Penza and Di Maria v R - [2013] NSWCCA 21

Court of Criminal Appeal

New South Wales

Case Title: Penza and Di Maria v Regina

Medium Neutral Citation: [2013] NSWCCA 21

Hearing Date(s): 29 November 2012

Decision Date: 15 February 2013

Before: Hoeben JA at [1]
S Campbell J at [203]
Button J at [227]

Decision: (1) Leave to appeal granted.
(2) Appeal allowed.
(3) The verdicts of guilty, entered on 30 July 2009 in respect of both appellants, should be quashed and in lieu thereof there should be entered a verdict of acquittal in favour of both appellants.

Catchwords: CRIMINAL LAW - conviction appeal - murder - known drug dealer shot in his home - Crown case put on basis of extended joint criminal enterprise and constructive murder - essential part of Crown case that appellants were armed when arrived at deceased's home - Crown case based on circumstantial evidence - whether verdict unreasonable and not able to be supported having regard to the evidence - detailed examination of nature and effect of evidence in Crown case - implicit rejection of evidence of appellants - whether correct direction given to jury in respect of felony murder, i.e. that the act causing death had to be voluntary - whether manslaughter by unlawful and dangerous act should have been left for the jury's consideration - whether trial judge erred by directing the jury that they could engage in consciousness of guilt reasoning - EVIDENCE - whether evidence relied on by Crown to establish consciousness of guilt was admissible - s 137 Evidence Act 1995 - was trial judge obliged to reject evidence pursuant to s 137 if no objection taken - Crown bound by way case put at trial - Crown not entitled to change case on appeal from that presented at trial - Guilty verdicts to be quashed and verdicts of acquittal entered.

Legislation Cited: Criminal Appeal Act 1912 - ss 5(a), 5(b), 6(1)
Criminal Appeal Rules

Cases Cited: Blackwell v Regina [2011] NSWCCA 93; 208 A Crim 5 392
Carney v R; Cambey v R [2011] NSWCCA 223
Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521
Crampton v The Queen [2000] HCA 60; 206 CLR 161
Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
Edwards v The Queen [1993] HCA 63; 178 CLR 193
FDP v R [2008] NSWCCA 317; 74 NSWLR 645
Fingleton v The Queen (2005) 227 CLR 166
Gillard v R [2003] HCA 64; 219 CLR 1
Griffiths v R [1994] HCA 55; 69 ALJR 77
Hem Chand v R [2011] NSWCCA 53
Knight v R [1992] HCA 56; 175 CLR 495
Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867
M v R [1994] HCA 63; 181 CLR 487
MFA v R [2002] HCA 53; 213 CLR 606
Martinez v WA [2007] A Crim R 389
Murray v R [2002] HCA 26; 211 CLR 193
Pemble v The Queen [1971] HCA 20; 124 CLR 107
Plomp v The Queen [1963] HCA 44; 110 CLR 234
R v Abusafiah [1991] NSWCCA 542; 21 NSWLR 531 at 536)
R v Ciantar [2006] 16 VR 26
R v Cook [2004] NSWCCA 52
R v Hillier [2007] HCA 13; 228 CLR 618
R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527
R v Penza and Di Maria [2010] NSWSC] 16
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
Royall v The Queen [1991] HCA 27; 172 CLR 378
Ryan v R [1967] HCA 2; 121 CLR 205
SKA v R [2011] HCA 13; 243 CLR 400
Shepherd v R [2011] NSWCCA 245
Steve v Regina [2008] NSWCCA 213; (2009) 189 A Crim R 68
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
University of Wollongong v Metwally [No. 2] [1985] HCA 28; 59 ALJR 481
Velevski v The Queen [2002] HCA 4; (2002) 186 ALR 233 at [192],

Category: Principal judgment

Parties: Franco Michael Penza - Appellant
Joshua Di Maria - Appellant
Regina - Respondent Crown

Representation

- Counsel: Counsel:
Mr E Ozen - Appellant Penza
Mr T Game SC/Mr S Buchen - Appellant Di Maria

- Solicitors: Solicitors:
Leo Premutico - Appellant Penza
B Sandland, Legal Aid NSW - Appellant Di Maria
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2008/20054
2008/20055

Decision Under Appeal

- Before: Latham J

- Date of Decision: 30 July 2009

- Citation: R v Penza and Di Maria [2010] NSWSC] 16

- Court File Number(s): 2008/200542008/20055

JUDGMENT

HOEBEN JA:
Nature of proceedings
The appellants appeal against their conviction for murder, pursuant to
ss 5(1)(a) and (b) of the Criminal Appeal Act 1912.
The appellants were jointly tried in July 2009 in the Supreme Court before Justice Latham and a jury. The indictment charged each of the appellants with the murder of Christian Minotte on 17 April 2006 at Mount Pritchard. The trial was heard over 13 court days. After deliberating for approximately three and a half days, the jury returned guilty verdicts on 30 July 2009 in relation to both appellants.
The appellants were sentenced to a total term of imprisonment of 18 years with a non-parole period of 13 years. In the case of Mr Penza, his sentence commenced on 27 July 2007 with the non-parole period expiring 26 July 2020, and the balance of term expiring 26 July 2025. In the case of Mr Di Maria, his sentence commenced on 24 August 2007 with the non-parole period expiring 23 August 2020 and the balance of term expiring 23 August 2025. Mr Di Maria was also sentenced in respect of three counts of "goods in custody" under s 257C(1)(a) Crimes Act 1900, two counts of "use instrument" under s 300(2) Crimes Act 1900 and one count of "knowingly make a false statement" under s 307B Crimes Act 1900. The sentences imposed for those offences were wholly concurrent with the sentences for murder and have now expired.
The trial was conducted by the Crown on the basis that the appellants went to the home of the deceased, armed with a firearm, with the intention of stealing drugs and/or money concealed in a wall cavity in the laundry of his home. The deceased was a successful drug dealer who was known by Mr Penza, his step-son, to keep cash and drugs in his home. At some stage, the deceased confronted Mr Di Maria and a struggle took place, culminating in the discharge of the firearm into the deceased's head. On the Crown case, the evidence did not disclose which of the appellants was directly responsible for the fatal shooting.
The Crown put its case in two alternative ways, relying on the doctrines of extended joint criminal enterprise and constructive murder (the "felony murder rule"). The Crown prosecutor's opening address included the following explanation of the ways in which the prosecution would seek to establish the appellants' liability for murder:
"It is the Crown case that Frank Penza and Joshua Di Maria entered a joint criminal enterprise to commit an armed robbery, or aggravated break and enter depending on whether they needed to break into the house at number 24 Oliphant Street or whether the deceased would let them into the house and it was their intention to steal items from 24 Oliphant Street, including the contents of the wall cavity, and any other items of value. It is the Crown case that both accused would have contemplated the likelihood that the deceased would resist any attempt to rob him including their knowledge that the deceased was a drug dealer and their knowledge, particularly on the part of Frank Penza, which he could have communicated easily to Joshua Di Maria, that the deceased had firearms in his home." (T.22.12)
"The basis on which the Crown seeks to make both of them liable for murder is as follows: The Crown relies principally on the doctrine of joint criminal enterprise, common purpose to establish the liability of both the accused for the offence of murder ... It is the Crown case that both accused entered a joint criminal enterprise to commit an armed robbery in company or specially aggravated break and enter in company and that each of the accused contemplated the possibility in carrying out this enterprise that one or other would discharge the firearm as indeed did happen with intent to kill or cause grievous bodily harm to the deceased. In particular, because they knew they were robbing a man who was a drug dealer, who had guns at the property, who knew who they were and where it would take considerable control over the deceased in order to break open and steal the contents of that wall cavity." (T.23.8)
"On a final legal basis ... the Crown also relies on the doctrine of constructive murder. In this particular state, persons who become involved in offences that involve the maximum penalty of 25 years and in particular in this case, robbery with a dangerous weapon carries 25 years ... can also be found guilty of murder on this constructive murder basis." (T.23.23)
It should be noted that the appellants were ultimately sentenced on that latter basis of liability, i.e. felony murder, which was accepted by the Crown as the appropriate finding to make on the evidence (R v Penza and Di Maria [2010] NSWSC] 16 at [2]).
The Crown accepted that it had to establish to the criminal standard of proof, that the appellants attended the deceased's home while at least one of them, to the knowledge of the other, was armed with a firearm. Proof of this circumstance was a necessary aspect of the extended joint criminal enterprise case, as it founded the alleged contemplated possibility that one of the accused would discharge the firearm with intent to kill or cause grievous bodily harm to the deceased. That circumstance also constituted an element of both of the two foundational offences relied on to establish felony murder, and in this sense was a necessary aspect of the alternative felony murder case. The offences of aggravated armed robbery in company and specially aggravated break enter and steal, contrary to
s97(2) and ss 105A and 112(2) of the Crimes Act 1900 respectively, both have as an element, that the accused was armed with a "dangerous weapon", which is defined to include a firearm (s 4 Crimes Act 1900).
The Crown relied on a number of pieces of circumstantial evidence to prove that the appellants went to the deceased's home armed with a firearm. In written and oral directions given to the jury, the trial judge summarised this circumstantial case and set out six areas of the evidence. Those six areas were the subject of detailed challenge in the first ground of appeal.
The respective defence cases did not dispute that the appellants were present at the deceased's home when the fatal shot was fired. Nor was it disputed that at a point before the shooting, the appellants formed an intention to steal from the deceased. To this end, the appellants accepted that they entered the laundry area of the deceased's premises and demolished a wall cavity in their search for drugs and money. However, it was the appellants' case that neither of them was armed when they attended the deceased's home.
The appellants relied upon the following grounds of appeal.
Ground of Appeal 1: The verdict is unreasonable and cannot be supported having regard to the evidence.
Ground of Appeal 2: The learned trial judge erred by failing to direct the jury that, in respect of felony murder, the act causing the death had to be voluntary.
Ground of Appeal 3: The learned trial judge erred by failing to leave manslaughter by unlawful and dangerous act for the jury's consideration.
Ground of Appeal 4(a): The evidence relied on by the Crown to establish consciousness of guilt on the part of the appellants was inadmissible.
Ground of Appeal 4(b): The learned trial judge erred by directing the jury that they could engage in consciousness of guilt reasoning in relation to the appellants.
FACTUAL BACKGROUND AND CONDUCT OF TRIAL
The Crown Case
At about 7.30am on the morning of Monday, 17 April 2006 two heroin addicts, Danielle Thorn and Jeffrey Mills, drove to the deceased's home at 24 Oliphant Street, Mount Pritchard intending to buy heroin. They approached the front door, which was unlocked and open, which was unusual. Mr Mills stayed at the door while Ms Thorn went inside. She called out and walked through the house to the back observing that the back door was "wide open". She looked down the stairs and saw the deceased face down, partly on the grass and partly on the path.
She called out to Mr Mills and he, having walked through the house, saw the deceased lying at the bottom of the stairs on his side. Ms Thorn rang 000 and followed instructions which she was given to attempt to revive the deceased by using CPR. She rolled the deceased over and observed that he had a rock in his hand, which rolled out and left his hand in a clawed position. Mr Mills remained at the top of the stairs.
Ambulance officers arrived and told them to wait for the police, who arrived a short time later. Sergeant Young, one of the attending police officers, noted that Mr Mills seemed affected by drugs and observed an apparently fresh "track" mark on his arm. Mr Mills had been there about 8.30pm the night before and had bought, as usual, a "gram" of heroin for which he generally paid $300 cash.
Ms Thorn's boyfriend was the deceased's nephew, Daniel, who was also a heroin user. Ms Thorn often purchased heroin and cocaine from the deceased and sometimes she asked him for drugs on credit. She had last seen him at midnight. Generally she knocked on the door and called out to him and sometimes she rang in advance. She called out because "sometimes he wouldn't answer until he knew who it was".
Ms Thorn was aware that the deceased slept in the bathroom because he was "paranoid ... he would sleep right behind the door so he could keep the door closed and the toilet's there so he could flush his drugs down the toilet". The deceased told her that someone had gone to his house and threatened him. He also thought the police were watching him. In her opinion, he had been more paranoid in the past two months.
The ambulance officers were told on arrival that the deceased had apparently fallen down the stairs. One of them, Ms Symonds, noted that the deceased's right hand was stiff and in a claw-like position, giving the impression of having held something. She saw a brick near the hand.
Dr Little - forensic pathologist
Until Dr Little conducted a preliminary examination at the scene, it was thought that the deceased had died from a fall down the stairs at the back of his home. Dr Little noted a gunshot wound to his head and a large number of less serious injuries to his face, arms and legs.
The autopsy showed that the deceased had died from a gunshot wound. The projectile entered the deceased's left parietal scalp, 15cms back from the midline of the forehead and 3cms down from the top of the head. The entry hole was 4mm in diameter and the edge was abraded/grazed, as is common in such wounds. The projectile - which Dr Little presumed was lead - from its appearance and the fact that it broke up inside the head - passed through the brain and into the skull on the opposite (right) side. She considered it to be a "distant range" shot, as there was no evidence of the markings which are expected in either "contact wounds or intermediate range wounds". The projectile passed through the left scalp and across to the right and slightly downward and was retrieved from the right side of the skull by Dr Little.
In the course of the autopsy, Dr Little found a plastic bag containing seven coloured balloons lodged in his oesophagus, just above the stomach, which were later shown to be cocaine. She opined that the bag had not been there long "no more than a few minutes", because otherwise it would have progressed further into the digestive tract.
Dr Little also found and identified about 51 separate abrasions/grazes on the body of the deceased, virtually all of which were fresh and "non specific" but were not consistent with having been punched or dragged. She said that there were too many to be explained by one or two falls. She gave detailed evidence of the particular grazes. In particular, there was a graze on his forehead which was consistent with him having been hit with a blunt object, or having fallen against a blunt object. Dr Little said:
"Potentially he could have not died straight away ... he was more likely to have stumbled and moved in a very uncoordinated fashion ... it's quite possible that he could have been shot under the house and still made his own way out to where he was found." (T.300)
Dr Little was unable to be of assistance as to where the deceased may have been immediately before the shot was fired. She said:
"It would depend on where the person shooting him was standing. For example, although it's a downward angle on the gunshot wound, if the person was in an elevated position in comparison to him, they could shoot him while he was standing, and similarly, he could have been crouching, sitting, lying." (T.300-T301)
In answer to a jury question as to likely time of death, Dr Little provided a very qualified estimate which was 1.30am.
The following question was asked and reply made by Dr Little:
"Q. Please advise the technical definition of intermediate and long distant shot in terms of metres? Are you able to pass any comment in relation to that question?
A. I can make some comments. It may be better made by a ballistics expert, but I have done some reading around it. Basically the only way you can really determine the exact distances for any one gun is to test fire it. It depends very much on the gun. It's different for handguns versus rifles. It's different depending on the type of ammunition, particularly the type of powder with the ammunition. That will give a different distance that you get. The spray pattern that causes the tattooing that gives you the intermediate range one but on average for a .22 calibre weapon, which is what I understand this weapon was, depending whether it's a handgun or a rifle, it could be anything from half a metre to a metre. That would be where the intermediate range ended and the distant range started." (T.556)
DNA and blood evidence
Michelle Franco, a DNA expert, gave evidence. This placed both of the appellants at the home of the deceased at the relevant time. Until the trial, the evidence from Mr Penza in his ERISPs was that he was last at the deceased's place "three weeks, probably a bit less" and that he had last been in the laundry "not lately, but probably before I moved out, returning all his tools".
Ballistics
The firearm, which discharged the fatal shot, was not found at the premises, nor was it ever recovered. Evidence was given by Detective Sergeant O'Hagen, a ballistics expert. Upstairs in the kitchen, which opened off the rear stairs and veranda, she located a discharged bullet, a "concave gutter" mark on the back door and a bullet mark on the wall above the stove. She noted a trajectory from the gutter mark on the back door to the wall above the stove from where the bullet bounced off to the floor. She could not say how close the gun was to the back door when it was fired, nor determine the calibre of the bullet because of the impact damage it had suffered. There was no evidence as to when the gutter mark damage to the back door occurred or how old was the bullet mark above the stove.
Police located two spent cartridge cases on the laundry floor. Each was .22 long/long rifle calibre. They were identified as coming from two different manufacturers, Winchester and PMC. Although it could be established that they had been discharged from the same firearm, the type of firearm could not be determined.
There were fragments of a .22 calibre Winchester bullet lodged in the skull of the deceased. Because the firearm used was not recovered, it was not possible to compare that bullet with the spent cartridges in the laundry in order to determine if they were from the same weapon. Similarly, it was not possible to determine if the damaged bullet found on the kitchen floor came from either of the spent cartridges on the laundry floor. A comparison of the bullet found in the deceased's skull with the bullet found on the kitchen floor was inconclusive in that it could not be determined that they were fired from the same weapon.

Detective Sergeant O'Hagan test fired the weapons seized from the deceased's premises and found them all in working order. She itemised the substantial number of weapons found in the deceased's laundry cache. That list included two target pistols, which had been recorded as having been stolen, together with a third firearm from a registered gun owner. The third firearm stolen (which was not one of the weapons found on the premises) was a Pardini model SP calibre 22 LR pistol, which Detective Sergeant O'Hagan said was designed to fire .22 long rifle calibre ammunition.
Detective Sergeant O'Hagan from her observations at the post mortem noted that there was a rim of blackening around the wound but no sooting or strippling. Given the absence of sooting and strippling, her opinion was that the shot to the deceased's head was not fired from "close" distance, but without knowing the weapon that was used, the conclusion was that it was not "hard contact". It was impossible to say whether the shot was fired from more than 5, 10, 20 or even 30 cms away.
Searches
Police officers searching the house located a number of items which confirmed the evidence of others. $4,500 was hidden in a cavity between the doorframe and the wall of the wardrobe in bedroom one. Members of the deceased's family referred to the deceased hiding money around the house. The bathroom was found to contain a mattress, milk crates and buckets of water. Other witnesses referred to the deceased being "paranoid" and sleeping in the bathroom.
Senior Constable Keighran searched the basement of the deceased's house which was converted into a laundry. There was a brick cavity wall beside the doorway. The cavity seemed to have been broken open and there was debris on the ground. The weapons previously referred to were found in that cavity.
Evidence from neighbours around 24 Oliphant Street
Glen Pitt could see into the backyard of 24 Oliphant Street from his front door. On the night of Easter Sunday, 16 April 2006, into the early hours of Monday he was awake. At about 4.20am he heard "voices like calling out to someone" but could not make out the words - the speakers seemed to be slurring their words. The shouting went on for about five minutes. He agreed that it could have been two voices.
On looking out his door, he saw a male on the back balcony of 26 Oliphant Street:
"It sounded like he was wanting somebody to come out of the house ... yelling. Then I heard what sounded like somebody wrestling, then a bang on the fence, and then I heard three gunshots ... I thought [the noise] was coming from the younger guy's place ... it sounded like somebody was either going into [the Colorbond fence] or going over it ... [He then] heard three bangs ... it sounded like a cap gun ... Next I sort of took a peek out of my [bedroom] window ... I seen a figure standing on the back step which looked like he had a white shirt on ... He [was] on the back step of number 24, the older guy's place ... [at the top] of those stairs or the top of those stairs ... he looked a bit woggy ... European ... he stood there for probably a minute and then walked down the stairs and walked up the side of the house [between 24 and 26] and left." (T.337-339)
The time lapse between the wrestling sound, the bang on the fence and the three shots was about a minute, maybe just over. By "wrestling" he meant "the sounds of the slapping of bare feet on the concrete". Mr Pitt thought that the time between the first shot and the next two was only a split second ... five, maybe three seconds" (T.348). He was, however, certain that he heard the noise from the fence before the shot.
Donna Gaal lived about 150m down the hill from 24 Oliphant Street. On Easter Sunday night she was awoken by male voices yelling, one of which said "Come back here". She then heard shots, which she first thought were crackers [but a bit louder].
"Q. Are you sure it was two loud bangs?
A. Yes.
Q. How close were they?
A. Very close.
Q. Seconds?
A. Yes.
Q. Minutes?
A. No. Seconds. Bang, bang." (T.254)
The shots came from the same direction as the voices. She thought that happened at about 2-2.25am. However, she also got up at about 4.15am, and may have been confused about which of those times involved the shots. At the time of giving evidence, she thought it was 2.15am.
Wade Hughes lived in the street behind the houses at 24 and 26 Oliphant Street and could see part of both houses. He knew Frank Penza, who lived at 26, whom he had spoken to, and his father, who lived at 24. On occasions he had seen Frank "hop over the little fence" out the front, which was between the houses. Mr Hughes was aware of a period of time during which the deceased was not living at 24. He saw the deceased out the front of 24 at about 8pm on Easter Sunday. At around 1.30am he heard "a couple of sounds ... like crackers", not "very loud". At about 2.15am he heard a loud car going down Miller Place.
Robert Hervey lived across from 26 Oliphant Street. At about 3.30 - 4am on Easter Monday morning he heard "a clunking sound". He got up and looked out his window at Oliphant Street, and saw a person in a red hoodie walking with a limp towards 24.
David Fausett lived near 24 Oliphant Street and could see it from his place. On Easter Monday morning between 1.30 and 3am, he heard two gunshots. Later at about 6.55am that morning, he heard what sounded like a woman crying in the backyard of 24.
Evidence from the deceased's clients
Maria Kapathiou bought cocaine from the deceased on Easter Sunday morning at Cabramatta Railway Station. She could not always get to his house, although she had been there as a friend, as well as a customer. She recalled an occasion about six months before he died when having dropped her off at Bexley, after he had supplied her, he was "jumped" by three Lebanese guys. He told her to run away and they then went for him. He told her that they would get nothing from him, except fictitious phone numbers and maybe $1000 cash.
Amie Pate had bought heroin from the deceased between midnight and 2am on the day he died. She was regularly buying from him about five times a day. In her experience, he always packaged his deals in coloured balloons. She had knocked and called out her name because "he wouldn't open the door unless he knew who you were ... or if you didn't say your name clearly". It was the same for Danielle Thorn. He made up the deals himself and would not open the door while he was doing that.
She saw on that occasion that he had "a big bag of deals ... thousands of dollars worth of deals" with him. She also knew that he "always had a lot of money ... thick wads of cash" because he would not deal in less than $100 buys. She said:
"A. He didn't like people coming there in the early hours, so he would try to get you to, you know, get what you've got to get until the morning.
Q. But was it uncommon for yourself and other girls that you knew to go there between midnight and 5am?
A. No that wasn't uncommon ... [but] he didn't like it ... but he was up and ready for it." (T.483)
The deceased told her he was paranoid and had been sleeping in the bathroom on and off for weeks.
Richard Leonard was both a customer and a friend of the deceased. He bought cocaine once or twice a week and had gone to the house 20 to 30 times. The deceased asked him to look after the house on the night of Easter Sunday while he was out for dinner with his girlfriend and Mr Leonard had agreed to do so. The arrangement was simply to be at the house. He was not to sell drugs for the deceased. The arrangement was cancelled when the girlfriend became ill.
Sheree Thomas gave a statement to police, but did not give evidence at trial. She said that she used to buy heroin from the deceased from about October 2005 and at least four times a day every week since then. She said that both she and Danielle Thorn bought $600 worth of heroin daily from him. She said that most of his customers were women, since he did not trust men. He had told her that he wanted a break from selling drugs because he "had enough of people stuffing him around, owing him money, people ringing him and coming to his house late at night". He was agitated, angry and prone to lose his temper.
She had arranged to be dropped at the deceased's home after 1.30am on Easter Monday. She knocked on the front door and said her name. He opened it immediately. She knew he would not open the door without the person identifying themselves. She saw him carrying about 40 deals in a plastic bag. She bought a half weight of heroin for $135. She arranged to return in the morning and he told her not to bring anyone with her.
Evidence of the deceased's family members and associates
Maria Minotte, the wife of the deceased, said that she had adopted Frank Penza and his sisters when each was a child and they had regarded the deceased as their father, calling him "Papa". In early 2006 she was living next door to the deceased at 26 Oliphant Street with her son Patrick and Mr Penza. She went overseas in early March, but stayed in contact with the deceased with weekly calls.
She said that throughout their marriage the deceased never kept his money in banks and regularly hid money in whatever house he was then living. He hid money in the rangehood at 24 Oliphant Street and told her about how he had made a cavity in the wall in the laundry. On about eight or nine occasions she exchanged amounts of Australian dollars (just less than $10,000) for American dollars as requested by the deceased. He was always careful to prevent anyone taking his money.
At the time she left for overseas, the relationship between the deceased and Mr Penza had deteriorated. The deceased wanted him to "grow up", be more responsible by paying his rent and the electricity bill, by not going into his home without permission and to generally act like a 25 year old.
She had known Mr Di Maria for years, as a friend of her children and thus of the family. He was invited to Christmas dinner in 2005.
The deceased had been threatened three times (at the end of January, mid-February and the end of March) by some "Lebanese guys" who wanted his money. He called them "terrorists" - they wore balaclavas. She said that these Lebanese persons had come to his house on three occasions and were demanding money. He was sleeping in his bathroom with plywood against the door because he was frightened. She said he was frightened, upset and furious about it.
She was aware that he had firearms. She knew that he had a sawnoff gun. She said "I just saw the wooden stick cut off - one barrel, single barrel on it I think it was, it looked pretty old. I've seen the gun". She estimated the length of the sawnoff firearm to be 30cms. She said that she had given this weapon to him before she went overseas. She said "it was just under the bed". She said that he had other rifles and "always loved firearms".
Phillip Minotte was a son of the deceased. He regarded Frank Penza as a brother. He had known him and Mr Di Maria since childhood. He said that the deceased was making the false cavity in the laundry before he went overseas in January 2006 when Mr Penza was living next door. The deceased told him he was going to keep guns there and he had two or three guns (a rifle, pistol and a shotgun) at the time Phillip left Australia. Patrick (his brother) and Mr Penza knew of the cavity. Phillip was aware of the deceased hiding money in the wardrobe inside the house. The deceased complained to Phillip that he had "been jumped by some Lebbos at Bexley" and that he had been threatened by "Lebbos". His father always locked the doors and "you had to knock on the door to get in".
Daniel Minotte was the nephew of the deceased. He was the boyfriend of Danielle Thorn and a heroin addict. He bought heroin from the deceased a few times each day, usually a "gram" for $300. Most of the time Danielle actually conducted the transactions. He knew that the deceased would only supply people he knew.
Frances Minotte (who was not a relative of the deceased) was in virtually daily contact with the deceased and spoke to him by phone on Easter Sunday at about 6pm. She said that the deceased usually had a lot of cash with him, was security conscious and was always locking the door when in the house. She had never seen the front door left unlocked. The back door was open. She was aware that he sold heroin and presumed that he kept it in the laundry.
Patrick Minotte was a son of the deceased who grew up with Mr Penza and regarded him as a brother. He lived at 26 Oliphant Street with Mr Penza for about six months. He knew his father had built an extra wall on the left as one entered the laundry as a "secret hiding spot" at a time when Mr Penza was living next door. The cavity was "covered in" and it was necessary to break it to remove what had been walled up in the cavity. There was no other way to get at it. In Patrick's absence the deceased "probably took a few things ... some guns, money and jewellery" and hid them in the cavity. Patrick thought that his father was storing "a minimum of $US250,000" in the cavity. He said that his father would have broken into the cavity to get things out and then remade it. However, generally he would wait until he had built up some money before attacking the false wall.
He agreed that when he and Mr Penza were living at 26 Oliphant Street, they would go onto their back balcony and yell out to his father. When he came out, they would jump over the fence into number 24.
Frank Amil was a friend of the Minotte family and had known Mr Penza since he was about three. On Tuesday, 18 April 2006 he went to the McLaughlin home where he saw Mr Penza. He asked what had happened to the deceased. Mr Penza said "I think it might have been competition". Mr Amil asked Mr Penza about the keys to the deceased's house saying that he had to lock it up. Mr Penza said that he did have the keys but had lost them.
Mr Penza told Mr Amil that the police had asked him directly whether he had killed his father. Mr Penza said that on the night of the murder, he had been at the McLaughlin's home drinking and left at 1am and went to Patrick's (being 26 Oliphant Street). He denied going there with anyone else.
Karen Heath had been in a relationship with the deceased in 2004, although they did not live together. In about February 2005 the deceased commenced making the laundry more secure, including doing brick work because that was where he kept his cash. She also knew that he hid money under the mattress and in the rangehood. On occasions when she was at the deceased's house, people telephoned and turned up late at night. The deceased would then go to the laundry for these people. While she was only aware after his death that he had firearms, he had told her that he would not run from anything he would "always stand up to anybody".
Evidence from friends of the appellants
Troy McLaughlin was a friend of Mr Penza. Mr Penza was at his home drinking when Troy arrived on the afternoon of Easter Sunday. Troy left to buy alcohol and later Mr Di Maria arrived. He too was drinking. They (together with Trent Martin and Adam McLaughlin) were in a granny flat at the house watching TV. Troy went to bed at about 10.30pm. Messrs Penza and Di Maria were still drinking.
Adam McLaughlin gave evidence to similar effect. He said that Mr Penza had been drinking bourbon and coke and that Mr Di Maria turned up with a bottle of Remy Martin.
Christine McLaughlin confirmed that first Mr Penza and then Mr Di Maria turned up at her home. They watched football and drank. Later they were with her and her husband inside the house and were noisy. She said that Mr Penza was "pretty pissed" and that she offered to drive them, which they declined. They left together at around 11pm. Trent Martin confirmed that evidence.
Toni Green was Mr Di Maria's girlfriend at the time. She said that she had breakfast with Mr Di Maria on Easter Monday at about 8.30 - 9am. She did not notice any different mood or injuries on him. When they returned to his home, they found Mr Penza on the lounge just waking up. He had no shirt on. She did not notice any injuries or change from his usual mood.
At about 9pm on Easter Tuesday, Mr Di Maria came to Subway where she worked and said that he was leaving for Malaysia immediately and that she should join him there as soon as she could. In answer to her question why he was going that night, he asked "If I loved him and if I trusted him". He gave her the keys to his Toyota Cressida which she left at her family home.
She said that in the preceding weeks they had discussed going to Malaysia "within the next couple of weeks" but no date had been set. She left Australia for Malaysia on 21 April 2006 and travelled with him to Bangkok, Rome, Milan and Sicily. The last three destinations were not mentioned in the original discussion. Mr Di Maria paid for everything using cash which he had. A good deal of that cash was in US dollars. When they were in Bangkok for the second time, she insisted that Mr Di Maria pay $3000 - $4000 for liposuction for her. He also had some surgery on his nose.
She returned to Australia alone about three months later after an argument, but Mr Di Maria paid for the ticket. He did not return to Australia until substantially later. Although they remained in contact, they later broke up. At some stage in the relationship, Mr Di Maria told her that he had received a payment of about $30,000 - $40,000 as a result of an injury.
Yasmin Nada was Mr Penza's girlfriend from November 2005 and she lived with him, Patrick Minotte and Patrick's girlfriend at 26 Oliphant Street from December 2005 until moving out on 30 March 2006. She had met the deceased and understood him to be Mr Penza's stepfather.
Having spent Easter Sunday morning with Mr Penza, she dropped him at the McLaughlin's place around 2pm and next saw him at her parents' place at about 10 - 11 o'clock the following morning. She and Mr Penza had spoken on the phone around 8am. Mr Penza told her that after drinking at the McLaughlin's house, he had gone to the home of Mr Di Maria and had more drinks. Mr Di Maria dropped him at her parents and she did not notice any scratches on him. Later on the Monday afternoon, Mr Penza was rung by Mrs McLaughlin and told that the deceased was dead. She said that he was "too upset to talk about anything".
Wayne Clarke, a friend of Mr Penza, was visited at his home by him the day after the deceased was killed. Mr Penza asked if he had heard about "Papa". Mr Clarke noticed that Mr Penza had "scratch marks ... on his arms and a couple on his neck". Mr Penza said that he had got them from fixing Phil's car. When Mr Clarke saw Mr Penza at the wake for the deceased, the latter said that he had been at his girlfriend's house the night the deceased was killed and that "he was upset and that he said that he was getting set up for Chris Minotte's murder".
Other police/investigation evidence
Ms Chan gave evidence concerning gunshot residue. She said that such residue was volatile and recovery/identification of it depended on various factors. The absence of it did not necessarily mean that the person or item had not been associated with a gun being fired. She examined the vehicle used by Mr Penza and Mr Di Maria to go to and from the deceased's home and found no such residue.
Mr Malone was the officer-in-charge. He produced immigration records showing Mr Di Maria's departure from Australia on 18 April 2006 and the fact that there was no record of his returning using that name. It was common ground that Mr Di Maria had returned to Australia under another name. He produced identity documents in the name of "Michael Shane Watkins" which Mr Di Maria had obtained. Mr Di Maria was arrested on 24 August 2007, having been initially pulled over by other police officers. Mr Di Maria ran from the car and was pursued. Mr Malone conducted both records of interview with Mr Penza.
Records of interview of Franco Penza
Mr Penza agreed to recorded interviews with the investigating police on 18 April 2006 and on 6 June 2006. He made no admissions as to his involvement in the death of the deceased.

Relevant parts of the first ERISP were: The deceased was selling heroin and cocaine from 24 Oliphant Street to at least 20 people per day, and also delivering it. Mr Penza said that he did not know where the drugs were kept and when asked to guess, suggested "his room or kitchen". He said that cash would "probably" be kept in the house but did not know where. The last time he was at the deceased's house was "three weeks probably a bit less" and that he had last spoken to him "probably four days ago" as he was driving past.
Mr Penza saw cuts on the deceased's arm a couple of months ago, i.e. during the last two or three months. The deceased said that "some Lebbos tried to get him ... it was due to a client that he had that set him up or something". He said the "Lebbos" were trying to get him and rob him. Mr Penza said that he used to jump the fence between his house and that of the deceased.
He said that on the Sunday night he was drinking at the McLaughlin's house and got "pretty pissed". He said that he left after his "cousin Mr Di Maria" brought a bottle of Remy Martin. He then went up to Mr Di Maria's house in Smithfield, kept drinking and crashed out there waking up at about 10 - 11am. He then went to his girlfriend's and then to her mother's house for dinner. After that he received the phone call about the deceased's death.
Mr Penza could not say when he was last in the laundry area of the deceased's house, but "not lately but probably before I moved out, returning all his tools". He said that the weapons he knew of were a machine gun (maybe an M4), a .22, a .32, a few shotguns and a target rifle/pistol. He said that the deceased had ammunition "in a suitcase". Mr Penza specifically denied having anything to do with killing the deceased.
Mr Penza's second ERISP provided the same information.
It should be noted that although many witnesses referred to the deceased having significant quantities of drugs at the house, no narcotics or other drugs were located by the police despite a thorough search.
The defence cases
Mr Di Maria gave sworn evidence in the trial. Until then he had not given any account of the events of 16 - 17 April 2006. The following is a summary of his evidence, both in chief and under cross-examination.
On Easter Sunday he went to the McLaughlin's house in the evening at about 7pm having collected a bottle of Remy Martin from home. Mr Penza was amongst those present. The persons there continued to drink into the evening. He estimated that he drank half a bottle of the spirits which he had brought mixed with coke. He and Mr Penza left between 9 and 11pm and went to his home about 10 minutes away. They continued to drink and watch TV.
At about 3.30am (he noted the time from his TV) he and Mr Penza discussed getting cocaine from the deceased. Mr Penza drove Mr Di Maria's car and parked on the deceased's front lawn. They went down the drive to the front door and saw that no lights were on. They knocked on the front door, got no answer and knocked harder for about 5 minutes. In the absence of a response:
"Frank said that he is probably out with one of his girls, and he goes "let's go, let's go help ourselves". He goes, you know, "I know where it is"." (T.574)
They went next door to 26 Oliphant Street, down the driveway, through the gate and up onto the back veranda. Mr Di Maria called out "Chris, Chris are you there?" Mr Penza called out "Papa, Papa", both using loud voices again for about five minutes. (T.574 - 576)
Mr Penza then took him to a spot on the common fence and they jumped over into the yard of 24 Oliphant Street. Mr Penza said that the drugs were in the laundry, which was open. They entered and turned on the light. Mr Penza indicated a cavity wall and attempted to put his hand in the gap at the top where the brickwork was broken. Mr Di Maria estimated the size of the gap at 20cm x 5cm. They began to attack the wall with a chisel, then a sledgehammer. After about five minutes, Mr Penza reached in and grabbed a sandwich bag containing cash and put it down his pants.
Mr Di Maria reached in and pulled the handle off a bag trying to remove it. Mr Penza said "Let's go, let's go" and then Mr Di Maria heard the deceased say "Hey what's going on?" Mr Penza turned the light off and ran to the fence, then got over it. The deceased said "Come or come back, or come back here". The next thing which happened was:
"Chris has come into the laundry and turned the light on. He - says "What are you trying to steal from me" and he has pointed the gun at me, and the gun was in his right hand. I put my hands up. He has pulled the trigger, tried to pull the trigger again, but it seemed to be either jammed or unloaded. So he put it in his left hand, and there was like a bolt action thing, and he has unloaded it and the shell's casing has come out ... I could tell it was a sawnoff, it had a bolt action." (T.581)
Mr Di Maria then picked up a nearby brick, threw it at the deceased's head, although not as hard as he could. He hit the deceased's forehead. He was afraid of being shot and tackled the deceased around his torso and remaining upright, they struggled out of the laundry. As Mr Di Maria had a fractured finger which had not healed, he could not make a tight fist but he got the gun above the deceased's head - they were both holding it, he on the barrel and the deceased on the stock/handle. Then the deceased fell backwards with Mr Di Maria on him. Mr Di Maria felt a heavy item hitting his head at the back. The gun was still above their heads. (T.581-584)
"He was smashing me in the back of the head with a hard object. Every time he was using an aggressive voice, each time he hit me and I was starting to get dizzy and I couldn't hold back any more, so I got up off his body and grabbed a hold of his arm." (T.587)
They were then on their knees, the barrel was getting
"Closer ... to my person ... I couldn't hold him any longer because I was really dizzy and I felt I was drunk and he was too strong, I couldn't hold him back. The gun was basically pointed at me, so I'm holding him like that, I have let go of the right arm to push the gun back." (T.587)
The evidence proceeded:
"Q. So you let go with your left arm; is that what you have indicated?
A. Yes.
Q. You have indicated moving your left arm to where your right hand was which was holding the gun?
A. Yes.
Q. You pushed back with both hands?
A. Yeah. I grabbed hold of Chris and pushed him. As I done this Chris - as I was holding the right arm, his body was sort of twisted.
Q. Twisted which way, in towards you?
A. Towards this way, towards me.
Q. So he's gone right into the left part of your body; is that what you mean?
A. Yeah his right to my left, yeah. As we have fallen back I pushed the gun back and it went off.
Q. It went off?
A. Yeah.
Q. Do you know whether you pulled the trigger?
A. I don't know.
Q. To your knowledge were you touching the trigger?
A. I don't know. As I done that in the one motion it went off.
Q. Do you know whether the gun or any part of it hit the ground?
A. No.
Q. When you pushed his arm back how were you feeling in relation to what he was doing?
A. I was really dizzy, I could see like white dots and my ears were ringing from the sound of the gun.
...
Q. When the gun went off was that when he was bending forward and you were on your knees?
A. Yeah that's right.
Q. The gun has gone off and he's fallen back has he?
A. (No answer)
Q. Did you fall with him - you're nodding.
A. Yes.
Q. What did you do?
A. Chris fell we both fell. I grabbed the gun.
Q. You grabbed the gun did you?
A. I tried to snatch it, I snatched it. I got up to run but I stumbled because I was too dizzy so I wasn't in a position to exit the premises.
Q. Why not?
A. Because I was too dizzy and my ears were ringing yeah.
Q. Did you know whether Chris had been shot fatally at that stage?
A. No, I wasn't sure. No, I wasn't sure." (T.588-589)
The deceased immediately fell to the ground letting go of the gun.
"Q. Did you do anything with the gun?
A. Yes.
Q. What did you do?
A. I reloaded it.
Q. How did you do that?
A. With the mechanism on the side.
Q. You're indicating backwards and forwards?
A. Yeah the same thing Chris done when it, when he had pointed it at me, I done the same thing.
Q. Why did you reload the gun?
A. Because I was scared he was going to come after me and attack me. I wasn't going to shoot him with it. I was just scared and I wanted to go home that's what I wanted to do, go home.
Q. When you reloaded the gun did it discharge? Did you see anything come out of the gun?
A. Shell casing.
Q. Where were you in the laundry when you reloaded the gun?
A. Just inside the doorway.
Q. How long did you stay in the laundry for?
A. One minute, two minutes something like that.
Q. Did you decide to leave?
A. Yeah eventually, yes.
Q. Did you look to see where Chris Minotte was before you left?
A. No, I was in the laundry. I panicked because I didn't see - he didn't come back and I thought that maybe it was possible that he was dead but I wasn't sure and I panicked. My blood was all over the gun, there was blood on the hammer.
Q. Which hammer?
A. The sledgehammer that was sitting there. I didn't know what to do so I was scared." (T.590)
Mr Di Maria collected the firearm and the hammer and then called out to Mr Penza who did not respond. He left through the side gate and saw that Mr Penza was in the car with the lights on and on the driveway at the front of the deceased's house. He got in the car with the firearm and told Mr Penza to drive away. When the latter asked what happened, he said "I think I shot him". Mr Penza kept asking if the deceased was all right, he was "in shock". They then went to Mr Di Maria's house.
Later that morning Mr Di Maria disposed of the hammer and the firearm, having ejected the bullet which was left in his car. Between the seats he found the plastic bag with the money in it, which Mr Penza had put down his pants in the laundry. It was mostly US currency (about $US40,000) with some Australian ($AU5,000). He later met up with Toni Green, his girlfriend and then worked on a car. He decided to go immediately to Malaysia being "scared of Phillip Minotte and his family". He had been to Malaysia before in March, shortly after he suffered the displaced fracture to his right forefinger.
He said that he remained overseas for many months. During that time he was told by a friend that his house and that of Toni Green had been searched by the police and that he was a suspect in the murder of the deceased. He had money sent to him from Australia and obtained a passport in another name (Watkins). He later got a driver's licence, a Medicare card and had utilities connected in that name. He also had made some inquires through a solicitor about handing himself over to the police. He specifically denied going to the deceased's house armed, or with any intention to kill or seriously harm him.
In cross-examination, he said that he knew the deceased dealt in drugs from his home but that he (Di Maria) mostly bought from Phillip or Patrick Minotte. When buying from 24 Oliphant Street, it was not always the case that someone went down to the laundry. He agreed that the plan was to "grab some drugs out of the wall" at 24 Oliphant Street. When the deceased turned up, Mr Penza was between him and the deceased so that the deceased could not see what was going on, except for the rubble on the ground.
He said that he had known the deceased for seven or eight years and had no issues with him. Once the deceased put the light on he said "Do you want to steal from me cunt?" then pointed the gun straight at his chest. Mr Di Maria said he was unarmed and had his hands above his head but the deceased pulled the trigger while still pointing it at him. He never told Mr Penza of the circumstances in which the deceased was shot.
He said that the reason he returned to Australia under another name and not through Sydney was because he was scared of Phillip Minotte and the threats the police officer, Mr Malone, was making "to my mum ... basically saying I'm a murderer. It was just intimidation, I don't know just scared me" (T.670).
"Q. Mr Di Maria, the situation is that prior to you going over to number 24, Frank Penza had told you about there being more than just drugs in that wall cavity hadn't he?
A. No sir.
Q. He told you about the money that you could find in that wall cavity hadn't he?
A. No sir.
Q. And also the guns?
A. No.
Q. That you and Frank Penza had armed yourself prior to going over to that house?
A. No sir.
Q. And that it was one of you, either you or Frank, who fired the shot into the house that rebounded off the kitchen door?
A. No sir.
Q. That anything that Christian Minotte did was an attempt to defend himself from you two who were there to attack and rob him?
A. No sir." (T.674)
The appellant, Frank Penza, neither gave nor called evidence at trial.
THE APPEAL
Ground 1 - The verdict is unreasonable and cannot be supported having regard to the evidence.
It was common ground that the Crown was obliged to prove an indispensable intermediate fact, namely that the appellants went to the deceased's home armed with a firearm. This meant that the Crown had to exclude a reasonable possibility that one of the appellants obtained use of the firearm when they were at the deceased's home. In that regard, there was no issue that the deceased kept firearms in the house and that firearms were found in the wall cavity when the premises were searched. The deceased's wife gave evidence of a sawnoff rifle with a similar description to the weapon referred to in Mr Di Maria's evidence.
The appellants submitted that because of the deficiencies in the Crown case, the verdict ought not be allowed to stand. They submitted that the problems in the Crown case were not of the kind that were capable of resolution by reference to a jury's advantage in seeing and hearing the evidence. They submitted that no part of the case against the appellants relied upon findings of credit to be made, either for or against a particular witness, by the jury. In that regard, the submissions by the appellants largely ignored the evidence of Mr Di Maria on the basis that for the jury to have reached the verdict which it did, it must have substantially rejected that evidence.
The appellants submitted that the issue was "whether the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the appellants" (Knight v R [1992] HCA 56; 175 CLR 495 at [21]).
It is common ground that the case against the appellants was wholly circumstantial. There was no direct evidence that either of them had a firearm when they went to the deceased's house. It was agreed at trial that "unless the jury can be satisfied beyond reasonable doubt that the accused were armed when they went to the premises, then a verdict of guilty in respect of either of them cannot arise" (T.697.36).
The appellants accepted that, although by necessity, it was necessary to treat each of the factual matters or circumstances separately, it was the "combination and totality" of those circumstances taken together from which the Court should consider the reasonableness or otherwise of the jury's verdict. The appellants acknowledged that in some cases, no single circumstance alone might sustain a verdict but viewed in totality, the combination of circumstances might allow the drawing of an inference of guilt. The appellants submitted that in this case not only was each of the circumstances of itself weak, but taken together they still allowed for reasonable inferences consistent with innocence. They submitted that taken at its highest, the circumstances in the Crown case could not exclude as a reasonable hypothesis that both appellants went to the deceased's house, but did not go there while armed. Nor could those circumstances exclude the hypothesis that the deceased was shot with the sawnoff rifle which his wife said he possessed at that time.
The Crown case relied upon six areas of circumstantial evidence. The trial judge summarised that evidence in her written directions to the jury as follows:
"The Crown cannot prove the offence of Murder (either by way of extended joint criminal enterprise or by way of felony murder) unless the Crown has proved beyond reasonable doubt that one of the accused was armed with a firearm to the knowledge of the other, when they went to Mr Minotte's house in the early morning of 17 April 2006.
In the absence of direct evidence that one of the accused was armed, to the knowledge of the other accused, the Crown relies upon the following items of evidence to found that inference:
(a) The existence of the "gutter" mark in the back door, together with the depression left in the kitchen wall, beside the rangehood, and the projectile on the floor of the kitchen.
(b) Knowledge of the accused Penza that Mr Minotte possessed firearms and that he would resort to their use if threatened,
(c) Lies told by the accused Penza to police in both recorded interviews, namely, that he had not been to Mr Minotte's house on 17 April 2006 and that he knew nothing of the circumstances surrounding his death.
(d) Flight by the accused Di Maria in the evening of 18 April 2006.
(e) The adoption of a false name and creation of false identity documents by the accused Di Maria.
(f) Flight by the accused Di Maria when stopped by police on 24 August 2007."
At trial, the Crown relied heavily on the evidence of the trajectory of the bullet which left marks in the kitchen area. The Crown prosecutor said that this was the most important piece of evidence from which the jury would draw the inference that the appellants arrived at the house armed.
In order to understand the submissions, it is necessary to say something about the layout of the house. The laundry was located under the house. There were stairs which led from the back veranda to the back yard and from there one could go to the laundry door. From the veranda if one were to go inside the house through the backdoor, one would be walking into the kitchen area. There was no access to the laundry by an internal staircase. The only way of gaining access to the laundry from the kitchen area was by way of the veranda down the stairs to the backyard. Thus the laundry door was some metres away and downstairs from the back door to the house.
The Crown theory was that one of the appellants had fired a bullet into the house from the back veranda area, that this had caused the marks referred to and that this had occurred during the same incident which ended with the shooting of the deceased. Implicit in that theory was that the person firing from that position, already had a firearm in his possession, which was consistent with a firearm having been brought with him, and not consistent with the firearm having been obtained from the laundry after arrival. Consistent with that theory was the finding of two spent casings which came from the same firearm. The submission was that the firearm having been discharged from a location outside the back door, one of the appellants had then descended the stairs to the laundry and at sometime thereafter had ejected the spent casing and used the firearm to shoot the deceased and had once again ejected a casing. That scenario also explained the evidence of neighbours that they heard two shots.
There are, however, a number of difficulties with the Crown case. The first is that Detective Summerfield agreed that there had been some manipulation of the back door and kitchen area, in particular moving the door so that it was almost closed, in order to get the marks to line up, to establish the path which the police said this bullet took. It is difficult to understand why the door would have been in that position at the time the shot was fired.
It is also difficult to understand the circumstances in which a firearm would have been discharged into the kitchen area. Inferentially, the discharge of a firearm in that way would have had to have occurred before the shooting of the deceased. If it were intended to shoot at or warn off the deceased, one would have expected to have found a spent casing outside the back door, either because it had been automatically ejected or if it were a bolt action or lever action weapon, because it had been manually ejected thereby allowing another round into the breech. It seems incongruous that a person who had fired into the kitchen, would then take the firearm down the back stairs into the laundry area without preparing the weapon to fire another round. Yet two spent casings were found in the laundry.

Alternatively, since the back stairs provided the only direct access from the kitchen to the laundry, one might have expected the person who discharged the firearm into the kitchen to keep those stairs under observation if there were some prospect of the deceased using them to gain access to the laundry.
There are a number of other difficulties. Detective Sergeant O'Hagen was unable to identify the calibre of the projectile found in the kitchen. She said it was virtually impossible to identify the position from which the bullet was fired. Where the bullet was fired from was heavily dependent on what type of pistol or rifle was used and the type of ammunition. No testing, expert or otherwise, was performed to ascertain the age of the gutter mark on the doorway, or the bullet mark in the wall above the stove. No test was carried out to confirm that the gutter mark had been made by a bullet. The projectile found on the floor of the kitchen, may have been moved from its original position during the investigation because it was not located at an early point in the crime scene investigation. The projectile could not be ballistically linked with the two casings found in the laundry or with the projectile which killed the deceased. Its calibre could not be determined.
The weapon which fired the fatal shot, remained unidentified. The two spent casings, found in the laundry, could be used in a large number of different firearms, from pistols to rifles and could be used with firearms with different types of action, e.g. automatic, lever or bolt action. Depending on the firearm, the spent cartridges might be expelled automatically by the weapon, require manual ejection such as with a lever or bolt action, or remain in the weapon itself such as with a revolver. It was agreed that the bullet that caused the marks in the kitchen could not have been fired from the laundry.
It was not possible to say from the expert evidence that the projectile which killed the deceased matched the casings found on the laundry floor. Similarly, it was impossible to conclude that the projectile found on the kitchen floor matched the casings found on the laundry floor. It was not possible to say that there was any match between the projectile found in the kitchen and that which killed the deceased.
Just as with the projectile in the kitchen, the casings in the laundry may have been moved, since a number of police were in the laundry before the casings were identified. As with the kitchen, the police initially were not aware that there had been a shooting. Moreover, there was no examination of the surrounding houses to see if a bullet may have damaged any of their walls. A shot fired into the air could have gone anywhere and a projectile thus fired would be almost impossible to locate.
There is another difficulty. If the marks in the kitchen describe a bullet's trajectory and if the bullet that made that mark came from the same weapon which shot the deceased and if the bullet making the trajectory marks was fired on the same night, and if that was during the same incident as the deceased's death, then that scenario is contrary to the evidence of the neighbours. The neighbours all clearly heard more than one shot, in very quick succession. Given the layout of the house, it is simply not possible that a firearm could have been discharged into the kitchen and within a second or two, discharge so as to cause the deceased's fatal wound.
There was, of course, a scenario readily available which would explain the discharge of a firearm towards the kitchen on an earlier occasion. There was evidence that the deceased had been the subject of violent and threatening standover tactics by "Lebanese guys" who were after his money. According to his wife, they had visited the deceased at his home on at least three occasions and demanded money. On one occasion, his wife observed injuries which were attributed by him to a beating received from these persons. A shot could have been fired into the kitchen by one of these persons on an earlier occasion as a warning or threat. Clearly the deceased was living in a state of fear as evidenced by sleeping in the bathroom with the door blocked.
There was no evidence that either of the appellants possessed a firearm before the incident. There was no evidence of where the appellants might have obtained a firearm late at night or early in the morning of the day on which the deceased was killed.
There is a scenario consistent with innocence, which largely fits the available evidence, particularly that of the neighbours and the recent injuries found on the deceased. That scenario involves the appellants going to the deceased's house to acquire drugs, shouting to him so as to indicate who they were and when they received no response, opportunistically deciding to steal drugs and money from him. While doing so, the deceased confronted them and a scuffle ensued between him and one of the appellants leading to the discharge of the firearm and the deceased's death. This is consistent with the partially demolished state of the cavity, i.e. that the appellants were in the process of breaking into the cavity in the laundry when they were confronted by the deceased. It is consistent with the firearm described by the deceased's wife as having been given to him by her, being similar to that described by Mr Di Maria. This weapon could not be found when the premises were searched by the police, although a number of other weapons were discovered.
A similar scenario consistent with innocence would have the appellants going to the deceased's house to steal drugs and money, but without a firearm. That scenario also largely fits the available evidence.
The one piece of evidence which does not fit that scenario is the evidence that two shots were heard by the neighbours. It may well have occurred that the deceased fired a shot before the scuffle which led to a further discharge of the weapon and his death. In any event, such scenarios are equally consistent with the available evidence, if not more so, than that relied upon by the Crown which also cannot account for two shots being heard in close succession.
In summary, the evidence on this aspect of the Crown case established the following:
Bullets and cartridge cases
That the spent casings found in the laundry were fired from the same weapon.
That it was not possible to determine whether either of the bullets came from either of the casings.
That the bullet causing death was a .22 round.
That there was evidence consistent with the bullet that killed the deceased coming from the sawnoff rifle.
That with respect to the bullet inside the house, it was not possible to determine the calibre.
That the deceased was the only person known to have a sawnoff rifle in his possession.
The trajectory
Even if the marks inside the house did show a bullet's trajectory, it was not possible to estimate when that had occurred.
There was nothing that could link the trajectory to the bullet found in the kitchen area by police.
There was nothing that could link the trajectory with the gunshot that killed the deceased.
There was nothing that linked the bullet in the kitchen with the bullet that killed the deceased.
Other possibilities for the bullet in the kitchen
The deceased because of the fact that he was a drug dealer was receiving threats, had been assaulted by a group wanting to extort money from him and lived in constant fear.
A large number of people knew that he dealt drugs from his house and came during the night to purchase drugs.
The evidence as to the distance from which the deceased was shot is equivocal. It is equally consistent with the hypothesis put forward by the Crown and with the evidence of Mr Di Maria. Detective Sergeant O'Hagan was of the opinion that the shot to the deceased's head was not fired from "close" distance, but without knowing the weapon that was used, she was not able to say whether that meant the shot was fired from more than 5, 10, 20 or even 30 cm away.
Dr Little, the forensic pathologist, said that the bullet had fragmented on its path through the head and as it was going from left to right it was going slightly downwards. She ventured an opinion that the weapon firing that shot could have been anything from about half a metre to one metre away. While that evidence would tend to favour the Crown scenario, it was so extensively qualified by Dr Little as to indicate that the evidence of Detective Sergeant O'Hagan should be preferred on this issue.
Doctor Little conceded that such an assessment should be made by a ballistics expert, although she had done some reading on the subject. She said that the only way you could really determine exact distances for any particular weapon was to test fire it and that it depended very much upon whether it was a handgun or a rifle. She agreed that she would defer to the opinion of a ballistics expert. The evidence of a ballistics expert was available and should be preferred. The evidence of Detective Sergeant O'Hagan was the only reliable expert testimony on the subject.
The deceased was found to have a number of pink and green balloons in his oesophagus. These contained various amounts of illegal drugs. At least one witness gave evidence of purchasing drugs from the deceased packaged in this form. Dr Little gave the opinion of them having been swallowed shortly before death as they had not yet moved to the stomach.
This is inconsistent with the deceased being surprised by the appellants. It strongly suggests that the deceased had some minutes within which to take precautions to prevent drugs being stolen from him. His actions in this regard are consistent with the deceased hearing noises coming from the laundry, putting a quantity of drugs out of reach, arming himself and going to investigate. It is consistent with the evidence of Mr Di Maria and supportive of a scenario consistent with innocence.
The evidence of the neighbours does not support the Crown scenario. The layout of the kitchen, back veranda stairs and laundry makes it most unlikely that a shot could have been fired into the kitchen, followed almost immediately by a second shot if it were that second shot which killed the deceased.
There were two shots, probably fired very close together - Hughes, Fausett, Gaal.
Mr Pitt heard a single bang like a cap gun, followed within a "split second" by two more bangs.
That before the shots there was some conversation between men: Gaal, Pitt.
There was some yelling before the shots: Gaal, Pitt.
Part of the yelling was a male calling out to someone, like calling out "hallo" or hailing someone inside: Pitt.
There was a male calling out "Come back here" before the shots: Gaal.
There was the sound of something that sounded like wrestling, or the sound of someone slapping on the concrete: Pitt.
There was a gap between the sound of a person jumping over the fence and the gunshots: Pitt.
None of that evidence would have assisted the jury on the question of whether they could find beyond reasonable doubt that the appellants went to the house armed. Indeed, what evidence there is tends to suggest that the appellants were calling out to someone inside and that someone later was calling for another to "come back".
It is not possible to say whether the deceased had money and/or drugs, other than those he had swallowed in his possession at the time of death. To the extent that the jury were able to reason that money and/or drugs were taken, it did not assist in the resolution of the issue of whether the appellants arrived at the house armed. Such evidence was equivocal. There was evidence that the cavity had been broken into and general evidence about the deceased keeping large sums of money there, together with firearms. If, as seems likely, Mr Di Maria acquired the money for his holiday from the deceased's house, that did not assist the jury in determining whether the appellants had arrived at the house armed.
The second area of evidence relied upon by the Crown does not greatly advance the Crown case. Although there is no evidence that Mr Penza told Mr Di Maria that the deceased possessed firearms and that he would resort to their use if threatened, an inference that he had done so could reasonably be drawn by the jury. That having been said, it does not necessarily follow as a matter of logical inference, that the appellants would arm themselves before going to his house. This is particularly so when there was no evidence that either one of them owned a firearm or had access to firearms.
There is an equally available inference that because of their fear of him they would go to the deceased's house in order to ascertain whether he was at home and if not, look for drugs and money. Although there was some evidence that relations between Mr Penza and the deceased had not been good in the months leading up to his death, there is no evidence of such a breakdown in relations as would lead Mr Penza to threaten the life of the deceased.
Some support for the latter scenario, i.e. one consistent with innocence, emerges from the first ERISP completed by Mr Penza on 18 April 2006.
"Q.107 Okay and how often, how would he sell it, would he leave the house or would people come to him or --
A. He would leave the house and then he would have people go to the house.
Q.108 Okay and when he left the house, what, would he get in his car, or would he walk or what would he do?
A. Car.
...
Q.121 All right ... when he went out selling drugs would he go out by himself or would he go out with others?
A. Yeah by himself.
Q.122 Do you know where he would usually deal his drugs to?
A. From here to Bexley.
Q. 123 Yeah just to Bexley?
A. All over like yeah furthest he goes is Bexley."
These responses by Mr Penza ought be given considerable weight. They were made at a time when he was not charged, before any trial was envisaged against him and before he had instructed counsel. In those circumstances, his statement that he was aware that the deceased would go out at night could not be seen as a ruse by him to try to falsely prove that the deceased may not have been at the house when they arrived. It is unlikely that this statement is an early attempt by Mr Penza to corroborate the defence which would be maintained by the appellants at trial.
The last four areas of evidence raise the same issue and suffer from the same difficulty. In the case of Mr Penza, the Crown submitted that the lies told by him in both his recorded interviews - that he had not been to the deceased's house on 17 April 2006 and that he knew nothing of the circumstances surrounding his death, were evidence of a consciousness of guilt and therefore were capable of proving that he and Mr Di Maria went to the deceased's house armed.
It was common ground that Mr Penza had told lies to the police in his ERISPs in relation to those matters. The lies were clearly intended to separate him from the scene of the incident. Mr Penza had also told lies to Messrs Amil and Clarke as to his movements on that night. He told Mr Amil that he had not been at the deceased's house that night and he told Mr Clarke that he was at his girlfriend's that night.
In the context of a defence case which conceded that Mr Penza had formed an intention to steal from the deceased, and where he knew that the deceased had been shot in the course of a struggle with Mr Di Maria, there is a ready explanation for the lies that does not go to consciousness of guilt with respect to murder. As his counsel put to the jury, he knew that he had done the wrong thing, when attempting to steal from his stepfather, and thereby causing his death. This was a plausible alternative explanation for the lies. In addition, there was evidence of a real basis for him to fear other family members. This provided a continuing reason why he did not simply admit that he had gone there with Mr Di Maria to steal from the deceased.
The same submission is available in relation to the grazes and marks on his arms. He told Mr Clarke that these had been caused when he was trying to fix Phillip Minotte's car. Such marks as were described by Mr Clarke were also consistent with trying to break open the brickwork, concealing the wall cavity and with his blood which was found in the laundry. It was an available and plausible inference that Mr Penza was trying to hide his involvement with the plan to steal and the ultimate death of the deceased. That lie and the other lies did not compel a conclusion that if he told the truth, he would necessarily be admitting to murder.
Leaving aside the question of the admissibility of the evidence as to lies (which forms the basis of another ground of appeal), its probative value was at best slight. It certainly was consistent with a consciousness of guilt but a consciousness of guilt of a different offence, i.e., the actual or attempted robbery of the deceased and an involvement in his death, but not necessarily an involvement amounting to the offence of murder. It was, of course, also consistent with a consciousness of guilt for the offence of murder. The difficulty for the Crown is that there was nothing in the evidence concerning the lies which rendered this evidence more consistent with the Crown case of murder than with the defence hypothesis that they were engaged in the theft of money and drugs when as a result of series of unfortunate events, the deceased died.
The same considerations apply to the evidence of flight in relation to Mr Di Maria. The matters relied upon against him as indicating a consciousness of guilt were his departure for Malaysia on 18 April 2006, the adoption of a false name and the creation of a false identity when returning to Australia and his flight when stopped by police on 24 August 2007 after his return to Australia.
The evidence of Mr Di Maria was that the motivation for his flight and other actions was a fear of retribution from members of the deceased's family, in particular the son Phillip.
Those areas of evidence ((d), (e) and (f) in her Honour's written direction) are not capable of discerning between the existence of a consciousness of guilt, which might reasonably follow from the events described by Mr Di Maria (an attempted drug theft gone wrong, culminating in the death of the deceased following a struggle and the involuntary discharge of the firearm) or the scenario contended for by the Crown (a deliberate shooting of the deceased or felony murder). There is no rational basis upon which the jury could have been satisfied that one scenario was to be preferred to the other. Alternatively, (and this relates to Ground of Appeal 3), the evidence was not capable of discerning between a consciousness of guilt that might arise following the commission of murder as distinct from a consciousness of guilt that might follow upon liability for manslaughter.
The appellants submitted that on this state of the evidence, the jury had no proper basis for preferring the scenario put forward by the Crown rather than that available to the defence since the evidence itself did not favour one over the other. The appellants relied upon the following statements of principle:
"We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct." (R v Ciantar [2006] 16 VR 26 at [40] (Warren CJ, Chernov,Nettle, Neave and Redlich JJA)
Martinez v WA [2007] A Crim R 389, a decision of the Western Australia Court of Appeal (Martin CJ; Steytler P and Miller JA) adopted that statement of principle in Ciantar:
"As we have said, the potential probative force of an Edwards lie rests in its potential to amount to an implied admission of guilt. It can consequently never be intractably neutral in its effect, in the sense in which the phrase is used in the corroboration context, because it goes to the ultimate issue of guilt. Accordingly, where the phrase is used in this context, it really means no more than that the lie is incapable of amounting to an implied admission of guilt because there is an innocent explanation for it that is just as likely as the inference of guilt which might be drawn from the lie."

It should also be noted, for what it is worth, that Mr. Penza relied upon Mr Di Maria's evidence at the trial, although Mr Penza himself, as Hoeben JA has pointed out, did not give evidence.
I acknowledge that seeing and hearing Mr Di Maria give evidence is an advantage enjoyed by the jury, which cannot be recreated in this Court. As in Hillier their verdict reveals that the jury must have rejected Mr Di Maria's evidence.
In my judgment, the rejection of Mr Di Maria's evidence is not a circumstance, whether taken alone, or in conjunction with all the other circumstances, from which it was open to the jury to draw the inference that the appellants went to the deceased's home armed. As Hoeben JA has pointed out in [94], all parties at the trial, from opening to verdict, proceeded on the basis that this was an indispensable intermediate fact required to be proved by the Crown to the jury's satisfaction beyond reasonable doubt before the jury could convict of murder. Moreover, the conclusions expressed by Hoeben JA at [150] - [152] (with the exception perhaps of the third bullet-point at the end of [150]) do not depend upon an acceptance of Mr Di Maria's truthfulness, and are not invalidated by the assumption that the jury rejected his evidence. Putting the third bullet-point to one side makes no difference.
Having reviewed the evidence myself, and having considered Hoeben JA's reasons, I doubt whether each accused was guilty of the crime of murder with which he was charged. In my judgment, this doubt is not capable of having been resolved at trial by the jury's advantage in seeing and hearing the evidence either of Mr Di Maria, or of all of the witnesses.
As the High Court of Australia has recently observed, [t]he criminal standard of proof is a designedly exacting standard: Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at 1096 [48]. In my judgment, considering the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that either accused was guilty of murder.
In my judgment, there [is] a significant possibility that an innocent person has been convicted (M v R at 494) in each case. Accordingly, in my view, this Court is bound to act and to set aside the verdicts.
For the reasons given by Hoeben JA I am not satisfied beyond reasonable doubt that the proviso to s 6(1) of the Criminal Appeal Act is engaged and accordingly, like Hoeben JA, as I have said, I would quash the conviction and direct a judgment and verdict of acquittal be entered in each case (s6(2) Criminal Appeal Act).
Before leaving Ground 1 there is another matter about which I wish to say something. Perhaps in tacit recognition of the difficulties facing the Crown, learned counsel who appeared on the appeal sought to raise a new point. Properly, she acknowledged that this is a different basis than that on which the Crown case was run (Crown submissions page 9 [27] - 10 [30]). The new point was described in the following terms:
...it is submitted that there was evidence in the Crown case that was capable of supporting a conviction for felony murder on the basis that the appellants armed themselves once in the laundry of the deceased's home from the cache of weapons in the cavity wall, which they had clearly substantially demolished at the time of the confrontation with the deceased.
It was not necessary for the Crown to prove that an intention to commit an armed robbery was present at the time they entered the premises. Such an intention could have been formed at the time they located the guns in the cavity wall and when they realised the deceased was in fact at home.
As McHugh J put it in Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 at 875 [44] it is an elementary rule of law that a party is bound by the conduct of his or her case. The rule is not absolute, but the circumstances justifying an exception must be most exceptional: University of Wollongong v Metwally [No. 2] [1985] HCA 28; 59 ALJR 481 at 483.
In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, the Court said:
The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. (Emphasis added)
This rule applies equally to criminal cases: Crampton v The Queen [2000] HCA 60; 206 CLR 161 at 171 [12] - 173 [19] per Gleeson CJ; and Fingleton v The Queen [2005] HCA 34; 227 CLR 166 at 218 [147] - [148] per Kirby J. The application of the elementary rule, and it's exceptions, to criminal appeals is given effect to by rule 4 Criminal Appeal Rules, which, as is well known, is in the following terms:
No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
During oral argument, Hoeben JA, as presiding judge, expressed the firm view that the Crown should be restricted to the way the Crown put the case at trial (23.35T; 2.5 - 25T; 26.35T). I agree that the Crown should not be given leave to raise this point for the first time on appeal.
At trial, in his closing address, the learned Crown prosecutor said (714.45T):
As I indicated to you right from the start of my address, the Crown must prove beyond reasonable doubt that one of [the accused] had that firearm at the time they went to the house.
The learned trial judge directed the jury in the following terms (summing up page 12):
What does it mean to say that the Crown must prove the elements or the ingredients of an offence beyond reasonable doubt. Well, it is important that you understand that the Crown does not have to prove every single fact that might be in dispute in this trial, with one very important exception. And that one very important exception is whether one of the accused was, to the knowledge of the other, armed with a firearm when they went to the deceased's house. That is what, in the law, we call an essential intermediate fact. Because of the way in which this trial has been run, the Crown must prove that essential intermediate fact beyond reasonable doubt, otherwise it cannot prove the offence of murder in the way that it has mounted it's case. (Emphasis added)
During a short break in her Honour's summing up taken for the jury's benefit, they sent a note (MFI #20) which read:
If the accused went to the property unarmed but with the knowledge that the guns were there and an intention to arm themselves; is this the same by law as bring the gun with them?
As counsel acknowledges on appeal, the question raised an issue similar to, but not identical with, the new point that the Crown wishes to raise. The learned trial judge took the views of counsel. All, and in particular the Crown prosecutor, agreed that the jury should be dissuaded from following that line because it amounted to speculation having regard to the way the Crown put its case.
With the concurrence of all counsel, her Honour provided the following answer to the jury's question:
The Crown case has been put squarely on the basis that the accused went to the premises armed; that they went there with a gun, so there is no other basis upon which you can consider the Crown case.
As I said, the Crown has to prove its case and prove it beyond reasonable doubt and the basis upon which your question is premised amounts to speculation. It's not the way in which the Crown case has been run. So, that is really a question that does not need to be answered in the context of this particular trial.
Before us, the Crown sought to rely upon this new point in one of three ways: first, it was said to be a circumstance that would lead the court to find that the verdict was not unreasonable; alternatively, it was put that in the light of it that if the court was otherwise of the view that the verdict was unreasonable, there should be a new trial restricted to a charge of felony murder on the new basis; or, thirdly, an alternative charge of manslaughter by unlawful and dangerous act should be the subject of a re-trial, if there was room for doubt as to the foundational crime.
In my judgment, in all the circumstances of this case, leave should not be granted to raise this new point. It runs directly counter to the way the case was conducted by the prosecution at trial; the material I have cited demonstrates that the decision to confine the case was deliberately made by the Crown. Particularly having regard to the obligations of objectivity and fairness owed by prosecutors, the Crown ought not be permitted to resile from its considered position now. The question sought to be raised is a purely factual one, not involving any point of law. And the Crown has not demonstrated that there is no possibility that the new point could have been countered at the trial by evidence or argument, had it been raised; and I can think of no other basis upon which it could be said in the present case that there are most exceptional circumstances justifying a prosecution raising an entirely new case for the first time on appeal.
Returning to [194] - [198] of Hoeben JA's judgment, I would prefer to reserve my position. His Honour has exposed conflicting lines of authority in this Court about whether s.137 Evidence Act 1995 imposes a positive duty on a trial judge to exclude evidence of a type caught by it whether or not objection is taken. As his Honour points out, strictly, this aspect does not arise for the reasons expressed by his Honour at [192] - [193]. And, as the differences were not identified by counsel nor addressed by them, I would prefer to leave the resolution of the question to an appropriate case where the Court has had the benefit of full argument.
BUTTON J: I respectfully agree with Hoeben JA about grounds two to four, except for the following. I prefer to adopt the approach of Campbell J of not seeking to resolve the question of the circumstances in which a trial judge should exercise the discretion to exclude evidence pursuant to s 137 of the Evidence Act 1995 in the absence of an application to do so. I adopt that approach for the reasons given by Campbell J.
Turning to the disposition of the matter, upholding the appeals with regard to grounds two and three would, in each case, lead to an order for a new trial.
As for ground one, I also agree with Hoeben JA with regard to its disposition. I respectfully agree with Hoeben JA about the applicable legal principles and the test to be applied by this Court. I gratefully adopt the conspectus of the evidence and the course of the trial in the judgement of his Honour. However, my analysis of the evidence that leads to the ultimate conclusion is slightly different. Because my judgment rests on the foundations provided by Hoeben JA, I can be brief.

Crown case

It was accepted by all parties at trial that, in order to succeed on the count of murder against each of the appellants, the Crown was required to prove beyond reasonable doubt that one or other of them went to the premises armed with a firearm, and that the other knew about that state of affairs.
Proof of that agreed indispensable intermediate fact was founded on a number of pieces of evidence, some of them more probative than others. Central was the ballistics evidence, and the evidence of the neighbours as to what they had heard during the night in question. In particular, the Crown submitted that two shots had been fired that night, and that one of them had been fired from the back verandah into the kitchen. Acceptance of that proposition, it was submitted by the Crown at trial, would, in combination with other evidence, lead the jury to conclude that the appellants had been armed when they arrived.

Number of shots fired?

When the police attended the home of the deceased some hours after his death, there were two fired bullets present. One was in the kitchen, and one could readily infer from the ballistics evidence that, at some stage, it had been fired from the back verandah into the home. The other was in the skull of the deceased, whose body was found at the foot of the external stairs leading down from the back verandah to the laundry.
Found in the laundry downstairs were two fired cartridge cases. They were both from .22 calibre long ammunition. Although they emanated from different manufacturers, Winchester and PMC, the ballistics evidence established that those fired cartridge cases had been discharged from the same firearm.
Every neighbour who gave evidence, and who heard shots, heard more than one. Mr Pitt heard three, and thought that the time between the first shot and the next two was a split second, five maybe three seconds. Ms Gaal heard two loud bangs, and thought they were separated by seconds and very close. Mr Hughes heard a couple of sounds. Mr Harvey heard no sounds that could be gunshots. Mr Fausett heard two gunshots.
In short, two fired bullets located at the home; two fired cartridge cases found; the two fired cartridge cases discharged from the same firearm; and the preponderance of evidence from neighbours to the effect that two shots were discharged that evening. On that material alone, I consider that it was well open to the jury to be satisfied that the bullet found in the kitchen had been discharged on the evening in question.
However, the evidence did not end there. The bullet fragments found in the skull of the deceased were from a round that was of .22 calibre and Winchester manufacturer. The overwhelming inference is that those fragments were of a bullet that was a part of a live round that included the .22 Winchester fired cartridge case found in the laundry.
The bullet found in the kitchen could not be affirmatively matched to either cartridge case, or to the bullet in the skull of the deceased, or to a common firearm. But nor was it in any way inconsistent with any of those matches. Although, as a matter of forensic science, the bullet in the kitchen could not be established to have been fired from the same firearm as the fired cartridge cases, nor to have been fired from the same firearm as the bullet in the skull of the deceased, I consider that, in all the circumstances, that determination was well open to the tribunal of fact.
It is true that there was evidence that the deceased had been the subject of threats and attacks before. However, it is noteworthy that the deceased had told others of those events, and given some detail about them, but had never mentioned any previous occasion upon which a shot had been discharged into his home, and which could therefore explain the bullet found in the kitchen.
It would also be strange (although not impossible) for a person to leave a bullet that had previously been fired into his or her home lying on the kitchen floor for days, weeks or months.
It is true that, if the bullet in the kitchen was fired that night from the verandah, it must be linked to the PMC fired cartridge case found in the laundry. That means that the weapon from which that bullet was discharged must have been a weapon from which fired cartridge cases are ejected manually for the hypothesis to hold true. Were it otherwise, one would expect the fired cartridge case associated with the bullet in the kitchen to be found on or near the verandah.
Whilst it is true that it would be odd for a shot to have been fired from the verandah outside the kitchen and for the weapon not to be manually cleared until it was in the laundry, I consider that, in the context of a fast developing confrontation, such a state of affairs is not inconceivable.
If the PMC fired cartridge case in the laundry is not associated with the bullet found in the kitchen, there must be a fired bullet somewhere associated with that fired cartridge case (subject to the evidence of Mr Di Maria, which I discuss below). It is correct that the failure of the police to locate such a third bullet is not determinative of the matter, because the bullet could have travelled a long distance away from the home, and the search was, understandably, not extensive. However, I consider that the failure to find a third bullet goes some distance to supporting the proposition that the fired bullet in the kitchen is associated with the PMC fired cartridge case found in the laundry.
Mr Di Maria gave evidence. His position was that only one shot was fired, and that was during a struggle between himself and the deceased. How then could there be two fired cartridge cases from the same firearm found in the laundry? His explanation was as follows. When the deceased confronted Mr Di Maria, the deceased pulled the trigger of the sawn-off bolt-action rifle that the deceased was holding. Nothing happened, and thereafter the deceased manually cleared the chamber by way of manipulating the bolt. The result was that a fired cartridge case was ejected onto the floor of the laundry. In other words, the deceased when he confronted Mr Di Maria did so with a firearm that had no live round in the chamber, but rather nothing more than a fired cartridge case.
The deceased was a firearms enthusiast. He collected and secreted a large number of them. He was also a drug dealer who kept substantial amounts of drugs and money in his home. He was deeply concerned about security, and indeed slept in a barricaded bathroom. He was a man who was prepared to defend his possessions. On the night in question, he had had time to swallow balloons filled with drugs before he was killed. In all of those circumstances, I reject the proposition that such a person would confront an intruder with a firearm that was, in the immediate circumstances, useless because, for some reason, it was loaded with a fired cartridge case that had not been previously cleared from the chamber.
Mr Di Maria sought to explain the second fired cartridge case by evidence to the effect that, after the gun went off involuntarily and without an intention to kill or inflict grievous bodily harm on his part, he immediately re-loaded by manipulating the bolt. That brought a fresh live cartridge into the chamber and discharged the fired cartridge case that was associated with the bullet that killed the deceased. The net result was that two fired cartridge cases ended up on the laundry floor, although only one shot was fired that night.
Such a chain of events to explain the second fired cartridge case is possible. However, the position of Mr Di Maria was that he and Mr Penza had travelled to the home of the deceased merely to buy drugs. Mr Di Maria had nothing against the deceased. Thereafter, believing that the deceased was away from his home, they decided to steal his drugs. After that, in a struggle between the deceased and Mr Di Maria, the deceased was shot in the head, involuntarily and without any intention to inflict harm or kill.
It seems strange indeed that a man who has been involved in the accidental (to use an imprecise word) shooting of a man to whom he bore no animus should immediately re-load, rather than (as may be more likely) going to the assistance of the victim of the completely accidental shooting.
In short, I reject the explanation of Mr Di Maria as to the presence of the two fired cartridge cases in the laundry, on two bases. Of course, in order to convict Mr Di Maria and Mr Penza, the jury must have rejected most if not all of the evidence of Mr Di Maria as well.
Quite apart from my rejection of the explanation of Mr Di Maria about the central question of the presence of the two fired cartridge cases in the laundry, I have read the whole of his evidence. His assertions about a number of matters, including but not limited to his desire to hand himself in to the police, his feelings about the death of the deceased after it occurred, and his retention of the stolen money, strain credulity. He did not fare well in cross-examination. Based on an analysis of his evidence as a whole, I am comfortable in putting the whole of it to one side.

It is true that the general thrust of the evidence of the neighbours is that they heard the shots very close together. That is, I accept, on its face inconsistent with the Crown proposition that the true course of events was, in all likelihood, as follows: a bullet was discharged from the verandah into the kitchen as part of an attack on the deceased; the shooter and the firearm then travelled down the external stairs to the laundry; the fired cartridge case was cleared from the weapon in that location; a further bullet was discharged in that area, and it entered the skull of the deceased; and that second discharge was followed by the manual ejection of a further fired cartridge case onto the floor of the laundry.
I consider that there are two responses to that inconsistency. The first is that, in a fast developing confrontation, it is not inconceivable that the firearm was discharged on the verandah, and then, very soon after, the shooter and the firearm travelled by way of the external stairs to the laundry, at which location the firearm was discharged a second time, fatally wounding the deceased. It is true that the second shot could not have been a split second after the first in those circumstances. But it could have been only a matter of some seconds afterwards. The following examination of the evidence of the neighbours as a whole shows that such a scenario is not really inconsistent with their evidence.
As I have said above at [234], Mr Hughes heard two shots but did not give any evidence regarding the time between those shots. Mr Harvey did not hear any sounds that could be identified as gunshots. Mr Fausett heard two gunshots and also did not give any evidence regarding the time between the shots. Ms Gaal heard two shots and described the time between them as "very close" and within "seconds". Finally, Mr Pitt heard three bangs and in cross-examination described the time between the first shot and, the second and third shots as "quicker than 30 seconds, it was only a split second" and "five seconds, maybe three" seconds.
The second response is that, as was said by Gummow and Callinan JJ in Velevski v The Queen [2002] HCA 4; (2002) 186 ALR 233 at [192], not every aspect of the Crown case must be able to be explained with perfect exactitude in order for a conviction to be maintained in the face of a ground such as the one under consideration.
In summary, every neighbour who gave evidence of having heard gunfire that night heard more than one shot. That fact, combined with the ballistics evidence, persuades me that it was open to the jury to be satisfied that the bullet in the kitchen was fired from outside the home; that it was fired from the same firearm as the firearm that fired the bullet that caused the death of the deceased; and that the bullet in the kitchen was fired during the fatal incident. I am satisfied of those propositions as well, if necessary to the criminal standard.

Proof of armed arrival?

That leads to consideration of the second question; namely, whether it was open to the jury to be satisfied that the firearm used to discharge those two shots had been brought to the home by one offender with the knowledge of the other, and not involved in the incident by some other mechanism. It will be recalled that, at the trial, the Crown restricted itself to that proposition. The Crown explicitly disavowed seeking a conviction based upon the proposition that the appellants had obtained the weapon at the home, whether from the arsenal in the laundry, or after having been confronted by the deceased, who was armed, and disarming him. To put it another way, if the jury had had a reasonable doubt as to whether or not the firearm used was brought to the home or obtained at the home of the deceased, the jury should have acquitted both appellants. That was the case even if the jury had been satisfied that, howsoever the firearm ended up at the scene, one of the foundational offences for extended joint criminal enterprise murder or extended joint criminal enterprise felony murder had been made out.
I respectfully agree with the course adopted by Hoeben JA at the hearing of this appeal of restricting the Crown to reliance on the case as presented at trial, for the reasons given in the judgment of Campbell J.
Merely because I am satisfied that two shots were fired that night from the same weapon, and one of those shots was fired into the home, does not lead ineluctably to the proposition that one must be satisfied beyond reasonable doubt that that weapon had been brought to the home on the evening in question.
The evidence established a number of matters. The first was that a bullet had been fired from the back verandah into the kitchen. The second was that the fatal shot had, almost certainly, been fired in the laundry. The third was that there had been some sort of violence visited upon the deceased, based upon the injuries to his body that went beyond those that could have been caused by a fall, perhaps down the stairs. The fourth is that the deceased had had time to swallow balloons containing drugs very shortly before he died. The fifth is that, based upon the DNA evidence, the two appellants were there, at least at some stage, and had themselves suffered injuries. The sixth is that, at some stage that morning, cash and drugs were robbed or stolen from the upstairs portion of the home of the deceased.
Beyond that, it is difficult to discern with clarity what occurred. As the learned Crown Prosecutor himself said to the jury in his final address "[i]ndeed, every question or every riddle will not be solved in this matter".
Three further arguments were placed before the jury for or against the proposition that the appellants had arrived at the home armed. The Crown submitted that Mr Penza knew that the deceased had access to firearms; that he knew that the deceased would not be averse to using them; and that it would have been a simple matter for Mr Penza to inform his close friend Mr Di Maria of that fact.
In contrast, the defence submitted that the evidence was that, prior to attending at the home of the deceased, the appellants engaged in a lengthy evening drinking session with friends. It was only after that that they attended at the home. It was submitted that those circumstances were more consistent with a spontaneous effort to buy drugs that developed into a spontaneous plan to steal whilst unarmed, rather than a predetermination to rob whilst armed.
Furthermore, the defence submitted that the noisy conduct of the appellants at the scene was hardly consistent with a plan to commit armed robbery. One would hardly expect, it was submitted, the appellants to wish to attract attention to that offence.
Ultimately, I consider that all three aspects have some force, but none of them is determinative.
Taking into account the whole of the evidence, I do not consider that it is reasonably possible that the appellants arrived unarmed, obtained a firearm from the cavity in the laundry, and then confronted the deceased. The process of obtaining a weapon from inside the cavity by demolishing it with a sledgehammer or other implement would simply have been too loud and too lengthy to have permitted that to occur without attracting the attention and intervention of the deceased.
However, I do consider that it is reasonably possible that the firearm that inflicted the fatal injury to the deceased was produced by him at the home, and not brought to the scene by the appellants. It is to be recalled that he was a busy drug dealer who was obsessed with security to the point of sleeping in the bathroom. He was in possession of an arsenal in the downstairs laundry, but to which he did not have ready access because of the method of concealment he had adopted. He was known to possess at least one manually operated weapon. More than one witness gave evidence that he was a man who, when it came to defending the fruits of his illicit labours, would not take a backward step. The proposition that the two appellants would be unlikely to move from a relaxed evening of drinking and watching rugby league on television to an armed robbery of a close relative and friend with a loaded firearm has some force.
In all the circumstances, I consider that it is reasonably possible that the deceased had ready access to a firearm and ammunition in the home that evening. I also consider it reasonably possible that, at some stage, he confronted the appellants with a loaded firearm.
It is quite true that it is not possible to formulate a chain of events founded on that proposition that explains with perfect precision all of the undisputed evidence in the trial. Certainly, it is hard to see what reason the deceased would have had to fire a shot deliberately from the verandah into his own home. Nor, if it be the case that it was the appellants who stole money and drugs from the upstairs part of the home, is it hard to imagine them delaying to do so after a man had been fatally shot in a home in a suburban street. The same may be said about any attack on the cavity in the laundry that took place after the shooting.
There are two answers to that impossibility. The first is that it is not, of course, for the appellants to discharge any onus with regard to this ground.
The second is that it seems to me that the following general hypothesis cannot be excluded beyond reasonable doubt: the deceased became aware of the appellants outside; fearing robbery, he swallowed the drug-filled balloons; he walked out on to the verandah armed with a loaded manually operated firearm and confronted them; a struggle developed between the three of them in that location; a shot was fired in the course of that struggle into the house; the melee moved quickly to the laundry; the weapon was cleared in that location; and the fatal shot was fired, whether by one of the appellants, or the deceased, and whether or not voluntarily or with an intention to kill or inflict grievous bodily harm.
On such a reasonably possible scenario, and recalling the basis upon which the Crown case was presented at trial, an indispensable intermediate fact within that case has not been proven beyond a reasonable doubt. Accordingly the Crown case has not been made out, and the appellants should be acquitted of murder.
Speaking more generally, after having reviewed and reflected upon the whole of the evidence for myself, I am unable to say that I have no reasonable doubt about the correctness of the two convictions.

Conclusion

In short, I am satisfied to the criminal standard that two shots were fired from the same firearm during the fatal incident, and that one of them was fired from outside the home into the home. However, proof of that fact does not of itself establish beyond reasonable doubt that the appellants travelled armed to the scene. I experience a reasonable doubt about that fact. Because of the way in which the trial was run, that means that I have a reasonable doubt about whether the offence of murder has been established. That is a doubt that the jury should have shared. Their advantage in assessing the witnesses giving their evidence in person does not alter that position. That is especially so in light of the fact that the vast majority of the evidence in the Crown case was not disputed, but rather the subject of different interpretations. And the proposition is strengthened by the fact that the jury and I have taken the same approach to the credibility of the evidence of Mr Di Maria.
It is for those reasons that I agree that ground one should be upheld, and that the conviction for murder entered against each appellant should be quashed, and a verdict of acquittal entered with regard to each appellant.
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Case Title:	Penza and Di Maria v Regina
Medium Neutral Citation:	[2013] NSWCCA 21
Hearing Date(s):	29 November 2012
Decision Date:	15 February 2013
Before:	Hoeben JA at [1] S Campbell J at [203] Button J at [227]
Decision:	(1) Leave to appeal granted. (2) Appeal allowed. (3) The verdicts of guilty, entered on 30 July 2009 in respect of both appellants, should be quashed and in lieu thereof there should be entered a verdict of acquittal in favour of both appellants.
Catchwords:	CRIMINAL LAW - conviction appeal - murder - known drug dealer shot in his home - Crown case put on basis of extended joint criminal enterprise and constructive murder - essential part of Crown case that appellants were armed when arrived at deceased's home - Crown case based on circumstantial evidence - whether verdict unreasonable and not able to be supported having regard to the evidence - detailed examination of nature and effect of evidence in Crown case - implicit rejection of evidence of appellants - whether correct direction given to jury in respect of felony murder, i.e. that the act causing death had to be voluntary - whether manslaughter by unlawful and dangerous act should have been left for the jury's consideration - whether trial judge erred by directing the jury that they could engage in consciousness of guilt reasoning - EVIDENCE - whether evidence relied on by Crown to establish consciousness of guilt was admissible - s 137 Evidence Act 1995 - was trial judge obliged to reject evidence pursuant to s 137 if no objection taken - Crown bound by way case put at trial - Crown not entitled to change case on appeal from that presented at trial - Guilty verdicts to be quashed and verdicts of acquittal entered.
Legislation Cited:	Criminal Appeal Act 1912 - ss 5(a), 5(b), 6(1) Criminal Appeal Rules
Cases Cited:	Blackwell v Regina [2011] NSWCCA 93; 208 A Crim 5 392 Carney v R; Cambey v R [2011] NSWCCA 223 Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521 Crampton v The Queen [2000] HCA 60; 206 CLR 161 Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 Edwards v The Queen [1993] HCA 63; 178 CLR 193 FDP v R [2008] NSWCCA 317; 74 NSWLR 645 Fingleton v The Queen (2005) 227 CLR 166 Gillard v R [2003] HCA 64; 219 CLR 1 Griffiths v R [1994] HCA 55; 69 ALJR 77 Hem Chand v R [2011] NSWCCA 53 Knight v R [1992] HCA 56; 175 CLR 495 Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 M v R [1994] HCA 63; 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 Martinez v WA [2007] A Crim R 389 Murray v R [2002] HCA 26; 211 CLR 193 Pemble v The Queen [1971] HCA 20; 124 CLR 107 Plomp v The Queen [1963] HCA 44; 110 CLR 234 R v Abusafiah [1991] NSWCCA 542; 21 NSWLR 531 at 536) R v Ciantar [2006] 16 VR 26 R v Cook [2004] NSWCCA 52 R v Hillier [2007] HCA 13; 228 CLR 618 R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 R v Penza and Di Maria [2010] NSWSC] 16 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 Royall v The Queen [1991] HCA 27; 172 CLR 378 Ryan v R [1967] HCA 2; 121 CLR 205 SKA v R [2011] HCA 13; 243 CLR 400 Shepherd v R [2011] NSWCCA 245 Steve v Regina [2008] NSWCCA 213; (2009) 189 A Crim R 68 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 University of Wollongong v Metwally [No. 2] [1985] HCA 28; 59 ALJR 481 Velevski v The Queen [2002] HCA 4; (2002) 186 ALR 233 at [192],
Category:	Principal judgment
Parties:	Franco Michael Penza - Appellant Joshua Di Maria - Appellant Regina - Respondent Crown
Representation
- Counsel:	Counsel: Mr E Ozen - Appellant Penza Mr T Game SC/Mr S Buchen - Appellant Di Maria
- Solicitors:	Solicitors: Leo Premutico - Appellant Penza B Sandland, Legal Aid NSW - Appellant Di Maria S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s):	2008/20054 2008/20055
Decision Under Appeal
- Before:	Latham J
- Date of Decision:	30 July 2009
- Citation:	R v Penza and Di Maria [2010] NSWSC] 16
- Court File Number(s):	2008/200542008/20055