Eastman, David Harold v The Queen

[1997] FCA 548

CATCHWORDS

Criminal Law - Practice and Procedure - appeal against conviction - miscarriage of justice - removal of disruptive accused from Court - right of accused to be present at trial - discretion of trial judge to revoke bail - entitlement of jury to have regard to behaviour of accused throughout trial - direction from trial judge

Bail - Revocation of during trial

Abuse of process - police surveillance of accused - whether surveillance affected capacity of accused to conduct trial

Evidence - Admissibility of evidence demonstrating existence of relationship between accused and victim so as to explain act charged

Evidence - Whether fresh evidence not available at trial - whether sufficient to justify interference with verdict

Evidence - Whether evidence of good character of accused raised at trial - evidence in reply - appropriate use - discretion of Court - direction to jury

Evidence  - Relevance and public interest immunity - accused denied access to prosecution documents - whether likely to be of assistance in answering prosecution case - whether accused prevented from presenting jury with reasonable hypothesis inconsistent with guilt

Evidence - Identification evidence - admissibility - use to which hearsay evidence of non-identification could be put - evidence of voice identification - direction from trial judge - whether adequate - s.60 Evidence Act 1995 (Cth)

Evidence - Disputed confessions - admissibility of tape recordings - s.84 Evidence Act - transcript - discretion to admit - procedure adopted by trial judge in presenting evidence of recorded material to jury

Evidence - Witnesses - cross-examination - need to cross-examine on case on which reliance to be placed - rule in Browne v Dunn - criminal proceedings - parts of defence case not put - application to criminal proceedings - unrepresented accused - consequences of failure to observe rule - inferences to be drawn - appropriate direction

Bail Act 1992 (ACT) s 22
Evidence Act 1995 (Cth) ss 4, 48, 59, 60, 62, 83, 64, 65, 66, 67, 84, 90, 97, 110, 112, 116, 130, 135, 136, 137, 138, 192

Australian Law Reform Commission Report 26, Vol 1
MJ Beazley, Hearsay and Related Evidence - A New Era?
(1995) 18 UNSWLJ 39

Martin v Osborne (1936) 55 CLR 367
Wilson v The Queen (1970) 123 CLR 334
The Queen v Hissey (1973) 6 SASR 280
R v Bond [1906] 2 KB 389
R v Heath [1991] 2 Qd R 182
R v Vernell [1953] VLR 590
R v McHardie and Danielson [1983] 2 NSWLR 733
Attwood v R (1960) 102 CLR 353
Stirland v DPP [1944] AC 315
Hamilton (1993) 68 A Crim R 298
R v Woolcott Forbes (1944) 44 SR(NSW) 333
R v Stalder [1981] 2 NSWLR 9
Crabbe v The Queen (1984) 11 FCR 1
Fuller (1994) 74 A Crim R 415
R v Perrier (No 1) [1991] 1 VR 697
Barca v R (1975) 7 ALR 78
Peacock v R (1911) 13 CLR 619
Alister v The Queen (1984) 154 CLR 404
Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84
Cerrah v R (unreported, Victoria Full Court, 6 October 1988)
National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
In re Van Beelen (1974) 9 SASR 163
Subramaniam v Public Prosecutor [1956] 1 WLR 965
R v Welsh (unreported, NSW Court of Criminal Appeal, 6 November 1996)
R v Mrish (unreported, NSW Supreme Court, Hidden J, 4 October 1996)
Browne v Dunn (1893) 6 R 67
Peter Schneidas (No 2) (1981) 4 A Crim R 101
R v Manunta (1989) 54 SASR 17
R v Birks (1990) 19 NSWLR 677
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
R v Hines (1991) 24 NSWLR 737
Howson’s Case (1981) 74 Cr App R 172
R v Body (unreported, NSW Court of Criminal Appeal, 24 August 1994)
Bulejcik v R (1996) 135 ALR 517
R v Clout (unreported, NSW Court of Criminal Appeal, 1 December 1995)
R v Theos (unreported, Victoria Court of Appeal, 26 June 1996)
Davies and Cody v The King (1937) 57 CLR 170
Gallagher v The Queen (1986) 160 CLR 392
Mickelberg v The Queen (1989) 167 CLR 259
R v O’Neill [1996] 2 Qd R 326
R v Pavic (unreported, Victoria Court of Appeal, 19 December 1996)
Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180
R v Menzies [1982] 1 NZLR 40
R v Miladinovic (1992) 107 FLR 241
R v Watts [1992] 1 Qd R 214

Matter No. ACT G66 of 1995

DAVID HAROLD EASTMAN v THE QUEEN

von Doussa, O’Loughlin and Cooper JJ
Canberra
25 June 1997

IN THE FEDERAL COURT OF AUSTRALIA   )
  )
AUSTRALIAN CAPITAL TERRITORY            )       No ACT G66 of 1995
  )
DISTRICT REGISTRY  )
  )
GENERAL DIVISION  )

ON APPEAL FROM THE SUPREME COURT OF THE
  AUSTRALIAN CAPITAL TERRITORY

B E T W E E N:

DAVID HAROLD EASTMAN
  Appellant
  - AND -

THE QUEEN
  Respondent

MINUTES OF ORDER

JUDGES MAKING ORDER               :          VON DOUSSA, O’LOUGHLIN and                    COOPER JJ

WHERE MADE  :          CANBERRA

DATE ORDER MADE  :          25 JUNE 1997

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and orders are dealt with by Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA   )
  )
AUSTRALIAN CAPITAL TERRITORY            )       No ACT G66 of 1995
  )
DISTRICT REGISTRY  )
  )
GENERAL DIVISION  )

ON APPEAL FROM THE SUPREME COURT OF THE
  AUSTRALIAN CAPITAL TERRITORY

B E T W E E N:

DAVID HAROLD EASTMAN
  Appellant
  - AND -

THE QUEEN
  Respondent

REASONS FOR JUDGMENT

Coram:     von Doussa, O’Loughlin, Cooper JJ
Place:        Canberra
Date:

Index

Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 1
Grounds 1(a) and 1(b)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
Grounds 1(c) and (d) and Ground 13........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
Ground 2........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
Ground 3........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
Ground 4........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
Ground 5........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
Ground 6........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
Ground 7 and Ground 12........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
Ground 10........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
Ground 11........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......

The Court: David Harold Eastman (“the appellant”) has appealed to this Court against his conviction for the murder of Colin Stanley Winchester (“Mr Winchester”). The case for the Crown was that the appellant shot and killed Mr Winchester on 10 January 1989.

On 24 December 1992 the appellant was committed for trial by the Coroner following an inquest into the death of Mr Winchester that had extended over two years. The Inquest had opened in May 1989 and the hearing commenced three months later in the following August. Initially, an open finding was announced in December 1991, but in November 1992 the Inquest was reopened and further evidence was adduced. That additional evidence, which was predominantly in the form of identification evidence of a Mr Raymond Webb, led to the appellant’s committal.

The indictment was dated 29 March 1993 and was filed in the Supreme Court of the Australian Capital Territory on about that date. On 5 October 1993 a trial date was fixed for 5 April 1994. That date was, however, varied on a number of occasions and for a number of reasons. Ultimately, after listings for 6 February 1995 and 3 April 1995 had been vacated, the case was called on for hearing before Carruthers AJ on 2 May 1995. After hearing preliminary arguments over the succeeding two weeks, a jury was empanelled on Tuesday 16 May 1995. On 3 November 1995 the jury returned a verdict of guilty and a week later, on 10 November 1995, the appellant was sentenced to imprisonment for life.

During the course of the trial the Crown presented in excess of two hundred witnesses. There were almost 7000 pages of transcript and over three hundred documentary and other exhibits.

At the time of his death Mr Winchester was an Assistant Commissioner in the Australian Federal Police (“the AFP”) and the highest ranking police officer serving in the Australian Capital Territory. Death occurred at about 9.15 pm as the deceased was alighting from his car near his home in Lawley Street, Deakin, a suburb of Canberra. Mr Winchester was in the habit of parking his car in his neighbour’s driveway. His neighbour, a widow, found comfort in having a car on her premises pointing to the presence of occupants in her house.

When found by his wife shortly after the murder, the deceased was in a slumped position behind the driving wheel of his car; the driver’s door was open and his right leg was on the ground. The automatic transmission was in “park” and the car lights had been turned off. He had been shot twice at close range - once in the back of the head and once in the face on the right hand side. According to the medical evidence, the wound to the back of the deceased’s head occurred first and was likely to have caused instant death.

Immediately before his death, Mr Winchester had visited his brother Ken, in nearby Queanbeyan. This visit was not part of a normal routine or pattern and therefore it could not be suggested that the killer was earlier aware of the deceased’s likely movements. Mr Ken Winchester said that he had not noticed any other vehicle about when his brother left to go home.

Mrs Winchester said that she heard the sound of her husband’s car at about 9.15 pm and that a short time later she heard noises which she described as sounding “like sharp stones coming up on to the front of the window”. She said that there were two distinct sounds - the second following immediately upon the first. Obviously, they were the sounds of the two shots that killed the deceased. When Mr Winchester had not come into the house, Mrs Winchester went looking for him and it was then that she found his body. The Crown’s case was that the shots had been fired from a .22 calibre weapon to which a silencer had been fixed and that supersonic ammunition (such as PMC Zapper) had been used. If that be correct, the use of the silencer would have muffled the sound of the shots that were fired but not that of the bullets breaking the sound barrier. This would also account for the manner in which Mrs Winchester described the sounds that she heard.

Police officers who attended at the scene of the crime searched the immediate area. Two PMC cartridge cases were found but no weapon was located. Indeed, the murder weapon has never been found. Microscopic examination of the two cartridge cases by Superintendent Prior led him to form the opinion that the murder weapon was a Ruger 10/22 rifle. That conclusion was not challenged by the defence.

The assistance of Mr Barnes from the Victorian Forensic Science Laboratory was sought by the investigating police officers as a matter of urgency. He arrived at the scene of the crime at about 3.00 am on 11 January 1989 and commenced work in his field of expertise - the collection and interpretation of gunshot residue. Mr Barnes took stub samples from both entry wounds and from selected areas of the car. Later that morning, a police officer, Sergeant Nelipa vacuumed the ground in the immediate area of the driver’s door of the car.

The appellant’s car was later impounded and searched for gunshot residue on 18 January 1989. Both Mr Nelipa and Mr Barnes were involved in that search. It will be necessary to return to the subject of the identification of gunshot residue in detail at a later stage in these reasons.

It was the case for the Crown that the murder weapon was a Ruger 10/22 rifle that had been purchased by the appellant from a Louis Klarenbeek, and that at the time of purchase the rifle was fitted with a silencer. Mr Klarenbeek was questioned by the police and gave them a statement, but he died before the trial commenced. During the trial, the defence adduced evidence through Detective Pattenden that he had spoken to Mr Klarenbeek on 28 January 1989 and that he had, on that day, shown him a photoboard containing several photographs, one of which was of the appellant. Mr Pattenden said that Mr Klarenbeek said that he did not recognise any of the photographs.

The police traced the ownership of the Ruger back from Mr Klarenbeek to a Mr Noel King. Mr King had, in turn, purchased it from a Mr Caldwell. When Mr King sold the rifle to Mr Klarenbeek in October 1988 it was fitted with a telescopic sight and the barrel had been threaded so that a silencer could be fitted.

Mr Caldwell said that over a number of years he had spent his holidays on a particular Reserve where he and his companions had engaged in target practice and rabbit shooting. He took police to the location where, using metal detectors, the police located a number of spent .22 calibre cartridge cases. Ultimately, testing by Mr Prior revealed that nine of those cartridges resembled, very closely, the two cartridges that had been found at the scene of the crime. Mr Klarenbeek also handed police seven .22 calibre cartridge cases. He said he had recovered them from an area where he had test-fired the Ruger that he had purchased from Mr King. Four of those cartridges were identified by Mr Prior as having been fired by rifles other than a Ruger. His examination of the remaining three led him to conclude that two of them were Stirling brand and one was a CCI brand cartridge case. None of them was a PMC brand. In concentrating his examination on those three cartridge cases, Mr Prior ultimately formed the opinion that one of them had been fired from the same rifle that had fired one of the cartridge cases found at the scene of the crime. The absence of a PMC cartridge case from the samples handed over by Mr Klarenbeek can be explained as the obvious result of different brands of .22 ammunition being used on different occasions. Evidence that Mr Klarenbeek had used Stirling and CCI brands when he test fired the rifle has an additional significance that will be discussed when consideration is given to the subject of gunshot residue.

Mr Prior’s conclusions were independently supported by Mr Barnes, by Special Agent Richard Crum of the United States’ Federal Bureau of Investigation and by Chief Superintendent Bernard Schecter, the head of the Investigations Department, Division of Identification and Forensic Science of the Israeli National Police. Although the grounds of appeal anticipated a challenge to the expertise of Mr Barnes (which was not pressed at the hearing), no attempt was made, either during the trial or on the appeal, to question the qualifications of Mr Crum or Mr Schecter. There can be no doubt that the rifle used to kill Mr Winchester was the rifle that Mr Klarenbeek had acquired through Mr King from Mr Caldwell. However, save for the evidence of Mr Webb, which evidence is the subject of challenge in this appeal, there was no other direct evidence that Mr Klarenbeek had sold the rifle to the appellant. Further, the appellant denied on oath that he had purchased any weapon from Mr Klarenbeek; he also denied that he had ever visited Mr Klarenbeek’s premises.

Mr Webb gave evidence that he had seen an advertisement for the sale of various firearms that had been placed in the Canberra Times by Mr Klarenbeek on Saturday 31 December 1988. On arrival at Mr Klarenbeek’s house in Queanbeyan that day he was shown several weapons, including a Ruger 10/22 rifle. He noticed that its barrel was threaded so that a silencer could be fitted and that it had a telescopic sight. There were three silencers on the table where Mr Klarenbeek was displaying items which he had for sale. Mr Webb said that as he was leaving Mr Klarenbeek's premises another person arrived. It was necessary for Mr Webb to turn sideways so that the two men could pass on the pathway without colliding. He said he made eye contact, and the other person was not moving out of the way. He subsequently identified that person as the appellant. Mr Webb said that he returned to Mr Klarenbeek’s house on Thursday 5 January 1989 and purchased a Tof .22 rifle. He then noted that the Ruger 10/22 was no longer on display. He said that Mr Klarenbeek did not require him to produce any type of licence.

Shortly after the murder, following a television program in which the police appealed for information about Ruger rifles, Mr Webb contacted the police. He told them that he had seen one at Mr Klarenbeek’s house but he made no mention of the man who had arrived as he was leaving, nor did he refer to him when he gave a written statement to the police six months later on 28 August 1989. Much later in the year he saw, so he claimed, the appellant on television and recognised him as the man whom he had seen at Mr Klarenbeek’s house. In evidence-in-chief he said that he had not mentioned the other man when he first spoke to the police as he did not recall the subject being raised. However, he admitted that in his statement of 28 August he had falsely stated that whilst he was at Mr Klarenbeek’s house on 31 December 1988 “nobody else came to look at the rifle he had for sale ...”. Mr Webb also repeated that statement when giving evidence on oath at the Inquest. He offered, as his explanation, that he did not want to get involved, that he had visited Mr Klarenbeek during his working hours without his employer's permission and that he was scared for himself and his family. He also assumed that Mr Klarenbeek would have been able to identify the person who had bought the Ruger 10/22 rifle. It was not until sometime late in 1992 that Mr Webb told the police that he had identified the appellant on television some three years or so earlier. It will be necessary to return to Mr Webb’s evidence when considering the grounds of appeal.

The Crown led other evidence that pointed to the appellant being the person who purchased the Ruger 10/22 rifle from Mr Klarenbeek. First there was the evidence of a Mrs Mercia Kaczmarowski. She lived in the street behind Mr Klarenbeek’s house. She recalled Saturday 31 December 1988. She had a friend staying with her and was about to go away on holidays. She noticed a motor vehicle parked outside her home and was attracted to it because it had “a very interesting bumper bar” as well as “a new style of number plate for the ACT.” At the request of the police she looked through a book of photographs of different motor vehicles and picked one that she considered to be similar to the car which she had seen. The photograph happened to be one of the appellant’s car, a blue Mazda 626 sedan.

Next there was the evidence of a Mr Dennis Reid, the proprietor of a sports store in Queanbeyan. His evidence was that a few days before the murder of Mr Winchester a man brought a Ruger 10/22 rifle to his store, offering to sell it. Mr Reid noted that the rifle had a telescopic sight and no front sight because the end of the barrel had been threaded to fit a silencer. Mr Reid was not interested in purchasing the rifle but told the customer that he might be able to find a purchaser. However, the customer declined to identify himself saying that he would ring Mr Reid at a later time (which he did). The customer’s reluctance to leave a telephone number made Mr Reid suspicious - he thought the weapon might have been stolen. He told his son, Peter, to follow the customer but Peter was unable to note anything other than that the customer drove away in a blue sedan.

Mr Reid reported the incident to the police after seeing a television program dealing with the death of Mr Winchester. He was interviewed and shown a photoboard but was unable to make any positive identification. Much later, in May 1990, Detective Lawler showed Mr Reid a different photoboard and on this occasion Mr Reid tentatively identified the appellant saying that he was “reasonably sure of number 5,  probably 80 per cent, to that ability, but I couldn’t do it 100 per cent.” Later, in co-operation with the police Mr Reid waited in Petrie Plaza, a large public mall in Canberra that was frequented by the appellant. On 25 August 1990 Mr Reid saw the appellant in the plaza join a queue at an automatic teller machine. He recognised the appellant as very similar in appearance to the man who had come into his store, but was not prepared to make a positive identification. He suggested to the police that it might help if he had an opportunity to speak to the man. The police agreed and Mr Reid, on a later occasion, twice approached the appellant at the Jolimont Centre in Canberra and spoke with him. Following this, Mr Reid stated that he was certain that the appellant was the man who had come into his store. The appellant denied visiting Mr Reid's shop but he recognised Mr Reid as the man who had spoken to him at the Jolimont Centre. The appellant claimed that he had never seen Mr Reid before that occasion.

Although the appellant denied purchasing a rifle from Mr Klarenbeek, he did not deny that throughout 1988 he had made numerous inquiries with respect to the purchase of some form of firearm. The Crown led evidence of the appellant’s telephone records and was able to match outgoing calls to telephone numbers listed in advertisements for the sale of guns that had appeared from time to time in the Canberra Times. The appellant’s explanation was that on 17 December 1987, he had had an altercation with a neighbour, a Mr Russo, and that he was fearful that Mr Russo might attack him. He was seeking a weapon for self protection. He said that he knew that Mr Russo carried a firearm with him in his motor car (an assertion denied by Mr Russo). The appellant’s case was that Mr Russo had been the aggressor on 17 December 1987 but that he, the appellant, as the innocent victim, had unfairly been charged by the police with assaulting Mr Russo (“the Russo assault charge”). The Russo assault charge was of importance to the Crown case as it was said to play a central part in the appellant’s motive for the murder of Mr Winchester.

A Mr Geoffrey Bradshaw gave evidence that the appellant attended at his premises and purchased a Stirling .22 rifle fitted with a telescopic sight on 10 February 1988. During their investigations the police were able to link this weapon to the appellant as his thumbprint was detected on it. The appellant gave Mr Bradshaw a false name. When asked in cross-examination to explain why he had done that, the appellant claimed that the police would have refused him a gun licence because of the pending Russo assault charge. Shortly after completing the purchase, the appellant returned the Stirling to Mr Bradshaw, claiming that its mechanism was jamming. He did not, however, return the telescopic sight. The appellant claimed that it was broken; he said that he had smashed it and thrown it away.

A few days later, on 13 February 1988, the appellant purchased a Ruger 10/22 rifle from a Mr James Lenaghan (“the Lenaghan rifle”). Mr Lenaghan said that the appellant did not want a telescopic sight. The appellant walked to and from Mr Lenaghan’s house and he had no car in sight. He did not give his name. On 1 May 1988 that weapon was found secreted away in a culvert on the old Federal Highway just outside of Canberra. During cross-examination the appellant admitted to purchasing this rifle and to putting it in the drain. When asked to explain this, he said that Mr Russo had “moved out and I felt that the extreme danger, at least, was over and there was no need for me to be seriously concerned any longer”. The appellant was unable to recall when Mr Russo had left the neighbourhood - he thought it might have been a month or two after he bought the Lenaghan rifle. He claimed that because of Mr Russo’s departure he no longer had any use for the weapon.

At an early stage of the trial, whilst giving evidence on a voir dire hearing, the appellant had said of the Crown Prosecutor that he had, during his opening address to the jury, recited “a long litany of outrageously false accusations ... accusing me of ... acquisition of firearms which was [sic] all totally false ...”. When asked in cross-examination to explain why he had made that statement, the appellant claimed that his evidence had been misunderstood and that he had only been referring to the false accusation that he had purchased the murder weapon from Mr Klarenbeek. The Crown’s answer to this explanation was that the appellant had come to realise the strength of the Crown case that identified him as the purchaser of weapons from both Mr Bradshaw and Mr Lenaghan and that he had therefore found it necessary to modify his story and to admit to the purchase of these weapons, citing his fear of Mr Russo as his explanation. However, this did not explain why the appellant felt compelled to hide the rifle in the culvert.

Bearing in mind that the appellant maintained that he had secreted the Lenaghan rifle sometime before 1 May 1988 (the date of its discovery) for the reason that he no longer had any use for it, it is significant that the Crown was able to lead evidence that in June, and again in November 1988, the appellant was still searching for a firearm. The appellant’s diary had been seized during the execution of a search warrant on his flat on 18 January 1989. The numbers and words “24 Adinda Street, Waramanga”  were identified as a partially erased entry in the diary. Further inquiries revealed that on 4 June and 29 October 1988, the occupant of those premises, a Mr Scott Thompson, had advertised a Ruger 10/22 rifle for sale in the Canberra Times. He recognised the appellant as the person who called at his home and either then or later tried to buy the rifle at a price lower than that advertised. He also said that the appellant wanted him to make the sale in Queanbeyan in New South Wales, to avoid the need to comply with the ACT’s gun laws for registration of firearms. Mr Ingle, Mr Thompson’s flat-mate, also identified the appellant as a person who called one evening in November 1988 to look at the rifle. Neither Mr Thompson nor Mr Ingle were asked any questions in cross-examination by counsel for the defence.

As he had previously done, the appellant advanced Mr Russo as the reason behind his further inquiries about the purchase of a firearm. He said, under cross-examination, that some time in June 1988 he was driving his motor car when he saw Mr Russo travelling in the opposite direction. He said that through his rear vision mirror he observed Mr Russo do a U-turn and commence to follow him for some distance. Fearful that Mr Russo intended to harm him, the appellant decided to make some further inquiries about purchasing another weapon. However, the price that Mr Thompson was asking was, presumably, too much for the appellant. He said that some other incident, the details of which he could no longer remember, caused him to make further inquiries - this time through Mr Ingle later in November 1988. However, the price remained too high. If, as he claimed, the appellant was once again fearful of Mr Russo, there was an apparent lack of urgency in his attempts to acquire a weapon to protect himself. A more likely inference is that he felt compelled to purchase a replacement rifle for the one that he had hidden in the culvert.

It was the case for the Crown that the appellant’s alleged fear of Mr Russo was concocted to explain away the cogent evidence that throughout 1988 the appellant was searching for a suitable firearm. The Crown was able to produce a letter written by the appellant to his German pen-friend, Ms Irene Finke, on 24 December 1987. That was a week after the altercation with Mr Russo. Although he mentioned the fight and told her that he had been charged with assault by the police, he did not suggest any fear of Mr Russo. The Crown also produced correspondence from the appellant to the Housing Trust in which he complained about Mr Russo’s conduct. Again there was no mention of him being fearful of Mr Russo; nor did he mention any fear of Mr Russo when he sought to enlist the aid of Senator Reid and the then Shadow Attorney-General, Mr Neil Brown QC. He had hoped that they might have been able to exert some influence and have the assault charge withdrawn.

The Crown case placed great emphasis on the appellant’s attempts to rejoin the Australian Public Service. These attempts had continued over many years. The Crown contended that setbacks which the appellant encountered along the way had caused him extreme anger about alleged injustices. The Russo assault charge was perceived by the appellant as a further injustice which also had the potential to destroy his chances of re-engagement. The Crown case was that these events caused the appellant great resentment towards the police, and in about December 1988 towards Mr Winchester in particular. In the unusual circumstances of this case, these matters provided the appellant’s motive for the murder.

The appellant had joined the Public Service in 1966 and from 1973 he had worked as a clerk in the Department of the Treasury. On 24 June 1977, he resigned with effect from 30 June 1977. Subsequently however, the appellant claimed that his resignation was caused through a physical or mental incapacity to perform his duties. The claim was duly accepted and, as a result, the appellant had the choice of receiving a pension or a lump sum payment. This also meant that his mode of exiting the Superannuation Scheme was officially changed from resignation to invalidity.

The Crown called, as part of its case, Mr Brian Lorenz, who was, at the relevant time, the Assistant Secretary of the Australian Government Retirement Benefits Office. Mr Lorenz corresponded with the appellant explaining to him that if a recipient of a pension later obtained employment, payment of the pension would cease. However, Mr Lorenz went on to explain that if that person had received a lump sum payment, no part of that sum was repayable in the event of subsequent employment being obtained. Mr Lorenz confirmed that the appellant elected by letter dated 31 January 1978 to receive a lump sum payment. The relevant section of that letter read as follows:

“I have decided to select the option C referred to in your letter of 22 January 1978. That is to say, a lump sum of three and a half times accumulated base and contributions”.

Notwithstanding his election to receive a lump sum payment, the appellant shortly thereafter sought re-entry into the Public Service. He also sought compensation for the loss which he maintained he had suffered as a consequence of his resignation having been irregularly processed. He claimed that if the correct procedures had been followed, he would never have resigned. The appellant’s prolonged claim for compensation came to end only after some nine years or so had elapsed when it was finally rejected in 1987.

In the course of his campaign to gain re-entry into the Public Service, the appellant came to the conclusion that his prospects would be improved if he were receiving a pension. Mr Lorenz produced a file note in which he had recorded the following summary of a phone conversation that he had had with the appellant:

“Mr Eastman explained that his consideration of an application for cancellation of his election to take a lump sum was on the basis that if he were in receipt of a pension, he would have an opportunity of being re-employed under the Superannuation Invalidity Pension Review arrangements.”

On 10 September 1980 the appellant applied for an extension of time to allow him “to apply to reverse an election in favour of a lump sum ...”  On 21 October 1980 that application was refused. However, the appellant pursued the matter. He unsuccessfully sought a review of the decision and then appealed - this time successfully - to the Administrative Appeals Tribunal (“the AAT”). Having gained an extension of time, the appellant then presented to the Commissioner for Superannuation his substantive application to switch his lump sum payment to a periodic pension. That application failed as did a review of the Commissioner’s decision. But the appellant was again successful in the AAT. In May 1984, the appellant became entitled to receive a pension; he had thereby established a foundation for his attempt to regain employment in the Public Service.

It was a prerequisite to employment in the Public Service that an applicant be medically fit. Subsequently in June 1984, the appellant wrote the Commissioner for Superannuation seeking a medical review. In October 1985 the Commissioner ruled that the appellant was not medically fit for work in the Public Service. The appellant sought a reconsideration of the Commissioner's decision, but without success. Again, he appealed to the AAT, but on this occasion his appeal failed. The Tribunal in its reasons published on 4 November 1986, referred to the appellant’s history of violent behaviour, concluding that it demonstrated that he was unsuitable for appointment to the Public Service.

The appellant applied afresh in 1988 for a medical examination. Initially, this was rejected but on an application for review of that decision the Deputy Commissioner for Superannuation agreed on 19 July 1988 to grant the appellant a further medical review. The review, although successful, contained an important restraint. He was to have “minimal contact with other people”. By letter dated 21 December 1988, the Commissioner for Superannuation wrote the appellant saying that he was satisfied:

“... that your health has been restored such as to enable you to perform duties of a clerical nature in a middle management position at the Administrative Service Officer Class 5 to 7 level, involving self-paced projects and minimal contact with other people.”

The Commissioner’s letter did not state the reason for imposing such unusual conditions but there can be no doubt that the appellant’s history of prior violent behaviour was the motivating factor. The Delegate of the Commissioner for Superannuation had said in par 8(iii) of his reasons that in fixing these restraints, he had had regard to “the difficulties (the appellant) has experienced in interpersonal relations”. In any event, it was the appellant’s view that his prior behaviour was being held against him for he immediately responded on 22 December 1988 to the Commissioner’s letter seeking a reconsideration of that part of the decision that imposed the conditions. He claimed that the matters that were the subject of mention in par 8(iii) of the Delegate's reasons had ceased. This was his last appeal and it was unsuccessful. It was the Crown case that this highlighted the importance to the appellant of ensuring that the Russo assault charge did not proceed.

Evidence was led as to the way in which the appellant reacted to adverse decisions made against him in the course of his campaign to gain re-entry into the Public Service. This evidence was led to show the intensity of his feelings. It was claimed that the appellant made threats of violence to Mr Michael Frodyma and Mr Maurice Kennedy, officers of the Department of Finance, who, in the eyes of the appellant, were perceived to have had some direct or indirect participation in the decision to reject his compensation claim in August 1987. For example, according to the evidence of Mr Frodyma, the appellant threatened “to come around with a baseball bat” and to knock his “fucking head in ...”. Mr Kennedy, who was Mr Frodyma’s immediate superior, said that he received a phone call from the appellant subsequent to the occasion when the appellant allegedly threatened Mr Frodyma with the baseball bat. According to Mr Kennedy, the appellant shouted at him saying that he (Mr Kennedy) was “... a fucking liar, deceitful, and a fucking bastard”.

Mr Kennedy continued in his evidence that he said to the appellant that if he did not withdraw the threat to his staff “the matter would be put in the hands of the police. He did not withdraw and told me ‘You are included’ in the threat that I understood that he’d made to Mr Frodyma”.

A Mr Bewley had been interviewed on television in late 1985 about his dispute with the Commissioner for Superannuation. Shortly after the broadcast, the appellant visited him and they discussed their respective disputes with the Commissioner. Mr Bewley said that the appellant became agitated and eventually said “well sometimes I just get so frustrated I could just get a gun and kill someone”. Mrs Bewley corroborated her husband's evidence. Neither Mr nor Mrs Bewley were cross-examined.

Another example of the threatening attitude that the appellant was provided by Ms Vick who, in 1988, was a member of the staff of Senator Haines. The appellant had approached the Senator hoping that she could assist him in his attempts to obtain re-employment in the Public Service. According to Ms Vick, she considered that the appellant was unhappy and frustrated about his lack of success. Ms Vick said that in one telephone conversation in September 1987 (shortly after the rejection of his claim for compensation), the appellant said to her: “I’ll probably have to kill someone to get the attention paid to the injustice that’s being done to me.”

Ms Vick said that she asked the appellant should she take him seriously. When he replied “Yes” she told him that she intended to report the matter to the police. At that stage of the trial, the accused was represented by counsel. During cross-examination, Ms Vick’s evidence about the threat was not challenged. However, she did agree that she did not feel personally concerned by the threat nor did she feel that it was directed towards Senator Haines or any member of her staff.

At this stage in the narrative it becomes necessary to refer, once again, to the Russo assault charge. The appellant had made several attempts to have the charge withdrawn. He had been unsuccessful and the charge had been listed for hearing on 12 January 1989, two days after the death of Mr Winchester. It was the case for the Crown that the appellant had developed an intense hatred for all members of the police force. He saw the Russo assault charge as an example of police corruption and as evidence of ill-will towards him personally. The Crown relied upon the evidence of several witnesses, including Chief Superintendent Mills and Inspector Kirk to demonstrate the scale and intensity of the appellant’s campaign and the great hostility shown by him towards the police.

Mr Mills had met with the appellant on 21 December 1987. According to his evidence the appellant complained that he was the victim of the Russo assault, that his complaint had not been investigated properly and that two police officers, whom he named, lacked impartiality. Mr Mills said that when he told the appellant that he would have Inspector Tomlinson investigate his complaints, the appellant replied that he “wasn't very pleased with that”. According to Mr Mills, the appellant added that he did not think that Mr Tomlinson “would be sympathetic to my concerns”. Mr Mills arranged for another officer to investigate the appellant’s complaint but later, in February 1988, the appellant rang Mr Mills complaining that the investigation was not being conducted fairly. Mr Mills had yet another officer review the matter. But still the appellant remained unsatisfied. He rang Mr Mills saying of the officer: “He is inept and on top of that he’s corrupt”.

Mr Kirk had interviewed the appellant in March 1988 with respect to the Russo assault, shortly after the summons had been served on the appellant. Mr Kirk recalled that he told the appellant that he had reviewed the file and that he considered that the matter should be permitted to take its course. According to Mr Kirk, the appellant replied “you are a corrupt person, you are criminally corrupt”.

A neighbour of the appellant, a Mrs Donna Heritage, gave evidence that the appellant had talked to her and to her husband about the Russo assault charge. Both said that the appellant had maintained his innocence. Mrs Heritage went on to say that the appellant accused the police of being corrupt, adding that the appellant said “... if it’s the last thing he does he will get back at the police”. The evidence of these witnesses, Mr Mills, Mr Kirk and Mr and Mrs Heritage was not challenged. At the time when they respectively gave their evidence the appellant was unrepresented and declined to cross-examine them.

According to the Crown case, the intensity of emotion displayed by the appellant both in terms of his desire to re-enter the Public Service and his ill-feeling towards the police, culminated on 16 December 1988. The appellant had earlier sought the assistance of Mr Brown QC in relation to the Russo assault charge, claiming that he was a victim of a police conspiracy. Mr Brown, recalling that the appellant had told him of his efforts to obtain re-employment in the Public Service, said in evidence, “and my general impression of what he was saying was that he wanted to have this particular matter, that is to say this matter concerning the police, cleared up, I assume because it would enhance his prospects of going back to work in the Treasury”.

Mr Brown said that the appellant had requested him to arrange an appointment with Mr Winchester as he was the senior police officer in the Australian Capital Territory. The appellant had said that he wanted the charge “dropped”. After some discussion, Mr Brown agreed to write Mr Winchester and was successful in obtaining an appointment to attend with the appellant on Mr Winchester on 16 December. At that meeting the appellant outlined his complaints but Mr Winchester stated, quite firmly, that he would not intervene. He said that the matter was with the Director of Public Prosecutions (“the DPP”) and that the conflicting issues should be resolved by a magistrate. According to Mr Brown, the appellant became increasingly agitated, at one stage saying to Mr Winchester: “If your hoons think they can treat me like this they’ve got another thing coming”.

Mr Winchester defended his officers but still said that he would write Mr Brown with his final answer. By letter dated 20 December 1988, Mr Winchester wrote Mr Brown telling him that he would not personally intervene. Mr Brown sent a copy of that letter to the appellant. It was the Crown case that this final rejection generated great emotion and anger in the appellant.

The appellant prevailed on Mr Brown to write to the Commissioner of Police, Mr Peter McAulay, asking him to intervene on the appellant's behalf. The Commissioner replied direct to the appellant by letter dated 9 January 1989, informing him that he would not intervene. Evidence was called from the office of the Commissioner and from Australia Post which established that this letter would have been delivered to the appellant, in the ordinary course of the mail, at about 9.30 am on 10 January 1989, the day upon which Mr Winchester was murdered.

It was the Crown case that the appellant perceived Mr Winchester’s attitude as further evidence of police corruption and as part of a personal campaign against him. In support of that proposition, the Crown pointed to the evidence of Inspector Craft. Mr Craft had met the appellant, accidentally, outside the police building. He was unsure of the date; he thought that it was either the third, fourth or fifth of January 1989. He had not applied his mind to the incident involving the appellant until 30 January 1989 when he made a statement setting out his recollection of the meeting. According to Mr Craft, the appellant said to him, pointing generally in the direction of Mr Winchester’s office: “The executive in this building is corrupt and has a lot to answer for.”

The Crown also relied on the evidence of Sergeant Coutts and Mr Ostrowski. Sergeant Coutts knew the appellant and saw him in the afternoon of the day of the murder in a car-park near the city police station. It was a car-park that was used to park police vehicles. The appellant was observed looking into several of those vehicles. Independently of these observations the Crown also led evidence that listening devices had subsequently been secretly installed in the appellant’s flat. Through those devices the appellant had been heard - presumably talking to himself- uttering words to the effect that he had visited the street where Mr Winchester lived and had noted that he was in the habit of parking his car in his neighbour’s driveway rather than his own. The Crown argued that these two pieces of evidence made it relevant that the appellant displayed an interest in police vehicles and their contents only a few hours before the death of Mr Winchester.

Mr Ostrowski was a friend of the appellant and an employee in the Public Service. He gave evidence of occasions when the appellant had spoken to him about his attempts to rejoin the service. He also recalled that the appellant had asked him to inquire whether there were positions available in the Department of Administrative Services where Mr Ostrowski worked. Mr Ostrowski knew that the appellant had received the necessary medical clearance to rejoin the Public Service and was also aware of the pending Russo assault charge. Mr Ostrowski claimed that he reminded the appellant that “under the Public Service Act anyone with a criminal record would be precluded from entering the Public Service”. According to Mr Ostrowski, the appellant had complained to him that he was innocent of the charge, that Mr Russo had been the aggressor and that he (the appellant) was the subject of victimisation and persecution. Mr Ostrowski was not challenged on these aspects of his evidence by counsel for the defence but the appellant, when giving evidence in chief, maintained that although he had no recollection of discussing the matter with Mr Ostrowski, he would not have taken any notice of what he had said: “... with dear respect to Mr Ostrowski, he was pretty astray in his judgment and knowledge of the public service...”.

Another witness, a Mr Dennis Barbara had acted as the appellant’s solicitor for a short time with respect to the Russo assault charge. He said that on an occasion in late November or early December 1988, during a discussion with the appellant and after his professional relationship had ended, the appellant had said to him “I will kill Winchester and get the Ombudsman too”.

On 6 January 1989 the appellant consulted his medical practitioner, Dr Dennis Roantree. The doctor, who gave evidence for the Crown, said that the appellant had told him that he was “worried about a pending assault charge”. The appellant also told him of his meeting with Mr Winchester. According to Dr Roantree, he felt that the appellant exhibited “extreme anger” and he also described the appellant as “furious”. Dr Roantree had written in his notes that the appellant said as he left: “I should shoot the bastard”.

However, Dr Roantree had subsequently crossed that statement out. When asked during his evidence in chief, to explain why he had done so, the witness said that he had previously told police that he was not prepared “to swear to that”. Later however, he acknowledged “that had I not recalled that accurately, I wouldn’t have ever mentioned it”. At this stage of the trial the appellant was unrepresented and declined to cross-examine Dr Roantree.

In the peculiar circumstances of this case, this litany of violence, aggression and hate is not merely propensity evidence. If the Crown is to prove, by circumstantial evidence, that the appellant murdered Mr Winchester, facts that are subsidiary to or connected with the act of murder must be established from which the conclusion follows as a rational inference. As Dixon J said in Martin v Osborne (1936) 55 CLR 367 at 375:

“In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.”

Evidence of propensity is not normally admissible and his Honour went on to point out that:

“The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded.”

But, as is clear from what his Honour said, such matters, in the circumstances of a particular case may be relevant and admissible. For example, evidence on such subjects will be admissible for the purpose of demonstrating the existence of a relationship between an accused and the victim so as to explain the act charged:  Wilson v The Queen (1970) 123 CLR 334; The Queen v Hissey (1973) 6 SASR 280. In Wilson v The Queen, Barwick CJ explained how evidence of the relationship between an accused and the victim can be admissible and highly probative at 337:

“Evidence of a close affectionate friendship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.”

Four members of the Court, Barwick CJ, Menzies, McTiernan and Walsh JJ approved the following statement of principle by Kennedy J in R v Bond [1906] 2 KB 389 at 401:

“The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.”

In The Queen v Hissey, the Full Court said at 288-289:

“We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living ... When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime ...”

See also R v Heath [1991] 2 Qd R 182 at 194-196 and 199-209 as another example where these principles have been applied.

The Crown based its case against the appellant upon a particular relationship that was said to exist between the appellant and the police force in general. It was, said the Crown, a unique relationship that centred upon his hatred for, and frustration with, the authority that the police force had come to represent. His hatred, according to the Crown, came to a climax when he realised that the Russo assault charge would not be dropped. The realisation of that fact, the Crown maintained,  then caused his hatred to focus directly upon Mr Winchester in particular. The Crown put its case upon the premise that the relationship between the appellant had transformed into a special relationship, albeit a one-sided relationship, that the appellant had with respect to Mr Winchester. In our opinion the Crown was entitled to lead evidence that established both the appellant’s general relationship with the police force and his special relationship with Mr Winchester. The particular relationship constituted the context within which the death of Mr Winchester was alleged to have occurred. Furthermore, the inclusion of this evidence was justified on the basis that it may  have enabled evidence of the offence to be be placed in a “true and realistic context, in order to assist the jury to appreciate the full significance” of what has happened:   R v Beserick (1993) 30 NSWLR 510 at 515 per Hunt CJ at CL with whom Finlay and Levine JJ agreed.

Drawing the many threads together, the Crown case had, at this stage, developed into a series of propositions that may be summarised in the following terms. First, by the latter half of 1988 the appellant’s attempts to gain re-entry into the Public Service had progressed to the point where he had been granted a further medical review, and then the letter from the Commissioner for Superannuation dated 21 December 1988 offered the appellant a limited opportunity to regain employment. That was a goal that the appellant had relentlessly pursued for over ten years. Secondly, the pending Russo assault charge - a false charge in the eyes of the appellant - had the potential to destroy (or at least, impair) his chances of getting back into the workforce. Thirdly, the false charge was a manifestation of police corruption and victimization. Fourthly, the sense of frustration arising out of the appellant’s ongoing attempts to have the assault charge withdrawn reached breaking point either at his personal meeting with the deceased or, more likely, when he received the letter from Commissioner McAulay. Finally, driven by his desire to return to the workforce, and overwhelmed by his determination to avenge the injustice he felt he had suffered, the appellant focused his murderous intent on Mr Winchester.

The appellant was first questioned about the death of Mr Winchester on the day after the murder, 11 January 1989. Detectives Thomson and Jackson interviewed the appellant concerning his meeting with Mr Winchester on 16 December 1988 at his home in the presence of his solicitor (who was, coincidentally, at the appellant’s residence in connection with the Russo assault charge). Detective Jackson’s evidence, which was not disputed by the appellant during the course of his cross-examination was as follows:

“I said, ‘I've been informed that at the conclusion of the meeting, you refused to shake Mr Winchester’s hand, when it was offered to you. Is that right?’

He said, ‘Yes,  I did not shake his hand.’

I said, ‘I’ve also heard that you said ‘I will not shake your hand until you have fixed it.’

He said, ‘No, I think I said something like, It’s not a time to shake hands until it has been resolved.’

I said, ‘Did the meeting you had with Mr Winchester make you feel angry towards him?’

He said, ‘No, more upset than angry.’

Thomson said, ‘Can you tell us what you did last night?’

He said, ‘I just drove around. I go for drives quite a lot at night as it relaxes me.’

Thomson said, ‘Where would you have gone to last night?’

He said, ‘I don't really remember.’

Thomson said, ‘Where do you think you would have gone?’

He said, ‘I go out each night buy take-away food, either a hamburger or a bucket of chips or a milkshake.’

I said, ‘What time do you normally go out at night?’

He said, ‘Any time, depends when I am hungry. If I am hungry at 11 at night I will go out and buy a bucket of chips and a newspaper. I don't go to sleep until about two each night and I don't watch TV.’

Thomson said, ‘Did you get something to east [sic]  last night?’

He said, ‘I may have. I don’t remember.’

Thomson said, ‘If you had bought something last night where would it have been from?’

He said, ‘It could have been Lonsdale Street, sometimes I go to George’s or the Honey Bunny at Queanbeyan. It just depends where I am hungry.’

I said, ‘When you drive, where do you normally go?’”

The appellant then gave a description of where he normally drove at night. When asked if he had been to any of those places the previous night he said:

“‘I may have, I can’t remember.’

Thomson said, ‘What time did you go out last night?’

He said, ‘I don’t remember. It could have been any time.’

Thomson said, ‘It is important that you try and remember what time you went out and where you went to last night.’”

The appellant recollected that it was about 10 o’clock when he got home. He thought that it could have been about 8 o'clock when he went out. The interview continued:

“Thomson said: ‘Can you remember where you went last night?’

The appellant responded ‘No.’

Thomson said, ‘Do you remember speaking to or seeing anyone last night?’

He said, ‘No, I don’t.’”

It would have been quite proper for the appellant to have refused to answer any questions that the police asked him. That is a fundamental right that is available to everyone. But the accused did not exercise that right. He had the benefit of the presence of his solicitor but chose to respond to the inquiries of Detectives Thompson and Jackson by saying that he was unable to recall any detail whatsoever of his movements in the relevant two hours of the preceding evening. The appellant is a highly intelligent man. That is apparent from many aspects of his evidence and conduct at trial. A perusal of the transcript of the trial also shows that he was a very competent cross-examiner, possessed of an excellent memory. It was open to the jury to conclude, as the Crown argued, that it was wholly inconsistent with his personality, character and ability that he was unable to recall his movements in the preceding evening.

It was submitted by the Crown that the appellant was fearful of giving an account of his movements during the night of the murder in case he had been seen by someone; he did not know how much the police already knew but it must have concerned him that they had questioned him so quickly. The Crown submitted that the only explanation for his failure on 11 January 1989 to account for his movements during 8.00 pm to 10.00 pm in the preceding evening was that any answer may have incriminated him.

Although there were no eye witnesses that placed the appellant in  Lawley Street during the night of the murder, there was some evidence pointing to the appellant having been there two nights earlier. The Crown led evidence from a Mrs Newcombe who lived in the same neighbourhood as the deceased. She gave evidence that in the evening of Sunday 8 January 1989, she had been walking in Lawley Street with her mother and daughter at about 8.30 or 9.00 pm. She said that she observed a car that was parked outside the house next door to the Winchester’s. At that stage, the appellant was represented by counsel and Mrs Newcombe was allowed to say, without objection, that as she passed the car, the person seated in the driver’s “moved to position himself so that he would not be seen”. Earlier, Mrs Newcombe had explained that she “felt uncomfortable about the car being positioned there”. As she returned home from her walk, she retraced her route and she noticed that the car was in the same position. She had intended to make a note of the registration number when she returned home but was distracted by a telephone call. Later, Mrs Newcombe was able to identify the car as a Mazda 626 sedan. As to its colour, she thought that it was “sort of a turquoisey-bluey-green”. In fact, the appellant owned and drove a metallic blue Mazda 626. Mrs Newcombe’s recollection of the registration number was YPQ-038; the appellant’s registration was YMP-028. Mrs Newcombe’s memory was deficient. YPQ-038 was the registration number of a cream Mazda 323 Hatchback owned by a Ms Betty Fitzgerald. During the weekend of 7 and 8 January 1989 that car was parked in a locked garage in Yarralumla. Nevertheless, the Crown relied on Mrs Newcombe’s identification of a Mazda 626 and the similarity between the letters and numbers of the appellant’s car registration and those recalled by the witness.

It is now necessary to turn to the evidence that dealt with the identification of the gunshot residue. Amongst the material that had been located by Mr Nelipa when he vacuumed the driveway and surrounding area at the murder scene, were a number of greenish particles and some other particles that were described as severely charred chopped disc propellant particles (“the chopped disc particles”). Mr Barnes subsequently analysed them and identified the greenish particles as partially burnt propellant particles of PMC.22 ammunition. Interestingly, the chopped disc particles were not consistent with PMC ammunition; they were however, consistent with other types of ammunition of which CCI and Stirling brands were two. If Mr Winchester was killed as a result of two bullet wounds, and if two PMC cartridge cases were found at the murder scene, and if partially burnt propellant particles of PMC.22 ammunition were found at the scene, how does one account for the chopped disc particles that were not consistent with PMC.22 ammunition?  The Crown’s answer to that question pointed another accusing finger in the direction of the appellant.

A cartridge case contains a primer and propellant. The primer is exploded by impact with the firing pin and burns at extremely high temperatures. It ignites the propellant which provides most of the energy that expels the bullet from the cartridge case and the barrel of the rifle. The propellant also burns at high temperatures. The primer produces hot gases that condense as they cool producing characteristic primer particles that are made up of one or more of the original components of the primer together with, on occasions, very small quantities of material from the bullet or the cartridge case. Primer particles are extremely small and can only be seen by using a scanning electron microscope. Invariably, some part of the propellant will not be consumed by combustion and these partially burnt particles will be left in the weapon and probably on articles in close proximity to the end of the barrel. Propellant particles are larger and particles from PMC.22 ammunition can be seen, with difficulty, by the naked eye.

Mr Barnes undertook a very extensive examination of the various ammunition types that were available in Australia in 1989. He analysed them both before and after firing for particular compounds, shape, colour and behaviour on firing. He found that of the 151 .22 ammunition types available in Australia, PMC was unique when all these factors were considered. Mr Barnes also visited the FBI laboratories in the United States of America and located a further 23 brands of ammunition which he analysed and included in his data base; all these could be distinguished from PMC.22 ammunition. The significance of Mr Barnes’s investigations was that the presence of the greenish particles in and about Mr Winchester’s car was consistent with Mr Winchester having been murdered by the use of PMC ammunition.

However, other propellant particles, namely, the chopped disc particles, had been recovered from the body of the deceased and from the interior of his car. The existence of these chopped disc particles did not necessarily mean that two brands of ammunition had been used in the commission of the crime. The explanation offered by the Crown for the presence of the second ammunition type was this:  Mr Klarenbeek had test fired the Ruger 10/22 rifle before he advertised it for sale on 31 December 1988. He had subsequently recovered some of the spent cartridge cases from that exercise. Three of the seven .22 cartridge cases that Mr Klarenbeek handed in to the police on 6 February 1989 were Stirling and CCI brands and one of them had been identified as having been fired by the same rifle that was used to kill Mr Winchester. Mr Barnes gave evidence that he had conducted investigations to ascertain whether the presence of the two propellant types at the scene resulted from some form of carry-over in the weapon itself. In other words, Mr Barnes investigated whether the chopped disc particles could be explained by their having been trapped in the gun from earlier firings and whether the severe charring occurred as a result of their exposure to the heat of subsequent shots. He used rifles fitted both with and without a silencer for these tests. He found that severe charring was only ever produced when a silencer was used. A silencer is fitted with baffles that muffle the sound. Those baffles collect debris, including propellant and primer particles, that may easily be dislodged by movement, such as shaking. As subsequent shots are fired, very hot gases pass over this matter causing it to be further burnt, producing characteristic severe charring. As each further shot is fired, some of these particles are ejected from the barrel. The conclusion that the Crown sought to establish was that the weapon that had fired the two PMC bullets had earlier and recently been used to fire CCI or Stirling bullets.

A search of the appellant’s Mazda motor vehicle and an analysis of its results confirmed the presence of primer particles that were consistent with PMC ammunition. The same particles were also found in Mr Winchester’s vehicle and around the area of both wounds. Propellant particles from PMC ammunition were also found in the appellant’s car, in Mr Winchester’s car and in the driveway around the car. Finally, chopped disc particles (not consistent with PMC ammunition) were in Mr Winchester’s hair and in both vehicles.

In addition to the evidence of Mr Barnes, the Crown also called a number of independent expert witnesses with respect to the identification of the gunshot residues. They were Mr Robin Keeley, the Principal Scientific Officer of the Analytical Chemistry Services Division of the UK Metropolitan Police Forensic Science Laboratory, Dr Ari Zeichner, the head of the Toolmarks and Materials Laboratory of the Division of Visual Identification and Forensic Science of the Israeli Police, Professor Schuel Zitrin, the head of the Israeli Police laboratory dealing with explosives identification and analysis and Mr Roger Martz, the Unit Chief of the Chemistry Toxicology Unit of the FBI Laboratory in Washington DC. These experts either agreed with Mr Barnes’ conclusions and methodology or, at least, did not challenge them.

The final aspect of the Crown case related to recordings of the appellant speaking and whispering to himself in his bedroom throughout 1990 and 1991 and to the transcripts of those recordings. The recordings had been obtained through the use of listening devices that had been installed in the appellant’s flat by the police. The transcripts had been made after enhanced copies of the tapes had been produced by Dr Hermann Kunzel and Dr Angelika Braun. Dr Kunzel was the head of the Speaker Identification and Tape Authentication Section of the German Federal Police. His associate was Dr Braun, a forensic phonetician.

The qualifications of these experts and the other experts in sound or phonetics were not challenged, nor were their experience and integrity.

The dispute at trial was limited to the words allegedly spoken by the appellant. If his words were as alleged by the Crown, they amounted, arguably, to significant admissions of guilt. If, on the other hand, they were as alleged by the appellant, they were  innocuous.

The Crown also retained the services of Dr Peter French of the United Kingdom to carry out an independent evaluation of the master tapes and the enhanced tapes. Dr French compiled transcripts from the tapes and examined and verified the transcripts that had been produced by Sergeant McQuillen and Constable Lawson, the police officers who spent literally thousands of hours listening to the tapes as part of their duties in electronic surveillance, and in the preparation of the transcripts.

The defence called Mr CMF Mills, a Forensic Audio Consultant from the United Kingdom. Mr Mills holds a Diploma in Electrical and Electronic Engineering. He is a member of the Professional Recording Studio Association, a member of the Forensic Science Society of the United Kingdom and a member of the British Academy of Experts and an accredited Law Society expert.

Mr Mills explained that the word “enhanced” meant, in general terms, “to use electronic equipment or some other means to improve the quality of the recordings and hopefully improve the intelligibility of the speech within those recordings.”

Mr Mills rated the quality of the tapes as “somewhere between extremely poor and poor”.

The defence also called Dr Andrew Butcher. At the time of giving his evidence he was the Foundation Professor of Communication Disorders and the head of the Department of Speech Pathology at Flinders University in South Australia, a position that he has held since 1993.

Asked to express an opinion on the quality of the tapes Dr Butcher said: “I’ve been transcribing tapes for over 25 years and I cannot remember recordings of worse quality that I’ve had to deal with”.

Set out below are the different versions of relevant parts of the transcripts upon which the Crown relied as demonstrating a consciousness of guilt.

The first version is that produced by police officers McQuillen and Lawson. Then follows Dr French’s transcription, Mr Mills’ transcription and finally Dr Butcher’s transcription. Although there are many differences in the four transcriptions the Crown claims that it can draw substantial support from the similarities. In the quoted passages that appear below, the parts that are in single brackets indicate probably what was said whilst those in double brackets indicate possibly that which was said. In each case dots represent words that cannot be deciphered.

Police Officers McQuillen and Lawson

“You drove more slow. I cannot miss him. You drove more slowly to give - to give me a better chance. In fact, the situation was that I ran out of sight. It’s pathetic. And then even when you called the first night and I’ve missed you that was a very frustrating night and I had to go back again - the next night to kill him. The poor bugger. Then all of a sudden you’re dead. That keeps hold on me. So you go back the following night in the same car, same car, the same registration number, the same driver and you’re film crew’s the same and tried to set it up again. Finally on the second night you succeed. Honest, it’s like trying to shoot miracles, miracle that I haven’t lost it. It required about 50 takes before you finally got what you wanted. I mean about the only thing you didn’t do, you didn’t provide me with a bag full of stones. [Bed creak] Killed him.”

Dr P French

“You drove more slow (I cannot miss him). You drove more slowly to give - to give me a better chance. In fact the situation was that I ran out of sight. (Its) pathetic and even then when you called the first night (and I’ve missed you) that was a very frustrating night and I had to go back again the next night to kill him the poor bugger. Then all of a sudden your dead. That keeps (hold/on) there. So you go back the following night in the same car, the same registration number, the same driver and your film crew’s the same and tried to set it up again. Finally on the second night you succeed. Honest, it was like trying to shoot miracles ... it required about fifty takes before you finally got what you wanted. I mean about the only thing you didn’t do, you didn’t provide me with a bag full of stones. [Bed creak]  Killed him.”

Mr CMF Mills

“You drove more slowly to give that a chance. In fact the situation was that...(sight). Pathetic. And then even (after) you call...and that was a...(I'm telling you mate)...I had to (come) back on the (following) night (to kill) the poor bugger...and I was waiting for...So you came back the following night...the same...the same registration number...the same driver and you...(all) the same...and try to get them...(finally) somehow prophesied ...you...finally...done it. I know what its like to try to shoot some.......finally got what (it) wanted. I mean about the only thing you didn’t do, you didn’t provide me with a bag full of (something).”

Dr AR Butcher

“(But) you...you’d give me a better chance. In fact the situation was (that)...out of sight. Pathetic. And then even when you called...and (set) it up...that was a very frustrating time and I had to come back on the following night (to the kill the poor) bugger. And I was waiting for the...to come. (Fucking)...So you go back the following night the same car, the same registration number, the same driver and you...’s the same and try to set it up again. (Finally), as prophesied you succeed. I know this is like (trying to shoot) ((the))...required about ([bang] takes) before you finally got what you wanted. I mean about the only thing you didn’t provide me with a bag full of stones.”

Another sample from the tapes upon which the Crown relied and the transcriptions of the various experts appears below.

Police Officers McQuilln and Lawson

“He was the first man I ever killed. It was a beautiful thing. One of the most beautiful feelings you’ve ever known. Beautiful feelings...Its simple. At the end of your life you will never...[Water pipe noise].”

Dr P French

“He was the (first) man. He was the first man I ever (killed)...One of the most beautiful feelings (in a long time)...It’ simple. At the end of your life you will never believe...it’s not only that [Water pipe noise.]”

Mr CMF Mills

“He was the first man. He was the first man I ever (killed)...one of the most beautiful feelings in my (life). It’s simple. At the end of your life you will never ((forget))...not only that...I should ((not have killed)).”

Dr AR Butcher

“I should ((not have killed)).”

Before proceeding to a consideration of the grounds of appeal it is necessary to say something about the appellant’s legal representation during the course of the trial. It would not be an exaggeration to describe it as chaotic.

On the first day of the trial, 2 May 1995, Mr Williams QC appeared but only to announce that his instructions and those of his junior and his instructing solicitors had been withdrawn. The appellant sought an adjournment of the trial because he was unrepresented, saying that if the adjournment was not granted he would not take part in the proceedings. The appellant informed his Honour of his reasons for withdrawing those instructions. He said that police intimidation had been “condoned” by the Court; he claimed that the Court had refused to take contempt proceedings at his request against certain police officers and he claimed that Mr Williams had refused to conduct the defence in accordance with his instructions. The application for an adjournment was refused and the matter proceeded.

On 15 May 1995, the fifth day of the trial, Mr Williams QC appeared, informing the Court that he had, once again, been instructed to act on behalf of the appellant. He unsuccessfully sought an adjournment of the trial and a permanent stay of the proceedings. On the next day, shortly after the jury had been empanelled, Mr Williams’ instructions were again terminated and the appellant was, once more, without legal representation.

On 18 May 1995, the eighth day of the trial, Mr O’Donnell announced his appearance for the appellant but on 22 May (which was the next day of the trial), he advised the Court that he had withdrawn from the case. The appellant, however, made it clear that he had terminated Mr O’Donnell’s instructions because he had allegedly walked out of a conference.

On 22 May, Mr Peter Baird appeared for the appellant but on the same day he sought leave to withdraw.

On 31 May 1995, the fifteenth day of the trial, Mr O’Loughlin announced his appearance for the appellant, informing the Court that he would be led by Mr Terracini. He sought an adjournment until 12 June to enable him and Mr Terracini to read the brief and prepare the defence. His Honour refused that application, stating that it was his opinion that the appellant had become unrepresented through his own fault. His Honour’s rulings on this aspect of the trial have not been challenged on appeal.

The matter proceeded with Mr O’Loughlin appearing for the defence until 5 June when he was joined by Mr Terracini. From that date until 29 June, the thirtieth day of the trial, the appellant was represented by both counsel.

On 29 June the appellant terminated his counsel's instructions. Thereafter, Mr Terracini and Mr O’Loughlin moved in and out of the trial as their instructions were first withdrawn and then reinstated. It cannot be said that the appellant acted with justification in so frequently dismissing his lawyers. If he were justified in terminating their instructions, why then would he have re-engaged them on so many occasions?  Any suggestion that the answer to that question rests in an acknowledgment of fault by counsel would be ridiculed by the number of times their supposed incompetence or refusal to accept instructions allegedly justified their dismissal. This is apparent from the following timetable:

Day 3310 July 1995               Re-instructed

Day 3310 July 1995               Instructions Terminated

Day 3411 July 1995               Re-instructed

Day 3613 July 1995               Instructions Terminated

Day 3714 July 1995               Re-instructed

Day 3918 July 1995               Instructions Terminated

Day 3918 July 1995               Re-instructed

Day 3918 July 1995               Instructions Terminated

Day 4120 July 1995               Re-instructed

Day 4627 July 1995               Instructions Terminated

Day 4831 July 1995               Re-instructed

Day 502 August 1995         Instructions Terminated

Day 528 August 1995         Re-instructed

-11 August 1995         Instructions Terminated

Day 6531 August 1995         Re-instructed

Day 7825 September 1995     Instructions Terminated

Day 803 October 1995        Re-instructed

Day 8410 October 1995        Instructions Terminated

The circumstances under which Mr Terracini’s instructions were terminated for the last time on 10 October were quite astonishing. The appellant claimed (in the absence of the jury) that he had heard Mr Terracini have a verbal altercation with a person in the Courtroom shortly before the commencement of proceedings. He claimed that he heard Mr Terracini say “Don’t you stare at me like that you flea”. It would seem that this assertion was made by the appellant in the absence of counsel after Mr Terracini had informed the Court that all instructions had been terminated, although the transcript does not record the withdrawal of counsel. The appellant told the Court that when he inquired of him, Mr Terracini said that the other person was a police officer but that he refused to disclose his identity to the appellant. The appellant, when addressing his Honour, said that “... if my counsel is distracted by a police officer in this court moments before addressing the jury it becomes of interest to me against the background of numerous such incident [sic] going on over the last six years”.

Later the appellant said to his Honour that he was “determined to make an issue of it”. So it was that when Mr Terracini subsequently refused to name the officer, his instructions were terminated. It was for Mr Terracini - not for the appellant - to make an assessment of the situation; he was the person who had been involved in the altercation; he was the one best able to decide what (if any) action should be taken. As his Honour said, Mr Terracini was “an experienced, responsible member of the bar” who was “well aware of his duties to his client”. In an expression of confidence in counsel, his Honour added that he had no doubt that Mr Terracini would have been satisfied that the incident did not in any way operate to the prejudice of the appellant. Regrettably, the appellant would not accept the views of his Honour; he was prepared to see his murder trial proceed without the benefit of counsel if his counsel would not submit to his unreasonable demands.

As from 10 October, the appellant remained without legal representation for the balance of the trial. This summary, which has not included his many changes of lawyers during the period preceding the trial, is indicative of the appellant’s inability to work in harmony with his lawyers. It is not difficult to conclude that these many changes would have been disruptive to the trial, adding to the many difficulties confronting the trial judge and the jury in a very difficult and important case.

To all this must be added a reference to the behaviour of the appellant throughout the course of the trial. He made vile, foul-mouthed, vituperative comments addressed to his Honour and to the Crown Prosecutor which led to the trial judge having him removed from the Courtroom for part of the trial. He was placed in a separate room with two-way video-television linkage to the Courtroom. His Honour was able to supervise the sound control so that the volume could be turned down when the appellant’s abusive language warranted such action. No doubt that would have presented difficulties to the appellant but they were of his own making. His Honour’s decision to deal with the appellant in this fashion is not the subject of a specific ground of appeal. But it is necessary to refer to the circumstances of his lack of legal representation and to his behaviour as they are relevant when considering some of the grounds of appeal.

See also the like remarks of Mason and Deane JJ at 400-403, Brennan J at 408-409 and Dawson J at 421.

The relevant principles applicable to the reception of fresh evidence were again considered by the High Court in Mickelberg v The Queen (1989) 167 CLR 259 at 273, 274, 301-302. In a joint judgment of Toohey and Gaudron JJ which was generally agreed in by the other members of the Court, their Honours said at 301-302:

“The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see, e.g., Gallagher v The Queen (1986) 160 CLR 392, at pp 395, 402, 410. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen (1974) 131 CLR 510, at pp 516-517, per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen (1979) 142 CLR 659, at pp 666, 675-677.

There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be ‘credible’, ‘cogent’, ‘relevant’, ‘plausible’: see, e.g., Gallagher (1986) 160 CLR, at pp 395-396, 401-402, 408-409; Craig v The King (1933) 49 CLR 429, at p 439; Ratten (1974) 131 CLR, at pp 519-520; Lawless (1979) 142 CLR, at pp 671, 676-677. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (Gallagher (1986) 160 CLR, at p 410, per Brennan J) or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the [accused]’ (Gallagher (1986) 160 CLR, at p 399, per Gibbs CJ and per Mason and Deane JJ (1986) 160 CLR, at p 402). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless (1979) 142 CLR, at pp 676-677, per Mason J, and Gallagher (1986) 160 CLR, at p 410, per Brennan J, but cf. Barwick CJ in Ratten (1974) 131 CLR, at pp 519-520.”

The affidavit of Dr Wallace does not raise any matter of fresh evidence. It does not contain any material as to the results of the testing undertaken with Dr Kobus in Adelaide which was foreshadowed at the commencement of the appeal. What the affidavit does reveal is that Dr Wallace was available to be called at the trial and was in contact with the appellant’s then lawyers although the various messages he received as to his attendance were contradictory. Mr Barnes in his evidence had said that some of the primer and propellant material found in the appellant’s car and at the murder scene were from the same type of ammunition, ie PMC brand .22 calibre. Dr Wallace, in paragraph 6 of his affidavit, said that there was “associative evidence to support that conclusion.”

The balance of the affidavit contains observations as to other possible explanations of the findings of Mr Barnes or attempts to cast doubt on them. The contrary opinions of Dr Wallace are not based in fact save in paragraph 7 where it is postulated that a .22 calibre Stirling rifle which had misfired had been carried in the boot of the appellant’s car. This is contrary to the appellant’s evidence that the Bradshaw rifle, to which this paragraph obviously refers, had jammed.

Dr Wallace makes no reference to the testing and data accumulated by Mr Barnes which led Mr Barnes to the conclusion that some of the particles found at the murder scene and in the appellant’s car were produced by firing through a silencer. The opinion expressed by Dr Wallace as to other explanations also ignores the substantial forensic evidence called from experts from around the world which was corroborative of Mr Barnes’ test methodology and the conclusions based on those results.

There is nothing in the affidavit of Dr Wallace in terms of his professional opinion which was not available, or could not with reasonable diligence have been available on the trial. On the authorities although this does not automatically and inflexibly exclude receipt of the evidence, it is a circumstance telling heavily against its reception. What is required in such a situation is evidence of sufficient strength to justify interference with the verdict. In the present case, the bare opinions of Dr Wallace, when considered against the evidence of Mr Barnes, the other substantial forensic evidence called on the trial, and the other circumstantial evidence linking the appellant with the murder weapon and the crime scene, lack the cogency to support a conclusion that the jury would have been likely to entertain a reasonable doubt about the guilt of the appellant if the evidence of Dr Wallace had been before it.

Unless the material contained in the affidavit of Dr Wallace satisfied the tests for the admission of evidence as fresh evidence on the appeal, no useful point would be served by its reception. For the above reasons, it did not satisfy the tests and its reception was rejected.

Ground 11

Ground 11 complains that the trial judge erred in admitting into evidence the enhanced tape recordings and the transcripts of conversation compiled by witnesses called by the Crown.

At trial, when the Crown sought to tender evidence of the utterances recorded on the tapes, an objection was made on the appellant’s behalf. The grounds of objection then stated challenged the legality of the placement and use of a listening device in the appellant’s flat, and the voluntariness of the utterances, it being asserted that a significant portion of the recorded utterances which the Crown sought to adduce into evidence may have been made whilst the appellant was asleep, or at least made whilst he was in bed late at night. It was also asserted that the recordings were made at a time when the appellant considered he was being harassed by the police. In the course of submissions the trial judge was asked to exercise the discretion contained in s.90(b) of the Evidence Act which empowers the Court to exclude an admission on the ground that its use would be unfair to the accused. The delay before the tapes and the transcripts were provided to the appellant in about mid 1993 was raised as an additional consideration. It was submitted that having regard to the poor quality of the recording, some of which was indecipherable, it was unfair that the appellant should be required to try and recollect what he might have been saying and thinking some three years previously.

The trial judge was satisfied that the listening device was lawfully placed and used pursuant to warrants duly issued for that purpose. The question of legality was ultimately conceded, and that conclusion was not challenged on appeal.

In support of the submissions relating to voluntariness and harassment the appellant gave evidence in the voir dire. He said he was aware that his premises had been bugged, and for that reason at times he made taunting statements directed to the police. He described being under constant surveillance, and receiving nuisance phone calls. He said police “thuggery” was causing him fear and affecting his sleep pattern. He gave evidence that someone threw rocks through his bedroom window in August and October 1992, and made a further attack in 1993 (these are dates well after those on which the recordings were made). He suggested that an attempt on his life had been made in an incident when he was involved in a rear end motor vehicle collision sometime in 1989.

At the time of the voir dire, the existence of Dr Milton’s reports had not been disclosed to the defence or to the Court. The allegations of harassment were supported only by the appellant’s evidence. The trial judge, whilst saying he was reluctant to express views on credibility in the course of a long trial nevertheless said: “I am constrained to say that the evidence adduced by the accused falls far short of establishing any reasonable inference that the car incident was a consequence of a calculated attempt by anyone to ... either murder him or cause him serious harm”. His Honour referred to a hearing which had occurred before Jenkinson J when the allegations of police harassment had been ventilated by the appellant in support of an application for a stay of the trial. His Honour noted that, significantly, the appellant had not obtained medical treatment or advice in relation to stress, although apparently he underwent some stress counselling by someone presumably with some expertise in the field.

The trial judge referred to his own assessment of the enhanced tapes which he had listened to in the course of argument, with the benefit of the transcripts proposed to be tendered by the Crown. His Honour concluded that the evidence should be admitted, saying that the matters raised by the appellant as to why the alleged admission of the tapes should be rejected could be raised before the jury. His Honour pointed out that the tapes and transcripts had been available to the appellant since 1993, and he did not consider the delay in disclosing that material to the appellant justified their exclusion in the exercise of the discretion.

On the appeal, the first contention advanced on the appellant’s behalf was that in exercise of the statutory discretion contained in s.138 of the Evidence Act to exclude evidence that is obtained improperly or in consequence of an impropriety the evidence should not have been admitted as the utterances of the appellant were made and recorded at a time when he was subject to an oppressive surveillance operation which the police knew or had reason to believe would be likely to cause the appellant to exhibit behaviour attributable to stress and to the “massive outrage” predicted as a likelihood by Dr Milton.

No express reference to s.138 of the Evidence Act was made in argument before the trial judge, although the challenge to the lawfulness of the use of the listening device plainly came within that section. Short of unlawfulness, it was not suggested that the evidence should have been rejected on the ground that it was improperly obtained. That argument is raised on appeal for the first time, and is now said to be supported by the fact that the police at the time had Dr Milton’s reports.

This argument must suffer the same fate as those raised under grounds 1(c) and (d) and 13. The appellant whilst denying the validity of Dr Milton’s opinions as to his mental condition at the time, cannot rely on them to allege that the police acted improperly.

Even if the opinions of Dr Milton as to the appellant’s mental condition were correct, the allegation of impropriety must still fail as those opinions amply justified the surveillance activities that were in place around the time when the relevant utterances of the appellant were recorded. No element of trickery was involved causing the appellant to make the utterances. He was aware that his premises were bugged. Even if he were, to the knowledge of the police, experiencing “massive outrage”, the conduct of the police was not such that it should attract curial disapproval. The police were engaged in the investigation of a murder, and in addition had reason to be concerned about the safety of some members of the police force and public. In an investigation in circumstances of this kind the public interest in detecting and punishing crime, and protecting the public, outweigh social nicety: see R v O’Neill [1996] 2 Qd R 326 at 422, 423 and 429; and R v Pavic (unreported, Victoria Court of Appeal, 19 December 1996).

On the information placed before the Court on the voir dire the trial judge was not satisfied by the evidence of alleged harassment that the making of the admissions which the Crown alleged were recorded on the tapes was influenced by oppressive conduct. Section 84 of the Evidence Act relevantly provides that evidence of an admission is not admissible unless the Court is satisfied that the admission and the making of the admission were not influenced by violent, oppressive, inhuman or degrading conduct towards the person who made the admission. Although s.84 of the Evidence Act was not referred to by counsel in argument, or by the trial judge when delivering his ruling, it is clear, in our view, that the issue of voluntariness raised by s.84 was the issue which his Honour considered and decided against the appellant. The conclusion of the trial judge has not been shown to be wrong. On the contrary, in our view the evidence failed to suggest any cogent link between the acts of harassment alleged by the appellant and the making of the utterances by him when alone within the four walls of his flat.

Next it was submitted that the procedure adopted by the trial judge by which the recorded utterances and the transcripts prepared by Crown witnesses were placed before the jury led to a miscarriage of justice. It was said that the trial judge erred in allowing the jury to receive evidence from Mr McQuillen as to his interpretation of sounds reproduced by playing the enhanced tapes, and transcripts setting out his interpretation, before it listened to the tapes. It was submitted that the jury should have first listened to the tapes unaided by the transcript or Mr McQuillen’s evidence, and only then been given the transcripts as an aide-memoire for use thereafter in deciphering the tapes. It was submitted that the trial judge failed to follow the procedure approved for the admission and use of tape recorded conversation by the High Court in Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180.

In Butera a tape recording of conversations implicating the accused was admitted into evidence. The conversations were in Punjabi, and translations into English were made by interpreters who gave oral evidence of their translations and verified the transcript of them. The transcripts were taken into the jury room when the jury retired. By a majority decision the High Court held that the transcripts had been properly admitted into evidence and it was appropriate for the jury to have had them in the jury room.

The headnote to the decision in the Commonwealth Law Reports says, in part, “Per Mason CJ, Brennan and Deane JJ. (1) A tape recording is not admissible evidence of its contents unless it is first played over. Accordingly a transcript is not admissible on the basis of its ability to inform the court of the contents of the tape.”

We do not understand the decision to require, either as a precondition to the admission of evidence as to the contents of the recorded sounds, or as a matter of invariable procedure, that the tape must be played over first to the jury in the manner contended for by the appellant. The point of principle identified by the majority judgments was that a transcript was not a copy of the tape, but a written record of what has been heard. Therefore, prima facie, the issue whether the recorded conversation took place should be proved by playing the tape in Court, not by tendering evidence, whether written or oral, of what the witness heard when the tape was played: see Butera at 185.

The High Court recognised that at times the sounds recorded on a tape may be indistinct and difficult to decipher. In these circumstances a transcript of conversation contained in the recording may provide a useful aid to the jury in its perception and understanding of the evidence tendered by playing the tape. Mason CJ, Brennan and Deane JJ said at 187:

“Although evidence derived from a tape recording is not subject to some of the frailties of human testimony, it may exhibit deficiencies from which human testimony is usually free. A tape recording which is indistinct may not yield its full content to the listener on its first playing over. It may need to be played over repeatedly before the listener’s ear becomes attuned to the words or other sounds recorded. This situation has led courts to receive transcripts not as evidence of the conversation or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape. In Williams v. The Queen [1982] Tas. R. at p.274, Neasey J. cited with approval a Canadian case Reg. v. MacLean and MacLean [No. 1] (1979) 49 C.C.C. (2d) 399 in which a trial judge held:

‘...that he would not permit the transcripts to be used as evidence of the contents of the recording, but did admit them for the use of ‘the trier of the facts, after being properly instructed in that regard, for the sole purpose of following the playing of the tape in court and to assist the trier of the facts in determining what is in fact recorded thereon.’’

Where the quality of the recording is such that the provision of a transcript for the use of the jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation.”

Mason CJ, Brennan and Deane JJ cited with approval from the judgment of Cooke J in R v Menzies [1982] 1 NZLR 40 at 49, where his Honour said:

“The problem is how best to enable a jury to assess the contents of a tape, in the light of those aims. It is a problem sui generis and not automatically answered by settled principles.

If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the Judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused.”

The judgment of Mason CJ, Brennan and Deane JJ continues at 188:

“The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in understanding what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape.”

In the present case that direction was given in clear terms by the trial judge to the jury before any of the evidence of the contents of the tapes was adduced, and it was repeated in the summing up.

The evidence of the witnesses on this topic disclosed that the tape recordings upon which the Crown sought to rely are in many places indistinct, and extremely difficult to decipher. The master tapes were run at a slow speed when the recordings were made, and this added to the difficulties in later deciphering the recorded sounds. The tapes were transferred to a digital form of electronic recording, and then enhanced. Mr McQuillen and Ms Lawson listened to the tapes for thousands of hours and became qualified ad hoc in interpreting the utterances of the appellant that were audible. It was common ground between all the witnesses on this topic that the transfer of the recordings to digital form and the enhancement process did not produce artefacts. The jury, when it heard the recordings, listened to enhanced tapes rather than the original master tapes. This was done without objection, and the master tapes were tendered in evidence so that they could have been played had that been requested.

The poor quality of recording would have made it very difficult for the jury to have comprehended the recorded utterances if it had listened to the tapes unaided by the transcript prepared by Mr McQuillen. It seems to us that it would have been a largely pointless exercise to have required this, and one that would have been immediately followed by what in fact occurred, namely that the jury was informed of Mr McQuillen’s interpretation of the sounds, and then the tapes were played whilst the jury had Mr McQuillen’s transcript before it as an aid. The procedure followed in this case was the procedure approved in R v Miladinovic (1992) 107 FLR 241 at 248 and R v Watts [1992] 1 Qd R 214 at 222.

Moreover, s.48(1)(c) of the Evidence Act authorised the reception of the transcripts as evidence in the case. That paragraph reads:

1. “A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:

...

(c)if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)-tendering a document that is or purports to be a transcript of the words.”

The definition of “document” includes a record of information from which sounds can be reproduced. As the transcripts were admissible under s.48(1)(c) as evidence of the contents of the tapes, the procedure followed by the trial judge could not affect the admissibility of the tape recordings. As it was, the transcripts were received into evidence as an aide-memoire, and the jury was instructed to treat the transcripts only as an aid. Where, on the evidence adduced in a particular case, there is doubt or disagreement whether the transcript, or part of it, accurately deciphers the sounds captured on the tape, it seems to us that this should be the role of the transcript, notwithstanding the provisions of s.48(1)(c) of the Evidence Act. In the present case, the transcript verified by Mr McQuillen, and later by Ms Lawson, and the transcript prepared by Dr French were admissible for the purpose of assisting the jury.

The appellant himself addressed a further argument to the Court that the tape recordings should not have been admitted into evidence because of the “degradation” of the tapes. As presented, the appellant’s argument was rather one that his counsel had failed him because advice had been received by the defence from an expert in phonetics that the Crown witnesses should be asked three questions relating to the quality of the tapes and the tape speed at which the recordings were made. This argument is difficult to follow as the appellant was representing himself at the time when the relevant Crown witnesses as to the tape recordings gave evidence. But in any event, when the defence expert witnesses, Mr Mills and Dr Butcher, gave their evidence they did not refer to the speed at which the recordings were made as a relevant factor. There is no evidentiary base for the appellant’s particular submission. The quality of the recordings of sound captured in the tapes was reflected directly in the difficulties which were encountered in deciphering the utterances of the appellant. These difficulties were considered by the trial judge when the admissibility of the tape recordings was argued. His Honour listened to the tapes, and he was aware that there was disagreement between experts in phonetics who had been instructed by the Crown and the defence. The trial judge took the quality of the tapes into account as one of the factors to be considered in the exercise of his discretion whether to exclude the tapes on the ground of unfairness. His Honour said:

“...having listened to the tapes and read concurrently the transcripts of them I must say that with some exceptions which may well have been irrelevant it was, I thought, not difficult to comprehend with the benefit of the transcripts what was being said. In some rare cases it is possible to detect what is being said without reliance upon the transcript itself...”

It was not suggested that this was an erroneous assessment of the tapes. The trial judge ruled that he should not exercise his discretion to exclude the evidence on the ground “that it would be dangerous to go to the jury”. His Honour was referring in this respect to the general discretion, now embodied in s.137 of the Evidence Act, to exclude evidence in a criminal trial if its probative value is outweighed by the danger of unfair prejudice to the defendant.

It was in the context of the exercise of the same discretion that the question of delay between the time when the recordings were made and the disclosure of the transcripts to the appellant fell to be considered by the trial judge. As the High Court observed in Butera, at 187, evidence from tape recordings is not subject to some of the frailties of human testimony. What was recorded in 1990 remained the same in 1993. The delay did not affect the quality or the accuracy of the recording. The delay was relevant only to the appellant’s recollection of his conduct at the time when the recordings were made. In this regard the recordings themselves should have provided an aid for him to refresh his memory.

In these circumstances, and as the tapes, as deciphered by Mr McQuillen, Ms Lawson and Dr French, contained statements which the jury would be justified in treating as incriminating in the absence of evidence from the appellant which raised, at least as a possibility, an innocent explanation, there is no merit in the challenge to the exercise of the discretion by the trial judge.

In the course of submissions on this ground of appeal counsel for the appellant criticised the quality of the evidence of the witnesses for the Crown who had prepared transcripts from the tapes, contending that as Mr McQuillen, Ms Lawson and other police officers who had become qualified ad hoc in deciphering the appellant’s voice had conferred together over the interpretations, and as their agreed transcripts had been placed before Dr French who was engaged to verify them, there was the potential for contamination upon contamination. It was submitted that in the result the accuracy of the transcripts must be suspect; they could be dangerously wrong and had so great a risk of inaccuracy that they could not safely be used in evidence. This submission in our view does not give appropriate recognition to the fact that Mr McQuillen and Ms Lawson had each spent enormous periods of time working on deciphering the tapes and swore that they independently arrived at the interpretations reflected in their transcript, and to the fact that Dr French, a highly qualified expert in phonetics, also made an independent evaluation of the tapes. Nor does it give appropriate recognition to the fact that insofar as the interpretation of the sounds was to be challenged by the appellant, the jury itself could listen to tapes. Unlike evidence of an out of court identification by a witness, this evidence was capable of independent evaluation by the jury by listening to the tapes itself.

In our opinion the challenge to the admission of the enhanced tape recordings and transcripts fails.

Conclusion

In our opinion the appellant has not made out any of the grounds of appeal. As pointed out earlier in the judgment, the allegation in Ground 9 of the Notice of Appeal which pleads that the conviction is unsafe and unsatisfactory was dependent on the appellant making out one or more of the other grounds of appeal.

It was conceded during the hearing of the appeal that there was evidence upon which a jury, properly instructed, could convict. We would add that in our opinion the Crown case established a very strong circumstantial case against the appellant. Whilst in the appeal he has attacked aspects of the Crown case, the attack did not address the strength of the other aspects of the Crown case, in particular the strength of the forensic evidence about the gunshot residues, and the force of the coincidence of so many strands of evidence that combine to point the finger of guilt at him.

We consider that the appeal should be dismissed.

I certify that this and the preceding 174     pages are a true copy of the Reasons for Judgment of the Court

Associate:  Christopher Withers

Dated: 25 June 1997

Counsel for the appellant  : Mr G. James QC
  Mr S. Odgers

Solicitor for the appellant  :  Bernard Collaery and Associates

Counsel for the respondent  :  Mr M. Adams QC
  Mr T. Game SC
  Mr J. Ibbotson

Solicitor for the respondent  :  Director of Public Prosecutions (ACT)

Date of hearing  :  10-14, 18-21 March 1997