Martinez v The State of Western Australia
[2007] WASCA 143
•6 JULY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MARTINEZ -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 143
CORAM: MARTIN CJ
STEYTLER P
MILLER JA
HEARD: 5-8 JUNE 2007
DELIVERED : 6 JULY 2007
FILE NO/S: CACR 94 of 2006
BETWEEN: JOSE FELIX MARTINEZ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 95 of 2006
BETWEEN :SALVATORE FAZZARI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 96 of 2006
BETWEEN :CARLOS PEREIRAS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
File No :INS 150 of 2004
Catchwords:
Criminal law - Appeal - Appeal against conviction - Whether unreasonable or could not be supported by the evidence - Criminal Appeals Act 2004 (WA) s 30(3)(a)
Criminal law - Appeal - Lies - Edwards v The Queen (1993) 178 CLR 193 - General principles - Standard of proof - Whether capable of amounting to implied admissions of guilt - "Intractably neutral" - Misdirection by trial Judge
Criminal law - Appeal - Directions to jury - Circumstantial evidence - Whether failure to identify indispensable links required to be established beyond reasonable doubt - Whether direction on meaning of probable consequence required - Whether directions on complicity and common purpose inadequate - Whether direction to scrutinise appellants' evidence undermined presumption of innocence - Whether failure to direct as to meaning of "esoteric knowledge" - Whether factual misdirections - Whether trial Judge correct to conclude that no identification warning required - Whether any reversal of onus of proof - Whether trial Judge invited jury to speculate
Criminal law - Appeal - Whether trial Judge erred in allowing prosecution to depart from its case as opened - Whether trial Judge erred in relation to hostility of a witness - Whether trial Judge erred in ruling inadmissible an out of court confession and refusing crossexamination
Criminal law - Appeal - Procedural fairness - Communication from juror to trial Judge - Failure to disclose letters to counsel - Discharge of juror - Reasonable apprehension of bias test
Criminal law - Appeal - Evidence - Application to adduce additional evidence - Whether fresh or new - Admissibility of expert medical evidence - Applicable principles
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4), s 40
Criminal Code (WA), s 7, s 8
Result:
Appeals allowed
Convictions quashed
Verdicts of acquittal directed
Category: A
Representation:
CACR 94 of 2006
Counsel:
Appellant: Mr D Grace QC & Mr S B Watters
Respondent: Mr B Fiannaca SC & Mr S F Rafferty
Solicitors:
Appellant: Thames Legal
Respondent: State Director of Public Prosecutions
CACR 95 of 2006
Counsel:
Appellant: Mr M J McCusker QC, Mr P G Priest QC &
Mr A J Robson
Respondent: Mr B Fiannaca SC & Mr S F Rafferty
Solicitors:
Appellant: Legal Aid WA
Respondent: State Director of Public Prosecutions
CACR 96 of 2006
Counsel:
Appellant: Mr T F Percy QC, Mr J A Davies &
Mr F C Voon
Respondent: Mr B Fiannaca SC & Mr S F Rafferty
Solicitors:
Appellant: Legal Aid WA
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Arnold v The King (1946) 48 WALR 83
Axford v The Queen, unreported; CCA SCt of WA; Library No 980200; 20 April 1998
Banks v The Queen [2003] WASCA 198
Bright (2000) 114 A Crim R 466
BRS v The Queen (1997) 191 CLR 275
Camilleri (2001) 119 A Crim R 106
CDJ v VAJ (1998) 197 CLR 172
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Cotic (2000) 118 A Crim R 393
Credland v Knowler (1951) 35 Cr App R 48
Darkan v The Queen (2006) 80 ALJR 1250
Dawson v M'Kenzie (1908) 45 Sc LR 473
de la Espriella‑Velasco v The Queen (2006) 31 WAR 291
De Rosa v Western Australia (2006) 32 WAR 136
Dyers v The Queen (2002) 210 CLR 285
Eade v The King (1924) 34 CLR 154
Eather v The King (1914) 19 CLR 409
Edwards v The Queen (1993) 178 CLR 193
Festa v The Queen (2001) 208 CLR 593
Goonan (1993) 69 A Crim R 338
Harris v The Queen (1990) 55 SASR 321
Hart (2002) 131 A Crim R 596
Ho (2002) 130 A Crim R 545
Jones v Dunkel (1959) 101 CLR 298
Lawless v Turner [2005] WASC 254
Libke v The Queen [2007] HCA 30
Livesey v The New South Wales Bar Association (1983) 151 CLR 288
M v The Queen (1994) 181 CLR 487
McLellan v Bowyer (1961) 106 CLR 95
Meko v The Queen (2004) 146 A Crim R 131
Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311
Palmer v The Queen (1998) 193 CLR 1
Power (1996) 87 A Crim R 407
R v Barlow (1997) 188 CLR 1
R v Ciantar (2006) 167 A Crim R 504
R v Czajkowski (2002) 137 A Crim R 111
R v De Marco, unreported; CA SCt of Vic; 26 June 1997
R v Deruiter [2003] VSCA 66
R v Franco [2006] VSCA 302
R v Franklin (2001) 3 VR 9
R v GAE (2000) 1 VR 198
R v Gill (2003) 142 A Crim R 22
R v Grosser (1999) 73 SASR 584
R v Hartwick (2005) 14 VR 125
R v Hillier (2007) 81 ALJR 886
R v Hutchison (1990) 53 SASR 587
R v Jackson [1995] 1 Qd R 547
R v Jakimov [2007] VSCA 9
R v Kerim [1988] 1 Qd R 426
R v Konstandopoulos [1998] 4 VR 381
R v Laz [1998] 1 VR 453
R v Lucas [1981] QB 720
R v M [1995] 1 Qd R 213
R v Miah [2003] EWCA Crim 3713
R v Pearson [1996] 3 NZLR 275
R v Pisano [1997] 2 VR 342
R v Renzella [1997] 2 VR 88
R v Roberts [2005] 1 Qd R 408
R v Russo (2004) 11 VR 1
R v Spinks [1982] 1 All ER 587
R v Stretton [1982] VR 251
R v Sutton (1986) 5 NSWLR 697
R v Tripodi [1961] VR 186
R v Walton [2001] QCA 309
R v White [1998] 2 SCR 72
R v Williams [2001] 1 Qd R 212
R v Yuill (1994) 34 NSWLR 179
Rabey v The Queen [1980] WAR 84
Ramey v The Queen (1994) 68 ALJR 917
Ramstead v The Queen [1999] 2 AC 92
Ratten v The Queen (1974) 131 CLR 510
Ridley v Whipp (1916) 22 CLR 381
Robinson v The Queen (1991) 180 CLR 531
Shepherd v The Queen (1990) 170 CLR 573
Smith v The Queen (1985) 159 CLR 532
ST (1997) 92 A Crim R 390
Stafford v The Queen (1993) 67 ALJR 510
Straker v The Queen (1977) 51 ALJR 690
Stuart v The Queen (1974) 134 CLR 426
Urbano v The State of Western Australia [2006] WASCA 147
Webb v The Queen (1994) 181 CLR 41
Weiss v The Queen (2005) 224 CLR 300
Woolley (1989) 42 A Crim R 418
Woon v The Queen (1964) 109 CLR 529
Zoneff v The Queen (2000) 200 CLR 234
JUDGMENT OF THE COURT: The appellants ("Martinez", "Fazzari" and "Pereiras") were indicted on a charge of wilful murder. It was alleged that on 28 February 1998 at Perth they wilfully murdered Phillip John Walsham ("Walsham"). There were two alternative counts on the indictment. One was an allegation that on the same date and at the same place the appellants murdered Walsham. The other was that on the same date and at the same place they unlawfully killed Walsham.
The appellants were tried in the Supreme Court at Perth before EM Heenan J and a jury between 1 March 2006 and 7 May 2006. They were each convicted of the crime of murder.
The appellants appeal against their convictions. There are numerous grounds of appeal, all of which are common to the three appellants. The appellants Martinez and Pereiras adopted the appellant Fazzari's grounds of appeal filed 8 December 2006.
The first ground of appeal is that, having regard to the evidence, the verdicts of guilty were unreasonable or could not be supported. This ground reflects the provisions of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) which provides:
"30. Appeal against conviction, decision on
(1)This section applies in the case of an appeal against a conviction by an offender.
(2)Unless under subsection (3) the Court of Appeal allows the appeal, it must dismiss the appeal.
(3)The Court of Appeal must allow the appeal if in its opinion -
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported … "
Section 30(3)(a) of the Criminal Appeals Act 2004 is in almost identical terms to s 6(1) of the Criminal Appeal Act 1912 (NSW), which was under consideration in M v The Queen(1994) 181 CLR 487. As Mason CJ, Deane, Dawson and Toohey JJ pointed out (at 492), there are criminal appeal provisions in common form in Australia which allow a verdict which is unsafe or unsatisfactory to be set aside, notwithstanding that those words do not appear in the legislation.
The test
The test which faces a Court of Appeal in considering whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence, is set out in two passages from the judgment of Mason CJ, Deane, Dawson and Toohey JJ (at 492 ‑ 493). They are in the following terms:
"The question is one of fact which the court must decide by making its own independent assessment of the evidence [Morris v The Queen (1987) 163 CLR 454] and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' [Hayes v The Queen (1973) 47 ALJR 603 at 604]. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [Whitehorn v The Queen (1983) 152 CLR 657 at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 532; Knight v The Queen (1992) 175 CLR 495 at 504 ‑ 505, 511]. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [Chamberlain v The Queen (supra) at 621]."
Ground 1
In the present case, each appellant relies upon the following particulars to support the contention that the verdicts of guilty were unreasonable or could not be supported, having regard to the evidence:
"Particulars
(a)There was no evidence that the appellant had any involvement with the death of Walsham, or that he was at or in the vicinity of the footbridge at the time when (on the prosecution case) Walsham was thrown from it by one or more of the accused.
(b)The only witness (Pigliardo) who saw what, on the prosecution case, was Walsham thrown from the footbridge by the accused:
(i)did not identify the appellant or any of the accused;
(ii)said she saw no sign of a struggle;
(iii)did not see any of the persons, who she said were on the footbridge at the time, lay hands on Walsham;
(iv)described as 'a back flip' the way in which she said the person went off the footbridge;
(v)was unsure of the number or the sex of the persons she saw on the footbridge.
(c)There was no evidence that the abrasion on the back of Walsham (which on the prosecution case was a mark made by a tyre lever used by one of the accused on returning to the Stirling Station) was in fact caused by a tyre lever, as distinct from the possibility that it may have been, and in any event the only evidence (given by Margolius) as to when the abrasion was probably made meant that it could not have been within a few minutes before Walsham was thrown from the footbridge (as the prosecution hypothesised).
(d)There was no evidence capable of satisfying a reasonable jury beyond reasonable doubt that the accused had sufficient time, after leaving Fulmar Street, to return to the Stirling Station, and be on the footbridge with Walsham, when Pigliardo saw the 'group' of people on the footbridge.
Further, the verdict was unsafe or unsatisfactory, and it would be dangerous and a miscarriage of justice for the verdict to stand, having regard to the above, to the matters raised in the following Grounds, and to the other circumstances of the case, including the danger that, in the absence of any direct evidence implicating the appellant, and notwithstanding the trial Judge's directions, the verdict may have been affected by the evidence of an alleged confession by the appellant's co‑accused, Martinez, or by prejudice or 'propensity reasoning' based on the evidence of the appellant's earlier assault of the deceased."
The argument on the first ground of appeal was presented by counsel for Fazzari. Each of the other appellants adopted it. There was a minor variation in relation to the appeal of Martinez. To appreciate the ground, it is necessary to provide a brief summary of the relevant facts. A portion of this summary is taken from the analysis of the facts contained in the learned trial Judge's directions to the jury.
The facts
The train of events which led to the death of Walsham began on Friday, 27 February 1998. On that day, Walsham finished work early in the afternoon and went to the city with friends. He returned to his parents' home in Kingsley, where he was living at the time. He was then 21 years of age. Friends called at his house, and from there the group went to the home of some other friends in Scarborough. They then went on to Claremont, Fremantle and Leederville. They drank a good deal - so much so that one of the group was ejected from an hotel in Fremantle and from a nightclub in Leederville.
The group left Leederville and walked to the train station, where they caught the last train from Perth to the Stirling train station. This train proceeded north along the Mitchell Freeway, stopping first at Glendalough. There, Walsham got off the train, but he was pursued by his friends and either dragged or carried back onto the train by them. Because of his drunken condition, he was put on the floor. Two security guards appeared, but it seems that Walsham was causing no offence to anybody and was regarded by other travellers as a source of amusement.
Walsham and his friends alighted with a number of other people at the next stop, which was Stirling train station. Amongst Walsham's friends were Craig Betts ("Betts") and Spencer Toogood ("Toogood"). Betts walked away from the train station ahead of Toogood and Walsham. Toogood realised that Walsham was not following and went back to the train station and saw that Walsham was still there. Walsham was not feeling well. Toogood set off after Betts to bring him back, but other events intervened.
At the same time as this was happening, Rachael Lincoln ("Lincoln") and Shevaun Lillywhite ("Lillywhite"), who had been passengers on the last train from Perth, were walking along Cedric Street. Lillywhite observed a white Commodore, which stopped to offer them a lift. Both Lillywhite and Lincoln got in the vehicle. Its occupants were the appellants and Alberto Magistro ("Magistro").
There was some dispute at trial as to the direction in which the white Commodore had been travelling. Lillywhite said that it had been travelling south‑west on Cedric Street (towards the railway station) when she first saw it. The appellants in their evidence contended that they had been travelling in the opposite direction. The direction of travel was not thought by the learned trial Judge to be of critical importance.
Michael Conheeney ("Conheeney") had also been a passenger on the last train from Perth. He was walking along Cedric Street. He observed a man (Betts) walking along the road a little way in front of him.
There was an incident between Betts and the occupants of the white Commodore. Betts threw what he claimed to have been a ball, but which the appellants thought was a rock. A bottle was then thrown backwards and forwards between the group before it smashed on the road near the appellants' car. This led to the appellants chasing Betts, who, with Toogood, ran back towards the Stirling train station.
Conheeney observed that the white Commodore was stationary during this incident. The two men who had got out of it returned to the car. He said that the vehicle then did a "rapid U‑turn" and "roared" back in the direction of the railway station at a speed of 80 to 100 kilometres per hour.
Next to the Stirling train station was a carpark. It was known as the "Kiss 'n' Ride" carpark. There was a footbridge which led from it to an area described as the bus concourse. This latter area was one where buses (and taxis) pulled up to collect or discharge passengers who had taken or wished to take the train. The footbridge which led to the bus concourse passed over a freeway onramp for southbound traffic wishing to join the Mitchell Freeway.
Betts and Toogood reached the Kiss 'n' Ride carpark where they found Walsham. They left him and ran across the footbridge towards the bus concourse, believing that their pursuers would not connect them with Walsham.
The appellants drove into the carpark. They were closely followed by a maroon Commodore. This vehicle was driven by Toby Vangelovski ("Vangelovski") and he was accompanied by Lorena Rodriguez ("Rodriguez"). The appellants jumped out of the vehicle in which they were travelling and ran across the footbridge. Fazzari and Martinez were at the forefront. They were followed by Pereiras and Vangelovski (who had jumped out of his vehicle). Fazzari and Martinez were shouting at Betts and Toogood. The latter got far enough ahead of their pursuers to jump into a taxi, which fortuitously was stationary in the bus concourse area. It was already occupied by one passenger, but Betts and Toogood were anxious to get away and told the passenger that they would pay for him as long as they could get out of the place quickly.
The taxi driver was Pavel Veljanoski ("Veljanoski"). He had already turned on the taxi meter. He turned it off when Betts and Toogood persuaded him to accept them as passengers. The agreed time at which the meter was turned off was 2.23.56. This becomes an important time, because it sets the first time parameter for the events that then unfolded. A short period of time (estimated at between 10 and 30 seconds by some) elapsed before the taxi drove away, with the result that Betts and Toogood evaded their pursuers.
At the time the taxi left the bus concourse, the pursuers were on the footbridge. When they saw the taxi leave, they abandoned the chase. Fazzari and Martinez returned down the footbridge stairs to the Kiss 'n' Ride carpark. Pereiras was present, but had not got as far on the footbridge as the others. As the group descended, they came upon Walsham. Fazzari and Martinez attacked him. Without explanation, Fazzari kicked him to the head. It was described as a nasty and powerful kick by Lillywhite and a "huge kick, like a martial arts kick" by Lincoln. Lincoln did not give evidence, but had made a statement to that effect. The statement was read in evidence. Martinez also kicked Walsham to the head without explanation. There was no suggestion that Pereiras had attacked Walsham.
At the time Fazzari kicked Walsham, he was not armed. He had, however, earlier been in possession of a tyre lever. He was armed with that tyre lever when chasing Betts and Toogood. He had obtained the tyre lever from Pereiras, who was the owner and driver of the white Commodore. The tyre lever came from the boot of the car. The boot was opened either from the inside or the outside of the car, but it was not clear which. Nor is it clear whether and when the tyre lever had been returned to Pereiras.
One thing was clear. Fazzari had used the tyre lever he had in his hand to strike the handrail on the footbridge. He later admitted in evidence doing it 18 times, because he was "just pissed off". His aggression was occasioned by the fact that Betts and Toogood had got away. He admitted in his testimony to screaming at them words to the effect, "Come back, chicken shits".
After the attack on Walsham, there was remonstration with Fazzari from Rodriguez, who was one of the group in the Commodores. She pushed Fazzari into the white Commodore. Lillywhite and Lincoln were outraged at what had happened and decided to leave and have nothing further to do with the men who had picked them up. As they left, the white Commodore followed them and stopped at the entrance to the Kiss 'n' Ride carpark in an attempt to persuade them to get back into the vehicle. They refused to do so. It then drove away at speed. Its occupants were the appellants and Magistro. He had been in the car throughout. The car was followed by the maroon Commodore, which was driven by Vangelovski and in which Rodriguez was a passenger.
Lincoln and Lillywhite went back to check on Walsham. They were concerned about him and thought that he was in distress. They endeavoured to persuade him to seek assistance. He indicated to them that he was all right and left them, walking towards the footbridge. They saw him begin to ascend the first flight of stairs leading to the footbridge. This was the last occasion upon which Walsham was seen alive.
A period of time, which is very much in dispute, then elapsed before Walsham was seen again. When we conclude that he was seen again, a body which was clearly his was seen to fall from the footbridge. The time at which this occurred was generally accepted to be between 2.38 and 2.39 am. The defence were not prepared to concede that this event had occurred, but at the hearing of the appeal did not dispute that if it did occur, it must have been at or about that time. As Veljanoski's taxi meter had been turned off at 2.23.56, a period of approximately 14 to 15 minutes must have elapsed between the incident which we have described and Walsham's fall from the footbridge.
Evidence of Pigliardo
Although the defence questioned "the fall", there was clear evidence that such a fall was observed. Clare Marie Pigliardo ("Pigliardo"), a 27‑year‑old senior human resource officer with an Honours degree in psychology, was travelling as a passenger in her mother's vehicle on the Cedric Street exit from the Mitchell Freeway which approached Cedric Street. At the intersection of the exit ramp and Cedric Street was a set of traffic lights. Beyond it was the southbound on‑ramp to the freeway, and it was over this on‑ramp that the pedestrian footbridge was erected. It was about 92 metres from the traffic lights at Cedric Street at which traffic exiting the freeway would be required to stop if those lights were red as the driver approached.
Pigliardo had been with her family at a function in Warwick. She had been there several hours and during the course of the evening had drunk what she described as "a few fruit punches with Vodka in it". She estimated that she had about four of these over a period of something like six hours. Pigliardo, her mother and her sister left Warwick at approximately 2.30 am and took the freeway back to their home in Woodlands. Pigliardo was in the front passenger seat. She recalled the approach to the Cedric Street intersection. The vehicle in which she was travelling was in the centre lane of the exit ramp, but the left lane for vehicles which had to turn right into Cedric Street. A turn to the left into Cedric Street was via a slip road.
Pigliardo recalled that the vehicle in which she was travelling stopped at the intersection, waiting for the traffic lights to change. She was looking straight ahead, and the pedestrian footbridge leading from the Kiss 'n' Ride carpark to the bus concourse was directly in front of her. She saw no other vehicles at the intersection, either travelling on Cedric Street, or stationary waiting for the traffic lights to change. She was certain that there was no vehicle alongside hers and none behind her. What she then saw is best recounted by direct reference to her testimony. It was as follows:
"We arrived shortly at the red traffic light and I was looking in the vicinity straight ahead and noticed a group of people walking briskly up the second flight of stairs towards the train station, so from the kiss'n'ride section across, and glanced to mum because I knew it was the early hours of the morning and said, 'You know, it's bizarre that people are hurriedly looking like they're going to catch a train,' given there was no trains or buses running at that hour …
…
So having seen these people, are you able to tell us anything about the people - the number that you saw?‑‑‑It was a small group of people, so - believe it was sort of three or four people ascending the stairs, yeah.
…
… and then glanced back, and the group on the footbridge had stopped, obviously heading towards the train station, and they were sort of clustered around the left hand side of the footbridge, and within a sort of split second one of the parties of that group propelled backwards over the furthest part of the railing and cleared the railing with - it looked like they would have been really athletic to obviously do that, and then followed the body down, whereby it bounced off the bitumen on the road, and I was just shocked. I think I swore, I screamed, and then was just numb. I was horrified.
…
… it looked like they were very athletic or gymnasts or a swimmer backflipping - I could see the top half of the body and it appeared that the person that did that would have been facing towards me given it looked like his chest launched forward without the use of his hands or his arms to give him momentum. It just appeared a chest launch forward and then hit the concrete and bounced, and that horrified me.
…
The other persons who were on the footbridge, where were they in relation to the person that went over the rail?‑‑‑They were clustered around the individual that went over the rail.
…
Are you able to give us any further description of the persons that you saw on the footbridge; first of all, whether male or female?‑‑‑Given the time of evening or morning as it was and the way they ascended the stairs and - they weren't impeded by age. I know as people get older their body postures and their interactions with others change. They appeared, the way they were standing and interacting with each other - and the first impressions I got, that they were young people and more likely male because they weren't impeded by tight clothing or heels or anything else that you would assume, given the scenario and the situation, if they had been out that they wouldn't be wearing sort of running shoes. Certainly, you know, there's not much of a difference between deciphering sex if everyone is kind of in their joggers running up stairs, but I just assumed that they weren't impeded by heels or anything else like that.
What about size?‑‑‑There was nothing that stood out about their size. They appeared just to be sort of average height and weight."
Pigliardo said that the persons seen by her on the footbridge were "within talking distance" but not "pinned together". She saw no sign of a fight or struggle. The footbridge was lit. Pigliardo described the persons she saw as standing beneath lights and she described the area as well lit. It was towards the left‑hand side of the footbridge that she saw the group on the footbridge. This would have been the eastern side of the footbridge. She described the body bouncing a significant distance from the ground. She thought it was about a metre. It ended up with the head towards the kerb and the legs at a diagonal to the kerb, but towards the vehicle in which she was sitting.
Pigliardo's vehicle then moved away from the intersection. Pigliardo had been looking at the body, but another vehicle interrupted her vision and as the vehicle in which she was travelling left the intersection, she glanced back at the footbridge and saw nobody there. The group she had previously seen was no longer in sight.
Pigliardo's testimony was strongly challenged at trial. This was particularly so in relation to the number of people she said she saw on the footbridge. She agreed that in 1998 she had, on three occasions, stated that she had seen two to three people on the footbridge. In her evidence at the trial she said that this number did not include the person who fell, although she accepted that her statements did not read that way. In a statement made to police on 2 March 1998, she had said she saw two or three people walking over the pedestrian walkway and in two further statements made in the same month she repeated the same thing - although she thought that her focus may have been on minor revisions that were made to the statements. In the course of an interview with police on 17 August 1998, she had said that there had been no less than three and no more than five persons on the footbridge. Nevertheless, under intensive cross‑examination, she held strongly to the view that her recollection was that there were three or four people ascending the stairs. She said, "I believe including the body that left the bridge it was four up on the bridge". At the end of her cross‑examination by Mr McCusker QC for Fazzari, she was firm in her view. She expressed it in this way:
"All right. Do you now have a clear recollection of the events of that night of 28 February?‑‑‑I have a crystal clear recollection of certain instances of that evening.
Can you clearly recall the number of people that were on that footbridge?‑‑‑I can.
Remember I took you to a passage in your evidence that you gave at the previous trial where you said you wouldn't stake your life on the number. Is that right?‑‑‑That's correct, and I think there's also a passage in that trial where I said I could confidently say four … "
There are some important questions which arise in relation to the facts at this point. The first is what Walsham had been doing between the time he was seen by Lincoln and Lillywhite (when he was seen to walk up the first flight of steps at the footbridge) and the time at which he fell from the footbridge. That time was of the order of 14 or 15 minutes or less. The second question is whether the persons who Pigliardo saw ascend the footbridge were the appellants and Walsham. The third question is whether the appellants could, in the circumstances, have had time to go where they went and return to be on the footbridge at the time Pigliardo saw the events which we have described.
Evidence of Sharlene Walker
We have previously said that the fall from the footbridge must have been at 2.38 or 2.39 am. This time has been calculated because there was evidence that Pigliardo's mother had made a 000 emergency call from her home at 2.43.21. Pigliardo's mother was Sharlene Mary Walker ("Walker"). She recalled stopping at the traffic lights in the early hours of the morning in question. She was stationary, waiting for the lights to change when her daughter drew her attention to something. She looked ahead through the intersection and saw something lying on the road. She saw a shape which looked like a coat, but which she knew was a body. It was a little towards the Perth side of the footbridge. The traffic lights had just changed and Walker was about to drive into the intersection and turn right when her daughter spoke to her. She stopped the vehicle. She looked up towards the footbridge, but she saw nobody on it. Nobody had a mobile telephone and the decision was made that the best thing to do would be to drive directly home, which was only about four minutes or so away, and there to ring an ambulance. Walker began to do that, but saw something out of the left‑hand side of her eye that caused her to stop again. It was what appeared to be a white, or light‑coloured car, coming from her left along Cedric Street. That vehicle turned into the southbound on‑ramp which proceeds under the footbridge. Walker was concerned that it would hit the body, but she observed it swerve around the body and continue on. As far as she could see, the vehicle did not stop. She then drove on to her home. She did not recall any further stops, and she travelled close to the speed limit, or a little over it. She drove straight into her carport, grabbed her keys and went quickly into the house, where she dialled the 000 number. The time at which that call was received was 2.43.21.
Walker had approached the traffic lights at a time when they were amber, but they changed to red as she drew near the intersection. She must therefore have been at the traffic lights towards the commencement of the red light cycle. Her estimate was that, from the time the traffic light had changed to red, and the time it changed to green, about one minute had expired. She thought it took approximately four minutes or so to get from the traffic lights to her home. Only a matter of seconds elapsed during the period in which she turned from her stationary position until she began to drive along Cedric Street towards her home.
No precise time could be given as to the time of the red light signal cycle. Martin Hugh Woolley, a traffic engineering officer with Main Roads Western Australia, gave detailed evidence about traffic signals. Every traffic signal installation has a traffic signal control box that controls the intersection. It can be likened to a computer. Vehicle detectors provide input to the traffic signal control box. At each lane at the intersection, there is a loop of wire beneath the road and that loop is connected to the control box. If a vehicle drives over it, it registers a demand. There was one loop per lane at the Mitchell Freeway, Cedric Street intersection.
Loops could suffer damage and this would affect the time that it would take for the different phases of the traffic lights. It was not possible to say whether there was any damage to the loops on 28 February 1998. Because of this, no precise estimate could be given as to the time it would have taken for the red phase to turn to green. If all loops were damaged, it could be as long as two minutes 43 seconds, but if there was no damage and no other movements had to be serviced, the minimum time could have been about five seconds.
The time frame
Based upon Walker's estimate of time, the time of the fall observed by her daughter was thought to be between 2.38 am and 2.39 am. That time was calculated by deducting four to five minutes from the time of the emergency telephone call at 2.43.21.
We have already pointed out that Veljanoski had turned his taxi meter off at 2.23.56. That was the time at which Betts and Toogood had jumped into the taxi. Some seconds must have then elapsed before the taxi moved away. The appellants gave up the chase and descended the footbridge to the Kiss 'n' Ride carpark. There, Fazzari and Martinez attacked Walsham. They then got into the white Commodore. They attempted to persuade the two young women to rejoin them, but without success. They then drove away on Cedric Street. Just how long this took is unknown. Different estimates were provided at trial by counsel for the various appellants and attempts were made at the hearing of the appeal to reconstruct the time frame. It is not possible to do so with any accuracy. However, whatever it was, it was some time within the space of the 14 or 15 minutes between the time at which Veljanoski turned off his taxi meter and the time at which it was estimated Pigliardo saw the body fall. During that time, the appellants drove to another location, about which there was evidence to which we will turn. If it was they who returned and who were seen on the footbridge by Pigliardo, they had to have descended from the footbridge, attacked Walsham, spoken to the two girls, driven to the location in question, returned to the Kiss 'n' Ride carpark and got to the first landing of the footbridge before Pigliardo saw them ascend the steps. To have got to the Kiss 'n' Ride carpark in their vehicle, parked it and alighted from it, they had to have preceded Walker's vehicle to the intersection of the freeway off‑ramp and Cedric Street, because neither Walker nor Pigliardo saw any other vehicle in the vicinity as they approached the traffic lights. As the learned trial Judge observed to the jury, the time frame was, on any view of it, a very narrow one.
The sequel
A taxi driven by John Bailey ("Bailey") stopped at the position where the body was found. It was not the first vehicle to reach the scene, but Bailey made an emergency call from the scene at some little time prior to 2.41.48. He radioed his base and a call was made from there to the emergency centre. Seven seconds later, a call was made from the 000 number to the St John Ambulance. Police arrived at the scene at 2.48 and the ambulance arrived at 2.57. It arrived at Sir Charles Gairdner Hospital at 3.15. Walsham was operated upon, but died. The time of death recorded in the hospital notes was 5.30.
The cause of death was multiple injuries. This was the finding of Dr Karin Margolius, a forensic pathologist, on 3 March 1998. She found multiple fractures of the skull, including at the base of the skull. She also found fractures of the ribs on the right side of the chest and of the symphysis pubis. There was damage to the lungs, the liver and the right kidney. There was also blood in the abdominal and chest cavities. Her evidence was that no amount of surgical intervention could have saved Walsham.
Walsham had a high blood alcohol level. The blood analysis for alcohol in the post‑mortem blood sample was 0.162 per cent. The alcohol content analysed in bile was 0.137 per cent. The effect of large‑scale blood transfusions may have had a diluting effect and thus Walsham's blood alcohol level may have been higher. The learned trial Judge told the jury that, although the matter was one for them, they might well be satisfied that Walsham was heavily intoxicated. That conclusion was clearly open.
Police inquiries - Fazzari
Following the death of Walsham, police began inquiries. On 2 March 1998, they interviewed Fazzari. The interview was conducted at the Mount Hawthorn detectives' office. It began at 11.50 pm on 2 March and continued until the following morning. Fazzari admitted that he had been at the Stirling train station with Martinez, Pereiras and Magistro. He said that they had stopped at the train station because they had seen two girls to whom they had offered a lift. The girls had got into the vehicle, when two men who were walking along the street had thrown a rock at their car. The rock had hit the car and the car stopped. One of the persons then threw a bottle at Fazzari's group and, in consequence, they gave chase. Fazzari had got a "metal pole" (later identified as a tyre lever) from Pereiras' car, and he and Martinez had given chase to the two men. They had run across the footbridge, but the two men had got into a taxi and driven away. Fazzari was hitting the railing on the footbridge with "the pole", calling out to them to come back. Shortly afterwards, Vangelovski had driven past and stopped. Vangelovski was accompanied by his girlfriend, Rodriguez.
Fazzari stated that when he had returned to the carpark, he saw a person sitting there. He described him as "with dreadlocks and stuff like that and he was holding his head". He said that he looked stressed. He said that he asked him if he was all right. He said that at that time he did not have the "pole" with him. He thought he might have dropped it on the footbridge, or he may have brought it back and put it into Pereiras' car. He said that after he had spoken to him, the person he saw was "going a bit wild", "moaning and doing stupid stuff". He said he thought he was going to attack him, and he went to charge at him. As a result, he kicked him. He described it as a "push‑kick" to the face. The kick was aimed at the face, but landed more on his shoulder or neck area. The person went back, and then Martinez came and pushed him away with his foot. Fazzari told police that the girls whom they had picked up had run off. They were screaming and telling him not to fight.
Fazzari was told by police that the guy who he had "push‑kicked to the face" had died. He was asked if he was aware of it. He said that he had heard about it from a person by the name of Warwick Heavens, and Carlos (Pereiras) had seen a photo of the person on television. There was talk about a guy jumping off the footbridge, and Pereiras had told Fazzari that he looked like the person with whom Fazzari had had the fight.
Fazzari was asked what then happened. He said that they were going home and they first dropped off Magistro, then went to McDonald's and had something to eat. The two girls had been "long gone", and they had not wanted a lift. The McDonald's to which they had gone was said to be in Tuart Hill.
There was further questioning of Fazzari in which he contended that the kick he delivered to the person at the carpark was an act of defence. He was told that the girls in the car had observed bleeding on the person, but he did not think that it was a consequence of his being kicked.
When asked whether he was responsible for the death of Walsham, Fazzari replied that he was not. He said that he did not know who was responsible for Walsham's death. He denied that at any time before or after the assault on Walsham he was on the footbridge with him. He added: "I've received absolutely no information about him, like, getting thrown off or getting - jumping off or nothing."
Fazzari was further interviewed on 2 April 1998. He was asked to go back over the detail of events that had occurred on the night of 27 February into the early morning of 28 February. He repeated what he had previously said about the events that occurred at the Stirling train station. He said again that he had seen a person with dreadlocks sitting in the carpark area. He described him as crouched over on a white seat. This time, he described what occurred in the following terms:
"Then I've walked up to him and asked if he was all right. He hasn't answered me. I've kicked him."
This time, Fazzari described the kick as a kick to the face. He then described the kick as a kick to the upper body area. He thought it was a kick to the left side. He was asked whether he felt that he was being attacked and this time said that he was not. He said that he kicked the man because he was scared. He denied that any move had been made towards him to make him scared for his safety. He described how Martinez had then kicked him to the same area; namely, the upper body. That kick was described as "like a soccer kick sort of".
Fazzari repeated that he and his friends had driven away from the Kiss 'n' Ride carpark, but this time said that they had gone to a place called Odin Drive. They had gone to McDonald's, but that was after. He said that he had not previously mentioned this, because he had suffered a memory blank. It had not come back to him until the day after his previous interview.
Fazzari said that it had taken three or four minutes to drive from the Kiss 'n' Ride carpark to Odin Drive. Pereiras had been driving, and driving quickly. The speed was estimated at "80, 100". At Odin Drive, Rodriguez had got out of the vehicle in which she was travelling with Vangelovski. Rodriguez was upset and Vangelovski was endeavouring to calm her down. She was upset about the fact that the person at the Kiss 'n' Ride carpark had been kicked. Fazzari stated that Vangelovski told them to leave, and gave them his telephone. They then took off and went to McDonald's at Tuart Hill.
Fazzari estimated the period of time at Odin Drive, which he identified as the corner of Odin Drive and Fulmar Street ("Odin/Fulmar"), as being about two minutes. There was considerable questioning about this, and it is convenient to set out the relevant passage:
"A.About two minutes.
Q.Two minutes; because when we were out at this ‑ ‑
A.Two to four minutes; something like that.
Q.Okay. When we were out at the ‑ ‑ ‑
A.I can't remember exactly how long we stayed there.
Q.When we were out at the scene when I asked you originally, you said about 15 minutes.
A.Yeah.
Q.And then we went through the version of events and we said between five and six minutes.
A.Yeah that's more. It wasn't 15 minutes. It wasn't as long as that.
Q.Okay. You're now saying two minutes.
A.It wasn't very quick - it was pretty quick but I - don't know.
Q.Yeah. Do you remember us going through the events at the street and coming up with five to six minutes?
A.Yeah, that's [sic] sounds reasonable.
Q.That sounds reasonable.
A.Yeah, sure.
Q.When you say two minutes - when you just said two minutes that you were there, can you have a think about it in your head and tell me what's more realistic, whether it's two minutes or five to six minutes? Just try and work through your head the way that ‑ ‑ ‑
A.Five minutes is more reasonable."
It is unnecessary to detail the continued questioning about time. Fazzari said that they ended up at McDonald's, Wanneroo Road, Tuart Hill and that they had taken a route via Karrinyup Road. The vehicle had been travelling at 80 kilometres per hour and it took about four minutes to get to McDonald's. There, Fazzari had seen two persons whom he thought he had seen before and had sat talking to them for a period of about 10 minutes. He was not sure whether the vehicle in which he was travelling had gone through the drive‑through area. He was, however, sure that he had had nothing to eat. After the stop at McDonald's, they had gone back to Martinez' house in Girrawheen, where they talked for a while and then went to Magistro's to drop him off. From there, they went back to Fazzari's house, where Pereiras dropped him off.
Fazzari was asked whether, after leaving the Stirling train station, he had returned there at all during the evening and he said he had not. He said that not only had he not returned, but nobody in his group had returned there that "evening". He knew this, because he was with them at all times. He denied that he was "one of the persons on top of the footbridge" with Walsham when he fell.
Police inquiries - Martinez
Martinez was interviewed in the early hours of the morning of 3 March 1998. His account of the preliminary events at the Stirling train station was much the same as that of Fazzari. He was asked whether he had taken anything from the boot of Pereiras' vehicle, but he denied that he or Fazzari had. He had not seen Fazzari with any metal in his hand. The time of these events he estimated at around 12.30 am.
Martinez was asked whether he had seen "a guy with dreadlocks" after the incident in which the men had been chased. He said that he had not. He was told that "around that time in the morning" a male person was found on the freeway. He was asked whether he knew of the ramp over the freeway off‑ramp (the footbridge) and he said he did know it. He denied that there had been any altercation with a person. He denied that he had seen the person at all and said that nobody had been assaulted. He said they had chased three persons over the footbridge and that he had been involved in a scuffle with a person who had got into the taxi, but that was all.
Under further questioning, Martinez admitted to having seen Fazzari with a piece of metal in his hand which he had been banging on the railing of the footbridge. He said that Fazzari had also been involved in "the little scuffle" with one of the persons who had got into the taxi. He repeated several times that at no time had he seen any person being kicked and that after the incident with those who had got into the taxi, they had returned and got straight into the car. He said he would have remembered somebody with dreadlocks, and he did not see any such person.
When asked about any knowledge of a person being found dead on the freeway, Martinez said that it was a complete surprise to him and he had heard nothing about it in the media. He volunteered the following statement, which will become relevant later in these reasons:
"A.Yeah. Yeah. And? he? - - and that's - - I don't know. I don't know what happened to that guy. That's definitely got nothing to do with us cos, like, we didn't do such a thing like that - - throw him off the - - someone off the - - something like that, you know.
Q.I didn't say I threw - - anyone was thrown off.
A.Yeah. I mean, the - - the guy obviously landed on - - in the middle of the freeway, you know - -
Q.Yeah.
A.- - and you? told? me? - -
Q.No, I didn't say that he was thrown off.
A.Yeah.
Q.I said that he ended up - -
A.In the middle of the freeway.
Q.- - right at the bottom - -
A.Yeah.
Q.- - of the thing - -
A.Yeah.
Q.- - and I was unsure - -
A.Yeah.
Q.- - how he got there.
A.Yeah. Thrown off, I guess."
No questions were asked of Martinez in relation to events which followed their leaving the Stirling train station.
At 3.35 pm on 3 March 1998, Martinez was interviewed again. He had telephoned detectives during the course of the afternoon and indicated that he wanted to tell them more about the incident that had occurred on the night of 27 February into the early morning of 28 February. He said that in his previous interview he had told only "partly the truth". He basically repeated what he had said about the incident in relation to the persons who were chased, except this time indicating that there were only two persons. He said that neither he nor Fazzari had caught up with them. Instead, he stated that they had got to the top of the footbridge when they saw the two men get into a taxi. He said that they were "pretty pissed off" and had walked down the stairs and saw a guy sitting there. He was in a white shelter, where there were some seats. He had his head down, with his hands on his face. He recounted what then happened:
"A.And, um - - um, we walked - - walked up to him and, like - - I sort of like was looking, you know, because the girls were asking, you know, 'What happened? What happened?' And then - - ah, what's a name, I - - I looked - - I looked around and I saw Sam kicking. And then, um, all the girls got call? - - upset and - - they got all upset and the girls didn't want to ride with us any more. So, like, they'd started walking and that - - we? said? 'Fine?'. And I asked them, you know, 'We'll take you home' and they said, 'No, we don't wanna'. And um - - ah - - after that - - um, that was before we were leaving, so I stood there as well and I kicked him. And then we got in the car and then the girls just went ah, towards - - um, back on Cedric Street and (electronic beep) and we just went home? after that."
In further questioning, Martinez said that they had taken out their anger on the guy, but after having done so they felt like cowards and had left. Martinez described further the kick that he delivered. He said that it was a kick which was delivered around the arm and between the ribs.
Martinez was informed that the person who had been in the bus shelter had died later in the morning. He was asked if he was aware of it and he said that he was. He said the first he had heard of his death was when he was interviewed "yesterday" and he had got pretty scared. Martinez was told that a witness had stated that a male person was seen up on the footbridge with two other male persons and that he had done a backflip off the footbridge and landed on the road. He was asked whether he was one of the two persons on the footbridge and he said that he was not. He denied that he had anything to do with the death of Walsham, and denied that he was aware of anyone else who may have been responsible for his death. He said:
"A.I would - - I would - - because it - - a serious thing like that and - - I mean, a person's dead. I would say - - come forward and tell you, ya know, because, um - - we did - - we did, ya know, assault him before that, but, um - - and after we didn't - - don't know what happened, ya know, and that's - - from assault to wanting? to kill him, or something like that, it's? - - nah, not us, ya know."
Martinez was asked where they had gone after the assault. He said that they had driven around. He denied that the vehicle had ever returned to the Stirling train station, or its environs.
There was a further interview with Martinez on 2 April 1998. The investigating officers asked much the same questions as before and the whole incident involving the chase of the two men was recounted. So was the incident involving the person with the dreadlocks. Martinez basically repeated what he had said. He described in more detail the kick delivered by Fazzari and repeated that he had also kicked Walsham. He said that he had not really wanted to kick the person, but he just did it. The only explanation he could give was that he was drunk.
Martinez was asked again where he had gone after leaving the Kiss 'n' Ride carpark. He said that the vehicle in which he was travelling had turned into Cedric Street and it was following Vangelovski's car. The vehicle had stopped near Stirling, "somewhere around there", and it was "not a very far drive" from the Stirling train station. It was a drive of about five or six minutes' duration. There had been a stop of about five, six or seven minutes' duration and from there Martinez was pretty sure they had proceeded to McDonald's in Tuart Hill. He was pretty sure they had gone through the drive‑through, but could not remember whether anything had been ordered. Afterwards, they had gone to his house.
Police inquiries - Pereiras
Pereiras was first interviewed on 3 March 1998. The record of interview was not part of the prosecution case. There were several reasons why no attempt was made to adduce it in evidence, chief among them being that no caution had been administered. Some portions were sought to be relied upon by the prosecution in the cross‑examination of Pereiras. However, the learned trial Judge, in the exercise of his discretion, refused to allow use of the statement for this purpose.
Pereiras was interviewed for a second time on 31 March 1998. That day, he had been taken by investigating officers to the Stirling train station. He was asked to recount the events that had occurred on 28 February, to which he had earlier made reference whilst in the police vehicle. He went through the circumstances leading up to the arrival at the Stirling train station. He recounted how the two girls had been picked up and the involvement with the person who was described as a hitchhiker. He described how Fazzari and Martinez had given chase to this person. He said that before Fazzari did so, he had told him to wait and he had opened the boot. He had given Fazzari a steel pole and had got one for himself. He said that he put it inside the vehicle. Fazzari and Martinez then chased after the hitchhiker. There was discussion about the nature of the steel poles and it was revealed that they were tyre levers. There were three of them in the boot of the car. He had given one to Fazzari in case the person who was being chased had a weapon.
Pereiras described how the hitchhiker had run back towards the train station. He said that he had got back into the car. He had then driven towards the train station, into the Kiss 'n' Ride carpark. He saw Fazzari and Martinez there. They got back into his vehicle. He then drove further into the Kiss 'n' Ride carpark and stopped just in front of the stairs. Vangelovski came in and parked in front of him. The two men had run across the footbridge. Fazzari and Martinez got out of the vehicle. Fazzari had a tyre lever. Pereiras had also got out of the vehicle and he thought he had taken something with him, but he could not remember. He saw Fazzari and Martinez get close to the two persons whom they were chasing, but as those persons had neared the taxi Fazzari and Martinez had stopped chasing them. Fazzari was angry and calling out, "Come back". He was observed to hit the railing on the footbridge with the pole. It left little dents on the rail. The group returned to the car and he put his tyre lever in the boot. He also took the tyre lever from Fazzari and put that in the boot.
Pereiras explained how, after having put the tyre levers in the boot, he walked to the door of his vehicle, looked back and saw Fazzari kick a bloke in the head. He described the circumstances of the kick in great detail. He described how Martinez had then kicked him. He said it was straight after Fazzari had done so. Again, there was substantial detail about the circumstances.
Pereiras said that he had then driven away. He had gone up Cedric Street towards Karrinyup Road and had gone to Odin Drive. To do so, he had to cross the Karrinyup Road lights. Vangelovski was driving behind him. The vehicles stopped at Odin/Fulmar. There was an incident involving Rodriguez and then Pereiras drove away and dropped off the other members of his group. He was asked whether he had gone to McDonald's, or anywhere else, but said he did not think so.
Pereiras was questioned about the time it would have taken to have driven from the Kiss 'n' Ride carpark to Odin Drive. He said it might have been about five or 10 minutes. He was asked how long he had been at Odin Drive and he said, "About another 5 to 10 minutes or so". He was asked whether he had gone back to the train station and he said they did not go back. He was told about a witness saying people had been seen on the top of the footbridge and that Walsham had gone over the footbridge. He said that they had nothing to do with him "getting thrown over".
A third interview was conducted with Pereiras on 2 September 1998. Essentially, he repeated what he had said before, although perhaps in more detail. He was asked about how he felt after the incident in which the man had been kicked. He was asked about the general mood in the car. A number of leading questions were put:
"A.Well, it was, like - - just like - -
Q.You were all pumped up?
A.Yeah, pumped up.
Q.No one was upset about what had happened?
A.No, not yet.
Q.All right.
Q.So tell us how - - how you felt, right, and the - - what the others were saying in the car, or what was going on, when you took that drive out? What was the mood? I mean, you can say that you were revved up and everyone - - but they're really Chris's words, right? How were you?
A.That's how I was. I was, like, first - - I was shocked, sort of. I was like - -
Q.Mm.
A.- - 'What did they do that for?' you know - - -
A.'- - - do that for?' you know.
Q.Mm. Mm.
A.And then - - because they were all pumped up, I - - I started getting pumped up as well."
There were further questions about the group being "pumped up" and Pereiras agreed that they were. Clearly, this was directed at suggesting that there was a reason why they might have returned to the Kiss 'n' Ride carpark, where the man had been attacked. There were also questions about Pereiras' feeling about "junkies". There was extensive questioning about whether junkies were better or worse than murderers and rapists, and Pereiras said that he believed that murderers and rapists were worse. Clearly, this was also directed at the question whether the group would have returned to the Kiss 'n' Ride carpark. However, he insisted that he never went back to the train station and that he was positive about it.
Pereiras did, however, say that he had gone to McDonald's in Tuart Hill and had talked to some blokes there. He said that if the police wanted "an alibi", they could talk to the bloke whom they met at McDonald's. His recollection was that somebody had suggested going to McDonald's to get something to eat, and that they must have gone there for that purpose. He detailed how they had gone there, and said that at McDonald's they had not bought anything, but had stopped and talked to a bloke. He could not recall whether they had gone through the drive‑through and said that they must have turned into McDonald's from Karrinyup Road. They were at the McDonald's carpark for five or 10 minutes and he had no recollection of getting food. He thought that the people they met at McDonald's were eating. After leaving McDonald's, different members of the group had been dropped off. There had been discussion about what had happened and they had agreed that they should not have done it. He said there was no bragging. He insisted that he was trying to tell the truth and he knew that "they did not drag him off the bridge". He said he would tell the officers if he knew that somebody had thrown him off.
Statements made about co‑accused
In reviewing the records of interview of each of the appellants, we have made reference in part to what each appellant said about the role played by others in the assault upon Walsham. Clearly, that evidence was inadmissible in relation to the case of co‑accused, but it is necessary to make reference to it to keep the records of interview in context.
Alleged admission by Martinez
There was evidence of an alleged admission by Martinez to a man named Philip Andrews ("Andrews"). Andrews testified that, in October or November 1998, he had gone to the house of Michelle Howson and had there met Martinez, who was introduced to him as a friend of Michelle Howson's two sons. He was introduced to Martinez as Michelle Howson's boyfriend. There was a conversation that took place between Michelle Howson and Martinez. It took place in the kitchen. Two other persons were present. The conversation was to the following effect:
"Can you tell the members of the jury, please, what was said?‑‑‑Michelle said to Jose, 'How have you been? Have you been keeping your nose clean?' and he turned around and said, 'Oh, I threw that Phillip bloke over the bridge.'
'Threw that Phillip bloke over the bridge.' Is that correct?‑‑‑Yep.
…
Yes. Then what was said?‑‑‑I think she sort of said, 'You're joking, aren't you?' and he sort of went, 'Well, yeah,' and then he realised he didn't get the response he was looking for I suppose.
Why do you say that? What did he then say?‑‑‑He then said he just give him a - he beat him up, him and his mates beat him up. He named a few names but I can't remember the names. There was a lot of names being mentioned that night, other people.
When he initially said he had thrown the Phillip bloke over the bridge, are you able to describe the way in which he said it, his demeanour?---He was bragging about it."
Andrews was strongly cross‑examined. It was first suggested to him that he might have been aware of a $50,000 reward being offered in relation to the matter of Walsham. He responded that he believed he came forward before any reward was offered. This transpired to be correct. It was suggested to Andrews that he was making the matter up to "try and fit in with what the prosecution case was". This, he denied. He admitted that he had been back to Michelle Howson's house at times when Martinez was there. It was put to him that Martinez had on other occasions put his arm around the shoulder of Andrews and said that he was only joking. This he denied. There was also cross‑examination about an incident in which Michelle Howson was said to have received a swollen jaw. Andrews said that she had "copped a couple of black eyes". He admitted that shortly after that time, Michelle Howson's sons had "paid him a visit" and had been driven there by Martinez. It was some time after this "visit" that Andrews reported the conversation between Michelle Howson and Martinez to the police. This was 15 months after the conversation had occurred.
Evidence of the appellants
Each of the appellants gave evidence at their trial. They did so in the following order: Martinez, Fazzari and Pereiras. That was because they had been indicted in that order. It is, however, appropriate to begin with the testimony of Fazzari, as we have so far made reference to the three appellants in the order in which the appeals have been presented.
Evidence of Fazzari
Fazzari gave evidence that he was 18 years of age in February 1998 and he worked for his father in a family business. On the evening of 27 February 1998, he went to Northbridge with his friends, Martinez, Pereiras, Magistro, Vangelovski and Rodriguez. Fazzari, Martinez and Magistro were in a white VK model Holden Commodore owned and driven by Pereiras. Vangelovski and Rodriguez were in Vangelovski's car. It was a maroon VR model Holden Commodore. Fazzari said that the group went to different nightclubs in Northbridge. He was drinking alcohol and was affected by alcohol. There was an argument between Vangelovski and Rodriguez, which led to them all leaving Northbridge. They left in the same vehicles in which they had arrived.
Fazzari's group lost contact with Vangelovski as they travelled away from Northbridge. Fazzari made a telephone call to Vangelovski to ask him his whereabouts. Vangelovski said he was in Stirling and it was arranged to meet around there. A second call was made shortly afterwards.
The vehicle driven by Pereiras went to Stirling via the freeway. It turned off the freeway at Cedric Street and proceeded north‑east along Cedric Street towards Karrinyup Road. On the side of Cedric Street, the occupants of the vehicle spotted two girls. They were asked if they would like a lift. They accepted and got into the vehicle. They proceeded further up Cedric Street, past Karrinyup Road. There was an incident in which something was thrown at the vehicle. Fazzari believed it to be a rock. The vehicle came to a stop. Fazzari had an empty bottle at his feet and he threw it at the person he believed had thrown the rock. It fell short of him and the person then picked it up and threw it back. It smashed near the car on the roadway. Martinez and Pereiras got out of the vehicle. Fazzari began to walk away, but Pereiras called him back and passed him a tyre lever. Martinez got ahead of Fazzari. They chased two males. The vehicle driven by Pereiras then did a U‑turn and picked up Fazzari and Martinez. The two men who were being chased ran into the carpark near the Stirling train station and the vehicle driven by Pereiras followed them. It drove into the Kiss 'n' Ride carpark.
The two men being chased ran up the stairs of the footbridge. Fazzari and Martinez got out of the vehicle and chased them. Pereiras and Vangelovski came up the stairs behind them. Before Fazzari could get across the footbridge, the two men being chased got into a taxi and got away. Fazzari was annoyed. He banged the railing on the footbridge with the tyre lever and screamed at the men who had escaped. He said he was angry and admitted to banging the railing 18 times. He said he knew that now, because he had been back to look at the railing.
Vangelovski had not got onto the footbridge. He was climbing the stairs when Fazzari started to come down. Vangelovski asked him what he was doing. Fazzari said that he must have got rid of the tyre lever, because he did not have it at the time he saw a man sitting on a seat in the Kiss 'n' Ride carpark. This man was sitting with his hands on his face and his elbows on his knees. Fazzari asked him if he was all right, but he did not answer. He asked him a couple more times and then kicked him. He was not sure why he had kicked him. He had not been provoked in any way. After kicking him, Fazzari walked back to the car. Rodriguez abused him for what he had done and pushed him towards Pereiras' car. Fazzari then saw Martinez kick the man on the seat. He said he did not have a perfectly clear view.
Fazzari's own kick had been "pretty hard" and it rocked the man who was on the seat, but he did not fall over. He accepted that it was a cowardly act, of which he was ashamed. He had no idea why he had done it.
The two girls who had been picked up had walked away. Fazzari's group returned to its vehicle and Vangelovski and Rodriguez to his. The vehicles then left. An attempt was made to again pick up the girls, but they told them to "get lost".
Pereiras drove away, initially above the speed limit, but later at a slower speed. Fazzari's estimate was that the vehicle was doing 80 to 100, or something like that, but when it got close to where the civic gardens were, it slowed down. They just wanted to "get out of there". Vangelovski was following.
They went up Cedric Street and to Fulmar Street. They went along Fulmar Street to Odin Drive. Fazzari's recollection was that they were in Fulmar Street when the two vehicles stopped together. There, Vangelovski abused the Martinez group and told him that Rodriguez was crying. Fazzari attempted to apologise to her, but she opened the door of the car and ran around the corner. Vangelovski followed her, and Fazzari followed him. She went past a couple of houses before she was caught up with. She was angry with both Vangelovski and Fazzari. Fazzari said there was "no taming her", so he and the others who had come up behind him, walked back to their vehicle. Rodriguez returned to the vehicle with Vangelovski and Vangelovski said he was going to drop her off. He gave Fazzari his mobile telephone. It was his intention to ring Fazzari on that mobile telephone. Fazzari said that he had taken Vangelovski's telephone because, although Magistro's mobile phone was in the car, they were intending to drop Magistro off.
Fazzari said that Vangelovski's car then left, and their vehicle left shortly after. The vehicle in which he was travelling did a U‑turn and drove on to Odin Drive, into Amelia Street and then to McDonald's, Tuart Hill. This was at the intersection of Morley Drive and Wanneroo Road. Fazzari said that at no time did they return to the Stirling train station, or go anywhere near it. They had not left anything at the station and there was no reason to go back. At McDonald's, they spoke with some men whom he thought he recognised. They ate nothing and remained about 10 minutes before leaving. People were then dropped off, and Fazzari returned home. There, he received a telephone call from Vangelovski and an arrangement was made to meet later on that day.
Fazzari said that he found out on the Sunday that someone had died at the Stirling train station on the Saturday night. He said that at first it did not click to him that it was the same night that they had been there, but, after "a little bit more investigating", he found out that it was the same person they had seen. This was the person whom he and Martinez had kicked. He said he felt petrified. He was at Martinez' house on the Sunday night when police arrived. He accompanied them to the police station, where a video record of interview took place. In that interview, he told them that he had kicked the person as a result of provocation. He claimed to have said this because he was scared that he had kicked the person. He admitted that he was never provoked.
Fazzari gave evidence about driving in the area with detectives and re‑enacting events. He testified that his estimate of times at Odin/Fulmar were made without any appreciation of the significance of the timing. The cross‑examination of Fazzari was lengthy, and for present purposes it is unnecessary to detail it.
Evidence of Martinez
Martinez testified that he was 19 years of age in February 1998. His occupation was that of a cabinet maker. Although he gave evidence first, his evidence was in much the same terms as that of Fazzari. He said that, when chase had been given to the two persons at the Stirling train station, he had nothing in his hands. He confirmed that he had run up the stairs of the footbridge and onto the footbridge itself, when he saw the two men getting into a taxi. He admitted to kicking the person who was seated in the Kiss 'n' Ride carpark, stating that he kicked him in the head area. He did not know why he did it. He said he took his anger out on him, but that it was no excuse.
Martinez testified about the stop at the corner of Odin/Fulmar. His evidence was the same as that of Fazzari about what occurred with Rodriguez. He recalled that Vangelovski and Rodriguez talked for some time and he recalled both of them smoking. At some time, he and the others got back into Pereiras' vehicle. Vangelovski's vehicle left first and then the Pereiras vehicle. They went to McDonald's in Tuart Hill, but he had no recollection of events there. Various members of the group were then dropped off.
Martinez was asked about a person named Daniel Howson. He said he knew him from high school. He had a brother called Jye. Their mother was Michelle Howson. Martinez met Michelle Howson's partner in 1998. He recalled an occasion when he told Michelle Howson that he had assaulted somebody in February 1998 and had been charged for it, and that police had taken his clothing for DNA testing. He said he had nothing to worry about, because he had "nothing to do with it". He had no recollection whether Michelle Howson's boyfriend was there at the time. He denied that he had ever told Michelle Howson that he had been involved in throwing somebody from the footbridge. He said he had neither told her nor anybody else.
Martinez said that in his first record of interview, he had lied to police when he said he had not assaulted the person who transpired to be Walsham. He said he knew he had kicked somebody and that the police were asking questions about somebody's death, and, because the police were asking about somebody's death, this made him scared. Because he knew he had lied to police, he had gone back later in the day to tell them exactly what had happened. Again, it is unnecessary for present purposes to review the lengthy cross‑examination of Martinez.
Evidence of Pereiras
Pereiras gave evidence that he was 18 years of age on 28 February 1998. He had a diploma in electronic engineering and worked in the field of electronics. In 1998, he had a white VK Commodore. It had been modified by the fitting of a different exhaust pipe and muffler, which made it sound louder. On 28 February 1998, he was driving the vehicle and with him were Fazzari, Martinez and Magistro. His evidence about what transpired early in the evening was in similar terms to that given by Fazzari and Martinez. The incident in which a hitchhiker had thrown something at his vehicle was referred to in detail. Pereiras said that his car had not actually been hit, but he was upset because he took good care of his car. After the bottle‑throwing incident, Martinez had run off after the hitchhiker. He had basically run back to the station with Martinez after him. Pereiras opened the boot of his vehicle and gave Fazzari a tyre lever. He also got one for himself. Fazzari then started running after the hitchhiker. Pereiras said he had three tyre levers in his vehicle, for protection and because three tyre levers were needed to take a wheel [sic tyre] off a rim. He put his tyre lever next to him on the seat of the vehicle, got in it and did a U‑turn, and drove to the Kiss 'n' Ride carpark. He picked up Martinez and Fazzari on the way. He stopped near a white shelter in the carpark. By this time, the two men being chased were running up the stairs to the footbridge. Fazzari and Martinez got out of the car and ran after them. Fazzari was carrying a tyre lever, but Martinez had nothing. Pereiras turned off the ignition of his vehicle, got his tyre lever and ran up the stairs as well. He got to the top of the stairs and onto the top of the footbridge when he saw the two men who were being chased get into a taxi. He observed Fazzari yelling at them, and saw him striking the railing of the footbridge with the tyre lever. He described both Fazzari and Martinez as angry.
Pereiras said he returned to his vehicle, went to the boot of his vehicle and put his tyre lever in. Fazzari and Martinez were coming down the stairs. He took a tyre lever from one of them and put it into the boot. He had only ever taken two tyre levers out of the boot. He then walked towards the driver's door to leave, but looked to his left and saw Fazzari kick a man in the head. He said the kick was towards the head and it landed pretty much about there. It was a pretty hard kick. Rodriguez then went up to Fazzari, and pushed him and yelled at him. Martinez then kicked the person in the head as well. The person kicked did not get up at any stage. The group then left. There was first an attempt to get the two girls who had previously been with them back into the vehicle, but they refused. Pereiras then drove off "pretty fast" at a speed which he estimated "at about 80". He travelled towards Stirling and was travelling fast because he was scared that they would get into trouble because of the assault.
Pereiras testified that at no time after leaving the Kiss 'n' Ride carpark did he ever go back to the Stirling train station. He said he ended up at Odin/Fulmar. It would have taken five to 10 minutes to get there. He recounted the evidence at that location in much the same terms as his co‑accused, and said he could not recall who left first. He said there was no talk about going back to the train station and no reason to return to the train station. From the corner of Odin/Fulmar, they went to McDonald's in Tuart Hill. He did not have an initial recollection of this, but said that a discussion with Fazzari had refreshed his memory about it. It was for that reason that he had said nothing about it in his first record of interview, but did in his second.
Pereiras recalled parking next to a vehicle in which there were two occupants. He did not know them, but Fazzari apparently did. They were at McDonald's for about 10 minutes and then went to Martinez' house. From there, others were dropped off and he arrived home at about 4 am.
On the Monday night, he saw something on the news about a person having fallen off a footbridge at the train station. He paid little attention to it at the time, but Fazzari and another person told him about seeing it. He saw another news item in which there was a photograph of the person and he thought it looked like the same person who had been assaulted. This was because he had dreadlocks. He felt scared and shocked because he knew that Fazzari and Martinez had kicked the person and he was dead. He took the tyre levers out of his vehicle on the Tuesday morning because he was scared. He put them in the shed at the back of his house, but when police arrived he told them where the tyre levers were and took them to them. Again, it is unnecessary to deal in any detail with the cross‑examination of Pereiras.
Other evidence called for the defence
A number of witnesses were called on behalf of the defence. For present purposes, it is sufficient to refer to the evidence of Rodriguez and Vangelovski.
Evidence of Rodriguez
Rodriguez testified that she was 18 years of age in February 1998. She gave evidence about the events of the night of 27 February into the early morning of 28 February. In relation to the visit to Northbridge and the early events at Stirling, it was in similar terms to that which had been given by Fazzari. She saw Fazzari go up to the person who was sitting on the seat in the Kiss 'n' Ride carpark and kick him. She was really annoyed by this and ran to Fazzari and pushed him. She pushed him towards Pereiras' vehicle. She told him that he was "a dickhead", and to get back in the vehicle. As she pushed Fazzari, she saw Martinez kick the person on the seat. She had "a bit of a go" at him and told them both to get back in the car. This they did.
Rodriguez testified that the vehicles left the Kiss 'n' Ride carpark area and she, travelling in Vangelovski's vehicle, was very angry. She was yelling at him, calling his friends "dickheads".
The vehicle driven by Vangelovski and that driven by Pereiras met up at a location which she described as "a lawned area … just around the corner". There, Fazzari attempted to apologise to her, but she considered he was making up a story about how the guy had hit Mirella, his girlfriend. He tried to open the door of her vehicle, but she locked it. He then went around to the driver's side, so she got out of the car and ran away. She ran up the street and around the corner. It was a distance of about 20 metres. Vangelovski and Fazzari caught up with her and Vangelovski held her, trying to calm her down. He said that Fazzari just wanted to apologise. She did not want to listen to either of them at that point. Vangelovski told Fazzari to go back to his vehicle and he did so. Vangelovski stayed with her and they both smoked cigarettes. It took five to seven minutes to do this. She knew this, because she smoked cigarettes during her lunch break. They then returned to the vehicles, where she believed that Fazzari and Vangelovski again smoked cigarettes. Vangelovski and Fazzari spoke for about five minutes. She then left in Vangelovski's vehicle.
After he had given this version of events, the police told Martinez that the two girls had told them of the kicking of Walsham. However, he maintained his version of events. He continued to do so even after the police told him that Veljanoski had told them that only two men had jumped into his taxi.
We have said that, later that day, Martinez telephoned the police and told the truth about the incident in which Walsham had been kicked by him and by Fazzari. As a result, he was again interviewed on videotape. He confirmed that he and Fazzari had chased only two men and that the two men had got away in a taxi. He also said that they had come across Walsham sitting in a seat at the shelter in the car park with his hands on his face. He admitted that he and Fazzari had kicked Walsham and said that these events had occurred at around 2 am. He ascribed his failure to tell the truth earlier to nerves and shock. He said that he had been "trying to get [himself] out of … how [he] kicked [Walsham]".
As was the case with Fazzari, there is no doubt that what was initially said by Martinez in this respect amounted to deliberate untruths. Moreover, it might reasonably be inferred that his subsequent outbreak of honesty was prompted only by more mature consideration, after being told by the police during the course of the interview that the two girls who had witnessed the assault on Walsham had told them what they had seen. However, whatever may have been the position in this last respect, it seems to us that the lies are incapable of amounting to an admission of guilt of the offence of murder. As with Fazzari, the lies are at least as capable of being attributed to a desire to conceal guilt with respect to the kicking of Walsham as they are to any desire to evade being held responsible for the death of Walsham. We will not repeat what we have already said in that respect.
The Odin/Fulmar meeting
In his first video‑recorded interview, Martinez told the police that, after leaving Stirling train station, he had been taken straight home. In the course of his second interview on 3 March 1998, he said that, after the assault on Walsham, the appellants "drove around". He went on to say that they "most probably drove to the nearest … McDonald's or something, and just took me home after that". He said nothing, in either of the first or second interviews, concerning the meeting at Odin/Fulmar.
His first video‑recorded mention of this meeting came in the course of his interview on 2 April 1998. Martinez was asked, during that interview, what had led him to recall this. He said that, when he had earlier been driven around the scene by the police, he had been asked in what direction the appellants and Magistro had travelled. This had led him to recall the Odin/Fulmar meeting. He made several estimates of the time that the appellants had spent at this meeting. These ranged between five and seven minutes.
What we have said concerning Fazzari's initial failure to tell police about this meeting is equally applicable to Martinez. For the reasons we have given when dealing with Fazzari, we consider that, taken on its own, the omission was incapable of being regarded as a deliberate untruth amounting to an implied admission of complicity in the murder of Walsham.
False alibi
We have mentioned that, in the course of his initial interview with the police, Martinez said that he had been taken straight home after leaving the station. We have also mentioned that, in the course of his second interview, he said that he probably went to McDonald's after the assault. In his third interview, on 2 April 1998, he said that, after the Odin/Fulmar meeting the appellants and Magistro went to McDonald's and from there to Martinez's home. He was "pretty sure" that they had gone through the drive‑through when they were at McDonald's but could not remember what he had ordered. He did not recall parking and talking to two other men while there. He said that they had not parked anywhere. They had bought some food and then gone back to his house. As we have said, when asked about the differences between the events outlined by him in the course of this interview and the version offered by him in previous interviews, Martinez said that he had been "shocked" during the earlier interviews and that he "was just … trying to get [himself] out of … how [he] kicked him".
In the course of cross‑examination, Martinez acknowledged that, in his evidence at the coronial inquest into the death of Walsham, he had said that the appellants had driven through the drive‑through at McDonald's. He accepted that he was then unaware of the existence of the McDonald's surveillance footage.
What we have said with respect to Fazzari in relation to the McDonald's "alibi" is applicable also to Martinez. For the reasons earlier given, we consider that it was rightly left to the jury to consider whether the lie (if they found it to be so) amounted to an implied admission of guilt of the killing of Walsham or whether it was an attempt by an innocent man to bolster his defence.
Pereiras
Only one lie has been ascribed to Pereiras. This relates to the McDonald's "alibi". We have mentioned that, when he was interviewed by police on 31 March 1998, he said that he did not think that he had been to McDonald's on the night of Walsham's death. A little later in that interview, the following exchange took place:
"Q.Well, where did you go when you left Odin Road?
A.Think we went to Jose's [Martinez's] house. Like, I'm not sure …
…
Q.All right. Did you go to McDonald's?
A.No. I don't think so.
Q.If you had gone to McDonald's, what McDonald's would you have gone to?
A.To Tuart Hill.
Q.Why?
A.Because that's where we always go.
Q.Well, why didn't you go that night?
A.But that's if we're going to eat.
Q.Oh, right. And you didn't want to eat that night?
A.Nn.
Q.You're definite about that?
A.Yeah. I think so. Yeah.
Q.Well, think so is not definite.
A.Yeah, but - -
Q.So you didn't go to McDonald's then?
A.Don't know. I don't really think so."
Later, the interviewer told Pereiras that Fazzari had said that they did go to McDonald's. Pereiras responded by saying that he could not remember if he went to McDonald's and couldn't remember "the exact detail of every night" he went out. He said that he had tried to recall as much as he could, but he could not recall any more.
However, in his statement dated 1 May 1998, Pereiras mentioned having gone to McDonald's on the night of Walsham's death. Then, as we have earlier mentioned, on 2 September 1998 he gave police a detailed description of events at McDonald's on that night. He said that the appellants and Magistro went there to get something to eat. He did not think that they had been there prior to the assault at the station car park. He said that they did not buy anything, but that they stopped and talked to "this bloke" called Joe (presumably a reference to Cusato). He said that they had talked for some 5 to 10 minutes. He thought that the two men were eating at the time.
In his evidence at the trial, Pereiras testified that, at the time of his interview with police on 31 March 1998, he had no memory of going to McDonald's. He said that Fazzari subsequently reminded him that they had gone there. Pereiras was cross‑examined in relation to his assertion, during the second interview, that Cusato and Martino had been eating when the appellants spoke to them at McDonald's. He said that he had probably assumed that they had been eating because they were at McDonald's. He no longer remembered whether they had been eating or not. Pereiras also said that he did not remember why the appellants and Magistro had gone to McDonald's, but they had not eaten anything there.
What was said by Pereiras after 31 March 1998 concerning the visit to McDonald's was undoubtedly capable of being regarded by the jury as having been deliberately untrue. Also, for the reasons given in respect of Fazzari, these lies (if the jury found them to be so) were, in our opinion, capable of amounting to an implied admission of guilt of the killing of Walsham. As with Fazzari and Martinez, it was a matter for the jury to evaluate the competing inferences in this respect.
Conclusions ‑ ground 12
It follows, in our respectful opinion, that the trial Judge was mistaken to leave with the jury, as lies capable of being regarded as implied admissions of guilt of the offence charged, the lies told by Fazzari and Martinez concerning the kicking of Walsham, the lie told by Martinez concerning the incident with Betts and Toogood and the initial failure on the part of each of Fazzari and Martinez to mention the meeting at Odin/Fulmar (if it is looked at in isolation from the alleged lie concerning the visit to McDonald's). This was a circumstantial case that was beset by problems, for the reasons that we have given when dealing with ground 1. Consequently, it was particularly important that there should be no impermissible reasoning on the part of the jury and that no greater reliance was placed by them on the lies than was warranted. Instead, in our respectful opinion, the lies mentioned earlier in this paragraph were unnecessarily highlighted and given a potential significance that they were incapable of bearing. This ground should consequently be upheld to the extent we have stated. Because it seems to us to be impossible to say with any confidence what influence the error might have had on the jury, this is not a case in which s 30(4) of the Criminal Appeals Act is capable of application: Libke v The Queen [2007] HCA 30 at [45] ‑ [46] per Kirby and Callinan JJ. Each conviction should consequently be quashed upon this basis also.
Ground 13
This ground complains that the trial Judge failed to direct the jury as to the lack of evidence that the appellants had any "esoteric knowledge" and failed to direct the jury as to what "esoteric knowledge" meant.
The only reference by the trial Judge to this subject in the course of his direction to the jury was in that portion of his address when he briefly identified the various strands of circumstantial evidence relied upon by the State. In that context he observed:
"The next circumstance are [sic is] a series of lies alleged to have been told by the accused in their respective video records of interview to the police at various stages. The next alleged circumstance is so called esoteric knowledge about the cause of the death voiced by one or other of the accused during one of the early police interrogations, and then there is what is alleged to be a further lie and a significant lie in providing a false alibi about being at McDonalds after departing from Fulmar Odin intersection at the time when the crime was alleged to have been committed, and finally, but in relation to the case against Mr Martinez alone, there is the allegation that he made an admission of involvement in pushing Phillip Walsham off the bridge to Mr Andrews in October or November 1998."
We have said that there was some evidence that each of Fazzari and Martinez had used the expression "thrown" to describe Walsham's fall from the footbridge during their initial interviews with the police, at a time when they had not known that there was an allegation to that effect. In the context of ground 1, we have already expressed our view that this evidence was not of great weight, but it is not correct to say that there was no evidence to that effect, and the trial Judge would have been in error had he directed in those terms.
In relation to the failure to explain the meaning of the expression "esoteric knowledge", the concept had been explained to the jury at some length by the State in the course of its closing submissions. Further, the very brief reference to this subject made by the trial Judge in his direction to the jury, and the failure to explain the expression, can only have been favourable to each appellant. This ground is without substance. The question of the grant of leave to appeal on this ground was reserved to this Court. Leave is refused.
Ground 14
Ground 14 complains of factual misdirections by the trial Judge in five respects. One of those five aspects was abandoned prior to argument. The first alleged misdirection concerned the evidence given by Professor Pailthorpe as to the prospect that an indentation on the exterior of Walsham's T‑shirt which would have been expected had he been struck with a tyre lever, might have been removed by the road surface or a hospital bed. Because of the views we have formed in relation to grounds 1 and 12, it is unnecessary to deal with this ground at great length. It is sufficient for present purposes to observe that the direction given by the trial Judge on this subject is entirely consistent with the evidence given by Professor Pailthorpe.
The second area of complaint under this ground concerns the direction given by the trial Judge to the effect that a police office responsible for the investigation of the scene, Senior Constable Hicks ("Hicks"), was unable to say whether tests for blood stains were conducted in the area of the roadway north of the footbridge and the area north of the steps leading up the footbridge. In fact, Hicks' evidence was to the effect that the areas in question had not been tested with Luminol. However, he gave evidence that the entire area had been forensically examined. Sergeant Webb's statement, which was read in evidence, was also that the entire area had been forensically examined. Accordingly, the direction given by the trial Judge did not materially misstate the substance of the evidence given. This topic went only to the question of whether Walsham might have suffered his injuries by being struck by a motor vehicle, a hypothesis which was and remains entirely speculative.
The third area of complaint concerns the references made by the trial Judge in his direction to the jury to Walsham having "fallen" from the footbridge, when that was in issue. Because of the view we have formed in relation to other grounds of appeal, it is again unnecessary to go laboriously to each point in the direction to the jury at which the word "fall" was used. It is sufficient for present purposes to observe that, having reviewed each of those references, it is clear that the word was only used in connection with evidence given, in which case its use was an accurate description of the evidence, or to describe the proposition advanced by the State in which case its use was always qualified by a reference to the effect that the jury had to be satisfied beyond reasonable doubt of that assertion.
The final area of complaint concerns the direction given by the trial Judge to the effect that Pigliardo had said that she had seen "a group of young men" on the footbridge. However, this is not what the trial Judge said. The expression "a group of young men" was used by the trial Judge in the following context:
"I will go through the list in a moment but obviously in this category is Clare Pigliardo, not because anybody suggests that she is dishonest or interested or partisan but because her evidence is so central to the proposition that there were a group of young men on the bridge when Phillip Walsham fell to his death."
Accordingly, it can be seen that the trial Judge was not putting to the jury that Pigliardo's evidence was to the effect that she had seen a group of young men on the footbridge, but rather that her evidence was central to the State's proposition to that effect. That direction was entirely correct.
There is no substance in ground 14. The question of the grant of appeal on this ground was reserved to this Court. Leave is refused.
Ground 15
This ground complains of a direction given by the trial Judge in which he referred to a degree of interdependence between the evidence of Pigliardo and the jury's acceptance of the proposition that the abrasion on Walsham's back was caused by a tyre lever wielded by one of the appellants.
The relevant direction was given in the following terms:
"What I have said to you so far proceeds on an acceptance of the evidence of Clare Pigliardo that there was a group of people going up the second flight of steps and on the bridge. That is in controversy. She was the only one to see the group. She didn't see anyone after the body fell. No-one was seen departing from the scene and nobody else saw anyone. So if there was not anyone but Phillip Walsham there, how did he fell [sic fall]? Did he jump? Was it a suicide?
That depends on whether you are satisfied that you can accept beyond reasonable doubt the testimony of Clare Pigliardo. It also depends to an extent upon whether or not you accept the contention that the abrasion on Phillip Walsham's back was caused by a tyre lever wielded by an assailant who was applying force to him in the short time before his fatal fall because if he was being assaulted and he was struck with a tyre lever, the prospects of there being at least one other person on the bridge at the time are greater. So there is an interdependence, to a degree, of that question."
We accept the appellants' contention to the effect that there was no necessary interdependence between the acceptance of the testimony given by Pigliardo, and acceptance of the contention that the abrasion on Walsham's back was caused by an assault with a tyre lever. However, the question is whether the direction given in the terms we have set out above gave rise to a miscarriage of justice.
In assessing that question, it is first to be noted that the reference of the trial Judge to the interdependence of the two topics was significantly qualified by the words "to a degree" which followed the description of interdependence.
Further, we do not consider that the effect of the direction which we have set out above would have been to cause the jury to form the view that their acceptance of the evidence on one subject could bolster or support their acceptance of the evidence on the other. On the contrary, in our view, the general effect of the direction might have caused the jury to form the view that it was required to be satisfied of both matters beyond reasonable doubt. Accordingly, the direction was, to that extent, favourable to each appellant because proof of an assault upon Walsham with a tyre lever was not an essential component of the State's case. The direction given by the trial Judge did not give rise to a miscarriage of justice and this ground must be dismissed.
Ground 16
Leave to appeal was refused in respect of ground 16.
Ground 17
This ground complains that the trial Judge erred by failing to allow counsel for Fazzari to lead evidence from Young, of statements made by him during the course of a video record of interview in which he participated on 27 July 1999, and which were said to contain implicit admissions of involvement in Walsham's death.
Young's examination‑in‑chief included the following:
"Go back to 1998. After you read about the death of Phillip Walsham did some memories come to you?---I just had some thoughts about it.
Yes. What were they?---I don't know. It's pretty hard to say. Just what happened and things like that.
Were you in any way involved?---I don't think - I'm not sure.
You're not sure?---Yeah. It's just thoughts.
Did you go to the station that night, the night that Phillip Walsham - or the early hours of the morning when Phillip Walsham died?---I don't know. I couldn't say."
Further:
"Did you have any involvement, Mr Young, in the death of Phillip Walsham below the footbridge at Stirling station?---I'm not sure.
You're not sure. You said that - earlier you said that thoughts came to you about that matter?---Yeah.
When did those thoughts come to you?---A week or so later.
And are you able to tell Madam Foreman and members of the jury what thoughts, if any, came to you about the events which led to the death of Mr Walsham?---Well, I thought it could be me, but - - -
You thought it could have been you. What made you think that?---Just because of the white car that night.
Yes?---And I drove home from my mate's house on that same night
Yes. You had been drinking at your mate's house?---Yeah.
How much had you had to drink?---Probably a six pack of beer.
Six pack of beer. And how much marijuana had you smoked?‑‑‑Probably two or three cones.
How had that, the combination of drink and marijuana, affected you?---Well, when I left his place I seemed all right. I thought I was all right.
Now, when thoughts came to you about the events that led to Phillip Walsham's death, did any thoughts come to you about the events that occurred - what had actually happened?---I just had a few thoughts - well, visions sometimes.
Well, what were they?---It's pretty much all over the place.
…
Are you able to recall any of the events of that evening, the evening that Phillip Walsham died, after you left your friend's place?---Not really.
What thoughts came to you about it a week later?---I thought it may've been me.
Did any events relating to that evening come into your thoughts?---What was the question again?
Did any detail come into your thoughts as to what had happened?---No.
Your Honour, at this stage I would seek to treat the witness as hostile."
After hearing argument on the subject, the trial Judge ruled that the evidence given by the witness did not support the conclusion that he was hostile, and therefore declined to permit cross‑examination by counsel for Fazzari. Following that ruling, no further evidence‑in‑chief was led from Young. The previous record of interview referred to in the ground of appeal was never adduced in evidence.
As was accepted by counsel during the course of argument, success of the ground depends upon it being established that the trial Judge was wrong to rule that Young not be treated as a hostile witness and subjected to cross‑examination by counsel for the party calling him.
In his ruling on the subject, the trial Judge referred to the decisions in R v Hutchison (1990) 53 SASR 587 and McLellan v Bowyer (1961) 106 CLR 95. He correctly stated that the test which he was required to apply was to determine "whether the witness is deliberately withholding material evidence by reason of an unwillingness to tell the whole truth of [sic at] the instance of the party calling him, or for the advancement of justice."
After referring to the evidence given by Young, the trial Judge ruled that he could not conclude that Young was deliberately declining to tell the truth. Rather, in his view, the testimony given by Young reflected a desire to tell the truth as far as he was able.
That conclusion was plainly correct. Accordingly, there is no substance in the attack on the ruling of the trial Judge on the question of the hostility of the witness, and therefore no basis for the ground of appeal. It must therefore be dismissed.
Ground 18
This ground asserts that the trial Judge erred by failing to give a direction concerning the doubts which attend identification evidence in relation to the evidence of Pigliardo
This ground is misconceived. There was no identification evidence given. Pigliardo did not identify any of the appellants in the course of her evidence. This is one of the deficiencies in the prosecution case to which we have referred above in reference to ground 1.
In the course of argument, counsel for the appellants referred us to the decision of the High Court in Festa v The Queen (2001) 208 CLR 593. However, that decision provides no support whatever for the proposition that an identification warning should have been given in this case. In that case, McHugh J observed (at [57]):
"When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence." (footnotes omitted)
But, of course, this was not a case of circumstantial identification in any event. As we have observed already, the highest the evidence of Pigliardo could be put is to the effect that there were a group of people on the footbridge at the time she saw Walsham fall to his death. The only use that could be made by the prosecution of that evidence was to establish that fact; namely, that there was a group surrounding Walsham at the time he fell. The evidence could not be relied upon by the State to identify the appellants, and no attempt was made to use the evidence for that purpose. This ground is misconceived. Leave to appeal on this ground, which was reserved to this Court, is refused.
Ground 19
This ground asserts that the prosecution questioned Fazzari in a manner which implied that it was for him to say who else could have killed Walsham, thereby reversing the onus of proof.
The fundamental difficulty with this ground is the premise upon which it is based; namely, that there was a question in cross‑examination which reversed the onus of proof. That premise is not sustained by a consideration of the relevant line of questioning. It was in the following terms:
"You were being a hothead that night, weren't you?---That never happened.
But you were being a hothead, weren't you?---Before that I was, yes.
And you had acted as a coward, hadn't you?---Yes, I did.
It had been a cowardly act to kick Mr Walsham in the way that you did?---Yes, it was.
It had been a cowardly act to chase those young men with tyre levers, hadn't it?---Yes.
Because you were effectively threatening to use those tyre levers on them, weren't you?---Yes.
And it would have been a cowardly act to throw Mr Walsham off the footbridge, wouldn't it, Mr Fazzari?---I never threw Mr Walsham off the footbridge.
But you agree it would be a cowardly act, wouldn't you?‑‑‑It would be, but I never did that.
Yes. And the persons that Clare Pigliardo saw on the footbridge you say were some other cowards. Is that the case, Mr Fazzari?---I don't know who they are. Not us, that's all I can say.
Those that she saw with Mr Walsham must have been some other cowards. Is that the case?---It wasn't us, that's all I can say."
This line of questioning was plainly directed at drawing a parallel between the initial cowardly assault upon Walsham, and the assertion that there was a later equally cowardly assault which led to him falling from the footbridge. The jury could not reasonably have understood that line of questioning as suggesting that there was any onus of proof upon Fazzari to establish the identity of other persons who might have killed Walsham. In any event, the trial Judge gave a number of clear and unequivocal directions as to the burden of proof, which could have left the jury in no doubt as to where the burden of proof lay.
In argument, reliance was placed upon the decision in R v Russo (2004) 11 VR 1. However, that was a very different case. As Nettle JA pointed out (at [41]), in that case there were eight separate references by the prosecutor in his closing address, the effect of which "must surely have been to leave as the fundamental question ringing in the jury's ears: who was it if it were not the accused?" That course plainly contravened the principles established by the High Court in Palmer v The Queen (1998) 193 CLR 1. However, there was no contravention of those principles in this case, and this ground must be dismissed.
Ground 20
This ground asserts that the trial Judge should have ruled inadmissible the evidence given by Dr Margolius to the effect that the abrasion on Walsham's back was consistent with having been inflicted by a tyre lever.
In the context of ground 1 we have already expressed our view as to the weakness of the evidence to sustain the State's proposition that the C‑shaped abrasion observed on Walsham's back was caused by an assault with a tyre lever immediately prior to his fatal fall. However, this ground of appeal is directed to the question of the admissibility of the evidence of Dr Margolius, not its strength or effect.
Reliance was placed upon the decision of the High Court in Straker v The Queen (1977) 51 ALJR 690. That case concerned the admissibility of evidence given by a medical examiner as to the condition of the anus and buttocks of the deceased. In that context, Gibbs J observed (at 694):
"Evidence as to the nature of the injuries found on the body of the murdered man is as a general rule relevant on the trial of a person charged with his murder, although there may be circumstances in which the evidence is so prejudicial, and of so little real weight, that the judge in his discretion should exclude it … In the absence of evidence that the appellant had had anal intercourse with the deceased the evidence of Dr James was so highly prejudicial, and of such slight evidential value, that even if it might be thought to be technically relevant, it should have been rejected."
Straker's case provides authority for the proposition that an expert witness should not be permitted to speculate on a possibility of which there is no evidence. In this case, the evidence of Dr Margolius to the effect that the C‑shaped abrasion which she observed on Walsham's back was consistent with having been caused by an assault with a tyre lever. There was also evidence of that possibility, in the form of the evidence given in respect of the prior use of the tyre levers as potential weapons on the night in question shortly before Walsham suffered his fatal injuries. Upon that basis, her evidence to the effect that the abrasion which she observed was consistent with the hypothesis that Walsham had been struck with such a lever was admissible. However, as we have said when dealing with ground 1, Dr Margolius went on to say that, in order to have caused the abrasion which she observed, force would have to have been applied to Walsham's body at least six hours prior to his death and this precluded acceptance of that hypothesis. While that fact might have rendered the balance of Dr Margolius' evidence concerning the mark irrelevant, and hence inadmissible, had this been known from the outset, it seems to us that the jury must be taken to have understood from Dr Margolius' evidence that Walsham was not struck by the appellants, or any of them, with a tyre lever at any time after midnight on the night of his death.
The question of the grant of leave to appeal on this ground was reserved to this Court. Because the ground lacks substance, leave is refused.
Conclusion
It follows that grounds 1 and 12 should be upheld and that each appeal should be allowed upon this basis. Because we have concluded in respect of ground 1 that the verdicts of guilty are unreasonable and cannot be supported on the evidence, it would be inappropriate to direct a retrial. Each of the verdicts should consequently be quashed and substituted with a verdict of acquittal.
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