73 However, unless the representations were saved by s 60 (or by any other provision of the Act eg. s 72) they should not have been admitted. If they were admissible under s 60, the jury should have been directed as to the purpose of their admission, eg. as affecting Mrs Glasby's credit. Further, the jury should have been directed that they were not to be taken as evidence of the truth of the representations. As we have said, Mr Papayanni accepts that the evidence in the second version of what Mrs Glasby said she had seen, did or heard was admissible.
74 His Honour, of course, did not have the benefit of the High Court's judgment in Lee, it being decided some months after the trial. This is unfortunate. In addition, no objection was taken to the admission of the representations on the basis of hearsay, nor was any particular direction sought in the summing-up to distinguish between what Mrs Glasby said she had seen and heard (when giving evidence on 20 October 1997) and the representations she said that the appellant had made to her. Nonetheless, as we have said, Lee's case is of general application and, as the Crown concedes, the appeal must be approached on this basis.
75 It is therefore necessary to examine version 2 in some little detail. We will attempt to divide it into two categories the alleged representations made by the appellant and what Mrs Glasby said that she saw, did and heard otherwise.
76 In her evidence in court in October 1997 Mrs Glasby said that it was the appellant who had killed John Theissl. This was what she had seen. She had assisted the appellant by driving him to meet the deceased at Villawood. On an earlier occasion she had driven the appellant to a meeting with Carmela Theissl and saw him receive $2,000 from her. She was present at a further meeting between the appellant and Mrs Theissl and saw her give him a maroon bag taken from her vehicle. This was about one week before the murder. She heard the appellant ask Mrs Theissl where the bullets were. Mrs Glasby said that she saw the gun, the ammunition and an oil filter (which seems to have been adapted as a silencer) on the end of the gun. She described the weapon.
77 On the night of the murder she drove the appellant to Villawood where she saw him meet with the deceased and get into the deceased's vehicle. She then followed behind. The appellant parked, got out of the vehicle of the deceased and walked over to her vehicle. She saw him take the bag containing the gun and return to the victim's vehicle. She saw the appellant drive off and she followed in her vehicle. She saw the appellant park in the car park at Lake Gillawarna and she parked a short distance away where she was able to observe.
78 She heard a sound and then saw the appellant walk from the driver's side to the passenger's side of the deceased's vehicle. He was carrying the gun. She saw him fire through the window. She saw the appellant wiping the vehicle. The appellant returned to her car and she drove off. A short time later she watched as the appellant disposed of the gun, the bag and other items by throwing them into the Georges River. She drove the appellant to a telephone box where she saw him make a call. She heard him say 'its done' and 'I'll ring you in about a week'.
79 In short, her evidence on 20 October 1997 at her sentencing was that she witnessed the killing of Theissl by the appellant.
80 The first category of her evidence in October 1997 included representations of what she said the appellant had told her. It is these representations that the appellant contends, having regard to Lee's case, were not evidence of the fact.
81 These statements included that the appellant had told her that he had used the name Steve (for himself) and Kayla (for her) in a conversation with the deceased. The Crown claimed that this was relevant to Ex N, which was a card found on the body of the deceased, in his wallet. The card referred to Steve and Kayla 9.30 Villawood Station and contained a phone number (726 0105) which, it was established, belonged to the appellant and Mrs Glasby.
82 Other statements of what Mrs Glasby says the appellant had said to her included that Mrs Theissl had wanted her husband killed because he was molesting their children and that she was paying the appellant about $40,000. Further, that he had told her that he was going to tell Mr Theissl that he could meet up with his wife and that the deceased was 'into wife swapping'. Further, that the oil filter (on the gun) was a silencer. Further, that he was to meet Theissl at Villawood to tell him that Mrs Glasby would be available for sex with him. Further, after the murder, he told her that Mrs Theissl had told him he would have to wait for payment because the police were watching her assets.
83 The Crown seeks to justify the admission of these representations and the absence of any specific direction to the jury as to how they were to be treated, as contemporaneous representations about the appellant's intention, common knowledge or state of mind excluded from the hearsay rule under s 72 or relevant to other evidence before the jury, eg. the note, Ex N, the tapes, Ex AA or Mrs Glasby's credit.
84 With the hindsight of Lee's case, it is apparent that many of the representations should not have been admitted, or if admitted, clear directions should have been given to the jury of the purpose of the evidence and the use sought to be made of it. Lee's case suggests that a voir dire should be undertaken to determine which questions could be asked in respect of the previous inconsistent statement. If this had occurred, it may have isolated the representations from what Mrs Glasby said she saw and heard.
85 We are driven to the conclusion that grounds 4 and 5 of the Notice of Appeal have been made out, and, by implication, ground 6. That is, that his Honour was in error in not directing the jury that Mrs Glasby's evidence of 20 October 1997, in so far as it concerned representations of what she said the appellant had told her, was not evidence of the truth of those statements. As it was, version 2 was left to the jury in toto and without discrimination.
86 It was also submitted that his Honour should have rejected portions of Mrs Glasby's second record of interview in so far as it was claimed to have infringed Lee's case. However, his Honour made it very plain that the whole of the record of interview went only to Mrs Glasby's credit. In this respect, his Honour's direction to the jury was very careful and clear.
87 The question which arises for consideration is whether the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied. The Crown submits that it should. It is submitted that the identity of the murderer was the fundamental issue to be determined by the jury. Mrs Glasby gave evidence at the appellant's trial that he had nothing to do with the murder. At her own sentencing she had said that she had witnessed the appellant commit the murder. If the jury accepted this version of Mrs Glasby, as to what she had seen and heard, there was overwhelming evidence that the appellant was the murderer. By comparison, her evidence of what the appellant had told her was of limited significance. Even if that material should have been excluded or his Honour had directed the jury in accordance with Lee, it would in our estimation have made no difference to the verdict. What was of paramount importance, submits the Crown, is the jury's assessment of Mrs Glasby's assertion that she saw the appellant shoot the deceased.
88 The proviso should not be applied where there is a fundamental error in the conduct of the trial (Quartermaine v Regina (1980) 143 CLR 595). As explained in Wilde v Regina (1988) 164 CLR 365 at 373 the proviso has no application where the irregularity is such a departure from the essential requirements of the law as to go to the root of the trial. It means that an accused has not really had a proper trial at all. While there is no rigid formula to be applied to determine whether an error is fundamental, no mechanical approach to the question should be adopted. Each case is to be determined on its own facts. In Glennon v Regina (1994) 179 CLR 1 at 8 the joint judgment of Mason CJ, Brennan and Toohey JJ saw it as appropriate to have regard to 'the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error'.
89 The Crown case was a very strong one if the jury accepted the version given by Mrs Glasby at her sentencing on 20 October 1997. This was an eye witness account of the killing by the appellant which gained nothing in strength from the evidence which was inadmissible. In addition to this version, there were other telling pieces of evidence. The note (Ex N) found on the deceased (in his wallet) which referred to 9.30 Villawood Station and contained the phone number of the appellant and Mrs Glasby. In addition, there was the taped conversations (Ex AA) which were admitted without objection. These included a conversation between the appellant and a male. In the conversation the appellant gave a considerable degree of detail about a killing, which he said he had performed. It was open to the jury to conclude that he could only have known of these details if he was the murderer of Theissl. For example, in the tapes of 17 December 1994 (Ex AA excerpt 2) the appellant said:
'I knocked her fuckin' I shouldn't be talking about this but I knocked her fuckin' husband, for, he molested the kids you know? And she was a friend of my wife's and said, look, he did this and that, right?
…
'In his own car, and I was driving along. My wife's behind me. And I said to him, I said, "Hey", I said, "Crawl down there right on the fuckin' floor of the fuckin' car. So he crawled right down on the floor. I said, "What do you think of child molesters".
…
'I said, "I've been paid to kill you (indistinct words - then) been paid to kill you because you bash your wife, you molest your kids."