Coates v The State of Western Australia - [2009] WASCA 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COATES -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 142

CORAM: MARTIN CJ
OWEN JA
BUSS JA

HEARD: 22 APRIL 2009

DELIVERED : 12 AUGUST 2009

FILE NO/S: CACR 31 of 2008

BETWEEN: MARTIN GRAEME COATES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BLAXELL J
Citation  :THE STATE OF WESTERN AUSTRALIA -v- COATES [2007] WASC 307
File No  :INS 171 of 1999

Catchwords:

Criminal law - Wilful murder - Retrial by judge alone without a jury - Four limbs to the State's case - Whether each of the four limbs was sufficient of itself, if proved by the State beyond reasonable doubt, to sustain the appellant's conviction - Whether open to the trial judge to convict if the State did not prove all of the four limbs

Criminal law and procedure - Original trial by judge and jury - Retrial by judge alone - Section 118 of the Criminal Procedure Act 2004 (WA) - Whether an application under s 118 for a trial by judge alone may be made only in relation to an original trial

Criminal law and procedure - Late disclosure by the State of material affecting the credit of the principal prosecution witness - Whether trial judge erred in failing to abort the retrial by judge alone and order the retrial to be by judge and jury

Criminal law - Whether reasonably open to the trial judge to conclude that the appellant was a party to a plan or agreement to kill the deceased

Criminal law - Lies - Consciousness of guilt - Whether trial judge properly directed himself in relation to alleged lies told by the appellant - Whether certain lies told by the appellant and their character as admissions against interest had to be proved beyond reasonable doubt

Legislation:

Criminal Code (WA), s 7
Criminal Procedure Act 2004 (WA), s 118

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Ms H E Prince
Respondent: Mr S E Stone & Mr S F Rafferty

Solicitors:

Appellant: Ilberys Lawyers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Arthurs v The State of Western Australia [2007] WASC 182
Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hoy v The Queen [2002] WASCA 275
Maric v The Queen (1978) 52 ALJR 631
Narrier v The State of Western Australia [2008] WASCA 191
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Tangye (1997) 92 A Crim R 545
The State of Western Australia v Coates [2007] WASC 307
The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380
Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183

Table of Contents

Buss JA's reasons

The previous trial and conviction
An overview of the State's case at the retrial
Overview of the defence case at the retrial
The grounds of appeal
Ground 1: the learned trial judge's reasons
Ground 1: the appellant's submissions
Ground 1: its merits
Grounds 3, 3A and 4: background facts
Ground 3: the appellant's submissions
Ground 3: its merits
Ground 3A: the statutory framework
Ground 3A: the appellant's submissions
Ground 3A: its merits
Ground 4: the appellant's application to abort the retrial
Ground 4: the appellant's submissions
Ground 4: its merits
Grounds 6, 7 and 8: the learned trial judge's reasons
Grounds 6, 7 and 8: the appellant's submissions
Grounds 6 and 7: their merits
Ground 8: its merits

Conclusion

MARTIN CJ: I agree with Buss JA.
OWEN JA: I have seen the reasons that Buss JA proposes to publish. I agree with his Honour's analysis of the facts and the law and with his conclusion that leave to appeal should be granted but the appeal should be dismissed. I wish only to make a short additional comment on one issue; namely the perceived differences between trial by judge alone and trial by jury in relation to the assessment of credibility and its effect on the fairness of this trial.
Buss JA has set out the text of pars 53 to 55 of the trial judge's reasons in which his Honour spoke of the advantage a jury enjoys in assessing the credibility of a witness because 12 people can discuss their respective views and then collectively decided the issue.
In ground 3A the appellant complains that the original order for trial by judge alone was made without jurisdiction. That contention is devoid of merit and there is nothing I can usefully add to what Buss JA has said in that respect. The focus of attention then moves to ground 3, in which the appellant alleges error by the trial judge in failing to cancel the earlier order for trial by judge alone. The appellant contends the order should have been cancelled due to non‑disclosure of the difficulties the prosecution was experiencing in securing the on‑going assistance of Mr X for the retrial and, eventually, in entering into the agreement to support his release earlier than would otherwise be the case and with almost no supervision. Again, the lack of merit in this ground has been explained by Buss JA. In reality the trial judge was not asked to cancel the order. The application was to have the trial aborted. As the trial judge noted (ts 3825) even had the trial been aborted the original order for trial by judge alone would still have stood. It would then have been necessary for the appellant to make a separate application for cancellation of the order.
That brings me to ground 4. On the fifth day of the trial counsel for the appellant asked the trial judge to abort the trial and to order a trial with a jury. The basis of the application was the lack of disclosure referred to in the preceding paragraph. This, it was said, deprived the appellant of the right to a fair trial. The gravamen of the complainant is Mr X's credibility was central to the prosecution case and the existence of the second agreement was a significant matter. In the words of counsel for the appellant the agreement was 'unprecedented' as it required the assistance of the Governor in Council, the Attorney General and the Director of Public Prosecutions. Counsel continued:

The consequence of that second agreement was such that you would then say, hang on, maybe 12 members of the community would start to get suspicious about this fellow, that he's got part of what he wanted - and that goes to the heart of his credibility. That's why we say it is so significant in any forensic decision [sic] do you apply for trial by judge alone or do you just go with the usual position; that is, trial by jury. It is a significant matter.

The original application for trial by judge alone was a considered one. It is not difficult to see why it was made given, among other things, the history of drug dealing, the antecedents of the appellant and the circumstances in which the appellant came to be charged with violent offences against the deceased. At the time the application was made, the appellant knew that Mr X's credibility was central and he knew that Mr X had done a 'deal' with the State. These were some of the considerations that would have gone into the balancing exercise which led to the decision to make the forensic application. By the time the retrial commenced none of that had changed. What had happened is that further material to attack Mr X's credibility, namely the second agreement, had become available to the appellant.
The crux of ground 4 is not (as in ground 3) that the order for trial by judge alone should have been cancelled but, rather, whether by reason of the trial judge's refusal to abort the trial the appellant was denied a fair trial. This depends on whether, in all of the circumstances, the failure to abort the trial so as to allow a trial by jury to proceed, has resulted in a miscarriage of justice. This, it seems to me, completes the circle: was the fact of the second agreement such that denial of the opportunity to have it considered by 12 of the appellant's peers rather than by a judge alone amounted to a miscarriage of justice?
In my view the answer to that question is no. Opinions differ, including among judges, as to the efficacy of the jury system. But it is an integral part of the criminal justice system and, in my view, it has served the community well. Nonetheless, Parliament has recognised that in some circumstances an alternative method of resolving trials on indictment is desirable. Hence the enactment in 1994 of the Criminal Code s 651A which has since been replaced by the Criminal Procedure Act 2004 (WA) s 118. Section 118 provides that either the accused or the prosecutor can apply for trial by judge alone. The court may make an order for trial by judge alone 'if it considers it is in the interests of justice to do so'. The legislation protects the right of an accused by stipulating that an order cannot be made at the behest of the prosecution unless the accused consents. The phrase 'in interests of justice' is very broad. Parliament has been careful not to limit its meaning in the course of adding an explanatory provision (s 118(6)) detailing some circumstances in which the court may refuse to make an order; namely, where it considers:
the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
The assessment of credibility is essentially a subjective matter, although some objective considerations might come into play in forming the platform from which the assessment is made. Section 118(6) is of no direct assistance to the appellant here. That was the view taken by the trial judge when the application was made to abort the trial (ts 3826). In my opinion his Honour was correct in coming to that conclusion.
It is true that a free exchange of views and ideas can be very helpful in the decision making process. Everyday experience indicates that the physical and mental process of having to articulate propositions and to listen to the reaction of others can clarify thinking. But, equally, in everyday experience important decisions are made by individuals without the benefit of interaction with others. Judges make decisions for a living and they often arise in complex circumstances and involve the expenditure of considerable intellectual effort. Assessments of credibility fall into this category. While the trial judge may be deprived of the advantage of a free interchange of ideas with peers he or she has an advantage that ordinary members may lack. Trial judges have consistent and continuing experience of fact-finding and of the making of the decisions in a situation that demands an objective and dispassionate mind.
I am not suggesting that juries are incapable of making objective and dispassionate decisions. A judge's charge to a jury will almost always include directions to that effect and I have no reason to believe that jury members do other than pay due and faithful regard to the instruction. But the day to day working life of a judge will often involve dealing with evidence in ways that are outside the normal experience of members of the public. For example, a judge will often be required to put to one side inadmissible evidence (of which he or she is cognisant) in assessing credibility or deciding other disputed issues. Another example is having regard to an item of evidence for one purpose and yet disregarding it in relation to another contentious issue within the same case. When matters of that nature arise in a jury trial there is a need for careful direction to guide the jury in relation to them. The experience gained by a trial judge

over time in relation to a wide range of fact‑finding methods can be a peculiar advantage.

In this case the trial judge was acutely aware of the centrality of Mr X's testimony. He expressed some views about the advantage jury members would have in discussing the evidence. If his Honour's comments are taken as an indication that he regarded himself at a material disadvantage in assessing Mr X's credibility then it will be apparent from what I have said that I do not agree. But I am not sure that this is what his Honour meant. It does not follow that just because one group has an advantage that another group (or individual) has a material disadvantage in relation to the same matter.
In my view a proper reading of pars 53 to 55 reveals that his Honour took additional care in assessing Mr X's testimony. He said that the had formed some tentative views (presumably positive) about Mr X's credibility. But he was conscious of the fact that he could not discuss those views with others and that the testimony was that of an accomplice. He went on to say that 'exceptional care' had to be taken before accepting the evidence of an accomplice. The fact that his Honour did not accept (or at least did not act on) Mr X's testimony that the appellant was present in room 18 at the time the murder was committed seems to support that view. In doing so I think it is reasonable to conclude that his Honour would have brought to bear all of his long experience as a trial judge in objectively and dispassionately assessing testimony, balancing competing factors and considerations and reaching (often difficult) conclusions.
The question whether the refusal to abort the trial has denied the appellant his right to a fair trial has to be seen against that background. The trial process has to be looked at as a whole. I have not been persuaded that the fact the second agreement and the circumstances leading up to it were not known to the appellant when he made the application for trial by judge alone has led, ultimately, to a miscarriage of justice.
BUSS JA: On 19 December 2007, the appellant was convicted, after a retrial in the Supreme Court before Blaxell J alone without a jury, of wilfully murdering Clare Garabedian on 23 August 1998 at Rivervale. See The State of Western Australia v Coates [2007] WASC 307. He was sentenced to strict security life imprisonment with a minimum term of 23 years before eligibility for parole.

The appellant filed appeal notices in respect of his conviction and sentence. On 21 August 2008, Wheeler JA ordered that the applications for leave to appeal be heard together with the appeals.
On 20 April 2009, the appellant discontinued his appeal against sentence.

The previous trial and conviction

The appellant was first charged in October 1998 with the wilful murder of Ms Garabedian. Originally, there were three co‑accused, namely, Amanda Kaylene Hoy, Thomas Nicholls and a man referred to as Mr X whose identity is the subject of a suppression order. Mr X pleaded guilty to wilfully murdering Ms Garabedian. He was sentenced on 30 September 1999 to life imprisonment with a minimum term of 15 years before eligibility for parole. The sentence was ordered to commence on 7 October 1998, being the date on which Mr X was arrested and taken into custody. Mr X became the principal witness for the State against the appellant, Hoy and Nicholls.
The appellant, Hoy and Nicholls were tried between 1 August and 21 September 2000 on a joint indictment before Murray J and a jury. They were convicted of wilful murder. Each of them appealed against his or her conviction to the Court of Criminal Appeal (Anderson, Wheeler & Miller JJ). The appeals were dismissed. See Hoy v The Queen [2002] WASCA 275.
The appellant and Nicholls (but not Hoy) appealed, by special leave, to the High Court. The appeals were heard together. The High Court allowed the appellant's appeal, and on 3 February 2005 ordered, relevantly, that his conviction be quashed and there be a new trial. Nicholls' appeal was dismissed. See Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196.
The retrial before Blaxell J, pursuant to the High Court's orders, commenced on 2 October 2007.

An overview of the State's case at the retrial

On 23 August 1998, Ms Garabedian, who was then aged 21 years, was killed in a motel room at the Great Eastern Motor Lodge on Great Eastern Highway in Rivervale. She was forcibly injected with a lethal dose of heroin (known as a 'hot shot') while being asphyxiated with a pillow. Her body was discovered in the room later that day by motel cleaning staff.
At all material times, Ms Garabedian was a heroin addict. She worked as a street prostitute to finance her addiction.
In late June 1998, Ms Garabedian made a complaint to the police. She alleged that the appellant and Hoy had deprived her of her liberty and had threatened and assaulted her. She said the assault occurred in the Gnangara Pine Plantation. Ms Garabedian was interviewed by the police. She provided a signed witness statement in which she implicated the appellant and Hoy. The police interviewed them about the allegations. On 24 July 1998, the appellant and Hoy were charged with deprivation of liberty, threats to kill and assault occasioning bodily harm upon Ms Garabedian. Ms Garabedian was a crucial witness in the State's case against them.
When the appellant was charged with these offences against Ms Garabedian, he was on parole for other offences. He 'owed' 533 parole days. If he was convicted there was little doubt that, in addition to the sentences for the offences against Ms Garabedian, he would be returned to prison to serve the outstanding 533 days.
The State alleged that the appellant and Hoy retained Mr X to kill Ms Garabedian by injecting her with a hot shot. The appellant's alleged motive was to prevent Ms Garabedian giving evidence as a prosecution witness against him and Hoy in relation to the pending charges.
In summary, the State's case against the appellant was based on the following evidence. First, and primarily, the evidence of Mr X. Secondly, evidence of motive arising from the criminal charges which had been laid against the appellant and Hoy on the complaint of Ms Garabedian. Thirdly, evidence of alleged lies told by the appellant during a video‑recorded interview with the police on 7 October 1998, and attempts by him to fabricate alibis in relation to the night of the murder. Fourthly, evidence of statements made by the appellant in the course of intercepted telephone conversations before and after his arrest which contained alleged admissions. Fifthly, evidence of association, and forensic evidence and telephone calls, which placed the appellant in the vicinity of the motel when Ms Garabedian was killed.
During 1998, the appellant and Hoy were living together at a house in Bassendean which they shared with Nicholls. The appellant and Hoy were dealers in illicit drugs. Mr X was a drug addict. Ms Garabedian and Mr X regularly purchased illicit drugs from the appellant and Hoy.
The State alleged that a plan to murder Ms Garabedian was discussed at the Bassendean house on the evening of Friday, 21 August 1998 while the appellant, Hoy, Nicholls and Mr X were at the house. Mr X was there to complete a tattoo on the appellant's right arm. Mr X had not previously met Ms Garabedian. According to the State, the appellant and Hoy proposed to Mr X that he should kill Ms Garabedian by administering a hot shot. If Mr X was willing to carry out the killing, the appellant and Hoy would forgive an outstanding debt which Mr X owed them. When this proposal was being put by the appellant and Hoy to Mr X, Nicholls was in the background attending to household chores. The plan involved Mr X meeting Ms Garabedian while posing as a client for sexual services and taking her to a motel room or a brothel and there administering the hot shot.
The State also alleged that on the next evening, Saturday, 22 August 1998, Mr X returned to the Bassendean house and agreed, in the presence of the appellant, Hoy and Nicholls, that he would pick up Ms Garabedian that night. A telephone call was made to a brothel, with which Ms Garabedian was associated, to ascertain her whereabouts. After the telephone call, a decision was made to search for Ms Garabedian in the vicinity of Hyde Park in Northbridge.

The appellant, Hoy and Nicholls then supplied Mr X with various items he would require to carry out the plan. Nicholls gave him a change of clothes. Hoy provided him with a mobile telephone, the keys to her motor vehicle, and $200 in cash to pay for Ms Garabedian's services. The appellant gave Mr X a bag containing 1 gram of heroin to use as the hot shot. Mr X obtained a syringe or syringes from the bathroom at the Bassendean house.
According to the State, the appellant and Hoy then left the Bassendean house in the appellant's motor vehicle, with Mr X following in Hoy's vehicle. The two vehicles travelled in convoy so the appellant and Hoy could identify Ms Garabedian to Mr X by mobile telephone.
The first part of the plan was implemented successfully. Ms Garabedian was located walking on a street near Hyde Park. She was identified to Mr X, who then lured her into his vehicle and drove with her to the Great Eastern Motor Lodge. Ms Garabedian booked and paid for a room. She was allocated room 18. Mr X and Ms Garabedian had previously agreed that he would give her some heroin as part payment for her sexual services. When they entered room 18, Mr X gave Ms Garabedian the bag of heroin provided by the appellant together with a syringe, so she could inject herself.
The State alleged that although Ms Garabedian injected herself with heroin from the bag at least twice, the only immediate effect was that she entered a drug‑induced stupor. This was described by Mr X as being 'on the nod'. While Ms Garabedian was in this stupor, Mr X left room 18 and telephoned the appellant and Hoy from a public telephone. He told them where he was and what was happening with Ms Garabedian. Arrangements were made for Mr X to be supplied with an additional hot shot of heroin. He was instructed to park Hoy's vehicle in a side street near the motel, and the additional hot shot would be placed behind its front wheel.
Mr X returned to the motel and then parked Hoy's vehicle in a side street, as instructed. Later, he retrieved a sunglasses case from underneath the car which contained a syringe filled with heroin. By this time, Mr X had reservations about killing Ms Garabedian. For this reason, he emptied a large part of the contents of the new syringe into a sink in room 18. He then placed the syringe with its remaining contents beside Ms Garabedian, who was still in a drug‑induced stupor, and permitted her to inject herself again.
A little later, Mr X answered a call made to the telephone in room 18. The appellant was the caller. He asked Mr X whether he had 'done it yet'. Nicholls then spoke to Mr X. It was apparent to Mr X that the others were unhappy with the manner in which events were unfolding.
According to the State, the appellant and Nicholls then went to room 18. Mr X let them enter. Ms Garabedian was at this stage unaware of the presence of the appellant and Nicholls. She was still 'on the nod'. The appellant and Nicholls went into the bathroom and closed the door. A little later, Nicholls left room 18 and returned with a large syringe.
When Nicholls re‑entered room 18, Ms Garabedian looked up and noticed the appellant and Nicholls. She endeavoured to escape, but the appellant grabbed her and applied a headlock. He shook her by the neck and forced her to the floor.
The State's case was that a struggle ensued. The appellant straddled Ms Garabedian while Nicholls held a pillow over her face. The appellant attempted to inject the contents of the large syringe into her right arm, but he was unable to locate a vein. Mr X took the large syringe and injected Ms Garabedian's left arm. She then ceased to struggle. Before leaving room 18, the three men re‑arranged the room to make it appear that Ms Garabedian had suffered an overdose of heroin as a result of her own actions. They tidied the room and placed all incriminating items in a pillow case which they took with them.
After the cleaning staff at the motel discovered Ms Garabedian's body in room 18, the police and a forensic pathologist attended. Later, the pathologist performed a post-mortem examination. This revealed minor injuries consistent with a struggle, signs consistent with suffocation, various vene‑puncture wounds, bruising to the arms, and a red mark on the left ankle. After toxicological analysis of body samples, the pathologist determined the cause of death to be 'the combined effects of neck and airway compression in a woman with acute opiate toxicity'. The toxicological analysis also established that at least four of the many vene‑puncture wounds on Ms Garabedian's body were injection sites for heroin, and the largest of these, in the left arm, had probably occurred within minutes of her death.
As I have mentioned, the State's case did not rely solely on Mr X's evidence.
The State also relied on what it alleged were lies told by the appellant during his video‑recorded interview with the police, and on attempts by him to fabricate two alibis for critical periods on the night of the murder. The first alibi involved the appellant asking his sister and brother‑in‑law to assert that he had remained in the Bassendean house until about midnight. The second involved the appellant asking Kristie‑Lisa Elvy, one of his regular customers for illicit drugs, to assert that he had delivered drugs to her outside the Bayswater Hotel between 4.00 am and 5.00 am. According to the State, the alleged lies and the attempts to fabricate the alibis constituted implied admissions of guilt.
In addition, the State relied on evidence of admissions made by the appellant during his video‑recorded interview with the police. These admissions, and exculpatory explanations, were summarised, in general terms, by the learned trial judge, as follows:
(a)On the evening of Saturday 22 August 1998, [the appellant] was at the Bassendean house and overhead Mr X and Nicholls discussing a plan to kill Clare Garabedian with an injection of heroin. Mr X said it would be easy for him to pose as a client, pick up Ms Garabedian in the Palmerston Street area, and then take her to a motel room.
(b)Because Mr X did not know Ms Garabedian, Nicholls was 'going to show him or something' (viz. identify her to him).
(c)[The appellant] had 'no input whatsoever' into the discussion between Mr X and Nicholls.
(d)While discussing the plan with Nicholls, Mr X was also 'on the phone to some bloke, and he was talking on the phone about it'. He was going to get this person to book a motel room.
(e)[The appellant] thought that the discussion about killing Clare Garabedian was 'just talk' and did not take it seriously. He and Hoy then went to bed and did not see Mr X again until the following day [23].
Further, the State relied on evidence of statements made by the appellant in the course of telephone conversations that were intercepted by the police before and after his arrest. It was argued on behalf of the State that the statements were capable of constituting admissions. The learned trial judge set them out in his reasons, as follows:
(a)(In exhibit 66.1):
(i)By murdering Clare Garabedian, Mr X had 'done the righty' in order to help [the appellant] and Hoy out.
(ii)The fact that [the appellant's] and Hoy's door hadn't 'even been knocked on' by police had been part of 'the plan'.
(b)(In exhibit 66.2):
(i)Prior to 22 August 1998 [the appellant] had joked with others that it would be good for Clare Garabedian 'not to be around'.
(c)(In exhibit 66.3):
(i)On the night of the murder, Mr X had asked for Hoy's car keys and then departed the Bassendean house in her vehicle.
(ii)Not long afterwards, Hoy left with Nicholls 'for a drive in his ute'.
(d)(In exhibit 66.5):
(i)On the night of the murder Mr X had borrowed Hoy's car.
(ii)An hour to an hour and a half later Mr X had telephoned and 'wanted something dropped off to a hotel room'. Hoy then went with Nicholls (in the latter's ute) to Rivervale to drop it off.
(e)(In exhibit 66.10):
(i)On the night of the murder, [the appellant] went to Rivervale but did not go to the motel room. He was 'on the opposite side of Great Eastern Highway'.
(ii)At that time Nicholls and Hoy were 'at the room'.
(iii)[The appellant] had gone to Rivervale 'to get something off' Hoy 'that someone wanted to buy'. Hoy was 'in the car park' but she came across Great Eastern Highway to meet [the appellant].
(f)(In exhibit 66.12):
(i)On the night of the murder [the appellant] and Hoy went to Rivervale 'the first time' in order 'to drop the money off him for the room'.
(ii)The second time, Nicholls and Hoy went to Rivervale to drop off 'speed'.
(iii)The third time, it was [the appellant] and Hoy 'across the road' [24].
The State also relied on evidence from Telstra and Optus of calls made to and from mobile and public telephones allegedly used by the appellant, Hoy, Nicholls or Mr X on 22 and 23 August 1998. This included evidence of a technical nature which was capable of supporting inferences as to the general geographical location of each mobile telephone when calls were made on it.

Overview of the defence case at the retrial

The appellant elected not to give sworn evidence at his retrial. He relied, however, upon various exculpatory statements contained in his video record of interview.
It was submitted, on his behalf, that the learned trial judge could not be satisfied that Mr X was a truthful and reliable witness and, in consequence, his Honour should reject that part of Mr X's evidence which implicated the appellant in Ms Garabedian's murder.
The defence case also asserted that the learned trial judge could not be satisfied beyond reasonable doubt that Mr X did not act alone in killing Ms Garabedian. The defence submitted that Mr X would have experienced little difficulty in committing the murder on his own as a result of Ms Garabedian's drug‑induced stupor. Alternatively, if his Honour was satisfied that more than one person was involved in the crime, it was reasonably open on the evidence that it was Nicholls, or both Hoy and Nicholls.
Counsel for the appellant called evidence from two former prisoners who had spent time in custody with Mr X. They gave evidence of statements allegedly made by Mr X while he was in custody. Counsel contended that these statements were inconsistent with Mr X's evidence at the retrial.

The grounds of appeal

Originally, the appellant had eight grounds of appeal. However, shortly before the hearing he abandoned grounds 2 and 5. At the hearing he sought leave to add an additional ground 3A. The court granted that leave.
The amended grounds of appeal in their final form, without the supporting particulars, read:
Essential elements of State case
1.The learned trial judge erred in law and in fact in finding the applicant guilty of wilful murder pursuant to s 7 of Criminal Code (WA 1913) where the learned trial judge could not be satisfied the applicant was present in the room directly involved in the killing when Ms Clare Garabedian ('the deceased') was killed which was an essential element of the State case against the applicant. The failure by the learned trial judge to find the State case proved beyond reasonable doubt yet to enter a verdict of guilt against the applicant amounts to an error of law such that there is a substantial miscarriage of justice.
Trial by Judge Alone
3.The learned trial judge erred in law in failing to cancel the order for trial by judge alone without a jury ('trial by judge alone') as the application by the appellant was made in circumstances where the State had not made full disclosure to the appellant of matters significant and relevant to the decision by the appellant to apply for trial by judge alone such that the application was made without the appellant being fully informed of all matters relevant to the making of that decision and the appellant was thus deprived of a fair trial.
3A.The learned judge who made the order that the appellant be tried by judge alone erred in law as there is no jurisdiction to make any further order as to trial by judge alone on a retrial or subsequent trial of an indictment once an accused elects trial by jury in relation to that indictment such that the appellant was deprived of a trial in accordance with law.
4.Alternatively, the learned trial judge erred in law or, alternatively, in the exercise of his discretion by refusing the applicant's application to abort the trial in the exercise of the learned trial judge's power to ensure a fair trial; the appellant being deprived of a fair trial by having made the application for trial by judge alone without notice of the second agreement between the State and Mr X which was a relevant and significant matter in any decision as to whether to apply for trial by judge alone.
Findings of essential elements of State case based on uncorroborated evidence of [Mr X] and finding of Edwards' lies without evidence corroborative of [Mr X]
6.The learned trial judge erred in law and in fact in finding that the evidence of [Mr X] as to the agreement between, inter alia, the applicant and [Mr X] on 22 August 1998 (the basis upon which the learned trial judge convicted the applicant) was corroborated.
Lies and standard of proof for certain Edwards' lies
7.The learned trial judge erred in law and fact and misdirected himself in finding the applicant lied as to the agreement between, inter alia, the applicant and [Mr X] on 22 August 1998 (the basis upon which the learned trial judge convicted the applicant) there being no evidence that the applicant's version was a lie apart from the evidence of [Mr X] which was not corroborated.
8.Further and alternatively, the learned trial judge erred in law and in fact in finding that the applicant lied (Edwards lies) about the discussions at the Bassendean house on 22 August 1998 as the learned trial judge failed to direct himself:
(a)that he had to be satisfied beyond reasonable doubt as to those lies 'being lies which constituted the only evidence or, alternatively, an indispensable link in a chain of evidence necessary to prove guilt' Edwards v R (1993) 178 CLR 193 at 210 and
(b)as to other reasons for the lies (as he found them) apart from consciousness of guilt such as 'panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence [charged]' Edwards v R (1993) 178 CLR 193 at 211.

Ground 1: the learned trial judge's reasons

The learned trial judge directed himself (correctly, in my respectful opinion) that he could not convict the appellant of wilful murder unless the State satisfied him beyond reasonable doubt as to the following elements of the offence:
(a)Ms Garabedian was unlawfully killed;
(b)the appellant committed the act of unlawful killing or was a party to the act of unlawful killing by another; and
(c)at the time of the unlawful killing, the appellant intended to cause Ms Garabedian's death [35].
As to the first element, the learned trial judge noted that there was no suggestion that Ms Garabedian's death was lawful [36]. As to the second element, the State did not allege that a direct act by the appellant caused her death (that is, it was not alleged that he smothered her with the pillow or injected her with the heroin). It was common ground that Mr X was a principal offender in that he injected Ms Garabedian with the heroin. The State also alleged that Nicholls was a principal offender in that he smothered her with the pillow [37]. As to the third element, his Honour noted that the appellant's intention to cause Ms Garabedian's death could only be established by inference from all the relevant facts and circumstances including what the appellant allegedly said, what he allegedly did and the existence of the alleged motive. The third element would only be established if his Honour was satisfied beyond reasonable doubt that the existence of the requisite intention was the only reasonable inference in all the facts and circumstances as found [43].
Section 7 of the Criminal Code (WA) provides that when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
(a)Every person who actually does the act or makes the omission which constitutes the offence;
(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)Every person who aids another person in committing the offence;
(d)Any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.
The learned trial judge analysed those provisions of s 7 which were relevant to the State's case against the appellant:
A person can only be criminally liable under s 7(b), s 7(c) and s 7(d) above, if at the material time he or she knew that the alleged offence was then being committed, or (where the acts of complicity occur in advance) might be committed as a result of what was expressly or tacitly agreed with the principal offender (Johns v The Queen (1980) 143 CLR 108; Ward v The Queen (1997) WAR 68, 75 ‑ 76). Consequently, the test for criminal liability under s 7 is:
'[S]ubjective … and the person charged as accessory should not be held liable for anything but what he either expressly commanded or realised might be involved in the performance of the project agreed upon. It would, on this principle, therefore be a question of evidence to satisfy the jury that the accused did contemplate the prospect of what the principal has in fact done. [Borg v R [1972] WAR 194, 199]'
So long as the crime committed by the principal offender is one which was within the contemplation of the alleged party to that offence, it does not matter that it was committed in a different way from that intended. In Royall v The Queen (1991) 172 CLR 378 at 392, 400, 411 and 452 a majority of the High Court approved the following statement of principle:
'If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected. [R v Demirian [1989] VR 97, 113]'
With regard to s 7(d), the 'procuring' of an offence is something different from 'counselling' it to happen. Counselling involves words or action on the part of the alleged party to the offence which positively encourages the principal offender to commit it. To 'procure' means to produce by endeavour. In Humphry v The Queen [2003] WASCA 53, the Court of Criminal Appeal approved the trial judge's direction in that case that 'you procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening' [40] ‑ [42].
The learned trial judge made comprehensive findings of fact. It is sufficient, at this stage, to refer to these findings:
(a)Ms Garabedian died as a result of the combined effects of the injection of opiates, suffocation and neck compression. The injection of opiates had 'a significant role' in causing her death [193].
(b)Ms Garabedian was unlawfully killed [36].
(c)On the evening of 22 August 1998, there was a discussion at the Bassendean house, while Mr X was present with the appellant, Hoy and Nicholls, about killing Ms Garabedian. The subject discussed was a proposal that Mr X would kill Ms Garabedian by posing as a sex client, luring her to a motel, and providing her with a hot shot of heroin [313]. The appellant was a full participant in that discussion. The appellant and Hoy were the instigators of the plan which was implemented later on the evening of 22 August 1998 [314]. The appellant and Hoy agreed to pay Mr X $2,000 in return for him carrying out the plan [315]. Before Mr X left the Bassendean house on the evening of 22 August 1998, he was supplied with a quantity of cash (to pay for the motel and Ms Garabedian's services) together with a quantity of heroin to be used as the hot shot. The appellant supplied the heroin [316].
(d)Mr X did not know Ms Garabedian and, for that reason, it was necessary for one or more of the others to accompany Mr X and identify her [317].
(e)Mr X, the appellant and Hoy departed the Bassendean house on the evening of 22 August 1998 in two vehicles. They travelled in convoy and headed towards Northbridge. Mr X was in Hoy's motor vehicle and had with him Hoy's mobile telephone ('846'). The appellant and Hoy were in the appellant's vehicle and had with them Hoy's other mobile telephone ('295') [318].
(f)After Mr X arrived at Hyde Park, Ms Garabedian was identified to him by Hoy, and Ms Garabedian then got into his vehicle [320].
(g)A further quantity of heroin was delivered to Mr X at the Great Eastern Motor Lodge. He disposed of most of it because of the reservations he was then experiencing about killing Ms Garabedian. There were two deliveries of heroin to the room [324].
(h)Mr X did not commit the murder on his own [325], [329].
(i)Although the evidence was insufficient for his Honour to be satisfied beyond reasonable doubt that the appellant had entered room 18 and participated in the physical acts which brought about Ms Garabedian's death, he was satisfied beyond reasonable doubt that the appellant was at or in the vicinity of the Great Eastern Motor Lodge during the early hours of the morning and at the time Ms Garabedian died [330].
(j)In the absence of corroboration of Mr X's evidence, his Honour made no finding that there was a discussion at the Bassendean house on the evening of 21 August 1998 about killing Ms Garabedian [313].

In summary, the learned trial judge was satisfied beyond reasonable doubt, based on the whole of the evidence, that the appellant was not only a party to the plan made on the evening of 22 August 1998 to murder Ms Garabedian by injecting her with a hot shot, but that he also accompanied Mr X to Northbridge to aid him in identifying Ms Garabedian, and that he was also a party to the delivery of further quantities of heroin after the initial hot shot had failed to kill her [334].
After the learned trial judge set out his findings of fact, he recorded his conclusions and verdict, as follows:
On the facts as found [the appellant] counselled and procured the death of Clare Garabedian while at the Bassendean house with Hoy, Nicholls and Mr X on the evening of 22 August 1998. Their discussions resulted in a plan whereby Mr X was to pose as a client for sexual services, take Ms Garabedian to a motel, and provide her with a 'hot shot' of heroin. [The appellant] then aided Mr X in the implementation of that plan by providing the heroin and driving Amanda Hoy to Hyde Park so that she could identify Clare Garabedian to Mr X. Subsequently, when the initial 'hot shot' failed to have the desired effect, [the appellant] either supplied or was a party to the supply to Mr X of further quantities of heroin in order to ensure that Ms Garabedian would be killed (and thereby continued to aid Mr X in committing the offence).
In the end, the object of the plan to which [the appellant] was a party was achieved. Although the final means of achieving that object did vary from those originally planned, the injection of a 'hot shot' of heroin remained a substantial contributing cause to Ms Garabedian's death and the offence committed was the same as that planned.
In these circumstances, (and pursuant to s 7 of the Criminal Code) [the appellant] is deemed to have committed the offence of wilful murder as alleged in count 1 of the indictment. Accordingly, I am satisfied beyond reasonable doubt and have come to the verdict that he is guilty of that wilful murder [335] ‑ [337].

Ground 1: the appellant's submissions

Counsel for the appellant submitted that the State's case at the retrial comprised three limbs:
(a)the planning and agreement at the Bassendean house on 21 and 22 August 1998;
(b)the journey in two motor vehicles from the Bassendean house to Northbridge by the appellant, Hoy and Mr X for the purpose of identifying Ms Garabedian to Mr X; and
(c)the events in room 18 at the Great Eastern Motor Lodge which culminated in Ms Garabedian's murder.
According to counsel for the appellant, the State relied on the agreements made between the appellant, Mr X and the others at the Bassendean house on 21 and 22 August 1998, and the appellant's presence in room 18 and assistance with the killing of Ms Garabedian, as essential elements of the case against him. That is, the State's case was not merely that the appellant had counselled and procured Ms Garabedian's murder, but also that he was in the motel room assisting in her killing.
It was submitted that the State did not at any time rely on alternative bases for the appellant's guilt. In particular, the State did not conduct the prosecution on the basis that, if the learned trial judge was not satisfied beyond reasonable doubt the appellant was in the motel room, then his Honour could still convict the appellant if he was satisfied the appellant was a party to the agreements at the Bassendean house and had provided assistance with a view to their implementation.
According to counsel for the appellant, the State relied almost entirely on Mr X's evidence and it was not a case in which the reliability of his evidence concerning the agreements at the Bassendean house could be distinguished from the reliability of his evidence as to the appellant's presence in the motel room and assistance in killing Ms Garabedian. Both elements were essential to the State's case and his Honour could not convict the appellant unless he was satisfied beyond reasonable doubt in relation to both of them. As counsel put it, the State 'nailed their colours to the mast', and the appellant could only be convicted if his Honour was satisfied beyond reasonable doubt both as to the agreements at the Bassendean house and the appellant's presence in room 18 and assistance in killing Ms Garabedian.
It was argued that the journey from the Bassendean house to Northbridge was not an essential element of the State's case. Rather, it was relied on merely to corroborate Mr X's evidence as to the existence of the agreements and the carrying out of acts in performance of the agreements, namely, the provision to Mr X of a mobile telephone and the identification of Ms Garabedian to him.
Counsel for the appellant referred to the following statements made by the prosecutor at the trial:
(a)In opening, the prosecutor said '[the appellant] and Hoy contracted [Mr X] to kill [Ms Garabedian] by way of what is called a hot shot, a lethal heroin injection, and that when he failed to do this he was joined in the motel room by [the appellant] and Nicholls where the three of them held her down and forcibly injected a lethal dose of heroin whilst asphyxiating her' (ts 3621).
(b)In closing, the prosecutor said that the 'prosecution case depends significantly, though not entirely, on [Mr X's] evidence which is uncorroborated in the sense that there is no evidence independent of [Mr X] that implicates [the appellant] in the killing itself' (ts 5354); that '[Mr X had] maintained a consistent version of events from the time he [had] decided to come clean about what happened in the motel room' (ts 5362); and that '[there is] evidence … that is supportive of what [Mr X] is saying and which shows … [the appellant's] hand in the events in the motel room' (ts 5372).
It was submitted that the learned trial judge was in error in finding the appellant guilty in that his Honour was not satisfied beyond reasonable doubt of an essential element of the State's case; that is, the appellant's presence in room 18 and his involvement in the actual killing of Ms Garabedian.

Ground 1: its merits

In my opinion, the State's case at the retrial comprised, in essence, four limbs. First, the planning and agreement at the Bassendean house on 21 August 1998, and the further planning and agreement at the house on 22 August 1998. Secondly, the journey in two motor vehicles from the Bassendean house to Northbridge by the appellant, Hoy and Mr X for the purpose of identifying Ms Garabedian to Mr X. Thirdly, the provision by the appellant of the heroin required to implement the plan. Fourthly, the events in room 18 at the Great Eastern Motor Lodge which culminated in Ms Garabedian's murder.
Each of the four limbs (including either occasion of planning and agreement within the first limb) was sufficient in itself, if proved by the State beyond reasonable doubt, to sustain the appellant's conviction. The four limbs (including each occasion within the first limb) were alternatives. The State did not put its case on the basis that his Honour could not convict unless he was satisfied beyond reasonable doubt that the State had proved each and every one of the four limbs. This would have been obvious to the appellant's experienced and competent criminal defence counsel.
It is risible to suggest the State conducted its case on the footing that a finding beyond reasonable doubt that the appellant entered room 18 and participated in the physical acts which brought about Ms Garabedian's death was an indispensible part of the case against the appellant. That proposition was never advanced by the prosecutor.
Similarly, on no reasonable view did the State put its case on the basis that it was essential for the learned trial judge to be satisfied beyond reasonable doubt that the alleged planning occurred and the alleged agreement was made at the Bassendean house on both 21 and 22 August 1998.
The learned trial judge's understanding of the State's case is apparent from this passage in his Honour's reasons:
The State … alleges that [the appellant's] role in the killing was that he counselled and procured that act while at the Bassendean house, supplied heroin and assisted with the identification of Clare Garabedian for the purpose of enabling that act to happen, and later went to the Rivervale motel room and actively assisted in [the] killing of Ms Garabedian by holding her down on the floor while she was smothered with a pillow and injected with heroin. Accordingly, the second element of the alleged offence will only be established if I am satisfied beyond reasonable doubt that [the appellant] did one or more of these things and thereby made himself a party to the unlawful killing [38]. (emphasis added)
The 'second element' of the alleged offence referred to by his Honour was that the appellant committed the act of unlawfully killing Ms Garabedian or was a party to the act of unlawful killing by another [35].
It is true that the State is required to formulate the basis upon which it puts its case against an accused and, in essence, to adhere to that case. See Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182 [133] (Black CJ, Weinberg & Kenny JJ). However, in the present case, the prosecution case did not change during the course of the retrial. Compare R v Tangye (1997) 92 A Crim R 545, 556 (Hunt CJ at CL, McInerney & Sully JJ agreeing). In closing, the prosecutor did not invite the learned trial judge to proceed on a theory which could not properly be sustained on the evidence. See Tran [135].
Neither the appellant nor Nicholls gave sworn evidence at the retrial and there was no affirmative evidence that the appellant was not in room 18. Further, as a result of the retrial occurring before a judge alone, the tribunal of fact has given reasons for decision and it is apparent that his Honour did not proceed on an impermissible basis.
In any event, nothing submitted by the prosecutor in his opening or closing address created any relevant prejudice or unfairness to the appellant. In particular, nothing said by the prosecutor in closing would have caused the appellant, if it had been said in opening, to have run his case differently. The appellant's trial counsel did not complain to his Honour about any unfairness arising from any aspect of the prosecutor's opening or closing.
Ground 1 fails.

Grounds 3, 3A and 4: background facts

At the original trial, the appellant did not make an application under s 651A of the Criminal Code (WA), which was the then applicable statutory provision, for trial by judge alone without a jury. As I have mentioned, he was tried and convicted before Murray J and a jury. Also, as I have mentioned, on 3 February 2005 the High Court quashed the appellant's conviction and ordered a retrial.
By letter dated 2 January 2006, the then counsel for the appellant informed the State that the appellant intended to apply under s 118 of the Criminal Procedure Act2004 (WA) for the retrial to be by a judge alone without a jury.
The application was filed on 27 January 2006. In an affidavit sworn on that date, in support of the application, the appellant's then solicitor, Lyn Zinenko, deposed, relevantly:
3.The trial of this matter will not involve any factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness. Matters of credibility are as well determined by a judge sitting alone as by a jury.
…
6.As part of the applicant's defence, the fact that he was at the time of the offence a dealer in heroin must be disclosed to the jury, as it was on the last occasion. In addition it would be an easy inference to draw that [the applicant] and Nicholls delivered to the motel where the death occurred the very heroin which caused or substantially contributed to the death. In light of the cause of death as alleged by the State, this is clearly potentially highly prejudicial evidence and this prejudice could not be cured by direction.
7.The fact that two other accused were convicted by a jury and were not granted a retrial on appeal is likely to become clear, or at least to be left as a question, such that it would create prejudice in the minds of ordinary members of the community that cannot be overcome by any direction to the jury.
8.The original trial in this matter was the subject of extensive media coverage and has been kept in the eye of the public through the media comments of the mother of the deceased (now a victim advocate) up to and after the appeal at first instance and the High Court appeal. This coverage is likely to intensify. The media coverage is likely to affect the minds of ordinary members of the community that cannot be overcome by any direction to the jury.
9.The State intends to call evidence in relation to an incident of violence where the deceased was said to be the victim, and in respect of which the accused was charged with deprivation of liberty and assault occasioning bodily harm. Again, this evidence is likely to create prejudice in the minds of ordinary members of the community that cannot be overcome by direction.
10.The State also intends to call evidence of the drug dealing of the co‑accused Hoy, and of alleged admissions by the then co‑accused now convicted prisoner Nicholls. Those admissions go to the very core of the State case against the applicant as they place Nicholls at the scene, consistent with the State case that … Nicholls, [Mr X] and the applicant were all at the scene. Nicholls and the applicant both denied at the first trial entering the room where the death occurred.
11.This trial will involve considerable expert evidence (toxicology, DNA, forensic pathology, fingerprints, telephone engineering, hair comparison, pharmacology) which is likely to be burdensome to a jury.
12.The identity of the trial judge is not known to the accused nor to counsel nor the solicitor for the accused.
On 8 February 2006, Miller J heard the application. His Honour ordered that the appellant be retried before a judge alone without a jury. He stressed in his reasons that he granted the application because the Director of Public Prosecutions (DPP) not only consented to it, but submitted it would be appropriate for the appellant to be retried by a judge alone (ts 3538).
As I have mentioned, Mr X pleaded guilty to the wilful murder of Ms Garabedian. He became the principal witness for the State against the appellant, Hoy and Nicholls.
By letter dated 20 August 1999 to Pidgeon J (the judge who sentenced Mr X), the DPP informed his Honour of the assistance Mr X had given the State. The letter provided, relevantly:
It is the Crown's view that [Mr X's] evidence is necessary to further the interests of justice and his offer of co‑operation to the prosecution was accepted on the following conditions:
1.he pleaded guilty to wilful murder at the first available opportunity; and
2.he co‑operates with the Crown and gives truthful, full and frank testimony at the preliminary hearing and any trial or retrial of the wilful murder charge against Hoy, [the appellant] and or Nicholls.
In return the Crown agreed to do as follows:
3.provide a letter to the sentencing judge confirming the extent of [Mr X's] co‑operation;
4.submit to the sentencing judge that in the circumstances of this case strict security life imprisonment is not appropriate for [Mr X] and given the level of co‑operation [Mr X] proposes to offer, the minimum term of imprisonment before eligibility for release on parole for wilful murder is appropriate;
5.make representation to the Ministry of Justice that [Mr X] be placed into protective custody for the term of his sentence;
6.support any representation by [Mr X] to the Ministry of Justice that he be transferred to [another jurisdiction] and be placed into protective custody there for the term of his sentence;
…
To date, [Mr X] has co‑operated with the Crown by testifying as a prosecution witness at the preliminary hearing referred to above and it is anticipated that he will testify at the trial of this case in the Supreme Court in due course. On 19 and 20 July 1999 at the Perth Court of Petty Sessions he gave sworn testimony against Hoy, [the appellant] and Nicholls on the wilful murder charge. [Mr X's] evidence was essential to their committal for trial (BAB 104 ‑ 105).
The DPP noted, in conclusion, that without Mr X's evidence, the State would be unable to proceed against the appellant and Hoy, and its case against Nicholls would be weakened.
Mr X's non‑parole period of 15 years was arrived at after an express reduction by the sentencing judge on account of his agreement to cooperate with the authorities and give evidence at the trial of his co‑accused.
The material substance of the DPP's letter dated 20 August 1999 (in particular, the nature and extent of Mr X's agreement to cooperate with the prosecution and the nature and extent of the benefits he received in return for his agreement to cooperate) were disclosed to the legal representatives of the appellant, Hoy and Nicholls before the commencement of the original trial.
In about November 2005, the DPP consulted with the then Attorney General in relation to the making of a parole order for Mr X before he had served 15 years' imprisonment. When the approach was made the prosecution was experiencing difficulties in obtaining the ongoing cooperation of Mr X in relation to the appellant's retrial. Mr X asserted that the State had failed to take adequate steps to ensure his safety while in custody.
By letter dated 23 January 2006, the DPP wrote to Mr X, relevantly, in these terms:
You are the principal prosecution witness in the State's case against [the appellant] and are required to give evidence again at his retrial.
I acknowledge that to date you have fully cooperated with the prosecution in first testifying as a prosecution witness at the preliminary hearing and subsequently at a trial in the Supreme Court. I should acknowledge that the necessity for the retrial which is to commence in March this year does not arise from any act or omission by you.
The prosecution also acknowledge that since you have been a witness for the prosecution the service of your sentence in prison has been considerably more onerous than would have been the case had you not been a witness cooperating with the prosecution. Your future cooperation will, I accept, bring further hardship upon you as you remain in prison.
I also accept that although you earlier agreed to cooperate with the prosecution at any trial or retrial of [the appellant], the prospects of you having to give evidence before a Supreme Court jury so long after the last trial was not the anticipation when I wrote to the sentencing judge on 20 August 1999 and set out your cooperation.
In light of the above matters, I have discussed with the Attorney General the Honourable Jim McGinty, whether some additional consideration can be provided to you in anticipation of your further cooperation with the prosecution and, in particular, your preparedness to continue to cooperate with the prosecution and give truthful, full and frank testimony at the retrial of the wilful murder charge against [the appellant].
The Attorney General has authorised me to relay to you his preparedness in consideration of all the above matters to ask the Governor, in the exercise of the Royal Prerogative of Mercy, to make a parole order in respect of you so as to authorise your release from prison three years earlier than the earliest date by which you could be released pursuant to the sentence of imprisonment which is imposed upon you for the wilful murder of Clare Garabedian (BAB 113 ‑ 114).
After further negotiations, a memorandum of agreement dated 5 and 6 September 2007 was signed by the DPP, the then Attorney General and Mr X. It provided, relevantly:
(a)Mr X agreed to cooperate with the authorities and the parties to the agreement, and he undertook to give truthful and complete evidence at the appellant's retrial;
(b)it was agreed that Mr X would be released on parole in October 2008 and that each of the parties (in particular, the Attorney General) would use their best endeavours (including, but not limited to, making representations where appropriate to, amongst others, the Governor, the Chief Executive Officer of the Department for Corrective Services and the Commissioner of Police) to ensure that such steps were taken to ensure his release in October 2008, notwithstanding the previous order of the Supreme Court in relation to the non‑parole period; and
(c)it was agreed that the parole release order in relation to Mr X would contain a 'no supervision order'.

The memorandum of agreement in relation to Mr X's release on parole in October 2008 therefore involved his release without supervision upon his having served 10 years' imprisonment.
An edited version of the memorandum of agreement was disclosed by the State to the appellant on 18 September 2007 (before his retrial commenced). On 26 September 2007, the then counsel for the appellant filed an application for witness summons against the DPP, the Attorney General and various other people involved in the making of the agreement, seeking disclosure of the unedited memorandum of agreement and certain related materials.
On 4 October 2007, Martin CJ ordered that no further disclosure was required in relation to the memorandum of agreement; however, certain other related documents, including copies of various emails passing between the DPP and the then Attorney General, were ordered to be disclosed. Upon disclosure being made, the appellant's trial counsel promptly made application to the learned trial judge for the retrial to be aborted.

Ground 3: the appellant's submissions

Counsel for the appellant submitted that the learned trial judge erred in law in failing to 'cancel' Miller J's order for the retrial to be before a judge alone without a jury. It was asserted that his Honour should have 'cancelled' the order as the appellant made the application under s 118 of the Criminal Procedure Act at a time when the State had not made proper disclosure to the appellant of the negotiations with Mr X or the material substance of the DPP's letter to Mr X, dated 23 January 2006. According to counsel for the appellant, these matters were significant and relevant to the appellant's decision to make the application under s 118.

Ground 3: its merits

After the State made proper disclosure of the negotiations with Mr X and the agreement ultimately made, the appellant's trial counsel made application to the learned trial judge on 8 October 2007 for the retrial to be aborted and recommence before a judge and jury (ts 3809). No application was made to his Honour, however, to 'cancel' Miller J's order for trial by judge alone.
In my opinion, the learned trial judge did not make an error of law in failing to 'cancel' the order in question in that his Honour was never requested to 'cancel' the order. Compare R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11] (Gleeson CJ, Gummow, Kirby & Hayne JJ), [79] (McHugh J).
Ground 3 fails.

Ground 3A: the statutory framework

Section 92 of the Criminal Procedure Act provides, relevantly, that if an accused pleads not guilty to a charge then, unless an order is made under s 118 that the trial of the charge be by a judge alone without a jury, 'the accused is entitled to have the issues of fact raised by the plea tried by a judge and jury' (emphasis added).
Although it is unnecessary, in this appeal, to determine the nature of the accused's so‑called 'entitlement' under s 92, my preliminary view is that s 92, on its proper construction, relevantly requires that where there is a plea of not guilty to a charge then, unless an order is made under s 118, the issues of fact raised by the plea be tried before a judge and jury. In other words, absent an order under s 118, there must be a trial before a judge and jury.
Section 118 of the Criminal Procedure Act provides, relevantly:
(1)If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2)Any such application must be made before the identity of the trial judge is known to the parties.
(3)On such an application, the court may inform itself in any way it thinks fit.
(4)On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5)Without limiting subsection (4), the court may make the order if it considers ‑
(a)that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b)that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6)Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
…
(9)If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.

Ground 3A: the appellant's submissions

Counsel for the appellant submitted that there was no jurisdiction for Miller J to make the order for the retrial to be by a judge alone without a jury because the appellant's original trial had been by judge and jury.
It was argued that if an original trial is by judge and jury, 'that decision … is binding on an accused person' in relation to any retrial.
Counsel for the appellant accepted, in the course of the hearing, that the submissions in relation to ground 3A required that 'some words be read into some parts of section 118'. Counsel did not, however, specify the precise judicial surgery which, in her submission, was permissible and required.

Ground 3A: its merits

By s 118(4) of the Criminal Procedure Act, on an application by an accused under s 118(1), the court may order that the trial of the charge against the accused be by a judge alone without a jury if, relevantly, it considers it is 'in the interests of justice' to do so.
Section 118(5) sets out some specific circumstances in which the court may make the order. In particular, the court may make the order if it considers:
(a)the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b)it is likely that acts that may constitute an offence under s 123 of the Criminal Code would be committed in respect of a member of a jury.
Section 118(6) sets out some specific circumstances in which the court may refuse to make the order. In particular, the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
Significantly, the specific circumstances referred to in s 118(5) and s 118(6) are expressed to be without limitation to s 118(4). It follows, in my opinion, that the general criterion for the determination of an application under s 118(1) is whether the court considers it is 'in the interests of justice' to make the order. Section 118(5) specifies particular circumstances where the Parliament considers it will be 'in the interests of justice' to make the order, and s 118(6) specifies particular circumstances where the Parliament considers it will not be 'in the interests of justice' to make the order.
The expression 'in the interests of justice' in s 118(4) has a broad connotation. It will be 'in the interests of justice' to order a trial before a judge alone without a jury if that is necessary to ensure the accused receives a fair trial according to law. It will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. These observations on the expression 'in the interests of justice' in s 118(4) are not intended to be exhaustive. There may be other circumstances in which it will be 'in the interests of justice' to order a trial before a judge alone without a jury. It is unnecessary in the present case to rule on the correctness of the different views on the application of s 118 expressed in The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 (EM Heenan J), Arthurs v The State of Western Australia [2007] WASC 182 (Martin CJ) and TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 (McKechnie J).
The breadth of the discretion conferred by s 118(4) indicates that it is to be exercised by reference to the particular facts and circumstances which exist when the application is heard and determined.
The Parliament, in enacting s 118, must be taken to have known that it is not rare or even unusual in the criminal justice system for retrials to occur. Also, the Parliament must be taken to have known that the judge who presides at the original trial will not necessarily be the presiding judge at the retrial.
A 'retrial' is a 'trial'. As Gleeson CJ, Gummow, Heydon and Crennan JJ noted in Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260:
To conduct a retrial is to conduct the trial which ought to have taken place in the first place. A retrial returns the parties to the position they were in at the start of the first trial [88].
There is nothing in the statutory text of s 118 which suggests that an application under s 118(1) may be made only in relation to an original trial. Indeed, the language of the provision, in its natural and ordinary meaning, permits such an application before an original trial and also before a retrial. Counsel for the appellant, by accepting in the course of oral argument that if her submissions in relation to ground 3A were to be made out then 'some words must be read into section 118', necessarily conceded this point.
There are no public policy considerations which justify construing s 118 other than in accordance with its natural and ordinary meaning. That is, there is no reason based on public policy (including the fair administration of criminal justice according to law) that warrants a restrictive construction of s 118 so that it applies only to original trials. In my opinion, public policy considerations suggest to the contrary. For example, an original trial of an accused may be attended by widespread and seriously prejudicial publicity. It may be necessary, in the interests of justice, for the retrial to be before a judge sitting alone without a jury to ensure fairness to the accused.
Ground 3A fails.

Ground 4: the appellant's application to abort the retrial

The retrial commenced on 2 October 2007.
As I have mentioned, on 8 October 2007 the appellant's trial counsel made application for the retrial to be aborted. Counsel submitted that the material which had recently been disclosed by the State impacted seriously on Mr X's credit. Also, he submitted that if this material had been known or capable of being known to the appellant before he filed the application under s 118 of the Criminal Procedure Act, the application would not have been brought. Further, it was submitted that the circumstances which culminated in the signing of the memorandum of agreement gave rise to a factual issue which required the application of objective community standards, within s 118(6), and it would be better if this issue was determined by a jury. Counsel contended that, in the circumstances, it would be unfair for the retrial to continue because the appellant would now prefer a retrial by judge and jury. No other unfairness was alleged.
The learned trial judge refused to abort the trial. His Honour's reasons were, relevantly, as follows:
[I]n my view, the circumstances of the agreement can only be relevant to Mr X's credibility as a witness. The question of credibility is an issue which does not involve the application of objective community standards but as an issue which is completely personal to him.
In this regard the rightness or wrongness of the agreement is not something that can be taken into account when assessing his credibility. What will be relevant is the fact of that agreement and the influence that it might have had on the content and reliability of his testimony. In the end the real question for me to determine is whether it is unjust that the accused should be bound by his decision to apply for trial by judge alone when in all of the circumstances that are now known he would have preferred trial by jury.
I have given this question careful consideration but am simply unpersuaded that there is any arguable injustice. In coming to this view I have had regard to the fact that there was an agreement between the authorities and Mr X when he testified at his first trial. There is no suggestion that his evidence is going to change as a result of the new agreement. His credibility is a central issue in the present trial but that issue can be as readily determined by me as it can be by any jury.
The accused does have a fundamental right to a fair trial and the law of this state provides that such a trial can occur either by judge alone or by a judge with a jury. It is not suggested anything has occurred in the present trial which might render it unfair to the accused. In my view, the accused has not established any basis for the present trial to be aborted and accordingly, his application will be refused (ts 3826).

Ground 4: the appellant's submissions

Counsel for the appellant reiterated, in substance, the submissions of the appellant's trial counsel.
However, counsel for the appellant also referred to these observations of the learned trial judge in his reasons for convicting the appellant:
In my opinion the accomplice warning I have referred to is especially important when a judge alone is deciding guilt, and the issue of guilt essentially turns upon the credibility of the accomplice. In the present instance Mr X testified over a long period, and for most of that time he was subject to a very thorough and searching cross-examination. Because of his demeanour during that cross-examination, I formed some fairly strong (albeit tentative) views as to his credibility; but unlike a juror, I cannot share or discuss those views with 11 other people who have had the same opportunity of hearing and seeing the evidence.
The determination of a witness' credibility on the basis of demeanour does not require the exercise of any legal skill, and is not something which can be the subject of reasoned analysis. It is largely a semi-intuitive process, and most ordinary members of the community have the life experiences which equip them to make such an assessment. The great advantage of the jury system is that 12 randomly chosen people of different ages and backgrounds collectively decide such issues of credibility. As the High Court stated in Doney (214):
'[T]he purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experiences of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.'
When 12 people unanimously agree on the credibility of a critical witness there can be the highest degree of confidence that that assessment is correct. However, in a trial without a jury only one person makes that assessment, and in my view it follows that exceptional care must be taken before accepting an accomplice's evidence [53] ‑ [55].
It was submitted that this passage from the learned trial judge's reasons indicates that he considered himself to be in a position of disadvantage compared with a jury in assessing Mr X's truthfulness and reliability. This, in turn, so it was submitted, underscored the prejudice to the appellant arising from his Honour's refusal to abort the retrial and order it to recommence before a judge and jury.

Ground 4: its merits

Where an accused is convicted and appeals against the conviction on the ground that the trial judge's discretion miscarried when he or she refused to abort the trial without verdict, the appeal is not against the failure to abort the trial, but against the conviction. See Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason & Jacobs JJ agreeing). The appeal will only succeed if the appellant can demonstrate that the trial judge's exercise of discretion was vitiated by an error of law (see s 30(3)(b) of the Criminal Appeals Act 2004 (WA); House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ)) or that a miscarriage of justice has occurred (see s 30(3)(c) of the Criminal Appeals Act). See also Narrier v The State of Western Australia [2008] WASCA 191 [31] (Buss JA, Martin CJ & Wheeler JA agreeing).
In my respectful opinion, the learned trial judge overstated any difficulty for a trial judge (and his Honour is a very experienced trial judge) in determining the credibility of a witness. The assessment of the truthfulness and reliability of witnesses is a basic function of a trial judge and, in performing that task, he or she is not, in my opinion, under any relevant disadvantage compared with a jury. Indeed, a trial judge has considerable advantages over a jury as a result of his or her training and experience.
In the present case, Mr X's credibility was the critical issue in the original trial. It remained the critical issue in the retrial. The prosecutor frankly (and correctly) acknowledged in his closing at the retrial that 'the prosecution case depends significantly … on [Mr X's] evidence' (ts 5354).
The appellant's trial counsel conducted a rigorous cross‑examination of Mr X at the retrial. It occupied about six hearing days. He had substantial material with which to attack Mr X's credibility including Mr X's plea of guilty to the wilful murder of Ms Garabedian, Mr X's status (on the State's case) as an accomplice, the transcript of Mr X's evidence at the original trial, the 'agreement' between, in essence, the State and Mr X which procured various benefits for him at his sentencing, and the second 'agreement' between, in essence, the State and Mr X which procured other substantial benefits for him.
The second agreement between the State and Mr X was of the same kind or character as the first agreement. The second agreement added weight (perhaps, significant weight) to the first agreement in the opportunity it presented to the appellant's counsel at the retrial to impugn Mr X's evidence on the basis that he had a motive falsely to implicate the appellant. Mr X was, in fact, cross‑examined on it at great length. See, for example, ts 4011 ‑ 4043.
In my opinion, the learned trial judge's decision, in the exercise of his discretion, to refuse to abort the retrial was not vitiated by any material error. It was unnecessary to grant the application in the interests of ensuring a fair trial for the appellant. In particular, there was no unfairness to the appellant in Mr X's evidence being assessed by the learned trial judge instead of a jury. His Honour's decision did not occasion a miscarriage of justice.
Ground 4 fails.

Grounds 6, 7 and 8: the learned trial judge's reasons

As I have mentioned, on 7 October 1998 the appellant participated in a video‑recorded interview with the police.
The learned trial judge found that during the interview the appellant made some express admissions, and also some implied admissions in the form of lies. Most of the lies were proven to be lies by subsequent admissions made by the appellant either in the interview or during subsequent telephone intercepts [230].
His Honour summarised, in his reasons, the admissions, lies and alleged lies made by the appellant during the video‑recorded interview, as follows [230]:
(1)An admission that [the appellant] carried his mobile telephone with him 'all the time' or 'most of the time' (1370, 1396, 1423 ‑ 1424, and see also 1455 and 1487 ‑ 1488).
(2)A lie that Hoy, Nicholls and [the appellant] remained at home watching videos on the night of 22 August 1998 (1391).
(3)A lie that [the appellant] definitely did not go anywhere that night after 7 or 9 o'clock (1392, 1393, 1397, 1415, and 1457).
(4)A lie (in response to the question whether all three stayed home the whole night) that 'I'm not too sure if Thomas went to work' (1393).
(5)A lie that he was sick, and 'on and off the toilet through the night', and consequently did not 'surface' until lunchtime the following day (1397 ‑ 1398, and see 1466).
(6)A lie that the tattooing of [the appellant] by 'the bloke' who had gone to [another jurisdiction], had occurred two and a half months previously (1409, 1411).
(7)A lie that the name Mr X did not 'ring a bell' (1410).
(8)A lie that Mr X had gone to [another jurisdiction] because he owed 'the Jokers' money' (1413). (This lie is proven by admission (41) below).
(9)A lie that there was 'every likelihood' that Mr X would have known 'just through talk' that [the appellant] and Hoy had been charged with offences relating to Clare Garabedian (1413).
(10)A lie that [the appellant] had had no conversation with Mr X about Clare being killed (1414).
(11)(Following the disclosure that Mr X was being questioned by police in [another jurisdiction]), a lie in the form of the question: 'How could he know anything about her death' (1414).
(12)(After the police had referred to telephone records showing a call to Nicholls by [the appellant] from Rivervale at 9.44 pm on 22 August), a lie that 'there is no way in the world I would have been in Rivervale' (1417, and see 1456, 1457, 1471 and 1479).
(13)(After the police had referred to records of three calls made in the early hours of 23 August from [the appellant's] mobile telephone in Rivervale), a lie that those calls were 'definitely not from me' (1419 ‑ 1421, and see 1458 ‑ 1459, 1487 and 1490 ‑ 1491).
(14)A lie that even though 'it looks to me as if I was in Rivervale' there was no possibility that he was in Rivervale (1422).
(15)A lie that the Great Eastern Motor Lodge 'doesn't ring a bell' and that (implicitly) he had never been in that vicinity (1428, 1452).
(16)A lie that [the appellant] did not regard Mr X as 'a friend or a mate' and that he 'never even spoke to him hardly' (1430).
The interview was then suspended to enable [the appellant] to go to the toilet, and it resumed approximately 45 minutes later. Following that break, [the appellant] made the following significant admissions:
(17)An admission that 'before I went to bed' on 22 August 1998, Clare Garabedian was 'being spoken about'. Nicholls was 'talking about it' and Mr X:
'[S]tarted saying some strange things like about it would be really good if she went away and he'd be quite willing to do it and all that.'
In that regard Mr X 'was talking about killing her obviously' (1432).
(18)An admission that Nicholls:
'[W]as saying it would be better, like, if she went away. She's just like a junkie, all this drama over a junkie and that' (1432).
(19)An admission (and alleged partial lie) that Mr X:
'[S]tarted saying how he'd killed people before and that it would be quite easy to do. He explained basically how he would do it, with a syringe and how easy it would be for him to get her because she was a street walker in Perth around the Palmerston Street area' (1432).
(20)An alleged lie that [the appellant] thought that what Mr X and Nicholls were saying was 'just talk' (1432 ‑ 1433, 1440, 1445).
(21)A lie that [the appellant] then 'crawled into bed' sometime between 11 pm and 1 am, and did not leave the house that night (1437 ‑ 1438, 1441, 1449, 1461, and 1464).
(22)An admission that during the discussion about 'how [Mr X] would do it' Mr X said that he would need 'a point or two points' of heroin (1434).
(23)Alleged lies that Nicholls and Mr X were going to get the heroin from 'just a bloke I knew that sold it' and (implicitly) that Mr X was 'on and off' his mobile telephone while talking to that other person (1435).
(24)An admission that Mr X was going to pick up Clare Garabedian 'from around the Palmerston Street area' (1436).
(25)An alleged lie that [the appellant] 'didn't want to know about it' and was just 'watching telly' (1436).
(26)An admission that because Mr X would not know how to pick out Clare Garabedian, Nicholls 'was going to show him or something'. In this regard, Nicholls 'knew Clare' (1436).
(27)Admissions but also an alleged partial lie that Mr X was going 'to get his mate to book a motel room', take Clare Garabedian there, and inject her with heroin (1437).
(28)An alleged lie that in respect of this discussion [the appellant] 'had no input whatsoever really' (1437, 1438, 1445).
(29)An implicit admission of [the appellant's] attitude towards Clare Garabedian by stating that she was 'just a junkie anyway' (1438), that junkies were 'pretty close to the bottom', and that he 'wasn't really phased about her' (1441).
(30)An admission that [the appellant] had 'no idea' what benefit Mr X would gain from killing Clare (1438).
(31)A lie that Hoy had no involvement in the conversation (1439).
(32)An admission that 'one of them might have even phoned the massage parlour' (1439).
(33)A lie that [the appellant] 'didn't even know' if he had met Clare Garabedian (1440).
(34)An admission that Nicholls and Mr X had not killed Clare Garabedian 'off their own bat' because:
'It had been, like, discussed earlier in the evening, and like ‑ ‑ like prior about ‑ ‑ what this Clare had done. … It [was] pretty well talked about a fair bit [in relation to [the appellant] and Hoy being on bail and the possibility of them going to gaol]' (1445).
(35)An admission that the conversation on 22 August might not have been the first occasion that the possibility of killing Clare Garabedian had been talked about. It previously may have been 'joked about' by 'people that we told about it' (1445 ‑ 1446).
(36)A lie (in response to questions about how Mr X could afford to purchase heroin) that Mr X was 'pretty flush with cash' (1447 ‑ 1448).
(37)An admission that Hoy had two mobile telephones (1453).
(38)An alleged lie by asserting that the 'price of $2,000' being mentioned for the killing of Clare Garabedian was 'ludicrous' (1462).
(39)An alleged lie that [the appellant] did not telephone room 18 at the motel during the early hours of 23 August (1463).
(40)An admission that Mr X 'definitely tattooed me twice', and an alleged lie that [the appellant] was unsure of the dates when this had occurred (1466).
(41)An admission that [the appellant] and Hoy had told Mr X to go to [another jurisdiction] and not come back, because Nicholls had discovered that the police were looking for Mr X (1469, 1478).
(42)An admission that Mr X could have borrowed Hoy's car on 22 August (1470 ‑ 1471).
(43)An admission that Mr X returned to the Bassendean house on Sunday morning 23 August 1998.
(44)An admission that Mr X asked to be paid for killing Clare Garabedian because he claimed to have 'done a favour' (1476).
(45)An alleged lie that Nicholls had said that someone else ('[Mr X's] mate') was 'definitely involved in killing Clare Garabedian' (1477).
(46)An admission that Nicholls was 'definitely involved' in killing Clare Garabedian (1477 ‑ 1478).

The appellant was arrested on 7 October 1998 and charged with Ms Garabedian's wilful murder. After his arrest, he was held in the Canning Vale Remand Centre. While in custody on remand, he was able to make telephone calls on the understanding that they would be monitored and recorded. The State tendered recordings and transcripts of 11 telephone calls made by the appellant from the Canning Vale Remand Centre between 10 ‑ 22 October 1998. The persons who received these calls were Alison Bloomer (his sister), Trevor Bloomer (his brother‑in‑law), Hoy (who at that time was not in prison), Gail Valentino and Desiree Valentino (Gail Valentino's daughter).
The learned trial judge found that the appellant had made some significant admissions during these 11 telephone calls. He summarised them, as follows [234]:
(47)(In exhibit 66.2 being a telephone conversation with his sister on 10 October 1998): after stating words to the effect that Clare Garabedian had been killed without [the appellant] knowing about it, an admission that he had 'joked around and everything … [that] it'd be good … for her not to be around' (1978).
(48)(In exhibit 66.3 being a telephone conversation with his sister on 12 October 1998): an implicit admission (which the State contends was also a partial lie) that Nicholls and Hoy 'went for a drive in [the former's] ute' on 22 or 23 August (2005).
(49)(In exhibit 66.3): an implicit admission that Mr X had left the Bassendean house 'somewhere between 9.30 and 10.30 pm' on 22 August (2006).
(50)(In exhibit 66.3): an implicit admission that Mr X had tattooed [the appellant] on the evening of 22 August for about two hours (2006).
(51)(In exhibit 66.3): implicit admissions that Mr X had obtained Hoy's car keys or asked for her car, and then left in that vehicle (2007).
(52)(In exhibit 66.3): implicit admissions (and the State contends partial lies) that 'not long' after Mr X left the Bassendean house, Nicholls and Hoy also left. Nicholls and Hoy later returned to the Bassendean house before midnight (2008 - 2009).
(53)(In exhibit 66.3): an implicit admission that Nicholls and Hoy had driven to Rivervale (2009).
(54)(In exhibit 66.5 being a telephone conversation between [the appellant] and Hoy on 13 October 1998): an admission that Mr X 'borrowed your car' (2042).
(55)(In exhibit 66.5): an alleged lie that an hour to an hour and a half after borrowing Hoy's car, Mr X telephoned and said that 'he wanted something dropped off to a hotel room' (2042).
(56)(In exhibit 66.5): an admission (and the State would say a partial lie) that about an hour and a half later, Hoy went with Nicholls to Rivervale and 'dropped it off'. Hoy waited in Nicholls' vehicle while Nicholls went up to the room (2042, and see also exhibit 66.6 at 2055).
(57)(In exhibit 66.8 being a telephone conversation between [the appellant] and Hoy on 16 October 1998): alleged lies to the effect that on 23 August 1998, Mr X had telephoned Hoy at about 1 am, and that she and Nicholls had then left (2155 ‑ 2156, and see exhibit 66.9 at 2163).
(58)(In exhibit 66.11 being a telephone conversation with Gail Valentino after she had stated that 'the coppers broke Alison'): the admissions constituted by the following exchange:
VALENTINO:    Where were you that night?
[The appellant]:    Gaily, I was in Bassendean.
VALENTINO:    Did you go to the hotel room?
[The appellant]:    I went over there but I didn't go to the room.
VALENTINO:    Right. There you go. Where was Mandy?
[The appellant]:    She was with Thomas.
VALENTINO:    Mm. Where was Thomas?
[The appellant]:    With Mandy.
VALENTINO:    Where?
[The appellant]:    At the room.
VALENTINO:    Well, what did you go over there for?
[The appellant]:    Why did I go over there?
VALENTINO:    Yeah.
[The appellant]:    To get something off her.
VALENTINO:    What?
[The appellant]:    Some fucking stuff that someone wanted to buy.
VALENTINO:    What, she come down to the car?
[The appellant]:    No, she was in the carpark but she come ‑ come out over to Great Eastern Highway to meet me.
VALENTINO:    And that's where the coppers picked up your phone from?
[The appellant]:    Yeah.
VALENTINO:    Oh, well.
[The appellant]:    I was on the opposite side of Great Eastern Highway (2215).
(59)(In exhibit 66.10): an admission in relation to telephone calls made between [the appellant] and Valentino (from 12.07 am onwards on 23 August) that 'one time you phoned me I was in Bassendean and other phone calls I've received or made I was in Rivervale' (2218).
(60)(In exhibit 66.12 being a telephone conversation between [the appellant] and Hoy on 22 October 1998): an admission to the effect that telling the truth would be telling 'how me and you fucken dropped over there and everything' (2304).
(61)(In exhibit 66.12): the admissions constituted by the following exchange:
HOY:I said I bet you - best be telling the truth.
[The appellant]:    Okay.
HOY:Tom knows (indistinct)
[The appellant]:    So let me get it fucking ‑ let me get it right because you know what my fucking head's like. Who went over the first time? Me and you to drop the money off him - for the room.
HOY:Yeah.
[The appellant]:    The second - the second time ‑ ‑ ‑
HOY:Tom and me.
[The appellant]:    To drop off ‑ ‑ ‑
HOY:He took a few speed.
[The appellant]:    The third time ‑ ‑ ‑
HOY:You and me.
[The appellant]:    Okay.
HOY:Across the road.
[The appellant]:    Okey dokey. (2306)
His Honour also found that the appellant had attempted to fabricate alibis in relation to the night of the murder. First, the appellant endeavoured to persuade Trevor Bloomer to provide a false alibi. The gist of this alibi was that Bloomer and his wife had been at the Bassendean house on the evening of 22 August 1998 and they were with the appellant until about midnight [236]. Secondly, the appellant endeavoured to persuade Kristie‑Lisa Elvy to provide him with a false alibi. Ms Elvy had purchased amphetamines from Hoy regularly for several years. The gist of this alibi was that she had met the appellant and Nicholls between 4.00 am and 5.00 am on 23 August 1998 outside the Bayswater hotel for the purpose of buying drugs [241].
The learned trial judge gave himself an accomplice warning in relation to Mr X's evidence. His Honour said:
For these reasons it is dangerous to convict an accused person upon the uncorroborated evidence of an accomplice, and I must look for any other evidence which might corroborate what Mr X has had to say. Corroboration is simply independent evidence which tends to confirm Mr X's version of events and to implicate the accused in having committed the alleged offence.
This does not mean that I cannot accept Mr X's evidence if it is uncorroborated. I am entitled to act upon his uncorroborated testimony if after scrutinising it with great care and paying heed to the warning, I am thoroughly satisfied as to its truth and accuracy. On the other hand, if there is corroboration for Mr X's testimony that does not mean that I should necessarily accept it, because his evidence as an accomplice must still be treated with great caution [46] ‑ [47].
His Honour examined in detail the extent to which Mr X's evidence was corroborated. As to Mr X's evidence in relation to the discussions and agreement at the Bassendean house on the evening of 22 August 1998, his Honour found:
I have already noted that there is evidence which confirms or supports some aspects of Mr X's version of events but that his evidence that [the appellant] was in the motel room at the time of Clare Garabedian's death is uncorroborated. For the purposes of heeding the warning and of assessing Mr X's credibility generally, I will now identify those areas of the evidence which are corroborative of what he has had to say. (In doing so I will be referring to [the appellant's] admissions as enumerated previously).
Firstly, there is ample evidence that on the evening of 22 August 1998 Mr X was at the Bassendean house in company with [the appellant], Hoy and Nicholls (eg, admission (17)). There is also confirmation that at that time there was a discussion (at least between Mr X and Nicholls) about killing Clare Garabedian (admissions (17), (18), (19) and (47)). It was also discussed that Mr X would pick her up in the Palmerston Street area (admissions (19) and (24)), take her to a motel room (admission (27)), and inject her with heroin (admissions (19) and (27)). Further details discussed included the quantity of heroin that would be required (admission (22)) and the need for someone from the house to identify Clare Garabedian because Mr X did not know her (admission (26)).
There is ample support for Mr X's evidence that the discussion about killing Clare Garabedian arose from her complaint concerning the Gnangara Pine Plantation incident (admissions (30), (34) and (35)), and that he agreed to commit the crime as a favour to [the appellant] and Hoy (admissions (30), (44), as well as [the appellant's] acknowledgment in the telephone conversation on 25 September 1998 that Mr X had done the 'righty' by him and Hoy). [The appellant's] further implicit admission on 25 September 1998 that the police not 'knocking on the door' had been 'the plan' is further corroboration of his participation in the discussion on 22 August and of his motive in doing so. There is also independent evidence confirming that [the appellant] and Hoy agreed to pay Mr X $2,000 in return for him killing Clare Garabedian (the reference to 'two gorillas' at prosecution brief 1725, which in light of the discussion at 1721 was necessarily a reference to $2,000) [267] ‑ [269].
As I have mentioned:
(a)In the absence of corroboration of Mr X's evidence, the learned trial judge made no finding that there was a discussion on the evening of 21 August 1998 about killing Ms Garabedian.
(b)However, his Honour found that there was such a discussion on the evening of 22 August 1998 while Mr X was at the Bassendean house with the appellant, Hoy and Nicholls. His Honour said that Mr X's evidence to that effect was confirmed by the appellant's admissions (17), (18), (19), (23), (24), (27) and (34) [313].
The learned trial judge found that the appellant had told lies as to the conversation at the Bassendean house on the evening of 22 August 1998:
I … find that [the appellant] lied (in respect of admissions (20), (25) and (28)) when he said that he thought the matters being discussed were 'just talk' and that he had 'no input whatsoever really'. I am satisfied (by reason of the findings which follow) that [the appellant] was a full participant in that discussion, and I accept Mr X's evidence that [the appellant] and Hoy were the instigators of the plan which was implemented later that night. [The appellant's] motive in joining in that plan was to prevent the prosecution of the charges which would have resulted in his return to prison. I am satisfied as to the existence of that motive by way of inference from all of the surrounding circumstances including [the appellant's] conduct towards Ms Cunniffe [a friend of Ms Garabedian] after he was charged, the statement he made concerning the $40,000 contract, the admissions to be found in his conversation with Mr X on 25 September 1998 (about police not 'knocking on his door'), and admissions (34), (35) and (47) [314].
Earlier in his reasons, the learned trial judge had given himself these directions concerning lies:
A lie told by the accused can be used as part of a chain of evidence constituting corroboration, but only if 'it reveals a knowledge of the offence or some aspect of it and … was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence' (Edwards (1993) 178 CLR 193, 210). Similarly, an accused's fabrication of a false alibi can be corroborative of an accomplice's evidence 'provided that the jury is satisfied that the falsity has not arisen from mistake and that the fabrication has not come about through panic or stupidity' (Thorne (1977) 66 Cr App R 6, 18).
…
In this case, the prosecution also relies upon alleged lies by the accused during his video records of interview which are said to show a consciousness of guilt. I can only find that any of those statements is inconsistent with innocence and constitutes an implied admission of guilt if I am satisfied as to a number of things. The first requirement is that there must be independent evidence to prove that the particular statement was indeed a lie. Secondly I must be satisfied that the lie was a deliberate one (and not for example a slip of the tongue, a mistake, or the result of factors such as confusion or intoxication at the material time). Thirdly the lie must relate to a material issue which is of significance in respect of the accused's guilt or innocence. Lastly I must be satisfied that the accused's motive in telling the lie was a realisation of his guilt of the offence in the indictment and a fear of telling the truth (and not due to causes such as embarrassment, panic, or a desire to escape an untrue accusation). It is only if I am satisfied as to those four things that I am entitled to treat the lie as evidence helping to establish the guilt of the accused [51], [60].

Grounds 6, 7 and 8: the appellant's submissions

Counsel for the appellant submitted that the learned trial judge, at [312] and [314], found that the appellant had lied about conversations at the Bassendean house on the evening of 22 August 1998 in relation to the plan to kill Ms Garabedian. His Honour accepted the evidence of Mr X that the appellant and Hoy were the instigators of the plan to kill Ms Garabedian that was agreed upon at that time. His Honour relied on 'admissions' (34), (35) and (47) which, according to counsel for the appellant, comprised merely the appellant's version of events that Mr X had discussed a plan to kill Ms Garabedian, that he (the appellant) did not take it seriously, and that he (the appellant) and others may have 'joked around' before 22 August 1998 about Ms Garabedian's death. According to counsel, there was no 'independent evidence' (that is, evidence independent of Mr X) which established the appellant had lied and there was no corroboration of Mr X's evidence as to the agreement made at the Bassendean house on the evening of 22 August 1998.
Counsel sought to contrast the learned trial judge's findings in relation to the plan made on the evening of 22 August 1998 with his Honour's finding (at [313]) that he could not be satisfied beyond reasonable doubt that there was a conversation at the Bassendean house on the evening of 21 August 1998 about killing Ms Garabedian because there was no corroboration of Mr X's evidence. According to counsel, the alleged conversation on the evening of 21 August 1998 was a 'crucial link in the evidence of Mr X as to why he went to the Bassendean house on 22 August 1998'. It was submitted there was nothing to distinguish the evidence of the conversations on the two evenings in question.
It was then submitted that although the learned trial judge had directed himself that he would not accept Mr X's version of events on critical findings of fact without corroboration, he nevertheless accepted Mr X's evidence as to the agreement reached on the evening of 22 August 1998 without corroboration (at [314]). This, so it was submitted, was an error.
Further, it was submitted that the lies which the learned trial judge found the appellant had told (at [313] ‑ [314]), as to the conversation at the Bassendean house on the evening of 22 August 1998, were not lies 'as a matter of law'. Alternatively, it was contended that the lies in question constituted the only evidence or, alternatively, an indispensible link in a chain of evidence, necessary to prove guilt. See Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210.
Counsel for the appellant argued that the learned trial judge's conviction of the appellant was based on his Honour's crucial finding as to the agreement made at the Bassendean house on the evening of 22 August 1998. Accordingly, it was necessary for his Honour to direct himself that he had to be satisfied beyond reasonable doubt as to the lies told by the appellant. It was submitted his Honour failed to give himself this direction and, as a result, he made an error of law. Further, it was submitted his Honour erred in that he failed to direct himself as to the possibility of other reasons for the lies, apart from consciousness of guilt, such as 'panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence [charged]': Edwards, 211.
Finally, it was submitted that the learned trial judge's alleged errors in his directions as to lies amounted to a substantial miscarriage of justice.

Grounds 6 and 7: their merits

In my opinion, it was reasonably open to the learned trial judge to conclude, on the basis of the following admissions by the appellant, that a plan or agreement to kill Ms Garabedian had been made at the Bassendean house on the evening of 22 August 1998:
(a)Before the appellant went to bed on 22 August 1998, Mr X and Nicholls had been discussing Ms Garabedian and that 'it would be really good if she went away and [Mr X would] be willing to do it and all that'. Mr X 'was talking about killing her obviously'. See admission (17) at [230].
(b)Nicholls stated 'it would be better, like, if she went away. She's just like a junkie, all this drama over a junkie and that'. See admission (18) at [230].
(c)Mr X 'started saying how he'd killed people before and that it would be quite easy to do. He explained basically how he would do it, with a syringe and how easy it would be for him to get her because she was a street walker in Perth around the Palmerston Street area'. See admission (19) at [230].
(d)Nicholls and Mr X were going to get the heroin from 'just a bloke I knew that sold it' and that Mr X was 'on and off' his mobile telephone while talking to that other person. See admission (23) at [230].
(e)Mr X was going to pick up Ms Garabedian 'from around the Palmerston Street area'. See admission (24) at [230].
(f)Mr X was going 'to get his mate to book a motel room', take Ms Garabedian there and inject her with heroin. See admission (27) at [230].
(g)Nicholls and Mr X did not kill Ms Garabedian 'off their own bat' and that it had been discussed earlier in the evening. See admission (34) at [230].
Also, it was reasonably open to the learned trial judge to find, on the basis of the following evidence and reasoning, that the appellant was a party to the making of the plan or agreement to kill Ms Garabedian that was made at the Bassendean house on the evening of 22 August 1998:
(a)The appellant's obvious motive for wanting Ms Garabedian dead [314].
(b)The appellant's lies to the effect that he stayed at the Bassendean house at all material times on the evening of 22 August 1998, as established by the following evidence referred to in his Honour's reasons:
(a)[The appellant's] admissions (51), (52) and (54).
(b)The pattern of calls between the two mobile telephones (during the period from 8.54 pm until 9.15 pm) [that is, between Hoy's '846' mobile telephone and Hoy's '295' mobile telephone], including the progressive and simultaneous transfer from base station to base station as the vehicles [that is, the appellant's vehicle and Hoy's vehicle] proceeded towards Northbridge.
(c)Sharon Beattie's evidence that Nicholls was the only adult in the Bassendean house when she first visited at about 9.10 or 9.15 pm (viz. approximately 15 or 20 minutes prior to Nicholls' 9.30 pm telephone call) [on 22 August 1998].
(d)Sharon Beattie's evidence that when telephoned by Nicholls at 9.30 pm he told her that 'Mandy and Marty were out'. (Beattie was a very credible witness and I accept all of her evidence.)
(e)The necessary inference that [the appellant] had left the Bassendean house prior to his mobile telephone call at 9.44 pm (via the Rivervale base station) to Nicholls. This call was made only 29 minutes after the last of the calls between the '846' and '295' mobile telephones at Northbridge.
(f)[The appellant's] attempts to fabricate the false alibi (involving Mr and Mrs Bloomer) to account for his whereabouts at that time. In that regard I have no hesitation in accepting Mr Bloomer's evidence as corroborated by the telephone intercepts. (It should be noted that the conversation between [the appellant] and Hoy at prosecution brief 2155 on its own proves the falsity of the alibi.) I am also satisfied that [the appellant] fabricated the false alibi out of a consciousness of his guilt in accompanying Hoy and Mr X into Northbridge.
(g)The deliberate lies constituted by admissions (2), (3), (5), (12) and (21) which I am satisfied were told by [the appellant] out of a consciousness of his guilt in accompanying Mr X to Northbridge (as well as in respect of his other activities that night) [318].
(c)The appellant having attended Northbridge on the evening of 22 August 1998, after the plan had been finalised, so that Ms Garabedian could be identified to Mr X, as established, by inference, from the facts summarised by the learned trial judge at [318] and set out at [142(b)] above.
(d)The appellant's presence at or in the vicinity of the Great Eastern Motor Lodge during the early hours of 23 August 1998, as established by evidence concerning his mobile telephone records [330] ‑ [331].
(e)The appellant's attempt to create a false alibi through Ms Elvy for the period between 4.00 am and 5.00 am on 23 August 1998, being the time at or about which Ms Garabedian was killed [332] ‑ [333].

The learned trial judge relied on admissions (35) and (47) as evidence, in combination with other evidence, that established the appellant's motive to kill Ms Garabedian, and not as corroboration of Mr X's evidence [314].
Admission (35) was an admission that the conversation on the evening of 22 August 1998 might not have been the first occasion that the possibility of killing Ms Garabedian had been discussed. It may have previously been 'joked about' by 'people that we told about it'. Admission (47) was an admission in the course of a telephone conversation between the appellant and his sister on 10 October 1998. After the appellant said words to the effect that Ms Garabedian had been killed without him knowing about it, he added that he had 'joked around and everything … [that] it'd be good … for her not to be around'. Admissions (35) and (47) established that on an occasion before 22 August 1998 the appellant had discussed with others the killing of Ms Garabedian. His Honour concluded, independently of Mr X's evidence, that the discussion was not a joke [312] ‑ [314].
Although the learned trial judge found that the appellant had lied in the course of admissions (20), (25) and (28), he did not rely on those lies as corroboration of Mr X's evidence, but as establishing there had in fact been a discussion on the evening of 22 August 1998 of a plan to kill Ms Garabedian [313] ‑ [314]. Further, his Honour found that the discussions on 22 August 1998 'resulted in a plan' and that the appellant 'aided Mr X in the implementation of that plan' [335].
Admission (20) was a lie that the appellant thought what Mr X and Nicholls were saying was 'just talk'. Admission (25) was a lie that the appellant 'didn't want to know about it' and was just 'watching telly'. Admission (28) was a lie that the appellant 'had no input [in the discussion] whatsoever really'.
The learned trial judge did not err, as alleged, in finding that Mr X's evidence as to the agreement made between the appellant, Mr X and others on the evening of 22 August 1998 was corroborated. The evidence of Mr X that a plan or agreement to kill Ms Garabedian was made at the Bassendean house on the evening in question was corroborated by the evidence referred to at [141] above. Further, the evidence of Mr X that the appellant was a party to the making of that plan or agreement was corroborated by the evidence referred to at [142] above.
The learned trial judge was entitled to infer from:
(a)the appellant's lies that at all material times on the evening of 22 August 1998 and the morning of 23 August 1998 he was at the Bassendean house;
(b)his Honour's findings, based on apparently cogent evidence (independent of Mr X) that the appellant was in Northbridge on the evening of 22 August 1998 and in the vicinity of the Great Eastern Motor Lodge during the early hours of 23 August 1998; and
(c)the appellant's obvious motive for wanting Ms Garabedian dead, and the other evidence (independent of Mr X) referred to at [141], [142(e)], [144], [145] and [146] above,
that the appellant also lied about his involvement in the plan or agreement made at the Bassendean house on the evening of 22 August 1998.
The learned trial judge was entitled to distinguish between the evidence relating to the alleged conversation on the evening of 21 August 1998 and the alleged conversation on the evening of 22 August 1998. The existence of the plan or agreement made on the evening of 22 August 1998 was corroborated by a substantial body of evidence (independent of Mr X) as to the events and circumstances involving the appellant, Hoy, Nicholls and Mr X later on the evening of 22 August 1998 and in the early hours of the morning of 23 August 1998, which culminated in Ms Garabedian's death. The evidence of these events and circumstances formed a secure foundation for his Honour's satisfaction beyond reasonable doubt as to the discussion on the evening of 22 August 1998, but not as to the discussion on the previous evening.
Grounds 6 and 7 fail.

Ground 8: its merits

Several well‑established propositions in relation to lies are relevant to ground 8.
First, although the guilt of an accused must be proved beyond reasonable doubt, an alleged admission constituted by the telling of a lie may be considered with the other evidence and, for that purpose, does not have to be proved to any particular standard. See Edwards, 210 (Deane, Dawson & Gaudron JJ).
Secondly, if an alleged admission constituted by the telling of a lie is the only evidence against the accused, or 'is an indispensible link in a chain of evidence necessary to prove guilt', then the lie (and its character as an admission against interest) must be proved beyond reasonable doubt before the accused may be convicted. See Edwards, 210 (Deane, Dawson & Gaudron JJ).
Thirdly, and subject to the second proposition at [153] above, the tribunal of fact may find that a lie told by the accused reveals a consciousness of guilt without applying any particular standard of proof, and may conclude that, on the whole of the evidence, the accused is or is not guilty beyond reasonable doubt. See Edwards, 210 (Deane, Dawson & Gaudron JJ).
Fourthly, a lie will not be evidence of guilt (as distinct from being merely a matter going to credit) unless it was deliberate. The accused must have told the lie because he or she knew that the truth was inconsistent with his or her evidence. It must be a lie that an innocent person would not have told and it must reveal knowledge of the offence charged or some aspect of it. The tribunal of fact may only use the lie as evidence of guilt if satisfied the accused knew that the truth would implicate him or her in the offence. See Edwards, 209 ‑ 211 (Deane, Dawson & Gaudron JJ).
Fifthly, the lie, and the circumstances and events relied on to indicate that the lie constitutes an admission against interest, must be precisely identified. See Edwards, 210 ‑ 211 (Deane, Dawson & Gaudron JJ).
Sixthly, the tribunal of fact must be aware (or, in the case of a jury, told) that there are many reasons why people tell lies, apart from the realisation of guilt. The tribunal of fact cannot use a lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence. See Edwards, 211 (Deane, Dawson & Gaudron JJ).
Seventhly, where a lie is relied on as corroboration of a witness's evidence (and not merely to strengthen the State's case), the untruthfulness of the lie must be established otherwise than by the evidence of the witness who is to be corroborated. See Edwards, 211 (Deane, Dawson & Gaudron JJ).
In the present case, two contentions are made in ground 8.
The first contention is that the learned trial judge failed to direct himself as to other reasons for the appellant's lies (as he found them), apart from consciousness of guilt, such as 'panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence [charged]': Edwards, 211 (Deane, Dawson & Gaudron JJ).
There is no substance in this contention. The learned trial judge expressly directed himself that he must be satisfied that the appellant's motive in telling any lie was a realisation of his guilt of the offence in the indictment and a fear of telling the truth (and not due to causes such as embarrassment, panic or a desire to escape an untrue accusation). His Honour added that it was only if he was satisfied in relation to that requirement, and also other requirements which he expressly noted, that he could treat the lie as evidence helping to establish the appellant's guilt [60].
The second contention is that the learned trial judge failed to direct himself that the lies in question, and their character as admissions against interest, must be proved beyond reasonable doubt.
In my opinion, the lies which the learned trial judge found the appellant had told in relation to the discussions at the Bassendean house on the evening of 22 August 1998 (and their character as admissions against interest) were not the only evidence of the plan or agreement made on that occasion to kill Ms Garabedian, or of the appellant's involvement in the plan or agreement. There was the evidence of Mr X on these issues. Also, there was the other evidence (apart from the appellant's lies) which I have referred to at [141] ‑ [142(a), (c), (d) and (e)] above.
Further, the appellant's lies were not an indispensible link in a chain of evidence necessary to prove his guilt because there was other evidence on the issues in question (which his Honour accepted) probative of guilt, namely, the evidence of Mr X and the other evidence (apart from the appellant's lies) noted at [163] above.
It was unnecessary for the appellant's lies and their character as admissions against interest to be proved beyond reasonable doubt. The second contention raised by ground 8 is without merit.
Ground 8 fails.

Conclusion

I would grant leave to appeal but, for the reasons I have given, the appeal should be dismissed.