R v Gassy - [2005] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GASSY
Reasons for Decision of The Honourable Justice Duggan
25 February 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
The applicant sought leave to appeal against his conviction for murder - leave to appeal on grounds 1, 2, 9, 12, 14, 16.4, 18 and 25 granted and refused on all other grounds.
Search Warrants Act 1985 (NSW) s 2, 5, 10, 12A, 15, 23; Search Warrants Regulations 1999 (NSW) Reg. 9, 10, 15; Evidence Act 1929 s 13, s 45A, referred to.
Ousley v The Queen (1997) 192 CLR 69; Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; R v Britten (1989) 51 SASR 567; Smith v R (1990) 64 ALJR 588, applied.
Penney v The Queen (1998) 72 ALJR 1316; Shepherd v The Queen (1990) 170 CLR 573, considered.

R v GASSY
[2005] SASC 68
Application for leave to appeal against conviction

Duggan J. The applicant was convicted of the murder of Dr Margaret Tobin. Dr Tobin, who was the Director of Mental Health for South Australia, was shot four times as she was departing from a lift at the eighth level of the Citi Centre building where she worked on 14 October 2002. According to the prosecution case the applicant had travelled up in the lift with her. The prosecution alleged that the motive for the shooting arose out of Dr Tobin’s involvement in the removal of the applicant’s name from the Register of Medical Practitioners by the Medical Tribunal of New South Wales in 1997.
The case against the applicant was based substantially on circumstantial evidence. The applicant was resident in Sydney at the time of the alleged offence and the prosecution set out to establish that he hired a car in Sydney and drove to Adelaide in order to kill Dr Tobin. The applicant denied that he was in Adelaide at the time Dr Tobin was killed. Then there was the evidence of motive. The applicant was a qualified psychiatrist. For a time during the 1990s Dr Tobin was his superior. She became concerned about the applicant’s mental condition and expressed her concern to the Medical Board of New South Wales in July 1993. This was the first action in a series of events which led to the applicant being deregistered as a medical practitioner. There was evidence that the applicant kept records relating to other persons who had been involved in this process and the prosecution alleged that he bore a grudge against them.
There was evidence that the applicant owned pistols which were of the same brand and manufacture as the pistol used to shoot Dr Tobin. It was also claimed that he possessed ammunition of the same kind as that with which Dr Tobin was shot. Furthermore, it was alleged that about six months before the killing the applicant hired a car and drove to Brisbane when the annual conference of the Royal Australian College of Psychiatrists was in progress at the Brisbane Conference Centre. Dr Tobin was an attendee at the conference. The prosecution alleged that the applicant was observed behaving in a suspicious manner in the vicinity of the conference and that there was evidence to suggest that he was carrying a firearm. The applicant denied being in Brisbane at the time of the conference.
There was evidence from various witnesses to the effect that the applicant blamed Dr Tobin for playing a part in his deregistration.
The applicant gave evidence at the trial. He denied any involvement in the killing of Dr Tobin. As I have pointed out, he denied being in Brisbane at the time of the conference of the Royal Australian College of Psychiatrists. He also denied being in Adelaide at the time of the alleged offence. He said the firearms in his possession at the time of the police search were registered and he was licensed to use them.
The applicant was unrepresented throughout the trial. He retained counsel to act for him for a time when some issues of admissibility of evidence were argued prior to the commencement of the trial. The applicant formulated the grounds of appeal and was unrepresented on the application for leave to appeal.
There are 28 numbered grounds of appeal, but within those grounds there are many other complaints which are, in effect, grounds of appeal in themselves. Written argument on the grounds of appeal is also included in the notice of application for leave to appeal. I have treated the grounds within other grounds of appeal as separate grounds in these reasons.
I have approached the application on the basis that “an application for leave to appeal should succeed if the grounds relied upon are reasonably arguable, even if the probability is that the ultimate appeal will fail”: Blackstone’s Criminal Practice 2000 at D22.11.
Ground 1
Ground 1 of the grounds of appeal complains that the trial judge erred by permitting evidence to be given of various items found in searches of the house in which the applicant was living at the time of the alleged offence. This ground of appeal is extensive and comprises a number of grounds put forward in support of the argument that the evidence should have been excluded in the exercise of the court’s discretion because of illegality. The argument includes an assertion that the search warrants authorising the searches were invalid. In addition, the applicant argued that certain alleged conduct by the police officers before and during the first search justified the exclusion of the evidence in the exercise of the trial judge’s discretion.
At all relevant times, the applicant resided at Oyster Bay, a Sydney suburb. He shared the house with his parents. In the course of their investigations members of the Major Crime Task Force of the South Australia Police travelled to Sydney where they were assisted by officers of the New South Wales police.
Searches of the house took place on 29 October 2002 and 11 March 2003. The applicant was arrested on 9 November 2002. It is not in dispute that items seized during the searches and information obtained as a result of these searches formed an important part of the prosecution case.
A warrant was issued for each search. The warrants were issued pursuant to the Search Warrants Act1985 (NSW) (“the SWA”). The applicant in each case was Detective Senior Constable Moss, a New South Wales police officer. Affidavits in support of the applications were sworn by South Australian police officers.
The applicant argued that there were errors and omissions on the face of each warrant. He drew attention to the fact that the warrant dated 28 October 2002 authorised the searching of the premises for various objects “being things that the police officer has reasonable grounds for believing: (a) are concerned with the offence(s) of: Murder (Section 18 of 40/1900) Section 2, Search Warrants Act 1985”. He pointed out that the section number referrable to the offence of murder was that which was appropriate to the Crimes Act (NSW). He also argued that the warrant quoted an incorrect section of the SWA, namely s 2, when referring to the authority for the issue of the warrant. He further argued that information provided to the issuing authority in support of the applications was false and misleading.
Section 5 of the SWA provides that a member of the New South Wales police force may apply to an authorised justice for a search warrant if he or she has reasonable grounds for believing that, inter alia, there will be in or on the premises a thing connected with a particular indictable offence. “Indictable offence” includes any act or omission which if done, or omitted to be done, in New South Wales would constitute an offence punishable on indictment. Section 11 states that an application for a search warrant must be in writing in the form prescribed by the regulations. Information given by the applicant must be verified on oath or affirmation by way of oral evidence or affidavit.
Section 12A prescribes certain information which must be provided to the authorised justice. Section 14 states that a search warrant will be “in or to the effect of the prescribed form”. Section 23 provides as follows:
“A search warrant is not invalidated by any defect, other than a defect which affects the substances of the warrant in a material particular.”
Form 3 of regulations made in accordance with the regulation making power contained in the SWA prescribes the form of the search warrant.
The learned trial judge ruled that the warrant dated 28 October 2002 was issued in accordance with the requirements of the SWA and that there was no defect of substance on its face.
The form of warrant prescribed by the regulations provides for a summary of the items which are the subject of the search “being things that the police officer has reasonable grounds for believing (a) are connected with the offence (s) of [name of offence]”.
In my view it was unnecessary for the warrant to refer to the section number of the Criminal Law Consolidation Act(SA) dealing with the offence of murder. A jurisdictional requirement for the issue of the warrant in this case was that the act would constitute an indictable offence in New South Wales. It was not inappropriate in these circumstances to include reference in the warrant to the section creating the offence of murder in New South Wales.
It is unclear why the warrant referred in addition to s 2 of the SWA. The authority to issue warrants is contained in Part 2 of the SWA and it may have been the intention of the issuing authority to include that reference and not the section number. However that may be, the form of search warrant provided for in the regulations does not require reference to any particular section of the SWA and the reference to s 2 in the body of the warrant cannot be regarded as a material defect.
The warrant for the second search was issued on 10 March 2003. It omitted to specify the offence under investigation as required by the regulations.
I have said that these complaints were put forward as part of the argument that the evidence resulting from the searches should have been excluded in the exercise of the court’s discretion. In effect they were particulars of that ground.
Despite the reservations I have expressed about the soundness of some of the issues raised by the applicant on this ground, I am prepared to grant leave to appeal on the broad ground that the evidence should have been excluded in the exercise of the court’s discretion and to allow particulars which complain of the alleged misdescriptions in the two warrants.
I will return to these particulars after dealing with the other complaints which the applicant put forward as part of the principal ground that the evidence of the proceeds of the search should have been excluded.
The applicant submitted that both warrants were invalid because they did not show jurisdiction on their face. As a general rule, a search warrant issued by a subordinate authority must recite compliance with the conditions governing its issue: Ousley v The Queen (1997) 192 CLR 69 at 87; Question of Law Reserved on Acquittal (No. 5 of 1999) (2000) 76 SASR 356 at [142]. However, if there is a clear indication in the relevant statute to the effect that this requirement is unnecessary, the general rule will not apply: Ousley at [91].
The issue which arises for consideration here is whether it is necessary to show jurisdiction on the face of the warrant despite the fact that the form of warrant provided for by regulation makes no specific reference to such a requirement. In the present case the wording of the warrant follows the form set out in the regulations.
The judgments of Toohey, McHugh and Gummow JJ in Ousley provide support for the argument of the DPP that it was unnecessary in the present case to provide any reference to satisfaction as to jurisdiction on the face of the warrant. Although the ground of appeal is not confined to a question of law alone, this particular aspect raises a question of law which could be regarded as arguable.
As stated above, the applicant argued that certain information provided by the police officers in their affidavits in support of the application for search warrants was false and misleading. It was also argued that, in certain respects, some matters relied upon by the police were overstated in the affidavits.
The specific matters raised by the applicant in this respect are set out at 200 – 207 of the voir dire transcript. The DPP’s arguments are at 220 – 223.
In some circumstances the court will allow a collateral challenge to the validity of a warrant in the course of criminal proceedings, but the scope of such a challenge is limited: Question of Law Reserved at 361. In that case, as in the present, there was no room for the applicant to argue that there was insufficient information before the issuing authority to justify the issue of the warrant.
If the facts gave rise to a possibility that the warrant was fraudulently obtained, collateral review might be available. However, although the applicant’s argument hinted that such was the case, the statements which he relied upon in the affidavits of the police officers fall well short of giving rise to such a possibility. The affidavits were prepared in the early stages of the investigation of the applicant’s alleged involvement in the offence. The statements made by the police officers were on the basis of their belief in the relevant circumstances at that stage. There are some inaccuracies in the information, but they were not of such a nature as to affect the validity of the warrant or give rise to a consideration of the exercise of the discretion to exclude the evidence by reason of unlawful actions or misconduct.
Para 1.7(8) of the grounds of appeal asserts that the affidavit sworn by Detective Lacey (VDP2) in support of the application for a search warrant “appears defective for the purposes of the SWA”. The basis of this assertion is that the nature of the application and the court in which the proceedings were to be filed are wrongly described in the heading to the affidavit. These considerations have no bearing on the validity of the search warrant or the admissibility of evidence obtained as a result of the search.
A number of the complaints raised under the heading of ground 1 in the application for leave to appeal relate to the voir dire hearing conducted by the trial judge to determine the admissibility of the evidence obtained in the course of the police searches. It appears from reasons which the trial judge gave for her rulings that the original purpose of the voir dire hearing on the issues relevant to the present ground was not so much to investigate the circumstances in which the search warrants were issued, but to consider a claim by the applicant that the police had acted illegally or improperly in their dealings with the applicant’s mother at about the time of the first search.
The background to the voir dire hearing in this respect was summarised by the trial judge in her reasons for rulings:
“The factual context in which those arguments arose was this. On 28 October Detective Sergeant Moss obtained a search warrant relating to the premises where Dr Gassy then lived with his parents. On 29 October both police officers of the New South Wales Police Force and South Australian detectives were present in the vicinity of the Gassy home. That premises had been under surveillance for a day or so. At about 9.00 am Mrs Gassy was seen to leave the premises in her motor vehicle. At this time police had set up a “staging post” at a nearby shopping centre. Mrs Gassy proceeded past the shopping centre and at that point the officer in charge of the New South Wales detectives, Detective Inspector Leonard, stepped out from the footpath and flagged down Mrs Gassy. A conversation took place between them following which Detective Inspector Leonard and Detective Kinsman of the Major Crime Squad, Adelaide, drove with her first to a school where she was due to give a class or lecture and then back to the Gassy home. Upon arrival Mrs Gassy approached the front door with the detectives and opened it. Dr Gassy was seen to be in close proximity to the front door and a conversation took place. At that stage no warrant or occupier’s notice (as required under the New South Wales legislation) was produced to either Mrs Gassy or Dr Gassy. Rather, police outlined the facts relating to their possession of a search warrant and advised that a search would not commence until certain other officers arrived. A delay was foreshadowed. In the ensuing hour or so police waited in and around the premises. On the police case it was during the ensuing hour or two that the fact that the warrant bore an incorrect address was adverted to. Detective Sergeant Moss, to whom the warrant was issued, told me that upon realising the situation he took steps to contact the court at which the warrant had been issued so that the situation could be addressed. He travelled to that court and returned to the house premises soon after noon carrying with him a warrant now recording the correct address.
Dr Gassy put to me that his mother’s version of events was to the effect that she was effectively arrested and forced to accompany police to her home. He detailed what she would say if called on a voir dire as to the events. He further argued that the events suggested that even at the time when Mrs Gassy was stopped on the roadway police knew that their warrant was defective and that their intention was to use her to let them into the premises to overcome the difficulty arising from that defect.
Having heard Dr Gassy’s submission I ruled that there was sufficient material constituted by Dr Gassy’s instructions as to what his mother would say to raise an issue of illegality and impropriety in relation to police conduct with respect to Mrs Gassy. I ruled that I would permit a voir dire examination of that issue. In respect of the second matter I ruled that even on the assumption that police had in effect tricked their way into the house by implying to Dr Gassy that the warrant they possessed was free of defects I should not allow a voir dire hearing on that matter, because no searching had taken place by authorisation of the allegedly defective warrant in any event and so, even assuming the original warrant were defective in a significant way, it could not be said that evidence had been obtained by means of its use. It can readily be observed that the link between police conduct towards Mrs Gassy and the subsequent obtaining of evidence is equally tenuous. But my thinking at the time was that if it could be shown that the police had acted so scurrilously as to arrest Mrs Gassy and take her, against her will, back to her home with a view to there using her to facilitate their search, then that might be a matter of such gravity that the discretion might be enlivened.”
The trial judge then stated that the two issues tended to merge in the course of the taking of evidence so that evidence relevant to the second issue was given despite the earlier ruling that a voir dire hearing would not be permitted in respect of that matter. In the course of the hearing Mr de Robillard of counsel was permitted to represent the applicant and make submissions on his behalf on aspects relating to the searches.
The applicant called his mother on the voir dire hearing and the prosecution called Detective Kinsman and Detective Inspector Leonard of the South Australian Police and Mr Moss of the New South Wales Police Force.
It was common ground that police officers spoke to Mrs Gassy when they stopped her car not far from her home on the morning of the first search which took place on 29 October 2002. Mrs Gassy said the police told her that she had to come back to the house with them and that her son was armed and violent. Two of the police officers drove with her in her vehicle. She was upset, but she said that she was not threatened in any way and that she complied with the police suggestions because she was a “good citizen”.

The police officers said in evidence that they introduced themselves to Mrs Gassy after stopping her car and said that they had a warrant to search her premises. Mr Leonard said he asked for her assistance in conducting their enquiries in a safe manner. He said he wanted to ensure that any firearms in the house were not going to be used.
The trial judge made the following findings on the evidence:
“The differences between the two accounts of the incident are in many ways quite minor. I do not consider that any of the witnesses were deliberately inaccurate in their evidence. In my view such differences as there are are explicable on the basis of the passage of time, the fact that notes were not made contemporaneously, the fact that this aspect of the investigation was not of central importance to the police and the fact that from Mrs Gassy’s point of view the episode was frightening and upsetting. Having said that I prefer the police account of the incident. Specifically I accept that police introduced themselves and explained their purpose. I find that Mrs Gassy was prepared to assist. I accept that no pressure was placed upon Mrs Gassy to return to her house premises nor to have the police with her in her car. I accept Leonard’s evidence that he sought her permission in relation to those matters. I found the police evidence on this issue to be impressive. Moreover their version of events accords with the inherent probabilities of the situation. By that I mean this. The police had no interest in unnecessarily alarming Mrs Gassy nor in being high-handed with her. Their interest was to secure her co-operation and plainly the best way to do that was to treat her with respect and in an even-handed manner. Her own statement that in the motor vehicle the police were “very nice” to her tends to confirm that that was the tone they affected.
As to the defence theory that the police were motivated by their knowledge that the warrant was defective and that that accounted for their conduct with respect to Mrs Gassy, in my view such an hypothesis is barely plausible. It was rejected by all three police officers and I found their evidence convincing. It is noteworthy that once the error of the description of the address on the warrant was noticed it was quite readily addressed and corrected. If the police had recognised the error prior to stopping Mrs Gassy then it is inconceivable that they would have acted as they did, only to then delay proceedings at about 10.30 am whilst the warrant was rectified. In other words, if they had chosen to proceed to search the house in the knowledge that the warrant was defective, then it is obvious that they would have proceeded with the search once entry to the house had been gained. The actions that were taken, in particular by Detective Sergeant Moss, to take the warrant to the Kogarah Local Court and have it rectified, clearly indicate a genuine wish to act in a bona fide manner.”
When Mr Moss gave evidence on the voir dire hearing he referred to a difficulty associated with the wording of the warrant. The police officers and Mrs Gassy went to the house where the officers spoke to the applicant. They informed him that they had a warrant to search the premises, but they would not execute it until a video-operator and an independent police officer arrived.
According to the evidence of Mr Moss it was at this point that the police realised that the applicant’s address was incorrectly described in the warrant as “23 Georges Crescent, Oyster Bay” when the actual address was “23 Georges River Crescent, Oyster Bay”.
Mr Moss said he then notified the justice of the peace who had issued the warrant at the Kogarah Local Court. He made arrangements to go to the court in order to rectify the matter. He said in evidence:
“ABy the time I got there – from Oyster Bay to Kogarah court took me about 20 minutes – when I arrived the new warrant was drawn. I swore that out and returned back to the house.
QWhat do you mean by ‘swore it out’?
AI took an oath that the information contained in the warrant was true and correct, and he gave me the warrant and then I returned back to the house.”
It appears that the justice of the peace substituted a new page with the correct address on it. However, there was no amendment to the second page of the warrant which still bore the date of the previous day.
The trial judge rejected the argument that a valid warrant was not issued as a result of this procedure. She said:
“I have considered the question of the date on the warrant, a copy of which is before me. I have considered Mr de Robillard’s submission that arguably the warrant is defective on its face. In my view there is no serious question justifying examination of that issue. Both Mr de Robillard and Mr Brebner have expressed a view that in the circumstances which pertained it might have been better had the authorised Justice corrected the address by striking out the incorrect one, inserting the correct one and then initialling the correction. But plainly the Justice chose to substitute for the original page one a new page one showing only the correct address. I do not agree with Mr de Robillard’s submission that the NSW Act or Regulations provided for a different procedure. Nor do I necessarily agree with the submissions to the effect that another procedure might have been preferable. In my view the error as to the address was one of form, not substance. Indeed it was in the nature of a clerical error, although I acknowledge that it was plainly desirable to have the error corrected before execution of the warrant. On the evidence which I have already heard touching this issue I can find no impropriety or illegality. On the contrary, I consider that faced with a situation which plainly required addressing, Mr Moss did what he considered best to rectify it. The way in which the Justice went about rectifying it was really a matter for him. Even were I to find that the procedure followed in some way flawed the warrant, I should not be inclined to exercise my discretion to exclude items seized under the purported authorisation of the warrant. The factors mentioned in Bunning v Cross could not in this case conceivably justify the exercise of the public policy discretion in a way contrary to the prosecution case.
It would be inappropriate for me to undertake an inquiry into the sufficiency of the material before the issuing Justice: either the material justifying the issue of the warrant or the material justifying certification that the records not be made available: Question of Law Reserved (No 5 of 1999) (2000) 76 SASR 356. Whilst there can in some circumstances be a collateral challenge to a warrant, in my view no material has been raised here to justify exploration of the issues enumerated by Mr de Robillard. In particular there is in my view nothing in the material already before me which raises any real question as to the warrant having been regularly issued.”
In my view it is not arguable that the trial judge erred in her findings as to the conduct of the police officers in relation to the applicant’s mother. If her findings on those issues of fact were correct, no basis is left for arguing that the products of the searches should have been excluded from evidence by reason of police conduct in relation to Mrs Gassy. I am not prepared to grant leave on this ground. However, I think the applicant should be permitted to contest on appeal the validity of the first search warrant by reason of the events which took place before the justice of the peace on the occasion of the second application after it had been discovered that the warrant contained an incorrect address.
Further complaints made within ground 1 concern the conduct of the voir dire hearing on the validity of the search warrants.
Prior to the commencement of the trial the applicant made it clear that he did not wish to be represented by counsel. He said he had decided to represent himself at the trial. However, during the voir dire hearing on 24 May 2004 Mr de Robillard appeared and advised the court that he had been instructed to appear for the applicant for the remainder of the proceedings. Mr de Robillard told the trial judge that he was admitted to practice in New South Wales and had been briefed by the applicant to appear for the remainder of the trial. However he said he had not been briefed by a solicitor. The trial judge expressed concern about this arrangement and obtained an undertaking from Mr de Robillard that he would discuss with the Law Society whether he was entitled to practise in South Australia and she also pointed out that the rules require a solicitor to be recorded on the court file.
Mr de Robillard undertook to attend to these matters and report back to the trial judge the following day. In the meantime, the trial judge permitted him to act as counsel on the voir dire. Detective Inspector Leonard was then called as a witness. He was one of the New South Wales police officers who assisted the South Australian police with enquiries and in the execution of the search warrants. After giving evidence-in-chief he was cross-examined by Mr de Robillard. The cross-examination occupied approximately 70 pages of transcript.
On the following day Mr de Robillard announced that he had not yet been instructed by a solicitor and that he had not had a chance to speak to anyone from the Law Society. The trial judge said she was not prepared to allow him to appear for the applicant until these matters had been attended to. She also said that she was not prepared to adjourn the matter while the enquiries were being made. She pointed out that Detective Inspector Leonard had travelled from New South Wales to give evidence and that another interstate witness was waiting to give evidence. Mr de Robillard then left the court. At this point her Honour commented on the fact that, although Mr de Robillard cross-examined Mr Leonard at length, he had not put to him Mrs Gassy’s evidence concerning the incidents which took place on the day of the first search. The trial judge said that this should be done either by the applicant or herself. She then put to Mr Leonard the essence of Mrs Gassy’s version.
The applicant did not cross-examine Leonard further. The court adjourned at 11.07 am and resumed at 2.18 pm. Mr de Robillard appeared and gave the court a progress report on the enquiries he had been making. The trial judge permitted him to appear for the time being and Mr Moss was then called. He was examined by counsel for the DPP and cross-examined by Mr de Robillard.
Ground 1.4 complains that the trial judge erred in not granting the adjournment while Leonard was still giving evidence. In submissions on the application for leave to appeal the applicant pointed out that the adjournment was not opposed by the prosecution.
However, the available material does not disclose any cause for concern that these events resulted in a miscarriage of justice. It has not been suggested that the defence was prevented from investigating any particular issues. There was no application to recall Leonard after he had given evidence. Furthermore, it was not inappropriate for the trial judge to provide this witness with the chance to comment on the version given by Mrs Gassy.
Ground 1.5 alleges that the trial judge erred in preventing Mr de Robillard from asking certain questions in the course of the voir dire hearing. Page references to these passages are provided in the ground.
After considering each of the instances identified by the applicant I have reached the conclusion that the trial judge was doing no more than restricting the evidence to the issues which she had ruled were appropriate for investigation on the voir dire and ensuring that only relevant and admissible evidence was given in respect of those matters.
Ground 1.6 complains of an intervention by the trial judge when Mr Moss was being cross-examined as to what transpired between him and the justice of the peace when he returned to the local court after disclosing that the address in the warrant was incorrect. The witness had said in evidence-in-chief that he swore an oath. During the cross-examination Mr de Robillard was taking the witness through the steps which occurred before the justice of the peace on this occasion and the witness did not refer to the re-swearing incident. The trial judge then intervened and said “He already said that he swore an oath. He said that in evidence-in-chief.”. Complaint is made of this intervention. However it could not have contributed in any way to a miscarriage of justice.
Ground 1.7 states that the trial judge erred in refusing to allow the defence to call further evidence on the voir dire “as part of a collateral challenge to the validity of the warrant”.
After Mr Moss gave evidence Mr de Robillard stated that he wished to cross-examine the witness on a number of additional issues. Although Mr de Robillard addressed her Honour for some time on this application it was far from clear as to what issues he wished to pursue. Eventually an adjournment took place and Mr de Robillard prepared a written summary of the issues which he said were the subject of this application.
Further argument followed and the trial judge declined to allow the issues raised by Mr de Robillard to be pursued as part of the voir dire process. Written reasons for this refusal were published on 28 October 2004.
I have already referred to the fact that the first warrant did not correctly state the applicant’s address. It was Mr de Robillard’s contention that the defence was entitled to explore the circumstances relating to the obtaining of the warrant which disclosed the correct address.
A further aspect which counsel wished to explore with Mr Moss concerned the circumstances surrounding the issuing of a certificate pursuant to regulation 10 of the Search Warrants Regulation 1999 (NSW). Regulation 15 provides for an occupier’s notice to be served on a person who appears to be an occupier of the premises at the time when entry is effected. The occupier’s notice specifies the name of the person who applied for the warrant, the name of the authorised justice who issued the warrant, the date and the time when the warrant was issued and the address or other description of the premises the subject of the warrant. It must also contain a summary of the nature of the warrant and the powers conferred by the warrant.
Section 10 of the SWA requires that the person to whom the search warrant is issued shall furnish a report in writing to the authorising justice who issued the warrant stating whether or not the warrant was executed and, if it was executed, a brief report on the result of the execution of the warrant including the description of anything seized.
Regulation 9 provides that the application for the warrant, a copy of the occupier’s notice and the report on the execution of the warrant must be kept by the Local Court for at least six years from the date on which the search warrant was issued.
Regulation 10 provides:
“10    Certified records not available for inspection
(1)An authorised justice may at any time issue a certificate to the effect that the justice is satisfied that:
(a)    a document or part of a document referred to in clause 9 contains matter:
(i) that could disclose a person’s identity, and
(ii)that, if disclosed, is likely to jeopardise that or any other person’s safety, or
(b)    a document or part of a document referred to in clause 9 contains matter that, if disclosed, may seriously compromise the investigation of any matter.
(2)The document or part of the document to which the certificate relates is not to be made available for inspection under clause 9(3).
(3)The certificate is to be kept with the document to which it relates.
(4)An authorised justice (whether or not the one that issued the certificate) may revoke the certificate if satisfied (after consideration of submissions from any interested party) that disclosure of the matter to which it relates is no longer likely to jeopardise any person’s safety or seriously compromise the investigation of any matter.”
The applicant and his parents attempted to inspect the documents relevant to the applications for the search warrants in the present case, but were advised that they had been certified pursuant to regulation 10.
Mr de Robillard applied to cross-examine Mr Moss as to any reasons he may have provided in order to justify the certification.
It is not apparent as to how this could have been a relevant issue on the trial. No justification was advanced for going behind the certificate so as to investigate the steps leading up to the certification. It is not arguable that the trial judge erred in not permitting investigation of the issue.
Other grounds of appeal incorporated in ground 1.7 complain that the documents covered by the certificate under regulation 10 were not available to the applicant at his trial.
However, this is a consequence of the operation of r 9 and, in any event, the applicant decided at his trial not to proceed with arrangements for the serving of a subpoena issued out of this court and directed to the Local Court in New South Wales for production of all documents held in relation to the issue of the search warrants.
There is no basis to support the applicant’s argument in [1.7 (14)] of the grounds of appeal that the r 10 notice forms part of the face of the warrant.
The applicant argued that there was further illegality in the execution of the warrant on 29 October 2002. He said that, according to its terms, the warrant had to be executed between the hours of 6.00 am and 9.00 pm. According to the police evidence they left the premises shortly after 9.00 pm. There is an argument that the warrant is complied with if the original entry is between the specified hours. However, the important consideration in the present case is that, according to the evidence, the search concluded at 8.58 pm. The police officers remained on the premises for a short time after that while the South Australian police officers interviewed the applicant.
In these circumstances there can be no argument that there was an illegality in the execution of the warrant. However the applicant argued further that there was a trespass by the police officers who remained questioning the applicant after 9.00 pm. There was no evidence that they were asked to leave the premises. The record of the conversation with the applicant suggests that he had no objection to the short discussion which took place at this stage. These circumstances do not give rise to any basis for excluding from evidence the items seized during the search.
The applicant also stated that he was not provided with the occupier’s notice as required by SWA s 15. According to the police evidence, including the video recording of the execution of the warrant which commenced at 12.30 pm on the day of the first search (transcript VDP 50 Q 25), the applicant was handed the occupier’s notice prior to the commencement of the search.
It is not arguable that there was illegality in this respect.
Summary on grounds relating to the search warrants
I confine the grant of leave on ground 1 to the following issues raised by the applicant:
The trial judge erred in failing to exercise her discretion to exclude evidence of the result of the searches of the applicant’s premises on 29 October 2002 and 11 March 2003 by reason of the following:
1the search warrants dated 28 October 2002 and 10 March 2003 were invalid in that jurisdiction was not disclosed on the face of the warrants;
2the search warrant dated 28 October 2002 contained misdescriptions;
3the search warrant dated 10 March 2003 did not refer to the offence of which the applicant was suspected;
4the procedures before the justice of the peace at Kogarah on 29 October 2002 did not result in the issuing of a valid warrant on that date or, alternatively, a valid amendment of the warrant issued on 28 October 2002.
Ground 2

Ground 2 states as follows:
“The learned trial judge erred as a matter of law in ruling that the appellant could not be represented by counsel for the voir dire only and not for the trial before the jury, that is, that legal representation by counsel had to be for the whole trial including voir dire or not at all.”
In the course of directions hearings prior to the commencement of the trial the applicant raised the question as to whether he could be represented at the voir dire hearing, but not at the trial. At one directions hearing Mr de Robillard made submissions on this question.
The trial judge expressed concern at the prospect of counsel representing the applicant at certain stages only of the proceedings. At a directions hearing on 3 February 2004 she addressed the following remarks to Mr de Robillard:
“HER HONOUR: In my mind that is not possible. Once you commence a trial, as far as I’m concerned whether it’s a voir dire argument or whether it’s a trial in front of a jury, you are an officer of the court and you are required to continue there acting for your client either until your trial is finished or there is some difficulty in your continuing to act and I wouldn’t necessarily give you leave to withdraw until the trial was finished.
MR DE ROBILLARD: I’m aware of that.”
According to the applicant, it was his intention to be represented by counsel at the voir dire hearing only because of the complexity of the legal issues and his limited finances.
The applicant was not represented by counsel at the commencement of the voir dire hearing when the court proceeded to deal with the objections to the identification evidence.
Mr de Robillard appeared at a later stage of the voir dire hearing when the search warrant issues were about to be argued. He advised the trial judge that he had been briefed to appear from this point to the conclusion of the trial (transcript 667-678).
Earlier I referred to the concerns expressed by the trial judge about Mr de Robillard appearing without the appointment of an instructing solicitor. Eventually, however, a firm of Adelaide solicitors were recorded as instructing solicitors.
After making submissions on the search warrant issue Mr de Robillard addressed the court on the Brisbane evidence and some related topics. He also made an application for the trial judge to disqualify herself on the ground of apprehended bias. After her Honour declined to disqualify herself Mr de Robillard’s instructions were terminated by the applicant who represented himself for the remainder of the voir dire hearing.
This ground of appeal comes down to the question whether the applicant was entitled to have representation at the voir dire hearing in relation to the identification evidence when he intended to represent himself at the trial. I was advised that there was no authority directly in point on this issue. I grant leave to appeal on this ground.
Ground 3
Ground 3 states that a miscarriage of justice occurred due to the combined effect of the trial judge’s rulings relating to grounds 2 and 1.4. I have not granted leave to appeal on ground 1.4. It is unnecessary to add a further ground of appeal alleging a miscarriage of justice in relation to ground 2.
A number of grounds of appeal relate to the evidence of identification of the applicant. I use the term “identification” in its broad sense as including cases in which there was not a positive identification, but where a witness gave evidence of similarity of appearance.
Ground 4
Ground 4 is as follows:
“The learned trial judge erred in admitting evidence of photo-array identification because the photo arrays were deficient in that the appellant stands out unfairly from the other images in the array.”
The applicant argued that the photograph of the applicant which the police used to compile the array of photographs stood out from the other photographs. The police used a photograph of the applicant which was taken for the purposes of his driving licence a short time before the alleged offence.
The first complaint is that the applicant’s face is redder than the faces of the other persons in the array. There was no evidence from any witness in the case that the person whose identification was in question had a reddish complexion. It is true that the applicant’s photograph does have a reddish colouration, but each of the photographs has features which distinguish the person in the photograph from those in other photographs and, in that respect, might be said to stand out.
In some photographs shown to witnesses at a later stage, the reddish appearance was removed with the aid of a computer programme. However, the applicant complains that his image in those later photographs gives a somewhat blurred appearance.
Again, it is my view that this is a distinction without any relevance to the circumstances of the case. It is not a circumstance which would lead any witness to the view that this was the photograph which portrayed the alleged offender.
In addition, the applicant argued that his photograph shows him with hair pulled back in a “pony tail”. In my view this is not apparent from the photograph which was taken while the applicant was looking at the camera.
It is not arguable that the arrays were unfair by reason of any circumstance which might have made the applicant’s photograph stand out from the other photographs used in the array.
There is a further complaint that, because the applicant’s arrest was given considerable media publicity, this would have led to an expectation that the applicant’s image would have been one of the images in the photographic array. Reasoning such as this would prevent attempts at identification in a large number of cases including both photographic and line-up procedures. The procedures in the present case included the warning that “a photographic image of the person involved may or may not be on display, do you understand that?”
Leave to appeal on ground 4 is refused.
Ground 5
Ground 5 states that the learned trial judge erred in not excluding, through the unfairness discretion, evidence of photo-array identification undertaken after the applicant was taken into custody. The applicant complains that he was not offered an opportunity to take part in an identification parade after arrest or of having a legal representative present during the identification procedures.
The reason put forward by the prosecution as to why a line-up procedure for identification did not take place was that in a police interview at the time of the initial search of his property the applicant indicated that he would decline to take part in such a procedure. On that occasion Detective Kinsman interviewed the applicant and the following conversation took place:
“Det Kinsman            Will you answer any of our questions?
GassyI don’t want an interview.
Det Kinsman             Do you want to partake in a formal identification parade?
GassyNot particularly.
Det Kinsman             Yes or no?
GassyWhat happens if I so no?
Det Kinsman             Well nothing.
GassyNo.
Det Kinsman             Okay …., yeah, it’s …… Oh yes well if you don’t partake in a formal identification parade.
GassyRight.
Det Kinsman             We are at liberty to produce photographs of you and other people.
GassyRight.
Det Kinsman             And put them to witnesses to, to either pick the person out that they think they saw on a certain date and time.
GassyRight.
Det Kinsman             Do you understand that?
GassyYeah.
Det Kinsman             Do you still not, don’t want to?
GassyNo you can do the …., that’s fine.”
In my view, the applicant made his position clear enough. He said that he did not want to take part in a formal identification parade. He was told of the consequences of that, namely, that the police could put photographs of him to potential witnesses. He said he understood that, but he still did not want to take part in the identification procedure. There is no reason why the police might suspect that his attitude would change if he were arrested.
In these circumstances there was no injustice to the applicant by reason of the photographic procedures and leave to appeal on this ground is refused.
Ground 6
Ground 6 alleges that the trial judge erred in not exercising her discretion to exclude the photographic identification evidence of the witnesses Allen, Conway, Durrington, Smith, Ceron, Fisher, Pellicone and Tuffin.
The applicant placed the witness Durrington in a special category and I will deal with the objection to her evidence when discussing ground 9. As to the other witnesses, the criticisms made by the applicant of their evidence go to weight but not admissibility. It is not reasonably arguable that the reasons advanced by the applicant should have led to the exclusion of their evidence.
Leave to appeal on this ground is refused.
Grounds 7 and 8
According to grounds 7 and 8 the learned trial judge erred in allowing certain witnesses to purport to identify the applicant in the dock following out of court identification from photographic arrays.
Some of the witnesses referred to in the ground positively identified the applicant in the course of photographic arrays and others gave evidence of similarity of appearance.
The general rule is that a witness who has previously identified the accused should be asked whether he or she can see the person concerned in court: R v Britten (1989) 51 SASR 567. The applicant submitted that this rule would not apply to cases falling short of positive identification. However, there is no reason why a distinction should be drawn in such cases.
A trial judge has a discretion to disallow in-court identification, but the circumstances put forward by the applicant as to why the exercise of the discretion should have led to the exclusion of the evidence in this case have no merits.
This leaves aside the consideration that careful directions are required on the approach to in-court identification.
Leave to appeal on these grounds is refused.
Ground 9
Ground 9 asserts that the learned trial judge erred in admitting evidence of the identification by the witness Durrington who selected the image of the applicant during a second identification procedure.
Ms Durrington identified a photograph which was not that of the applicant. After she left the room in which the procedure was carried out a police officer spoke to her and asked her why she had chosen that particular photograph. She then asked to look at the photographs again and this time she selected the applicant’s photograph.
In the witness’s statement she said that the man she saw was between 18-26 years of age. At that time the applicant was 46 years of age. There were other unsatisfactory features about the identification which were the subject of a direction by the trial judge.
The trial judge cautioned the jury against treating the evidence of Ms Durrington as being of any weight at all. In the circumstances the question arises as to whether these deficiencies should have led to the exclusion of the evidence from the jury.
I grant leave to appeal on this ground.
Ground 10
Ground 10 states that the trial judge erred in allowing the prosecution to elicit from the applicant’s mother an opinion as to the identity of a person depicted on surveillance video taken at the Mobil Renmark Service Station on the morning of Tuesday 15 October 2002. The prosecutor was permitted to ask Mrs Gassy whether it was her son shown on the video, but she denied that this was the case. This evidence was favourable to the applicant.
However, it transpired in the course of argument that the applicant’s complaint about the procedure was that the cross-examination would undermine Mrs Gassy’s credibility in relation to other matters if the jury thought that it was the accused who was on the video.
In my view it is not arguable that these circumstances resulted in a miscarriage of justice and leave on this ground is refused.
Ground 11
Ground 11 states that the trial judge erred in allowing the prosecution to ask further questions by way of examination-in-chief after the cross-examination of the witness Martin Smith had commenced.
Mr Smith was the owner of a motel at Woodville Park at the time of the alleged offence. According to the prosecution case the applicant stayed at the motel on the occasion when it was alleged that he came to South Australia to commit the offence. Mr Smith identified the applicant from a series of photographs shown to him.
Shortly after cross-examination of the witness commenced, Mr Brebner QC, for the DPP, said that he had overlooked a topic and he was given permission by the trial judge to ask the witness further questions. Mr Brebner then asked Mr Smith if he could see the person he had previously identified from photographs in court. The witness then identified the applicant.
The evidence was relevant and admissible. The trial judge has a wide discretion in an application such as that made by the prosecution. It is not arguable that there was an error in the exercise of that discretion. Leave to appeal on this ground is refused.
Ground 12
Ground 12 states that the learned trial judge’s warnings to the jury about the identification evidence were insufficiently specific, detailed and cogent.
Much of the written argument put forward by the applicant in support of this ground is beside the point. However, the question as to whether the warning is adequate in a particular case is a matter for judgment. In my view that assessment is best made by the Court of Criminal Appeal after full argument on the matter. I grant leave to appeal on this ground.
Ground 13
Ground 13 complains of a comment made by the trial judge in the course of her summing-up when dealing with evidence concerning a vehicle which was sighted by witnesses in the vicinity of the Brisbane Convention Centre on 27 April 2002.
There was evidence that the applicant hired a vehicle in Sydney on Anzac Day 2002. The vehicle bore the Queensland registered number 183-GEO. The applicant denied that he used the vehicle to travel to Brisbane. However evidence was given of an entry in a security log that a car was observed in the vicinity of the convention centre and that the registered number of the vehicle was 183-GEO or Q.
In the course of her summing-up the trial judge said:
“It has been suggested to you there may be other vehicles of that registration 183-GEO in Australia and that the certificates that you have only cover Queensland and New South Wales. I might say that I would not think that the South Australian registration numbering system has any number beginning with G.”
It is inconceivable that an aside of this nature could have led to a miscarriage of justice.
Leave to appeal on this ground is refused.
Ground 14
Ground 14 complains of a direction given by the trial judge to the jury when they announced that they could not agree on a verdict. On a previous occasion her Honour had given a “Black direction” to the jury. However, the jury reported back some time after this direction had been given that they remained unable to reach a verdict. Her Honour then directed the jury’s attention to a number of topics which made up the prosecution case. The direction appears in the summing-up transcript for Thursday 23 September 2004 commencing at 11.18 am.
According to this ground of appeal the direction was unfair because it suggested that the jury should resolve important issues adversely to the applicant without directing the jury as to countervailing factors to be considered.
In my view this is another matter which is best left to the judgment of the Court of Criminal Appeal. Leave to appeal on this ground is granted.
Ground 15
Ground 15 complains that the trial judge erred in not pointing out certain alleged infirmities in the prosecution case to the jury.
The first of these relates to the evidence of Dr Woodforde. According to the applicant the prosecution improperly used this witness’s evidence.
It was part of the prosecution case, based on evidence given by Dr Woodforde, that the applicant suffered from a delusional disorder. Dr Woodforde made this diagnosis in 1994 when asked to give an opinion to be used in a report to the Medical Board of New South Wales on the question as to whether the applicant was fit to practise psychiatry.
At the trial Dr Woodforde was asked whether certain events which had taken place since that time confirmed his opinion that the applicant suffered from a delusional disorder of a persecutory type. Dr Woodforde agreed that those matters were consistent with his opinion.
The applicant has pointed out that other medical witnesses disagreed with this diagnosis. However, that was a matter for the jury. In addition, the applicant has argued that a person suffering from a delusional disorder may be capable of reacting in a way in which other people would act to situations so that these reactions would not necessarily be the product of the delusional disorder.
The prosecution relied on statements which the applicant had made to various people about Dr Tobin’s role in his deregistration. It was open for the jury to draw the inference that the applicant thought that Dr Tobin wanted him deregistered and to conclude further that if the applicant was suffering from a delusional disorder this would explain why a resentment might have been harboured over the years.
The trial judge gave directions on this issue which are not open to criticism. It was left open to the jury to consider whether the factual basis of Dr Woodforde’s opinion existed and whether his view was justified. The matters to which the applicant has drawn attention were not “infirmities” in the prosecution case but arguments which they were entitled to take into account in deciding whether to reject Dr Woodforde’s evidence or the significance which the prosecution placed upon it.
The second issue raised under this ground is based on an argument put forward by the prosecution to explain why Dr Tobin may not have recognised the man in the lift. It was the prosecution case that the assailant had long hair and a beard. However the applicant did not have a beard or long hair during the trial and yet various witnesses were said to be able to recognise him in the dock. It is said that this discloses inconsistency in the prosecution arguments.
This argument was open to the applicant. However, it was unnecessary for the trial judge to point it out as a difficulty with the prosecution case.
The third topic under this heading is based on an argument by the applicant that neither of his pistols was the murder weapon. Again, this was no more than an argument. The jury were entitled to reject it and it was unnecessary for the judge to comment on any deficiency in the prosecution argument on the issue.
The final issue raised by the applicant under this ground comes into the same category. It arose out of an argument by the applicant that there was an inconsistency in the prosecution case concerning the applicant’s surveillance training. According to the argument, if the surveillance training had been used by the applicant to prevent his detection when he came to Adelaide, why was it not used when he went to Brisbane? There was no requirement for the trial judge to repeat the argument in her summing-up.
I refuse leave to appeal on ground 15.
Ground 16
Ground 16 alleges that the trial judge erred in giving the jury various directions which bolstered the prosecution case, undermined the defence case, or were prejudicial to the applicant.
The impugned statements are set out in the ground of appeal accompanied by arguments in support of them. Leaving aside ground 16.4 there is nothing in the other particulars which gives rise to an arguable ground of appeal.
I grant leave to appeal on ground 16.4. Leave to appeal on the other matters raised in ground 16 is refused.
Ground 17
Ground 17 states that the trial judge erred in omitting to refer to critical parts of the defence submissions in the summing-up.

The particulars which are set out in paras 17.1 and 17.2 disclose speculative arguments and required no comment from the trial judge. Nor was it necessary for the trial judge to tell the jury that there was no evidence of threats against Dr Tobin or any intimation of intended action against her (para 17.3).
Leave to appeal on ground 17 is refused.
Ground 18
Ground 18 complains that the trial judge erred in not allowing the applicant to further cross-examine two witnesses, Peter Lawrence and Robert Champion.
I grant leave to appeal on this ground.
Ground 19
Ground 19 states that the trial judge erred in not allowing the applicant to adduce evidence in relation to the topics identified in the particulars to this ground.
Paragraph 19.1 complains that the applicant was not allowed to tender a post-mortem photograph of the victim’s body showing the position of entry wounds. The point which the applicant wished to make in relation to the photograph could be made just as effectively without the photograph.
Paragraph 19.2 refers to an offer of employment made to the applicant by a Dr Hoskins. The applicant wished to tender it as a business record. The relevance claimed for the letter was that it indicated that the applicant did not suffer from a delusional disorder as no-one would offer him a staff specialist psychiatrist position if that were the case.
The applicant was permitted to give evidence of the contents of the letter and, in my view, he lost nothing by not being able to tender the letter.
Paragraph 19.3 concerns the evidence of Drs Phillips and Woodforde. The applicant complains that he was not allowed to call these witnesses on the voir dire in order to determine the basis for any objection which he might make to their evidence. The ground is misconceived. The witnesses subsequently gave evidence which was relevant and admissible. Calling the witnesses on a voir dire would not have disclosed anything which would have detracted from that relevance and admissibility.
The applicant complains in ground 19.4 that he was prevented from calling Professor Thompson, an expert in visual memory and identification. The applicant wanted to call Professor Thompson to explain to the jury how memory works so as to assist them in evaluating the evidence of the identification witnesses.
Evidence of this nature is inadmissible: Smith v R (1990) 64 ALJR 588.
Leave to appeal on the matters raised in ground 19 is refused.
Ground 20
Ground 20 relates to evidence given by the firearms expert Mr Lawrence. There was evidence given by another expert to the effect that the applicant had downloaded material from a particular firearms website on the Internet. Mr Lawrence accessed the website and gave evidence that there was information there which would alert visitors to the website to the significance of marks left by the breech face of a weapon on cartridge cases.
The first objection made by the applicant is that this evidence is hearsay. According to the submission the author of the material on the website should have been called. In my view that was unnecessary. The evidence would only be hearsay if it was being used to establish the truth of matters stated on the website. The object of this evidence was to do no more than indicate what was available on the website to anyone who visited it. There was no hearsay element in that evidence.
The other objection relates to relevance. In my view relevance was established by reason of the prosecution evidence that the slides which contained the breech faces and which were found on the applicant’s premises had been polished. This had the potential to prevent cartridge cases used in the weapon being traced back to it.
Leave is refused on ground 20.
Ground 21
Ground 21 reads:
“The learned trial judge erred in pressuring (subtly) the applicant to limit the length of his closing argument.”
Towards the end of his address the applicant said to the trial judge:
“Your Honour, I’ve only got about another 20 minutes to go, but it might be better if we take a break and I will just finish up after lunch. I guarantee I will not be more than half an hour.”
The trial judge then permitted the jury to leave the court and return after lunch.
The complaint is that her Honour’s remark was not followed by any comment that there was no time restriction on the applicant.
The failure of her Honour to make any comment could not possibly be viewed as pressuring the applicant. Leave will be refused on this ground.
Ground 22
Ground 22 complains that the trial judge erred in making an order under s 13 of the Evidence Act1929 so as to permit a witness to give evidence via video link.
The witness was a former patient of the applicant. The application was made in the absence of the jury. She said that the therapy which the applicant had provided caused her significant trauma. She said she had received treatment as a result of those circumstances.
The trial judge warned the jury that they were not to draw any inference adverse to the applicant from the fact that the witness was to give evidence from a remote location. She also said that the jury were not to allow the special arrangement which she had made influence the weight which should be given the evidence of the witness.
Permitting the witness to give evidence in this way was within the judge’s discretion and the circumstances were not prejudicial to the applicant.
Leave to appeal on this ground will be refused.
Ground 23
Ground 23 asserts that the trial judge erred in not adjourning the trial until a juror who had fallen ill had recovered. The judge made this order at the addresses stage of the case. At this point there were 14 jurors. The juror was unable to attend on one day and on the following day the judge received a message that the juror could not attend on that day but may be able to attend on the following day.
It was within the discretion of the judge to discharge the juror. At the conclusion of the case there were 12 jurors available to consider the verdict. The applicant said in submissions on the hearing of this application that the juror appeared to be favourable to the defence. He said he gleaned this by impression.
There was no unfairness in the exercise of the discretion and leave to appeal on this ground must be refused.
Ground 24
Ground 24 complains that the trial judge failed to adequately direct the jury on the principles of circumstantial evidence and their application to the facts of the case.
The written submission states that the jury should have been told that, even if they had reservations about the applicant’s story, if they nevertheless felt that his version might “reasonably possibly be true” then he would be entitled to an acquittal.
In the course of her summing-up the trial judge said (5):
“Where a case depends upon circumstantial evidence, the charge is not proved beyond reasonable doubt if there remains a reasonable possibility of innocence. If there is some reasonable explanation of the evidence consistent with innocence, that has not been convincingly excluded, then it must follow that the charge has not been proved beyond reasonable doubt.”
This direction adequately explained to the jury the requirement of proof beyond reasonable doubt in the context of a circumstantial case.
Leave to appeal on this ground will be refused.
Ground 25
Ground 25 asserts that the trial judge erred in failing to direct the jury that certain critical matters had to be proved beyond reasonable doubt before they could be taken into account in the circumstantial case against the applicant. The applicant identified those matters as opportunity, the Brisbane incident, equipment, motive, the scene and whether the applicant had ever suffered from a delusional disorder or a mental illness.
Reliance was placed on Shepherd v The Queen (1990) 170 CLR 573. According to the argument the matters identified by the applicant were indispensable intermediate steps in the reasoning process towards an inference of guilt.
He also relied on the comment in R v Murphy (1985) 4 NSWLR 42 referred to by Callinan J in Penney v The Queen (1998) 72 ALJR 1316 at [26] –
“… before a jury can infer guilt from motive they must be satisfied that the motive asserted has been proved beyond reasonable doubt.”
Leave to appeal on this ground will be granted but restricted to the issue of motive. In my view it is not arguable that the other issues identified by the applicant were indispensable intermediate steps in the reasoning process towards an inference of guilt. Whether or not motive was an indispensable step in the reasoning process it was an important part of the prosecution case and the question does arise as to whether the observation by Callinan J is relevant to the circumstances of the case.
Ground 26
Ground 26 states that the trial judge should have excluded various items of evidence. It is appropriate to summarise the evidence and the claims for relevance asserted by the prosecution.
26.1 The applicant entered into rental agreements for two vehicles, one of which travelled 116 kilometres and the other 20 kilometres. The vehicles were hired from 4 October to 8 October and 8 October to 9 October respectively. According to the Crown case the applicant hired a vehicle on 11 October and travelled to Adelaide and returned in it. The vehicle covered approximately 3,000 kilometres.
According to the applicant’s version he hired all three vehicles to practice vehicle surveillance around Sydney. This was in relation to training he was doing in security. The prosecution case is that all three hirings gave rise to suspicion and that it might be inferred from the two earlier short-term hirings that he was planning something more substantial.
A laser gun sight was tendered. This was found on the applicant’s premises. It was tendered on the basis that it was part of the equipment available to the applicant, but it was not until Mr Lawrence gave evidence that it was realised that the sight was not suitable for a Glock pistol of the type used in the incident.
Two woollen jackets and a black leather jacket were retrieved from the applicant’s premises and tendered at the trial. According to the prosecution case the clothing was tendered for the sake of completeness.
The laser sight and the clothing did not take the matter any further but it cannot be said that any prejudice resulted to the applicant from the tender and acceptance of the items into evidence.
In my view the earlier car hire agreements had some, albeit limited relevance.
26.2 A “VIP Protection Certificate” was tendered. It indicated training which the applicant had completed. It was part of the prosecution case that the applicant had undertaken a security course. The person who conducted the course was called as a witness. He was able to link the certificate with the applicant. The evidence was put forward as indicating that the applicant had received training which might be useful for the commission of the alleged offence. The course instructor said in evidence that it was a possibility he would have mentioned Glock pistols during the courses and there was evidence that the applicant purchased the two pistols found at his home at around this time.
The prosecution tendered a medical practitioner’s registration certificate which had been altered. The certificate was issued in the 1990s and was copied and altered in such a way as to suggest that it was a current practising certificate. The prosecution admitted that the probative value of this evidence was slight but that it helped to support the inference that the applicant missed practising medicine and regretted that he was presently unable to do so.
The applicant contends that some still images taken from a security video recording recorded at a Mobil Service Station at Renmark and tendered in evidence were unduly prejudicial.
The film was recorded on 15 October 2002, the day after the alleged offence. According to the prosecution case, the applicant stopped at the service station on his way back to Sydney from Adelaide and made a purchase.
The attendant at the service station was unable to identify the applicant, but the prosecution relied on certain circumstantial evidence to establish that the applicant was in Renmark at the relevant time.
The video recording was played for the jury and, in addition, stills were prepared from the tape (P217). Two of the stills were enlarged. They depict a customer outside the service station and then inside completing a transaction with the attendant on duty. The jury were invited to compare the general build and movements of the customer as depicted on the videotape with what they knew of the applicant’s build from seeing him in court and on the video recording of his conversations with the police. The two enlarged photographs which are the subject of the present complaint are somewhat distorted and do not appear to be particularly useful for comparison purposes.
In my view, however, it is not arguable that they contributed to a miscarriage of justice, particularly when regard is had to the other material in the form of the video recording itself and the stills which were not enlarged.
26.4 The applicant challenges the admission of the evidence of Dr Woodforde. I have referred to the nature and effect of that evidence. In my view it was relevant and admissible.
Dr Woodforde was also on a “persons of interest” list prepared by the applicant. According to the prosecution case the applicant kept this list together with a list of names on a train ticket. It was pointed out by the prosecution that the persons named in the lists had been involved in the proceedings which eventually led to the applicant’s removal from practice. The evidence was led to give some indication of the feelings which the applicant may have had for those involved in that process.
Another group of witnesses (Auchiello, Harry, Alli and Floyd) were called to give evidence of things the applicant said to them about the way in which he thought the deceased was acting against him in 1994. These matters were clearly linked to the prosecution’s case on motive and the relationship between the applicant and the deceased.
In my view the applicant’s submission that the evidence given by all of these witnesses was hearsay, prejudicial and remote in time from the events under consideration is not reasonably arguable.
26.5 Similar objections were made in relation to the evidence of the witnesses Payne, Strand and Johnston.
Ms Payne worked for the New South Wales Medical Board. She gave evidence concerning the proceedings of the Board. According to her evidence the applicant spoke to her and indicated that Dr Tobin was attempting to have him deregistered through her contacts in the Department of Health.
Mr Strand had been a friend of the accused for 23 years. During a conversation with the applicant he referred to a lady who was involved in the deregistration process who was giving him trouble by influencing the outcome of the matter. Ms Johnston was the Deputy Registrar of the Medical Board. The applicant rang to ask about a request by Dr Tobin that he not return to work prematurely.
In my view all of this evidence was relevant and admissible in that it tended to establish the applicant’s attitude towards Dr Tobin.
26.6 The applicant complains about the reception into evidence of exhibits P152 and P153 on the grounds that they were too remote in time. These documents were prepared by the applicant at the time of the deregistration procedure and contained comments adverse to Dr Tobin’s role in that procedure. They were clearly relevant documents.
26.7 The applicant complains that exhibits P15, P129 and P132 should not have been admitted into evidence. Exhibit P15 is a two page document which contains photographs and comments about doctors involved in the deregistration procedure. P129 is the torn railway ticket containing the initials and addresses of doctors involved in the deregistration procedure. P132 is a map of St Vincent’s hospital with markings which point to the work station of one of the doctors who sat on a Professional standards Committee hearing in relation to the applicant.
This ground also refers to the entire evidence relating to the Brisbane incident. According to the argument this evidence was irrelevant and prejudicial.
This ground also complains about the admission into evidence of a security log P56. The trial judge gave written reasons for admitting the log as a business record pursuant to s 45A of the Evidence Act 1929. The reasons appear after p 1148 in the transcript of evidence. The log contains a registration number which appears to have been taken down by one of the security officers working at the convention centre and then incorporated into a report of the incident which included observations made of a man behaving suspiciously at the centre. The circumstances are set out in the trial judge’s reasons. The report was clearly a business record and the criteria for its submission under the section were satisfied. In my view it was a proper exercise of the judge’s discretion to admit the document.
Leave to appeal on all the matters raised in ground 26 will be refused.
Ground 27
Ground 27 alleges that the trial judge took an overactive role during the trial process in favour of the prosecution and “crossed the line in her role as referee”. The first six instances given of this approach consist of comments made by the trial judge in the course of the discussion about the proposed prosecution case in the absence of the jury. In no sense could any of the comments be viewed as the adoption of an “overactive role” by the trial judge. The trial judge was doing no more in each instance than seeking an understanding of the prosecution case and, in some instances, asking whether the prosecution was going to proceed in a particular way. Paragraph 27(a)(13) refers to a comment made by the trial judge to Mr de Robillard during the voir dire hearing as to the circumstances in which the rectification of the wrong address on the warrant took place. Paragraph 27(a)(14) implies that the non-parole period imposed on the applicant was a reflection of bias on the part of the trial judge.
I have perused grounds 27a(7) – (12) and it is clear that none of them disclose any incident in which the trial judge acted in an inappropriate manner.
Paragraph 27(b) complains that the trial judge assisted the prosecution case by referring the prosecutor to the decision of Ousley. The passages quoted in the transcript disclose no more than that judge and counsel were discussing the legal effect of that case.
Paragraph 27(c) complains that the trial judge considered an invalid application to have the applicant psychiatrically examined with the potential effect of strengthening the prosecution case and later making an order under s 269K of the Criminal Law Consolidation Act which had the same effect.
There was nothing irregular about this procedure. The prosecution was exercising a right given to it under the Criminal Law Consolidation Act and the order made by the trial judge was authorised by s 269K of the Act. The ground attempts to imply some ulterior motive in the making of the prosecution application and the court order which is not supported by the events which took place.
Leave to appeal on ground 27 is refused.
Ground 28
Ground 28 states:
“A miscarriage of justice has occurred and/or the jury verdict was unsafe and unsatisfactory and/or it would be dangerous in the administration of criminal justice to allow it to stand in all the circumstances.”
Particulars of this ground are then set out. In my view it is not arguable that the ground is made out on these particulars. On the other hand, it would be open to the Court of Criminal Appeal to allow an amendment to the grounds if it reached the conclusion that the verdict was unsafe and unsatisfactory by reason of the matters argued before it.

In light of the present particulars, however, leave to appeal on this ground is refused.
Summary
There will be leave to appeal on grounds 1 (as modified), 2, 9, 12, 14, 16.4, 18 and 25.
Leave to appeal on all other grounds is refused. In the case of each of the grounds on which leave to appeal is refused, I have reached the conclusion that the complaints raised are not reasonably arguable.