R v Spilios - [2016] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SPILIOS
[2016] SASCFC 6
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Nicholson)
16 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IRREGULARITIES IN RELATION TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - DISCHARGE OF JURY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS
Appeal against conviction. The appellant was jointly charged with a co-accused, Darren Charles Bascombe, with the offence of murder. It was the prosecution case that the defendants knew the deceased through the amphetamine trade. Both men believed the deceased owed them money. In the early hours of the morning of 22 November 2013, the appellant left his home in Berri in South Australia and drove to Mildura in Victoria. There, he met Bascombe and both men travelled back to South Australia to the deceased’s home at Monash. The deceased was murdered in the dining room of his home.
Both defendants gave evidence in their own defence. Bascombe said that he was involved in an altercation with the deceased but that the deceased was still alive when he left the house. The appellant denied being at the home of the deceased that morning and denied any involvement in, or knowledge of, the killing.
Whether the Judge should have ordered a mistrial after a juror alleged that the appellant had deliberately stood in the way of the juror as the juror attempted to enter the jury room. Whether there was a case to answer. Whether the Judge erred in his directions in respect of joint enterprise. Whether the Judge erred in permitting a joint trial. Whether the Judge erred in permitting a leading question. Whether the Judge wrongly admitted the evidence of Bascombe’s partner.
Held per Gray J (Kelly and Nicholson JJ agreeing) (dismissing the appeal):
1.       The conduct of the appellant was improper but it did not warrant a discharge of the jury in circumstances where the jury expressed in the clearest of terms that they were able to continue and received clear directions on how they should approach their deliberations in light of the appellant’s conduct outside of Court.
2.       The Judge did not err by failing to hold that there was no case to answer. The evidence was capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the appellant.
3. This Court is bound by the High Court decision of McAuliffe v R (1995) 183 CLR 108 and that decision was correctly applied by the trial Judge.
4.       It was appropriate for the defendants to be jointly tried and the jury were given clear directions regarding the permissible and impermissible use of evidence against each defendant.
5.       There was no basis to exclude the evidence consequent to the purported leading question or the evidence of Bascombe’s partner. The evidence was probative of facts in issue and there was no resulting unfairness to the appellant by its admission.
Criminal Law Consolidation Act 1935 (SA) s 11, referred to.
McAuliffe v R (1995) 183 CLR 108, applied.
Smith v Western Australia (2014) 250 CLR 473; Zanetti v Hill (1962) 108 CLR 433; R v Bilick (1984) 36 SASR 321; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Perks (1986) 43 SASR 112; R v Bascombe and Spilios [2015] SASC 129; R v Christie [1914] AC 545, considered.

R v SPILIOS
[2016] SASCFC 6
Court of Criminal Appeal: Gray, Kelly and Nicholson JJ
GRAY J.

This is an appeal against conviction by the defendant and appellant, John Paul Spilios.
Spilios was jointly charged with Darren Charles Bascombe with the offence of murder.[1] The particulars of the offence were that Bascombe and Spilios, on 22 November 2013, at Monash, murdered Luciano John Caruso. On 11 August 2015, following a trial before Judge and jury in the Supreme Court, both Bascombe and Spilios were found guilty as charged.
[1] Criminal Law Consolidation Act 1935 (SA) section 11.
The defendant advanced six grounds of appeal. It was submitted that the trial Judge should have concluded that there was no case to answer, notwithstanding the absence of such an application by Spilios at trial. It was complained that, in any event, the Judge’s directions to the jury in respect of joint enterprise were materially deficient and amounted to a serious error of law. It was submitted that, in all the circumstances, a joint trial should not have been allowed to proceed given the difficulty in the jury making proper use of the conflicting evidence provided by Bascombe and Spilios. It was further contended that the Judge erred in permitting a witness to answer a leading question from the prosecutor and, in so doing, poisoned the jury’s mind. The question suggested that Spilios had used the phrase “knocked off” when having a discussion with the witness about the deceased. Counsel also contended that the Judge erred in admitting evidence of Bascombe’s partner, Kim Chambers, against Spilios. One further issue was raised on the appeal concerning an incident involving a juror. It was submitted that the Judge should have ordered a mistrial following a complaint made by a member of the jury regarding Spilios’ conduct out of Court. A single Judge of the Court granted the defendant permission to appeal on the ground relating to the conduct of the juror and referred the remaining grounds to this Court.
Before coming to address the complaints on appeal it is convenient to summarise the respective cases at trial. On the hearing of the appeal, counsel for the Director of Public Prosecutions provided a detailed summary of evidence. Counsel for Spilios confirmed that there was no challenge to the accuracy of this summary. However, the proper inferences to be drawn were a matter of some dispute.
It was the prosecution case that Spilios and Bascombe knew the deceased through the amphetamine trade. Both men believed the deceased owed them money. In the early hours of the morning of 22 November 2013, Spilios left his home in Berri in South Australia and drove to Mildura in Victoria. There, he met Bascombe and both men travelled back to South Australia to the deceased’s home at Monash in Spilios’ vehicle.
Spilios and Bascombe arrived at the home of the deceased at about 7.30 am. The offence was committed sometime between about 7.30 am and 9.00 am that morning. The deceased was murdered in the dining room of his home.
The deceased was bashed to death. He was subjected to a severe and sustained beating. The blows were targeted at his head and face. He sustained multiple facial and skull fractures. There was extensive blood staining and blood spatter on the floor, walls, ceiling and cupboards in the dining room and kitchen of his house. The blood spatter on the cupboards and floors suggested that the deceased was on the floor, and immobile, when a number of the blows were delivered to his head and face.
Both defendants gave evidence in their own defence. Bascombe said that he was present at the home of the deceased on the morning of the murder and was involved in an altercation with the deceased. He struck the deceased, but only did so after the deceased had attacked him with a knife. Bascombe claimed that Spilios then struck the deceased with a breadboard, knocking him to the ground. Bascombe gave further evidence that he then left the house and that the deceased was still alive when he left. He asserted that Spilios and another unnamed man were present at the house when he left. In effect, Bascombe blamed Spilios and an unnamed, unidentified third man for the killing.
Spilios said that, on the morning of 22 November 2013, he travelled to Mildura from his home in Berri. He said he had arranged to meet Bascombe and sell amphetamines to him. He said he left Bascombe in Mildura. He denied bringing Bascombe back to South Australia and denied taking Bascombe to the home of the deceased. Spilios denied being at the home of the deceased that morning and denied any involvement in, or knowledge of, the killing.
The Trial
The deceased’s body was not discovered until 27 November 2013. At the commencement of their investigation, police spoke to and obtained statements from friends and associates of the deceased. A statement was taken from Spilios on 27 November 2013. In that statement, Spilios told police there were tensions between him and the deceased in the period leading to the death of the deceased. One source of tension was a relationship between the deceased and a woman, Dianne Pinnuck. Spilios was a close friend of Ms Pinnuck. Spilios believed the deceased had been hassling Ms Pinnuck. In his evidence, Spilios said that the deceased had been violent toward her. There appeared to be jealousies between the two men.
Spilios told police of an incident in which the deceased assaulted him. The incident occurred a few weeks prior to the murder. Spilios elaborated on this incident in his evidence. Spilios described the deceased running him off the road in his motor vehicle, then approaching Spilios’ motor vehicle and punching him in the face. This account was supported by the evidence of Ms Pinnuck.
Spilios also told police that the deceased had been sending him threatening text messages. Spilios maintained this account during the course of his evidence. In evidence, Spilios described another incident in which the deceased chased him in his motor vehicle when Spilios was driving Ms Pinnuck and her son. Spilios said they had to hide in the scrub to avoid being caught.
Spilios gave evidence that he had sold amphetamines to the deceased, and as a consequence, the deceased owed him money. He said that the deceased owed him about $3,500.00. Spilios suggested that he was unconcerned about the debt owed by the deceased. However, in the weeks immediately prior to the murder, Spilios had been complaining to people that the deceased owed him money. He was described as being “annoyed” and “venting” about the debt. He said he was owed “a lot of money”. The figure of $7,000.00 was mentioned.
On the prosecution case, there was ill will between Spilios and the deceased as a consequence of their relationship with Ms Pinnuck. This, combined with the debt owed by the deceased, caused Spilios to go to the home of the deceased on the morning of the murder in the company of Bascombe. It was the prosecution case that Bascombe had his own motives for going to the house that morning.
It was the prosecution case that not only did Spilios harbour ill will toward the deceased, but he was prepared to act upon it. The prosecution led evidence that, on 20 November 2013, two days prior to the murder, Spilios approached Giuseppe Vallelonga seeking money from Mr Vallelonga to get rid of the deceased. A few years earlier, Mr Vallelonga had been arrested, charged and prosecuted for drug trafficking offences. He was convicted and served a period of imprisonment for those offences. He was released from prison a few months prior to the murder. Mr Vallelonga believed he had been set up in relation to that matter.
Spilios knew Mr Vallelonga. Both men lived in the Riverland and had known each other for many years, but were not close. As at November 2013, the two men had not spoken for several years. On the afternoon of 20 November 2013, Spilios rang Mr Vallelonga, telling him he had something important to tell him about being set up. He said he needed to talk with Mr Vallelonga and arranged to visit him later that afternoon. Mr Vallelonga gave evidence that Spilios was waiting at his home when he arrived home from work that day. Spilios told Mr Vallelonga that the deceased had “set him up” and that the deceased hated Mr Vallelonga and his family. He asked Mr Vallelonga whether he wanted to do something about what the deceased had done to him. He asked Mr Vallelonga to contribute $5,000.00 towards “doing something about Luch Caruso”. Spilios used the words “do him in”.
Mr Vallelonga gave evidence that he refused but Spilios persisted. Spilios asked for $2,000.00 or $3,000.00. Once again Mr Vallelonga refused, telling him to leave the deceased alone. The matter was revisited in cross-examination by counsel for Bascombe. Mr Vallelonga was asked whether Spilios had said “[d]o you want to do something about it and put $5,000 towards knocking him on?” and Mr Vallelonga agreed. Mr Vallelonga understood that Spilios wanted the money to be put toward “causing his death”.It was the prosecution case that the evidence of Mr Vallelonga, if accepted by the jury, established that Spilios not only harboured ill will toward the deceased, but that he was planning on acting on that ill will.
Telephone call charge records showed that Spilios and Bascombe were in contact in the days leading to the murder. The two men spoke by telephone on multiple occasions on the evening prior to the murder and on the morning of the murder. On 22 November 2013, Spilios sent Bascombe text messages at 2.58 am and 3.54 am. Bascombe telephoned Spilios at 3.30 am, 5.00 am, 5.01 am and 5.22 am that morning. On the prosecution case, the two men were planning their rendezvous in Mildura and a subsequent visit to the home of the deceased in Monash.
It was the prosecution case that Spilios drove his partner’s green 1998 Mercedes Benz sedan from their Berri home to Mildura, leaving at about 3.30 am on the morning of 22 November 2013. At 4.00 am, the Mercedes Benz vehicle was photographed passing through the Yamba road Safe-T-Cam. The Safe-T-Cam site is 17 kilometres east of Renmark, which is a town about 20 kilometres east of Berri. The vehicle was travelling in an easterly direction on the Sturt Highway, which connects Renmark with Mildura. Bascombe lived in Mildura.
At 5.39 am Central Standard Time, the vehicle was filmed at a service station in Mildura. The travel time from Yamba to Bascombe’s home in Mildura is about one hour and 17 minutes. It was an agreed fact that Spilios was driving the vehicle when it was filmed arriving and departing the service station in Mildura. It was also an agreed fact that Bascombe was sitting in the front passenger seat of the vehicle at that time.
The vehicle left the Mildura service station at 5.50 am. One hour and nine minutes later, at 6.59 am, the vehicle was photographed passing through the Yamba Safe-T-Cam, travelling in a westerly direction. On the prosecution case, Spilios was driving the vehicle and that Bascombe remained in the front passenger seat. This was confirmed by Bascombe during the course of his evidence. Bascombe told the jury that Spilios picked him up from a location near his home in Mildura and then drove to a service station in Mildura. While at the service station, Bascombe withdrew the sum of $100.00 from his bank account. Bascombe said that the two men then drove to the home of the deceased, passing through the Yamba Safe-T-Cam on the way.
Spilios admitted driving to Mildura and meeting Bascombe. He said that he collected Bascombe from a location near Bascombe’s home and drove him to the service station. He said that Bascombe withdrew $100.00 from the ATM. He said the purpose of the trip was to sell an eight ball, or 3.5 grams, of amphetamines to Bascombe but that deal did not eventuate.
Spilios claimed that Bascombe asked to be driven to the home of the deceased. He said that Bascombe had, in earlier conversations, expressed anger toward the deceased. He said that Bascombe had been angry about the way the deceased had been treating certain women. Spilios gave evidence that Bascombe wanted to visit the deceased and “touch him up”. Spilios said that while the two men travelled to the service station, Bascombe was yelling and screaming. He claimed that he was not prepared to drive Bascombe to the home of the deceased. Spilios said he left Bascombe in Mildura and then drove home alone. Spilios gave evidence that he could not give Bascombe a ride to the home of the deceased because he had to return his partner’s car so that she could take their children to school.
Forensic evidence linked Bascombe to the crime scene. A single source DNA profile was obtained from blood found on a rain water tank at the home of the deceased and evidence was led that it was over 100 billion times more likely that Bascombe was the source of that profile than an unknown, unrelated person. A similar DNA match was found in blood droplets on the dining room floor. The blood drops from which DNA was recovered were only a metre or so from the deceased’s body.
Bascombe made admissions to his partner Kim Chambers regarding his presence at the crime scene. The admissions were made during a prison telephone call to Ms Chambers, and during the course of prison visits by Ms Chambers. The conversations were recorded by police and relevant extracts were played to the jury. In those conversations, Bascombe told Ms Chambers that he went to the home of the deceased on the morning of the murder. He said the visit had been “arranged before that night”. He told Ms Chambers that the deceased owed him money and that he owed money to others. He said he went to the home of the deceased that morning to take the deceased’s motor vehicle so that it could be given to those to whom Bascombe owed money. He told Ms Chambers that he “owed me but I owed them. I said I’ll get your collateral. I’ll go get his car and bring it back.” He further told Ms Chambers that he “was trying to kill two birds with one stone and fuckin pay off both debts, you know.”
Bascombe told Ms Chambers that Spilios drove him to the home of the deceased. He told her that when the deceased saw Spilios, the deceased became agitated and produced a knife. Bascombe said “… when he seen him, he starts go’in off his fuckin head, pulled a knife out, fuckin cut me, I was fuckin bleeding everywhere, fuckin belt the fuck out of him…”.
During the course of his evidence, Bascombe admitted being present at the scene of the crime. Bascombe said his intention was to take the deceased’s motor vehicle. He said that Spilios dropped him at the home of the deceased and then left the property for about 40 minutes before returning. When Spilios returned, the deceased became angry. He produced a knife and threatened Bascombe. Bascombe sustained a cut to his thumb and the two men struggled. Bascombe then struck the deceased twice to the face. At this time, Spilios became involved. He struck the deceased to the back of the head with a breadboard. This caused the deceased to fall to the ground. Bascombe said that the deceased was, at that point in time, lying on the floor, “moaning and groaning”.
Bascombe then went outside for a cigarette. He went to the rainwater tank to wash the blood from his hand. As earlier mentioned, incriminating DNA was recovered from blood on the tap of the rainwater tank and from blood drops on a path leading to the rainwater tank. Upon returning inside, Bascombe saw the deceased lying on the dining room floor. He said the deceased was bleeding from the injury to his head. Bascombe claimed that he had a short conversation with Spilios, after which he left the house, taking the deceased’s motor vehicle. He then drove the deceased’s motor vehicle back to Mildura. He claimed to have seen an unknown third male sitting in Spilios’ motor vehicle as he left the home of the deceased.

Spilios denied going to the home of the deceased that morning. He said he drove home and that when he arrived home, his partner, Kerry Olds, was in bed. Telephone records showed that at 7.30 am Spilios made a telephone call to Ms Olds. The call connected for a period of 26 seconds. The prosecution claimed that the two of them spoke, which would suggest that Spilios was not home by 7.30 am.
Spilios claimed that he rang Ms Olds to tell her that he was “just around the corner; or I might ask her if the kids want Maccas.” He said he was in the habit of ringing his partner when he was around the corner as “a courtesy thing.” The distance from Yamba to the home of the deceased was 40 kilometres, an approximate travel time of 28 minutes. However Berri, where Spilios and his partner lived, was much closer to Yamba than the home of the deceased. On the prosecution case, there was no reason for Spilios to ring his partner at 7:30 am to tell her, as a courtesy from around the corner, that he would be home soon. If his version of events was correct, he should have been well home by 7.30 am and there would have been no reason to make the courtesy call from around the corner.
Two minutes after ringing his partner, Spilios made a telephone call to his friend Ms Pinnuck. The call connected for two seconds. It was the first of five attempts to contact Ms Pinnuck between 7.32 am and 8.02 am, all of which appear to have been unsuccessful. It was the prosecution case that the telephone records provided some support for the evidence of Bascombe that Spilios had dropped him at the home of the deceased and left to collect Ms Pinnuck. It was claimed that Spilios made the five attempts to contact Ms Pinnuck in an effort to arrange to meet with her. On the prosecution case, Spilios spent that 30 or so minutes trying to find Ms Pinnuck. He was unsuccessful and subsequently returned to the home of the deceased without Ms Pinnuck. It was then that he and Bascombe engaged in the assault upon the deceased.
As earlier mentioned, Bascombe stole the deceased’s black Holden Commodore motor vehicle and used it to make his way back to Mildura. That vehicle was photographed passing through the Yamba Safe-T-Cam at 9.49 am, which suggests, given the travel time between Monash and Yamba, and the claim by Bascombe that he stopped at a service station, that he left the crime scene between 9.00 am and 9.10 am. On the prosecution case, considering the fact that Bascombe did not use his own car to get to Monash, it was inherently improbable that Bascombe could have found his way to the deceased’s home by 7.30 am to 9.00 am unless somebody had driven him to South Australia. On the prosecution case, as the forensic evidence established Bascombe’s presence at the crime scene, and because Spilios had been in the company of Bascombe in Mildura at 5.50 am, it followed, as a natural and logical inference, that both men travelled to South Australia together and were in each other’s company at the time of the murder.
In the prosecution’s closing address, counsel for the Director submitted that the inference was open that Spilios went to the home of the deceased either to recover monies that he believed were owed to him or to seek redress for the assaults committed upon him and his friend Ms Pinnuck. The prosecution claimed that while Bascombe had slightly different motivations for going to the deceased’s home, both of Bascombe and Spilios shared the common intention of seeking recompense for drug debts.
The prosecution submitted that, considering the tensions that existed at the time between Spilios and the deceased, it could not have been a social visit. Counsel for the prosecution further contended that, if the jury was satisfied beyond reasonable doubt that Spilios and Bascombe attended the deceased’s home that morning with the prearranged plan of unlawfully taking the deceased’s car, it followed, as a natural and logical inference, that they contemplated that they would be met with resistance and violence from the deceased.
Counsel for the prosecution concluded that, if the jury was satisfied beyond reasonable doubt that Spilios contemplated or foresaw that Bascombe might deliberately kill or inflict grievous bodily harm to the deceased; that Spilios participated in the common unlawful purpose; and that, while the agreement was still on foot, the deceased was killed, Spilios would be guilty of murder irrespective of who inflicted the fatal injuries.
It was Bascombe’s case that, when he left the house, the deceased was alive. He claimed that he had no involvement in the infliction of the serious facial injuries sustained by the deceased.
It was Spilios’ case that he did not go to the deceased’s home that morning. He had met Bascombe in Mildura to effect a drug deal but he left Mildura alone. Spilios denied any knowledge of, or involvement in, the killing.
Application to Discharge the Jury
On appeal, the defendant complained that the trial should not have been permitted to proceed following a complaint made by a member of the jury about the out of court conduct of Spilios. It was said that the Judge should have declared a mistrial. During the course of submissions, a further complaint was developed about the procedure followed by the Judge in polling the jurors.
The proper approach to considering the significance of a possible intimidatory approach to a juror was by the High Court in Smith v Western Australia.[2] The Court observed:[3]
[2] Smith v Western Australia (2014) 250 CLR 473.
[3] Smith v Western Australia (2014) 250 CLR 473, 485-6.
Miscarriage of justice
A court should be careful not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion; but where there is an allegation by a juror capable of belief that an incident has occurred which could be regarded as unlawful intimidation, a court of appeal is warranted in entertaining that allegation as part of its consideration of whether a miscarriage of justice has occurred.
The Court of Appeal erred in proceeding on the footing that it was prevented by the exclusionary rule from considering whether a miscarriage of justice had occurred at trial. To dismiss the appeal on the basis that the note was not sufficient “to sustain a conclusion of fact to the effect that the processes of the jury were so irregular as to give rise to a miscarriage of justice” was to proceed on an erroneous basis.
The proper approach
The first point to be made here is that the question with which this case is concerned does not stand on the same plane as an issue raised by the parties for decision at trial; it is a question which, though it may affect the way in which the controversy between the parties should be resolved, is a question as to the integrity of the trial process. The institutional integrity of the system of justice is at stake in a way that is not the case where the issue is solely one between the parties. The appellant did not seek to contend that the verdict upon which he was convicted was not reasonably open to the jury on the evidence.
But as was explained in Weiss v The Queen, even if a court of appeal is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt, “there may be cases where it would be proper to allow the appeal and order a new trial” where in the course of the trial there has been a “serious breach of the presuppositions of the trial”.
If there is evidence capable of belief which gives rise to reasonable ground for suspicion that one juror has exercised unlawful intimidation over another, then, on the face of things, there has been a serious breach of the presuppositions of the trial. That breach casts a shadow of injustice over the verdict. In Webb v The Queen, Mason CJ and McHugh J said that:
“the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.”
The other members of the Court agreed with the test so formulated, although Brennan and Deane JJ differed from the majority in their view of the result of the application of the test in that case. This test should have been applied to determine whether a miscarriage of justice occurred in this case. If the note was capable of giving rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a juror has not discharged his task because of unlawful coercion, the appeal should have been allowed unless other evidence put the integrity of the verdict beyond question. If the shadow of injustice over the verdict could not be dispelled, the proper course for the Court of Appeal would have been to allow the appeal, quash the conviction and order a new trial.
[Footnotes omitted. Emphasis added.]
On 5 August 2013, day thirteen of the trial, a juror raised concerns about the conduct of Spilios outside of court and, in particular, whether Spilios had deliberately stood in the way of the juror as he or she attempted to enter the jury room. The Judge received a note from the jury which he discussed with counsel as follows:
All right, so we have a note which I will read onto the transcript and then I will show the note to counsel after I have done that because there is a diagram on there.
So, there is a diagram and then the note reads as follows:
‘Spilios standing in alcove when I walked around the corner at the staircase, appeared to move into alcove as I approached, saw me and made no attempt to move. I had to ‘squeeze’ past him to enter the door.’
Then it refers to a juror and a particular number which is unnecessary to state.
The Judge was informed by the Sherriff’s Officer that the particular juror spoke alone with the foreperson and the foreperson advised the juror to write a note. Following the taking of instructions, counsel for Spilios made an application for a mistrial. It was submitted that a member of the jury was alleging that Spilios had attempted to intimidate that juror and that, in those circumstances, the juror may not bring an impartial mind to bear on the issues arising in the trial. At the invitation of the Judge, counsel for Spilios advised that his client did not block the path of the juror and, in fact, was not in the area where the incident was said to have occurred. Counsel for the Director submitted that the Judge should consider obtaining information from the juror concerning the juror’s capacity to bring a fair and impartial mind to the proceeding. He suggested the Judge ask the juror if they felt “compromised” or “intimidated”.
The Judge determined to first poll the juror and then the foreperson. The Judge decided to do this in the absence of all counsel and the parties. The Judge advised that he would have his discussion with the jurors recorded. The Judge closed the Court and ordered all persons to leave except for Court staff, Sherriff’s Officers and reporting staff. Following the Judge’s private discussions with the juror who wrote the note, the Judge reopened the Court and made the following statement:
Counsel, I am just going to summarise what occurred in your absence and that is that the juror, the author of the note that you have seen, came into court and took up a position in the corner of the jury box in the lower level nearest the bench and I heard what he had to say from the end of the bench and that was taken down in the normal way by a reporter. I asked the juror when something had occurred and what it was, he or she told me that it occurred at about three minutes to 11 this morning.
The juror basically described it in terms consistent with what you have seen on the note but he added, as I asked him some further questions: first that Mr Spilios was talking on a mobile phone at the relevant times but, secondly, that Mr Spilios had, to use his word[s] ‘been lingering in that area over the past few days’. That that had been a topic of conversation in the jury room, that aspect of lingering. That this morning this juror said, in the presence of the other jurors, something about the fact that he had seen Mr Spilios in that vicinity again. The foreperson then suggested that they go out of that room to discuss the matter with the sheriff’s officer and that is what led to the note.
It was clear from what the juror told me that this matter of Mr Spilios being in a particular area where the jurors come and go had been commented and noted, not just by him but by various members of the jury and appeared to be a topic of interest. I asked this juror whether he thought that this morning’s incident, coupled with the background of the last few days, affected his view of Mr Spilios and that [sic] he said that it did in relation to his character. I asked the juror whether these matters in any way affected his views in relation to Mr Bascombe and he was very adamant that it did not.
The Judge then heard detailed submissions from counsel.
The Judge then determined to close the Court again and order all persons to leave other than Court staff, Sherriff’s Officers and reporting staff. The Judge spoke with the foreperson of the jury. The Judge directed a full transcript be taken. The Judge then opened the Court and informed counsel as follows:
Counsel, I spoke first to the foreperson of the jury who indicated to me or said to me that the juror, the author of the note, was the last person to come into the jury room this morning; that he did mention and say that Mr Spilios was blocking the way; he didn’t need to be there and that he was on the phone; that the foreperson asked him whether he was actually blocking the way and the juror, author of the note, said that in his opinion he was; that the foreperson and the sheriff’s officer then went out of the jury room with that particular juror. The door was closed behind them. They went down the passage and had a further discussion. She was absolutely sure that no-one in the jury room could have heard any of that discussion. That discussion that was then had was quite short. The foreperson said to the sheriff’s officer that the juror, the author of this note, was saying that there had been this blocking by Mr Spilios. The sheriff’s officer said ‘Stop immediately and put it down in writing’.
The three of them, that is the foreperson, the juror and the sheriff’s officer then went back into the jury room. The juror wrote out the note in circumstances where the other jurors could see that he was writing something but weren’t in a position to see what and nor was there discussion as to what he was writing. The other jurors were talking amongst themselves while that was happening in a general way. The note was completed and it was then sent in to me in the way in which you are aware.
The foreperson indicated that she was very confident that both herself and the other jurors could continue this trial and could make a decision based on the evidence and ignore the matters that had occurred.
I then sent the foreperson back to the others having asked her not to discuss the matter with the others and I asked that the author of the note then be brought back and I asked that juror some further questions which were also taken down by the reporter and he indicated to me that he did not record it as deliberate intimidation, that he was not, in fact, intimidated. That he was very confident that he could continue with the trial and put these matters to one side and come to a verdict purely on the evidence given in open court and I asked the juror if the juror had any objection or wish not to sit further and the juror indicated that the juror was perfectly happy to continue sitting.
Further submissions were made by counsel for Spilios. The Judge then indicated that he would dismiss the application for the jury to be discharged. On the jury’s return to the courtroom the Judge then gave the following direction to the jury:
Ladies and gentlemen, thank you once again for your patience. I appreciate it is not the first time and regrettably might even not be the last time that we have delays and so forth for one reason or another.
But, what has occurred today and let’s be entirely frank about it, is that I understand that one of your number, and you will know who it is, was the last person into the jury room this morning and made a remark as to the accused Spilios apparently blocking the way in and being in that place which was not an appropriate place for him to be or words to that effect.
You will appreciate that what occurred then was that madam foreperson and that juror went outside and had a brief conversation to the sheriff's officer as to the appropriate procedure. The juror and the foreperson then came back into the room with the rest of you and the juror proceeded to write a note which was passed to me recounting the matter of Spilios earlier this morning. I understand that there has been some discussion amongst you all, or at which you were present I should say, as to Mr Spilios being in and about the area that you jurors frequent.
Now, the question has arisen as to whether it is possible in the circumstances to continue the trial as against Mr Spilios having regard to what has occurred. I do not think that this has anything to do whatever [sic] so ever with Mr Bascombe and from what I have heard from the foreperson and the juror, the author of the note, that is entirely correct. This has got nothing to do with Mr Bascombe in view of anything but we are looking at the position of Mr Spilios and the question arises as to whether he can get a fair trial having regard to the matter that has been raised as to his movements.
Ladies and gentlemen, I am going to give you some directions about that, namely that if this trial is to proceed as against Mr Spilios it will be your duty to put entirely to one side and out of your mind these matters of Mr Spilios being in the area that the jurors frequent and decide the case wholly and solely on the evidence that is before you that has been given in open court and, of course, in the exhibits that you have naturally.
And that it would only be if I could be confident that you are able to do that that the trial can proceed.
Ladies and gentlemen, it’s a matter, really, of bearing in mind what you are here to decide and how you are to proceed. You are already in a situation where you’ve had a great deal of detail as to the drug trading activities of Spilios and Bascombe and, indeed, the deceased for that matter. And, clearly, the trial is predicated on the assumption that, when I direct you that you are not to use those matters in terms of reasoning such as ‘Because a person is a drug trader he would be the [sic] more likely to be guilty of murder’, you must not reason in that way.
It is background evidence in this case which explains how these people come to be congregating together, their relationships and possible motives that one or other may or may not have for injuring the deceased, and how things came about in terms of the resolution of drug debts and so forth and so on. You had to hear a good deal of evidence which is of a prejudicial nature to both accused in order for you to understand the case at all. If you hadn’t heard that you really would have no idea what this case was about.
So, of course, it's always been the case where I would be directing you, most strongly, that you must only use that evidence for the correct reasons - and I'll give you more detail about that later - but that you must not say ‘Well, this is a bad egg, this is a bad person, therefore I’m going to convict him’ or that ‘This is a bad person, therefore I am going to take that into account as one of the reasons why I should convict him’. What you’ve got to do is say ‘I have heard evidence which shows this person is of bad character in that he’s a drug trafficker. I put that to one side and focus entirely on the question of whether the charge of murder has or has not been proven beyond reasonable doubt solely by reference to the evidence before me; that that evidence includes evidence of drug trading but I can only use that evidence as background evidence for the reasons that the judge tells me and not for an improper purpose of tending to convict him because he is a drug trader’.
So, you see, those are the sorts of directions that I will give you in expanded form during the summing up. When you appreciate that, ladies and gentlemen, you perhaps can appreciate that it is not such a big ask for me to say ‘Put aside what he has or has not done in the last few days in terms of invading space or lingering in the vicinity’. It’s probably easier to put that aside than putting aside the fact that you know he is a drug trader.
So the question comes down to that, that those are the directions that I give you now and which I will expand upon later, and what I am now going to do is ask each of you in sequence, proceeding from the foreperson to her right and then up the next level and then from left to right, if you would be so good after I put a question to you to stand one after the other and give me a ‘yes’ or ‘no’ answer.
So my question is this: do you have any reservations at all as to your ability to put entirely out of your mind the matters of Mr Spilios’s [sic] behaviour in and about the courtroom during the course of this trial when considering your verdict against Mr Spilios.
That’s a simple question so it’s a ‘yes’ or ‘no’ to my question: do you have any reservations at all. If you have any reservations please say ‘yes’; if you have no reservations please say ‘no’. So can we do that.
First madam foreperson.
FOREPERSON: No, your Honour
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Next juror.
JUROR: No, your Honour.
HIS HONOUR: Do any of you ask that you be excused from this trial if we proceed against Mr Spilios? Everyone shakes their head; I assume no-one asks that they be excused. My ruling is that we proceed against both accused Mr Pearce.

Regrettably, the events of 5 August were not an isolated incident. The jury had been empanelled on 20 July 2015. Thirteen jurors were empanelled. On day two of the trial, one juror complained to the Judge that she felt Spilios had been watching and following her during the course of the lunch break. The juror was reportedly upset. After further enquiries, it was resolved to discharge the juror.
Through his counsel, Spilios denied any inappropriate behaviour in relation to that juror. It was suggested that it was an “unfortunate misunderstanding”. Accepting that is all it was, it did very clearly put Spilios on notice of the consequences of any contact, in any form, with any member of the jury. That is a relevant background matter when the events of 5 August are considered.
The juror in question assured the Judge that the juror did not regard Spilios’ conduct as deliberate intimidation, that the juror was not, in fact, intimidated and that the juror was confident to continue with the trial and could put the matter to one side and come to a verdict purely on the evidence given in open court.
Having given the Judge that assurance, there can be no suggestion that the fair-minded lay observer might reasonably apprehend that the juror might not bring an impartial and unprejudiced mind to the resolution of the proceedings. There is a need for public confidence in the administration of justice. If a fair-minded and informed person reasonably apprehended or suspected that a juror or a jury had prejudged the matter, they could not have confidence in the decision of that juror or jury. However, the fair-minded and informed observer would also understand that all members of the jury had sworn an oath to do justice and, further, they are entitled to assume that all jurors would take heed of that oath, and take that oath seriously. The juror in question gave the trial Judge an assurance that the juror would decide the case purely on the evidence heard in court and would put aside any views the juror had formed regarding Spilios’ behaviour outside the Court. The Judge gave clear and detailed directions that the other jurors were to do the same. In those circumstances, there can be no suggestion that the fair-minded and informed observer would reasonably apprehend a risk of bias.
Each juror was specifically asked whether they had “any reservations at all as to [their] ability to put entirely out of [their] mind the matter of Mr Spilios’s [sic] behaviour in and about the courtroom during the course of this trial when considering the evidence against Mr Spilios”. Every juror gave the Judge an assurance that they had no such reservations. All the jurors were asked whether they wanted to be excused from further involvement in the trial. None asked to be excused.
The undertaking given by the whole jury was consistent with the undertaking given by the individual juror in the course of his or her discussions with the Judge in the absence of the accused and counsel.
The procedure adopted by the Judge was appropriate in the circumstances. There is no set procedure for determining these matters, and nor can there be. What is essential is that the Court inform itself of relevant facts and that the parties be given the opportunity to respond to those facts. In the circumstances of this case, there was nothing inappropriate in the Judge obtaining information from the juror in the absence of the parties. It was important that the juror feel free to speak candidly with the Judge, and not feel any pressure from the presence of counsel or the accused. The parties were informed of the substance of the exchanges between the Judge and the juror, and between the Judge and the foreperson. The parties were given a chance to respond to the matters raised in those exchanges. The Judge’s private discussions with the juror were transcribed and the Judge informed the parties that they would have the opportunity to view that transcript in the event the point was taken on appeal. The procedure adopted was appropriate.
The incident occurred after all of the evidence had been heard. Spilios had given evidence and had been cross-examined. On the prosecution case, by the end of his evidence, his credibility was in tatters. He had been caught out lying and had been forced to admit that fact.
By 5 August, Spilios had spent thirteen days looking across the court at the jury. It should be assumed that he well knew what they looked like. Until then, he had been on bail, and had spent considerable time during the various breaks in evidence sitting outside the courtroom. Spilios simply had no business being anywhere near the jury room door. He knew he was to keep his distance from the jury. Events on day two of the trial made that abundantly clear. He knew the consequences of any contact with any juror. His behaviour, at the end of the evidence in the trial was inappropriate, and arguably deliberate. Counsel for the Director contended that the events were open to the interpretation that it was a deliberate attempt by Spilios to sabotage his trial. That proposition was advanced in submissions before the Judge. It is to be noted that Spilios did not suggest, through his counsel, that the incident was another “unfortunate misunderstanding”. He denied being present. He denied behaving in the manner alleged by the juror.
As mentioned above, the test is whether, notwithstanding the warning of the Judge, the conduct of Spilios would give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or would not discharge its task impartially. In my view, considering the responses provided by the juror who wrote the note, the foreperson and the remainder of the jury, no fair-minded and informed member of the public would have a reasonable apprehension that the jury would not discharge its task impartially. The conduct of Spilios was improper but it did not warrant a discharge of the jury in circumstances where the jury expressed in the clearest of terms that they were able to continue and received clear directions on how they should approach their deliberations in light of Spilios’ conduct outside of Court.
No Case to Answer
On appeal, it was submitted by counsel for Spilios that the trial Judge should have found that there was no case to answer against Spilios at the conclusion of the prosecution case.
At trial, counsel for Spilios did not submit that there was no case to answer. On the appeal, it was not suggested that defence counsel at trial was incompetent or had been negligent in the presentation of the defence case. No evidence to support any such allegation was placed before this Court.
The test for a case to answer is whether, with respect to every element of the offence, there is some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred.[4]
[4] Zanetti v Hill (1962) 108 CLR 433, 442; R v Bilick (1984) 36 SASR 321, 337.
Where the case is circumstantial, or partly circumstantial, and therefore depends on inferences, the test then becomes:[5]
... On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? ...
[5] R v Bilick (1984) 36 SASR 321, 337.
There will be a case to answer if the evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypothesis as unreasonable. There is no case to answer only if the evidence is not capable in law of supporting a conviction.[6]
[6] Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, 5.
Earlier in these reasons I have set out a summary of the prosecution evidence led against Spilios. The totality of that evidence, in my view, clearly established a case to answer. By the end of the prosecution case, there was evidence capable of establishing that Spilios bore the deceased ill will, and was prepared to act upon it. Spilios was owed money by the deceased and he was angry about that fact. Bascombe was also concerned about the money owed to him by the deceased. There was evidence capable of establishing that Bascombe, a man directly involved in the killing, was driven to the crime scene by Spilios. Spilios engaged in a 320 kilometre round trip to facilitate Bascombe’s presence at the crime scene. Spilios commenced the 320 kilometre round trip at about 3.30 am, and did so after a series of telephone calls between the two men over the proceeding few hours. This gives rise to the inference that Spilios had arranged to collect Bascombe to transport him to the deceased’s house to facilitate recovery of their respective debts. It could also be inferred that any attempt to recover their debts would be met with resistance and violence from the deceased.
In my view, on the assumption that all the evidence of primary fact, considered at its strongest from the point of view of the prosecution, is accurate, and, on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn, the evidence was capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of Spilios.
Further, there can be no question of a miscarriage of justice having regard to all of the evidence given in the trial, including that given by Bascombe. That evidence has been discussed at length earlier in these reasons.
The Summing Up
In the course of summing up, the Judge provided the jury with an aide-mémoire and referred the jury to that aide-mémoire when discussing the elements of the offence of murder and, in particular, joint criminal enterprise and extended joint criminal enterprise.
In respect of joint criminal enterprise, the Judge provided the following written direction:
JOINT CRIMINAL ENTERPRISE
The doctrine of joint criminal enterprise is that if persons X and Y reach an agreement that together they will commit a particular crime and, while that agreement is still on foot, and in accordance with it, they do between them all the things that are necessary to commit that crime, they are both guilty of that crime, regardless of precisely what part each played in its commission.
Thus, if it is proven that:
1    two accused persons formed an agreement that either a person would be killed or grievous bodily harm would be inflicted upon him, and
2    while that agreement was still on foot, both accused persons each deliberately carried out an act or acts with the express purpose of carrying out that agreement, and
3    while that agreement was still on foot, one or both of the accused persons inflicted the fatal blows (being a substantial cause of the death of the person),
then both accused persons are guilty of the crime of murder.
In respect of extended joint criminal enterprise, the Judge provided the following written direction:
EXTENDED JOINT CRIMINAL ENTERPRISE
Under the doctrine of “Extended Joint Criminal Enterprise”, if persons X and Y reach an agreement that together they will commit Crime Number One, but while the agreement is on foot, Y commits a more serious crime, Crime Number Two, then X will also be guilty of that more serious Crime Number Two if X contemplated or foresaw that Y might commit that more serious crime.
Here, if it is proven beyond reasonable doubt that:
1    X entered into an agreement with Y to visit Mr Caruso at his home, the purposes for which visit included the unlawful purpose of taking the black Calais without the consent of Mr Caruso and either selling it, or giving it in exchange for discharging a debt Mr Bascombe owed for previous purchasing of illicit drugs, or holding it at safe premises as a security for a payment by Mr Caruso to Mr Bascombe (Crime Number One), and
2    X, although only agreeing to the black Calais being unlawfully taken, actually contemplated or foresaw that Y might deliberately kill Mr Caruso or inflict grievous bodily harm upon him (Crime Number Two), and
3    X, while having that contemplation or foresight, nevertheless performed an act(s) for the purpose of carrying out the agreement to unlawfully take the black Calais, and
4    while the agreement to unlawfully take the black Calais was on foot, Y killed Mr Caruso in circumstances constituting murder by him,
then X is also guilty of murder.
The Judge read aloud these written directions to the jury during the summing up.
When dealing with the alleged agreement or understanding, the Judge provided the following oral directions:
Further, it is not enough for the prosecution simply to prove that an accused person was a party to an agreement or an understanding to commit the crime. As I say, the prosecution must prove the accused actively played some part in implementing the understanding or agreement.
Now, ladies and gentlemen, this agreement or understanding may take different forms. In some cases it can be extensively planned, and I suppose if you are thinking about the bank robbery or something of that nature, there might be a good deal that goes into the planning of that, so you might have an agreement on foot for quite a while before the execution of it. But in other cases, you can have an agreement coming into place on the spur of the moment, immediately prior to its execution. So, for example - and I am not necessarily, in any way referring to this case - but say you had a situation where one person starts to deliberately and unlawfully beat another person - I will call him ‘the victim’. So one person is deliberately unlawfully beating the victim - and another person, who sees that, indicates by his words or his actions to the first person that he wishes to join in, join in an agreement with the other person to unlawfully beat this victim and he might do that by saying ‘Yeah, I’ll help you out’ and the other one says ‘Come on’. It can be as fleeting as that, it could be a tacit agreement, that each agrees with the other that the victim will either be killed or, at the very least, suffer grievous bodily harm.
I think Mr Pearce might have used the expression ‘a nod or a wink’. There has got to be a meeting of the minds. There has got to be an actual agreement, but for example, as between people who know each other, for example, and have a common sort of understanding of life in general, then you can appreciate perhaps that agreements of one form or another can be formed at short notice with a minimum of discussion. You do not just assume agreement, you have got to prove it, but it can be formed quite quickly and really quite shortly before its execution. And if it is so formed, if it is so proven it is so formed, then both accused would be guilty of murder in the example I have just related irrespective of precisely the role each one played.
The Judge provided the jury with the following written directions as to the possibility of a verdict of manslaughter in a case of extended joint criminal enterprise:
THE POSSIBILITY OF A VERDICT OF MANSLAUGHTER IN A CASE OF EXTENDED JOINT CRIMINAL ENTERPRISE
The jury may find either accused person not guilty of murder but guilty of only the lesser crime of manslaughter in a case of extended joint criminal enterprise if it is proven beyond reasonable doubt only that:
1    X entered into an agreement with Y to visit Mr Caruso at his home, the purposes for which visit included the unlawful purpose of taking the black Calais without the consent of Mr Caruso and either selling it, or giving it in exchange for discharging a debt Mr Bascombe owed for the previous purchasing of illicit drugs, or holding it at safe premises as a security for a payment by Mr Caruso to Mr Bascombe, and
2    X, although only agreeing to the black Calais being unlawfully taken, actually contemplated or foresaw that Y might unlawfully assault the deceased in circumstances where a reasonable person would have realised that he was exposing Mr Caruso to an appreciable risk of serious injury, and
3    X, despite having that contemplation or foresight, nevertheless performed an act(s) for the purpose of carrying out the agreement to unlawfully take the black Calais, and
4    while the agreement to unlawfully take the black Calais was still on foor, Y killed Mr Caruso in circumstances amounting to murder or manslaughter,
then X is not guilty of murder but only guilty of manslaughter.
In the course of his oral directions, the Judge said:
Now, I have already given you the memorandum and the long oral directions on all of that, and you can see, I think, that the essential difference between a verdict of murder and a verdict of manslaughter in a case of extended joint criminal enterprise, as arises here, appears at para.2 on p.4 in those italicised words. Because you can see at that point that what is involved is a lesser degree of criminal intent. You see there the para.2 on p.4, what had to be actually contemplated or foreseen was that Y might unlawfully assault the deceased in circumstances where a reasonable person would have realised that he was exposing Mr Caruso to an appreciable risk of serious injury.
If the prosecution can prove that, but cannot prove more than that, then it would only be a verdict of manslaughter rather than murder, provided of course all other matters had been properly proven by the prosecution.
If you go back and you contrast para.2 of p.3, you will see here we are talking about liability for murder. And you will see here that what it says is ‘actually contemplated or foresaw that Y might deliberately kill Mr Caruso or inflict grievous bodily harm upon him’.
You see you are contrasting that level of foresight, if I can put it that way, with a lesser level of foresight in para.2 at p.4, namely, that lesser level of foresight reflected in the italicised words in that paragraph. So everything else is the same, it is just the difference - everything else as between pages 3 and 4 in the jury memorandum is the same really, it is an essential difference that you see arising between the two paragraphs, the two paragraphs numbered 2 on the respective pages 3 and 4.
Again, entirely a matter for you ladies and gentlemen, as to the facts and the verdict that you come to. But at the end of the day, if you are satisfied of all of the things that I have told you the prosecution must prove, but you are only satisfied that X had this lesser degree of contemplation or of foresight rather than the higher degree than that which is required for murder, then you could not convict of murder but you could convict of the lesser crime of manslaughter.
Joint Enterprise
Spilios’ main complaint in respect of the Judge’s summing up related to his directions on the law concerning joint criminal enterprise. Counsel foreshadowed a submission that the decision of the High Court of Australia in McAuliffe[7] was wrongly decided and that this Court should not follow McAuliffe. The Court declined to allow that submission to be developed. It was pointed out to counsel for Spilios that this Court was bound by the decision in McAuliffe, the Court would follow that decision and, as a consequence, any attack on McAuliffe should be made to the High Court.
[7] McAuliffe v R (1995) 183 CLR 108.
Counsel then submitted, in the alternative, that the trial Judge had misapplied McAuliffe. The core of this complaint appeared to be a failure to address what were described to be serious evidentiary issues over Spilios’ participation. Counsel complained that the evidence did not support the conviction of murder on the basis of joint enterprise against Spilios. Counsel submitted that, in the absence of a weapon being taken to the premises, one could not infer that it was foreseeable that Bascombe would kill the deceased. Counsel further contended that the principle in McAuliffe could not be extended an agreement between the defendants to steal a car.

McAuliffe concerned three youths who decided to go to a park near Bondi Beach for a purpose which was variously described as being to “roll” or “rob” or “bash” someone. Two of the youths were armed with weapons but there was no evidence as to the youths being aware that the others were armed prior to them arriving at the park. The youths attacked the deceased and caused him to fall off a cliff. The Court described joint enterprise and extended joint enterprise in the following terms:[8]
... Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.
[8] McAuliffe v R (1995) 183 CLR 108, 114.
In my view, the Judge did not misapply McAuliffe. While in McAuliffe there was arguably more evidence to suggest a prearranged assault, including the fact that weapons were brought to the park, I cannot see any basis to distinguish these proceedings. It is to be noted that while weapons were brought to the park, it is unclear if each defendant in McAuliffe had knowledge of those weapons. Earlier in these reasons, I have set out the prosecution case against Spilios. In that narration, I have identified the detailed material supporting the inferences the prosecution invited the jury to draw. There was evidence that Spilios wanted to recover the drug debt from the deceased and “do him in”. Further, Spilios gave evidence that Bascombe wanted to “touch [the deceased] up”. In my view, there was ample evidence on which the jury could be satisfied beyond reasonable doubt that Spilios contemplated or foresaw that Bascombe might deliberately kill or inflict grievous bodily harm to the deceased, that Spilios participated in the common unlawful purpose and that while the agreement was still on foot the deceased was killed. As a consequence, Spilios was rightly convicted of the crime of murder, irrespective of who inflicted the fatal injuries.
Counsel for Spilios also complained that the Judge’s directions as to joint enterprise and extended joint enterprise were deficient in that they failed to link the evidence to the differing standards of foresight required for manslaughter in comparison to murder. In my view, this complaint is without substance. The written directions as set out above clearly set out level of foresight required in respect of manslaughter in comparison to murder. The Judge was not required to specifically point to the evidence which suggested that Spilios would only have contemplated or foreseen Bascombe making an unlawful assault upon the deceased, rather than deliberately killing or inflicting grievous bodily harm on the deceased. As noted by King CJ in Perks:[9]
… It is not necessary, for the adequate presentation of the defence to the jury in the course of a summing up, that the judge should refer to every piece of evidence which counsel feels may support the defence case or to every argument which counsel puts to the jury. Whether to refer to any particular piece of evidence or to any particular argument is a matter for the judgment of the trial judge. A summing up is not inadequate simply because it fails to refer to some particular piece of evidence or some particular argument so long as the presentation of the case to the jury as a whole is fair and even handed.
...
Each judge has his own style of summing up. It is always possible to criticise the omission of reference to some piece of evidence or argument relevant to a defence. But it is no part of the duty of the trial judge to argue the case for the defence any more than it is his function to argue the case for the prosecution. What is required is that the judge put the substance of the defence to the jury and explain its bearing upon the elements of the charge. Generally an adequate presentation of the defence will require some reference to the version of the critical incidents given by an accused person who has given evidence. In the more complex cases, it may also require some reference to other evidence and the bearing of that evidence upon the issues of the case and the defence to the charge. Just how far it is necessary to go must depend upon the circumstances of each case and upon the judgment of the trial judge. …
[9] R v Perks (1986) 43 SASR 112, 115-6.
In my view, there was no omission of the Judge that would give rise to a miscarriage of justice. I would refuse Spilios permission to appeal on the grounds relating to joint enterprise.
The Remaining Grounds of Appeal
A Joint Trial
Counsel for Spilios submitted that a joint trial should not have been permitted. The substance of the complaint was that the jury would have difficulty in making their assessment of the credibility and reliability of the evidence provided at the trial by Bascombe and that difficulty presented the jury with an impossible task.
Counsel for Spilios complained generally that the jury were directed to accept the evidence of Bascombe for the purpose of convicting Spilios but reject it in relation to the case against Bascombe. It is to be noted that the prosecution is entitled to ask the jury to accept a witness’ evidence on some matters while rejecting it on others. Unless counsel can point to specific examples of evidence that the jury must necessarily have accepted in order to convict Spilios but in the same breath rejected in order to convict Bascombe, it is difficult to complain that the verdict is unsafe.
In my view, the jury were given clear directions regarding the permissible and impermissible use of the out of court statements by both accused. The jury were given clear directions regarding the permissible and impermissible use of evidence against each accused and given clear directions regarding the need to assess the case against each accused individually. The jury were given clear and accurate directions concerning the burden and the differing standards of proof required when considering Bascombe’s evidence insofar as it was relevant to his own defence and Bascombe’s evidence insofar as it was relevant to the prosecution case against Spilios. The directions were appropriate and appropriately tailored to the facts of the case. There was no resulting unfairness in the two accused being tried jointly.
The prosecution alleged that the accused acted together, in pursuit of a common unlawful purpose, to commit this crime. Both accused sought, by necessary implication, to cast blame for the killing onto the other. Much of the evidence in the case was admissible against both accused. In those circumstances, there were sound reasons of public policy why one jury should determine the guilt or innocence of both accused. The Judge referred to a well settled line of authority on the topic. His Honour concluded:[10]
In the end, I come to the conclusion that this is a classic case in which two accused are blaming each other for the subject crime and which should usually be heard as a joint trial. I do not consider that any of the matters advanced by Mr Heffernan, or the possible courses that the trial may take, considered individually or cumulatively, lead to a real risk that Spilios will be unfairly prejudiced by a joint trial, provided that appropriate directions are given to the jury.
[10] R v Bascombe and Spilios [2015] SASC 129, [51].
In my view, it was appropriate that both accused be jointly tried. I would refuse permission to appeal on this ground.
An Unfair Question
During the evidence of Giuseppe Vallelonga, the following interchange took place:
Q. During the course of the conversation was the phrase ‘knocked off’ used.
OBJECTION: MR BARKLAY OBJECTS
MR BARKLAY:      I object to leading, he is putting words in the witness’s mouth.
HIS HONOUR:      It is partially leading but the question has been put now and I will permit the witness to answer.
QUESTION ALLOWED
HIS HONOUR
Q. Could you answer that question.
A. I really can’t recall. I recall most of the conversation, there are some words I probably don’t. As far as I recall is ‘do him in’, so to me ‘do him in’ could have meant anything, but I assumed that was to get rid of him, but I didn’t think he was serious about that.
Q. I understand.
On the appeal, counsel for Spilios contended that the Judge erred in failing to find the question leading and said that the evidence should not have been admitted. Alternatively, it was contended that the question alone was so prejudicial that this Court should find that there has been a miscarriage of justice and order a new trial. On appeal, the Director submitted that the evidence was properly admitted but that, in any event, no unfairness arose from the line of questioning.
In addressing the complaint, it is necessary to consider Mr Vallelonga’s evidence and the context in which the impugned phrase came to be used. It may be recalled that Mr Vallelonga gave evidence to the effect that he had been set up in relation to a prior drug conviction. In November 2013, Spilios approached him, stating that it was the deceased who had set him up and he sought funding to “do him in”.
On the hypothesis that the question was a leading question, it is significant that the witness did not accede to the proposition contained within the question. The witness adhered to his position that Spilios had said something along the lines of “do him in”. The witness maintained his position that he assumed Spilios meant “get rid of him”. The impugned question caused no unfairness to Spilios. The fact that the witness could not recall exactly what was said was no reason to exclude the evidence. The jury were entitled to conclude that the witness was doing his best to recall details of a conversation that had taken place almost two years earlier.
As earlier noted, the topic was revisited in cross-examination by counsel for Bascombe. Mr Vallelonga was asked whether Spilios had said “[d]o you want to do something about it and put $5,000 towards knocking him on?”. Mr Vallelonga agreed that was what Spilios had said.
The evidence of Mr Vallelonga, if accepted by the jury, was probative of a fact in issue. There was no basis to exclude the evidence. In all the circumstances there was no unfairness arising from the line of questioning. I would refuse permission to appeal on this ground.
The Evidence of Kim Chambers
On the appeal, it was complained that the evidence of Kim Chambers was wrongly admitted into evidence. The following particulars were advanced:
The evidence of the co-accused’s partner KIM CHAMBERS should not have been admitted into evidence.
·   Ms Chambers is the domestic partner of the co-accused Bascombe;
·   The co-accused Spilios trusted Chambers who discussed issues with Chambers sympathetically knowing Bascombe had been arrested for murder;
·   The police used Chambers as an agent to interview co-accused Spilios;
·   The procedure adopted by the police was counter to proper police procedure and the co-accused’s right to silence and an abuse of process;
·   The evidence of the tape recorded conversation between Chambers (with a police officer in attendance) and Spilios was redacted and not provided in full to the court or jury;
·   Bascombe had discussed with Chambers in recorded telephone conversations how to incriminate Spilios;
·   The trial judge should have warned the jury of issues inherent in relying upon the evidence of a spouse of a co-accused giving evidence against the non-spousal co-accused.
It was the position of the Director that no objection was taken to the admissibility of the evidence now sought to be challenged and that the complaints being advanced on the appeal were not advanced at trial. It was pointed out that the relevant evidence said to be supportive of the prosecution case came from the answers given by Spilios in the recording, rather than from the evidence of Ms Chambers. The recording spoke for itself.
To understand the complaint in respect of the recording and to resolve the question arising, it is necessary to consider the context of Ms Chambers’ evidence. Bascombe and Ms Chambers were in a relationship at the time of the offence. Bascombe was arrested for the murder of the deceased on 5 December 2013. He was remanded in custody. Ms Chambers subsequently spoke to Bascombe on the telephone, and visited him in prison on a number of occasions. All of their telephone calls were recorded, as were a number of conversations between them that took place at the prison. During the course of their various conversations, Bascombe made admissions regarding his own involvement in the crime. He also firmly blamed Spilios, telling Ms Chambers that Spilios was responsible for inflicting the majority of the injuries to the deceased. He told Ms Chambers that Spilios inflicted the injuries by striking the deceased to the head with a breadboard.
There were a multitude of recorded telephone calls, the overwhelming majority of which involved discussions on matters totally unrelated to the murder of the deceased. None of those calls were led in evidence. Only those parts of conversations, including those at the prison, that were directly relevant to the case against Bascombe were led. What was and was not led was the subject of discussion between counsel for the Director and Bascombe. The Judge was not asked to rule on the matter. Counsel for Spilios sought to have some further parts of the conversations placed before the jury. That subsequently occurred.
The jury were given clear and unambiguous directions that the comments made by Bascombe to Ms Chambers could not, and must not, be used as evidence against Spilios.
On 23 April 2014, police arranged for Ms Chambers to meet with Spilios. On that occasion, Ms Chambers and Spilios discussed, at length, the circumstances surrounding the killing of the deceased. At the instigation of police, the conversation was recorded by Ms Chambers. That fact was unknown to Spilios. The following day, on 24 April 2014, Ms Chambers had a further conversation with Spilios which was also recorded at the instigation of police.
At trial, counsel for Spilios objected to certain parts of the two conversations being led. The Judge ruled that all of the passages objected to were excluded in the exercise of the Christie[11] discretion.
[11] R v Christie [1914] AC 545.
It is to be noted that, at trial, no objection was taken to the admissibility per se of the recorded conversations. While objection was taken to the admissibility of certain parts of the conversation that were considered irrelevant, or more prejudicial than probative, it was not suggested that the conversations should be excluded in their entirety. It was not contended that the conversations had been unlawfully recorded, or had been recorded in circumstances that enlivened a discretion to exclude them as a whole. Counsel at trial was aware that necessary approvals had been obtained to record the conversations pursuant to the provisions of the Criminal Law (Undercover Operations) Act 1995 (SA). Consequently, in my view, this complaint is without substance and should be rejected. I would refuse permission to appeal on this ground.
Conclusion
I would dismiss the appeal.
KELLY J: I would dismiss the appeal. I agree with the reasons of Gray J.
NICHOLSON J. I agree with Gray J.