Regina v Kanaan [2005] NSWCCA 385 | Case summary

Regina v Kanaan [2005] NSWCCA 385 | Case summary | Zoe

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Bullard v The Queen [1957] AC 635 Chamberlain v The Queen (1983) 46 ALR 493 Conway v The Queen (2001) 209 CLR 203 De Jesus v The Queen (1986) 68 ALR 1 Edwards v The Queen (1993) 178 CLR 193 Gallagher v The Queen (1986) 160 CLR 392 Gammage v The Queen (1969) 122 CLR 444 Gilbert v The Queen (2000) 201 CLR 414 Gillard v The Queen (2003) 202 ALR 202 Knight v The Queen (1992) 175 CLR 495 Kural v The Queen (1987) 162 CLR 502 Kwaku Mensah v The King [1946] AC 83 Lawless v The Queen (1979) 142 CLR 659 Mancini v DPP [1942] AC 1 McKenzie v The Queen (1996) 190 CLR 348 Mickelberg v The Queen (1989) 167 CLR 259 Mraz v The Queen (1955) 93 CLR 493 Packett v The King (1937) 58 CLR 190 Pemble v The Queen (1971) 124 CLR 107 Regina v Abou-Chabake (2004) 149 A Crim R 417 Regina v Abusafiah (1991) 25 NSWLR 531 Regina v Beserick (1993) 30 NSWLR 510 Regina v Cameron [1983] 2 NSWLR 66 Regina v Doan (2001) 3 VR 349 Regina v Elfar (2003) 115 A Crim R 64 Regina v Evans & Lewis [1969] VR 858 Regina v Goonan (1993) 60 A Crim R 338 CASES CITED: Regina v Heuston (2003) 140 A Crim R 422 Regina v Hitchins & Elliott [1983] 3 NSWLR 318 Regina v Ilic and Sammut (2000) 118 A Crim R 378 Regina v Isaacs (1997) 41 NSWLR 374 Regina v Jackson [1993] 4 SCR 573 Regina v Johns (1999) 110 A Crim R 149 Regina v Kane (2001) 3 VR 542 Regina v Kirkman (1987) 44 SASR 591 Regina v Livingstone (2004) 150 A Crim R 117 Regina v Lucas [1981] QB 720 at 724 Regina v Park [2003] NSWCCA 203 Regina v Pureau (1990) 19 NSWLR 372 Regina v Quinn (1991) 55 A Crim R 435 Regina v Robinson [1999] NSWCCA 186 Regina v Storey (1978) 140 CLR 364 Regina v Vastag (NSWCCA, unreported, 20 June 1997) Regina v Walters (1992) 62 A Crim R 16 Regina v Willersdorf [2001] QCA 183 Regina v Wilson [2005] NSWCCA 20 Regina v Youssef (1990) 50 A Crim R 1 Regina v Zorad (1990) 19 NSWLR 91 Rex v Hopper [1915] 2 KB 431 Ross v The King (1922) 30 CLR 246 Varley v The Queen (1976) 51 ALJR 243 White v The King (1922) 17 CAR 60 Wilde v The Queen (1988) 164 CLR 365 Woolmington v DPP [1935] AC 462

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Thursday 17 November 2005 REGINA v KANAAN Headnote The appellant was charged with the murder of two men, and with having maliciously wounded a third man with intent to inflict grievous bodily harm, in an altercation on the footpath outside a hotel. The Crown case was that the appellant and other men stopped the motor vehicle in which they were travelling when they saw a fight between one of the deceased and the man wounded, and that the appellant left the vehicle and fired a gun directed at the three men a number of times in quick succession and at close proximity to them. There was slight evidence that the appellant was involved in a scuffle with one of the deceased before he fired the gun. One of the men accompanying the appellant was indemnified by the Attorney General in relation to his evidence against the appellant. The appellant's case was one of alibi. Both the Crown prosecutor and the appellant's very experienced counsel at the trial declined the trial judge's offer to put manslaughter to the jury as an alternative verdict. The trial proceeded on the basis that whoever fired the gun had the relevant state of mind for murder. It was, therefore, a "murder-or-nothing" defence. The appellant was convicted on all three charges. On appeal, the appellant (represented by different counsel) submitted that the trial judge was bound to put manslaughter to the jury as an alternative verdict wherever there is a viable case of manslaughter, even when that course is opposed at the trial. HELD: (1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is "viable"). If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury - notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. (2) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law. Subject to the provisions of the Criminal Appeal Rules, r 4, the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred. (3) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury's verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at the new trial. Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 202 ALR 202 discussed and followed. Ross v The King (1922) 30 CLR 246; Mraz v The Queen (1955) 93 CLR 493; Gammage v The Queen (1969) 122 CLR 444; Pemble v The Queen (1971) 124 CLR 107; Varley v The Queen (1976) 51 ALJR 243 considered. Regina v Evans & Lewis [1969] VR 858; Regina v Hitchins & Elliott [1983] 3 NSWLR 318; Regina v Park [2003] NSWCCA 203; Regina v Elfar (2003) 115 A Crim R 64 discussed and not followed. (4) Whether the principles laid down in Gilbert v The Queen (2000) 201 CLR 414 and Gillard v The Queen (2003) 202 ALR 202 apply beyond murder/manslaughter cases discussed. The application of r 4 of the Criminal Appeal Rules when the point has not been taken at the trial discussed. Regina v Abusafiah (1991) 25 NSWLR 531; Regina v Wilson [2005] NSWCCA 20 followed. (5) The conduct of the accused, such as changing his appearance, damaging the vehicle used to suggest that it had been stolen and leaving his usual abode for a period of time immediately after an offence - where the Crown relies on that conduct as being inconsistent with innocence and as amounting to an implied admission of guilt - ordinarily requires directions fashioned on Edwards v The Queen (1993) 178 CLR 193. (6) The issue raised by an alibi is whether there is a reasonable possibility that the accused was elsewhere and not at the scene of the crime at the relevant time. In order to prove beyond reasonable doubt that the accused was at the scene and not elsewhere, the Crown must remove or eliminate that reasonable possibility. Regina v Youssef (1990) 50 A Crim R 1 applied. Form of direction in relation to alibi discussed. ____________________

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The evidence 6 Rossini gave evidence that, as at the time of the incident at Five Dock, he had known the appellant for between two and a half to three years, and that in the months preceding that incident he had seen him on an almost daily basis. 7 Rossini gave evidence that, on the night of the incident, he and the appellant had gone to premises in Telopea Street, Punchbowl, where a mutual friend named Shadi Derbas lived. Apart from Derbas, also present was a man named Bassam Kazzi (whom Rossini also knew), and a young male aged between 16 and 18 years (whom Derbas knew but Rossini did not). Rossini described the young male as being five feet and five inches tall, and of slim build. He also provided descriptions of the other men and the clothing they were wearing that evening. 8 At Derbas' house, a decision was made that the group would go to a café in the Five Dock area. They travelled in a red Mitsubishi Magna station wagon to Café Extreme where they met up with a man named Fadi Yannieh. They spoke to Yannieh, and left after having had a meal. Yannieh gave evidence recalling an occasion on which Derbas and three of his friends had come to the café in mid-1998 for a meal. In cross-examination, however, he said that the appellant was not one of the men who was with Derbas on that occasion. 9 Rossini said that, following the meal, the five men returned to the vehicle and drove along the Great Northern Road to the Five Dock Hotel. There they stopped at a set of traffic lights which was located outside the hotel. Derbas was driving, Rossini was in the front passenger seat, the appellant was seated behind Derbas, Kazzi was behind Rossini and the young man was in the middle of the back seat. 10 Other evidence established that, at the time the vehicle stopped at the traffic lights, two patrons of the hotel, Ronald Singleton and Michael Hurle (who were friends), were standing outside it having become involved in a physical altercation. Adam Wright, who was a friend of the two men, had also emerged from the hotel in an endeavour to placate them. These men and the occupants of the vehicle were strangers to each other. Rossini saw the struggle taking place a short distance from where the vehicle had stopped. He wound down the window and shouted out to the men "Come on, fellows, punch on". This prompted one person, whom the evidence established was Ronald Singleton, to approach the vehicle and say something to the effect of "you fucking wogs". Rossini then grabbed his wrist and opened the vehicle door, forcing Mr Singleton back. Rossini then exchanged punches with both Mr Singleton and one of the other men who had also come over to where the vehicle had stopped. 11 Rossini said that he received a blow to his jaw which knocked him back so that he was half in and half out of the vehicle. At that stage, he became aware of Kazzi who was also fighting with someone in the vicinity of the vehicle. Rossini said that, after he was forced back into the vehicle, he heard one or two gunshots. He said that they came from an area outside the back of the vehicle. He looked in the direction from which they had come and saw the appellant running "from my left to his right with a gun in his hand firing". He said that he was firing "in the direction of the footpath". As a result he saw "three or four blokes falling to the ground". 12 Rossini said that he then became aware of someone pulling on the bottom of his trouser leg. Other evidence indicates that the person in question was Ronald Singleton. Rossini said that he tried unsuccessfully to kick the man away. Derbas, who had remained in the vehicle, then tried to pull Rossini back into the vehicle. Rossini then became aware that the appellant had returned to the vehicle. The appellant pointed his gun in the direction of the man who was holding his leg and then pulled the trigger a few times. However, the gun just clicked as apparently there were no bullets left in it. Eventually Rossini freed himself and the vehicle drove off. Everyone had returned to their original positions in the vehicle except for Kazzi and the appellant, who had changed places in the back seat. 13 The appellant then inquired as to whether everyone was all right. It seems that only minor injuries had been sustained, which prompted the appellant to say "Fuck the Aussies, as long as we're all right. If it happened again, I would do the same thing". The appellant also said that he had run out of bullets. 14 As they were driving back to Derbas' house, both the appellant and Rossini indicated that their mobile telephones were missing. Later, Rossini suggested to the appellant that he should ring a mutual friend and tell him to inform their other friends that they should not try to contact them on the missing telephones. Derbas learnt from associates, who were operating a police scanner, that police were looking for the vehicle in which they had been travelling. Patrons of the hotel had evidently provided police with the vehicle's registration details. The vehicle was placed under the carport at Derbas' request "because of [police] helicopters". The vehicle was then de-greased in an endeavour to remove from it any fingerprints and saliva. Attempts were also made to tamper with the locks and the ignition of the vehicle. (Subsequent examinations of the vehicle by the police revealed damage to the lock of one of the doors and the ignition barrel as well as the presence of an oily substance; a strong odour which was described as being similar to a cleaning agent was also detected.) Arrangements were then made to dispose of the vehicle. Next day, Rossini destroyed the clothing which he had been wearing. There was also discussion between him and the appellant about disposing of the gun which the appellant had used during the course of the incident. The appellant later told Rossini that he had thrown it over the bridge into the Cooks River. Police divers were however unable to locate any such weapon. 15 Rossini gave evidence that the appellant had made a call to his girlfriend, Leia Colbert, on Derbas' mobile telephone. He overheard him telling her that something had come up and that he could not see her that evening. Telephone records indicate that a call was made at 10.48 pm that evening from a mobile phone for which Derbas was the subscriber to a telephone service registered in the name of Ms Colbert's mother. Ms Colbert gave evidence that she had begun to keep company with the appellant in about June 1998. He provided her with various telephone numbers on which she could reach him. She recorded the numbers in her diary. She said that the appellant had arranged to pick her up at 8 pm on 17 July 1998 (the date of the shooting incident). She said that he had, however, telephoned at about that time to say that he could not make it. Later that evening, he had telephoned her again to tell her not to call him on his mobile or to leave messages because he had lost it. Instead, he provided her with another number on which she would be able to ring him. She said that she had rung that number two days later and had left a message. The appellant told her, when he returned her call, that he had to go away on business for a few days and that he would call her when he returned. She did not hear from him again. 16 On Sunday 19 July, the appellant made arrangements for a friend, Ellie Gialouris (whom he had known for about eight years), to pick up both him and Rossini from his house. From there they went to her hair salon where she gave each of them a haircut. Rossini said that the appellant had had his hair cut all over whilst he (Rossini) had had his ponytail cut off and the back of his hair shaved. Arrangements were then made for Ms Gialouris to drive them to Callala Beach (which is apparently about two and a half hours' drive from Sydney). The two men stayed there at her parents' place for about a week. Rossini requested her to tell police, if inquiries were made of her, that she had in fact cut his hair the previous week. 17 Ms Gialouris gave evidence that she had cut the men's hair, although she described the appellant's haircut as being the usual trim which she was in the habit of giving him. She confirmed that they had gone to Callala Beach for a few days but was unable to recall whether it was the same day that she had done their hair or a couple of days later. 18 Rossini gave evidence that the weapon which the appellant was carrying at the time of the incident was a small black 0.22 revolver which had red rubber bands on the handle. He said that the appellant had been carrying it every day for a period of about five months. He was shown a series of photographs of guns by the police and he identified one which he said was the same shape, size and colour as the gun which the appellant had had on the night in question. 19 A man who was given the pseudonym John Lee gave evidence that he had seen the appellant on an almost daily basis in the early part of 1998. He said that he was usually accompanied by Rossini. He gave evidence that he observed that the appellant was carrying a gun during that period of time. He described it as a dark, blackish revolver which had red elastic bands around the handle. The appellant told him that "revolvers do not let you down because they guarantee six shots". 20 A man who was given the pseudonym Dennis Green gave evidence that he too had had almost daily contact with the appellant in the first half of 1998. He also said that the appellant was usually accompanied by Rossini. Once or twice, Green saw that the appellant was carrying a gun which he described as being a black revolver with a wooden handle which had yellowish, brownish rubber bands wrapped around it. Both he and Green said that there was a period in mid-1998 when they did not see the appellant or Rossini for a while. When the pair returned, they noticed that Rossini had had his hair cut off. Both Lee and Green had received reduced sentences for drug offences which they had each committed by reason of their undertakings to give evidence on behalf of the Crown. 21 Senior Constable Luke Wise, who was attached to the Forensic Ballistics Section in the Forensic Services Group, examined the clothing of the three victims. He was able to account for four shots having been fired. One shot fired at Mr Singleton travelled through his right arm and then exited. Sooting on his clothing indicated that he had been shot at close range. That projectile was not recovered. One shot struck Mr Wright in the lower abdomen. That projectile was recovered from his body during the course of the post-mortem examination. Two shots were apparently fired at Michael Hurle. One shot entered the front upper right side of his clothing and exited at the front lower left side without causing any injury. The presence of sooting on his clothing indicated that he too was shot from close range with the muzzle of the gun being no more than 10 cm away at the time. A second shot entered the lower left side of his chest. That projectile was also recovered during the post-mortem examination. 22 The projectiles which were recovered by police were consistent with having been components of a Remington 0.22 long rifle calibre cartridge. The fact that no fired cartridge cases were found at the scene indicated to Senior Constable Wise that it was more likely that the firearm was a revolver, because the fired cartridge cases of such a firearm remain in the cylinder after each shot is discharged. 23 Although Senior Constable Wise was unable to state with certainty whether the weapon was a rifle, a sub-machine gun or a revolver, it was his opinion, based on the evidence, that it was most likely to have been a revolver. 24 Police recovered two Ericsson mobile telephones from the scene. One of them was missing its aerial. No DNA or fingerprint evidence was led in relation to these telephones. Rossini identified them as belonging to himself and the appellant respectively. Green gave evidence that the appellant and Rossini each had an Ericsson 688 mobile telephone at the time of the incident. He said that the appellant's telephone was black and that it was distinctive, in that its antenna had a silver ball on it. Ms Colbert gave evidence to similar effect and said that the telephone, which Rossini had identified as being the appellant's, looked like the one which she had seen the appellant with. 25 A considerable number of eyewitnesses to the incident were called to give evidence. It will be necessary to refer to the evidence of only some of those witnesses. Although a number of inconsistencies understandably emerged from the versions which they gave, there was a degree of consistency between them that Ronald Singleton and the man who had been in the front seat of the vehicle had become involved in an altercation. The Crown case was that that person was Rossini. Moreover, the descriptions of him provided by a considerable number of the eyewitnesses were consistent with his appearance at the time of the incident. That person will be referred hereinafter as Rossini, although he was not so identified by any of the witnesses. 26 Ronald Singleton gave evidence that he and Michael Hurle had been having an argument outside the hotel and that Adam Wright had tried to settle things between them. He saw a vehicle pull up at the lights and then heard the man in the front passenger seat yell something out. Mr Singleton replied "Pull your head in, you wog". He and that man then approached each other and began to exchange punches. As a result, the man fell back into the front seat of the vehicle. Whilst they were punching each other, Mr Singleton heard a number of gunshots in rapid succession coming from the back seat of the vehicle. Mr Singleton took hold of Rossini's legs but eventually let go of them when the vehicle drove away. It was only after the vehicle had left that he realised that he had been shot in the shoulder. He looked at Adam Wright who showed him that he had been shot in the stomach. He then saw Mr Wright walk into the hotel and collapse. 27 Suzanne Robberds saw Adam Wright join in the scuffle that Ronald Singleton was having with Rossini. She then saw another male, whom the Crown asserted was Kazzi, fighting with both Adam Wright and Michael Hurle. She saw Michael Hurle move towards the back of the vehicle. Ms Robberds then saw the person who was sitting behind the driver (whom the Crown alleged was the appellant) get out and walk towards the back of the vehicle where he and Michael Hurle began to scuffle. Punches were exchanged and then the men came together in what she described as a type of embrace. Ms Robberds then heard approximately two loud cracking sounds coming from the direction of where Michael Hurle was standing. She saw him fall to the ground, whereupon the man with whom he had been fighting kicked him in the side before running back to the vehicle. As she ran towards Michael Hurle, she heard three or four further cracking sounds. She looked back towards the hotel and saw Mr Singleton falling back towards the doors of the hotel. She then saw the man who had left the seat behind the driver standing at the vehicle with his hand in the air pointing towards the hotel. The cracking sounds which she had heard had come from where he was standing. In cross-examination, she said that the man had his hand outstretched and also said that he was holding something in his right hand. She was pretty certain that the same person had shot Michael Hurle and then Mr Singleton. She agreed that she had told police that, before the man (whom she said she thought had a gun), had began scuffling with Michael Hurle, she had seen him point in the direction of where Mr Singleton and Adam Wright were fighting. She had then heard a cracking sound. 28 Natalie Cunynghame saw Ronald Singleton approach Rossini and exchange punches. As they were fighting she saw an object, which she thought was a mobile telephone, fly across the road. She saw that Michael Hurle and Adam Wright had followed Mr Singleton over to the vehicle. She then heard a sound like a firecracker and saw a person (whom the Crown alleged was the appellant) standing at the rear passenger door behind the driver. She said that she observed that there were five people in the vehicle, but later she said that only four people left the vehicle, with the person in the middle of the back seat remaining in the vehicle. She said that she heard a total of five sounds like firecrackers and that, when she heard them, Mr Singleton and Rossini were still fighting. 29 Melinda Catchpole said that she saw five people in the vehicle, two in the front and three in the back. She saw Michael Hurle fighting with someone at the back of the vehicle. She then saw another person leave the seat behind the driver. She heard four or five bangs coming from that area. In cross-examination, she said that that person (whom the Crown alleged was the appellant) was within a few metres of Michael Hurle when what she thought was a gun was fired. The gun was in the man's right hand. The gunshots, according to Ms Catchpole, were not all aimed in the one direction, but were sprayed everywhere. She also saw the gunman move his hand in an arc motion from the back of the vehicle towards the hotel. In cross-examination, she said that, as the vehicle drove away, Mr Singleton was holding on to a person who was on the right hand side of the vehicle behind the driver. 30 Karen Smith heard at least five gunshots during the course of the fight between Ronald Singleton and Rossini. She saw that Michael Hurle was on the ground in the middle of the road, and that one of the men who had emerged from the vehicle was hitting him with a small black object. She saw only two men leave the vehicle, namely the person sitting in the rear behind the driver and the person sitting behind the front passenger's seat. The vehicle itself, she said, contained five people. 31 Stephen Pappalardo saw the initial fight between Mr Singleton and Rossini. A person who got out of the "back passenger seat" (whom the Crown alleged was Kazzi) and Adam Wright also both became involved in the fight. Pappalardo then saw a man who left the back seat behind the driver's side (whom the Crown alleged was the appellant) approach the area of the fight. He gave evidence of a total of five gunshots coming from the area of the vehicle. He saw the person who had emerged from the back seat on the driver's side attempt to re-enter the vehicle by getting into the rear passenger seat. It appeared to him that Mr Singleton grabbed the legs of both that man as well as the person who had got into the front passenger seat. 32 Rebecca Chaplin said that she saw five people in the vehicle. She saw the person from the rear passenger seat leave and commence to fight with Michael Hurle in the middle of the road. She heard a total of five or six sounds like firecrackers in all. 33 Nathan Wood's statement was tendered. He heard gunshots coming from the gutter area at the front left of the vehicle. He then saw a male person run from the roadway at the front left of the vehicle and stumble on the footpath. Wood then saw Adam Wright on the footpath throwing a punch at a person who was approaching him. He heard another gunshot and saw Adam Wright jump back, lift up his shirt and look at his belly. 34 Keiran McDonnell said that he had seen a man running from the back of the vehicle towards the back passenger's side of the vehicle and get in. As he was running, he saw the man stumble after which he heard two gunshots. His description of the person was consistent with the appellant's appearance. 35 Matthew Scott saw three men leave the vehicle. He saw the man who emerged from the rear passenger seat fighting with Ronald Singleton as a result of which each of them fell into the back seat of the vehicle. At the same time, he saw Adam Wright engaged in a fight with the person who had left the front passenger seat. As that was happening, he heard two gunshots as a result of which he saw Mr Wright's head thrust backwards. He then saw him holding his belly. 36 There was also a considerable body of evidence regarding the use and possession of mobile telephones by Rossini, the appellant and their associates. It was common ground that they were constantly changing their mobile telephones in an endeavour to conceal their illicit activities from the police. It would also appear that this group of people had access to, and would use, each other's telephones. The Crown endeavoured, by referring to call charge records in addition to other evidence, to demonstrate that the mobile telephones which were located at the scene were in the possession of Rossini and of the appellant respectively. The Crown relied in part on records, which indicated the persons to whom calls were made and from whom calls were received, to establish with whom the particular telephone was associated at the particular time.

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The case for the appellant 37 The appellant did not give evidence at the trial even though he relied on evidence of an alibi. The Crown was not informed about the fact that the appellant was going to rely on an alibi until shortly before the trial was listed to commence. The alibi consisted of evidence from the appellant's brother (Najieh Kanaan), and two of his friends, that they had all spent the evening of 17 July 1998 (the date of the shooting) in the company of the appellant at his premises in Belfield, where they had played cards and watched a game of football on television. There was also evidence that two other associates of the appellant had visited the premises that evening, although neither of those persons gave evidence. 38 Each of the witnesses gave evidence explaining why they had not provided police with the information that they had concerning the availability to the appellant of an alibi. The appellant's brother, for example, said that the reason that he did not come forward with the information immediately was because he wanted to wait for the committal proceedings, at which he anticipated that the allegations against the appellant would be revealed to be untrue. He agreed that he had not informed counsel who had appeared on the appellant's behalf at the committal proceedings of the fact that the appellant had an alibi. 39 Nevertheless, he maintained that he had told a barrister (Mr G Stanton), that the appellant had an alibi. Mr Stanton did not appear for the appellant at any stage of the proceedings. The appellant's brother gave evidence that he had asked Mr Stanton for advice as to when he should come forward with the information concerning the alibi. He said that he was told by Mr Stanton to wait until a couple of months before the trial. The appellant's brother maintained that he had consulted Mr Stanton because he was Lebanese and was familiar with the Lebanese community. He also said that he did not trust the appellant's lawyers, although he conceded in cross-examination that he had had daily contact with the appellant's counsel at the committal proceedings and that he had provided counsel with information about the witnesses who gave evidence at those proceedings. 40 The Crown called Mr Stanton in its case in reply. In essence, he denied the contents of the conversations which were attributed to him by the appellant's brother. He said that, although he had spoken to the appellant's brother during the course of the committal hearing, at no stage had the question of the appellant having an alibi been raised with him. He agreed that he had discussed in general terms the nature of committal proceedings with the appellant's brother and family. However, he said that he had told them that they should discuss any matters concerning the trial with counsel who was appearing for the appellant. 41 The appellant's brother and another of the alibi witnesses gave evidence that the appellant was left-handed. Mr Rossini said in cross-examination that he did not know which hand the appellant had used when firing the gun, but he agreed that he was left-handed or at least predominantly so. 42 Bassim Kazzi and Shadi Derbas each declined to provide a statement to police. Kazzi, however, gave evidence on behalf of the appellant in which he denied that he was an occupant of the red Mitsubishi Magna station wagon on the night in question. He said that he had known the appellant, as at the time of the incident, for a number of years, but that he could not recall having spoken to him in July 1998. He also said that, although Rossini's face looked familiar, the first time that he had seen him was at the committal hearing.

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Hearing: the issues 43 In the final analysis, the issues to be determined by the jury were straightforward. The trial judge directed the jury in forceful terms that they could not be satisfied of the appellant's guilt to the requisite standard unless they accepted the evidence of Rossini beyond reasonable doubt. The Crown contended that the jury would be so satisfied, and it pointed to matters which were at least capable of supporting Rossini's assertion that the appellant was present at the time of the incident. It also identified reasons why Rossini should be accepted when he said that the appellant was the shooter, as well as pointing to the inherent improbability that anyone else was the shooter. 44 Counsel for the appellant at trial mounted a significant attack on Rossini's credibility. He made a number of submissions to the jury as to why they would reject his evidence. The trial judge reminded the jury of each of those matters in his Summing-up. It included: (a) Rossini's post-incident conduct including changing his appearance and burning his clothing, from which it could be inferred that, far from being a "bit" player, he was in fact a "prime" player; (b) a number of inconsistencies in his various statements about the matter; (c) the fact that his evidence was contradicted by both Yannieh and Kazzi as well as the alibi witnesses; (d) the evidence that the appellant was left-handed was at odds with eyewitness accounts, which said that the shooter was right-handed; (e) the telephone records which were in evidence did not support Rossini's account in a number of respects, including (for example), that Derbas had made a call from the vehicle whilst they were leaving the scene; and (f) it was possible that the young man in the back seat was the shooter of at least some of the victims. In support of this last proposition, reliance was placed on Ronald Singleton's evidence that shots had come from within the vehicle and the fact that Rossini had said at one stage that this person had left the vehicle and had been wrestling with someone. Moreover, as they were leaving the scene, Derbas informed the appellant that there was another gun under the seat in the vehicle, whereupon the young man reached under the seat and produced a 0.38 calibre revolver.

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55 In the last of those cases, Mraz v The Queen , the appellant had been charged with the felony murder of a woman whom he was alleged to have raped, causing her death. Murder was the only charge. The jury was directed that, if the rape had been committed with the intention of injuring the woman, he was guilty of murder, but he was guilty of only manslaughter if his intention had been merely to gratify his own desires. He was found guilty of manslaughter, but the direction was held to be erroneous, as a finding that the death of the deceased was caused by the acts of the appellant associated with or in furtherance of the rape necessarily established felony murder rather than manslaughter (at 505). No finding of manslaughter on the basis left to the jury was therefore open on the evidence. The joint judgment of Williams, Webb and Taylor JJ, having quoted the statement by Higgins J in Ross v The King concerning the strong tendency of jurors to shrink from pronouncing a murder verdict leading to the death sentence, said (at 507-508): Whilst, perhaps, the like comment may not now be made with quite the same force it is clear that the appellant was entitled to have the issues decided upon the graver charge and, to us, it seems quite wrong to attempt to justify the verdict of manslaughter, returned in the circumstances of this case, by the observation that the jury, upon an issue of manslaughter which they were invited to consider, must have reached conclusions on issues of fact which would have required them, if properly instructed, to have returned a verdict of murder. It is, of course, quite possible to say that the same conclusions on these issues of fact must have led the jury to find the appellant guilty of murder if they had been properly instructed. But it would be ignoring the realities of the matter to assume that if they had been required to consider whether they should convict the appellant of murder or acquit him they would have reached the same conclusions. The joint judgment went on to say that the reasons given were substantially the same as those given by Fullagar J. The conviction for manslaughter was quashed.

[46]

56 In his judgment, Fullagar J said (at 513): It is, of course, true that, if the erroneous part of the charge had been omitted, the jury might have convicted the appellant of murder, which is the more serious crime than manslaughter. But it is equally true that a jury not confused by the erroneous matter might have acquitted the appellant on the only charge in the presentment. In many murder trials the question whether the possibility of a verdict of manslaughter should be raised presents a serious problem to counsel for the accused. Probably in most cases it is regarded as disadvantageous to the accused to suggest the possibility of a verdict of manslaughter. A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them. Reference is then made to Ross v The Queen , and the passage from the judgment of Higgins J is again quoted. Fullagar J continued (at 514): In the present case the jury may well have hesitated long before convicting the appellant of murder, and it is very far indeed from clear that the misdirection did not operate to his grave disadvantage. In such circumstances it is impossible to say that no substantial miscarriage of justice has occurred. These "too favourable" directions can only too often be veritable gifts from the Greeks. Fullagar J concluded his judgment with this (at 517): It is no answer to the argument for the appellant in this case to say that it is always permissible for a jury, on a trial for murder, to return a verdict of manslaughter: see eg Brown v The King (1913) 17 CLR 570. This right was referred to in Hughes v The King (1951) 84 CLR 170 at 175 as "the privilege of returning a merciful verdict of manslaughter". The verdict in the present case cannot be taken to have been returned in the exercise of that "privilege". It was returned on an erroneous direction as to what constituted the crime of manslaughter. 57 The next relevant case in the High Court, chronologically, is Gammage v The Queen (1969) 122 CLR 444. In that case, the trial judge had directed the jury that, if they were satisfied that murder had been committed, they must not find the accused guilty of a lesser offence in order to be merciful. Of this direction, Barwick CJ said (at 450-451): Out of the circumstance that, though not charged, manslaughter if made out may be found on an indictment of murder, there naturally arises the obligation to tell the jury if they ask, or if the accused requires it, that this alternative verdict is open to them if that is their view of the facts. Failure to so advise them will give rise to a justifiable complaint on the part of the prisoner. But, part of that advice should, in my opinion, be a clear statement of the occasion on which the jury might properly return a verdict of manslaughter.

[51]

59 The High Court once more approached the issue of the directions to be given in a murder trial - but without reference to Ross v The Queen - in Pemble v The Queen (1971) 124 CLR 107. The accused's case at the trial was that he fired a rifle killing the deceased without knowing that it was loaded and only to frighten the deceased, that he had held the rifle in the air but had stumbled, and that he had not intended to hurt the deceased. His counsel did not invite the jury to acquit the accused, and the judge directed the jury that the issue was whether the accused was guilty of murder or "something less". It was not suggested by anyone that the accused could be found not guilty of both murder and manslaughter. The accused was convicted of murder. It was held that the course taken by the defence in the conduct of its case did not relieve the judge from the duty to put to the jury any matters on which they might find for the accused. Barwick CJ said (at 117-118): Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part. The Chief Justice referred with approval to the statements to this effect in Rex v Hopper [1915] 2 KB 431 (at 435); Mancini v DPP [1942] AC 1 (at 7-8) and Kwaku Mensah v The King [1946] AC 83 (at 92-94). However, having considered at length (at 120-125) whether a verdict of not guilty was open on the evidence in that case, the Chief Justice concluded that it was not. He nevertheless concluded that there had been an independent misdirection in relation to the charge of murder, which should lead to the conviction being quashed and a verdict of manslaughter substituted.

[58]

65 Gleeson CJ and Gummow J rejected those submissions in the following terms (at [14]-[15]): The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice. In the days when murder attracted the death penalty, appellate courts were well aware, and took account, of the possibility that juries may be influenced in their deliberations by the presence or absence of manslaughter as a possible verdict. Reference is then made to Mraz v The Queen , in which the majority, allowing the appeal, had taken "into account the practical significance of the misdirection". The passage from the judgment of Higgins J in Ross v The King is again quoted (see par [49] supra ), and reference is made to the judgment of Fullagar J in Mraz v The Queen when he said that "[a] jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them". The joint judgment continued (at [16]-[17]): These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expressed those consequences. When, in Mraz , the majority referred to "ignoring the realities of the matter", one of the contemporary realities to which they were referring was the death penalty. That was why, tactically, defence counsel might prefer to conduct a homicide case on a "murder-or-nothing" basis. The death penalty has gone, but there are other, perhaps equally influential, realities. This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them. Reliance was placed on a decision of the Supreme Court of Canada, Regina v Jackson [1993] 4 SCR 573, where that Court declined to apply the proviso where the jury had been inadequately directed on the issue of manslaughter. That decision had followed Bullard v The Queen [1957] AC 635 (on which Smith J had relied in his dissenting judgment in Regina v Evans & Lewis ), where Lord Tucker had said (at 644): Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached. After quoting the first of the statements made by Lee J in Regina v Hitchins & Elliott at 336 (see par [62] supra ), Gleeson CJ and Gummow J pointed out (at [11]) that this statement was different to the approach taken by the Supreme Court of Canada in Regina v Jackson .

[61]

68 McHugh J dissented. He agreed that a verdict of manslaughter was open on the appellant's evidence. However, as the jury's verdict of murder meant that they had accepted that the appellant knew that his brother intended to cause at least grievous bodily harm to the victim, they would have rejected manslaughter had it been left. There had therefore been no miscarriage of justice caused by the failure to leave manslaughter to the jury, and thus the proviso should be applied. He formulated his proposition, based on Ross v The King (at 254), in these terms (at [26]; see also at [37]): Where a trial judge correctly directs the jury as to the essential elements of the crime charged, a verdict of guilty necessarily amounts to a finding of every essential element of the crime, and the verdict cannot be set aside on the ground that the trial judge should have directed the jury that on the evidence they could convict the accused of a lesser offence. That proposition is subject to the qualification that, where the evidence, in substance but not necessarily in form, gave rise to a "defence" by way of confession and avoidance which the trial judge failed to put to the jury, the verdict can be set aside. McHugh J gave as examples those cases in which there is evidence raising issues of provocation and self-defence and where, if the judge fails to leave manslaughter, there will have been a miscarriage of justice. Of the facts in Gilbert , McHugh J said (at [27]) that the jury "could not as a matter of law, fact or conscience find the appellant guilty of manslaughter", and that, "[o]n the findings implicit in the verdict of guilty of murder, manslaughter was not a verdict which the jury could return". He regarded it as fundamental to the criminal jury trial that the jury are true to their oath (at [31]), and dismissed the statement of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 513 (quoted in par [65] supra ) as saying only that, properly directed, the jury could have convicted the accused of murder or acquitted him of murder and that it was no answer to say that, because they had convicted him of manslaughter on an erroneous direction, they would necessarily have convicted him of murder on the same facts with a proper direction concerning murder (at [35]).

[68]

The consequences of that position 76 A necessary consequence of the third of those propositions is that the decisions of the Victorian Full Court in Regina v Evans & Lewis and of this Court in Regina v Hitchins & Elliott - at least insofar as they relate to a murder/manslaughter case - must be taken to have been either implicitly overruled or disapproved by the High Court in Gilbert v The Queen . The reasons why that is so are these: (a) Evans & Lewis had followed what might be called a literal interpretation of what had been said in the joint judgment in Ross v The King (at 259, quoted at par [49], supra ), unqualified by the earlier finding in the joint judgment that no reasonable jury could have found manslaughter in that case, an interpretation accepted by the dissentients in Gilbert but rejected by the majority. Gleeson CJ and Gummow J said (at [8]) that such a literal interpretation without qualification was inconsistent with the later decision in Pemble v The Queen. Gleeson CJ and Callinan J, with whom Kirby J agreed, put the issue beyond doubt in Gillard v The Queen at [27] (quoted in par [71] supra ). See also Gummow J at [33]-[34] and Hayne J at [133] (quoted in par [72] supra ). (b) Hitchins & Elliott had followed Evans & Lewis and, relying on the same passage from Ross v The King , held (at 336) that the proviso will be applied where the case on manslaughter depended on facts which had been rejected by the jury's verdict of murder. This, too, was rejected by Gleeson CJ and Gummow J in Gilbert , who accepted the contrary approach by the Supreme Court of Canada in Regina v Jackson (referred to in par [65] supra ) in preference to the views expressed in Hitchins & Elliott (at [9]-[11], [18]-[19]). Callinan J (at [88]-[91]), rejecting Evans & Lewis , accepted that the fact of conviction of a greater offence is not always, as a universal proposition, a good answer to a complaint of failure to direct the jury that a verdict of a lesser offence is available (referred to in par [67] supra ), a proposition which necessarily rejects Hitchins & Elliott also. The factual basis which the jury must be taken to have accepted for the murder verdict in Gilbert was that the appellant was aware that his brother intended to use his weapon to inflict at least grievous bodily harm on the victim. The factual basis on which the majority in Gilbert accepted that a verdict of manslaughter was open in that case was that the appellant may not have been aware of that intention, because his admissions to the police were equivocal (at [21], [83]-[84]). That basis had necessarily been rejected by the murder verdict. Gilbert was therefore necessarily inconsistent with both Evans & Lewis and Hitchins & Elliott . The principle accepted by both of those cases was necessarily rejected by the proposition taken from Gilbert in Gillard v The Queen at [27] (quoted in par [71] supra ).

[69]

Regina v Park 77 In the present case, the Crown submitted that a trial judge is not obliged to put all conceivable constructions of the facts to the jury, and it relied on Regina v Park [2003] NSWCCA 203 at [63]. In that matter, the case against the appellant for the murder of his wife and two children was a circumstantial one only, based mainly on the bad relationship between the appellant and his wife, a motive to kill, the opportunity to do so and some other conduct indicating a consciousness of guilt. The appellant did not give evidence at the trial. The trial judge raised for the consideration of the parties whether a particular hypothesis inconsistent with guilt should be put to the jury. This hypothesis was based on what was said to be the reasonable possibility that the appellant had found his wife and children already dead and that he had disposed of the bodies in a panic, thinking that he would be blamed for their death. Counsel for the appellant said that he did not ask for such an hypothesis to be put to the jury, but agreed that the judge could properly put to the jury any view of the facts which was consistent with his client's innocence. The Crown objected to that hypothesis being put to the jury. The judge decided that he should not put it, and that he was not required by Pemble v The Queen to do so. He added that there may be unfair implications for either party if he did give such a direction. He correctly directed the jury that, if there was any reasonable hypothesis consistent with innocence, the appellant had to be acquitted. Counsel for the appellant put to the jury an hypothesis based on the killer being a "loan shark enforcer", but he did not put the particular hypothesis suggested by the judge. It was obviously not in the appellant's interests for him to have done so. 78 On appeal, it was submitted by the appellant that the hypothesis previously suggested by the judge should have been put to the jury, relying on what was said by Barwick CJ in Pemble v The Queen (see par [59] supra ). In dismissing the appeal, this Court started (at [57]) with the fundamental proposition that the judge must be satisfied that there is some rational basis in the evidence, however slight, on which the hypothesis inconsistent with guilt could be put to the jury, and that it does not matter that such an hypothesis had not been put to the jury on behalf of the accused. That was substantially what the High Court had held in Pemble v The Queen , the only differences between the four justices who dealt with the issue in that case being whether an acquittal was open on the evidence in that case. The next stage of this Court's judgment in Regina v Park (delivered by Shaw J) was, however, that Pemble did not require the hypothesis to be put to the jury. Instead, it adopted the view expressed by McHugh J in Gilbert v The Queen , that a finding that the appellant was guilty of murder precluded the verdict being set aside on the basis that an hypothesis inconsistent with guilt was available and had not been put to the jury (see par [68] supra ). That statement of principle is inconsistent with Pemble , Gilbert and Gillard . Gillard was, of course, decided by the High Court after Regina v Park , but the majority in Gilbert had already made it clear that the view expressed by McHugh J was contrary to Pemble . 79 An application for special leave to appeal in Park was refused by the High Court. The principal argument put by the applicant was that which had been put to this Court, that the hypothesis previously suggested by the trial judge should have been put to the jury. The application was dismissed on the basis that the High Court (McHugh, Kirby and Heydon JJ) was not persuaded that the trial judge had erred when he had decided not to do so. (The trial judge had, as previously stated, decided not to put his hypothesis because he had come to the conclusion that he was not obliged by Pemble to do so - that is, it would appear, that he was not satisfied that the hypothesis was open on the evidence.) The High Court added that, in any event, it was not persuaded that the course taken by the trial judge had caused a miscarriage "in the way that the trial unfolded": Park v The Queen , High Court Transcript, 12 October 2004. No argument was put by either party based on Gilbert or Gillard , and no such issue was raised by any member of the Court.

[79]

89 Without the assistance of the arguments of counsel in a case in which the application of Gilbert v The Queen and Gillard v The Queen to non-murder/manslaughter cases arises, it is unwise to express any further views concerning this issue. The next issue which arises in the present murder/manslaughter case is whether there was a viable case of manslaughter to go to the jury. The present case 90 The evidence in the case, restated briefly for the purposes of this ground of appeal, is that the three victims (Adam Wright and Michael Hurle, who died, and Ronald Singleton, who survived) were involved in an altercation on the footpath outside the Five Dock Hotel in the western suburbs of Sydney. There were a number of onlookers standing around. The shooter emerged from a motor vehicle which pulled up at the scene of the altercation. Two of the three victims of the shooting (Michael Hurle and Ronald Singleton) were shot at very close range, in the chest and arm respectively. Michael Hurle was fired at twice, with one projectile passing through his clothing without causing injury. According to the ballistics expert, the distance from the muzzle of the firearm to the body of the victim in each case was 10 cms or less. The third victim (Adam White) had been operated on before he died; the entry wound to his lower abdomen had been excised during that operation, and no estimate could be made of the distance from the firearm to his body when it was discharged. It is anything but clear on the evidence as to either the order in which the three men were shot or how the shooter was standing or moving when the shots were fired. The situation was clearly confused, but there is no dispute that the five or six shots fired were in two bursts, those in each burst having been fired in quick succession. The accused exercised his right of silence, and did not give evidence. The relevant state of mind had to be established solely by way of inference from the facts relating to the shootings.

[106]

[88] It is the Crown's case that they were leaving because they knew of the commission of this crime. It is the defence case that he was accompanying Mr Rossini, who had told him of the commission of this crime. You need not be satisfied of the second, the question is whether the Crown has disproved it beyond reasonable doubt. 109 In argument in this appeal, reference was made to a request at trial by counsel for the appellant for a direction that, because Rossini's evidence was not corroborated by any other evidence and because he was an accomplice, the jury should be told that it would be dangerous to convict the accused on his evidence. The trial judge declined to give a direction in those terms. 110 The appellant submitted that Conway v The Queen (2001) 209 CLR 203 was authority for the proposition that although it was no longer necessary for a trial judge to provide a direction as to corroboration, once a trial judge gave such a direction the judge had to identify what evidence might constitute corroboration and specify how it did so. 111 Implicit in the submission were the propositions that the trial judge's use of the word "support" in this case had the same effect as if he had used the word "corroboration", that accordingly his failure to identify what evidence might amount to corroboration and how it would operate as such was contrary to what was said in Conway , and that this constituted an error of law. 112 The Crown submitted that the trial judge made it clear in his directions that there was no evidence other than that of Rossini that the appellant was the person who had fired the pistol. At most, there was evidence that "supported" some aspects of Rossini's testimony on the other issues, but it went no further than that. The judge's use of the word "support" was quite deliberate and was intended to characterise evidence which did not reach the standard of corroboration, as understood by the common law. The word "support" is often used to make the distinction between evidence which is technically corroboration and that which is not, and it would have been so understood by the jury. Accordingly, the judge had not entered the field of corroboration so as to attract the direction specified in Conway. What he did conformed with s 164 of the Evidence Act . 113 The Crown relied on the same paragraphs in the Summing-up as were referred to by the appellant, together with the following paragraphs: [7] That is because the issue in this case has come down to a very, very tight focus. Both the learned Crown Prosecutor and the defence counsel have concerned themselves with that issue. It is conceded by the Crown you could not, acting properly in accordance with your function, be satisfied beyond reasonable doubt of the guilt of the accused at all unless you are satisfied beyond reasonable doubt that the guilt on the evidence of Mr Rossini and in particular on the evidence of Mr Rossini when he says he saw Michael Kanaan shooting outside the Five Dock Hotel that night. If you accept that evidence beyond reasonable doubt then your proper verdict would be guilty of each of these offences charged. Unless you accept that evidence beyond reasonable doubt you cannot in law convict the accused.

[112]

[56] Notwithstanding his [the appellant's] election not to give evidence, the Crown must prove its case beyond reasonable doubt and that means it must exclude the alibi. […] 114 The Crown argued that no complaint was made on behalf of the appellant on this issue following the Summing-up. The trial judge declined to give a direction as to corroboration in the terms requested by the appellant, but the point taken in Ground 4(a) addressed a different issue. Rule 4 of the Criminal Appeal Rules therefore applies. 115 The Summing-up made it clear that the only evidence that the appellant was the shooter came from Rossini. Accordingly, as the judge made clear, there was no evidence which "corroborated" Rossini on that crucial issue as that term was understood before the requirement for such a direction was abolished by s 164 of the Evidence Act . There was evidence which was capable of "supporting" other parts of the evidence of Rossini. It was appropriate that the attention of the jury be drawn to that evidence, and that guidance be given as to how it should be used. The judge gave that guidance by using the comparatively neutral word "support", and by pointing out how such "support" could be provided by that evidence. 116 In doing so, the trial judge did not suggest to the jury that such evidence operated as corroboration, as that term is understood under the common law and explained in Conway. Accordingly, there was no obligation on the part of the judge to explain the use of that evidence by reference to the law of corroboration, nor was it incumbent on him to warn the jury that it would be dangerous to convict on uncorroborated evidence. What the judge did accorded with the requirements of ss 164-165 of the Evidence Act . He stressed the limited use which could be made of that evidence which was in "support" of Rossini. 117 The observations of Simpson J, with whom Kirby and Bell JJ agreed, in Regina v Livingstone (2004) 150 A Crim R 117 are instructive: [72] Notwithstanding these comprehensive directions, it was, on appeal, contended that they were inadequate. Two separate criticisms were made. Firstly, it was argued that the decision of this Court in Regina v Chen & Ors [2002] NSWCCA 174, unreported 11 June 2002, mandated a direction that it would be dangerous to convict the appellant upon the uncorroborated evidence of any of the four witnesses. In Chen, the following paragraph appears: [58] In our opinion, Chan was plainly an accomplice. Though s 164(3) of the Evidence Act 1995 abolished the universal common law duty to give an accomplice warning, the power and the duty to do so in appropriate circumstances survives: see also s 165(5). It became therefore incumbent upon the learned presiding judge to give the jury a clear direction to the effect that it would be dangerous to convict the appellant, and his other co-accused, upon the uncorroborated evidence of that accomplice. This, as it seems to us, his Honour plainly and correctly did. It became, then, further incumbent upon his Honour to give the jury assistance in understanding the nature of corroborative evidence; and in identifying those matters of fact which, if accepted by the jury as having been proved, could constitute such corroboration in the appellant's particular case. This, also, we think his Honour plainly and correctly did. [73] Senior counsel for the appellant relied upon the ruling that it was "incumbent" upon the trial judge to give a clear direction that it would be dangerous to convict the appellant upon the uncorroborated evidence of the accomplice; and that it was also "incumbent" upon him to assist the jury in understanding the nature of corroborative evidence and in identifying matters of fact which the jury could regard as constituting corroboration.

[116]

121 There were two fundamental facts in issue in the trial: 1 Was the appellant present? 2 If he was present, was it the appellant who discharged the firearm and thus was directly responsible for the consequences? The Crown case on both issues depended solely on the evidence of the indemnified Crown witness Rossini. 122 The complaint of error is based on the directions given by the judge in relation to the evidence led by the Crown of the appellant's conduct following the shooting - in damaging the vehicle in which the men had travelled to and from the Five Dock Hotel to make it appear to have been stolen (which would otherwise have led to Shadi Derbas, one of the men in the vehicle), altering his appearance by having his hair cut the next day and travelling away from Sydney for some time. The judge left it to the jury to consider whether this conduct "was such as to show he was conscious of his guilt", but he immediately went on to say: You would accept it as available for that purpose if that evidence persuaded you that it was proved that he had committed the crimes charged when taken in conjunction with the evidence of Mr Rossini; that is, that it is supporting Mr Rossini's eye witness evidence. The judge then made clear to the jury the limitations on the use to which they could put that evidence: But you could not use it on its own as tending to show that he had been the shooter because when you think about it, it proves no more than that he was there when all that was going on and participated in it and accompanied Rossini. (See [37]-[39] of the Summing-up, quoted in par [108], supra .) 123 The important issue is the overall effect those directions would have had on the jury. The Crown case against the appellant was that he was the shooter, not that he was present aiding and abetting the shooter. The reference to the conduct of the appellant being capable of proof that he "participated" in "all that was going on" could not reasonably have been interpreted by the jury in that context as proof which they could use as demonstrating that the appellant was the shooter. The first passage just quoted must inevitably have been interpreted by the jury in that context as saying no more than that the conduct in question in some way supported the evidence Rossini gave that the appellant was the shooter. It could not on its own establish that the appellant was the shooter. 124 The use of the phrase "consciousness of guilt " was therefore inappropriate. What may perhaps have been appropriate was an identification of the Crown case as being that the reason for the appellant's conduct in question was that he realised (or was conscious) that he was unable to deny that he was present at the shooting and that he feared that his presence there would implicate him in the shooting. In its context, however, the conduct of the appellant in question could not reasonably have been understood by the jury as amounting to an admission by conduct by the appellant of having been more than outside the Five Dock Hotel at the time of the shooting. If it had conveyed any suggestion that it was an admission by conduct by the appellant that he was also the shooter, it would be expected that a complaint and an application for a redirection would have been made by the very experienced counsel who appeared for the appellant at the trial. No such application was made.

[117]

125 As already stated (par [106] supra ), Rossini fell within a category of potentially unreliable witnesses whose evidence gives rise to the need to draw to the jury's attention why that evidence may be unreliable. The judge made it clear to the jury that the whole of the Crown case depended on its acceptance of Rossini's evidence that the appellant discharged a firearm outside the Five Dock Hotel on the day in question, and that they could not accept Rossini's evidence beyond reasonable doubt unless they rejected the evidence of alibi. The judge drew the jury's attention to the other possibilities put forward by the defence, such as the possibility that Rossini's evidence was given in order to cover the fact that he was himself the shooter or to protect someone else. This was, the judge said, the "crucial issue" on which the jury should focus. He reminded the jury of the defence argument that Rossini gave evidence: […] protected by an indemnity, insulated from a conviction for conspiracy to supply a commercial quantity of cocaine, whose evidence […] was marked with inconsistencies, and who had an end of his own to serve, seeking to at least ingratiate himself with the Crown, if not […] to cover up that he himself was the shooter […]. The judge also repeated in detail the twelve specific reasons counsel for the appellant had given for not accepting Rossini's evidence. (See [7], [9] and [14]-[15] of the Summing-up, quoted in par [113], supra .) 126 The appellant submits that the further direction which should have been given was one fashioned on that given in relation to lies told by the accused - originally formulated in Regina v Lucas [1981] QB 720 at 724, and approved in Edwards v The Queen (at 208 et seq ) - where the Crown relies on such lies as evidence corroborating the evidence of a Crown witness such as an accomplice. As Edwards makes it clear (at 208), such lies are but one kind of conduct which is inconsistent with innocence and which therefore amounts to an implied admission of guilt. Thus, where the Crown relies on other conduct by an accused such as altering his appearance as an implied admission of guilt, directions fashioned on Lucas and Edwards will ordinarily be necessary.

[126]

[35] The evidence of his association with those things is evidence that is available to you to conclude on the question of whether you are satisfied beyond reasonable doubt Rossini was telling the truth when he said the accused was the shooter; thus, the evidence that Lee and Green had seen the accused on a prior occasion with a gun, a handgun with rubber bands around the handle, if you accept it, would go to support Rossini's account that the accused on the day in question was shooting with a gun Rossini previously saw, a gun which conformed to that which he had seen before. 131 The thrust of the appellant's submissions on this ground, both in writing and in oral argument, was that the direction given in par [34] was too narrow, and that it would not have prevented the jury engaging in tendency reasoning. However, not only did the judge clearly indicate to the jury that tendency reasoning based on the appellant's association with guns and drugs was not permissible, he also specified (correctly), in par [35], the limited manner in which that evidence was to be used. 132 In addition, the following direction on this topic was given during the course of the trial (T 354.20 ff): However, it is particularly important at this point that I direct you that you are not to reason in a particular way, that is, that if the accused is an associate of those who admit to criminality and admit such things as drug dealing and carrying guns themselves, that he must be guilty. You would understand that that is an entirely inappropriate way to reason. We are concerned with whether or not the Crown proves by evidence tendered before you that the accused was the person who shot the two deceased and Mr Singleton that night, and that is to be proved by evidence which enables you to draw the conclusion rationally and without prejudice. … At this point in the trial, because it may be a short while or some days at least, indeed may be longer before we come to the summing up, and since this block of evidence has now been given, it is important that I warn you, you should not leap to the conclusion that he might be guilty because there was some evidence associating him on a prior occasion with a gun, or with a mobile phone.

[128]

GROUND 4(d) - the trial judge erred in failing to direct the jury that they had to reject the evidence of alibi beyond reasonable doubt 134 It was common ground that the Crown had to establish beyond reasonable doubt that the appellant was present at the crime scene. The appellant complains, however, that at no time did the judge ever in terms direct the jury that, in order to convict the appellant, they had to reject the evidence of alibi beyond reasonable doubt. 135 The direction for which the appellant now contends would not be an easy concept for a jury to follow. An alibi asserts that, at the relevant time, the accused was not at X (the scene of the crime) but at Y (somewhere else, according to the alibi evidence). The issue which it raises is whether there is a reasonable possibility that the accused was at Y, rather than X, at that time. To prove beyond reasonable doubt that the accused was at X, the Crown must remove or eliminate that reasonable possibility: Regina v Youssef (1990) 50 A Crim R 1 at 2-3. An appropriate direction to the jury would be: The Crown must establish beyond reasonable doubt that the accused was at X at the relevant time. The Crown cannot do so if there is any reasonable possibility that he was at Y at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at Y at the relevant time, and also persuade you, on the evidence on which the Crown relies, that beyond reasonable doubt he was at X at that time. 136 The trial judge did not give in terms either the direction which the appellant now says should have been given or one along the lines suggested in the last paragraph. He did, however and on a number of occasions, make it very clear, in the context of directions concerning the onus and standard of proof, that any reasonable possibility that the alibi was true had to be eliminated before the appellant could be convicted. He said that the "crucial issue" was whether the evidence of Rossini could be accepted beyond reasonable doubt "notwithstanding what had been put forward by way of alibi", that Rossini's evidence could not be accepted unless they "reject[ed]" the evidence of alibi, that the Crown had to "exclude" the alibi and that, even if the alibi evidence was rejected, the Crown had to prove that the appellant was at Five Dock discharging the firearm. (See [14]-[15], [21] and [56] of the Summing-up, quoted in par [113], supra .) 137 In light of those directions, it must have been very clear to the jury that for the appellant to be convicted they would have to reject the evidence of alibi beyond a reasonable doubt. Moreover, a fair reading of the judge's overall directions on this issue would have ensured that the jury did not engage in an impermissible mode of reasoning - namely a conclusion of guilt as a direct consequence of rejecting the alibi. That this was the general effect of the directions given is supported by the fact that no objection was taken at trial by the very experienced counsel appearing for the appellant. 138 Ground 4(d) is not made out.

[133]

GROUND 5 - Fresh evidence (Detective Fabris) 145 The appellant submits that a miscarriage of justice was occasioned to him by reason of the absence at his trial of material which should be regarded as "fresh evidence". In short, the material relates to the conduct of a police officer named Detective Fabris who was involved in the investigation of the present matter. The "fresh evidence" consists of evidence which Detective Fabris gave before the Police Integrity Commission on 10 September 2002, in which he admitted that, whilst a member of Task Force Magnum, he had engaged in corrupt conduct. In the Commission's Final Report to Parliament in relation to "Operation Florida", it was observed that "his admissions included instances of participating in loads, verbals, false admissions, falsifying statements for use in proceedings and perjury". The witness gave evidence to the Commission that he would not have been seconded to the particular Task Force had he not been prepared to "load" and "verbal" suspects, activities which he admitted he had engaged in prior to his involvement with the Task Force. In relation to the conduct in which he had engaged, he said that: It was just something that we did. It was just done. It wasn't something that was discussed all the time. It was just part of the way of doing the job and it was just how it was done. It is common ground that this material did not emerge until after the appellant was convicted at his trial for the present matter. In those circumstances, the Crown does not contest the proposition that the material constitutes "fresh evidence". 146 The appellant concedes that there is no direct evidence available which would indicate that Fabris acted corruptly in the present matter. Indeed, no evidence was placed before the Court to indicate that his corrupt activities extended beyond his time as a member of the Task Force. The Task Force commenced operating in late January 1991, and Fabris remained a member of it for a period of only eight months or so. The Task Force itself was apparently disbanded in late 1992. The events in issue in this case occurred in 1998. 147 Fabris played an investigative role in the present matter. The evidence which was placed before the Court reveals that he was involved in taking statements from, or conducting interviews with, a number of persons, including Mohamed Ruston, Ronald Singleton, David Eid, Mohamed Dib, Melinda Catchpole, Leia Colbert, Ellie Gialouris, Dennis Green and Dean Yates. He also pursued inquiries in relation to various mobile telephone numbers, and he was present when Shadi Derbas was arrested. He was also present when Rossini, in the presence of his barrister (Mr W P Brewer) clarified aspects of his previous statements. On any view of it, Fabris' role in the present matter was not a major one. He was not called to give evidence. 148 The appellant contends, however, that the evidence reveals a propensity on the part of Fabris to behave corruptly. It is submitted that, had this evidence been available at trial, the appellant could have relied on it as tendency evidence within the meaning of s 97 of the Evidence Act . It is submitted that it was evidence which would have satisfied the statutory requirement that it have "significant probative value". 149 It is next submitted that, given his role as an investigating officer in the present matter, Fabris would have had the opportunity to influence prosecution witnesses by, for example, supplying them with information for the purpose of making their accounts appear to be more reliable. The appellant then points to what, it is submitted, are three specific examples of Fabris having so conducted himself in the present case. It is convenient to deal with each of these matters in turn. First, reference was made to evidence given by the indemnified witness Green. It related to a telephone call which was said to have been made to him by Ms Colbert shortly after the incident, his telephone number having been provided to her by the appellant. The relevant parts of the cross-examination of Green on this issue are these: Q Do you remember a police officer by the name of Fabris? A Yes.

[208]

Just as the court should not be quick to allow an appeal on a "fresh evidence" ground merely because police officers involved in a given trial have been adversely referred to in the Royal Commission, nor, in my opinion, should the court be quick to dismiss a "fresh evidence" appeal by reason of the absence of coincidence between the adverse references in the Royal Commission and the specific subject matter of the trial under appeal. What can be no more than a guide may be stated thus: material from the Royal Commission should be considered to determine whether it is capable of disclosing conduct or, possibly a reputation therefore, pointing to a preparedness in the officer to act corruptly, at least by dishonesty, in his performance of his duties in criminal investigations. The closer the suggested adverse conduct is in the Royal Commission material to that which is relevant to the particular trial, the more persuasive will be the position of an appellant in an appeal of this nature. I do not consider it possible or indeed desirable to enunciate any fixed test. 157 It is common ground that Fabris made no admissions to the Police Integrity Commission as to having acted improperly in the present case. Nor was there, as has been observed, any other direct evidence to that effect. Moreover, and unlike other cases which fall into the present category, Fabris did not give evidence at the present trial, and nor could he give evidence, which would implicate the appellant in the present matters. Accordingly, the "fresh evidence" could not be used to discredit him. The material which is sought to be introduced can go no further than to call into question the credibility of the particular witnesses to whose evidence reference has already been made. 158 For those reasons, the present case stands in stark contrast to the decision in Regina v Heuston (2003) 140 A Crim R 422 which has been cited. Not only was there evidence in that case that Fabris had had an involvement in constructing false evidence which implicated that appellant, but the events under consideration occurred within a time frame which was close to the time when he admitted being engaged in corrupt conduct of the relevant kind. Clearly, the closer in time the adverse conduct is to the events of the trial, the greater the likelihood that the "fresh evidence" will be cogent: see Regina v Johns (1999) 110 A Crim R 149; Regina v Robinson [1999] NSWCCA 186. 159 In the circumstances, a real issue arises as to whether this material would have "substantial probative value" such as to render it admissible as tendency evidence. Nor is it completely clear as to how the evidence would be introduced. Neither would it necessarily be to the appellant's advantage to have Fabris called to deny any misconduct in the present case. However, it is unnecessary to consider these issues further. That is because it is sufficient for the purposes of this appeal to embark on an examination of the cogency of the "fresh evidence" in relation to each of the matters to which reference has been made. 160 So far as the evidence of Green is concerned, nothing emerges from a fair reading of his evidence which suggests that any improper influence was brought to bear on him by Fabris. Since Green had already conceded that he had erred in answering the question as he did, it is difficult to see how the "fresh evidence" could further discredit him. The evidence, if received, could only go to reflect on the credit of Ms Colbert, but she had already conceded in cross-examination that she may have been in error when she said that she had called the particular telephone number. 161 So far as the evidence of Ms Gialouris is concerned, the answers which she gave were, at best, ambiguous. It could not be confidently said that they provided a proper basis for suggesting improper conduct on the part of Fabris. Moreover, this part of her evidence was not relied on by the Crown at trial. It was Rossini in fact who gave evidence that he had raised the suggestion with Ms Gialouris as to what she might say to police. It is quite understandable that counsel for the appellant would not have wished to highlight this particular matter by referring to it in cross-examination. The state of play at the end of her evidence was that Rossini was not supported by her concerning this issue. In those circumstances, it is unlikely that counsel would have sought to introduce material that may have cast the issue in a different light. 162 So far as the evidence of Rossini is concerned, it is relevant to point out that the evidence reveals that there were other police officers as well as Fabris in attendance at the time when Rossini was shown the mobile telephone records. No material has been advanced which would reflect adversely on them. Furthermore, as Rossini indicated, his barrister was present when he was being interviewed, and it is the evidence of both his barrister and his solicitor that nothing untoward occurred whilst he was being interviewed in their presence. Moreover, there is nothing to suggest that Fabris improperly influenced the evidence which Rossini could give. As has been pointed out, subsequent to this episode involving Fabris, Rossini provided a further statement in which he appeared to once again change his version of events so as to exclude the appellant as being the person who had lost his mobile telephone. Rossini sought to explain the problem by suggesting that the later statement had simply repeated the original error, and that he had failed to pick it up. The jury may or may not have accepted that explanation. At the very least, the situation enabled counsel for the appellant to make a powerful attack on Rossini's credibility by referring to his constant changes of evidence on this very issue. It is unlikely that revelations about Fabris' past conduct would, in those circumstances, have significantly altered the jury's view concerning Rossini's credibility. Insofar as this issue was concerned, the jury would have no doubt heeded the trial judge's warning to look for any support in the rest of the evidence for Rossini's assertion that the appellant had lost his mobile telephone. In that respect, they may have found some support in the evidence of Ms Colbert concerning the telephone call which she received from the appellant. 163 Accordingly, for those reasons, this Court is not persuaded that the "fresh evidence" is of such a character that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before them: see Gallagher v The Queen (1986) 160 CLR 392 at 399, 402; Mickelberg v The Queen (1989) 167 CLR 259 at 273; Regina v Goonan (1993) 60 A Crim R 338 at 341-342. This ground of appeal is rejected.

[209]

GROUND 6 - Fresh evidence (Rossini) 164 The appellant also seeks to rely on a further body of material which he asserts constitutes "fresh evidence". 165 In essence, it consists of a report prepared by Mr John Barber, who is put forward as a forensic ballistics expert. His report was prepared at the request of the appellant's legal representatives for use in an entirely separate matter in which they were also retained to appear on behalf of the appellant. In that matter, the appellant was charged with various offences arising out of an allegation that he shot and wounded one police officer, and that he shot at another police officer, in the area of White City in the early hours of 23 December 1998 (the White City matter). Mr Barber's report was concerned with the area within White City where the shots were fired. (This is discussed in more detail at pars [177]-[181] infra ). The appellant was wounded himself during the course of this incident. Indeed, he was arrested at the scene and then charged. Although the events giving rise to the present appeal occurred before the White City incident, the appellant was not arrested in relation to the present charges until 17 September 1999. He was then charged with both the present matter and a further matter in which it was alleged that he, together with Rabeeh Mawas and Wassim El-Assaad, murdered Danny Karam on 13 December 1998. 166 The trial of the White City matter commenced in October 2000. It aborted for reasons that are not presently relevant. At that stage, Mr Terracini SC, who also appeared on the appellant's behalf in the Five Dock proceedings, was representing the appellant. In July 2003, the second trial of the White City matter commenced. At that trial, the appellant represented himself but the jury was unable to agree on a verdict and it was discharged. The third trial of the White City matter commenced in November 2004. Once again the trial aborted. No date has yet been fixed for the further hearing of that matter. It was for the purpose of those proceedings that Mr Barber's report, which is dated 21 June 2004, was prepared. 167 The significance of that material is said to arise from the fact that the principal Crown witness in both the White City matter and the Five Dock matter, was the man Rossini. The Crown case in the White City matter is that it was the appellant who fired the shots which gave rise to the various offences. As with the Five Dock matter, the Crown case depended largely, although not exclusively, on the evidence of Rossini. It was the appellant's case that he was not the shooter, but rather that Rossini was. 168 It was common ground that the appellant had been shot and wounded by a number of shots fired by one of the police officers, Constable Fotopoulos, who was using his service revolver. It was also common ground that the other police officer, Constable Patrech, had been shot and wounded by a person who had fired at him from the area of the tennis courts in the White City area into which the appellant and Rossini had climbed after having been pursued there by the two police officers. The forensic evidence established that there was only one shooter other than Constable Fotopoulos. What was at issue was the identity of that shooter. It was Rossini's evidence that he had made good his escape from the tennis court before the shooting commenced. Another man, Wassim El-Assaad, was also present with them but it was clear on the evidence that he could not have been the shooter. 169 The appellant's submission is a bold one. It is that the "fresh evidence", taken in conjunction with the evidence given by Constables Fotopoulos and Patrech at the most recent trial, shows or at least tends to show that Rossini was indeed the shooter. That, it is submitted, establishes its relevance within the meaning of s 55 of the Evidence Act . Moreover, it is contended that the material has "significant probative value" pursuant to s 103 of the Evidence Act , insofar as it bears on Rossini's credibility. In those circumstances, it is submitted that Rossini has a motive to lie about the White City matter and consequently about each of the other matters in turn. This includes the Karam matter in which Rossini once again nominated the appellant as being involved in his death by shooting. Accordingly, so the argument runs, "having falsely implicated the appellant in relation to the White City matter, it was logical for Rossini to also falsely implicate the appellant in each of the other matters, in order to secure the immunity from prosecution which he received from the Crown". 170 Rossini did not in fact receive an immunity from prosecution in relation to this matter, or indeed in relation to the other matters. Rather, he received what is often termed a "use immunity", namely that the evidence which he gives in the various proceedings cannot be used against him "except in respect of the falsity of [his] evidence". It may be, of course, that nothing of significance turns on the distinction to which reference has just been made, but the submission to that extent was not correct. 171 In any event, the appellant contended that, had Mr Barber's report been available to him at the time of his trial for the Five Dock matter, he could have cross-examined Rossini during the course of it about the circumstances of the White City shooting. In written submissions, the appellant contended that "it could have been put to [Rossini] that he was the shooter and [that] he had falsely implicated the appellant in that shooting and in the present matter in order to escape prosecution: Evidence Act , s 103. When he denied [it] this evidence could have been adduced in rebuttal: Evidence Act , s 106(a)". 172 Counsel for the appellant conceded during the course of oral argument that the consequence of this was that the entirety of the proceedings at the aborted trial (which had then run for about three weeks) would need to be considered because there was no other way in which the issue of the identity of the shooter could be determined. Since the resolution of that issue was dependent on an analysis of the entire transcript of those proceedings, the court was provided with a copy of the transcript for its consideration. 173 The Crown took a preliminary objection to the material. In essence, it submitted that Mr Barber's report was not "fresh evidence" within the meaning of the authorities. It pointed out that no evidence was placed before the Court to explain why the material had not been obtained long ago, and at least before the commencement of the Five Dock trial which was itself a re-trial after an earlier trial had aborted. It is to be recalled that, at least at that stage, the same counsel had been briefed in both matters. The Crown contended that, from the outset, its case in relation to the White City matter included ballistics evidence. Moreover, it was submitted that counsel in preparing for the Five Dock matter would, by exercising reasonable diligence, have been seeking to locate any material, including material of the kind provided by Mr Barber, which may have tended to discredit Rossini. It was even more extraordinary, it was submitted, that the same counsel would not, in view of the appellant's version of events, have sought such material when preparing for the White City trial itself. 174 The appellant responded by submitting that the fact that the material was not fresh was not fatal to his cause. Reference was made to authority to demonstrate that the courts have extended great latitude to accused persons in circumstances such as the present. The appellant relied on the following passage from Lawless v The Queen (1979) 142 CLR 659 at 669, in which Stephen J said: The concept of fresh evidence, as evolved in the cases and in particular in Ratten v The Queen , a decision of this Court which was expressed as containing a definitive pronouncement of appropriate principle, requires that the evidence in question, not being before the jury at the trial, was not then available to be called by the defence. If on the contrary, the defence, knowing of that evidence, elected not to tender it, it will not be fresh evidence. Again, if it is evidence of which the accused "bearing in mind his circumstances as an accused, [...] could reasonably have been expected to have become aware and which he could have been able to produce at the trial" it will not be fresh evidence. However "great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial", it being "probably only in an exceptional case" that evidence not actually available to him is to be denied the quality of fresh evidence. So it is that it is evidence which is "actually or constructively available" to the accused but is not called by him that is spoken of as lacking the quality of fresh evidence. These passages all appear in the judgment of the Chief Justice in Ratten's Case , with whose judgment three other members of the Court concurred.

[210]

A criminal trial, no less than a civil action, is of course an adversary proceeding in which each party "must bear the consequences of his own decision as to the calling and treatment of evidence at the trial". But, if for want of knowledge of particular evidence, there has perforce been no making of a decision against adducing it, and if that want of knowledge is not so unexplained as to lead to the inference that it was the product of an intentional failure to make inquiries, it should, in my view, indeed be "only in an exceptional case" that evidence not called because not known to be available is denied its character of fresh evidence. See also Regina v Ilic and Sammut (2000) 118 A Crim R 378 at 387 ; Regina v Abou-Chabake (2004) 149 A Crim R 417 at 428. 175 Although there must be considerable misgivings as whether Mr Barber's report can properly be regarded as "fresh evidence", in deference to the detailed submissions which have been advanced by the parties, it is appropriate to examine the question of the cogency of the material on which the appellant relies. 176 Constable Fotopoulos and Constable Patrech each gave evidence as to their respective positions at the time when the shots were fired at them, as well as to the direction and position from which the shots had come. They marked those locations on diagrams which were provided to them for that purpose. The position in which the self-loading pistol which the shooter had used, as well as the position in which the appellant was lying wounded on the tennis court when found by police, were also indicated. Also marked were the positions in which the various spent cartridges that had been fired were located. 177 Mr Barber, and the Crown's expert (Mr Jackson) were in agreement that the weapon used by the shooter "ejects fired cartridge cases to the right rear quadrant" when the weapon is held in the conventional position. Mr Barber expressed the opinion that, if the position which was marked on the diagram to indicate the area in which the appellant was located was correct, "then you would expect to find the fired cartridge cases on the southern side of that area (that is, to the appellant's right) not the northern side, which supports Mr Kanaan's version that another person was firing a weapon on his left side". It is not entirely clear what the source of that version was, since the evidence which the appellant gave at the aborted trial (in which by agreement his evidence from the previous trial was read) only referred to the shooter, whom he assumed was Rossini, being by his side without specifying on which side he was. 178 Mr Jackson (the Crown's expert) gave evidence in the White City trial that the position in which the fired cartridge cases were located was capable of being influenced by various factors, including the fact that fired cartridge cases bounce when they strike a hard surface such as a tennis court. Accordingly, the positions in which they were located was not necessarily where they had initially hit the ground. Mr Jackson also said that the position in which a cartridge case first came into contact with the ground was influenced by the manner in which the gun was held - that is, whether it was held in the conventional position or was tilted in some way. Another important factor, he said, was which hand the shooter had used. That was of significance, especially as the evidence indicated that the appellant was left-handed. Furthermore, the cartridge cases were scattered around. It is not inconceivable that at least some of them were inadvertently moved by those police or ambulance officers who initially arrived at the scene at a time when it was still in near total darkness. 179 The opinion of Mr Barber (the appellant's expert) was also based on the assumption that the appellant remained stationary in the one position throughout the incident - namely, the position in which he was found. That is highly unlikely, especially as he was shot no fewer than seven times. That fact alone suggests that he would have moved his position. Indeed, some of the shots were to the front of his body, and others, including one which struck him in the buttock area, clearly hit him from behind. The appellant was, after all, in the process of endeavouring to avoid being apprehended by the police. But, in any event, the appellant conceded in his own evidence that he moved at various stages after having been shot. 180 There are other factors which also need to be considered. Constable Fotopoulos said that he fired at the muzzle fire, because clearly that is what he took to be the position of the shooter. It would have been somewhat remarkable in those circumstances (having fired thirteen shots in all) were he to have failed on any occasion at all to hit the shooter (that is, Rossini on the appellant's version), but had nonetheless managed inadvertently to have shot the appellant (who, on his own version, was not the shooter) on at least six separate occasions. In any event and without going to the details of it, the evidence of Constable Fotopoulos, and especially that of Constable Patrech (although not without its difficulties), was capable on its own of establishing that the appellant was the shooter. Although neither of them was able to give direct evidence that the appellant was the shooter, such an inference was undoubtedly open - particularly as each of them was aware of there being only one person on the tennis court at the time of the shooting, or indeed at any subsequent time. 181 The material now put forward by Mr Barber on behalf of the appellant in that context does not persuade this Court that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant in the present trial had the fresh evidence from Mr Barber been before it. One other feature of the case should be referred to. The appellant conceded in his evidence in the White City trial that he had been in possession of a loaded weapon during the course of the incident which led to his arrest. He maintained, however, that he had discarded it before climbing over the fence. In the circumstances, it would have been forensic folly of the highest order to seek to introduce all of this highly prejudicial material at any retrial in the Five Dock matter, even if Mr Barber's report had been available. No competent counsel would have contemplated doing so or would contemplate doing so in the event of a new trial being ordered. 182 Ground 6 is not made out. 183 Accordingly the appeal against conviction is dismissed.

[223]

[31] The Crown submits that:- The offender displayed an appalling indifference to human life and suffering and a cold-blooded callousness. His indication that he would act the same way again in similar circumstances raises concerns about whether he poses a continuing danger to the community. [32] I agree. 188 The appellant was 26 years old at the time of sentence. At the time of these offences he had an insignificant criminal record. There was tendered on his behalf a report from a psychologist, Terry Kerby-Smith. It would appear from the report that the applicant had had an unremarkable upbringing. Moreover, he had had educational opportunities which included attending university. At one stage, he had aspirations of joining the Australian Federal Police. Subsequently, he found employment in the computer business. 189 Having indicated that he would reject as completely self-serving the remaining statements which were made by the appellant and which appeared in the psychologist's report, the judge continued: [44] In Regina v Barac [1999] NSWSC 61, in the context of a submission by the Crown that the life sentence should be imposed, I considered the psychological and personality defects of the prisoner as might go to show dangerousness. In that case I was not satisfied of the circumstances of heinousness or aggravation such as is discussed in Garforth (supra) and Regina v Twala (CCA, unreported 4 November 1994). I did, however, conclude that the prisoner was dangerous. That conclusion, had I concluded that the level of culpability in the commission of the offence was as extreme as s 61 of the Crimes (Sentencing Procedure) Act 1999 requires, would have meant that the community interest in retribution, punishment, community protection and deterrence could only have been met by the imposition of the life sentence. In that case, I concluded that, with appropriate treatment, there was a prospect that the prisoner's behaviour might be modified and that he was prepared, whilst in custody, to work towards rehabilitation.

[227]

[52] The youth of the offender is, of course, entirely relevant to whether the community should for the rest of the offender's life be protected from him. The legislature has chosen to provide for a life sentence in the absence of any possible consideration for parole in the circumstances where the culpability of the offender's behaviour as judged now appears to require the community to be protected from him for the rest of his days. […] I am firmly of the view that, having regard to the multiplicity of offences, the two killings, in the context of the wounding of Mr Singleton, and also the total culpability of the offender for the three offences, the sentence of life imprisonment for each of the murders is the only appropriate sentence. 190 It may be accepted, as counsel submitted, that there was no direct evidence as to the appellant's state of mind. Accordingly, the sentencing judge's conclusions depended on the drawing of inferences and, as already stated, the judge had to be satisfied beyond reasonable doubt that the appellant discharged the weapon with an intention to kill before he could sentence him on that basis. In those circumstances, the required inference had to be the only rational or reasonable inference available from the evidence: Knight v The Queen (1992) 175 CLR 495 at 502-503, 509-510. 191 The issue here differs from the issue which arose earlier in relation to whether there was a viable case of manslaughter to be left to the jury (see pars [94]-[98] supra ). In relation to that issue, the inferences available in relation to the elements of manslaughter had to be viewed in relation to certain findings of fact which were open to the jury on the evidence. There, it was necessary to consider only those available findings of fact which made a verdict of manslaughter open to the jury on the evidence, ignoring any evidence which tended against those findings being made which it was open to the jury to reject. The issue here also differs from the next issue which arose earlier, as to whether the absence of such an alternative verdict led to a miscarriage of justice (see pars [101]-[102] supra ). There, it was necessary to consider whether, in the light of all of the evidence (including the evidence which tended against those findings being made), the appellant lost a real chance of being found not guilty of murder but guilty of manslaughter. Here, the judge has made findings of fact. Assuming for the moment that these findings were open to him on the evidence, the issue is not whether the finding of intent to kill was open to the judge, but rather whether, based on the findings he made, the inference he drew was the only rational and reasonable one available. 192 The judge accepted the evidence of Rossini as to the actions by the appellant in discharging the weapon and as to the statement made by the appellant in the motor vehicle as they escaped from the scene. It was open to him to do so on the evidence. It was also open to him to accept the evidence of other eyewitnesses as to the actions of the appellant and, specifically, the number of shots fired and the rapidity of those shots. The ballistics evidence is also of particular importance, in that it demonstrated that the appellant discharged the weapon when it was directed at vulnerable parts of the bodies of the two deceased and Ronald Singleton, from very close range so far as two of them are concerned. He was entitled to reject the slender evidence of a struggle between the appellant and Michael Hurle.

Regina v Kanaan

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