anything that looked as though it might blow off course the case theory that the police had actually settled … In other words, the police were not interested in pursuing Mr Benjamin because to do that might have upset the symmetry, as the police saw it, of the case they saw themselves as having against the other two." 123 His Honour then commented: "You would not need me to tell you in any extended way that that is a very serious allegation. That amounts to saying that the police, if they didn't, in the crudest terms, suppress relevant material, at least, and as I said earlier, deliberately turned a blind eye to the potential of any case that might be made against Mr Benjamin. It suffices if I say this to you, and this is a direction of law: there is no evidence at all to support an allegation of that character. Please be clear about that." 124 The judge then turned to another aspect of trial counsel's remarks concerning the police. He directed the jury: "Again, my paraphrase; but as I understand the way the matter is put it goes something like this. The whole address of the investigating police, but in particular the case officer, Chief Inspector Williams, to anything that touched Mark Benjamin was marked by professional incompetence at the best. As a result of that professional incompetence (so it is argued), nothing was done to explore in any kind of professional, and professionally competent, way whether Mr Benjamin, upon proper investigation, might be thought to fit somewhere into this particular crime, and if so, where and when and how. As a result of that (so it is argued), he was not finally located and produced before a Court until February of last year … It follows (so the arguments proceed), that by then something like three or four years had passed, a little more indeed had passed; and leads which might otherwise have been followed up to advantage, proper advantage, by the accused, had in fact been closed off to him because they had gone cold. Some examples have been given. There had been no opportunity, it is suggested, for the accused to have ensured that a proper investigation was done at the time back in 1997 of, for example, the clothing of Mr Benjamin; and that clues like that were followed up in a professional way."

His Honour dealt with this argument as follows: "Let it be supposed for the sake of argument that it were to be found that, indeed, the whole address of the police to the investigation of Mr Benjamin had been professionally incompetent. I say with emphasis, that is not a view that I am suggesting you can, must or should find; and it is emphatically not a view I express of my own. I say simply: test the proposition by assuming, at the highest point in favour of the accused's argument, that it could be established that the police had been professionally incompetent in that respect; and let it be assumed further, for the purpose of testing the argument, that one consequence at any rate was that leads that had perhaps been available were no longer available. Surely the question that you are then to ask on those two assumptions is this simple question - so what? On those assumptions, where does that lead? It can't possibly lead to a conclusion where you reject the Crown case as a means of punishing the police for something that you think was incompetent. You would need no extended directions from me that that would be a wholly irresponsible and impermissible approach; so you can clear that out of the way. What then is left? What is left, surely, is once again, a putative gap in the evidence. There is no point now, in 2003, wringing one's hands and saying - 'If only the police had done this they might have discovered that. Or if the police had done that they might have uncovered this'. The fact is that we have before us as much evidence as we are going to have in connection with this particular trial; and that is what you have got to work with, in accordance with the instructions that I gave you. It does not matter what we do not have. What matters is what we have; and what the correct application of proper principles to what we have yields in the way of rational inferences of fact, keeping your eye always on the ball: ultimately, has the Crown proved beyond reasonable doubt the four essential ingredients in that connection? Has it repelled the hypothesis that Mark Benjamin is in fact, and to the exclusion of the accused, the true accessory?" 125 The appellant criticises these directions and makes the following points:

(a) There was no onus on the appellant to establish any impropriety on the part of the police.

(b) There was evidence from which it could be inferred that Mr Benjamin was a legitimate suspect (notwithstanding the police testimony to the contrary). 126 Counsel submitted that it could not be assumed that a timely investigation of the defence hypothesis would not have assisted the appellant; the jury should have been warned that because of the lapse of time, the appellant was unable effectively to meet and test the Crown assertion that Mr Benjamin was not involved as an accessory after the fact. 127 Counsel also submitted that the jury should have been warned that there was a need to take care in evaluating the evidence of Benjamin. 128 When regard is had to the passages complained of, they must be viewed in the context that his Honour was dealing principally with an attack on the police that was not supported by the evidentiary material before the Court. In my opinion, his Honour was entitled to give the directions he did as regards the contention that the police were incompetent or had turned a blind eye to the possibility that Mr Benjamin might have been guilty of the crime. There was indeed no evidence that justified these assertions and in my view it was quite proper for his Honour to express his views forcefully in this connection. 129 The appellant submits that it cannot be assumed that a timely investigation of the defence would not have assisted the appellant. There was no evidence that supported this proposition. Even if the presumption of innocence requires one to assume in the appellant's favour that a swifter investigation might have thrown something up that could have been of advantage to him, in this case the prospects of this occurring were so speculative that I do not think that the judge was required to say anything about it. 130 The appellant sought to draw some analogy between the delay in investigating Mr Benjamin and the delay between formal complaint and occurrence of the alleged criminal conduct in sexual offences. Counsel referred to Longman v The Queen (1989) 168 CLR 79 where McHugh J referred to the lack of opportunity for the defence to explore the surrounding circumstances of the offence. In that case, McHugh J said (at 108): "By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony."

Relying on authority of this kind, counsel submitted that the judge should have given the jury a warning about the evidence of Mr Benjamin merely because of the way the police investigated his possible involvement in the crime. 131 In my opinion, none of the considerations of the kind applicable in sexual offences apply in the present case. The relationship between complainant and accused in sexual offences is far removed from the relationship between an accused and some other person whom the accused asserts is the true guilty party. I do not think that the appellant can gain any comfort from the sexual offence cases. In any event, there was no significant delay between the death of Mr Dorrian and the arrest of the appellant. 132 In all the circumstances, I would dismiss this ground of appeal. 133 The fifth ground of appeal is in the following terms: "The trial judge erred in failing to properly determine the admissibility of the digital audio tape recordings produced by the listening devices used in the police investigation, and the transcripts of those tapes." 134 A listening device was installed at the appellant's home and was operational and monitored from 1 July 1997 to 17 July 1997 for a period of over 400 hours. At trial the Crown relied on the recordings produced by this device. 135 The Crown relied on an ad hoc expert, Detective Williams, who gave evidence that he had listened to the tapes many times and produced a transcript as a result. 136 The appellant, at trial, did not contend that the opinion of an ad hoc expert might not be admissible. Rather, the appellant objected to the admission of the tapes and the transcript on the grounds that some of the material on the tapes was so indistinct as to be unintelligible. Trial counsel for the appellant submitted that he would be unfairly prejudiced as the jury, necessarily, would have to speculate about indecipherable passages. Sully J, admitted the evidence without having heard the tapes on the basis that any need to protect the appellant could be accomplished by giving proper directions to the jury. 137 The appellant's primary submission on appeal is encapsulated by the following argument: "It is submitted that the fact that the jury would receive directions in relation to the tapes and the transcript is not to the point. The anterior question of admissibility had to be determined. Before an expert opinion can become relevant the primary facts on which it is based must be established, or at least, be capable of being established, by other admissible evidence - HG v The Queen (1999) 197 CLR 414. The capacity of the tapes to provide the necessary foundation was in issue. The trial judge was obliged to listen to the tapes to determine whether they were capable of supporting the opinion of the ad hoc expert." 138 This submission, however, ignores the fact that at trial, the appellant's counsel did not object to the admissibility of the tapes. After some considerable discussion between his Honour and counsel as to the object that was being made, his Honour said: "In line with what we've done so far the position is this, is it: the admissibility of none of the material is objected to except those parts that are itemised on the two page document."

Counsel later said that he had always been of the position that it was only certain passages in the transcribed material to which he objected. 139 Moreover, during the course of submissions his Honour said: "Is it possible to agree upon a representative sample of [the tapes] that would put before me whatever it is that I need to have in order to understand the arguments you want to make …?"

Counsel for the appellant at trial then replied in the negative. 140 When the judge asked whether there was a need, in the voir dire relating to the evidence relating to the tapes, for there to be oral evidence from the person who transcribed the tapes on behalf of the Crown, counsel for the appellant again replied in the negative. 141 It is, accordingly, not open for the appellant on appeal to argue that "the anterior question of admissibility had to be determined" as, at trial, counsel for the appellant accepted that the tapes should be admitted. It is also a bold submission that the trial judge should have listened to the tapes when, after offering to listen to a representative tape, counsel for the appellant told him that there was no need for him to do so. 142 The judge determined the admissibility of the evidence in question on the assumption that the quality of the recordings was not good and that a lay person, unaided, would have difficulty in making sense out of much of the contents. Nevertheless, his Honour accepted that the tapes had significant and real probative value. There was no challenge to their authenticity. 143 The risk of unfair prejudice to the appellant was that the jury might fill in gaps by a process of uninformed speculation. His Honour considered that this risk could be obviated by appropriate directions. There is no challenge to the directions his Honour gave. 144 When these matters were drawn to the attention of the appellant's counsel, he quite properly conceded that this ground of appeal had to fail. 145 I conclude, therefore, that the appeal should be dismissed. 146 HULME J: I agree with the orders proposed by Ipp JA and with his Honour's Reasons. 147 HISLOP J: I agree with Ipp JA. **********

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