Polidano v The Queen - [2003] WASCA 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: POLIDANO -v- THE QUEEN [2003] WASCA 93

CORAM: ANDERSON J
PARKER J
OLSSON AUJ

HEARD: 12 DECEMBER 2002

DELIVERED : 6 MAY 2003

FILE NO/S: CCA 68 of 2002

BETWEEN: JOHN POLIDANO
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction for wilful murder - Circumstantial evidence - Whether unsafe or unsatisfactory verdict - Whether direction failed to leave alternative verdicts open - Whether direction as to identification evidence insufficient - Whether direction insufficient as to the use of lies

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Applicant: Mr P R Eaton
Respondent: Ms T D Sweeney

Solicitors:

Applicant: Bowen Buchbinder Vilensky
Respondent: State Director of Public Prosecutions

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

Brown v The King (1913) 17 CLR 570
Carr v The Queen (1988) 165 CLR 314
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Domican v The Queen (1992) 173 CLR 555
Edwards v The Queen (1993) 178 CLR 193
Gammage v The Queen (1969) 122 CLR 444
Jemielita v The Queen (1995) 81 A Crim R 409
M v The Queen (1994) 181 CLR 487
Morris v The Queen (1987) 163 CLR 454
Plomp v The Queen (1963) 110 CLR 234
R v Dodd [1960] WAR 42

Case(s) also cited:

Barca v The Queen (1975) 133 CLR 82
Festa v The Queen (2001) 208 CLR 593

ANDERSON J: I agree with Parker J that this appeal should be dismissed.
By the first of his two grounds of appeal the appellant pleads:
"1.The verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, and is thereby unsafe or unsatisfactory."
It was open to the jury to find that the Holden Vectra motor vehicle belonging to the appellant's de facto wife Rosa Brooks was at the scene of the homicide when the crime was committed and that it departed within minutes and that the appellant was the driver of it. The evidence which compelled the finding that this vehicle was at the scene was that the bloodied tyre marks on the road were made by the same combination of tyres as were fitted to the passenger side front and rear of Ms Brooks vehicle and that the tyre marks were made between 20 and 120 seconds of the blood commencing to run from the deceased's body. The evidence was that one of the tyres (a Firestone Firehawk 680R) was an uncommon type and that the Holden Vectra was the only motor vehicle model to which that make of tyre was fitted during factory manufacture. The other mark had been made by a Toyo Proxes H4 tyre. There was uncontradicted expert evidence that the Toyo Proxes H4 was on the front passenger side of the vehicle which made the marks and the Firestone Firehawk 680R was on the rear passenger side. This corresponded exactly with the tyre arrangement on Ms Brooks' Holden Vectra. To the tyre evidence must be added the following. The evidence of the truck driver, Terry Quinn, was that when he drove through the scene very shortly before the time at which the homicide must have been committed the car which he saw stationary at the scene was quite new, bright red with a registration plate the first two symbols of which were "1A". Although Quinn could not state the make of the vehicle, he said that it had a "round emblem". Ms Brooks' Holden Vectra was quite new, bright red with a licence plate number 1AGI‑807 and a round emblem common to all Holden Vectras.
Putting all this together, in order to be not satisfied that the car at the scene of the crime was Ms Brooks' Holden Vectra the jury would have had to entertain the possibility that two cars existed in that locality at that time, both of which were quite new, bright red, with a round emblem, a number plate beginning "1A", a Firestone Firehawk 860R fitted to the left rear and a Toyo Proxes H4 fitted to the left front. I think that the jury were entitled to reject this as altogether unlikely.
The evidence proving that the appellant had driven Ms Brooks' vehicle to the scene and that he was alone when he did so is also overwhelming. There was ample evidence, not contradicted, that the appellant often, if not habitually, used Ms Brooks' vehicle. Ms Brooks' evidence was that he used it "every couple of days". There was evidence from two witnesses, a Tracy Chapman and an Andrew Turner, that the appellant was driving Ms Brooks' vehicle alone late at night on 23 September. The appellant apparently had quite a close relationship with Mrs Chapman and her evidence was that he visited her that night driving Ms Brooks' vehicle and that he stayed until a time which she could not precisely fix but which was after 11.00 pm. She was able to give this evidence by reference to one of her favourite television programmes which she was keen to watch that night but which his visit prevented her from watching and which had finished by the time the appellant left. That programme was scheduled to finish at 11.00 pm. Mrs Chapman said that the appellant was alone during the visit and no‑one else was in Ms Brooks' car unless, as she put it, "he was hiding in the boot". Mr Turner knew the appellant. He lived across the road from the Chapmans. He gave evidence that he saw the appellant arrive at the Chapmans' house sometime after 8.30 pm and he observed the appellant and Mrs Chapman talking together on the front porch of the Chapman house. His evidence was that the appellant was still there when he, Mr Turner, went to bed at about 10.00 pm.
There was no evidence that anyone except the appellant and Ms Brooks used the Holden Vectra regularly or that anyone except the appellant was in possession of it that night. Ms Brooks said that the only other person who might sometimes drive the car was their boarder, Frank Colledge, but only to run errands for her. If she or the appellant was not using the car the keys were kept in her handbag in the house. There was uncontradicted evidence that Ms Brooks did not drive the vehicle at any time after 9.00 pm on 23 September and that at the time of the homicide (between 12.16 am and 12.27 am on 24 September) she was in bed asleep.
The evidence of the appellant's son, Stephen Polidano, was that the appellant went out that night in Ms Brooks' car in company with Colledge and did not come home until after midnight, ie until the early hours of 24 September 1999. The truck driver Quinn gave evidence that when he drove through the scene at 12.16 am and observed the red car he saw a man on the road near to it. The general description given by Quinn (slight to medium build, about 5 foot 9 inches tall, wearing dark clothing) matched the general description of the appellant but did not match Colledge. Quinn did not see anyone else or any other vehicle. The deceased was shot there within the next 10 minutes. The truck driver coming behind Quinn, one Ray Dodd, arrived at the scene at about 12.27 am by which time the deceased was already dead. There was no evidence that any other vehicle was or had been at the scene except for the deceased's vehicle which was still at the scene with its engine running.
There was evidence that the appellant was interviewed by police and that when he was asked to give an account of his movements he first maintained that he had not left his house at any time during 23 September either during the day or at night. Later he admitted that this was a lie and that he had left the house during the day. He told the police that he had visited the deceased's house during the day to supply the deceased's wife, Suzanne Flinn, with cannabis and had called at the Chapmans' house but found them not at home. He never resiled from his statement that he did not leave his house during the night. If the jury accepted the evidence of Mrs Chapman and Mr Turner the jury were entitled to find that this too was a lie. As to the evidence of Mrs Chapman and Mr Turner it was not suggested in cross‑examination that either of them was being untruthful or that they had any reason to be untruthful, only that they were mistaken as to the date of the occasion. Neither Mrs Chapman nor Mr Turner would concede that they had made a mistake about dates. They both gave reasons, which the jury were entitled to accept as highly plausible, for being sure about the date of the appellant's visit and the approximate time of that visit. Their evidence was supported by the evidence of Stephen Polidano to which I have already referred. Whilst Stephen Polidano had made a prior inconsistent statement in support of his father's alibi, he gave an explanation for doing so which the jury was entitled to accept. He said that when his father did come home he told Stephen "If the cops ask, we haven't been out at all. We've been home all night". His evidence was to the effect that whilst he was initially willing to support his father he later changed his mind because, as he put it, he was "sick and tired of lying for Dad".
Furthermore, the jury were entitled to regard the appellant's instruction to his son to lie on his behalf as guilty behaviour. They were entitled to conclude that the appellant had attempted to construct a false alibi out of a consciousness of guilt thereby tacitly admitting guilt.
To this evidence may be added evidence of less weight concerning the presence of gunshot residue in a pocket of a vest which the appellant habitually wore and of evidence that he was familiar with the make of the rifle which had been the murder weapon. There was expert evidence that the murder weapon which was never located was a Winchester .22 calibre rifle from which three shots had been fired into the deceased's head. No cartridges were found at the scene, leading to the inference that the killer had gathered them up. There was evidence that if fired cartridges are handled, gunshot residue probably will be deposited on the hand and if the hand is then put in the pocket of a vest, such as the vest in question, gunshot residue could be deposited in the pocket. Gunshot residue which might have been from the kind of cartridge fired by the Winchester rifle was detected in the pocket of the appellant's vest.
It should be observed as to this evidence that the jury were practically instructed to ignore it in light of the evidence of Ms Brooks' son, Benson, which was to the effect that the vest was originally owned by him and he wore it kangaroo shooting during which he used a Winchester .22 calibre rifle and would have placed his hand in the vest pocket on many occasions after handling spent cartridges.
No motive was established but there was evidence that the appellant and the deceased were well known to each other and that both of them were involved in some way with illicit drugs. There was evidence that the deceased was at least a user of cannabis and that the appellant was a supplier of that substance. The jury were entitled to judge this case on the basis that people engaged in the drug trade at whatever level do from time to time fall victim to violence without all of the facts ever being known.
In my opinion, it was open to the jury to be satisfied beyond reasonable doubt that it was the appellant who shot and killed the deceased. I am not persuaded that the verdict was unsafe or unsatisfactory.
It is true that the case has a number of curious features. As I have said, the reason why the deceased was so ruthlessly executed at this remote spot remains unexplained although it can hardly be said to be inexplicable in light of the drug dealing that was going on in this small community and in which these two men were implicated. There are other matters. For example, it was revealed at trial that the truck driver, Quinn, whose evidence was so important to the prosecution case, was having a sexual affair with the deceased's wife. There was evidence of injury marks to the deceased's body, especially his arms, which were of recent origin and the cause of which was never established but which were consistent with him having been in a fight shortly before his death. It emerged that these matters initially led the police to have suspicions about Quinn. There was timing evidence however which demonstrated that Quinn must have passed well beyond the scene on his haulage journey by the time of the killing. The timing evidence with respect to the deceased's own movements left no room for the suspicion that there was a rendezvous between these two men, that is Quinn and the deceased, or an interception by one of the other; and the theory fell away anyway in light of the indisputable evidence of the presence of another car (Ms Brooks' car) at the scene at the time of the killing.
Then there is the mystery surrounding the boarder Colledge. The evidence of Stephen Polidano was that when the appellant left the house that night he left in company with Colledge and he returned in company with Colledge. Yet there is clear evidence that for lengthy periods between leaving home and returning, the appellant was alone. As the trial Judge pointed out to the jury, this raised the unanswered question as to what happened to Colledge, who did not give evidence.
It is perhaps another curious fact that although Quinn and the appellant were known to each other and had been for some years, Quinn did not recognise the appellant as the person he saw in his headlights at the scene. Quinn was asked directly in examination in chief whether the person he saw near the red car at the crime scene was someone whom he knew. The relevant part of that evidence is as follows:
Are you able to say whether or not the man you saw was anyone known to you? ‑‑‑ He didn't appear to be anyone that I knew. The person made no effort to try to get my attention. If anything he was more intent on not being seen.
Did you get a look at his face? ‑‑‑ No."
The background to this evidence is that Quinn was a truck driver who drove backwards and forwards on this haulage road during his shift, a fact that would have been well known to his acquaintances. It is possible that Quinn thought he was being asked about the person's behaviour rather than for an identification - whether the person he saw was behaving like someone who had come to that place to meet him. Be that as it may, Quinn did not say that he recognised the person.
Then there was the puzzling evidence that the driver's seat of the deceased's vehicle was found to be set in the forward position, which

would not have suited a person of the deceased's size, suggesting that he may have been driven to the scene by a person of smaller stature, perhaps a woman, who must then have driven away or been driven away in another vehicle. Against this there are other explanations for why the seat may have been forward. There might have been something under it which the deceased wished to retrieve by pushing the seat forward. And anyway there would seem to be no reason why if someone had driven the deceased to the rendezvous point that person would have left the car there with its engine running.

It should also be observed that, apart from the sighting by Quinn of the stationary red car and the finding by Dodd of the deceased's car near his body neither of them saw any other vehicle movement - yet obviously the deceased's car drove to the scene and the killer's car drove away from the scene in the short interval of time separating the two haulage trucks.
Notwithstanding that the evidence left many questions unanswered the jury were entitled to be quite satisfied that the deceased had driven or had been driven to this point on this haulage road to rendezvous with the person who was the driver of Rosa Brooks' Holden Vectra already at the scene; and that almost immediately upon arrival at the scene he was shot and killed by someone intending to kill him; and that the person who killed him was the person who he had arranged to meet and that that person was the appellant.
By his second ground of appeal the appellant pleads that the trial Judge misdirected the jury in four respects. I agree with Parker J that no part of the second ground of appeal has been made out. There is nothing I can usefully add to what Parker J has written about that.
PARKER J: This is an appeal against the conviction on 5 April 2002 of John Polidano of the wilful murder of Allan Roy Flinn following a trial at Busselton which had commenced on 26 March 2002.
The offence occurred at Kemerton, which is near Bunbury, on the night of 23 - 24 September 1999.

The facts and issues at trial

The deceased lived in Brunswick Junction and worked at a mine site. At the time of the offence, the appellant resided close to the location of the killing, and had a long-standing social acquaintance with both the deceased and his wife. The appellant, the deceased and his wife Suzanne Flinn were also connected through their involvement with illicit drugs.

The appellant supplied cannabis to the deceased and his wife from time to time. There was also evidence at trial that the deceased’s wife had, for some time prior to the offence, been having an affair with a friend of the deceased, Terry Quinn.

It was the evidence of Suzanne Flinn that after he finished work just after midnight on 24 September 1999, the deceased arrived home in his truck at 12.08am. Shortly afterwards, he drove off in his maroon Daewoo Lanos in the direction of Wellesley. Some twenty minutes later, his body was found lying in the middle of an isolated private haul road at Kemerton. He had been shot three times to the head.
Terry Quinn and Ray Dodd were driving their trucks towing road trains along that isolated haul road that night. They were hauling silica from a mine site to the port at Bunbury. Records from the mine site and the port and timing evidence established that Terry Quinn would have driven through the scene of the offence at about 12.16am. He described seeing a man of slight to medium build, 5' 9" tall, and wearing dark clothing, at the scene standing near a stationary bright red vehicle which had a round emblem and a registration plate commencing "1A". This vehicle was on the left-hand side of the road, off the bitumen, with its headlights facing to the north. At about 12.27am, Ray Dodd also drove through the scene. His evidence was that when approaching the scene he saw the deceased’s Daewoo Lanos. This also was on the left hand side of the road, with it’s headlights on, but facing towards his on-coming truck, ie facing to the south. The body of the deceased was lying on the road. Blood was trailing from his head to the edge of the road. Dodd was able to avoid hitting the body but could not stop in time to avoid driving through the trail of blood.
Evidence was given by a forensic pathologist Dr Karin Margolius that the deceased had been shot in the head three times. The first shot being fatal and inflicted at close range when the deceased was standing. The second, a glancing wound, was most likely inflicted as the deceased fell. The third shot, which would also have been fatal, was inflicted with the barrel of the rifle resting against the deceased’s head as he lay on the ground. All three shots were from a .22 Winchester long range rifle.

Crown evidence

At trial, the Crown's case was circumstantial. The accused had denied any implication in the killing when interviewed and maintained this on oath at the trial. The defence case was an alibi; the evidence of the appellant was that he was at his home at the time of the killing. When first interviewed by the investigating police the appellant had offered the same alibi, saying he had been home all that day and night. The Crown argued there was a compelling inference to be made, from the isolated location and late hour of the offence, that the deceased was not killed at random, and that the killer must therefore have been connected to the deceased in some way. The Crown relied on several key pieces of evidence to link the appellant to the offence and the deceased.

Evidence was led from several witnesses, but principally the deceased’s wife, his son Steven Polidano and two others, that the appellant had in fact left his home both during the day and on the night of the offence. The Crown led evidence from Suzanne Flinn that the appellant had visited her house around 10.30 am on the day of 23 September, and that later in the day she had telephoned the appellant's home, although she said she was not certain that she had spoken to the accused when she telephoned. Suzanne Flinn denied, however, passing on any message to her husband that would have had the effect of sending her husband to the isolated site of the killing, and could offer no reason for his being there or for his death.
Steven Polidano, the appellant's son, lived at home with the appellant, the appellant's de facto wife Rose Brooks and Frank Colledge their boarder. He gave evidence that the appellant, in company with Frank Colledge, had left the house on the night of 23 September 1999. This evidence was in contradiction of his earlier statements to the Police. He said that on that night, the appellant had worn dark jeans and a long woollen coat with what he thought to be a dark woollen jumper underneath. He was unable to recall the precise time at which the two men left, but said that both men were gone for between two to three hours, perhaps more, and had returned some time after midnight. Steven Polidano further stated that upon returning to the house, the appellant said to him "If the cops ask we haven't been out at all- we’ve been home all night".
Further evidence to establish that the appellant had left his home on the night of the offence was given by Tracey Chapman and her neighbour Andrew Turner. Tracey Chapman stated that on the night of 23 September 1999 the appellant had visited her house in Brunswick Junction shortly after 9.30pm. Her evidence was that the appellant arrived alone in the bright red Holden Vectra she knew belonged to the appellant's de facto wife Rose Brooks. He was wearing a black vest, black jeans and a black T-shirt. He stayed until some time after 11pm. This was confirmed by Andrew Turner.
Terry Quinn gave evidence that he did not recognise either the man or the car which he saw as he drove at speed through the scene of the killing in his truck. The man did not look toward him. It was the Crown's case, however, that Mr Quinn's description was generally consistent with the appellant's description, and entirely inconsistent with the evidence as to the description of Frank Colledge which was "really big and mean, he's 6 foot something, very wide, very big, has black or dark brown hair, people call him Big Frank". Terry Quinn's description of the vehicle was also consistent with the bright red Holden Vectra belonging to Rose Brooks. This had licence plates commencing with "1A". There was evidence that Holden Vectras have a round emblem as described by Terry Quinn.
The Crown led forensic evidence that, apart from Quinn's truck tyre marks, there were tyre tread marks in blood on the roadway at the scene. These lead to the north from the blood trail which ran from the deceased’s wounds. These tyre tread marks had been matched to the passenger side of a vehicle fitted with a Toyo Proxes H4 tyre on the passenger front and a Firestone Firehawk 680 on the passenger rear tyre. Expert evidence established that, to make the trail marks found at the scene, a vehicle fitted with those tyres would have driven through the blood trail between 20 and 120 seconds after the blood had begun to flow from the deceased’s wounds. Evidence was led that the front passenger side tyre of Rose Brooks' red Holden Vectra was a Toyo Proxes H4 and the rear passenger tyre was a Firestone Firehawk 680. In each case these tyres on Rose Brooks' Vectra were of a size and tread pattern which matched the tyre marks on the road at the scene. The only motor vehicle fitted with the Firestone Firehawk 680 series tyres at factory is the Holden Vectra. Only 1257 such tyres were sold nationally between 1997-99. Hence, they were relatively rare. The Crown offered further evidence that the bright red Holden Vectra owned by Rose Brooks was the only car belonging to the household and that the appellant habitually used either this vehicle or a Harley Davidson motorcycle. The tyre marks at the scene were at a slight angle to the direction of the road and in a position such that they were, on the Crown's case, consistent with the vehicle which made them having pulled out onto the road from off the left hand side to divert around both the deceased's vehicle (then parked in front of it and facing in the opposite direction) and the body lying on the roadway. Based on all of this evidence, the Crown contended that the bright red Holden Vectra belonging to the appellant's de facto wife Rose Brooks was at the scene of the offence only seconds after the shooting, and then drove away.
The Crown also adduced evidence that the appellant admitted when interviewed by the police, that he had experience using a .22 Winchester rifle while hunting and in his work at the local abattoir shooting beef, of an alleged admission made by the appellant to a Cheryl Sheehan that he was involved in the killing and that it was drug related, and of cartridge residue consistent with the chemical characteristics of a fired .22 Winchester cartridge which was found in the pocket of a leather vest habitually worn by the appellant.
The Crown contended that, critically, the evidence placed the very car the appellant habitually used, and was using that night, at the scene immediately after the offence, despite the appellant's alibi that he was at his home at the time, and that there was a compelling inference from this, together with the rest of the evidence, that the one man seen by Quinn at the scene shortly before the offence was the appellant, and that it was the appellant who shot and killed the deceased. It was not the Crown case that he was either an accessory, or merely connected to the killing in some way. The Crown presented its case against the appellant solely on the basis that he was the actual offender who shot and killed Flinn.

Evidence in defence

Against this body of evidence, the appellant's defence at trial was based on an alibi. It was the appellant's evidence that he was home all night on the evening of the offence, in the company of Steven Polidano, Rose Brooks and Frank Colledge. This was supported in a general way by Rose Brooks, whose evidence was consistent with the alibi. She said she went to bed earlier than the appellant, he subsequently came to bed and was there the next morning. It was her evidence that when she went to bed both Steven Polidano and Frank Colledge, as well as the appellant, were at the house.
The defence also attacked the credibility of Terry Quinn as a witness, and directly pursued with witnesses the view that the deceased had gone to the isolated location to meet and confront Quinn about the relationship with his wife, and that a struggle followed in which the deceased was shot. The defence drew attention to Crown evidence of unusual injuries to the deceased's arms, sustained, on the medical evidence, sometime within six hours of his death. It was suggested that these may have arisen in some way in connection with the commission of the offence. In particular, the view was explored that the wounds were caused by impact with the step of Quinn's truck. The Crown was unable to explain these injuries, but led evidence from a forensic pathologist that, although there was some similarity between the pattern of injury to the arms and the grid pattern on the step of Quinn’s truck, it was not a match and the truck steps could not be the source of the injuries. Furthermore, the Crown adduced detailed and meticulously supported evidence, as to the departure time of Quinn’s truck from the port on the critical return journey to the mine, and the time required for that journey, the departure time of the deceased from his home that night and the time required for him to reach the scene of the killing from his home. If accepted, as it might properly be, this evidence showed that the deceased could not have reached the scene by the time Quinn's truck drove through the scene. Further, the only vehicle marks in the blood trail on the roadway at the scene were the car tyre marks described earlier and those of Ray Dodd's truck which, on the timing evidence, was some 11 minutes behind Quinn's truck.
The defence also attacked the evidence of Cheryl Sheehan as to the admissions of the appellant on the basis that it was unsubstantiated and vague. The Crown accepted these weaknesses in its closing address. Evidence was also led in defence from Rose Brooks' son Benson to suggest that, as the former owner of the vest, he may have been responsible for depositing the cartridge residue found in the pocket. The Crown also acknowledged in its closing to the jury that, if the evidence of Benson were accepted, the cartridge residue evidence had little probative weight against the appellant. It should be noted, however, that even on that basis, there is no inconsistency between this body of evidence and the other elements of the Crown case. Similarly, even if Cheryl Sheehan's evidence was thought to be lacking in credibility, there is no inconsistency with the other elements of the Crown case which arises as a consequence.
It was also conceded by the Crown at the end of the trial that there were several issues that remained unexplained, including the motive for the killing and, if Steven Polidano’s evidence was accepted, the whereabouts of Frank Colledge, both at the time of the offence when the appellant visited Tracey Chapman sometime after 9.30 pm and until after 11 pm that evening. The Crown contended that these matters did not detract from the overwhelming inference to be drawn from the whole of the evidence, that it was the appellant who was at the scene and deliberately shot and killed the deceased.

Grounds of Appeal

Following amendment, the appellant advances two grounds of appeal:
"1.The verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, and is thereby unsafe or unsatisfactory.
2.The learned auxiliary judge erred in his charge and direction to the jury on the following matters:
(a)by in effect confining the jury's consideration to verdicts of either guilty or not guilty of wilful murder and excluding from their consideration verdicts in respect of murder and unlawful killing;
(b)by directing the jury upon circumstantial evidence in general terms without sufficient reference to the facts of the case; and without illustrating the prospects of competing hypothesis consistent with the innocence of the appellant;
[Ground 2(b) was abandoned in the course of argument].
(c)by inadequately directing the jury on identification, in that the Crown having contended that the applicant was at the scene of the killing, the evidence of "identification" called for a full direction on the specific and general dangers involved before an identification of the applicant could be made;
(d)by inadequately directing the jury in the use of lies 'to assist … in finding the accused guilty of the offence with which he has been charged';
(e)
(i)by reading section 7 of the Criminal Code to the jury (during deliberation and upon their return with a question) without full direction of its area of application in a circumstantial case against the applicant on the question of intent to kill; and
(ii)by permitting legal discussion by the prosecutor relating to s 7 of the Criminal Code in the presence of the jury (then deliberating)."

Ground 1 - Verdict unsafe or unsatisfactory

A verdict will be unsafe or unsatisfactory if an appellate court concludes that a jury, acting reasonably, ought to have entertained a sufficient doubt as to the guilt of an accused such that it entitled him or her to an acquittal: Plomp v The Queen (1963) 110 CLR 234 at 244 and 250; Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 531 ‑532. A verdict may be unsafe or unsatisfactory even though there is sufficient evidence to entitle a reasonable jury to convict: Morris v The Queen (1987) 163 CLR 454; Carr v The Queen (1988) 165 CLR 314 at 333.
The joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 494-495 illuminated the scope of this ground, and its limitations, in the following terms:
" … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
M v The Queen involved an appeal against conviction on two counts of indecently assaulting a daughter and three counts of sexual intercourse with the same daughter. The appellant denied the offences both in an interview with the police and in his evidence at his trial. It was accepted by the court that the jury had believed the daughter and disbelieved the appellant. Even making full allowance for the manner in which both gave their evidence, in the absence of corroboration, discrepancies and deficiencies in the evidence of the daughter, aspects of her conduct including previous unsustained allegations of sexual misconduct against other persons, medical evidence that there was no physical evidence of penetration, and the improbability of the appellant acting as she alleged in the circumstances prevailing in the home on the night, namely on a squeaky bed in an unlocked room of a fully occupied small house within hearing distance of a room occupied by the appellant's wife, persuaded the High Court that the convictions were unsafe and unsatisfactory.
Thus, notwithstanding that there is evidence to sustain a verdict of guilty, it is necessary for this Court to determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. In doing this, full regard is necessary to the jury's primary responsibility to determine guilt or innocence, and the advantage enjoyed by the jury from having seen and heard the witnesses.
Four matters are specifically relied on in support of the submission that the verdict is unsafe and unsatisfactory:
1.discrepancies in several key elements of the Crown case;
2.the evidence of Steven Polidano was tainted because of his own admissions of lying in earlier statements to the police;
3.the alleged identification evidence of Terry Quinn was inadequate; and
4.the absence of direct evidence linking the appellant to the scene of the killing or the shooting of the deceased.
I will consider each of these in turn.

1. Discrepancies in evidence

Counsel for the appellant relied on discrepancies between Tracey Chapman’s recollection of a programme on TV the night of the appellant’s visit, and that of her husband. It is contended that this cast doubt on the accuracy of her recollection of the date of the appellant's visit. However, there was other evidence, confirmed by court and social security records, which confirmed the accuracy of the recollections of both Tracey Chapman and Andrew Turner of events of the day following the appellant's visit to Tracey Chapman's house. This evidence, if accepted by the jury, was well capable of confirming the reliability of the evidence of Tracey Chapman and Andrew Chapman that the appellant's visit was on the night of 23 September, notwithstanding any deficiency in Tracey Chapman's recollection of the TV programme.
Reliance was also placed on differences between the evidence of Steven Polidano and Tracey Chapman in their descriptions of the clothing worn by the appellant on the night of 23 September 1999, and also Terry Quinn's description of the clothing worn by the man he saw at the scene. Terry Quinn described dark clothing, Steven Polidano described dark jeans, a long woollen coat and a dark woollen jumper underneath, and Tracey Chapman described black jeans, shirt and leather vest.
The descriptions given by Steven Polidano and Tracey Chapman clearly differ in the detail of the garments worn. Both Steven Polidano and Tracey Chapman often saw the appellant. The evidence does not suggest that the clothing worn by the appellant that night was unusual for him, or of any particular significance to either of these witnesses when they saw him that night. The nature of the discrepancy was the subject of clear direction. The jury was invited by defence counsel to attach significance to the discrepancy. It was not a matter that is likely to have passed unnoticed in their deliberations.
In my view, it would not be unreasonable or dangerous for the jury to accept other material evidence of these witnesses notwithstanding that their descriptions of the clothing of the appellant differed as they did. Their familiarity with the appellant, or some lapse in observation or recollection, could well provide a simple and adequate explanation. In respect of each of these two witnesses, this was but one aspect of their evidence to be weighed in assessing credibility. In a matter such as this the jury were in a particularly advantageous position and it would not be an abuse of their position, or dangerous, to rely on other aspects of the evidence of each of these two witnesses notwithstanding this difference.
It was further denied by the appellant in evidence that he had a coat such as described by Steven Polidano. However, it was the evidence of Rose Brooks that he did in fact have a coat of that description. In my view, if the issue proved to be material to the deliberations of the jury, it was reasonably and properly open to the jury to accept that the appellant did have a coat fitting the description given by Steven Polidano, notwithstanding the appellant's denial.
The descriptions of Steven Polidano and Tracey Chapman are each consistent with the very general description given by Terry Quinn. Given the circumstance, on his evidence, that Quinn only saw the clothing of the man in his truck lights as he drove past at night at over 80 kph, as detailed more fully later in these reasons, it is not surprising that Quinn's description is not more specific.
For the reasons given, it is not unreasonable or surprising that the jury should have convicted despite the matters now raised as involving discrepancies. These were all matters well and truly ventilated before the jury.
Further, I am not persuaded that the verdict is either unsafe or unsatisfactory by virtue of all or any of the matters raised.

2. The Evidence of Steven Polidano

It was a critical element of the evidence of Steven Polidano that the appellant was away from their home that evening for between two and three hours, or more, returning after midnight, and that on his return he said to Steven Polidano "If the cops ask we haven't been out at all - we've been home all night." It was the evidence of Steven Polidano that the appellant left the house with Frank Colledge, who also returned with him. In marked contrast, the effect of Steven Polidano's original statements to the investigating police was that his father had been home all night and did not leave the house. He had changed his position in this respect before the trial and given a further statement which accorded with the evidence he gave at the trial.

At the trial it was the evidence of the appellant, supported at least generally by his de facto wife, Rose Brooks, that the appellant had been in the house all night. Frank Colledge was not called to give evidence, either by the Crown or the defence.
Steven Polidano explained in his evidence that his original statements to the police that his father was at home were false. He explained how and why he came to tell the truth despite his earlier statements. It was his evidence that he was "sick and tired of lying for dad". Obviously the cross‑examination of Steven Polidano examined this aspect of his evidence closely. It was put that he was a practiced liar, and that his change of statement arose out of anger that his father had not visited him whilst he was in gaol. He did acknowledge that this had upset and disappointed him, as did his father's failure to send him money, but the evidence went no higher than this. It was further put to him that it was his evidence that was untruthful, and not the original statements made by him to the police.
Despite the determined cross‑examination on these matters, Steven Polidano was unshaken in this evidence as to the appellant's absence from their home.
In his evidence the appellant also suggested that Steven Polidano could have given this false evidence against the appellant because Steven wanted the appellant's Harley Davidson motorcycle. The appellant also acknowledged he had on occasions been "physical" with his son, but only when, and because, Steven Polidano had been abusive to the appellant.
Clearly this aspect of the evidence of Steven Polidano was of great significance in the trial. The accepted fact that his evidence on this matter at trial was contrary to his original statements was critical to his credibility. The issue received considerable attention in evidence and in the closing submissions of counsel. The direction to the jury dealt specifically with this issue and it is not submitted that the direction failed to adequately and fairly deal with the issue. This was very much a jury issue. The significant advantage the jury enjoyed from having been able to assess the critical witnesses, especially Steven Polidano, as the relevant evidence was given, and generally, is obvious.
While an acceptance by a witness that he has lied to the police on a critical issue is of obvious concern and could well provide reason for a jury not to accept the evidence of that person, that is not necessarily so. In an appropriate case it is open to the jury to accept the truth of the evidence given at trial, despite earlier lies, and to act on it.
In this particular case the close family relationship could well explain why Steven Polidano would, initially, lie to assist his father, even though he might later realise the seriousness of what was at issue, and his own situation, and determine to tell the truth in court. Such a view was well open on the evidence. While reasons were suggested in the trial why Steven Polidano might lie in his evidence, none of these appear to be at all compelling.
It is also significant that the evidence of Steven Polidano in the trial about the appellant's absence from their home at the critical time does not stand alone. It is, of course, entirely consistent with the other evidence on which the Crown relies, including the evidence which would indicate the presence of Rose Brooks' car at the scene within seconds of the killing.
In the circumstances, it was open to the jury, despite his earlier lies to the police, to accept as truthful the evidence of Steven Polidano that the appellant was absent from the house for two or three hours or more, returning sometime after midnight. The earlier lies do not provide reason, in my view, to consider that a verdict of guilty which is likely to have been founded, at least in part, on the acceptance of this evidence of Steven Polidano, is unreasonable or unsafe or unsatisfactory. I am not persuaded that by virtue of this evidence there is a significant possibility that an innocent person has been convicted.

3. Identification by Quinn

Counsel argues that even though Terry Quinn had known the deceased for a considerable period of time, no positive identification can be found in his evidence. The appellant advances two submissions, to quite different effect, about Quinn's evidence. The second is concerned with the direction given about identification and is dealt with later in these reasons. The first contends that, because Quinn did not identify the appellant even though he'd known him for a considerable time, the jury ought to have entertained a reasonable doubt that it was the appellant at the scene.
Terry Quinn in his evidence at the trial described what he saw as he approached the scene in his truck on an unlit road travelling at over 80 kph:
"I saw a car in the distance or I saw the tail lights of a car in the distance…
There was a person in the middle of the road moving towards the car and they proceeded to move behind the car where the left-hand pillar is. Once I was sort of out the way I’m pretty sure I dropped my lights again and then when I got closer to the car I put them back up again to make sure there was no-one else around. I saw a man towards the middle of the road and he then proceeded to walk back behind the car. Just walking. I thought he was about – he appeared to be about 5 foot 9, but I only took that estimate after I passed the car; dark clothing; what I thought was dark hair, or possibly a beanie."
Asked about the mans build, he stated "slight to medium".
Then, when asked how far he was from the vehicle when he first noticed that there was a man, Terry Quinn stated:
"I’d say about 300 metres. I put my headlights down and then about 300 metres from the vehicle I put the spotlights back on, just to make sure that people weren’t walking around, and that’s when I noticed. He moved to the rear of the vehicle and then he proceeded to walk towards the back of the vehicle. He just appeared to be looking out to the bush. He didn’t want to look at the truck. That’s the way it appeared. I didn’t see anybody else."
Asked whether the man that he saw was anyone that he knew, he replied:
"He didn’t appear to be anyone that I knew. The person made no effort to try to get my attention. If anything he was more intent on not being seen."
Finally, asked if he saw the mans’ face, he replied "No".
Terry Quinn’s evidence quite clearly did not identify the appellant or attempt to do so. It was of a general and descriptive nature. It was significant to the Crown’s case, of course, especially because its effect is that there was only one person, and one car, at the scene a short time before the offence. As considered earlier in these reasons, he also described the car. That description was consistent with the bright red Holden Vectra belonging to Rose Brooks, although Terry Quinn's evidence did not make that connection. The very general description of the man he saw at the scene was also consistent with the build of the appellant. As mentioned earlier, by contrast the evidence as to Frank Colledge's description was "really big and mean, he's 6 foot something, very wide, very big .…" The Crown relied upon this to refute any suggestion that the man seen at the scene immediately prior to the offence by Terry Quinn could have been Frank Colledge. Quinn's description of the clothing was not inconsistent with the various more detailed descriptions by other witnesses of the clothing worn by the appellant that night. There was also evidence that the appellant frequently wore a beanie.
Given the lighting conditions, the speed at which Quinn was driving and the apparent attempts of the man to avoid being "seen", as Quinn described it, including not looking towards Quinn's truck as it passed, it is not really surprising that Quinn did not identify the appellant despite their acquaintanceship. It does not appear to me, in the circumstances, that any real force attaches to Quinn's failure to identify the man.

4. Absence of Direct Evidence Linking Appellant to the Scene or the Shooting

It was submitted that, apart from evidence which could support a finding that a red Holden Vectra belonging to Rose Brooks was the car at the scene of the killing after the deceased was shot, there was no direct forensic evidence which connected the use of that vehicle on the night of the killing to the appellant. There were no fingerprints, DNA evidence, gunshot residue, weapon or cartridge cases found in the car. In the absence of such evidence, and of direct evidence that the appellant was at the scene of the killing or that he fired the fatal shot, it is submitted there was no adequate or safe evidential basis for the jury to find that it was the appellant who was at the scene and to "make the leap" to find the appellant guilty beyond reasonable doubt of shooting the deceased. It is submitted that, even if the evidence of Steven Polidano and Tracey Chapman was accepted by the jury as truthful, then taken at it’s highest, the Crown case could only have enabled the jury to conclude that the appellant had indeed left his house that night, contrary to his evidence.
As has been indicated the Crown case against the appellant was circumstantial. The approach which the jury should take to the evidence where the evidence is circumstantial was considered in Chamberlain v The Queen [No 2] (supra), where Gibbs CJ and Mason J said at 535 ‑ 536:
"We have no doubt that the position is correctly stated in Reg v Beble [1979] Qd R 278 at 289, that 'It is not the law that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonable doubt as to that evidence and reject it if they are not so satisfied.' At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermitically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen (1980) 71 Cr App R 228 at 231.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together'…
In Plomp v The Queen (1963) 110 CLR 234 it was argued that the motives of the accused could not be considered until it was shown by evidence that in some physical way his actions were responsible for his wife's death.
The Court rejected this argument. Dixon CJ said at 242:
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged… I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless, the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial … in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence."
In this case the appellant denied to the police and in his evidence that he had any knowledge of the killing. It was his evidence that he was at home all that night and had not used Rose Brooks' car. He did, however, know the deceased and had dealt in drugs with him. He had also visited the deceased's wife that day, and supplied her with drugs, although initially he had told the police he had not left his home all day. The scene of the killing was in reasonably close proximity to the appellant's home involving a drive of some 11½ minutes by the quickest route.
The evidence relating to the tyre tread marks at the scene is quite compelling and well capable of establishing that the bright red Holden Vectra owned by the appellant's de facto wife Rose Brooks was at the scene between 20 and 120 seconds after the shooting. The scene was a private haul road in an isolated location. No innocent reason is apparent why Rose Brooks' Vectra would be in that location in the early hours of the morning driven by any member of the appellant's household.
While the appellant had denied leaving his home or driving the red Vectra that night, the evidence of both Tracey Chapman and her neighbour Andrew Turner was also well capable of sustaining a finding that the appellant visited Tracey Chapman that night, leaving after 11 pm, and, significantly, that he was driving Rose Brooks' red Vectra, and that he was then alone in the car. It was the evidence of Steven Polidano that the appellant, with Frank Colledge, had gone out in Rose Brooks' Vectra. They returned together. Steven Polidano could not be precise as to the timing but they were away from the house for some "two, maybe three hours, maybe a little bit longer" and it was after midnight when they returned. It was also the evidence that the appellant often used Rose Brooks' red Vectra.
The timing evidence was well capable of supporting a finding by the jury that Terry Quinn drove through the scene of the killing at about 12.16 am and Ray Dodd at about 12.27 am. If so, the shooting occurred between those times. There is no inconsistency between the appellant's presence at the scene at such times and the evidence of Steven Polidano as to the time he was absent from his house and the evidence as to the time of his visit to Tracey Chapman.
The description of the car Terry Quinn saw at the scene shortly before the shooting is also consistent with Rose Brooks' red Vectra, including the license plate commencing "1A". The evidence relating to the tyre tread marks, including the evidence as to the angle to the road at which these marks were made, is quite capable in the circumstances of establishing that it was Rose Brooks' Vectra that was sighted by Terry Quinn at the scene shortly before the shooting, ie that Rose Brooks' red Vectra was waiting at the scene for a short time before the shooting, and was at the scene at the time of the shooting and drove off within 120 seconds after the shooting.
Even though it was the case, on the evidence of Steven Polidano, that Frank Colledge was with the appellant when he left their house in Rose Brooks' Vectra and later returned sometime after midnight, only the appellant was seen by Tracey Chapman and Andrew Turner when he visited Tracey Chapman and only one person was seen by Terry Quinn with the red car at the scene before the shooting. The description of that person was consistent with the appellant, whereas, as indicated earlier, it is entirely inconsistent with the evidence as to the height and build of Frank Colledge.
It is the significant evidence of Steven Polidano that when the appellant returned home sometime after midnight with Frank Colledge, it was the appellant who said to him - "If the cops ask we haven't been out at all - we've been home all night".
Given the circumstances, the appellant's evidence that he had been home all night and had not used Rose Brooks' red Vectra, and his similar statements to the police, could each, properly, have been accepted by the jury as lies, lies which he told and maintained by virtue of what occurred during his absence from the home that evening in the red Vectra. What was said by the appellant to Steven Polidano on the appellant's return to the house (as to what to say to "the cops") could well afford further confirmation of that.
The circumstantial evidence quite clearly allowed the inference that the appellant, alone, was waiting at the scene and was present when the deceased arrived, and when he was shot. There was however, no satisfactory foundation in the evidence for any alternative event, which may have occurred while the appellant was away from the home that evening in the red Vectra and which might cause him to lie to seek to establish that he was home all night, and did not use the red Vectra, and to seek to have his son lie to support this.
Apart from the evidence as to the cartridge residue in the pocket of the appellant's jacket, which the jury may well have discounted in the light of the evidence of Rose Brooks' son, there was no forensic evidence directly evidencing the appellant's presence at the scene (as distinct from the presence of Rose Brooks' red Vectra) or to indicate that he had used a Winchester .22 firearm, or any firearm, that evening. No weapon has been found. These matters were, of course, stressed to the jury. They required to be weighed. Nevertheless, the jury might reasonably have considered that these were not telling considerations in light of all the evidence. The absence of physical evidence such as DNA and fingerprints of the appellant at the scene is hardly surprising, given what is known of, or can be inferred as to, the events at the scene. The absence of traces of cartridge residue or other residue from a firearm, or spent cartridges, in the car may well have been considered by the jury to be explained by evidence that, by the time the police investigators were led to the appellant and Rose Brooks' red Vectra was examined, it appeared to have been particularly well vacuumed and cleaned in the front seat area. The absence of a firearm and spent cartridges has obvious explanations that are not inconsistent with guilt.
It is further submitted that, even if it is accepted from all the evidence, contrary to the appellant's primary submission, that the appellant was at the scene at the time of the shooting, there is no evidence to justify any inference being drawn, beyond reasonable doubt, that it was the appellant who shot the deceased. Quite clearly the evidence must be capable of supporting an inference that the appellant was the perpetrator, and of excluding other reasonable hypotheses, open on the evidence, that are consistent with innocence. The submissions of the appellant in this respect, however, appear to seek to erect a barrier between his presence at the scene, and the firing of the shots, which is not really justified as a matter of logic in the circumstances.
The very evidence as to the presence of the red Vectra of Rose Brooks at the scene from shortly before to immediately after the shooting, and of no other vehicle apart from that of the deceased, the isolated nature of the scene, the lateness of the hour, the ongoing relationship of the appellant with the deceased and his wife, the sighting of only one person by Terry Quinn, that person being of a description generally consistent with the appellant and not consistent with Frank Colledge together with the absence of Colledge when the appellant was with Tracey Chapman in the red Vectra a little earlier, what was said by the appellant to Steven Polidano when he returned to his home, and his lies to the police are together, in my view, capable of supporting an inference, not only of the appellant's presence at the scene, but also that it was the appellant who shot the deceased. A variety of possibilities may be conjectured, that would introduce other persons at the scene but, apart from two persons, these have no foundation in the evidence. The two are Terry Quinn and Frank Colledge. Terry Quinn's presence and motive to kill the deceased were urged by the defence at trial, but, as indicated earlier, the timing evidence was clearly capable of satisfying the jury that he had not reached the scene at the time of the shooting. While, on the evidence of Steven Polidano, Frank Colledge was with the appellant when they left the appellant's house that evening and when he returned, it was open to the jury to conclude that, even if they left the house together, Frank Colledge was no longer with the appellant in the red Vectra when the appellant visited Tracey Chapman. If that were the jury's finding, given the sighting of only one person by Terry Quinn as he drove through the scene shortly before the shooting, the jury could well have concluded that the appellant was still alone at the scene, in which event he must have picked up Colledge later before returning home. Similarly, self‑defence or provocation might be postulated, but again there is no reasonable foundation in the evidence. In my view, therefore, it was open to the jury to be satisfied beyond reasonable doubt that the accused shot the deceased.

The evidence as to the nature of the bullet wounds and how the shots were fired leaves open, in my view, only the inference that the shots were fired with an intention to kill the deceased.
It is also the case that no motive was established. Again, while that was stressed to the jury, and required to be weighed, motive is not a necessary ingredient of the offence. While the existence of a motive may have led some further support to the Crown case, the absence of an identified motive hardly precludes a finding of guilt in the circumstances of this case, given the nature of the available evidence.
The credibility of some of the individual witnesses, including the appellant, his son Steven Polidano and his de facto wife Rose Brooks, was of considerable significance. The conduct of the trial and the trial Judge's charge could have left the jury in no doubt about this. Necessarily, the impression of individual witnesses gained by the jury as the evidence was given is likely to have paid a very significant part in the assessment of each witness and the views formed as to the overall effect of the evidence. The jury had a clear advantage over this Court in that regard. For reasons considered earlier the evidence of Steven Polidano warranted particularly careful assessment by the jury, as was made clear in the addresses of counsel and the charge. That having been said, however, there is nothing necessarily unsafe or unsatisfactory about the evidence he gave in Court or the reasons he gave for the different account he had given originally to the investigating police. Further, the evidence he gave in Court is consistent with a body of other evidence. In essence, only the evidence of the appellant and Rose Brooks is to the contrary. As much as can be determined from the transcript, I am not persuaded that the jury should have rejected his evidence or considered it too unsafe to rely on it.
As has been indicated earlier in these reasons, no other material aspect of the evidence to which attention has been drawn in this appeal is directly contradictory of the Crown case, or inconsistent with it. While some aspects of the Crown case, in the end, may have been shown to have little or no weight against the appellant, these matters do not give rise to inconsistency with the general body of the Crown case or call into doubt its general soundness.
It is my view that it was well open to the jury in this case to be satisfied beyond reasonable doubt of the guilt of the appellant. While the evidence is circumstantial, and, perhaps inevitably, there are some discrepancies and inadequacies in the evidence, and there was clearly reason to scrutinise the evidence of some witnesses with great care, if these matters are considered individually and in conjunction, in the light of the whole evidence, these matters are not of such a nature or force as to leave me with an appreciation that there is a significant possibility that an innocent person has been convicted. The probative weight to be attached to the critical evidence in this case, including that of Steven Polidano, was in my view a matter well within the capacity of the jury, adequately instructed as they were. I am not persuaded there is reason to conclude that the jury ought not to have accepted this, or that it ought to have entertained a reasonable doubt and returned a verdict of not guilty.
For these reasons I am not persuaded that the verdict is unsafe or unsatisfactory.

Ground 2 (a) - Direction on verdicts

It is submitted that by virtue of the trial Judge's direction to the jury, the appellant was effectively deprived of the opportunity of being found guilty of the lesser offences of murder or manslaughter. In the relevant part of his direction, the judge said:
"On a charge of wilful murder it is as a matter of law in the ordinary course open to a jury to bring in one of four verdicts; namely (1) guilty as charged, that is of wilful murder, (2) guilty of murder, (3) guilty of manslaughter, or (4) not guilty. Each of the first three of those verdicts relates to an offence; that is, the unlawful killing of a human being. That’s the feature they have in common. I shall say more about that in a moment."
After normal directions as to the elements of wilful murder, murder and manslaughter, which are not questioned for their adequacy, His Honour went on to add:
"In that direction I have just given you is a direction as to the general law applicable in the ordinary course to a charge of wilful murder, but this case presents significant features of its own. In this case the uncontroverted evidence is that the deceased was killed by being shot three times in the head, the last shot, according to the opinion of Dr Margolius, being fired at point-blank range with the rifle resting against his head as he lay on the road.
I stress that all matters of fact are for you alone, ladies and gentleman, but if, as I suppose you will, you accept that evidence, you may well find that there are, in the circumstances of the present case, realistically only two possible verdicts reasonably available; namely (1) guilty as charged, that is wilful murder, or (2) not guilty.
I say that because there is no evidence from which you could reasonably form the conclusion that the deceased was killed by a person who did not intend to kill him when he shot the deceased three times to the head at close range. Although the facts are for you alone, the evidence is such that there really is no basis on which you could return one or other of the lesser verdicts to which I have referred and still remain true to your respective oaths or affirmations to give a true verdict according to the evidence. This proposition is not disputed by the defence."
It is settled that in a case involving wilful murder the jury must not be directed that it is not within their power to return verdicts of manslaughter or murder. These alternatives are open to the jury as a matter of statute: Brown v The King (1913) 17 CLR 570; Jemielita v The Queen (1995) 81 A Crim R 409 at 411 per Malcolm CJ and 428 per Murray J. Further, in the present case his Honour did not take the course of omitting altogether any direction concerning murder or manslaughter on the basis that there was no evidence capable of supporting those alternative verdicts: as to which see Jemielita (supra) at 411; Gammage v The Queen (1969) 122 CLR 444; R v Dodd [1960] WAR 42 at 52.
Instead, a direction in somewhat standard terms was given to the jury. This dealt with each of wilful murder, murder and manslaughter and there was no direction that any of these verdicts were not open to the jury as a matter of power.
It is clear that his Honour was well conscious of the force of the uncontroverted expert evidence that the deceased had been shot three times in the head, the last of the shots being fired at point‑blank range, the rifle barrel being "in a loose contact" with the head and as the victim lay on the ground having been felled by the two earlier shots. The force of this evidence, if accepted, is not merely to support an inference of an intention to kill, but to compel such as inference. So much was effectively conceded by defence counsel at the trial.
Having directed the jury as to the three possible guilty verdicts that could be returned, his Honour proceeded, in carefully chosen terms, to remind the jury of that uncontroverted evidence, to stress again that all matters of fact were for the jury alone, but then to observe that:
"…if, as I suppose you will, you accept that evidence, you may well find that there are, in the circumstances of the present case, realistically only two possible verdicts reasonably available; namely (1) guilty as charged, that is wilful murder, or (2) not guilty." [emphasis added]
He added, after yet a further reminder that the facts were for the jury alone, that:
"… the evidence is such that there really is no basis on which you could return one or other of the lesser verdicts … and still remain true to your respective oaths…" [emphasis added]
I cannot agree with the submission that the effect of these words is to direct the jury that it was not open to them in law, ie as a matter of power, to return verdicts of murder or manslaughter. In my view, the effect is quite the opposite. The jury were specifically directed as to the availability of those verdicts, but were told clearly that, on one view of the facts, only verdicts of wilful murder or not guilty were realistically open, it being stressed that it was entirely for them to decide whether to accept that view of the facts.
In this direction his Honour appears to have proceeded in close conformity with the view expressed in Jemielita (supra) at 411 ‑ 412 by Malcolm CJ, Murray J to similar effect at 428, that:
"… where the evidence justifies the comment, it would be proper for a trial Judge to direct the jury that, although they have the power, as a matter of law, to bring a verdict of murder or manslaughter, (as the case may be), and also to direct them that, although the facts were for them alone to find, the evidence was such that there was no basis on which they could return one or other of the lesser verdicts and remain true to their respective oaths…"
In my view this ground must fail.

Ground 2(b)

This was abandoned at the hearing of the appeal.

Ground 2 (c) - Identification

It is submitted for the appellant that there was failure to give a full and adequate identification direction in relation to the evidence given by Terry Quinn. In his charge to the jury, the trial judge observed:
"The Crown … suggests that the man seen by Quinn was the accused. Importantly, however, there is no question of Quinn having recognised that man, or having identified him as the accused. However, he did suggest that the man looked away and he never saw his face.
Quinn had been acquainted with the accused for several years before that night. His evidence does not expressly prove that the man he saw there was the accused, but you will consider his description of the man and decide whether it would suffice to identify him."
Counsel relies on the authority of Domican v The Queen (1992) 173 CLR 555 which requires that where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.
There is difficulty with this submission. The relevant evidence has been set out earlier in these reasons. Quinn was emphatic he did not recognise the man he saw at the scene as he sped by at over 80 kph. In my view, the relevant evidence of Terry Quinn was quite clearly not identification evidence within the purview of Domican. As his Honour expressly reminded the jury "there is no question of Quinn having recognised that man, or having identified him as the accused." A Domican direction would, therefore, have been quite inappropriate and potentially misleading.
This issue appears to have suggested itself because of the use of the word "identify" in the passage which has been set out. It is fair to observe that some other phraseology would have been preferable and more accurate. But when the full context is considered this did not, in my view, give rise to any risk of a miscarriage. There is no prospect that, by virtue of the word identify, the jury would have been misled into accepting, on the basis of the observation of Quinn alone, that the man at the scene was the accused. In the immediate context the jury were expressly reminded that Quinn did not, and could not, identify the man as the accused, even though he had known the accused for several years. Quinn was able to offer no more than the most general description of build, height and colour of clothing, emphasising that he had not seen the man's face.
This ground is not made out.

Ground 2 (d) - Lies

In this case, the Crown relied on lies as evidence of the appellant's guilt of wilful murder.
The first lie was in the first statement made by the appellant to the investigating police. It was that he had not been away from his house all day. In a second statement made at a later time he acknowledged that he had been out that day and that he had, in fact, visited the deceased's house where he saw the deceased's wife, and that he had also visited the houses of other friends including Tracey Chapman but found none of them at home. In the course of his cross‑examination at the trial he accepted that he had first lied to the police in this respect. He explained the lie by saying that he did not wish to reveal he had visited the deceased's house and seen his wife Suzanne Flinn, because he had delivered cannabis to the home of the deceased that day. The Crown, however, invited the jury to find that the reason for this initial lie was that the appellant was trying to avoid acknowledging his contact with the Flinn and Chapman households that day as each could provide a basis on which he could be implicated in the killing.
The second lie on which the Crown relied was that the appellant maintained in all statements to the investigating police, and throughout his evidence at the trial, that he had not left his house at any stage on the night of the killing. It was his alibi that he was at home all night with his de facto wife, Steven Polidano and Frank Colledge and had not used Rose Brooks' red Vectra. The Crown asked the jury to accept that this had been established to be a lie, relying essentially on the evidence set out earlier of Tracey Chapman and Andrew Turner, Steven Polidano and the body of evidence connecting the tyre marks at the scene with Rose Brooks' red Vectra.
The essential point advanced in support of this ground is that the direction was deficient in that the jury were not directed to consider that the appellant may have been lying for some other reason other than a realisation of his guilt, including that he may have had knowledge of, or been connected to the killing, but that he was not the offender.
The joint reasons of Deane, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 at 210 ‑ 211 provide a convenient statement of the nature of the directions which should be given where a lie is relied on to prove guilt. There is no need to set this well‑known passage out in full in these reasons. It is specifically pointed out by their Honours at 211 that, to avoid the risk that a jury may simply reason that, because an accused lied, he must be guilty, the jury should be instructed that there may be reasons for the telling of a lie, apart from the realisation of guilt. Examples given in the joint reasons are panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The particular facts and circumstances of a case may throw up other considerations not evidencing guilt, which could have led the accused to lie.
In his summing up in this case, the jury was directed by the Judge in the following terms:
"What the accused said to the police in the first of the several statements made to them was that he had not been away from his house at all during the day or night of 23 September 1999. Later, in the second statement, he admitted that he had in fact been out that day visiting Mrs Flinn and the houses of other friends who were not at home at the time.
There is nothing in those statements that amounts to an admission by the accused of guilt. What the crown says, however, is that the fact that the accused was prepared to tell a lie when questioned by the police shows that he had something to lie about and that he lied because he realised that he was guilty and that if he told the truth he would be convicted.
This submission by the crown has to be considered by you very carefully before you can use it to assist you in finding the accused guilty.
First, you must be satisfied that the accused did tell a lie … Secondly, the false statement which he made must relate to the offence with which he has been charged. Thirdly, you must take into account the fact that the accused may have had reasons for telling a lie other than a realisation that he was guilty of wilful murder. He may, as he said, have been reluctant to admit to the police that he had supplied cannabis to Mrs Flinn, which would of course have been an admission of the commission by him of an offence.
If, after taking all these matters into account you are satisfied beyond a reasonable doubt that the accused told lies about a material matter because he realised he was guilty of wilful murder, then but not otherwise you may use those lies to assist you in finding the accused guilty of the offence with which he has been charged.
If you consider that it is reasonably possible that the reason for the lie was his reluctance to tell the police that he had supplied cannabis to Mrs Flinn or that there was some other reason unconnected with the murder, then you will disregard this evidence in your assessment as to whether or not the crown has proved its case against the accused."
While his Honour did not refer to each of the examples given in Edwards (supra), he expressly instructed the jury to take into account that the accused may have had reasons for lying other than a realisation of guilt and he directed that if a lie was told for a reason unconnected with the murder it should be disregarded. The illustration he gave of such a reason was that directly raised by the evidence in this case, ie that the truth would (the accused said) disclose that he had supplied cannabis to the deceased's wife on the day of the killing.
In the circumstances of this case, the directions given in this respect appear adequate to warn the jury (a) against reasoning that a lie indicates guilt and, (b) not to take a lie into account unless it was told because of a realisation of guilt. The direction given was accompanied by an illustration of such a lie that was directly relevant to the evidence. In my view the directions were adequate.
Although not specifically raised by the ground, the submissions went on to contend that the jury should have been directed that each lie, and its character as an admission against interest, must be proved beyond reasonable doubt. As I understood the submission this is advanced on the basis that, in this case, the lies relied on are an indispensable link in a chain of evidence necessary to prove guilt.
In Edwards v R (supra) at 210, Deane, Dawson and Gaudron JJ observed that:
" … Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept the evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."
The evidence in this case has been canvassed extensively earlier in these reasons. This is not a case in which the two lies constitute the only evidence against the appellant. Indeed, had the appellant remained silent throughout, so that there was no possibility of lies, the other evidence could be sufficient, in my view, to establish the guilt of the accused beyond reasonable doubt. The two lies relied on may have strengthened the Crown case, but these are not an indispensable link in the evidence in this case, such that it was necessary to establish them to prove the guilt of the appellant.

In my view, therefore, it was not the case that each lie, or its character as an admission against interest, must have been established beyond reasonable doubt.
At one point in the direction concerning lies the trial Judge did introduce proof beyond reasonable doubt. In my respectful view, this is not the standard of proof required to be applied in the situation to which his Honour's remarks were directed. In this respect, however, the error was clearly to the advantage of the appellant and no miscarriage of justice could arise from it.
This ground is not made out.

Ground 2 (e) (i) & (ii) - Section 7

It is finally submitted that the judge erred by inadequately directing the jury as to section 7 of the Criminal Code (WA), and by permitting legal discussion by counsel in relation to this in the presence of the jury. The possibility of the involvement in the offence of other parties was, however, raised a the trial in the closing address of Counsel for the appellant who said:
"Ladies and Gentlemen, I commend to you in this case a verdict of not guilty. His Honour will explain to you in more detail the law as it applies to wilful murder charges and the verdicts that are available. In practical terms in this case, the only verdicts that really are available are guilty or not guilty.
His Honour will explain to you the law relating to parties to an offence with particular reference to section 7 of the Criminal Code which suggests that a person who is not a principal offender but who does an act or omission which assists in the commission of the offence may be convicted as though they were a principal offender."
In his direction to the jury, the trial judge made no mention of s 7. After deliberating for some time, the jury sought clarification of the meaning of 'indirect responsibility' in relation to a charge of wilful murder. This gave rise to brief discussion with counsel in which his Honour confirmed his understanding of the nature of the Crown case and the lack of any evidence linking other persons to the scene of the offence. The judge then proceeded to briefly direct the jury in the terms of the primary provisions of s 7, and by adding:
"I don’t know whether that is a sufficient answer for your purposes. Mere presence at the scene of a crime is not in itself an offence unless you’re satisfied beyond reasonable doubt that

the presence there was part of assisting or aiding or counselling or procuring the commission of the offence."

The direction given was less than exhaustive as to the operation of s 7. I do not apprehend, however, that it was intended by his Honour as a full direction on s 7. This was not a s 7 case, as his Honour made clear at the end of his direction. Section 7 having been raised by defence counsel in his closing address, and as the jury were apparently unsure, as a consequence, of its place in the case, his Honour dealt with their enquiry by quieting their curiosity with a brief explanation of the effect of the provision. Having given the jury an understanding of s 7, his Honour then did two things: he made it clear that mere presence at the scene was not a sufficient reason for convicting the appellant, and he brought the jury back to the case they were considering by reminding them that the only case against the appellant was that of the direct killing by him of the deceased.
In my view, this diversion into s 7 could not, in the circumstances, have given rise to a miscarriage of justice. In essence the jury were given some unnecessary information and it was made clear to them that the information was unnecessary. The case was not left to the jury on the basis that the appellant might be convicted as a party to the offence of another, pursuant to s 7.
There is nothing in the brief exchange between the Judge and counsel in the presence of the jury, following the question from the jury, which affects the substance of the brief direction to them which followed, or which introduced any factual matter which might have led them into error.
This ground of appeal is not sustained.

Conclusion

For the reasons given the appeal against conviction should be dismissed.
OLSSON AUJ: I am in full agreement with both the reasoning and conclusions expressed by Parker J, a copy of whose judgment I have read in draft. There is, in my opinion, no substance in any of the grounds of appeal relied upon. The verdict returned was fairly open to the jury, as has been demonstrated by Parker J. I, too, would dismiss the appeal against conviction.