R v Rowe - [2004] SASC 424

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROWE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
17 December 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - DIRECTION TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appeal against conviction - the appellant was convicted by a jury of shooting with intent to do grievous bodily harm - whether the Judge erred in refusing the appellant's application for a permanent stay of the trial and the proceedings on Information and later declining to reconsider that refusal - where one of the police officers involved in the investigation of a number of offences of which the appellant was suspected committed suicide during the trial but before giving evidence - where the appellant asserted that the police officer was a material witness and had manufactured evidence against the appellant - where the appellant asserted that there had been a lack of proper disclosure of material by the police and the Director of Public Prosecutions - whether the appellant received a fair trial and could receive a fair trial - consideration of events leading up to the trial and the course of the trial - whether the Judge erred in his directions to the jury as to evidence from a number of witnesses who said they saw a man in the vicinity of the premises where the shooting occurred at about the time of the shooting - whether the verdict of guilty was unsafe and unsatisfactory because it was unreasonable or could not be supported having regard to the evidence - whether the Judge erred in his directions in relation to the evidence of Mr Ravlic, a prosecution witness - where Mr Ravlic was a "career criminal" and an associate of the appellant at the time of the shooting and gave evidence that the appellant had admitted that he had committed the shooting and other offences - appeal dismissed.
Criminal Law Consolidation Act 1935 ss 21, 359, referred to.
Jago v District Court (NSW) (1989) 168 CLR 23; M v The Queen (1994) 181 CLR 487, discussed.
R v Basha (1989) 39 A Crim R 337; R v MDR (2002) 223 LSJS 405; Rona v District Court of South Australia (1994) 63 SASR 223; Gorman v Fitzpatrick (1987) 32 A Crim R 330; R v Sams (1988) 36 A Crim R 245; R v Adler (unreported, Court of Criminal Appeal (NSW), 11 June 1992); R v Goldburg (unreported, Court of Criminal Appeal (NSW), 23 February 1993; R v McCarthy (unreported, Court of Criminal Appeal (NSW), 12 August 1994); Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; Bromley v The Queen (1986) 161 CLR 315; R v Johnson (2004) 89 SASR 294, considered.

R v ROWE
[2004] SASC 424
Court of Criminal Appeal: Doyle CJ, Besanko and White JJ

DOYLE CJ: I have had the benefit of reading the reasons prepared by Besanko J. I agree with him that the grounds of appeal raised by the appellant, in his attack on the conviction, should be rejected. The appeal should be dismissed. There is nothing that I can usefully add to the reasons prepared by Besanko J.
BESANKO J: This is an appeal against conviction. The appellant is Michael Dean Rowe and he was convicted of shooting at Mr George Thomson with intent to do grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935 (“CLCA”). The particulars of the offence are that on 19^th June 2001 at Lonsdale the appellant unlawfully and maliciously shot at Mr Thomson with intent to do grievous bodily harm.
The trial was listed to commence before a Judge and jury in this Court on 2^nd September 2002. Before a jury was empanelled, there was a lengthy preliminary examination of various witnesses. This came about because the appellant objected to the admission of certain evidence and because the prosecution delivered an important witness statement to the defence only days before 2^nd September 2002 and the Judge considered it appropriate to allow what is often referred to as a Basha enquiry (R v Basha (1989) 39 A Crim R 337). A jury was empanelled on 11^th October 2002 and the trial continued until 13^th December 2002 when, by a majority, the jury returned a verdict of guilty. The appellant did not give evidence, nor did he call evidence.
The appellant applied for leave to appeal against the conviction and he put forward nine grounds of appeal. A single Judge of this Court granted leave to appeal in relation to four grounds of appeal (ie., grounds 1, 4, 6 and 7). He refused leave to appeal in relation to the other five grounds of appeal put forward by the appellant (ie., grounds 2, 3, 5, 8 and 9) although he did give leave for the particulars in proposed ground 6 to be amended to include ground 9. An application to the Full Court of this Court for leave to appeal in relation to grounds 2, 3, 5 and 8 was refused on 23^rd April 2004. The Court noted that grounds 2, 3 and 8 would constitute items by way of particulars to ground 6. There is one other matter I should mention at this stage. On 5^th January 2004 the appellant issued an application seeking various orders pursuant to s 359 of the CLCA. The orders sought were directed to the Director of Public Prosecutions (“the Director”), the Crown Solicitor and the Commissioner of Police and were sought in order to show that proper disclosure of relevant information had not been made before the trial and as a result the appellant had not received a fair trial. The appellant’s solicitor filed and served affidavits in support of the application. That application is not pursued by the appellant.
The appellant issued a further application on 9^th August 2004 wherein he sought leave to lead further evidence before this Court, again with a view to showing that proper disclosure of relevant material had not been made by the police and/or the Director. In broad terms, the further evidence consisted of correspondence after the verdict from the Crown Solicitor on behalf of the police, and from the Director, which contains information the appellant submits should have been disclosed to him before or at trial. In particular, the appellant submits that he only became aware after the verdict that information supplied by a police officer to the Crown Solicitor and conveyed to the appellant in answer to a subpoena the appellant had issued to the Commissioner of Police was false. That fact is said to be material to the allegation by the appellant that police officers had manufactured evidence against him. The Court received the correspondence subject to an argument about its relevance.
Before summarising the prosecution case it is convenient at this point to briefly outline the four grounds of appeal.
The first ground of appeal involves a challenge to the Judge’s refusal of the appellant’s application for a permanent stay of the trial and the proceedings on the Information. The Judge refused the application on 5^th December 2002 and declined to reconsider his decision on 9^th December 2002. The basis of the appellant’s application was that one of the police officers involved in the investigation of a number of offences for which the appellant was a suspect committed suicide on 23rd October 2002. The officer, Mr Merrett, was to be a witness for the prosecution and his death meant that he was not available for cross-examination by the appellant. It was said that he was a material witness and that he and others had manufactured evidence against the appellant. The appellant also relied on what he submitted was a lack of proper disclosure of material information by the police and by the Director. It was said that Mr Merrett’s death and the lack of proper disclosure meant that the appellant could not receive a fair trial and the Judge should have permanently stayed the proceedings. The appellant submits that this Court should find that he did not receive a fair trial, and as I understand it, could not receive a fair trial. In order to consider the appellant’s submissions in relation to this ground it will be necessary to look closely at the events leading up to the trial and the course of the trial.
The second ground of appeal involves a challenge to the Judge’s directions to the jury in relation to the evidence of a number of witnesses who said they saw a man in the vicinity of the premises at Lonsdale at about the time Mr Thomson was shot. No witness was able to positively identify the appellant as the shooter. The victim, Mr Thomson, identified the man who shot him as “looking like” or “looking similar to” the appellant and other witnesses described the features of a man they saw in the vicinity of the premises at about the time of the shooting. The trial Judge gave directions about this evidence, but the appellant submits that his directions were inadequate.
The third ground of appeal involves a challenge to the verdict on the ground that it is unsafe and unsatisfactory because it is unreasonable or cannot be supported having regard to the evidence. It is said that there has been a substantial miscarriage of justice. For reasons I will give, most of the matters put forward by the appellant in support of this ground are matters properly considered in relation to the first ground of appeal.
The fourth ground of appeal involves a challenge to the Judge’s directions in relation to the evidence of an important prosecution witness, Mr Nenad Ravlic. Mr Ravlic was an associate of the appellant in June 2001. He was called as a witness by the prosecution and he gave evidence that the appellant admitted to him that he had shot Mr Thomson and that he had committed other offences which I will identify in the course of these reasons. Mr Ravlic accepted that he was a “career criminal” and the appellant submitted that the trial Judge’s directions to the jury in relation to Mr Ravlic’s evidence were inadequate.
I turn now to outline the prosecution case.
The prosecution case
The prosecution case was that at about 1.00 pm on 19^th June 2001, the appellant s hot Mr Thomson a number of times. The shooting took place at Mr Thomson’s place of business, namely, a crash repair yard at 13 Waddikee Road, Lonsdale. I will refer to the premises as the Lonsdale premises. There was conflicting evidence at trial as to whether Mr Thomson was shot twice or three times. I will need to return to this evidence later. Mr Thomson received gunshot wounds to his left and right thighs and to his right forearm. The prosecution case was that the appellant left the Lonsdale premises on foot.
The police attended the Lonsdale premises and they found two spent cartridge cases and a lead projectile. These items were examined by Mr Peter Lawrence, a police officer who had experience in ballistics. The appellant was arrested by the police at the Adelaide Manor Motor Inn, Gepps Cross, on 30^th June 2001. The evidence was that he had been in room 23. At the time of his arrest, the police found a .22 Margolin pistol (“the Margolin pistol”) and a quantity of .22 calibre ammunition in room 23. Mr Lawrence examined the cartridge cases and lead projectile found at the Lonsdale premises and the Margolin pistol and he conducted a series of tests. He found that one of the cartridge cases found at the Lonsdale premises had been fired from the Margolin pistol to the exclusion of all other firearms. Mr Lawrence found that the second cartridge case found at the Lonsdale premises was consistent in its appearance with it having been fired from the Margolin pistol, but there was insufficient correspondence of the individual characteristics of the second cartridge case to form the conclusion that it had been fired from the Margolin pistol to the exclusion of all other pistols. Mr Lawrence found that the spent lead projectile found at the Lonsdale premises could have been fired from the Margolin pistol, but could not be conclusively matched to it.
The prosecution case was that on 19^th June 2001 the appellant had possession of the Margolin pistol used to shoot Mr Thomson. The prosecution also sought to prove that the appellant had possession of the Margolin pistol on 16^th June 2001. That is three days before Mr Thomson was shot, and in fact the prosecution sought to prove that he used it on 16^th June 2001 to commit an offence.
The prosecution case was that the appellant used the Margolin pistol to shoot at a motor vehicle at Black Forest on 16^th June 2001. This was referred to in submissions as the “drive-by shooting” and it is convenient to adopt that description of the incident. The prosecution case was that a Mr Douglas Cranmar owned the motor vehicle which was shot at and that at the time it was parked at his residence at 1/70 East Avenue, Black Forest. The shooting took place at about 5.30 pm on 16^th June 2001 and after the shooting the police collected five spent cartridge cases from the roadway. These spent cartridge cases were examined by Mr Lawrence. After conducting a series of tests, Mr Lawrence found that the spent cartridge cases taken from the roadway at the scene of the drive-by shooting had been fired from the Margolin pistol.
The prosecution case was that the appellant had a motive to commit the drive-by shooting. Mr Cranmar knew a Mr Carl Loleit and a Ms Karen Weightman and it seems that Mr Loleit’s son, Ben, was staying with Mr Cranmar. The prosecution case was that the appellant had argued with Mr Loleit during the early hours of 16^th June 2001, and that Mr Loleit had previously parked his Holden Commodore in the parking space where Mr Cranmar’s Commodore was parked at the time of the drive-by shooting. In addition to the argument with Mr Loleit, the prosecution had evidence of another matter. The prosecution case was that in June 2001 a Ms Tammy Daley was the appellant’s girlfriend. Ms Daley was arrested on 7^th June 2001 in connection with the possession of stolen property and she gave the name Ms Karen Weightman and an address of 17 Easton Avenue, Happy Valley. The house at that address was subsequently searched by police and Ms Weightman was arrested. There was evidence from Mr Ravlic that the appellant was having problems in terms of his relationship with Ms Daley and that he blamed Mr Loleit and Ms Weightman for those problems.
The prosecution case was that a motor vehicle was used by the appellant to commit the drive-by shooting and that the vehicle he used was a green Holden Commodore registration number UGX 402 (“the green Commodore”). The green Commodore was owned by Mr Scott Baker. On 13^th June 2001 it was stolen from the carpark of the Aberfoyle Hub Tavern. It was found by two police officers on the evening of 18^th June parked on Panatalinga Road, Woodcroft. The registration plates of the vehicle had been changed. A thorough search of the vehicle was carried out the following morning at the Christies Beach police station. A number of stolen items were found in the vehicle together with documents in the name of the appellant. That was the day upon which Mr Thomson was shot. Mr Thomson was shot at about 1.00 pm. The green Commodore was thoroughly searched in the morning.
A number of police officers were involved in the search of the green Commodore on the morning of 19^th June 2001. One of the police officers, Mr Eamon Gaffney, found a cartridge case in the rear passenger side foot well of the vehicle. He put it in his pocket and later that day he gave it to Mr Maiden, a police officer employed in the ballistics section. The spent cartridge found in the green Commodore was examined by Mr Lawrence and he found that it had been fired from the Margolin pistol.
The prosecution led evidence which it said established that the appellant had used the green Commodore. The two police officers who found the green Commodore on the evening of 18^th June 2001 conducted a cursory search of the vehicle that evening. They found a report from a radiology business (Benson Radiology) in the name of the appellant in the vehicle. During the thorough search carried out the following morning, the police found a number of items in addition to the cartridge case. There were two driver’s licences in the name of Mr Darryl A Evans but bearing the appellant’s photograph. Two other important documents were found. First, the police found a greeting card upon which the following message was written:
“Saturday
Very disappointed Tammy. You forgot it all, already the messages you passed, hurt. I now withdraw that service so you can’t hurt or attack my feelings. He will not be seeing you again. He’s only there for me, 2 U silly! As 4 Karen, John Carl etc, you gave the filth the address of the lab according to them. I did a drive-by to shut one of em up from bad mouthing you.”
The prosecution case was that this message was written by the appellant and the reference to “Karen” and “John Carl” is a reference to Ms Weightman and Mr Loleit respectively. The reference to “you gave the filth the address of the lab according to them is a reference to information provided by Ms Daley subsequent to her arrest on 7^th June 2001 and a reference to police attending at 17 Easton Avenue, Happy Valley. The reference to “I did a drive-by” is a reference to the drive-by shooting on 16^th June 2001.
Secondly, the police found a list containing a series of notes in the green Commodore and one note read, “what she wants in interim, TV, clothes, looks, music” and “cops have stated she talked. We know that’s crap.” The prosecution case was that this is a reference to Ms Daley who was in custody from 7^th June to 29^th June 2001.
In addition to the circumstantial evidence suggesting that the appellant had committed the drive-by shooting, Mr Ravlic gave evidence that the appellant had admitted as much to him. The prosecution case was that the appellant committed the drive-by shooting on 16^th June 2001, that the Margolin pistol was used in the drive-by shooting and that it was this pistol which was used to shoot Mr Thomson. As I have said, the Margolin pistol was found in room 23 at the time of the appellant’s arrest on 30^th June 2001.
I turn now to the prosecution case as to the circumstances surrounding the shooting on 19^th June 2001.
The victim, Mr Thomson, was the only witness to the shooting on 19^th June 2001. The police carried out what is called a photoboard identification procedure with Mr Thomson and one of the photographs was a photograph of the appellant. Mr Thomson did not positively identify the appellant as the man who shot him, but he did say in relation to the appellant’s photograph, “that guy there looks like him hey” and that it was “just the shape of his face I suppose” and that it was a “combination of the shape of the forehead and the receding hairline”.
There were a number of people in the vicinity of the Lonsdale premises at the time of the shooting and they heard the shots and Mr Thomson’s subsequent cries for help. Mr Howkins was in a vehicle adjacent to the premises when he heard Mr Thomson’s cries for help and approximately 10 seconds later he saw a male walking out of the driveway of the premises. He had a quick glance at the person’s face. He also was shown a photoboard by the police and he indicated the appellant’s photograph and another photograph as possibly the person he saw leaving the premises.

This evidence of Mr Thomson and Mr Howkins was led by the prosecution not as identification evidence but as a piece of circumstantial evidence. Other witnesses including Mrs Howkins and a Mr Brenton Koch who I will mention later in these reasons, gave evidence of a man they saw in the vicinity of the premises and of his physical features and clothing.
The prosecution also relied on events which occurred earlier on 19^th June 2001. Between 10.15 pm on 18^th June 2001 and 5.00 am on 19^th June 2001 a silver VL Commodore (“the silver Commodore”) was stolen from the home of Ms Glenda Purvis who lived at 7 New England Drive, Reynella. The silver Commodore was found by the police at the Southgate Plaza Shops at about 8.00 pm on 19^th June 2001. Mr Thomson was shown photographs of the silver Commodore and he said that he saw a motor vehicle similar to the one shown in the photographs driving slowly past the Lonsdale premises on two occasions before he was shot. He also said that his assailant produced a gun from behind a blue clipboard, and when the silver Commodore was recovered the only item missing from the vehicle was a blue three-ringed A4 folder.
The prosecution also relied on evidence from a Ms Rebecca West who at about 7.40 am on 19^th June 2001 was walking along Bordeaux Drive, Woodcroft. She saw what she thought was a silvery blue VX Commodore which was not obviously different from the vehicle shown in the photograph of the silver Commodore. She saw a male inside the vehicle who she described as a well built athletic looking male with short dark hair. He was sitting in the driver’s seat. As Ms West approached the vehicle the occupant put his head down as if to avoid eye contact and busied himself looking at papers on the passenger’s seat looking away from Ms West. Ms West saw papers and possibly a notepad on the front passenger’s seat of the vehicle. The photographs of the silver Commodore showed papers and a notepad on the front passenger’s seat of the vehicle. The prosecution case was that the description of the man given by Ms West was consistent with the appellant. Ms West participated in a photographic identification procedure on 23^rd June 2001 but she was unable to positively identify any of the persons shown in the folder as being the person in the vehicle. After the observations referred to above, Ms West continued on her walk and as she did so she noted that the vehicle had moved to a different position but was still in the same general area.
The prosecution case was that the appellant stole the silver Commodore and used it to transport himself to and from the scene of the shooting at the Lonsdale premises. It will be remembered that the prosecution case was that the appellant had abandoned the green Commodore on the evening of 18^th June 2001.
I turn now to the prosecution case as to the events which occurred after the shooting and up to the time of the appellant’s arrest on 30^th June 2001. The police were looking for the appellant in connection with offences committed prior to 19^th June 2001 but had been unable to locate him.
On the morning of 29^th June 2001 the police held a briefing at the Thebarton Barracks regarding the surveillance of Mr Ravlic and Ms Daley. Later that day they received information to the effect that the appellant was in room 23 at the Adelaide Manor Motor Inn at Gepps Cross. The police went to the motel and room 23 was cordoned off by police. A siege developed. At one stage the appellant left the room and confronted police whilst armed with a handgun. He then returned to the room. Mr Ravlic and Ms Daley were present in the room with the appellant, but they left before the appellant was arrested. At about 1.00 am on 30^th June 2001 the appellant surrendered himself to police officers and he was arrested. Police officers searched room 23 and located a quantity of clothing, stolen items with numerous pieces of identification in the names of other people, and, as I have said, the Margolin pistol and a quantity of .22 calibre ammunition. The police also found a letter which on the prosecution case was written by the appellant. It is not necessary to outline in any detail the reasons why the prosecution asserted that the appellant wrote this letter. The prosecution said that the letter provided a link between the appellant and the green Commodore and the card (containing an admission by the author of having committed the drive-by shooting) found in the green Commodore. The letter found in room 23 refers to police getting his clothes from a vehicle. The police found clothes in the green Commodore and new clothes were found in room 23.
As I have said, the prosecution called Mr Ravlic and he gave direct evidence capable of proving that the appellant shot Mr Thomson. Mr Ravlic said that the appellant had purchased a handgun from a person called Jim at the Royal Hotel, that he had expressed animosity towards Mr Loleit and Ms Weightman and that he admitted committing the drive-by shooting in that he said that he had pumped a few bullets into the car because Karen had ripped him off and owed him money. Mr Ravlic gave evidence that the appellant admitted to him that he had shot Mr Thomson.
Other relevant matters and the course of the trial
There are some other matters which are relevant in view of submissions put on the appeal.
On 14^th May 2001 Mr McDaid, a police officer stationed at the Sturt police station, confronted an intruder in residential premises. The intruder was suspected of committing an aggravated serious criminal trespass. Mr McDaid was assaulted by the intruder. The police suspected the appellant of having committed the assault on Mr McDaid.
On 7^th June 2001 police officers searched residential premises at 58 Deloraine Avenue, Edwardstown (“the Deloraine Avenue premises”). They found a number of items of stolen property and items identifying the appellant. Mr Merrett was one of the police officers involved in the search. The police seized a number of items of property. Some of the items appear not to have been properly recorded in the records kept by the police and some items appear to have been lost. As I understand it, as a result of what was found at the Deloraine Avenue premises, the appellant was suspected of committing a number of serious criminal trespasses. Furthermore, it seems that as a result of what was found in the Deloraine Avenue premises (among other things) Ms Daley was arrested and was in custody from 7^th June 2001 until she was released on bail on 29^th June 2001.
As I have said, Mr Ravlic was an associate of the appellant in June 2001. There was evidence that Mr Ravlic was involved in the large-scale theft of motor vehicles in the period between June and August 2001. The alleged value of the vehicles which were stolen was in the order of $250,000. Mr Ravlic was charged with various offences in relation to this conduct. He was sentenced by a Magistrate on 5^th December 2001 and he was given a suspended sentence. Mr Merrett wrote what was referred to as a letter of comfort and that was provided to the Magistrate. The letter referred to Mr Ravlic’s role in the siege on 29^th June 2001.
There was contact between Mr Merrett and Mr Ravlic in June 2001 and in particular on 20^th and 22^nd June 2001. I will describe this contact in more detail later. It is sufficient to say at this point that Mr Ravlic was providing information to Mr Merrett about the appellant and his movements.
On 4^th July 2002 Mr Peter Bikic, a police officer stationed at the Sturt police station reported Mr Ravlic for three offences allegedly committed in April 2002, namely, non-aggravated serious criminal trespass, unlawful possession and false pretences. These matters had not been dealt with as at the date of trial. The appellant said that the report for these offences was important because it meant that at the time Mr Ravlic agreed to give evidence in the trial he faced possible imprisonment and this fact could have been used to pressure him to give false evidence against the appellant.
The appellant submits that he did not and could not receive a fair trial. In those circumstances it is necessary to consider certain events which occurred before and at the trial.
In March 2002 a Judge of this Court fixed 2^nd September 2002 as the commencement date of the trial. At that time the charge against the appellant was attempted murder and the present charge was laid only a few weeks before 2^nd September 2002. Although on the material presented to this Court it is difficult to make precise findings, it seems that until shortly prior to that date, the prosecution saw its case as a fairly straightforward case. The appellant had been interviewed by Mr Merrett and another police officer, Mr Paul Yeomans, on 6^th July 2001. During the course of that interview the appellant admitted committing various offences including the illegal use of a motor vehicle (ie., the green Commodore) and the drive-by shooting. Mr Yeomans said that although it was not recorded on the video on 6^th July 2001 the appellant admitted to having shot Mr Thomson. The question of the admissibility of various admissions by the appellant to the police was one of the reasons for the preliminary examination. The Judge ruled that various conversations between the appellant and police officers were inadmissible (R v MDR (2002) 223 LSJS 405). There were a number of conversations but it is unnecessary to set out the details.
In addition to the trial Judge’s ruling, the appellant had issued a wide- ranging subpoena to the Commissioner of Police on 17^th July 2002.
It was said that these two events caused the prosecution to change its view of the case it was planning to present. From the prosecution’s point of view the case was now a bigger and more complicated case. At a directions hearing before the Judge on 13^th August 2002 the prosecution made an application that the trial date be vacated. The application was refused by the Judge.
There was another directions hearing before the Judge on Wednesday 28^th August 2002. To that point, there had been no suggestion that Mr Ravlic would be a witness for the prosecution and no statement by Mr Ravlic had been delivered to the appellant.
Mr Ravlic made a statement to Mr Merrett on Friday 30^th August 2002. The statement is 12 pages in length, and it deals with a number of important matters including the following:
·Mr Ravlic’s relationship with the appellant and Ms Daley.
·the fact that the appellant and Ms Daley lived at the Deloraine Avenue premises for a time.
·the fact that Ms Daley was arrested a short time before 9^th June 2001.
·the fact that one evening in June 2001 he and the appellant were at a hotel at about 6.00 pm to 6.30 pm. The appellant said to Mr Ravlic that he was going to purchase a pistol from a man called “Jim”. He went outside and when he returned he showed Mr Ravlic a pistol.
·the fact that the appellant admitted to Mr Ravlic that he committed the drive-by shooting.
·the fact that the appellant admitted to Mr Ravlic that he shot Mr Thomson.
·the fact that Mr Ravlic was interviewed by Mr Merrett and another police officer, Mr Johnson, on 20^th June and that he spoke to Mr Merrett again on 22^nd June 2001.
·the fact that the appellant admitted to Mr Ravlic that he drove the green Commodore and that he abandoned it on Panatalinga Road, Woodcroft.
·the circumstances surrounding the events involving the appellant, Ms Daley and himself on 29^th and 30^th June 2001.
The trial commenced on Monday 2^nd September 2002 and, as I have said, there was a lengthy preliminary examination. Mr Ravlic, Mr Merrett and Mr Yeomans, among others, gave evidence at the preliminary examination. There were a number of issues at the preliminary examination but for present purposes the two significant issues were the statements made by the appellant to police officers, including the interview of the appellant by Mr Merrett and Mr Yeomans on 6^th July 2001, and the Basha enquiry which was ordered because of the late delivery of Mr Ravlic’s statement. In the course of the preliminary examination both Mr Ravlic and Mr Merrett were examined and cross-examined about the circumstances under which Mr Ravlic’s statement came to be provided.
Before us, counsel for the Director conceded that the prosecution case was poorly prepared and it appears that information was being provided to the appellant and his advisers as the trial proceeded.
Mr Merrett was to give evidence for the prosecution. On 23^rd October 2002 Mr Merrett committed suicide. The parties agreed certain facts in relation to Mr Merrett’s death and these were put before the jury. One of the agreed facts is as follows:
“The prosecution agrees that shortly before Detective Merrett took his own life he recorded a conversation in which he stated, amongst other matters of a personal nature, the following:
‘It is 8 p.m. on 22 October 2002. I am here at Kingston Park. I haven’t had any sleep. The reason for this, I know to someone it might seem quite trivial, it involves a court case of which last night I realised I have not replied to a subpoena correctly. I haven’t provided the defence with, um, an apprehension report during the subpoena time and a tape that has gone missing, a tape of the conversation. I just want to walk around and be able to look people in the eye. If I do this then this court matter fucks up. I don’t think I’ll be able to’.”
On 28^th October 2002 the prosecution made an application for an order declaring a mistrial as a result of Mr Merrett’s death. More accurately, it was probably an application for the discharge of the jury having regard to the events which had happened. At all events, the appellant opposed the application and the Judge refused to discharge the jury.
The trial proceeded and a number of witnesses were called, including Mr Ravlic. The cross-examination of Mr Ravlic by counsel for the appellant was extensive.
As I have said, on 5^th December 2001, and after the prosecution had closed its case, the appellant applied for a permanent stay of the proceedings on the ground that the appellant could not receive a fair trial. He relied on the fact that the prosecution had not made adequate disclosure of relevant information and that as a result of Mr Merrett’s death he was unable to cross-examine Mr Merrett. The prosecution opposed the application and it was refused by the Judge. On 9^th December 2004 the Judge refused to reconsider his ruling.
As I have said, the appellant elected not to give evidence or call evidence and he was found guilty by majority verdict of the jury on 13^th December 2002.
There is one other matter before I leave this outline of other relevant matters and the course of the trial. I have mentioned the subpoena issued by the appellant to the Commissioner of Police on 17^th July 2002. Paragraphs 6, 12 and 14 of the subpoena are in the following terms:
“6.Any record of conversations or notes of any conversation either written or recorded by audio or video between members of South Australian Police and Tammy Daley (other than with Constable Kerrish on 7 June 2001) in relation to alleged offences said to have been committed by her, or in association with Michael Rowe or any offences alleged to have been committed by Michael Rowe.
…
12.South Australian Police documents including files, reports, journals, operational records, correspondence, notes or computer generated material regarding the investigation by the South Australian Police of Michael Dean Rowe and/or Tammy Daley in relation to offending alleged to have involved theft of property and/or vehicles, possession and/or use of firearms for the month of June 2001.
…
14.South Australian Police documents including files, reports, journals, operational records, correspondence, notes or computer generated material in relation to enquiries made with or about Nenad Micheal Ravlich (Ravlick, Ravlik, Ravlic) in relation to allegations of criminal offending where the suspect was himself and/or Micheal Dean Rowe, and/or Tammy Daley, and Mitsubishi van SPS-998 for the period 1^st of June 2001 to 1^st of August 2001.”
The Crown Solicitor responded on 13^th August 2002 in the following terms:
“6.I am instructed that the only discussion with Daley in relation to Rowe was as to his known whereabouts. I am instructed that she was unable to provide and (sic) information to the police. There are no records made of that discussion however, I have requested that an affidavit be provided deposing to those matters. A copy of the affidavit will be provided when it is received.
…
12.Copies of the masked case management system is (sic) to be produced.
…
14.I am instructed that there are no documents in existence to satisfy this portion of the subpoena.”
The Crown Solicitor provided a further response on 29^th August 2002 in the following terms:
“6.I am instructed that a declaration is being prepared in relation to this matter.
…
12.With reference to your letter of 20 August 2002 I am instructed that there is no case management system in existence in relation to the drive by shooting as that is treated as a summary offence.
…
14.I am instructed that there are no documents held by client relating to this motor vehicle and the persons named in this paragraph.”
I turn now to consider the grounds of appeal.
First ground of appeal – permanent stay
The appellant submits that the continuation of the proceedings after 5^th December 2002 was an abuse of process and that the proceedings should have been permanently stayed. The appellant submits that the continuation of the proceedings was an abuse of process because in the circumstances he could not receive a fair trial. As I have said the two factors which the appellant relies on to support his submission are his inability to cross-examine Mr Merrett due to his death and the prosecution’s failure to make proper disclosure.
There is no doubt that the power of the Court to stay criminal proceedings for abuse of process includes the power to stay permanently. This may be done to prevent the prosecution of proceedings which will result in an unfair trial, or to prevent the prosecution of proceedings brought for an improper purpose. Furthermore, the categories of abuse of process are not closed (Jago v District Court (NSW) (1989) 168 CLR 23 per Brennan J at 47) (“Jago”). It is not necessary to decide if the power to prevent the prosecution of proceedings which will result in an unfair trial is an aspect of abuse of process or a distinct rubric as King CJ described it in Rona v District Court of South Australia (1994) 63 SASR 223 at 226. The fact is that in an appropriate case the Court has the power to permanently stay criminal proceedings if their prosecution will result in an unfair trial.
Although Jago was a case in which the unfairness was said to consist of delay in bringing criminal proceedings to trial, the reasons for judgment in that case make it clear that the concept of fairness cannot be precisely defined and must be assessed having regard to all the circumstances of the case. Furthermore, in determining what fairness requires the Court must balance a variety of considerations including the accused’s right to a fair trial on the one hand, and the right of the community to expect that persons charged with serious criminal offences are brought to trial on the other. In Jago, Mason CJ said (at 34):
“To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’: Barton, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’:”
Brennan J said (at 47):
“Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v The Queen), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation), absence of competent representation (McInnis v The Queen); MacPherson v The Queen), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”
A little later, he said (at 54):
“In the onward march to the unattainable end of perfect justice, the courts must not forget those who, though not represented, have a legitimate interest in the court’s exercise of its jurisdiction. In the broadening of the notion of abuse of process, however, the interests of the community and of the victims of crime in the enforcement of the criminal law seem to have been depreciated, if not overlooked. How has this occurred? The notion of abuse of process was pressed into service as the means of constraining prosecuting authorities to eliminate delays. But it will not do. It involves the courts in extraordinary evaluations of the investigative process and of the resources of law enforcement agencies which, in my view, the courts are unfitted to undertake (see, e.g., Whitbread v Cooke; Purcell v Cooke [No 2]) and which the courts refused to undertake when they were invited to review the exercise of the discretion to prosecute. In my opinion, the broad notion of abuse of process expressed in the cases in the State courts above cited is misconceived. No abuse of process appears merely from delay on the part of the prosecution, either by inadvertence or by negligence, in presenting an indictment. It may be different if the prosecution were to delay deliberately in presenting an indictment in order to prevent an accused from making an effective defence but, even in such a case, the remedy may lie not in permanently staying the proceedings but in bringing them to a conclusion with a direction which nullifies the effect of the tactic.”
Deane J said (at 57):
“The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g., adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused.”
Toohey J said (at 72):
“Once the present appellant is driven to rely upon his right to a fair trial, his case disappears for he has failed to show that the majority in the Court of Appeal erred in their approach to his application for a stay of proceedings on the indictment. There is more than one interest involved in the trial of the appellant. The Crown has an interest in bringing him to trial; he, of course, has an interest in obtaining a fair trial; running in parallel is the public interest that charges of serious offences be disposed of but that they be disposed of at a hearing which is fair and not oppressive to the person charged. See Barton; also Clarkson; Carver v Attorney-General (NSW). The court is alert to see that a person charged receives a fair trial, not to punish the behaviour of the Crown.”

We were not referred to any authority in this State dealing with unfairness said to arise as a result of the death of a witness. I think it can be said that the mere fact that a material witness for the prosecution or the defence dies before or during a trial does not lead to the conclusion that the trial is an unfair one. Something more is required. Cases decided in New South Wales suggest, for example, that the death of an important witness for the accused during an unreasonable delay in bringing the proceedings to trial caused by the prosecution may result in the conclusion that any subsequent trial of the accused will be unfair (Gorman v Fitzpatrick (1987) 32 A Crim R 330; R v Sams (1988) 36 A Crim R 245). Nevertheless, generally speaking the fact that a witness who is potentially able to corroborate an accused dies before he is able to give evidence does not lead to the conclusion that the accused cannot obtain a fair trial (R v Adler (unreported, Court of Criminal Appeal (NSW), 11 June 1992); R v Goldburg (unreported, Court of Criminal Appeal (NSW), 23 February 1993) and R v McCarthy (unreported, Court of Criminal Appeal (NSW), 12 August 1994)).
There are two points to be made at the outset about the death of Mr Merrett. First, he was a police officer who was going to be called as part of the prosecution case. The appellant wished to suggest to him that he was corrupt and that he had improperly pressured Mr Ravlic to give false evidence and that he had falsely manufactured evidence in order to incriminate the appellant. No assumption can be made about the evidence Mr Merrett would have given. Certainly, it cannot be said that he was a vital or even important witness for the defence. Secondly, this Court is not able to make a finding as to why Mr Merrett committed suicide. Nor was the Judge able to make such a finding. In my opinion, the fact that Mr Merrett committed suicide as distinct from dying from natural causes or by accident is irrelevant.
In assessing the significance of Mr Merrett’s death and the fact that the appellant was unable to cross-examine him, the starting point must be an identification of those areas in which Mr Merrett would or may have been cross-examined by the appellant and the significance of those matters in terms of the case against the appellant. The appellant has also complained of inadequate disclosure and in this case the death of Mr Merrett and the inadequate disclosure are for the most part inextricably linked.
The appellant identified a number of matters which he said he would have or may have put to Mr Merrett. In fairness to the appellant, he made it clear that he relies on the combination of the matters he identified rather than any one particular matter. In one way or another, most of the matters identified by the appellant relate to alleged improper conduct by Mr Merrett either in falsifying evidence, or in pressuring or encouraging Mr Ravlic to give false evidence against the appellant.
I put to one side for the moment the matter which was said to have been disclosed for the first time after the trial. I will deal with that at the end.
The first matter identified by the appellant was a conversation or interview between Ms Daley and Mr Merrett and another police officer, Mr Steven Clarke, which took place on the day Ms Daley was arrested (ie., 7^th June 2001). She was separately interviewed by a police officer, Mr Kerrish, but that interview is not relevant for present purposes.
Before Mr Merrett died on 23^rd October 2002 the appellant was told what is set out in the Crown Solicitor’s letter of 13^th August 2002 in relation to paragraph 6 of the subpoena. This is set out in [53] above.
After Mr Merrett’s death, the appellant was told that there was a conversation between Ms Daley and Mr Merrett and Mr Clarke on 7^th June 2001 and that the conversation was recorded on audiotape. Mr Clarke subsequently lost the audiotape. In August/September 2001, Mr Merrett asked for the audiotape and Mr Clarke told Mr Merrett that he had lost the audiotape. Mr Merrett said something like it should not matter anyway; they were asking for everything. Shortly before his death, Mr Merrett made reference to a tape of a conversation which had gone missing in the context of failing to respond to a subpoena correctly. The agreed fact is set out in [47] above. It is not clear whether this was a reference by Mr Merrett to the audiotape that Mr Clarke had lost or some other tape.
I do not think the inability to cross-examine Mr Merrett about his conversation with Ms Daley was of any particular significance. Mr Clarke was a party to the conversation and he was called as a witness before the jury. He was the one who had lost the audiotape. He was available to be asked by the appellant about the conversation and the circumstances surrounding the losing of the audiotape.
As part of the further evidence put before this Court, the appellant tendered a letter written after the trial which disclosed that Mr Yeomans was the source of the information provided by the Crown Solicitor in his letters dated 13^th August and 29^th August 2002 respectively in relation to paragraph 6 of the subpoena. There was no evidence suggesting that Mr Merrett and Mr Yeomans got together and conspired to give false information to the Crown Solicitor. Mr Yeomans was called as a witness before the jury and he was available for cross-examination by the appellant.
The appellant suggested that Mr Ravlic lied in giving his evidence and, in particular, in giving evidence that the appellant had made various admissions to him. The appellant suggested that Mr Merrett had pressured or encouraged Mr Ravlic to give false evidence. Mr Merrett’s death meant that the appellant was denied an opportunity of putting that contention and the reasons for it before the jury. There were a number of matters put in support of this submission and I will deal with them in turn.
First, the appellant submits that Mr Ravlic’s statement was disclosed only a few days before trial and details of Mr Merrett’s contact with Mr Ravlic including, for example, the provision of the letter of comfort, were only revealed during the preliminary examination. That assertion is correct. However, I am satisfied that, subject to the information which was revealed after the preliminary examination and which I will mention shortly, the details of the contact between Mr Merrett and Mr Ravlic were revealed during the course of the preliminary examination. Both Mr Merrett and Mr Ravlic were cross-examined at the preliminary examination about the matters which the appellant said supported the contention that Mr Merrett had pressured or encouraged Mr Ravlic to give false evidence. In other words, subject to what I will say shortly, there was adequate disclosure before evidence was led before the jury. At that point the appellant was in a position to cross-examine Mr Ravlic about the matters he identified and to suggest that he was giving false evidence because Mr Merrett had improperly pressured or encouraged him to do so. It is true that by that time Mr Merrett was dead and the appellant could not cross-examine him, but in my opinion that did not render the trial unfair. It was a case of a material witness dying before or during a trial and that of itself does not render the trial unfair. There was no attempt by the appellant to tender any part of Mr Merrett’s evidence given at the preliminary examination. Furthermore, the absence of Mr Merrett meant that he was not there to contradict the suggestion advanced by the appellant. At the preliminary examination Mr Merrett said that he had promised Mr Ravlic that his identity would be kept a secret and that the trial would go ahead without him, but that once the subpoena to the Commissioner of Police was issued it became apparent that his identity would have to be revealed.
The appellant identified two pieces of information which were only revealed to him after Mr Merrett’s death and which were relevant to his contention that Mr Merrett had pressured or encouraged Mr Ravlic to give false evidence. He submits that he did not have the opportunity to put those matters to Mr Merrett even at the time of the preliminary examination.
The first piece of information was a draft statement of Mr Ravlic which was retrieved from Mr Merrett’s computer after his death. It seems a statement was prepared by Mr Merrett on his computer on about 21^st June 2001 and it was only discovered after his death. It was given to the appellant on 26^th November 2002. The Director accepts that this draft statement should have been disclosed to the Director by Mr Merrett. The appellant says that there is a major inconsistency about the circumstances under which Mr Ravlic came to be told by the appellant that he had obtained a gun between Mr Ravlic’s statement dated 30^th August 2001 and the draft statement. It is not for this Court to say that there is a major inconsistency. What can be said is that it is a matter that may well form the basis of cross-examination.
Mr Merrett prepared some handwritten notes of his conversation with Mr Ravlic on or about 20^th June 2001. Those notes were provided to the appellant at the time of the preliminary examination and were in fact tendered at the preliminary examination. The Director submits that the draft statement was based on the notes and therefore the appellant suffered no disadvantage by reason of the fact that the appellant was not given the draft statement until after Mr Merrett’s death. I do not think this Court can say that with certainty, although it may well be the case. In the end, I do not think the fact that the draft statement was not provided to the appellant until after Mr Merrett’s death and therefore he could not be cross-examined about it at the preliminary examination rendered the trial unfair to the appellant. The appellant had the handwritten notes, the draft statement and the statement dated 30^th August 2002 at the time he came to cross-examine Mr Ravlic before the jury.
The second piece of information that the appellant said that he was given after Mr Merrett’s death is a statement by Mr Bikic. As I have said, Mr Bikic is a police officer who at the relevant time was stationed at the Sturt police station and he investigated offences of non-aggravated serious criminal trespass, unlawful possession and false pretences allegedly committed in April 2002. In his statement, Mr Bikic states that at some stage in late May or early June 2002, he was approached by Mr Merrett about a journal entry in police records about Mr Ravlic being a suspect for those offences. On 4^th July 2002 Mr Ravlic went to the Sturt police station and Mr Bikic reported him for the offences of non-aggravated serious criminal trespass, unlawful possession and false pretences.
It is common ground that the information in Mr Bikic’s statement was not provided to the appellant until the statement was provided to him on 19^th November 2002. The appellant submitted that the information was highly relevant to the suggestion that Mr Merrett had pressured or encouraged Mr Ravlic to give false evidence. It is said that if found guilty of the offences for which he was reported, Mr Ravlic faced a period of time in prison. The non-disclosure of the information by the prosecution meant (so it was argued) that he was deprived of the opportunity of cross-examining Mr Merrett at the preliminary examination to suggest that he used the report of the offences and the likely consequences to pressure or encourage Mr Ravlic to give false evidence. Mr Merrett’s death meant that he could not be cross-examined on this topic at the trial. Again I do not think the fact that Mr Merrett could not be cross-examined on this topic at the preliminary examination or at the trial rendered the trial unfair to the appellant. The appellant could have asked for Mr Bikic to be called as a witness and cross-examined him. The appellant had Mr Bikic’s statement and the information contained therein at the time he came to cross-examine Mr Ravlic before the jury.
The appellant was able to, and did, cross-examine Mr Ravlic on this topic when he gave evidence before the jury.
The other thread to the appellant’s submission that his inability to cross-examine Mr Merrett rendered the trial unfair related to Mr Merrett’s conduct, aside from his relationship with Mr Ravlic, which the appellant said involved Mr Merrett falsifying evidence in order to implicate the appellant in various offences. Of course it is not necessary for the appellant to identify a motive for such behaviour, but it was suggested that Mr Merrett undertook such conduct because of the assault on Mr McDaid for which the appellant was a suspect. As I understand it the complaint here is not linked to late disclosure of material information or of an inability to cross-examine Mr Merrett at the preliminary examination. The complaint is that the appellant could not cross-examine Mr Merrett before the jury. It seems to me that the appellant’s submission can be rejected on the ground that the death of a material witness does not of itself render a trial unfair and there are no other material facts suggesting unfairness. However, in case I am wrong, there are other reasons why the appellant’s submission must be rejected.
The appellant identified two matters for which he said there was a basis to cross-examine Mr Merrett and which he could not put to Mr Merrett because of his death.
The first matter was the suggestion that Mr Merrett, who had been the investigating officer in relation to the stolen property found at the Deloraine Avenue premises on 7^th June 2001, had caused some of that stolen property and items of property linking the appellant with the stolen property to be placed in the green Commodore and then falsely said that that property had been found in the green Commodore on 19^th June 2001. In my opinion, it cannot be said in all the circumstances that the inability to put this suggestion to Mr Merrett before the jury rendered the trial unfair.
On the evening of 18^th June 2001, Mr Tonkin and Mr Tank found the radiology report in the name of the appellant in the green Commodore. It was not suggested in the cross-examination of these police officers that they had falsely placed the document in the vehicle, and in fact in his submissions in reply on the appeal counsel for the appellant disclaimed any such suggestion. That document linked the appellant with the green Commodore in the sense that it could lead to the inference that he had been in the vehicle. There was strong evidence before the jury from various sources that the card and notes were written by the appellant. Those documents were said by the police to have been found in the green Commodore on 19^th June 2001. Having regard to the fact that they refer to events after 7^th June 2001 they could not have been found by the police at the Deloraine Avenue premises on 7^th June 2001 and falsely placed in the green Commodore. There was therefore strong evidence suggesting that the appellant had been in the green Commodore.
A number of police officers were involved in the search of the green Commodore on the morning of 19^th June 2001, but Mr Merrett was not one of them. The suggestion put to this Court was that Mr Gaffney, who was involved in the search, had falsely placed a cartridge case and stolen property and items of property identifying the appellant in the green Commodore. It was suggested that Mr Gaffney conspired with Mr Merrett to do this.
Mr Gaffney was called as a witness for the prosecution and he gave evidence before the jury. It was not directly put to him that he had conspired with Mr Merrett to place property in the vehicle and it was only put to him in a fairly general way that he had placed property other than a cartridge case in the vehicle. It was clearly put to him that he had placed a cartridge case in the vehicle and then falsely claimed that he had found it in the vehicle.
At all events, the appellant had the opportunity to put this suggestion to Mr Merrett at the preliminary examination. He had the opportunity to put the suggestion to Mr Gaffney during his evidence before the jury. He was the person who, the appellant suggested, had carried out the alleged conduct.
The second matter again involves Mr Gaffney and a suggestion that he and Mr Merrett conspired to falsify evidence. It is in a sense a development of the first matter. The suggestion was that Mr Gaffney placed a cartridge case in the green Commodore and then pretended to find it. The possible source of the cartridge case is unclear. Mr Gaffney did not attend the scene of the drive-by shooting. Mr Gaffney placed the cartridge case in his pocket. Later that day he attended the scene of the shooting at the Lonsdale premises. It is suggested that he found a cartridge case at the Lonsdale premises and that he gave this cartridge case to Mr Maiden and represented it as the cartridge case which he found in the green Commodore. This theory was never put to Mr Gaffney in cross-examination. Furthermore, it is a highly unlikely theory. When Mr Gaffney went to the Lonsdale premises the police did not know who was involved in the shooting of Mr Thomson and the appellant was unable to suggest any reason why Mr Gaffney would behave in the manner suggested.
In my opinion, the appellant’s inability to cross-examine Mr Merrett about the two matters to which I have referred did not lead to unfairness to the appellant.
In my opinion, the Judge was right to refuse the application for a permanent stay. For the reasons I have given, the inability to cross-examine Mr Merrett and the late disclosure of information did not mean that the trial was unfair to the appellant.
That leaves for consideration in relation to the first ground of appeal the further evidence put before this Court. I refer to the letters from the Crown Solicitor dated 13^th August and 29^th August 2002 respectively ([53] and [54]) and the responses therein in relation to paragraph 14 of the subpoena. After the trial it was revealed to the appellant that Mr Merrett was the source of the information conveyed in the responses in relation to that paragraph. It was said that the further evidence establishes that Mr Merrett knowingly provided false information to the Crown Solicitor. I do not think the further evidence is sufficient to justify the conclusion that the appellant did not receive a fair trial or that the conviction should be set aside. The appellant knew at the preliminary examination that the responses from the Crown Solicitor were untrue and he had an opportunity to ask Mr Merrett whether he was the source of the information. The appellant had the opportunity to place before the jury the two letters from the Crown Solicitor dated 13^th August and 29^th August 2002 respectively and invite them to infer from the other evidence in the case that someone connected with the investigation or the prosecution had provided incorrect information in relation to paragraph 14 of the subpoena. I do not think the non-disclosure has given rise to a real risk of a miscarriage of justice.
I reject the first ground of appeal.
Second ground of appeal – directions about evidence of a person seen on 19^th June 2001
A number of witnesses gave evidence about a person they saw in the vicinity or area of the Lonsdale premises on 19^th June 2001. Two of the witnesses, Mr Thomson and Mr Howkins, participated in a photoboard identification procedure and other witnesses gave evidence of the physical features and clothing of the person they saw. I will refer to the evidence in more detail shortly.
The appellant submits that the evidence given by these witnesses was circumstantial evidence used to identify the appellant and that it was necessary for the Judge to draw to the jury’s attention any conflicts, inconsistencies and inadequacies in the evidence of those witnesses, either individually or collectively. It was said that the Judge did not do this, or in the alternative, he did not do it adequately. The Court was referred to Domican v The Queen (1992) 173 CLR 555 and Festa v The Queen (2001) 208 CLR 593.

It is necessary to consider the evidence of each relevant witness and what the Judge said about that evidence.
Mr Thomson, the victim, said that the shooter was holding a clipboard. He approached Mr Thomson and said, “You’ve pissed off a mate of mine” and he then pulled the clipboard down and shot him three times. Mr Thomson estimated the distance between the shooter and himself at the time of the shooting at 1.5 to 2 metres. The three shots were fired in quick succession. Mr Thomson described the colour and type of clipboard. He said that the shooter had the clipboard in his left hand and the gun, which he described as a black pistol, in his right hand. He gave evidence about the shooter’s age as it appeared to him, the colour and length of his hair and his height and build. He gave evidence of his recollection of the clothes the shooter was wearing. Mr Thomson had a conversation with a police officer at the Flinders Medical Centre, and he gave that officer an estimate of the shooter’s age, height and build, his complexion, the fact that he was clean-shaven and the length and colour of his hair. The Judge summarised Mr Thomson’s evidence on these topics in his directions to the jury.
The Judge referred to the photoboard identification procedure undertaken by Mr Thomson in his directions to the jury. He did that in that part of his directions to the jury where he identified it as an item of circumstantial evidence relied on by the prosecution and immediately after outlining the proper approach to circumstantial evidence. Mr Thomson was shown a photoboard which had twelve photographs on it. The appellant’s photograph was located at position number two. Mr Thomson pointed to the appellant’s photograph and said words to the effect that the person looked similar to the person who shot him. He also said, “that guy looks a bit like him”. Mr Thomson said that the shape of the person’s face and the fact that he had a receding hairline led him to think that the person looked similar to the person who shot him. The Judge reminded the jury of this evidence of Mr Thomson. He also reminded the jury that Mr Thomson estimated that the distance between the shooter and himself was 1.5 to 2 metres and of Mr Thomson’s evidence that he got a front-on look of the shooter’s face. He suggested to the jury that Mr Thomson may have had less time to observe the shooter than his estimate of three to five minutes. The Judge told the jury that Mr Thomson’s evidence was not evidence identifying the person who shot him and that it was no more than evidence that the appellant looked similar to the shooter. He said that the evidence was no more than a piece of circumstantial evidence which did not alone prove that the appellant was the shooter. He said that if the jury accepted the evidence it was to be considered with all the other evidence which the jury found acceptable. The Judge told the jury that they must carefully consider Mr Thomson’s evidence. He said:
“If you accept him [Mr Thomson] as a reliable, truthful and accurate witness you will be able to conclude that the accused looks similar to the gunman”.
Mr and Mrs Howkins were visiting their son’s premises on 19^th June 2001. Their son’s premises are at 13 Waddikee Road, Lonsdale, but are in a separate building from that occupied by Mr Thomson. At about 12.30 pm they were in their motor vehicle and were about to leave their son’s premises.
Mr Howkins said that he heard two noises and then some screaming. Mr Howkins described the two noises as sounding like “a starting pistol or something of that nature”. The two noises came in rapid succession. He looked in the direction of the driveway of 13 Waddikee Road and he saw a person come out of the driveway and walk in an easterly direction. He described the height and build of the person in general terms and said he had short dark hair. He described the person’s clothing in general terms. At the time he saw the person he could hear yelling coming from the shed. He said that he was able to see the face of the person and at the time there were no obstructions or obstacles between him and the person. In cross-examination, Mr Howkins said that the whole event took place within a couple of seconds and he agreed it could have been up to five or ten seconds. Mr Howkins also agreed that he only had a quick look at the person’s face and that he did not have time to study the face of the person. He did not see the person carrying anything and he agreed he saw the person more from the right hand side and the rear rather than from any other direction. In his directions to the jury the Judge reminded the jury of this evidence of Mr Howkins.
Mr Howkins also participated in a photoboard identification procedure. He identified the persons shown in photographs at positions number 2 and 8 as possibly the person he saw. The Judge dealt with the photoboard identification by Mr Howkins in the same section of his directions to the jury as the photoboard identification by Mr Thomson. The Judge reminded the jury that the whole transaction described by Mr Howkins lasted (according to Mr Howkins) between five and ten seconds and that he got a quick look at the person’s face and did not have time to study it closely. As with Mr Thomson the Judge told the jury that the evidence of Mr Howkins standing alone could not prove that the appellant was the person seen by him but if the jury accepted him as a reliable, truthful and accurate witness then they could conclude “that the two persons depicted in the photographs could possibly be the gunman and, of course, one of these men is the accused”.
After discussions with counsel and towards the end of his directions to the jury, the Judge again reminded the jury that Mr Thomson and Mr Howkins had not given evidence identifying the appellant as the shooter. Their evidence relating to the photoboard identification was no more than a piece of circumstantial evidence which can be used with other evidence in the case in reaching their conclusion.
Mrs Howkins gave evidence that she heard the screams and went into the victim’s premises. As she was doing so she saw a man turn out of the gateway of the premises and walk in an easterly direction. She saw the side and back of the man and she was unable to see his face. She described the man’s height and build in general terms and she said that he had short dark hair. She described the man’s clothing in general terms. She did not notice the man carrying or holding anything. His right hand may have been in his pocket and she did not see his left hand. In his directions to the jury the Judge reminded the jury of this evidence of Mrs Howkins.
Mr Brenton Koch was in his office which has windows facing on to Waddikee Road at about lunchtime on 19^th June 2001. He heard two loud bangs and he went to the door and saw a man walking to the left of the footpath. The man appeared relaxed and he did not take any notice of the noise coming from 13 Waddikee Road. Mr Koch described the height and build of the man and the clothing he was wearing in general terms. He said that the man had short dark hair. Again in his directions to the jury the Judge reminded the jury of this evidence of Mr Koch.
The thrust of the appellant’s challenge to the Judge’s directions was that first, he did not adequately direct the jury as to the dangers of the evidence of Mr Thomson and Mr Koch in relation to the photoboard identification procedure, and secondly, in relation to the evidence of Mr Thomson, Mr Howkins, Mrs Howkins and Mr Koch, he did not adequately direct the jury on inconsistencies or differences between the witnesses as to matters such as the clothing the person was wearing and his hair colour.
I reject the appellant’s challenge to the Judge’s directions to the jury. As to the first matter, I think the Judge’s directions were adequate. The Judge did identify matters in the case of both Mr Thomson and Mr Howkins that might have affected the reliability of their evidence in relation to the photoboard identification procedure. The directions to be given to the jury are to be appropriate to the circumstances of the case and must point out to the jury any reasons why the evidence might not be reliable (Festa v The Queen (2001) 208 CLR 593 per McHugh J at [73]; McHugh J at [176]; Hayne J at [217] – [218]). Other Judges might have said more than what the Judge said in this case, but I think what he did say was sufficient to point out the weaknesses in the photoboard identification evidence. As to the second matter, I do not think that there is any substance in the appellant’s submission. The Judge carefully summarised the evidence of the four witnesses in his directions to the jury and the differences in the evidence of the witnesses would have been obvious to the jury. The Judge was not obliged to say anything more.
I reject the second ground of appeal.
The third ground of appeal – unsafe and unsatisfactory verdict
Under s 353(1) of the CLCA this Court may allow an appeal if it thinks the verdict should be set aside because it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice.
In M v The Queen (1994) 181 CLR 487 in discussing a similar provision in New South Wales, Mason CJ, Deane, Dawson and Toohey JJ said (at 492 – 493):
“Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’, or ‘dangerous or unsafe’. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in the circumstances to allow the verdict of guilty to stand’. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be ‘unreasonable’ or incapable of being ‘supported having regard to the evidence’. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.
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Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
The appellant raises a series of matters in this ground of appeal which perhaps are more appropriately raised in the context of the first ground of appeal, or as separate complaints about the Judge’s directions to the jury.
The appellant submits that the Judge erred in not directing the jury adequately about the significance of the number of shots fired at Mr Thomson. There was evidence from some witnesses suggesting two shots were fired, and evidence from other witnesses suggesting three shots were fired. The Judge referred to this evidence in his directions to the jury, but the appellant submits that he did not emphasise the significance of the issue being the appellant’s suggestion that Mr Gaffney had found a cartridge case at the Lonsdale premises and given it to Mr Maiden falsely representing it to be the cartridge case he found in the green Commodore. I do not think the Judge was required to emphasise the issue of how many shots were fired any more than he did. As I have already said in relation to the first ground of appeal, the suggestion about what Mr Gaffney did is a highly improbable one and it was not put to him.
The appellant submits that the death of Mr Merrett meant that he was deprived of the opportunity of cross-examining Mr Merrett before the jury about his conduct and that of Mr Yeomans at the interview of the appellant on 6^th July 2001. It was suggested that Mr Merrett and Mr Yeomans had acted in a way indicating that they were prepared to lie. Aside from the fact that I do not think that the death of a witness can render a verdict unsafe and unsatisfactory, there are a number of answers to this submission. First, some important admissions were allegedly made by the appellant during the course of the interview and the interview was excluded on the application of the appellant. On the face of it there were considerable risks associated with cross-examining on the topic before the jury. Secondly, the appellant had the opportunity to cross-examine Mr Merrett and Mr Yeomans about the interview at the preliminary examination. Thirdly, the appellant had the opportunity of cross-examining Mr Yeomans about the interview before the jury. In the end, the complaint is no more than that a material witness has died during the trial and in the same way as that fact does not make the trial unfair, it does not render the verdict unsafe and unsatisfactory.
Finally, the appellant referred to some features of the way in which exhibits were recorded and kept by police which might have given rise to an inference that the police had acted improperly. He gave as an example a driver’s licence stolen from a Mr Evans. It was said that there was a false copy of the licence with the appellant’s photograph on it. The false copy of the licence was lost by the police. There were scanned copies of the licence found in the green Commodore but wrongly described as the licence. These matters were put to the jury and I fail to see how of themselves or combined with the inability to cross-examine Mr Merrett they can lead to the conclusion that the verdict is unsafe and unsatisfactory.
Having regard to the whole of the evidence before the jury the prosecution case was a strong one. The card and notes found in the green Commodore on 19^th June 2001 were highly incriminating pieces of evidence in relation to the drive-by shooting, and in turn, the appellant’s involvement in the drive-by shooting was a significant piece of evidence suggesting the appellant shot Mr Thomson. In my opinion, it cannot be said that on the whole of the evidence before the jury the verdict is unsafe and unsatisfactory.
I reject the third ground of appeal.
The fourth ground of appeal – directions in relation to Mr Ravlic’s evidence
The appellant submits that the Judge failed to adequately warn the jury of the dangers of relying on the evidence of Mr Ravlic. It was said that Mr Ravlic had a motive to lie to protect his own interests, and that he had lied during the course of his evidence.
The Judge gave the jury directions as to how they should approach the evidence of Mr Ravlic. The Judge first said that Mr Ravlic had given evidence that the appellant had admitted to him being the shooter in the drive-by shooting and that he had shot Mr Thomson. The Judge then said that Mr Ravlic had a regrettable personal background and he outlined Mr Ravlic’s criminal record. He said that Mr Ravlic himself had said in evidence that he was a “ career criminal”. The Judge said the evidence of those matters had been put before the jury to help them assess Mr Ravlic’s credibility. The Judge referred to Mr Ravlic’s bad character and said it meant that caution needed to be exercised in deciding whether to accept him as a credible witness. Commonsense required that his evidence be subject to careful scrutiny. The Judge told the jury that they ought not to act on Mr Ravlic’s evidence unless they were unequivocally satisfied as to its accuracy beyond a reasonable doubt.
The Judge went on to suggest to the jury how they might make their assessment of Mr Ravlic and to remind them again that they needed to exercise caution in considering his evidence. The Judge then went on to direct the jury as to how they should approach their consideration of what the appellant meant by the statements (assuming them to have been made).
I think the Judge’s general directions in relation to Mr Ravlic’s evidence were adequate and I do not think the appellant strongly contended otherwise (Bromley v The Queen (1986) 161 CLR 315; R v Johnson (2004) 89 SASR 294; [2004] SASC 241). The appellant’s complaint was that the Judge did not adequately direct the jury about what were said to be various inconsistencies in Mr Ravlic’s evidence, and in particular his evidence about when he had a conversation with the appellant about the purchase of the gun. It was said that Mr Ravlic’s evidence about the date of the conversation was such that the appellant could not have committed the drive-by shooting and could not have admitted to having done so to Mr Ravlic. In my opinion, the Judge was not required to identify every piece of evidence in the case. A requirement to do so would mean that the Judge’s directions would have become inordinately long and the important points potentially obscured by detail. The Judge did point out to the jury the significance of Mr Ravlic’s evidence about when he had his conversation with the appellant concerning the latter’s purchase of a gun and the various inferences that might arise from that evidence. That was an important point and it was recognised as such by the Judge.
In my opinion, the directions the Judge gave the jury in relation to Mr Ravlic were adequate and I reject the fourth ground of appeal.
Conclusion
In my opinion all four grounds of appeal must be rejected and the appeal must be dismissed.
WHITE J: I agree with the order proposed by Besanko J and with his reasons for that order.