HRNG ADELAIDE, 15-18 July 1991 #DATE 30:8:1991 Counsel for Collie: Ms M.E. Shaw with Mr C.J. Caldicott Solicitors for Collie: Caldicott and Co. Counsel for Kranz: Mr S.W. Tilmouth QC with Mr D.J. Wardle Solicitors for Kranz: Douglas Wardle Counsel for Lovegrove: Mr P.N. Waye with

Mr I.J. Margitich Solicitors for Lovegrove: Ivan J. Margitich Counsel for Attorney-General: Mr B.J. Jennings QC with Ms C. Shepherd Solicitor for Attorney-General: Mr B.M. Selway Crown Solicitor

ORDER Appeals allowed, conviction set aside and new trial of the charge of murder against the appellants ordered.

JUDGE1 KING CJ The appellants were tried together with two other persons namely Wolfgang Meyer and Joanne Carter in the Supreme Court on a charge of murder of Newton Eugene Silva. David Jack Carter was charged in the same information with misprision of a felony in unlawfully concealing the commission of the murder and he was tried jointly with those accused of the murder. Meyer and Joanne Carter were found not guilty. The appellants were found guilty of murder and David Carter was found guilty of misprision of felony. The appellants have appealed to this court against their conviction. 2. The accused persons and the deceased were all known to one another. They inhabited a world in which the consumption of amphetamines and dealing in amphetamines appear to have been the norm. On 3rd July 1988 Meyer appears to have conceived the notion that the deceased had stolen some $7,000 from him. The appellant Lovegrove inveigled the deceased to Meyer's house where Meyer and the appellant Collie administered a beating to the deceased using a baseball bat for the purpose. The deceased suffered significant injuries. Meyer took possession of a car belonging to the deceased but it seems that he still considered that the deceased owed him money. There is evidence from which it is reasonable to conclude that following that incident, the deceased made statements to the effect that he would revenge himself upon those who had assaulted him by giving information to the police and that he made such statements in circumstances in which those statements were likely to have become known to the appellants and Meyer. The deceased spent the night of Tuesday, 12th July in a room at the Rose and Crown Hotel at Elizabeth. He then went, probably on the Wednesday, to stay at a unit occupied by David and Joanne Carter, who are brother and sister, at Amsterdam Crescent, Salisbury Downs. The deceased wished to go to Sydney to meet his mother who was travelling from New Zealand. It appears that he planned to leave on Saturday, 16th July. David and Joanne Carter stole a Holden Statesman motor car on the 15th July to enable the deceased to travel on the following day. That car was subsequently found in the Elizabeth area. The explanation given by Joanne Carter in evidence was that the deceased did not wish to travel in that car as it was found to have been the property of a Correctional Services officer. David Carter therefore stole another Statesman for him. In fact, however, the deceased did not meet his mother in Sydney. His body was found at Ardrossan on 3rd August with two bullet holes in the head and one in the heart. 3. Scientific evidence as to the time of death was called from Dr. Manock, a pathologist, and Miss Morris an entomologist. Neither was able to fix the time of death with precision. The defence laid emphasis on the fact that both had in earlier reports indicated the time of death as late in July, at which time the appellants could not have been involved in the murder. In the end, however, the scientific evidence could only be regarded as inconclusive as to the time of death. Two other witnesses gave evidence of sightings of the deceased which could have been later in July. Neither had any convincing basis for fixing the time of the sighting and that evidence, in my view, turned out to be of little consequence. There is no doubt that the deceased was at the Carter unit on the night of the 15th July and that he intended to travel to Sydney. He did not arrive in Sydney and there is no evidence of his presence in the circles in which he was accustomed to move in the Elizabeth area thereafter. The overwhelming inference is that he met his death on or shortly after the 15th July. 4. The lynchpin of the case for the prosecution was the evidence of a man named Brannan. His evidence was to the following effect. He was acquainted with Collie and Lovegrove and knew Kranz well. On the evening of the 15th July he was at the Carter unit and the deceased was also there. At one point, while the deceased was asleep, Joanne Carter left the unit for a time. On her return she told Brannan and David Carter that they should leave the unit "because something was going to happen". They retired behind a fence abounding a carpark at the rear of the unit. They observed proceedings through a crack in the fence and by looking over the fence. Brannan saw three men drag the deceased through the back gate of the unit to a car which was located in the car park. The deceased was struggling and saying "I don't want to die, don't hurt me". He was placed in the car and driven away. Brannan saw the silhouette of a fifth person in the rear of the car. Brannan was allowed to say, as evidence against David Carter only, that David Carter said, "It's Harry, Crunch and Turtle". Harry was the nickname of Collie, Crunch the nickname of Kranz and Turtle the nickname of Lovegrove. Brannan saw Collie and Kranz clearly enough to recognise them but he admitted that he relied upon what David Carter said for his identification of Lovegrove. Brannan and Carter returned to the unit. Joanne Carter said that the deceased had been "taken because he was about to go interstate and not pay back money that he had owed and that he was trying to set up the people concerned with the police". Those present, that being the Carters, Brannan and a man by the name of Lym who was also living at the unit, selected what they wanted of the deceased's belongings. Later that evening Kranz came to the unit. He thanked Joanne Carter for her help and said "It was best that we believed that Kiwi had gone to Sydney as he had planned to do". Kiwi was the nickname of the deceased. 5. Brannan's evidence was subjected to strong criticism by counsel for all appellants both at the trial and on the appeal. When interviewed by the police on 3rd September 1988, Brannan denied all knowledge of the abduction and murder. His statement to the police implicating the appellants was made almost twelve months later, that is to say on the 11th August 1989. He was then facing a number of criminal charges which could well have led to his imprisonment. He was on parole and if sentenced to imprisonment faced serving the balance of the original sentence. In all he was looking at a very long term of imprisonment. Contact with the police in August 1989 appears to have been through his parole officer. He anticipated help from the police in exchange for the information which he was giving. In fact he obtained a letter from the police confirming the assistance which he had given and that was placed before the sentencing judge. Brannan's sentence was suspended. He therefore escaped serving the balance of the original sentence. There were inconsistencies in Brannan's evidence and his story appears to have changed in material respects from the statement to the police, to his evidence at the preliminary hearing and to his evidence at trial. There are indications, so counsel submitted, that his story had changed to meet difficulties encountered in cross-examination and in relation to the known facts. Even if it could be accepted that Brannan was honest, counsel argued that his identification was unsatisfactory. There was in fact no real identification of Lovegrove. Mistaken identification hardly comes into Kranz's case because Brannan purported to recognise Kranz as someone he knew well and moreover he gave evidence that Kranz returned to the unit later and implicitly admitted his involvement. Brannan did not know Collie nearly as well, however, and there are difficulties in his evidence as regards his purported identification of Collie and the descriptions which he gave of him. 6. On the Saturday morning the 16th July, police officers raided the Carter flat in connection with drugs. The deceased was not there and the police found no belongings which they connected with him except some documents which clearly belonged to him. Kranz attempted to visit the flat at the time of the raid but was intercepted by a neighbour, Lucy Vette, and went to her unit. She gave evidence that he there produced a handgun to which he fitted an attachment which could have been a silencer and also produced two bullets. He was carrying the gun in a briefcase. He said that he would have to get rid of it. A man named Lym, who also lived at the Carters' unit, also came to Lucy Vette's unit. He gave evidence that he saw a gun in the briefcase. Kranz's explanation of this in evidence was he had bought a toy gun to deter people who might cause trouble by reason of his drug activities. He denied that the gun was ever taken out of the briefcase that morning or that he produced any bullets or said that he had to get rid of it. 7. One Trevor Munting gave evidence. He said that Collie told him on the 9th July that Kiwi had one week to come up with the money or he would be taken care of. He said that he was at Collie's house on the night of the 15th July desiring to purchase amphetamines. Meyer's wife was there. Munting said that he remained there until 5.00 a.m. and that Collie did not return. On Saturday the 16th July he again went to Collie's house. Collie said "You don't have to worry about Kiwi any more". On the following day, Sunday the 17th July, Munting, according to his evidence, accompanied Collie to the Rose and Crown Hotel. Collie had a key to the room which the deceased had occupied and they searched the room. The licensee of the hotel gave evidence that the deceased had been supplied with a key to the room and a key to the outer door of the hotel. Both keys were missing for a time after he stayed at the hotel. Later the room key was handed to her but she could not say by whom. Munting was criticised by counsel for the defence as a person who engaged in criminal activities and had ends of his own to serve by implicating the appellants. 8. Kranz's live-in girlfriend at the time, one Linda McCaslin, gave evidence that on Sunday the 17th July Kranz said to her "You know that guy Kiwi. I knocked him off as a favour for Wolf". McCaslin was a heavy user of amphetamines at the time and admitted that her mental functioning, including her memory, were affected by the drug. When she made the statement implicating the appellants, she was in trouble with the police and admitted that she was under pressure to implicate Kranz in order to save herself. She was also concerned about the custody of her child who was the subject of a custody dispute with her husband. 9. In their interviews with the police, Collie and Kranz each denied all involvement in the deceased's murder although Collie admitted his involvement in the bashing. Lovegrove was interviewed at Alice Springs on 25th June 1990. There is a tape recording of the interview. He admitted involvement in the bashing to the extent of tricking the deceased into going to Meyer's house. He admitted that he, Collie and Kranz had abducted the deceased on the Friday night and driven him to Ardrossan. He claimed that he believed that the deceased was merely to be interrogated. When the car stopped at Ardrossan Lovegrove was given a gun and told to shoot the deceased. He refused to do so. Collie then shot the deceased twice in the head and once in the body with a gun which fired 9 millimetre rounds. The body was placed near a tree and covered with the branches of trees. 10. Collie gave evidence on oath admitting the bashing of the deceased but denying any part in his murder. He denied any part in abducting the deceased from Amsterdam Crescent. He denied any conversation with Munting concerning the deceased and denied possession of the key or going to the Rose and Crown Hotel with Munting. 11. Kranz also gave evidence on oath denying any part in the abduction or murder of the deceased. He said that the gun in his briefcase on the Saturday morning was a toy gun and denied that it was produced from the briefcase or that he produced bullets. He denied the alleged confession to McCaslin. 12. Lovegrove gave evidence admitting his part in the bashing. He also denied any knowledge of the abduction or death of the deceased. He said that he remembered being interviewed by the police at Alice Springs but remembered nothing of what was said. He suffers from schizophrenia and was particularly unwell at the time of the interview. The psychiatrist Dr. Kalucy gave evidence in Lovegrove's defence, expressing the opinion that he is a paranoid schizophrenic and delusional. In Dr. Kalucy's opinion, Lovegrove's statement to the police about the murder was possibly delusional. 13. The above brief conspectus of the evidence given at a long trial necessarily omits much important material but it is sufficient to serve as a background for the consideration of the issues which were argued on the appeal. 14. Counsel for all three appellants argued that the learned trial judge was in error in rejecting their applications made at trial for separate trials. They contended that the consequent joint trial resulted in the admission of much prejudicial material which was inadmissible against their respective clients and that their clients were in consequence denied a fair trial. 15. The relevant principles are set out in The Queen v. Harbach (1973) 6 SASR 427 at 432 as follows: "But three things are clear. The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial: Pullman's Case (1954) SASR 116, at p 121; R. v. Kerekes (1953) 70 WN(N.S.W.) 102, per Owen J at p 104. The appellant and Munroe were jointly charged and the Crown case was one of a joint enterprise, at least to rob Meyer and perhaps, if necessary, to kill him. The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be before the jury (Pullman's Case (supra); Youth v. The King (1945) WN 27) and the third is that it may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime on the other (R. v. Grondkowski (1946) 31 Cr App R 116), though both of these are highly relevant considerations to the exercise of the discretion (Grondkowski's Case (supra), at p 121). There may appear to be an anomaly here. It may appear strange that material which would be sedulously kept from a jury, if an accused person were being tried alone, should be allowed to go before them when there is another person in the dock on the same charge. The point is made, with his customary incisiveness, by Dr. Glanville Williams in The Proof of Guilt (1955) at pp.186-187. The answer appears to be two-fold: first, that it is the duty of the judge to make it plain to the jury what evidence is inadmissible against any of the accused and to warn them that they must not use such evidence against that accused and that the law assumes that the jury is capable of understanding and willing to heed such admonitions; second, that in such cases, and particularly when each of the accused is seeking to cast the blame on to the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it (R v Gibbins and Proctor (1918) 13 Cr App R 134, at p.137; Grondkowski's Case (supra); Kerekes' Case (supra)). The second consideration is presumably thought sufficiently cogent for the law to leave it to the judge's direction and warning about the use of evidence or material, such as an unsworn statement, admissible against one accused but not against the other, to act as a sufficient safeguard against injustice. The current test of whether the exercise of a discretion against separate trials will be interfered with by a court of appeal appears to be whether, by reason of the joint trial, there has been a miscarriage of justice (R v Beavan (1952) 69 W.N. (N.S.W.) 102; Kerekes' Case (supra) at p.105); or whether improper prejudice has been created against an accused (Grondkowski's Case (supra), at p.122; R v Flaherty (1968) 3 NSWR 734, per Asprey JA at p.741)." 16. The reason why there should ordinarily be a joint trial of accused persons charged with committing the crime jointly are expressed in the judgment of the Full Court of the Supreme Court of Victoria in The Queen v. Demirok [1976] VicRp 19; (1976) VR 244 at 254: "The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials." 17. In R v Glover (1987) 46 SASR 310 at 312 I expressed the principle as follows: "I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together." 18. It was argued that these principles were in some way modified by the passage in the joint judgment of Gibbs CJ, Aickin J, Wilson J and Brennan J in The Queen v. Darby [1982] HCA 32; (1982) 148 CLR 668 at 678 as follows: "In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v. The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. In cases where there is no material distinction in the evidence admissible against both alleged conspirators, the trial judge's advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case." 19. I do not read that passage as affecting the principles discussed in the cases which I have cited. Their Honours in The Queen v. Darby (supra) were considering the embarrassment to a jury in the trial of accused persons jointly charged with conspiracy where the cases against the alleged conspirators are significantly different. The problem there arises from the fact that the agreement between the alleged conspirators is the gist of the crime charged. It may be very difficult for a jury which finds that A is guilty of conspiring with B, to find also, because of the difference in the evidence which is admissible against B, that B is not guilty of conspiring with A. For that reason it may be desirable, perhaps even necessary, to achieve a just result in conspiracy cases in which the evidence against the alleged conspirators is significantly different, to try them separately. No doubt the same problem may be present to some degree in certain cases of persons accused of committing a crime, other than conspiracy, jointly, and the difference in the evidence admissible against each accused may be an important factor in such cases in the exercise of the discretion as to whether to order separate trials. I do not consider, however, that the passage cited above from Darby's case in any way modifies the accepted principles with respect to joint trials and particularly the principle that ordinarily persons accused of committing a crime jointly ought to be tried jointly. 20. Nevertheless, the critical question in the end is whether an injustice has been caused by the joint trial. It sometimes happens that a joint trial held in consequence of an entirely justified refusal of the trial judge to accede to an application for separate trials, may be seen, when all the evidence is in, to have resulted in injustice. The Queen v. Gibb and McKenzie (1982) 3 VR 155 and The Queen v. Demirok (supra) were such cases. The critical issue on an appeal is not whether the exercise of the discretion of the trial judge miscarried on the material before him at the time when he made his decision, but whether the joint trial has produced a miscarriage of justice in the sense of depriving the appellant of a fair trial. 21. There can be no doubt in my mind that the trial of David Carter on the charge of misprision of felony jointly with the appellants on the charge of murder had the effect of introducing into the trial material, inadmissible against the appellants, which had a great prejudicial potential. The first such item of evidence was the remark attributed by Brannan to Carter at the scene of the abduction "That is Harry, Crunch and Turtle". This was probably not very prejudicial to Kranz. Brannan knew Kranz well and in addition claimed that Kranz came back to the unit afterwards and virtually acknowledged his participation. The only question with respect to Brannan's evidence against Kranz was whether Brannan was telling the truth, and, of course, if he were lying about the abduction, he would be likely to be lying about David Carter's remark. The evidence of David Carter's remark was, however, gravely prejudicial with respect to Collie and Lovegrove. If Brannan were telling the truth, there was still a serious issue as to the quality of his identification of Collie. Brannan could not swear to having identified Lovegrove at all. The hearsay evidence of Carter's identification of Collie and Lovegrove was therefore very prejudicial material allowed into the trial only because of its admissibility against Carter. 22. The joinder of David Carter also resulted in the admission into evidence against him of a remark which was alleged by the witness Janet Cameron, to have been made by him. He was alleged to have said "That Harry, Turtle and Crunch had taken the deceased from the unit". 23. There can be no doubt about the gravely prejudicial character of the statements attributed to David Carter. He did not give evidence. The appellants were therefore faced at their trial with hearsay statements purporting to emanate from an eye witness, who could not be cross-examined by them, directly incriminating them. If David Carter had not been tried jointly with the appellants, those alleged statements would not have been heard by the jury. The reasons which indicate a joint trial had little force in relation to David Carter. He was not charged with committing a crime jointly with the appellants but rather of committing the quite different crime of concealing their crime. The jury would have lost no advantage if he were not present in the dock and would have been saved the difficulty and embarrassment of hearing the prejudicial statements. It is true that the separate trial of David Carter would have involved additional expense, and inconvenience to witnesses, but he was charged with a relatively minor crime and the prosecuting authorities would have had to give serious consideration to whether another trial was justified. The learned trial judge directed the jury that the statements referred to above were evidence against David Carter only but I think that, having regard to the nature of the other evidence in the case, it would have been extremely difficult for the jury to remain uninfluenced in considering the case against the three appellants by what they had heard of the statements of a supposed eye witness. 24. The prejudice to Collie and Kranz arising from statements attributed to David Carter, was compounded, in my opinion, by evidence, which was inadmissible against them, in the case of Lovegrove. Lovegrove's statement to the police implicated them directly. This is a common problem in a joint trial and ordinarily can be met satisfactorily by an appropriate direction to the jury. In this case, however, the potential for prejudice is increased by the accumulative effect of the statements attributed to David Carter. What is perhaps more serious, however, is that the issues arising out of Lovegrove's statement let in highly prejudicial material as to rumours concerning the crime. Lovegrove's defence was that his statements to the police concerning his participation in the incident were the product of delusions. This defence led to cross-examination of Lovegrove as to the means by which he could have acquired information conveyed to the police if he were not present at the murder. This line of cross-examination elicited answers from Lovegrove about rumours which he had heard in the Elizabeth district implicating Collie and Kranz in the murder. 25. I think that viewing the case as a whole, there is a grave risk that the minds of the jurors were influenced by the combination of hearsay statements by a supposed eye witness and rumours circulating in the district. It would have been extremely difficult for the jury to focus attention upon the evidence properly admissible against the appellants uninfluenced by the atmosphere created by the evidence of the hearsay and rumour. I have reached the conclusion that the joint trial had the effect of depriving all three appellants of a fair trial and that the convictions in consequence of such a trial cannot be sustained. 26. It is now necessary to deal with certain further submissions made on behalf of the appellants. It was contended that the learned trial judge should have excluded, in the exercise of his discretion, the evidence given by Brannan as to his identification of the persons involved in the abduction. We were referred to the familiar cases concerning unreliable identifications and particular reference was made to Alexander v. The Queen [1981] HCA 17; (1980) 145 CLR 395 and The Queen v. Hallam and Kargar (1985) 42 SASR 126. There is no real basis for arguing that Brannan's evidence of identification of Kranz should have been withdrawn from the jury. Assuming that Brannan was telling the truth, there could be no real doubt about the accuracy of his identification. He knew Kranz well. Moreover his evidence was that Kranz returned to the unit later in the evening and implicitly acknowledged that he was a participant. The identification of Collie was much weaker. It received support, however, from other evidence. The man identified was the man who had participated in the earlier bashing. He was the man who, if Munting is to be believed, told him that he need not worry further about Kiwi and who was in possession of the deceased's hotel key and searched his room. The evidence of Brannan as to the identification of Collie certainly called for a clear direction to the jury as to its infirmities as identification evidence and also as to motives which Brannan might have for falsehood. Nevertheless I think that it was of sufficient potential cogency to warrant consideration by the jury. Its truthfulness and reliability was a matter to be assessed by the jury and I do not think that it would have been right for the judge to have withdrawn the evidence from them. In cross-examination Brannan in effect withdrew his earlier purported identification of Lovegrove and admitted that he relied upon what David Carter said. The learned trial judge correctly directed the jury as to that. 27. It was submitted that the evidence of the bashing incident on 3rd July was inadmissible. I think that it was admissible on a number of grounds. It was part of the sequence of events allegedly leading to the murder. It showed a willingness on Collie's part to use violence towards the deceased in Meyer's interests. As against Collie it was linked to the murder further by his alleged statement to Munting "He's got a week to come up with the money he stole from Wolf or he's going to be taken care of". It provided moreover a motive for murder by way of the deceased's alleged statements to the effect that he would revenge himself upon those responsible for the bashing by informing to the police, statements made in circumstances from which the jury could have inferred that they were likely to have come to the notice of Collie. The same can be said substantially of Lovegrove. The bashing was connected to a motive for Kranz's involvement by his alleged statement to McCaslin to the effect that he had killed the deceased for Meyer. 28. It was argued that Brannan was an accomplice and that the accomplice's corroboration warning should have been given. The argument was that Brannan was an accessory after the fact of the murder and therefore an accomplice. To my mind there is nothing in the evidence to suggest that Brannan was or could have been an accessory after the fact of murder. At most he could be said to have been guilty of misprision of felony and that would not make him an accomplice. It is therefore unnecessary to consider whether an accessory after the fact is an accomplice for the purpose of the rule relating to the accomplice corroboration direction and for that purpose to resolve the apparent conflict between the rule as formulated in Davies v. Director of Public Prosecutions (1954) Appeal Cases 378 at p 400 and the Australian cases of R v. Lewis (1906) 8 WAR 83, R v. Ready and Manning [1942] VicLawRp 20; (1942) VLR 85 and Kahn v R (1971) WAR 44. Nevertheless Brannan was a person of dubious character. Moreover he had secured a favour from the police designed to secure leniency in his own case in exchange for his evidence and therefore had a motive to invent a full story. Such evidence clearly calls for a cautionary direction in the charge to the jury. 29. It was argued that certain re-examination of Detective Florence was inadmissible and highly prejudicial to the appellants. Brannan was cross-examined with a view to showing that he was a reluctant witness, the implication being that he was reluctant because his evidence was untruthful, and that he was subject to pressure by the police to compel him to give evidence. Counsel for the prosecution sought to re-examine Brannan to show that his reluctance resulted not from pressure from the police but from threats by a bikie gang called the Gypsy Jokers. The prejudicial potential of this re-examination arose from the fact that the appellants were connected with that organisation. The judge indicated a disinclination to allow the re-examination and counsel for the prosecution did not persist. When Detective Florence came to give evidence, however, he was cross-examined to show that Brannan was a reluctant witness and that Florence had applied pressure to him. In that context it was suggested that Brannan had been under some degree of constraint and had been taken to Victor Harbor. Prosecution was then permitted to re-examine Florence to elicit that Brannan had told Florence that he had been threatened by the Gypsy Jokers. The relevant purpose of the re-examination was to explain Florence's conduct in relation to Brannan and in particular his removal to Victor Harbor. The evidence was undoubtedly and unfortunately prejudicial to the appellants. It was justified, however, in my opinion by a persistent line of cross-examination designed to indicate to the jury that Brannan was under improper pressure from the police to tell a story which he was reluctant to tell presumably because it was false. I think that the prosecution was entitled to re-examine Florence to enable him to put forward his version of why he acted in the way he did and to enable the jury to see his actions, assuming the truth of his evidence, in their true light. Perhaps at a new trial, the cross-examination will be pursued along different lines and it will be unnecessary to elicit such potentially prejudicial material. 30. Counsel for Kranz complained about the failure of the learned trial judge to caution the jury concerning the evidence of Linda McCaslin. That witness was using amphetamines heavily at the time of the statement to which she deposed. At the time of giving her statement to the police her relationship with Kranz had ended. She was in danger of imprisonment and of losing the custody of her child and the charges against her were dropped after she gave her statement implicating Kranz. I think that there was every reason for a direction cautioning the jury with respect to the dangers inherent in evidence from such a source. 31. It was contended on behalf of Lovegrove that the statement which he made to the police at Alice Springs ought to have been excluded as inadmissible or in the exercise of the judge's discretion. This argument was based upon the evidence given by Dr. Kalucy, a psychiatrist, at the trial. He was of the opinion that Lovegrove was suffering from paranoid schizophrenia and that he was acutely ill at the time of the interview. A person suffering from that condition may experience delusions and Dr. Kalucy considered that it was possible that Lovegrove's account of his participation in the incident which resulted in the death of the deceased, was delusional. He agreed, of course, that the fact that a person is a paranoid schizophrenic does not necessarily mean that his statements are not factual. A test of whether a statement is delusional, is how it corresponds with known facts. 32. The fact that a confessional statement is made by a person who is suffering from schizophrenia or is otherwise of unsound mind, does not necessarily render it inadmissible nor require that it be excluded in the exercise of the judge's discretion. The judge must consider whether the accused person was so mentally deficient at the time of the statement that its admission into evidence would be unfair to him. Unless the judge reaches that conclusion, the statement will be admitted and its weight will be a matter for the jury. Sinclair v. The King [1946] HCA 55; (1946) 73 CLR 316. 33. I do not think that either the psychiatric evidence or the nature of the answers given by Lovegrove at the interview, constituted any sound basis for the exclusion of the evidence of the interview. The description by Latham CJ of the evidence in Sinclair's case can be applied to the present situation. At p.324 he said: "In the present case there was the evidence of Dr. McGeorge that Sinclair was a schizophrenic. That evidence did not go further than to show that there was a real risk, recognized by psychiatrists, that on a particular occasion such a man as Sinclair might fail to distinguish fact from fantasy and that he might construct and relate an imaginative account of something that had really never happened. This evidence showed, as I think Dr. McGeorge agreed, that it would be very wise, and indeed necessary, to check such evidence carefully by reference to independently

proved facts and by any other available means. But it did not show that Sinclair had a mind so disordered and irresponsible that it would be dangerous to pay any attention whatever to what he said." 34. The remarks of Dixon J at p.338 are also apposite: "But it is to be noticed that his condition did no more than make it possible that the source of any confessional statement made, lay in these tendencies. His was not a case in which it could be said that the higher probability was in favour of his confession of such a crime being the product of imagination. Reason suggests that in such circumstances it is for the tribunal of fact to ascertain or verify the factual basis of the statements of a man in such a mental condition by comparing their contents with the independent proofs of the circumstances and occurrences to which they relate. It happens that external facts independently proved do supply many reasons for supposing that the confessional statements made by Boyd Sinclair were substantially correct. Though this consideration is not relevant to the question of the legal admissibility of such statements, it provides an example of the inconvenience or undesirability of a rule of rigid exclusion. It may be conceded that a confession may in fact be made by a person whose unsoundness of mind is such that no account ought to be taken of his self-incriminating statements for any evidentiary purpose as proof of the criminal acts alleged against him. In such a case it might properly be rejected. It is enough in the present case to say that I do not think that Boyd Sinclair's derangement was such as to place his confessional statements in that category. His mental condition was not shown to be inconsistent with any standard or criterion we should adopt as the test of admissibility in evidence of confessional statements. A confession is not necessarily inadmissible as evidence upon a criminal trial because it appears that the prisoner making it was at the time of unsound mind and, by reason of his mental condition, exposed to the liability of confusing the products of his disordered imagination or fancy with fact." 35. Lovegrove was properly cautioned before the interview commenced and there was no suggestion of any pressure being exerted upon him. I think that the evidence of the interview was correctly admitted into evidence. 36. It was also argued on behalf of Lovegrove that the learned trial judge ought to have left manslaughter to the jury as a verdict which was open to them on the evidence. The case was left to the jury by the learned trial judge as murder or nothing. Counsel for Lovegrove did not ask at the trial that manslaughter be left. That, of course, is not conclusive. In Varley v. The Queen (1977) 51 ALJR 243 at 245, Barwick CJ said: "In relation to the submission as to the judge's decision to direct the jury as to the possibility of a verdict of manslaughter after the appellant had addressed the jury, it should first be said that if there were a basis in the evidence on which the jury, not being satisfied of all the elements of murder, could find manslaughter, he was bound to direct the jury accordingly. His duty in that regard cannot be controlled by the tactics or manoeuvring of the accused or of those representing him. So much clearly appears from the decided cases, e.g. Mancini v. Director of Public Prosecutions (1942) AC 1; R v Gammage [1969] HCA 68; (1969), 122 CLR 444; Pemble v. The Queen [1971] HCA 20; (1971), 124 CLR 107. The duty to give the appropriate direction is owed to accused and Crown alike, for if the evidence will bear the conclusion of manslaughter, in default of the jury's satisfaction of all the elements of murder, the Crown is not to be denied a verdict nor the accused entitled to an acquittal." The rule is stated by Gibbs CJ in Markby v. The Queen [1978] HCA 29; (1978) 140 CLR 108 at 113 as follows: "It is the duty of the judge on the trial of a charge of murder to direct a jury that a verdict of manslaughter is open to them if there is a basis in the evidence for such a possible verdict." 37. The argument put for Lovegrove on the appeal was that his statement to the police could be fairly and reasonably construed as a confession to manslaughter. Lovegrove said, in effect, that he thought that the deceased was being abducted for the purpose of interrogation only and that he was unaware of any intention to kill. He believed that the loaded firearm was to be used only by way of threat to the deceased in order to keep him under restraint. The effect of the statement is that, unknown to Lovegrove, his two companions harboured from the beginning an undisclosed intention to murder the deceased. 38. The question of law is whether the statement, so construed, amounts to a confession to the crime of manslaughter. There can be no doubt that it was a confession to engaging in an unlawful act consisting of a false imprisonment of and an assault upon the deceased in common with the other two men, and an act which was dangerous by reason of the carrying of the loaded firearm. The statement also conveys that murder was not within Lovegrove's contemplation. In those circumstances, if the death of the deceased resulted from the unlawful and dangerous act, Lovegrove would be guilty of manslaughter. R v Smith (1963) 1 WLR 1200. But not all deaths occurring in the course of an unlawful and dangerous enterprise which does not include murder in its scope, result in criminal liability for manslaughter on the part of the participants. Questions of causation arise. Thus in R v Anderson and Morris (1966) 2 QB 110, the appellant, who was a participant in a joint enterprise to assault the victim, was held to be not guilty of manslaughter in respect of the death of the victim caused by a stab wound deliberately inflicted by the co-adventurer with a knife which he was carrying unknown to the appellant. The English Court of Criminal Appeal at p.120 said: "Mr. Caulfield, in his attractive argument, points to the fact, that it would seem to be illogical that, if two people had formed a common design to do an unlawful act and death resulted by an unforeseen consequence, they should be held, as they would undoubtedly be held, guilty of manslaughter; whereas if one of them in those circumstances had in a moment of passion decided to kill, they would be acquitted altogether. The law, of course, is not completely logical, but there is nothing really illogical in such a result, in that it could well be said as a matter of common sense that in the latter circumstances the death resulted or was caused by the sudden action of the adventurer who decided to kill and killed. Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked

upon as causative factors. Looked at in that way, there is really nothing illogical in the result to which Mr. Caulfield points." 39. In the present case I feel no doubt that if the death had resulted from the accidental discharge of the loaded firearm Lovegrove would be guilty of manslaughter. If one of the participants had formed, through panic or anger, a sudden intention to wound or kill the deceased, I think, on the authority of R v Smith (supra) that that would be regarded as a result of the dangerous act of carrying a loaded firearm as part of the joint enterprise and that Lovegrove would be guilty of manslaughter. That, however, is not what Lovegrove's statement conveys. It conveys that the death of the deceased was the result of a deliberate act which could only have been premeditated and which indicated that his companions had entertained the intention to kill from the beginning. In those circumstances, it seems to me that the death cannot be regarded as having been caused by the dangerous nature of the enterprise into which Lovegrove had entered. The cause of the deceased's death was unrelated to any danger created by imprisonment of the deceased or the carrying of the loaded firearm for the purpose of restraining him. The cause was the murderous intention entertained, unknown to Lovegrove, by the other two participants. In those circumstances I do not think that a verdict of manslaughter was open upon Lovegrove's statement and there is no basis in the evidence upon which manslaughter could have been left to the jury as a possible verdict. 40. It was argued on behalf of all appellants that, quite apart from any errors in the trial, the evidence was insufficient to justify a verdict of guilty and that the verdicts were therefore unsafe and unsatisfactory. It was argued therefore that this court should not only set aside the convictions but should substitute acquittals. It is therefore necessary to examine the evidence against each appellant. 41. The case against Collie rests substantially upon the evidence of Brannan who claimed to recognise him, a person previously known to him, as one of the abductors. I have referred to the infirmities in Brannan's evidence. It received some general support from the fact that, if Lucy Vette is to be believed, and she received some support from Lym, one of the persons claimed by Brannan to have participated in the abduction, namely Kranz, was in possession on the following morning of a gun which he felt the necessity of getting rid of. Brannan's evidence also received support in specific relation to Collie, by the evidence of Munting, if he is believed, that Collie told him that he would not have to worry about Kiwi any further and that Collie was in possession of the key to the hotel room previously occupied by the deceased and that he searched that room. There is also the fact of Collie's involvement in the bashing. Notwithstanding the criticisms which can be made of the evidence for the prosecution, I do not think that it can be said that a reasonable jury, having received appropriate warnings, could not believe the evidence for the prosecution and reach a verdict against Collie of guilty beyond reasonable doubt. A great deal must depend in a case such as this upon the jury's assessment of the witnesses. 42. The case against Kranz is perhaps rather stronger than that against Collie. If Brannan is telling the truth, there can be no doubt that Kranz was one of the abductors. He was well known to Brannan and, on Brannan's evidence, he returned to the unit later in the evening and implicitly acknowledged his part in the abduction. The question in the case of Kranz with respect to Brannan's evidence is purely one of credibility. There is some specific confirmation, if Lucy Vette and Lym are to be believed, from Kranz's possession of the gun the following morning and, if Lucy Vette is to be believed, his statement that he had to get rid of it. There is also the alleged confession to Linda McCaslin. 43. The case against Lovegrove stands on quite a different basis. As with Collie, there is the fact of the bashing of the deceased with all that that implies as regards attitude to the deceased and willingness to use violence towards him and motive. Beyond that, however, there is only the confession. This was not a confession to murder but it was a confession to participating in an enterprise involving the abduction and intimidation of the deceased and the use of a loaded firearm in that process. If the confessional statement can be relied upon, it is, in my opinion, a sufficient basis for a verdict of guilty. The jury would be entitled to accept the incriminating parts of the rest of the statement but to disbelieve the self-serving exculpatory portions. It would then be open to them to infer that Lovegrove was a party to the murder. In view of Lovegrove's state of mental health, however, it is necessary to look closely at the statement in order to decide whether a reasonable jury could accept it as a basis for a verdict of guilty. 44. There are parts of the interview in which Lovegrove's answers are clearly delusional, particularly those in which he recounts information about a device in his head. There are indications of impatience and lack of concentration. Most of the answers, however, concerning the relevant events are pertinent and responsive to the questions asked. 45. Some of the information contained in the answers could have been gleaned from media publicity and leading questions during the interview might have suggested other information. But there is a good deal in the answers which a jury could regard as corresponding with proven facts. Lovegrove described an abduction of the deceased from premises at Salisbury. He described the deceased as being asleep on a chair prior to the abduction. He described the abduction as through the front of the premises rather than the rear as described by Brannan but that might be a question of interpretation as to what is the front and what is the rear. He referred to a Japanese white car as the abduction vehicle rather than Kranz's blue Falcon as described by Brannan. The interesting aspect of this answer is that Kranz had a white Toyota motor car on hire at the relevant time. The answer appears therefore not to be a wild delusional answer whatever might be the explanation of the discrepancy between it and the account given by Brannan. Lovegrove's answer that Kranz was driving the car corresponds with Brannan's evidence. His description of the ammunition as 9 millimetre bullets corresponds with the proved fact that the deceased was shot with such bullets. Lovegrove's description of the firearm as a "homemade machine gun" received some support from the ballistic expert's evidence as to the type of gun in which 9 millimetre ammunition is used. 46. There are undoubted discrepancies between Lovegrove's statement and other evidence and these were naturally stressed by his counsel on the appeal. The shots described by Lovegrove do not correspond with the pathologist's evidence that there were two bullets in the right ear and one through the heart. Lovegrove's impression appeared to be the shooting took place quite close to where the body was left but no cases or projectiles were found in the area. Brannan referred to the firearm as a rifle, not a machine gun as described by Lovegrove, but that might not have been easy to judge in the circumstances of his observations. 47. The central point in Lovegrove's description of the abduction and killing is that the other participants were Collie and Kranz. If that were proved to the satisfaction of the jury by other evidence, the case for regarding the confessional statement as reliable would be greatly enhanced. If, on the other hand, there was no satisfactory proof of the involvement of Collie and Kranz, there might be difficulty in regarding the confessional statement alone as satisfactory and reliable evidence of guilt on the part of Lovegrove. Much would depend, in my opinion, upon whether the guilt of Collie and Kranz were satisfactorily proved by evidence admissible against Lovegrove. I think that there was a case against Lovegrove upon which a reasonable jury, after proper warnings, could be satisfied beyond reasonable doubt as to his guilt. 48. For the above reasons I think that there should be a new trial of each of the appellants. If they are presented upon the same information, it will be for the trial judge to decide whether there should be separate trials of any of them. I think that as the issue of separate trials has been fully argued before us, I should make certain observations on the question, without, of course, in any way seeking to fetter the discretion of the trial judge. The interests of justice indicate, for reasons discussed above, that there should be a joint trial if that can be had without unreasonable and unfair prejudice to the accused persons. I can see no reason why Collie and Kranz should not be tried together. The only evidence admissible against one of them which is not admissible against the other is that of their alleged incriminating statements to Munting and McCaslin respectively, and neither of those statements implicated the other. There would therefore be no unfair prejudice to either Collie or Kranz arising from a joint trial. 49. I think that a joint trial of Collie and Kranz with Lovegrove is a different matter. Lovegrove's statement to the police implicates Collie and Kranz and is not evidence against either of them. That would not be a conclusive reason for a separate trial. It is a common problem in joint trials and can generally speaking be coped with by means of an appropriate direction to the jury. It seems to me, however, that Collie and Kranz would be seriously prejudiced by evidence which will necessarily be given in relation to the reliability of Lovegrove's statement. That evidence, as explained above, relates to the rumours circulating which are said to explain Lovegrove's knowledge of certain matters in the statement. This atmosphere of rumour implicating Collie and Kranz would, I think, be gravely prejudicial to them in a joint trial. Moreover, Lovegrove would be seriously prejudiced in a joint trial. As I have indicated above, an assessment of the reliability of Lovegrove's statement to the police depends very much upon whether the involvement of Collie and Kranz is proved by evidence admissible against Lovegrove. An important part of the case against Collie is his alleged statement to Munting and an important part of the case against Kranz is his alleged statement to McCaslin. Neither of those statements is admissible against Lovegrove. The jury would be faced with the difficult task in a joint trial of deciding the involvement of Collie and Kranz upon a complex of evidence which included their alleged incriminating statements, but of deciding the same issue in relation to Lovegrove upon a complex of evidence which would necessarily exclude those incriminating statements. It is, of course, not unknown for juries to be faced with similar problems in joint trials and in some circumstances appropriate directions may be sufficient to enable the jury to cope with the task. I think, however, the issue of the involvement of Collie and Kranz is so important in relation to the reliability of Lovegrove's statement and the difficulty in deciding the very same issue in the same trial upon different evidence is so great, that a joint trial of Lovegrove with Collie and Kranz would be unsatisfactory. As I have already said, the question is not for me to decide but is for the future trial judge. Nevertheless I feel that I would be doing less than justice to the case which has been argued before us if I failed to express my view upon the question. 50. I am therefore of the opinion that the appeals should be allowed, the conviction should be set aside and there should be a new trial of the charge of murder against the appellants.

JUDGE2 COX J I agree with the orders proposed by the Chief Justice.

JUDGE3 DEBELLE J I agree with the orders proposed by the learned Chief Justice and I am in substantial agreement with his Honour's reasons. I add some comments of my own. 2. My mind has fluctuated on the question whether Kranz's conviction should be set aside. His case on appeal is by no means as strong as that of the other two appellants. As the Chief Justice has pointed out, Brannan's evidence that David Carter identified the three abductors to him as the three appellants is unlikely to have prejudiced Kranz, because Brannan knew Kranz already. It is true that Lovegrove's statement to the police at Alice Springs implicated Kranz but the learned trial judge directed the jury carefully on the matter and this alone would not be sufficient reason, in my opinion, for disturbing the conviction. Lovegrove did refer, when under cross-examination, to certain rumours that, he claimed, were current in the district about the murder, but they appear to have amounted to little more than the assumption on some people's part that the murder must have been committed by those who were responsible for Silva's bashing a couple of weeks earlier. Kranz, of course, was not involved in that incident. None of the rumour evidence, in my view, was prejudicial to Kranz. The re-examination of Detective-Sergeant Florance, with its reference to a group called the Gypsy Jokers, may have tended to discredit Collie, who was described by another witness as a "nominee" of the Gypsy Jokers, but it was not suggested to us that this could have harmed Kranz's case. What, in my judgement, tips the scales in Kranz's favour on the appeal is the learned trial Judge's failure to give a comprehensive warning to the jury about the possible danger of acting on the evidence of Linda McCaslin. McCaslin claimed that Kranz told her, very soon after the disappearance of Silva (also known as Kiwi), "You know that guy Kiwi. I knocked him off as a favour for Wolf". (Wolf was the Christian name of the accused Meyer). McCaslin was thus a very important witness against Kranz. She was also a potentially unreliable witness. She was an amphetamine addict at the time Kranz was alleged to have made the admission and she had a strong motive of self-interest for telling the police what she may well have thought they would be glad to hear. The learned Judge reminded the jury more than once in general terms about the possible effects of drugs upon McCaslin's reliability as a witness, but he did not mention the temptation to fabricate evidence against Kranz deliberately in order to lessen her own risk of going to prison and losing the custody of her small child. No doubt the subject was canvassed in the addresses and it is important that Kranz's counsel did not ask for a redirection on that second aspect of her evidence at the end of the summing up. Nevertheless, I think that a warning on that topic should have been given. No special formula was necessary, but it should have brought clearly to the jury's attention, and together, the two important reasons for examining the witness's evidence with special care. There must be a retrial of the other appellants, anyway, and with some hesitation I am willing, because of the McCaslin non-direction, to concur in the order with respect to Kranz as well. 3. The learned trial judge admitted into evidence, against the objections of one or more of the appellants, a long statement by one Sharon Katherine Dunne that she gave the police on 6 August 1988. There was a good deal of detail in the statement about the bashing episode, which Dunne had witnessed, and she also spoke of a comment made to her by the accused Meyer about Silva's disappearance that would certainly not have assisted his case. So far as one can judge from the statement itself, Dunne was associating with Silva shortly before he disappeared. I do not know that her relationship to Collie and Meyer and the other denizens of the local drug world was ever made clear. One would not be at all inclined to assume, without more, that she was a detached and reliable historian. The statement as admitted was the result of a police interrogation of Dunne. It was taken down by a police officer on the typewriter in narrative form, so the extent to which it records her exact words is not apparent. According to Detective Talbot, Dunne was given the opportunity to read the statement, and appeared to do so. She then signed it. Dunne died before the trial and the statement was received under s.45b of the Evidence Act. Much depends on the skill and judgement and scrupulousness of the recorder so far as the textual accuracy of this sort of narrative statement - the faithfulness with which it captures the words and intentions of the person interviewed - is concerned. As for its substance, there was no intrinsic or demonstrated probability of the statement's accuracy. For instance, it was not as though Dunne had already given oral evidence on the subject before another tribunal, or that the taking of the statement was witnessed by a completely disinterested person. When the learned trial Judge admitted the statement, he explained carefully to the jury that its weight was a matter for them and he drew their attention to the great disadvantage of their getting the evidence in this written form and not through a witness whom they could see in the witness box for themselves. In his summing up the Judge virtually advised the jury to ignore the statement. Nevertheless it remained before them as part of the evidence upon which they were entitled to base a verdict. The Evidence Act now gives the judge in a criminal trial the power to receive evidence in this fashion, but I do wonder, with respect, whether it should have been used to admit this particular document. Sections 45a and 45b have a very useful function to perform, and it would be most unwise to attempt any general definition or description of the circumstances in which they should or should not be used in criminal proceedings. However given the very damaging effect of this evidence, particularly against Meyer, and the inevitable and unresolvable uncertainty about its maker's honesty and accuracy, I would venture the opinion that it would have been better had the learned Judge decided not to admit it. 4. I agree with the Chief Justice that the passage from the joint judgment of Gibbs CJ and Aickin, Wilson and Brennan JJ in The Queen v. Darby [1982] HCA 32; (1982) 148 CLR 668, at 678, that he quotes in his reasons and upon which the appellants rely cannot be read as abrogating the established principles relating to separate trials. Had that been their Honours' intention one might have expected them to say so, and they did not say so. Darby was a conspiracy case and so was the Canadian decision cited in the joint judgement. That the passage was written with the special problems of a conspiracy trial in mind is made clear, in my opinion, by the context and confirmed by their Honours' encouragement, without qualification, of separate trials "in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other." A significant difference in the respective bodies of evidence led against two accused might well, without more, create difficulties in a conspiracy trial, for the reasons that the Chief Justice has explained. See also R v Brown [1990] VicRp 72; (1990) VR 820. In other joint trials what is likely to matter is not so much that there are significant evidential differences but that certain evidence admissible against one accused but not against the others might have a tendency to prejudice the others - typified by the statement made out of court by D1 that implicates him in the alleged crime but also, on the face of it, implicates an absent D2 as well. Nevertheless, Darby is a reminder that a marked quantitative imbalance in the Crown cases against different co-accused, whether there is also prejudicial evidence of the more obvious kind I have mentioned or not, is one of the matters to be taken into account; occasionally, but not often, it may be decisive. Cf. R v Crawford (1989) 2 Qd R 443, and see generally R v Guldur (1986) 8 NSWLR 12, at 16-17. Always it will be a matter in the end of weighing the competing considerations and deciding what the interests of justice require.