1 MALCOLM CJ: In my opinion leave to appeal should be granted, the appeal allowed, the conviction for wilful murder quashed, the sentence imposed on the appellant set aside and a new trial ordered. I have reached this conclusion for the reasons to be published by Olsson J with which I am in entire agreement. Like Olsson J I would remand the appellant in custody on the charge against him pending the re-trial.

2 STEYTLER J: I have had the advantage of reading, in draft, the reasons to be published by Olsson AUJ. I agree with those reasons and have nothing further to add.

3 OLSSON AUJ: The applicant (to whom I shall refer as "the appellant") seeks leave to appeal against his conviction, by verdict of a jury, of the crime of wilful murder contrary to s 278 of the Criminal Code.

4 He, and two other persons (Kevin Leslie Avis and Julie Anne Harris), were presented for trial before a Judge of this Court and a jury, in March and April 2001, on a joint charge that they had wilfully murdered a man named Howard Lister. All three accused were found guilty of that charge, at the conclusion of a lengthy trial.

5 Avis also appealed against his conviction and that appeal was originally listed for hearing together with the present application. However, for the reasons explained by the Hon the Chief Justice in separate reasons in relation to Avis, the Court adjourned the hearing of Avis' appeal to a date to be fixed.

6 The appellant seeks to rely on two grounds of appeal. First, he complains that the learned trial Judge erred in refusing to allow the appellant to introduce into evidence the antecedent record of the co-accused Avis. Second, he asserts that, on the state of the evidence, the verdict of the jury was unsafe and unsatisfactory "in that there was insufficient evidence to support a verdict of either wilful murder or murder".

7 The appellant was a man aged 35 years at the time of the relevant events. He was then separated from his wife and living with his parents. He carried on business erecting fences, brickpaving and landscaping. However, he often worked together, or in close association with, the co-accused Avis. Avis was about 37 years of age and lived in a de facto relationship, from which he had several children. The appellant had little by way of relevant antecedent record. On the other hand Avis, admittedly, had a not insubstantial antecedent record. This spanned a series of

offences of dishonesty and deception between 1980 and 1992 and, more importantly, three offences involving violence in 1984 and 1985, an offence of causing unlawful damage and other offences of loitering, assault and wilful exposure.

8 As at 23 September 1999 the appellant and Avis were regular patrons at Whitfords Tavern in Hillarys. At times they would go there together. On other occasions they would attend separately. Two other regular attendees were the accused Julie Harris and the victim Howard Lister, with whom she was in a de facto relationship. There was a body of evidence, not in dispute, which suggested that Harris and Lister would, not infrequently, become intoxicated and argumentative towards one another.

9 On the night of 23 September 1999, all four of the above persons were present at the tavern. Harris and Lister were both intoxicated to some degree. At about 10.30 pm an incident occurred. Lister became rowdy and aggressive, apparently as a consequence of Harris leaving him and dancing with some friends. The duty manager, the witness Dunn, required him to leave and go outside.

10 After "hanging around" outside the tavern for a time, sending messages to Harris to come home, Lister was seen to drive off in his car at about 11.10 pm. After he departed, Harris, who was still in the tavern, telephoned a person who proved to be her teenage son Nathan. She was heard to say something to the effect, "Get the dog. Get out of the house. Howard's coming home."

11 It was claimed that she was thereafter talking with the appellant and Avis, with whom, later, she was seen leaving the tavern shortly after midnight, when it closed. Dunn saw them having a conversation in the vicinity of the appellant's car.

12 Lister was not seen alive after that night, although he was clearly alive until after he had been stabbed by one of the accused later the same night.

13 About two nights after 23 September 1999, Avis passed a comment to his de facto, the witness Bryan, to the effect, "Something bad's happened, I've done something bad. Something's bad happened." However, he would not elaborate. On what I take to be 13 October 1999, Avis told Bryan that "I'm going to gaol. A man's been murdered." He then related how the appellant and he had taken Harris home from the pub. Whilst they were still outside, Harris came back out of the house and said, "I've killed him. I've killed him." They went inside the home and found a man dead. They put the body of Lister into his own vehicle and Harris drove it somewhere. They initially followed, but lost her.

14 The witness Hedger told the jury that he employed Lister as a bricklayer and normally picked him up and took him to the work site early each morning. He drove him home on the afternoon of 23 September and Lister said he would see him the next morning. When Hedger called the next morning, Harris came to the door. Upon being asked where Lister was, she said, "He pissed off."

15 Hedger called at the house on numerous subsequent occasions, but it was locked and no one responded. Early in October, he went to the Joondalup police station and reported Lister missing. The same day a police patrol went to the house and eventually broke in. They noted that the place was unoccupied, but found a note which read:

"Dear Howard, well, this time I'm leaving for good. I cannot put up with the beatings any more. Nathan and I will be staying at a friend's place for a while until we find somewhere. I can't say its been nice knowing you, because it hasn't. I will get the rest of our stuff soon. Julie. Don't worry I will pay half of the bills."

16 About mid afternoon on 13 October 1999, both the appellant and Avis attended the Joondalup police station and said that they knew "something about a killing that happened in Craigie".

17 They were subsequently interviewed, separately, for some hours. As appears from the video records, they initially told an agreed false story. This essentially implicated Harris as the person who had killed Lister. However, as time went by and the interviews progressed, each shifted ground somewhat. It is unnecessary, for present purposes, to recite in detail what was said to the police by each of these two men.

18 The final version of the appellant's story was to the effect that he refused to be party to a suggestion by Avis and Harris to do away with Lister, but did agree to "slap him a few times". He claimed that Avis went "into the living room, where Lister was asleep in a chair, after which he heard a noise in there". Avis had taken some knives with him from the kitchen. The appellant went into the living room and there saw Avis stabbing Lister several times.

19 The appellant conceded that, Lister having died as a result of the wounds inflicted on him, he assisted Avis, at the insistence of the latter, to take the body out into a forest and bury it. He also assisted Avis to dump Lister's car and set it on fire.

20 By way of contrast, Avis ultimately contended to the police that it had been agreed between them that the two men would give Lister, who was found at home asleep in a chair, a "hiding". (By that he said he meant slapping him around). Avis told the police that he went to the toilet, whilst the appellant was doing something in the kitchen. When he returned, he saw Lister in his chair covered in blood and gagging. He tried to stem the flow of blood from his neck with a towel, but the appellant said, "He'll be dead in a few minutes."

21 According to Avis, Lister fell to the floor dead and Avis rolled the body in a small piece of carpet and subsequently assisted to take it to the forest and bury it. He also followed the appellant when Lister's car was taken elsewhere. The appellant poured petrol over and in it and set it alight.

22 Pathology evidence was to the effect that three wounds had been inflicted on Lister, each with a similar knife. One was to the chest and two to the side of the neck. Each wound was potentially fatal and a broken off blade of a knife was still in one of the neck wounds.

23 At trial the appellant gave oral evidence. The other two accused elected not to do so, although, inter alia, Avis' video record of interview was tendered in evidence and played at length to the jury. In the course of his evidence, the appellant maintained his version of events, essentially as outlined above. He said that, prior to the night of the stabbing, he had seen Harris at the tavern, but had never previously spoken with her or Lister. The appellant testified that, after Lister left the tavern, Avis had been talking with Harris. About closing time, Avis asked if the appellant could take Harris home.

24 The three of them drove away in the appellant's car. At one point they stopped near a park, because Harris wanted to urinate. Whilst there, the two of them talked about beating Lister up. Some discussion then took place as to what would be done to Lister, with Avis saying something to the effect, "Are we going to kill him?" The appellant said that he demurred at such a suggestion and merely agreed to be party to hitting or slapping Lister and warning him not to beat Harris.

25 The appellant's evidence was then substantially to the effect of the finally revised version of what he had told the police in his record of interview, although he placed some emphasis on a degree of dominance said to have been exhibited by Avis towards him. The appellant told the jury that, when Lister's car was burnt, it was Avis who spread the petrol and he (the appellant) assisted to light it. When the two of them returned to the house, Harris was busy cleaning it up. He stressed that he had no prior knowledge that Avis had proposed to kill Lister. He said that he did not think that anyone would get seriously hurt.

26 During the trial, Mr Percy QC, senior counsel for the appellant, foreshadowed to the learned trial Judge that he desired to lead evidence as to the antecedent record of Avis. Counsel for Avis objected to that proposal. He argued, inter alia, that, absent formal evidence by his client, there was no basis for the appellant to seek to "denigrate his character".

27 The learned trial Judge ruled against the admissibility of such evidence. In doing so he said:

"In the present case both Mr Avis and Mr Winning are charged with the same offence on the basis that one could be the principal offender and the other an aider. Mr Avis's convictions, even if they were to show a disposition towards violence on his part, would not disprove Mr Winning's guilt or possible guilt as an aider. It seems to me therefore that one of the essential considerations which is present in Lowery [Lowery v The Queen infra] is absent in this case.

Furthermore, it seems to me that if those convictions were put before the jury, that would be highly prejudicial to Mr Avis who has avoided that prejudice by electing not to give evidence, so for all those reasons it seems to me that I should not accede to that application."

28 In the course of his submissions to this Court, Mr Percy QC pointed out that, in the context of a situation which - by virtue of the record of interview of Avis, which had been before the jury at great length - was akin to that of a "cut-throat" defence, the appellant had specifically put his character "on the line". So also, in effect, was the character of Avis a live issue at all stages. He had sought to portray himself as a caring and compassionate person and a loving father. He had spoken of how he prayed for Lister when he was buried; and of his concern for the appellant, as the person who had killed Lister.

29 This general theme was pursued by counsel for Avis at some length in his address to the jury, in an attempt to portray Avis as a person unlikely to have killed Lister.

30 The stances adopted by these two accused fell to be considered against the background that the Crown did not set out to prove who might have been the principal offender, as having actually carried out the stabbings. Nor did it rely on the provisions of s 8 of the Criminal Code 1913.

31 Rather the Crown relied on s 7 of the Code, on the basis that it contended that the appellant was the principal offender or, alternatively, aided the principal offender by procuring, encouraging or assisting the commission of the offence. The Crown did not seek to particularise any assistance which may have been given.

32 Mr Percy QC contended that, in such a scenario, the prior record of Avis had significant probative value, both on the basis that the jury was entitled, in circumstances where credit was an important matter for consideration, to know what manner of man Avis was. Also, more importantly, it was said, in assessing what inferences should be drawn from the whole of the evidence and whether the appellant's version was to be accepted as a reasonable possibility, the jury was entitled to have regard to the fact that Avis was a man with a demonstrated propensity to violence.

33 He further argued that the ruling made by the learned trial Judge indicated an imperfect analysis of the effect of the relevant authorities. In particular, he submitted that, insofar as the ruling given was based upon considerations of potential prejudice to Avis, such considerations were irrelevant.

34 The obvious commencement point in reviewing the relevant authorities is the judgment of their Lordships in Lowery v The Queen [1974] AC 85 ("Lowery"). That case related to two persons jointly charged with the sadistic murder of a young girl, the Crown's contention being that they had acted in concert. Each of the accused had mounted a "cut-throat" defence. The appellant gave evidence of his good character and asserted that, because of his fear of the co-accused, he had been unable to prevent the murder. For his part, the co-accused said that he had been unable to appreciate what was happening and was powerless to prevent the appellant killing the girl, as he had been under the influence of drugs. Over the appellant's objection, the co-accused was permitted to call psychological evidence as to their respective personalities, the jury being invited to conclude that the appellant was more likely to have been the one to have killed the girl. Both having been convicted, the appellant sought to challenge the psychologist's evidence as inadmissible.

35 The Privy Council held that the evidence was relevant in support of the case of the co-accused, to show that his version of the facts was more probable than that put forward by the appellant; and as tending to negative the appellant's evidence. Their Lordships proceeded on the basis that the situation as between co-accused differs from that related to the Crown. They emphasised that, as was pointed out by Devlin J in Rex v Miller (1952) 36 Cr App R 169 ("Miller"), it was the positive duty of counsel for the defence to adduce any admissible evidence which is strictly relevant to his own case and assists his client, whether or not it prejudices anyone else. They went on to make the point that:

"... insofar as it [ie, the relevant psychological evidence] might help in considering the probabilities as to what happened at the spot to which the girl was taken, it was not only relevant to and indeed necessary for the case advanced by King, but it was made relevant and admissible in view of the case advanced by Lowery and in view of Lowery's assertions against King."

36 Their Lordships were of the view that, where an issue arose as to which of two persons had performed the killing, it would be unjust to prevent either of them from calling any evidence of probative value which could point to the probability that the perpetrator was the one, rather than the other. Whilst they recognised that the evidence there in issue was as to the respective personalities of the two accused, rather than of the general character of either of them, they also restressed the relevance of evidence of that type as between two accused where character and propensity were necessarily in issue.

37 Speaking of character evidence, they adopted what fell from Lord Herschell LC in Makin v Attorney-General for New South Wales [1894] AC 57 to the effect that it is one thing to say that such evidence is excluded when sought to be tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by an accused in disproof of his own guilt. There is no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person.

38 In dealing with the case advanced by Lowery, I take their Lordships to have seen the impugned evidence as being relevant and admissible on a very broad basis, including that of character and propensity. They said:

"Not only however was the evidence which King called relevant to this case: its admissibility was placed beyond doubt by the whole substance of Lowery's case. Not only did Lowery assert that the killing was done by King and not only did he say that he had been in fear of King but, as previously mentioned, he set himself up as one who had no motive whatsoever in killing the girl and as one who would not have been likely to wreck his good prospects and furthermore as one who would not have been interested in the sort of behaviour manifested by the killer. While ascribing the sole responsibility to King he was also in effect saying that he himself was not the sort of man to have committed the offence. The only question now arising is whether in the special circumstances above referred to it was open to King in defending himself to call Professor Cox to give evidence that he gave. The evidence was relevant to and necessary for his case which involved negativing what Lowery had said and put forward: in their Lordships' view in agreement with that of the Court of Criminal Appeal the evidence was admissible."

39 In the instant case it is true that Avis did not give or call positive evidence promoting his good character, or attacking that of the appellant. However, what he had said in his record of interview (which sought to portray himself as a person of good character; and the appellant as the cold-blooded killer of Lister and the primary actor in the whole sequence of events which took place) was before the jury at great length, albeit that the learned trial Judge very properly told the jury that this was not evidence against the appellant and should be ignored apropos him. Moreover, as was stressed by Mr Percy QC, Avis' case at trial necessarily involved a significant attack on the character and credit of the appellant. The supposed good character and personality of Avis were put to the jury by his counsel in some detail, whilst that of the appellant was disparaged to a significant degree. That was a consistent theme in the final address on behalf of Avis and one as to which the appellant was constrained in responding, by his inability to present evidence of the relevantly bad character of Avis and the apparent predisposition of the latter to acts of violence, as demonstrated by his antecedent record (cf Knight v Jones, Ex parte Jones [1981] Qd R 98 at 103 ("Knight") and Bracewell v The Queen (1979) 68 Cr App Rep 44 at 52).

40 In my opinion, on the reasoning of their Lordships in Lowery, the evidence sought to be led by the appellant was clearly relevant and admissible. As Devlin J pointed out in Miller, evidence as to the character of a co-accused is not at large. It will only be admissible, at the instance of another accused, if it can be shown to be relevant to an issue in the case. Here the relevance is obvious. The issue was as to which of two accused stabbed the victim and as to the respective roles of the various accused in the events preceding and leading up to Lister's death. In a situation in which the appellant was being attacked by counsel for Avis and asserted to have been the primary offender, whilst Avis was being put forward as a loving, caring person unlikely to have committed or participated in the act of homicide, it was very relevant for the appellant to be able to demonstrate that Avis' record patently indicated a predisposition towards criminal violence and that, when it came to an assessment of relative credit, he had a record of dishonesty.

41 With all due respect to the learned trial Judge, it seems to me that he was also led into error by concluding that, in a scenario such as that discussed above, considerations of relative prejudice may properly be taken into account. The very basis on which evidence of the type in question may be led by one accused against another (ie, that it be logically probative) necessarily negates the existence of a general discretion to exclude evidence on the basis that its potential prejudicial effect in relation to an accused person outweighs its probative value. That point was made by Macrossan J (as he then was) in Knight at 108. As he there said, considerations of undue prejudice cannot arise in situations in which one accused seeks to lead evidence against a co-accused which is properly characterised as logically probative.

42 In the event that an accused seeks to lead propensity evidence against a co-accused which, of its nature, is such that no directions of a trial Judge would be adequate to ensure that a jury could be expected to perform "the remarkable mental feats required of them", the appropriate course is to direct a separate trial of the co-accused, however inconvenient that may be (R v Gibb & Anor [1983] VicRp 78; [1983] 2 VR 155 at 165 - 166; see also R v Demivrok [1976] VicRp 19; [1976] VR 244).

43 I am therefore of the opinion that the appellant has made good his first ground of appeal. This being so, a necessary resultant conclusion is that the exclusion of the evidence sought to be led has resulted in a miscarriage of justice. In the circumstances, it cannot fairly be said that the appellant has not been deprived of a chance of acquittal.

44 Whilst there can be little doubt, on his own evidence, of his guilt of the offence of being an accessory after the fact, it by no means follows that, had the relevant evidence been led by the appellant, he would have been found guilty on the basis of s 7 of the Criminal Code. If his evidence was accepted, as a reasonable possibility, in preference to the scenario promoted on behalf of Avis, then it is difficult to see how it could have been argued that the Crown had discharged its onus of proof of a situation falling within that section.

45 That being so, it is not strictly necessary to address the second ground relied upon, namely, that the verdict returned against the appellant was, in the circumstances, unsafe and unsatisfactory.

• The Crown did not ever attempt to nominate which of the accused had actually killed Lister, nor was it put to the appellant that he had been the principal offender. Rather, it was asserted that the appellant was at least an aider;

• There was no direct evidence that the appellant had been the principal offender. Despite what had been said in any records of interview, neither Avis or Harris gave evidence at trial to implicate him;

• The appellant positively denied that he was the principal offender and that he relevantly rendered assistance in relation to, or encouraged, the killing of Lister;

• There was no evidence of motive, apropos the appellant;

• There was nothing to suggest that more than one person killed Lister;

• There was no evidence of common purpose or a preformulated plan to inflict serious bodily harm to Lister;

• The Crown case did not prove more than that the appellant was in the house when Lister was killed;

• Serious questions arose on the evidence as to the credibility of Avis in relation to his record of interview; and

• The Crown had, in its address, in effect, invited the jury to derive impermissible inferences from Avis' record of interview and to arrive at conclusions not supported by any evidence admissible against him.

47 It was put that, given the totality of the material before them, the jury was given an almost impossible mental task of taking into account the content of the record of interview of Avis as against him, but ignoring it in relation to the appellant. It was also contended that, on the state of the evidence before it, it was simply not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

48 As against that, as the learned trial Judge pointed out in his directions, one thing that was clear was that, on any view, the appellant was heavily involved in what occurred after the killing - the removal and disposal of the body, the destruction of the car and the disposal of various items of evidence. A question arises as to what impact such a situation logically made on the inferences which naturally arose, on the whole of the evidence, as to the nature and extent of the appellant's involvement in the events leading up to the stabbing - particularly bearing in mind that the appellant willingly went to the home with the co-offender, with the object of doing at least some harm to Lister.

49 Leaving aside the issue raised by the first ground, on the one hand I find it difficult to perceive how it could reasonably be said that it was not reasonably open to the jury to conclude, by inference, that the appellant had at least been complicit in the killing, as an aider. On the other hand, it may be said, with equal force, that the very situation postulated in the first ground, necessarily infects the jury's verdict with a very real note of apprehension that the inferences which the jury were prepared to draw may not have been drawn had the antecedent record of Avis been placed before them.

50 It must be conceded that the fact that the Avis record of interview was before the jury at length and that they may have had intellectual difficulty in completely banishing its contents from the their minds as to the appellant, is a matter of concern. However, that might well have been more than offset had they had before them the evidence of Avis' antecedent record.

51 I prefer to dispose of this appeal on the first ground alone. I consider that, because this has been made good, leave to appeal ought to be granted, the appeal should be allowed, the conviction quashed, the sentence imposed on the appellant set aside and a new trial ordered. I would remand the appellant in custody on the charge against him pending the re-trial.