Perish, Anthony v The Queen; Perish, Andrew v The Queen; Lawton, Matthew v The Queen

[2016] NSWCCA 89

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89

Hearing dates:

8 September 2015; 9 September 2015

Date of orders:

20 May 2016

Decision date:

20 May 2016

Before:

Bathurst CJ; Hoeben CJ at CL; Bellew J

Decision:

Anthony Perish:
(1) Appeal against conviction dismissed.

 

Andrew Perish:
(1) In relation to Grounds 1 and 2 challenging the conviction, we would grant leave to appeal but dismiss the appeal.
(2) In relation to Ground 4 in respect of sentence, we would grant leave to appeal but dismiss the appeal.

 Matthew Lawton:
(1) In respect of Ground 1, appeal against conviction dismissed
(2) In respect of each of Grounds 2, 3 and 4, leave to appeal refused.

Catchwords:

CRIMINAL LAW – appeal – conviction – miscarriage of justice – whether miscarriage resulted from admission of hearsay evidence – whether misdirection as to available use of hearsay evidence – whether miscarriage resulted from joint trial with co-accused – whether misdirection regarding plea of co-accused – whether misdirection as to matters which could be taken into account

 

CRIMINAL LAW – appeal – conviction – evidence – whether hearsay evidence only inadmissible over objection – whether error in admitting credibility evidence – whether verdicts unreasonable or unsupported on evidence

  CRIMINAL LAW – appeal – sentencing – whether manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), s 424A
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Criminal Procedure Act 1986 (NSW), s 21
Evidence Act 1995 (NSW), ss 38, 59, 102, 103, 106, 118, 137, 165(1)(a), 190

Cases Cited:

ARS v The Queen [2011] NSWCCA 266
Atai v The Queen [2014] NSWCCA 210
Burrell v The Queen [2009] NSWCCA 193
Carroll v The Queen [2009] HCA 13; 254 CLR 259
Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74
Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Gilbert v The Queen [2000] HCA 15; 201 CLR 414
Gilham v The Queen [2012] NSWCCA 131; 224 A Crim R 22
Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232
Gray v Ware Building Pty Ltd [2013] NSWCA 271
House v The King [1936] HCA 40; 55 CLR 499
James v The Queen [2014] HCA 6; 253 CLR 475
Lee v The Queen [1998] HCA 60; 195 CLR 524
M v The Queen [1994] HCA 16; 184 CLR 487
MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MFA v The Queen [2002] HCA 53; 213 CLR 606
Pemble v The Queen [1971] HCA 20; 124 CLR 107
Poniris v The Queen [2014] NSWCCA 100
R v FDP [2008] NSWCCA 317; (2009) 74 NSWLR 645
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Kaddour [2005] NSWCCA 303; 156 A Crim R 11
R v Le [2002] NSWCCA 232; 130 A Crim R 44
R v Lyberopoulos [2002] NSWCCA 280
R v Micallef [2002] NSWCCA 480; 136 A Crim R 127
R v Nguyen [2010] HCA 38; 242 CLR 491
R v Pham [2004] NSWCCA 190
R v Reid [1999] NSWCCA 258
R v Spathis [2001] NSWCCA 476
Ross v The Queen [2012] NSWCCA 207
Selstam v McGuinness [2000] NSWCA 29; 49 NSWLR 262
SKA v The Queen [2011] HCA 13; 243 CLR 400
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Velkoski v The Queen [2014] VSCA 141
Walker v Walker [1937] HCA 44; 57 CLR 630
WC v The Queen [2015] NSWCCA 52

Texts Cited:

J D Heydon, Cross on Evidence (10th ed 2015, Lexis Nexis)
Stephen Odgers, Uniform Evidence Law (11th ed 2014, Thomson Reuters)

Category:

Principal judgment

Parties:

Anthony John Perish – Applicant
Andrew Michael Perish – Applicant
Matthew Robert Lawton – Applicant
Regina – Respondent Crown

Representation:

Counsel:
Mr H Dhanji SC/Ms G Lewer – Applicant Anthony John Perish
Mr J Trevallion – Applicant Andrew Michael Perish
Mr P Lange – Applicant Matthew Robert Lawton
Ms S Dowling SC/Mr F Veltro – Respondent Crown

  Solicitors:
Legal Aid NSW – Applicant Anthony John Perish
Archbold Legal – Applicant Andrew Michael Perish
Matouk Joyner Lawyers – Applicant Matthew Robert Lawton
Solicitor for Public Prosecutions – Respondent Crown

File Number(s):

2009/1480022009/1501112009/145260

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2012] NSWSC 355

Date of Decision:

13 April 2012

Before:

Price J

File Number(s):

2009/148002
2009/150111
2009/145260

HEADNOTE

[This headnote is not to be read as part of the judgment]

Anthony Perish (the first appellant), Andrew Perish (the second appellant) and Matthew Lawton (the third appellant) were jointly charged with conspiracy to murder Terrence Falconer (the deceased). The first and third appellants were jointly charged with the murder of the deceased. The first appellant pleaded not guilty to both charges but guilty to manslaughter, a plea that was not accepted by the Crown. The second and third appellants pleaded not guilty to all charges.

It was the Crown case that the first and second appellants, who were brothers, believed the deceased had murdered their grandparents. The Crown argued that the appellants planned and coordinated the abduction and murder of the deceased, who was on work release from Silverwater prison. The abduction was performed by three men including Witness E. Witness E’s car had been altered with wheels provided by the third appellant to give it the appearance of a detective’s car. The abductors, dressed as police officers, then purported to arrest the deceased. The deceased was handcuffed, subdued with chloroform or a similar agent, placed in a metal box and transferred to another van.

Witness E then drove the deceased, unconscious in the metal box, to the first appellant’s residence in Turramurra where the first and third appellants were waiting. There was conflicting evidence as to whether the deceased was alive when he arrived at Turramurra. It was submitted by the first appellant that his intention in directing the kidnapping of the deceased was to interrogate him and thereafter return him to prison. He submitted that the deceased was already dead when they opened the box at Turramurra. In a recorded interview with police, Witness E claimed the deceased was still alive when they reached Turramurra, that he attempted to get out of the box and that the first appellant slammed his head back down and shut the lid. At trial, Witness E claimed to not remember many of the key events but appeared to remember the deceased coughing in the back of the van when they arrived at Turramurra.

After a number of unfavourable responses to questions regarding what was said in the recorded interview, Witness E was determined to be an unfavourable Crown witness and, after consultation between the parties, an edited transcript of the recorded interview was admitted into evidence (Ex AA).

There was evidence that Witness E had given different accounts to different people, claiming that he was responsible for killing the deceased. Witness E claimed the reason for these different accounts was “because then if someone goes bad you can tell who”.

At trial, Witness C gave evidence that Witness E told him he was concerned that he was going to be in trouble with the first appellant because the deceased had died before he got to him but “[the first appellant] said that it didn’t matter, that’s how he would have ended up anyway”. No objection was made to this statement by trial counsel for the first appellant. In an affidavit filed by the first appellant, trial counsel for the first appellant indicated that she had not objected to the evidence as she wished to have the initial representation, that the deceased had died before they got to the first appellant, admitted into evidence and believed this could not happen if she objected to the latter representation.

It was common ground that after meeting at Turramurra, the first and third appellant and Witness E drove with the box to a property at Girvan, to which the first appellant had access. There they dismembered the body of the deceased using saw blades, packaged the body parts in plastic bags wrapped in chicken wire and disposed of the bags in the Hastings River. Witness E gave evidence that there were three plastic body suits available to be worn during the dismembering, plastic floor sheeting, a block and tackle to suspend the body and chemicals to clean the floor.

It was the Crown case that the appellants had initially made plans to dump the body parts at sea. This was derived from the evidence of Witness A, a member of the Rebels Outlaw Motorcycle Club (the Rebels), of which the second appellant was also a member. His evidence was obtained across a number of meetings with police, often in situations where the detectives could not take notes. He stated that he was approached at his home by the third appellant’s wife who handed him $1000 and told him to attend a dinner with the first appellant. A few days later, he was picked up by the second appellant and driven to dinner in Newtown. Present at the dinner were the first and second appellant. The first appellant proposed that he would pay for repairs to Witness A’s boat so that it could be used to dispose of human remains beyond the Continental Shelf. The first appellant told Witness A he would be waiting at a wharf in the Central Coast with eskys containing the body parts. The second appellant dropped Witness A home, gave him $2000 for boat repairs and told him a phone would be dropped to him the following day.

Witness A stated that he put the boat in for repairs the following morning. A receipt indicated that it was put in on 12 October 2001 yet phone records indicated that contact between Witness A and the second appellant began on 9 October 2001. A few days after the dinner, Witness A claimed the third appellant delivered a phone to him registered in the name McDowell (the McDowell phone) and told him it was from the first appellant.

Around a week after the dinner, Witness A stated that he travelled to Newcastle and the Salamander Bay area for reconnaissance with Witness F, his girlfriend at the time. Phone records from Witness A’s personal phones and a receipt from the Salamander Shores Hotel indicated he stayed there on 31 October 2001.

Witness A stated that he saw the second appellant on a number of occasions when he arranged for money to be given to Witness A for repairs and expenses. Witness A claimed he saw the first and third appellants on three to four occasions when they visited him at his home to check on the progress of the boat. He claimed that he recorded each of these visits on security cameras but that Witness F had accidentally taped over all but one. On the second last visit, Witness A stated that the first appellant showed him a police document revealing the deceased was prepared to give evidence against the Rebels. On the last visit, of which Witness A still had a recording, albeit without audio, Witness A claimed that the first appellant had told him to hurry up because “this cunt goes Friday regardless”.

Witness A gave evidence that he never intended on following through with the plan. After the final meeting, there was no further conversation between Witness A and the appellants and the McDowell phone was turned off. Phone records indicated that the second appellant attempted to call Witness A’s personal phone on the Wednesday and Thursday before the murder, which occurred on a Friday. The records could not establish if there was any attempt to contact the McDowell phone.

Witness F did not recall Witness A being handed the $1000 by the third appellant’s wife or taping over Witness A’s security tapes. She denied travelling with Witness A to Newcastle and Salamander Bay.

Witness A indicated that when he was approached by police he was in a state of hyper-vigilance and feared for his life as he had given evidence against the Rebels and had been stabbed 7 times when in custody in Lithgow gaol. While giving evidence to police he reported a number of bizarre incidents indicating paranoia.

Witness A agreed to speak to the second appellant while wearing a listening device. On one occasion he said “I need to know that fuckin’ piece of paper you showed me about Terry Falconer is gone because it’s got my fuckin’ prints on it”, referring to the document the first appellant had shown him on the second last visit. The second appellant had answered “It’s gone mate, don’t worry”. On another occasion, the recording was affected by background noise of which Witness A was not aware. He gave evidence that the second appellant said “nobody knows we done it”. This was not audible on the recording. On a further occasion Witness A said “Remember the conversation we had? … And you said nobody knows who done it?” the second appellant said “Yeah” and Witness A said “Fuckin’ everybody knows who done it”.

Witness B, a relative of the first and second appellant, gave evidence that the first appellant told him “we killed [the deceased] at [Witness E’s] mother’s property up the coast”. He also gave evidence that the first appellant said to the second appellant “this cunt’s been talking” and tapped the side of his nose. Witness B did not know that Witness A’s nickname was “Nosey”.

The trial judge gave warnings to the jury that Witness A and Witness E’s evidence should be scrutinised with care and was potentially unreliable by reason of them having been criminally involved in the matters about which they gave evidence.

The issues on appeal were:

First Appellant

1.   Whether a miscarriage of justice was occasioned by the admission of the evidence of Witness C that Witness E told him that the first appellant said “it didn’t matter [that the deceased had died before he got to the first appellant as] that’s how he would have ended up anyway” (the second hand hearsay evidence);

2.   Whether the trial judge erred in directing the jury with respect to the second hand hearsay evidence such that the evidence was available to the jury as evidence of an admission by the first appellant;

3.   Whether the verdicts of the jury were unreasonable or could not be supported by the evidence where there was reasonable doubt as to whether the deceased was alive upon reaching Turramurra and otherwise rested significantly on the evidence of Witness A.

Second Appellant

1.   Whether the verdicts of the jury were unreasonable or could not be supported on the evidence where the verdict against the second appellant rested mainly on the evidence of Witness A;

2.   Whether a miscarriage of justice occurred as a result of the second appellant being tried together with his co-accused;

3.   Whether the sentence imposed was manifestly excessive.

Third Appellant

1.   Whether the verdicts of the jury were unreasonable and could not be supported by the evidence where the conclusion that the third appellant had any knowledge of the conspiracy prior to the deceased’s arrival at Turramurra rested on the evidence of Witnesses A and E;

2.   Whether a miscarriage of justice arose in circumstances where the trial judge directed the jury that the first appellant had offered to plead guilty to the offence of manslaughter where that plea was inadmissible against the third appellant;

3. Whether the trial judge erred in admitting Ex AA where the substance of Ex AA had not been put to Witness E in accordance with the prerequisites of s 106 of the Evidence Act 1995 (NSW) (Evidence Act);

4.   Whether the trial judge erred in directing the jury that it could take into account evidence of Witness A being given money by the second appellant as evidence of the third appellant’s participation in the charged conspiracy.

The Court held (Bathurst CJ, Hoeben CJ at CL and Bellew J) dismissing the appeal:

First appellant

Admission of second hand hearsay evidence

(i)   In circumstances where trial counsel made a conscious decision not to object to the evidence and there was, objectively speaking, a rational basis for not objecting to the evidence, admission of the evidence did not mean the first appellant lost the chance of an acquittal fairly open to him: [254]-[259] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

TKWJ v The Queen [2002] HCA 46; 212 CLR 124 applied

(ii)   Even if it could not be said that the decision not to object to the evidence was a rational forensic decision, the first appellant did not in fact lose a real chance of acquittal where the Crown did not place reliance on the evidence complained of, where there was a caution about its use and where both parties contended the witness was unreliable: [274]-[277] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

ARS v The Queen [2011] NSWCCA 266; Poniris v The Queen [2014] NSWCCA 100 applied

Trial judge’s direction regarding the second hand hearsay evidence

(iii)   There is a consistent, although not uncontroversial, line of authority that the words “not admissible” mean “not admissible over objection”. That construction is not plainly wrong: [261]-[269] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

R v Reid [1999] NSWCCA 258; R v Spathis [2001] NSWCCA 476; R v Lyberopoulos [2002] NSWCCA 280; R v Kaddour [2005] NSWCCA 303; 156 A Crim R 11; Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232; WC v The Queen [2015] NSWCCA 52; Selstam v McGuinness [2000] NSWCA 29; 49 NSWLR 262; Gray v Ware Building Pty Ltd [2013] NSWCA 271; Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 applied

Velkoski v The Queen [2014] VSCA 141 considered

Walker v Walker [1937] HCA 44; 57 CLR 630 distinguished

(iv)   The construction of “not admissible” meaning “not admissible over objection” is consistent with the adversarial nature of a trial: [268], [270]-[271] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 applied

(v)   The effect of the supported construction is ameliorated by the fact that the trial judge retains his or her overriding obligation to ensure a fair trial according to law and would thus have an obligation to exclude inadmissible evidence or direct a jury not to take account of a particular piece of evidence if it would otherwise deny a fair trial: [272] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Pemble v The Queen [1971] HCA 20; 124 CLR 107; James v The Queen [2014] HCA 6; 253 CLR 475 applied

(vi)   Even if the trial judge’s direction was erroneous, the first appellant did not in fact lose a real chance of acquittal where the Crown did not place reliance on the evidence complained of, where there was a caution about its use and where both parties contended the witness was unreliable: [274]-[277] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

ARS v The Queen [2011] NSWCCA 266; Poniris v The Queen [2014] NSWCCA 100 applied

Unreasonable verdict

(vii)   Where a verdict is challenged as unreasonable, the appellate court is required to make its own independent assessment of the evidence. The verdict should be set aside only if the Court is still in doubt after taking into account the primary responsibility of the jury and its benefit of having seen and heard the evidence: [327] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

SKA v The Queen [2011] HCA 13; 243 CLR 400; M v The Queen [1994] HCA 16; 184 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606 applied

(viii)   It was not unreasonable for the jury to believe the evidence of Witness A where his evidence of what was proposed bore a marked similarity to what in fact occurred and to reject the hypothesis that Witness A had discovered this information from other sources and weaved it into his story: [330] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

(ix)   Whether Witness A’s testimony was put in doubt by his paranoid behaviour was a matter particularly for the jury who saw and heard his testimony: [331] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

(x)   The objective evidence did not undermine Witness A’s testimony such that there was reasonable doubt regarding the key elements of his testimony: [332], [334] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

(xi)   Even if the jury rejected the evidence of Witness E in some respects, namely whether the deceased was alive upon reaching Turramurra, it was open for the jury to accept his evidence in other respects, in particular the material that was available to dismember the body at the Girvan property, which supported an intention to murder the deceased: [336] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Second appellant

Unreasonable verdict

(xii)   When considering whether a verdict is unreasonable, the question for the Court is whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in the circumstances to let the verdict of guilty stand, or put another way, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: [350] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

M v The Queen [1994] HCA 16; 184 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; R v Nguyen [2010] HCA 38; 242 CLR 491; SKA v The Queen [2011] HCA 13; 243 CLR 400 applied

(xiii)   Where a verdict is challenged as unreasonable on the basis of the credibility of a witness, the Court must be acutely conscious of the advantage of the jury in seeing and hearing the evidence the witness gave: [351], [354] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Atai v The Queen [2014] NSWCCA 210; MFA v The Queen [2002] HCA 53; 213 CLR 606 applied

(xiv)   Tortuous reasoning in order to explain every individual circumstance as being consistent with innocence should not be engaged in: [352] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

R v Micallef [2002] NSWCCA 480; 136 A Crim R 127; Burrell v The Queen [2009] NSWCCA 193 applied

(xv)   In circumstances where Witness A came under sustained cross-examination on each of the bases identified on the appeal, where his evidence was independently supported by extrinsic evidence, where the trial judge gave the jury all the warnings required by law and where discrepancies between his evidence to police and at trial were explicable, it was open to the jury to accept the evidence of Witness A: [355]-[368], [372]-[375] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

(xvi)   Despite criticisms that Witness A exhibited paranoid behaviour, there were justifiable reasons for this and no indication of mental instability at the time of the trial. In those circumstances it was open to the jury to accept his evidence: [369]-[371] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Joint trial

(xvii)   No miscarriage of justice occurred where much of the evidence against the co-accused was necessary to establish the context in which the second appellant’s participation in the conspiracy occurred. This factual matrix could not be dealt with by an agreed statement of facts where much of the evidence was controversial: [389]-[391] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

(xviii)   Where the risk of inconsistent verdicts, inconvenience to witnesses and substantial delay is high, there is clear public interest in conducting a joint trial which is to be given weight in assessing whether there was a miscarriage of justice: [388], [391], [397] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Ross v The Queen [2012] NSWCCA 207 applied

(xix)   Where the evidence that could not be used against the second appellant, namely the admission by the first appellant to Witness B, was readily severable from the rest of the evidence and comprised a very small part of the evidence at trial, any prejudice was easily overcome by directions to the jury: [393]-[394], [396]-[397] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

R v Pham [2004] NSWCCA 190 distinguished

Gilbert v The Queen [2000] HCA 15; 201 CLR 414 applied

Manifestly excessive sentence

(xx)   In order for the second appellant to show that his sentence was manifestly excessive, it was necessary for him to show that the sentence was unreasonable or plainly unjust. It was not sufficient that the appellate court would have exercised its discretion differently: [411] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Markarian v The Queen [2005] HCA 25; 228 CLR 357; Carroll v The Queen [2009] HCA 13; 254 CLR 259 applied

(xxi)   The sentence was not manifestly excessive where the second appellant’s role in the conspiracy was not found to be minimal. He was a committed and knowing participant in the conspiracy up until the day before the murder. The fact that the second appellant did not play an active role in the murder did not reduce his culpability for the conspiracy offence, rather it affected the charge brought against him: [412]-[414] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Third appellant

Unreasonable verdict

(xxii)   Where the case against the third appellant was circumstantial, concentration on certain parts of the evidence to the exclusion of others was erroneous. When analysed as a whole, there were a number of circumstances that supported the conclusion that the third appellant was involved in the criminal enterprise not only after the death of the deceased but in the preparations leading up to it: [426]-[442] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Directions regarding the first appellant’s plea

(xxiii)   There was no misdirection where the trial judge made it clear to the jury that, in determining the case against the third appellant, it was necessary to consider (a) the existence of the joint criminal enterprise and (b) the third appellant’s participation in it and that it was imperative to consider the cases against each of the appellants separately by reference only to the evidence properly admissible against each of the appellants: [452]-[454] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

(xxiv)   To show that the direction regarding the first appellant’s plea led to a miscarriage of justice, it would be necessary to show that there was reasonable doubt as to the substance of that plea, namely that the first appellant was involved in the kidnapping of the deceased: [455] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Admissibility of Ex AA

(xxv) As Ex AA was admitted without objection, it was admissible irrespective of the provisions of s 106 of the Evidence Act: [475]-[478] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

WC v The Queen [2015] NSWCCA 52 applied

(xxvi) In any event, s 106 does not require the adoption of a mechanistic approach in which each and every proposition contained in the evidence is put to the witness. The substance of the evidence was put to the witness such as to satisfy s 106 of the Evidence Act: [479]-[480] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Direction regarding matters which could be taken into account

(xxvii)   Evidence which did not directly implicate the third appellant was nevertheless available to prove the nature and scope of the conspiracy: [489] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

(xxviii)   When taken in the context of the summing up as a whole there was no misdirection, particularly where the trial judge repeatedly reminded the jury of the requirement to consider the case against each appellant separately, set out the matters specifically relied upon by the Crown to establish the third appellant’s participation in the conspiracy and directed the jury that establishing the existence of the conspiracy was separate from establishing the third appellant’s participation in it: [490]-[497] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

Judgment

1. THE COURT:

Offences and sentence

Anthony Perish and Matthew Lawton were jointly charged that:

1. On or about 16 November 2001 at Sydney in the State of NSW they did murder Terrence Falconer.

Anthony Perish, Matthew Lawton and Andrew Perish were jointly charged that:

2. Between 1 January 2001 and 17 November 2001 at Sydney in the State of NSW they did conspire to murder Terrence Falconer.

2. In relation to the first count, Anthony Perish pleaded not guilty to murder but guilty to manslaughter. That plea was not accepted by the Crown. He and the other applicants pleaded not guilty to the second count. Matthew Lawton pleaded not guilty to the first count.

3. The matter came before the Supreme Court on 31 January 2011 before Price J. On 17 February 2011 it was adjourned as a result of the publication of prejudicial material regarding the trial. The matter came before the Court again for trial on 4 July 2011. The trial proceeded until it was aborted on 25 July 2011.

4. A new trial began on 27 July 2011. The jury retired to consider its verdicts on 5 September 2011 and on 13 September the jury indicated that they were unable to reach a unanimous verdict. A Black direction was given and the jury returned that day with verdicts of guilty to murder and conspiracy to murder against Anthony Perish. A verdict of guilty of murder was returned against Matthew Lawton. A verdict of guilty of conspiracy to murder was returned against Andrew Perish. A verdict of guilty to conspiracy to murder was returned against Matthew Lawton on 14 September 2011.

5. The applicants were sentenced as follows:

Anthony Perish

For the offence of murder – imprisonment with a non-parole period of 18 years commencing 19 March 2009 and expiring 18 March 2027 with a balance of term of 6 years, expiring 18 March 2033.

For the offence of conspiracy to murder – imprisonment with a non-parole period of 10 years and 6 months commencing 19 March 2009 and expiring 18 September 2019 with a balance of term of 3 ½ years, expiring 18 March 2023.

Andrew Perish

For the offence of conspiracy to murder – imprisonment with a non-parole period of 9 years commencing 4 October 2010 and expiring 3 October 2019 with a balance of term of 3 years, expiring 3 October 2022.

Matthew Lawton

For the offence of murder – imprisonment with a non-parole period of 15 years commencing 27 January 2009 and expiring 26 January 2024 with a balance of term of 5 years, expiring 26 January 2029.

For the offence of conspiracy to murder – imprisonment with a non-parole period of 7 years and 6 months commencing 27 January 2009 and expiring 26 July 2016 with a balance of term of 2 ½ years, expiring 26 January 2019.

Crown case and overview of evidence

6. Anthony Perish and Andrew Perish believed Terrence Falconer (the deceased) murdered their grandparents. They also believed that the deceased was a police informer. To exact revenge, they directed the abduction of the deceased on 16 November 2001. At the time, the deceased was an inmate of Silverwater Prison and had been granted work release which allowed him to leave gaol and travel by train to a smash repair business at Ingleburn.

7. Evidence of the events, the subject of the charges, was primarily given by witnesses who were criminally involved. A number of these witnesses were identified by pseudonyms – “Witness A” through to “Witness H”.

8. On 16 November 2001 three men, Witness E, Witness H and Craig Bottin (Bottin) attended the smash repair business at Ingleburn where the deceased was working. They impersonated police officers and purported to arrest the deceased, handcuffing him and placing him in Witness E’s vehicle. The wheels of the vehicle had been modified so as to appear consistent with an undercover police vehicle. The vehicle was driven to a nearby location during the course of which the deceased was subdued using Chloroform or some other agent.

9. Upon reaching that location (referred to at trial as “the grassy embankment”) the deceased was transferred unconscious from Witness E’s vehicle to a metal box and placed in a van. Witness E then drove the deceased in the metal box from that location to Anthony Perish’s residence in North Turramurra. It was not clear whether the deceased was dead by the time he arrived at Turramurra. Witness E said that he was met by Anthony Perish on his arrival at the residence at North Turramurra. He said that the metal box was opened and the deceased attempted to get up. He said that he and Anthony Perish assaulted the deceased and the box was closed again.

10. Witness E, Anthony Perish and Matthew Lawton, using two separate vehicles, drove with the box from North Turramurra to a property at Girvan to which Anthony Perish had access. By that time, the deceased was dead. The van was never located. At Girvan the body of the deceased was dismembered using saws and wrapped up for disposal.

11. It was the Crown case that preparations had been made in advance to destroy the deceased’s corpse. A block and tackle was ready from which to suspend the body. Plastic sheeting was available and rolled out to cover the floor. Saws and other tools were on hand and chemicals were ready to clean the crime scene. Anthony Perish, Matthew Lawton and Witness E then cut up the deceased’s body and parcelled it into seven separate packages which were wrapped in chicken wire and weighted with stones.

12. It was the Crown case that Anthony Perish and Andrew Perish had initially made plans to dump the body parts at sea. When those plans were frustrated, Anthony Perish disposed of the remains in the Hastings River. Six of the seven parcels washed ashore in various places along the Hastings River. The human remains in the packages were examined and sufficient fingerprint detail was found to identify the remains as those of the deceased. Some time later a resident living near the Hastings River found another package wrapped in blue plastic and bound using wire and duct tape. That package also contained human remains, later identified as belonging to the deceased.

13. The Crown case was that Anthony Perish, seeking vengeance, meticulously planned and co-ordinated the kidnapping and murder of the deceased. The Crown case was that irrespective of when and how the deceased died, Anthony Perish was guilty of his murder because he always intended that the deceased would die. The Crown relied on evidence of motive, means and opportunity given by three participants in the conspiracy to abduct and murder the deceased. The Crown also relied upon an admission subsequently made by Anthony Perish to a family member that “we killed him … killed Falconer” and forensic evidence from the North Coast crime scene.

14. At trial Anthony Perish accepted that he was responsible for some of the acts of Witness E. He admitted that he was part of a joint criminal enterprise to abduct the deceased. He asserted that the plan was only to abduct and question the deceased. He agreed that he foresaw the possibility that Witness E might use force resulting in the infliction of injury to the deceased that ultimately caused his death.

Factual background in further detail

15. On 16 June 1993 the grandparents of Anthony and Andrew Perish were found murdered in their home at Leppington. There was evidence that Andrew Perish became extremely upset when he arrived at the home, screaming and crying. Despite inquests in 1997 and 2002, the murders remain unsolved. A number of people were considered as potential suspects: their son, Albert; their daughter, Elana; a solicitor named Justin Birk Hill; their granddaughter, Colleen; and a woman called Wendy Stott.

16. The first time the deceased’s name was raised was on 15 March 2004 when an anonymous caller telephoned Burwood Police Station and claimed to a detective that the deceased had murdered the Perish grandparents. There was other evidence that the deceased had some involvement in the deaths. Police also received information that Robert Institoris and Witness A, who were both from the Rebels Motorcycle Club, had nominated the deceased as having been involved.

17. The police position in early 2001 was that there were rumours that the deceased was involved in the murder of the grandparents but there was no hard evidence. In early 2001 Anthony Perish recruited Witness E to investigate the murder of his grandparents.

18. Witness B had married into the Perish family. His brother-in-law was a serving NSW police officer. In March 2001 he had dinner with Anthony Perish who asked him to obtain some police uniforms for him. He did not ask Anthony Perish why and Anthony Perish did not tell him. Anthony Perish had not made such a request previously. About a month later Anthony Perish asked Witness B whether he had approached his brother-in-law about the police uniforms to which Witness B responded “Yeah, but he wouldn’t do it”. In fact Witness B never made the request to his brother-in-law.

19. Detective Inspector Bryne Ruse was a member of the strike force investigating the murder of the Perish grandparents. He was approached by Andrew Perish in June 2001 about the investigation. Thereafter he spoke to Andrew Perish on a number of occasions during which Andrew Perish expressed dissatisfaction with the investigation and suggested that there might have been a cover up by the police. Andrew Perish told Inspector Ruse that he had received information that the deceased admitted to two employees of a motor vehicle wrecker in Sydney that he had murdered the grandparents. Inspector Ruse spoke to the deceased’s wife, who claimed to have some information from her daughter’s boyfriend, Robert Institoris, that the deceased was involved in the murder of the grandparents. When Inspector Ruse spoke to the deceased, who was then in gaol, he denied the allegation and said that his wife wanted to keep him in gaol so that she could steal from him and that they were involved in a property dispute.

20. The deceased’s former wife gave evidence that in the 12 months before his death she and the deceased were estranged. Her evidence was as follows. In 1996 the deceased gave her his brief of evidence which set out the assistance which he was prepared to give to police in respect of the Rebels Motorcycle Club and their drug activities. In 2001 she showed that document to a number of people, including Andrew Perish. She did this because the deceased was putting it around that she was informing on the Rebels. When she showed the document to Andrew Perish, he appeared to read it. She did not think he took it with him.

21. In cross-examination she agreed that when she gave evidence before the Crime Commission in 2002, she had said nothing about speaking to Andrew Perish at this time. She had lied to the Crime Commission because she did not want to bring Andrew into it and did not want him to think that she was an informer. She did not tell the police about meeting with Andrew Perish until November 2006.

Witness A

22. Witness A had a nickname “Nosey”. Except where otherwise indicated, the following evidence was given by Witness A. He was a member of the Rebels Motorcycle Club and had been since 1991. Andrew Perish had become a member of the Rebels Motorcycle Club some time after him. Anthony Perish was not a member of the Club but was associated with it.

23. In October 2001 a woman named Denise (Matthew Lawton’s wife) arrived at the home he shared with his then girlfriend (Witness F). Denise told him “I got a message from our mate”. When Witness A said “Who?”, she said “Rooster” which was a nickname of Anthony Perish. She handed Witness A $1,000 and told him to buy some decent clothes to wear out to dinner. She said that Andrew Perish would come and see him in a couple of days. Her arrival on that day was unexpected.

24. Witness F gave evidence at trial. At the time she gave evidence she was experiencing health problems and was taking a number of medications that slowed her down and adversely affected her memory. She had been in a relationship with Witness A ten years before, for about two years. When she gave her statement to police in 2009, she did not have medical problems and her memory was better. She knew Denise, who had visited her on a couple of occasions. In cross-examination she said that Witness A had not told her that Denise had given money to him. She had no knowledge of Denise delivering money to him.

25. Between two and four days later Andrew Perish arrived in the morning in a maroon and grey Toyota Surf motor vehicle. He said that he would return around 7pm because they were going to dinner with “our mate”. A Roads and Traffic Authority certificate of registration confirmed that a maroon Toyota Surf motor vehicle WPE 089 was registered in the name of Andrew Perish at that time. Andrew Perish returned that evening at around 7pm and drove Witness A to a suburb that he said was Newtown. After they met Anthony Perish, the three men went to a restaurant and had dinner.

26. During the dinner Anthony Perish said “So Nosey, what can you do for the company?” Witness A said, “What would the company have me do for them?”. Anthony Perish said, “You’ve got a boat?” Witness A said that he did but it needed repairs. Anthony Perish said “If the boat was fixed, would it make it out to the shelf and back?”. Witness A told him that it would and that he would be able to captain it. Witness A took “the shelf” to mean the Continental Shelf. There was a discussion about the cost of repairs and Anthony Perish asked whether if he gave Witness A a couple of grand tomorrow, he would put the boat in to be fixed. Witness A said that he would. Andrew Perish was present during the entire conversation.

22. Anthony then asked Andrew if he [Andrew] could give Witness A the couple of grand on the way home and Andrew said he could. Anthony Perish said to Witness A, “I want you to put the boat in – come up the Karuah River to Bulahdelah. There’s a wharf up there. Come up to the wharf and I’ll be waiting for you just like a fisherman with a couple of eskys because the cunt might be in a few pieces.” Witness A said that there would be people everywhere and Anthony said “Mate, nobody will know any different, we’ll just look like a couple of fisherman going out for a day’s fishing”. Witness A asked who it was that would be killed and Anthony said “Don’t worry, it’s no-one in the club”. Witness A said “Who is the cunt?” and Anthony said, “Don’t worry, it’s not you”.

23. Anthony Perish told Witness A that he would be paid $20,000 for the job. Witness A did not say anything but “Just looked at him” and Anthony sat back in his chair and said, “Tell you what, I’ll pay you thirty grand”. Witness A said “Half up front and half when the job’s done” and Anthony said “No, no, no, I don’t work like that”. Witness A said “Well you pay me half up front and I’ll incur the expenses”. Anthony said “No, I don’t work like that. We’ll give you money for your expenses”. Anthony Perish told Witness A that someone would drop off a mobile phone to him the next day. He mentioned a name but Witness A did not recognise it. He asked who it was and Anthony said it was the same person that drove the truck down to Adelaide when Witness A and his then partner Nicole moved to Adelaide.

24. Exhibit E was a large laminated map showing areas of the Central Coast, including Bulahdelah and Girvan and numbered photographs of boat ramps along the river systems. Anthony Perish had access to a property at 158 Brooks Road, Girvan where the deceased was dismembered. Girvan is approximately 10 kms from the Karuah River and 20 kms from Bulahdelah.

25. Witness A had met the deceased once in his life in 1999 in the visitors’ section of the Remand Centre at Long Bay when they were both in custody. Witness A knew him by face and knew that he was in another bike club. They said hello and spoke about the deceased’s daughter going out with Rob Institoris whom Witness A knew was in the Rebels Motorcycle Club. The topic turned to the Perish family and Witness A said, “I heard you killed the Perish grandparents”. The deceased said, “Yeah, I heard that one too”.

26. During the dinner with Anthony and Andrew Perish, Anthony told Witness A that he knew that the deceased had told him while they were in gaol that he had killed the grandparents. Witness A responded that he had a mobile phone in gaol and that if he had been given that information, Anthony would have known straight away. Anthony thought about it for a minute and said “Yeah, I guess”. Witness A asked who had told him this and Anthony said “We got a phone call from Liz (the deceased’s wife); it was she who said it”. (When asked in the year 2001 whether he had had any contact, either direct or indirect, with the deceased’s wife Witness A answered “Never met the woman, no”.)

27. During small talk at the restaurant the name “Perry” was mentioned. Witness A asked Anthony Perish “Do you still see Perry?” to which Anthony replied “No, I don’t like the cunt any more”. When the three men left the restaurant Witness A accompanied Andrew Perish to his home where Andrew gave him $2,000 in cash for the repairs to the boat. Andrew Perish then drove Witness A home.

28. The following morning Witness A took his boat to Marine Scene at Campbelltown for repairs. Exhibit S was the service repair order from Marine Scene showing that the boat was received for repair on 12 October 2001 and a deposit paid on 19 October 2001. Witness A was subsequently advised that the cost of replacing one of the motors would be about $4,000 in addition to the $2,000 he had been given after dinner. After he received the quote, he contacted Andrew Perish who said “Just get it done” and agreed to pay the necessary amount. Andrew Perish provided further funding during October in order for the boat to be seaworthy.

29. Telephone records established various contacts between Witness A and Andrew Perish during October 2001. On 9 October 2001 Witness A’s phone, Mobile 1, called Andrew Perish’s phone four times between 3.12.59 and 3.14.28 but the calls were diverted. One call at 3.20.39 was answered and there was a conversation for 88 seconds. On the same date, Witness A’s phone, Mobile 2, called Andrew Perish’s phone at 14.08.38, 14.33.01 and 18.57.12 and those calls were diverted. Mobile 2 sent a text message to Andrew Perish’s phone at 18.58.39. On 10 October 2001 Andrew Perish phoned Witness A’s Mobile 1 at 1.05.36 and that call was diverted. At 1.06.23 Andrew Perish phoned Witness A’s Mobile 2 and that call was also diverted. On 11 October 2001 Mobile 2 rang Andrew Perish at 21.11.49 and that call was diverted. On 12 October 2001 Mobile 2 rang Andrew Perish at 15.15.02 and that call was diverted. On 25 October 2001 there was a Mobile 2 text message to Andrew Perish. On 26 October 2001 there was a Mobile 2 text message to Andrew Perish and two calls to him. There were two text messages from Andrew Perish to Mobile 2 on that day. On 27 October 2001 there was a Mobile 2 text message to Andrew Perish. On 28 October 2001 there were three Mobile 2 texts to Andrew Perish and one call. There were four texts from Andrew Perish to Mobile 2 and one call to Mobile 2.

30. A few days after the meeting at the restaurant, Matthew Lawton arrived at Witness A’s home in a white EL utility Ford and gave him a mobile phone. He told Witness A “This is the phone from Steve” (Steve was one of the nicknames of Anthony Perish). Witness A said “Who?” and he said, “Rooster”. He also said “Keep it on and charged and don’t use it for anything other than contacting each other”. At that time, Witness A did not know Matthew Lawton’s name but recognised him as the man who had driven him to Adelaide. The phone handset was a Motorola Talkabout model and came with a prepaid Optus SIM card, subscribed in the name “McDowell”.

31. Witness F said that Witness A did not tell her about a man delivering a mobile phone to him. Witness A did not tell police until his ninth meeting with them on 4 October 2002 that it was Matthew Lawton who had delivered the mobile phone to him. The mobile phone in the name of John McDowell was activated on 29 October 2001 at 14.52.42. On 29 October 2001 at 9.22.15 Andrew Perish rang Witness A’s Mobile 2 and spoke for 30 seconds. Following the activation of the McDowell mobile, the Andrew Perish number did not initiate contact with Mobile 1 or Mobile 2 until 14 November 2001.

32. Although Matthew Lawton gave Witness A instructions not to use the McDowell phone to contact anyone other than Anthony and Andrew Perish, Witness A did not follow those instructions and used the phone to call Marine Scene, his home phone and possibly other numbers. He did this so as to “leave a traceable trail” because he had no intention of carrying out the job. At this time he believed that he was either being set up or lined up to be killed himself.

33. Whereas phone records for the McDowell phone could record outward calls, there were no charge records recording incoming calls for the McDowell phone.

34. Subsequent to the dinner meeting, Anthony Perish came to Witness A’s home on three or four occasions. On the first occasion between 6 and 10 days after the boat was taken to Marine Scene for repairs, Anthony Perish and Matthew Lawton visited Witness A to check on the progress of the boat. Matthew Lawton was driving the same white EL Ford utility as when he delivered the phone. Witness A was not expecting them so when they arrived he started recording from the security camera which he had installed just after the phone was dropped off. To the best of his recollection, they had a conversation next to the car, near the front door of his house. Matthew Lawton was present during the discussion between Witness A and Anthony Perish in respect of the progress of the repairs to the boat. Witness F knew that Witness A had a security camera on the gate, but had never seen any of the videos he made of people coming to see him. She did not recall accidentally taping over any videos of people coming to see him, nor that he was angry that she had taped over the videos. Witness A gave evidence that the reason why he did not have a video of each visit to him by Anthony Perish was because Witness F had accidentally taped over those videos.

35. Possibly within a week of the dinner with Anthony and Andrew Perish, Witness A took a trip to Newcastle with Witness F. His destination was Salamander Bay because it had a boat ramp next to the pub that was not too close or too far away from Bulahdelah. On the way he stopped at the Waterways office in Newcastle and requested a duplicate set of papers for the boat which was registered in Witness F’s name. He also picked up four maps of the surrounding waterways and areas of Newcastle, Salamander Bay and Myall Lakes. He attended the Newcastle Waterways office to assist him in leaving a trail. He believed that the boat was still at Marine Scene being worked on at this time. He did not take the boat with him.

36. Witness F said that at the time she and Witness A separated just before Christmas 2001, they had plans to go away in the boat, up near Newcastle. Witness A had taken the trip. She did not know if he had gone alone but she knew he had met a woman up there. She did not remember taking an overnight trip with him in the months leading up to their separation. The only occasion that she could remember them being on the boat was on the Nepean River at Penrith. She had never been to Soldiers Point, Soldiers Bay or Salamander Bay on the Central Coast.

37. Witness F said that Witness A went “to see a bloke that lived by himself on an island. Around this time he did go up to the Newcastle area with the boat and a girl called Annie from Minchinbury on a holiday”. Witness F did not go because they had been having arguments. Witness A was still living with her at the time he took the trip with Annie. Witness F did not recall the boat being away from the house for a couple of weeks to be repaired.

38. After the stop at the Waterways office in Newcastle, he and Witness F continued up to Salamander Bay. They stayed overnight at the Salamander Shores Hotel. Exhibit R was the receipt from the Salamander Shores Hotel dated 31 October 2001. They returned to Sydney the next day. During that period of traveling and staying overnight Anthony Perish rang Witness A on the McDowell phone and they spoke about the reconnaissance of the waterways.

39. Telephone records (Exhibit HH) showed calls made by Mobiles 1 & 2 on 31 October 2001 and 1 November 2001 being picked up by communications towers at Narong, Glovers Hill, Nelson Bay and Rydalmere. On 1 November 2001 (at 18.45.52) and on 2 November (15.47.54) Mobile 2 sent text messages to Andrew Perish’s mobile phone. Cell tower locations are not available for text messages.

40. Witness A marked the map of Port Stephens with a line from the Salamander Bay Hotel pointing up through the Karuah River, an “X” at Tea Gardens and an “X” at Jimmy’s Beach. On the second last visit from Anthony Perish, he and Witness A discussed the Karuah River and the information Witness A had found out about that river including depth, speed restrictions and police presence. They were standing in the boat as they discussed this. Witness A complained that there were too many police and speed restrictions. Anthony said, “What about here?” while pointing to Tea Gardens on the map, so Witness A put an “X” at Tea Gardens. Witness A made the other markings during the discussion. The boat ramp at Salamander Bay was where the boat was going to be put in. Witness A eliminated Bulahdelah because of information he had received that there was a four or five knot speed restriction throughout the river.

41. It was common ground that there was no connection between the Hastings River and the Bulahdelah River or the Myall River. To get to the Bulahdelah River, one would go up the Myall River and the Bulahdelah River ran off it. The Myall River was in a different river system to the Karuah River, although they had the same inlet, Port Stephens.

42. Witness A saw Andrew Perish a number of times after the Newtown dinner. He saw him at his [Witness A’s] home on more than three occasions. He remembered two specific instances that he saw Andrew Perish at other places - once at the Rossmore shops on Bringelly Road and the other was at Dan Perish’s place. The occasion at Bringelly was not a planned meeting.

43. The recollection of Witness A was that the total for the repairs to the boat was around $5,000. There were other expenses incurred as a result of the trip to Salamander Bay. After he spoke to Andrew Perish and indicated that the repairs involved a greater sum of money, Andrew told him to go ahead with the job. Arrangements were made for Witness A to pick up some money from Dan Perish’s (Andrew’s brother’s) place at Rossmore. His memory was that Andrew picked him up from his house and drove him there, where he was given $3,000 to cover the cost of all the necessary repairs to the boat. Andrew then drove him home. On another occasion Andrew Perish gave Witness A $1,500 to cover expenses. The amounts were clarified to be: $2,000 from Andrew at his house at Eagle Vale; $1,500 from Andrew at the property at Greendale; $3,000 from Andrew at his brother’s place; and $1,800 from Anthony Perish for expenses at the second last meeting at Witness A’s house.

44. On the second last visit by Anthony Perish and Matthew Lawton (which was either the second or third visit) Anthony Perish handed Witness A a police document or what seemed to be a police document with the deceased’s name on it. It stated that the deceased was prepared to give evidence to the Crime Commission against the Rebels Motorcycle Club in Dubbo in relation to their drug dealing. Matthew Lawton was present when Witness A was handed the document. Witness A was standing between the front seat and the open door of the white utility. Anthony Perish was standing right next to the seat. Matthew Lawton was sitting in the driver’s seat.

45. Witness A was shown a document during his evidence in chief. He did not think it was the same document that Anthony Perish had shown him but the content of paragraph three said the same thing, “Not in those words but pretty much what it said”.

46. On the last visit by Anthony Perish and Matthew Lawton to the home of Witness A, there was discussion about the boat being ready. Witness A said it had to be “run in”. Anthony Perish said to him “Get on with it” and “Hurry up because this cunt goes this Friday regardless”. This last visit was on a Friday and the deceased went missing the following Friday. Each of the visits was recorded by Witness A using the surveillance system that he had installed. He had a recording of the last visit but did not know what happened to the other tape recordings. Exhibit N was the video recording of the last visit. There was no audio. Witness A said that it was when he and Anthony Perish walked away from the car that Anthony Perish said “This cunt’s going this Friday regardless”. Exhibit N showed Witness A and Anthony Perish walk to the gate. At the gate Anthony Perish said:

“You’ll come up, you’ll pick up a couple of eskys, you’ll go out and take them out to the continental shelf, you will empty out the contents over a big hole using a depth sounder. On the way back wash those eskys out half way back and throw them over the side. When you get back, wash the boat out with ammonia.”

Witness A said: ‘Huh?’

Anthony Perish said: ‘If you wash it out with ammonia they can tell there’s been blood in the boat but they can’t tell whose it is. It fucks the DNA.’”

52. Witness A raised with Anthony Perish that the plan seemed to have changed to him going out by himself. He said “What, you’re not coming with me?” Anthony said “Nah, that’s what I’m paying you for”. It was also at the gate that Anthony Perish said “Hurry up, this cunt’s going this Friday no matter what”.

53. Witness A did not recall any discussion before Anthony Perish and Matthew Lawton left about whether there would be any further contact connected with the plan in the following days. There was in fact no further contact after the last meeting. Witness A switched off the McDowell phone after the last visit by Anthony Perish on the Friday.

54. Phone records (Exhibit HH) show that Andrew Perish’s phone called Witness A’s Mobile 2 phone on 14 November 2001 (the Wednesday before the deceased was abducted) at 19.27.21, 19.39.41 and 19.46.44 and on each occasion was diverted to voicemail. On 15 November 2001 Andrew Perish’s phone called Witness A’s Mobile 2 at 9.57.34 and 9.58.56 and each call was diverted to voicemail. The McDowell phone was used daily to make calls until Tuesday, 12 November 2001. There was then a gap of eight days when no calls were made until Tuesday, 20 November 2001.

55. Witness A did not participate in the disposal of the remains of the deceased and never had any intention of doing so. He confirmed that on each occasion that Anthony Perish attended his house in relation to the boat, Matthew Lawton was the driver. He said it was “quite possible” that Lawton spoke to him about the boat, but he could not recall. Matthew Lawton was present during conversations between Witness A and Anthony Perish about the boat and was present when Anthony Perish gave him the police document to read.

56. Before his reconnaissance in the Salamander Bay region, Witness A had been there many times, the last time having been around 1982 when he went fishing with his father. He had never heard of Girvan until after the deceased’s death.

57. Witness A learned of the abduction of the deceased from the news media on the Saturday after he was abducted. On the morning of Thursday, 29 August 2002 police knocked on his door and told him that they were investigating the murder of the deceased. Between the time he last saw Anthony Perish and the police arriving on 29 August 2002, Witness A did not approach police or any other authority and indicate his knowledge in relation to the matter.

58. The police note (Inspector Jubelin) in relation to 29 August 2002 stated: “[Witness A] stated that Steve Perish had approached him after his release and he believes without ever being told specifically, tried to recruit him to participate in some way in the murder of Terry Falconer and/or the disposal of his remains”.

59. When the police arrived on 29 August 2002 Witness A indicated to them that he might have some information. During the course of his assistance to police, he agreed to speak to Andrew Perish while wearing a listening device. One occasion when he participated in this procedure was at Andrew Perish’s place of work at Camden on 30 September 2002. He explained the contents of that conversation. When he said, “Don’t need this shit mate, that’s why I pulled out of the fuckin’ job in the first place”, he was referring to the disposal of the deceased’s body. When he said “and sort the fuckin’ money out too, all right” he was referring to the $8,300 that had been paid to him. During the recorded conversation Witness A asked Andrew Perish what he should say to police. Andrew Perish said “They’re not going to want you to say nothing about knocking the other thing”. When he said “I’m not a weak cunt mate. It’s just things weren’t right, I was fresh out of gaol”, he was referring to having been released from gaol in 2001. “I need to know that fuckin’ piece of paper you showed me about Terry Falconer is gone because it’s got my fuckin’ prints on it” referring to the document Anthony Perish had shown him on the second last visit. Andrew Perish had answered “It’s gone mate, don’t worry”.

60. On 1 October 2002 Camden police provided Witness A with the sum of $1,000 to give to Andrew Perish in part repayment for moneys pertaining to the boat. Witness A attended Andrew Perish’s business premises in Camden and had a conversation with him that was recorded by a listening device (Exhibit U). Witness A gave Andrew Perish the $1,000 and asked “Do I have to pay the whole eight and a half or just fuckin’ … ‘cause I don’t really wanna fuckin’ put a new motor on the boat” which referred to the money he had been paid in preparation for disposing of the body.

52. On 16 October 2002 Witness A again engaged Andrew Perish in conversation in Camden, while wired with a recording device (Exhibit V). At the time there was background noise of a compressor on one of the fridges. Witness A gave evidence that Andrew said in a whisper “Nosey, Nosey, nobody knows we done it”. Witness A believed this should have been recorded in the transcript of the conversation at p 5, 1.30.15 “where it commences”. He could not recall what he had said to elicit that answer. The words “Nosey, Nosey, nobody knows we done it” are not recorded in the transcript.

53. Exhibit X was the recorded conversation between Witness A and Andrew Perish on 17 November 2002 at premises at Camden. In that conversation Witness A referred to the job involving the disposal of the deceased’s body. Later in the conversation, Witness A continued to tell Andrew Perish that he did not want any part of it and for Andrew to sort it out. At p 9 of the transcript, Witness A said “Remember the conversation we had? At the back of the place? And you said nobody knows who done it?” Perish said “Yeah”. Witness A said “Fuckin’ everybody knows who done it”. Here Witness A was referring to the conversation of 16 October 2002, which was not audible.

54. At pp 18-19 of the transcript, Witness A said “Listen Frank’s also the one who told me that you called me a weak cunt because I didn’t go through with the job for ya. So you go fuckin’ talk to Frank. That’s why I came down the fuckin’ track that night”. Andrew Perish said “That cunt likes to cause as much trouble as he can that cunt”. Later Witness A said “Well that’s Frank, the photos are Frank’s because he told me you were setting me up. I see you with Perry?” Andrew Perish said “But that’s not the case I’m not fuckin’ … ”. Witness A said “You’ve always trusted me yeah?” and Perish said “Yeah we fuckin’ do, mate”.

55. In cross-examination Witness A was not able to remember the name of the restaurant where he had dinner with Anthony and Andrew Perish. He said that when the police spoke to him on 29 August 2002 they said “we’ve got nothing, anything you know or anything you can tell us?” and he said “It just so happens I can tell you who, where, when, how. If you meet me at another address tonight I will take it from there”.

56. He agreed that in late 1996 and again in 1997 he had gone to the NSW Crime Commission as a result of a warrant he requested to be activated. He had given the Crime Commission information, his aim being to get bail so he could prove that he was not guilty of the offence for which he was incarcerated. He had not seen Detective Browne’s investigator’s notes about the detectives’ meetings with him. He had communicated with Detective Browne “dozens and dozens of times”. On some occasions he thought that the police were watching him with helicopters and had taken photographs of helicopters. He thought that one helicopter looked like a police helicopter with no markings on it and it seemed to be carrying a camera. He had contacted police when he observed four Jatz crackers in the swimming pool at his home which he believed indicated that somebody had been in his yard while he was asleep and put them in the pool.

57. There was an instance when a man had walked into a shop with a golf club in his hand with the word “Hush” written on the cover. The man had handed the golf club to the attendant behind the counter and asked her to look after it and then drove off. Witness A believed that this was a message to him to “Shut the fuck up”, and that he “was talking to the wrong people”. He further reported a break-in by individuals who were using a car with the licence plate HSV-DNA which he believed indicated there was a plan to collect his DNA.

58. There was a period when he did not trust the police. He made two phone calls to police and mentioned in those calls that he was going to Channel 9. It was after those calls that the incident with the Hush golf putter took place. He went to Channel 9 and later Channel 7 because he wanted someone other than the police to know what was going on. At the time he did not trust the police “full stop”. As far as he knew, three police officers had abducted the deceased, who was later found in bags, allegedly killed by police. He believed that the police wanted him dead so he wanted a third party to know what was going on.

59. He was in a state of “hyper-vigilance from the word go; not distressed. I was hyper-vigilant, yes”. He believed that a lot of suspicious things had happened “a lot of things happened in that highly stressed environment. It may or may not have been what I thought at the time, but it happened”. It was his belief at the time that he was being set up. He did not trust the police and did not think that they were being honest with him “when this first started”.

60. He did not try to deceive police when he was speaking to them, but he did hold things back. What he told them was true. They came to his door and “it was a split second decision to give them the video” and to tell them what he knew, because he “never had any intention of going through with any job”. He had not approached police because initially he believed that he was the target. He was never told that the deceased was the one that was going to be killed. Although he was suspicious of the police, he was talking to them because he “needed to know what the hell was going on”.

61. He made his statement to police in a secure location over four days for a number of hours each day. Police then took away their computers, printed it out and gave him a copy. He declined to sign it at that stage. He made some adjustments to it and signed it at another time. His belief was that if he were not the target, he was going to be set up with somebody else’s murder. He denied he was called “Nosey” because he made up stories about people. He had acquired his nickname in 1985-1986 when he used to ride in a different motorcycle club. When he saw members talking, he would go over and say “What’s going on, what’s happening?” He was often told “Piss off you nosey bastard”. He said that the nickname suggested that he was a “sticky beak”. It did not suggest that he was a gossip.

62. He agreed that he was seriously injured when stabbed seven times while in custody at Lithgow before he was released to parole in 2001. After he was released, he had grave fears for his safety if he went back to gaol because of the information he had supplied to the Crime Commission about the Rebels. He was on parole at the time police knocked on his door and remained on parole during the time he assisted police.

63. He had taken amphetamines over the years. He may have had a cone of marijuana to help him sleep when he was stressed during the investigation. He agreed with the proposition that “giving amphetamines a decent going over” could make him paranoid. In conversation with the police, he recalled the word “paranoid” being used on occasions. When asked if he thought he had been paranoid he said, “Well if I was, I was still alive and if I was paranoid and didn’t see what I thought I saw, that’s okay with me, I’m here today”.

64. He had never before worn a listening device. Straight after he heard the confession from Andrew Perish, he sent a text message to police. He believed the confession had been captured on the tape. When he was asked where it had gone, he said “Behind the compressor or noises”. He had heard it; he could not explain the recording equipment. He said, “I know when it took place and I believe I can hear the whisper, but I can’t explain it for you, or anyone else’s hearing. I was there and I know it was said”. Witness A said:

“I believe I said that at one stage, that I had listened to the recording, what I believed was the original recording, and I believe I can hear it. I know what conversation took place before and after and I also know where we were sitting and how it was said. It was said in a whisper and it was covered by the sound of the compressor. That’s all I can say.”

74. He had been found guilty of murder at trial and had successfully appealed his conviction. After his conviction was overturned, he had pleaded guilty to manslaughter on the basis that he had been present at the scene.

75. At the time that he was giving evidence at trial he had a new identity and had been relocated, partly as a result of the investigation of the murder of the deceased. When asked if police had assisted him, he said he had changed his name legally and requested where he wanted to go. After he went to the Crime Commission in 1997 an anonymous letter was sent to the gaol, so he was moved to Goulburn. Another anonymous letter was sent to the effect that he was going to be killed there, so he was moved back to Long Bay. He was in Lithgow Gaol when he was attacked and stabbed seven times and seriously injured.

76. He could not remember exactly when he put the cameras up at his home, but it was after the McDowell phone was dropped off at Bringelly. He denied that he was making up the evidence as he went along. He said, “It’s been ten years … I can’t be perfect”. What was in his statement was the truth; and the reason he did not recall bits and pieces was because he had not learned it word for word. He did not read his statement every day. He just wanted to forget the whole incident. He was able to distinguish the second last meeting from the last meeting because the video did not show a document handed to him at the car, did not show them hop in the boat and the boat did not shake.

77. The video depicted the last time Anthony Perish came to his house on 9 November 2001. Watching the video refreshed his memory that on that occasion he and Anthony Perish did not get into the boat and look at maps. At no time did he tell Anthony Perish that he was not going to go through with the job. He was just “running in parallel with them and seeing what happens”. He was doing everything he could to delay the matter while trying to find out what was going on. When he asked at the Newtown dinner “Who is the cunt?”, he was told it was none of his business. At the last meeting, the plans had changed from “we” to just him [Witness A] taking the boat up so he decided he was not the one who would be killed, but that he was possibly being set up. He thought that having his prints on the document about the deceased was part of the set up.

Detective Browne

78. Detective Browne spoke to Witness A for the first time on 29 August 2002. He gave the following evidence. Initially police had some information from Corrective Services that suggested that Witness A may have had some involvement with the deceased. He was accompanied by Detective Rankin and they arrived at Witness A’s house just before midday. Witness A took them around the side of the house where they had a conversation. They told Witness A that they were there to speak to him regarding the murder of the deceased. Witness A asked “Where do I fit in?” Detective Rankin said “Do you know Terry Falconer?” and Witness A said “Look, I know who did it, and I know why they did it, but I don’t know if I should be telling you”. He told them to come back at 8pm, just the two of them, and not to tell anyone. He gave them a different address to attend that night.

79. Detectives Browne and Rankin met Witness A that night at the new address. He took them to a small flat at the back of the house where they had a discussion. Not long into the discussion Witness A produced a video (Exhibit N) and played it for them. Thereafter Detective Browne had meetings with Witness A in various discreet locations during the day and night. Police did not know what he was going to tell them so they just let him speak. On some occasions, Detective Browne took notes but on other occasions it was not possible to do so at the time. When police first spoke to Witness A, he was very much against giving a statement and it took some time to get him to agree to the listening device operation.

80. When Witness A played the video (Exhibit N), he said that on that occasion ‘Steve’ Perish (i.e. Anthony) handed him a police running sheet that indicated that the deceased was a police informant and had stated to police that he was prepared to assist them and provide information regarding the Rebels at Dubbo and their involvement in the manufacturing of amphetamines. He had recorded in his notes that at the dinner at Newtown, ‘Steve’ asked Witness A “Did Terry Falconer tell you that he killed our grandparents? Liz Falconer told us that Terry told you in gaol he killed my grandparents”. Witness A told Detective Browne that “he had never had this conversation and believed it was caused by Liz Falconer causing trouble as she was a conniving bitch”. He recorded in his notes the next day that Witness A told him that “Steve and Andrew had maps of Newcastle to Bulahdelah area”.

Inspector Jubelin

81. Detective Inspector Gary Jubelin was the officer in charge of the investigation from 2 December 2001 until November 2004 when he left the Homicide Squad, after which Detective Browne was the officer in charge. He first met Witness A on 6 September 2002. Except where otherwise indicated, his evidence was as follows. Witness A had met with Detectives Browne and Rankin on two previous occasions. Witness A had not yet made a statement but had provided information. During this first meeting, Inspector Jubelin raised with him the possibility of meeting with the persons of interest while wearing a listening device. On 25 September 2002 Witness A agreed to do so. There were two benefits to this operation. One was to establish if Witness A was being truthful and the second was to gather additional information and corroborative evidence. Certain details were withheld from Witness A to protect the integrity of the investigation and also police methodology. Specifically, Inspector Jubelin did not disclose the malfunction of the listening device to Witness A as it would have been detrimental to future operations because Witness A had participated at what he considered significant risk and the police had let him down with the failure of the technical equipment.

82. The first recorded conversation took place on 30 September 2002 and the second on 1 October 2002 when Witness A was provided with $1,000, which was to obtain corroboration from Andrew Perish that Witness A had received money in relation to his boat. The poor quality of the recording of 16 October 2002 was because the primary device placed on Witness A, which was to provide the best quality recording, failed very early in the operation. It stopped recording and did not restart. The second device was a back-up device. Witness A was never told that the device had failed and still did not know. Inspector Jubelin was aware that Witness A believed that the quality was impaired due to the background noise of a compressor or refrigerator. Inspector Jubelin had listened to the tape alone and with Witness A and was unable to hear the words that Witness A asserted were said. Police endeavoured to enhance the quality of the tape but that was unsuccessful.

83. After November 2003 Witness A was treated as a witness and not involved in the investigation. He “got on with his life” and there was very limited contact between him and police for about four years.

84. In about July 2003 Inspector Jubelin’s assessment of Witness A was that he was under extreme stress. Inspector Jubelin said:

“He had broken a code; a code that he had been living by since he was about 14, and that code I am referring to relates to dealings and assisting police. He had not only assisted the police, which was breaking the code in which he was living, but he had participated in listening device operations and probably worse still, in his mind, he had signed a statement to police in regards to a serious criminal matter. I am not a medical person, but from my observation of him at the time, I thought that he was a person on the verge of a nervous breakdown and for that reason, I thought it appropriate, and so did the then Homicide Superintendent, decide that we make available to him the services of a psychiatrist.”

85. In 2003 police provided money and helped facilitate Witness A’s relocation. He was provided with a new identity and this was done at the State’s expense. It was mainly Inspector Jubelin and Detective Browne who met with Witness A. The meetings with Witness A were covert so they did not take notes while he was speaking and did not tape record the conversations. They made the notes as contemporaneously as they could and worked off their recollection.

86. Witness A gave Inspector Jubelin information that while he was in gaol Rob Institoris told him that the deceased was going to the Crime Commission to tell them everything he knew about everyone. Witness A believed Liz Falconer became aware of this and rang Anthony Perish and told him. Inspector Jubelin knew that Rob Institoris was married to the deceased’s daughter Linda, and the boat the subject of the investigation had been owned by Institoris. It had been transferred to Witness A because Institoris was indebted to him, because Witness A had taken the blame for a murder that Institoris had committed.

87. Between 29 August 2002 and November 2003 police had 58 face-to-face meetings with Witness A and countless telephone calls and text messages. Witness A had a concern about going back to gaol. Inspector Jubelin emphasised that the investigator’s notes were made from conversations to the best of his and Detective Browne’s recollections, but that they may not be completely accurate. It was Witness A’s statement that should be relied upon. Witness A’s statement to police was taken over seven days from 8 May 2003. On 29 May 2003 Witness A was provided with a draft incomplete copy of the statement. On 17 June 2003 there was a meeting to work on the statement. On 19 June 2003 he was provided with a draft copy of the unsigned statement. On 14 July 2003 there was some further work on the statement and on 15 July 2003 Witness A signed his statement.

88. Inspector Jubelin asked Witness A to keep them informed of anything that concerned him, in view of the fact that they were at a sensitive stage in the investigation. Witness A was seeing threatening things in his environment and relaying them to police. Both he and Detective Browne believed Witness A was “slightly paranoid with his activities with police”. Inspector Jubelin believed that Witness A “saw what he said he saw. What I took issue with was his interpretation of what he saw”.

89. It was on 19 July 2003, shortly after signing his statement on 15 July 2003 that Superintendent Kaldas and Inspector Jubelin spoke to Witness A and offered the services of a psychiatrist. The signing of the statement “was a pivotal moment, I believe, in his thought process at that particular point in time. He always had concerns that once he signed off on the statement, that things were out of his control; police then had a document that we wanted and I think he felt extremely stressed and vulnerable at that time”. At one point, Witness A believed that “crooked police were behind the abduction and murder of Terry Falconer”. Despite the suggestion that he see a psychiatrist, Witness A declined to do so. He said that he would see a psychiatrist of his own choosing, but Inspector Jubelin did not know if he did so. Although Witness A had some complaints, they were not to the same extent after November 2003, when Witness A obtained his new identity and was relocated. There was little contact between him and the police from that time until 2007.

The abduction and death of the deceased

90. The deceased was on work release after serving the bulk of a sentence for offences of manufacturing drugs. He was a panel beater by trade, and was employed by his friend, Alan Morcomb, who owned a smash repair business at Ingleburn. The deceased worked Monday to Saturday and the occasional Sunday. He generally arrived about 7.30-7.45am and left at 4.30-5.00pm to return to Silverwater Prison, travelling by bus and train. He was required to be back at the prison by 7.00pm.

(6)   that one or more of those act were accompanied by an intention to kill on the part of [the third appellant] or were done with reckless indifference to human life.

You will see that the second essential element the Crown must establish beyond reasonable doubt is that [the third appellant] was a party to a joint criminal enterprise to kidnap Mr Falconer. We will now consider what is meant by a joint criminal enterprise. You see that is referred to on page 3 of the summing-up document – Joint Criminal Enterprise. Anthony Perish accepts by his plea of guilty to manslaughter that he participated in the joint criminal enterprise to kidnap Terrence Falconer. The Crown alleges that [the third appellant] was participating in the joint criminal enterprise to kidnap Terrence Falconer in that he assisted in the advanced stages of the exercise by obtaining steel wheel rims and spray painting them silver in order that [Witness E’s] motor vehicle would resemble a police vehicle [the third appellant] stood ready to assist upon Terrence Falconer arriving in captivity in Turramurra and drove Terrence Falconer north to Girvan.

The law is that where two or more persons carry out a joint criminal enterprise each is responsible for the act of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by [the third appellant]”

The third appellant’s submissions

445. The third appellant submitted that the directions of the trial judge in the passages above “entirely relieved” the jury of the need to consider whether, in the light of Anthony Perish’s plea of guilty to manslaughter, the joint criminal enterprise to kidnap the deceased existed. It was submitted that far from directing the jury to disregard the plea which had been entered, the trial judge had effectively directed the jury that the plea could properly be taken into account in assessing the case against the third appellant.

446. In advancing these submissions, counsel for the third appellant conceded that the third appellant had been represented at trial by experienced senior counsel who had taken no issue with the directions of the trial judge. Counsel for the third appellant accepted that in these circumstances rule 4 applied. However, he submitted that there had been a miscarriage of justice because the directions given by the trial judge had resulted in the jury not properly considering the evidence of Witness A and Witness E, and that leave should therefore be granted.

The Crown submissions

447. The Crown pointed to the fact that following the direction about which the third appellant now complained, the trial judge had also directed the jury in the following terms:

“…In order for [the third appellant] to have participated in the agreement to kidnap Mr Falconer, the Crown must prove beyond reasonable doubt that he knew that the objective of the agreement was to kidnap Mr Falconer and must have intended that objective to be carried into effect. The Crown invites you to find from the circumstances that he assisted in the advanced stages of the enterprise by obtaining steel wheel rims and spray painting them silver in order that the motor vehicle would resemble a police vehicle and that he stood ready upon Mr Falconer arriving in captivity at Turramurra, then driving him to Girvan, that [the third appellant] was a participant in the agreement to kidnap the deceased.”

448. The Crown submitted that, when read as a whole and in its proper context, the summing-up of the trial judge did not lend itself to the construction urged by counsel for the third appellant.

449. It was submitted that the effect of the reference, by the trial judge, to the fact that Anthony Perish did not challenge his participation in the joint criminal enterprise simply highlighted the fact that no similar admission was ever made by the third appellant and that accordingly, it was an issue which had to be addressed and determined when considering the case against him.

450. The Crown also pointed to the fact that the trial judge carefully directed the jury of the requirement to consider the case against each of the appellants separately. The Crown further submitted that the trial judge did not suggest, at any stage, that the plea of guilty by Anthony Perish could be used either:

1. as evidence of any of the matters which the jury were required to find established beyond reasonable doubt before finding the third appellant guilty; or

2. in substitution for such evidence.

451. Finally, the Crown submitted that in circumstances where experienced senior counsel appearing at trial did not take issue with the matter, this should be viewed as a case where no re-direction was sought because there was no error and that accordingly, leave should be refused.

Consideration

452. A fair reading of the passage of the summing up which is relied upon by the third appellant does not support the complaint raised by this ground. Contrary to counsel for the third appellant’s submissions, the trial judge did not even remotely suggest to the jury that Anthony Perish’s plea could be considered in determining the case against the third appellant. On the contrary, the trial judge went to some lengths to remind the jury that in determining the case against the third appellant it was necessary to consider:

1. the existence of the joint criminal enterprise; and

2. the third appellant’s participation in it.

453. In directing the jury as to the second of those matters, the trial judge did not suggest that the evidence that the jury were entitled to consider included Anthony Perish’s plea. On the contrary, he made specific reference to some of those matters relied upon by the Crown in determining the case against the third appellant. He had previously exhaustively set out those matters. Those matters did not include the fact of Anthony Perish’s plea of guilty to manslaughter.

454. Moreover, trial judge made it clear to the jury that it was imperative that the cases of each appellant be considered separately, by reference only to the evidence properly admissible against that particular appellant. The trial judge had previously reminded the jury of this necessity. In all of these circumstances the submission by counsel for the third appellant that the trial judge’s directions had the effect of “relieving” the jury of the need to consider where a joint criminal enterprise existed simply cannot be accepted.

455. Further, in order to establish that the third appellant lost a fair chance of acquittal as a result of the matters relied upon in support of this ground, it would be incumbent upon him to establish that notwithstanding Anthony Perish’s admission that he was a party to the deceased’s kidnapping, there was a reasonable doubt that this was the case. Counsel for the third appellant before this Court expressly acknowledged that it was never seriously in issue that Anthony Perish was involved in the deceased’s kidnapping.

456. Finally, the complaint which is now made was not raised by experienced senior counsel who appeared for the third appellant at trial. That is perfectly understandable, as there was no error.

457. Leave in respect of this ground should be refused.

Ground 3

Background

458. In considering this ground it is necessary to set out the background which resulted in the tender of Ex AA.

459. Prior to giving evidence before the jury, Witness E was called on the voir dire. Having been asked questions about his sentence and his undertaking to give evidence, Witness E was asked about his participation in a record of interview with police following his arrest and the contents of that interview. He gave a series of answers to questions put by the Crown, which were generally unfavourable to the Crown case. When cross-examined on the voir dire he claimed that his memory of relevant events was adversely affected by, inter alia, the time that he had spent in custody.

460. Following the conclusion of the voir dire, the Crown made an application to cross examine Witness E pursuant to s 38 of the Act. The trial judge concluded that it was appropriate to determine any application under s 38 once any evidence in chief had been led before the jury. At that time, the Crown Prosecutor informed the trial judge that Witness E had indicated that he did not wish to speak with him.

461. Witness E was then recalled on the voir dire at which time the trial judge reminded him of the importance, when giving evidence before the jury, of answering only the particular question that he was asked. The trial judge also made Witness E aware of the fact that it was open to him to object to answering any question on the grounds that it may tend to prove that he had committed an offence with which he had not been charged.

462. On the following day Witness E’s treating medical practitioner, Dr Etties, was called to give evidence. Having produced the records of medical treatment administered to Witness E, Dr Etties confirmed that Witness E was not under any medication at the time, but was to undergo a treatment regime for cancer.

463. Following Dr Etties’ evidence the Crown Prosecutor informed the trial judge that Witness E had refused to see him for the purposes of a conference, and had asked to be given some time to “look over some documents” before being called to give evidence before the jury.

464. Witness E was then called to give evidence before the jury. Having been taken through the details of the sentences which were imposed upon him, the Crown commenced to ask him about his association with Anthony Perish and, in particular, whether Anthony Perish had spoken to him about “anything to do with his grandparents”. He was then asked a number of further questions, the answers to which were generally unfavourable to the Crown. These answers culminated in the Crown making an application under s 38 of the Act.

465. Over the ensuing days, an agreement was reached between all counsel that an edited copy of the interview between Witness E and the police would be tendered. The trial judge then formulated a direction for the jury, with which all parties agreed, regarding the Crown’s cross-examination of Witness E on the contents of the interview.

466. Witness E was then recalled by the Crown. The trial judge confirmed a grant of leave to the Crown under s 38 “to cross-examine on the matters in the edited transcript”. The edited interview with Witness E was then admitted without objection. It became Ex AA and was played to the jury.

467. Witness E was then asked questions based upon what he had told the police during that interview.

The third appellant’s submissions

468. Counsel for the third appellant submitted that there was no proper basis for the tender of Ex AA. In particular, it was submitted that Ex AA was not admissible because:

1. it was plainly hearsay;

2. it was therefore not admissible to prove the truth of its contents, unless it was admissible for some other purpose;

3. the only basis on which it was admissible was that it constituted credibility evidence;

4. because of the credibility rule in s 102 of the Act, it was not admissible unless it fell within one of the exceptions to that rule;

5. the only possible relevant exception was that contained in s 106 of the Act; and

6. the pre-requisites contained in s 106(1)(a) of the Act, namely that:

1. the substance of the evidence be put to the witness; and

2. the witness deny, or not admit or agree to, the substance of the evidence

were not satisfied

469. In developing these submissions, counsel for the third appellant argued that at no stage did the Crown Prosecutor seek to put the substance of Ex AA to Witness E before tendering it. It was submitted that as a consequence, Witness E was not given the opportunity to admit or deny what had been recorded and that accordingly, the exception set out in s 106 was not available to exclude the operation of the credibility rule, and that accordingly, the evidence was not admissible. Again, in making these submissions counsel for the third appellant accepted that r 4 applied.

The Crown submissions

470. The Crown submitted that in light of the circumstances which led to the tender of Ex AA there had been adequate compliance with s 106(1)(a) of the Act. It was submitted that by the time Ex AA was played, the jury were necessarily aware of the extent of Witness E’s recollection of events and that after Ex AA had been played, Witness E had been given the opportunity to admit, deny or agree to the substance of the evidence, but had continued to maintain that he had no recollection of relevant events.

471. The Crown further submitted that in any event, Ex AA was properly admissible under s 103 of the Act which governs cross-examination as to credibility. It was submitted that the provisions of that section were attracted in light of the fact that Ex AA was adduced in cross examination of Witness E pursuant to a grant of leave under s 38 of the Act.

Consideration

472. Section 102 of the Act is in the following terms:

102 The credibility rule

Credibility evidence about a witness is not admissible.

473. Section 106 of the Act creates an exception to the credibility rule and is in the following terms:

106 Exception: rebutting denials by other evidence

(1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if:

(a) in cross-examination of the witness:

(i) the substance of the evidence was put to the witness, and

(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and

(b) the court gives leave to adduce the evidence.

(2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness:

(a) is biased or has a motive for being untruthful, or

(b) has been convicted of an offence, including an offence against the law of a foreign country, or

(c) has made a prior inconsistent statement, or

(d) is, or was, unable to be aware of matters to which his or her evidence relates, or

(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

474. Before this Court, both the Crown and counsel for the third appellant accepted that Ex AA was “credibility evidence”. Section 102 of the Act provides that such evidence is “not admissible”. Sections 103 to 108 of the Act create a number of exceptions to the application of the credibility rule.

475. Counsel for the third appellant submitted that the line of reasoning in the authorities set out above at [261]-[270] should no longer be followed. For the reasons already expressed we do not accept that submission. Given that Ex AA was admitted without objection, it was admissible irrespective of the provisions of s 106.

476. Counsel for the third appellant specifically submitted that the line of reasoning in such authorities should not be followed in light of s 190 of the Act which is in the following terms:

190 Waiver of rules of evidence

(1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of:

(a) Division 3, 4 or 5 of Part 2.1, or

(b) Part 2.2 or 2.3, or

(c) Parts 3.2-3.8,

in relation to particular evidence or generally.

(2) In a criminal proceeding, a defendant’s consent is not effective for the purposes of subsection (1) unless:

(a) the defendant has been advised to do so by his or her Australian legal practitioner or legal counsel, or

(b) the court is satisfied that the defendant understands the consequences of giving the consent.

(3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if:

(a) the matter to which the evidence relates is not genuinely in dispute, or

(b) the application of those provisions would cause or involve unnecessary expense or delay.

(4) Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account:

(a) the importance of the evidence in the proceeding, and

(b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding, and

(c) the probative value of the evidence, and

(d) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

477. It was submitted that the authorities in [261]-[270] ignored the provisions of s 190 and that, in particular, if the absence of objection was sufficient to exclude (in the context of the present case) the operation of the credibility rule, s 190 would have no practical work to do.

478. That submission is contrary to authority. In WC, Meagher JA (with whom Simpson and Wilson JJ agreed) rejected such a proposition at [24]-[25]:

“[24] It was submitted that by not rejecting the record of S’s evidence as excluded by the hearsay rule the trial judge was to be taken to have dispensed with the application of s 59 in Pt 3.2 in relation to that evidence in circumstances where WC’s consent to the making of such an order was not effective because neither of the conditions in subs 190(2)(a) and (b) was satisfied.

[25] This argument must be rejected simply because in admitting the relevant evidence the trial judge made no order under subs 190(1). Nor was it necessary for him to do so. The hearsay evidence was not admissible over objection and no objection was taken. It was not necessary to dispense with the application of s 59 in order to admit the evidence.”

479. Quite apart from the fact that Ex AA was admissible in the absence of objection, and on a fair reading of what transpired prior to the admission of Ex AA, there was compliance with the provisions of s 106 of the Act in any event. Prior to the admission of Ex AA, Witness E had effectively refused to acknowledge what he had said to the police when previously interviewed.

480. Section 106 does not require the adoption of a mechanistic approach, in which each and every proposition contained in the evidence in question is put to the witness. It requires only that the substance of the evidence be put. In the circumstances of the present case, that requirement was met.

481. For all of these reasons, leave should be refused in respect of this ground.

Ground 4

The directions of the trial judge

482. Central to this ground is the following direction given by the trial judge:

“The evidence of Witness A of being given money by Andrew Perish and the discussions with Andrew Perish about the repairs to the boat is available for you to consider in the cases of each of the accused, even though Anthony Perish and [the third appellant] may not have been present when the acts were done or the statements made, not only as establishing the existence and nature of the alleged conspiracy but if they were done or made in furtherance of the alleged conspiracy as establishing the participation of each of the accused in it.”

The third appellant’s submissions

483. In advancing this ground, counsel for the third appellant acknowledged that much of the evidence led against the third appellant was admissible to prove the nature and scope of the alleged conspiracy, even if the evidence touched upon acts which did not specifically involve the third appellant.

484. However, counsel for the third appellant submitted that the trial judge had erred in directing the jury that they were entitled to take into account acts of one of the co-accused which were entirely unconnected with the third appellant.

485. It was submitted that the vice in the trial judge’s direction set out above at [482] was that it invited the jury to conclude, on the basis of acts with which he was entirely unconnected, that the third appellant had participated in the conspiracy. It was submitted that the effect of the trial judge’s direction was to permit the jury to conclude that the third appellant was a participant in the conspiracy, in the absence of any evidence of his participation. Counsel submitted that these circumstances led to a miscarriage of justice, such that leave should be granted under r 4.

The Crown submissions

486. The Crown submitted that the approach to this ground adopted by counsel for the third appellant overlooked other directions given by the trial judge, in which the jury had been specifically directed as to, inter alia, the elements of conspiracy to murder. It was submitted that when the summing up was read as a whole, there was no risk that the jury would have used the evidence of the conversation between Witness A and Anthony Perish as evidence of the participation, by the third appellant, in the conspiracy.

487. The Crown again emphasised that no further direction was sought by experienced senior counsel who appeared for the third appellant at trial. It was submitted that the only conclusion which could be drawn in these circumstances was that counsel perceived no danger that the jury might misunderstand the directions which had been given by the trial judge.

Consideration

488. For a number of reasons, there is no merit in this ground.

489. As counsel for the third appellant expressly acknowledged, evidence which did not directly implicate the third appellant was nevertheless available to prove the nature and scope of the conspiracy.

490. Moreover, the approach taken by counsel for the third appellant in respect of this ground again failed to have regard to the summing up as a whole, and ignored a number of other directions given by the trial judge. Having regard to those other directions, the jury could not possibly have been in any doubt about the evidence which was available to them to consider in determining the issue of the participation of the third appellant in the conspiracy.

491. Specifically, having directed the jury in relation to the general nature of a conspiracy, the trial judge then said:

“In order for you to find any of the accused guilty the Crown must satisfy you beyond reasonable doubt of the following essential legal elements in relation to the particular accused whose case you are considering:

1.   That there was in fact an agreement between two or more persons to kill Terrence Falconer, and

2.   That the particular accused whose case you are considering participated in the agreement in the sense that:

(a)   the particular accused agreed with one or more of the other persons referred to in the count of conspiracy to murder that the unlawful objective of the conspiracy, that is the killing of Terrence Falconer, should be carried out and

(b)   at the time of agreeing to this he intended that unlawful objective – the killing of Terrence Falconer – should be carried into effect” (emphasis added).

492. These directions were specifically set out in MFI 79. Having directed the jury in those terms, the trial judge reminded the jury of the requirement to consider the case against each appellant separately.

493. The trial judge then directed the jury in the following terms:

“Let us now consider together the second essential legal element which the Crown must prove beyond reasonable doubt. That is that the particular accused whose case you are considering participated in the agreement to kill Terrence Falconer. In order for an accused to have participated in the agreement, the Crown must prove beyond reasonable doubt that he knew that the objective of the agreement was to kill Terrence Falconer, and must have intended to carry that objective into effect. It is not necessary for the Crown to prove that the agreement was carried into effect, but it is necessary for the Crown to prove beyond reasonable doubt that the particular accused intended that it be carried into effect. He must have been a party to that common design with at least one other person ….. Please remember that you must consider the case against each accused separately. The Crown relies on circumstantial evidence to prove that there was an agreement to kill Mr Falconer and each of the accused participated in that agreement” (emphasis added in each case).

494. The trial judge then set out those matters specifically relied upon by the Crown to establish the third appellant’s participation in the conspiracy (such matters having been considered in respect of Ground 1). He repeated some of those matters in the passage extracted above at [444].

495. Finally, the trial judge returned to the issue of the necessity to consider the cases separately:

“It is important, members of the jury, that I now provide you with some assistance with the evidence that is available for you to consider on the count of conspiracy to murder. As you know, I have emphasised that there are three trials going on here. A trial against each of the accused. I have directed you during the trial at relevant times about particular parts of the evidence and have done so to assist you to understand whether a particular piece of evidence is available for your consideration in the case of a particular accused.

I have also referred during these directions to two distinct legal elements in a charge of conspiracy. The existence of the conspiracy and the participation of the accused in that conspiracy. Please remember that proof of the existence of the conspiracy does not mean proof that a particular accused participated in it. The evidence against each of the accused may include evidence relating to what the accused did or said. It might also include what was said or done by other alleged conspirators in the presence of the particular accused.

Generally speaking an accused is not to be held liable for the acts or statements of others if he is not present when those acts were done or those statements were made. However, there is an exception to this rule in the case of a charge of conspiracy. This exception permits in certain circumstances, and for certain limited purposes, evidence of acts done, and statements made by other alleged conspirators in the absence of one of their number to be admissible in the case against him” (emphasis added in each case).

496. Contrary to the submission advanced by counsel for the third appellant, the jury were not invited to conclude that the third appellant had participated in the conspiracy on the basis of acts with which he was entirely unconnected. The trial judge directed the jury, with precision, as to the evidence upon which the Crown relied to establish the third appellant’s participation. That direction was given in the context of the jury being directed as to the necessity to consider the case against each of the appellants separately, as well as being directed as to the fact that establishing the existence of the conspiracy was quite separate from establishing the third appellant’s participation in it.

497. In all of these circumstances, there is no room for a suggestion that the effect of the trial judge’s directions was to permit the jury to conclude that the third appellant was a participant in the conspiracy in the absence of any evidence of his participation.

498. It is unsurprising in these circumstances that no issue was taken by experienced senior counsel at trial in respect of the trial judge’s directions. Leave to appeal in respect of this ground should be refused.

Conclusion

499. We would make the following orders:

1. In respect of Ground 1, appeal against conviction dismissed

2. In respect of each of Grounds 2, 3 and 4, leave to appeal refused.

**********

Amendments

03 February 2017 - Par [384] Change "none of the jurors would not have been" to "none of the jurors would have been"

01 February 2017 - Pars [15] [129] change "Justin Burkhill" to "Justice Birk Hill"

[99] change "Witness C" to "Witness E"

[190] change "later" to "lateral"

[203] change "760mm" to "1760mm"

[221] change "Parramatta" to "Turramurra"

[227] anonymise name

[233] change "Parramatta" to "Silverwater"

[242] change "CLR 524" to "CLR 594"

[244] change "[227]" to "[228]"

[265] change "VSCA 141" to "VSCA 121"

[268] change "NSWCCA 232" to "NSWCCA 186"

[327] change "184 CLR 487" to "181 CLR 487"

[361] change "eight" to "nine"; change "called Witness A" to "called or texted Witness A"

[388] change "[27]" to "[26]"

[403] change "Dr" to "Mr"

[411] change "254 CLR 259" to "83 ALJR 579"

[478] change "Simpson JA and Wilson J" to "Simpson and Wilson JJ"

02 November 2016 - Par [228] name anonymised

31 May 2016 - Pars [329] [332] [333] [334] [337] change "I" to "we"

20 May 2016 - Cover Sheet - Representation

Change "Ms A Lewer" to "Ms G Lewer"

Decision last updated: 03 February 2017