R v Kamleh

[2003] SASC 269

R v KAMLEH

[2003] SASC 269

Court of Criminal Appeal:  Debelle, Nyland and Lander JJ

1. DEBELLE J         I have had the advantage of reading the draft reasons of Lander J.  I agree with his reasons.  I agree that the appeal should be dismissed.

2. I add the following remarks.

   No Reason for Disqualification

3. When Mrs Shaw QC applied for an order that Lander J be disqualified from hearing and determining this appeal, I expressed the view that I did not think there was any ground on which His Honour should be disqualified.  I gave some very brief reasons for that decision.  The following are more detailed reasons for that conclusion.

4. The gravamen of the application was that Lander J would not, by reason of his participation in Mr Zappia’s appeal, bring an impartial mind to the issues on this appeal.

5. The application was grounded on an apprehension of bias not on actual bias.  Mrs Shaw submitted that an objective person who had read the reasons of the Court of Criminal Appeal in the appeal by Mr Zappia and noted the findings of fact might consider that Lander J might not bring an objective mind to bear on the consideration of quite separate evidence which, the appellant contended, led to findings contrary to those made by the Court of Criminal Appeal.

6. The relevant principles are well established.  The test for determining whether a judge is disqualified by reason of the appearance of bias is the same whether the perception is of prejudgment, interest, association or extraneous information: Webb v The Queen (1994) 181 CLR 41 at 74; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [24]. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at [12]; Ebner v Official Trustee (supra) at [6].

7. As the majority noted in Johnson v Johnson (supra) at [12], the principle is based upon the need for public confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that a court or tribunal has prejudged the case, they cannot have confidence in the decision: The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263.

8. The qualities of the fair-minded bystander were noted in Johnson v Johnson (supra) at [12] and [13]:

   “The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.  At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.

   Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular juge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.  The rules and conventions governing such practice are not frozen in time.”  (Footnotes omitted.)

   As Kirby J noted in Johnson v Johnson at [42], the principle that justice must not only be done, but should manifestly and undoubtedly be seen to be done, should be kept in mind when approaching decisions of this kind.

9. At the same time, it is equally important that judges should discharge their duty to sit and should not, by acceding too readily to the suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL; Ex parte CJL (1986) 161 CLR 342 per Mason J at 352. In this context, it is relevant to note what Gaudron and McHugh JJ said in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100:

   “A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry: Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd.; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Re Shaw; Ex parte Shaw.  When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”  (Footnotes omitted.)

10. The fair-minded observer would understand that judges have sworn an oath to do justice and that, by training and experience, are equipped to bring a detached mind to the task in hand: Re The Queen & His Honour Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 at 160. The observer would know that, not infrequently, judges sitting on a Court of Appeal will deal with different cases arising out of the same or similar sets of facts and will determine each matter on its merits. The observer would also know that Lander J had not been required to form any view as to the credibility of any of the witnesses who gave evidence at Mr Zappia’s trial.

11. While the fair-minded observer is not to be assumed to have a detailed knowledge of the law, he or she can be assumed to have sought to be informed as to how the issues on this appeal compare with those in Mr Zappia’s appeal: c.f. Kirby J in Johnson v Johnson (supra) at [53]. The issues in Mr Zappia’s appeal were:

    •        the validity of warrants issued under the Listening Devices Act;

    •        whether the trial judge should have directed the jury on self-defence;

    •whether evidence as to lies told by Mr Zappia should have been admitted;

    •whether the trial judge had misdirected the jury on the issue of manslaughter by an unlawful and dangerous act; and

    •whether the trial judge had misdirected the jury on manslaughter by criminal negligence.

    As can be seen from the reasons which follow, the issues in this appeal are entirely different.  There is not one issue which is common to both appeals.  Although there is a common substratum of fact, the issues in the appeal do not turn on those facts.  In short, neither this Court nor the Court of Criminal Appeal, which heard Mr Zappia’s appeal, was concerned to determine whether, on the facts led in the trial, each appellant was guilty but, instead, to decide the legal issues advanced in each appeal.

12. For these reasons, there was no ground which should cause Lander J to be disqualified.

    The Confession to Mr Loader

13. The relevant facts are set out in the reasons of Lander J.  It is unnecessary to repeat them.  Plainly, evidence of this kind as to an alleged confession must be examined with extreme care for all of the reasons listed by Lander J.  Real inducements existed which might have caused Mr Loader to fabricate evidence of an admission of this kind.  However, his evidence has such a remarkable coincidence with what was said and with what had occurred at the voir dire hearing that I am entirely satisfied that the trial judge was entitled to rely on it.  That conclusion is reinforced by the trial judge’s observations of the manner in which the evidence of Mr Loader was given.  I also agree with the reasons given by the trial judge for rejecting the evidence of the other four witnesses.  In the result, there is no ground for interfering with the trial judge’s conclusion to accept the evidence of Mr Loader and to use that evidence to conclude that the appellant had fired the shots which killed Mr Rasti and Ms Ellul.

    The Application of the Proviso

14. Section 353(1) of the Criminal Law Consolidation Act 1935 provides:

    “       353   (1)    The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

    For present purposes, it is sufficient to note that s 353(1) authorises the Full Court to refuse to allow an appeal and to refuse to set aside a verdict, notwithstanding that the appellant has demonstrated that evidence was wrongly admitted or that there had been a misdirection to the jury or that some other error had occurred. However, the court may only do so if the court considers that no substantial miscarriage of justice has actually occurred.

15. The approach to be adopted by a court of criminal appeal when considering whether to apply the proviso was explained in Wilde v The Queen (1988) 164 CLR 365 at 371 – 372 by Brennan, Dawson and Toohey JJ in these terms:

    “Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost ‘a chance which was fairly open to him of being acquitted’ to use the phrase of Fullagar J. in Mraz v. The Queen or ‘a real chance of acquittal’ to use the phrase of Barwick C.J. in Reg. v Storey.  Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v. The Queen; Reg. v Storey; Gallagher v. The Queen.  Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v. The Queen.”  (Footnotes omitted.)

    But as those judges noted a little later in Wilde v The Queen, the proviso has no application where there has been a radical or fundamental error or a serious departure from the essential requirements of the law.  Their Honours said (at 373):

    “The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.  If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.  Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt; Reg. v. Henderson; Reg. v Couper.”  (Footnotes omitted.)

    Like views were expressed by Gaudron J at 381.  At the risk of over-simplification, the question for this Court of Criminal Appeal to consider is whether there has been such a departure from the essential requirements of the law that it goes to the root of the proceedings or whether the appellant has lost a chance which was fairly open to him of being acquitted or whether he has lost a real chance of acquittal.  The last two alternatives express, I think, the same questions.

16. There is nothing in the terms of s 353(1) which renders the proviso inapplicable in the case of a trial by judge alone. Section 353(1) does not differentiate between trial by jury and trial by judge alone. It operates in respect of “any appeal against conviction”. In R v Starrett (2002) 82 SASR 115, the Court of Criminal Appeal considered an appeal in respect of a conviction following a verdict and a trial by judge alone. The court considered whether the proviso should apply. Although it held that it did not, there was no suggestion that it was not appropriate to have regard to it.

17. More importantly, there is no reason in principle why the proviso should not apply to a trial by judge alone.  The reasoning of the judge on the questions of fact as well as the judge’s application of the relevant principles of law are both exposed to examination.  A Court of Criminal Appeal is thereby able to scrutinise the steps and the reasoning of the trial judge and to determine its validity.  If the judge has erred in allowing inadmissible evidence to be led and has relied on it, the Court of Criminal Appeal is able, by reason of the rest of the reasoning of the trial judge, to determine whether the inadmissible evidence has caused an appellant to have fairly lost a chance of being acquitted or that the trial so miscarried that the conviction cannot be upheld.  In short, since the reasoning of the judge is exposed to scrutiny in a way in which the reasoning of a jury is not, a Court of Criminal Appeal is equipped with a sounder basis for determining whether the proviso should be applied.

18. The prosecution case against the appellant was strong.  It was plainly a stronger case when it closed than the case which was opened.  Given that this Court accepts the trial judge’s conclusion that the evidence of the appellant’s confession to Mr Loader should have been admitted and can be relied on, and given that there was no ground for interfering with the conclusion of the trial judge as to the identification evidence, this Court is in almost as good a position as the trial judge to determine the guilt of the appellant.

19. In addition to the appellant’s confession to Mr Loader, there was strong circumstantial evidence that the appellant had been at Unit 22 of the Grand Apartments at about 1.00am on Monday, 3 April.  The appellant’s alibi was demonstrably false and it was plainly open to the trial judge to conclude that the appellant and Mr Zappia had concocted it together.  The evidence plainly justifies the conclusion that the appellant had lied to the police and had created a false alibi out of a consciousness of guilt.  It was open to the trial judge, on the basis of that evidence alone, to find the charge of murder proved beyond reasonable doubt.  That finding was confirmed by the conversation between Mr Zappia and Mr Simoniuk on 3 April 2002 and other evidence that the appellant and Mr Zappia, on their own admission, had been together all that weekend.

20. It is apparent, therefore, that the wrongful admission of the conversations between Mr Zappia and Mr Simoniuk on 8 and 9 July 2002 do not affect the ultimate conclusion.  The admission of the evidence of those conversations did not cause the appellant to lose a chance which was fairly open to him of being acquitted or to lose a real chance of acquittal.  Certainly, the admission of that evidence did not result in any irregularity of such a fundamental kind that it excluded the application of the proviso.  In short, the wrongful admission of this evidence did not result in a miscarriage of justice and this is a proper case for the application of the proviso.

21. I would dismiss the appeal.

22. NYLAND J            I have had the advantage of reading the draft reasons of Lander J.  I agree that the appeal should be dismissed for the reasons expressed by him.  I also agree with the further remarks of Debelle J.  In my opinion, there was no basis requiring Lander J to disqualify himself from hearing and determining this appeal.

23. I further agree that the proviso may be applied in a trial by judge alone.  I agree with Debelle J that the wrongful admission of the conversations between Mr Zappia and Mr Simoniuk on 8 and 9 July 2002 do not affect the ultimate conclusion.  At the end of the day this was a strong Crown case. The wrongful admission of that particular piece of evidence did not result in a miscarriage of justice. This is a proper case for the application of the proviso.

    LANDER J       

    Introduction

24. On 9 January 2003 the appellant was convicted after trial by judge alone of two counts of murder.  He now appeals by leave of a judge of this court from those convictions.

25. At about 2.00pm on 3 April 2000, the deceased bodies of Faraz Rasti and Rhiannon Ellul were found in unit 22 of the Grand Apartments in Melbourne Street, North Adelaide.  Both had died from gunshot wounds to the head.  The appellant and Natale Attilio Zappia were jointly charged with having murdered Mr Rasti and Ms Ellul on 3 April 2000.  Mr Rasti is also known as Isaac Colberg.

26. The appellant applied for separate trials.  On 16 January 2002 a judge of this court made an order that Mr Zappia and the appellant be tried separately.

27. Mr Zappia’s trial proceeded first.  On 5 April 2002 Mr Zappia was found not guilty of the murder of Mr Rasti and Ms Ellul but guilty of manslaughter of both of them.  On 19 July 2002 Mr Zappia was sentenced to 13 years imprisonment and a non-parole period of nine years was fixed.

28. Mr Zappia appealed against both convictions.  The appeal was heard by the Court of Criminal Appeal consisting of the Chief Justice, Martin J and me on 23 August and 9 September 2002.

29. On 1 November 2002 the court unanimously dismissed Mr Zappia’s appeal against his conviction for the manslaughter of Mr Rasti but allowed his appeal against his conviction for the manslaughter of Ms Ellul and ordered a retrial in respect of that count.  The reasons of the court were given by the Chief Justice.

30. On 31 July 2002 the appellant sought an order extending the time to elect to be tried by a judge alone under s 7 of the Juries Act 1927. Time was extended and the appellant elected to be tried by judge alone and the trial proceeded accordingly.

31. A voir dire hearing commenced on 7 August 2002 and the trial itself commenced on 21 August 2002.  The trial concluded on 27 September 2002 when the trial judge reserved his decision. On 9 January 2003 the trial judge published reasons and delivered his verdicts finding the appellant guilty of murder of both victims.

32. On 18 February 2003 the appellant was sentenced to life imprisonment and on 26 February 2003 a non-parole period of 27 years was fixed.

33. This appeal is only against the convictions entered on the verdicts.

    An application for me to disqualify myself

34. Shortly before this appeal was due to be heard the appellant’s solicitor wrote to my associate in the following terms:

    “I refer to our discussion this morning the 17 June 2003.

    I confirm that Mrs Shaw QC contacted myself last night expressing concerns in respect of Justice Lander being a member of the coram to hear the Kamleh appeal.  The  main concern centered (sic) around the fact that Justice Lander was part of the coram that dealt with Mr Kamleh’s co-accused Mr Zappia’s appeal.

    In the Zappia appeal, the court was required to consider the evidence in that case and make a factual determination in relation to the death of Rasti and Ellul.

    The appellant Kamleh upon his appeal will be arguing that factual findings made by the Learned Judge at first instance were erroneous (amongst other grounds).  In that context the arguments as to the factual findings in relation to those deaths based upon the evidence in the case against Mr Kamleh, are to a large extent inconsistent with the determination of the court in the Zappia appeal.

    Mrs Shaw QC requested I obtain instructions from Mr Kamleh in relation to this issue.  I have received instructions from Kamleh this morning who has suggested that Justice Lander not form part of the coram to hear and determine this matter.

    We await your advice.”

    I directed my associate to inform the appellant’s solicitor that there was nothing in that communication which led me to think that I should not sit on the appeal. 

1. When the appeal was called on, Mrs Shaw QC, who appeared for the appellant, said:

   “Mr Kamleh has received the response through the e-mail from your Honour Justice Lander that your Honour doesn’t consider that the matters raised in the letter constitute a ground for disqualification; those matters being that your Honour sat on the matter of Zappia in the Court of Appeal.  That response has been brought to Mr Kamleh’s attention this morning, and Mr Kamleh does instruct me to make an application for disqualification of Justice Lander.  I point out though that the application is limited to the fact of Justice Lander having sat on the matter of Zappia and the content of that judgment.  I have nothing further to add.”

   Later, in response to a question as to the precise grounds of the application, Mrs Shaw said:

   “The grounds of the application are that an objective person having read the reasons of the Court of Appeal and the findings of fact involved therein might consider that your Honour could not bring an objective mind to bear on a consideration of quite separate evidence where we would be seeking, if you like, the opposite findings of fact as to the circumstances of the deaths of the two persons involved in these charges.  That is the extent of the application.”

   The application, of course, was not based on actual bias but on an apprehension of bias.  The reason why a court requires a judge to disqualify himself or herself where there is an apprehension of bias is because the law must not only be done but be seen to be done.  An obligation to disqualify on the ground of apprehension of bias arises where “a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee In Bankruptcy (2000) 205 CLR 337 at [33] (and the cases cited therein).

2. There must be a real apprehension, of course, that the judge might decide the case other than on its factual or legal merits.  There must be, as well, a logical connection between the circumstances which are said to give rise to the apprehension of bias “and the feared deviation from the course of deciding the case on its merits”:  Ebner v Official Trustee In Bankruptcy (supra) at 345 at [8].

3. Mrs Shaw recognised that her submission was based in part upon the appellant’s apprehension that I might not decide the matter on the appropriate factual and legal principles.  But that is not the test to be applied.  Instead, it is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the issues in this case.

4. In this case, in my opinion, no fair minded lay observer would ever think that I might decide this appeal on evidence not adduced on this appeal or ignore evidence adduced on this appeal.  No fair minded lay observer would contemplate that, because I heard the appeal in R v Zappia, I might answer the appeal with any preconceived view as to the outcome.

5. The fact that a judge has sat on an appeal in which a conviction entered against a co-offender has been considered does not disqualify that judge from sitting on an appeal against a conviction entered against the other co-offender.  Judges of this court routinely sit on appeals where two persons are charged and convicted and where both appeal against their convictions to a Court of Criminal Appeal.  The evidence admissible against one might be quite different from the evidence admissible against the other.  Judges are trained to consider only the admissible evidence.  If Mrs Shaw’s submissions were correct it would mean that separate courts of appeal would have to consider the separate appeals of two co-offenders.

6. It was for those reasons that I declined to disqualify myself and I sat on this appeal.

   The Prosecution Opening

7. On 21 August 2002 counsel for the DPP opened the prosecution case.  The case was opened as a circumstantial evidence case and upon the basis that the appellant and Mr Zappia were parties to a joint enterprise to kill the deceased, Mr Rasti.  It was the prosecution case that the deceased, Ms Ellul, was either shot as part of the common purpose or common plan or in order to eliminate her as an eye witness to the murder of Mr Rasti.

8. In her opening, counsel said that the Crown “does not know and does not purport to say which one of the two men actually pulled the trigger but, in the event that your Honour is satisfied that the two men went to the Grand Apartments that night, and that one of them did shoot the deceased pursuant to a plan between them, then the accused, Mr Kamleh, is guilty of the crime of murder irrelevant of whether he was the shooter or not”.  Thus it was that the prosecution case was opened on the basis that the appellant and Mr Zappia were parties to a common purpose to kill or at the very least to cause grievous bodily harm to the victims, Mr Rasti and Ms Ellul.

9. In the alternative, the prosecution case was that in relation to Ms Ellul if there was not an express agreement to kill her or do her grievous bodily harm because of her presence in the unit at the time Mr Rasti was killed, her murder was also contemplated as a possible incident of the originally planned common purpose.

10. The third basis upon which the prosecution rested its case for convictions for murder against the appellant was that he aided and abetted Mr Zappia in the sense that he was present when they were both shot, and either intentionally helped Mr Zappia to commit the crimes of murder or intentionally encouraged him by words or by his presence or behaviour to commit those crimes or intentionally conveyed to Mr Zappia that he was in agreement with or concurred in the commission of the crimes of murder.

11. The fourth basis was that if the court were to find that the appellant and Mr Zappia went to the Grand Apartments with a loaded gun for any unlawful purpose, such as to threaten, assault or rob Mr Rasti, the appellant would still be criminally liable for the murders even if the court found that he was not the person who fired the shots.  It was put that he would be criminally liable for their murders if he knew or foresaw as a possibility that Mr Zappia might use the gun to kill or cause grievous bodily harm to either Mr Rasti or Ms Ellul. 

12. Finally, the prosecution case was that, if the court were to find that the appellant was the shooter then he would be criminally liable in his own right for the crime of murder.

13. When the prosecution opened its case it had no direct evidence to establish which of the two men had shot and killed the victims.  It had circumstantial evidence whereby it could establish that the appellant and Mr Zappia were in each other’s company at the time the deceased were murdered.  It had circumstantial evidence which put them at the scene of the murder.  It had circumstantial evidence which established a motive and some preparatory acts prior to the murders.  It had no evidence, as I say, to establish which of the men shot and killed the victims.  It had no direct evidence to establish that the appellant and Mr Zappia went to the apartments for any unlawful purpose such as to threaten or assault or rob Mr Rasti.

14. In a sense, whilst the prosecution case was opened on alternative bases on the evidence then available to the prosecution, the only route to establishing criminal liability against the appellant was through a common purpose. 

15. The concept of common purpose was clearly explained in McAuliffe v The Queen (1995) 183 CLR 108 at 113. There the High Court said:

    “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 the 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.  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 of the circumstances.  If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with a 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.

    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.  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.” (Footnotes omitted)

16. The prosecution therefore needed to establish that there was an arrangement or understanding between the appellant and Mr Zappia that they, or one of them, would kill or inflict grievous bodily harm upon Mr Rasti.  Alternatively, the Crown needed to establish that there was an arrangement or understanding falling short of killing or inflicting grievous bodily harm on Mr Rasti but that the appellant contemplated that Mr Rasti might be killed or be subjected to the infliction of grievous bodily harm in the carrying out of whatever lesser common purpose there was.

17. Again, to visit criminal liability on the appellant in relation to the death of Ms Ellul, the Crown had to prove either that there was a common purpose to kill or inflict grievous bodily harm upon her or alternatively that the appellant contemplated that she might be killed or be subjected to the infliction of grievous bodily harm in the carrying out of the common purpose. The Crown could establish criminal liability by proving that there was a common purpose to kill or inflict grievous bodily harm on Mr Rasti and that it was contemplated by the appellant, because of Ms Ellul’s presence at the scene of the murder of Mr Rasti, that she might be killed or be subjected to the infliction of grievous bodily harm.

18. At the outset, as I have said, the Crown did not seek to establish who shot the deceased but simply relied upon the common purpose as visiting criminal liability for murder upon both of them.

19. The prosecution, of course, did not open on the basis that it could establish directly the existence of an arrangement or understanding.  The Crown case was that such an arrangement or understanding was a matter of inference on the circumstantial evidence which it proposed to lead.

    The Evidence of the Confession

20. During the trial further evidence became available to the Crown.  On 30 August 2002, Michael Francis Loader, an inmate at the Adelaide Remand Centre, gave a declaration to the police detailing conversations had with the appellant at the Remand Centre on 16 August, 21 or 22 August and 24 August 2002. Mr Loader was called to give evidence in the trial on 16 and 17 September.

21. Objection was taken to Mr Loader’s evidence and the judge conducted a voir dire hearing.  Mr Loader gave evidence and the appellant called four witnesses, Nicholas Webb-Myers, Mr Ross Linnane, Mr Leslie Kennewell and Mr Nicholas Treglown.  Those four witnesses were called to contradict Mr Loader’s account of his conversations with Mr Kamleh.

22. The appellant did not give evidence in the trial or indeed on any voir dire hearing.  The fact that he did not give evidence cannot be used to bolster the prosecution case: Azzopardi v The Queen (2001) 205 CLR 50 at 74 and 75. However, his failure to give evidence means that there is no evidence from him to contradict Mr Loader’s evidence. Obviously, it could not have been a subject he addressed in his record of interview which was tendered in the trial.

23. The trial judge overruled the objection and admitted Mr Loader’s evidence.  In due course he accepted the evidence finding it to be “generally accurate”.  He expressly found that the conversation deposed to by Mr Loader occurred and that Mr Loader had recounted the substance of those conversations.  In doing so he rejected the evidence of the four persons to whom I have referred.

24. The appellant has contended on this appeal that the trial judge erred in relying upon the evidence of Mr Loader.  Ground 15 of the grounds of appeal states:

    “15.The learned judge erred in relying upon the evidence of the witness Loader and/or failing to give adequate weight to the features of his evidence which made it unsafe to do so, including the following:-

    Particulars

    15.1The learned judge failed to give adequate weight to the risk that Loader came by information within the prison system, access to newspapers and documents and/or by contact with Zappia (Linnane p1671; Submissions pp1728-1729).

    15.2The learned judge erred in failing to consider whether the evidence of Loader was supported insofar as it implicated the accused in the crimes in question (para 320).

    15.3The learned judge erred in his evaluation of the evidence of the defence witnesses as follows:

    (a)His Honour approached the evidence of the defence witnesses as a group rather than in relation to the particular issue in respect of which the evidence of the particular witness was directed.

    (b)His Honour approached the evidence of the defence witnesses upon the basis that he was not prepared to act upon the evidence of any one of them unless they were “otherwise supported”.

    (c)The approach referred to in (a) and (b) above had the effect of reversing the onus of proof (para 331).

    15.4His evidence was contradicted on oath by other witnesses.

    15.5The circumstances in which Loader was placed and the timing of his provision of information rendered it dangerous to act upon such evidence in relation to the charges before the court (Submission p1758).

    Alternatively, the learned judge failed to give any or sufficient weight to the foregoing particulars in his assessment of the reliability and credibility of Loader’s evidence (Judgment paras 320-334).”

    In argument Mrs Shaw contended that, because of his circumstances, Mr Loader’s evidence was inherently unreliable and should have been excluded.  Alternatively, she argued that the evidence needed to be corroborated.  Lastly, she argued that the trial judge failed to give sufficient weight to the evidence of the four men called to contradict Mr Loader’s evidence.

25. In my opinion, it is appropriate to deal with Mr Loader’s evidence at the outset.

26. If the trial judge cannot be criticised for admitting Mr Loader’s evidence and relying upon it, the Crown case has to be considered in quite a different light from that which was opened.  The Crown case would be significantly stronger both in respect of its assertion that a common purpose existed and secondly in proving who was the shooter.

27. On Friday, 16 August 2002 Mr Loader was convicted in this court of two counts of murder and he was remanded in custody for sentence.  On the same day the appellant was at this court attending the voir dire inquiry being conducted by the trial judge. At the end of that day they were both taken to the Adelaide Remand Centre in the same prison transport.

28. The prison van is divided in halves.  Mr Loader was sitting in one half and some other men in the other half.  Someone called out: “Is there anybody in the other side of the van?”

29. Mr Loader said he recognised the voice as being that of the appellant.  He had met the appellant the year before when they were both in the Adelaide Remand Centre awaiting their trials.  Mr Loader said he identified himself and immediately thereafter the appellant said: “Michael do you remember me?  Its Jamil, Natale’s co-accused”. There was then some conversation about Mr Loader singing in the prison chapel and about Loader’s trial.

30. Mr Loader said that the appellant then spoke about the appellant’s own trial. The appellant said: “None of the witnesses they are bringing up against me can identify me.  Nobody remembers me being there or being at the crime scene.  You won’t believe this; Natale has been into court and he basically told the judge to get stuffed.  In fact, he said he couldn’t recognise me, how is that?  Got up on the stand and he couldn’t recognise me.”

31. Nothing further was said but Mr Loader saw the appellant in the holding cells after they had returned to the Remand Centre.

32. This conversation was consistent with what had occurred at the voir dire hearing.

33. Mr Zappia had been called on the voir dire hearing.  On 8 August he had been called and sworn but had refused to give evidence.  He claimed privilege.  He refused to accept a direction from the trial judge that he answer questions.

34. During his evidence when asked why he would not give evidence he said:

    “AI won’t give evidence, because I don’t know what - I haven’t even met this bloke.”  [TX VD 68]

35. Mr Loader said that he next spoke to the appellant on the Wednesday or Thursday of the next week.  According to Mr Loader, it was a short conversation at the Remand Centre during which the appellant said:  “They can’t still make the case”.  Mr Loader said they agreed to talk on the weekend.

36. They next spoke on the Saturday, 24 August, somewhere between Mr Loader’s cell and the sink area in Unit 3. Mr Loader recounted the conversation:

    “I just said ‘How is it going?’.  He said ‘It’s going great.  They really can’t make a case.  They have had about 27 witnesses in three days.  Nobody can remember me being there at the crime scene.  Natale has been into court again and he has refused to testify.  Without his testimony they can’t do a thing.’  I said: ‘What is the story?’  He said: ‘I was there and I did it but they can’t prove it’.  He said: ‘The only way they can prove it is if Natale testified against me.’  We have made an agreement we won’t testify against each other but when I am found guilty (sic) of this I will go to court to Natale’s appeal and I will tell the court that I am responsible, that I am guilty, but they won’t be able to try me twice for the same crime.”

    There must be an error in the transcript.  The appellant would not have said “when I am found guilty”.  He must have said, if the conversation took place, “when I am found not guilty …”.

37. Mr Loader said that he then told the appellant that he would owe Natale Zappia a huge debt of gratitude if he would not testify against him.

38. The judge charged Mr Zappia with contempt.  He was brought to court in connection with that charge on Friday 23 August, the day before the above conversation.

39. Mr Loader said he spoke to the appellant again on Thursday 29 August.  Mr Loader said he was surprised to find the appellant in the prison but he was told that “they had the day off”.  He gave the following evidence:

    “QCould you tell us to the best of your memory what he said and what you said on that Thursday.

    AOn Thursday I asked him how it was going.  He said it was still going great ‘They can’t put me there at the crime scene.  None of the witnesses can remember me being there.  They haven’t got the motive.  The motive has been thrown out, the mobile phone, they have basically dropped that case.  I am going to walk’.

    QDid he say anything about Natale Zappia on that occasion.

    AYes, he did.  He said ‘Natale still refuses to testify and he’s in contempt for the third time now.  He’s been in contempt three times’.

    QYou mentioned then that he said in that conversation something about a mobile phone.

    AThat’s correct.

    QPrior to that, had you had any conversation with Mr Kamleh about a mobile phone.

    ANo, I had not.

    QHad he mentioned anything about a mobile phone in any conversation he had with you.

    ANo.

    QWhat was the context in which you first heard him discuss the mobile phone.

    AJust in that context of that conversation, just when he said there was no motive, that the motive had been thrown out and that motive had something to do with a mobile phone.”

1. The court did not sit on 29 August 2002.  Mr Zappia was called to give evidence on 28 August but declined to give evidence and refused to comply with directions to give evidence.  He was formally charged with the contempt on 30 August.

2. Messrs Kennewell, Webb-Myers and Treglown deposed to the conversation between Mr Loader and the appellant on 24 August. All three agreed with Mr Loader that a conversation took place but none of them supported the account of the conversation given by Mr Loader.

3. All three said the conversation concerned the appellant’s trial.  All three said that Mr Loader asked the appellant a number of questions concerning his trial.  Mr Kennewell said that the appellant did not respond to Mr Loader’s questions.  Mr Kennewell said that the appellant had said that the judge was giving Mr Zappia a bit of a hard time and that Mr Zappia was ‘going good’.  Mr Webb-Myers said that the appellant said something about Mr Zappia refusing to testify.  He did not hear the appellant’s responses to Mr Loader’s questions.  Mr Treglown said that the appellant told Mr Loader that Mr Zappia had refused to give any information to the court. 

4. The fourth witness, Mr Linnane, said that he was not present at the conversation between the appellant and Mr Loader, on 24 August 2002 but that he did hear a conversation between the two of them at some other time.  In that conversation he said that Mr Loader, on two occasions, asked the appellant about his case and Mr Linnane replied on the second occasion:

   “Jamil doesn’t talk about his case to no cunt.”

5. As I have said, the appellant did not give evidence.  There was a conflict between the evidence given by Mr Loader and the appellant’s witnesses about the contents of the conversation on 24 August 2002 but in a number of respects their evidence supported Mr Loader’s account. 

6. The trial judge found Mr Loader to be articulate, clear and generally consistent and giving the appearance of being open and frank. The trial judge found that he was direct and responsive but not over polished.

7. On the other hand the trial judge found a number of inconsistencies in the recollections of the three witnesses who spoke of the conversation on the morning of Saturday 24 August 2002.

8. He found that their insistence that they could recall a conversation on the morning of Saturday 24 August 2002 remarkable.  There was no reason, I think, on the trial judge’s findings as to why these three men would remember this conversation at all.  The conversation was quite unremarkable.  The trial judge noted the inconsistency in the evidence of the three men compared with the evidence of Mr Linnane.  Mr Linnane’s evidence was that the appellant would talk to nobody about his case whilst the other three witnesses gave evidence of an account by the appellant of some aspects of his case.

9. The trial judge said of the four witnesses called by the appellant:

   “The defence witnesses were unimpressive.  It appeared that they came to court to assist the accused regardless of the truth.  Unless otherwise supported I am not prepared to act on their testimony.  I reject the evidence of the defence witnesses where it conflicts with Mr Loader’s evidence.  They are not credible or reliable witnesses.”

   In doing so the trial judge took into account the witnesses’ evidence that they had come to give evidence in circumstances where the appellant had broadcast a call generally to all occupants in the unit in which the appellant and Mr Loader were incarcerated.  Mr Treglown said that he came forward in response to that call and he had a conversation with the appellant about it in which the appellant tried to jog his memory.  Mr Kennewell said that the appellant came back from court one night and told him that he might need to see a solicitor.  The appellant did not tell him what the matter was about. 

10. Mr Webb-Myers said that the appellant asked him whether he remembered the conversation and as a result of that he came to give evidence.

11. Mr Loader’s evidence, if accepted, was evidence of a confession by the appellant that he was present when the victims died and that he “did it”.  The evidence, if accepted, can lead to the inference that the appellant was the shooter. 

12. Evidence of this kind must be treated with very great care.  Evidence of “prison informers” as to confessions made by an accused whilst incarcerated are inherently unreliable.  In Pollitt v The Queen (1992) 174 CLR 558 at 586 Deane J said:

    “The evidence of a witness about an oral confessional statement allegedly made to him by an accused while the witness and the accused were incarcerated together in a prison is liable to be unreliable for a number of reasons.  One such reason is that such evidence is easily concocted.  Another is that, where such evidence is concocted, an accused will ordinarily be denied the possibility of corroboration of his denial of it.  Another reason is that it is likely that a ‘prison informer’ will be of bad character.  Another is the likelihood that a prison informer may be motivated to fabricate such evidence either by a perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury.”

    In this case Mr Loader had been convicted of two counts of murder.  He is a person of bad character.  At the time he gave his evidence he had not been sentenced.  He frankly admitted that he was motivated to give the evidence in order to obtain a substantial discount on whatever sentence was to be imposed in relation to his convictions.  He was hopeful of obtaining a reduction of somewhere between a third and a half of the non-parole period which would have otherwise been imposed. There were reasons, therefore, from Mr Loader’s point of view, why he would concoct this evidence.

13. The trial judge was obliged to ensure that the evidence was scrutinised very carefully and to remain alive to the real risk that the evidence might be concocted for the witness’s own advantage.

14. The trial judge was careful to set out the relevant aspects of Mr Loader’s evidence and the evidence of the four witnesses called by the appellant.  He reminded himself of the possibility that the evidence was inherently unreliable and warned himself accordingly.  He said:

    “Mr Loader’s evidence must be carefully scrutinised having regard to its inherent unreliability.  There is a need to guard against the risk that Mr Loader is a calculating and skilful liar.  Close attention must be paid to his bad character and his criminal antecedents including his convictions for murder.  His antecedents included offences of dishonesty which commenced when he was a juvenile.  More recently he was convicted of social security offences.  Mr Loader’s evidence must be approached with great caution.” 

15. He reminded himself of the risk that Mr Loader might have been motivated to have given this evidence to obtain a significant reduction on his own sentence of imprisonment. He concluded:

    “Mr Loader’s evidence has been reviewed with great care.  This has been necessary because of the dangers earlier identified and referred to in Pollitt.  Mr Loader’s criminal antecedents and dishonesty are matters which of themselves require his evidence to be subject to the closest of scrutiny.  Regard must also be had to the inherent unreliability of his evidence, his motive to lie, his desire to minimise his time in custody and his previously admitted lies.

    I have had regard to all of the factors that have been identified as giving rise to the inherent unreliability of prison informer evidence.  I have specifically reviewed and considered Mr Loader’s evidence in light of that inherent unreliability.  I have examined his evidence closely.

    Having carefully scrutinised Mr Loader’s evidence, having had regard to all of the factors that might suggest his evidence is unreliable and having considered all of the submissions of both counsel I accept Mr Loader’s evidence as being generally accurate.  I am satisfied that the conversations he recounted occurred.  I am satisfied that substance of the conversations was as recounted.  I am prepared to act on his evidence.”

16. In my opinion, it was open to the trial judge to accept Mr Loader’s evidence notwithstanding the evidence of the witnesses called by the appellant.

17. The appellant’s witnesses confirmed that there was a conversation between Mr Loader and the appellant in which the appellant’s trial was discussed.  The appellant’s witnesses do not support Mr Loader’s evidence as to all of what was said nor, with the exception of Mr Linnane, did they necessarily contradict it.  Mr Linnane’s evidence was inconsistent with the evidence of Mr Loader and the other three witnesses called by the appellant.

18. The trial judge was obliged to scrutinise the evidence with great care to remind himself of the risk that the evidence might be inherently unreliable.  He did that and having done that, in my opinion, he was entitled to accept the evidence.

19. The appellant’s counsel submitted that the trial judge should have looked to find independent evidence corroborating or consistent with Mr Loader’s evidence.  That evidence is constituted by the quite remarkable coincidence between Mr Loader’s evidence and what had occurred at the voir dire hearing.

20. Mr Loader gave evidence of conversations which were factually accurate in respect to Mr Zappia’s appearances in the appellant’s trial.  The timing of the conversations was consistent with Mr Zappia’s attendances.  What was said about Mr Zappia’s conduct in the appellant’s trial was accurate. 

21. Mr Loader could not have learned of those matters through the media.  Orders were put in place suppressing publication of Mr Zappia’s refusal to give evidence.  That is not to say that Mr Loader could not have learned of the matters elsewhere.  However, the objective evidence is consistent with his account.

22. The trial judge used Mr Loader’s evidence as recounting a confession by the appellant that he had admitted to Loader that he had killed Mr Rasti and Ms Ellul.  The trial judge used it as evidence establishing that the appellant was the shooter.  He said:

    “However my acceptance of Mr Loader’s evidence that the accused had admitted to him that he had ‘done it’ had satisfied me that the accused fired the shots that killed Mr Rasti and Ms Ellul.”

    The appellant has failed to establish that the trial judge erred in accepting Mr Loader’s evidence.  The appellant has not demonstrated, in my opinion, that the trial judge was wrong to conclude that the appellant had admitted to Mr Loader that he had shot and killed the victim.  The appellant has failed to show that the trial judge was wrong to conclude on that evidence that the appellant was the shooter.

23. The Crown case then has to be considered in the light of that evidence and the admissibility of other evidence has to be considered in the light of the trial judge’s acceptance of Mr Loader’s evidence that the appellant admitted shooting the victims.

    The relationships between the appellant, the deceased and Mr Zappia

24. Ms Ellul was a prostitute and Mr Rasti was her pimp.  They had been living together in a de facto relationship for nearly a year.  About two weeks before their murders they moved into the Grand Apartments at Melbourne Street, North Adelaide, living first in one unit but later in unit 22.

25. Mr Rasti was an aggressive and violent man.  He displayed violence towards associates and Ms Ellul and her clients.  The trial judge described Mr Rasti as being a person who was neither respected nor liked.  There was evidence to support that finding. 

26. The appellant and Mr Rasti had been known to each other for a number of years although for a time they went their separate ways.  Mr Rasti and Ms Ellul were out of South Australia for a period of time and lived in Queensland.  They returned to South Australia in February 2000.  At that time the appellant and Mr Rasti resumed their acquaintanceship.  Apparently the appellant acted as a driver for Mr Rasti and Ms Ellul to facilitate her prostitution.  He also provided security for both of them between their return and their deaths.

27. Evidence was called to show the type of relationship between Mr Rasti and the appellant and in particular that Mr Rasti treated the appellant badly.  He was aggressive and rude towards him.  On occasions he was violent.  He publicly humiliated the appellant.  About ten days before his death, whilst Mr Rasti and the appellant were at the Arkaba Hotel, Mr Rasti hit the appellant.  Mr Prasad gave evidence of an argument between Mr Rasti and the appellant on 29 March 2000 at the Grand Apartments.  On that occasion Mr Rasti publicly humiliated the appellant for no apparent reason.

28. The evidence showed that the relationship between Mr Rasti and the appellant was a volatile one.

29. The appellant and Mr Zappia were friends.  There is no evidence, however, that Mr Zappia had any association with Mr Rasti other than through Mr Rasti’s friendship with the appellant.

30. Neither the appellant nor Mr Zappia had any relationship with Ms Ellul except by reason of her relationship with Mr Rasti.

    The circumstantial evidence and chronology

31. I turn to examine the circumstantial evidence and, in doing so, will note the evidence admitted over the objection of the appellant which the appellant contends on this appeal should not have been admitted.  It is convenient to note this evidence setting it out in the chronological order of the events of the days preceding the killing of the victims.  The chronology notes the movements of the victims as well as of the appellant and Mr Zappia over the weekend of 1, 2 and 3 April 2000.

32. The Crown called Sebastian Simoniuk, a student at the Flinders University who has been a friend of Mr Zappia for a number of years.  He was also acquainted with the appellant for a period of about six months to 12 months before April 2000.  Mr Simoniuk was also friendly with a man named Ilyas Khelwaty. His evidence was that in the months before the victims’ deaths he and Mr Zappia would go out together nearly every day. 

    The Conversation at McDonald’s

33. Mr Simoniuk said that he saw Mr Zappia before the victims’ deaths.  It was a Friday night.  He thought it was 24 March 2000.  Nothing turns on the exact date.  I will continue to refer to that date.  He saw Mr Zappia parked in a car at McDonalds in Hindley Street.  There was another person in the back seat of the car.  I think it is tolerably clear from the evidence that the person in the back of the car was not the appellant.  Mr Simoniuk’s evidence was that the appellant was inside McDonalds at the time.  Evidence was led from Mr Simoniuk that Mr Zappia said to him, in the absence of the appellant, that they were planning to catch up with Mr Rasti or meet with him somewhere.  The gist of the conversation was that Mr Zappia said that they were going to collect something from him.  He owed them something or they had something to settle with him.   Mr Simoniuk was asked:

    “QWhat was your understanding of the attitude which Mr Kamleh and Mr Zappia had towards that person Faraz that night?”

    Counsel objected but the question was allowed.

    “AI can’t comment on the attitude of Jamil because he wasn’t there, but from what Natale said, or should I say the way he put how they were going to meet up with him, whether it was to catch up with him or a score to settle, the words that he used to me sounded like they were going to like settle a debt but it was more that Mr Faraz was the one that was owing, that’s the way I sort of understood it.  That he was the one that had to pay so to speak.”

    Later he was asked:

    “QFrom what Natale Zappia said to you they had something to settle with the man Faraz, who did you understand him to be referring to?”

    Again counsel objected but again the question was allowed.

    “AI believe that he was referring to himself, Jamil and the gentleman in the back seat.”

    The admissibility of the evidence that they were planning to catch up with Mr Rasti to collect something from him or to settle with him was challenged on appeal.  The appellant claimed it was hearsay evidence and inadmissible. 

34. I shall deal with that challenge in due course but in the meantime I would observe that the questions asked of the witness as to his understanding of what was said, in my opinion, were bound to elicit answers which were inadmissible.  The witness’s understanding of what was said was irrelevant.  If the witness could give evidence of a conversation between himself and Mr Zappia, and that is a matter still to be decided, he was bound to give evidence of what was said during that conversation or, if he was not able to remember the actual words, the gist of what was said.  He was not entitled, because it was quite irrelevant, to give evidence of his understanding of what was said.

35. On 30 March, Mr Rasti’s red Commodore motor car was defected. I mention this fact only because reference is made to the defect notice and its removal in subsequent conversations between the appellant and Mr Rasti.

36. The appellant was interviewed by the Police (Detectives Weeding and Hutchins) on 6 April.  His record of interview was tendered.

37. The appellant claimed in his record of interview that on 31 March he lent his blue Nokia phone to Mr Rasti because Mr Rasti needed a second mobile phone to use for an advertisement which he intended to insert in The Advertiser advertising Ms Ellul for prostitution.  Two separate advertisements appeared in The Advertiser on Saturday 1 April advertising Ms Ellul for prostitution.  Two names were used and two mobile telephone numbers were given one with respect to each name.  One of those mobile telephone numbers related to the blue Nokia.

38. A copy of The Advertiser for Saturday 1 April was located in unit 22 on 3 April and a palm print matching the palm print of the appellant was found within the newspaper.

39. At or about 1:00pm on Saturday 1 April two men entered a shop near the Grand Apartments in which Angela Souris worked.  She later identified one of the men from a photograph as being the appellant.  The other she recognised as the deceased, Mr Rasti, from photographs she had seen in The Advertiser after his death.  She said that whilst in her shop the appellant received a number of telephone calls on the blue Nokia and on the fourth call heard him say ‘not until tomorrow night’. 

40. The appellant said to the police that sometime in the late afternoon or early evening of Saturday 1 April he went to the Grand Apartments and had a conversation with Mr Rasti in the car park.  He said in that conversation he talked about Mr Rasti’s car “getting off the defect”.  Mr Kamleh said in that record of interview that he did not stay very long.  He said he did not see Mr Rasti after that day.

41. At 9:40pm on 1 April a person fitting Mr Rasti’s general description went to the Glenelg Police Station for the purpose of having the defect notice removed from his car. 

42. The trial judge found that the conversation between the appellant and Mr Rasti relating to the defect notice must have occurred after 9:40pm on Saturday 1 April.  He made that finding because in the conversation as recounted by the appellant Mr Rasti told him how he had got ‘off the defect notice’.

43. It was open to the trial judge to find that that conversation must have occurred after 9:40pm because it was not until 9:40pm that the defect notice was removed.  He was entitled to find that the appellant was wrong about his evidence that conversation occurred in the late afternoon or early evening.

44. The Grand Apartments are located at 55 Melbourne Street, North Adelaide.  They comprise 53 serviced units in a three storey building.  Access to the units is from Melbourne Street through double gates and a pedestrian gate.  Access can be obtained using a key card or an occupant admits a person through an intercom arrangement. 

45. On the weekend of 1, 2 and 3 April 2000 Mr Jeremy Ievins was residing in unit 33 of those apartments.  On the night of 1 April Mr and Mrs Davis visited him at those apartments.  They arrived at about midnight.  At or about 1:00am on 2 April Mr Ievins drove Mr and Mrs Davis back to their place of residence.  Mr Davis was sitting in the front with Mr Ievins.  As Mr Ievins drove through the Melbourne Street gate he observed two men entering the Grand Apartments. Mr Ievins said that one of the men said “nice car mate” referring to Mr Ievins’ vehicle. Mr Ievins described the men:

    “One was taller, long haired, dark - long dark hair.  I actually noticed that person hanging around the building prior to that.  The other one was short - no, actually I can’t describe the other one, I’m sorry ....

    He was shorter than the first male, stocky; he was Greek or Italian, definitely wasn’t Australian but I didn’t take much more of a look, didn’t get much more of a description of him than that.”

    Mr Ievins was unable to recall which of the two men had said “nice car mate”.

1. Mr and Mrs Davis also saw the two men on this occasion. Mr Davis saw two men on the Melbourne Street side of the gate to the left of the vehicle.  He had them under observation for about 30 seconds only.  One man he described as being 5’11” tall, stocky, overweight, weighing about 100 kg wearing dark clothing, a skivvy, a dark waistcoat and dark jeans.  That man was carrying a large brown shopping bag.  He had a moustache and a trim goatee beard.  He had an olive complexion but longer than cropped hair.  It was this man who, according to Mr Davis, said “nice Commodore mate”.  He was unable to identify the second man. There was evidence that at this time the appellant had a goatee beard.

2. Mr Davis identified the appellant as the man who had said “nice Commodore mate”.  He was shown 15 photographs.  He was not 100 per cent sure of his selection but was 90 per cent sure that the man he saw was the appellant. 

3. Mrs Davis gave a description of both men one of which matched generally the description of the accused.  Mrs Davis said that she saw two men at the entrance to the Grand Apartments waiting for the security gate to open.  One of them was in his mid 20s with olive skin and of European, Lebanese or Greek extraction.  He had short dark hair and a goatee beard.  He was wearing dark clothing.  She believed that this man said “nice car mate”.  The second man, she said, was shorter in his early 20s, slimmer and also wearing dark clothing.

4. Mrs Davis could not identify the appellant from a folder of photographs.  She thought, however, it was a taller man who made the comment whilst the other witnesses believed it was the shorter man.

5. At 3:00pm on Sunday 2 April Mr Dellapia, who was a friend of the deceased, Mr Rasti, saw Mr Rasti in a cafe in Bank Street, Adelaide.  Mr Rasti showed him a blue mobile phone.

6. Mr Oueiss and Mr Noujaim were friends and both were acquaintances of Mr Rasti.  Mr Oueiss said he went to the Grand Apartments sometime between 3:00pm and 4:00pm on 2 April.  Ms Ellul told him Mr Rasti was not there.  Mr Oueiss said he returned to the Grand Apartments at 6:00pm and met Mr Rasti.  He and Mr Rasti and a Mr Noujaim left the apartments and went to Salisbury.  Mr Noujaim gave evidence that he met Mr Rasti and Mr Oueiss at the Grand Apartments at about 5:00pm and that he left the unit with Mr Oueiss at about 6:00pm or 7:00pm.

7. The appellant said in his record of interview that he slept at Mr Zappia’s parents’ house on Saturday night and Sunday morning, 1 and 2 April.  He says he was woken at sometime between 5:00pm and 6:00pm on the Sunday.

8. Mr Koufalas was also a resident at the Grand Apartments over the relevant period.  On Sunday 2 April he left the apartments between 5:30pm and 6:00pm on foot.  On his return he noticed two men in a red VR Commodore parked outside the premises.  He described the two men.  One he described as being 180 to 185 centimetres tall with a goatee beard and black hair of stocky build and of Italian or Middle Eastern extraction.  His hair was cut short on the back and the side and left curly on top.  The other man he described as being 170 centimetres tall again of stocky build who also had a goatee beard.  His hair was short back and sides with some colour on top.  He was described as being of Middle Eastern appearance. 

9. Mr Koufalas said he had seen both these men previously.  The first man he had seen at about 3:00pm on 31 March 2000 and at that stage he noticed the man was talking on a mobile telephone.  The second man he had seen on a number of occasions in the car park and at the entrance of the apartments in a red VR Commodore.

10. On 18 August 2000 he selected a photograph of the appellant from a group of 15 photographs.  The appellant was, he said, the taller man.  His description of the other man generally matched the description of Mr Rasti.

11. The trial judge said of the identification evidence:

    “It was accepted by the Crown that none of the witnesses gave positive identification evidence.  The evidence suggested that the general appearance of the accused was similar to that of a person seen at or near the Grand Apartments at various times.  The photographic selections added to the evidence of general appearance.  The identification in court of the accused is of minimal weight. 

    Ms Souras, Mr Koufalas, Mr and Mrs Davis and Mr Ievins were all witnesses of credit.  However their evidence of identification must be assessed with care.  Generally their observations were made over a short period of time and often while they were undertaking some other activity.  A number of the observations were made at night.  The photographic selections were made some months later.  Alone each witness’s evidence is of limited value.  Alone much of this evidence is weak.  However when considered together and with all of the evidence in the case it gains some strength.  The evidence includes the accused’s admission that he was with Mr Zappia on 1, 2 and 3 April 2000.  The evidence has a tendency to prove that the accused was in the vicinity of the Grand Apartments at 1:00pm on Saturday 1 April 2000 and at the Grand Apartments about 1:00am on the morning of Sunday 2 April 2000, at or about 6:00pm on Sunday 2 April 2000 and then at about 1:00am on Monday 3 April 2000.”

12. The trial judge directed himself as to the use to which identification evidence could be put.  He referred to Smith v The Queen (2001) 75 ALJR 1398; Festa v The Queen (2001) 76 ALJR 291 and Domican v The Queen (1991) 173 CLR 555 at 561-562. The appellant has not complained, on this appeal, about the directions which his Honour gave himself or the findings which he made.

13. The evidence of identification is further circumstantial evidence which may be used to advance the prosecution case.

14. At sometime between 6:30pm and 7:30pm on 2 April 2000 Holly Stewart was standing at a bus stop on Main North Road when a red Commodore stopped.  There were four persons in the car, three males and one female, who was sitting in the rear.  The driver got out and introduced himself as Isaac.  She gave him her mobile number which rang about 20 minutes later.  It was Mr Rasti.

    The Hectorville Conversation

15. At some time on Sunday 2 April the appellant, accompanied by Mr Zappia, visited Mr Khelwaty’s unit at Hectorville.  It is likely that the appellant and Mr Zappia arrived sometime between 8:00pm and 10:00pm. There is some dispute about the time at which they arrived.  The appellant said in his record of interview that he was unsure at what time he arrived “about 9 o’clock, 8 o’clock”.  Mr Khelwaty’s evidence was that they arrived at about 8:00pm.  Mr Sultani said they arrived about 10:00pm.  Both said that the appellant and Mr Zappia stayed 15-20 minutes.  Mr Simoniuk said that he had a conversation at the unit with Mr Zappia “around tenish”.  The trial judge found that the appellant and Mr Zappia were at the unit at about 9:00pm.  That finding was not challenged.

16. The prosecution led evidence of the conversation between Mr Simoniuk and Mr Zappia.  The appellant was not present at that conversation. Rather than attempt to summarise the evidence I set it out in full:

    “Q     Did you have a conversation with Natale Zappia that night.

    A      A private conversation, yes.

    QIn that conversation did the topic which you have told his Honour that was raised by Natale the previous week come up.

    AYes.

    QCould you tell his Honour what was said by Natale Zappia, on that topic.

    AMaybe I can sort of lead-up to that a little bit.  Because since the time I saw them at the car park to the time I saw Natale at the flat, I had seen him once or twice in passing, prior to that Sunday night.  And I remember asking have they sort of, did they catch up or whatever with whoever they were looking for and on a number of occasions he said no.  So when I spoke to him that night, that Sunday night, on the veranda at Ilyas’ apartment, I again asked, I was assuming that’s what he asked me to step outside for and I asked, you know, ‘Did you guys catch up with him?  Is everything okay?  Is everything fixed up?’ and I believe he mentioned again, we are going to see him that night.

    QThat they were going to see him that night.

    AYes.

    QWhen he said they were going to see him that night to whom was he referring.

    AHimself and Jamil.

    QDid you have any further conversation with Natale about what they were going to do that night.

    ANo.

    QDid Mr Zappia ask you for anything that night.

    OBJECTION:     MR MOFFA OBJECTS.

    QUESTION ALLOWED

    XN

    QDid Mr Zappia ask you for anything that night.

    AHe asked me for ammunition.

    QCan you tell his Honour in what context Mr Zappia asked you for ammunition, to the best of your memory.

    AI’m sorry I don’t, it - it would have just been ‘can you’ I suppose.  I’ll say that I have been in trouble with sort of firearms offences in the past and Natale knew about that, and he just asked me can I organise some ammunition and I said no.

    QWas there any discussion on the topic of any firearm that night.

    AThere was, the conversation I cannot remember word for word, but it was my understanding that they were either on their way to pick one up, or they knew where one was and they were going to organise one or they were trying to organise one.

    QWhere was Mr Kamleh whilst you had this conversation with Mr Zappia.

    AI’m unclear about that.

    QWhen Mr Zappia asked you about getting some ammunition, did he say who that was for.

    ANo.

    QBack then did you own a balaclava.

    AYes I did.

    QDid you see that balaclava at any stage that night.

    AYes I did, I actually bought it down to Ilyas’ apartment with the assumption that we were going fishing tonight.  So I had a big jacket and warm clothing and a beanie balaclava.

    QDid you lend that to anyone.

    AYes.

    QWho.

    AJamil.

    QAt what stage did you lend it to Jamil.

    AI believe it would have been after I had a conversation with him outside.

    QAfter you had a conversation with who.

    AWith Natale.

    QHow was it that you came to give Jamil Kamleh your balaclava.

    AWell, I mean amongst friends you go over to somebody’s house if there’s a hat or a nice jacket lying around I mean you just try it on, and I sort of assumed that’s what he was doing.  Just put it on and he asked me if he could borrow it.

    QWas that before or after the conversation that you had with Natale about the ammunition.

    AI believe it was after.

    QDid Natale tell you where they were going, after they left your unit that night.

    AI don’t recall, from my understanding of that conversation is again -

    OBJECTION: MR MOFFA OBJECTS.

    MR MOFFA:If he doesn’t remember he doesn’t remember.

    HIS HONOUR

    QIf you can recall what was said, those words are still in your mind, you can tell me that.  If you can’t recall that but you can recall the gist or the substance of the conversation you can tell me that.

    AOkay.  Can you ask the question again please?

    XN

    QYes.  Did Natale tell you anything about where they were going or what they were going to do that evening.

    AI think I’ve answered that already.  When I asked, you know, like ‘How did things go?’, ‘Did you guys catch up with him when I saw you guys last?’ and he said ‘No’.  Once again I can’t remember exactly what words were used, from what I understood they were again going to see him tonight, this person Faraz.

    QDid he say anything on the topic for what purpose; again the gist or the actual words used.

    ANo.

    QAre you saying you can’t remember.

    OBJECTION:     MR MOFFA OBJECTS.

    MS KELLY:I won’t pursue that topic.”

    Mr Simoniuk was then led on a very short conversation with the appellant a little later on the same occasion.

    “XN

    QWas anything said by Mr Kamleh immediately prior to the departure of Mr Kamleh and Mr Zappia from Mr Khelwaty’s unit that night.

    AYes.

    QCould you tell his Honour what was said.

    AI can’t remember the exact words used, but it was, from memory, ‘Natale, come on, we have to go’.

    QHave you ever seen your balaclava again.

    ANo.

    QDid Mr Kamleh say anything or ask, tell you anything about why he wanted that balaclava.

    ANo, I don’t believe that he did.

    QNow, when did you next see Mr Zappia.

    HIS HONOUR:  Just before you move on.

    HIS HONOUR

    QMr Simoniuk you told me there was a conversation about a firearm, a short while ago.

    AYes.

    QAnd you then told me what your understanding was of the position in regard to the firearm, what did you base that understanding on.

    AI’m basing it because he asked me for ammunition.

    QAnd on anything else.

    AThere was some reference to a firearm by Natale but, once again, I don’t - I didn’t understood whether he actually said on the way to pick one up or whether they’ve got one in the car or whether they are looking for one.  I didn’t really understand what sort of transpired from that conversation because my state of mind was that I’ve had a couple of drinks, this person has told me on numerous number of other occasions that they’re going to sort of catch up with him and, to me, it was just another one of those okay, well, you’ve told me this so many times before sort of.”

    The appellant also challenged this evidence on this appeal.  Like the McDonald’s evidence, the appellant claimed this evidence was hearsay and should not have been admitted in his trial.  I will discuss that challenge in due course. 

    The Evidence as to the Movements of Mr Rasti and Ms Ellul

17. Mr Ouiess gave evidence that he and Mr Noujaim, who had previously been in unit 22 with Mr Rasti and Ms Ellul, returned to unit 22 of the Grand Apartments after they had driven to Salisbury with Mr Rasti.

18. Mr Ouiess’s evidence was that they were in unit 22 between about 9:00pm and 10:00pm with a woman called Janelle.  Mr Noujaim’s evidence was that he came to unit 22 of the Grand Apartments at around 5:00pm.  Mr Ouiess’ car was parked outside but only Ms Ellul was present in the unit.  Ms Ellul told Mr Noujaim that Mr Rasti and Mr Ouiess had gone for a drive, and she telephoned Mr Rasti requesting that he return.  He and Mr Ouiess returned to the unit and Mr Noujaim and Mr Ouiess then left together at approximately 6 or 7:00pm..

19. The trial judge did not resolve the differences in the evidence of Mr Ouiess and Mr Noujaim and nor, in my opinion, did he need to.

20. Mr Tristan Langan was Ms Ellul’s last identified customer.  He spoke to her or Mr Rasti at 8:45pm, 9:15pm and 9:28pm.  He said that he went to the Grand Apartments to meet Ms Ellul at 9:30pm.  He paid her $130 and had sex with her.  He said he remained 15-20 minutes.  Whilst he was there, he had a disagreement with Ms Ellul about the price she was charging him.  Although the witness did not say so, it appears that Mr Ellul then left the room.  Mr Langan heard her voice and a male voice outside the room and that male voice talking about the disagreement between Mr Langan and Ms Ellul as to price.  Whilst he was with her Ms Ellul told him that she was going to the “Q Club”.  He said he left at 10:00pm.

21. He was not cross examined.  The judge accepted his evidence.  The judge made a finding that Mr Langan had attended unit 22 at about 9:30pm on 2 April 2000 and stayed for about 20 minutes.  He made the further finding that Mr Rasti was present at the time.  That finding was based upon Mr Langan’s evidence that he heard Ms Ellul speaking to a male about the price to be charged. 

22. Ms Holly Stewart, who had given her mobile phone number to Mr Rasti earlier that day, lives at Blair Athol.  She said that at about sometime between 10:30pm and 11:00pm she was visited by Mr Rasti.  He was driving the same red Commodore in which he had been before.  She said that he stayed for about half an hour or around half an hour.  He delivered her a bunch of roses and a box of chocolates. For the reasons which follow, I think that Ms Stewart’s evidence is not entirely accurate as to the time when Mr Rasti visited her.

23. There were a number of phone calls made on the blue Nokia that night to Ms Stewart.  The first was at 18:59.48 hours on 2 April and the last was at 00:18.59 hours on 3 April.  The last telephone conversation continued over a period of eight minutes and 59 seconds.

24. The telephone records were tendered and I set out the summary of those records which was included in the trial judge’s reasons.

    “The telephone records indicate that SIM card 151 was used in connection with the blue nokia to call or attempt to call Ms Stewart at the following times:

Time of call	Call duration	Cell Tower
2 April 2000
18:59:48	5 seconds	Prospect
19:05:09	8 seconds	Adelaide Uni
19:11.26	15 seconds	North Adelaide
19:29:45	4 seconds	Hindmarsh
19:46:40	2 seconds	Adelaide Uni
20:31:43	3 seconds	North Adelaide
21:40:00	0 seconds	North Adelaide
21:40:06	0 seconds	North Adelaide
21:41:14	0 seconds	North Adelaide
21:42:13	0 seconds	North Adelaide
21:43:45	0 seconds	North Adelaide
21:49:30	0 seconds	Adelaide Uni
21:56:42	7 minutes 29 seconds	Dudley Park
22:17:04	4 minutes 59 seconds	Ottoway
22:41:10	21 seconds	Blair Athol
23:12:32	10 seconds	Prospect
23:13:34	1 minute 31 seconds	North Adelaide
23:15:30	14 seconds	Adelaide Uni
23:16:02	0 seconds
23:22:22	6 seconds	Adelaide Uni
3 April 2000
00:01:13	19 seconds	CBD North
00:01:46	55 seconds	CBD North
00:18:59	8 minutes 59 seconds	Adelaide Uni

1. I think it is more likely, having regard to the way in which the phone was used in trying to contact her, that Mr Rasti visited Ms Stewart earlier and left before 10:20pm. The phone records show that he was at Dudley Park shortly before 10pm and at Ottoway at about 10.17pm.

2. I think that is confirmed in the evidence of Mr Prasad.  He said that Mr Rasti and Ms Ellul visited him at his parent’s home at Pennington between 11:00pm and 11:30pm.  He said Mr Rasti was driving a red Commodore.  They stayed about 20 minutes.  Mr Rasti indicated that the purpose of the visit was to apologise for an argument that occurred the previous week.  Ms Prasad’s parents live at Pennington. 

3. However, the precise details of Mr Rasti’s movements do not need to be resolved.  The evidence clearly discloses that Mr Rasti and Ms Ellul were alive prior to 00:18.59 hours on Monday 3 April 2000 when Mr Rasti spoke to Ms Stewart.

4. Someone made a telephone call on another mobile telephone usually used by Mr Rasti at 00:31.34 on 3 April.  The likelihood is that it was Mr Rasti but that also does not need to be resolved because other evidence establishes that Mr Rasti was alive after that time.

   The Appellant is Seen on 3 April

5. Mr Ievins was again awake at 1:00am on 3 April.  This time he was standing on his balcony smoking a cigarette.  That allowed him a view of the Melbourne Street entrance to the Grand Apartments. 

6. He saw two men walking from the City heading north up Melbourne Street.  One man was taller than the other.  He was the man he had seen on the previous night.  He could not be sure whether the shorter, stockier man that he saw on the Sunday morning was the same person he had seen on the previous night.  In his evidence, he was definite that the taller man was the same person he had seen at or about the same time that is 1:00am on the morning of Sunday 2 April.  Mr Ievins was not able to identify the appellant from an array of 16 photographs.  He selected the appellant and three other people as “similar looking”.  Mr Ievins’ evidence has to be understood in conjunction with the evidence of Mr Davis.  Mr Davis identified the man he saw at 1:00am on 2 April as the appellant.  Mr Ievins said that the man Mr Davis identified whom he saw on 2 April was the same man he saw on 3 April.  He could not identify that man as the appellant.  However, if Mr Davis’ identification was accurate and Mr Ievins’ evidence accurate, the appellant was at the apartments at about 1:00am on both 2 and 3 April.

1. If the evidence of Ms Mouroufas is correct, some aspects of the evidence of Ms Kucera, Ms Torres and Mr Kendall could not have been correct.  The trial judge rejected their evidence as to the time of their arrival at the Q Club.  Contrary to their evidence, he found that they arrived with Ms Mouroufas at about 1:30am on 3 April.  Once he had accepted Ms Mouroufas’s evidence, that finding was open to him.  However, he did accept Ms Kucera’s evidence that she met the two men to whom she referred about an hour to an hour and a half after her arrival which would have meant the meeting took place sometime between 2:30am and 3:00am. 

2. He specifically rejected Ms Burton-Moore’s evidence about the time of her arrival with Raymond Kamleh on the second occasion at 11:30pm.  In my opinion, he was correct in rejecting that evidence because it was inconsistent with the evidence of Ms Kucera, Ms Torres and Mr Kendall and, of course, quite inconsistent with the evidence of Ms Mouroufas.

3. The trial judge found that Mr Kendall, Ms Kucera, Ms Torres and Ms Mouroufas all arrived at the Q Club at about 1:30am on 3 April.  As I have said that was a finding open to him.  In making that finding, he was entitled to rely upon Ms Mouroufas’s evidence and to reject those parts of those other witness’s evidence where it conflicted with Ms Mouroufas’s evidence.

4. Mr Kendall said that he met Mr Townsend at the door when he arrived.  Mr Townsend’s evidence demonstrates the unreliability of Mr Kendall’s evidence.  Mr Kendall could not have arrived at 11:00pm as he said because Mr Townsend did not commence work until 12:30am, or at the very earliest 12:10am.

5. Although the trial judge rejected Mr Kendall’s account as to when he arrived at the Q Club, he accepted his evidence of what Raymond Kamleh said to the group, including Mr Kendall, in the presence of the appellant.  In my opinion, he was entitled to make such a finding.  There was evidence to support that finding and Mr Kendall was not shaken in respect of that matter.

6. Mr Raymond Kamleh’s statement was made in the presence of the appellant and in circumstances where it could be inferred that he heard what Mr Raymond Kamleh said.  His statement was admissible against the appellant.  In Barca v The Queen (1975) 133 CLR 82 at 107, Gibbs, Stephen and Mason JJ said:

   “It is trite law that a statement made in the presence of a party is only evidence against him of the truth of the matter asserted if he has in some way admitted its truth.”

   In The King v Christie [1914] AC 545 Lord Atkinson said at 554:

   “As to the second ground, the rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own.  If he accepts the statement in part only, then to that extent alone does it become his statement.  He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part.  It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner and under such circumstances as may lead a jury to disbelieve him, and constitute evidence from which an acknowledgment may be inferred by them.”

   In this case there is no evidence that the appellant said anything so it cannot be said that he has accepted the statement “by word”.

7. A party can, however, by silence or other conduct, acknowledge the truth of a statement.  Where a party has failed to deny a statement in circumstances where it might be expected that such a denial would be forthcoming, the absence of that denial or other conduct can lead to the inference “that he has acknowledged the truth of the statement so as to make it his own, or has so conducted himself as to show a consciousness of guilt”: R v Thomas [1970] VR 674 at 679; R  v Strausz (1977) 17 SASR 197.

8. In those circumstances where a party has had an opportunity to deny the correctness of or explain a statement made in his or her presence in circumstances where the party might have been expected to deny that statement, or make some comment in relation to it, that party’s reaction or lack of it becomes admissible against the party.

9. It is the response which is admissible and from which the inference might be drawn that he has acknowledged the truth of the statement or shown a consciousness of guilt:  R v Salahattin [1983] 1 VR 521 at 528.

10. This is not a case where an accused person has remained silent in circumstances where a victim or a person in authority has made an accusatory statement and the accused has remained silent as the accused is entitled to do: Hall v R [1971] 1 All ER 322.

11. In this case the appellant was in a social situation when his cousin asked another person to give the appellant a false alibi and where that other person enquired as to the reason.  If Raymond Kamleh’s question was unsolicited by the appellant, it would be expected that the appellant would say so.  Certainly it would be expected that he would have said something in response to Mr Kendall’s enquiry.

12. In my opinion the trial judge was entitled to admit evidence of the appellant’s failure to respond to the statement made by Raymond Kamleh in his presence and to infer from that failure that the appellant was a party to the concoction of the appellant’s alibi.

13. The trial judge was not prepared to act on Mr Townsend’s evidence except as to the time at which he commenced work on 3 April 2000 and his evidence that he saw the appellant at sometime on that morning.

14. I have set out the relevant aspects of Mr Townsend’s evidence.  He said, in examination in chief, as I have already observed that he did not recognise the man, who he had described as Jamie, in court.  He said, in his evidence in chief, that he did not have a recollection of when it was that he spoke with Jamie.

15. I agree with the trial judge that little store could be put on Mr Townsend’s evidence which was drawn from him reluctantly in cross examination.

    The finding of concocted alibi and lies told out of consciousness of guilt

16. The trial judge concluded this aspect of his inquiry:

    “This analysis of the evidence has satisfied me that the accused and Mr Zappia did not arrive at the Q club at or about 11.00 pm on Sunday 2 April 2000 as the accused asserted in his record of interview.  I find that the accused and Mr Zappia arrived together at some time between 2.30 am and 3.00 am on 3 April 2000.  I am satisfied that Raymond Kamleh introduced the accused and Mr Zappia soon after their arrival to others at the Q club.  I am satisfied that when Raymond Kamleh introduced the accused and Mr Zappia to Mr Kendall he did so saying “Oh, if anyone asks, will you vouch that my cousin and his mate were here tonight?”  This introduction was made in the presence of both the accused and Mr Zappia.  I am satisfied that the accused and Mr Zappia left the Q club at or about 4.00 am on 3 April 2000.”

    The trial judge’s findings meant that the alibi offered by the appellant in his interview with police on 6 April was false and that the alibi offered by Mr Zappia, in his later interview on 8 July, was also false.

17. The trial judge drew the following conclusions from those findings.  First, that the appellant had lied to the police on 6 April.  Secondly, that Mr Zappia had also lied in his interview.  Thirdly, that there was opportunity for the appellant and Mr Zappia to concoct the false alibi.  Fourthly, the concoction had commenced as early as when Mr Kendall spoke with Raymond Kamleh and the appellant at the Q Club.  Fifthly, the appellant and Mr Zappia had concocted their alibi to avoid having to state truthfully where they were prior to arriving at the Q Club at between 2:30am and 3:00am on 3 April.  Fifthly, the concoction and the appellant’s statement to police were lies told out of a consciousness of guilt.

18. In my opinion, once the judge made those preliminary findings in respect of the evidence of the witnesses at the Q Club, those further conclusions necessarily followed.  Of course, witnesses and accused persons lie for all sorts of reasons apart from a consciousness of guilt.  Those reasons were considered by the trial judge in his judgment especially when he referred to Edwards v The Queen (1993) 178 CLR 193 at 210-211 in the judgment of Deane, Dawson and Gaudron JJ. After referring to that case His Honour said:

    “There are possible reasons that explain why an accused may lie.  It may result from a conscious exaggeration for effect, a subconscious exaggeration after the passing of time, a concern over an inability to recall precisely what occurred and an attempt to fill the gap, panic, fear, feelings of a need to offer an explanation when it is sought, attempting to improve one’s position when it is thought that an explanation offered may not be viewed by others particularly the police as credible and reliable, concern that the circumstances “looked bad” and that the truth may not be believed.  There may be other reasons.  The remarks of King CJ in Harris v The Queen are apposite:

    ‘The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused.  Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime.  Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime.  The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare.  The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt.  Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt.”

    In my opinion, it was open to find that the false alibi offered by the appellant to the police at the interview of 6 April was a lie told out of a consciousness of guilt.  It was not only open but, in my opinion, was an inevitable finding.

19. By reason of the trial judge’s acceptance of the evidence of Mr Ievins, Mr and Mrs Davis and Mr Koufalas, the  appellant’s claim to the interviewing police officer that he did not see Mr Rasti after late afternoon or early evening on Saturday, 1 April was also a lie. The trial judge was entitled to conclude that the appellant deliberately misled the police by that lie in an endeavour to distance himself from the crime.  He did so because he knew that that, if he admitted when he last saw Mr Rasti, it would provide evidence of his implication in the crimes with which he was charged.

20. A lie told out of a consciousness of guilt can be used as corroboration of other evidence because it amounts to an admission against interest: Edwards v The Queen (1993) 178 CLR 193 at 210-211. The trial judge was entitled to use the two lies to which I have referred in that way.

    Summary to date

21. I summarise the case thus far before referring to the impugned evidence in the conversations Mr Zappia had with the parties to whom I have already referred. 

22. The case was a strong circumstantial case.  There was evidence that the appellant had lied on two occasions about material matters which lies were told out of a consciousness of guilt.  There was the circumstantial evidence that put him at the Grand Apartments at the relevant times.  In addition, he had confessed his guilt to Mr Loader. 

23. There was also the evidence of Mr Zappia’s fingerprints on the glass on the table in Unit 22 and of the appellant’s palm print appearing on The Advertiser of Saturday, 1 April 2000. That evidence becomes relevant because of the appellant’s claim that he was always in the company of Mr Zappia.

24. On the basis of all that evidence, the trial judge would have been entitled to find the charges proved beyond reasonable doubt, without referring to the Zappia conversations to which objection had been taken.

25. I now turn to the evidence of the Zappia Conversations.

    The Impugned Conversations with Zappia

26. The trial judge accepted the evidence of Mr Simoniuk as to his conversations with Mr Zappia on or about 24 March 2000 (McDonalds), 2 April 2000 (Hectorville), 3 April 2000 (telephone), 8 July 2000 (telephone) and 9 July 2000 (telephone).  He also accepted Mr Simoniuk’s evidence of his conversation with the appellant.

27. The trial judge admitted the McDonalds and Hectorville conversations upon the basis that they were evidence of things said and done by Mr Zappia in the absence of the accused in furtherance of the common purpose.

28. The conversations of 3 April, 8 July and 9 July were admitted on the basis that they disclosed esoteric knowledge on Mr Zappia’s part which was relevant in the case against the appellant because the appellant’s case was that he was always in the company of Mr Zappia

29. The appellant has challenged the admissibility of all those conversations.  The respondent contended that the statements were admissible upon the grounds relied upon by the trial judge but also on other grounds.

    Admissibility of conversations under the co-conspirator’s rule

30. The appellant faced substantive charges not conspiracy charges.  Nevertheless, out of court statements made by another participant to a common purpose may be admissible.  Evidence of acts done or words uttered in the absence of the accused are admissible against an accused where it is alleged that those acts done or words uttered were so done or uttered by a co-participant in furtherance of a common purpose in which the accused is also a co-participant and where there is other reasonable evidence that the accused was a participant in that common purpose: Tripodi v The Queen (1961) 104 CLR 1; Ahern v The Queen (1988) 165 CLR 87 at 100; The Queen v Corak and Palmer (1982) 30 SASR 404.

31. Ahern v The Queen was a conspiracy case.  In Tripodi v The Queen the accused faced a charge of larceny and in The Queen v Corak the charge was possess Indian Hemp for trade.  In Ahern v The Queen the High Court (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) said at 99:

    “Whether Stephen drew any distinction in this context between ‘prima facie grounds’ and ‘reasonable ground to believe’, the latter phrase is reflected in the judgment of this court in Tripodi where it said:

    ‘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.’

    In Tripodi the court was speaking of the admission in evidence of the acts and declarations of others outside the presence of the accused in proof of larceny rather than conspiracy, but, as we have said, the principle upon which such evidence is admitted extends beyond cases of conspiracy.  The significant distinction between conspiracy and other offences for present purposes is that indicated in Tripodi, namely, that on a charge of conspiracy combination is also an element in the offence and not merely a ground for the admission of the evidence.  The question does not, therefore, arise in cases other than conspiracy of the use of evidence of the acts and declarations of others to prove the combination except as evidence of separate acts from which a combination might be inferred.  Once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation in the combination, but the offence charged.”

    The Court said later at 100:

    “In our view, the test adopted in Tripodi is the appropriate one.  Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.  The words ‘reasonable evidence’ have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged.  If there is any difference between ‘reasonable evidence’ and ‘a prima facie case’, which in this context we very much doubt, then the words ‘reasonable evidence’ are to be preferred providing, as they do, a test of admissibility for which no more precise expression is needed.  The aim in limiting the use which might be made of a co-conspirator’s acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused.  For this purpose, the element of discretion implicit in the term ‘reasonable evidence’ is desirable.”

32. For the evidence to be admissible there must be reasonable evidence of the existence of a common purpose to which the accused is a party.  That reasonable evidence must be evidence apart from the acts done or words uttered which are sought to be tendered pursuant to that rule.  The acts done or the words uttered must be in furtherance of that common purpose.  They must be acts or words uttered by another participant in the common purpose.  The expression “common purpose” is used interchangeably with the expressions “common design”, “common enterprise” and “pre-concert”.

33. The acts done or words uttered must be in furtherance of the common purpose.  A narrative statement made by a co-participant will not usually be in furtherance of the common purpose.  In Tripodi v The Queen (supra) at 7 the court said:

    “From the nature of the case it can seldom happen that anything said by one which is no 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.”

    A statement made after the common purpose has been discharged would not usually be admissible against another party who was a party to that completed common purpose.  There is then no longer any existing common intention: Mirza Akbar v King- Emperor [1940] 3 All ER 585.

1. The first question to be decided is whether there was evidence independent of the McDonalds and Hectorville conversations that would satisfy the test of reasonable evidence as explained in those authorities.

2. In my opinion there was.  There was very strong evidence of pre-concert.  The appellant’s confession to Mr Loader is powerful evidence of the existence of a common purpose to which the appellant and Mr Zappia were parties.  The appellant’s lies as to his movements on 2 and 3 April and the jointly concocted alibi are also evidence of pre-concert and the appellant’s complicity in that pre-concert.

   The McDonald’s Conversation

3. The evidence was admissible, if it was relevant, and if it was in furtherance of the common purpose.

4. In my opinion, the statement made by Mr Zappia at McDonalds on 24 March was relevant but it was not evidence of a statement made in furtherance of a common purpose.  A statement that Mr Zappia and the appellant intended to catch up with Mr Rasti is no evidence, in my opinion, of words uttered which advance the common purpose.  The evidence was not admissible in my opinion under the co-conspirators rule.

5. The evidence was, however, admissible as evidence of Mr Zappia’s intention.  Mr Millsteed QC who appeared for the respondent on this appeal argued that the statement was admissible to establish Mr Zappia’s intention and his intention was relevant because it was the appellant’s case that he and Mr Zappia were never outside each other’s company over the whole of the relevant period.  I agree with that submission.  I agree that the statements made by Mr Zappia out of the hearing of the appellant to Mr Simoniuk at McDonalds on 24 March were relevant but only to establish Mr Zappia’s intention.  The evidence could not be admitted for any other purpose.

   The Hectorville Conversation

6. The second conversation which was admitted under the co-conspirators rule by the trial judge was the conversation between Mr Zappia and Mr Simoniuk at 9:00pm on 2 April at Hectorville.

7. In my opinion that conversation was relevant and it was admissible under that rule.  In my opinion, because there was other reasonable evidence of pre-concert between Mr Zappia and the appellant, the request that Mr Zappia made to obtain ammunition was in furtherance of the common purpose and therefore admissible against the appellant.

8. The evidence that Mr Simoniuk lent the appellant a balaclava was not hearsay evidence.  It did not depend for its admissibility on the co-conspirators rule.  If it was relevant, it was admissible because it was evidence by Mr Simoniuk of an act which he had done. I think, however, that the evidence was not relevant because there was no evidence that a balaclava was used by anyone on 2 and 3 April.

9. The evidence of Mr Ievins would suggest that neither of the two persons who entered the Grand Apartments at 1:00am on 3 April was wearing a balaclava and in particular the person who he identified as the appellant was not wearing one.

10. I think, however, that the admission of that evidence was immaterial in the circumstances of this case.  In my opinion, the trial judge did not use it to the disadvantage of the appellant.

    The Three Telephone Conversations

11. The three telephone conversations of 3 April, 8 July and 9 July were not admitted under the co-conspirators rule.  Nor could they have been in my opinion because they were not evidence of words uttered in furtherance of the common purpose.  They were accounts by Mr Zappia of the events which had occurred on 3 April.  In those circumstances, they could not have been admissible under that rule: Tripodi v The Queen (supra).

12. The evidence would not be admissible against the appellant because it amounted to a confession by Mr Zappia, even if he were a co-participant in the common purpose.  In Bannon vTheQueen (1995) 185 CLR 1 at 22 Dawson, Toohey and Gummow JJ said:

    “As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or a third party.”

13. The evidence would not be admissible to show Mr Zappia’s state of mind at the time that he made the statement.  That was not a relevant fact in issue:  Walton v The Queen (1989) 166 CLR 283 at 288.

14. The trial judge admitted those three conversations on the basis that they disclosed esoteric knowledge on the part of Mr Zappia which was relevant in the case against the appellant because, on the appellant’s account, the appellant and Mr Zappia had not been outside each other’s company over the whole of the relevant period.

15. Evidence of statements made which disclose esoteric knowledge which would implicate the maker of the statement in a crime is admissible as evidence implicating that person in the crime.  The statement does not prove the truth of what was said, but the statement may be used to infer Mr Zappia’s presence at the time when the murder was committed and thereby that the appellant fired the shots because the appellant was in his company.

16. In my opinion the statement made by Mr Zappia to Mr Simoniuk on 3 April reflects esoteric knowledge.  First, he knew that three shots had been fired.  Secondly, he described the wounds of the deceased.  Thirdly, he suggested that the gun jammed.  There was evidence that the third matter is consistent with the live .22 bullet that was found by the police.

17. I think the esoteric knowledge has been adequately proved by the absence of any publicity about how the victims died at the time the statement was made on 3 April.  There is no suggestion that Mr Zappia could have learned of those matters from any source including the police or the cleaners.

18. The conversation on 3 April was, therefore, admissible.

19. However, I do not believe that it was established that the statements made by Mr Zappia to Mr Simoniuk on 8 and 9 July display esoteric knowledge.  More than four months had passed by the time those statements were made and, in my opinion, the evidence did not support a finding that anything contained in those conversations was knowledge which could only have been known to someone who was in the unit at the time that the deceased were killed.

20. In my opinion those statements were not admissible.  However, I think the admission of those statements caused no miscarriage of justice.

21. The statements made by Mr Zappia on 3 April, which are admissible, are in my opinion far more damaging in the case against the appellant than anything said by Mr Zappia on 8 and 9 July.  In particular, nothing said in the conversation of 9 July had not been said in the conversation of 3 April.  That is, there were three shots.

22. I accept of course that the conversation on 8 July, if admitted for the truth of what was said, could establish that Mr Zappia co-operated in the common purpose to the extent that he turned the television up.  However, that in my opinion is not strong evidence against the appellant.  The strong evidence against the appellant are the inferences that may be raised by reason of the admission of the 3 April conversation.

23. In the result, the only evidence which should not have been admitted in my opinion were the conversations between Mr Zappia and Mr Simoniuk on 8 and 9 July.  In my opinion, all of the other challenges made by the appellant to the admission of those other conversations which I have discussed, fail.

    The Proviso

24. The purpose of the proviso is to empower an appeal court where the appellant has demonstrated that evidence has been admitted in error or that there has been a misdirection to the jury or for any other reason, to refuse to allow the appeal and set aside the verdict “if it considers that no substantial miscarriage of justice has actually occurred”: s 353(1) Criminal Law Consolidation Act 1935.

25. In Wilde v The Queen (1988) 164 CLR 365 at 372 Brennan, Dawson and Toohey JJ said:

    “Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.  Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed.”  (Footnotes omitted.)

    Where error has been shown in a trial by judge alone, the onus lies upon the Crown to show that the appellant’s conviction was, on the properly admissible evidence, and upon correct application of the law, inevitable.  However, as Gleeson CJ, Kirby P and Grove J observed in R v Whittaker (1993) 68 A Crim R 476 at 484 “… there is a diminished inclination in recent times to invoke the proviso (even in otherwise very strong Crown cases) where misdirection has been shown upon an important ingredient of the law applicable to the trial …”.

26. The proviso may be applied in a trial by judge alone. Section 353(1) applies to “any appeal against conviction”. That subsection must apply in its entirety to any such appeal. There is nothing to suggest that it has no application unless the trial is by judge and jury. Whilst the proviso was not applied in R v Starrett (2002) 82 SASR 115, it was not doubted that it applied to trial by judge alone.

27. In a trial by judge alone, the judge assumes the jury’s task of finding the facts.  In carrying out that task the judge can only have regard to admissible evidence.  If the judge admits and acts upon inadmissible evidence then the accused is liable to suffer a miscarriage of justice.

28. In a trial by judge and jury, an appeal court will be aware of the evidence which has been admitted.  It will also be aware of the judge’s directions on the law and any directions that the judge has given the jury as to the use to which evidence can and cannot be put.  However, whilst it will assume that the jury has followed the judge’s directions as to the use to which the evidence can be put, the appeal court will not be aware of the manner in which the jury has proceeded and the importance the jury has attached to the various pieces of evidence properly before the court.  By contrast, in a trial by judge alone the appeal court has the benefit of the judge’s reasons in which the judge discusses the evidence and makes findings of fact.  Thus, the appeal court has an advantage it does not have in a trial by judge and jury.

29. It may be argued that, if evidence has been wrongly admitted, the appeal court should send the matter back to the trial judge to reconsider his or her verdict without the impugned evidence.  It may be that in some cases this may be the preferred option.  But I do not think that there is an invariable rule that such a procedure should be adopted.

30. In a case where the evidence which has been admitted could not have led to a miscarriage of justice, and where the appellant has not lost a fair chance of acquittal, and where the appellant would have inevitably been convicted by the trial judge, the proviso might be applied.  In such a case there is no need to return the matter to the trial judge for his confirmation of this court’s opinion. Whether the proviso should be applied depends upon the individual circumstances of each case: Glennon v The Queen (1994) 179 CLR 1 at 10 per Mason CJ, Brennan and Toohey JJ.

31. In my opinion, even though the trial judge wrongly admitted the evidence of conversations of 8 and 9 July, there has been no miscarriage of justice.

32. The case against the appellant was very strong.  As I have already noted, the prosecution case, when closed, was considerably stronger than the prosecution case that was opened.  That was because of the evidence given by Mr Loader as to the appellant’s confession to Mr Loader, which the trial judge correctly admitted.  However, that by itself is not enough: Doggett v The Queen (2001) 119 A Crim R 416. The accused is entitled to a fair trial and, unless this court can reach the conclusion that the trial judge would have inevitably convicted, the appellant the appeal must be allowed.

33. In my opinion, even if the trial judge had not admitted the conversations between Mr Zappia and Mr Simoniuk of 8 and 9 July, the trial judge would have inevitably convicted the appellant and in those circumstances this is a case for the proper application of the proviso: Wilde v The Queen (1988) 164 CLR 365, Driscoll v The Queen (1977) 137 CLR 517.

34. I would dismiss the appeal.