R v Loader - [2004] SASC 234

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LOADER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Anderson)
13 August 2004
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WHAT CONSTITUTES CORROBORATION - ADMISSIONS AND CONDUCT OF ACCUSED
FALSE STATEMENTS - LIES TOLD BY THE ACCUSED - DIRECTION TO JURY.

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTION TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS
The appellant was convicted of murdering two acquaintances – evidence indicated that that the victims were killed in a warehouse owned by the appellant – the appellant and the victims were involved in the cultivation of cannabis in the warehouse and other premises – the appellant denied killing the men and claimed he had no knowledge of the circumstances in which they were killed – the appellant engaged in a course of conduct aimed at creating the false impression that the victims were still alive and that he was unaware of their deaths.
Whether the lies and conduct form part of the circumstantial case – whether the trial judge erred in failing to adequately direct the jury in relation to the appellant’s lies and his concealment or destruction of material associated with the deaths – whether the trial judge erred in directing the jury in relation to the onus and standard of proof and their application to the case – whether the verdicts are unreasonable and/or unsupportable - whether the appellant received a fair trial on the grounds that his counsel failed to follow instructions and made error of judgment in not calling available evidence.
Appeal dismissed.
Leave to appeal on other grounds refused.
Criminal Law Consolidation Act 1935 (SA) s 353(1); Criminal Appeal Act 1912 (NSW) s 6(1), referred to.
R v Dupas [2001] VSCA 109 (3 August 2001); Ibrahim [2003] VSCA 180; R v Wilson, Tchorz & Young (1986) 42 SASR 203; R v ALJ [2000] SASC 357; R v Ngo & Lee [2002] SASC 373, applied.
R v Beech (1978) 20 SASR 410; Mickelberg v The Queen (1989) 167 CLR 259; Lawless v The Queen (1979) 142 CLR 659; Edwards v The Queen (1993) 178 CLR 193; R v Nguyen (2001) 118 Aust Crim R 479; R v Chang [2003] VSCA 149 (22 September 2003); Liberato v The Queen (1988) 159 CLR 507; Selig v Hayes (1989) 52 SASR 169; Stafford v The Queen (1993) 67 ALJR 510; R v Griffs (1996) 67 SASR 170, distinguished.
Barca v The Queen (1975) 133 CLR 82; Peacock v The King (1911) 13 CLR 619; M v The Queen (1994) 181 CLR 487; MFA v The Queen [2002] HCA 53 (14 November 2002), considered.

R v LOADER
[2004] SASC 234
Court of Criminal Appeal: Duggan, Besanko and Anderson JJ

DUGGAN J. The appellant was convicted of the murders of two acquaintances, Terry Comans and John Goodwin. The victims died as the result of extensive head injuries inflicted with a blunt object. Their bodies were found on the side of a dirt road near Wistow on 6 December 2000.
The evidence called at the trial indicated that the victims were killed in a warehouse at Port Adelaide which had been purchased by the appellant. The appellant, Goodwin and Comans were growing cannabis plants in the building at the time of the alleged offences.
The appellant denied involvement in the killing of the men and any knowledge of the circumstances in which they were killed. He said in evidence at the trial that, on the morning of 25 October 2000, he assisted Comans in moving some furniture and belongings into the warehouse at Port Adelaide which was known as “Steamers”. It had been agreed that Comans would live there in order to look after the cannabis plants. The appellant said that later in the day he made contact with Goodwin and gave him a lift from North Terrace in the city to his home at Parafield Gardens. He then drove Goodwin to a crash repair workshop at St Marys so that Goodwin could pick up his vehicle there. The vehicle was not ready and the two men went to the Tonsley Hotel for lunch. The appellant said that after lunch he took Goodwin out to the crash repairer to pick up his car. The appellant left him there and went home for a short time. He then went to the warehouse where he found the bodies of Goodwin and Comans lying inside.
The appellant said in evidence that he did not want to get caught with the cannabis in the building and, for that reason, he moved the plants and equipment out of the premises. Later, he wrapped the bodies in plastic sheets which he purchased for the purpose on that day and dumped the bodies in the location where they were found.
At the trial, the prosecution relied on a large body of circumstantial evidence to prove the appellant’s involvement in the killing of the two victims. The evidence established an association between the three men and the fact that they were involved in the growing of cannabis in the warehouse owned by the appellant. On the evidence which was led at the trial, the appellant was the last known person to see the two men alive.
The prosecution also relied on evidence that the appellant was in financial difficulty at the time of the alleged offences and that he was being pressed for payment of debts. The appellant paid off one of these debts amounting to $2,500 on the evening of 25 October. He paid off another outstanding debt of $1,200 on the following day. Evidence was led to the effect that Goodwin was in the habit of carrying large sums of money in a black bag. The black bag could not be located after his death. There was evidence that the appellant disposed of Goodwin’s car after his death and that there were attempts by the appellant to create the impression that the two victims were still alive.
The prosecution also relied on the evidence of an acquaintance of the appellant, Mario Colangelo. The appellant contacted him at approximately 1.00 pm on 26 October and asked if Colangelo could use his backhoe to dig a hole at Port Adelaide. Colangelo said that, after further conversation, the appellant said he had two bodies in the back of his vehicle and added “I have no choice; it was me or them”. He then showed Colangelo the bodies which were in the back of the appellant’s utility. According to Colangelo, the appellant also said “I done it with a piece of stick”.
The appellant agreed that he had a conversation with Colangelo about burying the bodies and that he showed the bodies to Colangelo. The appellant said he suggested to Colangelo that the bodies could be buried at Port Adelaide or at premises occupied by Colangelo’s brother. He denied saying anything about a piece of stick. He denied saying that he had no choice and that it was him or them. He said he told Colangelo “It could just as easily have been me as them”.
The grounds of appeal complain of the directions given by the learned trial judge in relation to lies told by the appellant and other post-offence conduct by him. Complaint is also made of directions on the onus and standard of proof. There is a further ground which claims that the verdicts are unreasonable or cannot be supported having regard to the evidence.
Post-offence conduct
It is not in dispute that, after the deaths of the two men, the appellant engaged in a course of conduct aimed at creating a false impression that Comans and Goodwin were still alive and that he was unaware of their deaths.
At approximately 4.30 pm on 25 October the appellant attempted to dispose of Goodwin’s car. He contacted an acquaintance, Mr Ross, who conducted a car wrecking business and asked him if he would help to get rid of a car. According to Mr Ross, the appellant said that the person who owned the car was separating from his wife and leaving South Australia. Mr Ross said that the appellant told him “This guy won’t be looking for the car”. He said the man’s wife would not be reporting the car missing for a day or two. Mr Ross agreed to take the car from the appellant.
Then, at 7.27 pm on 25 October, the appellant used Goodwin’s mobile telephone which he had taken from Goodwin’s clothing to telephone the appellant’s own telephone number. The appellant said in evidence that he made the call to provide some evidence to suggest that Goodwin was still alive. He said he wanted to “buy” himself some time and give the impression that the men were missing and not dead so that he could clean up the warehouse.
On the morning of 26 October the appellant went to the Patawalonga Golf Course where he had a booking to play with Goodwin. The appellant made two calls to Goodwin’s mobile telephone from the golf course to give the impression that he was looking for him. After the death of the two victims, the appellant also made telephone calls to Goodwin’s wife and daughter asking if he could speak to Goodwin. He told them that he had received a telephone call from Goodwin at 7.30 pm on 25 October. The appellant told other persons who knew Goodwin that he had gone off to do a drug deal and did not come back.
The appellant was arrested on 16 November 2000 and charged with being in possession of some cannabis plants at an address at Prospect. The arresting police officers were aware of his association with the missing men. The appellant told them that Goodwin had gone to Sydney seven to ten days before in connection with a drug deal. When asked in cross-examination why he did not tell the police officers about finding the bodies in the warehouse he said:
“I was just promulgating the lie that I had been telling for about two or three weeks, that I didn’t know anything about their disappearance. I still didn’t have all the gear out, even at that stage, and I found it really hard to go back to the building. It was obvious to anybody that cannabis was being grown there.”
The accused was interviewed by Major Crime Task Force officers on 6 December 2000. He denied any knowledge of the whereabouts of the two victims.
The question as to how the post-offence conduct should be left to the jury was discussed by the trial judge with counsel prior to addresses. All agreed that it would be preferable not to raise the issue of consciousness of guilt as such with the jury, but that the post-offence conduct should be treated as items of circumstantial evidence. Senior counsel for the appellant said:
“MR KOURAKIS:                 I am largely in agreement with what my friend and your Honour has said about the matter. I have two qualifications: firstly, as to the concept of leading the lies as circumstantial evidence along with his conduct generally I agree, but I make the submission which your Honour has already recognised in what you have said in that it would then become important to give the circumstantial evidence direction along the lines of although the inferences can be drawn from these pebbles or events, there cannot be a conclusion of guilt unless those inferences remove any rational hypotheses consistent with innocence. So that direction is going to become quite important.
HIS HONOUR:  And it can be now in this case, which distinguishes this case from others, it has to be put in a particular way, which is that the issue in this case is whether all this conduct has occurred because he disposed of the bodies or whether it occurred because he killed these men. Unless the former can be excluded beyond reasonable doubt, then an inference of guilt can’t be drawn.
MR KOURAKIS:        It is often. In fact there are some comments in the cases that there is no need to give that sort of circumstantial direction and explain that sort of thing in some cases but this is certainly the case where it does.”
The case against the appellant was almost entirely circumstantial in nature. The exception was the alleged discussion with Mario Colangelo, the inculpatory aspects of which were challenged by the defence.
The trial judge summed-up to the jury in a manner appropriate to a case dependent largely upon circumstantial evidence. He explained the nature of circumstantial evidence and the onus and standard of proof relevant to its consideration. On a number of occasions throughout the summing-up he told the jury that each individual item of circumstantial evidence had to be proved by the prosecution if it was to be taken into account in the case against the appellant.
At an early stage in his directions on circumstantial evidence he said:
“You must remember, ladies and gentlemen, that you cannot draw an inference of guilt, or any inference at all unfavourable to an accused person, from a fact or circumstance which you have not found proved. That is the position when the Crown asks you to draw an inference from a fact or circumstance.
When the accused asks you to draw a circumstance (sic) from a fact or circumstance which is, or may be, consistent with innocence, you do not have to find that fact or circumstance proved. It is enough if, after considering the matter, you consider that the existence of the fact or circumstance is a reasonable possibility.
In the end, the process is not so much of assessing the weight of an individual piece of evidence, although that is a necessary part of the process, but of considering the united force of all of the facts and circumstances which you consider to be proved, and of drawing commonsense inferences from those facts and circumstances.”
The trial judge then dealt with the items of circumstantial evidence individually. First, he summarised the evidence of the relationship between the appellant and the deceased and the events leading up to the disposal of the bodies. He then said:
“The next matter is the accused disposing of the bodies which, he admits, and you have heard the evidence of what he did to achieve it, and the lengths that he went to. He bought the wrapping. That was not sufficient, so he used some that he had in his warehouse, and some in his shed, including the plastic wrapping, and that he told you how he did it, how he put the bodies in the vehicle and, as I said earlier, whatever you make of Mr Mario Colangelo’s evidence, the accused was there with these two bodies for the purpose of disposing of them.
You will take into account what Mr Pearce and Mr Kourakis have put to you about this matter. The defence point is that the accused would hardly go to Mr Colangelo seeking this sort of assistance if he was actually the murderer. It is more likely that he would go and seek his assistance if he was merely trying to dispose of bodies who had been killed by someone else. Well, you will give that submission its due consideration, along with all of the others that have been made.
So, ladies and gentlemen, just going back a bit now, and coming forward again. There is the connection of these three men with Steamers which is the place where they died, there is the conduct of the accused on the day that they died, there is the short period of time when the accused and the two men were at the building meaning that, on any version, the accused and the two men were at the building at around the same time. There is the access to money and there is the accused disposing of the bodies and the laying of the trail.
As I keep saying to you, so that you do not overlook it or not give it its due weight. What is put to you by the accused is that all of this is consistent with the disposing of the bodies and not just murder.”
Shortly thereafter he said:
“Now, I want to deal with a new topic of circumstantial evidence. It is his conduct after the disposal of the bodies. It is the accused’s conduct and his statements from that time onwards.
It is the prosecution case that the accused set about a course of conduct to conceal his connection with the disappearance of the two men by deception, lying and misleading various people, including the police, and from this evidence you should draw the conclusion that he did so because he was involved in their disappearance.
On the defence case, it is undoubtedly true that the accused did behave in this way, perhaps not entirely in every respect as is alleged by witnesses, but the general thrust of the prosecution case as to the facts is accepted by the accused, not because he committed the murders, but because he committed a serious crime in, as he put it, interfering with a crime scene and disposing of the bodies illegally. Also, he told you that he wanted to protect Rocco Colangelo.
Sometimes the conduct of a person after a crime has been committed does provide proof that he or she is the culprit. Whether you draw that inference in this case is a matter for you, and you will remember my directions to you that you cannot draw an inference of guilt beyond reasonable doubt if there is some other explanation consistent with innocence which cannot be excluded beyond reasonable doubt.
I mention the evidence of what the accused did and said after he disposed of the bodies, which you should consider. I have already mentioned what I have called the ‘ruse’, being the bogus telephone calls on the night of the 25th and the morning of the 26th. You have heard that the accused told lies to various people, including the police. I shall come back to that evidence in a moment. Before I remind you of that evidence, I want to give you a direction about lies, and the use that may be made of them, and the use that cannot be made of them.
Generally speaking, the fact that an accused person tells a lie is not evidence of his guilt of the crime charged. If an accused tells a lie in his evidence, then the effect is as if he has given no evidence at all on that point. Let me give you an illustration.
If you were to conclude that the accused told you a lie when he said he had money in the freezer at his home and had taken $4,000 out of the freezer, then the effect would be that he had given no evidence on that point at all. I am not saying anything about what conclusion you should reach about that, I merely mention that matter as an illustration, because it is a rather simple illustration for these purposes.
Lies, including lies told out of court, that is away from the witness box, to someone, including the police, may affect the credibility of the accused as a witness in your eyes, just as lies told in the witness box may affect the credibility of the accused as a witness, so that you may be less willing to accept his evidence about other matters. However, ordinarily, a lie told by an accused is not, in itself, evidence of guilt. In giving you those directions, I am not saying anything about what conclusion you should reach about whether admitted lies told by the accused affect your conclusion of his credibility, reliability and honesty as a witness. That is a matter for you.
So you must not reason that because the accused has told lies, he must be guilty of the charges of murder. To do so would be using the lies impermissibly. The lies told by the accused are part of his conduct in trying to deflect any suggestion that he might have been involved in the disappearance of the two men, and must be considered as part of his conduct after their disappearance as circumstantial evidence. That conduct, along with the other facts and circumstances, will have to be considered by you to see if you can safely draw the inference that the accused committed the murders.”
Various instances of deception were referred to by the trial judge including the lies told by the appellant to the police. On this topic he said:
“Ladies and gentlemen, the last of these matters is what the accused said to the police. He admitted to you when he gave his evidence that he did give misleading information to the police, that he did tell lies, and that his case is that by this time he was locked into this deception, and so he continued it with the police.”

After summarising these aspects of the evidence the trial judge said:
“Ladies and gentlemen, it is for you to say what you make of all of that evidence. I repeat my direction to you. You must first decide what evidence you find acceptable, and having reached that conclusion, you will then decide whether the accused was giving false information to mislead and deceive various people, and to direct others, including the police, in a direction away from him in order to conceal his involvement in the disappearance of the two men and, on the prosecution case, his involvement in their murders.
The defence case is that the accused did tell lies, he did mislead various people, he did distance others, including the police, from him, not because he was involved in the murders, but because he had interfered with the crime scene, and he had disposed of the bodies.”
The jury were then reminded of the major features of the defence case up to the point where the bodies were disposed of and the cannabis removed from the warehouse. The trial judge continued:
“He had nothing to do with the murders. He searched the building, found the window open. He found the fire door open, and his pinch bar missing, the frying pan which could be the weapon, and that his office had been rifled or gone through. He obtained the advice or direction from Rocco Colangelo, and he set about on a course of conduct which involved the disposal of the bodies, and the removal of some, if not all, of the cannabis.
Thereafter, he continued the lie that he perpetrated. It changed from time to time perhaps from not knowing anything about what Mr Goodwin and Mr Comans were doing on the 25^th, to the buying of the large amount of cannabis and, perhaps, something going wrong with during that buy.
That is the bare bones of the accused’s case, and if you regard that as reasonably possible, then the Crown would not have proved its case beyond reasonable doubt, and the accused would be entitled to be acquitted of the two charges of murder. That is his evidence in a very brief summary.”
The appellant’s explanation for the post-offence conduct was the subject of further comment towards the end of the summing-up:
“He started a lie on 25 October, and once he started, he was stuck with it. He embellished it, and he made it even more deceptive and more misleading as he went along, not because he had committed the murders, but because he had done a terrible thing, he had interfered with the crime scene and he had disposed of the bodies.
When you consider the case, you should consider carefully how things developed, how it started and how it finished and what was the nature of the concealment, the deception, the misleading and the lies.”
Finally, his Honour said:
“Let me go back to something I said to you at the beginning of my summing up on circumstantial evidence.
You must reach your conclusions about each of the facts and circumstances. If you do not find a fact or circumstance proved after considering all of the evidence, push it away and do not pay any further attention to it. When you have made your decision about each fact and circumstance, then look at the combined force of those facts and circumstances, and then reach your conclusion. Are you able to say that it has been proved beyond reasonable doubt that the accused committed these murders? If there is any reasonable possibility consistent with his not having committed these murders, then you will have not found the charges proved beyond reasonable doubt. If, after considering all of the evidence, you reach the conclusion that it is possible, reasonably possible, that he did what he did in order to merely dispose of the bodies, and he was not involved, it has not been proved that he was involved in the murders, then you will find him not guilty of murder. But, if you are satisfied beyond reasonable doubt that he did commit the murders, then it is plainly your duty to say so.”
The first ground of appeal asserts that the trial judge erred “in failing adequately to direct the jury concerning the telling of lies by the appellant and his concealment or destruction of material associated with the deaths of the deceased”.
First, it was argued that, in so far as the post-offence conduct consisted in the telling of lies, those lies did not have relevance beyond that of credibility.
The lies were part of a series of actions and statements by the appellant aimed at creating the impression that the two men were still alive and at distancing himself from their disappearance. These statements and actions included getting rid of Goodwin’s car, ringing his telephone number, making calls from Goodwin’s mobile telephone to the appellant’s telephone, asking for Goodwin at his home, going to the golf club to give the impression that he expected Goodwin to be there, giving Comans’ name when arranging for a locksmith to change the locks at Steamers, suggesting that Goodwin might have met foul play wen he was picking up some drugs and telling the police he did not know the whereabouts of the two men.
The events after the disposal of the bodies were referred to collectively during the trial as “the false trail evidence”. Conduct after an offence designed to create the impression that an offence has not been committed or that the accused had no connection with the offence constitutes a well known category of circumstantial evidence in criminal cases: Wills on Circumstantial Evidence (7^thed) pp 147-157.
In my view, it was appropriate for the trial judge to invite the jury to consider these actions and statements of the appellant as part of the body of evidence from which they were entitled to draw an inference of guilt. They were actions clearly intended by the appellant to distance himself from the disappearance of the two men. The reason why he wished to distance himself in this way was a matter for the jury. However, it was open for the jury to infer that he did so because of his involvement in the murders. To the extent that lies were involved, their relevance was not restricted to mere credibility; they could be used as part of the circumstantial case to establish positive evidence of guilt.
An alternative argument advanced by the appellant was that, if the post-offence conduct was probative of guilt, the directions given in relation to it were inadequate. Reliance was placed on the following well known passage from the judgment of Deane, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 at 210:
“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest (See M v R (unreported; SA Court of Criminal Appeal; 18 August 1993; pp 4-5)). And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it (See eg. Credland v Knowler (1951) 35 Cr. App. R. 48; Tripodi v The Queen (1961) 104 CLR 1, at p 10; Reg. v Buck (1982) 8 A. Crim. R. 208 at p 214; Reg. v Preval, [1984] 3 NSWLR 647 at pp 650-651; Reg. v Evans (1985) 38 SASR at pp 348-349; People v Showers (1968) 440 P. 2d 939, at p 942) and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt (See, eg, Lonergan v The Queen [1963] Tas S.R. 158, at p 160; Broadhurst v The Queen, [1964] AC at p 457). A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”
There was no suggestion in the address of the prosecutor or in the summing-up that the post-offence conduct could stand on its own as an implied admission of guilt. However, the evidence answers to the description applied by Winneke P to the post-offence conduct in R v Dupas [2001] VSCA 109 (3 August 2001) at [26]:
“In a case such as this one, where the Crown was seeking to establish the applicant’s involvement in the crime through the combined force of a series of circumstances which, in the Crown submission, excluded any hypothesis reasonably consistent with innocence, it will not often be the case that any one particular evidential circumstance will, by itself, amount to an implied admission of guilt by the accused of the crime with which he is charged. Whether the evidential circumstance comprises a statement made to the police or some other conduct of the accused, its probative strength will ultimately depend upon the combined force of all the circumstances of which it forms part R v Bogunovic [1999] VSCA 133 at [39].”
This was the approach which the trial judge took to the post-offence conduct in the present case.
Nevertheless, it remained necessary to provide instruction to the jury on the circumstances in which the evidence could be used as part of the circumstantial case. Lies were a part of the post-offence conduct, but the requirement to consider the purpose of the appellant’s statements and actions and the possibility of an explanation other than guilt applied to all aspects of the appellant’s post-offence conduct relied on by the prosecution. The task of the trial judge was to tailor a summing-up which was appropriate to the particular circumstances of the case. Whereas Edwards’ case provides a guide to the instruction to be given to the jury, it was appropriate to have regard to the fact that this was not a case in which the prosecution was relying on a lie as indicating, by itself, an implied admission of guilt. Instead, as has been pointed out, the post-offence conduct was part of the circumstantial case against the appellant.
The post-offence conduct was dealt with in the summing-up against the background of extensive reference to that issue in the addresses of counsel. The prosecution relied upon the conduct as tending to establish that the appellant had killed the victims as opposed to merely finding their bodies. The case for the appellant was that he had been faced with a dilemma when he discovered the bodies in a warehouse in which he had been cultivating marijuana with the victims. The dilemma was exacerbated after he disposed of the bodies. He admitted that he had deliberately set up a false trail to distance himself from the killings, but he did so, not because he had been involved in the killings, but because of the dilemma occasioned by finding the bodies and then disposing of them.
Leaving aside the use to which the evidence was to be put, the post-offence conduct was not a complex issue. The only controversial aspect was the ultimate reason or purpose for the conduct. In the case of a lie relied upon, by itself, to establish consciousness of guilt the enquiry is directed towards the purpose for which the lie was told and what it reveals of the accused’s state of mind. In the present case, the relevant consideration was whether the appellant told lies and engaged in conduct to distance himself from the incident because he had committed the murders, not because he found himself in a predicament by reason of the presence of the bodies in the warehouse. These matters were addressed in the summing-up.
The trial judge instructed the jury that, before they drew any inference unfavourable to the appellant from the post-offence conduct, they would have to be satisfied of that inference beyond reasonable doubt and that they were not to draw such an inference if there was some other explanation consistent with innocence which had not been excluded beyond reasonable doubt. This direction was reinforced with similar directions in the course of the summing-up. The trial judge related it to the particular inference argued for the prosecution and the innocent explanation put forward by the appellant.
In the light of these directions, it is my view that it would have been unnecessary and confusing to add a further direction on consciousness of guilt of the type referred to in Edwards’ case. (cf. R v Dupas at [30]). The impermissible reasoning which the Edwards direction is designed to avoid was addressed in the summing-up. The jury were told not to infer guilt from the simple telling of a lie. There was no need to refer to the fact that there could have been a number of reasons for the telling of a lie apart from the realisation of guilt. In this case the appellant had advanced specific reasons for telling the lies and it was not essential to refer in a general way to the fact that people might lie for all sorts of reasons.
It was implicit in the directions that the jury would have to find that the lies and conduct took place and that they were deliberate. In any event, these aspects were conceded by the appellant.
In the circumstances, the trial judge was able to give a direction which was more specific than is often the case with an Edwards direction. The appellant admitted the post-offence conduct, but gave a reason for it which was consistent with his innocence on the charges of murder. The circumstantial evidence direction ensured that the appellant’s explanation was before the jury and it was made clear that the post-offence conduct could not be used against the appellant unless that explanation was excluded beyond reasonable doubt. If the explanation was rejected, it was open to the jury to infer that the appellant embarked on a trail of deceit because he was covering up his involvement in the crimes with which he was charged. But the jury were told that such an inference was not to be drawn unless it was established beyond reasonable doubt.
Mr Peek QC, for the appellant, placed considerable reliance on the decision in R v Nguyen (2001) 118 Aust Crim R 479. The appellant in that case was charged with murdering his stepson who was killed by a shot fired from a shotgun held by the appellant. The appellant hid the gun shortly after the shooting and then disposed of it. He told the police that some unknown intruder had been responsible for the shooting and not him. He encouraged his wife and stepdaughter to make similar allegations.
At trial, the appellant admitted holding the rifle at the time of the shooting, but he claimed that the firing of the rifle was accidental. He said the hiding of the rifle and the lies resulted from panic and shame. In his address, the prosecutor appeared to rely on this post-offence conduct as going beyond the issue of credibility. He suggested that it could be used as evidence that the appellant had the necessary intent for the crime of murder.
The trial judge confined his directions on lies to the issue of credibility. An Edwards direction was not given. The Court of Appeal held that the jury had been invited to use the conduct as evidence of guilt and the Edwards direction should have been given. In those circumstances there was a real risk that the evidence was used in an impermissible manner by not taking into account the considerations referred to in Edwards.
In my view, the decision does not assist in the present case. Here there was a particular use to which the post-offence conduct could be put and the jury were given instructions in relation to it. I will not repeat the reasons why I have suggested that the trial judge’s directions were adequate in ensuring that the evidence was not misused.
R v Chang [2003] VSCA 149 (22 September 2003), which was also relied upon by the appellant, is similar in a number of respects to R v Nguyen. The appellant was charged with murder. Self-defence and intent were the central issues at the trial. The prosecution relied upon post-offence conduct comprising a series of lies and deceitful acts.
The trial judge took the view that only one lie was capable of being considered as evidence of consciousness of guilt and an Edwards direction was given in relation to that lie. No such direction was given in relation to the other lies or conduct. The Court of Appeal disagreed with the trial judge on the relevance of the latter conduct and held that it was capable of being used as evidence of consciousness of guilt. The prosecutor’s opening and closing addresses suggested that the prosecution was relying on the post-offence conduct as evidence of guilt. In the absence of directions on other possible explanations for the conduct and the other aspects of the Edwards direction the appeal was allowed.
The case is distinguishable from the present case where these issues were canvassed with the jury, albeit in the context of directions on circumstantial evidence.
Mr Peek raised a further issue on the topic of lies. He pointed out that, the prosecutor in his final address to the jury, referred to various categories of lies told by the appellant. The jury were invited to accept the evidence of prosecution witnesses whose evidence conflicted with the appellant and to reject the evidence of the appellant as being untruthful. There were other instances where the prosecutor simply invited the jury to find that a lie had been told by the appellant whose evidence on the issue should be rejected. It was then pointed out that the prosecutor suggested the appellant lied in the case of his business dealings. Finally, the prosecutor referred to the lies told by the appellant after he had disposed of the bodies.
Various extracts from the prosecutor’s address were brought to our attention, but Mr Peek attached most significance to the following remarks by the prosecutor:
“So, members of the jury, you have a plethora of, lies told by the accused at every twist and turn.
You then may wonder ‘Well, what do we make of that?’ Just because someone lies doesn’t mean they are guilty of an offence, but the lies can be used in this case in a particular way. The prosecution case is a circumstantial one, as are, you might think, many prosecutions. Crime, by its very nature, is often committed surreptitiously, away from the prying eyes of others. Invariably, you might think, there are no witnesses to crime. It isn’t good practice to commit a serious crime in front of large numbers of people because they can tell others what they have seen. You might think in this court a good many cases are based on what is known as ‘circumstantial evidence’.
Circumstantial evidence, as his Honour will explain to you, can be strong or weak. It depends on the circumstances, those circumstances, the objectives or surrounding facts from which you can draw inferences, and it’s the combined force of all those circumstances, the surrounding facts, when added together, that give a case its strength or its weakness.
An analogy that is sometimes used is that a circumstantial case is a bit like the strand of a rope. When you cut a piece of rope across its length, and you look at the end of it, you see a lot of little threads and strands. Each thread or strand of that rope on its own is not very strong, but it’s the combined force of all of those threads or strands woven together that gives the rope its strength. So, too, with a circumstantial case. It’s the combined force of all of the pieces of evidence, when added together, that gives a case its strength.
Here, those lies, that misinformation and the deceptive conduct, are an example of those pieces of circumstantial evidence. The fact that the accused gets rid of the bodies is a piece of circumstantial evidence from which you can infer he was the killer. On its own, it wouldn’t necessarily prove that, but then you add to it his lies. Added to one lie, it becomes a strong inference; if you add it to a series of lies, it becomes much stronger again. If you add it to the background evidence that I went through this morning, the financial constraints the accused was under, you then start to get a picture of what was really going on. As I say, it’s the combined force of all of those pieces of evidence.”

The appellant complained that the prosecutor made no distinction in his address between the post-offence conduct and lies in the other categories to which reference has been made. According to the argument, the remarks made by the prosecutor about the use of lies as circumstantial evidence could have been interpreted as referring to all categories of lies told by the appellant.
I do not accept that the prosecutor’s remarks would have been so understood. It is true that the prosecutor referred to the different categories of lies in his final address. However, the remarks which he made in the passage cited above followed an extensive analysis of the appellant’s post-offence conduct. Read in the context of what the prosecutor said before and immediately after the above remarks, I am satisfied that the jury would have understood him to be referring to the post-offence conduct. This could only have been confirmed in the minds of the jury when the trial judge identified the lies and conduct which could be considered as part of the circumstantial case and distinguish them from lies going only to credibility.
The objections which have been raised on appeal in relation to the treatment of the post-offence conduct were not raised at the trial. Senior counsel for the appellant specifically agreed with the approach suggested by the trial judge. Furthermore, in his address to the jury defence counsel said:
“Can I turn to the question of lies? It is right that those lies are available for your use as circumstantial evidence, that’s clear, but circumstantial evidence is simply evidence from which you might tend towards a conclusion of guilt. Circumstantial evidence can only prove guilt if there is just no other possibility and, in this case, in the light of the lies which are suggested and put before you as circumstantial evidence, the question still remains: why were they told.”
Although defence counsel might agree with the manner in which an issue is to be left to the jury by the trial judge, this does not prevent interference by an appellate court in a case where there is a real risk of a miscarriage of justice. However, the attitude of defence counsel at the trial is relevant in the assessment as to whether there was such a risk. I respectfully agree with the remarks made by Winneke P in Ibrahim [2003] VSCA 180 at [50] when he said:
“It is important when considering arguments on appeal, especially when the trial was conducted by different counsel to those arguing the appeal, that the reality of the trial not be lost, and that the issues on which battle was joined before the jury are not treated as of mere passing relevance to an academic appellate debate.”
(See also R v Dupas,R v Murphy [2004] VSCA 23 (5 March 2004) at [68] and R v Franklin [2001] VSCA 79 (28 May 2001) at [118]).
In all the circumstances, I am of the view that there was no real risk that the evidence as to the post-offence conduct, including lies, was put to an impermissible use by the jury. Furthermore, it is my view that the distinction between lies told as part of the “false trail” and other lies which were relevant only to credibility was made clear to the jury.
The onus and standard of proof
The second ground of appeal states that the trial judge erred in directing the jury in relation to the onus and standard of proof and their application to the present case.
According to the first argument raised under this heading, the trial judge was required to instruct the jury that, even if they found that the appellant was a person of no credibility, they were nevertheless required to find beyond reasonable doubt that he had committed the murders before returning verdicts of guilty and that they were required to so find without reliance upon the fact that he had told lies.
Reliance was placed on a number of authorities concerned with conflicting evidence which caution against instructions to the jury suggesting that the guilt of the accused is to be determined by making a choice between the prosecution and defence evidence. In Liberato v The Queen (1988) 159 CLR 507 at 515, a case involving the conflicting versions of the accused and the complainant in a rape case, Brennan J said:
“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt that the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”
The appellant also relied on the following passage from the judgment of Jacobs J in Selig v Hayes (1989) 52 SASR 169 at 171:
“There is not the slightest doubt that the fact that the appellant lied to the police when they first approached him had a profound influence on the learned special magistrate’s decision. The risk of error in treating credibility as the only real issue was aptly stated by von Doussa J in Harris v Mill (unreported, Supreme Court, SA, von Doussa J, 17 April 1988) in a passage which I gratefully adopt:
‘In a sense the key issue in many trials is credibility, but to pose the question as ‘who to believe’ is apt to be misleading and to cause a tribunal in a criminal trial to fall into error of the kind exposed in R v Calides (1983) 34 SASR 355. There is a very real risk that the inquiry will become: ‘Which of the parties giving the competing stories is to be preferred.’ The preference of the victim’s evidence to that of the defendant, even where the defendant’s evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant’s evidence does not provide positive proof of guilt. The preference of the victim’s evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim’s evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant’s guilt.’ ”
In my view, there was no danger of the jury in the present case reasoning in the impermissible way referred to in these authorities. I have said that the case against the appellant was based mainly on circumstantial evidence. It is true that there were differences between the evidence of the prosecution witnesses and the evidence of the appellant in respect of some issues. However, the cases relied upon by the appellant are distinguishable from the present case in that they are concerned with the approach to be taken by the jury in relation to competing versions on the fundamental issue or issues in the case. In the present case, the jury were given adequate directions on the application of the burden of proof in a circumstantial case. In accordance with those directions, they were entitled to take into account the post-offence conduct, including lies, as items of circumstantial evidence. However, the problem of “making a choice” between competing versions in the context of the cases referred to above did not arise. The directions now argued for by the appellant were not required.
The second aspect of this ground of appeal arises out of the following direction by the trial judge at [37]:
“Now, ladies and gentlemen, I want to mention the evidence of the accused. He has given evidence on oath and, thereby, submitted himself to cross-examination, and you must give careful consideration to all that he has told you. You may feel that he was under strain giving evidence. You may feel that other witnesses in the case, Mrs Goodwin, perhaps, or Ms Goodwin or Mr Comans, were under strain when they gave evidence. However, the accused, unlike any other witness who gave evidence at this trial, is charged with serious crimes. He is the only witness who is on trial. I suggest that you should keep that in mind when you assess his evidence, his credibility, and the explanations he has made to you.”
It was asserted on behalf of the appellant that these remarks were based on the process of reasoning criticised in Stafford v The Queen (1993) 67 ALJR 510 where the court said:
“It follows from the decision of this Court in Robinson v The Queen [No 2] (1991) 65 ALJR 644, that a trial judge should not direct the jury that the ‘interest’ of an accused in the outcome of his or her trial is a ‘factor’ to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness.”
Stafford’s case was referred to in R v Griffs (1996) 67 SASR 170 at 176. In that case, the trial judge, when discussing the evidence given by the accused, said:
“Did he have a reason for making false denials to this Court, namely, to avoid responsibility for what he knew he had done? Did the desire to avoid the consequences of a conviction for rape lead him to respond to the allegations in the way he did?”
It was held that the direction was irregular. Cox J said at 176:
“It seems to me that what the learned judge said invited the jury to assess the appellant’s evidence with his obvious interest in the outcome of the trial in mind.”
The direction complained of in the present case did not involve any comment on the motive of the appellant. The trial judge did no more than refer to the strain which a person charged with an offence may be under when giving evidence. The jury were entitled to take that aspect into account when assessing his evidence. It is apparent that the direction was intended to encourage an assessment of the appellant’s evidence which was fair to him by adverting to the pressures he might have been under in the witness box. In my view the jury would have so understood it.
Next, reliance was placed on a combination of directions by the trial judge in support of the argument that the jury had been misdirected on the burden of proof. Although the passages were relied upon in their combined effect, the appellant’s counsel placed particular emphasis on the following passage:
“[462]Now I say nothing to you about what conclusions you should reach because they are matters for you, but I do want to say this to you: your decisions must be made on the evidence, they must not be made on speculation. It would be quite wrong, for instance, to invent a motive by way of speculation, and then attribute it to the accused. It would be equally wrong to invent a motive by speculation on the part of somebody else, for instance Mr Gatenby, or people in Sydney, or people somewhere else. There is no evidence about any of those matters, except the evidence of Mr Gatenby that he would not disclose names, and had a fear of drug people in Sydney, but there is no evidence that links that sort of fear to this case. I am not suggesting that you ignore that evidence of Mr Gatenby because it tells you something, if you accept it, about him and, perhaps, about that sort of illegal criminal activity, but what I am saying is that you must not invent something. Your role, as I put to you at the beginning of this summing up, is to make your decisions on the evidence, and only on the evidence.
[463]Let me go back to something I said to you at the beginning of my summing up on circumstantial evidence.
[464]You must reach your conclusions about each of the facts and circumstances. If you do not find a fact or circumstance proved after considering all of the evidence, push it away and do not pay any further attention to it. When you have made your decision about each fact and circumstance, then look at the combined force of those facts and circumstances, and then reach your conclusion. Are you able to say that it has been proved beyond reasonable doubt that the accused committed these murders? If there is any reasonable possibility consistent with his not having committed these murders, then you will have not found the charges proved beyond reasonable doubt. If, after considering all of the evidence, you reach the conclusion that it is possible, reasonably possible, that he did what he did in order to merely dispose of the bodies, and he was not involved, it has not been proved that he was involved in the murders, then you will find him not guilty of murder. But, if you are satisfied beyond reasonable doubt that he did commit the murders, then it is plainly your duty to say so.”
According to the argument, the trial judge was putting to the jury that the defence was required to establish a reasonable possibility consistent with the evidence, instead of directing their attention to whether there was, in all the circumstances and upon the whole of the evidence, a reasonable hypothesis consistent with innocence.
Mr Peek drew attention to the following passage from the judgment of Gibbs, Stephen and Mason JJ in Barca v The Queen (1975) 133 CLR 82 at 104:
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King (1911) 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen (1963) 110 CLR 234 at p 252: see also Thomas v The Queen (1960) 102 CLR 584 at pp 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in the evidence’. (Peacock v The King (1911) 13 CLR at p 661). These principles are well settled in Australia.
……
The remarks made by the learned trial judge when he intervened at the conclusion of the address by defence counsel could only have been understood as meaning that it would be wrong for the jury to accept that the evidence was consistent with the hypothesis that the murder had been committed by Carmello Barca. In other words, the jury were in effect directed to reject one of the main arguments put forward on behalf of the defence, and to decide one issue of fact in favour of the prosecution. This was a misdirection. It was for the jury to decide for themselves whether they were satisfied that the evidence as a whole was inconsistent with the hypothesis that Carmello Barca and not the applicant had murdered the deceased. Of course it was not proved that Carmello Barca had committed the murder. Moreover, the learned trial judge was perfectly correct in saying that there was no evidence that the applicant took the deceased to Carmello Barca’s house or that Carmello Barca fired the shots that killed the deceased. However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.”
In the passage at [462], the trial judge instructed the jury that a motive, whether suggested by the prosecution or the defence, was not to be attributed simply by way of speculation. The trial judge then returned to the topic of circumstantial evidence which he had earlier explained to the jury in unexceptionable terms. Included in that direction was the following instruction:
“When the accused asks you to draw a circumstance from a fact or circumstance which is, or may be, consistent with innocence, you do not have to find that fact or circumstance proved. It is enough if, after considering the matter, you consider that the existence of the fact or circumstance is a reasonable possibility.”
It was argued by the appellant that, when the trial judge gave the directions at [464], the jury would have understood them to refer to matters which had to be proved by the appellant. Attention was drawn to the juxtaposition of the discussion in relation to motive at [462] and the directions at [464]. However, the trial judge explained at [463] that he was returning to the earlier discussion on circumstantial evidence and he proceeded to repeat the essence of directions given previously. The jury would have appreciated that, when the judge spoke of putting a circumstance aside if it was not proved, he was referring to those circumstances which formed part of the circumstantial case put forward by the prosecution. There was no suggestion in these remarks that the reasonable possibility consistent with innocence referred to in the passage had to be established by the defence.
The references to speculation did not, as was suggested by the appellant’s counsel, have the effect of excluding an hypothesis put forward by the defence from the jury’s consideration. In Barca’s case the court reiterated the observation in Peacock v The King (1911) 13 CLR at 461 that “an inference to be reasonable must rest on something more than mere conjecture”. In my view, the trial judge was saying no more than that when he told the jury that they were to base their decision on the evidence and that they must not “invent something”. Any suggested hypothesis must be consistent with the evidence and the jury were told this when the judge said:
“If there is any reasonable possibility consistent with his not having committed these murders, then you will have not found the charges proved beyond reasonable doubt.”
The appellant criticised another passage in the summing-up in this context. The trial judge referred to an immunity which had been given to a witness, Mr Gatenby. He said:
“There is something else that I want to say to you about the immunity. It must not be used for an improper purpose in your considerations. The granting of an immunity by the Director of Public Prosecutions is not evidence that he, the police, or anyone else, believes or suspects that Mr Gatenby has committed any offence, or is or is not in any way implicated in the murders, and it must not be used by you for that purpose. Even if there was evidence of any belief or suspicion on the part of the Director or the police or anyone else, that would be entirely irrelevant to the matters which you must decide.
As I have said, you must reach your verdicts based upon the evidence in the case against the accused, and not on the opinion, suspicion or belief of someone else.”

This comment must be read in the context of the discussion in the paragraphs immediately preceding it. There the trial judge said:
“I need to say something further to you about Mr Gatenby and his evidence. There is an additional reason why you should approach his evidence with care, I would say with great caution. Not only was he involved in the cannabis drug trade in a major way, but he received an immunity from the Director of Public Prosecutions, an immunity from prosecution in this State for the many cannabis offences which you may well accept he acknowledged having committed. It is for you to say whether you accept his evidence and whether he has told you the whole truth, but I expect you’ll conclude that he was involved, as I say, in the cannabis trade in a major way. So his criminal involvement is one reason why you must take great caution of his evidence.
The other is the immunity. He has been able to make an arrangement with the Director of Public Prosecutions so that he will not be prosecuted for cannabis offences in this State. However, that immunity is nothing more than what it says. He cannot be prosecuted for any offences of that nature committed in this State, come what may. If he does not tell the truth, as you heard when the immunity was read to you, he can be prosecuted for not telling the truth. That is what the immunity means. He has not received any immunity from prosecution for the murders.
It might have crossed your minds that a person, in order to get an immunity, might create a story which is acceptable to the authorities. I do not say for one moment that that is what has happened here, that is entirely a matter for you. I merely mention these matters so that you bring them to account when you consider the evidence of Mr Gatenby. Does the immunity cause you to doubt his evidence? Has he given false evidence to improve his position with the police so that he would not be charged, without the police, of course, knowing anything about that? Is that a reasonable possibility? If so, you must not act upon his evidence adverse to the accused.
On the Crown case, the immunity was given in order to enable Michael Gatenby to give truthful evidence of all that he knows about the murders and the cannabis trading.”
It appears from these directions, that the jury were given an adequate warning on the significance of the immunity when considering this witness’s evidence. The fact of the immunity was relevant to the jury’s consideration, but speculation on the belief of the authorities as to whether Gatenby had been involved in the murders was, as the jury were told, an irrelevant consideration.
At the hearing of the appeal, the court was asked to read these passages in conjunction with a further direction at [15]:
“Your decisions must be made in a reasonable and sensible way. If, at the end of the case, you are left with a reasonable doubt about the guilt of the accused on one or both of the charges, or indeed on the alternative charges which I shall later mention to you, a doubt reasonably arising on the evidence, then you must give him the full benefit of that doubt and find him not guilty of the charge or charges as the case may be.”
I respectfully agree with the view expressed by King CJ in R v Wilson, Tchorz and Young (1986) 42 SASR 203 that, when explaining the onus and standard of proof to juries, it is unwise to go beyond “conventional formula that the burden is on the prosecution to prove the charge and each ingredient of the charge beyond reasonable doubt”. I think it is preferable not to refer to “a doubt reasonably arising on the evidence” but, of itself it is not a misdirection (cf. R v ALJ [2000] SASC 357; R v Ngo & Le [2002] SASC 373). I am satisfied that, in the context of the directions in the present case, the jury were not misled. Nor do I think this adds any support to the appellant’s argument that an onus was placed on the appellant or that these directions detracted from the subsequent directions on the onus and standard of proof in relation to circumstantial evidence.
After considering all of the passages in the summing-up referred to by the appellant’s counsel in his written and oral submissions, I am satisfied that the ground of appeal complaining of the directions on the burden of proof should be dismissed.
Unreasonable and unsupportable verdicts
The final ground of appeal complains that the verdicts are “unreasonable and/or unsafe and/or unsatisfactory and/or it would be dangerous in the administration of criminal justice to allow them to stand”. The ground goes on to identify the circumstances which are relied upon in particular in support of it.
Section 353(1) of the Criminal Law Consolidation Act provides that the Full Court shall allow an appeal against conviction:
“… 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.”
In M v The Queen (1994) 181 CLR 487 the majority of the court held that, when considering a ground of appeal which asserts that the verdict of the jury was unreasonable or could not be supported having regard to the evidence, the question to be posed is whether it was “open to the jury” to be satisfied of the accused’s guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict upon the whole of the evidence. This test was reaffirmed in MFA v The Queen [2002] HCA 53 (14 November 2002). In that case, Gleeson CJ, Hayne and Callinan JJ commented on the purpose of s 6(1) of the Criminal Appeal Act (1912) (NSW) which is almost identical to s 353(1) as follows at [59]:
“In the end, that sub-section is designed to afford a mechanism against a prospect that our community and its courts continue to regard as intolerable, namely that an innocent person has been wrongly convicted upon unreasonable and unsupported evidence and has thereby suffered a miscarriage of justice. The interpretation and application of the sub-section must always keep that purpose in mind. But it involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.”
In undertaking the independent assessment of the evidence which is required by these authorities, I have considered, first, all of the evidence, including that of the appellant, with the exception of that given by Mario Colangelo. I have adopted this course because of the implication in the summing-up that verdicts of guilty were available on the circumstantial evidence apart from the alleged inculpatory statements made to Mr Colangelo.
A brief summary of the evidence is appropriate. The jury were called upon to consider the evidence in the context of a relationship between the appellant and the two deceased. There was evidence that Goodwin had been involved in cannabis production since the late 1980s. He met Comans while they were both in gaol in New South Wales.
The appellant said in evidence that he met Goodwin in 1999 when the appellant, Goodwin and another man commenced growing marijuana together. The crop was stolen in September 1999, but in early 2000 the appellant and Goodwin became involved in the growing of another crop at a property at Kilburn.
At about this time the appellant purchased Steamers. He grew cannabis there and the first crop was harvested in April 2000. In May or June 2000 Goodwin introduced the appellant to Comans. Comans helped out with the crops at the Churchill Road premises and at Steamers. By October 2000, the appellant, Goodwin and Comans were working on the crops at Kilburn and Steamers. According to the appellant, he and Goodwin had an agreement whereby they were to share the proceeds of the crops and Comans was to be paid for his involvement.
The appellant was carrying on a building business while these events were taking place. However, this business appears to have come to an end by May 2000.
There was evidence which pointed strongly to the fact that the deceased were killed in Steamers. Most of this evidence arose from the examination of the warehouse by forensic experts.
On the prosecution case, the appellant was in debt and he was being pressed by some creditors. He had been unable to settle on Steamers and was involved in negotiations for an extension of time. He required $45,000 as part of the payment and that amount was due not long after the deceased were killed. The prosecution led evidence that he had outstanding debts. These were summarised by the judge in his summing-up. The appellant gave evidence of his ability to manage his financial situation, but it was open to the jury to accept the prosecution submission that he was in financial difficulty and that he was being pressed for payment of debts, particularly the repayment of a loan from a Mr Carpenteri.
Evidence was led that Goodwin was in the habit of carrying substantial amounts of money in a small black bag. Mr Gatenby, who dealt in drugs with Goodwin, estimated that Goodwin would have had about $150,000.00. Neither the bag nor the money were found after his death. This evidence was linked by the prosecution with the repayment by the appellant of some debts at a time close to the deaths of the two men.
The prosecution argued that the victims were killed on 25 October 2000. The appellant said in evidence that he had arranged to meet Comans on that day and he drove to the Kilburn premises to see him at about 6.20 am. The appellant and Comans then transported Comans’ belongings to Steamers. They unloaded the appellant’s vehicle and trailer at Steamers and the appellant said he left Comans there.
After having breakfast at a cafè at Port Adelaide, the accused said he drove to a hire car premises on North Terrace in the city and picked up Goodwin there at approximately 9.30 am. The two men then went to Goodwin’s home at Parafield Gardens. The appellant said he and Goodwin arranged to play a game of golf on the following day at the Patawalonga Golf Course. A booking for the game was made from Goodwin’s house.
The appellant said he and Goodwin then travelled to the premises of a crash repairer at St Mary’s so that Goodwin could pick up his car. They arrived there at approximately 11.00 am. They then went to the Tonsley Hotel for lunch. They stayed there for approximately 90 minutes. The appellant said he then drove Goodwin back to the crash repairers and Goodwin picked up his car.
The appellant gave evidence that he went home at this stage and picked up $4,000 in cash which he said he kept there. He said the money was retrieved in order to pay off the loan from Mr Carpenteri and an outstanding debt on his car. The prosecution disputed this version and contended that the money was taken from Goodwin. The appellant said he then went to Steamers, arriving there at a little before 2.00 pm. He said it was then that he discovered the bodies of the two men.
It is not in dispute that the appellant took Goodwin’s mobile telephone from his clothing. He also took his car. At about 3.00 pm the appellant rang Mr Carpenteri on the appellant’s own mobile telephone and left a message on Carpenteri’s voicemail. At approximately 4.00 pm the appellant purchased rope and plastic wrapping which he intended to use to wrap the bodies. A short time later he went to see Mr Ross about disposing of Goodwin’s car. I referred earlier to this incident and the fact that the appellant used Goodwin’s mobile telephone at 7.27 pm to telephone the appellant’s own mobile telephone so as to give the impression that Goodwin was still alive. At 8.00 pm, the appellant telephoned Mr Carpenteri and arranged to meet him that evening. He did so and paid Carpenteri $2,500 in $100.00 and $50.00 notes.
Then, on the morning of 26 October, the appellant went to the golf course and made calls to Goodwin’s mobile number. Later he contacted Goodwin’s home and asked for him. At 12.54 pm he telephoned Mr Mario Colangelo and then visited him in the city at approximately 1.00 pm. The appellant spoke to Colangelo about burying the bodies.
According to the appellant, he drove to Wistow after speaking to Mario Colangelo and dumped the bodies at a location where they would not be seen from the road.
I have already summarised the post-offence conduct which, on the appellant’s own version, was intended to give the impression that the men were still alive. The relevance of the evidence extended beyond the issue of credibility. It was open to the jury to reject the appellant’s explanation of his post-offence conduct and to find that the conduct pointed to involvement in the murders.
The major features of the prosecution case are conveniently considered under the categories of evidence of association between the appellant and the victims, motive, the obvious location of the killings at Steamers, the appellant’s contact with the victims on the day of the killings, the disposal of the bodies, the use of Goodwin’s property after the killings, the fact that Goodwin’s bag and money were missing, the payment by the appellant of debts shortly after the killings and the post-offence conduct of the appellant. I have considered the appellant’s evidence and the arguments advanced by Mr Peek, but I have concluded that it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.
I have said that I put Mario Colangelo’s evidence to one side so as to consider the circumstantial evidence by itself. I do not accept Mr Peek’s suggestion that the trial judge directed the jury that they could convict the appellant on the evidence of Colangelo alone. However, if Colangelo’s evidence is taken into account along with the inferences which the prosecution claimed can be drawn from it, the prosecution case is made stronger by reason of the apparent admission by the appellant.
In assessing the evidence, I have taken into account the particular circumstances identified in this ground of appeal. The first of these relates to the evidence of Mario Colangelo. It is claimed that it was unsafe to take into account the evidence of this witness in proving that the appellant committed the offences.
In my view, it was open to the jury to act on Mario Colangelo’s evidence. The conversation between the appellant and the witness was the subject of careful directions by the trial judge. He set out the evidence in detail in his summing-up and said:
“I say at the outset, if you do not accept his evidence as truthful, accurate and reliable about the conversation that he had with the accused and what the accused said to him, and you do not reach that conclusion beyond reasonable doubt, then you will put this evidence to one side and pay no more attention to it. It is that critical. You could not rely upon this evidence to find the accused guilty of either of the charges of murder unless you are satisfied that what Mario Colangelo told you actually happened, and that the accused meant what he said.”
After reminding the jury of the evidence of the conversation the trial judge said:
“Now the first thing about which I give you a direction is that you must reach a conclusion about Mario Colangelo, and beyond reasonable doubt. Do you accept him as a reliable, truthful and accurate witness, and that he has been accurate in what he has told you? If you do not reach that conclusion, then just put all this to one side. The only significance of his evidence, then, would be the presence of the bodies with the accused. I am dealing now with the conversation.
The second thing is if you reach that conclusion about Mr Colangelo, are you able to say beyond reasonable doubt that the accused used those words which Mario Colangelo said he used? If you are not, then you will put this conversation to one side. If you are satisfied beyond reasonable doubt that the accused did use those words to him, then are you satisfied beyond reasonable doubt that he meant that he had been involved in the killing of these two men. If you are not satisfied beyond reasonable doubt about that, then you will put this conversation to one side.”
And later:
“Now I stress to you: you have to be satisfied beyond reasonable doubt that the accused told Mr Colangelo in unequivocal terms that he did it with a stick, that it was him or them and that he had no choice, and that that is what the accused meant when he used those words, before you can rely on this evidence as part of the case against the accused.
If you think it is just too doubtful, too uncertain, too unreliable, for any reason that I have mentioned or as occurs to you, then you will put it to one side and pay no attention to it.”
It is apparent that the jury were instructed not to take the evidence into account unless satisfied beyond reasonable doubt of the matters to which their attention was directed. Furthermore, there was nothing inherently unreliable about the evidence of Mr Colangelo which required further directions.
Reference was also made in the particulars of this ground to “the high degree of prejudice that was engendered against the appellant because of the circumstances of the case, his previous activities, his actions in moving and hiding the bodies of the victims and the extent to which he had lied and misled”. The use of these items of evidence was properly explained to the jury and there was no risk of misuse of the evidence by reason of prejudice.
Finally, I disagree with the submission that warnings should have been given in relation to some of the witnesses whose evidence conflicted with that of the appellant. There is nothing about the witnesses or the evidence which they gave which would require the giving of any warnings by the trial judge.
The appellant’s application for leave to appeal on further grounds
During the hearing of the appeal, the court received written submissions from the appellant himself in relation to grounds on which he sought leave to appeal. This departure from the usual procedure should not be taken as a precedent for future cases. However, as the submissions have been received, it is appropriate to comment on them.
No formal grounds of appeal were put forward by the appellant, but his written submissions address various complaints concerning the conduct of the trial and the directions of the trial judge. The appellant has complained that he did not receive a fair trial because senior counsel representing him was required to leave before the summing-up had been completed and junior counsel was left to look after the interests of the appellant. Senior counsel left in order to appear in an application before the High Court. However, he returned at one stage during the summing-up to make submissions on the directions which had been given up to that point.
The appellant has complained that the unfairness consists in the failure of counsel to seek redirections in relation to various topics dealt with in the summing-up. The first relates to the trial judge’s directions on the character of the appellant. He said:
“Under our law, the guilt of a person must be proved by evidence of the offence or offences charged against the accused, and the verdict is not to be influenced by prejudice arising out of the past of the accused.
It is important that you not attach any greater significance and relevance to the evidence of the past record and character of the accused than it properly bears. It may affect your estimate of the credibility of the accused as a witness. You may have regard to his true character when considering what weight you should attach to his evidence and to his statements to the police. You are entitled, if you think fit, to consider that his word is less to be trusted by reason of past criminal offending.
The evidence reflecting on the character of the accused is not, however, evidence that he committed the crimes charged. It would be wrong to reason the accused is of bad character and, therefore, is likely to be guilty. It would be wrong to say that the accused committed offences in the past and, therefore, he probably committed the offences with which he is now charged. To do that would be contrary to fairness and to the law because the law, in its wisdom, and fairness, provides that an accused person is not to be judged by his past, but by the evidence as to the conduct which is the subject of the charge.”

There was evidence before the jury that the appellant had been involved in the drug trade over a number of years and had taken part in growing substantial crops of cannabis. It was necessary for the judge to say something on this topic to the jury. The judge was required to explain to the jury the use to which the evidence could be put and the use to which it could not be put: R v Beech (1978) 20 SASR 410. It was made clear to the jury that they could not reason from prior bad character that the accused had committed the offences with which he was charged; the only permissible use was as to credibility. In my view, the directions which were given cannot be criticised.
The next passage in the summing-up to which the appellant has drawn attention was raised by senior counsel with the trial judge who refused to make any further comment to the jury. The passage is concerned with the appellant’s alleged discussion with Mr Ross when he was getting rid of Goodwin’s car. The trial judge said:
“There are some important parts of this evidence, you might think. It is, first of all, a fact that he has gone to the trouble of taking the car to somebody he knows with a view to it being removed. He tells a story about it, if you believe Mr Ross, about why it is being removed, and you heard all that evidence from Mr Ross and Mrs Ross. He was talking about a divorce and separation, someone moving overseas, and then the comment that the person who owns the car will not be looking for it.
The accused told you that Mr Ross asked him why he wanted to get rid of the car, and he said ‘The person who owns it looks like he has somebody really upset, and he is not around any more, and he has really pissed somebody off’. You should look at that piece of evidence in the same way as you should look at the evidence given by Mario Colangelo: if the accused did say that, why would he say that, you might ask yourselves. Why would he say words that give the impression that the owner of the car has really upset someone? These are the accused’s own words, and his own evidence, and it is for you to say whether what he has done there is to disclose something that is truthful, that the owner of the car had really upset someone and wasn’t around any more.”
Exception is taken to the trial judge’s comment to the effect that the appellant may have disclosed a circumstance known to him when he said: “it is for you to say whether what he has done there is to disclose something that is truthful, that the owner of the car had really upset someone and wasn’t around any more”.
In my view, the trial judge’s comment was open on the evidence and he left it to the jury to assess the appellant’s comment, if they found that it was made.
Next, attention was drawn to the following passage in the summing-up:
“Now the prosecution case is that it is often not possible to determine a motive for a crime, and that this may well be such a case, but these men were involved in drug activities which, in turn, involved other people. The Crown is not able to say why these men were murdered and why the accused murdered them. You should not be deflected from your task in the evaluation of the evidence merely by the inability of the Crown to actually prove a motive. When you look at all of the evidence which is summarised, you will reach the conclusion that it has been proved beyond reasonable doubt that the accused murdered these men.”
The appellant has submitted that this was a direction to the jury to convict. However, in my view, the trial judge was doing no more than summarising the effect of the prosecution case and submissions. He was not expressing his own view or directing the jury to find the appellant guilty.
The appellant complains of counsel’s failure to act on his instructions in relation to the calling of the appellant’s wife to give evidence that he returned home on the morning of 26 October before going to Steamers. She was not called as a witness at the trial.
An affidavit sworn by Mrs Loader was filed on behalf of the appellant. She stated in the affidavit that she was asked by the police what the appellant had been doing the day before he was to play golf with Goodwin and she told them she had no particular recollection of what happened on that day. She said that in a later discussion with the appellant he suggested to her that he had come home on a particular day, but she thought he was referring to the day on which he was to play golf.
Mrs Loader said that it was only when listening to the trial judge’s summing-up that she remembered that the appellant had come home on a day when she was talking to a friend on the telephone. She checked with her husband during an adjournment and found out that the telephone call was on the day of the alleged offences. She mentioned this to the appellant’s solicitor, but she said he took no further action in relation to the matter.
It is necessary to consider further the evidence in relation to the appellant coming home on this occasion. The appellant said in evidence that he dropped Goodwin off to pick up his car at the crash repairer and then went home, had a cup of coffee with his wife, picked up some tools and money and then went to Steamers where he found the bodies of the two men. On this version, it is to be assumed that Goodwin drove from the crash repair premises to Steamers.
It was not put to the appellant in cross-examination that he did not go home at this time. In his final address, the prosecutor did no more than suggest to the jury that the appellant’s evidence of his return home was important to his case because it allowed him to say that there was time for another person to commit the crimes before the appellant arrived at Steamers.
The trial judge referred to the evidence in the following passage in his summing-up:
“Now, what the accused says happened was that he dropped off Mr Goodwin, then he went home, collected his power tools, had a cup of coffee, got his money out of the freezer, drove down to Steamers and got there about 2 o’clock, no-one would hold him to that exactly, but about 2 o’clock, and he found the bodies.
Now, it doesn’t matter precisely, you might think, what time it is. What you might think is important is that Mr Goodwin apparently went to Steamers as well after he had been at Langley’s Crash Repairs, and that is where he was killed.
Detective Rowney gave some evidence, which again is not necessarily accurate, not about 25^th October, the travelling times in his vehicle. If you consider that evidence, he says that when he did it at night, he went from Langley’s to Steamers in light traffic and it took him 30 minutes. He had done it earlier in heavy traffic via Arndale, and when you take out the time that he spent at Arndale and just concentrate on the driving times, you will have 39 minutes. That gives some indication of how long it would have taken Mr Goodwin to get from Langley’s Crash Repairs to Steamers, if that is what he did, and how long it would take the accused to do the same, if that is what he did, and how long it would have taken the accused, if he went home, approximately how long it would have taken him.
So there are two things for you to think about: if the accused went from Langley’s to Steamers and not to his home, and he left Langley’s before Mr Goodwin, it is reasonable to expect that he would have got to Steamers before Mr Goodwin. If he went home and spent that period of time picking up his tools and having a cup of coffee and getting the money, and then went to Steamers, he would have got there shortly after Mr Goodwin, but, in all events, the difference in time is relatively small, you might think. So what that means is that the accused was at Steamers around about the time, a bit before, a bit after, depending on what view you take, that Mr Goodwin was murdered.
Now, if he was there after Mr Goodwin was murdered, if that is a reasonable possibility, then he did not commit the murder, but the point of this circumstance is to establish, if you accept it, that the accused was at that building around about the same time as Mr Goodwin was murdered.”
In these circumstances and having regard to the approach to the evidence by the prosecutor and the trial judge, it cannot be said that the jury, acting reasonably, “would have acquitted the appellant had the fresh evidence been before it at trial”: Mickelberg v The Queen (1989) 167 CLR 259 at 273. Mrs Loader’s evidence would have corroborated the appellant’s version that he came home before he went to Steamers, but that version was not directly challenged by the prosecution. The only aspect of it which was challenged was the assertion that he took money from the freezer at his home to pay two of his debts.
Mrs Loader also stated in her affidavit that the appellant was in possession of approximately $4,000 or $5,000 in the months preceding the killings. She said he kept money in the freezer. It was suggested that this evidence would have been relevant to the appellant’s claim that he got the money from the freezer to pay his debts shortly after the alleged offences.
Again, I do not think it can be said that the appellant was deprived of an acquittal by reason of the failure to call this evidence. Furthermore, it could not be suggested that the appellant would not have been able to ascertain this claimed knowledge of Mrs Loader by reasonable diligence: Lawless v The Queen (1979) 142 CLR 659 at 666. I am of the view that the matters now raised cannot be regarded as fresh evidence.
The appellant complains of further directions given by the trial judge on a topic raised before him by the defence. The further directions were as follows:
“Remember I drew your attention to telephone calls made by the accused to Mr Carpenteri as is shown on Exhibit P35; those calls being made on 25 October. The first one is to the voice mail at six minutes to three, and then the phone call to Mr Rocco Colangelo lasting 56 seconds at six minutes past three, and then the phone call again to Mr Carpenteri, but using a different phone number? Remember I mentioned that to you yesterday, at seven minutes past three, very soon after this short telephone conversation with Mr Rocco Colangelo? I suggested to you that given those facts, of the proximity of the telephone calls, the order in which they were made, and the different numbers that were used for Mr Carpenteri, that you would need to consider the possibility that the home number had been obtained by the accused from Mr Rocco Colangelo in the middle conversation, and that might be why he rang him. It is of course the accused’s case that he rang him for the reasons that he has told you, to tell him about the death of these men, and he got instructions from Mr Colangelo as to disposing of the bodies, clearing out the cannabis, and getting rid of the lights. Now what is put to me is that it is speculative to say that the accused rang Rocco Colangelo merely to get the telephone number from him for Mr Carpenteri, and that there is no evidence as to that matter.
That is the submission made by the defence; that there is no evidence about that matter, and that the accused was not asked about it by his own counsel, or by the prosecutor, and has not given evidence about that matter. Well, it is for you to say what you make of all of these facts, and you bear that matter in mind when you consider whether what I have put to you, for your consideration, is merely speculative.” (emphasis added)
The appellant complains of the comment in italics.
In his earlier directions, the trial judge suggested to the jury that it was open to find that the appellant might have obtained Mr Carpenteri’s home telephone number from Mr Colangelo. The redirection raises the possibility that this could have been speculation. In my view, the trial judge was entitled to leave the issue to the jury as he did. In any event, the question as to whether the appellant obtained the home telephone number in this way could not have had any real affect on the verdicts.
The appellant has directed attention to the following passage in the summing-up:
“The next matter is what I shall call the water on the floor at the Steamers Building. You will remember that Mr Gatenby told you that he came over to Adelaide, and he told you about that weekend when, perhaps to put it in a shorthand way, he staked out the house of Mrs Goodwin to see if the disappearance of Mr Goodwin was, in fact, the truth. During the course of that weekend, he went and saw the accused. He telephoned him, I am sorry, he did not go to see him at this stage, he telephoned him and said he wanted to look through the Steamers Building, and he told you that the accused said he was not available that day, that he was looking after the children, and asked if it could be the next day. They made an arrangement for Mr Gatenby to collect the keys the next day. He did so and he went to the Steamers Building with the man called Donnelly, he said, for protection. It was dark, he did not turn on lights, he did not see much, but he found this water on the floor.
The accused told you that that happened from time to time in this building. Water would overflow from the drainage system from the guttering and into the basement floor, and if you accept that evidence or think it is a reasonable possibility, then there’s nothing in this point at all, but what you are asked to consider is whether the accused sought a delay of a day in Mr Gatenby going to the premises, so that he could go down and make some attempt to clean it up. If that is so, then you will bring that to account.”
The appellant claims that the trial judge invited the jury to speculate in a prejudicial way against the appellant by making these remarks. In my view, the question as to whether the appellant might have caused some delay in Gatenby going into the building could not have affected the jury’s verdicts. It is apparent from the appellant’s own version that he took a number of steps to give him time to clean up the building and so avoid suspicion. It is clear that he did not want anyone coming into the building until he had done so.
The appellant complains of some further directions which the trial judge gave concerning the appellant’s conversation with Mr Mario Colangelo. He pointed out that the appellant did not dispute one part of the conversation in which the appellant said the bodies could be buried at Port Adelaide or at Kilburn and that it did not matter to him.
The further directions were as follows:
“The second matter is that by not saying something to you, I might have misled you about your approach to an aspect of the evidence of Mr Mario Colangelo, the man whom the accused asked to dig the hole.
I said to you that you could not rely on that evidence of what the accused had said unless you were satisfied beyond reasonable doubt that he had said it, and that it had the meaning, on his part, which is indicated by the words themselves. But there is another aspect of the conversation which is not in dispute, and I have been asked to remind you of this evidence and give a direction as to how it may be used.
Mr Colangelo told you that the accused wanted a hole dug, and his evidence on this particular matter I am about to mention is this. He said at 1259:
‘Q.You mentioned the backhoe, and wanted a favour. Did he -
A. In Port Adelaide, to chuck some rubbish in their first, that is what he told me.
Q. Wanted a hole dug at Port Adelaide.
A. That is right’. In cross-examination, Mr Colangelo was asked this question:
‘Q.Did Michael Loader say to you that it did not matter to him whether the hole was dug at Port Adelaide or in the yard at Kilburn.
A. No, not at Kilburn, he mentioned Kilburn.
Q. He said it did not matter to him.
A. He said “Port Adelaide or my place”’, and in his evidence, the accused said that he did say that.
The point of bringing you back is to give you this direction: if you accept that the accused did say to Mr Colangelo that he wanted the hole dug at Port Adelaide or at Kilburn, and that has been accepted by the accused in his evidence, then that is a piece of circumstantial evidence as well on the Crown case from which you can draw the inference, along with the other evidence, that he was involved in the murders.
It is put to you this way. If the accused was prepared to have the bodies buried at his premises, then that is some evidence from which you can draw the inference that he did not want them found, therefore he was involved in the murders. Whether you draw that inference, ladies and gentlemen, is entirely a matter for you but, unlike the other conversations to which I was referring, which you have to find proved beyond reasonable doubt, this one you may accept has been established because the accused acknowledged it.
Understand?
JURY RETIRE   11.40 A.M.
HIS HONOUR:  Anything else?
MR PEARCE:             No.
MR BARKLAY:          Your Honour has invited them on that topic, or explained to them, the inference that the prosecution would have you draw from that evidence. I am not exactly sure where it is in the transcript, but as I understood, Mr Loader’s evidence was that ‘Buried at Port Adelaide or your place, it doesn’t matter to me, I just wanted to get rid of them’, and what I am suggesting is -
HIS HONOUR:  I understand your point. Would you ask the jury to come back again?
JURY RETURNS   11.42 A.M.
HIS HONOUR:  Ladies and gentlemen, just on that same point, after you retired, I was reminded that the accused’s evidence was as I said, but also that he said that he did not mind which of the premises, so you must take that into account when you consider whether you draw any inference from his reference to digging the hole at Port Adelaide or Kilburn.”
In my view, a reading of these directions does not support the appellant’s contention that they were unfair to his case.
During the trial, the prosecutor intimated in the absence of the jury that he wished to ask the appellant how he would hold a baseball bat. The prosecutor intended to pursue a theory that the victims were struck from behind and, in the light of the position of the injuries, it was thought relevant to determine whether the appellant was left or right-handed. The appellant’s counsel expressed concern about this line of proposed questioning, but the trial judge ruled that he was prepared to allow limited questioning on the point.
The prosecution did not pursue the matter and no questions were asked of the appellant by his own counsel as to whether he was left or right-handed. The appellant now asserts that he is right-handed and this issue should have been raised at the trial. There is no reason why the defence could not have raised this issue at the trial. In my view, no basis exists for permitting the issue to be raised at the appeal stage.
The trial judge conducted a voir dire examination during the trial in order to determine the admissibility of an interview the police conducted with the appellant on 6 December 2000. An application was made to exclude the interview from evidence in the exercise of the judge’s discretion. It was claimed that the appellant had not been cautioned before the interview commenced; that the police had misled him about the purpose of the interview; and that he had not been given important information. The trial judge refused the application and gave extensive reasons for his ruling. The appellant complains about the reception of the interview into evidence, but does not identify any error on the part of the trial judge.
In my view, the trial judge was correct in refusing to exclude the interview from evidence and I agree with the reasons which he gave for his ruling.
For these reasons, I would refuse leave to argue the matters raised by the appellant in his written submissions.
I would dismiss the appeal.
BESANKO J. In my opinion this appeal should be dismissed and leave to argue the matters raised by the appellant in his written submissions should be refused. I agree with the reasons of Duggan J.

ANDERSON J. I agree with the reasons of Duggan J. I would also dismiss the appeal and would refuse leave on the matters raised by the appellant in his written submissions.