R v Gillard and Preston

R v GILLARD AND PRESTON
[2000] SASC 454

Court of Criminal Appeal: Duggan, Lander and Bleby JJ

1................ DUGGAN AND BLEBY JJ. The appellants were convicted of the murders of Leslie Knowles and Timothy Richards and the attempted murder of Kim Traeger at Lonsdale on 15 August 1996. They have appealed against these convictions.

The charges arose out of a shooting incident which took place at the Lonsdale workshop of Mr Knowles who conducted an automobile repair business. Mr Richards was a friend who worked at the workshop on a casual basis. Mr Traeger and another man, Stephen Leane, were employed at the workshop as mechanics.
Shortly after midday on Thursday 15 August 1996 Knowles and Richards were in an office at the front of the workshop. Leane and Traeger were in the main workshop area working on motor vehicles. Leane was working under a utility and Traeger was standing next to this vehicle. A yellow van pulled up at the entrance to the workshop. A masked man alighted from the front passenger door of the van and walked through the workshop into the office. He was heard to say “Are you Les? Are you Les?”. Knowles and Richards both replied that they were not “Les”. The man then aimed a pistol at Knowles and shot him in the head. He then shot Richards in the head.
As he walked out of the office and through the workshop the man saw Traeger. He said “Are you Les?”. Traeger denied that he was Les and offered to produce his driver’s licence. The man then raised the pistol and aimed it at Traeger who dropped to the ground as the gun was fired. The bullet grazed the inside of his left wrist. The man then got back into the van which was driven off by a driver who had been sitting in the van. Knowles and Richards died from their injuries.
According to the prosecution case, the gunman was the appellant Gerald Preston (“Preston”) and the driver of the van was the appellant Gillard. The prosecution alleged that the killings were carried out at the behest of a man named Tognolini who was said to have promised Preston approximately $10,000 to kill Knowles.
Approximately 25 minutes after the shootings a yellow Ford Econovan was found burning in a car park at the rear of a shop on Beach Road, Christies Beach. The car park is situated approximately 900 metres from where Preston was living at the time. Gillard also lived in the area, although a little further away from the car park. The van had been stolen on Monday 12 August and the prosecution allege that it was the vehicle used in the shootings.
The initial police enquiries focused upon the van. Police officers investigated a report of a van answering the description of the vehicle used in the robbery which had been seen in the car park of a block of units at Hilton in the days leading up to the shootings. They doorknocked the units and spoke to the appellant Preston’s brother, Ronald Preston, who occupied one of the units.
At about this time, police officers installed listening devices in Preston’s home and also intercepted telephone calls made to and from his home and mobile telephones.
Preston was arrested and charged with the offences on 3 November 1996. On the same day a Luger pistol was recovered from the boot of a vehicle owned by Preston’s father and step-mother, Ivy Preston. The vehicle was located at their home at Moonta. Forensic tests established that the pistol was used in the shootings. In a police interview conducted on the day of his arrest Preston denied any knowledge of the shootings. At a later interview he declined to answer further questions.
The appellant Gillard left South Australia and travelled to Queensland in late October or early November, 1996. A warrant for his apprehension was issued on 6 November 1996. He was arrested in Brisbane on 9 December.
At first Gillard denied involvement in the shootings. However he was further interviewed on 12 December 1996. In the course of this and subsequent interviews he admitted that he had driven Preston to the workshop on the day of the shootings. He said he had stolen the van some days beforehand at the request of Preston. He had delivered it to the units in which Ronald Preston was living. In accordance with an arrangement made with Preston, he picked Preston up at the train station at Colonnades on the morning of the alleged offences. They drove past the workshop and obtained the telephone number of the business from a sign on the wall. Gillard said that Preston then told him to ring the workshop from a public telephone box to ascertain whether Knowles was present. Gillard said he rang the workshop and was told Knowles was there. When Knowles came to the telephone Gillard terminated the call.
They then proceeded to the workshop after putting hoods over their heads. Gillard said that Preston had not told him why they were going to the workshop. He thought it was to carry out a robbery. The radio was turned on in the van at the time and he did not hear any shots. He said he had not seen a gun in Preston’s possession. Preston said nothing to him about the incident when he returned to the vehicle. He said he received nothing for his part in the incident. He said he drove to the rear of a shop on Beach Road and Preston got out and left. Gillard said that he then set fire to the vehicle. He said he heard about the shootings on the news that evening.

The case against Preston

The prosecution case was that Preston was the gunman and that he was driven to and from the scene by Gillard. Gillard did not give evidence at the trial. Most of what was contained in his statements to the police was inadmissible against Preston. The jury was instructed on many occasions during the course of the trial that they could not use Gillard’s statements to the police as evidence against Preston.
Mr Traeger had died before the trial from causes unrelated to the shooting. The statement he had made to the police was admitted into evidence. Neither he nor Mr Leane were able to identify the gunman, whose face was covered by his hood. They did see the yellow van in the doorway of the workshop and saw the gunman get into the passenger’s seat after the shootings. Their description of the height and build of the gunman was not inconsistent with that of Preston.
The case against Preston was based in part on admissions allegedly made by him to close relatives. It was also based on conversations with a number of witnesses which, in the circumstances, and when considered with other evidence against him, could be considered as admissions of his involvement. It was based in part on recorded conversations between Preston and others obtained through listening devices placed in Preston’s home, and on recorded telephone conversations. In addition, however, there was a large body of circumstantial evidence.
The clearest admissions were allegedly made by Preston to his brother and to Vicki Preston, his former wife.
Ronald Preston gave evidence that several days after the shootings, after there had been much publicity about them, he had a conversation with Preston in which Preston confessed to being the gunman, that he had carried out the shootings for Tognolini, that he had been paid $10,000 for the shootings but had also done it as a personal favour for Tognolini.
Vicki Preston gave evidence of a telephone conversation she had with Preston on the day following the shootings. She was living in Bendigo and had heard about the shootings through the media. She perceived that he might have been involved, and by pretending that she knew about it, obtained answers from him which admitted involvement in the killings, and in which he expressed surprise at the detail she seemed to know. She also gave evidence of an incriminating conversation on the following Sunday at Tullamarine Airport when Preston was about to return to Adelaide which, if it occurred, would seem only to be referrable to the fact that Preston was involved in the killing.
Of some importance in the case against Preston was evidence concerning the yellow van. Twenty-five minutes after the shootings, a yellow Ford Econovan was found burning in a car‑park behind a shop at Beach Road, Christies Beach, a few kilometres from the scene of the shootings. The vehicle was then approximately 900 metres from Preston’s then home, and a slightly longer distance from Gillard’s home. The van had been deliberately set alight with an accelerant. There was compelling evidence to show that the van in question had been stolen from North Terrace, Adelaide, between 9.30am and 3.30pm on Monday, 12 August 1996, three days before the shootings. Witnesses inside and outside Mr Knowles’ workshop at the time of the shooting gave evidence that the burnt out van was similar to the one they saw outside the workshop, but that the number plates at the time were different.
There was also evidence to show that the vehicle which had been burnt was the one which had appeared in the car‑park of the block of units at Hilton, a suburb of Adelaide, on the day it was stolen. The evidence showed that it remained in a car‑park belonging to Unit 5 which, at the time, was occupied by Ronald Preston. The van disappeared from the car‑park on the day of the shooting. There was one other circumstance which linked the burnt vehicle with the getaway vehicle and that was, according to the owner, that it blew a lot of smoke out of the exhaust, a fact observed by one of the witnesses who saw the vehicle outside the workshop.
There was evidence to suggest that Ronald Preston was an accomplice to the crime. He gave evidence which, if believed, showed that Gillard came to the unit when he brought the van there on the Monday morning. According to Ronald Preston, Gillard said: “Don’t touch it, it’s coming from your brother”, and that the van was to stay there for a couple of days. The admissibility of that evidence against Preston is challenged in the appeal. It will be necessary to return to that in due course.
There was further evidence from Ronald Preston that, when he was leaving his unit on the morning of the shootings, he saw both the appellants walking towards the van as he went to catch his bus, although the prosecution suggested that he was mistaken in identifying the presence of Preston at that time.
Ronald Preston also gave evidence about some number plates which had been left at his house by a man named Slobodian, who was a friend of Preston, and a signwriter. Slobodian gave evidence that he had been asked by Preston to make up two sets of number plates about a week prior to the shootings. He had been requested by Preston to drop them off at Ronald Preston’s unit, which he did. They were vinyl number plates with adhesive backings.
There was also evidence in the recorded conversations to which Preston was a party that he was familiar with a common method of stealing Econovans with foreign ignition switches. There were other references in some of those conversations to the van in question, tending to confirm his association with it at the time of the shootings.
At the time when the police found the murder weapon, a Luger pistol, in the boot of Preston’s father’s car at Moonta, they also found with it an ignition switch and key which was capable of starting the Econovan in question.
There was a substantial body of evidence which showed a relationship of some standing between Preston and Tognolini in Melbourne, and of the latter’s association with the Hell’s Angels. Vicki Preston gave evidence that she was present several years ago in Melbourne when Preston purchased a Luger pistol from Tognolini which Tognolini claimed had been stolen. It was the same as the murder weapon. The murder weapon was identified as having been stolen in Melbourne in 1994. Vicki Preston recounted an occasion in which Preston was involved in a road accident in Melbourne whilst carrying the gun and of his expressing some concern that it might be found on him. According to her, Preston had told her that, after he moved to Adelaide, it was being looked after by his father at their house at Moonta.
There was other circumstantial evidence linking Preston with the murder weapon. Ivy Preston had been married for 17 years to Preston’s father. They had previously lived in the house in which Preston was living at the time of the murders. It was their house. On 10 May 1996 they went to live at Moonta. She said that prior to that, the Luger gun had been kept in a tin box under her husband’s bed. It went with them to Moonta. She claimed that in late June 1996 Preston asked her to bring the gun to Adelaide and to meet him, which she did, and handed over the gun and ammunition to him in a city car‑park. She said that that was because Preston did not want Vivienne Pitts, Preston’s defacto wife, to know about it because she was scared of guns. Preston had told her that he wanted to sell the gun.
Ivy Preston and her husband had made arrangements to come to Adelaide on the Friday or Saturday following the shootings for the purpose of picking up items of personal property from Preston’s house that belonged to Ivy Preston and her husband. Preston had cancelled that arrangement shortly after the time of the shootings so that he could go to Melbourne. He telephoned them again on Monday, 19 August, asking them to come down that day, which they did. Whilst there was no evidence as to how the gun, some ammunition and an Econovan ignition switch and keys found their way in to Mr and Mrs Preston’s car, they were there when they arrived back at Moonta. Her evidence was that both Gillard and Preston were at the premises when the car was packed.
On 2 November 1996 the police published on television and in The Advertiser newspaper that they wanted to speak to the person or persons who previously occupied the Hilton unit. By that time Ronald Preston had moved from that address. Police said that they had established that the van had been used in the shootings. That evening, by means of a listening device, the police heard a conversation between Preston and Vivienne Pitts who discussed burying something and ringing his father to take “it” away from where they then had it. During the course of the conversation Pitts said: “If they find that that’s the end of the story, isn’t it” to which Preston replied: “That’s the whole ball game”. Pitts commented: “When we went through Melbourne you weren’t willing to throw it out the window”. Preston said: “I’d rather lose it now”.
Preston then telephoned his father. He was guarded as to what he felt he could say on the telephone, but he told his father to throw “it” down a hole so that he could get it back at a later stage.
On the following day, police searched the Prestons’ Moonta home and found what subsequent ballistic analysis confirmed was the Luger pistol used in the shootings. It was found in a tin of wet cement in the boot of Mr Preston’s car. In another tin, also in wet cement, were two pistol magazines, a quantity of ammunition and the ignition switch and key capable of starting an Econovan of the type used in the murder. Ivy Preston confirmed in her evidence that the items had been placed in wet cement that morning as a consequence of the phone call from Preston the previous evening. There was also evidence from Ivy Preston linking the number imprint on the gun of which she and her husband had custody from time to time with the number imprint on the murder weapon.
There was also evidence of a long‑standing relationship between Preston and Gillard, evidence largely given by Ronald Preston and Vicki Preston. For a time, this continued after the shootings, Gillard looking after Preston’s house on at least two occasions when the latter went to Melbourne, including the weekend immediately following the shootings. There was evidence of other frequent contacts, at least until 18 September.
On 16 September 1996, the police conducted a door knock of the units at Hilton seeking information about the van which had been parked there prior to the shootings. Ronald Preston was then still living in his unit, and of course became aware of the inquiry. At that time he denied any knowledge of the van to the police. On 18 September police recorded a telephone conversation between Preston and his brother. His brother reported the fact that the police had been inquiring about the van. Preston disbelieved his brother, but his brother said that he was getting out of the unit as he did not wish to be questioned again, and was concerned that the van had been seen in his parking spot.
That police inquiry was also significant in another respect. It was the Crown case that not only did Preston become aware of the fact that police were inquiring about the van but that Gillard did also. Gillard moved out of his lodgings, and stayed at various hostels in the city of Adelaide until he went to Queensland late in October or early November. His contacts with Preston after that were very few, and then only by telephone. During this period police recorded conversations involving Preston expressing concern at the whereabouts of Gillard, and speaking of attempts to locate him. The inference which the prosecution sought to draw from the lack of contact and Preston’s expressions of concern was that Preston feared for what Gillard might do or say which would implicate Preston in the crime. There were certainly expressions of increasing concern by Preston in recorded conversations as more information concerning successful police investigations became public.
The prosecution case was that Preston had gone to Melbourne on the weekend following the shootings to collect his payment from Tognolini. There was evidence that he had little or no available money prior to that time to meet some outstanding commitments. Through Vicki Preston, whom Preston also met in Melbourne, there was evidence that Preston had acknowledged contacting Tognolini that weekend, and there was evidence that whilst in Melbourne he purchased for cash a number of items amounting to several hundred dollars, and paid Vicki Preston four hundred dollars in one hundred dollar notes on account of his son’s maintenance. His son was then in her custody. She saw a number of one hundred dollar notes in his wallet. On the following Monday he deposited nine hundred dollars in his bank account in one hundred dollar notes and paid $1,000 to Ivy Preston when she came to Adelaide. The prosecution calculated that by the end of Monday he had paid out $2,400 in cash, all in one hundred dollar bills. Later that week he paid $4,000 on account of the purchase of a motor car. In short, the evidence suggested that he had paid out $6,900 in cash within one week of being in Melbourne.
There was a further conversation recorded between Preston and Vicki Preston on 6 October concerning the welfare of their child and the reluctance of Vicki to allow him access in the light of recent events. When asked by Vicki why he got involved “in this shit”, he said that he would not talk about it on the telephone. He said: “I only end up with the pocket money just by providing something, now let’s not talk about it beyond that.”. There were further references to his being sorry that he had spoken to her, and that it was “not her problem”. He said: “It never was, it’s all over and done with.”. The inference the Crown invited the jury to draw from that conversation is that it was about the murders.
For most of the trial Preston conducted his own case. He gave evidence at the trial. He claimed that much of the evidence against him was untrue. The trial judge gave accomplice warnings in respect of Ronald Preston, Ivy Preston and Slobodian. Preston offered explanations for much of the circumstantial evidence that had been led. The jury was reminded in great detail by the trial judge of all Preston’s explanations that he gave and of his cross‑examination of the witnesses whose evidence was challenged. His case was that he had nothing to do with the murders, and that on the day in question he had been at a Comskill computer course in Adelaide.

The prosecution case was that he may have been there in the morning and that he may have returned there in the afternoon, but that he had taken the train to Noarlunga, had been met by Gillard in the van, had committed the murders and had returned to the city by train. The prosecution led evidence that his mobile telephone had rung at 1.32pm with a call from a public telephone at Noarlunga, received when his mobile telephone was at or near Seacliff Railway Station, consistent with the person in possession of the telephone having taken a train departing Noarlunga at 1.13pm. The prosecution led evidence that this allowed him time to walk from the abandoned van to his home and then walk to the station to catch that train. There was also evidence that he had operated an automatic bank teller machine at 2.00pm in King William Street, Adelaide, that time being within about walking time from the arrival time of the same train at the Adelaide Railway Station. Preston gave evidence to explain those events as well, but it appears that his evidence was rejected by the jury in favour of the large body of evidence which pointed to his involvement.

Preston’s appeal, Ground 1 - Admissibility of evidence of Gillard’s demeanour against Preston

As has been pointed out, the appellants were jointly charged after the trial judge had ruled against a submission that they should be tried separately. That ruling and the consequences of it are the subject of a separate ground of appeal which is dealt with below.
The case against Gillard included the admission into evidence of comprehensive audio taped and video taped records of interview, in which Gillard made a number of important admissions, and in which he also implicated Preston as his passenger in the Econovan, both immediately before and immediately after the shootings. For present purposes it is not necessary to record the detail of those admissions or of that evidence. It is sufficient to record that the trial judge, on many occasions during the course of the trial and during his summing‑up, stressed to the jury that those records of interview could not be used as evidence against Preston.
Reference has already been made to the fact that there was evidence that the relationship between Gillard and Preston changed after Preston became aware of the police doorknock at Hilton on 16 September 1996. The few recorded telephone conversations between the appellants indicated that Gillard was wary of Preston and was keen to ensure that their friendship was still close. There was evidence that Preston too was anxious to maintain contact with Gillard. Preston made efforts to locate Gillard, and the acuteness of his concern about Gillard was illustrated by a number of recorded conversations.
In his house on 25 October 1996 Preston was heard to say:
“If he’s too fucking scattered, if he’s too scattered and he can’t ......... then he’s too fucking dangerous to have lying around here, he’s too fucking dangerous.”
On 31 October 1996 there was a conversation between Preston and Ronald Preston at Preston’s home in which Preston said: “Oh well hopefully he’s fucking dead.... he might have fucked off - he might have got his dole payment and buggered off.”.
In the telephone call to his father on 2 November in which he spoke about burying “it”, which the prosecution suggested could only refer to the gun, Preston said of Gillard: “He’s gone I think.... I don’t mean gone‑gone,.... but I think he’s, I think he’s buggered off.... I wish he was gone gone.... That’s another story but that, that’s, that’s the next round.”.
Against that background there was evidence of Gillard’s arrest in Queensland and of when he was first spoken to by Queensland Police on 9 December 1996. He was apprehended at the St Vincent de Paul hostel in Brisbane on the evening of 9 December.
When he was apprehended by Queensland police at the hostel, he was told that police wanted to speak to him about an incident which had occurred in South Australia. Gillard made no comment but agreed to accompany them to the police station. At the Dutton Park police station Detective Lacey told him that the police had received information that he might be involved in a murder in South Australia. He said he did not know anything about it. Detective Lacey asked if he was prepared to wait until other detectives arrived who wanted to talk to him, and according to Lacey’s evidence, Gillard then cradled his face in his hands. He was quiet and reserved. According to Lacey, Gillard then said: “This is going to get me killed”. The conversation continued:
“Q.... What do you mean?
A.They’ll fuckin’ kill me.
Q...... Who is they?
A.Bikies mate.
Q...... Which bikies?
A.I can’t tell.
In relation to that episode the trial judge directed the jury that evidence of Gillard’s demeanour was admissible against both accused. He immediately added that evidence of the conversation was only evidence in the case against Gillard. There was nothing of significance in relation to Preston in the interview which followed, which was shown to the jury on video tape, but the trial judge in his summing‑up, and in relation to that interview, said that that evidence enabled them to see the demeanour of the accused Gillard during the interview in the manner in which he responded to questions. The trial judge said, of the whole interview, that it was not evidence in the case against Preston.
Detective Campbell gave evidence of a further conversation which took place after the conclusion of the formal interview. His evidence proceeded as follows:
“I noted that the accused person appeared agitated and nervous. I said ‘You seem a bit anxious. Is there something else you’d like to tell me?’
The accused said, ‘I can’t, mate.’
I said ‘Why?’
The accused said ‘You know why. Because of who’s involved.’
I said ‘Who’s that?’
The accused said ‘You know who.’
I said ‘Not unless you tell me.’
The accused said ‘Yeah.’
I said ‘Well, we’ve just given you an opportunity to tell us on tape what you know. If you’d like, you can tell me whatever you know now.’
The accused said ‘I’m not saying any more. I don’t know anything.’”
In his summing-up the trial judge said of that conversation that the jury might think that that was “also a fact and circumstance which is important”. The trial judge continued:
“The accused Gillard appeared agitated and nervous. He would not say any more because of who was involved which you might think suggests that he did have more that he could say. You might conclude, if you accept the evidence, given his earlier conversation, that he was frightened of someone, possibly bikies.”
Nothing was said at that time of that particular demeanour or conversation as to its admissibility in the case against Preston, although the trial judge had on many occasions told the jury that evidence of conversation between Gillard and police officers was not admissible against Preston.
On the next day, 10 December, Gillard appeared in the Magistrates’ Court in Brisbane. Detectives Campbell and Benson informed him late in the afternoon of that day that Adelaide detectives would be coming to Brisbane the next day (Wednesday) and would be making application of his extradition. There was a short discussion about what would then happen. The transcript of Campbell’s evidence then proceeds:
“The accused then appeared to become very agitated.
I said ‘Do you have some worries about that?’
The accused said ‘Some.’
I said ‘Why is that?’
The accused said ‘Because of who’s involved.’
I said ‘You said that last night. Is there something you want to tell me?’
The accused said ‘I’ve had a lot of time to think about this. I think I’m all right by myself.’
I said ‘Do you need protection?’
The accused said ‘I’ll be all right.’
I said ‘Are you worried about someone in particular that’s tied up with this murder?’
The accused said ‘Yeah.’
I said ‘Who would that be? Someone from a bikie group?’
The accused said ‘They’ll get to me wherever I am. There’s nothing you can do.’
I said ‘Why would they want to do that?’
The accused said ‘To shut me up. I’m not saying any more.’”
The trial judge read that passage to the jury, although the transcript of the summing‑up reports it as having been read with some minor but, in our opinion, immaterial variations. No direction was given at that time about the admissibility of that particular conversation against Preston, but it was no doubt covered by the directions, many times repeated, that such conversations generally were not admissible against Preston.
On the morning of Thursday, 12 December there was a recorded interview which also took place in Brisbane but this time involving two major crime task force investigators from Adelaide and Detective Campbell. It was during this interview that Gillard made a number of admissions as to his own and Preston’s involvement. At the beginning of the interview he was asked what had made him decide to come forward and answer questions in relation to the matter. The conversation then continued:
“A.... I’m in fear of me life.
Q.From who.
A...... Gerald Preston.”
Of that particular passage the trial judge directed that that was not evidence in the case against Preston. It is a passage which might, however, be taken as evidence of Gillard’s state of mind at the time.
Towards the end of that interview and in another which took place in Adelaide on the following day, Gillard reported having been fearful for his life at various other periods between the shootings and his apprehension. There was, however, one portion of Gillard’s interview with police in Adelaide on 13 December 1996 which might be said to be indicative of his then state of mind. Constable Sherry was about to terminate the interview when the following conversation occurred:
“A.... I’m fucked so it doesn’t really matter. Might as well help myself as much as I can.
Q.What do you mean by that.
A...... Sort of help myself.
Q.You just mentioned then you said ‘you were fucked.’ What do you mean by that.
A...... Well I’m under the impression I’m going to get killed.
Q.What’s given you that impression.
A...... I just understand because I’ve said what I’ve said and er -
Q.Who do you think’s going to do that.
A...... Gerry or Les Knowles’ mates or someone in gaol. I just know it’s coming.”
In the trial judge’s summing‑up the jury was reminded of that passage, but without further comment other than the general direction that such conversations were not admissible against Preston.
Reference has already been made to the trial judge’s direction that evidence of the demeanour of Gillard at the Dutton Park police station on the evening of Gillard’s apprehension was admissible against Preston but that what Gillard said was not. Some time earlier than that in his summing‑up the trial judge had identified fifteen items of circumstantial evidence on which he later elaborated at some length in his summing‑up. In summarising them, and in relation to the last item he mentioned, the trial judge said:
“The last matter is the demeanour of the accused Gillard in Brisbane at St Vincent de Paul and at Dutton Park police station on 9 December, which is evidence against both accused, and what he said about bikies, if you find it proved beyond reasonable doubt that that is what he did say, and what he said about being in a state of fear, if that is what you find beyond reasonable doubt he did say. What he said, of course, is only evidence against him, and not evidence against the accused Preston.”
The other relevant direction as to the demeanour of Gillard occurred in the course of some general directions about the evidence of Gillard’s statements to the police. His Honour was dealing in detail with the case against Gillard, not that against Preston. He said:
“It is not just, you might think, what the accused Gillard said that is important, although that, of course, is important; but the way in which he behaved, which, you might think, is important. You will remember my directions to you that what he said is not evidence in the case against the accused Preston, even though it involves him, because he has been named. You put that aside entirely when you consider the case against the accused Preston. But the demeanour of the accused Gillard, which I will mention in a moment, the evidence about it, is evidence in the case against both accused.”
In the directions which followed there was included reference again to the evidence of demeanour at the Dutton Park police station, reference to Gillard’s demeanour during the video tape interview which followed and evidence of Gillard’s appearance after the interview, namely that he appeared agitated and nervous. There was also reference to Detective Campbell’s evidence of Gillard’s appearance and the conversation which occurred on 10 December. The summing‑up continued by reference to each of the particular records of interview to which reference has already been made, including the passages indicative of Gillard’s then state of mind.
Preston complains that the directions regarding Gillard’s demeanour were wrong in law. He says that there was no explanation given as a matter of law, judicial experience, commonsense or logic why it might be that Gillard’s demeanour was admissible against Preston, but not what he said. A direction was not given as to how Gillard’s demeanour might be logically probative of anything in the case against Preston or how that might go towards proving any element in the charge against Preston. It was also said that the direction was confusing when taken in conjunction with the trial judge’s directions about what was said by one accused not being evidence against the other.
Was the direction confusing or otherwise flawed because of the direction that Gillard’s statements to the police were inadmissible against Preston?
The evidence of Gillard’s demeanour plainly had relevance to the case against Gillard. Leaving aside Gillard’s spoken expressions of fear and anxiety, the only evidence of his demeanour was that of police officers who variously described him as “cradling his head” or “putting his face in his hands”, “quiet and reserved”, “anxious”, “agitated” and “nervous”. Without reference to the conversations, it was quite impossible for anyone to tell what the cause of Gillard’s anxiety or agitation, etc might be, other than by reference to the fact that he had been arrested. It is difficult to see how it might be linked to any part of the case against Preston. Without the associated conversation, there can be no evidence of what caused Gillard to become anxious or agitated, quiet, reserved or nervous, as the case may have been.
Taken literally, the directions of the trial judge required that the jury could have regard only, in the case against Preston, to the description by the police officers of Gillard’s demeanour. Shorn of its associated conversation, the relevance of that evidence to the case against Preston is not established. It was a direction that the jury could have regard to irrelevant evidence in the case against Preston. However, it was a technical misdirection only. If that were the effect of the direction, it is difficult to see how the jury could possibly have used the evidence of Gillard’s demeanour at various times to assist in proving the case against Preston at all. The fact that upon his arrest and on being questioned by police he exhibited a particular demeanour said nothing about the guilt or innocence of Preston. It would neither assist nor hinder them to reach a verdict of guilty against Preston. It would be a case where such a direction could cause no substantial miscarriage of justice, and it would be an appropriate case for the application of s 353(1) of the Criminal Law Consolidation Act 1935.
However, the jury might have interpreted the directions in another way. That is, that the conversations accompanying the other evidence of Gillard’s demeanour, especially to the extent that they refer expressly or by implication to Preston, could not be used as direct evidence of Preston’s involvement in the crime for which Gillard was being interrogated, but the words could be used as the necessary background to other evidence of Gillard’s demeanour or state of mind at that time. In other words, the fact that Gillard spoke of Preston or of persons with whom Preston might have been associated in the context of displaying particular emotions could not be used in itself to suggest that Preston or his associates were somehow involved in or perpetrated the crime, whatever use may be made of the conversation as being the occasion for or the subject of Gillard’s display of anxiety, etc. It is quite conceivable that the jury, if they were to place any weight on Gillard’s demeanour in the case against Preston, could only do so by using the subject matter of the conversation as being the cause of Gillard’s demeanour as observed by the police. If the direction were treated in that way, then subject to the question of relevance of that evidence to the case against Preston, the direction could not be criticized.
Whichever way the direction may have been taken, the trial judge was in fact giving a direction more favourable to the accused than was necessary. Evidence of what a person said may, in some circumstances, be led as evidence of that person’s state of mind. The justification for that exception to the hearsay rule is to be found in the joint judgment of Wilson, Dawson and Toohey JJ in Walton v The Queen (1989) 166 CLR 283 at 304:
“An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten [1972] AC, at pp 389 ‑ 390; Reg v Andrews [1987] AC 281, at pp 300 ‑ 301: see also Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR at p 531. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v Vocisano (1974) 130 CLR 267, at p 273. But if sometimes there is an element of hearsay in evidence which is led of statements made by a person other than a witness for the purpose of founding an inference concerning that person’s state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind. Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.”
One of the issues in that case was the admissibility of the evidence of a witness that a murder victim had said to her child, M, in the course of a telephone conversation with a third party: “M., daddy’s on the phone and....”. It was important to the prosecution to prove that the caller on the phone was the accused. The statement was admitted as evidence of the deceased’s state of mind, which was held to be a relevant issue. Mason CJ said (at 292):
“This statement clearly constituted hearsay to the extent that it was tendered in order to prove the identity of the caller, since it amounts to an express assertion as to that person’s identity. The trial judge, however, seems to have regarded the statement as evidencing the deceased’s belief and, as such, forming an integral part of the statements concerning intention. He therefore admitted the statement, whilst warning the jury not to use the statement as evidence of the identity of the caller. I am not persuaded that the trial judge erred in admitting the statements when he warned the jury in strong terms not to use them as evidence of the identity of the caller.”

R v Matthews (1991) 58 SASR 19 involved an appeal by a person convicted of the rape and murder of his wife. Evidence was given by witnesses of statements made by the deceased to them or in their presence to the effect that she was in fear of and did not wish to see the appellant. This Court held that such evidence was admissible to prove the state of mind of the deceased if that was relevant, as it was, to the charge, but not to prove the truth of the facts contained in the statements. The relevance of the evidence went to the question of whether the deceased consented to intercourse, and whether the deceased permitted the accused into her home and received him in the manner suggested by him.
In this case, the verbal expressions by Gillard which went to reveal or confirm his state of mind, and which explained his demeanour, were reactive to particular situations. They were more than voluntary assertions made outside some other factual context. If the demeanour of Gillard on those occasions was otherwise relevant to the case against Preston, those parts of the conversation which explained that demeanour and which indicated Gillard’s then state of mind were admissible. Subject to the question of relevance, the trial judge’s direction ruling the conversations inadmissible against Preston was unduly favourable to Preston and could not amount to a misdirection.
To the extent that the jury may have taken the conversations into account either as forming the background to the observations of demeanour or as evidence of Gillard’s state of mind, the next question to address is the relevance of that evidence to the case against Preston.
On the assumptions so far made, the evidence reveals a state of mind of fear, agitation, nervousness and apprehension of some harm being done to Gillard at the instance of Preston or his associates.
The respondent justifies the admissibility of that evidence, so far as the case against Preston is concerned, as being relevant to an evaluation of the prosecution contention that Gillard went to Brisbane to distance himself from the shootings and from his accomplice, Preston. It was also relevant to the question why Preston was looking for Gillard in Adelaide after he became aware that the police had been making inquiries on 16 September 1996 about the presence of the van outside Ronald Preston’s unit at Hilton. The respondent readily acknowledged that standing alone the evidence could not prove Preston’s involvement. However, it was evidence which tended to support those aspects of the prosecution case. It was part of the matrix of circumstantial evidence - “a ray of light so feeble that by itself it will do little to elucidate a dark corner” but, when with others “all converging and brought to bear on the same point, and, when united, [produce] a body of illumination which will clear away the darkness which you are endeavouring to dispel”: Bellhaven and Stanton Peerage (1875) 1 App Cas 278 per Lord Cairns at 279.
The evidence, standing by itself, was weak. However, to the extent that the conversations and Gillard’s demeanour indicated his state of mind at the time when he was being spoken to by the police officers at the relevant times, and to the extent that they disclosed the subject of Gillard’s fear and anxiety, etc, the conversations and the demeanour became relevant circumstantial evidence admissible against Preston as tending to establish the facts relied on by the prosecution as part of the wider circumstantial case against Preston. Preston’s complaints about the trial judge’s direction do not justify any interference with the verdict on this ground.

Preston Appeal, Ground 2 - Admissibility of Ronald Preston’s evidence of his conversation with Gillard

This ground challenges the admissibility of a portion of Ronald Preston’s evidence that when Gillard came with the yellow Econovan to his unit on the Monday morning before the shootings, Gillard said to him: “Don’t touch it, it’s coming from your brother.”.
In relation to that conversation the trial judge reminded the jury what he had said in general terms about joint criminal enterprise, namely that if they concluded that a common purpose existed between Gillard and Preston to murder Mr Knowles, evidence as to what one of them did in furtherance of the common enterprise was evidence against both of them. He went on to direct them that if they concluded that by the time of that conversation the common purpose had been formed to murder Mr Knowles and to steal the van in furtherance of that purpose, and that if the act of Gillard in delivering the van to Ronald Preston’s unit and the instruction not to touch it or do anything with it was also in furtherance of the common purpose, then that conversation would be evidence against Preston as well as against Gillard.
Mr Kourakis QC, for Preston, conceded that in relation to the instruction “Don’t touch it”, it was open to the jury to find that those words were a direction by Gillard to Ronald Preston not to do something in relation to the van, and that that was arguably in furtherance of the joint criminal enterprise. He took exception to the admissibility against Preston of the phrase “It’s coming from your brother”. It was argued that the giving of that information was not in furtherance of the joint enterprise but was merely an explanation as to the origin or source of the van. Mr Kourakis argued further that in any event the direction was inadequate, and that the trial judge should have directed the jury that if they did not find that a common purpose to murder Mr Knowles existed at the time of the utterance, they were to ignore the utterance when considering the case against Preston.
It is convenient to note what the High Court said in Tripodi v The Queen (1961) 104 CLR 1 at 7:
“When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case....It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is not more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. It is customary at criminal trials simply to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of any of its usefulness.”

See also Ahern v The Queen (1988) 165 CLR 87 at 100; R v Corak and Palmer (1982) 30 SASR 404 at 405 ‑ 406.

There were two respects in which the direction given by the trial judge was unduly favourable to Preston. He told the jury that if they concluded (and by virtue of his general directions to them this meant beyond reasonable doubt) that by that time the arrangement or plan which formed the common purpose was in place, and if they considered the conversation to be an act in furtherance of the common purpose, they could use it against Preston.
In the first place, proof of the common purpose beyond reasonable doubt is not necessary. Reasonable evidence of the common purpose is sufficient: Tripodi (ibid); Ahern (ibid).
Secondly, it was for the trial judge to determine the admissibility or otherwise of the conversation against Preston. It was therefore for him to determine whether, at the relevant time, there was sufficient evidence of a joint criminal enterprise between Preston and Gillard, and hence whether the statement was admissible against Preston. In Ahern the High Court said (at 103 ‑ 104):
“The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity.”
It would appear from an exchange between the trial judge and counsel that there was, in the judge’s view, reasonable evidence of preconcert at that time. His Honour contrasted this with the lack of evidence of preconcert at the time when Mr Slobodian said that he received a request from Preston to make up the number plates. His Honour could therefore have directed the jury that the evidence was admissible against Preston if they considered it to be in furtherance of the common purpose.
There can be no complaint about the form of the direction that the trial judge gave, even though his Honour said that the jury could only act on the evidence in Preston’s case if they were satisfied that by that time the common purpose had been formed. There is no material difference between putting it that way and saying that if they did not find a common purpose had been formed, they were to ignore the utterance when considering the case against Preston.
However, by making the admissibility of the utterance against Preston dependent upon the jury’s satisfaction as to the existence of the common purpose at that time, the trial judge was in fact giving a direction more favourable to Preston than if he had directed them that they could use it because he was satisfied that there was independent evidence of the common purpose.
As to the question whether the words “It’s coming from your brother” were words uttered in furtherance of the common purpose, the passage quoted above from Tripodi makes it clear that evidence of directions, instructions or arrangements, or of utterances accompanying acts will be regarded as acts in furtherance of the common purpose. The words in question were an integral part of the instruction “Don’t touch it”. That was an instruction from Gillard because either the message or the van was coming from Ronald Preston’s brother, and that Ronald Preston was to allow the van to be left in his car‑park. It was also an utterance accompanying an act in furtherance of the common purpose, namely the conduct in delivering the van to Ronald Preston’s car‑park for the purpose of its being kept there until required for the commission of the offence.
Accordingly, Preston’s challenge to the admissibility of the utterance must fail.

Preston’s appeal, Ground 3 - Refusal to direct separate trials

Applications were made by both Preston and Gillard that they should both be tried separately. The applications were refused. His Honour subsequently published reasons for that and other rulings made before the jury was empanelled.
Preston’s complaint was twofold. In the first place he argued that the trial judge erred in not directing separate trials. In addition, however, he argued that the joint trial in fact resulted in a miscarriage of justice, so far as Preston was concerned, by virtue of a combination of the reasons justifying the order for separate trials, on the one hand, and the way Gillard in fact conducted his trial, on the other hand. However, the order having been made, the only question relevant to this appeal is whether there was in fact, by virtue of the joint trial, a miscarriage of justice: R v Harbach (1973) 6 SASR 427 at 433; R v Collie (1991) 56 SASR 302 at 310. Nevertheless, it is relevant to note the well‑established principles governing the exercise of the Court’s discretion to grant separate trials. It is against these principles that any alleged miscarriage of justice must be balanced.
Prima facie, there should be a joint trial where accused persons are charged with committing a crime jointly. The factors which justify that approach and which require balancing considerations if separate trials are to be ordered are conveniently expressed by the Full Court of the Supreme Court of Victoria in R v Demirok [1976] VR 244 at 254:
“The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.”
Those principles were cited with approval by this Court in R v Collie (supra) at 308 ‑ 309. The Court there acknowledged, as had the High Court in The Queen v Darby (1982) 148 CLR 668, that in some cases, particularly cases of conspiracy, the cases against particular defendants may be significantly different, such as to raise an impediment to a jury finding that A is guilty of conspiring with B, and at the same time to find that B is not guilty of conspiring with A, because of the difference in evidence led against the two parties. However, this merely illustrates the type of prejudice to an accused person which might, in some circumstances, outweigh what King CJ referred to as “strong reasons of principle and policy” (R v Webb and Hay (1992) 59 SASR 563 at 585). The principles were endorsed by Toohey J in Webb and Hay v The Queen (1994) 181 CLR 41 at 89, where Toohey J also spoke of the need to obviate the risk of the jury relying on inadmissible evidence by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.
Preston acknowledged that most of the one hundred or so witnesses called by the prosecution were relevant to the cases against both defendants. Reduced to their essentials, his complaints were fourfold.
The first complaint related to the admission into evidence of the records of interview of Gillard in which he confessed to being the driver of the stolen Econovan, saying that Preston was the one who went inside the workshop and, by implication, did the shooting, but that he (Gillard) was not a party to a joint enterprise for murder but for robbery only. Preston’s defence was alibi, and that the persons to whom he allegedly made confessions were lying. In those circumstances, it was argued that the prejudice caused by the admission of Gillard’s statements could not be cured by the directions that were in fact given by the trial judge. He argued that the admissibility of the confessions against Gillard, as an admission against interest, had the effect of reinforcing in the jury’s mind the alleged confessions by Preston to Vicki Preston and Ronald Preston as being confessions against his interest, coupled with the fact that those confessions coincided factually, and were therefore supported by, the confessions made by Gillard.
The short answer to that contention is that the trial judge was careful to identify all the evidence that was inadmissible against Preston and to repeat on many occasions that it was inadmissible against him. There could have been no doubt or confusion in the jury’s mind about the inadmissibility of the statements made by Gillard in the case against Preston.
Preston’s submission in this regard is little more than a thinly veiled attack on the assumption which the law makes that juries are capable of appreciating the use that may be made of evidence which they are told is inadmissible. Not only did the trial judge in this case give clear and adequate directions about the admissibility of the evidence, but he also told the jury on a number of occasions that they must consider separately the case against each accused. Furthermore, his Honour went to great lengths to summarise the prosecution case and the evidence against each of the accused separately. There could have been no misapprehension on the part of the jury as to what their function was. If they followed the trial judge’s clear directions, there could have been no risk of them using evidence inadmissible against Preston as some sort of bolster to the evidence led and separately discussed in the summing‑up in the case against Preston.
True it was that as a consequence of the accomplice direction concerning Ronald Preston’s evidence, the trial judge indicated that Gillard’s statement to the police could be used as evidence corroborating Ronald Preston’s evidence, but that was only in the case against Gillard. The trial judge was careful to give separate directions about what would amount to corroboration of Ronald Preston’s evidence in the case against Preston. That case as his Honour said on many occasions, was to be considered separately from the case against Gillard.
Preston’s second complaint related to the expressions by Gillard to the police of his fear of Preston or those associated with him. The nature of that evidence has already been discussed in relation to Ground 1 of Preston’s appeal. We agree with the observations of the trial judge on that aspect of Gillard’s statements in the course of his Honour’s reasons for refusing separate trials:
“These statements were made in the context of the period after the murders. There is no suggestion that he was asserting that the accused Preston was otherwise of violent disposition or propensity. I did not think that they gave rise to any prejudice extending beyond the statements made by him implicating the accused Preston in the murders. He claimed that his fear stemmed from their joint involvement in the murders. In the context of all of the evidence, I did not think this matter would loom so large that appropriate directions to the jury would not suffice.”
As has already been observed, directions were given, the effect of which was to exclude all such statements in the case against Preston, a direction which went further than was necessary in the circumstances. The evidence was capable of being dealt with by an adequate direction of the trial judge. The direction in fact was favourable to Preston.
The case is to be distinguished from circumstances such as those which arose in R v Jones and Waghorn (1991) 55 A Crim R 159. The defendants in that case were jointly charged with murder. After making statements to the police implicating Waghorn, Jones, in due course, made full admissions. Waghorn denied to the police any knowledge of or involvement in the killing. Jones made an unsworn statement at the trial. Waghorn did not give evidence. Both Waghorn’s involvement and causation were issues in the case against Waghorn. Waghorn’s appeal on the basis that there should have been separate trials was successful. However, not only did Jones’ statements to the police implicate Waghorn, but there were a number of other features which tipped the scales in favour of allowing the appeal. Jones’ statements suggested a motive for Waghorn to kill the deceased, when no motive was apparent from any other evidence led against Waghorn. The statements contained a less than veiled suggestion that Waghorn was capable of killing and was likely to kill his wife and daughter. His statements also included evidence damning of Waghorn’s character, including evidence of a disposition to violence and murder, which was of particular significance in a case where the Crown relied heavily on conduct of Waghorn showing a consciousness of guilt in its case on causation and involvement against Waghorn. The evidence was of a type which, so the Victorian Court of Criminal Appeal held, the jury could not be expected to keep out of their minds, even if given appropriate warnings, and would be likely, despite appropriate warnings, to accept the allegations as true (at 184).

This case contained no evidence of that nature. It is evidence which could be and which was in fact quarantined by adequate directions. The limited use to which it could have been put was also the subject of an adequate direction in all the circumstances.
The third complaint related to the manner in which Gillard conducted his defence. Gillard’s case was that what he had said to the police was not true, and was said under great stress, in support of which evidence was led from a psychiatrist. His case at trial was that he was not there. Preston’s case was based on alibi. It was said that Gillard’s counsel, in the course of cross‑examining Crown witnesses, elicited evidence that was prejudicial to Preston’s case. No examples were given of this, but it was further said that the damage to Preston was compounded by his being denied the opportunity of cross‑examining Gillard when, contrary to expectations raised by the way Gillard conducted his case, he did not give evidence.
In our opinion there is no substance to this complaint. The fact that there was no congruence in the defences would appear, in the circumstances of this case, to have no bearing on any suggested injustice as a result of the joint trial. Furthermore, it cannot be assumed by any party to a criminal trial that an accused person will abandon the right to silence, even if, at different stages of a long trial, suggestions are made that it is likely that a co‑accused will give evidence. There is no reason to believe that Preston, even though unrepresented, was unaware of that possibility, or that he was incapable of properly presenting his defence by reliance on a misplaced belief that Gillard would probably give evidence. Furthermore, there was no explanation how Preston might have conducted his defence differently had he been aware of Gillard’s future silence. It is also difficult to see how there could be any profit for Preston in cross‑examining Gillard on what Gillard had told the police in the light of the repeated directions of the trial judge that such conversations were not admissible against Preston. As has been pointed out already, almost all of the witnesses called were relevant to the cases against both appellants. It is not as though the prosecution cases against each of them were widely disparate and reliant to a large extent upon different evidence.
The fourth complaint related to the length and complexity of the trial. It was the longest criminal trial in South Australian legal history, but so far as Preston was concerned it was reasonably straightforward. Preston argued that because the factual and legal issues for the jury’s consideration in respect of each of the defendants was considerable, requiring the jury to deliberate for over eight days, and because important witnesses, whose credit was in issue, were recalled, these factors, compounded by the joint trial, caused an injustice.
However, there was nothing at any point in the trial to indicate that members of the jury were confused or uncertain or that they did not adequately comprehend the evidence, the issues or the course they should follow in considering the evidence. There was nothing to suggest that they convicted Preston other than on a proper consideration of the evidence. All the prosecution evidence in the case was admissible against Preston except the statements of Gillard to the police, and the trial judge repeatedly and correctly instructed the jury that they could not be used against Preston. The trial judge’s summing‑up was careful and comprehensive, with useful and helpful directions as to how the members of the jury might go about their task in approaching the mass of evidence before them.
In Carter v The Queen (1997) 19 WAR 8, the Full Court of the Supreme Court of Western Australia, after reviewing many authorities on the topic concluded (at 22):
“It is plain, from these authorities, that it should ordinarily be assumed that, if there is proper trial management, juries are, in normal circumstances, capable of judging the issues involved even in long and complex cases. We share that view, more particularly having regard for new pre‑trial procedures and technological advances which have aided in the conduct of long trials. The question is whether there were any circumstances, in this trial, which prevented the jury from giving proper consideration to the issues before it or which caused there to be a danger of the jury not reaching a safe verdict.”
We respectfully agree with the assumption made. It has not been demonstrated in this case that there were any circumstances which prevented the jury from giving proper consideration to the issues before it or which indicated a danger of the jury not reaching a safe verdict.
In our opinion, none of the matters of which Preston complains, whether taken separately or together, constituted any injustice to Preston in the conduct of his trial.

Preston’s Appeal, Ground 4 - Validity of the warrant to install listening devices.

Important evidence against Preston was contained in tape recordings of conversations which took place in Preston’s house over a period of some weeks during the course of the police investigation. Recordings were obtained by means of listening devices placed in Preston’s home under a warrant issued pursuant to s 6 of the Listening Devices Act 1972. Warrants were also obtained for the installation of listening devices in Ronald Preston’s home. The trial judge disallowed a challenge to the validity of the warrants. This ground of appeal renews that challenge.
Warrants were issued on 4 September 1996, resulting in an installation on 18 and 19 September 1996 in Preston’s home. A further warrant was issued on 25 September 1996, resulting in the installation of another listening device in the same premises on 26 September 1996. Both warrants were renewed on 18 October 1996 for a period of 90 days. The devices were recovered on 14 November 1996 and the warrants cancelled on 19 November 1996 pursuant to s 6(8) of the Listening Devices Act.
There was no dispute that the police officer who applied for the issue of the warrants was entitled to do so, and that the requirements of s 6(3) of the Listening Devices Act were observed.
The power to issue a warrant is vested in a judge of the Supreme Court. Subsections (6) and (7) of s 6 provide:
“(6).. A judge may issue a warrant under this section if satisfied -
(a)... in the case of a telephone application, that because of urgent circumstances it was necessary to make the application by telephone;
(b)    that the issue of the warrant is justified having regard to -
(i). the extent to which the privacy of any person would be likely to be interfered with by use of a listening device pursuant to the warrant;
(ii)the gravity of the criminal conduct being investigated;
(iii).. the extent to which information that would be likely to be obtained by use of a listening device under the warrant would be likely to assist the investigation;
(iv)the extent to which that information would be likely to be obtained by methods of investigation not involving the use of a listening device;
and
(v)the extent to which those methods would be likely to assist the investigation or to prejudice the investigation, through delay or any other reason;
and
(c)     in the case of a warrant authorizing entry onto premises, that it would be impracticable or inappropriate to use a listening device pursuant to the warrant without entry onto the premises.
(7)... A warrant under this section -
(a)... may specify conditions relating to the use of a listening device;
(b)    if it authorizes entry -
(i)... may restrict entry to within specified hours during a day;
(ii)may provide that entry may be made without permission first being sought or demand first being made and, if it does so, may specify the measures by which entry may be gained;
(c).... must specify the period of which it is in force (not being a period greater than 90 days);
(d)    may be renewed.”
The Act does not prescribe the form of any warrant issued under s 6. This Court has passed rules known as the Listening Devices Rules 1992 which do prescribe a form of warrant. Rule 4 does not require the seal of the Court, but provides that the warrant is valid and effectual for all purposes if signed by a judge.
The warrant issued in respect of Ronald Preston’s unit was in the following form:
“To: Robert John Reichman a member of the South Australia Police.
WHEREAS application has been made to me by Robert John REICHMAN, a member of the South Australia Police for a warrant authorising the use of listening devices.
AND WHEREAS I [the name of the Judge], a Judge of the Supreme Court of South Australia, am satisfied that the issue of the warrant is justified upon the conditions hereinafter appearing.
NOW THEREFORE I, pursuant to Section 6 of the Listening Devices Act, 1972, HEREBY AUTHORISE YOU and any police officer acting upon your authorisation:-
1...... To use two listening devices to overhear, record, monitor, or listen to any private conversation, which may take place in or on premises situated at Flat 5, 14 Washington Street, HILTON, in the State of South Australia.
2.To enter upon the premises referred to in paragraph 1 hereof, either alone or in company with other members of the South Australia Police for the purpose of installing, maintaining, using or recovering the listening devices without permission first being sought or demand first being made at any time, and entry to the said premises may be effected by means thought appropriate in the circumstances.
AND subject to any renewal thereof, this warrant shall be in force for a period of 45 days from the date hereof.
DATED the 4th day of September 1996.

[the signature of the Judge]
A Judge of the Supreme Court of South Australia.”

The warrants in respect of Preston’s home were in similar form, but bearing his address in paragraph 1 and the appropriate periods for which the warrants were to be in force. The forms used were in accordance with the requirements of the rules.
The invalidity was said to arise out of the second recital in each of the warrants. Although the recital might reflect the issuing judge’s satisfaction with the requirements of sub‑paragraph (b) of subsection (6), it said nothing about his satisfaction that the requirements of sub‑paragraph (c) had been met. It was argued that there was therefore a flaw in the warrants which was apparent on their face.
By reference to the reasoning of the various judges in Ousley v The Queen (1997) 192 CLR 69, a case which dealt with the validity of a warrant issued under the equivalent Victorian Act, the trial judge held that the warrants were valid. Mr Kourakis sought to distinguish the requirements under the Victorian legislation from those under the South Australian Act. He submitted that where no form was prescribed by the Act, the common law required a recital that the issuing authority was satisfied as to all relevant aspects. He further argued that compliance with the form in the rules did not cure the defect, as this Court had no power to make such rules. It is not necessary to elaborate or pass on these arguments. We agree with the trial judge that the recital that the judge is “satisfied that the issue of the warrant is justified....” can only mean that the judge is satisfied that all the requirements of paragraphs (a), (b) and (c) of subsection (6) have been met, to the extent that they apply in a particular case. Therefore, in this case, such a statement means that the judge was also satisfied that it would be impracticable or inappropriate to use a listening device without entry onto the premises.
However, in any event, the trial judge went on to express the view that even if the warrants were invalid, he would have exercised his discretion to admit the evidence obtained through the listening devices. He said:
“If the warrants were invalid, the evidence would have been obtained illegally in at least two respects. First, in contradiction of s4 of the Act and secondly in consequence of illegal entry in the home of the accused Preston. It must be acknowledged that illegal activity of that kind is a serious breach of the law and a substantial invasion of privacy. It is to be expected that should police officers disregard the provisions of the Act, it is very likely that evidence thereby obtained illegally would be excluded.
However, such is not the case here. Sergeant Reichman observed the provisions of the Act to the letter. He made application to a Judge of the Court in the manner and form provided by the Rules made by the Judges. The grounds of his application were contained in his affidavit. The Judge heard the application and issued the warrant substantially in the form laid down in the Rules. Sergeant Reichman acted entirely properly in every respect.
He installed the listening devices pursuant to the terms of the warrants. He had no reason to suppose that the warrants issued by a Judge of this Court in accordance with its own established procedures were in any way suspect and considered that he was behaving entirely lawfully, properly and within the law. Also, assuming illegality, it did not affect the cogency of the evidence. There was no suggestion that Sergeant Reichman attempted to circumvent the law in any way or that he was lax or indifferent to correct procedures.
The charges against the accused are of the most serious kind and the evidence obtained was an important part of the Crown case, particularly against the accused Preston. Paying due regard to the policy of the Act preventing the use of listening devices unless authorised, the case for exercising the discretion in favour of admitting the evidence is, in my view, overwhelming. Application of the considerations in Bunning v Cross (1978) 141 CLR 54 in this balancing exercise lead to this conclusion. This view was taken in Ousley by Toohey J at p519, Gaudron J at p572 and Kirby J at p573.” (These page references refer to (1997) 148 ALR.)”
In exercising his discretion in that way, the trial judge carefully took into account all the relevant factors giving rise to the issue of the warrant and the fact that the officers installing the listening devices considered that they were acting lawfully and properly. In our opinion there could be no successful challenge to the exercise of the discretion in that manner, even if there were some technical invalidity on the face of the warrants.

Preston’s Appeal, Ground 4 - Discretionary exclusion of listening device evidence

There was another ground on which Preston had sought exclusion of the evidence obtained by means of listening devices. It related to alleged illegal conduct by the police in order to secure Preston’s absence from his home so that they could complete the installation of the listening device. Because it also has some bearing on ground 7.2 of Preston’s appeal and the reliance by Preston on some fresh evidence which, he argues, affects the trial judge’s findings in this regard, it is convenient to set out the trial judge’s summary of the evidence and findings that he made on this topic:
“On 18th September 1996 the first listening device was installed in the home of the accused Preston. At about 8.00 am police officers involved in that activity, and in surveillance of the accused Preston, met at a nearby oval for a briefing. Detective Sergeant Sharp was in charge of covert surveillance of the accused Preston by police officers. They were instructed to keep the accused Preston and his defacto wife, Ms Pitts, under surveillance, which occurred.
Sergeant Reichman was informed that both Ms Pitts and the accused Preston had left the home at about 9.00 am by motor vehicle. They drove to a carpark near the Noarlunga Railway Station and the Colonnades Shopping Centre at Beach Road, Christies Beach, which was a short distance away from the home. The accused Preston went to work at the TAFE College near the shopping centre and Ms Pitts returned to the home in the vehicle. At about 9.50 am, Ms Pitts again left the home in the motor vehicle and returned to the carpark where she left the motor vehicle and went to the railway station and caught a train into the city at 10.04 am. Sergeant Reichman was informed of these matters. He entered the home with two technical officers at a time between 10.35 am and 10.45 am. He was in radio communication with the surveillance police officers and with Sergeant Sharp by mobile telephone.
At 11.35 am he received information that the accused Preston had left the TAFE College and was walking towards the motor vehicle in the carpark. He immediately informed the technicians. About five minutes later, Sergeant Sharp informed him that the accused Preston would not be leaving the car park immediately as his vehicle had a flat tyre. Nevertheless Sergeant Reichman and the two technicians left the home a little after 11.40 am. The listening device had not been satisfactorily installed.
Sergeant Reichman and the technicians returned on the next day and completed the installation. There was another briefing that morning at about 9.30 am to 9.35 am. Surveillance personnel were instructed by Sergeant Reichman that it may be necessary to speak to Ms Pitts or the accused Preston to allow sufficient time to complete the installation. The flat tyre was mentioned as a possible topic to discuss with the accused Preston should such an approach be necessary. At this time the accused Preston was again at the TAFE College and Ms Pitts was on the way to the City. They were both under surveillance. The vehicle was again in the same car park.
The technicians and Sergeant Reichman again entered the house at about 9.55 am. After about 10 minutes, he was informed that the accused Preston had again left the TAFE College and was walking back to the vehicle. He again instructed the technicians to leave and then instructed two police officers, Detective Adams and Detective Martin, to approach the accused Preston in conversation if he went to the vehicle.
Those police officers did approach the accused Preston and spoke to him about the flat tyre. At that stage the task of installing the listening device had not been completed. Detective Adams and Detective Martin took the accused Preston to the Christies Beach Police Station and there had a conversation with him. In that way, they delayed him and the installation of the listening device was completed. Although a further listening device was installed in the house on 26th September 1996 in another room to permit more effective electronic surveillance, it may be accepted that the installation of the first listening device was necessary to enable the impugned conversation to be overheard.
The existence of the flat tyre was of benefit to Sergeant Reichman and his technicians. On 18th September 1996 it caused a delay which enabled them to get out of the house without the risk of being discovered by the accused Preston. On the next day, it afforded to the police an excuse to speak to the accused Preston and to delay him in case he was intending to return to the house.
The suggestion is that a police officer, or police officers, damaged the tyre of the vehicle to cause it to go flat in order to prevent the accused Preston from going home and discovering Sergeant Reichman and the two technicians in his house. Such conduct, in damaging the tyre, would plainly be illegal as it would constitute a criminal offence.
Sergeant Sharp carried out surveillance of the accused Preston on 18th September 1996. After Ms Pitts had returned to the car park, he took up a position to watch the motor vehicle at about 10.00 am and continued to do so. He saw the accused Preston approach the motor vehicle at about 11.35 am. From his action, Sergeant Sharp could see that the accused Preston had seen that a rear tyre of his vehicle was flat and he changed the wheel. He then went to his house.
Detective Sharp gave evidence on a voir dire hearing as to whether the evidence obtained through the listening devices should be excluded in the exercise of discretion. He said he did not see anyone approach the vehicle or interfere with it whilst he had it under surveillance. He gave no instructions to any police officer to interfere with the motor vehicle. However, he did see people in the vicinity but he did not see anyone go to the vehicle.
On the next day Sergeant Sharp again saw the motor vehicle in the car park. The accused Preston left the TAFE College at 9.56 am and went to the motor vehicle. He was about to open it when he was approached by Sergeant Adams and Detective Martin who spoke to him and then took him to the police station.
I saw no reason not to accept the evidence of both Sergeant Reichman and Sergeant Sharp. I accepted both of them as witnesses of truth. Neither of them gave any instructions for the interference with the motor vehicle. As far as Sergeant Reichman was concerned, the flat tyre was a fortuitous event which was of benefit to him. I accept that Sergeant Sharp did not see anyone interfere with the motor vehicle or give instructions that it should be done.
Detective Martin also gave evidence. He was part of the surveillance team on 19th September 1996. He kept the motor vehicle under observation in the car park. When he spoke to the accused Preston at the car park, he understood his purpose was to delay him because of what was occurring at the house. He and Sergeant Adams spoke to him about the flat tyre on the previous day. Detective Martin told the accused Preston that they were investigating offences which had occurred on motor vehicles in that area on the previous day and that his vehicle fitted the description that had been described to them as having been the subject of interference. The accused Preston said that a tyre on his vehicle had been flat the previous day and he had assumed he had a puncture.
The accused Preston also gave evidence. He said that when he took the tyre to be repaired on the Saturday, he saw evidence of such a puncture on the outside exposed wall of the tyre and it had the appearance of having been caused by a knife. According to the accused Preston, one of these police officers told him, at the car park, that the tyre had been stabbed. Detective Martin denied that allegation.
I did not accept the evidence of the accused Preston. I preferred the evidence of Detective Martin and I found that nothing was said by him or Sergeant Adams about the tyre having been stabbed.
At the police station, the police officers took a statement from the accused Preston and purported to check the motor vehicle for finger prints. Finger printing was a ruse and part of the delaying tactics. In all, the accused Preston was delayed by those delaying tactics for about half an hour.
According to Detective Martin, illegal interference with motor vehicles in the car park was common place and the deflation of tyres was not uncommon. He agreed that his involvement with the accused Preston on 19th September was in fact a ruse and not a genuine police investigation.
Ms Pitts also gave evidence. According to her, the accused Preston told her about the flat tyre on 18th September but did not say that it had been stabbed. She saw a split in the tyre that night when she tried to put air in it. She said the tyre had previously been in good condition.
The evidence did not justify a finding even on the balance of probability that the police were in any way responsible for the deflation of the tyre on 18th September 1996.
If the tyre was deflated by a puncture by knife of the wall of the tyre, the evidence does not disclose when that occurred. I accept that Sergeant Sharp did not see it occur. It could have occurred when he was not looking or before he took close surveillance of the vehicle in the car park. There was no evidence as to how long it would take for the tyre to deflate if punctured as described by the accused Preston and Ms Pitts if their evidence is true. I did not regard either of them as reliable and truthful witnesses and I am not prepared to accept their evidence that such damage to the tyre was present without other supporting evidence. No such evidence was called, including from staff at the tyre retailer where the tyre was seen. So, there is a paucity of reliable evidence that a knife was used.
Also, it is appropriate to look at the position of the police. If they wanted to delay the accused Preston by deflating the tyre, they could simply have undone the valve. The tyre could be expected to deflate quickly and there would be no evidence of damage. No evidence of interference would exist.
It is possible that someone else interfered with the vehicle without being seen by the police. That matter has not been proved but the possibility does exist given the evidence of Detective Martin who was a local police officer.
Whilst suspicion clearly falls upon the police, it was not proved that they were responsible and consequently it is not established that they were guilty of any illegal or unlawful conduct.
On the next day they delayed the accused Preston deliberately by a ruse to suit their own ends and for a period of about half an hour. This conduct was neither illegal nor unlawful. It did not affect, in any way, the probative value of the evidence which was obtained through the listening devices. It did not cause the accused to provide the evidence but only assisted in the means of overhearing the conversations. There was no deception for an improper purpose. I do not think the police should be criticised for utilising this tactic to secure legitimate ends.”

We do not accept that these directions gave rise to a significant change in the nature of the case which had been presented against Gillard. It had been argued by the prosecutor in the course of his final address that Gillard would have seen the gun before the other man went into the workshop. It was a factor which may have been relevant to Gillard’s understanding of what was intended and it was referred to as one of a number of considerations which the jury were entitled to take into account in reaching a conclusion in relation to his understanding. This approach was also reflected in the trial judge’s answer to the question when he reminded the jury that it was necessary to consider all of the events. In our view if all the events had been taken into account it was open to the jury to find that Gillard had seen the gun in the circumstances postulated in the jury questions.
No criticism was made of the directions in relation to counts 2 and 3 in so far as they stated the relevant law. However, it was argued that the evidence was insufficient to support convictions on this basis and that the jury were given inadequate assistance to approach the task of determining whether the prosecution case was proved in this respect.
If the jury concluded that Gillard was a party to a common or joint enterprise to murder Mr Knowles, then we think there was sufficient evidence to establish that Gillard foresaw that other persons might also be shot with the intention necessary to establish the charges set out in counts 2 and 3. Gillard knew when he made the telephone call shortly before the shootings that Knowles was not alone in the workshop. Obviously, he could not have foreseen the precise events which transpired, but if he realised that Preston was intent on killing one of the men present, then it was open to the jury to find that he foresaw that another person or persons might be shot at with the same intention.
In the course of the presentation of its case the prosecution argued that there was an alternate route to a conviction for murder being recorded against Gillard which would arise if Gillard took part in the venture believing that Preston was going to commit an armed robbery and foreseeing the possibility that, in carrying out the robbery, Preston might commit murder. It was argued that in these circumstances Gillard would be guilty of murder assuming that the crime of murder was committed by Preston and even although robbery was not within Preston’s contemplation. The learned trial judge told the jury that a conviction for murder could not be recorded against Gillard on this basis because there would be no common purpose in that Gillard would be contemplating a robbery and Preston would be contemplating a murder.
The prosecution also submitted to the trial judge that the alternative verdict of manslaughter should be left to the jury. It was said that if the jury found that Preston intended to commit the crime of murder, but Gillard contemplated that a robbery only might be committed and if Gillard was aware of the fact that Preston was carrying a gun, then there would be a sufficient basis for a finding that Gillard committed the offence of manslaughter. According to the submission, Gillard would be guilty of manslaughter in these circumstances if he was a party to the commission of an unlawful and dangerous act, namely, the presentation of the gun. Defence counsel at the trial opposed leaving manslaughter to the jury as an alternative verdict. His Honour rejected the prosecution argument on the ground that there would be no common purpose in the circumstances referred to by the prosecution.
Mr Peek argued before this court that manslaughter should have been left to the jury on the basis put forward by the prosecution. He also pointed out that the failure to do so has an important consequence in the light of the recent High Court decision in Gilbert v The Queen (2000) 170 ALR 88. In that case a majority of the High Court declined to follow Ross v R (1992) 30 CLR 246 which was authority for the following proposition which was summarised in the subsequent case of R v Evans and Lewis [1969] VR 858 at 871:
“If the trial judge correctly instructs the jury on the essential elements of the crime of which the appellant is convicted and fully and fairly puts to the jury the defence set up by the appellant the verdict of guilty amounts to a finding by the jury of every essential element of the crime and if those findings negate a verdict of guilty of a lesser offence then the verdict cannot be disturbed by a suggestion that the jury might have found him guilty of that lesser offence if the judge had informed them they were at liberty to do so.”
It follows from the rejection of this proposition in Gilbert’s case that, where manslaughter has not been left to the jury in a case where it was open on the evidence, a finding of guilty of murder does not relieve an appellate court from the duty to enquire whether the misdirection or non-direction should result in the quashing of the conviction. The test for the application of the proviso in such circumstances would be whether a jury, properly instructed, would necessarily have returned a verdict of guilty of murder in any event.
In the present case, therefore, it is necessary to determine, in the first place, whether a verdict of guilty of manslaughter was open in the case of Gillard.
We have pointed out that Gillard’s claim that he thought he was engaged in a robbery was made in the course of his interviews with the police. He told the police officers that Preston asked him to steal the van. He said he thought he was going “nicking, stealing”. He said he thought he was going on a robbery. He denied seeing any gun. He said he had no idea how the robbery was going to be carried out and he did not see Preston with a weapon at any time.
The prosecution argued that, in addition to these admissions, it was appropriate to take into account that it was open to the jury to find that Gillard was aware that Preston was carrying a gun. Earlier we expressed the view that it was open on the evidence for the jury to find that Gillard saw Preston with a gun before he went into the workshop. However, if it is assumed that he contemplated only a robbery, it is more difficult to find support for a finding that he nevertheless knew the gun was loaded. Nevertheless, as we have said, the prosecution based its argument that manslaughter was open in these circumstances on the ground that Gillard contemplated that the robbery attempt would involve an unlawful and dangerous act.
This submission requires a closer analysis of the doctrine of common purpose. The doctrine was stated by the High Court in McAuliffe v The Queen (1995) 183 CLR 108 at 113 it the following terms:
“The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission (see Giorgianni v The Queen (1985) 156 CLR 473). But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission (cf R v Lowery and King [No 2] [1972] VR 560 at 560, per Smith J.).
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture (Mansell and Herbert’s Case (1556) 2 Dyer 128b [73 ER 279]; Ashton’s Case (1698) 12 Mod 256 [88 ER 1304]; R v Radalyski (1899) 24 VLR 687; R v Kalinowski (1930) 31 SR (NSW) 377. See generally Smith, A Modern Treatise on the Law of Criminal Complicity (1991), pp 209-214.). However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose (see R v Johns [1978] 1 NSWLR 282 at 287-290, per Street CJ.).”
It will be seen that there must be a meeting of minds in relation to the criminal design. This is crucial to the concept inherent in the doctrine that a non-perpetrator authorises the perpetrator to do all that is required to carry out the common design. It is also relevant in determining extended liability for other crimes which might be said to fall within the scope of the common purpose.
If Preston had murder in mind and Gillard contemplated a robbery only, it is difficult to identify a relevant common criminal purpose. Whilst acknowledging that there will be cases in which such a purpose can exist without there being an agreement or understanding with respect to a precise offence or offences, there is a clear difficulty in reaching the conclusion that, in the circumstances postulated, there was an agreement or understanding with respect to any category of criminal conduct. The effect of Gillard’s statements to the police is that he was duped into becoming involved in what he later discovered were intentional killings. The discovery was made well after the killings. He understood that he was helping to carry out a robbery. Nothing Preston said indicated that to him. He said he simply assumed that such was the case because this is what he had done in the past.
We have pointed out that, according to the prosecution argument, these circumstances would have given rise to an agreement or undertaking to commit an unlawful and dangerous act and that, as death resulted, Gillard was at least guilty of manslaughter. If the offences of murder and robbery are considered separately in the context of the present case, it might be argued that each could encompass an unlawful and dangerous act, although there may be some difficulty even with that proposition if Gillard did not contemplate the use of a loaded gun. And in the case of murder by Preston it seems somewhat artificial to isolate out those aspects of his conduct which would amount to an unlawful and dangerous act. In any event, however, we do not think that the jury could find an agreement or understanding which would satisfy the requirement of a defined and common criminal purpose.
But there is a further difficulty in the way of the submission that a verdict of guilty of manslaughter was open in relation to Gillard. Whereas unexpected incidents in carrying out the common design would not stand in the way of accessorial liability, the secondary party will not be liable for acts clearly outside the common purpose. In certain situations this consideration will prevent liability as an accessory to manslaughter from attaching, even if there is an agreement to carry out a joint assault and the principal offender unexpectedly decides to kill the victim or cause grievous bodily harm. (Gillies, The Law of Complicity (1980) p 99).
In Borg v R [1972] WAR 194 the appellant was convicted of manslaughter in circumstances where it was alleged that he agreed with the principal offender to demand money by threats of force. The principal offender shot the two victims after he was dropped off in a car driven by the appellant. On the assumption that the appellant did not know a loaded gun was to be used, it was held that the killings were “so far outside the common purpose as to constitute a separate and distinct crime, entirely foreign to the plan” and the verdict of manslaughter was set aside.
A further example is provided by R v Anderson and Morris [1966] 2 QB 110 where it was alleged that Anderson and Morris went to premises with the intent of assaulting the occupant. Morris knew that Anderson picked up a knife before he went to the premises. There was a fight during which Anderson stabbed the victim to death. Anderson was found guilty of murder and Morris guilty of manslaughter. However, Morris’ conviction was set aside. The Court of Criminal Appeal accepted the proposition that:
“...where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act.”
This case was referred to by Barwick CJ in Varley v R (1976) 12 ALR 347 at 353 without disapproval.
It is true that in the present case the prosecution has argued that the jury might have found Gillard knew Preston was carrying a gun. However it must also be acknowledged that if the prosecution relied on an understanding by Gillard that robbery only was involved it followed that Gillard had been duped by Preston from the start because Preston planned an offence which was entirely different and was carried out by Preston without informing Gillard of his intentions. As we have said, in these circumstances there would have been no agreement or understanding to commit a particular offence, but even if Gillard understood that Preston intended to carry out a robbery which included an unlawful and dangerous act, Preston’s intentions and actions were far removed from this understanding.
Mr Peek relied upon the following passage taken from the judgment of Cooke J in R v Tomkins [1985] 2 NZLR 253 at 256:
“Accordingly in joint enterprise cases where an accused is charged with murder as a party it may be appropriate to direct as follows. He will be guilty of the murder if he intentionally helped or encouraged it. He will also be guilty of it if he foresaw murder by a confederate, and in the kind of situation which arose, as a real risk. But if he knew only that at some stage in the course of the carrying out of the criminal plan there was a real risk of a killing short of murder, he will be guilty of manslaughter. So too if he foresaw a real risk of murder but it was committed at a time or in circumstances very different from anything he ever contemplated: so different that the jury are not satisfied that the murder should fairly be regarded as occurring in the carrying out of the plan. In the latter case they can still convict of manslaughter if satisfied that he must have known that, with lethal weapons being carried, there was an ever-present real risk of a killing in some way.”

However, it cannot be said in the present case that, if Gillard contemplated no more than robbery, that there was an ever-present and real risk of a killing in some way.

For these reasons, we are of the view that the learned trial judge was correct in not directing the jury that a verdict of guilty of manslaughter was available on the facts of the case.

The prosecution’s submission to the jury on complicity

It was argued that one of the matters which contributed to an unsafe and unsatisfactory verdict was the fact that, in opening the case to the jury, the prosecution incorrectly explained one aspect of the law relating to complicity and that this was not corrected until the trial judge summed-up to the jury.
In the course of the prosecution opening it was said:
“It is the case for the prosecution that Kevin Gillard was a party to a joint enterprise with Preston to murder Les Knowles. The prosecution will be inviting you to find that that is the irresistible inference to be drawn from the evidence to be presented in this case. If you find that Kevin Gillard was a party to such a joint enterprise, then he would be guilty of Knowles’ murder, even though it was Preston who pulled the trigger.
Under our law, where two or more persons reach an agreement or an understanding that, together, they will commit a crime, and each of them knowingly plays a part in the execution of that agreement or understanding, then each person is guilty of the offence committed pursuant to that agreement or understanding, regardless of the part that each of them played.
In this case, Kevin Gillard will be guilty of Knowles’ murder if he drove the getaway van pursuant to a plan or an understanding that Knowles was to be murdered.
As I mentioned a moment ago, the accused Gillard told police that he drove the van believing that Gerald Preston was going to rob Les Knowles. The prosecution will be inviting you to find that Gillard’s claim that he believed that he was participating in an attempted robbery is untrue. Even if it were not, Gillard may still be guilty of the murder of Les Knowles. The law provides that a person who is a party to a joint enterprise to commit a crime is liable for any crime which he foresees as a possible incident of the originally-planned venture. For example, assume that two men plan to hold up a bank and, pursuant to that plan, one man goes into the bank and holds up the staff with a shotgun. Further assume that the second man remains outside the bank to keep a lookout for the police. If, in the course of holding up that bank, the gunman shot a teller or a customer, the man who remained outside would be liable for the shooting if he foresaw the possibility that, in the course of holding up the bank, his partner in crime might shoot someone.
So, ladies and gentlemen, in this case, Gillard would be guilty of Knowles’ murder if you are satisfied that he at least foresaw the possibility that Preston might shoot Knowles with the intention of killing him, or causing him grievous bodily harm.
Similarly, if you conclude the Gillard was a party to an agreement or understanding to murder Knowles, or to rob him, he would be guilty of the murder of Tim Richards and the attempted murder of Kim Traeger, if he foresaw that possibility that, in the course of carrying out their planned crime, Gerald Preston might deliberately shoot someone, or, specifically, some other person, with intent to kill.
It is the prosecution’s contention that, if Gillard was a party to a plan to murder Knowles, or to rob him at gunpoint, he must have foreseen the possibility that, in carrying out their planned venture, Preston might intentionally kill someone else, for example an eye witness, or someone who tried to assist Knowles to defend himself.”
In his final address to the jury Mr Millsteed said:
“As I mentioned earlier, the prosecution invite you to find that Mr Gillard spoke the truth about having driven the van for Preston on the day of the incident, but lied when he suggested that he thought it was only going to be a robbery. However, the point needs to be made that Gillard may be guilty of murder even if he drove the van believing that Gerald Preston was going to commit a robbery. He would be guilty of murder if he foresaw the possibility that, in the course of carrying out the robbery, Preston might commit murder. Our law provides that a person who is a party to a joint enterprise to commit a crime is liable for any crime which he foresees as a possible incident of the originally-planned venture.
You may remember the example that Mr Kimber gave you when he opened the Crown case. Assume that two men plan to hold up a bank, and that, pursuant to that plan, one man enters the bank and holds up the staff say with a shotgun, while the second man waits outside, keeping a lookout for the police. If the gunman murders a teller or a customer, the person who remained outside will be liable for murder if he foresaw the possibility that, in the course of holding up the bank, his partner might shoot someone, shoot someone with the requisite intent to murder.
In this case, Mr Gillard will be guilty of Knowles’ murder if you are satisfied beyond reasonable doubt that he foresaw the possibility that Preston might shoot Knowles with the intention of killing him.
Similarly, if you find that Mr Gillard was a party to a joint enterprise to murder, or to rob Knowles, or understood or believed that Knowles was going to be robbed, then he would be guilty of the murder of Tim Richards and the attempted murder of Kim Traeger, if he foresaw the possibility that, in the course of carrying out what he understood was going to be a robbery, Preston might deliberately shoot some other person with intent to kill. The critical issue in relation to Mr Gillard is foresight of the possibility that someone might get killed in the course of carrying out the shootings. That’s the critical issue, even if he believed, which the prosecution challenges, that a robbery was going to take place.”

There is some vagueness in these propositions because it is not made clear that the prosecutor was referring to a situation where one party contemplated one crime and the other party contemplated another crime. The submissions would be incorrect if they were to be applied to a situation where Preston contemplated murder and Gillard contemplated robbery so that it could not be said that there was a common purpose either to murder or to rob.
The learned trial judge did not accept the submissions and the case was not put on this basis to the jury. On several occasions during his summing-up the trial judge stressed that the appellant Gillard could not be found guilty if he understood that robbery only was to be committed.
At one point in his summing-up the trial judge said:
“During this course of his address Mr Millsteed said that you were to take the law from me and not from anyone else and, of course, I’ve said that to you and I’m the one who tells you what the law is and you must follow what I say to you. I’ve given you the directions about joint criminal enterprise and common purpose. Mr Millsteed put to you, for your consideration, that the accused Gillard may still be guilty of murder if he drove the van believing that the accused Preston was going to commit a robbery: That he would be guilty of murder if he foresaw the possibility that, in the course of carrying out the robbery, the accused Preston might commit murder. He went on to say that our law provides that a person who is a party to a joint enterprise to commit a crime is liable for any crime which he foresees a possible incident of the originally planned venture.
Ladies and gentlemen, I’ve given you my directions about the law and they are different from what Mr Millsteed put to you in that limited respect. So, I direct you to reject what he has put to you. I won’t go over it all again but I stress that there must be a common purpose. You can’t have the perpetrator going there for one purpose, the accused Gillard going there for another purpose, and there is in this case simply no suggestion of the perpetrator going there to carry out a robbery. No such thing happened. All the evidence that you’ve heard makes it plain, you might think, that there was to be a robbery.”
The trial judge made the same point in is answer to the jury questions referred to elsewhere in these reasons.
The jury were told on a number of occasions, including during the prosecution opening, that they were to follow his Honour’s directions and to ignore anything which counsel said which was inconsistent with those directions. In our view there was no room for misunderstanding on the jury’s part in relation to this particular topic by the time they came to deliver their verdicts. The prosecution stressed from the commencement of the case that it was the prosecution case that both men took part in a common purpose to commit murder. We do not think that what was said about the alternative basis of liability at the commencement of the case would have had any adverse effect on the jury’s assessment of the evidence as it was being led. The learned trial judge’s directions dealt specifically with the alternative prosecution argument and the jury were told that a verdict on that basis was not open. In our view, it could not be said that the prosecution’s submissions contributed to a miscarriage of justice.

Criticism of directions on particular aspects of the evidence

Mr Peek complained about the trial judge’s directions or lack of directions in relation to certain aspects of the evidence. The first topic to which he drew attention was motive. He suggested that it was difficult for the prosecution to disprove that Gillard’s motive extended no further than robbery and he said there was evidence of huge sums of money on the premises and rumours of Knowles being a drug dealer. These considerations were said to support Gillard’s claim that robbery was the motive. However there was no evidence that Gillard was aware of either of these matters.
Mr Peek argued that Gillard had no motive to harm Knowles, whereas Preston had a relationship with Tognolini whose alleged criminal activities may have given rise to a motive on Preston’s part. However, the uncontested facts establish that Preston’s motive was not robbery and it was open to the jury to conclude that Gillard might have been paid to assist in the killing. The trial judge refused to direct the jury on the absence of motive in relation to Gillard. In our view this decision cannot be criticised. If his Honour did embark upon such a direction it would have been appropriate to refer to the possible motive on Gillard’s part to which we have referred. It is true that the prosecution relied on evidence of sudden wealth by Preston, whereas no such evidence was adduced in relation to Gillard. Evidence of a display of wealth is probative in circumstances such as these, but we do not think that equal significance necessarily attaches to the absence of such a display. We reject the suggestion that the trial judge should have directed the jury that they were to take into account the inability of the prosecution to adduce such evidence in Gillard’s case.
Mr Peek referred to the evidence of some of the witnesses, including Ronald Preston and Vicki Preston, the appellant Preston’s former wife, which suggested that Gillard was subservient to Preston. Mr Peek submitted that this evidence was relevant to the question as to whether Preston might have encouraged Gillard to be the driver without informing him of the true nature of the enterprise.
When summarising Vicki Preston’s evidence the learned trial judge said:
“She said that she got on well with the accused Gillard. She liked him. They were friends. She did not regard him as an idiot. The accused Preston regarded him as an idiot. He had no respect for him, although he did not show that to his face. He dominated the relationship. The accused Gillard drank a lot. He looked up to the accused Preston, and trusted him. They were like brothers. It is no part of the accused Gillard’s case, perhaps, but you might, when you come to consider the case against him, whether the nature of the relationship between the two men is a matter of some importance.”
The learned trial judge was not bound to canvass all the evidence on this issue. However, in the context of discussing evidence as to Gillard’s subservience, he told the jury that it was relevant to consider the nature of the relationship between the two men.
Mr Peek argued that the evidence of Dr Raeside, a psychiatrist, was important in this respect. It was Dr Raeside’s view that Gillard suffered from a personality disorder. He could not detect any psychiatric disorder, but he said that the appellant was suffering from stress when he examined him. He exhibited a number of the features of a post-traumatic syndrome. Dr Raeside said that a feature of Gillard’s personality disorder was that he was antisocial. He went on to describe features of an antisocial nature and he agreed with the trial judge that, in relation to certain aspects, he was speaking generally. However it is clear that he was describing a feature of Gillard’s disorder as antisocial. The crown prosecutor’s description of Gillard’s disorder in this respect is accurate and the criticism of it should be rejected.
There appears to be nothing in Dr Raeside’s evidence which throws light on the issue of subservience. Furthermore, as the trial judge remarked, the difficulty about Dr Raeside’s evidence was that it was, in large part, based upon what Dr Raeside was told. Gillard did not provide the jury with an evidential basis upon which the views expressed by Dr Raeside could be based.
Mr Peek raised a further complaint in relation to the evidence of Vicki Preston and Dr Raeside. He said that Gillard was entitled to a direction that his mental state and general history were relevant to the inferences which might be drawn from his behaviour and his reaction to the circumstances in which he found himself. Mr Peek said that inferences which might be drawn in relation to an ordinary person might be less safely drawn in relation to a person with the appellant’s characteristics. Mr Peek referred by way of analogy to those cases where intoxication may have to be taken into account when assessing aspects such as the state of mind of the accused.
We have set out the passage in which Vicki Preston’s evidence is dealt with at para 358. His Honour did put to the jury that the nature of the relationship between the two men was a matter of some importance when considering the case against him. We do not agree with Mr Peek’s submission that this was a direction contrary to the appellant’s interests. We are also of the view that the trial judge was not required to go further and relate any aspect of Dr Raeside’s evidence to the drawing of inferences from Gillard’s behaviour. The condition described by Dr Raeside was not particularly relevant to the drawing of inferences concerning Gillard’s state of mind. We do not agree with the submission that the summing-up in so far as it related to this evidence was unfair to Gillard.
Reference has been made on a number of occasions to the telephone call made by Gillard to determine whether Knowles was present in the workshop. The trial judge mentioned this incident when referring to facts from which the role of Preston might be inferred. He said:
“You must not speculate about what was in the mind of the accused Gillard. You cannot find him guilty of either of those charges unless you are satisfied beyond reasonable doubt that he did foresee the crime that you are considering might occur. The basis of such a conclusion can only be from drawing an inference from all of the proven facts. You would start with the nature of the association between the two accused. You must look at the proven facts about the shootings and the explanation which the accused gave to the police - the accused Gillard gave to the police, if you are prepared to act upon it. The telephone call was to see if Mr Knowles was present. The caller asked for Mr Knowles. It seems clear that he was the only target identified at that stage.
There is evidence, as I have mentioned, that the accused Gillard knew that there was more than one person in the workshop because of what happened when he made the call. However, is there any reason to suppose that he saw anyone in the workshop when he pulled up in the van?”
Mr Peek argued that the issue should not have been left to the jury in this manner. He said the evidence is just as consistent with a desire to ensure that Knowles was present at the workshop so that he could be robbed.
In our view, the trial judge was justified in not putting this alternative to the jury. If the telephone call was made at the behest of the man who did the shooting, then it is obvious that the call was not made for the purpose of robbery. It might have been appropriate for the trial judge to refer to Gillard’s comment to the police in relation to the telephone call “I suppose it was to rob him”. However, the jury heard this evidence and the submissions of Gillard’s counsel. We do not think that the trial judge was bound to remind them of this answer.
Finally, Mr Peek drew attention to what he described as a speculative argument relied upon by the crown prosecutor and mentioned in the summing-up of the trial judge. In the course of his address to the jury the crown prosecutor attacked Gillard’s assertion to the police that he did not hear shots while Preston was in the workshop. The submissions were made by Mr Millsteed as part of a general submission to the jury that the exculpatory parts of the interview did not ring true. There was evidence that some people outside the workshop heard the gun shots. Gillard told the police officers he did not hear any shots. He said he kept the engine of the van running and there was a “good song” on the radio, so he turned it up. It was open to the jury to reject this version as highly unlikely and to decide that Gillard was attempting to play down his role in the matter.

Unsafe and unsatisfactory verdicts

Gillard’s counsel argued that the verdicts were unsafe and unsatisfactory in that the evidence was insufficient to support them. It was claimed that it was not open to the jury, acting reasonably, to reject as a rational inference that Gillard was not part of a joint enterprise to murder (R v Cervelli (1997) 95 A Crim R 329; R v Knight (1992) 175 CLR 495).
If the jury accepted that the descriptions given by Gillard to the police as to his actions were true, there were sufficient facts from which to infer that he was knowingly assisting Preston in the crimes alleged against Preston. He stole the van and drove Preston to the premises. He made the telephone call to the workshop to ensure that Knowles was present. He acted as the driver to ensure a speedy getaway. He burnt the vehicle later in order to destroy evidence.
It was argued on behalf of Gillard that the inferences as to knowledge of what was involved which might otherwise be drawn from such circumstances should not be inferred in this case because of the exculpatory factors put by Gillard to the police. However it was open to the jury to find that these exculpatory matters had been disproved. It was open to them to find that it would be highly unlikely for Preston to embark upon such a venture, enlisting Gillard’s aid to play an essential role and not informing him of what was involved. And from Gillard’s viewpoint it might be regarded as highly unlikely that, if he assumed that this was a robbery, he did not ask for more details. It was also open to the jury to reject Gillard’s version that he had no idea of what was going on in the workshop while the three men were shot.
The jury were also entitled to reject his version that Preston said nothing about the shootings when he returned to the van or at all and that Gillard did not enquire as to what had happened when Preston returned to the vehicle. In his version to the police Gillard did not suggest that Preston told him what had happened at any time thereafter. If Gillard had been used in this way, then the jury were entitled to find that he would not have reacted in the manner in which he did after the shootings, particularly in relation to his attitude towards Preston. Furthermore Gillard gave no evidence before the jury and, in evaluating the prosecution evidence which we have summarised, this was a circumstance which the jury were entitled to bear in mind when considering the probative value of that evidence. (Weissensteiner v R (1993) 117 ALR 545 at 553).
After reviewing the evidence in the manner required by M v The Queen (1994) 181 CLR 487 we have concluded that the verdicts are not unsafe or unsatisfactory either by reason of insufficiency of evidence or because of a combination of the matters arising out of the other grounds of appeal which have been dealt with in this judgment.
In our view Gillard’s appeal should be dismissed.

374........... LANDER J........ I agree for the reasons given by Duggan J and Bleby J that both appeals should be dismissed.

[2000] SASC 454

21 December 2000