R v Reci No. Sccrm-97-137 Judgment No. S6454

[1997] SASC 6454

R v RECI

Court of Criminal Appeal: Doyle CJ, Cox and Lander JJ

DOYLE CJ

Introduction

This is an appeal against a conviction for murder, the appellant (Mr Reci) having been found guilty upon the verdict of a jury on 2 May 1997.

On the same information as that which charged Mr Reci with murder, two women were charged with the offence of assisting the appellant contrary to s241(1) of the Criminal Law Consolidation Act, 1935( "CLCA"). The first was Ms Lleshi, who pleaded guilty on the morning of the trial before a jury was empanelled. The other woman was Ms Zenuni, who pleaded not guilty, and was tried together with Mr Reci. She too was found guilty by the jury.

Leave to appeal was granted on grounds 1, 2, 2(a), 3, 4 and 5. Leave to appeal was refused on ground 6; namely, that the verdict was unreasonable and could not be supported by the evidence, or alternatively, that it was unsafe and unsatisfactory.

By application dated 20 June 1997, the applicant applied to have determined by the Full Court his application for leave to appeal against conviction on ground 6. The application was considered in private, pursuant to rule 15(7) of the Supreme Court Criminal Appeal Rules, by Doyle CJ, Matheson and Olsson JJ. On 13 August 1997 the Court ordered that the application for leave to appeal on Ground 6 be listed for oral argument before the court that hears the appeal on grounds 1 to 5.

At the hearing, leave was granted to add a further ground 7, in the following terms:

"That there was a miscarriage of justice in that the Director of Public Prosecutions failed to notify the defence of a statement that was or had been in its possession, such statement containing material facts which tended to support the defence case that Mr Reci did not produce a knife at the house of the deceased and that the knife in issue was produced by the deceased, who then attacked Mr Reci with that knife."

In support of that application Mr Reci filed certain affidavits, and to one of these affidavits was exhibited a statement of Ms Lleshi, that being the statement referred to in the further ground of appeal. An affidavit by Ms Lleshi was also filed. Mr Reci sought an order for the examination of Ms Lleshi at the hearing of the appeal. She, and certain other witnesses, gave evidence before this Court.

The prosecution case at trial

At about 11:40pm on Friday 12 April 1996 Nicko Vuksani was fatally stabbed while inside his flat at Brooklyn Park.

There was no dispute at trial that Mr Reci broke into Mr Vuksani’s flat and that a violent struggle ensued, resulting in Mr Vuksani’s death. Equally there was no dispute that the only two in the flat at the time of the stabbing were Mr Reci and Mr Vuksani. However there was a dispute as to what occurred before Mr Reci entered the flat and as to what transpired once Mr Reci was inside the flat.

To put the prosecution’s case in context it is necessary to have regard to certain background facts.

The people involved are all Albanian.

At approximately 5pm on the day of Mr Vuksani’s death Mr Reci and Ms Lleshi went to the home of Andrian Shllaku, a good friend of Mr Reci. Mr Reci was very upset about rumours circulating about Mr Reci’s alleged relationship with Ms Leshi. In the course of conversation Ms Lleshi mentioned that she was not speaking to her sister, Loreta Simoni, because she had been spreading rumours about Ms Lleshi having a relationship with Mr Reci. This angered her because, according to her, they were just very good friends. Shllaku gave evidence that Mr Reci remained silent throughout, saying nothing about the rumours and showing no outward signs of anger.

At 10pm that night Mr Reci appeared at the door of Ms Lleshi’s sister’s home (the Simonis), and was invited in by Mr Simoni. When Loreta Simoni entered the room Mr Reci blamed her for telling Ms Lleshi that he had AIDS and for spreading rumours that they were boyfriend and girlfriend. He later blamed Mr Simoni for saying similar things.  At this point Mr Reci became incensed. There was some evidence of alcohol consumption by Mr Reci earlier that day. On the day of the stabbing Mr Reci had been at a celebration for the end of semester at a TAFE college. He said that he took with him a hip flask of whisky, which he shared with others at the college. He said that he also had two glasses of light beer. He also had a glass of whisky and water at Mr Shllaku’s, and later a glass of whisky and water at the Simonis’ house.

Mr Reci left the house and returned with Ms Lleshi and Ms Zenuni, who had been waiting in the car outside. According to the evidence of the Simonis, an argument then commenced between Loreta Simoni and Ms Lleshi about the rumours that were circulating. During the argument between the two sisters Mr Vuksani’s name was continually mentioned as being the source of the rumours. When Mr Simoni intimated to Mr Reci that it was only an argument between two sisters Mr Reci became angry, and pulled a knife out from underneath his jumper. The knife came from a sheath hanging on his belt. The appellant held the knife first against Mr Simoni’s throat, and then against his stomach, with the point of the knife directed at Mr Simoni. Mr Simoni described the knife as being 25-30cm long in length with a black handle. Mr Simoni attempted to calm Mr Reci down. Mr Reci threatened him, saying that Mr Simoni or Mr Vuksani was going to die that night. Loreta Simoni also gave evidence of a verbal and physical argument between Mr Reci and Ms Lleshi at the Simoni house.

Eventually things calmed down. Both Simonis gave evidence that Mr Reci then put the knife back inside his jumper. Mr Vuksani was again identified in Mr Reci’s presence as the source of the rumours. After about 45 minutes Mr Reci, Ms Lleshi and Ms Zenuni left the Simoni house. The Simonis telephoned Mr Vuksani and spoke to him about what had just happened.

Mr Reci, Ms Lleshi and Ms Zenuni then went to Mr Vuksani’s flat. Mr Reci drove.

It was the prosecution case that Mr Reci broke into Mr Vuksani’s flat by smashing the kitchen window, breaking part of the screen off, putting his hand inside, unlatching the lock, and then pulling the window open. He then entered the flat through the window. It was the prosecution case that the appellant entered Mr Vuksani’s flat with a large knife, P18, and once inside attacked Mr Vuksani, slashed him many times and stabbed him on three or four occasions. The stab wounds caused Mr Vuksani to haemorrhage and die from a severe loss of blood.

The prosecution case was that Mr Vuksani was not in the kitchen when Mr Reci broke in, but in bed. This is consistent with the evidence of Mr Simoni, who said that when he phoned Mr Vuksani, Mr Vuksani said that he intended to go to bed. This was also supported by evidence that the quilt was thrown back as if someone had just got out of bed. Furthermore, Mr Vuksani was dressed for bed, having only a singlet and underpants on. The prosecution contended that Mr Vuksani was awoken by Mr Reci forcing his way into Mr Vuksani’s flat. The prosecution said that he then came into the kitchen from his bedroom, where he was attacked by Mr Reci.

The evidence established that Mr Vuksani sustained 45 wounds, 37 of which were knife wounds; 32 of the 37 wounds were cut or slash wounds. Three of the knife wounds were in the chest and neck area, and one was a stab wound near the right eye. The prosecution contended that the stab wounds were caused by the accused forcefully stabbing Mr Vuksani. The evidence of blood scattered throughout the kitchen area and dining area of Mr Vuksani’s flat indicated that there was a fierce struggle between Mr Reci and Mr Vuksani. The prosecution relied on the expert evidence of Dr James to the effect that considerable force would have been used to inflict the four stab wounds. The prosecution highlighted the marked disproportion between Mr Vuksani’s extensive injuries and Mr Reci’s relatively minor injuries.

Apart from a gash on his left hand that needed 8 stiches, which the prosecution suggested could have been caused by contact with broken glass, Mr Reci’s only other injuries were a black eye and minor scratches on the back of his neck.

It was the prosecution case that this was a savage and relentless attack. The prosecution said that the lead up to the incident, the smashing of the window and the forced entry, and the nature of the injuries sustained by Mr Vuksani established that Mr Reci was the aggressor. The prosecution said that the nature, number and extent of the injuries sustained by Mr Vuksani were fundamentally inconsistent with any possibility that Mr Reci acted in lawful self-defence.

It was alleged that Ms Zenuni, together with Ms Lleshi, assisted Mr Reci knowing that he had committed an offence, by driving him away from the scene at Brooklyn Park to the beach at Henley Beach. It was contended that the car was abandoned there and both women caught a taxi back to Ms Lleshi’s place where they picked up Ms Lleshi’s car. They retrieved some of Mr Reci’s clothes from his flat and, after arranging with another woman to bring Mr Reci to her place, they returned to the beach and eventually picked up Mr Reci. In the car a tourniquet was tied on Mr Reci’s arm to stop the bleeding from a cut that he had sustained at Mr Vuksani’s flat.

During a later search at Henley Beach of the abandoned car, used by Mr Reci, Ms Lleshi and Mr Zenuni, a police officer discovered a knife which had been concealed in the sand. It was the prosecution’s case that this knife was the weapon which Mr Reci took to Mr Vuksani’s house, and the weapon used to kill Mr Vuksani. An analysis of the blood found on the knife showed that the blood was blood from both Mr Vuksani and Mr Reci. This knife was exhibit P18 at the trial.

The prosecution also placed considerable reliance on the evidence of Mr Bou, who lived next door to Mr Vuksani at the time of the offence. He said that on the night of the stabbing he was in his lounge room watching football on the television, when his attention was attracted by what he described as rapid knocking on the door, "like someone urgently wanting to get in." Initially he thought the knocking was on his back door, but after getting up and checking from his kitchen window at the rear of the flats, he realised that the knocking, which lasted about five minutes, was coming from the direction of the road, at the front of the flats. He said that he could also hear a female voice talking at the same time as the knocking. He said he sat back down in the lounge room when he suddenly heard the sound of glass breaking. He then went out his front door, towards the road. His attention was attracted by two people, both female, standing behind the wall, at the back of the flat. One of the females asked him if Mr Vuksani was home, to which he replied that he didn’t know. He also said he saw a shadow, like the shape of a person, going through the back window of Mr Vuksani’s flat. He said that he then walked back towards the carport when he heard screaming, like a violent struggle, coming from inside the flat. He later saw all three accused leave the scene in a blue ford Falcon, the same car that was later found abandoned at Henley Beach. He telephoned the police. The evidence of Sarah Cliffe, Mr Bou’s wife, was consistent with the above evidence.

The defence case at trial

Central to the defence case was the claim that Mr Reci was not the aggressor and did not have a knife when he entered Mr Vuksani’s flat. Mr Reci said that the knife he produced at the Simonis’ was in the glove box of the car when he entered Mr Vuksani’s flat. The defence case was that Mr Reci went to Mr Vuksani’s house to tape-record the conversation (as he had done earlier in the evening at Mr Shllaku’s house) with a view to resolving the innuendo surrounding his relationship with Ms Lleshi. The tape has never been found. The only tape found was the tape of what was said at the home of Mr Shllaku. Mr Reci denied the prosecution suggestion that he went to Mr Vuksani’s flat with an intention to kill Mr Vuksani. At trial Mr Reci asserted that whilst standing outside Mr Vuksani’s flat he saw Mr Vuksani inside. He said that he first knocked on the front door and then went around to the back door. He said he left the two women at the front door. Mr Reci said that Mr Vuksani was tapping at the window and made remarks which were deeply insulting to Mr Reci’s family. He said he heard him say, "Hey fucker, you come here with two bitches, as a hero, as a tough man." Mr Reci replied, according to his evidence, "You are a dog. Why don’t you come outside and talk to me?" Then, according to Mr Reci, Mr Vuksani said, "Let the dogs fuck all the members of your family." It was suggested that the honour of one’s family is of particular significance in Albania, and as a result Mr Reci was deeply insulted by the comments. According to Mr Reci, the remarks were all the more hurtful because his parents had died in his arms. Mr Reci said that he wanted to confront Mr Vuksani, so Mr Vuksani could say the words again, to his face. He said that is why he broke the window and jumped in. He said that he used half a brick he found near a water tap close to the back door to smash the window.

Upon entering Mr Vuksani’s flat, Mr Reci said that he was attacked by Mr Vuksani using a large knife, and slashed on his wrist. Mr Reci said he thought Mr Vuksani was going to kill him, so he kicked him in the groin. Mr Reci had spent two years in the army in Albania, where he learnt the basics of hand-to-hand fighting. Mr Reci accepted that Mr Vuksani was a bigger and stronger man, a former weight-lifter, who would defeat him in a fist fight. Mr Reci said that he struggled with Mr Vuksani and succeeded in getting the knife from him. He said that he was trying to get back through the window but Mr Vuksani grabbed onto his legs and pulled him back inside. He said he was scared. He still had Mr Vuksani’s knife, and was waving the knife in slashing motions through the air. He claimed he had no intention of killing or even attacking him. He claimed he was just backing off, trying to make his way back through the window so he could get out. Further, despite the extensive nature of Mr Vuksani’s stab wounds, Mr Reci claimed he did not know if the knife made contact with Mr Vuksani while he was trying to get out through the window. In cross-examination he said that he was inside the flat for two to three minutes. Eventually, Mr Reci claimed, he made his way back to the window and jumped out, where he saw Ms Zenuni. He said that he put Mr Vuksani’s knife in the pocket in the driver’s side door of his car. He later buried it in the sand at Henley Beach. He said that the knife later found at the beach by the police was Mr Vuksani’s knife, not his knife, which had remained in the glove box of his car. Despite Mr Vuksani’s acknowledged superior strength and Mr Vuksani’s alleged possession of a large knife, Mr Reci came out of the struggle with relatively minor injuries, especially when compared to the many and serious injuries sustained by Mr Vuksani.

As stated above, an important aspect of the defence case was the absence of the knife that Mr Reci produced at the Simonis’ home. Mr Reci claimed that he gave the knife to Ms Zenuni at the beach. At the trial the location of the knife was never ascertained. Ms Zenuni did not give evidence.

The defence advanced further arguments to support the submission that this was a case of provocation by Mr Vuksani, followed by self-defence by Mr Reci, and not an attack by Mr Reci. It contended that it was Albanian tradition to own knives which, it is said, supported the suggestion that the knife, P18 was owned by Mr Vuksani. The defence pointed to the blood on the glove box in the Ford and said that it was put there when Mr Reci was getting his own knife out and giving it to Ms Zenuni, consistent with the evidence of Mr Reci.

The defence also stressed the lack of a positive identification of P18, as the knife produced by Mr Reci, by the Simonis. The evidence of Mr Simoni was that he believed that the knife found at Henley Beach was the same knife used to threaten him, whilst the evidence of Mrs Simoni was that although it was the right size, she could not be sure it was the same knife. In particular, the defence referred to the fact that the sheath on the knife found at the beach was not recognised by either Simonis as the sheath which they saw that evening. Therefore, it was submitted, the jury could not be satisfied that P18 was the knife produced that evening by Mr Reci at the Simonis’ home. Rather, it was said P18 was Mr Vuksani’s knife which Mr Reci had in the car with him after he left Mr Vuksani’s flat. Moreover, the defence pointed to Mr Vuksani’s wounds which it said were consistent with a struggle. The blood on Mr Reci’s clothes was suggested to be consistent with Mr Reci rolling around on the floor while fighting.

Fresh evidence

Mr Reci now seeks to rely on fresh evidence from Ms Lleshi about what happened at Mr Vuksani’s flat and about what occurred with respect to the second knife.

Ms Lleshi was originally charged with murder together with Ms Zenuni and Mr Reci. A few days before the trial, her lawyers from the Legal Services Commission, Mr Braithwaite and Ms Griffith, informed her that an agreement had been reached with the prosecution. The prosecution agreed to withdraw the charge of murder. She was charged with assisting an offender, contrary to s241 of the CLCA. She pleaded guilty to this charge on the morning of the trial, 5 April 1997. On 9 May 1997 she was sentenced to 12 months imprisonment with a non-parole period of 6 months. Her sentence was suspended upon her entering into a good behaviour bond for three years with 160 hours community service.

Ms Lleshi was not called as a witness at trial. Mr Reci did not call her as a witness because his solicitor advised him that he could not obtain a statement from Ms Lleshi on matters critical to his defence. In her affidavit Ms Lleshi says that she was advised not to talk to Mr Reci’s lawyers. Despite agreeing not to talk to Mr Reci’s lawyer, she says that towards the end of the trial she did speak to Mr Reci’s lawyer. At this stage, acting on legal advice from her lawyers, she said little.

It is necessary to outline the course of events or dealings between Ms Lleshi and Mr Vadasz, the appellant’s solicitor and counsel, leading to the application for fresh evidence.

The following facts are drawn from Mr Vadasz’s affidavit sworn on 16 September 1997 and from his evidence. At the appeal Mr Brebner for the Director of Public Prosecutions cross-examined Mr Vadasz as to the contents of his affidavit. Mr Vadasz says that at a conference at Court on 7 April 1997 he became aware that Ms Lleshi would be pleading guilty to a fresh charge under section 241 of the CLCA. At the completion of the conference, Mr Vadasz asked Ms Lleshi’s counsel, Mr Braithwaite, if Ms Lleshi would be prepared to give assistance to Mr Reci at his trial. The trial was due to commence the following day. In his affidavit he says that a subsequent conversation with Mr Braithwaite during the course of the trial left him with the impression that Ms Lleshi was not willing to assist Mr Reci.

In the affidavit Mr Vadasz states that during the trial, he was instructed by Mr Reci to make every effort to obtain a statement from Ms Lleshi with a view to calling her to give evidence. Ms Lleshi first met with Mr Vadasz on 22 April 1997, following a telephone call from Mr Vadasz requesting that she come and see him. On that occasion she was not prepared to give a statement. In cross-examination Mr Vadasz was asked to reveal to the court as best he could, the details of his consultation with Ms Lleshi. Mr Vadasz took some brief notes during this consultation. His notes showed that Ms Lleshi had said to him that Mr Reci did not say "either you or Nicko will die tonight" at the Simonis’. Another note indicated that Ms Lleshi had told Mr Vadasz that she could not remember if the knife used at the Simonis’ home had been placed in the glove box of Mr Reci’s car. Another indicated that Mr Reci wanted to take Mr Vuksani back to Loreta Simoni’s house. On 28 April 1997 Mr Vadasz received a fax from Mr Braithwaite indicating that Ms Lleshi did not wish to canvass any matter concerning Mr Reci with him.

In the afternoon of 28 April 1997 Ms Lleshi again went to see Mr Vadasz at the request of Mr Vadasz. Ms Fiona Lindquist, a legal practitioner acting as a consultant to Mr Vadasz, was also in attendance. On this occasion Ms Lleshi was prepared to answer some questions as to the events leading up to what happened at Mr Vuksani’s flat. She agreed that she had seen Mr Reci break the kitchen window of Mr Vuksani’s flat and gain entry. However, she refused to answer any questions about what she had seen through the window.

Mr Vadasz then rang Mr Braithwaite whilst Ms Lleshi was in his office, and asked him if his client would be prepared to provide a statement. Mr Braithwaite in strong terms expressed the view that Ms Lleshi should not answer any questions from Mr Vadasz.

Mr Vadasz had a further conversation with Mr Braithwaite before the beginning of closing addresses. Mr Braithwaite reiterated that Ms Lleshi was not prepared to provide a signed written statement or to provide an oral statement as to what, if anything, Ms Lleshi saw through the window of Mr Vuksani’s flat. However, according to Mr Vadasz’s affidavit, repeated in cross-examination, Mr Braithwaite ended up saying words to the effect that his client was prepared to attend for the purposes of giving evidence, but she would not provide a statement.

Mr Vadasz advised his client that, as he could not obtain a satisfactory statement as to what Ms Lleshi had seen through the window, it was not wise to call her to give evidence.

In the middle of August 1997, Mr Vadasz received a telephone call from Ms Lleshi. In cross-examination he said he thought that she left a message with his secretary. At a meeting on 21 August 1997 she told Mr Vadasz for the first time that, on looking through the window, she had seen a very large knife in Mr Vuksani’s hand, and that she saw Mr Vuksani bring that knife down upon the accused and that the accused then went down to the floor.

Mr Vadasz then obtained Ms Lleshi’s written authority to allow her solicitor to release a copy of her statement and any relevant correspondence. That statement, together with a copy of the letter from the Legal Services Commission to the DPP dated 9 March 1997, was received by Mr Vadasz’s office on or about 4 September 1997.

Mr Vadasz says that at no stage during the course of the trial was he aware that a statement by Ms Lleshi had been passed on to the DPP. He said had he known about the statement he would have taken active steps to seek its disclosure by the Director.

Ms Lleshi attended Mr Vadasz’s office on 10 September 1997. On that day she produced what she claimed was Mr Reci’s knife, the knife that had been used at the Simonis’ home and then remained in the glove box of the car while the appellant was in Mr Vuksani’s flat.

In support of the application to call fresh evidence Mr Reci has filed an affidavit of Ms Lleshi dated 11 September 1997, with her 16 page statement exhibited thereto. The heading of the statement indicates that it was taken at the Legal Services Commission on Thursday, 2 August 1996, by Ms Griffith.

In that statement she stated that after Mr Reci broke into the flat through the window, Mr Vuksani attacked him with a big knife, stabbing him in the arm. In her statement Ms Lleshi said that Mr Reci produced a knife during the argument with Mr Simoni, Ms Lleshi’s brother-in-law, and held it to his throat. She also said that she never saw the knife again. In her affidavit Ms Lleshi said that this aspect of her statement to her solicitors was not correct. In her affidavit she claimed that not only did she see the knife again, but also that she hid the knife some time after the incident. In the affidavit she stated that Mr Reci did not take the knife he had produced at the Simonis into Mr Vuksani’s flat. She said that the knife had remained in the glove box of the Ford Falcon during Mr Reci’s fight with Mr Vuksani, and was later given to Ms Zenuni by Mr Reci. Ms Zenuni then gave it to her. This is inconsistent with the evidence of Mr Simoni, who said that he believed the knife found at Henley Beach was the same knife that was held to his throat.

If there is substance to Ms Lleshi’s claims, they are of considerable significance to Mr Reci’s defence. The linchpin of Mr Reci’s defence was that the knife with which Mr Vuksani was killed belonged to Mr Vuksani and was produced by Mr Vuksani. As counsel for Mr Reci explained, the case went to the jury on the basis that the crucial question was who was the aggressor, Mr Reci or the victim. Hence, Mr Reci’s case hinged on the existence of a second knife. To this extent Lleshi’s fresh evidence (if it be so characterised) is potentially of considerable relevance. However, in accordance with the principles articulated by the High Court in Gallagher v R (1986) 160 CLR 392 at 395-396 Gibbs CJ, it is necessary for this Court to consider Ms Lleshi’s evidence in a preliminary way, to establish whether her evidence is capable of belief or whether it is patently incredible.

Ms Lleshi’s evidence before the Court was consistent with Mr Reci’s version of events except where indicated to the contrary. Ms Lleshi gave evidence that on the night of the murder she, Mr Reci and Ms Zenuni had gone to her sister’s place to get an explanation about the rumours concerning herself and Mr Reci. Mr Reci went in first, to ask the Simonis about the rumours. Ms Lleshi and Ms Zenuni remained in the car. After 10 minutes Mr Reci came outside and asked Ms Lleshi to come inside. She said, consistent with the evidence of the Simonis, that Mr Reci produced a knife from a sheath hanging on his belt. This was the first time she had seen the knife. According to her evidence, the point of the knife was directed towards Mr Reci. Mr Reci then apparently said to Mr Simoni, "Leke, me and you very close and friend, if I am a bad man, kill me." Mr Simoni took the knife and put it on the couch. Ms Lleshi stated that she did not touch the knife at the Simonis. This is inconsistent with her statement of 22 August 1997, where she said that Mr Reci put the knife near Mr Simoni’s throat, she then grabbed the knife which came close to her face, and this upset Mr Reci, so he put the knife on the couch. The arguing continued, and according to Ms Lleshi’s evidence, Mr Reci slapped her because he wanted her to tell Mrs Simoni about Mr Simoni abusing her daughter a year ago. In her statement she said that Mr Reci punched her and grabbed her by the anchor of her neck chain. In addition, in cross examination she said that at no stage at the Simonis did Mr Reci say to Mr Simoni "Either you or Niko will be dead tonight."

Ms Lleshi said that Mr Reci, she and Ms Zenuni then went to Mr Vuksani’s place. Mr Reci drove. In her statement she stated that while Mr Reci was driving he slapped her in the face with considerable force on more than one occasion. In cross-examination she acknowledged that Mr Reci hit her on the way to Mr Vuksani’s flat. She gave evidence that when they arrived at Mr Vuksani’s flat, at the directions of Mr Reci, she and Ms Zenuni called "Nico, Nico, Nico" outside Mr Vuksani’s front door. At this time she says Mr Reci was with them. In cross-examination she said that Ms Zenuni and Mr Reci knocked on the front door. Mr Reci was not calling out anything. There was no response from inside the flat. She said that she then went around to the back door, and knocked on the back door and called out. She said that she also knocked on Mr Vuksani’s bedroom window. She said that Ms Zenuni also did these things. She stated that Mr Reci then broke the window and pushed his way through the hole in the glass. In cross-examination she acknowledged that Ms Zenuni helped Mr Reci through the window. In line with her statement she said that she saw Mr Vuksani attack Mr Reci with a big knife According to her evidence, when Mr Vuksani rushed at Mr Reci with a knife, immediately before he stabbed Mr Reci, he said, "What do you want you fucker?…fuck your mother and father which they are in the grave." Ms Lleshi said Mr Reci raised his hands up in the air about parallel to his shoulders, he was then stabbed in the hand by Mr Vuksani and went to the floor. She saw this from outside the flat at a distance of about 3 metres. She said that there was no light on inside the flat, but there was an outside light emanating from the neighbour’s garden.

This is inconsistent with the evidence of the man living next door, Mr Bou, who said that no sensor light was on. However, Mr Bou did give evidence that the natural light was "pretty bright due to the moon being out." He also gave evidence that when he discovered Mr Vuksani on the kitchen floor of Mr Vuksani’s flat, Mr Vuksani’s bedroom light was on.

After Ms Lleshi saw Mr Reci stabbed by Mr Vuksani, she and Ms Zenuni moved away towards the front fence. She said that after she moved away she did not hear or see what happened inside the flat. This is inconsistent with her statement where she said that she could hear sounds of fighting and that she wanted to go inside in and stop the fighting.

In cross-examination Ms Lleshi was asked whether she asked Mr Reci why he was breaking into the house when no-one was answering. She said that Mr Reci told her that Mr Vuksani was insulting him and this is why he broke in to Mr Vuksani’s flat. She also said that she was at the back of the house and he was at the front of the house when this went on. The latter evidence is inconsistent with the evidence of Mr Reci who said he went to the back of the flat, having left the women at the front.

In examination-in-chief Ms Lleshi said that after about five minutes Mr Reci emerged from the flat - exiting the same way he got in - through the hole in the window. She said that his eyes were protruding from his head, his clothing was covered in blood, and blood was pouring from a gash in his hand. Ms Lleshi said that following the attack Mr Reci told Ms Zenuni to drive the car. When she asked Mr Reci what transpired inside the flat, he said that Mr Vuksani tried to kill him.

She gave evidence that the three then drove down to Henley Beach. They stopped at the beach, and Mr Reci gave Ms Zenuni the knife (inside its sheath) from the glove box . She said that she did not see him put the knife in the glove box, but saw him take it out and give it to Ms Zenuni. Contrary to her statement she says that she then took the knife from Ms Zenuni. She did not see him leave her sister’s place with the knife. Her evidence about the knife that belonged to Mr Reci was as follows:

"COX J
Q.     Where was the knife when you first saw it.
A.     The knife was inside the -
Q.     In the car.
A.     In the car, yes.
Q.     Where in the car.
A.     Out from glove box.
Q.     Did you see it in the glove box.
A.     Yes, Zim[Mr Reci] he take it out, he gave it to Dea[ Ms Zenuni].
Q.     And where was the car when Zim did that.
A.     The car was in the street, in the parking.
Q.     At Henley Beach.
A.     At Henley Beach, yes.
Q.     You saw Zim open the glove box and take it out.
A.     Yes, the glove box, and he give everything - give to her everything that was in the glove box and was the knife, and after me from there I take the knife and Dea she hold the tape, find taxi straight away and I pick up the taxi driver. Taxi driver he ask me ‘Where you going?’ I was -
Q.     Just stay with the knife. Had you seen the knife before.
A.     I saw in Leke’s [Mr Simoni’s] place, my brother-in-law.
Q.     That was the same night, was it.
A.     Yes.
Q.     Did you see how it got in the glove box.
A.     Me no see him put in the glove box just after I left him in the beach after I saw him take it out.
XN
Q.     You saw him take it from the glove box, did you.
A.     Yes.
Q.     But you didn’t see it put in there.
A.     No.
Q.     And did you see him give it to Dea.
A.     Yes.
Q.  At the beach.
A.     Yes.
Q.     After he gave it to her, how long after that did she give it to you.
A.     After two, three, four steps and I take it from her.
LANDER J
Q.     That was the same knife that you had seen at your sister’s place.
A.     Yes.
Q.     Did you see Zim leave your sister’s place with that knife.
A.     Zim he leave my sister’s place this knife?
Q.     Yes.
A.     No.
Q.     When he left your sister’s place was he carrying the knife.
A.     I think so. He take it, but me no see Zim." (T44-45)

Ms Lleshi and Ms Zenuni then left Mr Reci at the beach and caught a taxi back to Ms Lleshi’s house. She said that at this point she was scared.

They both went inside, she got $20 and paid the taxi driver and put the knife on the table. Ms Zenuni went to the bathroom and cleaned herself up. Ms Lleshi said that she then hid the knife in bushes near her house. They then went to get her car and pick up Mr Reci.

Ms Lleshi was later arrested for assisting in the murder of Mr Vuksani. In her evidence she said that was she not truthful in answering a number of questions from the police. She said she was untruthful because she was scared and not thinking sensibly.  According to her evidence, she first learned of Mr Vuksani’s death from a detective, when she was arrested the next morning.

In the course of cross-examination she was questioned by Lander J about why she was scared, given that she had asked Mr Reci what had happened, to which he said "no really big trouble just fighting together." The questions continued:

"Q:     But why were you scared before you saw the detective.
A:     Before I saw the detective I was scared in the morning.
Q:     Now, you said you took the knife.
A:     Yes.
Q:     And you threw it in the bush because you were scared. What were you scared of.
A:     I was scared because I saw with the blood and scared." (T65)

Later she was asked by Cox J whether at any point, before she learnt of Mr Vuksani’s death from the detective, she was concerned Mr Vuksani might have been badly hurt in the struggle at the flat:

"Q:     Was Nico a friend of yours.
A:     Nico, yes….
Q:     Did you ask him ‘What about Nico’.
A:     I ask him; what’s happen inside with you and Nico? And he said; nothing, just fighting together.
Q:     Fighting together with a knife.
A:     No, me no ask for knife; no.
Q:     But you realised there had been a knife there. You had realised that one or both of them had a knife. You knew that Nico came at Zim with a knife.
A:     Yes.
Q:     And Zim ended up with the knife.
A:     Me no see him going inside with knife.
Q:     No, but he had a knife when he left the flat.
A:     Yes, after he came out.
Q:     Were you concerned about what might have happened to Nico in the fight.
A:     From the fighting.
Q:     Yes.
A:     I ask Zim and he no say – he said "just fighting".(T66-67)

After her arrest she went to prison (Yatala) for two weeks, after which she was placed on home detention. According to her evidence she retrieved the knife from the bushes, placed it in a plastic bag and brought it back to her house, where it remained until it was given to Mr Vadasz a week before the appeal. She claimed that she did not tell anyone, either before or during the trial of Mr Reci, that she had the knife. In examination in chief she said that she was too scared to tell her lawyers about the knife. In cross-examination she said that the only two people who knew about the knife were Ms Zenuni and her 17 year old son.

When probed in cross-examination as to why she did not tell the truth about the knife earlier, she replied that she did not do so because she was scared:

"Q:     Did you tell Libby Griffith or Mr Braithwaite about this knife.
A:     No.
Q:     Why was that.
A:     I tried to tell everything the truth but knife, me no tell the truth because I was scared
CROSS- EXAMINATION BY MR BREBNER
Q:     Why didn’t you tell the lawyers the truth about the knife.
A:     Because I was scared, maybe going to gaol. I have two kids. Just for this reason, for nothing else.
…
Q:     Did you think that if you told the lawyers about the knife something might happen to you.
A:     I think maybe happen something very bad because I was charged with murder.
Q:     You thought telling the lawyers about the knife might mean something bad would happen to you, is that right.
A:     Yes.
Q:     Why did you think that telling lawyers about the knife might lead to something bad happening to you.
A:     Because I was scared." (T52)

And later:

"DOYLE CJ
Q:     The evidence you are giving today, you know that might help Gezim.
A:     I think this is the truth and I don’t have no doubt maybe will help, but I don’t know, I was just telling the way it happened, the truth.
Q:     Why didn’t you come forward and give this evidence at the trial.
A:     I tried to explain to my lawyer to come but, he make me stop, he make me very scared.
...
LANDER J
Q.     Why then, when your lawyer rang you about the knife, didn’t you tell the truth.
A.     No, me, not say my lawyers.
Q.     Why didn’t you tell the truth.
A.     I don’t know, I was scared, me not say nothing.
Q.     You told Gezim you would tell the truth and you told your lawyer you would tell the truth, then you didn’t.
A.     I know I was scared, but if my lawyer, he left me to come to trial, because I talk how many times before trial to finish, I like to come with knife, but, he no left. He said ‘Maybe better for you, Bella, don’t go’ and I trust him.
Q.     Was that Mr Braithwaite you said that was.
A.     Yes. He said ‘Maybe happen something bad with you and if you plead guilty for this charge you have, you may be doing one year and that’s all right’ he told me.
Q.     What about after you pleaded guilty, did you say to your lawyer, ‘I have pleaded guilty now, is it all right now if I go to court and tell the truth?’
A.     I plead guilty and after I talk with my lawyer and he tell me not to come, not to talk with Gezim’s lawyer, or the detective and not Dea’s lawyer.
Q.     It was after you pleaded guilty that you didn’t tell the truth, isn’t it. It was after you pleaded guilty that your lawyer contacted you to talk to you about the knife.
A.     No, me not talk.
Q.     What I am asking you is, it was after you had pleaded guilty you didn’t tell the truth.
A.     I pleaded guilty for what charge me; I have for assisting after murder, to helping Gezim for this, I plead guilty.
Q.     My question is, it was after you pleaded guilty, that you were asked about the knife and you didn’t tell the truth.
A.     No.
Q.     That’s right, isn’t it.
A.     I was afraid, I was scared.
XXN
Q.     After you told Gezim about the knife, did he tell you to go and see Mr Vadasz.
A.     No, Gezim, he not tell me nothing. I tell him ‘I like to come if you have another trial, I like to come to say the truth.’ Not to help myself, not to help Gezim, not to help Dea, but to say the truth; what three people to say guilty, for me guilty, jury find her guilty, he is guilty for murder and nothing the truth just to hear Loreta Simoni and that’s it." (T 87-89)

In cross-examination she acknowledged that Mr Reci asked her to go and see his lawyer and tell him the truth. She said that she had not visited Mr Reci in gaol either before the trial, during the trial or after the trial, the last time she saw Mr Reci being three days before the present appeal. However, she later contradicted herself by admitting that she had gone to visit him in gaol, where he said he would marry her when everything was over. Despite revealing a possible motive to fabricate, she denied the suggestion made in cross-examination that Mr Reci had told her to go and get a knife and give it to Mr Reci’s lawyer:

"Q:     What do you think today’s case is about.
A:     I think we are here, this court is here to tell the truth, which happened but not to talk about my marriage or his marriage or anything else. Important to talk about trouble. If you like to know for me what I have in my mind for him, I tell you the truth.
Q:     Did you want Zim to get out of gaol.
A:     Yes, I like him , if the truth come out and you ask, okay, I like. Not for me first; for himself.

Q:     Did Zim tell you to go and get a knife from someone and take it to Mr Vadasz.
A:     No.
Q:     You have visited Zim in gaol many, many times since the trial haven’t you.
A:     Yes.
Q:     And you have discussed ways of getting him out of gaol, haven’t you.
A:     No." (T 80-81)

Ms Lleshi acknowledged that Mr Reci telephoned her. She said that he rang her every day during the trial. She said that after the trial had finished she rang him. In cross-examination Ms Lleshi acknowledged that she spoke to Mr Reci about the knife before she went to see Mr Vadasz. Mr Vadasz said in cross examination that neither discussed their proposed marriage with him.

In light of Ms Lleshi’s revelations it was necessary for the Simonis to give evidence about whether the new knife, the one Ms Lleshi claimed to be Mr Reci’s, was recognisable by the Simonis as the knife which Mr Reci produced at their home on the night of the stabbing. Mr Simoni said that the new knife, D1, was not the knife which Mr Reci threatened him with. He said that the knife he was threatened with had one blade, whereas D1 had two blades. It was principally on this basis that he differentiated between the two knives. Ms Simoni said that she could not be sure if D1 was the knife produced by Mr Reci at her home.

Miscarriage of justice

It is convenient to begin with the ground of appeal based upon the fact that the evidence of Ms Lleshi was not called at the trial.

This ground involves the Court’s power to set aside the conviction on the basis "...that on any ground there was a miscarriage of justice": CLCA s353(1).

When the matter raised under this power relates not to some irregularity at the trial, nor to the soundness of the jury’s verdict having regard to the evidence before it, but to the absence from the trial of evidence which is later available, the issue has been treated in the decided cases under the heading of "fresh evidence". Various principles can be drawn from the decided cases, and they provide authoritative guidance for the Court. Nevertheless, it is necessary to bear in mind what Gibbs CJ said about the equivalent provision in the Criminal Appeal Act (NSW) in Gallagher v The Queen (1986) 160 CLR 392 at 395:

"Although many cases have provided a gloss on the words of section 6 and similar provisions, it is important to remember that the fundamental question is whether a miscarriage of justice has occurred, and that the principles that may be extracted from the authorities ‘should not ... be regarded as absolute or hard and fast rules’: Green v The King (1939) 61 CLR 167 at 175. The circumstances of cases may vary widely, and it is undesirable to fetter the power of Courts of Criminal Appeal to remedy a miscarriage of justice. I respectfully agree with the statement of King CJ in Reg v McIntee (1985) 38 SASR 432, at 435 that ‘appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.’ "

The other members of the Court expressed themselves in similar terms. In other words, as this Court said in In Re Van Beelen (1974) 9 SASR 163 at 183 the decided cases provide "working rules developed for use in the ordinary and general run of cases", but the ultimate question is whether there has been a miscarriage of justice.

Evidence of Ms Lleshi

It is necessary to make an assessment of the credibility of Ms Lleshi’s evidence and of its potential effect upon the jury at the trial.

In Gallagher v The Queen (supra) Gibbs CJ said (at 395-396):

"Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matter in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions."

Gibbs CJ then referred to a number of the decided cases. He concluded as follows (at 399):

"It seems to me, with all respect, that where the trial was by jury, the accused was entitled to have the question of his guilt determined by the verdict of the jury, and that the Court of Criminal Appeal, in considering the effect of the fresh evidence, should consider what effect it might have had upon a reasonable jury. It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ. who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial."

In the light of what Gibbs CJ said, I can pass over the judgment of Mason and Deane JJ. Brennan J expressed his preference (at 410) for the criterion of a "likelihood of acquittal", saying that the criterion of "a significant possibility" of acquittal might be seen as more easily satisfied. He expressed the proper approach as follows (at 409-410):

"To obtain an order for a retrial, it is sufficient to show that it is likely, not that it is certain, that a different verdict would have been produced if the fresh evidence had been given. .... And as a verdict of acquittal follows if the jury have a reasonable doubt as to the prisoner’s guilt, the test is not whether the jury would have been likely to believe the evidence had it been given but whether the jury would have been likely to entertain such a reasonable doubt. It is not necessary that the court should think it likely that the fresh evidence would have been believed: it is enough that it is judged to be likely to have resulted in an acquittal."

Dawson J put the matter as follows (at 421):

"It will be sufficient if, upon the whole of the evidence consisting of the evidence at the previous trial together with the fresh evidence, a court of criminal appeal reaches the conclusion that a jury might entertain a reasonable doubt about the guilt of Mr Reci. A court will not, of course, reach such a conclusion lightly and will bear in mind that the evidence led at the previous trial was sufficient in the opinion of the jury to establish the guilt of Mr Reci beyond reasonable doubt. For this reason a verdict will not be disturbed unless the fresh evidence is relevant, cogent and plausible. In the end, however, the question remains whether on the whole of the evidence, including the fresh evidence, a jury might reasonably acquit, not whether it is likely to do so."

He went on to say that he did not consider that there was any difference between his approach and that of Mason and Deane JJ. He expressly rejected (at 421) any test based upon "likelihood of acquittal", because if there was "any real possibility of acquittal by a reasonable jury", that fact must be significant when considering miscarriage of justice.

The High Court returned to this issue in Mickelberg v The Queen (1989) 167 CLR 259. Mason CJ adhered to the view expressed by him and Deane J in Gallagher v The Queen (supra): at 273. So did Brennan J (at 275). Deane J did not discuss the issue, but appears to have applied the criterion of "a significant possibility": at 290-291. Toohey J and Gaudron J doubted whether there was "a practical difference" between the approach favoured by Brennan J in Gallagher and that favoured by Gibbs CJ, Mason and Deane JJ, and went on to say (at 301-302):

"If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it:  see Lawless (1979) 142 CLR, at pp.676-677, per Mason J., and Gallagher (1986) 160 CLR, at p.410, per Brennan J., but cf. Barwick C.J. in Ratten (1974) 131 CLR, at pp.519-520."

I proceed on the basis that the court is required to consider the impact of the evidence upon the jury at the trial, had it been given, although to do so the court must make a limited assessment of the credibility of the evidence, in the sense explained by Toohey J and Gaudron J. I also proceed on the basis of the criterion as expressed by Mason and Deane JJ in Gallagher, that being the approach that has the support of a majority of the Court in Gallagher, and the approach that was accepted by a majority in Mickelberg, albeit without, in the case of Toohey J and Gaudron J, deciding whether there was a real difference in Gallagher between Brennan J on the one hand and Gibbs CJ, Mason and Deane JJ (and, I would add, Dawson J) on the other hand: see also R v Gilvarry [1991] 2 QdR 431 at 436 and R v Goonan (1993) 69 ACrR 338 at 341.

I turn now to the evidence of Ms Lleshi, which evidence (given before this Court on the hearing of the appeal), I have already summarised.

The significance of the evidence, in my opinion, was twofold. First, it was capable of leading to a conclusion that Mr Reci did not take with him, when he entered Mr Vuksani’s flat, the knife that he had produced earlier that night at the Simonis’ home. Ms Lleshi claimed that Mr Reci did not take it with him, although just how she could be sure of that is unclear. Her evidence that the knife was, while they were at Henley Beach, taken from the glove box and given to Ms Zenuni, and then to her, points to the same conclusion It does so because it suggests that the bloodstained knife found at Henley Beach, apparently the knife used to cause death, was not the knife that Mr Reci produced at the Simonis’ home, but another knife and (presumably), one belonging to Mr Vuksani. I do not mean to say that this line of reasoning is inevitable, merely that it is open. Secondly, Ms Lleshi’s evidence that she saw Mr Vuksani rush at Mr Reci, Mr Vuksani wielding a knife and Mr Reci apparently being empty-handed, supports Mr Reci’s claim that Mr Vuksani was the aggressor, and so tends to support the claim of self-defence made by Mr Reci.

Is this evidence of Ms Lleshi, evidence that is apparently credible, that is capable of being believed: Gallagher at 397, Gibbs CJ? That raises two issues - the inherent credibility of the evidence and how it fits with other evidence at the trial.

Although, in Gallagher (supra), Gibbs CJ (at 397) distinguished between the apparent credibility of fresh evidence, and the influence that it might have had upon the jury if available at trial, both he and other members of the Court in Gallagher posed the ultimate question to be answered by a court of appeal in terms which, as Gibbs CJ himself observed (at 397) subsumed the issue of credibility. There is a sense in which the credibility of Ms Lleshi’s evidence, and the impact that it might have had upon the jury at the trial, can be considered separately. But, in a case like this, in which her evidence is a mixture of direct and circumstantial evidence about the struggle between Mr Reci and Mr Vuksani, it is preferable to go directly to the issue of the possibility of the jury having acquitted Mr Reci, had Ms Lleshi’s evidence been before the jury. I so conclude because, in my opinion, it is practically meaningless in this case to consider her evidence first in isolation, and then in the context of the evidence at the trial. In other cases, that will be a meaningful exercise.

Mr Brebner, counsel for the Director of Public Prosecutions, made a number of telling criticisms of Ms Lleshi’s evidence. He also argued that her evidence would have been "overwhelmed" by other evidence pointing to Mr Reci’s guilt. First, her close friendship with Mr Reci, and her frank acknowledgment of her interest in marrying him, gave reason to doubt Ms Lleshi’s veracity, when one took into account her failure to give evidence at the trial. Secondly, evidence to the effect of what she now said would have assisted Ms Lleshi herself, to the extent that it tended to support Mr Reci’s innocence. Her explanation for failing to offer to give evidence at the trial was not convincing. Thirdly, on her own evidence, Ms Lleshi had not told the full truth at earlier times, even to her own solicitor. The proof taken from her, in connection with the charges that she faced, disclaimed all knowledge of the whereabouts of the knife that she has now produced. While her claimed fear of the consequences of any association on her part with the knife has a certain plausibility, on reflection the obvious point remains that on her story this knife was not used in the struggle in Mr Vuksani’s flat. If she believed that Mr Vuksani was the aggressor, and if she believed that Mr Reci had not taken his knife with him into the flat (a story supported by her possession of that knife), why not produce the knife? Moreover, the knife produced by Ms Lleshi, and its sheath, were surprisingly clean for objects supposedly left outside in a bush for about two weeks. Fourthly, the idea that Mr Vuksani would have waited for Mr Reci to enter his flat before attacking him is unlikely. If he was going to attack him, surely he would have done so while he was coming through the window and at a disadvantage. Fifthly, Ms Lleshi’s claim that she heard nothing, after she moved away from the window, seems unlikely, and conflicts with her statement to her solicitor. Sixthly, her evidence about what happened at the Simonis’ home conflicted in a number of respects with her statement. I would add that I regard as unlikely Mr Reci’s evidence (at trial) that Mr Vuksani was still on his feet while Mr Reci climbed back out through the window, and the claim that a number of Mr Vuksani’s wounds were suffered when Mr Reci slashed at him to enable Mr Reci to make good his escape through the window. As well, without going into the details, the number and nature of the wounds inflicted upon Mr Vuksani, and the contrast with the number and nature of the wounds inflicted upon Mr Reci, gave strong support to the prosecution case that Mr Reci was the aggressor, and not Mr Vuksani. I find incredible Mr Reci’s claim that he went to Mr Vuksani’s flat for a discussion about the spreading of rumours about Mr Reci and Ms Lleshi. In my opinion, the circumstances point strongly to Mr Reci having gone to Mr Vuksani’s flat ready to confront him, and intending to do whether Mr Vuksani wanted to be confronted or not. These latter matters support Mr Brebner’s submission that Ms Lleshi’s evidence would have been overwhelmed by other evidence.

I have given careful thought to these criticisms, and to others that can be made. I have also considered Ms Lleshi’s demeanour when giving evidence. As to that, there was a disarming frankness about aspects of her evidence (for example, her ready admission of an interest in marrying Mr Reci), and much of her evidence was given in a manner that seemed quite spontaneous. On the other hand, some aspects of her evidence were unconvincing. I refer here, for example, to her evidence about her dealings with the knife. I also find unconvincing her explanation for her failure to come forward sooner.

I consider that Ms Lleshi is a witness about whose credibility one must have severe reservations, in relation to her evidence on the two issues of significance. Those reservations arise in part from matters subsequent to the trial, and in part from the relationship between her evidence and that given at the trial. I consider that I can, and should, take into account my reservations about her credibility, even though some of them are based upon matters that, in the nature of things, would not have arisen had she given evidence at the trial.

I turn then to the ultimate question.

Although, as I have remarked, in some respects Ms Lleshi gave evidence in a disarmingly frank manner, my conclusion is that had her evidence been given at the trial, there is not a significant possibility that it would have caused the jury to have a reasonable doubt about Mr Reci’s guilt of the murder of Mr Vuksani.

I consider that there is an inherent implausibility in her account of the events at Mr Vuksani’s flat. I consider that Ms Lleshi’s evidence about Mr Vuksani attacking Mr Reci is inherently implausible, when all of the circumstances are considered. I also regard her claim that Mr Reci did not have his knife with him when he entered the flat as implausible, in the sense that everything about the events points to him having entered the flat armed with his knife. The wounds inflicted upon Mr Vuksani, and the less significant harm done to Mr Reci, points to Mr Reci having been the aggressor . The explanation for her silence about the whereabouts of the knife that is said to be Mr Reci’s, I also find incredible, as do I find its non-presentation at the trial. Mr Reci and Ms Lleshi were friendly at all times, and there was contact between them before and during the trial. I cannot accept, if Ms Lleshi’s evidence is true, that Mr Reci was unaware that she had disposed of the knife, and did not persuade her to come forward with it.

All in all, I am quite satisfied that Ms Lleshi’s evidence is not evidence that would have given rise to a significant possibility of an acquittal.

Although that is a sufficient basis for me to reject this ground of appeal, I propose to deal with the other aspects of this ground.

Even if Ms Lleshi’s evidence met the criterion stated in Gallagher, it would not follow that its absence from the trial meant that there had been a miscarriage of justice. The court must consider the circumstances under which it came about that the evidence was not led at the trial. All sorts of factors can result in evidence not being led at a trial. A court of appeal cannot lightly allow a verdict to be set aside simply because relevant evidence was not adduced at trial. To do so would be quite impractical. It is not possible to state the relevant principle with precision, but I am content to adopt the following passage from the judgment of the Full Court of the Supreme Court of Victoria in Re Ratten [1974] VR 201 at 214:

"In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present, or which he would have desired to present had he not been prevented by such causes from being aware of its existence or its significance, then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice."

I do not suggest that this statement fits the present case precisely, but it does provide guidance.

In the present case, as the facts set out above show, Mr Reci and his legal advisers were well aware that Ms Lleshi might be able to give relevant evidence, were aware of her whereabouts, and were in contact with her from time to time. It was accepted that once Ms Lleshi had pleaded guilty to the offence of assisting an offender she was a compellable witness at the instance of Mr Reci. She was not called as a witness because she declined to tell Mr Vadasz, counsel for Mr Reci, what she had seen once Mr Reci entered Mr Vuksani’s flat, and in particular because she declined to tell Mr Vadasz what, if anything, she could say in relation to the production of a knife by Mr Reci at Mr Vuksani’s flat. However, the evidence before the court discloses that she told Mr Vadasz that she was willing to attend court and to give evidence. It is also clear that Ms Lleshi was in contact with Mr Reci before and during the trial. In my opinion it would have been apparent to Mr Reci that Ms Lleshi had no wish to cause him any harm.

When Mr Vadasz advised Mr Reci against calling Ms Lleshi, it must have been apparent that she was the only person available to Mr Reci (Ms Zenuni had pleaded not guilty, and so was not compellable) who might have seen what happened inside the flat. On Mr Reci’s case her evidence, if she told the truth, could at worst be unhelpful, and at best might support his claim that Mr Vuksani attacked him. There was no reason to think, as I have already noted, that she had any wish to cause Mr Reci any harm. Nor was there any reason to think that it was in her interest to damage Mr Reci’s case, having regard to her position in the matter. On the other hand, it is no light matter to call a witness, who may be able to give evidence on crucial matters, not knowing what the witness will say.

The other factor to be considered is that, as I accept, Ms Lleshi was being advised by her own counsel not to discuss with Mr Vadasz what she saw at Mr Vuksani’s flat on the night in question. I accept, despite my adverse conclusion about her credibility on key issues, that but for that advice she would have disclosed to Mr Vadasz the contents of her instructions to her solicitor. Those instructions included the statement that Mr Vuksani attacked Mr Reci. I am not prepared to find that Ms Lleshi would have told Mr Vadasz that she had the knife that Mr Reci produced at the Simonis’ house, because I do not accept her evidence on this point. I find that this is something invented by her at a later time. I accept that, had Ms Lleshi disclosed to Mr Vadasz her instructions to her solicitor, she would have been called as a witness for the defence.

Can it be said that the absence of her evidence about the attack by Mr Vuksani, resulting from a decision not to call her, the decision made under the circumstances outlined, means that Mr Reci was deprived of his right to a fair trial?

I begin by saying that I do not criticise the advice given by Mr Vadasz. Other advice might have given, having regard to the situation in which Mr Reci found himself, but it does not follow that the advice given was unsound. Nor do I criticise the advice apparently given to Ms Lleshi. It was understandable that such advice should be given. She had been charged with murder, and there were aspects of the case that supported that charge. An agreement had been reached under which a plea of guilty to a far less serious offence had been accepted. There was every reason why, in Ms Lleshi’s interest, she should remain silent, if she could, about her role in the events at Mr Vuksani’s flat. It was not in her interest for her to be cross-examined about that, if there was any risk of it emerging that a more serious charge was warranted.

The position was, then, that acting upon legal advice given in her own interests, Ms Lleshi did not disclose the vital evidence that she was able and willing to give if called as a witness. A decision was made not to call her, in the light of that non-disclosure.

This is not a case in which the evidence not called is of such cogency that it shows Mr Reci "... to have been innocent or makes his guilt appear to the Full Court to be too doubtful for it to be just to allow the conviction to stand": Re Ratten (supra) at 214. Were the evidence of such cogency, other factors come into play.

From one point of view, Mr Reci had a fair trial. He could have called Ms Lleshi, but a decision was made not to do so. A trial is not unfair, and no miscarriage exists, simply because with hindsight it can be seen that a decision made during a trial worked, or may have worked, to the disadvantage of the accused. It should also be borne in mind that, had Ms Lleshi pleaded not guilty, like Ms Zenuni, then she would not have been a compellable witness at all. I make this point merely to illustrate that, in the course of a trial involving more than one accused, decisions made by the different accused can affect the courses of action open to other accused. On the other hand, it has to be acknowledged that if Ms Lleshi had been sentenced for her part in the affair before Mr Reci’s trial began, it may be that her counsel would not have advised her against disclosing her instructions to Mr Vadasz.

There is a sense in which Ms Lleshi’s evidence was unavailable to Mr Reci. It was unavailable because of a choice, which I accept as reasonable, not to call her as a witness in view of her refusal to disclose what she would say. Putting it differently, Mr Reci was unaware of the evidence that Ms Lleshi might give, and he would (I accept) have called her had he known what she would say. But the unavailability of her evidence was the result of a deliberate decision by Ms Lleshi, based on what appears to be appropriate legal advice. It was the sort of decision that might be made, and I am sure is made from time to time, by persons who do not wish, for good reason or bad, to be required to disclose what they know of events the subject of a criminal charge. It would not be uncommon, I suspect, for material witnesses to decline to disclose what they know of a matter, in the hope (for whatever reason) that they will not be called, and it would not be uncommon for that stratagem to succeed. It seems to me that a later change of mind by such a person, and a later willingness to reveal what was known, can hardly of itself give rise to a miscarriage of justice. This is the sort of thing that is one of the inherent risks of a system that depends upon the testimony of witnesses. Our legal system provides a limited protection, in the form of a subpoena to compel a witness to attend (although even that was not required here to secure Ms Lleshi’s attendance). But I consider that it would have to be an exceptional case before a change of heart by a witness, leading to the provision of what was previously withheld, and so to the desire to call the witness, could be accepted as meaning that a trial without the evidence of that witness gave rise to a miscarriage of justice. In saying that I confine myself to a witness known to the defence, available to the defence, and known to the defence to be likely to be able to give material evidence. All of those things apply to Ms Lleshi. I consider that the inability of an accused to compel a known potential witness to disclose that witness’s likely evidence, before a decision is made whether to call the witness, must be accepted as one of the features of our system of trial, as must be the consequences that flow from that.

It may be objected that what I have said does not adequately describe this case. It may be said that this was not a case of a mere change of heart, but a case in which the fact that Ms Lleshi had not been sentenced meant that advice given to protect her deterred her from doing what she was otherwise (as she later demonstrated) willing and able to do. I acknowledge those further elements of the situation. But, in my opinion, they do no more than explain why it was, in this case, that the known potential witness declined to provide a proof of her evidence. In the end, I think that it would be no different if her reason had been something selfish, such as the wish not to get involved because she was about to go away on a holiday (assuming she was at liberty to do so) or because she did not want to have to spend time at court, or some reason that was misconceived.

My conclusion is that the choice made in this case not to call Ms Lleshi was the sort of choice that has to be made in the course of conducting the defence case in a criminal trial, and that the change of circumstances that occurred here does not reveal a miscarriage of justice.

I consider that any other decision in this case would raise an appreciable risk (I go no further than that) of the integrity and efficiency of our trial process being put at risk by potential witnesses, who prefer not to testify if possible, coming forward after the event when it is apparent, because of the jury’s verdict, that without their testimony the accused cannot escape conviction. I cannot see any sound basis for distinguishing between witnesses who have a good reason for avoiding the witness box if possible, and witnesses who do not.

In coming to this conclusion I have not simply concluded that because a deliberate choice was made not to call Ms Lleshi, there can be no miscarriage of justice. As I have tried to show, I have considered the matter more broadly. I cannot accept that the lack of Ms Lleshi’s evidence, under these particular circumstances, meant that there was a miscarriage of justice.

That is not the end of this aspect of the case. Mr Tilmouth QC, counsel for Mr Reci, put an alternative argument, which argument raises an important point. He submitted that the Director of Public Prosecutions was under an obligation to disclose to counsel for Mr Reci the statement by Ms Lleshi that was provided by her solicitors to the Director. He argued that any privilege in respect of that statement had been waived, and that even if the Director did not regard her as a credible witness, her statement should have been disclosed. Alternatively, if privilege in respect of the statement had not been waived, he submitted that it was the duty of the Director to inform the defence that it had a statement from Ms Lleshi. The defence could then apply to the trial judge for a direction that the statement be made available and, he seemed to argue, the trial judge would have directed its disclosure. The basis upon which the trial judge could or would do so, assuming that the statement remained privileged, was never made clear.

The submission that the Director was under a duty to provide Ms Lleshi’s statement to the defence, even though the prosecutor did not regard her as a credible witness, is contrary to the view expressed by this Court in In Re Van Beelen (1974) 9 SASR 163 at 249. There, this Court dealt with the obligation of a prosecution prosecutor. The Court stated four propositions, the third of which was as follows:

1. Where the prosecution has in its possession the statement of a person who can give material evidence, but decides not to call him, it must make him available as a witness for the defence, but need not supply the defence with a copy of the statement taken (R v Bryant and Dixon (1946) 31 CrAppR 146)."

See also R v Mason [1976] 2 NZLR 122; The Queen v Easom (1981) 28 SASR 134; Clarkson v DPP [1990] VR 745 and Caruso v Carbone (1991) 5 WAR 1. As far as I am aware this matter has not been the subject of an authoritative pronouncement by the High Court, although there are dicta in Lawless v The Queen (1979) 142 CLR 659 which tend to support the proposition set out above: see Barwick CJ at 667, Mason J at 678.

Recently, the House of Lords has reconsidered English Law on this point. In R v Mills and Poole [1997] 3 WLR 458 [1997] 3 All ER 780 the House of Lords reviewed the decision of the Court of Criminal Appeal in R v Bryant (1946) 31 CrAppR 146, the authority relied upon in In Re Van Beelen (supra). The argument against the approach approved in R v Bryant (supra) emphasised the accused’s common law right to a fair trial and, as part of that, the importance of the defendant being informed of material in the possession of the prosecution that might assist the defence. Reliance was placed upon more recent decisions of the court of Appeal which emphasised these matters: R v Mills and Poole at 472. The argument in support of the approach in R v Bryant (supra) emphasised the practical consideration that the provision of the statement of a person not regarded as credible, might assist that person to contrive an explanation for parts of the statement that were adverse to the defence: R v Mills and Poole at 475. Lord Hutton, whose speech was concurred in by the other Lords of Appeal, referred with approval to judgment of the Supreme Court of Canada in R v Stinchcombe (1991) 68 CCC (3d) 1. There, Sopinka J emphasised the changed approach these days to production and discovery in criminal and civil proceedings, flowing from "acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial ...": at 6. Sopinka J went on to say (at 7-8):

"It is difficult to justify the position which clings to the notion that the prosecution has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by this court in the future but is not a valid reason for absolving the prosecution of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence.

...

I would add that the fruits of the investigation which are in the possession of counsel for the prosecution are not the property of the prosecution for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

...

Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the prosecution’s possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the prosecution. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.

Finally, it is suggested that disclosure may put at risk the security and safety of persons who have provided the prosecution with information. No doubt measures must occasionally be taken to protect the identify of witnesses and informers."

Lord Hutton went on to reject the limitation upon the prosecution’s duty of disclosure supported by R v Bryant (supra). He concluded as follows (at 476).

"In my opinion as the rule is recognised is one which can, in certain circumstances, operate to cause an injustice at the trial leading to an unsafe conviction and the imprisonment of the defendant, which can only be remedied sometime later by the Court of Appeal, the rule should not continue as part of the common law unless there is a strong countervailing argument to support it. But I consider that the risk that disclosure may assist the defence to tailor its evidence is not a consideration which should outweigh the risk that the operation of the rule may result in injustice."

These are weighty arguments, but I would not be prepared to depart from the principle established in In Re Van Beelen (supra) without hearing full argument directed to this point. In the present case it was only late in his submission that Mr Tilmouth QC confronted this obstacle to the acceptance of his argument. We did not have the benefit of a review of the authorities elsewhere in Australia, or of full argument on the point. In any event, I consider that this is an issue which can be put to one side.

Both R v Mills and Poole (supra) and R v Stinchcombe (supra) dealt with material gathered by the prosecution as part of the preparation of its case. In the present case, Ms Lleshi’s statement came into the hands of the prosecution under circumstances which meant that the statement was not to be regarded in the same way as other material held by the prosecution.

I have no doubt that the statement provided by Ms Lleshi to her solicitor was protected from disclosure by legal professional privilege. There can be no doubt that Mr Reci could not have required either Ms Lleshi or her solicitor to produce that statement by directing a subpoena to either of them, while Ms Lleshi maintained her privilege, even though the production of the statement would materially assist Mr Reci in his defence: Carter v The Managing Partner, Northmore Hale Davey & Leake (1995) 183 CLR 121.

If Ms Lleshi’s statement remained subject to legal professional privilege while in the hands of the Director of Public Prosecutions, it is difficult to see how an extended duty of disclosure could have required its production. I turn, then, to the question of whether the document remained subject to legal professional privilege while in the hands of the Director.

The statement was provided by the Legal Services Commission to the Director of Public Prosecutions on the basis that it could be perused by two persons only (the Director and a solicitor in his office). It was provided as part of a proposal that the Director accept a plea of guilty to a lesser charge than murder and further that the Director support the suspension of any sentence imposed upon Ms Lleshi. The provision of the statement had two apparent purposes. First, it set out Ms Lleshi’s part in the events, and so provided a basis for the Director to consider accepting a plea to a lesser charge. Secondly, it indicated what Ms Lleshi would say if she gave evidence as a result of the Director agreeing to her proposal.

If the Director had accepted her proposal, I consider that the statement would then have been material in his hands no different from any other material that was part of the prosecution case. But the proposal was not accepted. The plea to a lesser charge was accepted, but that is all, and the statement was returned to the Legal Services Commission at the request of Ms Lleshi’s solicitor.

I do not consider that there was any intention to waive privilege when the statement was forwarded to the Director, even though it was implicit in the proposal made on behalf of Ms Lleshi that privilege would be waived if the proposal was accepted. Although the Commission’s letter does not refer to the privileged status of the statement, the terms of the letter and the restriction imposed upon access to the statement are inconsistent with any intention to waive privilege. To the extent that there was a waiver of privilege, it was a limited waiver, not a general waiver. The waiver was limited in relation to persons (the Director and the solicitor in question and later the prosecutor at the trial) and for a limited purpose (consideration by the Director of Ms Lleshi’s proposal). Nor was the confidentiality necessary for the maintenance of privilege destroyed by the limited disclosure of the statement. Authority for the notion of a limited waiver of privilege is to be found in Goldberg v Ng (1995) 185 CLR 83 at 95 Deane, Dawson and Gaudron JJ, at 107-109 Toohey J, at 120-121 Gummow J.

I therefore reject the submission by Mr Tilmouth QC that there was an express and general waiver of privilege.

But is a waiver of privilege to be imputed? The relevant principles were stated by Deane J, Dawson J and Gaudron J in Goldberg v Ng (supra) as follows (at 95-96):

"The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether ‘fairness requires that his privilege shall cease whether he intended that result or not’ Wigmore on Evidence (McNaughton rev 1961), vol 8, par 2327, quoted with approval by Gibbs CJ and by Mason and Brennan JJ in Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481, 488. That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes."

Those members of the court went on to conclude that, in the case before them, it would be unfair to permit Mr Goldberg to rely upon legal professional privilege, even though he had disclosed privileged documents to a third party for a limited purpose only. Deane J, Dawson J and Gaudron J were influenced by the fact that the limited disclosure was voluntary, by the fact that the production was made to assist Mr Goldberg in one facet of what was an overall dispute with Mr and Mrs Ng, and by the fact that had privileged documents not been used Mr and Mrs Ng would have been entitled to inspect Mr Goldberg’s response to their complaint to the Law Society.

In the present case Ms Lleshi’s disclosure to the Director was voluntary, was made to assist her in dealing with charges preferred by the Director, and might have been available to Mr Reci but for the privileged status of the document.

However, there are countervailing factors. Ms Lleshi was not engaged in a civil (or criminal) dispute with Mr Reci. She was under no obligation to provide Mr Reci with her version of the events, or to answer any claim made by him in relation to those events. She was entitled to act in her own interests. She and Mr Reci were both facing charges brought by the Director. Her position as a co-accused was quite different from that of Mr Goldberg, a solicitor the subject of civil proceedings brought by his former clients and the subject of a complaint to the Law Society by his former clients about the same matters. There is no sense in which Ms Lleshi was using privileged material to gain an advantage in relation to Mr Reci. Moreover, one can appreciate the unfairness of Mr Goldberg using privileged material to answer, and to get a favourable outcome on, the complaint by Mr and Mrs Ng. But there is no unfairness, in my opinion, in one accused dealing with the Director, on a confidential basis, in relation to the criminal responsibility of that accused, at least if, as was the case here, the Director was not given material that could be used adversely to the other accused. To the contrary, I consider that fairness requires that each accused should be able to enter into proper negotiations with the Director on the basis that information may be disclosed to the Director without the consequence that such information must then be treated by the Director in the same way as other prosecution material in the Director’s possession. I think that considerations of policy (I mean, the wider interests in the proper workings of the criminal justice process) support the view that a limited waiver of privilege should be able to be made in a case like this.

I consider that there is no unfairness at all in allowing Ms Lleshi to inform the Director of her version of events on a confidential basis, for the purpose of securing favourable treatment, and maintaining that confidentiality in the particular circumstances of this case.

For those reasons, I also reject the submission that a waiver of privilege should be imputed by operation of law from the provision of Ms Lleshi’s statement to the Director.

I wish to emphasise that this is an area in which it is perilous to lay down general propositions. I do not hold the view that dealings between one of several co-accused and the Director could never give rise to an imputed waiver of privilege. I confine myself to the facts of this case.

Having concluded that privilege was not waived, except for a limited purpose, it follows in my opinion, that even if this Court were to adopt the wider view of the prosecution’s duty of disclosure, favoured by the House of Lords in R v Mills and Poole [1997] 3 WLR 458, in the circumstances of this case that would not mean that the statement of Ms Lleshi should have been disclosed to Mr Reci’s counsel. Nor would disclosure of the fact that the Director had seen Ms Lleshi’s statement have been required, or of any utility. I can identify no basis upon which the trial judge could have directed the provision of the statement to counsel for Mr Reci. In so concluding, I have assumed that the prosecution’s duty of disclosure, however formulated, does not override legal professional privilege that continues to attach to information communicated to the prosecution by one of several co-accused. I am aware of no authority on point. But, if that were not so, it seems to me that confidential negotiations with a prosecutor would become almost impossible, because any material information communicated to the prosecution would attract the ordinary duty of disclosure.

I should add that the court will be alert to prevent the prosecution manipulating legal professional privilege to escape its duty of disclosure, but there is no hint of that here.

I now must return yet again to the question of possible miscarriage of justice. Can it be said that there was a miscarriage of justice because the privileged status of Ms Lleshi’s statement had the result that material information, that would have assisted Mr Reci’s defence, was not communicated to him until after the conclusion of the trial? It must happen from time to time, as I said earlier, that a material witness refuses to provide information at the critical time, but agrees to do so later. That, in itself, does not give rise to a miscarriage of justice, in my opinion. Does it make a difference that, as here, there was an alternative source for the information that Ms Lleshi refused to give to Mr Vadasz, that that source of information was in the prosecution’s hands, but not produced to the defence because of the privilege that attached to it? I do not consider that it does make a difference. The defence was aware of the fact that Ms Lleshi was a potential material witness, and must have had some idea of what she could say. Ms Lleshi was available to be called by the defence, and willing to be called. All that was lacking was the indication of what she would say on the crucial points. It was fortuitous that the prosecution had access to her statement but under circumstances that meant that Mr Reci was not entitled to access as well. I find no unfairness to Mr Reci arising from that fact. It did not worsen his position in any way. All that happened was that the prosecution had access to her statement under circumstances such that it was under no obligation, indeed had no right, to produce it to the defence. There was no added obstacle to the access to the statement that Ms Lleshi declined to provide, acting upon advice given in her own interests.

For all those reasons, I conclude that there was no miscarriage of justice.

Separate trials

Ground 1 complains of the refusal of the trial judge to order that Mr Reci and Ms Zenuni be tried separately.

In my opinion this was a case in which it was desirable that there be a joint trial of the accused. Apart from the question of public expense and efficiency, there was the obvious desirability of the one jury resolving the differences in the accounts to be given by the two accused (although in the end Ms Zenuni did not give evidence): see R v Collie (1991) 56 SASR 302.

However, the question now is whether a miscarriage of justice has resulted from that decision. The mere fact that the joint trial resulted in the jury hearing evidence inadmissible as against Mr Reci does not establish a miscarriage: R v Collie (supra). That is a common result in a joint trial. The trial judge has the obligation to give the jury appropriate guidance in relation to evidence admissible against only one of the accused, and it is not to be assumed that a jury cannot or will not act on the judge’s instructions to them.

In the present case the complaint related, as often occurs, to the evidence of the police questioning of Ms Zenuni. In response to questions, Ms Zenuni said that while at the Simonis’ home Ms Lleshi and the Simonis were arguing violently, and that Mr Reci punched and kicked Ms Lleshi. In this respect, what Ms Zenuni said went beyond evidence given by Mr and Mrs Simoni (although only as a matter of degree). This material was not admissible against Mr Reci in that form, that is, as evidence of answers given by Ms Zenuni to the police.

The trial judge gave the jury a clear warning not to use this evidence against Mr Reci. Moreover, this evidence was one of only two parts of the evidence not admissible against both accused. It was not a case in which the jury would have found it difficult to put the evidence into separate categories. I find no reason to think that the jury would not have been able to exclude this evidence when considering Mr Reci’s guilt. Another factor, although of less weight, is that the evidence was not, in my opinion, evidence with particular prejudicial potential. Mr and Mrs Simoni gave evidence of an argument, of a knife being produced, and generally of events that would cause one to think that Mr Reci was angry with Mr Vuksani and willing to threaten others with a knife. They also gave evidence that Mr Reci struck Ms Lleshi. In short, the statements made by Ms Zenuni did not add much.

I am satisfied that there was no miscarriage of justice on this ground.

Ms Lleshi’s guilty plea

Ground 2 complains that the trial judge erred in refusing to admit evidence of Ms Lleshi’s guilty plea, and alternatively that he erred in directing the jury "to ignore her absence and not to speculate why she is not here" (Summing Up p 27).

It was submitted that the jury should have been told of Ms Lleshi’s guilty plea, so that they would understand that whatever violence may have been done to her by Mr Reci, it did not overbear her will. In my opinion there is nothing in that point. Her plea of guilty was made on the basis of her assistance to Mr Reci later in the night, and quite apart from that I consider that inviting the jury to draw inferences about the significance of her plea carried other dangers that made it unwise to do so.

Ms Zenuni’s failure to give evidence

Ms Zenuni did not give evidence at the trial.

During his address to the jury, counsel for Ms Zenuni suggested to the jury that they should reject any suggestion that Ms Zenuni had the knife belonging to Mr Reci, because if she had it she surely would have given it to the police: T1147. She would have done so, counsel argued, because producing Mr Reci’s knife would tend to exculpate Mr Reci and so exculpate Ms Zenuni.

I have explained earlier in my reasons why it is that proof that Mr Reci’s knife was not the knife found at West Beach would tend to exculpate him. I have also summarised Mr Reci’s evidence about the whereabouts of his knife. This was undoubtedly a significant issue at the trial.

Ground 2(a) complains that this submission constituted an invitation to impermissible speculation by the jury, Ms Zenuni not having given evidence. Complaint is further made that the trial judge endorsed that invitation.

I do have some doubts about the wisdom of inviting the jury to speculate on these matters, but I do not consider that the judge erred. Nor do I accept that there has been a miscarriage of justice on this ground.

The issue arose because, in his address to the jury, counsel for Mr Reci submitted strongly (T1117) that Mr Reci’s knife was not the murder weapon, and that Mr Reci’s knife had been given to Ms Zenuni who had hidden it. He argued that production of the knife would exonerate Mr Reci, and that Ms Zenuni’s silence "is corroboration for my client’s evidence that she took the knife away" (T1117).

In that context, and counsel for Ms Zenuni having responded as indicated, the trial judge rightly pointed out to the jury (Summing Up p 18) that Ms Zenuni’s silence did not endorse what Mr Reci said in evidence. The trial judge then (Summing Up p 19) reminded the jury of the response made by Ms Zenuni’s counsel, in terms that could imply some endorsement of it.

I consider that, counsel for Mr Reci having argued to the jury as he did, he cannot now complain that a miscarriage of justice arises from the jury being invited to consider what is, after all, a fairly obvious response. It was, perhaps, inevitable that the jury would in any event consider the lines of reasoning that counsel suggested to them, bearing in mind the relevance of the whereabouts of the knife, and the fact that Ms Zenuni did not give evidence. Perhaps the jury should have been warned not to speculate, about the dangers of doing so, but I do not accept that any miscarriage has occurred.

Direction about the accused giving evidence

The trial judge directed the jury (Summing Up p 3) to consider the evidence of the accused in the same way as they considered the evidence of other witnesses. He did not direct them that they could give the accused such credence as they saw fit for electing to give evidence. Ground 3 complains of this omission. The judge did tell the jury that the accused did not have to give evidence.

The short answer to this complaint is that the judge was not obliged to give the direction sought. Many judges do so, but not all do. Such authority as there is in this State, so far as I am aware, is to the effect that it is not obligatory to do so: R v Robinson and Tiplady (1985) 123 LSJS 37 at 38, King CJ. No contrary authority was cited to us.

I would reject the ground of appeal.

Motive

Ground 4 complains that the judge failed to direct the jury that lack of a proved motive was relevant to the determination of guilt.

The trial judge said that the jury might think that the killing was without a motive, but added that the prosecution did not have to prove a motive: Summing Up p 10.

In my opinion it would have been better if the judge had reminded the jury that an absence of motive was relevant to their determination of the accused’s guilt, but to fail to do so was not an error of law. Nor, in this case, could it have led to a miscarriage of justice. I consider that the judge’s suggestion that this might be a killing without a motive was a generous one. Mr Reci had, earlier that evening, displayed considerable anger about the rumours about himself and Ms Lleshi, and a wish to confront the person responsible for the rumours. To my mind, with all respect to the trial judge, it was open to the jury to conclude that this was the reason for Mr Reci going to Mr Vuksani’s flat, confronting him, and attacking him.

I reject this ground of appeal.

Character directions

Evidence was given by Mrs Simoni that prior to the night in question she had not seen Mr Reci threaten anyone or behave in a violent manner. There was evidence from others that he was polite and quiet. Counsel for Mr Reci asked the trial judge to remind the jury of this evidence. The judge did so, but went on to say (Summing Up p 148) that "Sometimes even a person who has had a good character in the past might, unfortunately, commit a crime for the first time".

Ground 5 complained of this addition, treating it as part of a character direction.

However, in arguing the ground, the relevant evidence was not really put as evidence of good character. The real point made was that Mrs Simoni’s evidence suggested that when Mr Reci left her home he had settled down, or calmed down, and that this was relevant to the frame of mind in which he went to Mr Vuksani’s flat.

However the evidence is viewed, in my opinion what His Honour said was permissible. To the extent that good character was raised, the comment was not so expressed as to erode unfairly the effect of the evidence of good character. The comment was an obvious one: cf. R v Trimbole (1979) 21 SASR 577 at 577-578, King CJ. To the extent that the evidence went to Mr Reci’s frame of mind that night, the further direction seems to miss the point somewhat, but is innocuous. Counsel for Mr Reci did not ask for anything more to be said, although given the opportunity to do so.

I reject this ground of appeal.

Unsafe and unsatisfactory verdict

The application for leave to appeal on this ground was referred to this Court for consideration.

The essence of the submission was that the conviction was unsafe because Mr Reci’s version of events was more consistent with the evidence about the injuries to Mr Reci and to Mr Vuksani (and the circumstances in which they might have been sustained), than the prosecution’s version of events. Alternatively, each version was equally consistent with the evidence about the injuries.

Without going into detail, it is fair to say that the expert witness relating to the injuries suffered by Mr Vuksani acknowledged that they could have been sustained in circumstances described by Mr Reci. But, again without going into detail, there remains the disparity between the injury done to the two men, the circumstances under which Mr Reci went to Mr Vuksani’s flat, and the evidence about the entry by Mr Reci into the flat. These are matters to which the jury was entitled to give considerable weight. It is probably right to say that, taken in isolation, the injuries did not prove who was the aggressor, but only who won the fight. However, the jury had other evidence to take into account. The expert evidence about the circumstances in which the injuries might have been sustained did not draw on that other evidence.

In my opinion there was evidence upon which the jury, acting reasonably, could conclude beyond reasonable doubt that Mr Reci was guilty of murder.

I would give leave to appeal on this ground, but having heard argument would reject this ground of appeal.

Conclusion

In my opinion the appeal against conviction should be dismissed.

COX J

I agree with the orders proposed by the Chief Justice for the reasons that he has given.

LANDER J

I also agree with the reasons and orders proposed by the Chief Justice.