Conway v R - [2000] FCA 461

FEDERAL COURT OF AUSTRALIA

Conway v The Queen [2000] FCA 461

Criminal Law - murder - appeal against conviction - admissibility of evidence - evidence of relationship - whether evidence constituted propensity evidence that should have been excluded - meaning and scope of “propensity evidence” - whether evidence of oral representation by the deceased that the accused administered a drug to her some days before her murder is admissible as an exception to the hearsay rule - whether deceased’s oral statements made shortly after the asserted fact - whether deceased’s representation made in circumstances that make it unlikely that the representation is a fabrication - whether deceased’s representation made in circumstances that make it highly probable that the representation is reliable - whether similar representation recorded by the deceased in her diary is admissible as an exception to the hearsay rule - whether directions to the jury on the use of relationship evidence adequate.

Criminal Law - murder - appeal against conviction - accomplices - warning - need for under ss 164 and 165 of the Evidence Act 1995 (Cth) - whether adequate warning given in the circumstances of the case - whether items of evidence identified by the trial judge were capable of corroborating the evidence of the accomplices - whether incorrect identification led to miscarriage of justice.

Criminal Law

- murder - appeal against conviction - whether sufficient direction on
co-conspirator rule - whether trial judge’s intervention during cross-examination of
co-accused caused trial to miscarry - whether evidence of an out of court statement by a
co-accused wrongly rejected - whether proper directions given on evidence of good character - whether question arose as to an accused’s fitness to stand trial - whether trial judge failed to properly direct on accused’s failure to recall certain events - whether trial judge failed to adequately put the defence case of one accused to the jury.

Evidence Act 1995 (Cth), ss 43, 44, 59, 60, 65, 66, 72, 97, 98, 101, 110, 136, 137,164, 165
Law and Justice Legislation Amendment Act 1999 (Cth), s 13
Crimes Act 1900 (ACT), ss 345, 428E
Mental Health (Treatment and Care) Act 1994 (ACT), s 68

Harriman v The Queen (1989) 167 CLR 590 cited
Pfennig v The Queen (1995) 182 CLR 461 considered
Hoch v The Queen (1988) 165 CLR referred to
S v The Queen (1989) 168 CLR 266 referred to
Gipp v The Queen (1998) 194 CLR 106 discussed
Wilson v The Queen (1970) 123 CLR 334 cited
R v Bond [1907] 2 KB 389 cited
O’Leary v The King (1946) 73 CLR 566 discussed
Martin v Osborne (1936) 55 CLR 367 referred to
R v Tsingopoulos [1964] VR 676 discussed
R v Frawley (1993) 69 A Crim R 208 referred to
B v The Queen (1992) 175 CLR 599 cited
R v Lock (1997) 91 A Crim R 356 discussed
Subramaniam v Public Prosecutor [1956] 1 WLR 965 referred to
Ratten v The Queen [1972] AC 378 referred to
R v Blastland [1986] AC 41 referred to
Walton v The Queen (1989) 166 CLR 283 referred to
R v Bedingfield (1879) 14 Cox CC 341 considered
Vocisano v Vocisano (1974) 130 CLR 267 referred to
R v Mankotia [1998] NSWSC 295 applied
R v Polkinghorne [1999] NSWSC 704 applied
Pollitt v The Queen (1992) 174 CLR 558 considered
Bannon v The Queen (1995) 185 CLR 1 applied
BRS v The Queen (1997) 191 CLR 275 referred to
Shepherd v The Queen (1990) 170 CLR 573 applied
Edwards v The Queen (1993) 178 CLR 193 cited
Davies v Director of Public Prosecutions [1954] AC 378 referred to
Lane v The Queen (1996) 66 FCR 144 applied
R v Kendrick [1997] 2 VR 699 distinguished
R v Baskerville [1916] 2 KB 658 cited
Ridley v Whipp (1916) 22 CLR 381 referred to
R v Kerim [1988] 1 Qd R 426 referred to
R v Kalajzich (1989) 39 A Crim R 415 referred to
Doney v The Queen (1990) 171 CLR 207 referred to
R v Pisano [1997] 2 VR 342 referred to
R v Lewis [1998] NSWSC 408 cited
R v Bui (unreported, New South Wales Court of Criminal Appeal, 5 December 1996) referred to
R v Spedding (unreported, New South Wales Court of Criminal Appeal, 11 December 1997) referred to
R v Abdallah [1999] NSWCCA 380 referred to
R v Teitler [1959] VR 321 applied
Mraz v The Queen (1955) 93 CLR 493 applied
Stokes v The Queen (1960) 105 CLR 279 cited
Duff v R (1979) 28 ALR 663 applied
Wilde v The Queen (1988) 164 CLR 365 referred to
Glennon v The Queen (1994) 179 CLR 1 referred to
R v Checconi (1988) 34 A Crim R 160 cited
Ahern v The Queen (1988) 165 CLR 87 considered
R v Pektas [1989] VR 239 referred to
R v Masters (1992) 26 NSWLR 450 referred to
Tripodi v The Queen (1961) 104 CLR 1 cited
R v Jackson (1987) 11 NSWLR 318 applied

Osland v The Queen (1998) 159 ALR 170 referred to
R v Vrany (1979) 46 CCC (2d) 14 cited
R v Baron (1976) 31 CCC (2d) 525 cited
R v Esposito (1998) 45 NSWLR 442 considered
R v Lars (1994) 73 A Crim R 91 considered
R v Mawson [1967] VR 205 cited
Jones v National Coal Board [1957] 2 QB 55 referred to
Re JRL : Ex parte CJL (1986) 161 CLR 342 cited

R v Stalder (1981) 2 NSWLR 9 applied
R v Hamilton(1993) 68 A Crim R 298 referred to
Kesavarajah v The Queen (1994) 181 CLR 230 considered
Sinclair v The King (1946) 73 CLR 316 applied
Webb v The Queen (1994) 181 CLR 41 distinguished
R v Hall (1988) 36 A Crim R 368 considered
Russell v His Majesty’s Advocate (1946) SC(J) 37 distinguished
R v Veverka [1978] 1 NSWLR 478 referred to
Cleland v The Queen (1982) 151 CLR 1 cited

Matters No. AG 55, and AG 64 of 1998

KATHY MARIE McFIE v THE QUEEN and JOHN TERENCE CONWAY v THE QUEEN

JUDGES: MILES, von DOUSSA & WEINBERG JJ
PLACE: CANBERRA
DATE: 11 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

On appeal from the Supreme Court of the Australian Capital Territory

Matter No. AG 64 of 1998 BETWEEN:
JOHN TERENCE CONWAY Appellant
AND:	THE QUEEN Respondent
Matter No. AG 55 of 1998 BETWEEN:
KATHY MARIE McFIE Appellant (by “cross appeal”)
AND:
THE QUEEN Respondent (by “cross appeal”)
JUDGES:	MILES, von DOUSSA & WEINBERG JJ
DATE OF ORDER:	11 APRIL 2000
WHERE MADE:	CANBERRA

THE COURT ORDERS:

That in Matter No. AG 64 of 1998 the appeal against conviction by John Terence Conway is dismissed.
That in Matter No. AG 58 of 1998 the appeal against conviction by Kathy Marie McFie is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

On appeal from the Supreme Court of the Australian Capital Territory

Matter No. AG 64 of 1998
BETWEEN:	JOHN TERENCE CONWAY Appellant
AND:	THE QUEEN Respondent
Matter No. AG 55 of 1998
BETWEEN:	KATHY MARIE McFIE Appellant (by “cross appeal”)
AND:	THE QUEEN Respondent (by “cross appeal”)
JUDGES:	MILES, von DOUSSA & WEINBERG JJ
DATE:	11 APRIL 2000
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

Index

Subject Paragraph

Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 1

Background facts........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 7

The evidence of the accomplices........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 26

The Heldon tapes – exhibit 64........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 53

The coffee incident........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 58

Corroboration evidence 65

Conway’s appeal against conviction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 68

Consideration of the coffee incident........ ........ ........ ........ ........ ........ ........ ........ ........ .. 71

(a) The coffee incident as propensity evidence........ ........ ........ ........ ........ ..... 74

(b) The coffee incident as hearsay........ ........ ........ ........ ........ ........ ........ ..... 108

(d) The trial judge’s directions concerning the coffee incident........ ........ ..... 158

The Heldon tapes and other “relationship evidence”........ ........ ........ ........ ........ ........ 172

The accomplice warning 188

The directions regarding corroboration........ ........ ........ ........ ........ ........ ........ ........ ... 210

The co-conspirator rule …………………………………………………………244

The trial judge’s interventions in the cross-examination of McFie........ ........ ........ ..... 262

McFie’s appeal against conviction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 277

The rejection of evidence of Lauren Taylor........ ........ ........ ........ ........ ........ ........ ..... 279

The directions as to character........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 285

Fitness to stand trial........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 291

Contamination of the jury........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 304

The direction as to loss of memory........ ........ ........ ........ ........ ........ ........ ........ ........ . 308

Failure to put defence case........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 312

Conclusions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 317

These reasons concern appeals arising out of the convictions of John Terence Conway (Conway) and Kathy Marie McFie (McFie) for the murder of Ulrike Conway (the deceased) at Canberra on or about 3 May 1997, following a trial before a judge and jury. The appeal against conviction by McFie was instituted by her filing a “notice of cross appeal” in an appeal instituted by the Crown against the sentence imposed on her.
The appeals against conviction by Conway and McFie were argued before this Court at the same time as the Crown appeal against McFie’s sentence, and appeals against sentence instituted by Conway, Barry Steer (Steer) and Daniel Scott Williams (Williams). Steer and Williams had pleaded guilty to the murder of the deceased, and been sentenced before the trial of Conway and McFie.
The members of the Court are agreed as to disposition of the appeals against conviction, but are divided as to the disposition of one of the appeals against sentence. For this reason the Court proposes to deliver joint reasons for judgment on the two appeals against conviction, and separate reasons for judgment on the four appeals against sentence.
Steer and Williams confessed to having carried out the murder by entering the deceased’s home late at night and administering fatal injections of heroin to the deceased. They told the police that they had done so at the request of Conway and McFie, for an agreed fee of $15,000, part only of which had been paid at the time of the murder. Conway was at the time a serving officer in the Australian Federal Police (AFP). The deceased was his estranged wife. Conway and McFie were lovers. Steer and Williams were sentenced by Crispin J on 16 October 1997. Each received a determinate sentence of eighteen years with a non-parole period of twelve years. His Honour indicated that but for the cooperation provided and promised to the authorities by Steer and Williams, he would have imposed in each case a sentence of twenty-seven years with a non-parole period of eighteen years. Steer and Williams promised to cooperate by giving evidence against Conway and McFie in accordance with recorded interviews with the police given in August 1997.
Conway and McFie pleaded not guilty. After a trial before Gallop J and jury lasting seven weeks, Conway and McFie were found guilty. Conway was sentenced to imprisonment for twenty-four years with a non-parole period of eighteen years, and McFie was sentenced to imprisonment for twenty years with a non-parole period of twelve years. At trial some one hundred and three witnesses gave evidence. Steer and Williams gave evidence for the Crown. Conway and McFie each gave evidence in their own defence denying any involvement in the murder. Late in the trial, in the cross-examination of McFie by counsel for Conway the proposition was put to her that she alone had struck a contract with Steer and Williams to murder the deceased, and McFie denied it.
The grounds of appeal against conviction by Conway and McFie include issues as to the admissibility of evidence (including on the ground of relevance), the admission of evidence said to be unfairly prejudicial to the accused, and the directions of the trial judge about the evidence of accomplices and corroboration. To understand the grounds of appeal it is necessary to refer to the evidence in some detail.

Background facts

The following background facts established by evidence at the trial were not disputed. Conway and the deceased met in 1986, and not long after that Conway moved into the deceased’s home at 35 Gollan Street, Evatt, in the Australian Capital Territory. That was the house in which the murder was to take place. They were married on 3 August 1991, and had one child, Alexander, who was aged seven at the time of the deceased’s death.
Conway worked in the traffic division of the AFP. He met McFie in the course of his police duties in July 1996 when he stopped her car and spoke to her about excessive smoke emanating from the vehicle. Conway gave her his mobile phone number and invited her to contact him when she found a replacement motor for her car. He offered to assess the mechanical condition of the replacement and to find out whether it was stolen. McFie telephoned him a couple of days later and spoke to him about a motor. They met shortly afterwards and became friends. Some six weeks later Conway told her about his wife “Ricky” and son. In August 1996 Conway and McFie commenced an intimate sexual relationship which continued thereafter. Not long afterwards the deceased telephoned McFie. It seems she dialled a number she found on Conway’s mobile phone, to identify whose number it was. The deceased introduced herself as Conway’s wife, and informed McFie that Conway had moved back into the marital home. The two maintained constant telephone contact for the next four months. On 31 December 1996 McFie met the deceased at 35 Gollan Street. She had spoken with the deceased many times on the telephone before they actually met, and the deceased invited McFie to visit her at her house. McFie became a regular visitor thereafter at the house, and the deceased would ring her nearly every day. McFie, in her evidence, said that she observed that Conway’s matrimonial relationship was unstable, and said that Conway had also told her that. In a statement to the police given on 11 June 1997 McFie said that Conway had told her that there were problems in the marriage due to the deceased’s alcohol problems, and that the deceased was aggressive towards Alexander.
The relationship between Conway and McFie developed into a close one, unbeknown to the deceased. McFie’s evidence indicated that by mid-February 1997 she had become committed to Conway, and was willing to do anything for his benefit. She said in evidence that she hoped to marry him. At the time of the murder, Conway was aged 42 and McFie 41 years.
Steer and Williams were younger. Williams was aged 21 and Steer 29.Steer, Williams and McFie lived in the Stuart Flats, Griffith, in the Australian Capital Territory. McFie and Steer lived in one block occupying Flats 2 and 6 respectively, and Williams lived in a block of flats opposite to them. Williams moved into the flats approximately four years before the murder, and met McFie about two months thereafter.
Williams was unemployed, and derived income from unemployment benefits and selling heroin packages. He was a heroin addict at the time of the murder and had been for some three or four years. He described his habit as being “one of the biggest on the street”, using a gram and a half of heroin every day. At one stage Williams’ mother, through whom McFie met him, was living with Williams in the flats. McFie would visit Williams in his flat and vice versa.
Williams met Steer when Steer moved into the flats in February 1997. Steer was not a user of heroin but had a substantial cannabis habit. He was also unemployed, in receipt of a pension for a longstanding scoliosis condition. Steer and Williams gave evidence that they became good friends, and in the words of Williams, they were “as thick as thieves”. They had daily contact, would go into Civic together to talk to people and “to score”. In April 1997 both Steer and Williams were subject to periodic detention orders.
Steer and McFie met shortly after Steer moved into the flats. About two weeks after Steer met McFie, he saw her in the company of Conway at the flats, and McFie later introduced Steer to Conway. Steer gave evidence that he saw Conway frequently at the flats, either driving an accident investigation police vehicle, McFie’s Sigma, or a white four-wheel drive vehicle (which Conway owned). By March 1997 Steer was discussing with McFie and Conway his (Steer’s) four year old son who lived with Steer’s estranged wife. He discussed with them his proceedings in the Family Court over access, which proceedings led in April 1997 to Steer being granted an order for limited access.
The undisputed evidence was that Conway’s relationship with the deceased had been an unhappy one for a considerable time. The police had been contacted on a number of occasions to attend 35 Gollan Street to intervene in disputes. These calls had been made to the police by various people including the deceased herself.
In 1996 Conway left his wife, but returned to 35 Gollan Street soon after the sexual relationship with McFie had commenced. On 11 March 1997 Conway again moved out of 35 Gollan Street. Over the ensuing weeks he visited the home most days to see Alexander. He told the police on 7 May 1997 that Alexander and the deceased were arguing a lot and more conflict arose between Conway and the deceased. On 2 April 1997 an argument developed between the deceased and Alexander, which led to physical contact between them. Conway intervened and told the deceased he was taking Alexander as he considered Alexander would be better off with him. Conway took Alexander to McFie’s parents home where he and Alexander lived with McFie.
Conway lodged a domestic violence order application on behalf of Alexander against the deceased, and an interim order was made. That order was served on the deceased on 4 April 1997. Conway also lodged a Family Court application returnable on 14 April 1997. That application was heard on 23 April 1997 by the Family Court. The deceased was represented at the hearing by a solicitor. An interim order awarding custody of Alexander to the deceased was made. Alexander returned to live with the deceased that day. Conway was given what he referred to in evidence as “visiting rights” on weekends. He was very upset with the ruling by the Family Court. Steer gave evidence that in one of his discussions with Conway, Conway told him that he did not think he received a fair hearing or was really listened to. Steer described Conway as being “disgruntled”.

On 3 April 1997 the deceased lodged a complaint with the AFP against Conway accusing him of assaulting her during the events of the evening of 2 April 1997, but she withdrew the complaint on 7 April 1997, telling the investigating officer that she did so as she thought it would improve her prospects of gaining access to Alexander.
When Alexander returned to live with the deceased, Conway moved into McFie’s flat. On 25 April 1997 Conway spent at least most of the day at 35 Gollan Street with the deceased and Alexander, and an incident, referred to during this appeal as “the coffee incident” occurred. That incident is not common ground, and is discussed below.
Evidence from a number of sources indicated that the deceased was extremely depressed about Alexander and the breakdown of her marriage during Saturday 3 May 1997. Alexander had been collected by Conway for weekend access on the afternoon of Friday 2 May 1997. A transcript of messages recorded at Conway’s mobile phone message bank on 3 May 1997 disclosed that at 3.28pm the deceased left a message for Conway as follows:
“I know you never sort of answer your messages, but I hope to God you get this one. You’ve won him, you can have him, you and Kathy can have him, I’ll be dead tomorrow. I’ve had enough (crying). I’ve had enough John, I’m not going to let you put me through this any more. Bye, I love you.”
At 3.39pm the deceased left another message:

“John, I would’ve liked to have spoken to you in person. Unfortunately, it’s impossible. I just want you to know (crying) even though all that you’ve done, I still love you, and always will, and I’ll take that up to heaven with me. Thank you. Bye.”

At 3.44pm there was yet another message:
“Hi honey. I call you honey because it’s the last time I’m talking to you. Um, I’m going to join Dad, I can’t um, live like this any more.”
Conway provided these messages to the police in the course of their inquiries shortly after the murder, but omitted to inform them that the deceased had also left messages on his voice-mail at work threatening him with trouble. Conway claimed that he had forgotten about them.
There was also evidence that at 4.30pm the deceased went to the house of her next door neighbour, Mrs Noordhof, and spoke to her student son, Quentin. She asked for a rope saying she wanted to hang herself, and on being told that there was no rope, she asked for a tie which Quentin gave her. Quentin was alarmed and enlisted the aid of another neighbour, Chris Bell. They went to 35 Gollan Street but received no answer to their knocking at the door. Quentin went to the home of other neighbours, Mr and Mrs Dillon. Mr Dillon rang the police, and Mrs Dillon and her son Craig went to 35 Gollan Street. This time the deceased answered the door. She replied “Go away. Can’t a person die in peace”. As a result of the communication with the police, a mobile patrol arrived at 35 Gollan Street, and were admitted to the house by Mrs Dillon. The deceased was sitting at a dining room table, very distressed. She was crying. She said there was no need for the police to be there. She told the police officer she was upset that her marriage to Conway had failed and was depressed about Conway’s relationship with another woman. A short time later a mental health crisis team arrived, and remained from about 5.35pm to 6.40pm. The crisis team found the deceased to be pleasant and cooperative. She said she did not think their presence was necessary. Before the team left, she informed them that she had no plans or thoughts about harming herself, and that the “crisis had passed”. However, during their discussions she informed them that she had earlier weight tested a rope fixed to a light fitting with a view to hanging herself, but the rope had pulled away. She had not persisted. She said she had coiled up the rope and put it in a cupboard. The police never found this rope. The deceased also told the crisis team about the domestic violence within her marriage, that the police had attended her residence on a number of occasions over the previous two months because of domestic violence. She told them that her husband and McFie were having a relationship. She said that she had formed a friendly relationship with McFie and had phoned her a number of times and spoken to her at length about her marriage.
On the afternoon of 3 May 1997 Conway was rostered to begin work at 4.00pm. In evidence he said that he began mobile patrol just before 5.00pm, and shortly thereafter heard on the police radio that there was a “check welfare” at 35 Gollan Street. He went to the Woden Police Station to check the computer to find out about that call. The Crown led evidence that AFP records indicated that Conway accessed the computer at Woden at 5.05pm and ascertained that Sergeant Sly had attended 35 Gollan Street. Conway went to the Belconnen Police Station and waited there to speak with Sergeant Sly, which he did at about 6.20pm, and was told briefly of the events at 35 Gollan Street. Sergeant Sly reported on the deceased’s depressed state and of her threatening to commit suicide. Conway said in evidence that he told Sergeant Sly that he did not consider the matter serious, and that her conduct “was probably just another attention seeking exercise”.
Evidence from a pathologist, and a toxicology report, established that the deceased died from a massive overdose of heroin administered by injection in the inner side of the left elbow. The pathologist found no other evidence of injection or intravenous administration of drugs. The deceased’s body was found in her bed late in the afternoon of Sunday 4 May 1997 after family members and her neighbours had been unable to make contact with her during the day. There was no evidence at the scene to suggest that the deceased had committed suicide, and suicide was not advanced as a possibility by the defence at trial. There was also no evidence of forced entry to the house.
It is against this factual background that the evidence disputed by Conway and McFie at trial, and the matters now the subject of appeal, fall to be assessed.

The evidence of the accomplices

Williams in his evidence-in-chief spoke of his acquaintanceship over three or four years with McFie at the flats. He said McFie was aware of his drug addiction. He frequently borrowed small sums of money from her to satisfy his habit, and he always paid her back. He said that he was introduced to Conway by McFie about six weeks before the murder, and had seen him on a few occasions after their first meeting. He described an occasion about three weeks before the murder when McFie had spoken to him about bicentenary number plates on the back of a yellow Sigma, which plates Williams agreed to give to McFie because McFie said Conway was a collector of number plates. Steer and Williams went to the vehicle which was parked at the flats, and removed the plates. Steer left, and Williams and McFie returned with the plates to McFie’s flat. McFie said to him that Conway wanted to talk to him saying “it’s rather important”. Williams inquired why and McFie said she could not say anything. Once inside McFie’s flat, McFie went off to Alexander in a bedroom leaving Williams and Conway together. Conway confirmed that he wished to speak with Williams. Williams’ evidence continued:
“A few things started getting said, then it started coming up, ‘Well I want something done about my missus’. I said, ‘Yes like what?’ and he goes, ‘Well I want her to be knocked’. ‘Yes, really, you’re kidding us’. Me saying that. ‘Well alright, I’ll see what I can do. Yes, not a problem, yes, yes alright’. I’ve left. I’m spun out about it. I’ve gone home, I’ve grabbed a couple of bottles.”

Williams said he “had a couple of cones” and went to Steer’s flat, reporting his conversation with Conway.

About three days later Williams met McFie and Conway whilst Conway was lifting boxes up to McFie on her balcony. On that occasion Conway said to him “keep it to myself. If you’re going to speak to somebody, make sure it’s the person who will be able to do it”. Conway also said “I’ll need it done soon”. Williams gave evidence that in the next day or two there was a further conversation at which both Conway and McFie were present when the question of money was discussed, and Williams nominated a figure of $15,000. At some point in the discussions, the timing of which Williams could not specify, Conway said to him that he wanted it to look like an overdose of heroin given by needle.
The day after the sum of $15,000 was mentioned Williams said a further conversation occurred in McFie’s flat between him, Conway and McFie. McFie said they had the money and “it has to be done by this Saturday”. Williams protested that he had not organised it and he would be at the detention centre. McFie said:
“No, you had better hurry up because this is the perfect time to do it. Like the eldest son, he’s going to the coast. Alexander’s going to be here and I’m going to be babysitting. John’s going to be at the police station, that’s his alibi.”
On Saturday 3 May 1997 Williams was at the detention centre but was “breached” at lunchtime as he had trashed his cell. He was discharged and walked back to the flats. He was met by McFie who said “it’s got to be done tonight”. Williams again said that he had not made arrangements. McFie asked “have you got the heroin for her”. Williams said he had not. McFie said “I’ll have to get some”. She then showed Williams $3,000 in cash. Williams explained that he would have to buy heroin, and prepare it. McFie offered to drive him to a supplier, and did so. Williams says he and McFie drove to Eaglehawk Caravan Park. (Evidence was given by the witness Roman Ulanowicz, an acquaintance of Williams, that he accompanied them on this trip). At the Caravan Park, McFie produced a further $500 with which Williams “scored two halves” for $450, and pocketed the other $50.
Williams gave evidence that during the journey he said to McFie “I don’t want to do this, alright. It’s not my scene”. McFie, however, urged him to continue.
Williams gave evidence that he spoke to Steer, who agreed to participate. Steer had been at the detention centre on 3 May 1997, but returned to the flats late in the afternoon. Williams spoke to him when he returned. Steer arranged to borrow the car from his sister, Ms Joanne Stanger. Williams then went to McFie’s flat where she gave him a key to the back door of the deceased’s house, a plan of the interior of the house, and a photograph of the deceased. The address was written on the back of the map. A few minutes later McFie came to Williams’ flat and handed over an envelope containing $3,000. Williams gave $1,000 of this money to Steer, the arrangement being that he who injected the heroin would receive a greater share of the fee. Williams estimates that this occurred between 8.30pm and 9.30pm. He and Steer then left in Ms Stanger’s car to visit Williams’ brother, Stephen Redfern, at his sister’s place at Yarralumla. Williams gave his mother, who was there, $200 for an electricity bill and his sister $600 to repay a loan.
Williams, Steer and Redfern then drove into Civic, bought three caps of heroin which were shared by Redfern and Williams, and Redfern was dropped back at Yarralumla.
Further preparations were then made for the crime. Beanies were purchased from the Woolworths Supermarket in Manaka, to create makeshift balaclavas. Williams obtained three syringes from his house and two pairs of gardening gloves. Steer and Williams then set off for 35 Gollan Street, with Steer driving. Williams said that he went to sleep on the way, apparently due to the amount of drugs that he had consumed that day. On their arrival at Evatt, the car was parked in a cul-de-sac near Gollan Street. Williams used one of the three syringes to inject himself with more heroin. They then checked the house, returned to the car to obtain the syringes, balaclavas and gloves, then entered the backyard of 35 Gollan Street. Williams fell asleep in the backyard and was woken by Steer who suggested that they ring McFie and have her ring the deceased to check that she was at home. They drove to nearby shops where Steer rang McFie. They returned to 35 Gollan Street. They heard the telephone ring and a light was turned on. The light was then switched off. Steer and Williams waited approximately twenty minutes before they entered the house by the back door, using the key supplied by McFie.
They were met by the deceased in the hall. Williams requested that she return to her bed, which she did. He asked her to lie down and put out her left arm. She complied. She said she had children and money, but the two proceeded with her execution. Williams administered a syringe of heroin whilst Steer held his hand over her mouth in case she screamed. A short time later the deceased began to breathe in an erratic manner and Williams administered a second injection through the same puncture mark as the first injection. Steer and Williams waited for about one hour before leaving the house, helping themselves in the meantime to drinks from the refrigerator. They left by the front door. Williams said he left the front door open, although Steer gave evidence that he shut it as they left, and it was found shut the following day.
Williams said that he threw away the hypodermic syringes, and the beanies and gloves, but told police in his first interview that he could not remember where. Steer was more specific as to where they were left (on following up statements given by Steer, the balaclavas and gloves were recovered by the police). They returned to the flats at approximately 1.00am. Williams returned the photograph, map and key to McFie. Ms Stanger’s car was returned to her at approximately 3.00am.
Williams gave evidence that on 4 May 1999 he searched advertisements in the newspaper for a motorbike, and telephoned his mother to have her drive him to inspect motorbikes for sale. On 5 May 1999 he said he purchased a motorbike for $900 with part of the money received from McFie.
Williams said that a few days after the murder McFie asked that Steer and Williams pretend they did not know her, as she and Conway were being questioned closely by the police.
Williams recounted a motor accident that occurred some weeks after the murder near the flats. He attended the scene as a bystander. Conway was there in the course of his duties as a traffic police officer. Conway said to him “Don’t look at me, don’t talk to me”. (Other evidence established that this event happened on 18 June 1997).
Steer gave a substantially similar account of events at 35 Gollan Street on the night of the murder. As to events leading up to that occasion, he gave evidence of his initial meeting and acquaintanceship with both McFie and Conway in the flats, and of his discussion about his proceedings in the Family Court with Conway. He recounted an occasion when, upon Conway’s mobile telephone ringing, McFie said it was Conway’s wife who had been trying to contact them all day, “just harassing us”. Conway described the deceased as an alcoholic who did not take care of Alexander. He was generally disparaging of her as a mother.
Steer recounted an occasion when McFie came to Williams’ flat. Ulanowicz and Samantha Donaldson were there. McFie asked Ulanowicz if she could “score some heroin” and asked for two caps for $100. Ulanowicz said he could sell her heroin. McFie asked how she could use heroin other than by injecting it. She asked whether it could be drunk to which Ulanowicz replied that it could.
Steer said McFie came to Williams’ flat when he was present about two weekends later. On that day Redfern had been at the flat having just been released from gaol. Other evidence established that he was released on 11 April 1999. She asked if Redfern was back, saying that he had borrowed her car about forty-five minutes ago. Redfern later returned, and displayed three caps of heroin. Shortly afterwards Williams went up to McFie’s flat.
Steer then spoke of the number plate incident recounted by Williams, which he said occurred after the two events discussed above (i.e. the evidence of the supply of heroin to McFie). He said that after the plates had been removed and handed to McFie, Williams and McFie went back to McFie’s flat whilst he returned to Williams’ flat. Some twenty minutes or so later Williams returned to his flat and asked Steer how hard it would be to kidnap somebody. When asked why he inquired, Williams said “Because John just asked me if I could kill his wife”, and that Conway had offered him $15,000. Steer says that he replied that it would be too hard, and there would be a risk of too many people observing the event. The possibility of Steer assisting in the commission of the crime was discussed but Steer was non-committal. He did not discuss the topic again with Williams until the day of the murder, and it was not until that day that heroin was mentioned to him as the means of committing the crime. Steer estimates that the number plate incident was two weeks before the murder.
On 3 May 1997 Steer was released from the Queanbeyan Police Station at about 4.00pm, and collected by Ms Stanger who drove him to the flats. As they arrived, Williams ran over to him and asked if Steer could borrow his sister’s car, which he did. After dropping off his sister, Steer returned to the flats and Williams informed him that he had spoken to McFie, and she had told him that “if we’re going to do this it has to be done tonight”. Williams said that the deceased had been assessed as being suicidal and that it would be a good idea to kill her and make it look like suicide. Williams said that he was going to give her an overdose of heroin, and asked Steer if he would help. “All I want you to do is stop her from screaming and that’s it. If you do that I’ll give you $6,000”. Williams left, returning shortly afterwards with an envelope containing $3,000, of which $1,000 was given to Steer. Williams said that he had misplaced half the heroin that he had got for the job and that it was necessary to go to town to get more.
Steer gave evidence of their trip to Yarralumla and then of the trip to Civic with Redfern when more heroin was acquired. After dropping off Redfern they returned to Williams’ flat, prepared the heroin, acquired beanies from Woolworths and gloves from Williams’ flat. Steer said that before they left for Evatt, McFie came to Williams’ flat to ask if it would be done tonight. The paraphernalia assembled by Steer and Williams was on the table, including the photograph, key and plan which Williams had earlier obtained from McFie. Steer asked for and obtained McFie’s telephone number in case anything went wrong and they needed to contact her.
Steer then described the commission of the murder.
Steer gave evidence that some days after the murder the police spoke to him at the flats, and asked questions about the relationship between Conway and McFie. Steer told the police that he did not know them very well. When the police left, he went to McFie’s flat but she was away. The following day Steer saw McFie and reported the police visit. McFie asked Steer to keep a low profile.
Steer said that in the weeks following there were several communications between himself and McFie, or himself and Conway, about the payment of the outstanding portion of the fee. About ten days after the murder McFie told Steer that as Conway was being investigated by the police, and as his bank accounts were frozen until after the inquest, Steer and Williams would have to wait until then before being paid. At about the same time Steer said he had a conversation with Conway in the carpark of the flats when Conway said “What went wrong? Why didn’t you make it look like suicide? You were told to make it look like suicide”.

About two weeks after the murder Steer said he told McFie that he was broke, and again asked that they be paid. McFie reiterated that Conway’s assets were frozen, but later gave him $50.
About three weeks after the murder Conway and McFie moved from the flats to 35 Gollan Street. Steer said that on one occasion he and Williams went to 35 Gollan Street and he left a note on the windscreen of Conway’s car saying “Kathy, ring me”. The following morning McFie did so. Steer asked for money. She said that neither she nor Conway had money but they would contact Steer when they had some.
Steer gave evidence that McFie contacted him several days later, on 18 June 1997, and they made arrangements to meet at the Dickson Shell Service Station which they did later that evening. Williams was also present. Steer says that McFie got into the back of their car, and stated amounts which she had already paid them, saying that she still owed them about $11,000. She gave them $200 ($100 each), and said that she could not give any more until after the inquest.
On 21 June 1997 Ms Stanger was pulled over by the police for an alleged driving contravention, and subjected to breath tests. She reported that event to Steer, saying that her car had been searched for drugs. Steer said he then reported that conversation to McFie, saying that he did not think it was a normal run-of-the-mill event. He said McFie asked for his sister’s details and the registration number of the car, and said she would pass them on to Conway to get him to look into it for Steer. Steer says she wrote down the details on a piece of paper, which he identified in evidence. (The piece of paper had been found by the police in a drawer at 35 Gollan Street after Conway and McFie were arrested).
Steer gave evidence as to a visit which he and Williams made to 35 Gollan Street at 4.00am on 28 July 1997, after their arrest. This attendance was made at the request of the police, with Steer fitted with a listening device. Steer identified the voices of McFie and Conway recorded during that conservation, later transcribed and admitted into evidence as Exhibit 17. Further reference is made to this conversation later in these reasons.

The Heldon tapes - exhibit 64

After the arrest of Conway and McFie, a search of 35 Gollan Street discovered thirty-eight tapes of telephone conversations recorded by McFie between February and April 1997. In evidence McFie said that she made the recordings as she was uncertain what was happening at 35 Gollan Street in that she was receiving conflicting accounts from the deceased and from Conway about their matrimonial relationship. The tapes became known at trial as the “Heldon tapes” - as Constable Heldon was the person who listened to them and selected sections said to be relevant to the case. Almost all the conversations recorded were between McFie and the deceased, although there were three conversations recorded between McFie and Conway, and two between McFie and Alexander.
By way of background to the relevance of these tapes, in the course of police inquiries shortly after the murder, Conway was interviewed at length on 7 May 1997, and McFie gave a statement to the police on 11 June 1997. The effect of their statements was to deny any sexual relationship, and to describe the role of McFie as a babysitter for Alexander.
The selected portions of the recorded conversations identified by Constable Heldon were led in evidence to show the nature of the relationship between McFie and the deceased, and McFie and Conway, and also to show that McFie and Conway in their dealing with the deceased had acted in tandem in a way that would cause her harm in the proceedings over Alexander. In a number of the recorded conversations McFie appears to show concern and express support for the deceased. However, the tapes disclose that McFie then reported the conversations to Conway. In one conversation McFie appears to disclose the lack of genuineness in her relationship with the deceased by stating to Conway that she “had to speak to her (the deceased) and be civil to her because it’s the best thing to do under the circumstances”. The tapes also record a conversation, probably in February 1997, between Conway and McFie in which each expresses love for the other.
The recordings also show that McFie used her relationship with the deceased as a tool to the advantage of Conway, in that she used the friendship as a means of getting information to report to Family Services regarding Alexander. In tapes dated 23 and 24 March 1997 McFie is recorded as making a report to Family Services about the deceased’s alleged mistreatment of Alexander, yet in subsequent conversations between McFie and the deceased, McFie is recorded as denying her report to Family Services, seeking to place the blame for the report instead on one of the deceased’s neighbours. In the same conversation the deceased put to McFie that the deceased’s neighbour, Mrs Noordhof, had suggested that the most likely source of the report to the Family Services was from Conway and McFie. McFie vehemently denied the accusation. The deceased said that she believed McFie, and consoled her for the “lies” that had been said about her by the neighbour.
The Heldon tapes record that on one occasion McFie advised Alexander to ring Family Services, and she told him to make a complaint about his mother, by saying “Mummy’s been drinking. She’s passed out and won’t wake up”. She told Alexander on another occasion that “one day you might even have your own pool and you won’t have to worry about Mummy, how does that sound”, and that it “doesn’t matter whatever Mummy says”.

The coffee incident

Evidence from a number of sources established that early on the morning of 25 April 1997 Conway went to 35 Gollan Street. Conway said he did so having received an early morning telephone call from the deceased requesting him to come over and sort things out. That such a request was made is confirmed by an entry made by the deceased in a diary that she was keeping. When Conway arrived, coffee was prepared. The Crown led evidence to the effect that the deceased complained to a number of people that day and shortly afterwards that her coffee tasted bitter and contended that the proper inference from the evidence was that Conway had placed heroin in the deceased’s coffee. It was part of the Crown’s case that the placing of heroin by Conway in the deceased’s drink was part of a plan to make it look as if the deceased was a heroin user so that her subsequent death would appear to be due to a self-administered overdose. The Crown contended that this was part of the mosaic of facts which constituted the joint enterprise of the murderers, and the implementation of that enterprise. The Crown case linked the coffee incident to McFie’s purchase of heroin from Williams, Ulanowicz and Redfern. The Crown also led the evidence because Conway in his record of interview with the police on 7 May 1997 had asserted an account of the coffee incident which suggested that the deceased had in fact put heroin in his coffee, an account which the Crown contended was a material and deliberate lie which provided corroboration of the evidence of Steer and Williams.
In his record of interview Conway told the police that the deceased made him a cup of coffee which he found to be sour. He said he thought she may have put in salt instead of sugar. The deceased went to the toilet, so he went to the kitchen, and made himself another coffee which tasted fine. Whilst he was there he said he found two pieces of paper foil that had been folded fairly tightly on the windowsill. He unfolded them. They looked strange, so he put them in his pocket.
The Crown led evidence that on the evening of 26 April 1997 Conway handed the two pieces of foil to a police officer at the Regional Coordinating Centre of the AFP, requesting that they be registered in the drug register. The entry was marked NOE (no owner established) at Conway’s request, but he informed the officer to whom he handed the foils that he had found them in his home but did not wish to have that fact identified until it was established that the foils contained a drug. Once registered, the foils in the ordinary course were submitted to analysis and showed traces of heroin.
The Crown also led evidence from three people to whom the deceased made complaint about the coffee incident on or about 25 April 1997, and from a police officer to whom she complained on the evening of 27 April 1997. Mrs Skellern gave evidence that she had known the deceased for some time and spoke to her from time to time by telephone. In one conversation the deceased complained that Conway had made her a coffee which tasted funny. She tipped it down the drain, and observed a white powder at the bottom of the cup. She said she spoke to Conway about the coffee and he said it would not hurt her, but would settle her down, relax her. She said she found a bottle in Conway’s pocket with no label on it. Mrs Dillon, a neighbour, said that late in the afternoon of either 25 or 26 April 1997 the deceased had told her that Conway had made her a cup of coffee earlier in the day, and put something in it. She said Conway said he put something in it to make her relax. The deceased told Mrs Dillon that Conway had attempted to poison her. Mrs Dillon told the deceased to ring the police. Mrs Noordhof, another neighbour, gave evidence that the deceased said to her that Conway had made her a cup of coffee and it tasted bitter, revolting, and she tipped it out. She said it had bubbles in the bottom of it. Conway then got her a glass of water which also tasted revolting. When she tipped that out it also had bubbles in it. Mrs Noordhof said the deceased said she later found a bottle in Conway’s pocket, the bottle being fitted with a dropper. She said Conway said it contained relaxing drops.
Constable Dix was the police officer who received the deceased’s complaint on 27 April 1997. He gave evidence that the deceased telephoned the police at 9.45pm. She said Conway had been over to her house and they were having coffee. She left the room briefly and when she returned her coffee tasted bitter. She looked at it and it appeared as though something had been dissolved in it. She said she asked him what he had put in it, and he said nothing had been put in the coffee. She then left the room and went into the kitchen to tip the coffee out. She said as she tipped it out, it appeared in the bottom of the cup as though something had been dissolved in it. She challenged Conway about it, and he admitted that he had put something in the coffee, saying “it will help you relax”. The deceased told Constable Dix that there was a bottle of a certain brand of relaxant in his pocket. She did not identify the relaxant. Constable Dix asked her how she knew it was there and she said “I just know”.
The deceased’s diary entry for 25 April 1997 was admitted into evidence. It reads:
“25.4.97
I rang John at 6.30am & asked John to come over for coffee. He came over just aft 7am. I made coffee, we sat in lounge room. I went out to get a tissue, then came back & had 2 mouthfulls of coffee said I was feeling drowsy, tipped coffee out & saw froth inside cup. Said to John, you druged me, he said no, go & lie down, so I did brought me in glass of water, had mouthfull, tasted bitter like coffee. felt pocket of his jkt, felt a sm. bttle. asked him to show me bttle finally showed me. was a Sm. brown bttle with dropper. said was nose drops. Eventually admited putt it in drinks. wanted me to calm down so we could talk.”

That entry was put to Conway in the course of his police interview on 7 May 1997. Conway said that he was aware that the deceased had mentioned to others, including her solicitor, that he had tried to drug her, but denied the accuracy of the entry, saying that he did not believe it to be true.

In his interview with the police Conway said that he had taken the foils from the deceased’s kitchen merely out of curiosity to know what was on them. However, in his evidence at trial he said that he took them as he thought they might be useful in the Family Court proceedings. When challenged as to the inconsistency in these statements, he admitted that he had lied to the police as to his state of mind when he found the foils.

Corroboration evidence

Steer and Williams were cross-examined as to inconsistencies between their respective accounts given in-chief, and as to inconsistencies between their evidence-in-chief and earlier statements given to the police. The discrepancies were, however, as to matters of timing and detail rather than the general nature of the events described, and their sequence. Their evidence, if accepted by the jury, provided an ample basis to support the Crown case that Steer and Williams had been procured by McFie and Conway to commit the murder, and that all four of them were acting in pursuit of a common purpose.
Both Steer and Williams were convicted persons. Both were drug users, Williams, on his own admission, at times being ill and confused by his intake of heroin. Moreover, they were accomplices, and for that and the other reasons their evidence required special care. In his summing up, the trial judge gave a warning as to the need for that care, but the terms of that warning are the subject of one of the grounds of appeal. The trial judge also directed the jury on evidence that could provide corroboration of the evidence of Steer and Williams. Again, those directions are the subject of other grounds of appeal.
The trial judge identified the following evidence which he instructed the jury could amount to corroboration:

(a)the evidence from a police witness that the bicentenary number plates were found after the murder in the garage at 35 Gollan Street. (After saying to the jury that he would identify for them evidence which could amount to corroboration, the trial judge referred to this evidence, to the evidence of conversations about the number plate between Williams and McFie and to the evidence that Steer and Williams removed the number plate. His Honour then added: “Now, it does not corroborate the murder, but it is some evidence of some sort of relationship between McFie and the two accomplices”);
(b)evidence led from Redfern that about one week after his release from prison, at Williams’ flat, he saw McFie talking with Williams, and then the pair went off to a separate room for ten minutes or so. The trial judge instructed that this was evidence independent of the two accomplices of a conversation in a withdrawn position between McFie and Williams;
(c)evidence of Redfern and Ulanowicz that at Williams’ flat, McFie asked how heroin could be taken. Redfern gave evidence of an occasion when he told her that it could be drunk, smoked, injected or there are other ways that he did not know. Ulanowicz described an occasion when she asked how much she could get for $150, and he told her three caps. Ulanowicz said she then bought three caps from him for $150, saying she wanted it for friends;
(d) Redfern also gave evidence of another occasion when McFie came to Williams’ flat, saying she wanted to buy $300 worth of heroin, and Redfern sold her six caps for $300, giving her three initially, and then a further three after he had been to Civic to acquire them. He said he borrowed her car to travel to Civic. The trial judge instructed the jury that if accepted this was evidence of McFie showing an interest in heroin, it being part of the Crown case that this interest in heroin, and the supply of heroin, was related to the coffee incident on 25 April 1997;
(e)evidence from Ulanowicz that he was at Williams’ flat after the two sales of heroin. Williams returned after apparently visiting McFie’s flat, and reported that he had been asked by Conway to knock off his wife. Ulanowicz described Williams as being “agitated and fidgeting around”;
(f)evidence from Ulanowicz that he travelled with McFie and Williams to Eaglehawk “to score a half” of heroin and that they went in McFie’s car because the heroin was for her;
(g)evidence from Ms Stanger confirming that Steer borrowed her car on the evening of 3 May 1997. She said she had collected Steer from the detention centre, driving him to the Stuart flats where Steer spoke with Williams, and that Steer then asked to borrow her car. The car was returned to her about 3.00am the following morning at which time Williams was in the back seat “totally spaced out”. The trial judge instructed the jury that they might regard that evidence as corroborating the evidence of Steer and Williams that they used Ms Stanger’s car for the purpose of getting to 35 Gollan Street;
(h)The trial judge referred to evidence from several sources of Williams’ “new found wealth” on and shortly after 3 May 1997. Ulanowicz said that he knew Williams was on the dole and struggling for cash, but at Eaglehawk Ulanowicz saw Williams with $800 cash, and later became aware that he had bought a motorbike. Williams’ sister, Mrs Robson, gave evidence of receiving the payment of $600 in cash which Williams counted from a white envelope. On being asked where he got the money from, Williams told his sister it was none of her business and she did not want to know. Mrs Robson also said that on the following day, Sunday morning, Williams came back to her house asking if she could take him to find a motorbike. Williams’ mother gave evidence that on a day in May, she thought a Sunday, Williams paid her $200 towards a light bill, and the following day she took him to buy a motorbike. The Crown also proved in evidence a dealer’s invoice for $900 for the motorbike purchased by Williams on 5 May 1997;

evidence from Redfern that on Saturday 3 May 1997 he had a disagreement with Williams. The following day Williams came to their sister’s home (Mrs Robson’s home). He said Williams had an envelope and there was “a heap of cash” in it. Redfern said that when he asked Williams about the cash, Williams told him to mind his own business. Shortly thereafter he said they travelled to Civic to purchase heroin;

(j)evidence from Redfern that on an occasion after the murder, at the request of Williams, he went to McFie’s flat and told her that Williams wished to see her. She attended Williams’ flat, and Williams asked her for $250. The trial judge drew to the jury’s attention the contrast between that amount and other evidence that in the past he had borrowed from McFie only smaller amounts which varied between $20 and $50;
(k)evidence from Ms Stanger that she had been pulled over by the police who searched her car. She said she reported that incident to Steer. That evidence, together with the note prepared by McFie recording particulars about the incident and Ms Stanger’s car, the trial judge instructed could be corroborative of Steer’s evidence of the relationship between Steer and McFie;
(l)evidence from a telephone tap of a conversation between Conway and McFie concerning Ms Stanger’s encounter with the police. The trial judge instructed the jury that whilst this evidence was “on the margin”, it was evidence of some association between Steer and McFie. (On 23 May 1997, the police received information from a person that Steer had admitted committing the murder, and had introduced Williams to her as “the bloke that done it”. This led to police obtaining warrants for telephone intercepts on 30 May 1997);
(m)evidence about the presence of Williams and Conway at the scene of the motor accident near the flats on 18 June 1997. A video of the aftermath of the accident taken by a television station was adduced in evidence. It showed Williams at the scene. Further, evidence was led of a telephone interception of a conversation between Conway and McFie as follows:

Conway: Without mentioning any names eh guess who I saw at ah the prang?
McFie:Of course.
Conway: Yeah.
McFie: Hm (pause) did you speak to him?
Conway:Ahm as if I didn’t know him.
McFie:Yeah fair enough.
…
McFie:And he came and spoke to you?
Conway: Ah not directly he just made a comment about the quality of the ah merc.
McFie:Oh okay huh God if he had half a brain he’d be dangerous.
Conway:That’s about right.

Conway in his evidence confirmed his presence at the scene, and that he saw Williams. He said Williams made some comment about the accident to which Conway did not respond because he thought Williams was an idiot. Both Conway and McFie were questioned at length in their evidence about why Williams was referred to obliquely in the conversation, and how McFie knew immediately that Conway was referring to Williams. Conway said he was testing McFie, that they had had a conversation several months earlier about how nosy Williams was, and how he was just the sort of fellow who was likely to stick his nose in places. Conway said he referred to Williams in an indirect fashion to see if McFie recalled the conversation. The trial judge instructed the jury that the behaviour of Conway in his conversation with McFie, in not mentioning Williams’ name, could indicate the plain rapport he had with McFie as to who he was talking about;
(n)evidence of the payment of $200 by McFie to Steer and Williams on 18 June 1997. In relation to that incident, there was evidence of a telephone interception of a call made by McFie to Steer late the night before when she said she would catch up with him the next day. There was also evidence of interception of a further telephone conversation in which arrangements were made by McFie to meet Steer and Williams at the service station. There was other evidence of a withdrawal of $200 by McFie from her account at the Credit Union of Canberra on 18 June 1997. Further, the meeting between Williams, Steer and McFie was recorded on video by the police who had them under surveillance at the time of the meeting. In her evidence, McFie confirmed the meeting, but said that she had given Steer only $20, in such a way that Williams could not see her do it. The trial judge instructed the jury that if they accepted the Crown case that she paid Steer and Williams $200 on that occasion, they might think that to be strongly corroborative of the Crown case;
(o)evidence of the 4.00am visit to 35 Gollan Street on 28 July 1997. The actual conversation picked up by the listening device fitted to Steer, together with a transcript was in evidence. About that evidence the trial judge merely instructed the jury:
“You were referred to it and, indeed, it was played only yesterday. It is exhibit 17. At the time Conway handed to Steer a $50 note and that itself is in evidence as exhibit 61, and Conway himself confirmed in his evidence that he had done so. You will consider what was said and what was recorded and it will be a matter for you as to whether you regard what was said and the money being handed over as some sort of corroboration of the story that Steer and Williams had given you.”

In their evidence Conway and McFie said that Conway was not present for part of the conversation, being in the master bedroom. However, repeated references by Steer to “John”, and the sound record of the conversation, are strongly suggestive of the fact that Conway was present for virtually the whole of the conversation, except for a pause near the end when he apparently departed to obtain $50 to meet a request from Steer and Williams for “taxi money” to leave Gollan Street. The conversation commences with Steer informing Conway that he had been interviewed that night by the police, he was in deep trouble, and needed to get out of town:
Steer:I’ve got to get out of town today. I’ve got to get and I want to get and go and kidnap my son and leave this state John. I need you to pay me. I’ve got to John, I’m gonna. John they come around tonight they interviewed me again they know something, okay.
…
I, I really got to go, can you understand what I’m doing John, I really got to go, okay.

Conway:I can understand what you’re saying.
Steer:I need ya, I need you to fix me up mate. I don’t like coming here I, I can’t…

Williams then asks that the light be turned on after which Williams says, with Conway and McFie present, “Oh this what the place looks like”. There is no comment by Conway and McFie about that remark. Steer says that the police said that they know that he was involved in the murder. Williams asked if “we could get a coupla grand or something of yous…”. Steer said that he had panicked and that “I’ve got to go and see you people and get some money”. Conway is recorded as saying “I can get it within a couple of days”. Steer spoke of going to jail for ten, fifteen or twenty years “for murdering this woman”. Steer and Williams then asked for a “taxi fare back”, intimating that they were safe because the taxi which had brought them had dropped them off some distance from the house. Later in the conversation, after Mrs Conway’s murder had been specifically mentioned, and Steer said that the police suspected McFie and Conway of having hired himself and Williams to carry out the murder, the following interchange was recorded:
Conway:I’ll give you a ring.
Steer:Give me a ring.
Conway:I’ll give you a ring later today.
Steer:Yeh.
Williams:So we should be getting our money in the next coupla days.
Conway:Definitely some.
Williams:Some.
Steer:We need at least a coupla grand John you realise that don’t you know you can’t just up and leave like a coupla hundred.
Williams:… (inaudible)…can’t live on the dole…(inaudible)…

and later again:
Williams:Actually how much do yous owe us now?
McFie:Mmh.
Steer:I’m at eleven.
McFie:Mmh four, … (inaudible)… just under. It was four two.
Steer:So you’re saying ten eight.
McFie:Mmh huh.
Steer:Oh well as soon as we can get something like that, that as soon as you, so you’ll ring tomorrow after lunch will you at home and give me a definite answer.
McFie:Mmh huh.
Steer:At what time I can pick some money up.
McFie:Well we’ll have to, we’ll have to do something;

(p)the trial judge referred to the finding of the balaclavas and gloves by the police and instructed the jury that those items were capable of amounting to corroboration about the commission of the offence, but did not prove anything in relation to the complicity of Conway and McFie;
(q)the trial judge reminded the jury of the evidence given by Williams that Conway had said that death should be by overdose of heroin. The trial judge instructed the jury:
“The fact is, you may find, that the death was brought about by an overdose of heroin, the way Williams had been told to do that, that is the way Conway wanted it done, according to Williams, and that is the way it was done, tend, you may think, to corroborate Williams’ story.”; and

(r)the jury were instructed as to the circumstances in which they might treat lies told to the police or in evidence as amounting to corroboration. The jury were referred to the records of interview of Conway and McFie, and reminded of the Crown’s case that Conway had denied the true nature of his relationship with McFie, and denied that he had a sexual relationship with her, a lie to which Conway admitted when giving evidence. Moreover, he admitted that he had asked McFie on several occasions to maintain the lie, which the Crown alleged she had done when interviewed by the police on 11 June 1997. On that occasion her statement effectively denied any close relationship with Conway. The Crown also contended that Conway had lied in asserting that McFie was the deceased’s closest friend. The trial judge also referred to the Crown case that it was a lie when Conway pretended to be surprised when confronted with the deceased’s allegation that he had tried to drug her on 25 April 1997, and to his evidence about his state of mind when he found the foils in the deceased’s kitchen. The jury were reminded that the Crown relied on the Heldon tapes as indicating the untruthfulness of Conway’s description of his relationship with McFie. Finally, the trial judge reminded the jury that the Crown asserted that both Conway and McFie in their evidence lied in the explanations they gave about the discussion with Steer and Williams at 4.00am on 28 July 1997.

Conway’s appeal against conviction

By an amended notice of appeal, filed on the morning of the commencement of the appeal with the leave of the Court, Conway relies upon some eighteen separate grounds of appeal in support of his appeal against conviction.
The grounds of appeal raise for consideration the following general questions:

Did the trial judge err in permitting the Crown to lead evidence of the coffee incident? If that evidence was properly received, were the jury adequately directed as to how that evidence could be used? (Grounds 9, 10 and 11);
Did the trial judge err in permitting the Crown to tender the “Heldon tapes” (exhibit 64) and to lead other “relationship evidence”? If that evidence was properly received, were the jury adequately directed as to how that evidence could be used? (Grounds 4, 5, 6 and 8);
Did the trial judge adequately direct the jury regarding accomplice evidence and corroboration? (Grounds 7, 14, 15, 16 and 17);
Did the trial judge adequately direct the jury regarding the “co-conspirator rule”? (Grounds 12 and 13); and
Did the trial judge’s intervention in the cross-examination of McFie cause the trial to miscarry? (Grounds 1, 2 and 3)

Mr Tilmouth QC, who appeared for Conway on the appeal, though not at the trial, dealt with the questions set out above in that order. Mr Golding, who appeared for the Crown both on the appeal and at the trial, adopted Mr Tilmouth’s order of argument. It is convenient, therefore, that we do so as well.

Consideration of the coffee incident

It will be recalled that early on the morning of 25 April 1997 Conway, responding to a request from the deceased, went to 35 Gollan Street. When he arrived, coffee was prepared. The Crown led evidence to the effect that the deceased complained to a number of people within the next day or two that her coffee had tasted bitter, and told them that Conway had admitted to her that he had put something in her drink. The deceased also recorded this incident in her diary. The Crown contended that the proper inference to be drawn from this evidence was that Conway had put heroin in the deceased’s coffee. The Crown alleged that Conway’s plan had been to ensure that when the deceased’s body was examined, after she was murdered, it would be found to contain traces of heroin. This would make it appear that she had used heroin regularly, and had died of a self-administered dose of that drug.
Mr Pappas, who appeared for Conway at the trial, objected to evidence of the coffee incident being led. He submitted that it should be excluded because:

it disclosed the commission of an offence other than that with which Conway was charged, and should therefore be viewed as “propensity” or “similar fact” evidence;
the deceased’s statements to the various persons to whom she spoke about what had occurred were “previous representations” within the meaning of that expression in s 59 of the Evidence Act 1995 (Cth) (“the Act”), and not admissible to prove the truth of that which was asserted; and
the deceased’s version of the coffee incident as set out in the entry in her diary dated 25 April 1997 (exhibit 28) was hearsay, and inadmissible.

The trial judge heard from the various persons to whom the deceased had spoken about the coffee incident on the voir dire . His Honour ruled that these persons could give evidence of what they had been told by the deceased, and also that the diary entry was admissible. He stated that he would deliver his reasons for that ruling at a later date. That ruling was published on 20 July 1998. In substance, his Honour held:

The evidence concerning the coffee incident was relevant as “relationship evidence”. It was probative because it demonstrated Conway’s hostility towards the deceased very shortly before her death. It revealed the lengths to which he was prepared to go to discredit the deceased in order to regain custody of his son. It therefore bore directly upon the issue of motive;
More importantly, the evidence was admissible because Conway’s conduct in putting heroin into his wife’s coffee a week or so prior to her death was an act which the jury might find was carried out in preparation for her murder. The discovery of traces of heroin in the deceased’s body would make it appear that her death was the result of a self-administration of heroin, and would therefore deflect suspicion from Conway;
The evidence tended to rebut any suggestion that Steer and Williams had murdered the deceased on some frolic of their own. By linking Conway with the purchase by McFie of heroin, it demonstrated that Conway and McFie had a criminal association, and not an innocent relationship. The evidence was therefore admissible in accordance with the principles laid down by the High Court in Harriman v The Queen (1989) 167 CLR 590; and
The evidence, though hearsay, was admissible pursuant to the exceptions to the hearsay rule contained in s 65 of the Act.

(a) The coffee incident as propensity evidence.

The jury were not, of course, privy to the trial judge’s reasons for permitting the Crown to lead evidence concerning the coffee incident. They were, however, instructed as to the use to which that evidence could be put. They were directed by the trial judge that the coffee incident could be used as “relationship evidence” bearing upon the issue of motive. They were told that it could be viewed as part of Conway’s preparation for the murder itself. They were also told that it could form the basis of a finding of consciousness of guilt on Conway’s part having regard to what the Crown said were his deliberate lies about that incident in his record of interview.
The trial judge did not direct the jury that the coffee incident could be used as “propensity” or “similar fact” evidence. His Honour said nothing to indicate to the jury that they might reason that because Conway had drugged the deceased on 25 April 1997, they might infer that he had caused her to be killed by an overdose of heroin a week or so later.
Mr Tilmouth submitted that the evidence concerning the coffee incident was “propensity evidence”, because it disclosed the commission of an offence not charged in the indictment. He submitted that because it was propensity evidence it was not admissible unless it satisfied a particularly high threshold test. He referred to Harriman, and in particular to the following statement by Dawson J at 602:
“Propensity evidence is, of course, circumstantial evidence in that the only proof which it can offer is proof by inference. But it is circumstantial evidence of a dangerous kind because of the prejudice which it engenders. That is why the occasions upon which it is admissible are strictly limited. As with all circumstantial evidence in criminal cases, it should not be used to draw an inference adverse to an accused unless it is the only reasonable inference in the circumstances. But more than that, the evidence ought not be admitted at all if the trial judge is of the opinion that there is a rational view of it which is inconsistent with the guilt of the accused: see Hoch (1988) 165 CLR at p 296. If he is of that opinion, the evidence will not possess the requisite high degree of probative force.”
Mr Tilmouth submitted that the evidence concerning the coffee incident was inadmissible unless the Crown was able to establish that the substance which Conway had put in the deceased’s coffee was heroin. He submitted that there was no evidence to support that conclusion. This meant that there was a rational view of the evidence concerning the coffee incident which was inconsistent with the guilt of Conway on the charge of having murdered his wife. That evidence did not, therefore, possess the requisite “high degree of probative force” to warrant admissibility.
Mr Tilmouth relied heavily upon the decision of the High Court in Pfennig v The Queen (1995) 182 CLR 461 where, in a joint judgment, Mason CJ, Deane and Dawson JJ reviewed the principles governing the admissibility of “propensity” or “similar fact” evidence. Their Honours commenced their joint judgment at 464-5:
“This appeal raises questions as to the admissibility of what has been described as propensity or similar fact evidence and the use to which it can be put. There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term “similar fact” evidence is often used in a general but inaccurate sense.” (emphasis added)
Some commentators have found difficulty with this passage. Their Honours did not define the terms “propensity”, “similar fact” or “relationship evidence”. The division of “propensity evidence” into categories of “similar fact”, “relationship evidence” and “identity evidence”, does not accord with traditional usage. Nonetheless, this statement from the majority judgment, though obiter, stands authoritatively for the proposition that “relationship evidence” is to be viewed as a sub-set of “propensity evidence”.
The proposition that relationship evidence was a form of propensity evidence had been stated some years earlier in Hoch v The Queen (1988) 165 CLR at 294, and also in S v The Queen (1989) 168 CLR 266 at 275. It was reiterated in the joint judgment of McHugh and Hayne JJ in Gipp v The Queen (1998) 194 CLR 106 at 132-3, and also in the judgment of Callinan J at 164-9. Indeed, the expression “relationship evidence” was treated in Gipp as being apparently interchangeable with “similar fact evidence” and “propensity evidence”. Although Gipp did not involve the provisions of the Act, Kirby J, at 155-6, was prepared to describe “relationship evidence” as “tendency evidence”.
Returning to the joint judgment in Pfennig, their Honours said at 482-3:
“An important distinction is to be drawn between cases such as the present case in which the “similar facts” are not in dispute and cases in which such facts are in dispute …
Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here “rational” must be taken to mean “reasonable” and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.” (emphasis added)

The direction given was as follows:
“The next matter I have to deal with is that of character. Both accused have put forth their own good character. That is a relevant consideration in relation to the charge against both of them. It is relevant in two respects.
Character is relevant to an accused’s credibility as a person, a person putting forward a version of what has happened, secondly, it is relevant to the question whether he or she is a person who is likely to have committed the offence charged. You must take character into account. How much you take it into account is a matter for you. Cases vary. People of good character do not commit offences. People of good character sometimes commit an offence for the first time, so the weight which you attach to the good character which has been advanced is a matter for you.
The Crown says, ‘But really, if you look, they have not got good character. Neither of them has got any criminal convictions but for the way they behaved here they don’t start with a proposition that they are persons of good character’. But they have put themselves forward as persons of good character. It was open to the Crown to lead evidence to demonstrate that they were not persons of good character. The Crown did not lead any such evidence, as such. The Crown relies upon the comment that I have just made. You certainly have to take it into account.”
No criticism was, or could be made, in relation to the first two paragraphs of this passage. However, it was submitted that the reiteration by his Honour of the prosecution argument as encapsulated in the third paragraph unfairly reduced the effect of the preceding part as it related to the relevance of McFie’s prior good character.
The fact that counsel for McFie did not see fit at the trial to seek a withdrawal of the part of the direction to which objection is now taken, or to seek a further direction which would counter-balance the suggested unfairness, is suggestive of the likelihood that, taken in context, there was no unfairness at all. At the appeal, counsel was unable to formulate a direction to replace, or add to the one given at the trial.
Evidence of good character has been said to be “indivisible”, in that a person who wants to rely on it has to run the risk that the evidence may be rebutted or made the subject of comment that it does not show that the person is of wholly good character: R v Stalder (1981) 2 NSWLR 9 at 19, R v Hamilton(1993) 68 A Crim R 298. Thus it would be wrong to have left the case to the jury without a direction that, although it was not contested that McFie had no prior convictions, it was a matter for them to decide how far the evidence went to establish good character and how far that evidence tended to show the improbability of guilt and tended to support the credit of McFie as a person whose word could be believed.

Fitness to stand trial

On 26 June 1998, the last day of the sixth week of the trial, when McFie was being cross-examined, counsel for McFie raised with the trial judge the issue of his client’s fitness to stand trial and requested that his Honour take the appropriate steps to have that issue determined.
“Fitness to stand trial” is not a term used in the law currently and then in force in the Territory. The term used is “fitness to plead”. The situation in the Territory relating to fitness to plead and allied matters is governed by Division 2 of Part XIA of the Crimes Act 1900 (ACT) (the Crimes Act). The relevant provisions at the time of trial were:
“428E.     Referral to Tribunal
(1)       Where, on the trial of a person charged with an indictable offence –
(a)the issue of fitness to plead to the charge is raised by a party to the proceedings or by the Court; and
(b)the Court is satisfied that there is a question as to the person’s fitness to plead to the charge;
the Court shall order the person to submit to the jurisdiction of the Tribunal to enable the Tribunal to determine whether or not the person is fit to plead to the charge.
(2)       Where the Court makes an order under subsection (1), it shall adjourn the proceedings to which the order relates and shall make such orders as it considers appropriate, including the granting of bail to the person who is the subject of the order.”

The Tribunal referred to in s 428E is the Mental Health Tribunal established under the Mental Health (Treatment and Care) Act 1994 (ACT) (the Mental Health Act).
Fitness to plead is not defined in the Crimes Act. The legislature has made provision elsewhere as to the consequences of an order under s 428E of the Crimes Act. Under s 68(2) of the Mental Health Act, the Tribunal shall determine, on the balance of probabilities, whether or not the person subject to the order is fit to plead to the charge. Under s 68(3) the Tribunal is required to make that determination by reference to specified criteria:
“68. Determination of fitness to plead
……
(3) The Tribunal shall not make a determination that a person is fit to plead to a charge unless satisfied that the person is capable of –
(a)understanding what it is that he or she has been charged with;
(b)pleading to the charge and exercising his or her right of challenge;
(c)understanding that the proceeding before the Supreme Court will be an inquiry as to whether or not the person did what he or she is charged with;
(d)following, in general terms, the course of the proceeding before the Court;
(e)understanding the substantial effect of any evidence given against him or her;
(f)making a defence to, or answering, the charge;
(g)deciding what defence he or she will rely on;
(h)giving instructions to his or her legal practitioner (if any); and
(j)making his or her version of the facts known to his or her legal practitioner (if any).”
The word “and” in s 3(h) indicates that the provisions are to be read conjunctively. A determination of fitness to plead is not available to the Tribunal unless it is satisfied of every one of the elements set out in pars (a) to (j). The section provides an evidentiary barrier that is higher than that set at common law on the issue of fitness to plead.
As Mason CJ and Toohey and Gaudron JJ observed in Kesavarajah v The Queen (1994) 181 CLR 230 at 234, use of the terms “fitness to plead” and “fitness to be tried” as if they are interchangeable is not accurate, but also is not uncommon. But there was no issue in McFie’s trial that fitness to plead can arise after a plea has been taken and, in the case of a plea of not guilty, after the jury has been sworn and the trial commenced.
In Kesavarajah, the High Court construed the words “upon the trial” in s 393(1) of the Crimes Act 1958 (Vic) to encompass any time during the trial. The trial judge, not without some misgiving, placed a similar construction on the term “fitness to plead” in s 428E. We think that his Honour was correct to do so. It would be surprising if the legislature had intended to abolish the Court’s power and duty at common law to inquire into an accused’s fitness to be tried if at any time during the trial such a question arose. Certain provisions in the Crimes Act, such as s 428F(b), s 428G(2) and s 428H(2), suggest that the legislature assumed, or intended, that an order that a person submit to the Tribunal for the purpose of determination of fitness to plead may be made at any time after the jury, that is to say, the jury sworn to try the issue of alleged guilt, has been empanelled.
In support of the submission that a question was raised as to McFie’s fitness to plead under s 428E(1)(a) of the Crimes Act, evidence was called on her behalf, in the absence of the jury, from Dr Bruce Stevens, a forensic psychologist, and Ms Kate Amanda Barrelle, a clinical psychologist. Ms Barrelle had interviewed McFie on 3 June and on the morning of 26 June 1998. Ms Barrelle considered that McFie was showing signs of stress which were consistent with dissociation, that is, a condition in which a person separates emotionally and cognitively from the immediate environment. A person in such a state may not hear a question or may not relate it to “the bigger picture of what else is going on”. Ms Barrelle also considered that McFie’s condition was consistent with dissociative amnesia which follows and is related to a traumatic event. Dr Stevens saw McFie on various dates in December 1997, February, March and June 1998, the last being on 16 June 1998. He applied tests for dissociation but found that McFie was “well under cut-off” in that regard. In Dr Stevens’ view, McFie was “quite shattered really. I mean … she is distressed and confused”. Her condition, however, did not affect her capacity to understand what was going on around her. He considered that her memory problems predated the trial and did not arise from any dissociated state.
The evidence of neither witness otherwise addressed any of the criteria relevant to an issue of fitness to plead as prescribed by s 68(3) of the Mental Health Act. His Honour, on the other hand, specifically considered each of those criteria and found that there was nothing before him to indicate that McFie was unfit in any respect. It is true that at one or two places in his reasons, his Honour expressed himself in terms which suggested that he was making a negative finding rather than considering whether there was any basis for a positive finding, but at the end of his reasons his Honour stated clearly:
“If I were to apply those criteria to this question of fitness to plead, I would find that there is no basis for finding any of those criteria to exist. There is simply no evidence. The high water mark of the evidence which has been adduced from psychologists called on this question is that she is quite shattered, she is suffering a high level of distress, some confusion but there is no effect on her comprehending what is happening around her. I just cannot see any basis for the application. I am not satisfied, in the least, that there is a question as to the accused…McFie’s fitness to plead to the charge of murder giving that expression its widest interpretation. I refuse the application.”
We agree with his Honour’s reasoning and his conclusions. In Sinclair v The King (1946) 73 CLR 316 at 334, Dixon J pointed out that it is not well recognised how high a degree of intelligence is required by the common law test for fitness to plead if it were literally applied. Dixon J added that there must nevertheless be “a real and substantial question to be considered”. The question does not arise simply by counsel asserting that there is one to be considered, or by the trial judge embarking on an inquiry into whether or not it arises. The significance of the trial judge’s decision that the question has arisen should not be overlooked. Once the question has been shown to arise, no matter how late in the trial, the trial judge has no discretion. The trial must be stopped or suspended so that the proper tribunal can be constituted to decide whether or not the accused is fit to be tried.
As was pointed out further in Kesavarajah at 249, the stress of a trial may sometimes so affect an accused person that an adjournment, or more than one adjournment, during the course of the trial is required. In fact, the trial judge adjourned the trial late in the afternoon on 25 June 1998 to enable McFie to be medically examined. Some submissions proceeded upon resumption of the hearing the following morning when his Honour ruled provisionally that the issue of fitness to plead did not arise. No application for a further adjournment was made. Cross-examination of McFie resumed until a short adjournment later in the morning. Upon resumption of the hearing after the short adjournment, counsel renewed the application in respect of McFie’s fitness to stand trial. After hearing further submissions, his Honour gave his ruling with ex tempore reasons in mid-afternoon. McFie went back into the witness box for further cross-examination without any further application for a further adjournment. We are unable to see that there was unfairness to the accused in these circumstances.
Once again the advantage that the trial judge had in seeing and hearing the witnesses must be emphasised. His Honour’s own observations as to McFie’s demeanour during the trial, during her evidence-in-chief and particularly whilst under cross-examination, gave him considerable advantage in this regard. Dixon J in Sinclair referred to “the opportunity given to the jury trying the issue of judging the condition of the man before them”. A similar opportunity is given to the judge charged with deciding whether the question arises.
We are unpersuaded that a real or substantial question of McFie’s fitness to plead arose at any time during the trial or that fairness demanded that the trial be further adjourned in order for her to be able to deal with any difficulties she was having during the trial.

Contamination of the jury

On 3 July 1998 counsel for McFie informed the trial judge in the absence of the jury that it had come to his attention that a member of the jury had been seen leaving the court with someone who had previously had what counsel described as a “boyfriend/girlfriend relationship” with McFie. Counsel applied for a discharge of the jury on that ground.
His Honour dealt with the application by calling in the jury, informing them of the allegation and inquiring whether any of them had anything to tell him in response. There being no response, his Honour dismissed the application and proceeded with the trial.
In our view, that was an appropriate course to take in the circumstances of the case. There was nothing before his Honour except allegations of a vague nature from the bar table. Counsel did not seek to support the allegations by the calling of evidence. No person was identified as having witnessed what was alleged to have happened. The person alleged to have been seen in the company of the juror was not identified. There was no identification of the source of the knowledge of the prior relationship between McFie and the other person. There was no suggestion of any awareness on the part of the juror of any such relationship. At the commencement of the trial his Honour had given the usual warning about the confidentiality of the jury process and there was no justification for doubting that the jury respected that confidentiality.
There is no comparison between this case and Webb v The Queen (1994) 181 CLR 41, upon which counsel for McFie sought to rely. In that case, which involved a charge of murder, communication between a juror and a member of the family of the deceased took place in the courtroom in full view of the rest of the jury, counsel for the parties, and the public, and strongly suggested sympathy on the part of the juror for the relatives of the deceased. There was nothing of that nature in the present case. His Honour was correct in declining to discharge the jury on what had been put to him on this matter.

The direction as to loss of memory

In her evidence, particularly when being cross-examined, McFie stated that she was unable to remember various events and occasions. She stated further that she was unable to offer an explanation for various matters the subject of evidence, because of a lack of memory. It was submitted that the trial judge should have given two directions relating to McFie’s inability to recall events. One was that it did not “lessen the onus” that lay on the prosecution and that it placed her at a considerable disadvantage in meeting the prosecution case. The other was that the jury had to assess her loss of memory in the light of the whole of the evidence, including her behaviour. They had to consider whether the loss was simulated or genuine, and if genuine, they had to take it into account in reaching their verdict.
In support of the submission counsel relied upon R v Hall (1988) 36 A Crim R 368 and Russell v His Majesty’s Advocate (1946) SC(J) 37. Hall was a case in which the accused relied on a loss of memory in order to raise the issue of automatism. It has nothing to do with the situation in the present case. Russell is not authority for the first direction which it is now submitted ought to have been given. We see no reason why such a direction was required. Whilst the second direction sought was considered appropriate in Russell, that is another example of a case in which amnesia was raised in relation to the accused’s state of mind at the time of committing the otherwise criminal act. No such issue was raised in the trial of McFie. The judgment in Russell expressly repudiates the proposition that the law “is concerned only to investigate and punish crimes of the perpetration of which the criminal has a perfect recollection”.
There was no evidence presented to the jury to support any loss of memory apart from McFie’s own statements in the witness box that she could not remember. There was no evidence of independently observed behaviour on her part which went to support a genuine loss of memory. Loss of memory was not raised as an issue before the jury.
The directions now sought were not sought at trial, again suggesting that in the atmosphere of the trial, fairness did not demand such directions to be given. Indeed, in our view, to have given the directions now sought would have been to raise a false and misleading issue.

Failure to put defence case

It was submitted that there was an unfair imbalance between the way in which the trial judge explained the case presented on behalf of McFie compared to the way in which the trial judge explained the case presented on behalf of the prosecution and the case presented on behalf of Conway. With respect to the latter, it was pointed out that this took thirty pages of transcript, whereas the explanation of the case for McFie took only two pages.
Again, this was not a point raised at the trial. It is to be noted that the complaint now taken is one of imbalance only, not that the trial judge failed to put some essential or important part of the defence case: see R v Veverka [1978] 1 NSWLR 478.
In Cleland v The Queen (1982) 151 CLR 1 at 10, Gibbs CJ said:
“The second ground of the application was that the summing up by the learned trial judge was unbalanced and unfair in that the judge dealt at length with the evidence adduced by the Crown, but in relation to the evidence given by and for the applicant contented himself with a few general remarks which did not go into the details of the evidence or of the defence case. It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case. In the present case the summing up is open to criticism, although the defence case to which the judge directed the jury’s attention in a general way had only recently been presented to them, was not complicated and was likely to have been fresh in the jury’s minds. Moreover, after the jury had retired they had returned with a request that the evidence of Detective Sergeant Couch and portion of the evidence of Christine Colquhoun (one of the defence witnesses) be read to them and this request was complied with. It may be added that no objection was taken to his Honour’s summing up on this ground. I am unable to conclude that the deficiency of the summing up in this respect led to a miscarriage of justice.”
The complaint now is not about an imbalance between the adequacy of explanation of the prosecution case and the explanation of the case for McFie, but rather the imbalance in length between what the trial judge told the jury about the case for Conway on the one hand and what he told them about the case for McFie on the other. However, much of what had been put as Conway’s defence case was common to the case of that accused and to that of McFie and did not bear repetition. McFie’s case, in any event, was very simple: she knew nothing about how the deceased had met her death. As to the incriminating evidence of association with Conway and with Steer in particular, she offered innocent explanations which, it is true, were not the subject of express reference in the trial judge’s summing-up. But it is possible that for practical reasons her counsel did not want the jury to be reminded of those associations, especially so late in the trial. McFie did not give evidence that tended to incriminate or cast blame on Conway, and, as far as we are aware, her counsel did not address the jury to that end.

We see no failure on the part of the trial judge or any unfairness to McFie on this ground.

Conclusions

For the foregoing reasons we consider the appeals by Conway and McFie against their convictions for murder should be dismissed.

I certify that the preceding three hundred and seventeen (317) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 11 April 2000

Counsel for the Appellant in AG 64 of 1998:	Mr S Tilmouth QC with Mr J Pappas
Solicitor for the Appellant in AG 64 of 1998:	Pappas j - attorney
Counsel for the Respondent in AG 64 of 1998:	Mr T Golding
Solicitor for the Respondent in AG 64 of 1998:	ACT Director of Public Prosecutions
Counsel for the Appellant in AG 55 of 1998:	Mr R G Thomas
Solicitor for the Appellant in AG 55 of 1998:	Mr Darryl Perkins
Counsel for the Respondent in AG 55 of 1998:	Mr T Golding
Solicitor for the Respondent in AG 55 of 1998:	ACT Director of Public Prosecutions
Dates of Hearing	6, 7 & 8 September 1999
Place of Hearing:	Canberra
Date of Judgment:	11 April 2000