Mr Hogan, Galea's counsel, took no objection to the tender of the letter.
38 In dealing with this objection, it is worth noting that Mr Hogan had extensively cross-examined police officers to establish that Benjamin was a suspect and that the nature and extent of his relationship with the appellant justified the suspicion that he had either killed Dorrian or was accessory after the fact to his murder. Mr Spencer said that he had not suggested that Benjamin had killed Dorrian or was an accessory after the fact and submitted that, so far as his case was concerned, the letter was "just another smear" and complained that this was a consequence of the joint trial as Mr Hogan's case had caused the tender.
39 The appellant's letter was eloquent of her passionate love of Benjamin. Of itself, it did not and could not have been regarded as reflecting badly on her. Contrary to Mr Spencer's submission, its reference to sex, though unmistakeable, was conventional and undescriptive: overwhelmingly, it expressed the appellant's emotions and hopes regarding Benjamin.
40 Benjamin gave evidence that, before Christmas 1996, Galea discovered that he and the appellant were having an affair. He said they met in a park in Marrickville, in the course of which the appellant said to Galea, "I don't want Mark hurt." The appellant also gave Benjamin a Valentine's Day card in 1997. However, at about this time Benjamin said that his sexual relationship with the appellant ended and, when he saw her in the street on her birthday (16 March 1997) she was cold and standoffish. Benjamin's oral evidence referred to the continuing and frequent meetings with the appellant during their relationship and the fact that sexual conduct to a greater or lesser degree occurred on most, if not all, of them.
41 On 1 June 1997, Benjamin (who lived relatively near to Galea's house in Marrickville) saw Galea putting boxes in the back of his car. Galea told him that the appellant was moving in "with a doctor who drives a sports car" whom she had met at the hospital. It is clear that this was a reference to the appellant's moving in with Dorrian though, of course, he was a patient not a doctor. Benjamin helped Galea to pack the car and unpack at the Lilyfield unit. A few days later, on 6 June, Benjamin saw Galea unpacking boxes from his car outside his house. Galea said that the appellant was returning and added, "It seems the boyfriend was a client". He also said that he (the boyfriend) had been violent and had a bad background. Benjamin went to Palm Court some time later and was told in general terms that police were investigating the murder of one of the clients, who had an affair with an unidentified member of staff. He received a note that police wanted to interview him. Two weeks later, on 14 July, he went to the Marrickville house where Galea and the appellant were living. That conversation was recorded covertly by police. The appellant told Benjamin to be quiet and gave him a note to the effect that the house and telephone were tapped. Benjamin said that she told him that she was "sorry for getting you involved", that Galea had nothing to do with it and, in effect, that when she had last seen Dorrian he was alive, that she tried to telephone him "but he disappeared". She also said that she was concerned for her safety "because apparently Chris was involved with Neddy Smith". This conversation was plainly admissible in the appellant's case. It needed to be evaluated in the context of the appellant's relationship with Benjamin.
42 As I have mentioned, the Crown case was that the appellant's motive for killing Dorrian was, in part at least, to minimise the risk of an investigation by the management of the hospital where she worked disclosing her relationship with him, about which she had lied. The extent of her concern about this issue was shown by her strong reaction to the allegations when they were first raised with her. The fact that this was the second occasion upon which these allegations had been made and that she had been counselled following the first occasion was relevant to understanding the extent of her concern. Quite apart from any interest that Galea's counsel might have had in attempting to construct a case that Benjamin was either the killer or had helped dispose of the body, the evidence of Benjamin was relevant to the Crown case against the appellant. In my view it would have been admissible against her, even if she had been tried alone. The jury was warned by James J not to use this evidence as justifying a conclusion that the appellant had a tendency to have sexual relations with clients at the clinic or as making it more likely that she behaved in any particular way towards Dorrian. There is no reason to suppose that this warning was inadequate. Although it is correct that Mr Spencer did not suggest, unlike Mr Hogan, that Benjamin had killed Dorrian, yet his involvement with Galea and the appellant must have raised the question in the jury's mind as to whether it was a possibility that he was in some way involved. The relationship of Benjamin to the appellant and, hence, with Galea was relevant to evaluating this remark and its implications. The mere fact that he had helped the appellant to move out and then return to the Marrickville house raised this suggestion. The specific allegation did not need to be made. It was implicit in the appellant's case that someone else had killed Dorrian. Benjamin may have been a candidate. The truth about his prior relationship with the appellant was undoubtedly relevant to a consideration of the reasonableness of this possibility. Mr Hogan indicated that he relied, in part, on Benjamin's evidence of his relationship with the appellant and the appellant's affectionate letters to him to found a case that it was he who had killed Dorrian or assisted the appellant to dispose of Dorrian's body. A reasonable possibility that either of these hypotheses was true must have led to Galea's acquittal. From the prosecution's point of view, it was necessary to prove against both Galea and the appellant that Benjamin did not kill Dorrian. Amongst other things, Benjamin said in chief, after the prosecutor refreshed his memory from his statement, that Galea had said to him that he had told Dorrian that if Dorrian "hurt one hair on Kathy's [the appellant's] head he would hurt him". Not surprisingly, Mr Spencer relied on this evidence in the appellant's case.
43 Mr Spencer made no application at this point for a separate trial. It is clear that the mere fact that two accused run cut-throat defences will not justify separate trials. But Mr Spencer's omission may also have resulted from legitimate tactical considerations: his client would have the benefit of Mr Hogan's urging the jury to accept the reasonable possibility that Benjamin, and not the appellant, had killed Dorrian, whilst maintaining an objection to the admissibility of the evidence of the relationship between the appellant and Benjamin. However this may be, I do not doubt that Mr Spencer's declining to seek a separate trial when the scope of Benjamin's evidence became clear and the attitude of Mr Hogan made explicit, was a deliberate and informed decision, having regard to the myriad factors that the trial presented for his judgment.
44 In my view, as I have explained, the evidence of the appellant's relationship with Benjamin was relevant in the prosecution case against her. It was cogent - indeed it was not controverted at all - and significant. There was some immaterial prejudice that arose from it, namely that the jury might have inferred that the appellant had a tendency to conduct inappropriate sexual relationship with clients of the clinic. This prejudice would only have been slight, since it was not controversial that she had such a relationship with Dorrian and that she also had such a relationship with Benjamin was conceded to be relevant. It is also true that she lied about her relationship with Benjamin to the hospital administration, but this was (as I have said) directly relevant. Moreover, it was not controversial that she had lied to the administration about her relationship with Dorrian. The jury were warned about the inappropriate use of lies and drawing any adverse conclusions about the appellant from her relationship with Benjamin and Dorrian.
45 In summary, since the nature of the relationship between Benjamin and the appellant was relevant to the Crown case against the appellant and since the letter was not unfairly prejudicial, it was properly admitted against her.
46 James J had left open at an early stage the extent to which Benjamin's evidence was admissible against the appellant, it being conceded that it was all admissible in the case against Galea. At the close of Benjamin's examination in chief his Honour invited Mr Spencer to indicate clearly whether he took objection to any part of Benjamin's evidence as admissible against the appellant. Mr Spencer said he did not. For the reasons which I have given, this concession was entirely appropriate. Moreover, Mr Spencer did not submit to James J that he was prejudiced by the course that his Honour proposed of not ruling until later as to what part of this evidence what admissible against the appellant.
47 Somewhat later in the trial, whilst Mr Hogan was cross-examining Chief Inspector Williams, the Crown prosecutor sought to tender at Mr Hogan's behest part of a tape recording of a conversation between Galea and the appellant after Benjamin had left the Marrickville premises on the occasion to which I have referred. The sense of the conversation was capable of being understood as Galea revealing his innocence so far as the disposal of the body was concerned and, as far as the appellant was concerned, that she was aware of the identity of the person who disposed of the body. This, if rightly understood, implied at least her knowledge of the circumstances of the matter and thus her implication in the murder rather than Galea. As I have said, in the appellant's case whether Galea was the murderer was a live issue that the Crown had to deal with, since it was clear that, if it was reasonably possible that Galea had murdered Dorrian rather than the appellant - a case that was available in the appellant's trial but not in Galea's because of his earlier acquittal - the appellant must have been acquitted. Accordingly, evidence that supported the conclusion that Galea was not Dorrian's killer was plainly relevant in the appellant's case. During argument James J raised this as a possible basis for admission. The prosecutor adopted the point. This was quite proper. Of course, the conversation needed to be considered in light of the evidence that both participants believed the premises to be bugged and, therefore, that what they said may have been to a greater or lesser extent calculated. But that was a matter which the jury was well able to evaluate.
48 Why the Crown had not earlier tendered this material is not altogether clear. But it matters not. Mr Spencer did not suggest he was prejudiced for lack of warning. Indeed, Mr Spencer, in his opening to the jury, had said that he might suggest at the end of the trial that it was a reasonable possibility that Galea and not the appellant had killed Dorrian.
49 The only part that was sought initially to be tendered concerned discussion about the investigation which revealed the point sought to be relied on first by Mr Hogan in his case and then by the prosecutor against both accused. The rest of the tape, in which Galea and the appellant argued about her relationship with Benjamin, was put in at Mr Spencer's insistence that the entire conversation should be before the jury despite his submission that it was irrelevant to the issues in the trial. In my view, that material was not truly useful in appreciating the sense of the discussion about the investigation but it was, in effect, tendered at Mr Spencer's instigation. At all events, it was not unfairly prejudicial to the appellant in light of the other evidence.
50 In this Court it was submitted that "the appellant's knowledge of the murderer formed no part of the Crown case against her". The Crown had, however, submitted below that her knowledge of the murderer or of the accessory is "relevant to the case against her…[as] the killer." The Crown submission was plainly right and, accordingly, the appellant's submission should be rejected.
51 I have already mentioned the possible significance of the appellant's lies. The Crown conceded that they were not evidence of consciousness of guilt. So far as they concerned what was told to the hospital authorities about her relationships with Benjamin and Dorrian they were probative of her guilt as going to a possible motive for killing Dorrian. So far as they concerned what she told Galea, they were relevant to understanding their relationship, which was at the centre of the case both against her and Galea which was that they were jointly involved (an attempt at a neutral term) in Dorrian's death. There was no proper basis for excluding evidence of them, either in whole or in part, on the ground that they were unfairly prejudicial. This is so even though Mr Hogan, on Galea's behalf, stressed the significance of the appellant's on-and-off relationship with Galea as establishing that it was unlikely that he had a motive either for killing Dorrian or assisting the appellant to dispose of the body if she killed him. Mr Hogan submitted to the jury that the appellant had not been candid with Galea about her relationship with Benjamin and that the terms of their conversation on 14 July 1997, when he discovered this, showed that he was not prepared to put up with it anymore and as someone who was not dominated by the appellant but able to stand up for himself. Since, however, this occurred after Dorrian's murder, it was a trivial point: the crucial matter was the nature of the relationship when Dorrian was killed.
52 In this Court it was submitted by the appellant that she was prejudiced by the circumstance that the jury had to consider the evidence of the appellant's relationships and her deceit of Galea in his case as well as hers. The jury was directed in unmistakeable terms of the need to separate the two cases. I am unable to see how any view that the jury came to concerning the reasonable possibility that the facts were as contended by Mr Hogan on Galea's behalf would or, indeed, could impact unfairly on the appellant, having regard to the material that was properly admitted in the case against her. I do not consider that this circumstance was unfairly prejudicial to the appellant or that the jury would have considered that the facts concerning her relationship with Galea were likely to have led them to colour inappropriately their consideration of whether the appellant was guilty of Dorrian's murder.
53 Galea's case at trial was, in substance, that Galea had nothing to do with concealing the body even if the appellant murdered Dorrian. At the centre of this defence was the attempt to persuade the jury that Benjamin was a much better candidate than Galea for the role of accessory. Looking at the matter overall, I do not see how this case unfairly prejudiced the appellant. The Crown case against her was that she killed Dorrian and that Galea, or Benjamin for that matter, did not. The evidence that went to this issue would not have differed if the issue were whether Benjamin and not Galea was the accessory. The reasonable possibility that Galea was not an accessory could not sensibly increase the likelihood that the appellant was the killer. Indeed, it might suggest the opposite. The reasonable possibility that Benjamin had helped to dispose of the body did no more than suggest another hypothesis about the identity of the accessory and could not logically have increased the likelihood that the appellant was the killer rather than Galea. Nor was it suggested otherwise at the trial. At all events, the evidence was admissible for other reasons in the case against the appellant.
54 Generally stated, the appellant submitted in this Court that she was prejudiced by the need to refute any theory put forward on behalf of Galea as well as the Crown case against her. This argument really depends upon the reversal of the onus of proof for such cogency as it has and thus may be immediately rejected. The crucial question was whether the appellant killed Dorrian, whoever helped to dispose of the body and however this was done. The case against her was in substance circumstantial, there being no direct evidence implicating her. The inferences that justified her conviction depended, of course, on the foundational facts. All the foundational facts in both cases - with the exception of the material in Galea's interview with police, and some taped conversations not involving the appellant which the jury was directed to ignore - were common, and properly common, to both cases. What inferences favoured the appellant's guilt and whether they went far enough were for the jury to evaluate. The possibilities that concerned whether Galea was a party, in one way or another, in Dorrian's murder arising out of the evidence concerning Benjamin were directly relevant to the case against the appellant and evidence about them was not unfairly prejudicial.