Scott Alan May v Regina

The appeal against conviction 4Four grounds of appeal were relied upon: 1The conviction of the appellant was unreasonable and cannot be supported by the evidence. 2The directions (both in writing and orally) given on the question of extended joint criminal enterprise were erroneous and occasioned a miscarriage of justice. 3His Honour's directions as to evidence available to "verify independently" evidence of Ryan Burnes occasioned a miscarriage of justice. 4The learned trial judge erred in law in failing to leave the offence of manslaughter as an alternative verdict for the jury's consideration. 5Having regard to the nature of the grounds of appeal it is necessary to deal with the evidence as it emerged at the trial in some detail. I will adopt the language used by the witnesses where possible. The parties were able to reach agreement in respect of certain matters and produced an agreed chronology, which has to some extent assisted in the determination of the appeal. Production of such chronologies is to be encouraged particularly in areas where it is alleged that the verdict was unreasonable. 6A copy of the agreed chronology forms an attachment to this judgment. 7Grossly over-simplified the Crown case was that the appellant and deceased were drug dealers. The appellant sought to take over the deceased's business. On the evening of 2 May 2003, the appellant and the deceased in the company of Mr Burnes drove to Callan Park, Rozelle. The appellant agreed with Mr Burnes that if he (the appellant) gave a pre-arranged signal, Mr Burnes would shoot the deceased. At approximately 10.15pm at Callan Park Mr Burnes shot and killed the deceased. The Crown's primary case was that it occurred following a pre-arranged signal given by the appellant to Mr Burnes. Alternatively the Crown stated that it occurred in the course of a joint criminal enterprise as a consequence of which the appellant along with Mr Burnes was guilty of the murder. 8Having regard to the agreed chronology there appears to be no issue that the deceased was killed at around 10.15pm on 2 May 2003. A number of witnesses gave evidence that around that time they heard what was variously described as three bangs or gunshots. All of them stated that they heard three bangs. Most stated there was one and then there was a pause before the second and third bangs. 9There was evidence from a number of persons who observed the body of the deceased. Constable Barrett said that there was a cigarette butt between his two fingers on his left hand where the ash had burned down. Constable Hellessey gave the same evidence. He also stated that he found a large amount of cash on the deceased and two plastic lolly containers commonly used in the drug trade. Senior Constable Reilly gave similar evidence. She also stated that she saw two projectiles which were consistent with having entered the ground at an angle of 90 degrees. A Christiaan Pieterse who was described without objection as an expert in ballistics gave evidence. He stated he examined the deceased's body and observed three entry and three exit wounds. He stated they were probably discharged from the same gun, although he could not be 100 percent certain. 10Detective Sergeant Kristina O'Hagan, an expert in the examination of firearms and ammunition, stated that she examined the ejection marks on the spent cartridges. She stated they were capable of being caused by a Colt 1911. Dr Botterill, a pathologist, stated the direct cause of death was the three gunshot wounds. The most serious was the first, but all three had caused damage because of what had occurred to the tissue of the lungs. 11DN, who described himself as a heroin user, gave evidence. He stated he met the deceased, known as Al, approximately six months before 2 May 2003. He also knew Al's girlfriend, LM. DN gave evidence that he came to assist the deceased in the distribution of drugs. He stated that he and another man met the deceased at Circular Quay and the deceased gave each of them a mobile phone and some heroin. The heroin was in two lots; one for $100 deals and one for $50 deals. 12About a week before the deceased was murdered DN said he had a discussion with Sean Rafferty. Mr Rafferty told him he could get a constant supply of good quality heroin. 13On the day of the murder DN said he met the deceased at Circular Quay. He was given two M&M containers. He saw him later in the day with a scooter. He gave the telephones back to the deceased together with $3,200 to $3,400. He heard the deceased have a number of telephone conversations, including one with LM. In a different conversation than the one with LM, DN knew from what the deceased said that he (the deceased) was being delayed "because he [the deceased] had to go somewhere and do something". 14DN said he went home at about 8.30pm. He got a call from Mr Rafferty. He said thereafter he met Mr Rafferty near Central Station and they drove to DN's house in Paddington. They arrived there around 1.00am. Mr Rafferty showed him three mobile phones. DN said that he had seen them before with the deceased. He said Mr Rafferty gave him heroin and a blue Siemens mobile phone with a SIM card to put in it. 15DN said he knew the phone numbers of the deceased and tried to ring them. The phone was answered by Mr Rafferty. He asked where the deceased was. Mr Rafferty said "we are just runners and we will be sweet". 16DN said he commenced to work for Mr Rafferty the day following the murder. Mr Rafferty told him he had to make what the deceased was going to make the other guy, being $11,000 per day. 17In cross-examination DN agreed that when the police first spoke to him he went to great lengths to suggest he did not know Mr Rafferty. He was asked about a statement he made to the police in the course of which he said that about a week before the death of the deceased he received a call from a customer, Cass, who requested him to leave the deceased's employ and go and work for him. He agreed what he said was a lie and the person was really Mr Rafferty. 18DN also said that he had known Mr Rafferty for some time. He said he was given a new number by Mr Rafferty about a week before the deceased was killed which he was to give to certain people. 19In cross-examination DN said he saw the telephones in the car in which he and Mr Rafferty drove from Central to Paddington in the early hours of 3 May 2003. He said he was shown them whilst they were both seated in the parked car near his home at Paddington. 20As pointed out in the agreed chronology the telephone records tendered at the trial show the following phone calls: (a)A call from the deceased to DN at 6.19pm on 2 May 2003. (b)A call from Mr Rafferty to DN at 8.57pm on 2 May 2003. (c)A call from DN to Mr Rafferty at 9.01pm on 2 May 2003. (d)A call from Mr Rafferty to DN at 11.43pm on 2 May 2003. The tower location which picked up the call was at the corner of Wattle Street and Pyrmont Bridge Road. (e)A call from Mr Rafferty to DN at 12.47am on 3 May 2003. The tower location which picked up the call was Elizabeth/Hunter Street in Sydney CBD. (f)A call from Mr Rafferty to DN at 0.55am on 3 May 2003. The tower location which picked up the call was South Sydney adjacent to "Erskineville 2". (g)A call at 1.07am from DN to Mr Rafferty on 3 May 2003 from an unknown location. (h)Calls on the blue Siemens phone (the phone DN said was given to him by Mr Rafferty) to the phone number previously used by the deceased as a drug phone. These calls took place at 9.47am, 9.49am and 10.02am on 3 May 2003. 21Mr Sean Rafferty was called to give evidence. He admitted he knew the appellant, Scott May. He denied he knew the deceased. He denied that he received three mobile phones from the appellant, or that the appellant said to him "You'll be starting tomorrow. Here's your phones" on the night of 2 May. He denied he received a call from a person who thought he was Al on 3 May, or a call on that day from a person whom he thought was Al's wife. 22He was asked about evidence that he had given to the Police Integrity Commission. It was put to him that he told the Commission he met the appellant either at his place or down the road. He said he could not recall telling the Police Integrity Commission this and then denied saying it. It was then put to him that he told the Police Integrity Commission that the appellant said to him "You'll be starting tomorrow. Here's your phones" and that he then told "Steve" (an alias for DN). It was also suggested to him that he told the Police Integrity Commission that he met Steve at Michel's Patisserie, the appellant having dropped him off, and that they went back to his (Mr Rafferty's) house and made the caps and sold them. He said he could not remember suggesting this to the Police Integrity Commission. 23It was then suggested to him that he told the Police Integrity Commission that the appellant told him that the phones he (the appellant) gave to him were work phones, that there were three and that he tried them the next day. He said he did not recall saying this but he always lied when he was on heroin and would have done anything to "get out". 24He denied he told the Police Integrity Commission that he had answered the phone and the callers thought he was the deceased. He denied that he said to the Police Integrity Commission that the deceased used to get a ferry across to the city. 25That part of the video of Mr Rafferty's evidence to the Police Integrity Commission which was put to him was shown to him. He admitted it was a video of him giving evidence. 26He admitted he made a statement to the police in July 2003, but says he was threatened that he would be charged with Andrew Heavens' murder. He said that at the time he did not know who Mr Heavens was. He said what he told the Police Integrity Commission was untrue and that the appellant, Scott May, was his mate. 27I have already referred to the telephone calls between Mr Rafferty and DN. In addition, the telephone records in evidence indicate Mr Rafferty called the appellant at 7.26pm on the evening of 2 May 2003 and sent an SMS to him at 8.54pm. The records further indicate that at 8.55pm the appellant called Mr Rafferty. The tower which picked up the call was located at the Carslaw Building close to the University of Sydney. The records also indicated that a further call was made by the appellant to Mr Rafferty at 10.44pm. The tower location which picked up the call was Regent Street, Chippendale. 28SM, who was DN's partner in 2003, gave evidence that DN provided drugs on "Al's behalf". She gave evidence that sometimes she would go to Circular Quay where they met Al who would supply DN with M&M containers containing drugs, and mobile phones. She was aware that Al was the deceased. 29She said that she and DN met with the deceased around 7.00pm on the evening of 2 May. She observed the deceased had a scooter. She heard the deceased making a phone call to someone saying he would be late. She said she recalled that DN gave the mobile phones he had back to the deceased. 30She said she went home and woke up in the early hours of the following morning around 2 or 3 o'clock. She said that Mr Rafferty and DN were there discussing heroin dealing. 31In cross-examination she agreed that DN and Mr Rafferty had discussed going into a drug dealing business together on a number of occasions. She also stated she rang DN from time to time on the drug phones. 32LM who was the partner of the deceased at the time of his death, gave evidence the deceased commenced to sell heroin in about March 2003. She said he used to buy it from the appellant whom she had met. She said the deceased first was into selling himself but as the business increased he employed two runners. She said that he used two mobile phones in the conduct of his business. 33LM said that the deceased told her that the appellant had a conversation with him (the deceased) in which the appellant was saying he wanted the SIM cards because the appellant had given the deceased a start in the business. She said the deceased did not want to give them to him but she believed that they had come to an arrangement whereby the appellant would have one and the deceased would keep the other. 34She said that on the day of the murder, the deceased left home at about 7.30am to drop off some heroin to his runners. He came home and he left again at about 4.00pm. She said he was carrying mini M&M containers which had the heroin, and a Nintendo Gameboy. He had the phones for his runners and probably his own phone. 35LM said she spoke to the deceased twice, possibly three times, and that the last time was at 8.30pm. She said the deceased had told her that Scott was running a bit late and he was going to be home later on. She said that by Scott he meant the appellant, Scott May, and that the deceased said he was going to meet the appellant at Rozelle, Balmain. 36She said she woke up in the morning and rang the hospitals and Central Police Station and no one had heard of the deceased. She said at about 8.30am she received a call from the appellant asking where the deceased was and that he had not showed up last night. 37She said that a couple of days before the deceased's death, the deceased had told her that the appellant had said he wanted the "big fella" to come and work for him. She said the deceased was not very happy, but could not do much about it because the appellant had been asking for the SIM cards, and he, the deceased, wanted to keep on good relations with the appellant. She understood the "big fella" to be Steve (DN). 38She said that she did not speak to the appellant again until August. She said she told the appellant that he was the deceased's best mate. She said the appellant responded, "But I'm not". She said she told the appellant "Well Andrew saw you that way. He saw you as a close mate, even though you were doing business together". She said that the appellant told her that what he felt was different. He also said that they (the police) have "got nothing on me, they can come and search my house, it's sweet". 39She said the deceased smoked Winfield Blue cigarettes. 40She said that when the deceased left home on the morning of 3 May 2003 he had the Gameboy and $16,000 to buy two ounces of heroin from the appellant. 41In cross-examination she agreed that DN had worked for the deceased pretty much regularly for some weeks. She agreed she made a statement to the police on 3 May 2003 and that in that statement she gave to the police three telephone numbers, one of which was used for the runner known as Steve (DN). 42She agreed that in that statement she told the police that the deceased got heroin from a person called "Matey". She agreed that she said in her statement that the reason he was called that was to ensure that if she was spoken to by the police she would not know his identity. She agreed that she said in her statement that she had never spoken to "Matey" on the phone. 43She also agreed that in her statement of 3 May she said nothing about the appellant. She said she believed that the appellant and the deceased were friends. 44LM agreed that she made a further statement to the police on 5 May 2003. She agreed she said in that statement that on the evening of 30 April 2003 the deceased told her that he was going to meet the person "Matey" and said "You know what? Matey thinks the SIM cards are his?" and, "we've had words. Nothing serious but I let him know he can own half". 45She agreed that in her statement of 5 May she said that on 1 May the deceased told her "Matey" wanted Steve (DN) to work for him. 46She said that from what the deceased told her the appellant wanted the deceased to have a four week break from selling drugs so either Steve (DN) or Sean (Mr Rafferty) could work for him. 47She said that in her statements of 3 and 5 May she did not hold anything back but referred to the appellant as "Matey". She agreed that she said "Matey", not Scott May, when she spoke to police on 7 May. 48She agreed she told police on 7 May that when she last saw the deceased on 2 May he had a large amount of cash with him, at least $8,000. She said she agreed she said $16,000 in her evidence but said she meant at least $8,000. 49She agreed that the first time she told the police that she knew the appellant and that he was giving heroin to the deceased was on 9 May. She explained her early statements by saying that she was traumatised and out of her depth. She reiterated "Matey" was the appellant, Scott May, and said that in her earlier statements she did not want to point the finger at anyone. 50Telephone records show that the deceased called LM at 7.59pm on the evening of 2 May and that she called the deceased's drug phone at 11.24am the next day in an attempt to locate him. The latter call is consistent with the evidence of Mr Rafferty to the Police Integrity Commission to the effect that he received a call from the deceased's wife on the morning of 3 May asking what had happened to him. 51The phone records referred to in the agreed chronology also show that the appellant called LM at 7.48pm on the evening of 3 May whilst LM was at The Rocks Police Station. 52A Mr Jamie Knipe gave evidence. He said he knew "Al". He said he broke into the window of an Audi vehicle at an underground carpark at Pyrmont and took a satchel bag. He said the bag had tablets in it which he gave to Al and received $3,000 in exchange. He said that some time later he gave the deceased a scooter. Subsequently in his evidence, he said that this occurred on 2 May. 53He said he tried to ring the deceased on 3 May but to no avail. He said he found out the deceased had been murdered on the Sunday. 54He agreed in cross-examination that he believed the pills were ecstasy tablets and he was worried about having them. 55A Mr David Herr gave evidence. He lived in the same premises as the deceased and LM. He said he was with LM on 2 May around 6.30pm. He said that after about an hour she received a call from the deceased saying that he was going to be late. 56He said that LM told him the next morning that the deceased had not returned. He went to the city with her. Whilst there she rang the deceased's phone but spoke to someone else. He said that he and LM ended up at the Union Hotel at Paddington where he met a person who was introduced as Steve. 57Mr Herr said that the deceased had told him (he did not say when) that he (the deceased) had some ecstasy tablets. 58A Ms Maria Papageorgiou gave evidence. She indicated that in 2003 she was a user of heroin and that she had a number for a particular dealer. She said as a result of using the number she would meet persons known as Al, Steve, J and later Phil, in the city centre near Broadway. 59She said she met Al, the deceased, twice. She learnt that he was killed within a few days of him being shot. 60Ms Papageorgiou said that the last time she had spoken to him before he was shot was on the Thursday or Friday when she asked him if he could wait round for her but he said he couldn't because he had to go and see his boss at Newtown. 61She said she continued to meet Steve (DN). She had been given a different number to contact him by phone a fortnight before the death of the deceased. 62The critical witness was Mr Ryan Burnes. Mr Burnes had pleaded guilty to the murder of the deceased and had been sentenced by Justice Fullerton. 63Mr Burnes gave evidence that he first met the appellant when he was 13, that they became friends and that he lived in the appellant's home when he was 15 for about two to three years. He said he regarded the appellant as his best mate. 64Mr Burnes said he spent New Year's Eve 2002/2003 in the company of the appellant. They went to the Unity Hotel where an argument started and the appellant was king hit. He said the appellant was upset and he and the appellant with other persons left the hotel and went to the appellant's home at Alexandria/Erskineville. Mr Burnes stated he went to the appellant's bedroom where he saw a magazine, a gun clip from a magazine and a couple of bullets on the bed. He said that the appellant had hurt his thumbs in the fight so he helped him put the bullets in the magazine. He stated that the gun was a 1911 Colt and the bullets were of a small copper bronze shape with a marking 45ACP on the bottom. 65He stated that he continued to see the appellant in subsequent months. In April or May he stated the appellant came to his home and asked him whether he would do something for the appellant. He stated that the appellant asked "if I would go all the way for him". Mr Burnes said that the appellant was pretty agitated. He said that the appellant said he would ring the next day. 66Mr Burnes said he next spoke to the appellant the day after that whilst he was at his girlfriend's mother's house. He claimed the appellant said to him "I will meet you out the front in about 10 minutes". He said he met the appellant in the front at about 9.30pm and the appellant told him that they were going to pick someone up, referring to him as Matey. Mr Burnes said that the appellant told him to look under the seat and he did and felt a gun wrapped in a shirt. He said he leant forward and got it from under the seat and identified it as the same gun he saw on New Year's Eve. 67Mr Burnes said that the appellant said to him that "If I say I am going back to get me wallet out of the car" that was the signal to shoot. 68Mr Burnes said that he went with the appellant to Market Town, Leichhardt and saw the deceased. He said the deceased jumped into the front seat. He also said that the deceased had a scooter with him and two phones. 69Mr Burnes said he did not listen to the conversation between the deceased and the appellant but they ended up at Callan Park. He said that everyone got out of the car and the appellant told the deceased to put all the phones and everything else into the car. 70Mr Burnes said that when he got the gun from under the seat he had placed it in the front of his pants and the gun was in the front of his pants when they got out of the car. He said that he did not hear the conversation that took place between the appellant and the deceased after they had got out of the car and whilst they were walking down the hill. He said it was normal until they stopped walking, after which there was a point where the conversation escalated and there was some sort of disagreement. 71He recalled the deceased pulling out a smoke and offering him one. He said the deceased was smoking with his left hand. 72Mr Burnes said that the appellant turned around and looked at him and said "I am going back to the car to get my wallet". Mr Burnes said he took that to mean to shoot. He said he shot the deceased. He said he pulled out the gun, unlocked the safety, shot him once and the deceased fell to the ground. Mr Burnes said he proceeded to walk away but he could hear him so he went back and stood over the top of him and shot him two more times. He said the gun was pointing straight down. 73He said that thereafter he ran up the hill, jumped into the car with the appellant and drove off. The appellant said something like "I knew you would do it". 74The appellant asked him if he wanted the phones and they were in the glove box. He said he opened the glove box and noticed there was two wads of money. Mr Burnes said he did not want the phones. There was a Gameboy there and he took the Gameboy and one of the wads of cash. He said he remembered the Gameboy was purple and there was about $4,000 worth of cash. 75He identified the cigarette that the deceased had offered him as a Winfield Blue. 76Mr Burnes was asked if he spoke to the appellant about what had occurred subsequently. He said the appellant cut him off and asked "What are you talking about?" 77In cross-examination Mr Burnes stated that he understood he got a 25 percent discount on sentence for future assistance in relation to the prosecution of the appellant and that he was aware that if he did not give assistance he faced the prospect of his sentence being increased by a number of years. However, he denied it was the only reason he gave the evidence. 78In cross-examination he said he was in fact 14 when he first met the appellant. He denied he told his de facto wife that his mother left him as a toddler at a bus stop and the appellant's mother found him and took him home and raised him. 79Mr Burnes agreed that from age 12 he had been a patient in psychiatric hospitals diagnosed as schizophrenic and had psychotic episodes on a regular basis. He said the last one was four or five years ago. He agreed that he said at the committal hearing that even in September 2007 he still heard voices in his head. He said he heard voices all the time but it did not necessarily mean he was psychotic. He stated that he was on anti-depressants but he stopped taking anti-psychotic medication a couple of months before the time when he gave his evidence. He agreed he had been on anti-psychotic medication from time to time since he was a teenager. 80Mr Burnes was cross-examined about conversations he had with a Dr Garside when he was a patient at a psychiatric institution, Redbank House. He stated that he did not recall telling Dr Garside that he had killed a number of people. He said he did not deny it but just could not recall it and said that if he had told Dr Garside that he, Mr Burnes, would have believed it to be true. He agreed he told Dr Garside he did not have any close friends at the age of 15. 81Mr Burnes said that when he was discharged from Redbank House he went to live with his godmother at Enmore. He occasionally stayed with his own mother. 82Mr Burnes agreed that he had some scars on his forearms from burn marks which he inflicted on himself. He said he did not recall telling Dr Garside that each one was for a past murder he committed. He subsequently denied he said that. He also said he did not recall telling Dr Garside that he had burnt down an entire school, although he did not deny he said it. He agreed he told Dr Garside that his father was killed in an accident and said the same thing to a friend of his, JM. 83Mr Burnes had a number of conversations with JM whilst JM was wearing a listening device. Mr Burnes acknowledged in his evidence that he was now aware that the conversations he had with JM were being recorded by the police. 84Mr Burnes agreed that one of the things he told JM was that his father in fact was not killed in a motor accident but he was someone who went by the name of Butchy Burnes who was one of the most notorious underworld characters in Sydney and was shot dead by Roger Rogerson. He stated he believed it to be true. He said that JM put the idea into his head and he believed it. Mr Burnes then said he was told it by other people, namely his aunties and uncles and that he knew that it was not rubbish. 85Mr Burnes agreed that in 2006 he told justice health workers he was having panic attacks on a daily basis. He remembered describing the voices he heard as a running commentary. He agreed that he may have told a justice health worker that he had a special relationship with God and was an instrument of God. 86Mr Burnes stated that he was admitted to psychiatric units because of schizophrenia not psychotic episodes. He was asked about a conversation he had with a Dr McClure in June 2006 and agreed that he told him he worried that he caused negative events, accidents and murders which were somehow related to him and were his fault. 87He agreed he told JM he shot a person at Rozelle Hospital and that he might have said it did not worry him because he had been killing people since he was 14. He stated, however, that he was clearly "off my face" at the time of making the statement. 88Mr Burnes stated he did not recall telling JM he had a tattoo on his shoulder that said "Hitman" but agreed that he had one since 1995 or 1996. 89Mr Burnes agreed that from a young age he had used illicit drugs. He stated that he had smoked pot since he was 12 and that he was a regular consumer of cocaine, ice, heroin and benzodiazepam. However, he denied he went to Shellharbour Psychiatric Unit in 2005 because of his drug taking. Mr Burnes agreed that he told police that JM gave him copious amounts of drugs. He said he gave him drugs in February 2006 and that he was popping 20 "benzoes" pills a day. 90Mr Burnes was further cross-examined about various fantasies he had. He said that at one stage he believed his children were being eaten alive and that there was a time when he had real difficulty in telling the difference between reality and what was going on in his head. 91Mr Burnes agreed that he was interviewed by the police on 16 August 2006 at Surry Hills Police Station, the interview being with a Detective Morfoot and Detective McGregor. Mr Burnes agreed that he first told the police on that day that he was living at Nowra. He stated he was trying to deceive them. He also agreed he was trying to deceive them when he said he was living at Annandale. He stated that he did not want to bring the appellant into the interview. He said he was trying to keep the appellant out of the bad parts and to make the police think that he did not have any contact with the appellant after the murder of the deceased. He said there was some point in the interview when he decided to tell the truth. Mr Burnes also said he was not telling the police the truth when he claimed that because of the amount of drugs he pumped into his system, he had trouble remembering last week. 92Mr Burnes said that he and the appellant started using the drugs at the same time but the appellant had got off them. He said he was aware that the appellant had gone onto a methadone programme. 93Mr Burnes agreed he never said a word to the police about going to the appellant's apartment on New Year's Eve and finding a gun. He said that that was before he found out that the deceased had children. However, he agreed that at least six months before the interview he had been told by somebody, possibly JM, that the deceased had children. 94Mr Burnes insisted that he did not mention the gun because of his displaced sense of loyalty. He agreed that in early May 2003 he was using cocaine and heroin but that it was a bit of an exaggeration when he told the police that in May 2003 he was doing drugs every day. He agreed that what he told the police about his drug use was deceitful. 95Mr Burnes agreed that he was aware that there was nine years taken off his sentence for his agreement to give evidence against the appellant. He denied that he told ME, who is the girlfriend of JM, that his mother left him at a bus stop. However, he again said that he was left at the bus stop at the age of six and he went and lived with his godmother. Although he agreed he was living with his mother when he was about 12 or 13. 96He said when he first knew the appellant he only stayed at his house on an occasional basis. He agreed he never told any psychiatric institution or hospital that he lived with the appellant saying that he did not want to get them into any trouble by saying he lived there. 97Mr Burnes was further cross-examined on his conversations with JM. He agreed he told JM at the end of 2003 that he shot a person in Callan Park. He also agreed that in late 2003 he said to JM that someone was trying to set him up. 98In cross-examination he did say he discussed the murder with the appellant. He said the appellant told him he was getting a bit of heat from the coppers. He said that was a couple of months after the murder. He said it was after this conversation that the appellant said "What are you talking about?" whenever he brought up the murder. He said it was like saying "Don't bring it up. Don't want to talk about it". 99Mr Burnes was asked about a conversation he had with JM on 26 December 2003. He said he did not recall JM saying words to the effect "Tell me what the fuck happened" and him (Mr Burnes) saying "One night I spoke to Scott on the phone and he picked me up in his car. We drove to Callan Park. I got out of the car, walked up to him and shot him. I aimed at him and shot him." It was suggested to Mr Burnes that whilst he did that, he used both his hands as if he was firing a shotgun or a rifle. Mr Burnes subsequently stated that he did recall telling JM that he shot the deceased but he did not make any hand gestures. 100Mr Burnes agreed that it was fair to say that from September 2005 he felt resentment towards the appellant because he was able to get off drugs. He agreed it was fair to say he suffered from extreme paranoia at the time. 101Mr Burnes agreed that on 1 and 21 September 2005 he had lunch with JM at a hotel called "Dick's Hotel". He agreed that JM was suggesting to him that the appellant would be an informer to the police and that he (JM) was putting that idea into his head. 102He was then asked about a conversation with JM on 21 December 2005. He agreed that at that time he said to JM that he was a person of interest in relation to the investigation of the death of the deceased and that he asked JM "Do you know the only one that can link it?" and that JM said "I think it's Scotty, and he will". 103Mr Burnes agreed in that context that he was a person who, for many years, had suffered from extensive paranoia and that what JM said had the effect of him becoming quite concerned that the appellant would inform on him. 104Mr Burnes was asked about the meeting he had with JM on 13 February 2006. He denied that on that day he pointed out to JM where he shot the deceased. He said he was not in Callan Park on that day but on the other side of Iron Cove Bridge. 105Mr Burnes said he had heard of the deceased prior to him being shot in the context of him being someone who sold drugs. He stated he was pretty sure he met him in 2001 or2002. He said he was just a bloke named Al. He said that he met him just for five seconds through a car window. He agreed that he told the police in the first interview he had no recollection of seeing a scooter. This was amended in his second and third statements. 106Mr Burnes agreed that the first time he ever said anything to JM about there being a signal to kill the deceased was in the conversation of 13 February 2006. It was put to him he said the signal was "I've got to go to get my wallet, all right, and that's for no, all right. If he said it, but he didn't say that. He started walking up the street so that was the go". Mr Burnes said "No, it would have been the other way around because going back to the car to get my wallet was the signal for the go". When it was suggested to him that what was said was in the recording, Mr Burnes stated that he was probably confused when he said it. 107Mr Burnes agreed that to make the gun fire you would have to slide the barrel back to cock it and said he must have done so. He agreed he never mentioned to anybody about cocking the gun by sliding the barrel. He agreed he told JM "I pulled it up, clicked the safety off, he's heard the click. He's gone to turn around like that. Boom through here. He went down and he's gasping, he's trying to say something but I don't remember what he said and then, fucking, I just walked over the top of him and just, fucking, boom, boom". Mr Burnes said that what he said to JM was "One in the neck, two in the chest", bur he then said "That's my style, bro. One in the head, two in the chest. I was trying to get him in the fucking head, bro, but as soon as he heard that safety clip off". Mr Burnes said that he said that to JM because he was trying to impress him. 108He agreed he told JM that the deceased said "Why? Why?" after the first shot and that Mr Burnes then said "sorry, bro, but boom boom". He said that was the truth. He said he still had no recollection of walking through the grounds of Rozelle Hospital on 13 February 2006 with JM and he did not remember pointing out any area where he said the shooting of the deceased occurred. He agreed he told him that the first shot hit the deceased in the neck. 109He agreed that he told JM he still had the gun that shot the deceased and that was a lie which was "pill driven". He also said that when he told JM he had a 20 gauge shotgun which was his wife's and she liked the 45, it was all rubbish. 110He agreed he told JM he shot his first person when he was 14 and had shot eight people in total. 111Mr Burnes agreed that in April 2002 he used the appellant's name to pretend he was the appellant when arrested by the police. He said the police would have found out who it was the next day. 112He was asked questions about a conversation he had with JM on 13 June, when JM had a Nintendo Gameboy. He agreed he said to JM "Matey had one of these", meaning the deceased and that he also said "And, fucking, he had a scooter as well. Pranged the scooter. Mel wanted to give it to her daughter" and that he told JM "They reckon that was the missing link, the scooter, so we just fucked it off". 113He agreed that he told the police in August 2006 that he had no recollection of the scooter. 114He also said he had no recollection of telling JM that he played the Gameboy for a couple of months and then took it to a "hock shop". He said he recalls saying he gave it to Mel (his girlfriend's) nephew. 115He agreed he said to JM in this conversation that he took the two phones. Immediately after that he said he did not remember saying he took the two phones but that there were two phones and that he did not take the two phones. 116Mr Burnes agreed he lied to JM when he said on 14 February 2006 he had ammunition for a 45. He said he was off his face on 14 February 2006. 117Mr Burnes agreed he never mentioned to police in his first interview that he had seen the gun previously. He said it in a statement a couple of weeks later. He agreed he said in his statement to the police of 16 August 2006 that he had never seen the gun before and that he said "It was a handgun, I'm not sure what type", and then "I don't know I think it was a Colt". He denied he was aware that 1911 was printed on the side of every Colt 45 type gun. He said that before the night of the deceased's murder he had never held a handgun before. 118He agreed that in his statement of 30 August 2006 to the police he stated he remembered seeing the gun at the appellant's place on New Year's Eve. He told the police that the appellant was wearing a shoulder holster on New Year's Eve. He agreed this was never mentioned in response to the Crown's questions. 119He stated that the version he gave to the police on 30 August 2006 was wrong. He said he saw the gun on New Year's Eve once in the bedroom when the appellant asked him to put the bullets into the clip and then he hid it. He said he had about five minutes to look at the gun, contrary to his evidence at the committal proceedings when he said he saw it for a few seconds. 120He agreed that he said to the prosecutor at the committal proceedings that he had seen a 45 prior to New Year's Eve, but said it was in shows and movies. 121He denied that the first time he said he had any discussion with the appellant concerning the murder was in his evidence, saying he remembered telling the police that. He was then asked further about his interview of 16 August where he told the detective that the appellant would say every time he approached him "I don't know what you're talking about". It was suggested to him he said something similar in the interview of 31 August 2006. 122Mr Burnes admitted that when he told the police that the appellant asked him to "knock" the deceased off and gave him details in his car the statement that they then "stopped at a few placed, one of which was a shop to get a drink" was dishonest. Mr Burnes said he said that because he had never done interviews and did not want to get anyone into trouble, he was very confused and very upset. 123He said his recollection was that it was a two-door hatchback he got into, however his statement to police said that he got into the passenger side back door. He said the person who took the statement down must have been confused when he referred to the back door. 124He agreed that in his interview of 30 August 2006 with the police he again said he got into the back passenger side door. He said that when he told the police in that interview "We just stopped at a set of lights, a set of lights at an intersection, bloke jumped in the front", he panicked, he wasn't being totally honest. He agreed that in the interview with the police he said he did not remember the route he drove to Callan Park. He said that all he remembered was getting picked up, stopping at Market Town and then going and parking at Rozelle. 125He agreed that in the interview of 30 August he said "I don't remember shooting him. I don't even remember having a gun. I just had this feeling like I was going to die, I wasn't going to see anyone ever again". He stated that when he said this he was attempting to be truthful with the police. 126He agreed he said to the police in the interview of 30 August "One minute he was having a smoke and then he was just making these sounds" and that he told the police that the appellant was in the car at the time. He said when he told the police the appellant was in the car at the time, he was not saying what he believed to be the truth because he was trying to block it out. 127He agreed he told the police that the appellant sped out of the hospital grounds. 128Mr Burnes reiterated that he got a call from the appellant at his partner's mother's house in Waterloo, and that it took place about ten minutes before he was picked up. He stated that the call came through on a landline. 129He said on the night of the murder he was wearing black tracksuit pants. He agreed that he said at the committal hearing that the black tracksuit pants did not have a drawstring in them and that he needed to use one of his hands to hold the pants up so they would not fall down. 130He stated he recollected holding the gun in his right hand. He agreed he stated at the committal hearing the gun stayed in his pants until he shot the deceased. 131He stated without the weight of the gun pushing down on his pants he did not need to pull them up and he kept them up by holding on to the gun. He stated that if he held on to the top of the butt his pants stayed as they were. 132Mr Burnes said he held the cigarette in his left hand while still holding the gun in his right hand in his pants. He said the deceased offered him a cigarette after the appellant said he was going back to the car to get his wallet. He said that when the deceased offered him a cigarette he was facing him and that he was right handed. He said that he still had the cigarette in his left hand when he shot the deceased. 133He agreed he told the Crown Prosecutor in a conference that he had one glove on and acknowledged that he had not given any evidence about that. He agreed he told the Crown Prosecutor that "when I felt down the car for the gun that's when I put the gloves on". He said he had another gun in his pocket and he did it because of fingerprints. He said he could not recall saying earlier that he had wiped down the gun but said he would have wiped it down because he had touched it with his ungloved hand. 134He reiterated that once he, the appellant and the deceased got out of the car the appellant said to the deceased "leave phones and the money in the car". He said they threw down their phones and the deceased put the money in the glove box. 135Mr Burnes said that he did not see him put the money in his glove box but he must have done so. He said he saw him throw the phones on the seat. 136He agreed that in the interview with the police on 16 August 2006 he told the police that he saw the deceased put money in the glove box but stated he did not actually see him put money in the glove box but he saw him put something in the glove box and throw his phones on the seat. 137He agreed he told the police in the interview of 16 August 2006 that he did not remember how many phones there were. He said he was not being truthful at that time. He said that it was all new to him, he was panicking, he was scared, he did not know what was going to happen. He said he was concerned because the SIM cards out of that phone were getting used the next day. He said he knew that was happening because he was with someone in the city when it occurred. 138He agreed that he told the police that after the murder the appellant gave him some money. It was a couple of thousand, about $5,000. He said that in saying that he was mistaken. 139He agreed that he told the police on 16 August that he did not remember the appellant taking the money out of the glove box but just remembered having it on him. He said he did not know what he meant when he said that. 140He was then asked further questions about his conversation with JM of 13 February 2006 when he told JM that he was going to be paid $40,000 in the next two weeks. He stated he thought he was in psychosis and he was just putting on a front for JM. He agreed that he told the police that it was not true he was going to receive $40,000. 141He agreed that when he told the police on 16 August that he did not take anything of the deceased's he understood that they were suggesting that a Nintendo and Super Mario game had been pawned in the name of his girlfriend. He stated he held back because he was being dishonest. He said he was confused and very shocked. 142Mr Burnes agreed that the police conducted a further interview on 18 January 2007. He agreed that on that day he gave the police a different version of events telling the police the shooting of the deceased was something he did off his own back and nothing to do with the appellant. On that occasion he agreed he told the police the appellant did not say "we got to kill this bloke" but rather "we've got to sort it out. Sort it out meaning, we got to talk to him... had to convince him". He said he was only there to backup the appellant. He agreed that he told the police in that interview that the conversation about a signal was "all bullshit... that was just confusion". He said he misconstrued the appellant saying "going back to the car" as a signal. 143He explained that what he said in that interview was all out of misplaced loyalty. He decided to save the appellant. He decided to lie through his teeth. 144He agreed he told the police that the last words the appellant said were "I'm going back to the car to get my wallet brother" and that that was the last real thing the appellant had to do with the situation. He agreed he told the police he then started to talk to the deceased and he came across all wrong. He said "We [the deceased and Mr Burnes] raised our voices, the deceased started having a smoke and turned his back on me". Mr Burnes told the police that he said "'Don't turn your back on me' and when he turned around he had his hand in his pocket and then bang I shot him". He agreed he told the police that as soon as he said "Don't turn your fucking back on me" the deceased turned around and he was expecting the deceased to swing a punch. He agreed he told the police the deceased came around with his hand in his pocket and "I jumped back and shot him". He agreed he told the police he could hear the deceased gurgling and gasping. He said it was all weird in his mind. He agreed he told the police that when he heard the gurgling it dawned on him that he had shot the deceased. He agreed he told the police that it dawned on him that if it was him on the ground he would not want to be lying there bleeding out and gurgling and he would want it finished. 145Mr Burnes said he gave this version of events out of a misplaced sense of loyalty to the appellant. 146Mr Burnes was then asked about an interview he had with a psychiatrist, Dr Westmore, on 16 March 2007. He agreed that he told Dr Westmore the truth of what happened to the best of his knowledge. He agreed he told Dr Westmore that the appellant approached him about two days before the murder and told him that he (the appellant) was in a bad situation that he could not get out of and the appellant asked him if he could sort things out. He said he understood the appellant to mean "Talk to the bloke, tell him to back up". 147Mr Burnes agreed he told Dr Westmore he could not remember all the specific details of what occurred because he was "coked up and popping pills to calm down". However, he told Dr Westmore that the deceased and the appellant were talking nicely at first but then they started arguing. He said that the appellant then gave the deceased a "look, sort him out, talk to him". 148He agreed that he then told Dr Westmore that he and the deceased commenced to argue. He stated that although he told Dr Westmore that, it was in fact untrue. They had never had an argument but rather the appellant and the deceased had argued. 149He agreed that he told Dr Westmore that the deceased said "to mind your own business" and that he and Mr Burnes became agitated but later he had a cigarette with the deceased to try and settle him down. He acknowledged that was not the truth although they had a cigarette. He said he did not recall telling Dr Westmore that he had a gun with him, but he was not disputing it. He agreed that what he said to Dr Westmore is that all he knew of the deceased was that he was a big drug dealer, "he was abusing me and going off at me. He had his hand in his pocket and I shot him". 150He agreed that there was no point in trying to deceive Dr Westmore. 151Mr Burnes was then asked about the evidence he gave on sentencing before Justice Fullerton. He agreed he told her Honour that the deceased "brushed me off. Like he's [the deceased] giving me the sign, like, as if fuck off, you don't know what you're talking about, and he's turned around like that and then I sort of - sort of, like, went to grab him to say, like, don't turn your fucking back on me, you know what I mean, like". He also agreed he said in his evidence before Justice Fullerton that the deceased had his hand in his pocket which frightened him. He said he was paranoid and scared. 152Mr Burnes said it was the truth when he told the Crown Prosecutor at the sentencing hearing that he got angry with the deceased but said "that was after I got the order to shoot. I wasn't going to shoot him in the back". 153Mr Burnes went on to say "I said sorry when I shot him". It was suggested to him that he had never said that before and he said that he had. 154Mr Burnes agreed he told the Crown Prosecutor at the sentencing hearing he expected to find a weapon under the seat of the car but did not know what it was going to be until he picked it up. 155Mr Burnes then reiterated that if he did not get a signal he was not going to shoot the deceased. He said "It was never one hundred percent certain me jumping in that car that someone was going to die that night". He said he had no idea who he and the appellant were going to meet and why they were going to meet them. He said all he knew was what he was being told to do. 156Mr Burnes went on to say that on the night of the murder he went with a man called Ivan to Redfern and bought drugs. He agreed that it was the first time he had said this but said no one had ever asked him before. He said that out of the $4,000 he took he gave the appellant $1,000 to mind for him because he knew he would spend it. He agreed he never gave that evidence previously. 157Mr Burnes gave evidence that a week or two after the murder he and his de facto wife moved to Annandale and it was there the appellant came round and they had a chat about the whole thing and then after that it was never mentioned again. He agreed he had never given that evidence before. 158Mr Burnes agreed that sometimes he had trouble saying what he meant and that he accepted at the committal hearing that when he was young he had trouble identifying fact from fantasy. He said that he still hears voices to this day and that he sometimes heard them in the witness box. He agreed it was true when he told the police in September 2007 that he really could not remember what happened on 2 May 2003 but said he remembered now because he was made to remember. He agreed that he thought on the day that the deceased might kill him. 159Mr Burnes also agreed that he read certain things about the murder and heard about them on the street prior to speaking to JM or the police speaking to him. 160Finally in cross-examination it was put to Mr Burnes that he did not shoot the deceased at all but just told JM he did to big note himself. He denied this. It was then suggested to him that if he did shoot the deceased the appellant was not there and he replied "Bloody oath he was". In re-examination Mr Burnes said that during the conversation at Annandale the appellant said for him to "keep his mouth shut" as he (the appellant) had just been "pulled over by some copper". 161In re-examination leave was given under s 108 of the Evidence Act 1995 to put prior consistent statements to Mr Burnes. In that context he was referred to his statement of 30 August 2006 in which he made the following statement: "I've gone into the room and Scottie's sitting on the end of the bed. I sat down next to him. He was trying to put some bullets into a clip. By clip I mean the clip that goes in a gun. He was holding the clip in his left hand and his thumb was straight. I saw the clip was black and bullets were like brass or copper coloured. ... He said: 'put these in'. When I was doing that I saw on the back of the bullet on the flat bottom bit it said 45 ACP." Mr Burnes also said in that statement he felt the gun under the bed and looked at it closely. "It had like a long barrel. It had a hammer at the end of it. There was no clip inside it. I put the clip I had with the two bullets in it into the handle". 162Mr Burnes was also referred to his statement of 30 August when he said he remembered the car was a hatch. He stated that when he said in that statement he fired at a horizontal angle when the deceased was on the ground, he meant "straight down", and later agreed that this was vertical. 163He was also referred to his statement of 31 August 2006 where he said he held the gun so that it was pointing at the deceased downwards, still in his right hand. "I looked at his face and saw his eyes open and said: 'Sorry bro'. I pulled the trigger and heard two more bangs". Mr Burnes said that was the truth. 164Mr Burnes was also referred to his interview of 16 August 2006 where he said he did not stop anywhere else but Callan Park and said that was true. Finally Mr Burnes was referred to his 30 August 2006 statement where he said he heard a phone call and the appellant said "Meet you out the front in ten minutes". He stated that was true. 165A medical record from Royal Prince Alfred Hospital in relation to attendance by the appellant on 1 January 2003 with a cut lip and pain in his thumb was tendered. 166There was no record of any phone call from the appellant to Mr Burnes around 9.00 or 9.30pm on the evening of 2 May. However, on the following day between 5.39pm and 6.47pm there were four unsuccessful attempts made to call the appellant from a phone booth on Elizabeth Street, very near where Mr Burnes was then living. That was the booth from which the appellant had sought to call LM. 167JM was then called to give evidence. He stated that he first met the appellant when the appellant was 10 and he was 13 or 14. He said he did not meet Mr Burnes until 2003 or 2004. 168JM said he saw the appellant in company with Mr Burnes and that he (JM) and Mr Burnes smoked cannabis together. 169JM said Mr Burnes told him that he was the person who shot the deceased at Callan Park. JM said he responded that he did not want to hear anything about it and wanted nothing to do with it. JM claims Mr Burnes said "he wanted me to more or less try and get people to put the bounce on Scott to get money out of him, and I said I didn't want nothing to do with it". JM said Mr Burnes claimed he had been ripped off. 170JM said that on Christmas Day 2003 he had lunch with Mr Burnes and their respective girlfriends. He said he recalls watching the movie "Blue Murder" and Mr Burnes said the gun in the show was the same type of gun he used at Callan Park. 171JM said he saw Mr Burnes the day after Christmas Day but he did not mention the appellant. JM said Mr Burnes had already mentioned the appellant and every time he brought it up he (JM) cut him off. 172JM stated that Mr Burnes told him the appellant drove him (Mr Burnes) into Callan Park and the appellant "left something or grabbed something out of the car, and shoot, shoot Andrew Heavens". JM said that Mr Burnes told him the appellant picked him up and took the gun off him. 173JM said Mr Burnes told him he was picked up in a car from Balmain and was driven to Callan Park. 174JM said that he agreed to co-operate with police by wearing a concealed listening device when conversing with Mr Burnes. In cross-examination JM agreed that when he was an inmate at Silverwater Metropolitan Regional Remand Centre he told a police officer he was sick of Mr Burnes bragging about it. He said he first took Mr Burnes as a "bullshitter". He said Mr Burnes had told him his father was a man called Butchy Burnes who had been shot dead by Roger Rogerson. 175JM agreed that he sold drugs to Mr Burnes from time to time. 176JM was cross-examined on his first statement to the police of 17 March 2005. He agreed that in that statement he said that on Boxing Day of the previous year Mr Burnes said to him "I've spoken to Scott. Everything's been sorted out". He agreed he said "What are you talking about?" and Mr Burnes said "The money they owe me". JM added that Mr Burnes said he was fixed up with some kids' clothes and stuff like that, and never mentioned any money. 177JM was referred to his statement to the police which recorded that Mr Burnes had told him there was a motorised scooter which was taken from the deceased, kept by somebody and was seized by the police in a raid. He stated that the person in question was not the appellant. 178JM agreed that he met Mr Burnes at "Dicks Hotel" on 1 September 2005 and on 21 December 2005. He said he also met him on 13 February 2006 when he and Mr Burnes ended up going to fish underneath the Iron Cove Bridge. 179He agreed that on those occasions he was fitted with a listening device. 180JM said on 13 February 2006 he and Mr Burnes walked from his house at Petersham, along Balmain Road and into the grounds of Rozelle Psychiatric Hospital. He said that Mr Burnes said before they reached the park "Do you want me to show you where it happened?" He said that Mr Burnes pointed to a place where he said he killed the deceased. 181JM agreed that on 13 February 2006 Mr Burnes said something about a signal he was given by the appellant in relation to the shooting of the deceased. He agreed that Mr Burnes told him that if the appellant said he was going to get his wallet that all was okay but that if he did not say that then that was the go to shoot him. JM also agreed that Mr Burnes told him that he still had the gun with which he shot the deceased but that he did not recall him saying that his girlfriend liked the gun. 182JM agreed that Mr Burnes had told him that he burnt himself to say he had killed some people and that he had been dumped by his mother at a bus shelter and raised by the appellant's mother. 183JM was shown a DVD recording of an occasion when he was with detectives showing them where he and Mr Burnes had walked through the hospital grounds and where he had indicated certain things to them. He confirmed that what he told the police on that day was the truth in terms of what Mr Burnes had told him. 184Following this evidence the Crown was given leave under s 38 of the Evidence Act to cross-examine JM. In that cross-examination JM gave evidence that Mr Burnes told him he moved the body the same night after he shot the person within a minute or two of the shooting taking place. JM then agreed that the deceased never actually said that but said he shot him in one place, then pointed to another place within a couple of minutes. He agreed there was nothing about this in the recorded conversations. He said there were other conversations he had had with Mr Burnes which were not on tape. 185JM agreed he made a statement on 20 February 2006 containing an account of the fishing trip. He agreed that he said in his statement: "Ryan talked to me about something to do with the signal that Scotty had given Ryan to do it. Ryan said that the signal that Scotty gave to him was something to do with his wallet". 186JM affirmed that the following part of his statement was pretty accurate: "Ryan told me that when the guy heard the click of the gun he turned his head towards Ryan, and Ryan missed his head and shot him near the throat or neck. I said something to him about whether or not the guy he'd shot was gasping or gurgling. Ryan then said 'nuh', and something about the guy trying to talk. I asked him: 'What did he say?' Ryan said that he couldn't talk, but he thought he was trying to say: 'Why?' Ryan said something about the guy falling to the ground, and he then walked as if he, as if re-living what had happened around an imaginary spot on the ground. Ryan appeared to lean forward and with one of his hands pointed at the ground with two fingers extended in the face - in the shape of a gun and said something similar to: 'Bang, bang, two in the chest.'" 187JM agreed that Mr Burnes said nothing about a second spot and nothing about moving a body or dumping a body, during the walk down to the fishing spot. JM said that he could not remember whether that in fact was said or not. He agreed there was nothing about it in his statements and he could not recall any untaped conversations in which Mr Burnes told him about moving the body. 188ME was called. She gave evidence that in 2003 she was in a relationship with JM and that towards the end of 2003 she met Ryan Burnes and his girlfriend Melissa Riley. 189She recalled Mr Burnes and Ms Riley talking about a person named Scott. Mr Burnes sometimes referred to him as being his brother. 190ME stated that at some point when Mr Burnes was at her house, she understood from a conversation that she overheard that Mr Burnes claimed to have killed a person at Callan Park and that he still had the gun. She remembered hearing that his girlfriend Melissa Riley liked the gun. 191ME stated that when Mr Burnes and Melissa Riley came round after Christmas 2003 they appeared to be smashed on drugs. 192The next witness called was a Mr John Collins. He was a heroin user who knew a dealer by the name of Al. He did not know him by any other name. 193Mr Collins agreed he commenced to work for Al. He met him at Circular Quay where he gave Mr Collins drugs in an M&M container which he sold for Al. 194He met another man doing the same thing whose name was Steve. 195Mr Collins said that Al gave him a phone to use. He also noticed that Steve had a mobile phone. He stated that Al gave him the phone at 7am and he would hand it back to him at 8pm at night with the money and the unsold drugs. 196On Saturday 3 May 2003, Mr Collins went to Circular Quay and waited. Al did not turn up so he rang the mobile phone he was usually given. He said someone answered and stated "This is not Al's business any more". 197Mr Collins said that he saw Steve on the street about a week later selling heroin. In cross-examination he agreed he subsequently learned that the person he knew as Al was Andrew Heavens. 198In cross-examination Mr Collins agreed he worked as a runner for Al for ten days straight until the Friday he had the day off which was the day before he found out that Al had died. He agreed that before working for him he went to Circular Quay and met Al and met Steve as well who was with his girlfriend. He agreed that Steve asked him "What are you doing here?" and that he, Mr Collins, replied "I am here as Al's runner" and Steve said "Well, so am I". He agreed that Al said he would pay "$350 a day cash and $200 worth of gear". 199Mr Collins stated that while he was working for the deceased, the deceased told him he had bought 5,300 tablets of ecstasy from a street kid named Jamie. He did not say when exactly he obtained that ecstasy, or from whom they were stolen. 200Mr Collins also gave evidence that a few days before Al's death, Al told him that Steve was only going to be working for him for a couple more days, and then he was going to be working for someone else. He agreed that he said to Steve after the deceased's death: "The cops will find out who's done it." His recollection was that Steve said he had nothing to do with it. 201Melissa Riley, the partner of Ryan Burnes at the time, was called to give evidence. She said she knew the appellant and his partner, Selina. She said that Mr Burnes did not talk about the appellant very much. 202She said that she remembered going to a pub on New Year's Eve 2002 and that someone hit the appellant and that Mr Burnes hit that person. 203Ms Riley agreed that around the start of 2003 she and Mr Burnes lived with her mother at Waterloo. She denied remembering seeing a Nintendo Gameboy at the home and denied taking it to a local pawnshop and pawning it. She identified photocopies of her Centrelink card and Medibank card but repeated she did not pawn the Gameboy. 204She agreed in cross-examination that she was asked whether she recognised the signature on pieces of paper apparently used to pawn the Gameboy and she stated she did not. She agreed she told Detective McGregor that someone may have taken her cards. 205Detective Sergeant Kerfoot attended the crime scene. He gave evidence that that afternoon he met LM with Mr Herr. He heard LM take a phone call and say "Hi Scott. Scott, no, he's dead. Scott, he's dead. They found him at Callan Park". Detective Sergeant Kerfoot said that he did not tell LM how the deceased had been killed. 206Detective Sergeant Kerfoot stated he searched the Manly apartment shared by Mr Burnes and LM with LM's consent. He recalled LM saying that the person Scott she had been speaking to was a really close friend of Andrew. She said that Scott and his partner had recently moved to the Leichhardt area. 207Detective Sergeant Kerfoot said that LM told him that the deceased was using two runners, persons named Steve and Shane Bourke. He said she told him that the deceased was getting heroin from a person called "Matey" but she never knew who "Matey" was. 208A statement obtained from the appellant on 7 May 2003 was read to the jury. So far as relevant it stated as follows: "I first met Andrew Heavens about a year and a half ago. We first met at Clinic 36 which is in Regent Street, Chippendale. This is a Methadone Clinic. ... I know that Andrew lived with his girlfriend [LM] in Manly before he died. I have never been to their place in Manly. Before that he used to live in Annandale on Booth Street, just up the road from me where I lived in the Annandale Lodge on Johnson Street. I used to see Andrew two or three times a week, sometimes more. That was usually at the clinic. ... The last time I saw Andrew was last Wednesday night, 30 April 2003. Earlier that day at the clinic I had spoken to Andrew about getting some State of Origin tickets off him. We arranged to meet later that night at Newtown. No price had been mentioned at this time. He wasn't sure what price or how many he could get, what seats they were, et cetera. I met Andrew that night at Newtown around 6 to 7pm. We met near the RPA Hospital near a little reserve on the main road. He had about half a dozen tickets on him. He wanted $150 for each general admission ticket. I only wanted two ... but the price was too much for me. ... Andrew did ring me after that, but not until Friday 2 May 2003. He rang on my mobile phone about 5pm. I was at home. He said: 'Mate, I need to catch up with you I need to have a chat'. I said: 'Yep, no worries. I can't see you until about 8.30pm tonight at the markets'. He said: 'No worries'. That was the end of the call. Andrew never mentioned what he wanted to see me about. ... The markets are the fruit markets next to Leichhardt Market Town. ... I left home alone about 8.15pm and drove to the markets. On the way Andrew called me as I was running late. I was meant to be there at 8.30pm. Andrew said: 'How far are you?' I said: 'I'll be there soon.' He hung up. I got there about five to ten minutes later and Andrew wasn't there. It was my understanding that Andrew was going to be there by himself ... I waited for him for about five minutes but he wasn't there. I drove around the block around the shopping centre a couple of times looking for him ... Before I left I rang him once on the mobile but his phone came back as uncontactable. This could have meant there was no reception. I then drove straight back home and got there around 9.15pm. I didn't try calling him again. ... The next day Saturday 3 May 2003, I called Andrew on his mobile phone about lunchtime. The phone came back with the same message as the night before, that it was uncontactable. ... I hadn't heard from Andrew all day so I called [LM], his girlfriend, on her mobile phone. That was after dark, sometime after dinner. I said: 'Can I speak to Drew?'. She said: 'I'm at the police station because Drew's been murdered'. I said: 'No, you're joking, are you all right?'. She said: 'I'm in the middle of talking to the police'. I said 'Well, you've got my number call me'. I then hung up. [LM] hadn't rung me back since then ... About a month ago I heard on the street from a bloke named Craig at Clinic 36 that Andrew had either bought or got a big bag of Ecstasy tablets off some junkie who had broken into a car and found these tablets and stolen them. I don't know where or when this was supposed to have happened. I didn't hear any price paid for these. I have also heard that Andrew was involved with some heavy people. By heavy I mean connected criminally. That is all I can think of." 209Detective Sergeant O'Keefe gave evidence that he executed a search warrant at premises in Rosebery which he understood to be where Mr Rafferty lived. He found one Siemens brand mobile phone with an IMEI number of 3[XXXXXXXXXXXX]5. 210A statement of Mr Stephen Pitty was read. He said he lived near Rozelle Hospital. He heard what he interpreted to be gunshots and went outside and saw a car travelling at a speed faster than normal. He said it was within 30 seconds of the shooting. The car was plain white in colour, a four door hatch. He saw three persons in the car. The two in front were definitely male. He was not sure about the person in the rear. 211A Detective Senior Constable Glen Morfoot gave evidence. He stated that on 16 June 2003 LM gave him a proof shot containing some photographic images and she told him that those images were photographs of the appellant, Mr May. He said she told him that the person depicted in those photographs was the person in the earlier statement she had referred to as "Matey". 212She identified a person called Selina as being with the appellant in some of those photographs. 213Detective Morfoot said he executed a search warrant on an entity called Fast Money in Redfern in relation to a Nintendo Gameboy. He stated that four documents were seized and he identified them as pawn slips relating to a Gameboy and Super Mario game in the name of Melissa Riley. They were pawned on 15 May and 14 June 2003. 214Detective Morfoot stated that the person who pawned them provided identification by way of a Centrelink card and Medicare card. Those cards in the name of Melissa Riley were subsequently located by police and photographed. The pawnbroker documents were submitted to an expert along with specimens of Ms Riley's signature. The handwriting expert said it was likely but not certain that the signature on the pawnbroker documents was that of Ms Riley. 215Detective Morfoot gave evidence that the following matters relevant to the murder were not the subject of any public statement. First, the calibre of the ammunition used. Second, the fact that the bullets could have been fired by a 1911 model 45 calibre Colt handgun. Third, that the deceased was shot once in the left shoulder area and twice while lying on the ground. Fourth, that the deceased when found had his right hand in his jacket pocket, that a cigarette butt was found in the left hand of the deceased with some ash still attached when the police initially got there and that a packet of Winfield Blue cigarettes was found on the deceased. 216Detective Morfoot also gave evidence that on 23 July 2003 a listening device was placed at the premises then occupied by the appellant and his de facto wife Selina Markos. An extract of a recording of 7 August 2003 was tendered in which the following statements were made: "... I've already made a fucken statement, you know what I mean, I'm just fucken you know, like just fuck off, I've done what I fucken had to do for youse mate, you know. I wish I hadn't even done it now, you know what I mean? (indecipherable) hassle me ... I haven't fucked up, you know what I mean, but I just fucked up by making a statement ..." 217Detective Morfoot gave evidence that on 13 June 2006 the appellant and Mr Burnes were placed in a room at Parramatta Police Station and their conversation was monitored. An extract of what was recorded was tendered in evidence. In the course of it the appellant is recorded as saying that Mr Rafferty had "buckled ... He was talking shit, mate. About this, a bit of this, a bit of that, you know what I mean?" He was also recorded as saying that Mr Rafferty was "starting rumours ... People just have to keep their mouth shut". It also records the appellant saying that Mr Rafferty "caused me much fucken headaches and drama and shit for me that I've got nothing to do with". 218Detective Morfoot also gave evidence that all that was found at the search of the scene was a body located at a particular place, cartridges near to it, and three bullets, two of which were immediately underneath the body of Mr Heavens or where his body had been and one which was nearby. 219Detective Morfoot also said that, from the information he had received from sources, a scooter the deceased had on him on the night of his death was not motorised. 220Detective Senior Constable McGregor gave evidence. She stated the first volume of the brief of evidence was served on Mr Burnes' legal representatives on 17 October 2006.

Ground 2 of the Notice of Appeal 221It is convenient to deal first with the second ground of appeal, namely, that the directions (both in writing and orally) given on the question of extended joint criminal enterprise were incorrect and occasioned a miscarriage of justice.

The submissions leading to the directions on joint criminal enterprise 222In his opening address, the Crown made the following remarks in relation to the charge of murder against the appellant: "You will see, members of the Jury, that the first charge says that Mr May, on 2 May 2003, did murder Andrew Heavens. The prosecution case, on that charge, is not that Mr May actually personally killed Mr Heavens, rather, the charge is that he caused another man, Ryan Burnes, to kill Mr Heavens. He asked Mr Burnes to do it, encouraged Mr Burnes to do it, he took Mr Burnes to the place where the murder occurred and he provided him with the firearm which Mr Burnes used to do the killing. That, in a very brief one-liner, is the prosecution case on the first charge." 223The accused was also charged in the alternative of being an accessory to the murder. The Crown in opening explained that charge in the following fashion: "The possibility which the second charge relates to is that, if you are not satisfied beyond reasonable doubt that Mr Burnes was acting at the request or direction of Mr May when he killed him but was possibly acting for some motive of his own, independent of any command or request by the accused when he killed the deceased. But knowing that, Mr May then still drove him away from the scene of the murder to protect Mr Burnes from getting caught for the murder. So it is an act of assistance to a murderer to escape the consequences of what he did. That is the alternative charge. You would only go to that alternative charge if you were not satisfied, beyond reasonable doubt, that it was actually Mr May who, to use a shorthand word for it, commissioned the murder but you were satisfied that he was there, he was present and he drove Mr Burnes away." 224Prior to closing addresses and the trial judge's summing-up, there was extensive discussion between the Crown, counsel for the appellant and the trial judge, as to the appropriate form of directions to be given. Although not ultimately relevant to the determination of the validity of the jury directions, the exchange illuminates the nature of the difficulty in this case. 225In that context the Crown initially said (T969) that if the jury thought that what Mr Burnes said was substantially true but that he had misunderstood the signal, the accused would not be guilty of murder. However, on the following day the Crown changed its position. In that context the following exchange occurred (from T972): "HIS HONOUR: My understanding of the way in which you were putting the case against Mr May in relation to the first charge, forget the second charge, is that, if you like, there was a common purpose, that is, a joint criminal enterprise between Mr May and Mr Burnes. CROWN PROSECUTOR: Yes. HIS HONOUR: Have I got that wrong? CROWN PROSECUTOR: No. That's correct. HIS HONOUR: You are not suggesting accessorial liability for murder in that sense on the first charge? CROWN PROSECUTOR: No. They were engaged in a joint enterprise. HIS HONOUR: So that would mean even if Mr Burnes was, say, for example, by reason of mental defect not guilty of murder, Mr May would be? CROWN PROSECUTOR: Yes. HIS HONOUR: I am raising that only hypothetically. It was the discussion about the first degree and second degree that caused me- CROWN PROSECUTOR: No. It was a little beside the point. The better way to put it, they are engaged in a joint criminal enterprise. HIS HONOUR: Yes. CROWN PROSECUTOR: What I said to your Honour yesterday about what might happen if the jury thought that Mr Burnes may have misunderstood the signal and gone ahead and shot- HIS HONOUR: I was going to come to that. CROWN PROSECUTOR: --Mr Heavens, despite a negative signal, I will have to revise what I have said. It is the Crown case, even if that is the case, that Mr May would still be guilty of murder. HIS HONOUR: Because it was a possible outcome from the joint criminal enterprise. CROWN PROSECUTOR: Yes. Exactly. HIS HONOUR: Doesn't that mean on the facts before the Court now that the alternate charge could never be found? CROWN PROSECUTOR: It could only be found if the jury drew from those facts that Mr May had nothing to do with the murder of Mr Burnes, that is, hadn't provided the gun, hadn't encouraged, had no foreknowledge of its prospect, but nonetheless was present and knowing that Mr Burnes had murdered the deceased threw them away. That is an unlikely path, unlikely to the point of-- HIS HONOUR: Almost not being available. 226Thereafter the Crown put its closing address to the jury, during which the following remarks were made (T977): "I am going to explain the basis upon which, that is, the theoretical or legal basis upon which, we say the accused, Mr May, is guilty of murder. You don't have to actually pull the trigger to kill somebody to be guilty of the crime of murder. If you supplied to the killer, for example, the firearm knowing that the killer is going to use it to kill, or expecting that he will; if you drive the killer to the scene of the killing knowing, or expecting, that the killer may kill somebody there; if you ask the killer to kill on your behalf and therefore does so, then you are guilty of murder just the same as you pulled the trigger that kills the victim. That is the basis upon which the Crown says that Mr May is guilty of murder. He combined with Mr Burnes in an enterprise which at least had as a possible consequence, at least, that Andrew Heavens would be killed. The Crown's primary case is to you that the very object of the enterprise was the murder of Andrew Heavens, but it is sufficient if you find from these circumstances that Mr Burnes killed Andrew Heavens and that Mr May recognised, or contemplated, that as a possible consequence of the enterprise they were engaged in. But, in reality, the Crown case is it was Mr May's intention all along that if Heavens did not accede, did not agree to what May wanted from him, that he would be killed." And later (T985): "Now Mr Burnes' evidence is that prior to arriving at Callan Park, prior to Mr Heavens getting in the car, he had been told that he was to shoot Mr Heavens if he gave a particular signal, and the signal as he described was: 'If I say I'm going back to the car to get my wallet, then you do it.' Now that is exactly what happened. Mr May gave the signal, he said: 'I am going back to the car to get my wallet.'" 227The Crown dealt with the second charge in the following manner (T1005): "However, in the theoretical event that you do find the accused not guilty of murder you then consider the second charge. It is, essentially, that Mr May, even though not guilty of involvement in the murder was nonetheless present for some reason and assisted Mr Burnes to get away from the scene after the murder. That's the essence of the second charge. It is a charge which you are unlikely to consider because I suggest you would be unlikely to come to a conclusion that that factual scenario actually occurred. It is just there in the unlikely eventuality that you think, yes, Mr May was there but he didn't encourage the murder, he was simply there. Mr Burnes murdered the deceased for his own purposes, not to do with Mr May and then Mr May drove him away." 228Subsequently (T1036), the trial judge provided proposed written directions with regard to murder and gave them to the parties. Counsel for the defence informed the trial judge that he had no matters to raise in relation to the written directions the judge proposed to give. 229There were further discussions as to the appropriate direction to be given to take account of the consequences if the jury found Mr Burnes got the signal mixed up. In that context, his Honour made the following remarks (T1093-1094): "Leaving aside the manner in which one comes to that conclusion, it seems to me that the issue of the mistake in the signal basis as you have raised it, some factual issues [sic]. That is this: If the jury came to the view it was all agreed beforehand but were not satisfied that he got the signal right and he shot him in circumstances where Mr May by this stage, though found was involved, had said not to shoot him then the factual question is, is that a crime - truncated, contemplated by the agreement. ... On the other alternative, it may be that they could take the factual view that the signal, if it was not to shoot, was in the context of this factual finding that they are making, a withdrawal from the joint common enterprise - from the common enterprise. That's why I think it's necessary to put paragraph 4 [of the directions] in." 230The Crown Prosecutor rejected the proposition that the concept of withdrawal could arise in this case. The trial judge, however, expressed the following view: "That's normally if it goes ahead as originally contemplated and 5 people rob a bank and one of them withdrawals [sic] it has to be communicated to the other participants. And, secondly, you have to then prevent it occurring because you are held by your original agreement. In this case, where he is ordering the murder, and gives a signal that says 'don't murder', he is communicating a withdrawal from the agreement to murder, and in the circumstances taking steps to - I hesitate to say, ensure - but to prevent the murder occurring." 231During the course of the discussion the Crown indicated reluctance to embrace the extended joint criminal enterprise area of liability because a difficulty would arise as to the foundational crime. The discussion which took place on this issue between the trial judge and the Crown (at T1127), while not ultimately relevant to the validity of the jury directions, is illuminating of the reasons the directions took the form they did: "CROWN PROSECUTOR: It is not a case of extended joint criminal enterprise in which they had embarked upon some other object and the killing of the deceased was an incident of that object. In my submission what has arisen is an evidentiary question, that is, would the jury be satisfied, given the prior different description of the signal, that a positive signal had indeed been given? That's the issue that arises. HIS HONOUR: Yes. CROWN PROSECUTOR: What in my submission the jury should be told in your Honour's oral directions is that the Crown relies on the following facts in proof of a joint criminal enterprise, that is, a mutual intention that Heavens should be killed: Firstly, the overture by the accused in the days prior to the murder asking Burnes would he be prepared to go all the way. Secondly, picking up Burnes on the evening of the murder. Thirdly, supplying him with a loaded firearm. Fourthly, putting him in a position with the deceased which was in a dark and secluded place. Fifthly - and these are all evidentiary matters - fifthly, saying to Burnes, or rather leaving the scene and at the same time saying: 'I'm going back to get my wallet.' Sixthly, exhibiting his apparent satisfaction of what Burnes had done by saying: 'I knew you'd do it, you're a mad cunt.' It is from those six essential facts that the Crown seeks the jury to draw the inference that there was a joint criminal enterprise. So with that background, the issue as to whether the fifth of those facts is established to the jury's satisfaction is simply a matter of evidence. HIS HONOUR: Except that the overture to go 'all the way', which was your first -- CROWN PROSECUTOR: Yes. HIS HONOUR: --and seemingly necessary if not sufficient aspect of the joint criminal enterprise, included in it an invitation, on the Crown's case, to kill at the signal of Mr May. CROWN PROSECUTOR: Yes. HIS HONOUR: And therefore the agreement, the enterprise to kill, becomes on one view conditioned on receiving the appropriate signal. CROWN PROSECUTOR: Your Honour, in my respectful submission that is too refined a way of approaching what the Crown says is the reality of what was going on. I mean, the intention to kill doesn't have to be set in concrete at any particular time. HIS HONOUR: I accept all of that, but in this case as a matter of fact on your case it was. So on your case there was an agreement to kill. CROWN PROSECUTOR: Yes. HIS HONOUR: But there was an agreement to kill conditioned by a signal from May on your case. Now it may be, fore example, that that signal was not to have been given if, for example, the phones and the SIM cards and the money or the drugs or whatever it happened to be was given over. CROWN PROSECUTOR: Yes. HIS HONOUR: In other words, the killing may be an alternative to what was otherwise an outcome that was equally possible. CROWN PROSECUTOR: Yes, I appreciate that. HIS HONOUR: So that therefore the criminal enterprise is a criminal enterprise to, if you like, back up May in case things don't go as May hoped they would. CROWN PROSECUTOR: Yes. HIS HONOUR: In those circumstances it seems to me that if the jury are unable to find that the signal was given, they would need to be able to be satisfied to the requisite standard that a killing on a misunderstood signal or a killing otherwise was a possible outcome contemplated by Mr May. CROWN PROSECUTOR: Yes. I see the force of what your Honour says. In that event, can I put it this way. The difficulty-- HIS HONOUR: I'm not firm on that view, Mr Crown. CROWN PROSECUTOR: Yes. HIS HONOUR: I'm suggesting to you an issue which, if you want to deal with it, by all means. CROWN PROSECUTOR: Yes, I will. Your Honour, the reason for my reluctance to embrace the extended joint criminal enterprise area of liability is that a difficulty will arise as to what is what I might call the foundational crime. HIS HONOUR: Yes. CROWN PROSECUTOR: If the murder is a foreseeable incident of it. HIS HONOUR: It's an unusual direction. CROWN PROSECUTOR: Yes. It could be that it was a plan to make a demand with threats. HIS HONOUR: That's possible. CROWN PROSECUTOR: Yes. And rationally possible. HIS HONOUR: Yes. CROWN PROSECUTOR: So if it were couched in that way, that if the jury were not satisfied on all the evidence that there had been this joint criminal enterprise to kill, and of course they don't have to be satisfied that that pertained at all relevant times, it simply has to pertain at a time anterior to the murder. HIS HONOUR: Yes. CROWN PROSECUTOR: So in other words, if they were satisfied that a signal was given, a positive signal, that would suffice. If they weren't so satisfied, they would then consider what I'll call common purpose for shorthand purposes. HIS HONOUR: Yes. CROWN PROSECUTOR: On the basis that it is open to them to be satisfied that the men jointly embarked on a joint criminal enterprise to demand of Mr Heavens that he hand over property, with menaces, and in the circumstances in particular that Mr Burnes was armed with a loaded gun, that Mr May would have contemplated at least as a possible outcome that Mr Burnes would shoot the deceased with the intent at least to cause grievous bodily harm. HIS HONOUR: I think, and I don't mean this in any way critically, because I realise this is an unusual direction, and an unusual discussion, but I think you're being hidebound with pigeon-holes. The difficulty is, it seems to me, that if the crime, the underlying crime, is making threats with menaces-- CROWN PROSECUTOR: Yes. HIS HONOUR: --then that's a case that, frankly, I don't know that anyone has suggested. I mean, what was the threat? I mean, for all we know there was no threat, just a discussion which, if it went the wrong way, you'd get the right - I say 'right' in inverted commas - the 'right' signal, and someone would be shot. CROWN PROSECUTOR: Yes. HIS HONOUR: It seems to me that once there is a plan, the ultimate outcome of which or one of the ultimate outcomes of which is a planned murder-- CROWN PROSECUTOR: Yes. HIS HONOUR: --you clearly have common purpose. CROWN PROSECUTOR: Yes. HIS HONOUR: And if as a result of the implementation of that plan, albeit misunderstood by one of the parties-- CROWN PROSECUTOR: Yes. HIS HONOUR: --is a result which is contemplated as a possible result-- CROWN PROSECUTOR: Yes. HIS HONOUR: --then you have a joint enterprise and, if you like, an extended criminal act."

The directions 232Ultimately the written directions to the jury were in the following terms, so far as relevant: "An act of the Accused - Joint Criminal Enterprise 3.The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or the other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime or are in a joint criminal enterprise. (i)The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (ii)A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. (iii)A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed. 4.Where (i)instead of the previous agreement being implemented, a crime was committed by one of the parties to the joint criminal enterprise; and (ii)each played some part in committing that crime; and (iii)the Crown establishes (beyond reasonable doubt) that the crime committed was a possible incident in the execution of the agreed crime and contemplated by the accused, the accused is equally guilty of that committed crime. It does not matter that the crime committed does not correspond in every detail with that contemplated. There must, however, be a substantial risk that it will be committed and not just a slender chance. 5.To be an act of the accused under either paragraphs 3 and 4 above, the necessary elements are required to be proved by the Crown beyond a reasonable doubt." 233The trial judge gave the following directions in his summing-up (at [48]-[52]): "[48]if ... you would say ... there is an agreement that Mr Heavens be killed, that agreement would be an agreement to commit a crime, and which one of the two persons in that agreement pulled the trigger doesn't matter if both of them were present and the agreement were fulfilled. [49]In paragraph 4 [of the written directions] I deal with an issue relating to a different agreement, or a different crime in this way: Where, instead of the previous agreement being implemented, a crime was committed by one of the parties to the joint criminal enterprise and each of the parties played some part in committing that crime and the Crown establishes beyond reasonable doubt that the crime committed was a possible incident in the execution of the agreed crime, and contemplated by the accused, the accused is equally guilty of that committed crime. It does not matter that the crime committed does not correspond in every detail with that contemplated. There must, however, be a substantial risk that will be committed and not just a slender chance. [50]Again, in 5 [of the written directions], I make clear that the act of the accused under those two joint enterprise aspects, the necessary elements are required to be proved by the Crown beyond a reasonable doubt. [51]Paragraph 4 deals with the situation, ladies and gentlemen, in which, for example, were you to come to a factual situation, or the factual finding, that there was an agreement by Mr May and Mr Burnes that Mr Heavens would be killed on a particular signal, but you were not satisfied that the signal was given, or the signal was understood correctly, you could still convict Mr May if you were satisfied, on that factual scenario, beyond a reasonable doubt, that the murder was a possible incident in the execution of what was otherwise agreed and the murder was contemplated by the accused, Mr May, that is, that its possible commission in those circumstances (the misunderstood signal) was a matter contemplated. [52]On the other hand, if you came to the view that it was not a possible incident or it was not contemplated, then you could not convict in those circumstances. That's a particular factual scenario which you may or may not get to." 234In relation to the second charge being an accessory after the fact the trial judge directed the jury only to consider it if it was not satisfied beyond reasonable doubt of the prior agreement or if the accused had withdrawn from any prior agreements or had not contemplated a murder but was there and drove Mr Burnes away.

The appellant's submissions 235The appellant's submissions on this ground were essentially based on the proposition that extended joint criminal enterprise should not have been left to the jury as an alternative to joint criminal enterprise. This was, it was submitted, for three related reasons. The first was that no foundational agreement the subject of the extended joint criminal enterprise was identified. Second, there was no evidence of any such agreement ever having been formed and, third, that a contingent agreement to murder is insufficient to found an agreement the subject of joint criminal enterprise. 236The appellant relied on MacAuliffe v R [1995] HCA 37; (1995) 183 CLR 108; Johns v R [1980] HCA 3; (1980) 143 CLR 108 and Taufahema v R [2006] NSWCCA 152; (2006) 162 A Crim R 152 in contending that for extended joint criminal enterprise to be left to the jury, it was necessary to identify a foundational offence other than that which was committed (in this case the murder) and that the murder was seen by the accused as a possible result of the agreement to commit the foundational offence. 237The appellant submitted that all that should have been left to the jury for its consideration was the question of whether the deceased was killed by Mr Burnes as a result of him being given the signal by the appellant which was the subject of their agreement. However, the appellant did not criticise the alternate charge of being an accessory after the fact being left to the jury. 238The appellant submitted that the plan to shoot the deceased was contingent on certain events occurring. In the absence of those events occurring, there was no agreement between the accused and Mr Burnes to murder the deceased. He submitted that if the jury accepted the scenario that Mr Burnes had either misunderstood the signal or that there had been no signal, then there was never a concluded plan to kill the deceased but rather a contingent agreement which was not itself a crime. The appellant thus submitted that in the absence of any other foundational offence the subject of a joint criminal enterprise he could not be guilty of murder. 239The appellant submitted in that context that the written directions were incorrect in that the reference in par 4(iii) to the "agreed crime" and the "contemplated" crime constituted a misdirection as it did not identify any alternative joint criminal enterprise other than to murder the deceased on the giving of a signal. He also contended that pars [49] and [51] of the oral directions constituted a misdirection because the different agreement or different crime in par [49] was not identified and the expression "what was otherwise agreed" in par [51] also did not identify a different foundational crime to that of murder.

The Crown's submissions 240The Crown submitted that murder was left to the jury on two bases. The first, it submitted, was that by a pre-arranged signal the appellant directed Mr Burnes to shoot and kill the deceased. The Crown agreed with the appellant that this was "a straightforward joint criminal enterprise case". The Crown submitted the alternative was that if the jury were not satisfied the appellant had given the signal or that Mr Burnes mistakenly thought he had, the possibility of this confusion arising was a possible incident of carrying out of the agreed crime. However, the Crown, as with the direction, did not suggest any crime other than murder to be the subject of the joint criminal enterprise. 241The Crown rejected the proposition that a contingent agreement could not provide the foundation for a joint criminal enterprise. It relied in that context on R v Mills [1963] 1 QB 522; (1962) 47 Cr App Rep 49 where the Court of Criminal Appeal in England and Wales held that an arrangement which would amount to an agreement constituting a conspiracy is not necessarily prevented from constituting conspiracy by reason of the fact that it contains some reservation, expressed or implied. The Crown submitted that in the present case the conduct of the appellant and Mr Burnes prior to the signal was conduct for which they could have been charged with conspiracy to murder. 242The Crown also submitted that there was a common purpose between Mr Burnes and the appellant at least (emphasis in submission) involving Mr Burnes, who was armed with a loaded gun, picking up and confronting the deceased about taking over his drug business. The Crown submitted there was a common criminal design and at least the possible use of a loaded gun to kill. In those circumstances, it was submitted, the appellant and Mr Burnes had the purpose of an act of criminal violence. The Crown in its written submissions, also put the following proposition: "[82]The agreed crime, shoot upon the signal, had a number of possible incidents to it. They included 'back up' where Burnes saw fit, a man with a history of mental and drug issues acting out of panic or anger, a man such as Burnes misconstruing the signal. Burnes was not a professional assassin who could be relied upon to act with precision. These were incidents occurring without signal. It was a question for the jury whether the appellant foresaw as a possible incident to their common design to kill the deceased upon his signal, these events occurring. If so he was guilty of murder." 243The Crown also pointed out that no objection was taken to the directions of the trial judge and that r 4 of the Criminal Appeal Rules applies. It was submitted leave should not be given to raise the issue. 244In oral address the Crown submitted that for extended common purpose it was not necessary for the prosecution to identify the joint criminal enterprise with complete specificity, relying on what was said by Gleeson CJ and Callinan J in R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [31]. The Crown submitted that the alternatives were adequately identified in the present case.

The appellant's submissions on rule 4 245The appellant submitted that leave should be granted to rely on this ground because the misdirection for which it contends may have affected the verdict of the jury and there was thus a miscarriage of justice. 246He also submitted that the ground of appeal relating to the directions concerning joint criminal enterprise related purely to a question of law in respect of which an appeal is brought as of right (cf 5(1)(a) of the Criminal Appeal Act 1912). He submitted that r 4 should be read down to exclude its operation in those circumstances.

Consideration 247The difficulty which arose on this ground of appeal derives from what might be described as the different versions given by Mr Burnes of the instructions given to him by the appellant. The evidence of Mr Burnes in chief was that the appellant said to him that if he, the appellant, said "I am going back to the car to get my wallet" that was the signal to shoot, and that that signal was given (see [67]-[72] above). By contrast he apparently told JM on 13 February 2006 that the statement "I've got to go to get my wallet" was the signal not to shoot, but that the appellant did not say it (see [106] above). In January 2007 he gave a further version to the police, namely that he shot the deceased on his own initiative and that the statement of the appellant, "I'm going back to the car to get my wallet", was not a signal and that was the last thing he (the appellant) had to do with the matter (see [142]-[144] above). 248In these circumstances the question arose as to whether the appellant could be convicted if a jury was satisfied that the appellant and Mr Burnes had agreed that the deceased would be killed on a signal but not satisfied that the signal was given. 249In my opinion, the manner in which this case was conducted did not involve the question of extended joint criminal enterprise. This is because for liability to arise as a result of extended joint enterprise it is necessary for the prosecution to prove beyond reasonable doubt an agreement between the accused and the person who physically committed the offence charged (the actual offence) to commit a different offence (the foundational offence) in circumstances where it is proved beyond reasonable doubt that the accused knew of the possibility that the actual offence might be committed. 250In the present case the actual offence and the foundational offence were the same - the murder of the deceased. It was not in dispute between the parties (subject to ground 1 of the appeal) that if the jury was satisfied beyond reasonable doubt that Mr Burnes shot the deceased on the agreed signal, then the appellant would be guilty of murder. The issue which arose was whether if the jury was satisfied beyond reasonable doubt that there was an agreement between the appellant and Mr Burnes to shoot the deceased on an agreed signal but not that the signal was given, the appellant could still be guilty of murder. 251In my opinion, the jury, if properly directed, could find the appellant guilty in these circumstances. The joint criminal enterprise was to murder the deceased in certain circumstances, namely on the giving of the signal. If the jury was satisfied beyond reasonable doubt that the appellant was aware of the possibility that Mr Burnes could shoot the deceased absent the signal and that that in fact occurred, they could find him guilty. This, however, is not a case of extended joint criminal enterprise. What might have been called the foundational offence is the same as the actual offence, namely murder. 252None of the authorities dealing with joint criminal enterprise or extended joint criminal enterprise have considered the question which arises in this case. However, on analysis, in my opinion, they do support the conclusion which I have reached. 253In Johns v R supra the accused was convicted of the murder of Mr Morriss in circumstances where the evidence showed that it was agreed between him and a Mr Watson that he would drive Mr Watson to Kings Cross where Watson was to change cars and in company with another person rob Mr Morriss. Johns knew Watson was quick-tempered and capable of violence and that he always carried a gun. On the way to Kings Cross Watson told Johns that Morriss was always armed and "wouldn't stand any mucking round if it came to a showdown". Watson killed Morriss in the course of the attempted robbery. The decision of the Court of Criminal Appeal upholding the conviction of Johns for murder was upheld by the High Court. In the course of his judgment Stephen J made the following remarks ((1980) 143 CLR 108 at 118-119): "The criminal responsibility here under discussion is not that relating to the crime which is the prime object of a criminal venture. As to that crime, one who, while not actually physically present and participating in its commission, nevertheless knows what is contemplated, and both approves of it and in some way encourages it thereby becomes an accessory before the fact: Russell on Crime, 12th ed. (1964), vol. 1, p. 151. His knowledge, coupled with his actions, involves him in complicity in that crime. But if, in carrying out that contemplated crime, another crime is committed there arises the question of the complicity of those not directly engaged in its commission. The concept of common purpose provides the measure of complicity, the scope of that common purpose determining whether the accessory before the fact to the original crime is also to share in complicity in the other crime. If the scope of the purpose common both to the principal offender and to the accessory is found to include the other crime, the accessory will be fixed with criminal responsibility for it. In determining scope, it may either be restricted to what the accessory regarded as probable consequences of the criminal venture or may be extended to include what he regarded as possibly involved in the venture. To apply to such a situation a criterion of what is probable, as contrasted with what is merely possible, seems singularly inappropriate. The commission of that other crime will not have been the prime object of the criminal venture; it will in all probability have been committed as a reaction to whatever response is made by the victim, or by others who attempt to frustrate the venture, upon suddenly being confronted by the criminals. There will usually be a variety of possible responses to the criminal act. With each of these contingencies the criminals will have to reckon, if they are at all to plan their future action. What they conceive of as contingent reactions to each possible response will have, interposed between these reactions and the planned crime, at least one and perhaps a whole sequence of spontaneous and relatively unpredictable events. In those circumstances it is understandable that criminal liability should be made to depend upon the jury's assessment of whether or not the accessory before the fact must have been aware of the possibility that responses by the victim or by third parties would produce the reaction by the principal offender which led to the other crime. In such a speculative area, it would be remarkable were the accessory's liability for the other crime to depend upon the jury assessing, in terms of 'more probable than not', the degree of probability or improbability which the accessory attached to the happening of the particular reaction by the principal offender which in fact occurred, itself dependent upon the intervening uncertain responses of victim or third parties. Yet that is what would be required were an accessory's responsibility to depend upon such a criterion of probability, necessarily involving a balancing process and often a nice assessment of odds. I have spoken of intervening contingencies dependent upon human responses; however to these must be added those contingencies which may arise without any human intervention." See also Mason, Murphy and Wilson JJ at 125. 254Johns was a case of what is now commonly described as extended joint criminal enterprise. What is important for the present case is that at least in circumstances of a different foundational offence, liability for the actual offence arose where the accessory was aware of the possibility that the response of the victim would produce the reaction in the principal offender which led to the murder. If the principle in that case was applicable to the circumstances of the present case, then the appellant would be guilty of murder if he knew the circumstances in which the deceased was to be confronted could lead to his murder irrespective of whether or not a signal was given. 255In MacAuliffe v R supra, Brennan CJ, Deane, Dawson, Toohey and Gummow JJ explained the doctrine of common purpose in the following terms (at 113-114): "The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission (Giorgianni v R (1985) 156 CLR 473). But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission (cf R v Lowery and King [No 2] [1972] VR 560 at 560, per Smith J). Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. (Mansell and Herbert's Case (1556) 2 Dyer 128b [73 ER 279]; Ashton's Case (1698) 12 Mod 256 [88 ER 1304]; R v Radalyski (1899) 24 VLR 687; R v Kalinowski (1930) 31 SR (NSW) 377. See generally Smith, A Modern Treatise on the Law of Criminal Complicity (1991), pp 209-214.) However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose (See R v Johns [1978] 1 NSWLR 282 at 287-290, per Street CJ)." 256Their Honours explained Johns in the following terms (at 117-118): "In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns in the passage which we have cited above spoke in terms of an act which was in the contemplation of both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it." See also Osland v R [1998] HCA 75; (1998) 197 CLR 316 at [79], [93]; Handlen v R [2011] HCA 51; (2011) 283 ALR 427 at [4]. 257In the present case even though the common purpose was to murder the deceased on a signal, the fact that it occurred absent or as a result of a misunderstanding of the signal could be described as an incident of the agreement, and if the appellant foresaw the possibility of this occurring in those circumstances he would still be guilty of murder. 258In R v Tangye (1997) 92 A Crim R 545 the New South Wales Court of Criminal Appeal emphasised the importance of drawing the distinction between joint criminal enterprise and extended joint criminal enterprise, described by Hunt CJ at CL as "the so-called doctrine of common purpose". During the course of his judgment, with which the other members of the Court agreed, Hunt CJ at CL made the following remarks (at 556): "The summing up in the present case has suffered substantially from the judge's failure to ascertain what the Crown case was in relation to the first count until after the original directions had been given. I will refer presently to the problems which arose. Before doing so, it will be seen from the passages quoted that the judge has referred - apparently interchangeably - to a joint criminal enterprise and to the so-called doctrine of common purpose which extends the concept of a joint criminal enterprise. Where - as here - no such extended concept was relied upon, it was both unnecessary and confusing to refer to it. The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, (See, for example: Stokes (1990) 51 A Crim R 25 at 35-37; Clough (1992) 28 NSWLR 396 at 400; 64 A Crim R 451 at 455) and it is a pity that in many trials no heed is taken of what has been said." 259In identifying the defects in the summing-up of the trial judge, Hunt CJ at CL made the following remarks (at 558): "(2)When the judge came to identify the law, he intermingled the concepts of joint criminal enterprise and common purpose. As I have said, common purpose becomes necessary only where there has been an agreement to carry out a particular crime (some text books call it the foundational crime) but some other crime has been committed which had been within the contemplation of the accused as a possible incidence in the execution of their agreed joint criminal enterprise (some text books call it the incidental crime) which is said to be within the scope of the common purpose. (Johns (1980) 143 CLR 108 at 130-131; Mills (1986) 61 ALJR 59 at 59; 68 ALR 455 at 455; McAuliffe (at 113-116; 233-236). (3)No such extension to the straightforward joint criminal enterprise to strike (or to assault) the members of the small group was relied upon in the present case. The infliction of grievous bodily harm was clearly enough part of the joint criminal enterprise - either from the beginning or, at the latest, when the participants in that joint criminal enterprise started to kick the victims. There was no need, and it was confusing, to introduce the extended concept of common purpose and what may have been within the contemplation of the appellant (that is, foreseen by him) as a possible incident in such a joint criminal enterprise (The 'great guiding rule' laid down by Sir Leo Cussen, of the Supreme Court of Victoria, was that the only law which it is necessary for the jury to be told is that which it is necessary for them to know in order to guide them to a decision on the real issues in the case: quoted in Alford v Magee (1952) 85 CLR 437 at 466. See also Small (1994) 33 NSWLR 575 at 600; Jones (1995) 38 NSWLR 652 at 655)." 260I shall deal with the trial judge's directions later in this judgment. However, the present case, in my view, is an example of a case where the introduction of the concept of extended joint criminal enterprise was unnecessary and likely to cause confusion in the minds of the jury. 261In R v Taufahema [2006] NSWCCA 152; (2006) 162 A Crim R 152, this Court emphasised the fact that the joint criminal enterprise depended upon mutual agreement, not knowledge of what others intended to do or a mere prediction about what is likely to occur (at [14]). Adams J, with whom the other members of the Court agreed, reviewed the authorities and reached the following conclusion on extended joint criminal enterprise (at [20]): "It follows, as it seems to me, that it is essential to firstly identify the foundational crime alleged to be the subject of the agreement between the alleged offenders, the incidental crime which occurred and the mode by which it is contended by the prosecution that the incidental crime is within the scope of the common purpose. Clearly enough, in this case, the contention of the Crown was that the offenders would jointly evade arrest, described by the learned trial judge as the 'crime of avoiding lawful arrest'." 262In that case the Court of Criminal Appeal quashed the conviction of murder on the basis that the foundational offence alleged, "evade or avoid lawful apprehension", did not exist (at [27]). On appeal the High Court overturned the verdict of acquittal and ordered a new trial as the evidence left open the possibility of another foundational offence being identified (R v Taufahema [2007] HCA 11; (2007) 228 CLR 232). Gleeson CJ and Callinan J dissented on the basis that the Crown should not be able to run what they regarded as essentially a new case. However, they made the following comments as to what was involved in the concept of extended common purpose: "[31]Where a case of murder is based upon the form of culpability described as 'extended common purpose', the identification of the joint criminal enterprise, participation in which results in the accused's secondary liability, is an important particular of the case which the accused must meet. That is not to say that the prosecution must be able to identify the joint criminal enterprise with complete specificity. However, the judge and the jury must know enough about the enterprise to enable a decision to be made, first, as to whether it is criminal, and, secondly, as to whether the shooting was within the scope of the common purpose reflected in that joint criminal enterprise in that it was foreseen as a possible incident of the enterprise as explained in cases such as McAuliffe and Clayton." 263The appellant places particular reliance on this decision. He contended that the foundational offence was not murder but an agreement to murder subject to a contingency which may or may not have occurred. This was said to be a crime unknown to law. However, once it is recognised the offence agreed to be committed was the actual offence albeit subject to contingencies, there was, in my opinion, a joint criminal enterprise. The fact that there was a possibility that the murder might not occur because the appellant for whatever reason chose not to give the signal, did not make the enterprise any less criminal. As was said in Handlen v R supra, two or more persons may be jointly criminally responsible for the commission of an offence which tacitly or otherwise they have agreed to commit and which is committed whilst the agreement is on foot (at [4]). That, in my opinion, can cover an agreement to commit a crime whether contingently or otherwise (see also Gillard v R [2003] HCA 64; (2003) 219 CLR 1 at [111]). 264The appellant also placed particular reliance on the decision of the High Court in R v LK [2010] HCA 17; (2010) 241 CLR 177. That case involved a charge of conspiracy to deal with the proceeds of crime contrary to s 11.5(1) of the Criminal Code (Cth). The High Court affirmed the decision of this Court quashing the conviction on the basis that it had not been proved that the monies the subject of the alleged conspiracy were known by the conspirators to be proceeds of crime. The reasoning on which reliance was particularly placed by the appellant in this case appears in the following passage of the judgment of the plurality (at [122], emphasis in original): "[122]The prosecution case at its highest was that the respondents intentionally entered an agreement to deal with money whether or not it was proceeds of crime. The matters upon which the appellant relies as providing the factual basis for the inference of intent, namely the respondents' awareness that the money may be proceeds of crime and their agreement to deal with it even if it was, expose the flaw in the analysis. At the time the agreement was made the money may, or may not, have been (or have become) proceeds of crime. The agreement, if carried out in accordance with LK's and RK's intention, may not have involved a dealing with money that is proceeds of crime. It follows that, on the evidence given at the trial, it was not open to find that either respondent intentionally entered an agreement to commit the offence that is said to have been the object of the conspiracy." 265In my opinion this decision does not assist the appellant. Under the common law, the crime of conspiracy is committed simply by entering into the agreement. Under the Criminal Code, it is also necessary for at least one party to the agreement to commit an overt act pursuant to the agreement, however this act need not be a crime in itself. By contrast, joint criminal enterprise renders a person liable for the crime committed as a result of the agreement. 266Further, the decision in R v LK turned upon the fact that the money intended to be dealt with under the agreement may or may not have been proceeds of crime and thus, as stated by the plurality, it was not open to find the accused intentionally entered into an agreement to commit the offence. By contrast, in this case there was no issue that if the contemplated act were committed, it would be a crime. 267I turn now to the directions. I have set out earlier the written and oral directions and the circumstances in which they were given. Paragraph [51] of the oral directions, in my opinion, properly deals with the situation where the jury find that the murder occurred without being satisfied beyond reasonable doubt the signal was given. The difficulty in the direction is, however, the reference to "a different agreement or a different crime" in par [49] of the oral directions and the reference in par 4 to the crime being committed as "a possible incident in the execution of the agreed crime". 268Taken on its own par [4] of the written directions and par [51] of the oral directions would not, in my view, constitute a misdirection. However, par [49] of the oral directions, particularly taken in contradistinction to par [48], seems to contemplate an agreement other than that the deceased be murdered. In effect, it introduces the concept of extended joint criminal enterprise. 269The difficulty with the direction is that it invited the jury to consider the possibility of an agreement other than an agreement to kill the deceased and the murder of the deceased to be a possible incident of that crime. No such agreement was open on or sought to be proved during the course of the trial. It follows, in my view, that the jury was misdirected on this issue. 270There remains the question of whether leave should be granted under r 4 of the Criminal Appeal Rules to allow this point to be raised. The principles surrounding the operation of r 4 are well known and it is unnecessary to set them out in detail in the present case. I sought to summarise these principles in RR v R [2011] NSWCA 235 at [74]-[75]. 271In the present case it seems to me that the appellant lost a real chance of acquittal. The direction at least raised the real possibility that the jury did not focus on the correct question, namely whether the appellant believed that there was a possibility that the crime would be committed irrespective of whether or not the signal was given but rather speculated on the possibility that the murder was an incident of some other agreed crime. In these circumstances, leave should be granted under r 4 to allow the point to be raised as the loss of the chance of acquittal involved a miscarriage of justice. 272It follows that on this ground alone the conviction should be quashed and a new trial ordered.

Ground 4 - The trial judge erred in law in failing to leave the offence of manslaughter as an alternative verdict for the jury's consideration 273The question of whether manslaughter should be left for the jury's consideration in a trial where the accused is charged with murder will always depend on the facts as they unfold in any particular case. Having regard to the view which I have expressed that a retrial should be ordered on the basis of ground 2, it is not necessary to deal with this claim in any great detail. However, in deference to the parties' submissions it is appropriate to deal with the question.

The parties' submissions 274The appellant submitted that it was open to the jury to find that the gun was provided to Mr Burnes by the appellant and that there had been a direction given as to the circumstances in which he expected the appellant to shoot the deceased. The appellant further submitted it was open to the jury to find that those circumstances did not eventuate and the act of Mr Burnes shooting the deceased was not done in accordance with any pre-arranged plan. 275It was submitted in those circumstances that the provision of a loaded firearm by the accused to an unstable and unpredictable person like Mr Burnes was capable of being regarded as a dangerous and unlawful act carrying with it an appreciable risk of serious injury. It was submitted this was particularly so given that on Mr Burnes' account he was left alone with the deceased whilst the accused went back to the car. 276In those circumstances, it was submitted, there was a clear basis upon which the jury could have returned a guilty verdict of manslaughter. The Crown submitted that the proposition put by the appellant assumed the appellant knew as he no doubt did, of Mr Burnes' mental and drug use history and that he was an unstable person. 277The Crown submitted that on this factual scenario the appellant had given Mr Burnes a loaded gun and indicated that if things did not go well he wanted the deceased killed. It was submitted this presupposes that the appellant must have contemplated the possibility of the situation arising in which Mr Burnes would use the loaded gun not strictly in accordance with the arrangement but nonetheless with the intention to kill. It was submitted that the provision of the loaded gun cannot be divorced from the accompanying intention that it be used to kill rather than for some lesser purpose. In those circumstances it was submitted there was no room for a finding that the appellant was guilty of manslaughter. 278The Crown also pointed to the fact that the defence case involved a denial that the appellant had been involved in the crime at all and in those circumstances and absent any application by either counsel for manslaughter to be left to the jury, there was room for the application of r 4.

Consideration 279The circumstances in which the possibility of a verdict of manslaughter should be left to the jury in circumstances where the accused was charged with murder were set out by Hunt AJA in R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527 as follows (at [75]): "75The following propositions follow from those cases: (1)Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is 'viable'). (2)However, if in a murder trial the jury nevertheless returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter but, if they persist in that verdict, the judge must accept it. (3)If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury - notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. (4)(a)If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law. (b)Subject to the provisions of the Criminal Appeal Rules, r 4 (see para [99]-[100] infra), the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred. (c)In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury's verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at the new trial." 280The fact that the primary offender was guilty of murder does not exclude the possibility that the person who was the participant in the joint criminal enterprise was not guilty of murder but guilty of manslaughter. So much was made clear in the judgment of Gleeson CJ and Callinan J in R v Gillard supra. Their Honours, after referring to MacAuliffe supra set out the position as follows (at [25]): "The general principle there referred to extends to the possibility that a person who intentionally assists in homicide may be guilty of manslaughter even though the principal offender is guilty of murder. The existence of that possibility assumes a difference in the intentions of the two parties. The secondary party may not know of, or foresee, the principal offender's murderous intention, but may foresee the possibility of the act causing death as an incident of the common design. The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime. In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide. The level of his own culpability would depend upon whether he foresaw that Preston might act with intent to kill or cause grievous bodily harm." 281The difficulty in the present case is that there is no real basis on the evidence for the jury to find that whilst the appellant believed there was a possibility that Mr Burnes might fire the gun he did not foresee that Mr Burnes would do so with the intent to kill or cause grievous bodily harm. No case was presented on that basis and, in my opinion, there was no evidence on which the jury could make such a finding. 282It follows that this ground of appeal was not made out.

Ground 3 - His Honour's direction as to the evidence available to verify independently evidence of Ryan Burnes occasioned a miscarriage of justice 283The direction complained of was in the following terms: "These are inferences that you may draw to support Mr Burnes' version only if no other reasonable inference is available. Those matters, and there are essentially eight of them, on which they rely, are: The first is the relation between Mr Burnes and Mr May. The second - and I will come back to deal with these - the second is the sensitivity of Mr May being 'bugged', that is, overheard. The third is the details of the killing of Mr Heavens that the Crown says only the killer, or perhaps a witness to the killing, would know. They were the gun, the sequence of the shooting, the relative positioning of the shooter and the deceased, and the location. The fourth is the possession by Mr Rafferty and [DN] of the mobile phones that were said to have been the property of Mr Heavens. The fifth is the possession by Mr Burnes' family of the game boy Nintendo. The sixth is the phone records. The seventh is the false statement of Mr May, the Crown alleges, in his statement to the police. And the eighth is the question of motive." 284His Honour qualified what he said in relation to three of those items. In relation to the second one, sensitivity of the appellant to being bugged, he said that there were "a number of answers to that ... the answers that Mr May himself gives in the recorded discussion ... That explanation is something that you can take into account." 285In relation to the third item, his Honour said this: "One of the issues about this, which you must be careful about, is that those details relate to Mr Burnes' involvement in the murder, not necessarily Mr May's involvement in the murder. So, while it supports, in the general sense, a version that gives Mr Burnes a role in the murder, of itself, it would point to Burnes' involvement and support the story that he gives but it does not relate directly, or isn't knowledge that comes directly, because of Mr May's involvement." 286In relation to item five (possession of the Gameboy) his Honour said it supports generally the version of Mr Burnes but does not of itself support the involvement of the appellant. 287Once again it is strictly not necessary to deal with this issue because of the view which I have formed in relation to ground 2. However, having regard to the parties' submissions it is appropriate to deal with it briefly.

The parties' submissions 288The appellant submitted that of the eight matters referred to only three, namely items four, six and seven, could verify independently the account given by Mr Burnes. He submitted that the other five did not do so. Item one was submitted to be no more than background information which provided no support to Mr Burnes' contention that the appellant was involved in the crime. Item two, the sensitivity of the appellant to being bugged, could have related to any matter, particularly having regard to the Crown case that the appellant was engaged in the supply of drugs. It was submitted that item three, knowledge of the circumstances of the death of the deceased, provided a basis for concluding that Mr Burnes was involved but did not assist in proving the involvement of the appellant. A similar submission was made in relation to item five, the probable possession by Mr Burnes' family of the deceased's Gameboy. In relation to item eight it was submitted that the alleged motive remained inexplicable. The rhetorical question was asked, why the appellant would want to murder a man who was making him a substantial amount of money every week. 289The appellant submitted that by using the term "independently verify" his Honour effectively told the jury that these eight subjects had the potential to corroborate the evidence of Mr Burnes. It was submitted that for the evidence to have independently verified the evidence of Mr Burnes, it needed to be of such a nature that it confirmed in some material particular not only that the crime had been committed but also that the accused committed it. In that regard the appellant relied on what was said in Conway v R [2002] HCA 2; (2002) 209 CLR 203 at [61] as to the limitation of the use to be made of evidence of a co-conspirator as corroboration against the accused. 290The appellant acknowledged that the other three items had the potential to "verify independently" the account given by Mr Burnes but stated they were problematic and provided extremely limited support. In those circumstances the appellant submitted that the direction in question added unwarranted strength to the account provided by Mr Burnes and significantly diminished the warning that the trial judge had given regarding the potential unreliability of Mr Burnes. 291The Crown submitted that the learned trial judge did not use the word corroborate in the technical sense. It submitted, relying on R v Milton [2004] NSWCCA 195, that the evidence in question was evidence which the jury could use to find confirmation of the account of Mr Burnes either generally or in particular respects. The Crown pointed to the reservations raised by his Honour in relation to items two, three and five (see pars [284]-[286] above) and stated that the relationship between Mr Burnes and the appellant enabled the jury to understand Mr Burnes' conduct and willingness to "go all the way" and provided background information which made his evidence more likely to be true. 292So far as the question of motive is concerned, the Crown, referring to R v Ngo [2003] NSWCCA 82 at [181], submitted that motive was always relevant to prove the accused person did in fact commit the crime charged and answered the rhetorical question posed by the appellant - why the appellant would want to murder a man who was making him substantial amounts of money - by saying it was open to the jury to conclude the motive was that the appellant could earn more money without the intrusion of a middle man. Consideration 293The remarks by the trial judge must be considered in the context of the warning he gave as to the reliability of the evidence of Mr Burnes both immediately after Mr Burnes concluded his evidence and in the course of his summing-up. In these circumstances it is difficult to see how the directions, which were not objected to, gave rise to a miscarriage of justice. 294Items three, five and seven referred to by the trial judge were matters which could be used by the jury as verification of a matter in issue, namely whether Mr Burnes killed the deceased. In those circumstances the direction was appropriate, consistently with what was said by this Court in R v Milton supra at [40]-[43]. The background information referred to in item one did provide a reason why Mr Burnes was prepared to "go all the way" for the appellant. So far as item eight is concerned it was open to the jury to regard the prospect of the appellant earning greater profits for his drug dealing business as a plausible motive. 295Items four, six and seven were items which the appellant acknowledged had the potential to be pieces of circumstantial evidence that could independently verify the account given by Mr Burnes. The appellant submitted that they were "problematic" but it must be remembered in that context that the trial judge warned the jury that they could only make use of the matters as independent verification if they were satisfied that no other reasonable inference was available. 296It follows that this ground of appeal was not made out.

Ground 1: The conviction of the appellant was unreasonable and cannot be supported by the evidence 297I turn now to deal with the first ground of appeal. The appellant submitted that if this ground was successful, the result would be that the conviction would be quashed and a verdict of acquittal entered. The Crown did not submit to the contrary.

The appellant's submissions 298Unsurprisingly, the appellant in his submissions mounted a substantial attack on the evidence of Mr Burnes. In his written submissions he listed 26 reasons which he said demonstrated its unreliability. It is convenient to set them out in full: "(i)He had a long history of psychiatric illness and drug abuse. (ii)His account of the actual shooting of the deceased was inconsistent with the evidence of Dr Botterill, in that Burnes never gave an account where the deceased was 'somewhat crouched over', or 'crouched or twisted' [125] or 'standing upright with the left arm leaning forward and hunched a little' [126.35] yet the track of the bullet wound through the shoulder was consistent with the deceased being in such a position [120]; (iii)Before his arrest he told the witness JM that the killing had occurred at a different place than where the deceased's body was located; (iv)He told JM that the accused had said that if he said he was going back to the car to get his wallet that all was OK; (v)He boasted to JM that his style of killing people was a bullet in the head followed by two in the chest; (vi)He boasted about having killed eight people and killing the first person when he was fourteen years old; (vii)He had an ongoing belief that he had previously killed people in the absence of any evidence that he had; (viii)He told the trial judge he was still hearing voices as he gave his evidence; (ix)His account of seeing the accused in possession of a gun on New Years Eve was unsupported by any other evidence; (x)His description of the type of ammunition he saw on New Years Eve was not consistent with the evidence of the bullets used to kill Mr Heavens; (xi)He told police on 16 August 2006 that he used a 9ml [sic] or .45 weapon when he shot the deceased and could not nominate the colour; (xii)He told JM he still had the gun and that his spouse liked firing it, yet told the jury he had left it in the accused's car; (xiii)He knew that if he did not give evidence consistent with his earlier account he would be re-sentenced; (xiv)His account to Dr Westmore was that he had a gun because he had previously been in a gang, yet in other statements and in evidence at the trial he said the accused had provided the gun on the night of the murder; (xv)He said that on the night of the murder he received a telephone call from the accused at about 9PM on his mother's landline, yet there was no record of such a call; (xvi)He said that whilst in the car with the accused there were no phone calls received. This was in conflict with the telephone records that detailed a call from the deceased to the accused at 9.45PM; (xvii)In evidence he said that when the deceased got into the accused's car he had two phones, yet when interviewed by police on 16 August 2006 he said he did not see a phone but had read about it; (xviii)After the shooting of Mr Heavens he said the accused offered him the phones, yet the Crown case was that the shooting occurred to obtain the phones and thus access the information on the SIM cards; (xix)He told JM that he had taken both the deceased's Game Boy and his mobile phones; (xx)He mentioned that he was in possession of white gloves for the first time whilst being cross examined; (xxi)He gave a bizarre account of holding up his track pants with his white gloved hand also holding the gun, whilst smoking with the other hand in the moments before the shooting; (xxii)He gave evidence that he saw the accused the next day (something strongly suggested by the telephone records), yet there was no discussion at all about the previous night's events; (xxiii)His belief, communicated to JM, that the accused may have informed on him and may have planted a 'bug' in children's toys he had given him; (xxiv)His previous use of the accused's name when he had been arrested when engaged in criminal activity; (xxv)His retraction in his ERISP dated 18 January 2007 where he told police the accused had had nothing to do with the shooting, that there had been no pre-ordained signal, with the shooting of the deceased occurring solely because of his actions; (xxvi)His two accounts along similar lines to Dr Westmore and on sentence before Justice Fullerton, where on both occasions he said the shooting had been as a consequence of events between him and the deceased, without the involvement of the accused." 299The appellant reiterated his submissions on ground 3 as to the unreliability of the evidence of Mr Rafferty, the limited assistance of the evidence of the phone records which suggested that the appellant was not at his home on the night of the murder after 9.15pm, and the related alleged false statements by him that he was. So far as Mr Rafferty was concerned he referred to his evidence to the jury that he had lied before the Police Integrity Commission because he was scared that he would be charged over the death of the deceased. The appellant pointed out that Mr Rafferty's evidence was critical because of his statement to the Police Integrity Commission that he had received the deceased's mobile phones on the night of the murder. 300The appellant also submitted that there were a number of telephone calls which were inconsistent with the Crown case. These were as follows: (i)One at 22.00.33 on 2 May 2003 from a number categorised by the Crown as "Rafferty's new drug mobile" yet made from a phone said by the Crown to be normally used by DN and SM. That call was transmitted from Paddington, a location near the home of DN. Detective McGregor gave evidence that DN had explained that Mr Rafferty had supplied him with a SIM card on 1 May 2003 and had registered it at this time. It was submitted that the making of a phone call at that time was inconsistent with the evidence of DN that he first saw the telephones after 1.00am on 3 May 2003, after he met Mr Rafferty near Central Station. It was submitted the phone records showed that contact between him and Mr Rafferty occurred much earlier, prior to 10.00pm on 2 May 2003. It was submitted that this raised a real doubt about the reliability of DN's evidence and a question about his possible involvement together with Mr Rafferty and the death of the deceased. (ii)The second is that the phone calls from Mr Rafferty to "[DN]/[SM]" at 23.43.52 on 2 May 2003 from Ultimo and at 00.47.08 on 3 May 2003 from Elizabeth/Hunter Street, and from Mr Rafferty to DN/SM at 00.55.30 on 3 May transmitted from Sydney Kings 1 near Rosebery approximate to where Mr Rafferty then lived, was inconsistent with the Crown case. He submitted that the Crown relied on DN's evidence that he met Mr Rafferty after 1.00am on 3 May 2003 near Central Station and drove Mr Rafferty to his (DN's) home, and when they arrived in Paddington Mr Rafferty showed him the three phones. It is submitted that the sequence of phone calls, particularly the last one from Rosebery, was inconsistent with this evidence. 301The appellant also criticised the evidence of LM. He pointed out that she had told the police repeatedly that she did not know the identity of the deceased's drug dealer but simply knew him as "Matey". He submitted that her failure to nominate the accused initially and her concession that she was never told by the deceased from whom he received his heroin meant that her evidence that the appellant was "Matey" must be viewed with serious reservations.

The submissions of the Crown 302The Crown submitted that there was no doubt that the jury would have been satisfied that Mr Burnes committed the murder. Mr Burnes' statement "Why would I admit to something I didn't do?" was adopted. It was submitted by the Crown that once it was accepted Mr Burnes was the murderer, many of the matters said by the appellant to demonstrate his unreliability fell away. 303In relation to those which did not, the Crown emphasised that it was a matter for the jury to assess the credibility of Mr Burnes and, for that matter, the other persons who gave evidence at the trial. 304The Crown submitted the following matters supported the evidence of Mr Burnes that the appellant was involved in the murder: "(a)Motive - the appellant wanted to take over the deceased's heroin drug business by obtaining his client base and having DN work for him and not the deceased. There were 'heated' discussions between the appellant and the deceased about this in the days leading up to the shooting; (b)Prior to the shooting steps were already been taken [sic] to put this 'takeover' into operation. DN was instructed by Rafferty in the week prior to the shooting to give customers a new mobile number to ring; (c)There was evidence that Burnes had great affection for, and allegiance to, the appellant. He had past drug and mental issues. This explained why he was a suitable candidate for the appellant to enlist and why he would shoot someone he had not met before; (d)Burnes could only have known of the place and time to meet the deceased that night at Market Town from the appellant; (e)The appellant had an arrangement to meet the deceased. They last spoke over the telephone at 9.45 pm. This was the last call the deceased ever made. At that time the appellant was very close to Market Town. Sometime after 10 pm the deceased was shot dead in Callan Park also nearby; (f)The call charge records, when combined with other evidence, presented a convincing picture of the appellant having taken over the deceased's drug business within hours of the shooting. Immediately after the murder the deceased's three mobile phones are in the hands of Rafferty, who was not present when the murder occurred, and must have obtained them from someone closely connected with the murder. The appellant and Rafferty were in contact very shortly before and very shortly after the murder. (g)The appellant lied to the police in a statement four days after the murder that he was at home at the time of the shooting demonstrating a consciousness of guilt; (h)The telephone call by the appellant the day after the murder to LM when she was at the Rocks Police Station, from a public telephone near Burnes [sic] home, revealed a close association with him at that time." 305So far as the evidence of Mr Rafferty is concerned the Crown submitted it received considerable support from other evidence, including the evidence of DN, the telephone records showing contact between the appellant and Mr Rafferty on the evening of the murder and that Mr Rafferty was the first person the appellant contacted subsequent to the murder. It also pointed to the evidence of LM, as to the phone calls she made on the following day to the deceased's phone and Mr Rafferty's evidence that he received that call. 306The Crown pointed out that there was no evidence of contact ever being made between Mr Burnes and Mr Rafferty any time prior to or subsequent to the murder and no evidence of any association between Mr Burnes and DN. It was submitted that this negatived the suggestion that DN, in conjunction with Mr Burnes, were responsible for the murder. It does not, of course, negative any suggestion that DN and Mr Rafferty may have been responsible. 307So far as the 8.57pm telephone conversation between DN and Mr Rafferty was concerned, the Crown pointed to the fact that DN's evidence was that he had received a phone call from Mr Rafferty who told him he was waiting for "the guy" to get the heroin but had been delayed. The Crown pointed out that DN thought that call had occurred about 11.00pm but the phone records revealed that it had in fact occurred earlier at 8.57pm. The Crown pointed out that at that time the appellant had not met up with the deceased and there was evidence there had been a later meeting time which would have had the flow on effect of Mr Rafferty being delayed in his meeting with the appellant. 308The Crown submitted that the evidence of LM was not inherently unreliable. It pointed to her specific evidence of the conversation she had with the deceased about friction between him and the appellant and that the appellant had been asking for the SIM cards. The Crown submitted that her explanation as to why she did not name "Matey" at the outset, namely that she was scared and traumatised, should be accepted.

Consideration 309The test to be applied in considering whether a verdict is unreasonable for the purpose of s 6(1) of the Criminal Appeal Act is well known. It was laid down by the majority of the High Court in M v R [1994] HCA 63; (1994) 181 CLR 487 in the following terms (at 493, footnotes omitted): "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, 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. 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." And (at 494-495): "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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." 310That test has been affirmed by the High Court as the appropriate test to apply in a number of cases: MFA v R [2002] HCA 53; (2002) 213 CLR 606 at [25], [45]; SKA v R [2011] HCA 13; (2011) 243 CLR 400 at [11]-[14]. 311I have set out the test in detail in the present case because the assessment of the guilt of the appellant depended to a considerable extent on the assessment of the credibility of Mr Burnes and for that matter a number of other witnesses, particularly Mr Rafferty, DN and LM. The question in the present case for the Court is whether any doubt it may feel as to the evidence can be resolved by the advantages of the jury in seeing or hearing the witnesses: M v R supra at 493. 312In the present case the conviction of the appellant depended upon the jury being satisfied beyond reasonable doubt that an affirmative answer should be given to the following three questions: (a)Did Mr Burnes murder the deceased? (b)Did the murder occur as a result of an agreement made between the appellant and Mr Burnes that Mr Burnes would kill the deceased on an agreed signal? (c)Did the murder occur on the giving of the agreed signal or if the signal was not given, did the appellant foresee the possibility that the deceased would be murdered irrespective of whether the signal was given? 313In my opinion, it was open to the jury to answer the first question in the affirmative. First, Mr Burnes said that he did kill the deceased. It is true that he gave varying versions of what he said occurred at the time he shot the deceased but he consistently stated that he killed him. Further, the closest Mr Burnes came to saying the shooting was not deliberate was in his evidence before Justice Fullerton when he said he was "paranoid and scared" because the deceased had his hand in his pocket (see par [151] above). 314Further, Mr Burnes was aware of a number of matters which would have been known only to a person present at the murder. First, Mr Burnes' evidence was that he first saw the gun he used in the murder on New Year's Eve 2003 at the appellant's home (see pars [64]-[66] above). The evidence was that the shots could have been fired from such a gun. Second, Mr Burnes was aware the deceased was shot once in the left shoulder area and twice while lying on the ground (see par [72] above). Third, Mr Burnes was aware that when the deceased was shot he had a cigarette in his left hand (see par [71] above). Fourth, Mr Burnes was aware the cigarette was a Winfield Blue (see par [75] above). The evidence of Detective Morfoot was that none of these matters had been made public (see par [215] above). 315Further, the evidence established that shortly prior to the death of the deceased he was in the possession of a Nintendo Gameboy. Mr Burnes said he took the Gameboy after the shooting (see par [74] above). A Gameboy was pawned on 15 May 2003 by a person who produced the Centrelink and Medicare cards of Melissa Riley, Mr Burnes' partner. Although the handwriting on the pawnbroking documents could not be identified with certainty as that of Ms Riley, a handwriting expert stated that it was likely to be her signature. 316In these circumstances it could not be said that the conclusion that Mr Burnes killed the deceased was unreasonable. The criticism of his evidence by the appellant in this regard, in particular those criticisms set out in subpars (i)-(iii), (v)-(viii) and (xx)-(xxi) of par [298] above, do not in my view affect this conclusion. 317The next question was whether the shooting occurred as part of an enterprise between the appellant and Mr Burnes in which it was agreed that the deceased would be shot on the giving of a signal. 318Before going to the evidence of Mr Burnes, it is convenient to deal with a number of matters which point to the involvement of the appellant in the murder. First, the appellant in his statement acknowledged that he had arranged to meet the deceased on the evening of 2 May at the fruit markets near Leichhardt Market Town. Although the appellant denied that he met the deceased, Mr Burnes identified Leichhardt Market Town as the place where the deceased was picked up. 319The evidence of Mr Rafferty to the Police Integrity Commission was that on the night of 2 May the appellant gave him three phones and said "You'll be starting tomorrow" and that after that he met DN and they went to DN's home in the early morning of 3 May and made up the caps of heroin to sell. He also told the Police Integrity Commission that when he answered the phones on the following day, people thought he was the deceased. 320Mr Rafferty denied the truth of these statements in his evidence at the trial. However, a number of matters should be noted. First, the telephone records indicated that the appellant had been in contact with Mr Rafferty on a number of occasions on 2 May both before and after the murder took place (see par [27] above). Second, although it is true that DN was in contact with Mr Rafferty prior to the time of the murder, there were further conversations between them after it occurred (see par [20] above). Although the appellant submitted that the call at 0.55am on the morning of 3 May went through a tower close to Mr Rafferty's home at Rosebery, this ignores the fact that another call was made 12 minutes later from an unidentified location (see par [20] above). 321DN's evidence was that he and Mr Rafferty met at his (DN's) house at Paddington where Mr Rafferty gave him the deceased's drug phones (see par [19] above). Although his credit was in issue, particularly having regard to his earlier statements to the police that he did not know Mr Rafferty, his evidence was supported by his partner, SM, who stated that DN and Mr Rafferty were discussing heroin dealing at her and DN's home between 2.00am and 3.00am on the morning of 3 May (see par [30] above). Significantly, she also gave evidence that on the evening of the day before (around 7.00pm) she and DN met the deceased and DN returned the mobile phones to him. 322From this evidence it would be open to the jury to conclude, particularly having regard to the advantage they had in seeing and hearing the witnesses, that the appellant came into possession of the deceased's drug phones and gave them to Mr Rafferty who had them in his possession at his meeting with DN at the latter person's home in the early morning of 3 May. 323It is then necessary to have regard to the evidence of LM. She gave evidence that the deceased bought heroin from the appellant, that he employed two runners for his business and that he used two mobile phones. She gave evidence that the deceased had told her that the appellant wanted the SIM cards and that he wanted DN to work for him (see pars [32]-[34] above). 324LM was cross-examined as to various inconsistencies in her evidence and in what she told the police (see pars [41]-[49] above). The most important of these was her denial to the police in her earlier statements that she knew that the appellant was the deceased's drug supplier and that she knew the supplier only by the name of "Matey". 325In my opinion, it was open to the jury to accept that when LM said she did not know the identity of the deceased's drug supplier, she was, as she said, traumatised and out of her depth. There was no issue that LM knew the appellant. Having regard to the relationship between her and the deceased and the fact she knew the appellant, it is not inherently unlikely that she knew the appellant was his drug supplier. Further, her evidence that the deceased told her he was going to meet the appellant on the evening of 2 May is consistent with the appellant's statement that a meeting was proposed. 326If LM was accepted by the jury, they were entitled to conclude from that that the appellant had a motive for the murder and second, that he did want to procure the deceased's mobile phones, something which, on the evidence of Mr Rafferty, was achieved by him on the evening of 2 May. 327It is in that context that the evidence of Mr Burnes needs to be examined. It is correct that Mr Burnes gave a number of conflicting statements as to what occurred on the day of the murder. The first was his evidence in chief in which he said there was an agreement to kill on the signal "I am going back to get my wallet out of the car" and that is what occurred. The second was the version given to JM on 13 February 2006 when he said that the same signal was a signal not to shoot (see par [106] above). The third was the version he gave to the police in January 2007 when he said the last words that the appellant said were "I'm going back to the car to get my wallet" but that it was not a signal at all and the appellant was not involved in the murder (see par [144] above). The fourth was the version given to Dr Westmore when Mr Burnes said that the appellant and the deceased started arguing and the appellant gave the deceased "a look, sort him out, talk to him". The involvement of the appellant was not mentioned at all in the evidence before Justice Fullerton. 328In each of these versions, with the possible exception of the one given to Justice Fullerton, the appellant was said by Mr Burnes to be present at the time of the shooting or at least in the immediate vicinity. That is consistent with the appellant being in possession of the deceased's drug phones after the murder. Further, in at least three of the versions, the one in chief, the version to JM and the version to the police in January 2007, the appellant is said to have used words to the effect "I'm going back to get my wallet". Even the version given to Dr Westmore, "sort him out, talk to him" involved some sort of direction by the appellant. 329In these circumstances, in my opinion, it was open to the jury to conclude beyond reasonable doubt that the appellant had asked Mr Burnes if he would go all the way for him and that they had agreed that the deceased would be killed on the giving of a signal. If the evidence of the other witnesses to which I have referred above is accepted, the appellant had a motive for the murder and in effect took the benefit of it by obtaining the means to take over the deceased's drug supply business, namely the drug phones. Further, if those witnesses are to be believed, the appellant, shortly after the murder, took steps to obtain the benefit of that business. 330The jury would have been entitled to reach that conclusion on the evidence of Mr Burnes, notwithstanding his psychiatric and drug related problems and the other matters which the appellant asserted rendered his evidence unreliable. As I have said, a number of them only go to the issue of whether Mr Burnes killed the deceased. So far as the other matters are concerned, I have already dealt with the inconsistent versions of his evidence referred to in subpars (iv), (xxv) and (xxvi) of par [298] above. As to the balance, they do not seem to me such as to make the jury's conclusion unreasonable. 331Since drafting this judgment, I have had the benefit of reading in draft the reasons of Simpson J and of Harrison J. It is undeniable that the evidence of Mr Burnes was critical to the Crown case. It is also undeniable that the evidence of Mr Burnes "upon the record itself, contains discrepancies" (M v R supra at 494), and that the evidence and prior statements of Mr Burnes reveal a considerable number of inconsistencies, as did the cross-examination itself. However I remain of the opinion that, taking into account the whole of the evidence which I have outlined, it was not unreasonable for the jury to accept the evidence of Mr Burnes in chief, which, as Simpson J points out at [352], gave a concise and coherent account. As the trial judge pointed out in his remarks on sentence at par [21], the acceptance of Mr Burnes' evidence, notwithstanding the inconsistencies, depended to a very great extent on an assessment of his demeanour in the witness box. 332I have reached my conclusion independently of the view taken by the trial judge as to whether or not the verdict was unreasonable. It seems to me on the authorities that at most, only limited assistance can be derived from such material: SKA v R supra at [112]-[114]; SI v R [2007] NSWCCA 181 at [21]-[27]. Nonetheless, I am fortified in my conclusion by his Honour's remarks on sentence to the following effect (at [21]): "The Court, as it warned the jury, must be careful before it accepts the evidence of Mr Burnes. Apart from the fact that he is a co-offender and was given, in his sentence, significant benefit for his assistance, he is an admitted drug use, has given prior inconsistent statements and has a history of delusional behaviour and thoughts. Nevertheless, when one takes account of the circumstantial evidence and Mr Burnes' demeanour, I accept the veracity and accuracy of Mr Burnes on relevant issues, being at least all of the matters recited above. Further, I am satisfied of that version of events beyond reasonable doubt." 333In summary: (a)The fact that Mr Burnes' account of seeing the accused in possession of a gun on New Year's Eve (see subpar (ix) of par [298] above) was unsupported by any other evidence does not lead to a conclusion that his evidence was unreliable. Further, the records from the Royal Prince Alfred Hospital tendered in evidence show that the appellant was treated for injuries of the kind that Mr Burnes said that the appellant had suffered on New Year's Eve 2003. (b)The fact that his description of the type of ammunition he saw on New Year's Eve was not consistent with the evidence of the bullets used to kill Mr Heavens was a factor that the jury would have had to take into account in reaching its assessment. However, Mr Burnes was not an expert in ballistics and it would be open to the jury to conclude that his description which was given some years after the event was mistaken. The description of the gun he saw on New Year's Eve was consistent with the gun used (see pars [10] and [64] above). The fact that he was unable to nominate the colour of the gun in August 2006 does not appear to me to be of particular significance in these circumstances. (c)The matters referred to in subpar (xii) was an example of the delusional nature of some of Mr Burnes' comments. The jury was entitled to discount these matters whilst reaching a conclusion beyond reasonable doubt that his evidence was correct on the critical matters, namely that he agreed to kill the deceased on a signal from the appellant and that he in fact killed the deceased. (d)It is correct, as the appellant submitted (see subpars (xiv), (xvii), (xviii) and (xix)), that he gave inconsistent evidence as to how he obtained the gun, what he took from the car and what he saw and what was said about the phones in the deceased's possession. However, this did not necessarily detract from the reliability of his evidence on the critical aspects particularly where other evidence established that the appellant took possession of the phones and that Mr Burnes took possession of the Gameboy. (e)The matters referred to in subpars (xv) and (xvi) of par [298] were matters the jury were entitled to regard as not of particular significance. (f)The fact that he and the appellant did not discuss the matter on the following day (see subpar (xxii) of par [298] above), whilst a matter relevant for the jury to consider, would not compel them to a contrary conclusion to their finding, particularly having regard to the other evidence that Mr Burnes shot the deceased and of the appellant's involvement. (g)Mr Burnes' belief that the appellant may have informed on him and his previous use of the appellant's name when he was arrested in 2002 were factors the jury could take into account in assessing his overall credibility. However, apart from one suggestion that he was resentful of the appellant because he was able to ween himself off drugs, as well as the matter of his sentence discussed at (h) below, the evidence did not suggest that Mr Burnes had any motive for wrongly implicating the appellant in the crime. In those circumstances the jury was entitled to discount this matter. (h)It is correct as pointed out by the appellant that Mr Burnes knew that if he did not give evidence consistent with his earlier account, he would be resentenced (see subpar (xiii) of par [298] above). The jury were directed to take this into account and it was open to them to accept the evidence of Mr Burnes, notwithstanding this matter. 334In those circumstances the matters said to go to the unreliability of Mr Burnes did not make it unreasonable, having regard to his evidence and the other material before them, for the jury to conclude that Mr Burnes and the appellant had reached the agreement alleged and that the appellant was present at Callan Park at the time the murder took place. This was a case where the advantage of the jury in seeing and hearing the witnesses was of very great significance, as the cogency (or otherwise) of Mr Burnes in the witness box would presumably have contributed greatly to the weight the jury gave to the version of events he gave there, and his account for his inconsistent earlier versions. It cannot be said that having regard to those advantages, the verdict was unreasonable or that it was not a conclusion which was open for the jury to reach, particularly where the jury were carefully directed on the problems with Mr Burnes' evidence. 335The third question is whether the murder occurred on the agreed signal or if it did not, was the jury entitled to find beyond reasonable doubt that the appellant foresaw the possibility that the deceased would be murdered irrespective of whether the signal was given? 336Once again this question turns largely on the credibility of Mr Burnes. As I indicated earlier, in three of his versions he referred to the appellant saying words to the effect that he was going back to the car to get his wallet. For the reasons given in relation to the second question, it was open to the jury to conclude that Mr Burnes' evidence was correct when he said that was the agreed signal and that signal was given. However, even if the jury had in fact concluded that the signal was not given or that Mr Burnes misunderstood it, it would still be open to them to find that the appellant was guilty of murder. This is because, having regard to Mr Burnes' psychiatric problems, the fact that there was an agreement to kill on a signal and the circumstances in which the appellant was confronted, it would be open to the jury to conclude that the appellant foresaw the possibility of the murder occurring irrespective of whether or not he gave the signal. 337In those circumstances, the jury was entitled to conclude that the third question should be answered in the affirmative. 338There is one other matter which should be mentioned. It was suggested in the submissions for the appellant that the jury should have had regard to the possibility that the deceased was killed as a result of an arrangement between DN and Mr Rafferty. The difficulty with this is that the evidence strongly supported the fact that Mr Burnes killed the deceased and there was nothing to suggest that he had any contact with either DN or Mr Rafferty. 339In these circumstances this ground of appeal is not made out.

Conclusion 340It follows, in my opinion, that the appeal against conviction should be allowed and a new trial ordered. 341In those circumstances it is not necessary to deal with the appeal against sentence. 342SIMPSON J: I have read in draft the judgment of the Chief Justice. With respect to Ground 1 of the appeal (that the verdict of guilty was unreasonable and cannot be supported by the evidence) I have come to a different conclusion. In my opinion that ground ought to succeed. The consequence of success of a ground of appeal so framed is the quashing of the conviction, and entry of a verdict of acquittal. That conclusion renders it unnecessary to resolve the remaining grounds of appeal. However, since the Chief Justice takes a different view of Ground 1, it is appropriate that I record my concurrence with his Honour's conclusion with respect to Ground 2. 343The reasons for my conclusion concerning Ground 1 follow. Ground 1: Unreasonable Verdict 344Since the Chief Justice has set out in considerable detail the evidence given in the trial, it is sufficient if I recount the salient facts of the murder of Mr Heavens briefly. 345Mr Heavens' body was found in the grounds of the Callan Park Hospital, Rozelle, in the early hours of 3 May 2003. It is apparent that he was killed late in the evening of 2 May. (The trial of the appellant took place in May 2008.) 346The only direct evidence implicating the appellant was that of Ryan Burnes. As is set out in the judgment of the Chief Justice, on 3 April 2007 Burnes entered a plea of guilty to a charge that he murdered Mr Heavens. He was sentenced to imprisonment for 18 years, with a non-parole period of 13 ½ years. In so sentencing Burnes, the sentencing judge reduced, by 50%, the sentence she otherwise would have imposed. This reduction she divided equally, allowing 25% for the plea of guilty and assistance to authorities already given, and 25% representing assistance Burnes had promised to give in the future, specifically in the prosecution of the appellant. 347The case the Crown sought to make at trial was encapsulated in the account given by Burnes. Put shortly, Burnes said that he was recruited by the appellant into a plan to murder Mr Heavens; that he did so by accompanying the appellant to the grounds of Callan Park Hospital; that they picked up Mr Heavens on the way; that the appellant provided Burnes with a firearm for the purpose of the murder; and that the appellant told him that if he (the appellant) gave a specified signal, he (Burnes) was to shoot Mr Heavens. In the context of one item of evidence led at trial, the signal is of some importance: Burnes gave evidence that the appellant told him that the signal to shoot Mr Heavens was a specific form of words. The words were: " ... I am going to get me wallet out of the car". On the account given by Burnes in his evidence in chief, the use of those words was a signal for him to shoot Mr Heavens. 348On the Crown case, when the three men arrived at Callan Park the appellant gave that signal and, in compliance with their agreement, Burnes shot Mr Heavens three times in the chest, once while he was upright and twice after he had collapsed from the effects of the first shot. Burnes rejoined the appellant at the car, and the appellant and Burnes drove off. 349Notwithstanding Burnes' plea of guilty to the murder of Mr Heavens, and subsequent incarceration, an issue was raised by the defence as to whether this was indeed the case. There was some, although relatively slight, evidence corroborative of Burnes' claim to have been the killer. Although there was, in the Crown case, some evidence corroborative of surrounding details contained in Burnes' evidence, there was none that corroborated his account of the circumstances in which he came to murder Mr Heavens, and none corroborating his assertion that he had murdered Mr Heavens at the instigation the appellant. The Crown case was therefore heavily dependent on Burnes' evidence. His credibility was thus central to the Crown case. I will return to this. 350It was central to the Crown case, and not in dispute, that both Mr Heavens and the appellant were heroin dealers, and that the appellant supplied drugs to Mr Heavens for the purpose of on-sale to customers. Mr Heavens' heroin selling business flourished, and he received larger quantities from the appellant, to the point that he himself employed "runners". One of the runners was a man who has come to be known as "DN", who used the alias "Steve". DN gave evidence that a dispute arose between the appellant and Mr Heavens, concerning control of the business. From the evidence of DN, it would appear that this dispute was resolved. Mr Heavens' then partner, known as "LM", gave evidence to similar effect concerning a dispute, although, on her evidence, the dispute was not resolved so amicably. With this background, I turn to the critical evidence of Mr Burnes. 351In evidence in chief Burnes gave, so far as can be gauged from a reading of the transcript, a concise and coherent account. 352Although I have given above a brief précis of the Crown case, I consider it would be helpful to refer, in a little more detail, to the evidence given by Burnes in chief. 353He said that he had known the appellant since he was about 13 years old, having met him when both were students at a school called "Edgeware". He had, in fact, lived for a time in the appellant's home. There was then a period when he had no contact with the appellant, but contact was resumed in about 2002. He said that he spent New Year's Eve 2002 in the company of the appellant, eventually at a Balmain hotel. There a fracas ensued, in which the appellant was involved, and was "king hit" by another person. He suffered an injury to his lip. He and the appellant, and others, then left the hotel and went to the appellant's home at Alexandria or Erskineville. The appellant was upset by what had occurred. When leaving the hotel the appellant reached for a railing, causing injury to his thumb. Later, Burnes went into the appellant's bedroom (where the appellant was with his de facto wife). There Burnes saw a gun clip from a magazine from a gun and a couple of bullets on the bed. The appellant had a gun, into which he was attempting to insert the bullets. The gun was a 1911 Colt. Because of the injury to his thumbs, the appellant was unable to insert the bullets, and Burnes did so (at the appellant's request) for him. Burnes said that they then hid the gun. He said that the appellant and his de facto wife left the house, saying that they were going to have the injury to the appellant's lip attended to. (This evidence was not directly relevant to the Crown case that the appellant was involved in the murder of Mr Heavens. It is evidence of a corroborative nature, as to detail, to which I referred earlier. Its significance will become apparent in due course.) 354Burnes then said that in late April or early May of 2003 the appellant visited Burnes at Burnes' de facto's mother's premises in Waterloo. He appeared to be "pretty agitated", "visibly upset about something". He did not explain his upset but: "He just asked me if I would go all the way for him." (T 382) The appellant did not explain this request. 355Two days later the appellant telephoned Burnes, and arranged to meet him out the front of the Waterloo house where Burnes was staying. This was about 9.00 or 9.30 pm. Burnes did not regard this as unusual. 356The appellant did pick up Burnes, in a two door hatch back vehicle. Burnes sat in the back seat. The appellant told him they were going to pick up somebody to whom the appellant referred to as "Matey". Burnes had the impression that the appellant did not want him to know who "Matey" was. (Burnes later learned that "Matey" was Mr Heavens.) The appellant told Burnes to look under the seat. Burnes did so and: "... I felt a gun in the shirt." The gun was under the passenger seat. Burnes took the gun from under the seat and placed it down the front of his pants. Burnes then gave this evidence: "He [the appellant] said, 'If I say I am going to get me wallet out of the car', that was a signal to shoot." (T385) He said that the subject of shooting someone had been mentioned earlier, when he first entered the car with the appellant. 357The appellant then drove to Marketown at Leichhardt and pulled over. Mr Heavens was waiting, and entered the car and sat in the front seat. Burnes did not know Mr Heavens. 358The appellant drove to Callan Park (a location Burnes knew) and drew up in a small car park. All three men alighted from the car. The appellant told Mr Heavens to put all their telephones in the car, and the three walked down to a grassed area. Burnes was about two or three metres behind the other two. 359The appellant and Mr Heavens were talking but Burnes did not hear any of the conversation. After a little while they stopped. Burnes thought that they had begun a disagreement. Mr Heavens took out a cigarette and offered one to Burnes. Mr Heavens was smoking his cigarette using his left hand. The cigarettes were Winfield Blue. 360Burnes then gave this evidence: "They lowered, like the voices they calmed down a bit, kept talking for about another 30 seconds. Then [the appellant] turned around, looking at me, said 'I am going back to the car to get my wallet' and he walked off." 361Burnes took that to mean that he was to shoot Mr Heavens, and he did so. He said: "Um, pulled the gun out the front of my pants, unlocked the safety, shot him once, he fell to the ground. I proceeded to walk away. I could hear him and so I went back." He said that Mr Heavens was "gasping and gurgling". Burnes therefore: " ... went back and stood over the top of him and shot him two more times." At this time, the gun was pointing straight down. 362Burnes ran back and joined the appellant in the car and they drove off. Initially, there was no conversation about what had happened, but, later, the appellant said: " ... just something like, he knew I would do it." He: "called me a mad cunt or something like that." 363At some point Burnes wiped down the gun and returned it to its place under the seat. 364The appellant drove Burnes home. He asked if Burnes wanted the phones that were in the glove box. (Burnes did not.) He saw there were two "wads of money", of which he took one, and also a Game Boy that was in the glove box. 365That concluded Burnes' evidence in chief. 366He was cross-examined at considerable length, and to considerable effect. The attack on the Crown case consists largely in an analysis of the damage said to have been done to Burnes' credibility as a result of the cross-examination. In evaluating the evidence adduced, it is important to remember that Burnes was no more than a witness in the prosecution case (although a crucial one). The provisions of Part 3, Division 7 of the Evidence Act 1995 applied. Prima facie, although he could be cross-examined, within the limits prescribed by s 103, as to credibility, evidence with respect to his credibility could not be adduced (s 102). 367It is apparent from the structure of the cross-examination that defence counsel had access to a very large volume of material relevant to Burnes' credit. This was put to Burnes systematically and logically. It makes, however, for a cross-examination that is not easy to follow, even on paper. I have no doubt that it was difficult for the jury to follow. 368Some propositions put to Burnes he accepted. Others he rejected. At times he appeared to accept (or reject) a proposition, and then take the opposite position. In respect of some propositions it is impossible to be sure what his response was intended to be. What is clear to me is that his evidence lacked, to a considerable degree, the reliability necessary to found a criminal conviction. In reaching this view, I have, to some extent, taken a somewhat liberal, or flexible, approach to the analysis of Burnes' evidence. I have, for example, assumed (where the transcript permits that reasonably to be done) that defence counsel had material in his possession to support the propositions contained in his questions. In what follows I have endeavoured to make clear where I have taken that course. 369Burnes has given accounts of his asserted involvement in the murder of Mr Heavens on a number of occasions. The first, it is to be noted, was on 16 August 2006 - more than three years after the murder. He was then interviewed by police, and the interview recorded. The interview was a lengthy one. He was interviewed again, over two days, on 30 and 31 August of that year. This resulted in lengthy statement. On 18 January 2007 he was again interviewed, this time with the protection of an undertaking that any disclosure made by him would not be used in evidence against him (see Director of Public Prosecutions Act 1986 s19), resulting in an "induced" record of the interview. Although Burnes was cross-examined from the records of these interviews none of the records was itself in evidence. 370In addition, on 16 March 2007, Burnes gave an account to Dr Westmore, a psychiatrist, presumably to be used in his sentence proceedings. 371The next account given by him of which there was evidence was given in committal proceedings of the appellant, on 3 September 2007. Finally, on 8 June 2007, he gave evidence in the Supreme Court in his own sentencing proceedings. 372Of some importance in the cross-examination, also, were transcripts of conversations with a witness whose identity has been suppressed and who can be known as JM, in and around February 2006. These were recorded pursuant to warrants issued under the Listening Devices Act 1984 (now repealed and replaced by the Surveillance Devices Act 2007). 373Also available to defence counsel were medical records, some dating back to 1995, when Burnes was 15 years of age, and others made by Justice Health employees, while Burnes was in custody in June 2006. (In what circumstances he was then in custody does not emerge.) 374Also available to defence counsel were notes of a conference held by the Crown Prosecutor and his instructing solicitor with Burnes on 28 March 2008. It appears that these may have been made available to the defence in a commendable recognition by prosecution lawyers of their duty of fairness. 375Cross-examination of Burnes began with the proposition that he gave evidence in chief in the terms he did in order to preserve the reduction in sentence he had obtained by reason of his promise to assist in the prosecution of the appellant. 376He denied that proposition. His denial received a substantial boost in re-examination, when he gave his reason for giving the evidence that he had. He is recorded as saying: "I've been coming to gaol all my life. All right. I've done a lot of bad things in my life. This is the worse [sic], by far, and it wasn't even my shit. He knew I'd do anything for him, and I did it. Now I'm going to be in gaol until my forty [sic] my son will 18. My daughter will be 16 and that's it. For what? I don't know what. I was just did it [sic] and he knew I would do anything for him." However, from the Crown point of view, that was probably the high point of Burnes' evidence. Defence counsel asked Burnes, at length, about his psychiatric history. 377He said that he had first met the appellant when they were both enrolled in the school (Edgeware) to which he had earlier referred. He said that this was: " ... a behavioural school for kids who muck up at school so like your last chance." 378The cross-examination that followed established that Burnes was a witness whose psychiatric stability was severely compromised. He was born in June 1980. On his evidence, he was diagnosed at the age of 12 (in about 1992 as schizophrenic). He gave a history, to which I will come in more detail, of prolonged illicit drug use and multiple psychiatric hospital admissions. By the time he gave evidence (in May 2008) he had been in custody for almost two years (he was arrested on 16 August 2006). He had, until shortly before giving evidence, been treated with anti-psychotic medication. 379He agreed that, at least from the age 12, he had had psychotic episodes on a regular basis. He said, however, that he had not had a psychotic episode "for a long time", and that the last was about "four to five years ago", that is, four to five years before May 2008, when he gave evidence against the appellant. However, he agreed that, in the committal proceedings of the appellant, he had accepted a proposition that at that time (September 2007) he still heard voices in his head from time to time. He said: "That's the downfall of being schizophrenic, you hear voices all the time, but that doesn't necessarily mean that I'm psychotic. 380This was not the only time that Burnes drew a distinction between schizophrenia and psychotic episodes. Whether, medically speaking, this is a valid distinction does not appear on the evidence. He was asked whether, when he had psychotic episodes, he heard voices in his head, telling what he should do, or what he should have done; he replied "sort of". 381Moreover, he agreed that, in June 2006 (before he was aware that he was suspected of involvement in the murder of Mr Heavens) he described, to Justice Health employees, the voices in his head as "a running commentary". He denied, however, referring to the voices as "a committee". But at a different point in the cross-examination, he agreed that, in the committal proceedings, the following evidence had been given: "Q:And the voices have told you things in a way where you have believed them or you have said to psychiatrists over the years that you believe there is a committee of people or beings that put messages into your head, you have told doctors that over the years, haven't you? A:Yeah. Q:And that this is also to do with something from outer space or whatever? A:Yeah, I don't know about that, but, yeah the committee thing. Q:Do you believe the committee put ideas on your head to tell you to do things, correct? A:Yeah." 382Burnes agreed that, over his lifetime, he had been institutionalised in psychiatric institutions about six times, either in hospital, or in the prison system. As an adolescent he had come under the care of Dr Garside, a psychiatrist. It was put to him by counsel (apparently on the basis of psychiatric records) that he had told Dr Garside that he had killed a number of people, including by kicking them to death. He did not deny having said that, although he did not recall doing so; he said that he had not kicked anybody to death, but that if he had told Dr Garside that he had, then at the time he probably would have believed it; he would not have said it if he did not. 383For the purposes of the present exercise I am prepared to act on the basis that the psychiatric records are as encapsulated in the questions asked of Burnes in cross-examination, and that Dr Garside did indeed record assertions by Burnes to the above effect. 384Burnes was then asked about burn marks on his arms, which were self-inflicted. It was put to him, again clearly on the basis of medical records, that he had told Dr Garside that each scar represented a murder that he had committed in the past. He denied any recollection of giving such a history to Dr Garside. After further cross-examination, Burnes denied having made such statements to Dr Garside. Again, since the questioning was clearly based on medical records (and no objection was taken by the Crown Prosecutor, who, the transcript reveals, was assiduous in ensuring accuracy and fairness in the questions put to Burnes) I am prepared to act on the assumption that the records did contain material to the effect of the propositions contained in the questions put to Burnes. Burnes pointed out that he was 15 years old at the time he was treated by Dr Garside. At a later point in the cross-examination, when being asked about what he had told Dr Garside, he said: "I was disturbed, a young kid. I wouldn't have been in hospital otherwise." 385Again, reference was made to evidence given by Burnes in the committal proceedings. This evidence was there given: "QJust going back to the suggestion you were making to certain people over the years that you had killed a number of people, do you recall saying to any of those doctors or the person [JM] for example, or anyone else that at one point you felt that those burns you had inflicted on yourself were a memorial for each of the persons you had killed? A:I probably said that, yeah." 386In the trial, he said of that evidence: "Under the influence of some heavy drugs I might have [said that], yeah I don't remember half the conversations that were recorded with [JM]." He expressly did not dispute that those conversations had taken place. 387Burnes agreed that he "may have" told Justice Health employees (in 2006) that he had a special relationship with God, that he heard God's voice telling him that he cared about Burnes, and that God was the only one who did. He agreed that he then said that: " ... everyone was out to get me all the time." 388He agreed that, on the same date, he told another psychiatrist, Dr McClure, that he worried that he caused negative events, accidents and murders, and that they somehow related to him and were his fault. He was asked what other murders (apart from that of Mr Heavens) he thought he had caused. His reply is recorded as: "It wasn't; it was just how bad, like from what I said after I shot Andrew I thought that I had like a massive dose of bad karma coming to me so anything I'd see that was going wrong around me, whether it be on television or my family or whatever, I thought it was because of the karma I was bringing around." 389He could not remember telling doctors such as Dr Garside that he had been killing people since he was in his early teens. He did agree that, at 16, he had told a social worker of a four-year history of "voices and screaming inside his head" and that he suffered "paranoid delusions" of being stalked and attacked because of his "bad deeds". He agreed that, when he was quite young, the voices in his head had told him to kill his younger brother, and that in response he had taken his brother into the laundry, poured turpentine on the floor and set it alight. He said that he did this because he did not want his brother to experience voices in his head, or suffer from schizophrenia. 390It was put to Burnes that he had told JM (in February 2006) that he was unconcerned about the murder of Mr Heavens because he had been killing people since he was 14 years of age. It is, and was, apparent that this question was taken directly from the listening device recording of Burnes' conversations with JM. He said: "I might have said something about that. If you refer to the tapes and you listen to them you can clearly tell I was off my face." 391Burnes agreed that at one time he believed that his children were being eaten alive. A moment later, however, he denied that he had actually thought that this was so. This was in spite of evidence he had given in the committal proceedings that he had in fact held that belief. 392I have referred to the lengthy interview of Burnes that took place over two days in August 2006 (30 and 31). It seems, from a number of answers given by Burnes in the trial, that, initially in this interview, he did not implicate the appellant in the murder. He therefore did not mention, in the interview, the incident of which he had given evidence, following the fracas at the hotel on New Year's Eve when he had returned to the appellant's home and had seen the gun in the bedroom. Burnes said that, in that interview, he gave a number of untruthful answers (concerning, for example, where he had been living in May 2003) because he was being "deceitful". He said that in the initial stage of the interview he was attempting not to implicate the appellant. He said that "there was some point" in the interview when he decided to tell the truth. This was because he learned (possibly during the course of the interview) that Mr Heavens had children. He said that his protection of the appellant was also out of "misplaced sense of loyalty". 393In the induced record of interview of January 2007, however, Burnes told the detectives that the shooting of Mr Heavens was something he had done "off [his] own bat" and had nothing to do with the appellant. He said that the meeting with Mr Heavens was "just to sit down and talk" and that his earlier account concerning a signal to shoot Mr Heavens (which, it may be inferred, he had given in one of the earlier interviews) was "all bullshit"; there was no "preordained signal to shoot". In the interview, Burnes said that anything that he had previously said to the effect that there was such an arrangement was said out of confusion on his part. In the trial, Burnes explained having given those answers to police on 18 January as "misplaced loyalty". It is apparent from this part of the cross-examination that, in the interview of 16 August 2006, he had implicated the appellant in a plan to murder Mr Heavens; in the January interview, he denied that, and said that the plan had been merely "to sort things out", and that this was to be achieved by talking to Mr Heavens. He said that what he had previously spoken of as the signal to shoot Mr Heavens was a misconstruction on his part, emanating from his own "fucked-up brain". 394Littered throughout the cross-examination of Burnes were references to his history of drug use. He said that he began using "pot" when he was 12, and that he had been a regular consumer of cocaine, amphetamines, heroin and benzodiazepine. He had been told that use of these drugs had exacerbated his mental health issues. He agreed that the amphetamine known as "ice" (which he used) has a much stronger effect than other amphetamines, and causes hallucinations. In late 2002 and early 2003, he had used a very strong amphetamine known as "oxblood". He agreed that "there was a time" when he had "real difficulty" telling the difference between reality and what he thought was reality. 395He agreed that, in the interview of 16 August 2006, he had said, referring to early 2003: "I was on the drugs, man, you know, I, I, the amount of shit that I pumped into my system I, I have trouble remembering last week let alone year, you know what I mean." He agreed that this was so when he was under the influence of drugs. However, he immediately said that, when he gave that answer, he was not telling the truth. He agreed that, in the same interview (again referring to late April early May of 2003): "I don't really remember. I think I was pretty fucked up on drugs." He had then been using cocaine and heroin. 396Although he said that, prior to Mr Heavens' murder, he had been using drugs "off and on, not every day", he also agreed that, in the record of interview, he had said: "I had been using drugs, cocaine and heroin, things like that, I just, that whole year was just a bad, bad year," and that, at that time, he had been using drugs almost every day all day. Specifically in reference to 2 May 2003, he said (in that interview): "Oh, I think I had my first shot of coke about 8 in the morning as I woke up. I went and got some methadone, and, um, went down to have some more coke." 397He agreed that, in the record of interview, he had had said, in reference to the murder of Mr Heavens: "I just blanked the whole night, it was just, didn't know what was going on, just, just, I was psychosin' it, I didn't know who was around, I didn't know what was going on, I was, yeah, just off the planet, I just wasn't with it. I just, before I knew it, we were all out of the car, they were walking, um, in this park, it was like a park, it was, there was a building there, I think there was a building there, I just remember this bloke lookin' at me, he was starin' at me, I felt this feeling like I was, I wasn't going to leave that park." 398However, he said that that answer was "deceitful" and that, although he was under the effect of drugs: " ... I wouldn't say I was psychosin' it." 399A critical piece of evidence given by Burnes concerned the signal to be given by the appellant, indicating that he intended Burnes to shoot Mr Heavens. It will be recalled that this signal was: " ... I am going back to me wallet out of the car." If that signal were given, Burnes was to shoot Mr Heavens. 400In a conversation with JM on 13 February 2006, recorded pursuant to a listening device warrant, Burnes said: "The signal was, um, I've got to go to get my wallet, all right, and that's for no, if he said it, but he didn't say that. He started walking up the street so that was the go." Burnes' explanation in the trial for reversing the signal was that he was "probably confused" when he said that to JM. His evidence in this respect was quite unsatisfactory. He said: "I said I was probably scared, I was confused ... " 401He then denied having said that (although he had seen the transcript of the conversation from which counsel was cross-examining). He then said that he had been mistaken in his conversation with JM. 402There was a good deal more in the cross-examination of Burnes, but it is unnecessary to recount it. It is quite apparent that he was seriously psychiatrically unstable. For that reason alone, it would be difficult to place reliance on his evidence in a conviction for murder. Associated with his psychiatric state, and compounding it, was the acknowledged influence of his self-confessed use of drugs. It is plain that he has given various contradictory accounts of the appellant's asserted involvement in the murder of Mr Heavens: from an account incriminating him (apparently along the lines given by him in evidence in the trial) on 16 August 2006, to an apparently evasive and then incriminating account in the interview of 30-31 August, followed by an entirely exculpatory account given on 17 January 2007. 403Although in the trial (and, apparently, in the interview of 16 August 2006) Burnes was firm that the arrangement with the appellant was that he would shoot Mr Heavens if the pre-arranged signal were given (and that signal was given), in the recorded conversation with JM, he reversed that position, saying that the agreed words signified that he was not to shoot, and that the words were not spoken. 404As I have indicated, I find it quite impossible to conceive that a conviction could be upheld on Burnes' uncorroborated evidence alone. 405The Crown, however, relied on some disparate items of evidence that provided some support for Burnes' account. For example, there was evidence that, on 1 January 2003, the appellant attended the Emergency Department of the Royal Prince Alfred Hospital at Camperdown, where he was treated for a laceration to his lip, which he attributed to an altercation the previous evening. He also complained of thumb pain. This evidence was corroborative of Burnes' account of the events at the hotel, and of the reason Burnes gave for the appellant's inability to load the gun. 406There was also evidence that Mr Heavens had in his clothing a packet of Winfield cigarettes, and that a partly smoked cigarette was in his left hand. This was also corroborative of a minor detail in Burnes' account. 407There was evidence that Burnes' partner, Melissa Riley, had, 13 days after the murder, pawned a Game Boy of the same kind and colour that Burnes said he had taken from the appellant's car. 408There was evidence from Mr Heavens' then partner, LM, that Mr Heavens had arranged to meet the appellant on the afternoon of 2 May 2003, for the purpose of purchasing two ounces of heroin. Mr Heavens had left their home at Manly at either 2.00 pm or 4.00 pm in order to do so. This evidence of LM was supported by that of Ms Maria Papageorgio, who had begun purchasing heroin from Mr Heavens. Ms Papageorgio said that on either the Thursday or Friday (2 May) she spoke to Mr Heavens, obviously with the intention of obtaining heroin. He told her that he could not wait to meet her, as "he had to go and see his boss at Newtown". Telephone records indicate that that call was in fact made at 8.36 pm on 2 May. 409LM also gave evidence that, at about 8.30 pm, Mr Heavens telephoned her to say that the appellant was running a bit late, and that he (Mr Heavens) would be home later. Mr Heavens' side of this conversation as recounted by LM was partially corroborated by Sarah Murphy, who said she was in the company of her partner, DN, and Mr Heavens, when Mr Heavens received a call from a person she deduced to be LM. LM said that Mr Heavens told the caller that he was going to have to wait until later in the evening to obtain heroin. Evidence to similar effect was given by DN. 410On 7 May 2003, the appellant made a statement to police. He gave an account of having first met Mr Heavens in a methadone clinic. He said that he had last seen Mr Heavens the previous Wednesday, 30 April. He said that Mr Heavens had rung him at about 5.00 pm on Friday, 2 May, wanting to see him. They arranged to meet at 8.30 that evening at the Leichhardt Markets. He said that he drove to the appointed meeting place, that he was late, and Mr Heavens had phoned him on the way. When the appellant arrived, Mr Heavens was not there. He waited for about five minutes but Mr Heavens did not turn up. He became annoyed and went home, arriving at about 9.15 pm. He attempted to call Mr Heavens once on his mobile phone, but could not establish contact. He had dinner at home and did not go out again that night. He said that he attempted to phone again the following day, but again could not establish contact. He therefore telephoned LM. She told him that she was at the police station, and Mr Heavens had been murdered. 411The appellant also told police that about a month earlier he had heard that Mr Heavens had obtained a large quantity of stolen ecstasy tablets, and that he had heard that Mr Heavens was connected with some "heavy" criminals. It may be that this last was inserted in order to plant a suspicion that Mr Heavens had been murdered as a result of his criminal activity, or criminal connections, by others. 412One thing that is, for the purposes of present analysis, significant about the appellant's statement is that, on his own account, he had had an arrangement to meet Mr Heavens at the Leichhardt markets. This was partially - and significantly - consistent with Burnes' account (although, on the appellant's account, the arranged meeting was about one hour earlier than in Burnes' account). 413The appellant's account of the telephone call to LM is inconsistent with her evidence, which was that the appellant had called her at about 8.30 or 9.00 am in the morning, when she was at home at Manly, and asked where Mr Heavens was, saying that he had not shown up the previous evening. 414Another interesting piece of evidence was given by LM. She had on occasions accompanied Mr Heavens in his dealings with the appellant. She recounted one occasion on which the three drove to "somewhere near Darling Harbour" and the appellant and Mr Heavens left the car, leaving their mobile phones in the car. She said that Mr Heavens had told her the reason they left their phones in the car was because the appellant's friend had been "busted by the police through his mobile phone" and the appellant was very paranoid. This piece of evidence fits nicely with the evidence of Mr Burnes concerning the appellant's directions at Callan Park to leave the mobile phones in the car. 415Notwithstanding these various items of evidence that provide some support to the Crown case, dependent as it was on the evidence of Burnes, I cannot be satisfied to the requisite degree that the jury ought not to have experienced a reasonable doubt. As I have indicated above, while there was sufficient evidence to enable the jury to accept Burnes' account that he had been the murderer, and there were various items of the detail in his account that corresponded with those given by other witnesses, none of that evidence went directly to the circumstances of the meeting between Burnes' and the appellant, or their meeting with Mr Heavens at Leichhardt, and none was remotely near the evidence of the murder itself or any request by the appellant to Burnes to kill Mr Heavens. 416In my opinion the appeal ought to be allowed, the conviction quashed, and a verdict of acquittal entered. In reaching this conclusion I have, of course, applied the well known tests stated in M v The Queen [1994] HCA 63; 181 CLR 487 and MFA v The Queen [2002] HCA 53; 213 CLR 606. 417HARRISON J: I have had the considerable benefit of reading the draft judgments of both the Chief Justice and Simpson J. I am of the opinion that the jury's verdict of guilty was unreasonable and cannot be supported by the evidence. 418I am unable to accept that any advantage that may have been enjoyed by the jury in this case, in seeing and hearing the evidence, is capable of resolving the doubt that emerges from, and which is highlighted by, the reasoning and analysis in the judgment of Simpson J. Mr Burnes emerges as a wholly incredible and unreliable witness. His evidence lacks credibility for reasons that are not explained by the manner in which that evidence was given, and because of the manifold inconsistencies and contradictions that it contains. It is not relevantly corroborated by evidence otherwise given in the trial that resolves the doubt that I consider exists. The evidence is in my view wholly lacking in any probative force and I am led to conclude that there is a significant possibility that an innocent person has been convicted. It was not in my view open to the jury in this case to be satisfied beyond reasonable doubt upon the whole of the evidence that the appellant was guilty. 419It follows in my opinion that Ground 1 ought to succeed, that the conviction should be quashed and that a verdict of acquittal should be entered.

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