Nicolaides v The State of Western Australia - [2007] WASCA 203

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NICOLAIDES -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 203

CORAM: BUSS JA
MILLER JA
MURRAY AJA

HEARD: 3 SEPTEMBER 2007

DELIVERED : 28 SEPTEMBER 2007

FILE NO/S: CACR 241 of 2005

BETWEEN: BRADLEY CHRISTOPHER NICOLAIDES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BLAXELL J
File No  :INS 64 of 2003

Catchwords:

Criminal law and procedure - Whether trial judge misstated evidence - Whether trial judge erred in assuming question was not a fact in issue - Whether trial judge erred in failing to warn jury of danger of using evidence - Evidence of gunshot residue particles - Whether warning adequate

Evidence - Collateral evidence rule - Whether proposed evidence of a witness went only to credit - Whether defence had adequately put proposed evidence to witness - Admissibility of evidence of gunshot residue particles found in vehicle - Whether probative - Alibi evidence - Whether trial judge correct to describe alibi evidence as inconsistent with earlier alibi notice

Legislation:

Criminal Code (WA), s 611C (repealed)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D Grace QC & Mr D N Ryan
Respondent: Mr R E Cock QC & Ms E Abou-Merhi

Solicitors:

Appellant: Talbot Olivier
Respondent: State Director of Public Prosecutions

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

Browne v Dunn (1893) 6 R 67
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
Shepherd (No 5) v The Queen (1990) 170 CLR 573
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650

BUSS JA: I agree with Miller JA.
MILLER JA: The appellant was indicted with Claudio Gabriel Simion (Simion) on counts of assault with intent to facilitate the commission of a crime, aggravated armed robbery, deprivation of liberty and stealing a motor vehicle. All offences were alleged to have occurred on 30 September 2002 at Bayswater. They arose out of a robbery at the Bayswater Hotel at or about 9.15 pm that night. The appellant was convicted of each count after a lengthy trial before Blaxell J and a jury in the Supreme Court at Perth.

Grounds of appeal

The appellant appeals against his conviction on four grounds. Leave to appeal was granted by Wheeler JA on 5 April 2007, save for a portion of one ground, where the question of leave was referred to this court. The grounds of appeal are in the following terms:
(a)The trial judge erred in holding that the proposed evidence of Defence witness, Mr Dwayne Harvey, was not admissible because his evidence:
(i)was only relevant to the credit of a key State witness, Ms Katrina Ripper and therefore subject to the collateral evidence rule; and
(ii)had not been fully put to Ms Ripper;
(b)The trial judge erred in his direction by misstating the evidence regarding the Appellant vacating his apartment, relied on by the State as establishing a consciousness of guilt, by assuming it was not a fact in issue;
(c)The trial judge erred in:
(i)allowing the admission of evidence with respect to the finding of gunshot residue particles in a white Commodore, hired by the Appellant after the robbery at the Bayswater Hotel, where the evidence was of marginal probative value and highly prejudicial to the Appellant; or
(ii)alternatively - in admitting the said evidence, the trial judge failed to appreciate the significant prejudice with respect to the said evidence and, in particular, did not give a warning [sic] the jury of the danger of placing undue weight on the said evidence or using the said evidence for an impermissible purpose; and

(d)The trial judge erred in his direction that the alibi evidence of Mr Lindsay Treby was inconsistent with the Appellant's first alibi notice pertaining to a Ms Kim Wylie.

There is an additional ground which contends that, by reason of any one or all of the errors complained of, the appellant suffered a substantial miscarriage of justice.

The evidence at trial

The trial occupied the period 17 October to 25 November 2005. According to the trial judge, there were more than 70 witnesses and a total of 171 exhibits. The evidence consisted of both direct and circumstantial evidence. The learned trial judge directed the jury that the case against the appellant was dependent upon the evidence of Katrina Ripper (Ripper) and Sean Burgess (Burgess). The learned trial judge told the jury that, although the prosecution had adduced evidence of other alleged facts and circumstances which, if accepted, tended to implicate the appellant in the offences charged, the prosecution case against him in the end depended upon an acceptance of the evidence of either or both of Ripper and Burgess. The direction was in strong terms:
Nevertheless, in the end the state's case against Nicolaides does depend upon your acceptance of either or both of Burgess and Ripper's evidence implicating him in the offences. Accordingly, I direct that you cannot find Nicolaides guilty of any charge against him unless firstly you are satisfied beyond reasonable doubt as to the facts implicating him which have been asserted by either or both of Burgess and Ripper, and secondly that those facts in combination with such other facts as you find relevant to him give rise to the inference as the only reasonable inference that Nicolaides is guilty of that charge.
The direction was highly favourable to the appellant. Apart from the evidence of Ripper and Burgess, there was a volume of circumstantial evidence which, if accepted, implicated the appellant in the offences.

The robbery

The events which were the subject of the charges occurred at or about 9.15 pm on 30 September 2002 at the Bayswater Hotel. At that time, two persons, alleged to be the appellant and Simion, walked into the bar of the Bayswater Hotel. The taller offender was carrying a pistol. The other was walking behind him and carrying a baseball bat. Each was disguised. The evidence suggested that the taller of the two offenders (the one holding the pistol) was the leader, as he gave directions to the other offender.

The two men walked the distance of the bar, towards a passageway that led to the office of the manager. As they did so, they shouted at patrons to get down on the floor. A demand was made to a barmaid that she tell them where the manager was.
One of the patrons refused to take notice of the intruders. He was Ross Ciraulo (Ciraulo). He picked up a bar stool and advanced towards the two intruders as they accosted the barmaid. The taller of the two men told the other to hit him with the baseball bat. This did not happen and, as a result, the taller man raised his pistol in the general direction of Ciraulo and fired a single shot. It was fired approximately parallel with the bar.
The bar manager was Robert Letizia (Letizia). When he heard the commotion, he pressed an alarm button in the manager's office. He went to the front bar and identified himself to the intruders. He was then forced back into the manager's office and ordered to open the safe. The offender with the baseball bat emptied some of the contents of the safe. This included a substantial quantity of cash, most of which was stored in pencil cases.
The taller man demanded that Letizia show him the location of the security video. Letizia replied that it was not working. He was then ordered to get on the floor and the pistol was held to his head. The man holding it said that it was a nine‑millimetre Glock pistol. He threatened to shoot Letizia with it. Ultimately, the taller man accepted Letizia's assurances that the surveillance video was not working.
Letizia's car keys were then demanded. He was also asked where his car was parked. He took the two intruders to the vehicle, which he was forced to drive away. He drove only a short distance before he was told to stop the car and get out, which he did. The two men then drove away in the vehicle. It was a black Ford Falcon sedan, registration number 1AJS 559.
There were numerous occupants of the bar at the Bayswater Hotel, but no witness was able to identify either of the intruders.
There was a substantial volume of evidence relating to events preceding and subsequent to the robbery. This evidence was relied upon by the prosecution to implicate the appellant.

Evidence of Ripper

Approximately two weeks before the Bayswater Hotel robbery, the appellant met up with Ripper. He had known her in the past, but met her on this occasion at a time when she was working as a prostitute and living in an hotel. There was evidence that she had a drug problem. It involved heroin and amphetamines. The appellant invited Ripper to stay with him and she accepted the invitation. She moved into his apartment on The Esplanade, South Perth. She said that she was with the appellant for the two weeks prior to the robbery and thereafter until 8 October 2002. On that day, she rang the police and informed them that the appellant had committed the Bayswater Hotel robbery.
There was a dispute at the trial as to whether Ripper had, in fact, stayed with the appellant for the period of time she claimed, but there was independent evidence to indicate that she was with him in the period leading up to the robbery. There was evidence that she had delivered laundry to a laundromat on 27 September and collected it again on 30 September. There was evidence that she had been with the appellant at the house of John Simon (Simon) on 29 September 2002 and there was surveillance evidence which suggested that Ripper was with the appellant when he drove to a laneway in Bayswater on 30 September 2002. There was also evidence that, after the robbery, Ripper remained with the appellant. She was seen with him on 1 October 2002, when the appellant left his car at the house of Natalie Cotton (Cotton). There was evidence that her fingerprints were found on a white Commodore sedan which was hired by the appellant on 1 October 2002. There was evidence that Ripper had telephoned the appellant on 8 October 2002, requesting that he collect her from Rosco's Mini Mart, where he was ultimately arrested.
Ripper's testimony at trial proceeded over a number of days and it is impossible to do more than give a brief summary of it. She said that, on 30 September 2002, she was at the appellant's unit in South Perth in the morning. She recalled that, on that day, he was wearing jeans and a basketball singlet. He had a jacket on because he had a gun holster and was wearing a gun. She thought it was a Glock.
Ripper recalled the appellant leaving the unit. She went to the laundromat to put in some washing and to collect items that had been washed or dry‑cleaned. She rang the appellant from a public phone box. She was told to go back to the unit, and she did. The appellant rang and told her to pack everything up. She did so. The appellant then appeared at about 2 pm and the items that had been packed were taken and put into the appellant's vehicle in the carpark. Ripper described the items put in as 'his clothes, my clothes, paperwork, CDs, just stuff like that'. These items were placed in the boot and on the back seat. Items left behind in the unit included furniture and some clothing.
They drove to what Ripper described as an alleyway and parked in somebody's driveway. It was in Bayswater or Mount Lawley. The appellant got out of the vehicle and said that he was going to meet a man named 'Perry'. He walked off down the alleyway, leaving Ripper in the vehicle. He was away for about 15 minutes and then returned. They then drove to Cape Street, Tuart Hill, where Simion answered the door. A man named Shane was also there. At around 8 pm, the appellant and Simion left the unit. The appellant was wearing jeans, a black top and a black jacket. He had his gun holster and gun with him and was carrying a blue, green and white UDL bag. Before the appellant left, he told Ripper that he 'was going to do the job on the Bayswater' and asked if she had something with which he could cover his face. She gave him a leg of a stocking. It had lace around the top. The appellant cut the lace off and 'tried it on over his head'. It was a black stocking. He was also given a red hat.
Ripper said that the appellant had told her that 'Perry ... had organised the job' at the Bayswater Hotel for him and that 'he was going to get around 90,000 cash'. He said that there were two safes and the bar manager was supposed to be 'in on it'. Ripper remained at the unit at Cape Street. Shane was also there.
At around midnight, or 1 am, the appellant and Simion reappeared. The appellant was carrying the UDL bag, which he put on the bench. Ripper and the appellant went upstairs, where the appellant told her that a few things had gone wrong. He said that Simion was 'nothing but a dickhead because he didn't see a guy coming - some guy tried to hit him with a bar stool or something and he couldn't get a car and they had to take the manager hostage and make him ... drive his own car, and they only got around 10 grand'.
Ripper was unable to say whether it was on that evening or the next day, but she saw Simion counting money. There were numerous bank notes.
Ripper said that she and the appellant left Shane's unit. She noticed that a baseball bat, which had been kept in the vehicle, was missing. They drove to Cotton's house in Craigie and the appellant asked Cotton to open the back gates. He drove his vehicle into the back area and parked it. He asked Cotton to leave the car there and gave her $600. He then asked her to take them to a car hire location. The appellant hired a car and then drove back with Ripper to Cotton's house. He went to get a car cover for his vehicle, which he then placed over the car. He put some money and some bullets into a medicine container and hid them in the backyard.
Ripper and the appellant then left Cotton's house and went to an hotel. They met with Simon and the appellant gave Simon his pistol.
On 6 October 2002, Ripper telephoned the triple zero number. She said she did this because she wanted to get away from the appellant. She said, 'I was scared'.
Ripper was extensively cross‑examined. All details of her criminal record were exposed. It was made clear that she had received benefits for testifying against the appellant. She had received a discount on sentences for various offences. Details of her drug addiction were recounted. Her involvement in a robbery at the ANZ Bank in Nedlands on 25 September 2002 was the subject of considerable detail. In essence, it was put to her that she had been taken in by the appellant because he was concerned for her welfare and he wanted to help her overcome her drug habit. It was put to her that she did not remain at his unit until 30 September 2002, but had been evicted by him on 28 September 2002. It was suggested to her that this was because she was continuing to take drugs. The defence case was that she was not with the appellant at the time of the Bayswater Hotel robbery and she fabricated her evidence about the events of 30 September 2002. As no evidence was given by the appellant, that case was put by way of cross‑examination of Ripper. It was denied by Ripper.

Evidence of Burgess

Burgess (who was clearly the 'Shane' spoken of by Ripper) essentially confirmed the evidence of Ripper about the events at Cape Street on 30 September 2002. He said that he had known Simion for some time and Simion was staying with him at his unit. He had been there about a week prior to 30 September. He also knew the appellant, but not well. He recalled the appellant coming to his unit with a tall blonde‑haired girl. (This was clearly Ripper.) He was introduced to her, but could not remember her name. Later that night, the appellant and Simion went out. The appellant had a pistol. Burgess and the girl were left at the unit. They had a meal and watched television before the appellant and Simion returned pretty late in the evening. When they returned, they had a cooler bag with them. Burgess saw some pencil cases and a bank money bag. They were in shoe boxes. He then saw money being counted out by the appellant and Simion on the kitchen table. They complained about the fact that there were too many $10 notes instead of hundreds. He heard a conversation about an old man with a lot of dash. One of them said that they had dropped some pencil cases as they were running.
The appellant and Simion split the money in half and Simion cut a hole beneath the lounge suite and went to hide his money there. Burgess took it out and took it upstairs. He did not want it in his lounge. The appellant told Burgess that it would be best if he kept his mouth shut. In the morning, the appellant and his girlfriend left, but Simion stayed for a little over a week. The appellant returned a day or a couple of days later, saying that he had moved his stuff and needed to store some stuff. He stored it at Burgess' unit.
Like Ripper, Burgess was extensively cross‑examined. He admitted to being a 'career criminal' and to a history of drug addiction. It was revealed that he had received credit in relation to sentencing for aggravated burglary for the undertakings he had given to testify against the appellant and Simion. This was a matter which was fully addressed by the learned trial judge when he directed the jury. No complaint is made about it.

Circumstantial evidence

Although the learned trial judge directed the jury that the appellant could only be convicted if the evidence of either or both Ripper and Burgess was accepted, there was an abundance of circumstantial evidence.
On 30 September 2002, the appellant was under police surveillance. At about 4.46 pm, he was observed to walk to a laneway near his apartment in South Perth. He drove a black Commodore, 1AXO 620, from the laneway to the carpark at the block of apartments where he resided. At 4.53 pm, he drove the vehicle from the carpark at the apartments. He was accompanied by a female passenger, who was seated in the front passenger seat. At 5.23 pm, the vehicle stopped at a BP service station in Ballajura. The female got out of the vehicle and refuelled it. The appellant went into the service station to pay for the fuel. At 5.26 pm, the vehicle left the service station with the appellant driving. It was driven to Bayswater, where, at 5.45 pm, it was parked in a laneway between Veitch and Leake Streets. At 5.47 pm, the vehicle was observed by a surveillance operator with only the female inside it.
At 6.04 pm, a white Toyota utility, AK 8721, arrived in the laneway. It parked behind the appellant's vehicle. The appellant got out of the passenger seat of the Toyota and went to the driver's seat of his vehicle. Both vehicles then left the laneway. Investigations revealed that the Toyota utility was registered to Perry Macri (Macri). He was known to Letizia, director of the company which owned the Bayswater Hotel. Letizia and Macri had fallen out in January 2002.
On the night of 30 September, further events occurred in the laneway between Veitch and Leake Streets. Lee Melville (Melville) was a resident of 6C King William Street. His property backed onto the laneway. He was drinking with a friend at his unit in King William Street when he heard voices from the laneway at the back of the property. He decided to investigate the matter and went out with a torch. He was able to see part of a blue Ford Falcon in the laneway. It was adjacent to a shed at the back of his property. The front of the vehicle projected out past the wall of the shed. Melville could not see anybody, but called out. He got a response from somebody to the effect that it was all right as they were just parking the car. Melville returned to his unit. After about 10 or 15 minutes he heard some further noise from the laneway. He heard the sound of wheelie bins being moved or knocked over. He went out to investigate and found that the Ford Falcon was not where it had originally been. It had been shifted to a dead end area of the laneway near Whatley Crescent.

As the trial judge directed the jury, it was open to conclude that the vehicle seen by Melville was that of Letizia. It had been driven into the laneway by the persons who had robbed the Bayswater Hotel and was initially parked for 10 or 15 minutes behind Melville's shed, but then moved to a different position.
Annette Gelok (Gelok) and Melanie Burns (Burns) lived at 95 Whatley Crescent. Their property had a carport at the rear which was accessed from the laneway in question. Some time after 9 pm, Gelok drove down the laneway, but found her passage was blocked by a parked car. That car was a short distance down the laneway from Veitch Street. It was facing towards Veitch Street. Gelok reversed with the intention of driving to her carport from the other end of the laneway. However, when she got to that end of the laneway she found another vehicle blocking her path. Having found access to the laneway blocked at both ends, Gelok then reversed back into Veitch Street and drove to the area where she had seen the first vehicle. She parked in front of the first vehicle and then went to houses in Whatley Crescent to endeavour to discover whose vehicle it was. When she returned, she saw the vehicle which had originally been blocking her path reversing down the laneway. It backed into her carport and then drove down the laneway, where it reversed into the dead end area where Letizia's vehicle was later found. The second vehicle which Gelok had seen in the laneway then came towards her and stopped. She got into her own vehicle to reverse to let it out, but the headlights of the other vehicle were flashed and it then reversed back down the laneway and exited in the other direction.
There were some problems with Gelok's evidence. She identified the first vehicle which had blocked the way as a purple Mazda hatchback. She described the second vehicle which had blocked the way as big and dark. She identified a third vehicle parked in the dead end portion of the laneway.
The third vehicle identified by Gelok was a Ford XR8. It was teal blue in colour and the learned trial judge directed the jury that they would no doubt be satisfied from the evidence that it was the vehicle of Letizia.
Gelok testified that she saw a man approach the first vehicle after it had reversed to the end of the laneway. She saw him bending over as if speaking to somebody inside it. Her description did not match either the appellant or Simion.
Burns gave an account which was similar to that of Gelok. She took down the registration number of the first vehicle which had blocked the laneway. It was 1AXO 620, which was the registration number of the appellant's Holden Commodore.
Cotton testified that on 1 October 2002, the appellant and Ripper visited her house. The appellant asked Cotton if he could leave his car in her backyard for a few days. She agreed, particularly as she was paid $600. This money was paid from a green and blue cooler bag and was mostly in $50 and $20 notes. Cotton then drove the appellant and Ripper in her mother's car to a location for lunch. The appellant said he wished to hire a car to travel 'over east' and he asked Cotton to give him a lift to a car hire business. She did this, and took the appellant to Myaree Car Hire. She then returned home. About half an hour afterwards, the appellant and Ripper arrived in the hire car. It was a white Commodore 1BAC 306. During the hours that followed, the appellant left Cotton's house to purchase a blue car cover and when he returned, Cotton and Ripper assisted him to place it over his Commodore, which was a Club Sport. The front numberplate of the vehicle was not covered by the car cover, but was covered with black tape.
Cotton testified that when the appellant visited her house on 1 October, he was carrying a gun. Ripper gave evidence that on 1 October she was with the appellant when he met Simon and exchanged his Glock pistol for another gun. He was carrying a Norinco pistol when arrested on 8 October 2002.
There was evidence that police located the appellant's Holden Club Sport at Cotton's residence. There was a mobile telephone in it. The white Commodore hire car had a SIM card in it. This belonged to the mobile telephone from the appellant's vehicle. It was downloaded and revealed a record of telephone calls made and received on it. There was evidence of calls between the appellant and a telephone which belonged to Simion's former girlfriend, Alice Benz (Benz). Benz gave evidence that she left her telephone with Simion when she parted company with him in August 2002.
A cartridge case was found at the scene of the robbery. It had a fingerprint ridge on it. The ridge could not be identified. The learned trial judge directed the jury that it was totally neutral evidence. Forensic examination of the cartridge and of a bullet recovered from the Bayswater Hotel revealed that both had come from a Glock nine‑millimetre Luger pistol.
There was evidence of gunshot residue found in the white Holden Commodore hire car. Swabs taken from the hire car revealed some particles of gunshot residue on the back of the driver's seat and on the driver's headrest. I will deal in more detail with that evidence when I come to the grounds of appeal.

Evidence of David Joosten

David Joosten (Joosten) gave evidence that he travelled in the appellant's 'maroon' Holden Commodore some days after 29 September 2002. (The vehicle was black.) His fingerprints were found on the outside of the back door of the vehicle. This suggested that his fingerprints must have got onto the vehicle at some time before it was parked in Cotton's yard.
Joosten testified that the appellant contacted him a few months later and asked him to 'put his hand up' for the robbery charges. He was asked to admit that he borrowed the appellant's vehicle, used the appellant's mobile telephone to ring the Bayswater Hotel and 'met a chick' at that location. Joosten said that he did not carry out this request. Joosten's evidence had to be considered in light of the fact that a witness named Barry Sutton testified that Joosten had told him in January 2004 that he had 'told lies to get off a burglary to go evidence against [the appellant]'.

Evidence for the defence

Evidence was called by the defence to establish that someone else had committed the robbery. An alibi was also raised for the appellant. Shane Curtis (Curtis) gave evidence that he telephoned the appellant on an afternoon which must have been 30 September 2002, and asked if he could borrow the appellant's vehicle. He said that the appellant agreed to this and that he collected the vehicle from the appellant at the Duxton Hotel at about 7.30 pm. He said that he then drove to the Perth railway station where he collected two persons named 'Rick' and 'Ib'. Rick had a gun with him and Ib took possession of a baseball bat which was in the appellant's vehicle. Curtis said that he then drove the two men to a laneway near the Bayswater Hotel, where he met an unknown man in a white utility. He, Rick and Ib then drove to 'Hungry Spot' in Mount Lawley, where they planned the Bayswater Hotel robbery. After about 15 or 20 minutes, the three men then went in the appellant's vehicle to a carpark at the Bayswater train station where Rick and Ib got out of the vehicle and went off to commit the robbery. Curtis testified that, whilst in the laneway, he had used the appellant's mobile telephone, which was in the centre console of the vehicle. Curtis said that he met up with the two men 15 or 20 minutes later, when they arrived in another car. They arrived with the wheels squealing on that vehicle and ran quickly to the appellant's vehicle, which Curtis drove away. They went to the Ezy Plus store in Beaufort Street, Inglewood, where Curtis received $2,200 out of about $10,000, which was said to be the proceeds of the robbery. He then returned the vehicle to the appellant at the Duxton Hotel somewhere between 9.30 and 10.30 pm.
Lindsay Treby (Treby) gave evidence that he had known the appellant for a long time. He said that he met with him at the Duxton Hotel at about 8.45 pm on 30 September 2002 and they had some drinks. They had intended to go to the casino, but Treby had arrived in a work utility which was unsuitable for driving in good clothing and the appellant did not have his vehicle because he said he had loaned it to somebody. As a result, they remained at the Duxton Hotel and drank together for about an hour. The alibi evidence of Treby differed from notice of an alibi which had previously been given by the appellant. I will deal with that when I turn to the grounds of appeal.

Grounds of appeal

Ground 1(a)

This ground contends that the learned trial judge erred in holding that the proposed evidence of a defence witness Dwayne Harvey (Harvey) was inadmissible. It is said that the learned trial judge erred for two reasons. The first is his ruling that the evidence of Harvey was relevant only to the credit of Ripper and was therefore subject to the collateral evidence rule. The second is that he ruled that the proposed evidence of Harvey had not been fully put to Ripper in her testimony.
I have already mentioned that Ripper testified that, following the Bayswater Hotel robbery on 30 September, she and the appellant had stayed at a number of hotels until she contacted police on 8 October 2002. She said that, after acquiring the hire car, she and the appellant stayed at a hotel, but she was unable to recall the name of it. She did recall that it may have been either the King's or the Queen's Hotel at which they stayed. She thought it may have been the Kings Hotel at the bottom of King's Park.
It was part of the prosecution case that the appellant had left his apartment in South Perth on the day of the robbery and stayed at hotels in circumstances which evidenced a consciousness of guilt on his part.
Ripper was cross‑examined to suggest that, at some time between 30 September and 7 October 2002, she stayed at the Armadale Hotel with Harvey. The cross‑examination was as follows:
Do you recall at some point in time between 30 September 2002 and 7 October 2002 staying at the Armadale Hotel with Mr Dwayne Harvey?‑‑‑No.
BLAXELL J:   With Mr Dwayne Harvey?
MARGARETIC, MR:   Dwayne Harvey.
BLAXELL J:   Did you say with that person?
MARGARETIC, MR:   Yes, with that person, your Honour?‑‑‑No.
Did Mr Dwayne Harvey arrange a hotel room for you at the Armadale hotel in that same period of time?‑‑‑No.
BLAXELL J:   Can I just clarify? Are you putting that she was there the whole of that period?
MARGARETIC, MR:   No, for any one day in that period of time.
BLAXELL J:   For one day, I see. Right, yes.
MARGARETIC, MR:   Did you understand that question, Ms Ripper?‑‑‑Yes.
So you are saying that within that whole period of time you did not stay at the Armadale hotel with Mr Dwayne Harvey?‑‑‑No.
Did you obtain a room through Mr Dwayne Harvey and stay at the Armadale hotel on your own for any period of time?‑‑‑No.
Counsel for the appellant sought to call Harvey to establish the fact that he stayed at the Armadale Hotel with Ripper for one night between 30 September and 7 October 2002. His evidence was foreshadowed by counsel for the appellant in the following terms:
For the sake of this submission, Mr Harvey will indicate that in fact he was telephoned by Ms Ripper from her mobile telephone, that he collected her at the Armadale train station; she was alone. He booked a room at the Armadale hotel; she stayed with him for one night.
Counsel for the appellant added that Harvey's recollection was that it was either 1, 2 or 3 October 2002 when he stayed with Ripper. He would give evidence that the date was fixed in his memory because it was the time of the Perth Royal Show.
Counsel for the prosecution objected to the evidence on the basis that it went solely to the credit of Ripper and it was a collateral matter. The learned trial judge ruled that the proposed evidence was only relevant to Ripper's credit, but said that this was not necessarily the answer to the problem. His Honour said:
BLAXELL J: All right, I have come to a view and I will give a ruling. In my view, this area of proposed evidence from Mr Harvey is tied up with issues which relate to the relationship between Nicolaides and Ms Ripper over a period both before and after the robbery at the Bayswater Hotel. The evidence is only relevant to her credit, but that doesn't necessarily mean that it's a collateral issue in respect of which her answers are final and as is shown in the decision I think of Bannister in the Full Court in this state:
'Issues relevant only to credit can nevertheless be relevant to the fundamental issue in the trial, when the evidence of the witness is so important that the credibility is vital.'
In this case, Ms Ripper's evidence is very important to the prosecution case. It's not critical in the sense that without it the prosecution cannot succeed but, nevertheless, it is very important. If I was to stretch the principles as established in cases such as Bannister and to take the flexible approach referred to in paragraph 116 of Miller J's decision in Hoy, then it could conceivably be admitted but I think that would be stretching matters beyond where they have been stretched before.
In the end I think that the real problem is that the evidence which is proposed to be adduced has not been fully put to Ms Ripper; it has been put in a very abbreviated form, and I don't see at this stage of the trial how it's possible to do justice in the sense that the jury would be in a position to evaluate Mr Harvey's evidence as against Ms Ripper's evidence. It's too late to re‑call her and have her deal with that issue and in the end I have come to the view that the evidence should not be admitted.
The first question in relation to this ground is whether the proposed evidence of Harvey was relevant in the sense that it tended to prove a fact in issue or a fact relevant to a fact in issue. A statement of the collateral evidence rule is to be found in Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196, [37] et seq (McHugh J), in the following terms:
[37]The central thesis of the common law concerning the admissibility of evidence is that it is admissible only when it is relevant, that is: 'if it tends to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non‑existence of the other fact.' In other words, evidence is relevant 'if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.' In a trial, a balance must be struck between considerations of justice and matters of practicality. Consequently, the general rule concerning admissibility is qualified by other rules of evidence. One qualification concerns evidence of matters collateral to the issues in the case.
[38]The collateral evidence rule declares that answers given by a witness to questions put to him or her in cross-examination concerning collateral matters are final. Those answers cannot be contradicted or rebutted by other evidence. Hence, the rule is often referred to as the 'finality' rule. Collateral facts are 'facts not constituting the matters directly in dispute between the parties' or 'facts that are not facts in issue or facts relevant to a fact in issue'. In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone - in other words, a collateral matter - is final and cannot be rebutted. (Footnotes omitted).
The test for determining whether a matter is collateral is two‑fold. In Nicholls v The Queen, McHugh J at [40] et seq put it this way:
[40]There are two tests for determining whether a matter is collateral. The first test, articulated by Pollock CB in Attorney-General v Hitchcock [(1847) 1 Ex 91 [154 ER 38]], defines collateral matter by reference to the issues upon which evidence may not be tendered by a party as part of its case during examination‑in-chief. The second test defines collateral matter in terms of credit.
[41]Pollock CB explained the first test in Hitchcock when he said:
'[T]he test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence - if it have such a connection with the issue, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him.'
[42]Another formulation of this test is that relevance to an issue other than credit is a necessary condition of admissibility. This test emphasises the importance that the information must have to prove the material facts in issue. However, it is problematic in that it does not identify the requisite degree of importance that information must have before it can be tendered in‑chief. Nor does it identify how a court decides whether a fact is collateral.
^…
[43]The second test for determining whether a matter is collateral is whether it is relevant only to a witness’s credit in contrast to matters relevant to the facts in issue that can be rebutted by calling evidence. The problem with this test is that it is often difficult to maintain the distinction between credit and issue. It is also often difficult to maintain the distinction between evidence that affects only the credit of a witness and evidence that is relevant to a fact in issue. (Footnotes omitted).
To these observations should be added the following passage from Nicholls v The Queen, [285] ‑ [286] (Hayne and Heydon JJ):
[285]Was the evidence outside the collateral evidence rule? The arguments of the appellants that Ross’s evidence was admissible even if it did not fall within the bias exception must be rejected. When the matter was most recently considered by this Court, a majority reaffirmed the received law as to the finality of answers in cross-examination on collateral matters. There are real difficulties in defining the outer limits of the ban on evidence in rebuttal on 'collateral' and 'credit' questions. Opinions differ about how far it is legitimate to approach the problem emphasising the importance of flexibility against rigidity, convenience against principle, and case management rather than rigid rules, though the prosecution in this case was prepared to accept the legitimacy of such an approach up to a point.
[286]But whatever the difficulties of definition and approach, the law as it stands does not permit any relaxation of the traditional rules merely on the ground that the particular witness’s credibility is inextricably linked with the principal issue in the case. If that is illustrated by nothing else, it is illustrated by the analysis in the cases involving evidence rebutting a challenged witness’s denials of matters suggesting bias, interest or corruption. That analysis accepts that the key question is whether the witness’s state of mind is such as to cause the witness to lie about the principal factual issues. (Footnotes omitted).
Gummow and Callinan JJ, at [168] said:
[168]Strict application of the collateral evidence rule can lead to injustice. The dividing line between collateral evidence and directly probative evidence is often a very difficult one to draw.
In my opinion, the evidence proposed to be led from Harvey did go only to Ripper's credit. It was not evidence of a fact in issue or a fact relevant to a fact in issue. Although it was part of the prosecution case that the appellant had left his unit in South Perth on 30 September 2002, and had been with Ripper at various hotels between that date and 8 October 2002, it was not a fact in issue or a fact relevant to a fact in issue that, on a night between 30 September 2002 and 8 October 2002, Ripper may have spent a night at the Armadale Hotel with Harvey. On the particular facts of this case, the relevant issues were whether the appellant had committed the Bayswater Hotel robbery and whether his departure from his unit in South Perth on 30 September 2002 was made with a consciousness of guilt on his part.

The appellant gave no evidence to say that he had not departed the unit in South Perth. He gave no evidence in relation to the question whether he had been with Ripper between 30 September and 8 October 2002 at locations other than his unit in South Perth. Ripper was cross‑examined to the effect that the appellant had kicked her out of his unit prior to 30 September 2002, but she denied that assertion. Whether or not she had arranged a night with Harvey at the Armadale Hotel on 1, 2 or 3 October 2002 was a matter which went to her credit.
If Ripper had spent the night with Harvey, it would not have been probative of whether the appellant had robbed the Bayswater Hotel, or whether the appellant had departed from his unit in South Perth on 30 September 2002 (if he did depart). Nor would it be probative of his state of mind. If Ripper had spent the night with Harvey, it would only go to the reliability of her evidence. I consider that the learned trial judge was correct in what appears to have been a somewhat tentative ruling that the evidence was relevant only to credit. This disposes of ground 1(a)(i).
It is unnecessary to consider whether the learned trial judge was correct to conclude that the proposed evidence of Harvey had not been fully put to Ripper. In my opinion, it had been sufficiently put to comply with the rule in Browne v Dunn (1893) 6 R 67. Sufficient detail of the proposed evidence of Harvey was put to Ripper. There was not a great deal more that could have been put by way of cross‑examination.
This was not a case in which the groundwork was being laid for proof of a prior inconsistent statement. Ripper was not alleged to have made any statement about the matter. It was a case in which counsel for the appellant was seeking to adduce evidence to refute Ripper's proposition that between 30 September and 8 October 2002 she had been with the appellant at different hotels in Perth. That was a question of credit not a question of a fact in issue or a fact relevant to a fact in issue.
To the extent that the learned trial judge considered that the proposed testimony of Harvey had not been fully put to Ripper and that the evidence of Harvey was therefore inadmissible, I consider his Honour to have been in error. However, I have expressed the opinion that the proposed evidence was relevant only to credit and therefore offended the collateral evidence rule. Accordingly, there was no miscarriage of justice occasioned by the learned trial judge's decision that Harvey's evidence had not been properly put to Ripper. I would therefore dismiss the entirety of ground 1(a).

Ground 1(b)

This ground contends that the learned trial judge erred in his direction by misstating the evidence regarding the appellant vacating his apartment by assuming it was not a fact in issue.
The passage complained about was in the following terms:
I come now to what lawyers call evidence of consciousness of guilt. As you are aware, the state relies upon evidence of the way that Mr Nicolaides behaved after 30 September 2002 as establishing what the law calls a consciousness of guilt. The areas of evidence where this issue arises are firstly him moving out of his apartment and if you accept the evidence living in hotel to hotel; secondly, storing his Commodore Club Sport car in the backyard of Natalie Cotton's house, covering it up with a blue car cover, taping over the numberplate and then hiring a hire car as a replacement car when there was no apparent reason for that to be done.
The other area of evidence where there's an issue of consciousness of guilt is Nicolaides' alleged conversation with Mr Joosten, asking Joosten to say that he had borrowed the car on the evening of 30 September and that he had used the mobile phone and also Ms Ripper's evidence that the Glock pistol used in the hotel robbery was subsequently swapped for another gun.
Now, it's entirely for you to determine whether you accept that any of these alleged events occurred and, if so, whether or not those events either alone or in combination indicate a consciousness of guilt on Nicolaides' part.
It is to be noted that the learned trial judge here referred to the appellant 'moving out of his apartment'. That was consistent with the testimony which Ripper gave. She did not suggest that the appellant had actually vacated the apartment in the sense that he had ceased occupancy of it on a permanent basis. Her evidence, which I have quoted, indicates that he took certain belongings with him but left other possessions behind. That was also the evidence of detectives.
Detective Goodger gave evidence that when he went to the premises on 7 October 2002 there were various items still in the unit which included a bed, a television and a stereo. Constable Beaton gave evidence that when she was at the unit on 7 October 2002 there were still many items in the unit which showed that it was habitable. She said it was habitable 'if you liked living sparsely'.
A surveillance operative gave evidence that on 30 September 2002 he observed the appellant drive up to his unit in South Perth in company with a female passenger. There was what appeared to be a bundle of clothing in the backseat. He was asked whether he had seen a motor vehicle when somebody was shifting house and he said that he had. He agreed that sometimes a vehicle would be full of items in those circumstances. He agreed that what he saw was a bundle of clothing but there were not items such as lamps, stereo equipment, television or refrigerator in the vehicle.
The cross‑examination by counsel for the appellant seemed to be directed at establishing that the unit in South Perth was still habitable. The appellant had not moved out of it in the sense that he had taken all his belongings. This does not seem to me to have been the issue. The issue was whether the appellant left the unit (with certain items) on 30 September 2002 for a significant or definite period because of a consciousness of guilt. It was not a question of 'vacation' of the unit on a permanent basis. Nor was it a question of removing all of his possessions from the unit.
At the end of the trial judge's directions to the jury, counsel for the appellant raised the issue. He said:
[W]hen your Honour talked about the consciousness of guilt one of the items that you mentioned to the jury was that they stayed from - that he vacated the apartment on the 30th - on the afternoon of the 30th, according to Ms Ripper's evidence, and that they stayed - they went from hotel to hotel up until 8 October in 2002.
The statement of counsel was inaccurate. The learned trial judge had not used the word 'vacate' but had used the words 'moving out'.
The following exchange then occurred:
BLAXELL J: I don't think there's any issue that he vacated the apartment, is there?
MARGARETIC, MR: No, there is an issue there, your Honour, because the evidence that was put to the detectives was that the apartment was still habitable. There was still a bed in there. There was a television in there. There was clothes in there.
BLAXELL J: Well, I thought you put to Ms Ripper in cross examination they were shifting out and that they had loaded the car up with all sorts of things and a fridge and things.
MARGARETIC, MR: No, no. I put to all the surveillance operatives whether or not they had seen in the vehicle anything indicative of someone moving house.
The learned trial judge concluded this exchange by saying that he must have misunderstood the evidence. He did not realise there was any issue as to the appellant 'shifting out of the apartment'.
There was an issue in the sense that counsel for the appellant cross‑examined witnesses to establish that the unit was still habitable. That was not, however, the point. The learned trial judge may have misunderstood what the evidence was. But the fact remains that there was evidence from Ripper that she and the appellant had left the South Perth unit on 30 September 2002 with a number of the appellant's possessions in the vehicle. She was not saying that the unit had been emptied or that it was no longer habitable. The prosecution case that the appellant acted with a consciousness of guilt relied upon the assertion that he had left the unit and gone elsewhere between 30 September and 8 October 2002. The appellant gave no evidence and did not himself dispute that fact.
The learned trial judge may have misunderstood the position but I stress that in his direction to the jury his Honour referred only to the appellant 'moving out of his apartment' not vacating it. The learned trial judge did tell the jury that the question of the appellant 'moving out of his apartment' was a matter for them. His Honour said in direct reference to the question whether the appellant had moved out of his apartment:
Now, it's entirely for you to determine whether you accept that any of these alleged events occurred and, if so, whether or not those events either alone or in combination indicate a consciousness of guilt on Nicolaides' part.
I do not consider that this was any misstatement of the evidence. I would therefore dismiss ground 1(b).

Ground 1(c)

This ground contends that the learned trial judge erred in allowing admission of evidence with respect to the finding of gunshot residue particles in the white (hired) Commodore, and in the alternative that in admitting the evidence, the trial judge failed to appreciate the significant prejudice with respect to it and did not give a warning to the jury of the danger of placing undue weight on that evidence or using it for an impermissible purpose.
Ground 1(c)(i) is not a ground in respect of which leave to appeal was granted. The question of leave was referred to this court.
The ground describes the evidence of gunshot residue particles as 'of marginal probative value and highly prejudicial to the appellant'. The ground does not therefore assert that the evidence was of no probative value but only that it was of marginal probative value.
In my opinion, the evidence of the finding of gunshot residue particles in the Holden Commodore hired by the appellant was admissible evidence. It was admissible because it was relevant. It was relevant because a firearm had been discharged in the Bayswater Hotel robbery on 30 September 2002 and it was alleged that the appellant had discharged that firearm. There was evidence that at the material time the appellant had a firearm. In a motor vehicle which he hired immediately after the robbery and which was forensically examined after 8 October 2002 gunshot residue particles were found.
Evidence in relation to gunshot residue was given by Bernard Frank Lynch (Lynch), Principal Chemist in the Forensic Science Laboratory at the Chemistry Centre, Western Australia. Evidence of Lynch's forensic examination of gunshot residue found in the Holden Commodore 1BAC 306 (the hired Commodore) was objected to but the evidence was ruled admissible. A gunshot residue particle identified as coming from the driver's seat at the back and a particle identified as coming from the driver's headrest were examined. They were 'very, very small particles' that contained lead, barium and antimony.
Lynch also tested a cartridge located at the Bayswater Hotel. It revealed gunshot residues containing lead, barium, antimony and aluminium in various combinations. There was no analysis of the particles found in the hired car to ascertain whether they matched the residue found on the cartridge. Lynch was asked whether it was possible to match gunshot residues and he said:
It's possible to determine where they are of the same generic type or a similar type. It is not possible to say that a residue came from a particular cartridge. It is not possible, no.
Given that the prosecution case was that the appellant had fired a Glock pistol in the Bayswater Hotel on the night of 30 September 2002, owned a firearm and had the next day hired a motor vehicle in which later forensic examination found gunshot residue particles, I am of the opinion that the evidence of the finding of those particles was admissible. It was probative evidence because of the allegation that the appellant had discharged a Glock pistol at the time of the robbery.
Constable Robert Nicholas Meeks, an officer with the Forensic Ballistics Section of the Western Australian Police Force, gave evidence that gunshot residue would generally stay on a person for about four hours after discharge of a firearm. If a person has discharged a firearm and swabs are collected more than four hours after the discharge it is generally the case that no particles will be found. That is because within four hours people do 'plenty of things with [their] hands … they [the particles] fall off'. Constable Meeks said however that particles themselves will survive for a long time. If a person has particles on them they will fall off onto a surface. If a person wipes their hand across that surface they will pick up some of the particles. The majority of particles are detected at the time of discharge. Thereafter, any movement starts to separate and spread them.
The upshot of this evidence was that gunshot residue particles were found in very minute quantities on the back of the driver's seat and on the driver's seat headrest (without specification as to whether it was front or back) in the Commodore vehicle hired by the appellant after the robbery. Transference of those particles to those sites was a clear possibility. The fact that gunshot residue is seldom found on hands after a period of four hours was not to the point. The particles were capable of being transferred to the sites at which they were found by falling from a person to those surfaces.
A statement of the basis upon which evidence is received is set out by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650:
Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore:
'None but facts having rational probative value are admissible,'
and
'All facts having rational probative value are admissible, unless some specific rule forbids.'
In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding. [6] and [7] (Footnotes omitted).
Applying those principles to the present case I am satisfied that the evidence was of sufficient probative value to justify its admission at the appellant's trial. Of course it was prejudicial to the appellant. It was not argued that its prejudice outweighed its probative value, but rather that the evidence was too tenuous to justify its admission.
The evidence met the test of relevance and probity as expressed in Smith v The Queen. I do not consider that there is any substance in ground 1(c)(i) and I would refuse leave.
Ground 1(c)(ii) relates to the learned trial judge's directions on the question of gunshot residue particles.
The learned trial judge's direction on the subject was as follows:
There's also evidence of the firearms examinations and the forensic examination of the bullet and cartridge which was recovered from the Bayswater Hotel. The expert evidence from Constable Meeks shows that the bullet and cartridge came from a Glock nine-millimetre Luger pistol. You also have evidence of the gunshot residue found in the white Commodore hire car and that area of the evidence is relevant only to Nicolaides.
It's the evidence of the chemist Mr Lynch that gunshot residue is easily transferred from hands, clothing et cetera and you have heard evidence that samples or swabs were taken from the hire car and gunshot residue was found on the back of the driver's seat and on the driver's headrest and, of course, the state's case is that that connects Nicolaides with the discharge of the firearm and the state would say with the discharge of the firearm used in the robbery.
Complaint is made that this direction was inadequate and that the learned trial judge should have directed the jury that there was a danger that the evidence of gunshot residue might be used improperly. It was contended that the learned trial judge should have told the jury that the fact that gunshot residue particles were found in the hire car may have had nothing whatever to do with the robbery, particularly as there was no evidence of the provenance of the hire car before the appellant took possession of it.
Reference was made to the fact that the learned trial judge did warn the jury of the danger of prejudice against the appellant by reason of the evidence that he carried a gun at times other than the robbery. The learned trial judge made it clear to the jury that they could not 'leap to the conclusion that simply because [the appellant] was carrying a gun at times other than the robbery he must be one of the robbers'. The submission was that there was an opportunity for the learned trial judge, when giving that direction, to refer also to the dangers associated with the gunshot residue evidence.
There was an earlier reference by the learned trial judge to gunshot residue having been found in the hire car. This reference was made when the learned trial judge summed up the circumstantial evidence which might implicate the appellant.
The evidence of the gunshot residue was circumstantial evidence. That being so, to the extent that the jury relied upon circumstantial evidence, the appellant's guilt had to be not only a rational inference but the only rational inference that could be drawn in the circumstances: Shepherd (No 5) v The Queen (1990) 170 CLR 573, 578 (Dawson J). No circumstantial evidence direction was given in this case, although there was a clear direction on inferences to which I will turn in a moment. It should be said, however, that in cases in which the amount of circumstantial evidence involved is slight a circumstantial evidence direction may be confusing rather than helpful. There is no invariable rule of practice, let alone a rule of law that the direction should be given in every case involving circumstantial evidence: Shepherd v The Queen, 578 (Dawson J).
In my opinion, this was not a case that required a circumstantial evidence direction. A clear direction on inferences was given, in the course of which the learned trial judge said:
If you think there may be some alternative reasonable inference which can be drawn which is open on the proven facts then you should make no adverse inference against the accused. So that's just a simple rule of fairness. In the end in this case you are asked to infer the guilt of the accused, so you go through this process of deciding what witnesses you accept and what facts you find from the direct witnesses.
You then take those facts as relevant to each of the accused and you see whether those facts collectively lead to the only reasonable conclusion that that accused is guilty. If you think that it's another reasonable possible conclusion that he is not guilty, you don't draw the adverse inference of guilt. So it's a simple rule of fairness consistent with the obligation on the state to prove guilt beyond reasonable doubt.
This, in my opinion, was sufficient to meet the circumstances of the case.

I do not consider that it was necessary for the learned trial judge to warn the jury about placing undue weight on the evidence of gunshot residue particles or that it was necessary to warn that this evidence could be used for an impermissible purpose. The evidence of the existence of gunshot residue particles in the hire car was only a small piece of circumstantial evidence and it did not, in my view, require any more attention than that which was given to it.
In any event, it must be appreciated that the learned trial judge directed the jury that the prosecution case against the appellant was dependent upon the evidence of Ripper and Burgess and unless satisfied beyond reasonable doubt of the testimony of one or both of them, they could not convict the appellant. As I have already said, this was a direction very favourable to the appellant. There was an abundance of circumstantial evidence which implicated him and yet the learned trial judge stressed to the jury that of itself, circumstantial evidence would not be enough for conviction. The prosecutor made reference in his closing address to the evidence relating to the discovery of gunshot residue in the hired Commodore, but it was simply in the context of recounting the evidence generally. He described the discovery of gunshot residue in the vehicle as 'probably just bad luck' (for the appellant). This reference did not suggest that the evidence had particular significance and it could not have led to the jury using it for an impermissible purpose.
In these circumstances, I can see no error of law or miscarriage of justice occasioned by the learned trial judge's failure to warn the jury of the potential prejudicial effect of the gunshot residue evidence and/or the dangers of using it for an impermissible purpose.

Ground 1(d)

This ground contends that the learned trial judge erred in directing that the alibi evidence of Treby was inconsistent with the appellant's first alibi notice pertaining to a Kim Wylie (Wylie).
The appellant had prior to an earlier trial for the same offences delivered an alibi notice pursuant to the provisions of s 611C of the Criminal Code (WA) (repealed) (the Code). That notice was dated 28 March 2004 and was as follows:
Pursuant to section 611C of the Criminal Code please be advised as follows:
1.I am instructed that my client intends to rely on Alibi evidence that he spent the night with Ms Kym Wyllie [sic], d.o.b. 8 January 1985.
2.Ms Wylie is currently an inmate at Bandyup Womens Prison.
3.My instructions are that Nicolaides and Wylie spent the night together on 30 September 2002.
Section 611C(1)(e) of the Code provided at the relevant time:
(1)Where an accused person is committed for trial, the accused person is required to file and serve on the prosecution -
…
(e)notice of any evidence tending to show that the accused person was not present when the offence is alleged to have been committed or an act or omission material to that offence is alleged to have occurred, including -
(i)details of the nature of the evidence; and
(ii)details of the name and address of each person whom the accused person proposes to call to give the evidence, or other information sufficient to enable each such person to be located.
The notice of alibi of 28 March 2004 was thus a notice which the appellant relied upon as intending to show that he was not present when the offence was alleged to have been committed. There was then a change of the appellant's solicitors.
By facsimiles dated 15 and 16 November 2005 respectively the appellant gave fresh alibi notices. The first of those notices was said to have been given 'by way of compliance with s 636A of the Code' but that section dealt with failure to comply with the disclosure requirement under the Code. Nevertheless, the notices are clearly fresh notices of alibi. The first of them was in the following terms:
Further to yesterday's discussion, and as and by way of compliance with Section 636A of the Code, I confirm that the Defence will call Lindsay Edward Treby to give evidence.
Mr Treby will say that on the evening of 30 September 2002 he was drinking with Mr Nicolaides at the Duxton Hotel in Saint Georges Terrace Perth. Mr Treby's contact details are as follows;
3 Limerick Place
Waterford WA
Ph: 0408 908 950
The second was more detailed in the sense that it set out the evidence which Treby would give. It said that he would give evidence that he met with the appellant at a bar at the Duxton Hotel at around 8.30 ‑ 9.30 pm; that they talked; that there was a suggestion that they go to the Burswood Casino; that because the appellant did not have his vehicle that night and Treby's vehicle was full of lawn clippings and tools a decision was made to stay at the Duxton; that they had two or three drinks and Treby left at approximately 10.00 ‑ 10.30 pm.
The learned trial judge directed the jury in relation to the question of alibi and in the course of so doing said that the first notice of alibi was inconsistent with Treby's evidence at trial. He said:
In this case Nicolaides' first notice of alibi stated that he spent the night with a particular woman named Kim Wylie. That of course was an assertion that he was with Kim Wylie at the time of the Bayswater Hotel robbery. However, it is Mr Treby's evidence that he was drinking with Mr Nicolaides at the Duxton Hotel at the time of the robbery. It is also his evidence that there was no woman present but he understood that Nicolaides was staying at the hotel and that there was a woman in his room upstairs. As to that issue, you have heard evidence from the assistant manager of the Duxton Hotel that Nicolaides was not registered as a guest that evening.
In all of these circumstances the significance of the first alibi notice and the reason why it is relevant to your deliberations is that it made no mention at all of Mr Treby. Of course, Mr Treby would not have been in a position to comment on that and you have no evidence as to why the notice failed to refer to him. This is despite the fact that according to Mr Treby he discussed the Bayswater Hotel robbery with Mr Nicolaides when Nicolaides went into custody and that he did so more than once.
Of course the mere fact that the first alibi notice is inconsistent with Mr Treby's evidence does not necessarily mean that you should disbelieve Mr Treby. In assessing Mr Treby's credibility you should have regard to the usual factors such as the impression he made on you while testifying and the fact that he has a criminal history. The existence of the first alibi notice is simply one more factor for you to put into the balance. Its significance is that it is a notice emanating from the accused Nicolaides which is inconsistent with the defence that he has raised by way of Mr Treby's evidence.
In my opinion, the learned trial judge was quite correct in describing the alibi evidence of Treby as inconsistent with the first alibi notice. The first notice was prefaced by reference to s 611C of the Code and was notice of evidence tending to show that the appellant was not present when the offence was alleged to have been committed. It is not to the point that Treby's evidence was consistent with the appellant nevertheless spending the night with Wylie at the Duxton Hotel after he and Treby had been drinking. The first alibi notice was directed to suggest that at the time of the alleged offence the appellant was with Wylie. Treby's evidence was to the effect that at the time of the commission of the alleged offence the appellant was drinking with him at the Duxton Hotel.

Treby gave evidence that whilst drinking with the appellant he 'kind of' remembered talking to a female but said that he could not 'honestly say I saw her'. He also said that he was positive that there was a woman in the bar. He corrected this to say that there was a woman in the room. He was asked if he had seen the woman in the room and he said he did not go to the appellant's room. He presumed there was a woman there. He then said that he knew there was a woman there because she was coming to the casino with them. He agreed that the only way he could have known about her was that the appellant told him.
This evidence may or may not have been accepted. It did not, however, go to the fact that there was an inconsistency in the alibi notice of 28 March 2004 and the evidence of Treby. The first notice was intended to show that at the time of the alleged offence the appellant was with Wylie. The evidence of Treby was intended to show that at the time of the alleged offence the appellant was drinking with Treby. I can find no substance in ground 1(d).

Ground 2

Ground 2 contends that by reason of any one or all of the errors referred to in the preceding grounds the appellant had suffered a substantial miscarriage of justice. As I have been unable to find any errors identified in the grounds of appeal I would dismiss this and all other grounds of appeal.
MURRAY AJA: I too agree with the reasons of Miller JA and with the orders proposed. I have nothing to add.