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.