R v Spathis - [2001] NSWCCA 476

No judgment structure available for this case.

CITATION: R v Spathis; R v Patsalis [2001] NSWCCA 476

FILE NUMBER(S): CCA 60093/00; 60139/00

HEARING DATE(S): 30/07/01, 31/07/01

JUDGMENT DATE:
29 November 2001

PARTIES :

Regina v Alexios Spathis; Regina v Michael Patsalis

JUDGMENT OF: Heydon JA at 1; Carruthers AJ at 201; Smart AJ at 446

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70200/97; 70002/97

LOWER COURT JUDICIAL
OFFICER : Kirby J

COUNSEL : Crown: Mr G E Smith
Spathis: Mr A J Bellanto QC/Mr P Lowe
Patsalis: In person

SOLICITORS: Crown: S E O'Connor
Spathis: Patricia White & Associates

CATCHWORDS: Criminal Law - Murder - Appeal - Conviction - Conduct of legal practitioners - Incompetent representation - Whether legal representatives at trial were incompetent - Whether counsel should have led further character evidence - Whether counsel should have applied for separate trials of co-accused - Whether incompetence caused prejudice to appellant creating miscarriage of justice - Criminal Law - Murder - Appeal - Application to adduce further evidence on appeal - Whether "fresh evidence" - Whether further evidence likely to lead to new trial - Whether further evidence raised possibility of miscarriage of justice - Criminal Law - Murder - Appeal - Judicial directions to jury - Whether misdirections - Whether direction necessary that jury members must all be satisfied on at least one basis of liability - Where one indictment count of murder but alternate bases of liability at trial including felony murder and mens rea murder - Whether manslaughter verdict ought to have been left open to jury - Directions re elements of felony murder - Directions re use of relationship evidence - Directions re lies of accused and consciousness of guilt - Directions re evidence from deceased witness - Criminal Law - Murder - Appeal - Evidence - Whether trial judge erred in permitting Crown to cross-examine a witness as unfavourable - Evidence Act 1995, s 38(1)(c) - Whether trial judge erred in failing to exclude evidence of lies as "admissions" - Crimes Act 1990 (NSW), s 424A. - Criminal Law - Murder - Appeal - Joint-trial - Whether trial judge ought to have ordered separate trial of co-accused - Criminal Law - Murder - Appeal - Sentence - Whether sentence excessive - Whether lack of parity between sentences imposed upon co-offenders - Whether proper consideration by sentencing judge of assistance given to police by appellant - D

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995 (NSW)
Evidence Act 1995 (Cth)
Prevention of Fraud (Investments) Act 1958

CASES CITED:
Adam v The Queen [2001] HCA 57
Barlow v The Queen (1997) 188 CLR 1
R v Birks (1990) 19 NSWLR 677
R v Boreman and Ors [2000] 1 All ER 307
R v Bowden (1981) 7 A Crim R 378
R v Kevin Brown (1983) 79 Cr App R 115
Browne v Dunn (1893) 6 R 67
Bullard v The Queen [1975] AC 635
R v Burke [1983] 2 NSWLR 93
R v Carberry [1994] Crim LR 446
R v Connelly [1991] 2 Qd R 171
R v Crabbe (1985) 156 CLR 464
R v Cramp (1999) 110 A Crim R 198
R v Drummond and Domican (No 2) (1990) 46 A Crim R 408
R v Clarke; Ex parte Attorney-General of Queensland [1999] QCA 438
Edwards v The Queen (1993) 178 CLR 193
R v Foley (1998) 105 A Crim R 1
Gallagher v R (1986) 160 CLR 392
R v Giannetto [1997] 1 Cr App R 1
Gilbert v The Queen (2000) 74 ALJR 676
Gipp v The Queen (1998) 194 CLR 106
R v GH (2000) 105 FCR 419
R v Hamilton (1983) 68 A Crim R 298
Harriman v The Queen (1989) 167 CLR 590
R v Hauser (1982) 6 A Crim R 68
Henriques v The Queen [1991] 1 WLR 242
R v Henry (1992) 28 NSWLR 348
R v Hitchins [1983] 3 NSWLR 318
R v Horton (1998) 45 NSWLR 426
R v Hunter and Sharah [1999] NSWCCA 5
R v Johns [1978] 1 NSWLR 282
Leivers & Ballinger (1998) 101 A Crim R 175
R v Mansour (unreported, NSWSC, 19 November 1996)
R v Mendham & Foster (1993) 71 A Crim R 382
Mickelberg v R (1989) 167 CLR 259
Moss v Brown [1979] 1 NSWLR 114
R v Munro (1981) 4 A Crim R 67
Osland v The Queen (1998) 197 CLR 333
Palmer v R (1998) 193 CLR 1
Pemble v The Queen (1971) 124 CLR 107
R v Phan [2001] NSWCCA 29
Ratten v R (1974) 131 CLR 510
R v Reed [1999] NSWCCA 258
R v Rees [2001] NSWCCA 23
Ryan v The Queen (1966-1967) 121 CLR 205
R v Ajiit Sing Sat-Bhambra (1989) 88 Cr App R 55
R v Schneidas [1981] 2 NSWLR 713
R v Serratore (1999) 48 NSWLR 101
R v Sharah (1992) 30 NSWLR 292
R v Stewart and Schofield [1995] 1 Cr App R 441
R v Taouk (unreported, NSWCCA, 17 December 1992)
R v Thatcher (1987) 39 DLR (4th) 275
R v Williamson [2000] 1 VR 58
Wilson v The Queen (1970) 123 CLR 334
Wilson v The Queen (1992) 174 CLR 313
R v Zaidi (1991) 57 A Crim R 189

DECISION: See paras 199 and 200

60093/00

60139/00

HEYDON JA

CARRUTHERS AJ

SMART AJ

REGINA v Alexios SPATHIS

REGINA v Michael PATSALIS

Criminal Law – Murder – Appeal - Conviction – Conduct of legal practitioners – Incompetent representation - Whether legal representatives at trial were incompetent – Whether counsel should have led further character evidence - Whether counsel should have applied for separate trials of co-accused - Whether incompetence caused prejudice to appellant creating miscarriage of justice

Criminal Law – Murder – Appeal – Application to adduce further evidence on appeal – Whether “fresh evidence” – Whether further evidence likely to lead to new trial – Whether further evidence raised possibility of miscarriage of justice

Criminal Law – Murder – Appeal – Judicial directions to jury – Whether misdirections – Whether direction necessary that jury members must all be satisfied on at least one basis of liability – Where one indictment count of murder but alternate bases of liability at trial including felony murder and mens rea murder – Whether manslaughter verdict ought to have been left open to jury – Directions re elements of felony murder – Directions re use of relationship evidence – Directions re lies of accused and consciousness of guilt – Directions re evidence from deceased witness

Criminal Law – Murder – Appeal – Evidence – Whether trial judge erred in permitting Crown to cross-examine a witness as unfavourable – Evidence Act 1995, s 38(1)(c) – Whether trial judge erred in failing to exclude evidence of lies as “admissions” – Crimes Act 1990 (NSW), s 424A.

Criminal Law – Murder – Appeal – Joint-trial – Whether trial judge ought to have ordered separate trial of co-accused

Criminal Law – Murder – Appeal - Sentence – Whether sentence excessive – Whether lack of parity between sentences imposed upon co-offenders – Whether proper consideration by sentencing judge of assistance given to police by appellant

On 10 June 1999 Michael Patsalis and Alexios Spathis (the appellants) were charged with the murder of Klaus Peter Ludwig (the victim). At trial the Crown formulated its case on alternative bases including felony murder and mens rea murder. After a trial before a judge and jury, both appellants were convicted of murder. Patsalis had two different counsel during the trial, both of whom he dismissed. Patsalis was sentenced to 21 years and 6 months of penal servitude with a minimum term of 16 years and an additional term of 5 years and 6 months. Spathis was sentenced to 19 years of penal servitude with a minimum term of 14 years and an additional term of 5 years. Both Patsalis and Spathis appealed against their convictions and applied for leave to appeal against their sentences. Only Patsalis advanced arguments in relation to sentence.

Held by Heydon JA (Carruthers and Smart AJJ concurring):

A. The factual issues to which Patsalis’ complaints on appeal

related, however decided, would not affect the Crown case as proved before the jury and as set out in the trial judge’s remarks on sentence.

B. There was no direct evidence of many of the factual allegations

made by Patsalis against his lawyers. These allegations could be supported, if at all, only by inferences from the transcript and the trial record generally. Nothing in Patsalis’ challenge to the performance of his lawyers demonstrated that they provided him with less than professional and capable service.

C. Although neither of Patsalis’ counsel had a junior, this did not

create a miscarriage of justice. None of the other counsel at the trial had a junior, and barristers without juniors conduct many serious criminal trials.

D. The two applications made by Patsalis to rely on further evidence on the appeal, should be refused:

relating to a conversation with Mrs Spathis) was not “fresh evidence” because either it was known to Patsalis or to his lawyers at the time of the trial, or it ought to have been known to them. Even if it was “fresh evidence” it went to credit and is unlikely to lead to a new trial.

R v Zaidi

Criminal Appeal Act

Gallagher v R

R v Henry

Ratten v R

Mickelberg v R

R v Drummond and Domican (No 2)

not have affected the admissibility at trial of Exhibit G (a statement written by Patsalis and handed to police).

E. The grounds of appeal advanced by Spathis, all of which were

adopted by Patsalis, were rejected for the same reasons as those for which they were rejected in relation to Spathis (see below).

sentence:

B. The trial judge did not err in deciding not to discount Patsalis’ sentence in relation to the assistance Patsalis gave to the police. The trial judge was entitled to conclude that Patsalis assisted police in order to incriminate Spathis, rather than to help police solve the crime. The trial judge was also entitled to conclude that the account that Patsalis gave to the police was untruthful, incomplete and unreliable.

Held by Carruthers AJ (Heydon JA and Smart AJ concurring):

A. The Crown’s failure to include felony murder as a separate

Leivers & Ballinger

B. The trial judge did not err in failing to direct the jury that a

Gilbert v The Queen

C. The trial judge did not err in his directions to the jury as to the

Crimes Act

i. It was not necessary for the jury to be directed that for

Spathis to be guilty of felony murder, he must have

The Queen v Crabbe

death of the victim must be a foreseeable result of the underlying felony.

R v Munro

D. The trial judge did not misdirect the jury as to the use of

relationship evidence (i.e.. Exhibit G - a statement written by Patsalis and handed to police). The evidence was not relied on by the Crown as propensity or tendency evidence. Rather, it was relationship evidence from which relevant inferences could be logically and reasonably drawn.

E. The trial judge did not err in permitting the Crown to cross-

Evidence Act

R v Mansour

Adam v The Queen

F. The trial judge did not err in his directions to the jury as to

Spathis’ lies in relation to proof of the Crown case against him.

i. It was not necessary for the jury to be directed that the

Osland v The Queen

Spathis may have told the lies to avoid implication in offences other than murder.

G. The trial was not rendered unfair by reason of the trial judge’s

had decided to represent himself. There was not sufficient cause for concern that a potential miscarriage of justice may have occurred, and Spathis’ trial counsel did not apply for discharge of the jury or separate trials on this ground.

H. The failure by Spathis’ counsel to lead further evidence of

R v Birks

R v Hamilton

R v Hunter and Sharah

Moss v Brown

I. The trial judge did not err by failing to exclude evidence of Spathis’ lies to arresting police officers as “admissions” under s 424A of

Crimes Act

R v Reed

The Queen v GH

,

J. The trial judge did not err in relation to the warnings he gave to the jury as to the use of deposition evidence (containing hearsay) from a deceased witness.

Discussion of errors in trial judge’s directions to the jury.

O R D E R S

Patsalis’ appeal:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is dismissed.

Spathis’ appeal:

1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is
dismissed.

60093/00

60139/00

HEYDON JA

CARRUTHERS AJ

SMART AJ

REGINA v Alexios SPATHIS

REGINA v Michael PATSALIS

JUDGMENT

After a trial lasting 55 days before Kirby J and a jury, Michael Patsalis and Alexios Spathis were on 24 September 1999 convicted of murdering Klaus Peter Ludwig on 11 April 1996 at Botany. On 23 February 2000 Patsalis was sentenced to penal servitude for 21 years and 6 months, consisting of a minimum term of 16 years and an additional term of 5 years and 6 months. Spathis was sentenced to penal servitude for 19 years, consisting of a minimum term of 14 years and an additional term of 5 years.

2 Each has appealed against his conviction and sentence, though only Patsalis advanced arguments in relation to sentence. Accordingly Spathis’ application for leave to appeal against sentence will be dismissed. These reasons deal with Patsalis’ appeal.

Background

3 The background circumstances are important in understanding the grounds of Patsalis’ appeal. They are also important in evaluating the force of various arguments he advanced to the effect that there had been a miscarriage of justice because those arguments must be assessed in the light of the very strong Crown case. It is convenient to foreshadow a general conclusion: the factual issues to which Patsalis’ complaints go, however they were to be decided, would not affect the Crown case as proved before the jury and as set out in the trial judge’s remarks on sentence.

“Mr Patsalis and Mr Spathis each provided lengthy interviews to the police. Each gave evidence at the trial. Neither gave evidence on sentence. In some important respects their accounts correspond. In others they differ markedly. I will begin by identifying the common ground.

The Common Ground

Mr Patsalis and Mr Spathis were friends, although not of long standing. Mr Spathis had a business serving food at the Three Swallows Hotel. Mr Patsalis was a patron of that hotel. They shared certain interests. In the year or so before Mr Ludwig’s murder, Mr Spathis advanced $16,500 to Mr Patsalis by way of loan. They gave strikingly different accounts of the circumstances in which the debt accumulated. It was, however, acknowledged by Mr Patsalis that certain advances had been made in circumstances where he had deceived Mr Spathis. The money was used for gambling, and lost. Mr Patsalis was not in a position to repay the loan. And so the friendship soured. It was in the context of that debt, that Mr Patsalis became acquainted with Mr Ludwig.

Mr Ludwig had a small business restocking cigarette vending machines. One such machine was located in a small coffee house at Restwell Parade, Bankstown. The coffee house was frequented mainly by persons of Greek origin. They included Mr Patsalis. Mr Patsalis was attracted by a card game in which patrons played for money. Mr Patsalis met Mr Ludwig. He discussed with him the prospect of obtaining cheap cigarettes, which was a matter of interest to Mr Ludwig. Although Mr Patsalis may describe it otherwise, I am satisfied that he persuaded Mr Ludwig that he was able to arrange the supply of cheap cigarettes through contacts he had. Mr Ludwig, on the evening he met his death, believed that he was travelling to a warehouse at Botany where he would exchange the cash he was carrying ($58,500) for a large consignment of contraband cigarettes.

The accounts given by Mr Patsalis and Mr Spathis as to the events before and after the stabbing of Mr Ludwig were not remarkably different. They met at 3.00pm at Mr Patsalis’ flat. Thereafter a number of purchases were made. There were two pairs of gloves, two knives, a tarpaulin, and one tin of petrol. Mr Patsalis and Mr Spathis differed from each other as to the circumstances in which the purchases were made, and their knowledge of the items purchased. They both denied having any appreciation of the sinister purpose of these items, as revealed by the events of that evening. I will return to this issue shortly.

Arrangements were thereafter made to meet Mr Ludwig at Bankstown. Two vehicles were driven from Bankstown to the Marrickville RSL. Mr Spathis drove his car [POZ 344]. Mr Patsalis was a passenger in the truck driven by Mr Ludwig. It was common ground that Mr Spathis, having left first, doubled back in order to follow the truck, and thereby ensure that the truck was not being followed. This fact was communicated to Mr Patsalis. Both, therefore, knew that Mr Ludwig was alone.

Once at Marrickville, Mr Spathis parked his car. He then entered the truck, sitting alongside Mr Ludwig, with Mr Patsalis on the other side, nearest the door. Mr Spathis then drove to Botany.

At some point the vehicle parked by the side of the road at Botany. Whilst parked, Mr Ludwig was stabbed. Mr Patsalis and Mr Spathis each blamed the other for the stabbing. Each asserted ignorance of the sinister purpose of the other. Both acknowledged that money was removed from Mr Ludwig’s jacket after the stabbing by Mr Spathis. Mr Spathis asserted (and Mr Patsalis denied) that he did so at the direction of Mr Patsalis.

Mr Spathis drove the truck back to Marrickville with Mr Patsalis as a passenger. Mr Ludwig’s body remained in the cabin. Mr Patsalis then alighted. He thereafter drove Mr Spathis’ vehicle. Mr Patsalis was covered with blood. The car seat was protected by the plastic tarpaulin purchased earlier in the day.

The two vehicles were driven to Terrey Hills, although by a circuitous route. Each asserted the other led the way. At Terrey Hills the body was removed from the cabin by Mr Spathis, and left by the side of the road. It was doused in petrol. Further money was removed from the jacket of the deceased. The body was then set alight. There were differences as to who removed the money, and who set fire to the body.

The vehicles then left the scene, although in circumstances which were somewhat chaotic. The burning of the body, and the rapid exit from the area, were witnessed by the occupants of a number of vehicles which were in the area.

The vehicles proceeded to Mr Patsalis’ flat at Homebush. Mr Spathis drove the truck, whilst Mr Patsalis remained in Mr Spathis’ car. Having met at Homebush, the two vehicles were then driven to Chester Hill, where the truck was set alight. Mr Patsalis placed his bloodstained clothes inside the truck, so that they were also destroyed.

The Crown Case

The Crown contended, and the jury accepted, that both Mr Patsalis and Mr Spathis were responsible for Mr Ludwig’s murder. The Crown case was put in three ways.

· First, a joint attack by both accused. Two knives had been purchased. Mr Patsalis and Mr Spathis were arranged on either side of Mr Ludwig. The wounds were consistent with both knives (or either knife), although it was not possible to say, simply based upon the wounds, whether they came from the left or the right, or from both directions.

· Secondly, a joint criminal enterprise to either rob and/or murder Mr Ludwig. If the agreement was to rob, it was the Crown case that the accused who did not do the stabbing was aware of the possibility (amounting to a substantial risk) that, in the course of the robbery, his co-accused may intentionally kill, or cause grievous bodily harm, to the person being robbed, Mr Ludwig.

· The third basis upon which the Crown suggested that both accused were responsible, was felony murder, either as the person who stabbed the deceased, or

‘… being aware that the co-accused was armed with a knife, the accused was aware that there was a substantial risk that his co-accused might immediately before, during, or immediately after the commission of the robbery, stab (the victim) seriously injuring him or killing him.’

…

The Gravity of the Crime

By any standard, this was a cold-blooded and shocking crime. The deceased was lured into a trap. He was alone. There was no suggestion that he was armed. He was out-numbered. He was taken at night to a deserted location where he was attacked. He was repeatedly stabbed, such that he died almost at once. Counsel for Mr Spathis submitted that the wounds suggested frenzy, and were consistent with panic. Certainly, there were multiple wounds, front and back, and to the head. The victim was given no chance. There is nothing in the evidence which suggests panic to my mind. Mr Ludwig was deliberately slain where he sat, between Mr Patsalis and Mr Spathis.

Premeditation

The Crown asserts that the crime was premeditated, and that is a circumstance of aggravation. Counsel for Mr Spathis sought to refine the issue by asking what crime was planned? It was said, on behalf of Mr Spathis, that the Court should not find beyond reasonable doubt that there was premeditation of murder. Rather, the crime in contemplation, in respect of which there was planning, was robbery, where one at least of those involved was carrying a weapon. Although the same submissions were not made on behalf of Mr Patsalis, the same issue arises. It requires an examination of the events which preceded the stabbing.

It was Mr Patsalis who befriended Mr Ludwig. He sought to gain his confidence. They met a number of times at the Restwell Parade coffee shop, and at the Bankstown Sports Club. Mr Patsalis gave evidence that, on Saturday 6 March 1996 (five days before the murder), he discussed at length the purchase by Mr Ludwig of contraband cigarettes for cash. I have no doubt that he persuaded Mr Ludwig to become involved. He did so, knowing that there were no cigarettes on offer.

Mr Patsalis’ purpose, rather, was crime. I will leave to one side, for the moment, the nature of that crime. Certainly, his purpose included robbing Mr Ludwig of the cash which he was required to bring to a meeting which was then organised.

Mr Patsalis gave an account to the jury which involved Mr John Spathis, an uncle of Mr Alexios Spathis. He said that he believed, as Mr Ludwig believed, that Mr John Spathis had available a large consignment of contraband cigarettes. He described discussions with Mr John Spathis, before the murder, concerning such cigarettes. Mr John Spathis, it should be said, had a small supermarket at Ashfield. He stocked, amongst other things, cigarettes. Mr Patsalis said that Mr John Spathis had told him that he had spoken to Mr Ludwig.

It is reasonable to suppose that the jury rejected Mr Patsalis’ account. It is hardly surprising that they should have done so. It was implausible. In a lengthy interview to the police upon his arrest, Mr Patsalis made a passing reference to Mr Alexios Spathis’ uncle. He did not include the detail of the matters which were to emerge as his ‘defence’. His account, moreover, was not supported by the text of the letter Mr Ludwig left behind, written the day before his murder (Exhibit AX). I repeat, that I have no doubt that Mr Patsalis knew full well that there were no cigarettes on offer, and that he was luring Mr Ludwig into a trap.

I have made reference already to the purchases which were made on the afternoon of 11 April 1996, the day Mr Ludwig was murdered. The meeting with Mr Ludwig was arranged for 5.00 pm. As it happened, he was late. He arrived shortly after 5.30 pm. Between 3.45 pm and 4.38 pm a number of items were purchased. The times of each purchase can be fixed with precision by reference to the computer print-out of the cash registers within the stores from which the purchases were made. The items purchased were as follows:

· At 3.35 pm from BBC Hardware, Yagoona, two pairs of gloves, and one blue tarpaulin/ground sheet.

· Between 4.00 pm and 4.20 pm, a can of petrol from a Mobil service station at Yagoona.

· At 4.38 pm at K-Mart, Bankstown Square, two knives (one with a 7 inch blade and the other with a 9 inch blade), each within a protective knife sharpener, which was like a scabbard.

It may be helpful if I first state the position of each prisoner in respect of these purchases. Mr Patsalis acknowledged that he made the first purchase (at 3.45 pm). Mr Spathis was not present. Mr Spathis denied knowledge of the gloves. He saw the blue tarpaulin, but thought nothing of it.

Mr Patsalis also made the purchase of the can of petrol. He did so on the instructions of Mr Spathis. Mr Spathis acknowledged having given those instructions. They were given because he noticed his car was running low on fuel. Mr Spathis said that he did not enter the petrol station because he was aware that petrol stations have video surveillance. He had no wish to be filmed in circumstances where he was assisting in a transaction which involved contraband cigarettes. The petrol was in a 5 litre tin. It was put in the boot. It was not added to the tank.

Mr Patsalis was present when the knives were purchased from K-Mart. He insisted that they were purchased by Mr Spathis. He was sufficiently concerned to enquire of Mr Spathis as to his purpose. He was told that they were required for Mr Spathis’ business at the hotel. That explanation satisfied him.

Mr Spathis denied having purchased the knives. He waited in the car park at K-Mart whilst Mr Patsalis made the purchases. When Mr Patsalis returned to the car, he was carrying a shopping bag. Mr Spathis asserted that he was not aware of the contents of the shopping bag, namely the knives, before the stabbing.

Mr Patsalis therefore knew of each purchase; the two pairs of gloves, the tarpaulin, the petrol and the knives. He said he had no appreciation of the purpose of these items, and specifically their connection with the crime which was about to occur. The jury verdict may be taken as a rejection of that assertion, at least in respect of the knives. The jury was directed that it was an essential circumstance in the Crown case that each accused should have known of the knives, or at least one knife, and should have been aware of the possibility (amounting to a substantial risk) that his co-accused may use the knife to rob Mr Ludwig or cause him serious harm.

The Crown attached considerable significance to the purchases made that afternoon. The purchase of two knives and two pairs of gloves pointed to a joint criminal enterprise between Mr Patsalis and Mr Spathis, in its submission.

The goods purchased, moreover, defined the nature and scope of the enterprise according to the Crown. They were the tools for the night’s work. The knives were to attack Mr Ludwig. The gloves were to avoid fingerprints. The petrol was to burn the body and the truck. The tarpaulin was ultimately used that evening to protect Mr Spathis’ car. Mr Patsalis’ trousers were soaked in blood. The tarpaulin prevented the transfer of that blood to the car seat. It is possible that the tarpaulin may have been intended to wrap Mr Ludwig’s body.

I am satisfied that Mr Patsalis had these purposes in mind, and that there was, in his case, premeditation of murder.

Mr Spathis is in a slightly different position. On his own account, he was aware of the tarpaulin, and the petrol. I accept that Mr Spathis was not present when the knives were purchased from K-Mart. However, by the jury verdict, he must be taken to have been aware of at least one knife, and the purpose of that knife, namely, to rob or cause serious harm to Mr Ludwig. It was urged on behalf of Mr Spathis that I should not find (beyond reasonable doubt) premeditation of murder. If one confined oneself to matters which Mr Spathis acknowledges he knew, or which he can be taken to have known, by reason of the verdict, that may be so. However, in drawing the appropriate inference, I do not believe that the available material is so limited. Mr Patsalis gave the following account to the police of an episode at the Marrickville RSL. It provides insight into the role of Mr Spathis on this evening. Mr Spathis, having parked his car at Marrickville, then joined Mr Ludwig and Mr Patsalis at the truck. According to Mr Patsalis, there was an argument about who should drive the truck. Mr Patsalis, in his interview to the police the day after the murder, described what happened in these words:

‘Then what occurs was – and they had a bit of a dispute about this – was who should drive the truck. Alex wanted to drive the truck, Peter wanted to drive the truck. Alex said to him, ‘Listen, I want to make sure that we’re not being followed.’ And he goes to him, ‘Crikey, he takes a lot of precautions’, something along those lines. He goes, ‘I’m, the one who should be worried.’ Alex said to him, ‘Well, listen, I know the way and it’s better for me to drive because that way I don’t have to tell you to turn right and turn left at the last moment and you miss a turn,’ and so he convinced Peter to allow him to drive. And Peter made a big fuss over that if Alex was to have an accident that Alex would pay for the damage.’

Mr Spathis denied that account. However, I have no doubt that it occurred. Mr Ludwig had hired the vehicle from Thrifty Rent-A-Car. The Hiring Agreement included a clause (Exhibit W), which stated ‘No other driver permitted’.

Mr Patsalis’ account is consistent with the Hiring Agreement, and the picture of Mr Ludwig which emerged from the evidence. I infer that it was important to the arrangements between Mr Patsalis and Mr Spathis that evening that Mr Spathis should drive the truck.

Counsel submitted that each of these matters was consistent with the possibility that the common purpose was robbery (with possible wounding), rather than murder. The petrol may have been purchased to burn the truck. Mr Ludwig, when stripped of his money, could hardly complain to the police. He had chosen to embark upon what he knew was an illegal enterprise.

However, I am not persuaded. I accept in the case of Mr Spathis, as I did in the case of Mr Patsalis, that there was premeditation of murder. I do accept, nonetheless, that Mr Patsalis was the dominant party in the enterprise. It was Mr Patsalis who planned the crime. It was Mr Patsalis who seduced Mr Ludwig into believing that there were cigarettes on offer. It was Mr Patsalis who made the purchases. Mr Patsalis persuaded Mr Spathis to assist him. Mr Spathis, weakly, agreed to do so.

…

Mr Patsalis before these events, was a compulsive gambler. His gambling lies at the heart of his involvement in this crime. He is described by Dr Lisa Brown, psychiatrist, as a pathological gambler.”

4 In discussing a submission by Patsalis that he should be given a discount for assisting the police, the trial judge said:

“There is no question in my mind that Mr Patsalis recognised that the crime, in its execution, had gone badly wrong. It appears that Mr Spathis may have panicked when at Terrey Hills, so that Mr Ludwig’s body was left by the side of a suburban road, where it was then set alight. However it came about, Mr Patsalis appreciated that they had been seen. I accept the account of Mr Spathis, given to the police the day following the murder, where he attributed to Mr Patsalis these words, spoken as they were about to part company:

‘He said, ‘Don’t say anything ever, you know, even if, even if, you know, you get caught, you know, if, if your name, ‘cause they seen your car.’

Either shortly before, or shortly after, saying these words, Mr Patsalis determined that he would go to the police. He went to the Hilton Hotel at 4.00 am the morning following the murder. He began to write out his story. He presented himself at the Bankstown Police Station shortly after 6.00 pm. His motive was entirely self interest. It had nothing to do with assisting the authorities to solve the crime. It was a pre-emptive strike against Mr Spathis. Nonetheless, Mr Patsalis provided the police with important information concerning Mr Spathis, and the crime. Because it served his purpose (in that he was less likely to slip up), he substantially related events as they occurred. However, he omitted entirely his role in these events. The information provided by Mr Patsalis could hardly be described as full and frank. It did, however, contribute to the success of the prosecution against Mr Spathis, and also, ironically, against Mr Patsalis himself. In blaming Mr Spathis, Mr Patsalis unwittingly incriminated himself.”

The nature of Patsalis’ submissions

5 Patsalis was not represented on the hearing of the appeal. His oral submissions were relatively brief. Most of his submissions were advanced in written documents which he had prepared with little assistance. They were supplied in five parts. Two were supplied before oral argument, one late on the first day of the appeal, and the others after the court had reserved judgment. The first consisted of 93 pages (principally attacking Mr MacGregor QC), to which were attached a further 36 pages (principally attacking Mr Amor-Smith). The second consisted of 10 pages (principally dealing with the failure of both counsel to secure a separate trial). The third consisted of 56 pages (principally dealing with attempts to tender further evidence on the appeal and with Mr Amor-Smith’s alleged incompetence). The fourth (97 pages) repeated and developed various earlier submissions. The fifth (24 pages) dealt with sentence. The submissions annexed a substantial amount of evidentiary material and referred to a great deal more. Not surprisingly, the Crown felt obliged to respond to these bulky submissions at some length. Because they are repetitive and ill-organised, it is far from easy to reduce Patsalis’ submissions to order, summarise them coherently and consider them in a concise way.

Spathis’ grounds of appeal

6 Patsalis adopted all the grounds of appeal advanced by Spathis. Those grounds are rejected for the reasons given by Carruthers AJ in relation to Spathis’ appeal.

Incompetence of Patsalis’ lawyers: background

7 Patsalis expressed the initial grounds of his appeal against conviction as follows.

“In support of the notice of appeal which was previously lodged the appellant agitates the following grounds of appeal:

1. Procedure – Defence counsel fails to put case to Crown witnesses – form of the ‘Browne v Dunn’ direction (UK Browne v Dunn (1893) 6 R 67).

A. Evidence – Witnesses – Cross-examination – Need to cross-examine on case on which reliance to be placed – Rule in Browne v Dunn – Criminal Proceedings – Part of defence case not put – Application to criminal proceedings – Consequences of failure to observe rule – Inferences to be drawn – Caution in directing on.

B. Criminal Law – Evidence – Burden of proof – Defences – Need to cross-examine on case on which reliance to be placed – Rule in Browne v Dunn – Criminal proceedings – Part of defence case not put – Application to criminal proceedings – Consequences of failure to observe rule – Inferences to be drawn – Caution in directing on.

Criminal law – Conduct of legal practitioners – Incompetence of counsel – Relevant principals.

C. Criminal law – Miscarriage of justice – Improper admission of evidence.

D. Legal Practitioners – Barristers – Incompetence of counsel – Criminal trial – Whether ground for contending miscarriage of justice – Relevant principals.”

8 Despite the way in which these grounds of appeal are expressed, the essential complaint was that the lawyers representing Patsalis had behaved with such incompetence as to cause him prejudice amounting to a miscarriage of justice.

9 The trial, which ran for a much longer period than it was originally contemplated that it would, proved to be a difficult one. There was scarcely any procedural issue on which the parties agreed, and on most of them each party had a separate position, usually not precisely coincident with that taken up by the trial judge. This led to repeated interruptions in the flow of evidence before the jury. There were difficulties caused by illnesses, late arrivals and absences on the part of jurors, counsel and Patsalis. But the greatest difficulties were created by Patsalis’ dismissal of his two counsel and his solicitors. Patsalis was represented by Mr M MacGregor QC from at a time just before the commencement of the trial on Monday 28 June 1999 until Friday 23 July 1999, when Patsalis dismissed him. Patsalis was represented by Mr J Amor-Smith from Friday 30 July 1999, and Mr Amor-Smith announced his appearance on Monday 2 August 1999. On 2 September 1999 Patsalis dismissed him. Throughout the periods in which Patsalis had counsel, he was also represented by solicitors. They withdrew from the case on 27 July, but returned to it on the same day. The attack on them was much less specific than on counsel.

Legal principles

10 Patsalis referred to the principles of law stated in relation to incompetent representation in R v Birks (1990) 19 NSWLR 677 at 679F, 685B-F, 689G and 703A. He referred to numerous cases relating to the rule in Browne v Dunn (1893) 6 R 67, particularly R v Foley (1998) 105 A Crim R 1 (Qld CA). In fact, despite the terms of the grounds of appeal set out above, his submissions did not centre on breach of the rule in Browne v Dunn; instead they selected particular passages from R v Foley which were said to advance other contentions.

11 The essence of the test to which Patsalis appealed in relation to his lawyers’ alleged incompetence turns on whether there has been a miscarriage of justice, whether caused by the flagrant incompetence of counsel or otherwise. The most favourable authorities from Patsalis’ point of view are those holding that a miscarriage of justice may be found if the court has a lurking doubt that an appellant has suffered some injustice because of incompetent advocacy.

General nature of attack on Mr MacGregor

12 Patsalis’ attacks on the competence of Mr MacGregor face several hurdles.

13 One group of hurdles consists of statements by the trial judge, counsel for other parties, and Patsalis himself. The trial judge told Patsalis, the day after Mr MacGregor had been dismissed, that “his conduct of the case on your behalf appeared to be completely professional”. Perhaps less materially, both the Crown, expressly, and counsel for Spathis, implicitly, praised it immediately after Mr MacGregor was dismissed. Even Patsalis said that Mr MacGregor’s “knowledge and application of the law was exceptional and beyond reproach”, and that he followed instructions while the court was actually sitting.

14 Another hurdle is that in large measure Patsalis’ criticisms rest on factual contentions which could only succeed if supported by evidence (for example, that Mr MacGregor failed to follow pre-trial instructions and failed to seek appropriate instructions). There is no evidence to support them.

15 Despite these hurdles, Patsalis made the following general complaints about Mr MacGregor. He lacked the time to prepare for the trial, and failed to read all the relevant material. He failed to understand the complex nature of the brief. He was not fully instructed, and failed to understand instructions given to him by Patsalis. On occasion (it is alleged without evidence) he approached the dock to obtain instructions in the presence of the jury, creating an undesirable spectacle in comparison with the position of Spathis “in the dock, at least, having been afforded the opportunity to fully brief counsel with instructions and having a case fully prepared”. In consequence he relied “on advocacy skills in law to conceal a lack of knowledge and understanding” of the case and of the evidence. He failed to visit and investigate the sites visited by the appellants on 11 and 12 April 1996. He failed to have appropriate subpoenas issued. He failed to obtain “independent certificates of expert evidence”. He failed to call independent witnesses to contradict the Crown case and Spathis’ assertions. He failed successfully to object to the reception of inadmissible exhibits.

16 In consequence of these failures, it was alleged that he did not properly cross-examine the Crown witnesses. He asked questions which invited witnesses to answer by commenting on the truthfulness of other witnesses.

17 He did not seek judicial directions which would overcome the consequences of the above difficulties, and Patsalis himself lacked the legal knowledge to do so.

18 All these factors made the result unsafe, and unfairly influenced the jury on the all-important matter of Patsalis’ credit.

Patsalis’ affidavit

19 Patsalis read an affidavit sworn by him on 25 July 2001. The Crown then objected to many parts of it. Patsalis then indicated he wished to withdraw the affidavit, a course to which the Crown did not object.

20 As has already been indicated, Patsalis made many specific factual allegations against his lawyers. For example, Patsalis submitted that by 2 July 1999 it was “clear that counsel had not read the majority of the material” and that at a conference between himself and Mr MacGregor on 1 July 1999 “counsel was familiarising himself with the ERISP material”. The consequence of there being no affidavit before this Court from Patsalis is that there is no direct evidence of many factual allegations which Patsalis made against his lawyers, and they can be supported if at all, only by inferences from the transcript and the trial record generally.

History

21 It is convenient to set out as a matter of background the history of the trial with particular reference to matters to which Patsalis pointed on the appeal as supporting his argument that there was a miscarriage of justice because of his lawyers’ incompetence.

22 The trial commenced on Monday 28 June 1999. Mr MacGregor QC, an extremely experienced criminal counsel of nearly forty years’ standing, announced his appearance for Patsalis. He said:

“There are some problems in relation to my retainer. I would need to announce my appearance pro bono at the moment until certain events may happen during the course of the day. The reasons for that are set out in [a letter of 8 June 1999 to the Legal Aid Commission].”

23 On Tuesday 29 June 1999, the second day of the trial, Mr MacGregor indicated that most of the difficulties with the Legal Aid Commission had gone, and that he proposed to continue in the matter. The bulk of that day was spent in the trial judge hearing Mr MacGregor’s application for a separate trial. Late that day Mr MacGregor requested a daily transcript free of charge. He said:

“I foreshadow that unless the government of New South Wales, either through the office of the Director of Public prosecutions or the court system or otherwise affords to my client free of charge a day-to-day transcript of the trial then I will make an application for the trial for my client be permanently stayed, or stayed until such time as he has the benefit given to both the judge and the Crown to have a detailed daily record of the evidence, it being professionally incumbent upon me to take proper objection to assist your Honour to determine the case according to law, which is a duty because I do not have total recall or the facility to take a full note, nor do I have a junior, I will be seriously impeded and wholly unfairly impeded in the proper conduct of the defence if the playing field is so imbalanced that the State makes a copy of the transcript freely available to the prosecutor and denies it to an accused on Legal Aid.”

24 On Wednesday 30 June 1999, the third day of the trial, the trial judge rejected Patsalis’ application for separate trials.

25 On Thursday 1 July 1999 the court did not sit.

26 On Friday 2 July 1999, the fourth day of the trial, Mr MacGregor said at the outset:

“I indicated to your Honour on the first day of the trial that I was appearing in the matter pro bono until such time as I would be adequately compensated for the trial. For the purpose of the pro bono aspect of the matter I spent some time reading as much of the material as I could and preparing submissions. I spent some five and a half hours of viewing video. The Legal Aid Commission pays for no conferences at the start and two conferences per week thereafter at $120 per conference.

In order for me to discharge my professional duty I set about having a full day’s conference with my client yesterday. At that stage I believed that I might have to open to the jury some time this afternoon so I was concerned to sort out in my mind what had to be done in the time available, in the expectation that the matter would be called on today. When I was informed that it was not to be called on today it was clear that I would have to spend all weekend preparing for the trial on Monday. I don’t make any point about that but it does impose enormous obligations upon us.

On Tuesday I had a conversation with Mr Power [counsel for the Crown], knowing he was anxious to open the case and I indicated that I would go through the material and indicate to him, if I was able, at about 3 o’clock yesterday afternoon any issues that arose.

I commenced a conference at about 9.20 or 9.30 in the morning with my client, who was under some considerable stress; I was in conference all afternoon until Mr Power rang me on my direct line and complained about breaches of undertakings.”

27 Mr MacGregor then said, referring to what became Exhibit G, a statement written out by Patsalis before he went to the police on 12 April 1996 and which he handed over to them:

“The other matter I have to investigate and I have not been able to investigate but had proposed to do so this morning if I were not occupied so unnecessarily, was to ascertain from my client precisely the circumstances of what warning he was given before the production of that document.”

28 Mr MacGregor a little later said: “I’ve not had a chance to fully prepare my client’s defence”. The trial judge replied:

“I must say I don’t under-estimate for one moment the enormity of the task the defence and for that matter the prosecution has in being ready for this trial and I don’t under-estimate in particular the problems that Mr MacGregor has relating to his retainer.”

“I have given full advice to my solicitor and because English is not his native language there is a little bit of a problem there but it can be resolved.”

29 On Monday 5 July 1999, the fifth day of the trial, Mr MacGregor said he had now obtained instructions about Exhibit G. The indictment was read, the accused pleaded not guilty, and a jury was empanelled. A problem about the empanelling then arose, and the jury were discharged. Mr MacGregor and other counsel then debated various issues of evidentiary admissibility for the rest of the day. In that period Mr MacGregor showed considerable familiarity with the documents he was dealing with – certainly equal to that of the other counsel.

30 On Tuesday 6 July 1999, the sixth day of the trial, those debates continued. While Mr MacGregor was objecting to what became Exhibit G, the following exchange took place with the trial judge:

“HIS HONOUR: But if it transpires that the evidence is that Mr Patsalis simply turned up at the Bankstown police station and said to the constable on the desk; I have just witnessed a murder; I have prepared a document in this book which I now hand you, which gives some background to the story, I would like to tell the police about it, and hands it over, then how can there be any suggestion in that circumstance of any impropriety?

MAGREGOR: With respect, that is not really the question. I think the question is this, is it not; we don’t know what arose before the document was handed over. If Mr Patsalis, for instance, had said – and I have no instructions to this effect – but if there was sufficient communication between a person who came in off the street to say: I know you are investigating the setting fire to the body in Frenchs Forest last night, I was there when the fellow was stabbed, and I was there when the body was set fire to, then clearly there is information in the hands of the police arising from that statement which gives rise to the necessity to warn the person against self incrimination.”

31 Wednesday 7 July 1999, the seventh day of the trial, commenced with the following statement by Mr MacGregor:

“I have got a couple of housekeeping matters. My instructing solicitors are in the course of preparing subpoenas to be directed to the police officers Bowditch, Cook, Young and Jubelin for the production of their notebooks and duty books and contemporaneous records relating to their attendance on 12 April 1996; and subpoenas for the attendance to give evidence on the voir dire of Detectives Cook, Bowditch and Jubelin.”

32 On Monday 12 July 1999, the eighth day, Mr MacGregor, on instructions, asked that a particular juror be discharged. After that matter was dealt with, the jury was addressed by the judge and all counsel. The taking of police evidence on the voir dire then resumed.

33 That process was continued on the ninth day, Tuesday 13 July 1999. In the course of Mr MacGregor’s cross-examination of Detective Hull, he expressed a desire to see a certain police record. The trial judge said:

“I think to some degree, though perhaps not completely, in fairness, the issues were predictable and perhaps ought to have been predicted and covered by subpoenas in advance so that one wouldn’t have forever a postponing of the actual time at which one finally concludes the evidence.”

“Indeed. My response to that, may say two things, first, I indicated to your Honour the extraordinarily difficult position I, as counsel, are placed, particularly as senior counsel undertaking responsibility of a murder trial and the circumstances in which that arose, and particularly the reticence of the police to provide this information fully and immediately.”

34 On Wednesday 14 July 1999, the tenth day, the Crown announced that the documents sought by Mr MacGregor had been produced. Mr MacGregor and the Crown then put submissions on the voir dire. The trial judge said, in relation to the notice requirements in relation to material in the records of interview which might be tendency evidence:

“I assume that the statement and the ERISP indeed formed part of that committal, that it was served in the usual way after the committal, that the accused and those representing him have been on notice of this material, so that the only issue is that there has apparently been, by oversight, no formal communication that reliance would be had upon this provision of the Evidence Act in so far as the material fell within it.”

“MACGREGOR: Well to the extent that your Honour may be thought to have been critical of the conduct of the defence for not issuing subpoenas, the absence of notice is directly relevant to that question. Now I don’t suggest for one moment that your Honour’s criticism – conduct of the defence is really relevant and I don’t apprehend that your Honour’s criticism was a severe censure.

HIS HONOUR: It wasn’t.

MAGREGOR: But your Honour can see what I’m suggesting.

HIS HONOUR: Well --

MAGREGOR: If there was no notice we could not be criticised for not dealing with the matter in advance until such time as we had notice that it was sought to be raised.”

35 On Thursday 15 July 1999, the eleventh day, various short witnesses gave evidence, some being cross-examined by Mr MacGregor. Patsalis’ record of interview was then played.

36 On Friday 16 July 1999, the twelfth day, this process continued. A video of Patsalis and Detective Hull visiting various locations on 13 April 1996 was then played. Certain documents were tendered. Mr MacGregor cross-examined Detective Hull about his movements with Patsalis on 12 and 13 April 1996. Mr MacGregor showed no difficulty in questioning him, and no lack of familiarity with the areas he questioned him about. Counsel for Spathis then cross-examined Detective Hull. Detective Kelly began his evidence in chief.

37 On Monday 19 July 1999, the thirteenth day, Detective Kelly continued his evidence in chief. Mr MacGregor cross-examined him about Patsalis’ arrival at the police station on the evening of 12 April 1996. Detective McGillicuddy then gave evidence in chief about events at the police station on 12 April 1996. Mr MacGregor cross-examined him briefly. Detective Sergeant Jacob then gave evidence in chief about his observations of the victim and materials found on and near the victim, and about the arrest of Spathis. Spathis’ record of interview was played.

38 On Tuesday 20 July 1999, the fourteenth day, Mr MacGregor was absent at the outset for a medical reason. In his absence, the playing of Spathis’ record of interview continued to its conclusion. On Mr MacGregor’s arrival, Detective Sergeant Jacob continued his evidence in chief. Mr MacGregor then cross-examined him at some length, in part on relevant locations, with which Mr MacGregor showed familiarity. Counsel for Spathis then cross-examined Detective Sergeant Jacob, and he was re-examined. Some short witnesses followed: Detective Hull, Ms Penny and Mr Greentree. The last two were cross-examined briefly by both defence counsel. Detective Fitzgibbins then commenced his evidence in chief.

39 On Wednesday 21 July 1999, the fifteenth day, Mr MacGregor cross-examined Detective Fitzgibbins. In part this dealt with relevant locations, and showed Mr MacGregor’s familiarity with them. The same is true of his cross-examination of the next witnesses, Detective Locke, Detective Young, Ms Hamilton, Detective Langford and Detective Kehoe. The day concluded with evidence in chief from Detective Gibbs. In the course of that day the following exchange, on which Patsalis now relies, took place:

“MACGREGOR: My learned friend tendered some tracksuit trousers. At the time I was conscious of some material in my client’s record of interview but, as I understand it, there is no evidence linking the tracksuit trousers found at Mr Spathis’ home with the tracksuit trousers referred to in my client’s record of interview and indeed, as I understand it, I have just been informed that in Mr Spathis’ record of interview he says he disposed of those tracksuit trousers aliunde.

HIS HONOUR: I must say I was somewhat puzzled by the evidence for a number of reasons. (1) Mr Spathis says in relation to the trousers he was wearing he put them in the bin at work. In relation to Mr Patsalis, the jeans went into the truck, and in relation to the substitute trousers, they were said to be put in a bin at Earlwood, so that these blue trousers may have nothing to do with anything, where they lead I’m not quite sure.

MAGREGOR: They don’t constitute in my submission evidence against my client. It took my client to point that out to me and he’s entirely right. I didn’t have the grasp of the evidence that your Honour had but under s 161, contrary to my client’s interests, but I do object to the tender against my client and I understand my friend is prepared to withdraw it.”

40 On Thursday 22 July 1999, the sixteenth day, the jury was not present for some time while a voir dire was conducted and counsel addressed. When the jury returned Constable Wood gave evidence about his investigation of the burnt vehicle; Mr MacGregor cross-examined him. Mr Gould, who extinguished the fire on 12 April 1996, then gave evidence. The jury then left. On their return, they heard evidence from Ms Taylor, Mr Youlten, Mr Zografos and Detective Kendall. A voir dire examination of Mr Clugston then commenced. After Mr MacGregor’s cross-examination of Mr Clugston on that voir dire, Mr MacGregor said: “That is the point I wanted to make your Honour, and I needed the assistance of my client to do it”.

41 On Friday 23 July 1999, the seventeenth day of the trial, the following events happened. Mr MacGregor announced at the outset that his instructions had been withdrawn. He sought and obtained leave to withdraw. Patsalis had not withdrawn his instructions from his solicitors. At this stage the trial judge had been told that the Crown case was within one week of finishing. Patsalis said:

“I am going to have to weigh all my options up. It was a decision that I have been thinking about for two weeks since the beginning of this trial and I made the decision late last night.”

42 On Tuesday 27 July 1999, the eighteenth day, Mr Coustas, who was a principal of the firm of solicitors retained by Patsalis, said that new counsel could be obtained for the following Monday. He then said:

“However, in discussing the matter with my client, my client is of the opinion that would not be appropriate to his case, that it would be insufficient time for a person to be made fully aware of the full – all of the matters contained in the brief, and on that basis he believes he will be in no better position than the situation he was in with his former counsel.”

“But that would place me in the same predicament I was in previously, that being, counsel not being prepared in relation to the facts of the matter. For every statement contained within the brief, no matter what its substance is, is important to varying degrees in relation to the proceedings in my case. If I was to obtain new counsel then I believe I would be worse off. Therefore, having taken into consideration what his Honour told me on Friday, I have no other option but to undertake my defence.”

“I, I’d like to elaborate on what your Honour has said to me because I think it’s very important that you do realise that, and I do not wish to degrade anyone in this matter, your Honour stated earlier than an experienced counsel should be able to pick up a brief such as this being two folders, as your Honour stated, and see the relevance in relation to the statements that are contained in there. Now it amazed me, this is my perception, that how quickly you picked up the material yourself. That means your reading the brief.

In my view, and you may have become aware or may not, I’m sitting here in the dock and I’m passing instructions to my counsel to explain issues in relation to witnesses. I would spend – I would leave the court and I would go home and I would write instructions in relation to the witnesses that would arrive the next day and pass them on to my counsel. Now obviously there was – it’s very hard for me to understand.”

43 On Monday 2 August 1999, the nineteenth day, Mr Amor-Smith, a junior counsel of fourteen years’ standing, announced his appearance for Patsalis. He applied for the matter to be adjourned for a week, or alternatively two or three days, to enable him to prepare the case. The trial judge granted an adjournment for the balance of that day only. While making that adjournment application Mr Amor-Smith said:

“At about approximately 4.30 last Friday afternoon I received formal instructions to appear in this matter for Mr Patsalis. I had a lengthy conference from 4.30 until about 9pm. The next morning I received certain papers. I have read certain papers.

The totality of the brief in mass is about 60 centimetres or about 2 feet. I have read very little of that. I have been supplied with three video recordings which I haven’t seen. As I understand it they relate to records of interview and a cook’s tour of the locus in quo. There are transcripts of various days which I have seen in a bundle but haven’t read.”

“The jury was not summoned until certain preliminary issues were dealt with. They occupied substantially the first two weeks of the time allocated for the trial. Having been disposed of it was everyone’s hope that the thing would run more or less continuously, and it substantially has. There have been the usual interruptions, but by and large it has proceeded relatively smoothly until this particular problem arose. Since then of course the jury on Friday week ago was sent away until Wednesday and was thereafter notified on the Wednesday not to return until today. It was certainly my hope and intention that the matter would proceed today, though I had had signalled to me that because of the particular dilemma of another counsel who preceded you it may be necessary to put the matter over until tomorrow.

I have to say that beyond that, especially having regard to the fact that there has been a weekend intervening, and I would hope and have expected that some substantial part of that may have been devoted to reading the material, that the matter would proceed, if not today then certainly tomorrow. I sympathise with the problem, but a lot of the material, as I say, has been dealt with by way of preliminary issue and has been disposed of so that what remains I don’t think is within a very broad compass. It is certainly within two lever arch folders so far as the Crown brief is concerned, and even that as I understand it has been pared down quite considerably through jettisoning certain witnesses no longer thought to be essential. What remains is therefore simply the proving of the various circumstances which themselves necessitate a variety of particular witnesses but nothing, one would imagine, that would take a great deal of time to master or to deal with.”

44 On Tuesday 3 August 1999, the twentieth day, the evidence of Mr Lajkowski and Mr Eldridge, which was said to be tendered only against Spathis, was taken. The following testimony against both accused was then received: that of Mr Ghobrial, Constable Wells, Mr Gentles and Mr Najjar. There was then debate about the admissibility of parts of the anticipated testimony of Mr Stratikopoulos, on which the trial judge ruled. Mr Stratikopoulos then gave his evidence. Spathis’ wife (Elizabeth Spathis, nee Figueira) then gave evidence.

45 On Wednesday 4 August 1999, the twenty-first day, proceedings opened with a debate about an inspection of a truck similar to that used on the night of the crime and a debate about whether an order under s 38 of the Evidence Act 1995 should be made in relation to Mrs Spathis. The trial judge refused the latter application. The inspection then took place. Mr Millard, who hired the truck to the victim, then gave evidence. Mrs Spathis’ evidence then resumed. It was interrupted, pending a further s 38 application, by the evidence of Mr Harrison and Mr Clugston.

46 On Thursday 5 August 1999, the twenty-second day, there was a debate on the further s 38 application. In the course of that debate the Crown relied on certain inconsistencies to which Mr Amor-Smith had drawn attention in his cross-examination of Mrs Spathis. The Crown said:

“while certain matters were put to Mrs Spathis yesterday afternoon by Mr Amor-Smith – and of course he did ask her to read through those sections of the statement which I was addressing your Honour about yesterday when this argument was dealt with in the morning – there was no specific detailed cross-examination about those inconsistencies and it might well be that my learned friend chose to take that course for a deliberate reason. …

It might well be that my learned friend Mr Amor-Smith chose to adopt that course for a deliberate reason, which as I say he is entitled to adopt. But it would be the Crown’s submission that the Crown could take it further.”

“HIS HONOUR: I must say I was not sure having re-read the cross-examination of Mr Amor-Smith whether it was proposed to suggest, for instance, in the final address that by reason of the differences between the statement as originally given and the evidence as given that Mrs Spathis was not to be believed or was in some way motivated by some desire to assist her husband. If that was the purpose then that wasn’t put.

CROWN PROSECUTOR: Yes, your Honour, and my view would be that the Crown might well want to put that, as you can well appreciate, and he is somewhat restrained because it wasn’t put to suggest, as I certainly am entitled to, that she has embellished her evidence in some way, she has added to it considerably and that in actual fact – and I will be entitled to put this – it is not in accordance with what she originally recalled, that she has added to it to help her husband. I don’t have a foundation for putting that in the sense it hasn’t been put to the witness. Technically I think I am precluded from doing that. I suppose I could qualify that by saying there is a more liberal interpretation taken by Browne v Dunn than possibly was traditionally thought and certainly it is not always felt that specific things have to be put to a witness.

HIS HONOUR: So long as the witness is challenged.

CROWN PROSECUTOR: Yes, and it could be open to suggest that commonsense would lead one to suggest she could be a biased witness being married to the accused. I do not think that would necessarily have to be put, it would be open to the jury to infer that.

HIS HONOUR: Perhaps I should enquire of Mr Amor-Smith, is it proposed or was it proposed to ultimately make a submission along those lines?

AMOR-SMITH: No, I was more concerned to let the jury see the comparison of the two versions of what could be called the truth. For logistical reasons I was mindful of the calibre and the age group of the jury, the differences --

HIS HONOUR: I am not really asking to you justify it, I am simply asking you to understand, you are not proposing as I rather gather the Crown is proposing that to put to the jury that the version given to this court on oath by Mrs Spathis should not be believed because she is motivated by a desire to assist her husband?

AMOR-SMITH: In my submission that could be an argument that I will advance.

HIS HONOUR: I don’t think you have put it.

AMOR-SMITH: I am going to reserve my position.”

“HIS HONOUR: … Another aspect that concerns me is this, if Mr Amor-Smith does seek to reserve his position in respect of putting to Mrs Spathis that she is giving untruthful evidence or to put it at its lowest she is colouring her account in order to assist her husband then it seems to me that should have been put and put directly.

CAMPBELL: In my respectful submission it is akin to a cross-examiner in a sexual assault trial failing to put to a complainant, ‘I suggest to you that your motivation of your evidence because of some ill will towards the accused by reason of an unhappy family lawsuit’ if you don’t put it you can’t make the submission. You have got to do it when the witness is there.

HIS HONOUR: I think the position is as you stated, it has to be put if it is going to be ultimately submitted. I therefore am concerned that Mr Amor-Smith if he wishes to put that this would necessitate leave and no doubt you would say something about it, but he should seek leave to put that question.

CAMPBELL: It also has forensic consequences. He has made a forensic choice at this point because he knows that if he does make an assertion of that kind and s 108 is invoked or may be invoked.

HIS HONOUR: It may have consequences.

CAMPBELL: And he may have taken the view, I don’t know, I haven’t spoken to him, he may have taken the view that he does not wish to run the gauntlet, as it were, of additional evidence being led to re-establish the credibility of the witness. For example, if I could use just a very simple example, it may be if someone does that I could [lead] evidence from another person to whom she spoke very shortly after the so called representation because s 108 and 66 seem to permit that. It is no easy matter and he for no doubt good reason chose not to introduce the question of motive or bias or recent invention or fabrication or anything of that description.”

47 On Friday 6 August 1999, the twenty-third day, little useful was achieved since one juror was absent through illness. The same is true of Monday 9 August 1999, the twenty-fourth day, because two further jurors were ill. The matter was adjourned to 11 August 1999. On Wednesday 11 August 1999, the twenty-fifth day, after some debate in the absence of the jury, one juror was discharged. Mrs Hamilton was recalled. Evidence was taken from Miss Rodwell, Mr John Spathis, Mr Walter, Mr Ashworth and Detective Senior Constable Gibbs.

48 On Thursday 12 August 1999, the twenty-sixth day, the trial judge said that the jury had requested a copy of the transcript of Mr John Spathis’ evidence and of the original of a letter from the victim held by Mr Rohlfs. The former request was acceded to and the second deferred. Evidence was then taken from Detective Senior Constable Gibbs, Mr Manovski, Detective Senior Sergeant Forbes, Mr Haniotis, Mr Anastasios Spathis (Spathis’ father), Mr Grisdale, Senior Sergent Mesker, Mr Wilson and Mrs Moffatt.

49 On Friday 13 August 1999, the twenty-seventh day, Dr Lawrence gave evidence. A statement of Mr Redfearn, and his evidence at the committal hearing, were read. Procedural questions were discussed.

50 On Monday 16 August 1999, the twenty-eighth day, one juror was absent through illness. Patsalis personally presented submissions in support of an application, which he advised Mr Amor-Smith that morning he desired to have made, to conduct a voir dire in relation to Exhibit G and motor vehicle POZ 344. Patsalis was given leave to give sworn evidence in support of that application. The trial judge declined to alter his ruling on Exhibit G, and ordered Mr and Mrs Jefferis to be recalled to be further cross-examined on behalf of Patsalis in relation to POZ 344.

51 On Tuesday 17 August 1999, the twenty-ninth day, the Crown announced that Mr Amor-Smith had informed him that Patsalis did not now require the recall of Mr and Mrs Jefferis. The Crown case was closed. Patsalis began his evidence in chief.

52 On Wednesday 18 August 1999, the thirtieth day, Mr Amor-Smith announced that though Patsalis had suffered severe chest pains overnight he wished to proceed. Patsalis continued his evidence in chief. Near the end of it he gave the following evidence:

“Q. In relation to the record of interview that was conducted via the video system, have you had time to reflect on that record of interview?

A. I have had three, three years and a bit to reflect on that.

Q. Is there anything in that record of interview which you now wish to amend?

A. There was a lot of mistakes which I did make, but – a lot.

Q. You made some, you say a lot of mistakes?

A. Yes.

Q. Are you able to identify those mistakes?

A. Not without having my transcript in front of me, you know.

Q.. Are there some highlights that you can identify?

A. Yes, definitely.

Q. What are those highlights?

A. The major point would have to be – because of my, as I said, because of my state of mind at that time I made a lot of errors – the one major one that has always bothered me was when I mentioned that Alex Spathis was standing next to us in relation to when Peter was talking about precaution. Now that didn’t occur, the first – if you look at page 39 of my record of interview and then you go back to when I talk about the precaution I make mention of us being in the truck at first when I actually start talking about the precaution which was correct, that was a correct version. The correct start of it. And later on on the following page I make mention that he was standing next to us and I even in my record of interview I recall that even said standing next to me – and I’m not saying this because that has – it’s because of what I now know, I’ve always known it all along, it’s just that at that time I could not express myself and even now I still feel I don’t express myself as I should. Because – but back then it was much worse than what it is today. I was under great – I was suffering from shock and that was the reason for me drafting up these notes, because I wanted to say the whole truth in relation to this matter and that is why I even incorporated – I went back in time and mentioned my debts to Mr Spathis in – and how it all coincided. Now I wanted to be truthful in every aspect, my intentions, I knew that I had to – I had to – when I went to the police I had to tell them the whole truth in relation to all of the matters and all the matters included my debt to him and because that had bearing on how everything came into being, if I can use that term. And my state of mind at that time and that is why I tried all along throughout the following day and that was when I went to the Hilton Hotel and when I went and bought this notebook was so that I could put it all down in writing and not speak it.

Q. Was there another reason why you went to the Hilton Hotel, besides writing your notes?

A. Yes, because I didn’t have a place to stay because there was no way I was going back to 1 Arthur Street, Homebush, because I didn’t know if Mr Spathis was going to return or not or what was going to occur in relation to him because he had always made threats to me and now from my point of view I’ve just witnessed him kill somebody. I was the only witness to that killing. He did not know what I knew in relation to the precaution and that I was Peter’s security. Now for me I could have – and I knew when I gave him – it goes back to the 6th of the 4th of 1996 when I gave Peter my licence details. I knew that I could not in any way, shape or form hurt him or do anything to him because he, if I can use the term, had something on me. And if anything was to happen to him it was all going to come back into my direction.”

53 On Thursday 19 August 1999, the thirty-first day, Mr Amor-Smith informed the court that Patsalis was still suffering ill health. After the procedural consequences of that and other difficulties were discussed, the trial judge said:

“(2) Evidence of an admission is not admissible unless:

(a) there is available to the court a tape recording made by an investigating official of the interview in the course of which the admission was made, or

(b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or

(c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made.”

402 In order to appreciate this ground it is necessary to trace some of the history of the trial. First it is necessary to note the evidence that is the subject of dispute. On the day following the death, Detective Sergeant Jacob together with Detective Jubelin went to the Three Swallows Hotel, Yagoona which was the appellant’s place of business. Detective Sergeant Jacob gave evidence in chief that he saw a person identified to him as the appellant, and said to him:

“… ‘Are you Alexios Spathis?’ He said, ‘Yes.’ I said, ‘I’m Detective Sergeant Jacob and this is Detective Jubelin from the Homicide Squad.’ He said, ‘What is this about?’ I said, ‘We would like to speak to you about the murder of a man whose body was found at Terrey Hills earlier today.’ He said, ‘I can’t leave work.’ I said, ‘Well you are under arrest in relation to this murder, you’ll have to come to Bankstown police station with us now. Is that your jacket?’ He said, ‘No, it’s Peter’s.’ The accused indicated another male person who was in the bistro area.

The accused was led out to the police vehicle where he was searched by Detectives MacNamara and Banfield. I saw a quantity of money, a set of keys and personal papers taken from him and retained by Detective MacNamara. I said, ‘Where is this money from?’ He said, ‘It’s money from work, I just keep it on me.’

The accused was placed in the rear of the police vehicle. The accused said, ‘What’s this all about? I don’t know about a murder.’ I said, ‘I’ll explain exactly what this is about at Bankstown police station.’ The accused was taken to Bankstown detectives’ office where he was taken to an interview room and seated. The accused was offered a meal or refreshments but declined.

I then made some inquiries and about 10.03pm I returned to where the accused was seated and in the presence of Detective Jubelin I said, ‘Before I speak to you about this matter I want you to understand that you do not have to say or do anything, but anything you say or do may later be used in evidence, do you understand?’ He said, ‘Yes.’ I said, ‘I have reason to believe that you were involved in the death of a man named Klaus Peter Ludwig whose body was located at Terrey Hills earlier today, what do you say about that?’ He said, ‘I don’t know about it.’”

403 The appellant was then cautioned and asked certain questions directed to determining whether he was involved in Mr Ludwig’s death. In response he told certain lies which were the subject of the later direction on lies which his Honour gave in summing up. These are the lies referred to in ground of appeal 6, which has been dealt with above. Counsel for the appellant contends that these lies constituted admissions within the meaning of s 424A in reliance upon the judgment of this Court in R v Horton (1998) 45 NSWLR 426. The question whether such lies could constitute admissions within the meaning of s 424A will be considered shortly.

404 There was no objection at trial to the tender of this evidence upon the basis that there was a failure by the police to comply with the requirements of s 424A(2). The apparent reason for there being no objection, this Court was told, is to be found in the history of the matter.

405 When opening the case for the Crown, the Crown prosecutor did not refer to these alleged lies, presumably because he thought they may be the subject of objection when tendered. However, when Mr MacGregor QC for Patsalis opened the case for Patsalis, immediately following the opening of the Crown case, he said:

“So there are a number of extremely significant matters. It was Mr Patsalis who went to the police. It was Mr Spathis who lied to the police about the matter, he had to be arrested, they had to go to his home - I think they may have gone to his work, I don’t want to mistate the evidence, there will be evidence, and when he first gave his account to them he denied any knowledge of what had happen (sic)”

406 At some stage prior to Detective Sergeant Jacob giving evidence, the Crown prosecutor reached an agreement with counsel for Spathis, that the Crown would not seek to rely upon the lies told to Detective Sergeant Jacob as constituting consciousness of guilt. His Honour was not aware of such an agreement until much later in the trial.

407 At the close of the Crown case his Honour was informed that there would be no application for a direction concerning lies with regard to any of the material preceding the record of interview, that is to say, as to lies demonstrating a consciousness of guilt, in so far as Spathis was concerned. This was consistent with the agreement between the Crown and counsel for Spathis, to which reference has already been made.

408 The position then became complicated by the fact that when Spathis was being cross-examined by Patsalis, reference was made to the conversations with Detective Jacob prior to the ERISP. The relevant evidence is as follows: -

“Q. You accept that during those conversations you were being less than frank with the police officers?
Yes.

Q. Why was it that you weren’t being forthright when you were being asked those questions?
A. I was told not to say anything to anyone. I was - I thought I was protecting my family. I didn’t know what was going on.

Q. Then at 12.20 you were told by Detective Jacob that he had reason to believe that you were directly involved in the death of a man whose body was found at Terrey Hills and that he would like to interview you about it?
A. Yes.

Q. Do you remember that question? And your reply is that ‘If you have got half an hour, it will take some time to tell you. I have been threatened. My family has been threatened. My girlfriend has been threatened’. Do you recall that?
A. Yes.

Was it at that point that you made the decision to come forward and tell the police what happened?

A. Yes.”

409 Prior to Patsalis cross-examining Spathis, his Honour warned Patsalis, he then being unrepresented, that if he cross-examined Spathis with regard to the pre-ERISP lies told by Spathis, those statements would become evidence in the trial generally, as distinct from being, as they were at that stage, evidence only against Spathis.

410 Nevertheless, Patsalis cross-examined Spathis at some length with regard to the pre-ERISP conversations, and elicited from him admissions that a number of his answers were deliberate lies, Spathis claiming in his defence that he told those lies out of fear of Patsalis, who, he claimed, had threatened that he would harm him, his girlfriend and his family. Spathis denied that he had told the lies to cover up his killing of Mr Ludwig.

411 Prior to Spathis concluding his evidence, his Honour informed counsel that he would be giving the traditional direction as to lies, where the Crown relied upon them as being indicative of a consciousness of guilt, and that such direction would include the pre-ERISP lies by Spathis. His Honour indicated during discussion that he was not bound by any agreement out of court by counsel.

412 On appeal, the Crown has contended that Spathis’ counsel clearly had tactical reasons for allowing the evidence now impugned to be led. Allowing that Mr MacGregor would be cross-examining on the evidence, there was a tactical advantage to Spathis to allow the evidence in the Crown case in an attempt to ensure that subsequent cross-examination on this topic was not given greater impact when introduced for the first time at a much later stage in the trial and, presumably, over objection.

413 It was submitted on behalf of the appellant that as a consequence of the events which occurred, as outlined above, the Crown obtained an unfair, albeit not deliberately unfair, tactical advantage. Once the evidence was in, it left the way open for Patsalis to cross-examine Spathis about the lies, albeit there was necessarily consequential damage to Patsalis’ own case.

414 Although the submission was not developed, the Crown submitted on the appeal that Horton was wrongly decided. This submission is based on the recent decision of the Full Court of the Federal Court of Australia in The Queen v GH (2000) 105 FCR 419 where the majority held that lies do not constitute admissions within the meaning of that expression in the Evidence Act 1995 (Cth) which is identical, in relevant respects, to the Dictionary definition of admission in the New South Wales Evidence Act.

415 The Crown can also obtain support for its submission that lies do not constitute admissions within the meaning of s 424A in R v AjiitSing Sat-Bhambra (1989) 88 Cr App R 55 and R v Clarke; Ex Parte Attorney-General of Queensland [1999] QCA 438.

416 This is an important debate and ultimately will have to be resolved in an appropriate case, perhaps, by a five judge bench. In R v Reed [1999] NSWCCA 258, Spigelman CJ was dealing with an identical situation to that which arose in the instant case, in that no objection was taken to the admissibility of statements (alleged to be lies) made to police officers apparently in breach of s 424A. The Chief Justice held that the words “is not admissible” in s 424A should be construed as meaning “is not admissible over objection.” The full passage in his Honour’s judgment, upon which the Crown relies, is as follows: -

“The Parliament was well aware, particularly in the context of legislation cognate with the general amendments to the scheme of evidence contained in the Evidence Act 1995, that the usual course of proceedings in trials under the adversary system requires objection to be taken to evidence. The words ‘is not admissible’ should be construed as meaning ‘is not admissible over objection.’ The usual practice in the course of trials was part of the total context in which Parliament used these words and the narrow literal interpretation propounded on behalf of the Appellant is not appropriate.”

417 There being no objection to the tender of the evidence in the instant case, his Honour was perfectly entitled to allow the evidence to proceed and not raise an objection of his own motion.

418 Thereafter, as the matter developed and Patsalis was cross-examined about the lies in detail (without objection), his Honour was left with no alternative but to give the jury a full Edwards direction to ensure that the jury fully understood the true legal significance of the lies in the context of the case as a whole. It must not be forgotten that the jury had before them an explanation by Spathis for the telling of the lies. This ground of appeal has, in my view, not been made out and should be rejected.

419 Supplementary ground of appeal 2 is in the following terms:-

“The Appellant received an unfair trial in that, in admitting the depositions of Lionel Redfearn (a witness who was deceased), the trial judge failed to give a proper or adequate warning to the jury as to the use of that evidence.”

420 Mr Redfearn gave evidence at the committal proceedings when a statement which he had made to the police officers was tendered and he was cross-examined by counsel for Spathis. Mr Redfearn’s evidence was directed to a conversation which he had with Mr Ludwig on the afternoon of the day of his death. The significant paragraph from his statement is in the following terms: -

“On Thursday 11 April 1996 at about 5.30 pm Peter Ludwig contacted me and we had some general conversion relating to lending. Then I said during the conversation, because he appeared agitated, ‘you sound very agitated, Peter. What appears to be the problem?’ He said, ‘Look, Lionel, I am arranging to meet one or two people tonight and I will be carrying a large amount of money on me.’ I said, ‘Who are the people?’ He said, ‘I met them a couple of months ago. I don’t know what they are like.’ I said, ‘Where did you meet them?’ He said, ‘One I originally met in a hotel, but I will be meeting the other one tonight. He will be taking me to the second one tonight.’ I said, ‘Where are you meeting him?’ He said, ‘I can’t tell you that. I don’t know.’ I said, ‘When will you be meeting them?’ He said, ‘Very shortly. I have written a letter or note which I intend to leave with a friend in the event that something does happen to me’.”

421 It was accepted that the significance of Mr Redfearn’s evidence was that it went to the issue of the victim’s state of mind on the day of his death and also to the issue of the number of men he was to meet that evening.

422 There was cross-examination at committal, that the police had indicated to Mr Redfearn that two persons had been charged, but there was no cross-examination as to the reliability of his recollection regarding the number of persons involved.

423 When the Crown became aware of Mr Redfearn’s death, notice was given to the appellants under s 409 of the Crimes Act (now s 112 of the Criminal Procedure Act 1986) that the Crown proposed at the trial to tender Mr Redfearn’s deposition. Notice was also given under s 67 of the Evidence Act 1995 of the Crown’s intention to tender the deposition. The deposition does, of course, contain hearsay.

424 When this matter was raised at a relatively early stage in the trial, his Honour gave a general ruling to the effect that evidence relating to suspicions or feelings of the deceased Mr Ludwig, should not be permitted to be led (transcript 1088).

425 His Honour then left it to counsel to endeavour to reach an agreement as to suitable editing of the deposition. Counsel for both appellants reached agreement with the Crown prosecutor as to the editing. Thus by consent, the statement of Mr Redfearn and deposition of his evidence in the committal proceedings was tendered against both appellants. The material was then read to the jury. His Honour did not give a warning at that stage in the proceedings as to the reliability of such evidence, however he was careful to give an appropriate warning during the course of his summing up. Firstly (at paragraph 190) his Honour gave the traditional warning in respect of hearsay evidence to comply with s 165(1)(a) and (2) of the Evidence Act. Then he gave a specific warning in relation to Mr Redfearn’s deposition in the following terms (at paragraph 193): -

“In the case of Mr Redfearn, the gentleman who died after he had given evidence in what is referred to as the committal proceedings, and before these proceedings, you do not have the advantage of seeing him in the witness box. You do not, therefore, have the advantage of seeing him cross-examined. You remember that he was cross-examined, indeed, cross-examined by the very counsel who appears in this trial for Mr Spathis, Mr Campbell. However you have not actually seen him give that evidence, although it has been read to you. In each case you must exercise some care in assessing the reliability of this evidence. You may accept it, however, you should be aware that it may be unreliable.”

426 At a later stage in the summing up his Honour referred to further aspects of Mr Redfearn’s deposition and repeated his earlier warning (paragraphs 265-267).

427 After the jury had retired to consider their verdict they returned shortly thereafter with a note, paragraph 2 of which was in the following terms: -

“(2) Could we have transcript of all your Honour’s summing up; Mr Redfearn’s evidence/interview; Mr Rohlfs’ evidence/interview; (b) Mr Grisdale’s evidence/interview?”

428 Having informed the jury that such transcript would be made available, his Honour gave the following further warning (at paragraph 634): -

“As to the remaining paragraphs, Mr Redfearn’s, Mr Rohlfs’, Mr Grisdale’s evidence, they can be provided and will be provided. I trust the Crown can arrange that, but that may take a little time, so you probably wouldn’t get them until some time tomorrow. When you do get them, I might just remind you that, in each case, the warning, which I gave you, in respect of hearsay evidence, may well have application. In other words, in some cases and, certainly in the case of I think Mr Redfearn, indeed, in all cases, they include conversations with others where you have not seen that other person. For instance, they include conversations with Mr Ludwig, so that insofar as that conversation incorporates statements of fact, then you must be aware that there are dangers in simply acting upon that statement. You must be aware that there is the danger that it may be unreliable, that is not to say that you cannot accept it, but you must certainly examine it with some care and be cautious of the pitfalls which are inevitably involved in hearsay evidence, that is repetition of out of court statements of people who, when they made them, were not giving that evidence on oath and were not before you, so you could make an assessment and were not in many cases subjected to cross-examination. Now, Mr Redfearn was a person, you remember, who had died before giving evidence, and I gave you some word of warning about that as well. So, simply bear that in mind when you do see that evidence. But that can be provided to you.”

429 Counsel for the appellant made the point that as the jury had sought a copy of the transcript of Mr Redfearn’s evidence, it had obviously assumed a significant importance in the minds of the jurors. Thus it was contended that in addition to the warnings which his Honour gave, he should have instructed the jury that there was no requirement on Spathis’ counsel at the committal proceedings to cross-examine Crown witnesses either in detail or at all: see Birks at 689-690, 703. This direction was required, it was submitted, because there was no cross-examination of Mr Redfearn at the committal proceedings as to the reliability of his recollection regarding the number of persons to whom he was to meet that night. Thus it was incumbent on the trial judge to specifically direct the jury that as there was a live issue at trial as to the participation of each appellant in the commission of the offence, the evidence of Mr Redfearn on this vital issue was never tested, and given the state of his evidence, they should carefully scrutinise it before relying on it.

430 In R v Mendham & Foster (1993) 71 A Crim R 382, this Court (Gleeson CJ, Sheller JA and Grove J) cited the following passage from the judgment of the Privy Council in Henriques v The Queen [1991] 1WLR 242 at 247: -

"When a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the deponent nor of hearing his evidence tested in cross-examination and that they must take this into consideration when evaluating the reliability of his evidence. Furthermore as Lord Griffiths said in Scott v The Queen, at p1259:

'in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination.’”

431 It would have been a counsel of perfection to expect the trial judge in the instant case to have, of his own motion, alerted the jury to the point which the appellant now seeks to raise.

432 Moreover, a real question arises as to whether, if counsel at the trial had raised this point with the trial judge, his Honour would have given the direction sought.

433 For the purposes of this case the warnings which his Honour gave as to the care with which the jury should approach Mr Redfearn’s evidence, were completely adequate. A submission was put by the appellant’s counsel that the evidence of Mr Ludwig’s representations to Mr Redfearn was wrongly admitted in breach of s 65 of the Evidence Act. However, this submission was not developed and accordingly not responded to by Crown counsel.

434 On the face of it the evidence does not appear to fall outside the terms of s 65 and in the absence of submissions this Court does not find it necessary to further explore the issue. The appellant requires leave under Rule 4 in relation to this ground. The ground has, in my view, no substance, and leave to rely upon the ground should be refused.

435 Counsel for the appellant handed to the Court a document headed “Appellant’s Document on Matters Not Raised by Counsel for the Appellant”.

436 Although it was not made clear during the course of argument, the Court presumes that the appellant sought to have these matters included in one or more of its grounds of appeal. Each of the 15 points asserts a failure by trial counsel to appropriately protect the interests of the appellant. Paragraphs 1, 2, 3, 4, 5 and 15 have already been considered under discrete grounds of appeal.

437 The remaining matters advert to alleged failures to adequately cross-examine in certain respects and to elicit evidence either in chief or in re-examination from the appellant.

438 There is no substance in these allegations so far as the material before this Court is concerned.

439 For the reasons set out above I propose that the appeal by Spathis against conviction be dismissed. No argument was addressed to this Court in support of his application for leave to appeal against sentence and, in the circumstances, leave should, in my view, be refused.

440 This was a long and complex trial conducted with skill and impeccable fairness by his Honour. It is therefore, not without hesitation, that I express certain comments about aspects of the written directions which were, in my respectful view, inconsistent with established authority. These misdirections were not the subject of grounds of appeal and were not capable in the circumstances of giving rise to a miscarriage of justice, being in most respects unduly favourable to the appellants. However, it is important that they be referred to, to avoid replication.

441 The written directions under the heading “Joint criminal enterprise” do not accurately make clear the distinction between the planned enterprise and the incidental crime. Paragraphs (4) and (5) inappropriately refer to the incidental crime as one being committed “instead of the agreed crime”, whereas, as is generally the case, and certainly (on the Crown case) what was alleged here was that both the agreed crime and the incidental crime were committed. In his oral directions on this aspect of the case, his Honour did, however, clearly and accurately explain the relevant principles to the jury.

442 With regard to the Elements of felony murder and the sub-heading Co-Accused did the Stabbing, there is a misdirection in sub-paragraph (b) in that to establish felony murder in this context it was necessary for the Crown to prove beyond reasonable doubt that the fatal wound was inflicted during, or immediately after the commission by the accused and/or his co-accused of the offence of robbery while armed with an offensive weapon with wounding. Section 18 makes no provision for the fatal wound to be inflicted “immediately before” the commission of the foundational offence. In the circumstances of the present case, however, the insertion of the words “immediately before” in sub-paragraph (b) is of no real consequence as there was no suggestion in the evidence that the fatal stab wound was inflicted immediately before the armed robbery with wounding.

443 With reference to sub-paragraph 2(c) under the heading “Co-Accused did the Stabbing”, it was not necessary for the Crown to prove that the accused who did not do the stabbing, being aware that his co-accused was armed with an offensive weapon, namely a knife, was aware that there was a substantial risk that his co-accused might during, or immediately after the commission of the robbery stab Klaus Peter Ludwig seriously injuring him, or killing him. It would be enough for the jury to be satisfied that the stabbing by the knife being carried by the co-accused during or immediately after the robbery of Mr Ludwig, was a contingency which the accused had in mind, whether or not the stabbing was intentional and whether or not in furtherance of the common unlawful purpose: see R v Sharah (1992) 30 NSWLR 292 at 297 and R v Johns [1978] 1 NSWLR 282 at 294-295.

444 With reference to paragraph 3 under the heading “Undecided as to who did the stabbing” sub-paragraph (d) of the direction states “That the person who stabbed the deceased did so with the intention of killing him or inflicting grievous bodily harm”. It was sufficient for the Crown to have established in this regard, however, that the infliction of the fatal wound was a willed act, whether or not the stabbing was intentional and whether or not in furtherance of the common unlawful purpose.

445 As to sub-paragraph (f)(ii) under the same heading, it was sufficient that the Crown establish that there was the possibility, amounting to a substantial risk, that in the course of the robbery, the co-accused may stab the deceased (irrespective of whether the stabbing was intentional or not or in furtherance of the common unlawful purpose or not) and yet the one who did not do the stabbing continued to participate in the enterprise.

446 SMART AJ: For the reasons given by Heydon JA I agree that the appeal by Michael Patsalis against his conviction should be dismissed and that his application for leave to appeal against sentence should be refused.

447 For the reasons given by Carruthers AJ I agree that the appeal by Alexios Spathis against his conviction should be dismissed and that his application for leave to appeal against sentence should be refused.

**********

Citations

R v Spathis [2001] NSWCCA 476

Most Recent Citation

Cases Citing This Decision

53

Il v The Queen [2017] HCA 27

Patsalis v The Queen [2007] HCATrans 651

Bindaree Beef Pty Ltd v Riley [2013] NSWCA 343

Cases Cited

36

Statutory Material Cited

6

R v Nudd [2004] QCA 154

R v Lovett [No 3] [2013] WASC 102

Actions

Download as PDF Download as Word Document

CITATION:	R v Spathis; R v Patsalis [2001] NSWCCA 476
FILE NUMBER(S):	CCA 60093/00; 60139/00
HEARING DATE(S):	30/07/01, 31/07/01
JUDGMENT DATE:	29 November 2001
PARTIES :	Regina v Alexios Spathis; Regina v Michael Patsalis
JUDGMENT OF:	Heydon JA at 1; Carruthers AJ at 201; Smart AJ at 446

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70200/97; 70002/97
LOWER COURT JUDICIAL OFFICER :	Kirby J

COUNSEL :	Crown: Mr G E Smith Spathis: Mr A J Bellanto QC/Mr P Lowe Patsalis: In person
SOLICITORS:	Crown: S E O'Connor Spathis: Patricia White & Associates
CATCHWORDS:	Criminal Law - Murder - Appeal - Conviction - Conduct of legal practitioners - Incompetent representation - Whether legal representatives at trial were incompetent - Whether counsel should have led further character evidence - Whether counsel should have applied for separate trials of co-accused - Whether incompetence caused prejudice to appellant creating miscarriage of justice - Criminal Law - Murder - Appeal - Application to adduce further evidence on appeal - Whether "fresh evidence" - Whether further evidence likely to lead to new trial - Whether further evidence raised possibility of miscarriage of justice - Criminal Law - Murder - Appeal - Judicial directions to jury - Whether misdirections - Whether direction necessary that jury members must all be satisfied on at least one basis of liability - Where one indictment count of murder but alternate bases of liability at trial including felony murder and mens rea murder - Whether manslaughter verdict ought to have been left open to jury - Directions re elements of felony murder - Directions re use of relationship evidence - Directions re lies of accused and consciousness of guilt - Directions re evidence from deceased witness - Criminal Law - Murder - Appeal - Evidence - Whether trial judge erred in permitting Crown to cross-examine a witness as unfavourable - Evidence Act 1995, s 38(1)(c) - Whether trial judge erred in failing to exclude evidence of lies as "admissions" - Crimes Act 1990 (NSW), s 424A. - Criminal Law - Murder - Appeal - Joint-trial - Whether trial judge ought to have ordered separate trial of co-accused - Criminal Law - Murder - Appeal - Sentence - Whether sentence excessive - Whether lack of parity between sentences imposed upon co-offenders - Whether proper consideration by sentencing judge of assistance given to police by appellant - D
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 (NSW) Evidence Act 1995 (Cth) Prevention of Fraud (Investments) Act 1958
CASES CITED:	Adam v The Queen [2001] HCA 57 Barlow v The Queen (1997) 188 CLR 1 R v Birks (1990) 19 NSWLR 677 R v Boreman and Ors [2000] 1 All ER 307 R v Bowden (1981) 7 A Crim R 378 R v Kevin Brown (1983) 79 Cr App R 115 Browne v Dunn (1893) 6 R 67 Bullard v The Queen [1975] AC 635 R v Burke [1983] 2 NSWLR 93 R v Carberry [1994] Crim LR 446 R v Connelly [1991] 2 Qd R 171 R v Crabbe (1985) 156 CLR 464 R v Cramp (1999) 110 A Crim R 198 R v Drummond and Domican (No 2) (1990) 46 A Crim R 408 R v Clarke; Ex parte Attorney-General of Queensland [1999] QCA 438 Edwards v The Queen (1993) 178 CLR 193 R v Foley (1998) 105 A Crim R 1 Gallagher v R (1986) 160 CLR 392 R v Giannetto [1997] 1 Cr App R 1 Gilbert v The Queen (2000) 74 ALJR 676 Gipp v The Queen (1998) 194 CLR 106 R v GH (2000) 105 FCR 419 R v Hamilton (1983) 68 A Crim R 298 Harriman v The Queen (1989) 167 CLR 590 R v Hauser (1982) 6 A Crim R 68 Henriques v The Queen [1991] 1 WLR 242 R v Henry (1992) 28 NSWLR 348 R v Hitchins [1983] 3 NSWLR 318 R v Horton (1998) 45 NSWLR 426 R v Hunter and Sharah [1999] NSWCCA 5 R v Johns [1978] 1 NSWLR 282 Leivers & Ballinger (1998) 101 A Crim R 175 R v Mansour (unreported, NSWSC, 19 November 1996) R v Mendham & Foster (1993) 71 A Crim R 382 Mickelberg v R (1989) 167 CLR 259 Moss v Brown [1979] 1 NSWLR 114 R v Munro (1981) 4 A Crim R 67 Osland v The Queen (1998) 197 CLR 333 Palmer v R (1998) 193 CLR 1 Pemble v The Queen (1971) 124 CLR 107 R v Phan [2001] NSWCCA 29 Ratten v R (1974) 131 CLR 510 R v Reed [1999] NSWCCA 258 R v Rees [2001] NSWCCA 23 Ryan v The Queen (1966-1967) 121 CLR 205 R v Ajiit Sing Sat-Bhambra (1989) 88 Cr App R 55 R v Schneidas [1981] 2 NSWLR 713 R v Serratore (1999) 48 NSWLR 101 R v Sharah (1992) 30 NSWLR 292 R v Stewart and Schofield [1995] 1 Cr App R 441 R v Taouk (unreported, NSWCCA, 17 December 1992) R v Thatcher (1987) 39 DLR (4th) 275 R v Williamson [2000] 1 VR 58 Wilson v The Queen (1970) 123 CLR 334 Wilson v The Queen (1992) 174 CLR 313 R v Zaidi (1991) 57 A Crim R 189
DECISION:	See paras 199 and 200