R v Collie - [2005] SASC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLLIE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
20 April 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED
Appellant charged jointly with co-accused on two counts of murder - application by co-accused for separate trial heard in absence of appellant - whether breach of general rule that an accused person must be present throughout his or her trial - whether breach of rule automatically vitiates trial.
Gazepis v Police (1997) 70 SASR 121; R v Preston & Ors [1994] 2 AC 130, discussed.
R v Jones [2002] 2 Cr App R 128; Wilde v The Queen (1988) 164 CLR 365, considered.

CRIMINAL LAW - EVIDENCE
Challenge by appellant to admissibility of relationship evidence between appellant and victims - whether evidence admissible to prove identity of offender.
Wilson v The Queen (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; Plomp v The Queen (1963) 110 CLR 234; R v Frawley (1993) 69 A Crim R 208; R v Vollmer [1996] 1 VR 95; R v Serratore (1999) 48 NSWLR 101; R v Toki (No. 3) [2000] NSWLR 999; R v Keogh (No 2) (unreported, 13 May 1997, judgment no. S6152); Ratten v The Queen [1972] A Crim R 378; Walton v The Queen [1988] 166 CLR 283; R v Matthews (1990) 58 SASR 19; R v Georgatsoulis (1994) 62 SASR 351; R v Clark [2001] NSW CCA 494, discussed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Judge's summing up - direction that appellant's failure to give evidence had the consequence that some of the evidence led by the prosecution was uncontradicted - whether comment permissible.
Evidence Act 1995 (NSW) s 20(2); Evidence Act 1929 (SA) s 18(1)(ii), referred to.
Azzopardi v The Queen (2001) 205 CLR 50, distinguished.
R v Porter (2003) 85 SASR 581, discussed.
R v Byron (1988) 145 LSJS 141; Weissensteiner v R (1993) 178 CLR 217, considered.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Relationship evidence disclosed bad character of appellant - whether misdirection to direct jury that evidence of bad character was relevant to credibility - whether proviso should be applied in event of misdirection as to use of evidence of bad character.
Criminal Law Consolidation Act 1935 (SA) s 353(1); Crimes Act 1958 (Vict) s 399, referred to.
Donnini v The Queen (1972) 128 CLR 114; R v Hissey (1973) 6 SASR 280; Harriman v R (1989) 167 CLR 590, applied.
BRS v The Queen (1997) 191 CLR 275; Gipp v The Queen (1998) 194 CLR 106, discussed.
Krakouer v R (1998) 194 CLR 202; Glennon v The Queen (1994) 179 CLR 1; Walker v Walker (1937) 57 CLR 630; B v The Queen (1992) 175 CLR 599; R v Fricker (1986) 42 SASR 436; R v Gillard & Preston (No 3) [2000] SASC 454; R v Duncan (1981) 73 Cr App R 359; R v Sparrow [1973] 1 WLR 488; R v Pearce (1969) 69 Cr App R 365; Leung Kam-Kwok v The Queen (1984) 81 Cr App R 83; R v Sharp [1988] 1 WLR 7; R v Aziz [1996] 1 AC 41; Spence v Demasi (1988) 48 SASR 536; Peacock v The King (1911) 13 CLR 619, considered.

CRIMINAL LAW - EVIDENCE
Whether a direction in accordance with Edwards v The Queen (1993) 178 CLR 193 should have been given in relation to alleged lies told to avert suspicion.
R v Loader (2004) 89 SASR 204, discussed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
Whether it was a misdirection to direct the jury that they were to find the appellant not guilty if there were 'a doubt reasonably arising on the evidence' - appeal dismissed.
R v Wilson, Tchorz and Young (1986) 42 SASR 203, applied.
R v Loader (2004) 89 SASR 204, discussed.

R v COLLIE
[2005] SASC 148
Court of Criminal Appeal: Doyle CJ, Duggan and Vanstone JJ

DOYLE CJ: I have had the benefit of considering the reasons of Duggan J and Vanstone J.
I agree with the reasons of each of them, subject to what follows.
There is one matter of significance to the outcome of the appeal on which they differ. They agree that it was a misdirection for the Judge to tell the jury that they might have regard to Mr Collie’s dealing in drugs and possession of a pistol as evidence affecting their assessment of the credibility of what Mr Collie had said, according to Mr Bevelander, Mr Darren Horbury and Mr Davies, and what he was recorded by a listening device as saying.
The statements in question were not before the jury in the form of evidence by Mr Collie. But, coming from other sources, they amounted to material to which the jury could attach such weight as the jury saw fit.
I agree that the direction that the judge gave was wrong in law, for the reasons given by Duggan J and Vanstone J. There has been a misdirection in law.
Ms Abraham QC, the acting Director of Public Prosecutions, argued that the court should nevertheless dismiss the appeal. She submitted that no substantial miscarriage of justice had actually occurred: see s 353(1) of the Criminal Law Consolidation Act 1935 (SA).
The issue thus raised can be considered by asking whether the misdirection might have caused Mr Collie to lose a chance fairly open to him of being acquitted, or to have lost a real chance of acquittal: see Krakouer v R [1998] HCA 43; (1998) 194 CLR 202 at 213 Gaudron, Gummow, Kirby and Hayne JJ; Glennon v The Queen (1994) 179 CLR 1 at 8-9 Mason CJ, Brennan and Toohey JJ; Wilde v The Queen (1988) 164 CLR 365 at 371-372 Brennan, Dawson and Toohey JJ.
This issue is to be considered by considering the misdirection in the context of the case. In the circumstances, I agree with Duggan J that it is appropriate to consider whether the jury might have been influenced by the evidence of Mr Collie’s bad character to reject the explanation for Mr Collie’s conduct contained in what he said on the occasions referred to.
The case is one in which Mr Collie’s credibility as a witness did not arise. He did not give evidence.
But the Director, as part of the prosecution case, argued that the explanation offered by Mr Collie for the presence of his keys in the woodpile, and for his presence and movements outside the deceaseds’ house were lies or deceptions used to cover up his involvement in the killing and to explain his movements outside the house. The topic was one of some significance at the trial.
However, if the evidence of Mr Horbury and Mr Davies was accepted (there was no direct challenge to it, although counsel for Mr Collie argued to the jury that differences in matters of detail gave rise to a doubt about its reliability), it followed in my view that the jury had to be satisfied that Mr Collie was engaged in some kind of deception. Having regard to the evidence of Mr Bevelander, which was not challenged, Mr Collie had either already found his keys or believed them to be in the woodpile. Once the evidence of Mr Horbury and Mr Davies was accepted, the conclusion followed that for some reason Mr Collie pretended to them that he was looking for his keys at the front of the deceaseds’ house. The Prosecution suggested that Mr Collie was inventing a reason to be outside the house, perhaps to enable him to distract Mr Horbury and Mr Davies. Likewise, for some reason he told Mr Davies that he had seen the deceased drive away from the house.
That being so, I am satisfied that what the Judge said about Mr Collie’s credibility could not have had any effect on the jury’s approach to this aspect of the evidence. If they accepted Mr Horbury and Mr Davies, Mr Collie was engaged in some form of deception. Repetition of the same or a similar story in the recorded conversation adds nothing to the picture. The truth of the explanation for the keys being in the woodpile is, perhaps, an additional matter, but when this topic is considered in the light of the deceptive conduct that followed a little later, the Judge’s direction appears to me to be of no significance.
The Judge also told the jury that if Mr Collie told lies or engaged in deception on the afternoon in question, they could treat that conduct as circumstantial evidence, along with other circumstantial evidence. The relevant passage of the Judge’s summing up is set out in the reasons of Duggan J at [122]. At first I thought that this aspect of the summing up might give rise to a further cause for concern. But, on reflection, I am satisfied that if the evidence of Bevelander, Horbury and Davies was accepted (and the acceptance of that evidence had nothing to do with Mr Collie’s credibility), the jury would inevitably have concluded that Mr Collie was engaging in some kind of deception. The erroneous direction on credibility was irrelevant to that conclusion.
For those reasons, when the misdirection is considered in the context of the issues at trial, I am satisfied that, notwithstanding the misdirection, Mr Collie did not lose a chance of being acquitted that was fairly open to him.
For those reasons I would join with Vanstone J in dismissing the appeal.
DUGGAN J: The appellant has appealed against his conviction on two charges of murder. The prosecution alleges that, on 19 January 2002 at Parafield Gardens, the appellant murdered John Powers and Leila Hoppo. The appellant’s wife Samantha Collie was charged jointly with the same offences. There was an order for separate trials and Ms Collie is awaiting her trial.
At the time of their deaths Mr Powers and Ms Hoppo were involved in drug dealing on a large scale. It is alleged that the appellant and Ms Collie were also involved in drug dealing and that, as a result, they had regular contact with the deceased.
Mr Powers and Ms Hoppo resided at 19 Ormsby Avenue, Parafield Gardens. Police visited the house at approximately 10.50 am on Sunday 20 January 2002. The deceased were found sitting in two chairs in the lounge room of the house. Each had been shot twice in the head at close range. There were no signs of forced entry to the premises. Large amounts of cannabis were located in the house and, in one of the rooms, the police found a machine used to package cannabis.
Two vehicles and two trailers belonging to the deceased were parked on the premises. There was evidence that the deceased had intended to travel interstate on that weekend. There was also evidence that they made frequent trips interstate in the course of their drug dealing activities.
A number of people who were also involved in drug dealing visited the house on Saturday 19 January. The prosecution led evidence from visitors to the house and telephone records to support its case that the deceased were killed between 5.09 pm and 5.20 pm on the Saturday. There was further evidence that the appellant and Ms Collie were at or in the vicinity of the home at the time when it is alleged the killings took place. This evidence is referred to later in these reasons.
The case against the appellant was circumstantial in nature. According to the evidence the appellant had known Mr Powers for many years. There was evidence that they were involved in drug dealing. There was further evidence that the relationship was acrimonious and that the appellant was particularly concerned about the loss of a hand gun which he had given to Mr Powers and which had been confiscated by the police after Mr Powers had shown it to a stranger.
According to the prosecution case the appellant attempted to flee the scene of the killings by climbing through the rear fence of the property onto a vacant block. His car keys were found in a wood pile on the vacant block. It was alleged that he told a false story to a person who lived nearby as to how the car keys came to be on the block and that he told lies to those who arrived at the house after the killings in order to deflect attention from his activities.
The prosecution case was presented primarily on the basis that the appellant fired the shots which killed the deceased. However, the case was also left to the jury on the alternative basis that the appellant would be responsible for the acts of Ms Collie if she had fired the shots and the appellant was party to a joint enterprise to kill the victims.
The first ground
Mr Cuthbertson QC, for the appellant, argued that the trial was not conducted according to law. It was submitted that the appellant was wrongly excluded from part of his trial.
This complaint arose in the following way. The applicant and Ms Collie were charged jointly in the same information. However, both accused filed notices pursuant to r 9 of the Supreme Court Criminal Rules 1992 in which they applied for separate trials.
On 13 January 2004 Ms Collie’s counsel made application to the trial judge for Ms Collie’s application for separate trials to be heard in the absence of the appellant and his counsel. According to the submission Ms Collie feared violence and retribution from the appellant or his associates if she gave evidence at a joint trial. It was said that her defence would be prejudiced if she decided not to give evidence because of her fear of the appellant. It was also pointed out that Ms Collie wished to give evidence in support of her application for a separate trial and that the giving of such evidence would render her liable to the same risk of repercussions from the appellant or his associates.
Counsel for the appellant objected to the hearing of Ms Collie’s application in the absence of the appellant and his counsel. However, the application was granted. In his reasons for granting the application the trial judge said:
“In the very unusual circumstances of this case, I propose to hear in private her application that the application for separate trials be heard in the absence of Mr Collie. It seems I have no other way of establishing the genuineness or otherwise of her claim. The only practical way of dealing with the application would appear to be to follow the course suggested by Ms O’Connor [defence counsel at the trial] and to order, pursuant to s 69 of the Evidence Act, in the interests of the administration of justice, that during the hearing of the present application, all persons except those to be named, absent themselves from the court and to direct that until further order, any evidence and submissions made on the evidence given, or submissions made on the present application, be suppressed from publication.
I stress that this order relates only to the present application; that the application for the separate trials be heard in Mr Collie’s absence. I reserve the right to publish reasons for this order at a later time. I will hear submissions as to any exclusions from the order as to who should remain.”
The appellant’s counsel made a successful application for Ms Collie’s severance application to be heard before the appellant’s application. Ms Collie gave evidence on her application. In the course of this hearing a question was raised as to her fitness to stand trial. However, after being provided with a summary of psychiatric reports obtained by the defence, the trial judge decided that it was appropriate to continue with the application for separate trials. At the conclusion of that hearing the trial judge made the following ruling:
“I intimate now that I will rule that the basis of Mrs Collie’s application for the separate trials and the basis on which evidence was given in private, namely, the fear that she holds as at the hands of Mr Collie or his colleagues if she does give evidence is insufficient to justify a separate trial. I list the matter then for ruling in open court on that and indeed on Mr Collie’s application for a separate trial as well.”
When the matter was adjourned into open court on 7 April 2004 the trial judge granted the appellant’s application for a separate trial. On 21 April the appellant’s counsel applied for access to the evidence given by Ms Collie on the hearing of her application for separate trials. The prosecution supported the application, but the trial judge refused to make the order sought.
The prosecution elected to proceed with the appellant’s trial first. The appellant was arraigned on 5 May 2004. He pleaded not guilty to both counts in the information. Arguments on the admissibility of evidence then took place and a jury was not empanelled until 31 May 2004. The prosecution opened to the jury and proceeded to call evidence. However, on 4 June 2004 the trial judge discharged the jury for reasons which are not relevant for present purposes.
Another jury was empanelled on 7 June 2004. The appellant was convicted on 1 July 2004. Ms Collie has not yet been tried.
The appellant complains of the fact that he and his counsel were excluded from the hearing of the application by Ms Collie for separate trials.
As a general rule, an accused person must be present throughout his or her trial. Recognised exceptions to the rule include misbehaviour by the accused or voluntary absence such as by absconding. The general rule was stated by Lord Bingham in R v Jones [2002] 2 Cr App R 128 at [6] 1 as follows:
“For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant (as in R v Abrahams (1895) 21 VLR 343 and R v Howson (1981) 74 Cr App R 172); or misbehaviour (as in R v Berry (1897) 104 L T Jo. 110 and R v Browne (1906) 780 J P 472); or because the defendant has voluntarily absconded (as in R v Jones (Robert) (No 2) (1972) 56 Cr App R 413, [1972] 1 W L R 887 and R v Shaw (Elvis) [1980] 1 W L R 1526). In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. The existence of such a discretion is well-established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.”
It is not altogether clear on the earlier authorities as to whether the rule is absolute in the sense that a breach will automatically vitiate the trial. This question is now linked with the consideration as to whether the proviso can be applied in such circumstances. In Wilde v The Queen (1988) 164 CLR 365 Brennan, Dawson and Toohey JJ said at 373:
“The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v Hildebrandt (1963) 81 W N (Pt 1) (NSW) 143, at p 148; Reg. v Henderson [1966] V R 41, at p 43; Reg. v Couper (1985) 18 A Crim R 1 at pp 7-8.
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, ‘Venire de Novo’ Law Quarterly Review, Vol 71 (1955) 100, at p 128; Reg. v Rose [1982] 1 W L R 614 at pp 621-622; [1982] 1 All ER 536, at p 542; and, in the House of Lords [1982] A C 822, at pp 831-834. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.”

In the situation where an accused is absent for part of the trial there is some authority for the proposition that the degree of irregularity is a relevant circumstance to take into account. In Thomas v R (No 2) [1960] W A R 129 the question arose as to whether the accused had been absent during a re-direction to the jury. The court found the accused was not absent during the relevant period, but went on to express the view that an absence of this nature did not prevent the application of the proviso. Jackson SPJ, delivering the judgment of the court, said at 136:
“But we are not prepared to hold that every such breach, that is to say any absence of an accused person, by whatever mischance it may have occurred, for however short a time, and at whatever stage of the trial, must inevitably result in his subsequent conviction being quashed. In our view, the proper approach is to examine the circumstances of his absence and consider what then occurred and whether by any possibility his defence could have thereby been prejudiced or his chances of conviction increased. If neither of these could have followed then his appeal should not be allowed. This really amounts to an application of the proviso to s 689(1) and to holding that no substantial miscarriage of justice has actually occurred. On this proviso, Archbold’s Criminal Practice, 34^th ed., at p 365, says:
‘A substantial miscarriage of justice within the meaning of the proviso has occurred whereby by reason of a mistake, omission or irregularity in the trial, the appellant has lost a chance of acquittal which was fairly open to him.’
Applying this test which we believe the correct one, then we are clearly of opinion that the appellant could not in any event succeed on this ground.”
In R v Preston & Ors [1994] 2 AC 130 the appellants were convicted of conspiracy. The investigation into the offence involved telephone interceptions. The trial judge held hearings in camera during the trial at which the prosecutor reported on discussions with the Home Office, the effect of which was to restrict information given to the defence.
The House of Lords held that the in camera hearings constituted a serious irregularity in the course of the trial. Nevertheless their Lordships reached the conclusion that the unsatisfactory aspects of the trial did not cast doubts on the reliability of the verdicts and that the application of the proviso was justified: (Lord Mustill at 172 (Lord Keith and Lord Browne-Wilkinson concurring); Lord Templeton at 141).
Finally, there is the decision of Gazepis v Police (1997) 70 SASR 121, an appeal from the decision of a magistrate who excluded the appellant from court while the magistrate reprimanded defence counsel. The Full Court held that the appellant’s fundamental right to be present during the trial had been infringed. The Chief Justice (Lander and Bleby JJ concurring) noted that such authority as he had found did not support the view that an error of this nature necessarily vitiated the trial. The proviso does not apply to summary trials, but the Chief Justice said that an appellate court should make an assessment of the significance of the error which occurred. After concluding that the error could not have affected the outcome of the case, the court dismissed the appeal whilst at the same time cautioning that discussions in the absence of the defendant should be viewed as exceptional.
I return then to the circumstances of the present case. In my view the learned trial judge erred in ruling that Ms Collie’s application should take place in the absence of the appellant. Attacks by one accused on the character or case of another are not unusual; nor is it unusual for one accused to be in fear of another. The circumstances in the present case were not sufficient, in my view, to justify an exceptional order of this nature. Furthermore, although the hearing in camera dealt only with Ms Collie’s application, it was not totally unrelated to the appellant in that it was an application for separate trials.
There was some discussion in the course of argument on the appeal as to whether the hearing of Ms Collie’s application for separate trials could be said to be part of the proceedings of the second trial. Strictly speaking, the hearing and ruling were part of the procedure of the aborted trial. The prosecution and the defence treated the rulings on preliminary issues raised prior to the empanelment of the first jury as applicable in the second trial. The occasion for reviewing or adopting the ruling on Ms Collie’s application did not arise for further consideration because the appellant’s application for separate trials had been successful so that the refusal of Ms Collie’s application was of no practical importance.
Viewed in this way, I think it can be said that the appellant was not excluded from any part of his trial. The applications which were heard prior to the first trial were not part of the second trial although the rulings could be adopted by consent for the purposes of the second trial.
Of course, if the circumstances of the hearing of Ms Collie’s application had resulted in actual disadvantage to the appellant in the subsequent proceedings, the consequences of that disadvantage would not have been avoided by reason of the fact that the hearing had taken place in proceedings leading up to the empanelment of the first jury.
If this analysis is incorrect and the proceedings before the first trial are to be considered as part of the second trial, I am of the view that the error of the trial judge in dealing with the application in camera did not automatically vitiate the second trial. Applying the authorities referred to above, it is my view that this court is able to consider the application of the proviso.
After considering the circumstances I am convinced that there was no substantial miscarriage of justice. The appellant suffered no disadvantage by reason of the result of the hearing of Ms Collie’s application for separate trials. Although the reasons which were advanced on the hearing of that application were found to be insufficient to warrant separate trials, an order for severance was made on the appellant’s own application. The ruling on Ms Collie’s application had no practical effect and the ruling on the appellant’s application was in his favour.
Mr Cuthbertson QC argued that the appellant was disadvantaged by reason of two considerations. The first is that the trial judge could have been biased by reason of evidence given by Ms Collie and accepted by the trial judge concerning allegations of violence by the appellant. However, any such bias could not have had any potential effect in the trial. The only way in which it was suggested it could have had an effect was if the trial judge was required to assess the credibility of the appellant in the event that he gave evidence on an issue such as the admissibility of evidence. However no occasion arose during the trial for the appellant to give evidence in such circumstances.
The second aspect raised by Mr Cuthbertson was that the appellant was deprived of the knowledge of inconsistent statements which might have arisen from Ms Collie’s evidence on her application. Again, however, no such disadvantage arose during the trial. Ms Collie did not give evidence at the trial and no extra curial statement made by her was admitted into evidence. In these circumstances the issue of a previous inconsistent statement did not arise.
This ground of appeal should fail.
The second ground
It was argued that the trial judge erred in admitting evidence from various witnesses who deposed to incidents which the prosecution claimed disclosed the nature of the true relationship between the appellant on the one hand and the two deceased on the other. The evidence can be divided into categories for the purposes of this discussion.
Firstly there was evidence of arguments, particularly between the appellant and Mr Powers. Secondly there was evidence of what was said to be aggressive conduct by the appellant towards the two deceased, particularly Mr Powers. Thirdly there was evidence of statements made by Ms Hoppo about the appellant which were said to reflect her state of mind in such a way as to throw light on the nature of the relationship between the appellant and the two deceased.
The deceased couple lived at a caravan park at Bolivar for some time before moving to the Ormsby Avenue house in August 2001. Richard Drake, Ms Hoppo’s nephew, visited them at both locations. He said that on an occasion at the caravan park he saw the appellant give Mr Powers a gun which had an attachment fitted to it which he assumed was a laser sight. The witness gave evidence that when the appellant handed the gun over he said to Mr Powers “Here you are mate, this is what you are after”. There is other evidence that the gun was confiscated by the New South Wales police after Mr Powers had shown it to an employee at a supermarket on a visit to Sydney. The prosecution called evidence to establish that the appellant was angry over the confiscation of the gun and referred to it on a number of occasions. According to the prosecution case, the loss of the gun by Mr Powers could well have provided the motive or part motive for the offences.
Mr Drake said that on one occasion at the caravan park the appellant and Mr Powers had a heated discussion about the confiscation of the gun. According to the witness, there was “a lot of yelling and lot of swearing and they had both their fingers pointing at each other’s face”.
Kerri Hoppo, Ms Hoppo’s daughter, had frequent contact with Mr Powers and Ms Hoppo. She said that on one occasion at the Ormsby Avenue house the appellant spoke to Mr Powers about the gun. He said that he wanted it back as it was not his. He appeared very angry. She said “His eyes were bulging out, he had beads of sweat on his head, there was, like, a vein on the side of his neck pulsating”. The witness said that the appellant slammed his fist on the table and, as he got up, he kicked one of Ms Hoppo’s dogs. Samantha Collie was with him on this occasion.
Kerri Hoppo said that on another occasion when the appellant came to visit Mr Powers at Ormsby Avenue the two men talked in the bedroom. She said she heard a lot of yelling coming from the room. She said that on another occasion there was an argument between the two men and the appellant broke a glass by slamming it onto a table. The witness said there was another occasion when she saw and heard the appellant and Mr Powers waving their arms and talking angrily with each other in the garden of the house at Ormsby Avenue.
Then there was evidence of aggression by the appellant towards the two deceased. Richard Drake deposed to an incident on the occasion of his birthday on 21 August 2001. He said he was at the house at Ormsby Avenue with Ms Hoppo and other relations. He said the appellant came to the house and he heard him swearing and banging on the windows and the door. This went on for some time. The witness said the appellant was swearing and saying “Where the fuck is John and Leila (Ms Hoppo)”. Kevin Drake, Richard Drake’s father, also gave evidence of this incident. He said there was banging on the front and back doors and the man outside was saying “I know you’re in there. Let me in”.
All of the evidence which I have summarised was objected to by counsel for the appellant at the trial. However, it is my view that the evidence was relevant and its probative value outweighs its prejudicial effect.
The case against the appellant was based on circumstantial evidence. The identity of the person responsible for the offences was the main issue in the case. It is clear from the evidence that the appellant and the deceased couple had been engaged in drug dealing for some time. The appellant was a frequent visitor to the caravan park and the Ormsby Avenue home. This relationship continued up to the time of the alleged offences. It was important in all the circumstances to reveal the true nature of the relationship.
The relevance of evidence to establish the nature of the relationship between the accused and the deceased in similar circumstances is well established: Wilson v The Queen (1970) 123 CLR 334, R v Hissey (1973) 6 SASR 280, Plomp v The Queen (1963) 110 CLR 234, R v Frawley (1993) 69 A Crim R 208 and R v Vollmer [1996] 1 VR 95 at 132.
The evidence may be relevant for one or other of a number of purposes. These include establishing intention or motive and rebutting defences such as provocation and self-defence. The evidence may also be relevant to prove the identity of the offender: R v Hissey, R v Serratore (1999) 48 NSWLR 101, R v Toki(No. 3) [2000] NSWLR 999 and R v Keogh (No 2) (unreported, 13 May 1997, judgment no. S6152).
The evidence in the present case disclosed a series of incidents in which the appellant and Mr Powers quarrelled angrily. This was against the background of their involvement in the buying and selling of drugs. The appellant’s anger at Mr Powers’ actions which resulted in the confiscation of the gun was apparent on more than one occasion. This evidence is directly relevant to motive. But it goes further than that. In the absence of the impugned evidence the jury would be entitled to assume that the appellant and the deceased were engaged in a joint enterprise involving mutual trust and that they were on good terms (cf.R v Heath [1991] 2 Qd R 182 at 204). If this was not so the true position should be revealed to the jury. The issues in the case were not to be considered in a “vacuum” (Wilson v R (1970) 123 CLR 334 at 344).
The third category of impugned evidence relates to statements allegedly made by Ms Hoppo to other persons which are said to be relevant to her state of mind.
Mr Van Gorp was a resident in the caravan park at Bolivar where he met the deceased couple. He said he was aware that they moved into the house at Ormsby Avenue in August or September 2001. He said he met them at the caravan park.
The witness referred to an occasion when Ms Hoppo spoke about a person called “Harry”. Other evidence in the case was to the effect that “Harry” was the name by which the two deceased called the appellant. The witness gave evidence that on this occasion Ms Hoppo said that she was scared that Harry was “harassing”. At this point counsel for the appellant objected to the evidence as it was not included in the ruling made by the trial judge on the admissibility of evidence to be given by Mr Van Gorp. The prosecution accepted that this objection was well taken and the witness was then asked what Ms Hoppo said about Harry. The witness replied:
“She said he was a nasty piece and she was scared of him.”
Further evidence on statements made by Ms Hoppo concerning the appellant was given by Joyce Keevers who is Ms Hoppo’s sister. She resides in New South Wales and the deceased couple visited her from time to time. It was on one of these occasions that the police confiscated the gun from Mr Powers.
According to Ms Keevers’ evidence, Mr Powers returned from the police station after the gun had been confiscated and said he had been stupid. Ms Hoppo appeared very frightened and said:
“You know that’s Harry’s gun, what are we going to tell Harry? You know what he’s like, you know what’ll happen, what are we going to do?”.
Ms Keevers said that Mr Powers replied:
“We’ll sort that out when we get home”.
Whereas it has been convenient to use the shorthand description “relationship evidence” in discussing the previous categories of evidence under this ground, the relevance of the evidence of Ms Hoppo’s state of mind as revealed on these occasions requires a more detailed scrutiny of the circumstances which, it is claimed, make the evidence relevant. The remarks of Gleeson CJ in Frawley (1993) 69 A Crim R 208 at 220 are pertinent in this respect:
“One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question. Frequent and serious quarrelling between a couple, of a kind that goes beyond what Menzies J referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial. That is one kind of relationship evidence. What, however, of evidence of the state of mind of one party to a relationship? If one party to a relationship is accused of murdering the other, admissible evidence of the accused’s state of mind may well be relevant. It is less likely that evidence of the victim’s state of mind will be relevant, although, as the authorities cited above show, it may be relevant, depending on the issues in the case. Again, evidence that one party says things derogatory of the other party, in the other party’s absence, is a form of relationship evidence. Whether or not it is admissible may depend upon the circumstances, and it is not particularly helpful to begin with an assumption that, in a case of homicide involving a man and a woman, evidence of their relationship is admissible. In this case I find it preferable to avoid the label ‘relationship evidence’ and to seek to describe more accurately and more particularly the subject matter.”
Gleeson CJ concluded that instead of considering the matter under the general heading of relationship evidence, it was more appropriate “to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue” (223).
The cases referred to by Gleeson CJ in the passage quoted above are Ratten v The Queen [1972] A Crim R 378 and Walton v The Queen [1988] 166 CLR 283.
In Ratten the deceased woman rang a telephonist and said, in an hysterical state, “Get me the police please” a few minutes before she was shot dead by the accused. The accused later claimed that the gun discharged accidentally while he was cleaning it. The statement was admissible as evidence of a fact relevant to a fact in issue, namely, that the woman was in a state of emotion and fear immediately before the fatal shooting.
In Walton the relevance of the evidence was explained by Mason CJ in the following passage at 291:
“In the present case, there was independent evidence from Miss Bragg that the applicant had told her that he had arranged to meet the deceased at the Town Centre at 7.00 pm on the night in question. It is the conjunction of this independent evidence of the making of the arrangement between the applicant and the deceased and the evidence of the deceased’s intention to travel to the Town Centre to meet the applicant that provides a foundation for the inference that they went to the Town Centre and met there. It would make little sense to reject the deceased’s statements on the ground that they relate to the future action of another when the statements evidence her belief that the person she was to meet was the applicant. After all, her belief that she was to meet the applicant made it the more probable that she travelled to the Town Centre.”
A further example is provided by R v Matthews (1990) 58 SASR 19. The accused was charged with the murder and rape of his wife. At his trial he claimed that he had consensual sexual intercourse with his wife on the relevant occasion. He admitted that he killed her, but claimed he was acting under provocation. Evidence of an earlier statement made by the deceased that she was in fear of the accused and did not want to see him was held to be relevant on the question of whether she would have consented to intercourse and whether she permitted the accused into her house.
As King CJ pointed out in R v Georgatsoulis (1994) 62 SASR 351 at 361 evidence of this nature is not hearsay evidence, but original evidence of contemporaneous statements made by the deceased which are indicative of the deceased’s state of mind. It is important to remember, however, that this would not be enough by itself. The state of mind of the deceased must itself be relevant to a fact in issue.

In Frawley the accused was charged with murdering the deceased. The deceased had made various statements in writing and orally to other persons which included comments that she was afraid of the accused. In dealing with one such statement in a document Gleeson CJ said at 223:
“Secondly, the note was direct evidence of the deceased’s state of mind in various respects. Her annoyance at the appellant’s treatment of her dog was an irrelevant state of mind. What, however, of her fear of the deceased and her apprehension of violence? The fact that the deceased feared the appellant does not tend to prove that he killed her, or that he acted towards her with a certain intent. What would tend to prove that would be evidence that the fear was well-founded on the basis of past happenings, but that is the very matter which the document cannot be used to prove.”
There is an extensive analysis by Heydon JA of the circumstances in which this type of evidence will be admitted into evidence in R v Clark [2001] NSW CCA 494. The accused was found guilty of the murder of the deceased. She had made various statements to others prior to the alleged offence concerning the accused. The statements of most relevance for the purposes of the discussion in the present case were the subject of evidence given by a Mrs Robertson as follows [81]:
“QDid you from time to time talk to Miss Lock about the accused?
AOnly that she was very, very scared of him.
QHow did she come to say that to you, that she was scared of the accused?
AWell, I did see her with a black eye and she did tell me that Nobby, as they used to call him, had given her a black eye.
QDid she tell you on any occasion that she was afraid of the accused, scared of the accused?
AYeah, and she said that she was scared Nobby was around the house because she was stopping there on her own.”
It was submitted that the first and third questions and answers were inadmissible. Heydon JA commented on the evidence in the following passage at [159]:
“While the two answers of Mrs Robertson complained of by themselves would face hurdles created by statements in Wilson v R and R v Frawley, when the intervening answer, about which no complaint is made, is read, the basis for the objection to relevance goes. Evidence of injuries caused by acts of violence which are linked with the appellant was relevant. There was much evidence of at least one black eye, and the appellant admitted to the police that he had caused the deceased to have it. The proposition that the appellant had given the deceased a black eye was in any event admissible under s 65(2)(b). A representation by the deceased that she was very, very scared of the appellant was admissible evidence of her feelings and state of mind under s 72, and hence of one aspect of her relationship with the appellant.”
The reference in the passage to s 72 is to the Evidence Act 1995 (NSW) s 72 which states:
“The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.”
In the present case the evidence given by Mr Van Gorp that Ms Hoppo had referred to the appellant “harassing” was held inadmissible by the trial judge on the ground that it was hearsay. It is clear that the trial judge was correct in his assessment and the statement should not have been related by the witness.
The further evidence of Mr Van Gorp that Ms Hoppo said the appellant was “a nasty piece” and she was scared of him was admitted by the trial judge as evidence of Ms Hoppo’s state of mind. The statement to Mr Powers concerning the loss of the gun referred to in the evidence of Ms Keevers:
“You know that’s Harry’s gun, what are we going to tell Harry? You know what he’s like, you know what’ll happen, what are we going to do?”
was admitted as being relevant to the relationship between the deceased and the accused. The other aspect of Ms Keevers’ evidence which was objected to is her description of Ms Hoppo yelling and screaming and saying that she would call the police if Harry came to her place because she did not like him.
It is difficult to see how the expressions of fear of the appellant and the comments made about him were relevant to a fact in issue. There is no suggestion that the comments were conveyed to the appellant. The most that could be said is that they indicate an attitude of mind which may or may not have impacted on the way in which the deceased reacted to the appellant in his presence. The statements which reveal the deceased’s state of mind do not take the matter any further from the point of view of relevance than the statements as to fear of the accused which were found to be inadmissible in Frawley’s case.
Although it is clear that the evidence in this category discloses the state of mind of Ms Hoppo at the time she made the statements, her state of mind does not appear to be of any relevance to a fact in issue. In my view the evidence in this third category was inadmissible.
I defer further discussion of this issue until after the other grounds of appeal have been considered.
The third ground
It was argued that the trial judge erred in admitting into evidence details of the appellant’s prior possession of firearms. It was claimed that the evidence had little or no probative value and that it had a prejudicial effect.
I have already referred to the supply of the gun fitted with the laser sight to Mr Powers by the appellant. There was also evidence that the appellant supplied Mr Powers with another hand gun after this gun was confiscated.
In my view it would have been artificial to exclude from evidence any reference to the supply of hand guns to Mr Powers. The alleged offences took place against a background of drug dealing and the dangers associated with such activity would be well known to jurors. The trial judge suggested to the jury that these circumstances could have provided persons other than the appellant with a motive to commit the offences.
The supply of the first gun by the appellant to Mr Powers and its subsequent confiscation provided some evidence of a possible motive for the appellant to commit the offences. The jury were reminded that the confiscation took place some months before the killings and that this was a relevant factor to take into account when considering the aspect of motive. However, the evidence indicates that the appellant felt quite strongly about the confiscation and he mentioned it in a conversation after the killings which was recorded by the police who were conducting a surveillance operation.
I have expressed the view that the evidence in relation to the guns was relevant. I am also of the view that its probative value is not outweighed by any prejudicial effect. The trial judge told the jury that the possession of a gun, in itself, is not necessarily unlawful conduct and he pointed out that it was not evidence of propensity to use a gun.
The fourth ground
The trial judge gave the following directions on the fact that the appellant did not give evidence at the trial:
“I need to say something about the accused, ladies and gentlemen. The accused in this case did not give evidence. In any criminal trial, an accused person has two choices. He is within his rights to remain silent - that is to say, to decide not to enter the witness box - and to require the prosecution to prove the charges against him. If an accused chooses to take that course, he cannot be criticised, because he has a right to remain silent. You must not hold it against him if he did not give evidence. As I explained to you before, it is the prosecution that bears the onus to prove its case beyond reasonable doubt. An accused person is not required to help them.
There may have been a number of reasons why he did not give evidence, but you should not speculate about those reasons. The accused’s failure to give evidence cannot be used to prove a consciousness of guilt and, under no circumstances, can his decision not to give evidence be used by you as any kind of makeweight in any instance where proof might be lacking.
It is not some sort of admission of guilt by conduct. It cannot fill any gaps in the prosecution case. However, on the other hand, his failure to go into the witness box has the consequence that some of the evidence led by the prosecution might remain uncontradicted. I will return to the evidence, itself, a bit later.”
The first criticism of these directions arise out of a comment that “an accused person is not required to help them”. It was argued that this comment implies that the giving of evidence by the appellant would assist the prosecution case.
In my view it would have been better if the judge had not made the comment, but I cannot agree that the jury would have understood it in the sense suggested by counsel for the appellant. It is important to note that by using the phrase “an accused” on two occasions in the impugned passage the trial judge was speaking generally; the comments were not specifically directed to the appellant. Furthermore, the point which the judge was making was that the prosecution bears the onus of proof and an accused person has the right to remain silent. When read as a whole these directions could not have misled the jury. Later in his summing-up the trial judge repeated the effect of these directions but did not include the impugned comment.
The second complaint was that the trial judge told the jury that the appellant’s failure to give evidence has the consequence that some of the evidence led by the prosecution might remain uncontradicted. According to the argument this was a comment of the type criticised in Azzopardi v The Queen (2001) 205 CLR 50.
I would reject this argument. Mr Azzopardi was convicted of soliciting another to commit murder. Three witnesses gave direct evidence against him. He did not give evidence. In the course of his directions the trial judge said:
“However, members of the jury, when assessing the value of the evidence presented by the Crown, you are entitled to take into account the fact that the accused did not deny or contradict evidence about matters which were within his personal knowledge and of which he could have given direct evidence from his personal knowledge. This is because, members of the jury, you may think that it is logic and common-sense that, where only two persons are involved in some particular thing – the complainant and/or a witness and the accused – so that there are only two persons able to give evidence about the particular thing, and where the complainant’s evidence or the witness’s evidence is left undenied or uncontradicted by the accused, any doubt which may have been cast upon that witness’s evidence may be more readily discounted and that witness’s evidence may be more readily accepted as the truth.”
Although the trial judge had earlier directed the jury that they were not to speculate on why the appellant did not give evidence and that it was not an admission of guilt, the High Court held that the subsequent passage in the summing-up constituted a misdirection. In their joint judgment Gaudron, Gummow, Kirby and Hayne JJ said:
“72The impugned passage of the judge’s charge gave the jury instructions which cannot be reconciled with the earlier instructions given to them. The jury were told, correctly, that the appellant bore no burden, onus or obligation to prove anything. Yet, at the same time, by the impugned passage, the jury were invited to conclude, from the fact that the appellant did not give evidence, that ‘any doubt which may have been cast upon [the prosecution evidence] may be more readily discounted and [that evidence] may be more readily accepted as the truth’. That would be so if, and only if, the circumstances were such as to require response by the appellant. Yet the judge had correctly told the jury that the law required no response from him.
73This was not a direction of the kind contemplated by what was said in either of the joint majority judgments in Weissensteiner. In the present matter, the trial judge told the jury that they were entitled to take into account ‘the fact that the accused did not deny or contradict evidence about matters which were within his personal knowledge’. As explained earlier, if this direction was based on what was said in Weissensteiner, it misstates the effect of that decision. All that could be said in this case is that the accused did not give evidence contradicting evidence which had been led. This was not a case where the accused did not take the opportunity to provide some additional factual material for consideration by the jury which would explain or contradict the case sought to be made by the prosecution. This was not a case in which they jury might properly use the absence of evidence of additional, exculpatory, material in considering inferences sought by the prosecution. The impugned passage invited the jury to engage in a false process of reasoning, at odds with the direction which had been given to them in the earlier part of the charge. It follows that even without regard to the operation of s 20 of the Evidence Act there was a misdirection.”
In my view the impugned comment in the present case did no more than point out that some of the prosecution evidence might not be contradicted. It was not suggested that the prosecution evidence might be more readily accepted (cf. R v Porter (2003) 85 SASR 581).
The fifth ground
It is claimed in this ground that the trial judge misdirected the jury concerning the use of the evidence of the appellant’s alleged criminal behaviour prior to the date of the commission of the offence.
I have said that the trial judge permitted evidence of the relationship between the appellant and the deceased couple to be given. I have also pointed out that this evidence disclosed that the appellant appeared to be involved in large scale drug dealing with the deceased and that the appellant was in possession of a firearm on the occasions referred to earlier.
The trial judge gave the following direction on the approach which the jury were to take to that evidence:
“Before we adjourn for the morning break, I just want to say one thing, in particular, about the character of the accused. I need to give you a specific direction about the question of his past conduct, as it has been revealed to you in the evidence.
You have heard evidence in this case of criminal conduct on the part of various witnesses and of the accused. It is important that you do not use this evidence in an impermissible way. I will deal first with the accused and I will come back later on to some of the other witnesses.
Richard Drake gave evidence-in-chief of what you might think is substantial dealing in cannabis by Mr Collie with Mr Powers, when he visited his aunt and his uncle at the caravan park between June 2001 and then moved to Ormsby Avenue in August 2001. He said that he saw Collie come to the caravan park frequently with cannabis in plastic shopping bags, packed inside a sports bag. The cannabis was handed to Mr Powers, in exchange for cash in an envelope, and every time Mr Powers came back from a trip, he would give cash to Harry and Harry would give him more cannabis. He said that this exchange of cannabis and money continued after the move to Ormsby Avenue, but, of course, he was unable to speak of any further transactions after he left on about 15 September to go home to New South Wales.
There is also evidence of Kerri Hoppo, to which I will refer in more detail in a moment, concerning the accused dealing in drugs. She gave evidence of one occasion when Samantha Collie drove the car into the rear of the premises at 19 Ormsby Avenue, when Mr Collie was there, and, at Mr Powers’ request, she unloaded four or five garbage bags containing cannabis from the boot of Collie’s car and took the bags into the cannabis room inside the house. She gave evidence that, about a week and a half later, there was a transfer of cash, of between 8 and $10,000, from Mr Powers to Mr Collie, after Powers had returned from Queensland.
There was also the discovery by Detective Ward, on a search of Mr Collie’s residence after he was arrested, of three three-foot-high cannabis plants being grown hydroponically at the house.
If you accept any of this evidence, you will conclude that the accused had been involved in serious criminal activity.
You might also be satisfied that, at least at some time about six months before these killings, the accused was in possession of a gun, or two guns, which he lent or gave to Mr Powers. Of course, there is no suggestion that either of those guns was the one used to kill Mr Powers and Ms Hoppo, and possession of a gun, in itself, is not necessarily unlawful conduct. Neither does it indicate propensity to use such a gun.
Under our law, the guilt of a person must be proved by evidence of the offence or offences charged against the accused, and the verdict is not to be influenced by prejudice arising from past conduct of the accused. It is important that you not attach any greater relevance to the evidence of past conduct and character of the accused than it properly bears.
It may affect your estimate of the credibility of what the accused has said to other people, such as, for example, what he said to Mr Bevelander, or to Darren Horbury and Marc Davies outside the house, or what he may have said as recorded by the listening device. You may have regard to his true character when considering the weight that you should attach to those statements. You are entitled, if you think fit, to consider what he said to someone else is less to be trusted by reason of his character.
The evidence reflecting on the character of the accused and his apparent criminal activity is not, however, evidence that he committed the crimes charged. It would be wrong to reason that the accused is of bad character or involved in drug trafficking and, therefore, is more likely to be guilty.
It would also be wrong to say that, because the accused may have committed an offence in the past, he probably committed these offences. To do that would be contrary to fairness and to the law, because the law, in its wisdom and fairness, provides that an accused person is not to be judged by his past but by the evidence as to the conduct which is the subject of the charge.” (emphasis added)
According to the argument put forward by the appellant’s counsel, it was a serious misdirection to tell the jury that evidence of the appellant’s character as disclosed by his apparent involvement in drug dealing could be used in assessing his credibility in the circumstances referred to in the direction.
When evidence which discloses the bad character of an accused person is admitted into evidence it is important for the trial judge to explain to the jury the permissible and impermissible uses to which the evidence can and cannot be put: Donnini v The Queen (1972) 128 CLR 114 per Barwick CJ at 126-127. In that case the appellant was cross-examined as to previous bad character after a successful prosecution application pursuant to s 399(e)(ii) of the Crimes Act (Vic) which provided a discretion to the court to allow such cross-examination in the event that an accused person leads evidence of his or her good character. In the circumstances the relevance of the evidence of bad character was restricted to the issue of the accused’s credibility and could not be used as propensity evidence: Donnini at 73.
Reinforcement of the requirement to explain to the jury the permissible and impermissible uses of evidence of bad character is to be found in BRS v The Queen (1997) 191 CLR 275 at 293-294 per Toohey J; 301-302 per Gaudron J; 305-310 per McHugh J and 326-332 per Kirby J and Gipp v The Queen (1998) 194 CLR 106 per Gaudron J at [10].
Reference has been made to the basis on which the evidence of the appellant’s drug dealing and other conduct was admitted into evidence in the present case. The trial judge referred to that basis and the purpose of the evidence at various stages during his summing-up. For example at [340] he said:
“The only purpose of the relationship evidence is so that you can understand what sort of relationship existed between these people at the time of the murders. It is relevant to know, for example, whether the deceased and the accused were friends, whether they were business associates, whether they got on well together. That sort of evidence is relevant to relationships not only between the deceased and Mr Collie, but between the deceased and other persons, who it might be suggested could not be excluded as suspects; for example, Gordon Horbury.
It is relevant to know what sort of relationship existed between those various people, because whatever relationship existed between them on 19 January 2002 does not occur in isolation. The events of 19 January did not take place in a relationship vacuum. It is sometimes relevant to know what has gone on before.”

He also said [371]:
“So, if you accept the evidence that I have just referred to, there is direct evidence that the relationship between Powers and Collie, at various stages, involved commercial dealings in drugs, transactions involving guns, particularly in relation to Exhibit P35, the gun seized at Minto, and occasions of intimidation and outbursts of anger and apparent dislike. If you are satisfied that the relevant events occurred, you may take that evidence into account in deciding what sort of relationship existed at various times between the deceased and Mr Collie and the deceased and any other persons mentioned in the case, but I warn you against placing too much weight on events which happened a substantial time before the deaths. As you know, relationships can change and you might think that what is important in this case is the nature of the relationship at the time of the shootings.”
The trial judge also made it clear to the jury that the evidence could not be used to indicate that the appellant had a propensity to commit the type of offences with which he was charged.
It is clear that these directions were appropriate.
The use to which the evidence could be put was restricted to its tendency to throw light on the relationship between the relevant parties. As this court pointed out in R v Hissey (1973) 6 SASR 280 at 288 relationship evidence is not led as evidence of bad character or of a tendency to use violence on the part of the accused.
(See also Harriman v R (1989) 167 CLR 590 at 630).
The evidence in the present case was admitted despite its tendency to disclose bad character. Of course there are cases in which evidence of bad character will be relevant to the credibility of an accused person. This will arise, for example, where such evidence is led consequent upon the accused putting his own character in issue by leading evidence of good character or as a result of the accused making imputations against the prosecutor or a witness for the prosecution.
In the present case the evidence of bad character could not be used in such a way as to adversely affect the credibility of the appellant. I am of the opinion that it was a misdirection to instruct the jury that the evidence of the appellant’s character could be used in this manner.
The assessment of the consequences of the misdirection requires an examination of the context in which the direction was given. There was no issue as to the appellant’s credibility as a witness for the simple reason that he did not give evidence. However, the jury were told that the evidence of the appellant’s past conduct and character was relevant to his credibility in relation to what he had said to other people. The examples given by the trial judge were the appellant’s exchanges with the witness Bevelander and what he is alleged to have said to Horbury and Davies. The other statements referred to by the trial judge were those recorded by means of a listening device in the circumstances referred to below.
Mr Bevelander lives in a house which adjoins the rear of 19 Ormsby Avenue. Adjacent to Mr Bevelander’s house is a vacant block of land. There is access to the vacant block through a gap in a corner of the backyard of 19 Ormsby Avenue.
According to the prosecution case, the appellant attempted to flee the scene after the killings by going through the gap in the back fence and onto the vacant block.
The appellant was seen by Mr Bevelander on the vacant block at a time which the witness said was after 5.00 pm but before 6.00 pm on the day of the killings. Mr Bevelander said he spoke to the appellant who told him that there had been an argument with his wife and that she threw his car keys over the fence and onto a wood pile on the vacant block. Mr Bevelander retrieved the keys from this location and handed them to the appellant.
The prosecution put to the jury that the appellant dropped the keys in this location as he made his way from the crime scene. On the following day the appellant’s mobile telephone was also found on the vacant lot along with a packet of cigarettes of the same brand as a packet of cigarettes in the appellant’s possession at the time of his arrest.
In the meantime, two men, Horbury and Davies, had arrived at the front of the house. They were involved in drug dealing and had gone to the house together for this purpose. One of the men knocked on the door of the house but did not receive any answer.
Horbury and Davies said that it was around the time that one of them made a particular telephone call that they first saw the appellant whom they knew. On the prosecution case the telephone call was made at 5.46 pm. Horbury said the appellant looked into the house through a window. According to their evidence the appellant said he had a fight with his wife and she threw the car keys away. They said the appellant asked them to help him find the keys and they were searching in the front garden. According to the prosecution case the appellant had already recovered the keys by this time. The incident was said to be a ruse by the appellant to deflect attention from himself and his activities at the house. According to Davies, the appellant said Mr Powers was not at home and he (the appellant) thought he saw him drive off in a brown Commodore.
Horbury said that the appellant looked “edgy and anxious” and he was sweating profusely. Eventually the appellant walked away, got into his car and drove off. There had been some discussion between the three men about hot-wiring the car.
The movements of the appellant as described by Bevelander, Horbury and Davies and the conversations which they alleged he had with them were an important part of the circumstantial case against the appellant.
The conversation which was recorded by the listening device referred to by the trial judge at [34] of his summing-up took place on 5 February 2002. According to the prosecution case the appellant was talking to Ms Collie and two unidentified people. The appellant indicated that he was not responsible for the killings and he repeated the claim that Ms Collie had thrown the car keys over the fence.
In his closing address to the jury Mr Boylan QC, who acted for the appellant at the trial, put to the jury that Ms Collie had thrown the keys over the fence. He argued that they should reject the prosecution case that the appellant attempted to flee from the scene by going through the vacant block.
The conversation recorded by the listening device contained both inculpatory and exculpatory material. The trial judge referred to the exculpatory statements and directed the jury that they could act upon them and find the appellant not guilty of the offences if there was a possibility that the statements could be true. However, as I have pointed out, his Honour also instructed the jury that they could take into account the appellant’s past conduct and character in assessing his credibility and the weight which they attached to those statements.
It is appropriate to discuss the other grounds of appeal before reaching any conclusion on the consequence of these directions.
The sixth ground
The trial judge gave a direction on alleged lies told by the appellant. The effect of the direction was that if the jury concluded that the appellant told lies in trying to avert any suspicion that he was involved in the offences then those lies could be considered as part of the circumstantial case against him.
It was put on behalf of the appellant that the trial judge should have further directed the jury on the use of lies as disclosing a consciousness of guilt. In other words, it was argued that the judge should have given a direction in accordance with Edwards v The Queen (1993) 178 CLR 193.
It is necessary to set out the impugned directions on lies in detail. In a passage in the summing-up commencing at [544] the trial judge said:
“We spent some time examining what Mr Collie said and did at Mr Bevelander’s house and outside 19 Ormsby Avenue and later recorded on the listening device. Sometimes the conduct of a person after a crime has been committed does provide proof that he or she is the culprit. Whether you draw that inference in this case is a matter for you. You will remember my directions to you that you cannot draw an inference of guilt beyond reasonable doubt if there is some other explanation consistent with innocence which cannot be excluded beyond reasonable doubt.
You might be tempted to conclude that some of what Mr Collie said at those times constituted lies or statements which he knew at the time of making them were untrue. Now, it is a matter for you whether you reach such a conclusion in a particular case.
I will give two directions about lies allegedly spoken by Mr Collie.
First, I want to warn you against a process of circular reasoning which says that he made a particular statement which is probably a lie, it was probably a lie because he was guilty and, therefore, he told a lie. If you think about it, that is a false process of reasoning because it uses an assumption that he was guilty and, therefore, told a lie in order to prove that he told a lie. Take, for example, the statement ‘I just had a row with my missus’, a statement the effect of which was allegedly made to Mr Bevelander and to Darren Horbury and to Marc Davies. If you accept that that, or words to that effect, were said, you cannot reason that that is a lie because he would not have said it unless he was guilty and, therefore, he told a lie. You can see the circular process in that reasoning.
You might, nevertheless, conclude that some of the statements he made after about 5 o’clock on Saturday, 19 January, including those recorded on the listening device, could not be true for other reasons, or that they are mutually inconsistent with other parts of the conversation, or with the conversation that occurred outside 19 Ormsby Avenue.
Let us take, for example, the statement to Mr Bevelander that he had just lost the keys there because of a row with his missus, and a similar statement to Mr Davies and Mr Horbury but suggesting that that had occurred at the front of the house. You might think that one of those is not true.
I need to give you some directions about lies and the use that can be made of them and the use that cannot be made of them, and this is the second of the two points I mentioned.
Generally speaking, the fact that an accused person tells a lie is not evidence of his guilt of the crime charged. If an accused person tells a lie to someone then the effect is as if he had said nothing at all on that point.
Let me give you an illustration. I am not suggesting that Mr Collie said these actual words, but let us assume that Mr Collie had said, for example, ‘I didn’t know until I read in the newspapers that John Powers was involved in drug trafficking’. Let us assume that you conclude from other evidence in the case that the statement was a lie, that he did know that Powers was involved in drug trafficking. The effect, if you think about it, of that untrue statement, would be that the accused had said nothing which would be taken as evidence of his state of knowledge about Mr Powers’ involvement in drug trafficking. In your deciding what the accused’s state of knowledge was about Mr Powers’ drug trafficking, you would ignore the untrue statement because you would act on other evidence which suggested that he did know what Mr Powers was doing.
I merely mention that hypothetical example as an illustration of what I am saying. But lies told to someone else out of court may affect your view about other things that the accused has said to other people and whether what he said on other topics was truthful or not. However, ordinarily a lie told by an accused, whether in court or out of court, is not, in itself, evidence of guilt.
In giving you those directions I am not saying anything about what conclusion you should reach, about whether, in fact, the accused had told lies. Your conclusion about his credibility, his reliability and his honesty in what he said to other people on those occasions is a matter for you. So, you must not reason that if you are satisfied that the accused did tell lies, that because he told lies he must be guilty of the charge of murder. To do so would be using lies impermissibly.
The lies told by the accused, if you conclude that he did tell lies, are part of his conduct in trying to deflect any suggestion that he might have been involved in the murder of the deceased. They must be considered as part of his conduct after the deaths as circumstantial evidence, along with all the other circumstantial evidence that we have discussed. That conduct, along with other facts and circumstances, will have to be considered by you to see if you can safely draw the inference that it was the accused who committed the murders.”
Although the trial judge referred to the appellant’s statements to Bevelander, Horbury and Davies and the comments made in the conversation recorded by the listening device as examples of possible lies, it would seem that there were no other alleged lies by the appellant which were relied upon by the prosecution. In these circumstances, there is no merit in the argument that the alleged lies under discussion were not properly identified.
On the prosecution case the conduct of the appellant deposed to by Bevelander, Horbury and Davies, including the statements allegedly made by the appellant to them, took place immediately after the killings and while the appellant was still at the scene of the crime. It is also alleged that Ms Collie was in the house at the time. I have referred to the evidence indicating that the appellant appeared anxious at this time and that he looked in the house through a window. The prosecution did not invite the jury to view the alleged lies as an implied admission of guilt. Instead it was argued that the lies were told to avoid suspicion as to the appellant’s presence and activities on the premises at about the time of the killings. When discussing the evidence in detail the trial judge invited the attention of the jury to the question as to whether the appellant was providing a genuine explanation of his presence to the witnesses or diverting their attention from the circumstances which tended to implicate him in the offences.
The trial judge was correct in treating the post-offence conduct as circumstantial evidence: R v Loader (2004) 89 SASR 204 at [30] and [31]. The relevance of the alleged lies was not restricted to the issue of credibility. The post-offence conduct was capable of supporting the inference that the appellant was attempting to lead suspicion away from himself. Although the line is sometimes difficult to draw, I do not think that conduct of this nature is tantamount to an implied admission of guilt.
Nevertheless, as in Loader’s case, it was necessary for the trial judge to give the jury adequate instructions on the proper approach to this evidence. In this respect the trial judge instructed the jury that the mere telling of a lie could not support an inference that the appellant had committed the offences. The jury were told that the truth or otherwise of the appellant’s statements was a matter for them. It was explained that they would have to be satisfied that the comments were lies before using them as circumstantial evidence. The trial judge stated that if there was a possibility that the statements were true the prosecution would not have proved its case [596].
There was no need for a general direction that people tell lies for various reasons. The nature of the statements left no room for alternative explanations apart from the possibility that the appellant was telling the truth when he said that there had been an argument with his wife and that she threw the keys away.
In my view these directions adequately explained the use to which any lies could be put and sufficient warning was given in relation to prohibited uses of the evidence.
The same can be said about the directions in relation to the conversation recorded by the listening device on 5 February 2002. It was open to the jury to infer that in this conversation the appellant told lies in relation to the loss of the car keys. It was also open to construe this statement as part of the appellant’s attempt to deflect attention from himself. This evidence was of limited value compared with the making of the same statement to the witnesses at the scene of the alleged offences. Nevertheless the trial judge was entitled to leave the alleged re-telling of lies to the jury as an item of circumstantial evidence.
The seventh ground
The complaint raised in this ground is that the trial judge erred by instructing the jury that they could find the appellant guilty of the offences on the basis that he was a party to a joint enterprise to murder the deceased but not the actual perpetrator. It was asserted that liability on this basis was not put forward by the prosecution as part of its case, but was introduced by the trial judge for the first time in the summing-up.
It is clear that verdicts based on joint enterprise were open on the evidence. Furthermore, I do not accept the assertion that the way in which the prosecution was conducted rendered it unfair or inappropriate to leave open verdicts on this basis.
It is true that the primary case for the prosecution was that the appellant was the actual perpetrator. However, in the course of her opening address the prosecutor said (AB 4/40):
“In this case, the Crown says that both Powers and Hoppo were intentionally shot in the head twice. The shooter, on the Crown case, obviously had an intention to kill.
Secondly – and you might also think this is obvious – more than one person can commit an offence and be held responsible for it. This can occur in one of two ways: firstly, where there is an understanding or an agreement between people that they will commit a crime and, together, they do what is necessary to commit the crime. If that occurs, then each is equally responsible for the crime, each person is responsible for the acts of the other. The second way it can occur is if another person is present at the time the offence is committed and they aid and abet the commission of the crime; that is, that they assist or they encourage the commission of the crime.
Here, the Crown says that Garry Collie shot the deceased; Mrs Collie was present at the time of the commission of the offences.
As I said earlier, at the end of the day, the Crown must prove, beyond reasonable doubt, that Garry Collie was responsible either for his own acts or, where there was an agreement, for the acts done by Mrs Collie.”
In his summing-up the trial judge reminded the jury of the prosecution claim that it was the appellant who carried out the shootings. However, he explained in unexceptionable terms that the accused could be found guilty either on that basis or by reason of the fact that he was party to a joint enterprise to commit the offences.
In my view these circumstances do not disclose any miscarriage of justice by reason of unfairness or misdirection.
The eighth ground
According to this ground the learned judge erred in failing to direct the jury that a joint enterprise to commit the offences had to be established beyond reasonable doubt. Attention was drawn to the following direction in the summing-up at [210]:
“For the purposes of this case, there are three ways in which the prosecution can prove the first element: the first is to prove beyond reasonable doubt that it was the accused who actually fired the gun in each case; the second way in which the act of murder can be committed in the circumstances alleged in this case is by an accused person who may not actually shoot or take part in the shooting of the deceased, nevertheless, being the party to a common purpose with one who does fire the gun, a common purpose or joint enterprise to cause death or grievous bodily harm, in the pursuance of which common purpose or joint enterprise the other accused actually inflicted the fatal injuries; there is a third way as well, which we describe as aiding and abetting the commission of the crime, but that does not really arise here and I will not mention it further.”

The jury were not entitled to resolve these issues by attaching less weight to the appellant’s statements by reason of his bad character.
I cannot say that the directions which permitted the jury to reason in this way had no effect on the ultimate verdict.
I have expressed the view that inadmissible evidence was led as to the state of mind of Ms Hoppo as alleged in ground 2. The statements which were led to establish her state of mind contained material which was potentially prejudicial to the appellant. However it is my view that the admission of this material of itself did not give rise to a miscarriage of justice.
Nevertheless, for the reasons which I have given, I have reached the conclusion that there has been a miscarriage of justice by reason of the direction complained of in ground 5 and it is inappropriate in the circumstances to apply the proviso. It follows that ground 5 should succeed.
I would dismiss all other grounds of appeal. I would allow the appeal, set aside the convictions and order a new trial.
VANSTONE J: I would dismiss the appeal. Like Duggan J, I consider that ground 5 identifies a misdirection. However, I would apply the proviso, finding that no miscarriage of justice resulted. In respect of ground 4, I consider that no misdirection is established. My reasons for those findings follow. In respect of all other grounds of appeal I respectfully agree with the analysis of Duggan J. Because of its importance I deal first with ground 5.
The fifth ground
Ground 5 complains of misdirection in the summing up as to the proper use of evidence of bad character which was revealed to the jury at the instance of the prosecution. That evidence was that the appellant was involved in drug dealing and had unlicensed firearms.
In his judgment Duggan J has set out the impugned direction in its full context. The critical passage about which complaint is made is this:
It may affect your estimate of the credibility of what the accused has said to other people, such as, for example, what he said to Mr Bevelander, or to Darren Horbury and Marc Davies outside the house, or what he may have said as recorded by the listening device. You may have regard to his true character when considering the weight that you should attach to those statements. You are entitled, if you think fit, to consider what he said to someone else is less to be trusted by reason of his character.
The argument advanced in support of this ground was that the evidence having been admitted at the instance of the prosecution as being relevant to an understanding of the relationship between the appellant and the victims and to motive, it could not be used to adversely affect the credibility of the appellant. The requirement that appropriate directions be given to the jury as to the permissible and impermissible uses of such evidence is not in issue. No complaint is made in respect of other directions given in compliance with this requirement. The question is whether the jury was entitled to use the evidence as bearing on credibility, when the purpose of its admission was quite different.
An item of evidence will, often enough, be admissible on more than one basis. The general principle is that when such an item is admitted for one such purpose, it will become available to the parties for use for its other admissible purposes: Walker v Walker (1937) 57 CLR 630, 636 per Dixon J. B v The Queen (1992) 175 CLR 599 provides an example of such a case. There the appellant had been convicted of sexual offences against his daughter. In the course of presenting his defence he admitted that he had previously been convicted of similar offences against her, apparently with a view to establishing that she had concocted the later allegations. In separate judgments Mason CJ, Brennan and Deane JJ held that once the evidence was admitted, it could be used for all legitimate purposes and that one such purpose, in that case, was proof of the appellant’s sexual attraction towards the victim. As to the relevant principle Brennan J said this, at 607:
An accused, seeking to tender evidence admissible for more than one purpose, cannot restrict the purposes to which that evidence can lawfully be put. Indeed, a party may be required to tender evidence which he does not wish to tender for any purpose and, once tendered, it becomes a medium of proof of matters to which it is relevant [Walker v Walker (1937) 57 CLR 630, at 636, 638]. When evidence is properly admissible for two or more purposes, it can be used, once admitted, for any or all of those purposes [R v Finlayson (1912) 14 CLR 675 at 679; Cross on Evidence (4^th Aust. ed., 1991) para 1535; Wells, Evidence and Advocacy (1988) pp 80-82].
The question remains whether in circumstances where evidence of an accused’s bad character is introduced by the prosecution as being relevant to guilt, the jury should be invited to use that evidence as bearing on his credibility. That matter was alluded to by Barwick CJ in Donnini v The Queen (1972) 128 CLR 114. That was a case where, under cross-examination by the prosecutor, the appellant volunteered that he had convictions for various offences including shopbreaking. Although the prosecutor had sought and obtained permission to cross-examine as to prior convictions pursuant to s 399 Crimes Act 1958 (Vict) it does not appear that the particular questions which elicited the relevant responses were such as to require that permission. In any event the Court held that it was necessary where evidence of prior offending was properly before the jury that they be directed as to the permissible use and misuse of it. Barwick CJ observed (at 123) that where evidence of prior convictions was admitted to combat a suggestion of good character the jury must be told that the fact of prior convictions could not be used as “tending to the guilt of the accused.” His Honour went on:
In my opinion, in such a case, he should tell them quite clearly that the fact of prior conviction can only be used as a means of discrediting the accused in respect of any matter as to which he is in conflict in his evidence with witnesses for the Crown, or as to exculpatory facts or claims which he makes. Where the evidence of prior convictions or of bad character or tendencies is properly admitted for other purposes, it may be that a clear statement of the use to be made of the evidence for those purposes may suffice.
In R v Fricker (1986) 42 SASR 436 the Court of Criminal Appeal dealt with a case which was in some respects similar. Under cross-examination the accused had asserted that one reason for his having fled the scene of the alleged murder and then evaded the police for a period of time was that he feared a charge would cause revocation of the suspension of a sentence of imprisonment he faced. The nature of the offence for which the appellant had been sentenced was not made clear. In summing up the trial judge instructed the jury that they could use the fact of the previous crime as being relevant to the appellant’s credibility as a witness. Chief Justice King, with whom Millhouse J agreed, held that the direction was “technically correct in point of law” (at 440) but that it would have been better had it not been given. Reference was made to the passage of the judgment of Barwick CJ in Donnini which I have set out. King CJ observed that the jury were entitled to use any evidence properly before it in its assessment of issues of credibility. But he warned that such directions could encourage the jury to give undue weight to the prior convictions.
Ms W J Abraham QC, for the respondent, argued that the direction was not given in error and indeed that it was an appropriate direction having regard to the fact that evidence bearing on the appellant’s character was before the jury. She pointed to a similar direction given in a murder trial by Mullighan J, which was upheld in this Court: R v Gillard & Preston(No 3) [2000] SASC 454 [300]-[304]. (The SASR report does not contain these paragraphs.) In that case Gillard’s prior offending was referred to by Gillard himself in his interview with police. He appealed to the fact that he habitually involved himself in robberies as justifying why he was unaware that his co-accused was planning not merely robbery, but murders. Gillard did not give evidence upon his trial, but the trial judge directed the jury that they could have regard to his admitted prior offending in evaluating the exculpatory statements he made to the police. The situation was complicated in that case because evidence of the co-accused Preston’s character was also before the jury, that evidence having been admitted on account of his having “thrown away his shield”. In those circumstances the trial judge, of necessity, had to give a direction as to use of Preston’s prior convictions in relation to his credibility. Had the judge not gone on to give a similar direction in relation to Gillard, his directions would have been rather unbalanced. For these reasons I consider that this case is distinguishable.
The critical feature of B, Donnini, Gillard and Fricker is, in my view, that the accused person introduced the evidence going to character or, in the case of Gillard, offered the material, as part of his defence. It was then open to the prosecution to utilise that evidence for another admissible purpose. However, the situation is different where the prosecution succeeds in having evidence of bad character admitted in proof of the charge, perhaps as propensity evidence, or as here, because some particular relevance to a fact in issue is demonstrated. The evidence does not thereby become admissible evidence going to the accused’s credit. It was never admissible at the instance of the prosecution for that purpose. There would be unfairness associated with an accused person not only having to withstand the introduction of evidence relevant to guilt, which incidentally reflects upon his character – propensity evidence providing another example of such evidence - but then, additionally, seeing his credibility undermined by that same evidence by direction of the judge.
For these reasons I agree that the direction set out earlier was given in error.
I turn then to an assessment of the potential consequences of the misdirection. As Duggan J has observed, the appellant did not give evidence before the jury and therefore no question of his credibility as a witness arose. That is a matter of some importance. Nor was there any evidence before the jury of any version of the events given by the appellant to police. The only statement about the events given by the appellant was that captured on a listening device some seventeen days after the murders. It appears that persons said to be the appellant and his wife had a conversation with two other people. Although the appellant acknowledged that he was at the scene at the relevant time, the remarks made are exculpatory.
It seems to me that ultimately the statements attributed to the appellant as captured on the listening device were of no significance. To the extent that the conversation contained admissions by the appellant of being present at the scene, they were only confirmatory of other evidence in the prosecution case. To the extent that the appellant asserted that he was not responsible for the deaths, those utterances added little to his plea of not guilty before the jury. It is clear from the terms of the conversation that it was in the nature of a casual exchange between friends or acquaintances. The appellant was under no obligation to speak frankly to those present. It was far from being even of the status of a police interview in which a suspect might be asked to commit himself to a version of facts, often without knowing the extent of the evidence against him. The appellant did not purport to put forward a full version of the events. He did refer to the argument with his wife which, he said, caused the throwing of the keys, and that suggested consistency with his statements on the day of the murders, but I cannot see that the direction could have made a difference to the jury’s assessment of that issue.
I note in passing that the attribution of any evidentiary status to out of court statements made by a defendant as part of a “mixed statement” containing both admissions and exculpatory statements has never been free from controversy. In England a debate about the admissibility and use of the exculpatory parts of such statements raged over many decades. The matter seemed to have been settled in R v Duncan (1981) 73 Cr App R 359, where Lord Lane CJ, speaking for the Court of Appeal, took the pragmatic view that the whole of such statements should be admitted and have evidentiary status (at least partly because it was too difficult, and unhelpful, to attempt to explain that the exculpatory parts were something less than evidence of those assertions), but that the jury could be alerted to the differing weight of such statements. However, a line of subsequent cases favoured what came to be called the “purist view”: R v Sparrow [1973] 1 WLR 488; R v Pearce (1969) 69 Cr App R 365; Leung Kam-Kwok v The Queen (1984) 81 Cr App R 83 P.C. Then in R v Sharp [1988] 1 WLR 7 the House of Lords reviewed the question and approved of the position as established in Duncan. Yet again, in 1995 the House of Lords was asked to review the matter on the ground that the law was said to be unduly favourable to defendants who did not testify. The decision in Duncan was again approved: R v Aziz [1996] 1 AC 41. Reference was again made to the varying weight that might be attached to the different parts of such a mixed statement.
In South Australia the authority of the decisions in Duncan and Sharp was accepted in the judgment of Cox J, speaking for the Full Court, in Spence v Demasi (1988) 48 SASR 536. That line of decisions would also seem to be not inconsistent with Peacock v The King (1911) 13 CLR 619, in which the High Court discussed the appropriate direction to be given to juries as to their assessment of an unsworn statement made from the dock. Griffiths CJ held (640‑1) that the jury should be instructed to take the statement as “primâ facie a possible version of the facts and consider it with the sworn evidence”. Barton J (646) found that it “must be conceded to have some evidentiary status”. O’Connor J agreed with both of those views. Certainly statements outside court not on oath could not have any status greater than that of an unsworn statement from the dock.
What flows from these decisions in terms of this case is that the statements made by the appellant as recorded by the listening device could amount to no more than a possible version of the facts unsupported by evidence. Having regard to the nature of the conversation in which they occurred, and irrespective of the impugned direction, it is inconceivable in my view that the jury would have placed any greater weight upon them than it gave to the appellant’s plea of not guilty.
The direction also invited the jury to consider the appellant’s credibility in his statements to the witnesses Bevelander, Horbury and Davies outside the house. In that regard it is important to bear in mind that none of those witnesses were directly challenged in cross-examination by counsel for the appellant. In no instance did counsel put to any of those witnesses a contrary version in the form of instructions from his client. That being so there was no potential for the jury to use the appellant’s bad character to undermine any such challenge. It is true that in his address to the jury counsel for the appellant compared the versions of events outside the front of the house given by Horbury and Davies and by means of that comparison he suggested to the jury that aspects of that evidence were unreliable; but he did not do that by reference to any version said to have emanated from the appellant.
The question then arises whether the jury might have used the accused’s alleged bad character to reinforce the prosecution’s suggestion that the appellant misrepresented facts to Bevelander, Horbury and Davies, that is that he falsely represented the reason for his presence at the rear and then the front of the house. I deal first with Mr Bevelander. It was common ground at the trial that immediately following the initial conversation between the appellant and Bevelander, the keys were located in the area nominated by the appellant. To that extent the truth of some of his utterances to the witness was demonstrated. Why the keys were there was not able to be clearly established. It might be said that that issue was not capable of resolution and that it was, in any event, at most a secondary one.
By the time the appellant spoke with Horbury and Davies at the front of the house he had already retrieved his keys. Inasmuch as he requested help from those two witnesses in finding his keys, he was plainly constructing a ruse. It was inevitable that the jury would so find. Similarly, if the jury accepted that by this time the victims had been shot, then the appellant’s assertion that he had seen the male victim drive off in a brown Commodore was a lie. Whether the jury accepted as much would necessarily turn on their evaluation of the evidence of the timing of events, which was so crucial to the prosecution case, as opposed to any reference to the appellant’s drug dealing and possession of firearms.
For all these reasons I consider that the direction going to credibility fell on barren ground. With respect to those who take a different view, I consider that the misdirection could not have resulted in a miscarriage of justice. That is, I am satisfied that the misdirection could not have caused the appellant to have lost a chance of acquittal fairly open to him: Wilde v The Queen (1988) 164 CLR 365; Krakouer v The Queen (1998) 194 CLR 202.
The fourth ground
The appellant complains of the direction given to the jury in respect of the failure of the appellant to give evidence upon his trial. The full text of that direction is set out in the judgment of Duggan J. As to the first criticism levelled at the direction – that arising from a comment to the effect that an accused person is not required to “help” the prosecution – I find that the comment was innocuous. I agree with the observations of Duggan J as to that complaint.
The more substantial complaint arises from the following passage of the direction:
It is not some sort of admission of guilty by conduct. It cannot fill any gaps in the prosecution case. However, on the other hand, his failure to go into the witness box has the consequence that some of the evidence led by the prosecution might remain uncontradicted. I will return to the evidence, itself, a bit later.
Mr Cuthbertson QC, for the appellant, complains that this comment amounts to an impingement upon the appellant’s right to silence. Although it was not spelt out in the direction, it is argued that it is implicit that the lack of challenge to the evidence could be taken by the jury to lead to a more ready acceptance of that evidence. I agree with counsel’s submission that the judge’s reference to evidence remaining uncontradicted effectively invited the jury to view such evidence more favourably. There could be no other reason for mentioning it.
It is put that this direction is comparable to that which in Azzopardi v The Queen (2001) 205 CLR 50 was found to be a misdirection. In Azzopardi there was direct evidence implicating the accused in an offence of soliciting murder. The direction was as follows [71]:
However, members of the jury, when assessing the value of the evidence presented by the Crown, you are entitled to take into account the fact that the accused did not deny or contradict evidence about matters which were within his personal knowledge and of which he could have given direct evidence from his personal knowledge. This is because, members of the jury, you may think that it is logic and common-sense that, where only two persons are involved in some particular thing – the complainant and/or a witness and the accused – so that there are only two persons able to give evidence about the particular thing, and where the complainant’s evidence or the witness’s evidence is left undenied or uncontradicted by the accused, any doubt which may have been cast upon that witness’s evidence may be more readily discounted and that witness’s evidence may be more readily accepted as the truth. (emphasis added)

A majority of the Court, consisting of Gaudron, Gummow, Kirby and Hayne JJ, held that the passage was a misdirection. As I understand it, that was because it invited the jury to take into account in assessing the direct evidence implicating the accused, his decision not to give contrary evidence. The decision was said not to rely on the operation of s 20(2) Evidence Act 1995 (NSW) which imposes a limit upon the nature of a comment which the trial judge may make about the failure of an accused person to give evidence; however, the direction was said, additionally, to be in contravention of that provision [74]-[76]. Nonetheless, it is noteworthy that in South Australia there is no statutory prohibition upon a trial judge (as distinct from a prosecutor) commenting upon the failure of an accused person to give evidence: s 18(1)(ii) Evidence Act 1929 (SA).
In my view the critical distinction between the direction given in Azzopardi and that now under consideration is that the former allowed the fact of the accused having failed to give evidence to be placed into the scales, whereas the latter focussed upon the consequence of the accused’s decision not to give evidence, namely that the relevant prosecution evidence stood uncontradicted. I acknowledge that the distinction is a fine one, both in theory and in respect of the direction under consideration. But it is nonetheless an important one. In the process of evaluating evidence the jury must be entitled to have regard to the state of the evidence: whether facts are proved by direct evidence and whether that evidence has been contradicted. “[The jury] is not required to treat uncontradicted evidence as though it had been contradicted on oath”: R v Byron (1988) 145 LSJS 141, 145 per King CJ. In Weissensteinerv R (1993) 178 CLR 217 Mason CJ, Deane and Dawson JJ, forming part of the majority, described (at 227) as “almost a truism” that uncontradicted evidence is easier or safer to accept than contradicted evidence. That was a passage referred to with approval by Gleeson CJ at [13]-[15] in his dissenting judgment in Azzopardi. I do not understand the majority judgment there as questioning its authority. Seen in this way, the direction does not undermine the earlier directions given to the effect that the accused was not obliged to give evidence, that his decision not to do so could not be used as a makeweight and that there might be reasons for his decision, about which the jury should not speculate. In no sense did the direction suggest to the jury that the appellant had declined to give evidence because he was guilty. Accordingly, I agree with Duggan J that the ground is not made out.
For these reasons I would dismiss the appeal.