Regina v Taouk

Crimes Act Criminal Appeal Rules Criminal Code (Western Australia) LEGISLATION CITED: Criminal Law (Detention and Interrogation) Act 1995 (Tas) Criminal Procedure Act Evidence Act

Barca v The Queen (1975) 133 CLR 82 Cutter v The Queen (1997) 143 ALR 498 George v Rockett (1990) 170 CLR 104 Hodge's Case (1838) 2 Lewin 227 (168 ER 1136) Jones v The Queen (1997) 191 CLR 439 Kelly v The Queen (2004) 78 ALJR 538 Knight v The Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 Martin v Osborne (1936) 55 CLR 367 MFA v The Queen (2002) 213 CLR 606 Nicholls v The Queen; Coates v The Queen (2005) 213 ALR 1 Peacock v The King (1911) 13 CLR 619 CASES CITED: Plomp v The Queen (1963) 110 CLR 234 Queensland Bacon Pty Limited v Rees (1965-66) 115 CLR 266 The Queen v Swaffield (1997) 192 CLR 159 R v Bunting & Wagner [2005] SASC 45 R v Crowther-Wilkinson NSWSC 70096/01; unreported 8 May 2002 R v O'Donoghue (1988) 34 A Crim R 397 R v Khouzame [2000] NSWCCA 505 R v Nelson [2004] NSWCCA 231 R v Rondo (2001) 126 A Crim R 562 Shepherd v The Queen (1990) 170 CLR 573 Thomas v The Queen (1960) 102 CLR 584 Walsh v Loughnan [1991] 2 VR 351

P Byrne SC with G Bashir - Appellant COUNSEL: D Frearson SC - Crown

C Bilinsky (Horowitz & Bilinsky) - Appellant SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) - Crown

IN THE COURT OF CRIMINAL APPEAL 2004/3085 CCAP

JAMES J HISLOP J HALL J

Tuesday 7 June 2005 REGINA v Simon (Eid) TAOUK Judgment 1 JAMES J: Simon Taouk appealed against his conviction, after a trial in the Supreme Court before Barr J and a jury, on two charges of murder, that on 29 September 2002 he murdered Tony Taouk and that on the same date he murdered Salam Taouk. Salam Taouk was the appellant's wife. Tony Taouk was the appellant's brother-in-law, being a brother of Salam Taouk. 2 The appellant and Salam Taouk had been married for about thirty years. In 1972 they had migrated to Australia from Lebanon with their infant daughter Hala. In Australia five further children of the marriage were born: Maroun, a son, who was born in April 1974; Myrna, a daughter, who was born in July 1978; Madeline, a daughter, who at the time of the trial in May 2004 was twenty-four years old; Helen, a daughter, who was born in November 1980; and Mark, a son, who was born in March 1982. 3 For some years down to 29 September 2002 the appellant, his wife Salam and their five children Maroun, Myrna, Madeline, Helen and Mark lived in a two storey house in Redmyre Road, Strathfield. There were a number of bedrooms in the second storey of the house. The appellant and his wife shared a bedroom, which on plans of the second storey of the house which were admitted into evidence at the trial was described as being bedroom 1. As at 29 September 2002 Maroun and Mark were sharing a bedroom (bedroom 3); Myrna and Madeline were sharing a bedroom (bedroom 5); and Helen had her own bedroom (bedroom 2). All of the bedrooms opened on to a common hallway. 4 As at 29 September 2002 Tony Taouk had been living in Australian for about one and a half years. While in Australia he had stayed either at the appellant's house or at the house at Guildford of Mrs Zakie (Nahla) Estaphan, a sister of Tony Taouk and Salam Taouk. When staying at the appellant's house Tony Taouk occupied a bedroom on the second storey described as bedroom 4 in plans of the second storey of the house admitted into evidence at the trial. Bedroom 4 also opened on to the common hallway. 5 At the trial each of the five children who lived in the house gave evidence about his or her movements on Saturday 28 September 2002 and in the early hours of Sunday 29 September 2002 and about what happened, so far as the witness knew, in the early hours of Sunday 29 September 2002. I will now briefly summarise the evidence of these witnesses, in the order in which they gave evidence at the trial.

Madeline Taouk 6 Madeline Taouk gave evidence that on the evening of Saturday 28 September 2002 she had returned home with her sister Myrna, whom she had met in the city. Later on the evening of 28 September 2002 Madeline Taouk went out with her mother (Helen Taouk gave evidence that she accompanied Madeline and their mother). Madeline Taouk dropped her mother off at her mother's sister's, Mrs Estaphan's, house at Guildford. Madeline Taouk picked up a friend and proceeded to her own sister Hala's house at Guildford. She spent about three hours at her sister's house or the house of a friend. 7 Subsequently Madeline proceeded to Mrs Estaphan's house, arriving there at about 1 o'clock. At some time before 2 o'clock Madeline, her mother and her sister Helen left Mrs Estaphan's house and travelled home. 8 Madeline Taouk saw her father outside the house near the front door. She, her mother and Helen entered the house. Inside the house she heard her father "lecturing" her mother "about getting the girls home before 2 o'clock". While Madeline Taouk was still in the downstairs part of the house, her brother Maroun arrived home. Tony Taouk came into the house "not more than fifteen minutes" after Maroun came in. 9 When Madeline Taouk went upstairs, her sister Myrna was asleep in the bedroom they shared. Madeline made preparations to go to bed but before she actually went to bed she heard "loud bangs" and Tony Taouk's voice. She could not hear what Tony Taouk was saying. Madeline Taouk came out of the bedroom and saw her mother lying on the floor in a corner of the hallway. She saw some of her brothers and sisters coming out into the hallway. She did not see either her father or her uncle. 10 One of her brothers and sisters telephoned for an ambulance using a mobile telephone and one of them telephoned for an ambulance using a landline. Ambulance officers and then police officers arrived at the house. After the police had arrived at the house, the body of Tony Taouk was discovered lying in the backyard of the house.

Helen Taouk 11 Helen Taouk gave evidence that on the evening of Saturday 28 September 2002 she and her sister Madeline dropped her mother off at her mother's sister's, Mrs Estaphan's house, and Madeline and Helen proceeded to a friend's house. 12 Between about 1 o'clock and 1.30 in the morning of 29 September Madeline and Helen arrived at Mrs Estaphan's house to pick up their mother. They remained at Mrs Estaphan's house for a while. Mrs Taouk, Madeline and Helen left Mrs Estaphan's house, dropped off a friend who had been with them and returned to the house at Strathfield, arriving there after 2 o'clock. 13 Mrs Taouk, Madeline and Helen entered the house. The appellant, who was in the living room on the ground floor of the house, asked "why you late?" and gave Mrs Taouk, Madeline and Helen "a lecture". 14 While Helen was still in the downstairs part of the house, her brother Maroun arrived home. Maroun said to the appellant, "what's wrong? Why you arguing at this time?" The appellant "nudged" Maroun on the shoulder. Maroun then went upstairs. 15 Helen went upstairs, entered her bedroom and prepared to go to bed. About ten minutes after Helen had gone upstairs and entered her room, she heard "loud shots". She heard her brothers and sisters shouting. She went out into the hallway and saw her mother lying on the floor, with one of her sisters attempting to resuscitate her. Helen telephoned for an ambulance, using her mobile telephone. She did not see the appellant or her uncle anywhere in the house. Ambulance officers and then police officers arrived at the house. After the police officers had arrived, the body of her uncle was discovered in the backyard of the house.

Mark Taouk 16 Mark Taouk gave evidence that during the day on Saturday 28 September 2002 he had been working. In the evening he left the house at Strathfield and spent some time with a girlfriend. He returned to the house at Strathfield between about 11.30 and midnight. 17 When Mark Taouk arrived home, the appellant was watching television in the living room on the ground floor. Mark Taouk went into the front room on the ground floor of the house, where there was another television set, and himself watched television. He went to sleep on a mattress in the front room. 18 At about 2.40 he "was woken up by some loud kind of snapping noises, which I later figured out were gunshots". He heard his sister screaming. He got up and went up the stairs to the first floor landing, where he saw his mother lying on the floor. While he was still in the downstairs part of the house he did not see anybody.

Myrna Taouk 19 Myrna Taouk gave evidence that during the day on Saturday 28 September 2002 she had worked in the city in her occupation as a tax consultant. At about 6.30 in the evening she returned home with her sister Madeline, whom she had met in the city. 20 Madeline Taouk and Salam Taouk left the house together at a time which Myrna Taouk estimated as being 8 or 8.30. Tony Taouk and Joseph Taouk (a relative) arrived at the house at about 9 or 9.30. Tony Taouk, Joseph Taouk and Maroun Taouk left the house together. At about 11 o'clock Myrna Taouk, who had remained at home, went upstairs and went to sleep in her bedroom. 21 Myrna Taouk was woken by a noise which she described as "a bang". In the hallway she saw her brothers and sisters in a "disoriented" state and she saw her mother slumped on the floor in a foetal position with blood surrounding her. Myrna Taouk attempted to administer cardio-pulmonary resuscitation to her mother. She did not see either her father or her uncle Tony Taouk in the upstairs part of the house.

Maroun Taouk 22 Maroun Taouk gave evidence that during the day on Saturday 28 September 2002 he had been working. In the evening he was dozing on a couch at the home at Strathfield when Tony Taouk and Joseph Taouk arrived at the house. At about 10.30pm Maroun Taouk, Tony Taouk and Joseph Taouk left the house at Strathfield and went to the Coogee Bay Hotel, where they had some drinks. After leaving the Hotel they went to a nightclub and then a sports club. Joseph Taouk drove Maroun Taouk and Tony Taouk back to the house at Strathfield. Maroun Taouk got out of the vehicle and walked into the house through the rear door. He was intoxicated. 23 Inside the house the appellant was arguing with Maroun Taouk's sisters Madeline and Helen. The appellant touched Maroun on the shoulder. Maroun said, "look, can you stop screaming. You'll wake someone up". Maroun Taouk then walked up to his bedroom and "crashed out" on his bed, without taking his clothes off. 24 The next thing Maroun Taouk heard or saw was the sound of "fire crackers, they were gunshots". He also heard screaming. He opened the door of his bedroom and saw his mother lying on the floor on her back in the hallway outside her bedroom. He noticed blood coming from behind her right shoulder. He saw his sisters in the hallway but did not see either his father or Tony Taouk in the upstairs area of the house. 25 Maroun Taouk made an emergency telephone call and asked for an ambulance. Ambulance officers and police entered the house. At some time after the police arrived a police officer told members of the family that another body, the body of Tony Taouk, had been discovered lying outside the house. 26 I will now briefly refer to some other parts of the evidence given at the trial. 27 A police officer Constable Munro gave evidence that in the early morning of 29 September 2002, while Constable Munro was on duty at Burwood Police Station, the appellant entered the police station and had a conversation with Constable Munro, in which, according to Constable Munro, the appellant said a number of things incriminating him in the shooting of the victims. I will refer more fully to this evidence, when I deal with the appellant's grounds of appeal against his conviction. 28 After Constable Munro's initial conversation with the appellant Constable Munro consulted a more senior officer at the police station and other police officers had conversations with the appellant. 29 The appellant was interviewed by police in an electronically recorded interview commencing at 11.58am on 29 September 2002. I will refer more fully to this interview in dealing with the appellant's grounds of appeal against his conviction. 30 At the trial there was evidence that six projectiles had been fired inside the house from a firearm, which had never been found. 31 One fired bullet was recovered from the body of Tony Taouk, when a post mortem examination was performed on his body. Another fired bullet was recovered from the body of Salam Taouk, when a post mortem examination was performed on her body. 32 Part of a fired bullet was found embedded in the lintel above the door to bedroom 2. In the opinion of a ballistics expert, the position of the bullet and associated damage observed by the expert were consistent with a bullet having been discharged from a firearm in the vicinity of the first floor hallway. 33 A fired bullet was recovered from the floor of bedroom 2. In the opinion of the ballistics expert the position of the bullet and associated damage observed by the expert were consistent with a bullet having been discharged from a firearm in the vicinity of the first floor hallway. 34 A fired bullet was found on the bed in bedroom 4. In the opinion of the ballistics expert, the position of the bullet and associated damage observed by the expert were consistent with the bullet having been discharged either from inside bedroom 4 or in the vicinity of the first floor hallway. 35 Further damage observed by the expert indicated, in the expert's opinion, that a further bullet had been fired, which had passed through bedroom 4 and gone out through the window of bedroom 4. This bullet was never recovered. 36 As will be apparent from my brief summaries of the evidence of the appellant's children, none of the children witnessed the shooting of either Salam Taouk or Tony Taouk. In the absence of any direct evidence from a witness that it was the appellant who had shot either Salam Taouk or Tony Taouk, the Crown's case on both charges was, to a large extent, a circumstantial one, although the Crown also relied on admissions which the Crown said the appellant had made to Constable Munro and in the recorded interview. I will consider the evidence relied on by the Crown in dealing with the ground of appeal against conviction that the verdicts of guilty were unreasonable, having regard to the evidence. 37 The appellant did not give evidence at the trial and did not call any evidence. The principal submission made by counsel for the appellant at the trial was that the jury could not be satisfied beyond reasonable doubt that it was the appellant who had fired the fatal shots. It was submitted that the jury should conclude that it was Tony Taouk who had produced the gun and that it was at least reasonably possible that it was Tony Taouk who had fired both of the fatal shots. 38 I will now turn to the grounds of appeal against conviction.

1. The trial judge erred in admitting disputed evidence of admissions which were not electronically recorded but which were said to have been made by the appellant to Constable Munro at Burwood Police Station on the morning of Sunday 29 September 2002 39 I have already mentioned that a police officer Constable Munro gave evidence at the trial of a conversation he said he had had with the appellant in the early morning of 29 September 2002. Constable Munro gave evidence that at 3.15 in the morning, while Constable Munro was on duty as a station officer at Burwood Police Station, a male person, who he subsequently came to know was the appellant, had come into the police station. Constable Munro's evidence continued:- "I approached the counter and the defendant (that is, the accused) said to me 'I want to report a disturbance at my house' I said: 'what's happened?' He said: 'I have just shot someone at my house. I had an argument with my brother and he had a gun. I took it off him and I fired a few shots'. I said: 'Is anyone hurt?' He said: 'I don't know'. I said: 'What's the address'? He said: '61 Redmyre Road Strathfield.' I said: 'Just a moment'".

Constable Munro gave further evidence that he then spoke to a more senior officer, that he saw other police officers speak with the appellant in a conversation which he did not hear and that he saw the appellant being escorted towards the custody area of the police station. 40 The evidence Constable Munro gave at the trial which I have summarised or quoted was contained in pars 1-7, 9 and 10 of a statement Constable Munro had made. The evidence of the conversation which I have quoted was contained in par 4 of the statement. In par 8 of his statement Constable Munro gave an account of a further conversation he said he had had with the appellant later on 29 September 2002. 41 About ten minutes after the first conversation occurred Constable Munro made entries in his police note book about the conversation. These entries made in Constable Munro's note book were not shown to the appellant. 42 Other police officers who were at the Burwood Police Station on the morning of 29 September 2002 made statements in which they gave accounts of conversations which they said they had had with the appellant or which they said they had heard other police officers have with the appellant, after the appellant had had the first conversation with Constable Munro. None of these conversations had been electronically recorded. 43 As I have already mentioned earlier in this judgement, the appellant was interviewed by police in an electronically recorded interview, which commenced at 11.58am on 29 September 2002. The interview was conducted through an Arabic interpreter. A recording of the interview was admitted into evidence at the trial. 44 In the interview the appellant agreed that he had attended Burwood Police Station that morning. He agreed that he had said "I want to report a disturbance at my house" and that a police officer had asked "what's happened?" However, the appellant denied that he had said "I have just shot someone at my house". He asserted that he had said, "Tony shot somebody in my house and I tried to stop him". The appellant denied that he had used the word "brother" and asserted that he had used the word "brother-in-law". The appellant asserted:- "I said I mentioned my brother-in-law, my brother-in-law, I said he came last night to my place and he was carrying a, carrying a gun and he was shooting at the peoples, and he tried, and he tried to shoot me and I tried to help him and then he kept shooting at a lot of others who got shot".

In the interview the appellant said that he had told the police officer (Constable Munro) that he had taken the gun from his brother-in-law. 45 At the trial counsel then appearing for the appellant objected to evidence being admitted of the conversations the police officers said in their statements they had had with the appellant or had heard other police officers have with the appellant on the morning of 29 September 2002. The objection was primarily based on s 281 of the Criminal Procedure Act. 46 Section 281 of the Criminal Procedure Act is in the following terms:- "281 Admissions by suspects (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. reasonable excuse includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. tape recording includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording". 47 At the trial counsel then appearing for the appellant initially included, in the evidence he was objecting to, any evidence from Constable Munro of his first conversation with the appellant, after the point where Constable Munro asked "what's happened?" (trial transcript page 11 lines 7-15). However, soon afterwards counsel for the appellant at the trial changed his position. The following exchange occurred between the trial judge and counsel for the appellant at the trial (trial transcript page 12 line 5 - line 53):- "HIS HONOUR: I asked about paragraph (a) (of s 281(1)): How do you come within paragraph (a)? You have to show that at the time Mr Taouk said these words, he was or could reasonably have been suspected of having committed an offence. SPENCER: 'I have just shot someone'. HIS HONOR: They're the words you're objecting to? SPENCER: Your Honour is right but once that is said, he must then become a suspect. Once those words are used. 'I've just shot someone at my house. I had an argument with my brother and he had a gun. I took it off him and I fired a few shots'. Once that is said, clearly Mr Taouk is a suspect. Anything following that must be recorded, unless reasonable excuse is tendered for it not being done. HIS HONOUR: Is it appropriate, then, to distinguish between the words in which the accused said what had happened and the continuation of the conversation?. SPENCER: Yes, your Honour. There is little doubt the officer couldn't have know anything about it at that time. But once those words were used, he must have a real suspicion of a crime and then he goes on to further questioning. HIS HONOUR: So you say that when Constable Munro was told that the accused had shot someone, the accused could reasonably have been suspected, by him, of having committed an offence? SPENCER: Yes your Honour. HIS HONOUR: Yes, I follow that. That would leave the words untouched by the section, though, wouldn't it, up until those words were said? SPENCER: Yes. HIS HONOUR: 'I have just shot someone at my house. I had an argument. He had a gun and I took it off him and fired a few shots'. SPENCER: Constable Munro couldn't know anything about that until after he was told. The rest of it is objected to for those reasons". 48 Accordingly, counsel for the appellant at the trial did not ultimately object to evidence being given of the appellant's first conversation with Constable Munro on the ground that the evidence was rendered inadmissible by s 281. 49 However, it was submitted by counsel for the appellant at the trial that the evidence which the Crown proposed to adduce of other conversations with the appellant was evidence of admissions to which s 281 applied, being admissions made by an accused person who, at the time the admissions were made, was or could reasonably have been suspected by an investigating officer of having committed an offence and as being admissions otherwise falling within s 281(1); that there was no tape recording of the admissions within par (a) of s 281(2); that the prosecution could not establish that there was a reasonable excuse within par (b) of s 281(2) as to why a tape recording within par (a) could not have been made; and consequently, evidence of the other conversations should not be admitted. 50 After hearing argument on the admissibility of evidence of the other conversations Barr J delivered a judgment. In this judgment his Honour said that s 281 of the Criminal Procedure Act did not apply to the first conversation Constable Munro said he had had with the appellant. His Honour said in par 3 of his judgment:- "Constable Munro did not know the accused and did not know, until the accused told him, that there had been a shooting at his house. It seems to me that Constable Munro did not suspect and had no reason to suspect that the accused had committed any offence. Section 281 of the Criminal Procedure Act therefore has no application to the first conversation that he and the accused had. In my opinion the whole of the contents of paragraph 4 of Constable Munro's statement is admissible and subject to any objection on any different ground ought to be admitted into evidence". 51 However, his Honour proceeded to hold that s 281 of the Criminal Procedure Act did apply to the second conversation Constable Munro had had with the appellant, as set out in par 8 of Constable Munro's statement, and to all the conversations the other police officers had had with the appellant. His Honour found that the police officers who had been informed, directly or indirectly, by Constable Munro of what the appellant had told Constable Munro in his first conversation with Constable Munro must have suspected that the appellant had committed an offence. There had been no tape recording of any of these conversations and the prosecution had not established that there was a reasonable excuse as to why a tape recording could not have been made. 52 Accordingly, Barr J ruled that evidence of the first conversation with Constable Munro was admissible but that evidence of all of the other conversations was rendered inadmissible by s 281. 53 On this appeal counsel for the appellant submitted that the trial judge had erred in admitting evidence by Constable Munro of the first conversation Constable Munro said he had had with the appellant. It was submitted that, as soon as the appellant said to Constable Munro "I want to report a disturbance at my house" the appellant became a person who could reasonably have been suspected by Constable Munro of having committed an offence. 54 It was pointed out by counsel for the appellant that the word "could" in the expression "could reasonably have been suspected" in s 281(1)(a) was different from the word "ought" in the corresponding part of s 424A of the Crimes Act, a predecessor of s 281, and it was submitted that the expression "could reasonably have been suspected of having committed an offence" was wider than the expression "ought reasonably to have been suspected of having committed an offence". Counsel for the appellant referred to an unreported judgment of Bell J in R v Crowther-Wilkinson NSWSC 70096/01 8 May 2002, in which her Honour said at par 31 with reference to s 424A of the Crimes Act and the then s 108 of the Criminal Procedure Act, which was in the same terms as the present s 281:- "It may be that the class of persons who "could reasonably have been suspected by an investigating official of having committed an offence" is broader than the class of persons who "ought reasonably to have been suspected by an investigating official of having committed an offence". 55 Counsel for appellant referred to the recent decisions of the High Court in Kelly v The Queen (2004) 78 ALJR 538 and Nicholls v The Queen; Coates v The Queen (2005) 213 ALR 1. In Kelly the appellant, who had been arrested on a charge of murder, was interviewed by police at a police station in an interview which was electronically recorded. During the interview the appellant said that a statement made by him in an earlier conversation with police, in which he had implicated himself in the murder, had been made as a result of threats by a police officer. About half an hour to an hour after the electronically recorded interview had finished, while the appellant was still at the police station, the appellant, according to police officers, admitted that the allegation that he had made against the police officer during the interview was false. The appellant's admission was not made in response to any questioning by police. 56 In Kelly the majority of the High Court (Gleeson CJ, Hayne and Heydon JJ) held that evidence of the admission was not excluded by s 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas), a provision in similar but not identical terms to s 281 of the Criminal Procedure Act, because the admission had not been made "in the course of official questioning". The other members of the Court (McHugh J and Kirby J) dissented. 57 In Nicholls v The Queen; Coates v The Queen the only ground of appeal relevant to the present appeal was Coates' first ground of appeal. 58 Coates had been interviewed by police at a police station in an interview which was videotaped. During a break in the videotaped interview, which police asserted had been initiated by Coates, and while filming was suspended, Coates, according to police officers, made a number of admissions. When the videotaped interview was resumed the admissions were not put to Coates or confirmed by Coates. 59 It was held by the trial judge and by the Western Australian Court of Criminal Appeal that evidence of the admissions was not excluded by s 570D of the Criminal Code (Western Australia), a provision in similar but not identical terms to s 281 of the Criminal Procedure Act, for the reason that the prosecution had established that there was a reasonable excuse for there not being a recording of the admissions. The majority of the High Court (McHugh, Gummow, Kirby and Callinan JJ) held that there had not been any reasonable excuse for there not being a recording of the admissions and that evidence of the admissions had been wrongly admitted. The other members of the Court (Gleeson CJ, Hayne and Heydon JJ) dissented. 60 It was submitted by counsel for the appellant in the present appeal that the judges forming the majority in Coates, which was the later of the two decisions, had held that a statutory provision of the nature of s 570D of the Criminal Code (Western Australia) should be given a purposive construction (McHugh J at 28-30 (98-108), Gummow and Callinan JJ at 42-44 (149-157) and Kirby J at 57-59 (212-221) 61 In Coates McHugh J at 28 (98) and Gummow and Callinan JJ at 42-43 (150) referred to what Gleeson CJ, Hayne and Heydon JJ had said in their joint judgment in Kelly at 548 (420), that the purpose of legislation of this nature is to overcome problems with so called "verbals", that is disputed evidence of alleged oral admissions made to police officers, including "the possibility of police fabrication and the ease with which experienced police officers can effectuate it, frequent lack of reliable corroboration of the making of the statement and the practical burden on an accused person seeking to create a reasonable doubt about the police evidence". 62 It was submitted by counsel for the appellant in the present appeal that s 281 of the Criminal Procedure Act is a legislative provision of the same nature as s 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) and s 570D of the Criminal Code (Western Australia), that its purpose is the same as the purpose of those legislative provisions and that, in accordance with the judgments of the majority in Coates, s 281 should be given a purposive interpretation so as to effectuate its purpose. 63 Counsel for the appellant contended that, if proper regard was had to the use of the word "could" in s 281(1)(a) and if s 281(1)(a) was given a purposive interpretation, then this Court should hold that the trial judge had erred in not finding that, as soon as the appellant said "I want to report a disturbance at my house", the appellant became a person whom Constable Munro could reasonably have suspected of having committed an offence. 64 It was contended that such a conclusion would be supported by the time of the night at which the appellant had presented himself at the police station and by the fact that the appellant's subsequent disclosures to Constable Munro were not spontaneous but were made in response to a question asked by Constable Munro ("what's happened?") 65 It was submitted by the Crown on this appeal that Constable Munro could not reasonably have suspected the appellant of having committed an offence, at the stage where the appellant had merely said "I want to report a disturbance at my house". 66 As has already been shown, counsel who appeared for the appellant at the trial did not ultimately object to Constable Munro giving evidence of his first conversation with the appellant. Consequently, the leave of this Court under r 4 of the Criminal Appeal Rules is required in order for the appellant to rely on this ground of appeal. 67 However, although evidence of the first conversation was not ultimately objected to by counsel for the appellant at the trial, that evidence was closely linked to evidence which was objected to and the trial judge in his judgment gave consideration to whether evidence by Constable Munro of his first conversation with the appellant was admissible and made an explicit ruling that the evidence was admissible. In these circumstances, I do not consider that this Court should dispose of this ground of appeal, by refusing leave under r 4. 68 In his judgment the trial judge found that at the time of his first conversation with the appellant Constable Munro "did not suspect and had no reason to suspect that the accused had committed any offence". 69 It was submitted, rather faintly, by counsel for the appellant that in making the finding that Constable Munro "had no reason to suspect that the accused had committed any offence", the trial judge had not properly applied the terms of s 281(1)(a), that the person "could reasonably have been suspected of having committed an offence". However, the trial judge had stated the full terms of s 281 earlier in his judgment and I do not consider that it should be held that the trial judge failed to apply the terms of s 281. 70 If, as I have held, the trial judge properly applied the terms of s 281, the trial judge should, in my opinion, be regarded as having made a finding, albeit a negative finding, that it was not the case that, at the time when the first conversation occurred, the appellant was a person who either was or could reasonably have been suspected by Constable Munro of having committed an offence. Error by the trial judge in making such a finding would be established, only if there was no evidence to support such a finding (R v O'Donoghue (1988) 34 A Crim R 397, R v Khouzame [2000] NSWCCA 505). In my opinion, there was evidence to support such a finding and the first ground of appeal in the present appeal could be disposed of, simply on the basis that it has not been established that the trial judge was in error in making such a finding. I will, however, proceed to consider whether, if the matter was at large in this Court, it should be held that the admissions made in the first conversation with Constable Munro were made at a time when the appellant could reasonably have been suspected by Constable Munro of having committed an offence. 71 I accept, as was submitted by counsel for the appellant, that s 281 of the Criminal Procedure Act is in different terms from the former s 424A of the Crimes Act and is also in different terms from the interstate legislation considered by the High Court in Kelly and Coates. I also accept that there could be cases in which a person "could" reasonably have been suspected by a police officer of having committed an offence, even though it could not be said that he "ought" reasonably to have been suspected by the police officer of having committed an offence. 72 I also accept that s 281 of the Criminal Procedure Act is legislation of the same nature as that considered by the High Court in Kelly and Coates, has the same purpose as that legislation and should, in accordance with the views of the majority in Coates, be given a purposive interpretation. 73 However, in my opinion, even accepting that a purposive interpretation should be given to s 281, it is necessary that some regard be had to the actual language of s 281 and some effect be given to the word "reasonably" in the expression "could reasonably have been suspected". A person could not reasonably have been suspected by a police officer of having committed an offence, unless something has been said or done which would provide some grounds for a police officer reasonably suspecting that the person has committed an offence. 74 In my opinion, the attendance by the appellant at a police station, even in the early hours of the morning, and the saying by the appellant to a police officer of words to the effect that the appellant wished to report some untoward occurrence which had happened at his house did not provide any grounds on which the police officer could reasonably have suspected that the person had committed an offence. The police officer could reasonably have formed the view that the appellant was seeking to report an occurrence at his house of which he had been the victim or which he had witnessed but not an occurrence involving the commission by the appellant himself of some offence. It is common for members of the public to report to police crimes of which they have been the victims. It is much less common for members of the public to report to police crimes which they have themselves committed. 75 After the appellant had told Constable Munro that he wished to report a disturbance, Constable Munro asked the appellant a completely non-leading question "what's happened?" and the appellant in a few, very brief sentences, uninterrupted by any further question from Constable Munro, told Constable Munro what had happened. Like the trial judge and like counsel for the appellant at the trial, I consider that the appellant could not reasonably have been suspected by Constable Munro of having committed an offence, until after the appellant had completed giving his brief account of what had happened at his house. 76 As has been shown earlier in this judgment, the issues in the High Court cases of Kelly and Coates were different from the issue in the present ground of appeal. In both Kelly and Coates the accused was clearly an actual suspect at the time when the alleged admissions were made and there was no need for the courts to consider whether, at the time the alleged admissions were made, the accused "ought" reasonably to have been suspected by a police officer of having committed an offence (Kelly) or whether there were reasonable grounds for a police officer to suspect that the accused had committed an offence (Coates). 77 In both Kelly and Coates the accused was an actual suspect who had been or was being interviewed at a police station in an interview which was being electronically recorded. In both cases there was a much greater potential than in the present case for the police to falsely allege that the suspect had made oral admissions which were not recorded in the recorded interview or of the suspect falsely alleging that oral admissions he had in fact made had been fabricated by the police. 78 In my opinion, this part of the appellant's first ground of appeal against conviction should be rejected. 79 An alternative submission was made by counsel for the appellant that this Court should hold that evidence by Constable Munro of his first conversation with the appellant, after the appellant said "I want to report a disturbance at my house", had been erroneously admitted, because the trial judge should have excluded the evidence in the exercise of his discretion. The principal discretion which, it was submitted, the trial judge should have exercised was the discretion conferred by s 90 of the Evidence Act, under which a court may refuse to admit evidence of an admission, if the evidence is adduced by the prosecution and, "having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use the evidence". However, reference was also made by counsel for the appellant to the discretion conferred by s 138 of the Evidence Act to exclude improperly or illegally obtained evidence. 80 Counsel referred to The Queen v Swaffield (1997) 192 CLR 159, in which the discretion at common law to exclude evidence on the ground that it would be unfair to the accused to admit the evidence was discussed (for example per Toohey, Gaudron and Gummow JJ passim at 189 - 202 (53 - 92)). It was submitted that the judgments in Swaffield provide useful guidance for the application of the statutory discretion under s 90 of the Evidence Act. 81 Counsel for the appellant submitted that the circumstances which would render it unfair to the appellant to admit the disputed evidence included the following (I have to some extent re-arranged counsel's list):-

The appellant was a person from a non-English speaking background, whose ability to communicate in English was less than that of a native English speaker.

It should be found that Constable Munro had misunderstood at least one part of what the appellant had said to him. Constable Munro asserted that the appellant had said that he had had an argument with his "brother", whereas, it should be found, the appellant had spoken of his "brother-in-law".

Constable Munro's evidence was incorrect in asserting that the appellant had entered the police station at 3.15 in the morning. Records at the police station showed that the appellant was already in the custody area of the police station by 3.10.

It should be found that after the conversation with Constable Munro the appellant was not immediately arrested or cautioned or searched.

The statement allegedly made by the appellant in the conversation "I want to report a disturbance at my house", which the appellant is recorded in the interview as agreeing that he had made, might not have been accurately translated by the Arabic interpreter at the interview.

When the appellant was interviewed in the electronically recorded interview the appellant, while agreeing that certain things alleged by Constable Munro to have been said had been said, denied that he had told Constable Munro that he had shot someone and did not make any admission that he had himself fired the gun. 82 Counsel for the appellant referred to par 108 of McHugh J's judgment in Coates, where his Honour said that, even if evidence of the unrecorded admissions should not be excluded under s 570D of the Criminal Code, there was, in the circumstances, "an overpowering case" for the trial judge to exclude the evidence in the exercise of his discretion. 83 As stated earlier in this judgment, the primary ground on which counsel for the appellant at the trial submitted that evidence of conversations by the appellant with police officers should be excluded was based on s 281 of the Criminal Procedure Act. However, counsel at the trial made an alternative submission that evidence of conversations between the appellant and police officers, after the first conversation with Constable Munro, should be excluded by the trial judge in the exercise of his discretion under s 138 of the Evidence Act to exclude evidence that was obtained improperly (trial transcript p 39). As the trial judge held that evidence of conversations between the appellant and police officers, after the first conversation with Constable Munro, should be excluded under s 281, it was unnecessary for the trial judge to deal with the alternative submission that the evidence should be excluded in the exercise of his discretion under s 138. 84 At the trial counsel for the appellant expressly disavowed making any submission that any of Constable Munro's evidence had been improperly obtained. No submission was made by counsel for the appellant at the trial that any of the evidence of conversations with police officers should be excluded by the trial judge in the exercise of the discretion conferred by s 90 of the Evidence Act. Accordingly, at the trial the trial judge was not asked to exercise any discretionary power to exclude evidence by Constable Munro of his first conversation with the appellant. 85 The trial judge not having been asked to exercise the discretion conferred by s 90 of the Evidence Act so as to exclude evidence of the first conversation, it is necessary, in order for the appellant to succeed on this part of this ground of appeal, for the appellant to show that, if the trial judge had been asked to exercise his discretion, the only proper exercise of his discretion would have been to exclude the evidence R v Nelson [2004] NSWCCA 231. 86 I am not persuaded that, if the trial judge had been asked to exercise his discretion under s 90, the only proper exercise of his discretion would have been to exclude Constable Munro's evidence of the first conversation. A number of the circumstances relied on by counsel for the appellant appear to me to have little weight. The circumstances which could be regarded as having greater weight are that the appellant was a person from a non-English speaking background, whose ability to communicate in English was less than that of a native English speaker, and that the appellant, when interviewed in the recorded interview, denied that he had told Constable Munro that he had shot anyone and, when asked whether he had himself fired the gun, did not make any admission that he had himself fired the gun. 87 Much of Constable Munro's account was not disputed by the appellant in the interview. The appellant did not dispute that he had gone to the police station, that he had had a conversation with a police officer, that in the conversation he had told the police officer that he wanted to report an event which had happened at his house, that the police officer had asked him what had happened, that he had told the police officer that there had been an argument ("a fighting") between him and a male relative (although he said that the argument was with his brother-in-law and not his brother), that the other man had had a gun and that the appellant had taken the gun away from the other man. 88 The parts of the conversation as narrated by Constable Munro, which the appellant disputed ("I have just shot someone at my house…I fired a few shots") were expressed in very simple English and would not have been beyond the capacity of a person with a quite limited knowledge of English. 89 In the interview the appellant gave little additional information about what had happened at the house. He asserted that, after he took the gun from his brother-in-law, "I lost control" and "I don't remember what happened after that". The present case was not a case in which the accused person had given a detailed account in a recorded interview of what he said had happened. 90 In the present case the interview commenced eight or nine hours after the conversation took place and the appellant would have had an opportunity, after the conversation and before the interview commenced, to give further consideration to his position and possibly change his account. This was not a case in which a disputed conversation was alleged to have taken place during a break in an electronically recorded interview or shortly after an electronically recorded interview had been completed. 91 I am also not persuaded that, if the trial judge had been asked to exercise his discretion under s 138 of the Evidence Act, the only proper exercise of his discretion would have been to exclude Constable Munro's evidence of the first conversation. The present case is quite different from the situation in Coates, as described by McHugh J in par 108 of his judgment, where the accused was an actual suspect, the accused was being formally interviewed in an electronically recorded interview, the police officers encouraged the making of off-camera admissions, despite the presence of recording equipment, and the police officers failed to refer to the alleged admissions when the recorded interview resumed. 92 In my opinion, the first ground of appeal should be rejected.

2. The directions given by the trial judge on the manner in which the jury might approach the evidence relating to finding of gunshot residue on the hands of both the appellant and the deceased Tony Taouk were erroneous and inadequate 93 At the trial Ivan Sarvas, an expert in the examination of gunshot discharge residues, gave evidence in the Crown case. 94 Mr Sarvas gave evidence that on 30 October 2002 he received eight sealed and labelled bags containing samples from:-

The hands of the appellant (the back of the right hand, the palm of the right hand, the back of the left hand and palm of the left hand).

A jumper worn by the appellant on 29 September 2002 (the right front and the left front).

The inside waistband and the pockets of track suit pants worn by the appellant on 29 September 2002.

The hands of Tony Taouk (the back of the right hand, the palm of the right hand, the back of the left hand and the palm of the left hand).

The body of Tony Taouk (the wound in his chest, elsewhere on the chest and the inside of his left arm).

The inside waistband and the pockets of the jeans worn by Tony Taouk on 29 September 2002.

8. The cavity in the roof of the garage at the house at Strathfield. 95 Mr Sarvas examined the samples he had received for particles of gunshot residues. The method used by Mr Sarvas was to determine whether there were particles in the samples which contained the elements or "components" lead, barium and antimomy. If a particle detected in a sample was found on examination to contain all three of the components, the presence of the three components in the particle would be characteristic of gunshot residue and would be definitive that the particle was a particle of gunshot residue. If a particle detected in a sample was found on examination to contain only two of those components, the presence of those two components in the particle would be indicative, but indicative only, of the particle being a particle of gunshot residue. Mr Sarvas totalled the number of three component particles and the number of two component particles he found in each of the samples. 96 Mr Sarvas gave oral evidence of the results of his examination of the samples and the results he obtained were also summarised in a table, which was admitted into evidence as exhibit T. For the purposes of this ground of appeal and the appeal generally, it is sufficient to set out certain parts only of exhibit T, arranging the sites from which samples were taken in the order which I have already given in this judgment.

Subject Description No. of 3 Components No. of 2 Components

1. Simon TAOUK gunshot discharge (hands) right back residues were not 17 detected right palm 3 20 left back 2 13 left palm 2 14
2. Simon TAOUK right front green 8 20 jumper
3. Simon inside waist & TAOUK pockets of gunshot discharge residues were not detected inside waist & pockets of trackpants trackpants
4. Tony TAOUK right back 14 19 (hands) right palm 8 26 left back 55 20 left palm 20 25
5. Tony TAOUK inside waist band 3 11 & pockets of jeans

97 It is immediately apparent from the parts of exhibit T I have reproduced that a greater number of gunshot discharge residue particles were found on the hands of Tony Taouk than on the hands of the appellant; that a much greater number of gunshot discharge residue particles were found on the left hand of Tony Taouk than were found on his right hand; that no gunshot discharge residue particles were found in the inside waistband and pockets of the track suit pants worn by the appellant; but that some gunshot discharge residue particles were found in the inside waistband and pockets of the jeans worn by Tony Taouk. 98 In examination in chief by the Crown Prosecutor Mr Sarvas gave inter alia the following evidence. 99 Mr Sarvas could not determine, from the material he had been given, who as between the appellant and Tony Taouk was more likely to have been the shooter, that is the person who had discharged the weapon. 100 How much gunshot residue would be found on a sample would depend on many factors. These factors would include how much time had elapsed since the gun was fired (the life span of particles of gunshot residue on human skin is about three hours) and whether the subject from whom the sample had been taken had been moving around after the gun was fired or had not been moving and whether a number of shots, and not a single shot, had been fired. 101 The gunshot residue found on the hands and jumper of the appellant suggested that the appellant had either discharged a firearm or had been in close proximity to a firearm when it was discharged. In cross-examination Mr Sarvas said that a third possibility, that the appellant had merely handled a gun, although it could not be excluded, was less likely. 102 The gunshot residue found on the hands of Tony Taouk suggested the same conclusion, that is that he had either discharged a firearm or had been in close proximity to a firearm when it was discharged. 103 Mr Sarvas was asked about the gunshot residue found on Tony Taouk's left hand. Mr Sarvas gave the following evidence:- "Based on the number of particles detected on the left hand of Tony Taouk it provides an inference that Tony may have discharged a weapon, based on the number of particles. However, I am also cautious of that inference in the sense that I do not know the certain circumstance that has occurred during the shooting. Counsel has brought it to attention of close proximity shooting. Now, whether a struggle had taken place, a gun had been discharged by some person, it is also possible that Tony Taouk may have had these particles deposited on him because he was at close proximity. However, it still does not deny the fact on the number of particles that still invites that inference that Tony Taouk may have fired a weapon. But it's a caution". 104 Mr Sarvas gave evidence that the gunshot residue found in the waistband and pockets of Tony Taouk's jeans "may indicate perhaps that that person has transported or held a weapon against the waistband". A gun placed in the waistband of the jeans could transfer gunshot residue on to the waistband, depending on how clean or dirty the gun was. 105 In cross-examination Mr Sarvas was asked about a passage in a report he had made, that the presence of gunshot residue on Tony Taouk's left hand invited an inference, not merely that Tony Taouk "may" have discharged a weapon but that Tony Taouk "had discharged the weapon with his left hand". 106 With respect to the gunshot residue in the inside waistband and pockets of the jeans worn by Tony Taouk, Mr Sarvas said that he did not know whether the particles came from the waistband or from the pockets of the jeans or from both the waistband and the pockets. 107 When referred to a statement in his report that the gunshot residue in the waistband and the pockets of the jeans suggested "that a firearm/revolver may have been concealed and transported within the waistband and pockets of the jeans at some time prior to shooting" he said "yes, I stand by that". 108 Evidence was given at the trial by Mrs Estaphan that her brother Tony Taouk was right-handed. 109 In the Crown Prosecutor's final address at the trial she made a submission to the effect that the jury would not consider it reasonably possible that Tony Taouk had shot himself, because, if Tony Taouk had been holding the gun, he would, as a right-handed person, have been holding the gun in his right hand and it would have been anatomically difficult for him to shoot himself so as to cause the gunshot wound, which was to the right side of his chest. 110 In his final address counsel for the appellant at the trial identified as an issue to be determined by the jury whether the Crown could prove beyond reasonable doubt that the appellant had fired the gun. Counsel for the appellant referred in his address to much of the evidence by Mr Sarvas which I have already quoted or summarised, including his evidence that the gunshot residue on Tony Taouk's left hand invited an inference that Tony Taouk "may have" fired the weapon with his left hand (Mr Sarvas' oral evidence) or that Tony Taouk "had" discharged the weapon with his left hand (Mr Sarvas' report) and his evidence that he "stood by" the opinion expressed in his report that a firearm might have been transported within the waistband and pockets of the jeans worn by Tony Taouk at some time prior to the shooting. 111 In his address counsel for the appellant submitted that the jury should conclude that Tony Taouk had brought the gun and that Tony Taouk had fired the gun. The following passage occurred in counsel for the appellant's final address:- "There was some suggestion by the learned Crown, as I understood her address to you and I could be corrected about this, there would be some difficulty in Tony shooting himself in the way he did. But of course she was saying that in the context, as I understood it, if Tony used his right hand. And if indeed as the evidence would suggest because of the amount of residue the firing was done with the left hand, then, as I understand it, there would be no difficulty for that wound to be inflicted during the struggle - common sense, you have seen a - fighting with the gun hand could be tested (semble twisted) around et cetera. As I understood my friend and she will correct me if I am wrong, she was only submitting it wouldn't be easy if, as I understand it, if he used his right hand. But the evidence is more probably than not, it was the left hand that fired the weapon. Because there is abundant additional residue on that hand". 112 The part of the summing-up by the trial judge on which the present ground of appeal is based was as follows (summing-up pp 79-80):- "Tony Taouk's left hand was heavily impregnated, it had a heavy amount of gunshot residue on it, much more than on his right and much more than on either of the accused's hands. However, Tony Taouk was right handed as you know. So he would not have held the gun in his left hand. Mr Spencer says that is a sign not that he fired, but that that hand was in close proximity to the gun when it was fired, which suggests a loss of control . You would not willingly, a right-handed person, lift up a gun and fire it in such a way as to cover your other hand with gunshot residue. The argument is that this was a struggle, it was out of control. How else does such a large amount of gunshot residue get onto the left hand, the non-dominant hand of the person? They were the two arguments. The Crown says to you that it would not have been possible for Tony Taouk to shoot himself. The arguments both ways are simple enough, ladies and gentlemen. It is a question, in a struggle, and Tony Taouk was holding the gun, whether his right hand can be turned round to such a degree that the muzzle of the gun could be in the position it must have been, touching his singlet, and to give him a wound where you see the wound. I think the contrary submissions are simple enough. The Crown says it would be unlikely that you would get such a wound if he were holding the gun and there was a struggle. Much more likely, the Crown says, that the accused was holding the gun right up against Tony's chest and firing with the intention of killing of course, because you would infer no lesser intent than to kill if somebody held a gun against somebody's chest and pulled the trigger". 113 It was submitted by counsel for the appellant on this appeal that in this passage in the summing-up, and particularly in the part which has been emphasised, the trial judge wrongly attributed to counsel for the appellant at the trial an argument which counsel had not put and failed to put to the jury the argument which counsel had in fact put. It was submitted that in this passage the trial judge had wrongly attributed to trial counsel an argument that the gunshot residue on Tony Taouk's left hand suggested, not that Tony Taouk had fired the gun with his left hand, but that Tony Taouk's left hand had been in close proximity to the gun at the time it was fired and the circumstance that Tony Taouk's left hand had been in close proximity to the gun at the time it was fired suggested that there had been a struggle between Tony Taouk and the appellant. On the other hand, the argument which counsel for the appellant had put, but which had not been put to the jury by the trial judge, was that the gunshot residue on Tony Taouk's left hand suggested that Tony Taouk had fired the gun with his left hand. 114 It seems to me to be correct that in this part of the summing-up the trial judge attributed to counsel for the appellant at the trial an argument which was different from, and inconsistent with, an argument counsel had in fact put and did not put to the jury the argument which counsel had in fact put. However, before this ground of appeal could be upheld, there are a number of further matters which have to be taken into account. 115 Counsel for the appellant at the trial, who is a very experienced criminal counsel, did not object to this part of the trial judge's summing-up and did not request any further direction. Even apart from the question of whether leave under r 4 of the Criminal Appeal Rules should be granted to rely on this ground of appeal, the fact that no objection was raised by counsel at the trial would suggest that it did not appear to counsel at the trial that there was any need to raise an objection. I have taken into account that trial counsel in an affidavit filed in this appeal said that he did not recall hearing the passage in the summing-up which has been emphasised and said that, if he had heard those words spoken by the trial judge, he would have sought to have them corrected. Nevertheless, I consider it significant that no objection was raised by counsel. 116 The passage in the summing-up which is relied on by the appellant occurred in a part of the summing-up in which his Honour was dealing with the element of the crime of murder, of an intent to kill or to do grievous bodily harm (summing-up pp 77-82). Earlier in the summing-up the trial judge had dealt with the element of the crime of murder, that the accused did an act causing the death of the victim. In dealing with this element at pp 61-68 of the summing-up the trial judge referred to a number of arguments which had been made by counsel, including arguments for the accused based on the evidence of Mr Sarvas. The trial judge noted that counsel for the accused had submitted that the jury should find that the gun was produced by Tony Taouk. The trial judge proceeded:- "Now if that is right that has important consequences on this question whether the accused fired the gun which killed either Tony Taouk or Salam Taouk. There was one criticism that Mr Spencer made of Mr Sarvas. He said in his report that the presence of gunshot residue on the hand of Tony Taouk gave rise to an inference that he had fired the weapon. When he gave evidence before you - that is what he said in his report. When he gave evidence before you he said it gave rise to an inference that he may have fired the weapon. Now Mr Spencer made something of that. You heard him cross-examining Mr Sarvas about that and he made a submission to you about it at the end of the case. It is a matter for you whether there is any difference in those two expressions, an inference that he did or an inference that he may have. But if there is a difference Mr Spencer says, well Mr Sarvas is leaning the Crown way a bit". 117 Accordingly, an argument that the presence of gunshot residue on Tony Taouk's hand gave rise to an inference that he had fired the gun was put to the jury in the summing-up. 118 I would refuse leave under r 4 to rely on this ground of appeal.

3. The verdicts of the jury are unreasonable having regard to the evidence 119 The principles to be applied by a Court of Criminal Appeal in deciding whether verdicts of guilty are unreasonable and cannot be supported having regard to the evidence have been stated in such cases as M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MFA v The Queen (2002) 213 CLR 606 at 622-624 (52-59). The test to be applied is whether the Court of Criminal Appeal, after making its own independent assessment of the evidence, considers it was open to the jury to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict upon the whole of the evidence. "But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations" (M v The Queen per Mason CJ, Deane J, Dawson J and Toohey J at 493). 120 It was submitted by counsel for the appellant that the present case was a case in which the Crown relied on circumstantial evidence to prove that it was the appellant who fired the shots which killed the two victims and, in order to determine whether the verdicts of guilty were unreasonable and could not be supported having regard to the evidence, the test should, in accordance with the decision of the High Court in Knight v The Queen (1992) 175 CLR 495 especially at 503 per Mason CJ, Dawson J and Toohey J, be rephrased as requiring this Court to determine whether the jury, acting reasonably, could have rejected as a rational inference the possibility that it was not the appellant, but Tony Taouk, who fired the shots which killed the two victims. 121 In his summing-up the trial judge listed the seven "circumstances" on which the Crown relied to prove that it was the appellant who had fired the shots which killed the two victims. The circumstances listed by the trial judge were:- "First, the things said by the accused to Constable Munro, the effect of which was that he had shot somebody. Secondly, the accused was not injured. Thirdly, the accused had hidden the gun. Fourthly, the accused had a motive, whereas the only other candidate, Tony Taouk, had no motive to be firing shots. Five, Salam Taouk's blood was found on the accused's tracksuit pants. Six, there was gunshot residue on the accused's hands. And, seven, some further admissions the Crown says the accused made during the recorded interview to the effect that he had earlier told the police that he had got the gun off Tony, meaning the deceased Tony Taouk, and that he had lost control". 122 At pp 18-52 of the summing-up the trial judge discussed these seven circumstances in some detail and he returned to some of them in later parts of the summing-up. 123 On this appeal counsel for the appellant submitted that there were a number of "features of the evidence" which, taken in combination, would require this Court to conclude that it was not open to the jury, acting reasonably, to reject as a rational inference the possibility that it was not the appellant but Tony Taouk who fired the shots which killed the two victims. These features of the evidence included the following:-

(i) There was no evidence of a motive or of a sufficient motive for the appellant to kill either of the victims. There was much evidence at the trial that there had been a loving relationship between the appellant and his wife and a good relationship between the appellant and his brother-in-law.

(ii) The appellant had reported the incident at his home to the police and had co-operated with the police in their investigation of the shootings.

(iii) Although it was true that the gun had not been found, it would have been inconsistent for the appellant to report the shootings and yet dispose of the gun and there was a possibility that the gun had been disposed of by one of the adult children.

(iv) A theory advanced by the Crown at the trial that the gun had been obtained from the cavity in the roof of the garage was not supported by any evidence. For example, no gunshot residues had been found in the cavity.

(v) A police dog specially trained to detect firearms and gunshot residue had picked up a scent only in the bedroom occupied by Maroun Taouk.

(vi) The fact that as many as six shots had been fired and the evidence about the four shots which had not struck either victim, including the evidence about the places where those bullets had been found, was consistent with there having been a struggle in which the gun had been discharged without having been aimed in any particular direction.

(vii) In the recorded interview the appellant demonstrated how he said Tony Taouk had produced the gun, this demonstration being consistent with Tony Taouk having pulled the gun out of the waistband of his jeans.

(viii) The bullet which caused the death of Salam Taouk was fired from a distance variously described by the expert witnesses as "indeterminate" and "distant" and this was consistent with the bullet having been fired during the course of a struggle between the appellant and Tony Taouk.

(ix) In the recorded interview the appellant denied that he had told Constable Munro that he had shot someone and the appellant said that it was Tony Taouk who had fired the gun.

(x) Tony Taouk had bruising on the knuckles of his right hand and this was consistent with the appellant's assertion in the recorded interview that he and Tony Taouk had been fighting and that Tony Taouk had "slapped" the appellant.

(xi) Tony Taouk had some experience of handling and firing guns (he had been a member of a militia in Lebanon). A number of witnesses at the trial gave evidence that they had not seen the appellant with a gun.

(xii) Mrs Lunn, a neighbour, had seen a man, who it was submitted would have been the appellant, go down the side passageway of the appellant's home and out the gate in the direction of the police station, immediately after the shots were fired.

(xiii) Mrs Estaphan gave evidence which, if accepted, would have been favourable to the Crown, that she could hear the appellant's voice in the background of a recorded emergency call made by one of the children after the shootings. However, this evidence was contradicted by Mrs Lunn's evidence of seeing a man leave the house immediately after the shootings, by evidence of all five of the adult children who said that they had not seen the appellant after the shootings and by the evidence of Mrs Estaphan's husband, who said that he could not hear the appellant's voice in the recording.

(xiv) The number of particles of gunshot residue found on the hands of Tony Taouk and particularly on the left hand of Tony Taouk and in the inside waistband and pockets of the jeans worn by Tony Taouk, and the fewer number of particles of gunshot residue found on the hands of the appellant and the absence of any particles of gunshot residue in the inside waistband and pockets of the tracksuit pants worn by the appellant suggested that it was Tony Taouk who had been carrying the gun inside his jeans and that it was at least reasonably possible that it was Tony Taouk who had fired the gun. 124 Although the trial judge in his summing-up described as "circumstances" the seven matters on which the Crown relied to prove that it was the appellant who had fired the shots which killed the victims, it is questionable whether all of these matters should be classified as being circumstantial evidence. In particular, the first and seventh matters were evidence of admissions made by the appellant. The things said by the appellant to Constable Munro, according to Constable Munro's evidence, included admissions by the appellant that he had shot someone at his house and that he had fired a few shots with a gun. Nevertheless, although the Crown case was not a wholly circumstantial case, I am prepared to accept that I should apply the test of an unreasonable verdict stated by the High Court in Knight, which, in any event, appears to me to be merely an adaptation to a circumstantial case of the general test of whether a verdict is unreasonable. 125 In my opinion, as was submitted by counsel for the appellant, the jury should have found or should have found that it was at least reasonably possible, that it was Tony Taouk, and not the appellant, who had been carrying the gun prior to the shootings. Such a finding would be supported by Constable Munro's evidence of what the appellant told him ("…he had a gun. I took it off him"), by evidence of what the appellant said in the interview ("he was carrying a gun"), by evidence of the appellant's demonstration during the interview of how Tony Taouk had produced the gun, by the evidence of gunshot residue in the inside waistband and pockets of the jeans worn by Tony Taouk and by evidence of the absence of gunshot residue in the inside waistband and pockets of the tracksuit pants worn by the appellant. In my opinion, the jury ought to have had at least a reasonable doubt that the gun had been obtained from the cavity in the roof of the garage of the house. 126 I am further of the opinion that the jury should have found, or should have found that it was at least reasonably possible, that there was a struggle in the hallway of the first floor of the house between the appellant and Tony Taouk, who at the beginning of the struggle was armed with the gun. Such a finding would be supported by Constable Munro's evidence of what the appellant told him, by answers given by the appellant in the recorded interview and by evidence of the number of shots fired and of the places where a number of the bullets were found. 127 I consider that it was open to the jury to be satisfied that in the struggle between the appellant and Tony Taouk the appellant took the gun away from Tony Taouk. Such a finding would be supported by Constable Munro's evidence of what the appellant told him ("I took it (the gun) off him") and by answers given by the appellant in the recorded interview, including the answer that he had indeed told Constable Munro that he had taken the gun from Tony Taouk (answer to question 23). 128 The jury having found that the appellant had disarmed Tony Taouk and himself taken possession of the gun, it would have been open to the jury to accept Constable Munro's evidence that the appellant told him that, having taken the gun, he fired a few shots with it. The jury, of course, had the advantage, denied to this Court, of seeing and hearing Constable Munro give his evidence. 129 The circumstance relied on by the Crown, that the gun, notwithstanding a thorough police search of the house and the adjoining area, had not been found, was a circumstance which the jury could properly have regarded as significant as demonstrating a consciousness of guilt on the part of the appellant. Neither of the victims could have disposed of the gun. All of the adult children of the appellant gave evidence to the effect that they had not disposed of the gun and there would not appear to be any ground for not accepting their evidence. According to the evidence, all of the children remained inside the house until the police arrived and then subsequently remained inside the house. By a process of elimination it could be found that the only person who could have disposed of the gun was the appellant and it could be inferred that he had disposed of the gun at some distance away from the house. 130 A further circumstance relied on by the Crown was that, according to the evidence of an analyst, there was a match between Salam Taouk's DNA and that extracted from a place on the tracksuit pants worn by the appellant, where a small reddish brown stain was detected. The stain had tested positively to a presumptive test for blood but had not been subjected to any definitive test for blood. 131 Mr Sarvas was of the opinion that the gunshot residue on the hands of each of the appellant and Tony Taouk could have been caused by firing a gun held in the hand or by the hand having been in close proximity to a gun when it was fired. 132 A much greater number of particles of gunshot residue were found on the hands of Tony Taouk than on the hands of the appellant. However, this could be explained by Tony Taouk having been shot and by his body lying immobile in the yard of the house from soon after he was shot, with the consequence that comparatively few particles of gunshot residue were dislodged from his skin; whereas the appellant had travelled from his home at Strathfield to the police station at Burwood and would have lost particles of gunshot residue from his skin on the journey. 133 Notwithstanding the large number of gunshot residue particles found on the left hand of Tony Taouk and the argument put by trial counsel which was the subject of the second ground of appeal, it seems to me to be highly improbable that Tony Taouk would have discharged the gun with his left hand. As a right hand dominant person he would surely have used his right hand in producing the gun. Although I have concluded that it would have been open to the jury to find that in a struggle between the appellant and Tony Taouk the appellant had taken the gun away from Tony Taouk, it seems to me highly improbable that in any struggle the gun would have been transferred from Tony Taouk's right hand to his left hand. In my opinion, it was open to the jury to find that the large number of particles of gunshot residue on Tony Taouk's left hand had been caused, not by Tony Taouk firing the gun while holding it in his left hand, but by his left hand being in close proximity to the gun when it was discharged by the appellant. As the Crown prosecutor submitted, it would have been physically difficult for Tony Taouk, if holding the gun in his right hand, to have shot himself on the right side of his chest. 134 It would have been open to the jury to regard some of the answers given by the appellant in the recorded interview as assisting the Crown case. Furthermore, the appellant asserted in the interview that he did not remember what had happened after he had lost control and such account as he did give, even allowing for the fact that the interview was being conducted through an interpreter, was disjointed and inconsistent. It would have been open to the jury to have formed an unfavourable view of the appellant's credibility in some parts of the interview. For example, it would seem hardly credible that the appellant, as he asserted, was unaware until told by police that his wife had been shot and was lying in the hallway of the first floor of the house. 135 I have taken into account that there was very little evidence of motive. There was, indeed, evidence of the appellant having a good relationship with both his wife and his brother-in-law. What the Crown described as evidence of motive was, at its highest, evidence by Madeline Taouk, Helen Taouk and Maroun Taouk tending to show that the appellant had become angry because his wife and two of his daughters had returned home late and because he thought, erroneously, that his wife had been out with Tony Taouk (recorded interview questions and answers 121 and 122). 136 In conducting my independent examination of the evidence I have endeavoured to take into account the circumstances relied on by the Crown, the features of the evidence relied on by the appellant and the whole of the rest of the evidence. I have concluded that it was open to the jury, acting reasonably, to reject as a rational inference the possibility that it was Tony Taouk who had fired the shots which killed the two victims. I have concluded, applying the test stated in M, that it was open to the jury, applying the criminal standard of proof, acting reasonably and having regard to the whole of the evidence, to be satisfied of the appellant's guilt. I would reject the third ground of appeal. 137 As I am of the opinion that all three of the grounds of appeal relied on by the appellant should be rejected, I would dismiss the appeal against conviction. 138 HISLOP J: I agree with James J. 139 HALL, J: The appellant was charged with two counts that on 29 September 2002, he murdered his wife, Salem Taouk, by fatally shooting her and additionally murdering his brother-in-law, Tony Taouk (his wife's brother) by fatally shooting him. The trial was conducted in the Supreme Court before Barr, J. and a jury. On 22 June 2004, the jury returned with a verdict of guilty to both counts. 140 In the early hours of Sunday 29 September 2002, the appellant presented himself at Burwood Police Station and there reported a disturbance to a Constable Munro. The evidence as to what was said by the appellant was admitted into evidence over objection. The evidence contained certain admissions said to have been made by the appellant. The relevant conversation was in the following terms;- "Appellant: I want to report a disturbance at my house. Munro: What's happened? Appellant: I've just shot someone at my house. I had an argument with my brother and he had a gun. I took it off him and fired a few shots. Munro: Is anyone hurt? Appellant: I don't know. Munro: What's the address? Appellant: 61 Redmyre Road, Strathfield. Munro: Just a moment." 141 There was further conversation with Constable Munro which was excluded from evidence, as were subsequent conversations with other officers. 142 The conversation between the appellant and Constable Munro set out above was not recorded at the time it took place either electronically or by any other means. 143 It was argued on behalf of the appellant that the provisions of s.281 of the Criminal Procedure Act 1986 (NSW) applied so as to exclude evidence of the conversation. It was contended on behalf of the appellant that by virtue of s.281(2) the conversation was not admissible as there had been no tape recording made and it had not been established that a failure in that respect was by reason of a reasonable excuse within the meaning of s.281(2) of the Act. Ground one of the appeal accordingly turns on a consideration of the provisions of that section.

Ground 1: Admitting disputed evidence of admissions which were not electronically recorded

Confessions and admissions in the course of official questioning

144 Legislation has been enacted in the Australian States and at the Commonwealth level requiring official questioning to be electronically recorded, subject to specified exceptions. 145 In Nicholls v. R; Coates v. R (2005) 213 ALR 1, the High Court (Hayne and Heydon, JJ.) observed (at 85) that an examination of legislation in other jurisdictions (together with that in Western Australia) revealed that nowhere has any legislature adopted an absolute stand against the reception of non-video taped admissions and different legislatures had made different selections of language and, to some extent, different policy choices. 146 In Kelly v. The Queen (2004) 78 ALJR 538, the High Court (Gleeson, CJ., Hayne and Heydon, JJ.) stated that the object or purpose of s.8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) was to overcome the "perceived problems" identified in many earlier cases and that the range of legislative responses shows that those problems can be overcome in different ways and to different degrees. Their Honours observed that the "purpose or object" identified does not compel any particular construction of the quite detailed language of that section:- "What the correct construction is must depend on the particular words used." (548) 147 In Kelly (supra), it was also observed that the legislation did not in terms require that the statement by way of admission be made "in response to a question put" as s.86 of the Evidence Act 2001 (Tas) does. Section 8 employs the phrase, "in the course of official questioning" as does s.281(1)(b) of the Criminal Procedure Act 1986 (NSW). This will include a confession which is entirely non-responsive to any question or is uttered during a pause in the flow of questions without being stimulated by any question (at p.549A-B). 148 The mischief behind legislation of this kind has been identified as the countering of an attack on the administration of justice by force of unreliable confessions or admissions allegedly made by suspects "during a police investigation of a serious criminal offence": McHugh, J. in Kelly at 560. 149 The provisions of s.281 of the Criminal Procedure Act 1986 (NSW) contain the following elements:-

(a) It applies to "an admission" . (b) Made by an accused person in specified circumstances, namely:- (i) who at the time the admission was made was or could reasonably have been suspected by an investigating official to have committed an offence;

(ii) was made in the course of official questioning (defined as meaning questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence ); and

(ii) That relates to an indictable offence, other than the indictable offence that can be dealt with summarily without the consent of the accused person. 150 Section 281(2) then provides that evidence of an admission is not admissible unless there is available to the court a tape recording as specified or if the prosecution establishes that there was a "reasonable excuse" as to why a tape recording … could not be made. 151 It was argued on behalf of the appellant that the trial judge had misdirected himself in interpreting the provisions of s.281(1) and misapplied the provisions of the section. In the judgment on the objection to the tender of the evidence of admissions by the appellant, the trial judge (Barr, J.) stated (paragraph 3):- "Constable Munroe did not know the accused and did not know, until the accused told him, that there had been a shooting at his house. It seems to me that Constable Munroe did not suspect and had no reason to suspect that the accused had committed any offence. Section 281 of the Criminal Procedure Act therefore has no application to the first conversation that he and the accused had. In my opinion the whole of the contents of paragraph 4 of Constable Munroe's statement is admissible and subject to any objection on any different ground, ought to be admitted into evidence." 152 The appellant relies in support of his argument on the interpretation of s.281(1) upon the difference in the phrase "could reasonably have been suspected" as distinct from the equivalent provision considered in Kelly v. The Queen, namely "who ought reasonably to have been suspected". The distinction between s.281 and s.250D of the Criminal Code (WA) considered in Nicholls & Coates was also relied upon to support the construction contended for in this case. 153 It was argued on behalf of the appellant that the phrase "could reasonably have been suspected" should be construed to mean "could have been suspected as a reasonable possibility". The appellant argued for a different interpretation to that which has been applied in relation to statutory powers of arrest or for the issue of search warrants contending that the purpose or object of the legislative provisions in question required a different and broader construction. 154 For the appellant's argument to succeed it must be possible, on the facts of the case, to demonstrate:-

• That the facts established by evidence revealed that the appellant "could reasonably have been suspected" by an investigating official of having committed an offence; and

• That the admission in question was made "in the course of official questioning" , an expression defined in the section: s.281(4). 155 As to the first of these two matters, the appellant contended that the circumstances which could reasonably have raised the suspicion included the appellant's attendance at the police station, the hour of his attendance and his statement "I want to report a disturbance at my house". Whilst, on one view, the word "report" may be said to indicate an official notification of a disturbance, it is hard to see in the use of that word in its context any implication that the appellant was reporting or about to report on his own commission of an indictable offence or that he was about to report circumstances that could constitute such an offence. The following facts in combination, in my opinion, point against the proposition that the appellant could reasonably have been suspected of having committed an offence:-

• He had not been taken to the police station by police but had travelled there and voluntarily entered it.

• He was at no time in official custody or subject to police detention.

• The appellant was the one who initiated the oral exchange.

• There had been no attempt by the police officer to adduce evidence of a confession or an admission. The officer's question was a responsive one to the appellant's opening statement.

• The question raised by the police office "what's happened?" following upon the appellant's initial statement, was not a question raised at the commencement or during a then current or ongoing investigation. Nor arguably could the question be seen at the time it was raised as the initial step in a later or subsequent investigation. 156 In Nicholls, Kirby, J. observed that:- "… circumstances will arise where the provisions of the Code (WA) are inapplicable (eg., admissions blurted out before the accused is a suspect …" (at 58). 157 The circumstances disclosed by the evidence in the present proceedings would seem to conform to those described by Kirby, J. 158 The "trigger" for the application of the protections afforded by s.281 is the moment when a police officer to whom a confession or admission has been made, suspected or could reasonably have suspected the appellant to have committed an offence. Accordingly the legislation excludes from protection confessional statements made before that level of suspicion is reached. In Kelly, Kirby, J. stated:- "… whilst it is true that this 'trigger' would exclude from protection confessional statements made before that level of suspicion was reached (and hence would not protect a statement blurted out by a person at a crime scene or on the telephone before suspicion attached), the initiation of the obligation is significant …" 159 The meaning and content of the phrase in s.281(1) "could reasonably have been suspected" may be considered in light of authorities in other fields where "reasonable suspicion" or the expression "reasonably suspects" as concepts have been examined. Whilst those authorities have arisen in different legislative contexts, some guidance may be obtained although due caution must be made having regard to the particular terms of s.281 and its evident legislative purpose.

(i) As to the word suspected" in s.281(1)(a), a "suspicion" that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust amounting to "a slight opinion, but without sufficient evidence" : Queensland Bacon Pty. Limited v. Rees (1965-1966) 115 CLR 266, 303 per Kitto, J.

(ii) As to the word "reasonably" in s.281(1)(a), it has been observed that a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence: Queensland Bacon (supra) at 303. In the context of the legislation there in question (s.95(4) of the Bankruptcy Act 1924-1960 (Cth)) "reason to suspect" was taken as referring to something which, in all the circumstances, would create in the mind of the reasonable person in the person in the position of the payee in that case an actual apprehension or fear that the situation of the payer is the actual fact which the provision described (a mistrust of the payer's ability to pay his debts). (I note here the possible significance in this formulation of the word "would" as distinct from "could" in s.281(1)(a).

(iii) As to the statutory provision for the issue of a search warrant under s.679(b) of the Criminal Code (Q) - in particular the phrase "there are reasonable grounds for suspecting that there is in any house …" etc. • "Suspicion" in its ordinary meaning is a state of conjecture or surmise where proof is lacking. • Some factual basis or foundation must exist under the provision to ground the suspicion: Walsh v. Loughnan [1991] 2 VR 351. 160 It is also necessary to identify the subject matter of suspicion. The basis of the suspicion referred to in s.281(1)(a) is the state of mind of an investigating official. That state of mind is more than mere surmise. Applying a similar approach as has been applied with respect to search warrant legislation, it is one arrived at on the basis of material that is capable of supporting the formation of an opinion, even if only a slight opinion, that the person in question (the accused) could have committed an offence. As to this approach generally, see George v. Rockett (1990) 170 CLR 104, 115-116. See also Regina v. Rondo (2001) 126 A. Crim. R. 562, 576. 161 In summary, the suspicion must be one which could reasonably have been held by an investigating officer at the relevant point in time, namely, the time when the admission was made. Whether the suspicion satisfies the specified requirement as to reasonableness, is to be determined by the existence of grounds for the suspicion, which grounds must be based on or sourced in facts that do or tend to implicate the accused in possible criminal conduct of the relevant kind, an indictable offence, and that therefore are capable of giving rise to or supporting the requisite state of mind. It follows that a mere possibility that a person referred to in s.281(1)(a) could have committed an offence is insufficient. 162 The questions arising from the appellant's submissions on ground one of the appeal ultimately are:-

(a) Whether the evidence establishes that, at the time the admission was made, the appellant was or could reasonably have been suspected … of having committed an offence.

(b) Whether the police officer at the Burwood Police Station to whom the appellant spoke, Constable Munro, was an investigating official for the purposes of s.281(1)(a).

(c) Even assuming that the police officer was an investigating official within the meaning of the section, whether the admission was made in the course of official questioning , a concept which is connected by the definition of that expression with the investigation of the commission or possible commission of an offence . 163 As to the concept "… in the course of official questioning", the following points potentially arise:-

• Whether the applicant, at the material time, was in attendance at the police station "in connection with the investigation of the commission or possible commission of an offence" (the phrase appearing in the definition of "official questioning" ).

• Whether such questioning as did occur (the officer's question) could be said, at the relevant point in time, to have been official questioning, that is questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence . 164 At the time of the admission, an investigation clearly had not commenced, unless the police officer's initial question can be taken as the commencement point of an investigation. That is one interpretation that is open. A competing interpretation is that it was a question in the initial exchange that preceded any investigation. I am prepared to accept that the former is the case on the established facts. 165 I have concluded that it is difficult to see how the appellant's statement "I want to report a disturbance at my house" could in itself, along with surrounding circumstances (which would include the attendance at the police station at the early hours of the morning) reasonably make the appellant a suspect within the meaning of s.281(1)(a). As to the alternative submission made, namely, that the trial judge should have exercised the discretion conferred by s.90 of the Evidence Act to refuse to admit the evidence of the conversation with Constable Munro or alternatively by virtue of the discretion under s.138 of the Evidence Act, I, with respect, agree with the reasons expressed by James, J. in his judgment which has been circulated in draft. I accordingly would reject these alternative bases in relation to Ground 1. 166 I am accordingly of the opinion that the first ground of appeal should be rejected.

Ground 2 167 The second ground of appeal is framed in the following terms:-

The directions given by the trial judge on the manner in which the jury might approach the evidence relating to finding of gunshot residue on the hands of both the appellant and the deceased, Tony Taouk, were erroneous and inadequate 168 This ground of appeal can be seen, in my opinion, as raising two separate, but nonetheless, related points. The first concerns the question as to whether the trial judge sufficiently or accurately conveyed to the jury the potential significance of the expert evidence on gunshot residue, namely that it was consistent with Tony Taouk firing the gun. The second concerns the possible significance of the expert evidence on the gunshot residue findings in a circumstantial evidence case and whether the directions in that context sufficiently complied with accepted principles. 169 This second question, more specifically goes to the question as to whether the evidence on gunshot residue found on Tony Taouk's hand supported a hypothesis consistent with innocence or that it meant that the jury must have entertained a reasonable doubt about the guilt of the appellant. On either basis, a question arises as to the adequacy of the trial judge's directions.

170 Before dealing with these issues, it is necessary to put the evidence as to gunshot residue in its proper context. Whilst the Crown's case depended significantly on circumstantial evidence, it was not entirely so dependent. In particular:-

• If the statement by way of admissions by the appellant to Constable Munro was properly admitted, then the case was not entirely a circumstantial evidence case. • In addition, the appellant made further admissions in the record of interview as to taking the gun off Tony Taouk and having lost control (see the discussion on admissions below). 171 However, notwithstanding those admissions, there still remains a question as to whether the jury was properly instructed on the relevant principles in a case in which the Crown relied, to a significant extent, on circumstantial evidence. 172 It is in that context, I believe, that the issue raised by the appellant in the second ground of appeal should be considered. 173 I should observe here that the issue raised by the evidence as to gunshot residue in the second ground of appeal also appears as a discrete aspect of the third ground of appeal (paragraph 37) which states:- "In the appellant's case, it was not open to the jury to exclude as a reasonable possibility based on the evidence that the appellant was not responsible for the deaths of his wife and brother in law. There is a reasonable inference available from the evidence, and not excluded by the evidence, that Tony Taouk not only produced the gun which caused his own death and that of Salem Taouk, but also that he was the person who fired the gun. On the evidence, it was not open to exclude this conclusion beyond reasonable doubt." 174 Accordingly, in what follows consideration is given to both the second ground of appeal and to that particular aspect of the third ground.

Circumstantial evidence principles 175 I set out below, in summary form, formulations of the circumstantial evidence principles:-

(i) A single circumstance inconsistent with a conclusion of guilt in a circumstantial evidence case in itself may be sufficient to destroy the hypothesis of guilt: Peacock v. The King (1911) 13 CLR 619, 614 per Griffith, CJ.

(ii) In a circumstantial evidence case, to prove guilt it is necessary, not only that guilt should be a rational inference, but the only rational inference that the circumstances will enable a jury to draw: Plomp v. The Queen (1963) 110 CLR 234, 252 per Menzies, J.

(iii) If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person, the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed: Martin v. Osborne (1936) 55 CLR 367, 375 per Dixon, J.

(iv) In Plomp (ante), Dixon, CJ. cited his own observations in Martin (ante) and acknowledged the difficulty found in stating the rule and attempted clarification by citing his further words in Martin (ante):- "This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed." (at p.375)

(v) To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference, but that it should be "the only rational inference that the circumstances would enable them to draw" : Plomp (ante) at 252. See also Thomas v. The Queen (1960) 102 CLR 584, 605-606; Barca v. The Queen (1975) 133 CLR 82, 104.

(vi) The customary direction in a circumstantial evidence case is that guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: Hodge's case (1838) 2 Lewin 227 (168 ER 1136); Peacock (ante); Plomp (ante); Shepherd v. The Queen (1990) 170 CLR 573.

(vii) The jury must be told that a reasonable doubt arises where any other inference consistent with innocence is reasonably open on the evidence: Shepherd (ante) at 579.

(vii) In essence, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then the jury should give the accused the benefit of the doubt necessarily created by that circumstance: Knight v. The Queen (1992) 175 CLR 495, 503 per Mason, CJ., Dawson and Toohey, JJ. 176 The second ground of appeal essentially raises two factual issues which, in combination, are stated as constituting a version of events as to a reasonable possibility that is not consistent with the guilt of the appellant. The two issues of fact are:-

(a) That the expert evidence on gunshot residue establishes that the deceased Tony Taouk had carried the gun and introduced it into the confrontation that clearly took place (the evidence relating to the presence of residue particles found on the waist band of the trousers and in the pockets of Tony Taouk).

(b) That the deceased, Tony Taouk, had in fact used the gun (in this respect it being contended that the accumulation of gun residue found on Tony Taouk's left hand is consistent with him having fired the weapon). 177 The expert evidence of Mr. Ivan Sarvas, forensic scientist, is relied upon as supporting a conclusion favourable to the appellant on both these factual issues. 178 The evidence of Mr. Sarvas is to be found at transcript pages 585 to 615. The following points of significance arise from that evidence:-

• Gunshot residue found was found on the waist band and pockets of the jeans taken from the person of Tony Taouk: t.597, line 20-27. [The exhibit tag as to the former stated "inside waist band" .]

• The presence of gun shot residue particles on the inside waist band and pockets of the jeans invites the inference that the person wearing the clothing (Tony Taouk) had transported or held a weapon against the waist band: t.601, line 55-58. However, it may well be possible that material found on the waist band may have resulted out of a close proximity shot: t.602, line 1-5. (Mr. Sarvas added that he did not know whether the particles had come from the waist band or indeed from the pockets or from both, thus giving rise to some lack of specificity on this issue. See in this regard also the evidence of Senior Constable Gane at t.381-454, especially at t.424, 445-447.)

• Depending upon how dirty the weapon is, it is possible that gunshot residue could be transferred to the pockets or waist band of the trousers prior to it being discharged: t.602, line 44-55.

• The gunshot residue found on the hands of the appellant suggested either that he had discharged the firearm or the firearm was discharged in close proximity to him: t.607, line 39-44.

• It follows from that fact that one cannot say whether the appellant had in fact discharged the firearm or was in close proximity when it was discharged: t.607, line 44-47.

• Based on the number of particles detected on the left hand of Tony Taouk, there was an inference that he may have discharged a weapon: t.601, line 25-30.

• In his report, Mr. Sarvas had said that the gunshot residue evidence invited the inference that Tony Taouk had discharged the gun . His oral evidence modified the position to say may have discharged the firearm with his left hand.

• In his report he wrote that the evidence indicated either that Simon Taouk could have discharged the firearm or was in close proximity: t.609, line 50-60.

• It is true to say that the gunshot residue particles were not found on the inside waist band or inside pockets of the track pants of the appellant: t.613, line 15-20. 179 Accordingly, Mr. Sarvas adhered to his opinion that the gunshot residue particles on the left hand of Tony Taouk invited the inference that he may have discharged the weapon with his left hand (Tony Taouk having been a right handed person). 180 The central point of this ground of appeal is directed at the inadequacy of the direction given by the trial judge in relation to the evidence which left it open to the jury to conclude:-

(b) the absence of gunshot residue on the appellant's trousers supported the conclusion that it was Tony Taouk who introduced the gun;

(c) on the basis of the expert evidence of the forensic scientist, Mr. Sarvas, the number of particles detected on the left hand of Tony Taouk provides an inference that Tony may have discharged the weapon;

(d) Mr. Sarvas confirmed that what he was saying was that Simon Taouk (the appellant) could have discharged the firearm, or, was in close proximity and the same thing applies to Tony (t.609, lines 50-55);

(e) there were a significantly larger number of gunshot particles on Tony Taouk's hands than on Simon Taouk's hands. (There is, however, more than one explanation as to why this was the case). 181 The trial judge's summing up in relation to the significance of the expert evidence can be seen, in particular, at pp.50-51 and pp.79-80 of the summing up. Referring to the evidence of Mr. Sarvas in relation to the significant number of detectable pieces of gunshot residue, the trial judge stated:- "What he could not say was that the accused must have fired the firearm, because it was equally consistent , and he's in no position to judge, with the hands on which the deposit was found being in close proximity to a firearm fired by somebody else." (emphasis added) 182 The trial judge's summing up (at p.51) referred to question 23 of the interview with the appellant in which he conceded that he said that he had taken the gun off his brother in law. In answer to question 24, he said "I lost, I lost control and I went to the police". On the question of whether the evidence indicated that Tony Taouk had been the shooter, there was some reference by the trial judge to the evidence of Mr. Sarvas in cross-examination and what he had written in his original report (trial judge's summing up, p.68). This segment, however, does not refer expressly to the possibility of Tony Taouk shooting with his left hand. The reference at p.68 is simply to the question as to whether Tony Taouk had fired the gun, not whether he could have done so using his left hand, which was specifically raised with Mr. Sarvas in cross-examination. 183 At pp.79-80, the trial judge, in his summing up, referred to the fact that Tony Taouk's left hand was heavily impregnated, it having a heavy amount of gunshot residue on it, much more than on his right and much than on either of the accused's hands. 184 The summing up goes on, however, to refer to Tony Taouk being right handed followed by the statement "so he would not have held the gun in his left hand". That appears to be an unequivocal statement which tends to negate the possibility, conceded in the evidence of Mr. Sarvas, that he could, however, in fact have fired the gun using his left hand. If he had done so, then of course, the injuries to his right upper chest would be more explicable or consistent as having occurred during a struggle with the appellant. 185 The argument put by the appellant's counsel, as referred to by the trial judge towards the end of p.79 of the summing up, still does not address the issue of the possibility that Tony Taouk had used his left hand to shoot. Again, at the top of p.80, the summing up refers to a struggle, suggesting that there is a question as to whether the right hand of Tony Taouk could be turned around to such a degree that the muzzle of the gun could be said to be in a position that it must have been to given him a wound in the right chest.

Analysis: expert evidence in (in large part) a circumstantial evidence case 186 The evidence that supports an inference that the gun was introduced by Tony Taouk, is significant. A person would not normally be expected to carry and obtain a gun unless there was a real prospect that the person intended to use it for one reason or another (either as a threat or an act of aggression or in self-defence). However, as the Crown emphasised at the trial, it was not a question of who introduced the gun. The question was who used it. 187 The evidence of the presence of gun residue on Tony Taouk's left hand is, as previously noted, potentially significant. 188 However, the Crown having the onus of proof in this largely circumstantial evidence case, and the fact that there had not been a clear direction as to the possibility that Tony Taouk fired the gun with his left hand as established by the evidence, raises the possibility that an important issue of fact may not have been properly put to the jury. 189 It is, in this context, that the principles in Knight v. The Queen (1992) 175 CLR 495 are relied upon. 190 There is the further factual matter also to be brought into account. The appellant gave evidence that Tony Taouk slapped him in the face with his right hand (which may be consistent with him holding the gun in his left hand). It was at that moment that the appellant said that he lost control. 191 In the present case, senior counsel for the appellant, Mr. Byrne, SC. stated:- "Now, in the circumstances of this appellant's case, the question can be re-phrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that it was Tony Taouk who had fired the gun which killed both himself and the wife of the appellant. On the whole of the material before the Court, that could not be excluded, in our submission, as a rational inference from the whole of the evidence." (t.19, 22 March 2005) 192 The most favourable possible view overall of the evidence from the appellant's view is:-

(a) The evidence establishes that a struggle occurred between him and Tony Taouk;

(b) The expert evidence, standing alone, establishes as a reasonable possibility that Tony Taouk both initially carried or transported the gun and fired it with his left hand and perhaps having first struck the appellant with his right hand.

(c) The events in (b) would reconcile the fact that Tony Taouk was shot (the appellant says accidentally in the struggle) in the right side of the chest.

(d) The evidence is consistent with, at least, some gunshots (out of a total of six gunshots) being fired in a somewhat random fashion consistent with their discharge during a struggle.

(e) The appellant's attendance at Burwood Police Station is inconsistent with guilt.

(f) The possibility of a random shot accidentally hitting Salem Taouk in the back of the shoulder at a distance of at least 50 centimetres or more from the muzzle of the gun. 193 Had the Crown's case been a wholly circumstantial evidence case, the expert evidence that established that Tony Taouk may have fired the gun with his left hand could be sufficient to establish that the appellant's guilt was not the only rational inference that could be drawn from the circumstances proved in evidence. 194 In Barca v. The Queen (1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason, JJ., following Plomp v. The Queen (1963) 110 CLR 234 at 252:- "To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt should be a rational inference, but that it should be the only rational inference that the circumstances would enable them to draw." 195 See also Cutter v. The Queen (1997) 143 ALR 498 at 502. 196 The evidence on the gunshot residue, consistent with the fact that Tony Taouk had been the shooter (using his left hand), taken alone might well establish either:-

• that the jury, acting reasonably, could or should have entertained a reasonable doubt about the appellant's guilt; or

• an inference or hypothesis consistent with innocence was open on the evidence. 197 However, the evidence on gunshot residue found on Tony Taouk's left hand is not evidence that stands alone or in isolation uncontradicted by other evidence. If that other evidence is brought into account and accepted, then it could be said to be cogent enough to negative the conclusion of the possible shooting by Tony Taouk using the left hand. I will return to consider the cogency of that other evidence: see Admissions below. 198 As the circumstantial evidence does not stand alone, the question is whether the possible inference of innocence that may otherwise have been reasonably open on the expert evidence could be said to be sufficiently rebutted by:-

• The admissions made by the appellant. See discussion entitled "admissions" below.

• The evidence as to the appellant's anger which led to him engaging in a verbal confrontation with his wife and the absence of motive in Tony Taouk.

• The evidence of gunshot residue on both of the appellant's hands and on the front portion and sleeves of his sloppy joe On the right front green jumper, Mr. Sarvas found eight characteristics or three compound particles and 20, two component or indicative particles. On the left front of the jumper, 10, three component or characteristic particles and 13, two component or indicative particles. This, however, is equivocal evidence in the sense that it was consistent with either the appellant discharging a firearm or had been in close proximity to a firearm when it was discharged. .

• The evidence of blood matched from his wife on his trouser leg which is inconsistent with his answer in the ERISP (that he was unaware that his wife had been shot (Q. & A. 117-118, 130-132). ).

• The evidence that supported an inference that the appellant had concealed or disposed of the weapon.

• The admissions in the course of the interview at 11.58 am on Sunday 29 September 2002 at Burwood Police Station in which the appellant agreed that in answer to a question by police "that you took the gun off your brother in law" , he replied, "yes, I did. I say that, yeah" . (Exhibit E - ERISP Q. & A. 24-26)

• In the same interview:- "Q24. And what happened when you took the gun off your brother in law? A. I … I lost control and I went to the police, and he was upstairs on the second floor, so he went down to the first floor … Q25. Yes. A. (Interpreter) … As I said, I don't remember what happened after that, but I was lost. I don't know if I carried the gun or I still got the gun at that time or he, or he throw the gun on the floor, what I remember I, I run to the police and tell them what happened. Q26. Okay. Did you shoot the gun as well? A. (Interpreter) I grabbed him just he stop, stopping him of shooting, and we were fighting, we were fighting between me and him and just, I used to see the, the shots and Oh God went everywhere, the shot went everywhere."

Admissions 199 The evidence of admissions made by the appellant plainly played an important indeed central role in his trial. It is therefore important to assess their cogency, weight and significance. 200 Analysis of the appellant's statement to Constable Munro establishes admissions and assertions of fact as to seven discrete facts:-

(vii) he did not know if anyone was hurt (inconsistent with (i)). 201 Firstly, it is noteworthy (and perhaps strange, given the appellant's admission that he had in fact shot someone), that there was no mention by the appellant of his wife having been shot. Salem Taouk is not mentioned at all. Whilst, as noted earlier, this is consistent with his statement recorded in the record of interview that he did not know that his wife had been shot, it is difficult to accept that statement in light of the fact that blood on his trouser leg was matched to that of his wife. 202 The admission that he fired the gun may be strictly seen as an admission only as to the count related to Tony Taouk and not to the count related to Salem Taouk. However, there is evidence that there was one series of six shots heard and other evidence of two series of shots separated by an interval (on Helen Taouk's account, an interval of about 30 seconds) (see the evidence of Neville Lunn, t.367, line 55 to t.368 and Lesley Lunn, t.373, lines 15-20 and t.374 , lines 1-10. See also Helen Taouk, t.190, lines 5-30). The shooting of Tony and Salem Taouk obviously occurred within seconds of each other. 203 On the basis that the appellant took the gun off Tony Taouk (point (iv) above), it was open to the jury to conclude that the series of six shots (whether separated by a short interval or not) occurred whilst the appellant was holding the gun, having taken it from Tony Taouk. The Crown pointed to the fact that one of the first shots must have hit Tony Taouk as he managed to go down the stairs into the backyard and was not seen upstairs by any member of the family following the gunshots. Just when, how and why Salem Taouk was shot in the back of the shoulder and whether it was through an intentional or reckless act is unclear. Accordingly, although the admission made to Constable Munro is strictly an admission only as to having shot Tony Taouk, taken in conjunction with the fact that, by the appellant's own admission, he apparently overpowered Tony Taouk, took the gun from him and shots were then fired, that admission would be available, along with other evidence, to support an inference or conclusion that the appellant was also the shooter of the gun when Salem Taouk was hit. 204 I have set out in paragraph 198 extracts of the record of interview (Q. & A. 24-26). The appellant's answers establish that the appellant obtained possession of the gun and lost control following a struggle between the two men and that at about that time shots were discharged.

The trial judge's direction 205 I return to the question as to whether, notwithstanding the failure by the trial judge to give a specific direction on the possible significance of the gunshot residue on Tony Taouk's left hand, the evidence as to what I have termed admissions, is sufficiently cogent to warrant the conclusion that there has not been, through lack of any specific direction, a miscarriage of justice. 206 I have had the benefit of reading the judgment of James, J., which, as earlier mentioned, was circulated in draft. In paragraph 116, his Honour sets out what was said by the trial judge on Mr. Sarvas' evidence about the gunshot residue giving rise to an inference that Tony Taouk had fired the gun and the point as to him having said Tony "had" as distinct from "may have" fired the weapon. 207 James, J. states, in effect, (paragraph 117) that on this basis an argument (by counsel) that the presence of gunshot residue on Tony Taouk's hand gave rise to an inference that he had fired the gun, was put to the jury in the summing up. However, with respect, it would seem to me that it was necessary for the trial judge to have gone further than to refer to the argument as to the gunshot residue. Given the potential for the expert evidence of Mr. Sarvas to raise a hypothesis inconsistent with guilt, there is much to be said, in my opinion, in favour of the proposition that a specific circumstantial evidence direction should have been given related to that segment of expert evidence. The trial judge did earlier inform the jury that the Crown case on each count was a circumstantial evidence case (summing up p.13). He then provided the general circumstantial evidence direction recorded at that same page. The expert evidence to which I have just referred, however, was not addressed until much later (at p.68) in the summing up and the defence argument based on it did not arise until p.79. The issue therefore arose in the summing up a considerable time after the general circumstantial evidence direction had been given. It is true that no further direction was sought by defence counsel at the trial which raises the question of leave under s.4 of the Criminal Appeal Rules and whether leave should be granted to rely on this further ground of appeal. 208 There is a question as to whether the general circumstantial evidence direction was sufficient. In many cases such a direction will suffice, especially if there is some form of cross-referencing made. In some circumstances, trial judges have gone further by specifically raising with the jury possible explanations of the circumstantial evidence that fell for consideration, specifically with respect to a particular factual issue relevant to the count in question: see, for example, Regina v. Bunting & Wagner [2005] SASC 45 [123]-[125]. The question in this case is whether the trial judge should have given a direction that one hypothesis consistent with innocence was that Tony Taouk could have, in a struggle with the appellant, used his left hand to shoot, having struck the appellant with his right hand, and that there was evidence to support the hypothesis that he did or may have done so in the evidence of Mr. Sarvas. 209 On consideration, I do not believe, however, that leave should be given under Rule 4. The circumstantial evidence case was supported by strong evidence of admissions to which I have referred and it is upon that basis that I do not consider a miscarriage resulted from the absence of any specific direction on the expert evidence and its possible implication in terms of a hypothesis inconsistent with guilt. 210 I accordingly have formed the opinion that the second gound of appeal should be rejected (and accordingly that part of the third ground in paragraph 37).

Ground 3: The verdicts of the jury are unreasonable, having regard to the evidence 211 I have, as earlier stated, had the benefit of reading the judgment of James, J. in draft and I have considered his Honour's close analysis of ground three and the conclusion his Honour has expressed in relation to that ground. I agree with his Honour's conclusion in relation thereto and the reasons his Honour has expressed in his judgment. 212 I am accordingly of the opinion that all three of the grounds of appeal relied upon should be rejected. I would accordingly dismiss the appeal against conviction. **********

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