44 Their Honours went on to say in a passage which I respectfully adopt at 479,
"The line between what is permissible and what is impermissible might, in some cases, be a fine one. Whether such line has been crossed will, in most instances, depend upon the view of the circumstances taken by the trial judge in the particular case. The trial judge in this case was clearly not satisfied on the material before him that the police officers had crossed that line. Indeed he was, to the contrary, positively persuaded by that material that the officers had adopted a neutral role and had not, in any way, controlled the conversations between the applicant and Reid. We can discern no basis for interfering with his Honour's conclusions."
45 I have set out above the findings of fact that his Honour, Sully J, made with respect to the police involvement in the attaining of this evidence. In general terms, it appears to me to be of the same character as that referred to in Lowe.
46 In the present case, Sully J noted that there were significant limits upon police conduct in a situation such as that which faced Inspector Byrnes. But as his Honour put it:
"I cannot see why within properly guarded, non specific and non contractual limits Inspector Byrnes was prevented from acknowledging what both he and the prisoner knew to be the relevant facts of life, namely, that the prisoner needed police assistance and was prepared in order to get it to run the risks inherent in giving assistance to police investigations of a murder."
47 His Honour also contrasted the facts in Pfennig, when he found that the prisoner did not do anything to trick the accused into confiding in him. As his Honour found:
"The questions asked by the prisoner so far as the evidence discloses them seem to me to have been few, non-leading and generally innocuous, except in the sense that they keep on foot a conversation in which the accused was quite willingly taking part."
48 His Honour went on to say that he rejected the submission that the circumstances in which the prison informer drew the accused out in conversation made the statements of the accused, taken as a whole, unreliable.
49 He identified the fact that there was one detail given by the accused which was demonstrably incorrect, and another detail he found, at the time of the voir dire, to be arguably incorrect. His Honour went on to say:
"It is however in my opinion unacceptably artificial to deduce from one plain error and one other possible error occurring in the course of a very discursive narrative that the remainder of what is said is so clearly unreliable as to make it unfair to permit the entirety of the consideration to be given in evidence before the jury."
50 The word "consideration" as appearing in that passage is, probably a reference to "conversation".
51 His Honour concluded that for these reasons he had not been persuaded, on the probabilities, that he should refuse in the exercise of his discretion under s90, to admit the evidence in accordance with the submission. In my view his Honour was entitled to form that opinion. I do not see any basis upon which the Court should interfere on the exercise of this discretion.
52 His Honour went on to consider the parallel submission made pursuant to s138, which provides:
"138(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way the evidence was obtained."
53 With respect to s138 of the Act, his Honour proceeded on the basis that the onus was upon the Appellant to establish on the balance of probabilities a relevant impropriety. If that were done then it was for the Crown to demonstrate on the balance of probabilities that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence that had been obtained in the way in which the evidence had been obtained.
54 His Honour found that the accused had not discharged its onus of establishing that the evidence was obtained improperly or in contravention or in consequence of any such impropriety or contravention. His Honour further held that, if he had found that the Appellant had discharged his onus, then he would have found that the Crown had made out its onus of establishing that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way.
55 In this regard his Honour no doubt intended to refer to the findings of fact that I have outlined above, enumerated (i) to (vi), as the factual findings upon which he based both aspects of the judgment. When I say both aspects, I refer to the reliance placed on s90 and s138.
56 Both before his Honour, and in this Court, particular attention was directed to the findings of fact that his Honour made, and which his Honour numbered, and I have numbered (vi) above, namely, that at the relevant time Inspector Byrnes believed that he would not have been able to obtain approval to fit a listening device to the prison informer at the relevant time. His Honour found that this did not constitute a relevant impropriety.
57 The evidence adduced in cross-examination of Inspector Byrnes was to the effect that on 17 May, he had told the prison informer that he would "weigh up what he gave me in relation to the case and I would then see what assistance could be given to him". The Appellant submitted that this constituted a representation to the effect that the more incriminating the conversation that he was able to report, the more assistance the prison informer would receive from the police with his own sentencing matters. I do not believe that this is a reasonable construction of the evidence of Inspector Byrnes. If such a construction could be placed on the conversations then there may have been a relevant impropriety in that regard.
58 The finding of Sully J that both parties to the conversation, the prison informer and Inspector Byrnes, knew that some form of assistance may be forthcoming with respect to the prisoner's sentencing was an understanding which did not constitute an element of impropriety, or any contravention, or a consequence of any impropriety or contravention of law, within the meaning of s138.
59 I agree with Sully J that for purposes of s138, the nature of the police involvement did not constitute any impropriety or contravention in the relevant sense. I also agree with Sully J that, had I to do so, the evidence would not have convinced me, as it did not convince Sully J, that balancing the desirability of admitting evidence against the undesirability of admitting evidence obtained in that way, the discretion should be exercised in favour of refusing to admit the evidence. For those reasons I would reject ground one of the appeal.
60 The second ground of appeal was that the jury's verdict should be set aside as unreasonable. It was submitted that having regard to the evidence, the verdict could not be supported. An alternative formulation in the Appellant's written submissions was that the verdict was not reasonably open.
61 The Appellant used the terms of "unsafe and unsatisfactory" which have traditionally been used in this State to identify both a ground for appeal and also to found a submission that the Court should direct a verdict of acquittal, rather than an order for a new trial. As the High Court noted in Fleming v The Queen [1998] HCA 68; (1998) 73 ALJR 1; (1998) 158 ALR 379; (1998) 103 A Crim R 121 at [12], the phrase, "unsafe and unsatisfactory" is "potentially confusing". It is important, as the Appellant has done here, to direct attention to the particular terminology in s6(1) of the Criminal Appeal Act 1912 on which the Appellant relies. This the Appellant has done by using the particular words of s 6(1) that the verdict of the jury "is unreasonable".
62 Following the decision of the High Court in Fleming, this Court has emphasised that an Appellant should identify a ground of appeal in the terms of the statute (see R v Giam [1999] NSWCCA 53; (1999) 104 A Crim R 416 especially at [43] to [44]). The other work hitherto done by the "unsafe and unsatisfactory" ground of appeal should be the subject of a separate heading in submissions with respect to the order sought. In many cases the orders sought under what was referred to as the unsafe and unsatisfactory ground, is a verdict of acquittal. Attention does need to be directed to the inter-relationship between subs 6(2) and subs 8(1) of the Criminal Appeal Act. (See R v Johnston (1998) 45 NSWLR 362 especially at 380; R v Giam supra at [31]-[46], R v Brownlee [1999] NSWCCA 57; (1999) 105 A Crim R 214 at [31]-[34].
63 In many cases the order sought is the verdict of acquittal which is the default order under s6(2). In the present case, the Appellant's position was to seek the Court to substitute the alternative verdict of manslaughter.
64 The relevant test with respect to the "unsafe and unsatisfactory" ground is still that articulated by the majority of the High Court in M v The Queen (1994) 181 CLR 487 at 493:
"... the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
65 This remains the test notwithstanding the abandonment of the phrase "unsafe and unsatisfactory". See Jones v The Queen (1997) 191 CLR 439 at 450-452. The reasoning of the High Court in M at 493-494 remains appropriate when determining whether the verdict of a jury should be set aside "on the ground that it is unreasonable" within s6(1) of the Criminal Appeal Act. See also Jones v The Queen supra at 450-452.
66 The basic submission of the Appellant in this regard was that the Crown had not negated the likelihood that the shooting was an accident. It was submitted that there was evidence as to the operation of the revolver to the effect that there was a possibility that a cylinder might locate itself in a position different from that intended by the handler. Particular reliance was placed on the types and quantity of drugs that had been prescribed for the Appellant and the expert evidence as to the possible effects of those drugs.
67 Particular emphasis was given to the absence of a motive for the killing. There was a body of evidence with respect to the insurance fraud which the Appellant had planned, but the sex of the intended deceased was a crucial part of that plan. It was submitted that there was no basis for a conclusion of an intent to kill a woman. Mr Agius acknowledged that motive was not a necessary element of an offence, however, he submitted, that where the defence relied on accident, the absence of a motive was of significance.
68 The basic issue at the trial and on this appeal was whether or not the fatal shot was caused by some deliberate act of the accused or with the requisite intention. It is pertinent to outline the relevant evidence on the issue of intent.
69 It was common ground that at some point of time the Appellant had a plan to murder a taxi driver in aid of a plan to defraud an insurance company. The idea was to disfigure the body and also to plant various matters on the body which would tend to identify it as that of the Appellant. Indeed, in the briefcase which the Appellant had with him on the night of the killing, there was a document, that became Exhibit U in the proceedings, that set out in great detail the various steps which the Appellant proposed to take in pursuance of this plan.
70 In the period up to 21 April, the Appellant had bought the gun, had changed his will, had left requisite documents with his solicitor. At the time after his arrest there was found in his room a mallet, a machete, hand cutter and surgical gloves which were relevant to the proposal to disfigure a body.
71 Of course, it was an essential component of this plan that the taxi driver be male. The circumstance that the Appellant happened to encounter a woman taxi driver was relied upon by the Appellant as inconsistent with the implementation of the planned murder. The Crown case, however, was that the original intention having been foiled, the Appellant had formed the intent to carry out the killing in some way as a "dummy run" for the plan itself.
72 The Appellant's case was that he had abandoned the plan some considerable time before, and indeed before 21 April. However, on 21 April he bought the gun and he also left the relevant documents with his solicitors including sealed instructions as what to do upon his death. Nevertheless, he maintained a position that he had abandoned the plan some time prior to this date. All of this was before the jury for the purposes of assessment. Given the acts of 21 April, and his possession on the night in question of the check list that became Exhibit U, and also his possession at that time of relevant equipment, it was plainly open to the jury to decide that as at 4 May, when the killing occurred, he was pursuing this particular plan. He had made some attempts in his evidence to explain his conduct in this regard.
73 However, apart from it being open to the jury to reject his version in the case, there is the second aspect of the evidence on which the Crown relied. Certain admissions had been made to the police. Some occurred prior to the formal record of interview. Others are contained in the records of interview. The evidence was not entirely clear as to the extent to which the Appellant confessed in the conversation prior to the record of interview.
74 The Inspector's evidence included the following:
"I said, 'I saw a hole through the driver's seat of the taxi. Did you shoot the female taxi driver through the back of the driver's seat?' The accused appeared sullen and he paused and then he said 'Yes'. He also acknowledged with a nod of his head and he raised his right hand up to about abdomen height, extended his right hand with his fingers in that fashion appearing to emulate the gun."
and
"As he did this he said 'Initially I hadn't intend to fire the gun but then I did and I don't know why I did it.'"
75 The evidence as to how the Appellant raised his hand and emulated a gun at about abdomen height is, of course, inconsistent with the evidence that he gave and to which I will presently refer as to the circumstances of the allegedly accidental discharge of the weapon.
76 In the first record of interview the questions and answers that occurred, to which I have just referred in the evidence of Inspector Burns, were referred to in the following way:
"Q. Do you agree that you also told me that initially you hadn't intended to fire the gun?
A. Correct.
Q. And you went, do you agree, that you went on to say that you had fired the gun and you don't know why you did it?
A. ...my hand, my finger, I think she moved forward slightly in the traffic, I think my finger slipped, no, I, there was no intention to fire the weapon. I was simply trying to keep it out of her sight while I got my wallet. Yes, I agree with what I said to you earlier."
77 In the course of the first record of interview the following question and answer occurred:
"Q. What happened when you got to the set of lights just on the intersection of St Davids Avenue and Fisher Road?"