113 At around the time the appellant was discussing the possible repayment of Mr Sinclair's loan the appellant arranged a loan from Dr Chen. If the appellant had chosen, he could have used part of the loan from Dr Chen to repay Mr Sinclair. He did not do that and asked Dr Chen to pay the whole of the $10,000 to Intermedia on 7 March 1997.
114 The jury were entitled to consider that the payment of $10,000 to Intermedia was given priority to the repayment of Mr Sinclair because the appellant wanted to try to appease Ms Konsuo and dissuade her from going to her solicitor. The fact that the appellant informed Mr Sinclair that the money had to used for something else and that he could not be repaid until the appellant got out of goal was a fact, if accepted, that could rationally affect the jury's assessment of a fact in issue, namely whether they were satisfied that it was the appellant who made the calls to Ms Konsuo.
Ground 6
115 It was submitted that the hypothesis of a loan was an available inference from the evidence. The appellant relied upon the following portion of R v Al-Khair (unreported, NSWCCA, 20 June 1994, Gleeson CJ, Priestley JA and Wood J) at p 38:
There is no doubt that it is legitimate for an argument to be put to the jury on behalf of an accused, in final address, that the evidence before them is as a whole susceptible of a reasonable explanation other than that the accused committed the crime, and that this is so whether or not there is evidence before the jury upon which the jury could conclude that the reasonable explanation was in fact the explanation. It is not incumbent on the defence to establish the explanation; all that is necessary is that the explanation is, as a matter of reason consistent with a version of the facts open to the jury to find, upon the whole of the evidence: see Barca v The Queen (1975) 133 CLR 82, especially at 105, per Gibbs, Stephen and Mason JJ. It would be wrong for a trial judge to direct a jury not to consider the possibility of such a rational alternative hypothesis, if it was not inconsistent with what it was open to the jury to find the facts to be, simply because there was no positive evidence of it.