R v Suckling

[1999] NSWCCA 36

CITATION:	REGINA v SUCKLING [1999] NSWCCA 36
FILE NUMBER(S):	CCA 60495/96
HEARING DATE(S):	17/06/98; 25/06/98; 06/11/98; 13/11/98
JUDGMENT DATE:	12 March 1999
PARTIES :	Daryl Francis Suckling (appellant) Director of Public Prosecutions (Crown)
JUDGMENT OF:	McInerney J at 1; Ireland J at 1; Adams J at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70013/95
LOWER COURT JUDICIAL OFFICER:	Supreme Court

COUNSEL:	Mr G Rowling (Crown) Mr S Norrish QC (Appellant)
SOLICITORS:	Voros & Associates (appellant) S E O'Connor (Crown)
CATCHWORDS:
ACTS CITED:	Evidence Act 1995 Crimes Act 1900 Interpretation Act 1987
CASES CITED:	R v Singh Bal (1997) 92 A Crim R 397 R v Carusi (1997) 92 A Crim R 52 R v Swaffield (1997-98) 151 ALR Pavic v R (1997-98) 151 ALR 98 Cleland (1982) 151 CLR 1 AT 18 BD (1994) A Crim R 131 Harriman v The Queen (1988-89) 167 CLR 590 Makin v Attorney General (NSW) (1984) AC 57 Van der Meer (1988) 82 ALR 10 Pfennig v The Queen (1994-95) 182 CLR 461 Peacock v The King (1911) 13 CLR 610 Shepherd v The Queen (1990) 170 CLR 573 Gipp v The Queen (1998) 72 ALJR 1012 Gordon & Gordon (1991) 57 A Crim R 413 Blade (unreported CCA 1 May 1991)
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60495/96
McINERNEY J

IRELAND J
ADAMS J

Friday 15 March 1999

REGINA v DARYL FRANCIS SUCKLING

JUDGMENT

1 THE COURT: Daryl Francis Suckling was convicted by a jury on 18 July 1996 of the murder of Jodie Marie Larcombe on or about 27 December 1987 at a place unknown in the State of New South Wales. He was sentenced to penal servitude for life pursuant to s 19 of the Crimes Act 1900. The appellant appeals from his conviction and seeks leave to appeal from his sentence.
2 In 1986 and 1987 the deceased, Jodie Marie Larcombe, then aged 21 years was a prostitute living and working in the St Kilda area of Melbourne. She was a regular user of illegal drugs, including heroin. She was last seen by family in mid-November 1987 and by her friends just before Christmas of that year. She had been released from Pentridge Gaol, Victoria, on 22 December 1987. Nothing has been seen or heard of her since except insofar as the evidence in this case tended to prove that the appellant had made her acquaintance and killed and buried her. Searches of banking, government and hospital records throughout Australia and New Zealand from the date of her disappearance until the date of the trial do not disclose any record of her. It was the Crown case that the appellant had abducted and murdered her.
3 The appellant admitted that he had an association with Ms Larcombe in late 1987 to which he referred in his unsworn statement to the jury. The following brief account is taken in part from that statement. The appellant said that in early October 1987 he took up the position of caretaker in the homestead at Wyrama Station, a property of about 6,000 acres in the south west corner of New South Wales. Wyrama was about 65 kilometres north of Pooncarie. His nearest neighbours were Mr and Mrs Miller, who lived in a homestead north of Wyrama about one kilometre distant. The appellant was given the use of a four-wheel drive Landcruiser.
4 Shortly before the appellant went to Wyrama, he was staying with his niece, Shirley Sutton, at her house in Doveton, Victoria, close to Melbourne. The appellant said that whilst living there he would go to St Kilda, where he had a friend, two or three times a week. According to the appellant, it was at this time that his association with Ms Larcombe commenced, although it was not, he claimed, until after he had gone to Wyrama that sexual intercourse occurred with her on his trips back down to Melbourne. In early December 1987, the appellant said that he and Ms Larcombe had intercourse in his Landcruiser at Port Melbourne. It was at this time that he took photographs of her for which he paid $40. She had told him that she needed money. These photographs were found by police in March 1988 in the main bedroom of Wyrama Station. At 1.16am on 26 December 1987, the appellant withdrew $40 from an automatic teller machine at St Kilda. He said that about this time he was again in Melbourne staying at the home of Ms Sutton. He again met Ms Larcombe and, according to the appellant she had oral sex with him. He said that he told her that she was hurting him so she took her false teeth out and put them in the glovebox of the appellant’s car. She wanted some money for drugs and he lent her $80 on the security of some jewellery. This jewellery was located in the main bedroom of the homestead at Wyrama in March 1988. According to the appellant, when he drove Ms Larcombe back to St Kilda they saw three of her friends, who told her that they were going to buy drugs. She said that she would go with them and asked the appellant to wait, saying she would be back in half an hour. The appellant agreed. Ms Larcombe got out of the vehicle, forgetting about her dental plate still in the glovebox. That plate was found amongst rubbish in the appellant’s bedroom at Wyrama Homestead in March 1988. Mr Darren Larcombe, Ms Larcombe’s brother, who had last seen her in late 1987, said that his sister wore a dental plate and that the only occasion on which he had seen her not wearing it was when it was being repaired. He said, in effect, that her speech was significantly handicapped without the plate. Dorothy Larcombe, Ms Larcombe’s mother, said that her daughter’s dental plate was fitted in 1985 after five teeth were extracted. She said that her daughter never removed it except on one occasion of which she was aware when it had broken and she had glued it together and was waiting for it to dry. During this time she found it difficult to speak and kept her hand over her mouth. These accounts were confirmed by evidence from a boyfriend of Ms Larcombe who had been with her for about a year from 1986 and then had seen her occasionally until Christmas of 1987. He said that she only removed the dental plate to clean it, never in public, and she told him she was embarrassed by it. (The Crown case, obviously, was that having regard to Ms Larcombe’s embarrassment when she was not wearing the plate, and the difficulty that she had in speaking clearly without it, it was unbelievable that she would have forgotten to reinsert it as claimed by the appellant.) The appellant said that he waited at St Kilda for Ms Larcombe but when she did not return after about 45 minutes, he left. As he was doing so he saw one of the persons who had walked off with Ms Larcombe earlier and he asked her where she was. He claimed that he was told that she was still attempting to buy drugs. The appellant said that he then drove off. According to him he did not see Ms Larcombe after that time.
5 The appellant said that he returned to Ms Sutton’s house late on the evening of Christmas Day and slept outside in his car. The next morning he drove to the house of his sister, Joan Sutton, and then returned to his niece’s house leaving there again late on 26 December. He said that he returned to his sister’s house and, because it was late, slept in the car, his sister waking him the next morning, 27 December. Shirley Sutton said that when she saw the appellant on Christmas Day 1987, he came into the house with a green bag, very similar to that which had been discovered by police in the homestead in March 1988. She had noticed that packets of Ativan and Valium were missing. When the appellant was not present, she looked inside the bag and saw those tablets. However, she did not remove them. Packets of these pharmaceuticals were found in the appellant’s bedroom in March 1988. Evidence from a pharmacologist established that Atavin and Valium are primarily used as sedatives or in cases of anxiety. Two bottles of Noctec were also found in the appellant’s bedroom in March 1988. The pharmacologist stated that the combined use of these drugs with alcohol would increase the effect of each drug and that certain dosages could induce a semi-conscious state with a person being able to comply with instructions. This was material because of allegedly inculpatory statements later made by the appellant to one “Bob Collins” as to which several of the grounds of appeal relate.
6 It is convenient to deal at this point with other items found in the bedroom of the appellant on the occasion of the police search to which we have already adverted. A purple dress and make-up and other accessories were located, identified as belonging to Ms Larcombe, together with a note, written by the appellant which read “Jodie, 27/12”. As to the last item the appellant said that he did this to remind himself when he had found the dental plate in the glovebox, which was on his way back to Wyrama on 27 December. He stated that on his return home he rang a massage parlour in Melbourne where Ms Larcombe had worked, and left a message for her. He stated that he had attempted unsuccessfully on a number of occasions to contact Ms Larcombe to return the plate to her. He then placed the dental plate with rubbish at the homestead. He denied the dress was Ms Larcombe’s.
7 It is unnecessary for present purposes to analyse the appellant’s assertions about this property. In our view they invited, and the jury was entitled to treat them, with disbelief. If the jury concluded that these items did belong to Ms Larcombe, their presence was completely inconsistent with the account given by the appellant of his last meeting with her. This evidence especially as to the dress and the dental plate provided significant support for accepting the essential truthfulness of the inculpatory statements allegedly made by the appellant to a number of persons.
8 The appellant’s sister gave evidence that after his initial arrest in April 1989, the appellant had asked her to identify the dress and say that it was hers and that a can of deodorant (identified at the trial as used by Ms Larcombe) belonged to her daughter. Ms Sutton added that about two or three weeks after Christmas the appellant visited her and told her that he had been out with a girl named Jodie with whom he had spent the night and that in the morning he woke to find her dead. He told her that he cleaned all the fingerprints from the flat where they were and removed her body, driving it away in his vehicle. According to Ms Sutton the appellant told her that he had cut off an arm and the head from the body, burying them all separately between Melbourne and Mildura. The dismemberment of Ms Larcombe’s body was a theme of the statements made by the appellant to Bob Collins and others. A Ms Susan Watt, who had met the appellant through his then girlfriend, a Ms Wilson, in 1990, gave evidence about meeting the appellant at the latter’s home about January 1991. The appellant said to her at that time “I have been charged with murder. They won’t get me because they will never find the body.” On another occasion at Ms Wilson’s house the appellant showed Ms Watt and her husband a number of chains saying, “I used the chains to tie up Jodie when we were having sex”, adding, “I like S and M”. Ms Watt asked him who Jodie was and the appellant replied, “She’s the one I’ve been accused of murdering. She is a prostitute”. On another occasion, whilst at the Watt’s home, the appellant had the following conversation with Ms Watt -
Ms Watt: Did you kill Jodie?
Appellant: Why do you want to know?
Ms Watt: Because I do.
Appellant: All they have on me was Jodie’s teeth. They were in the truck. She was a slut and a prostitute and they always get what they deserve.
9 Mr Watt said that on one occasion whilst at Ms Wilson’s home, the appellant had said to him and his wife, “I was framed for a murder charge. I was supposed to have murdered a young prostitute”. On a later occasion, also at Ms Wilson’s home, he saw the appellant with a chain. He said, “This is the chain I tied her up with”. These conversations were denied by the appellant.
10 This evidence taken as a whole strongly pointed to, if it did not establish, the appellant’s involvement in the death of Jodie Larcombe.
11 As has been mentioned, the Crown sought also to rely on conversations between the appellant and Bob Collins, which had been recorded on 14 May 1994 by arrangement with police. Collins was a friend and cell mate of the appellant who had spoken with him about the murder of Ms Larcombe whilst they were sharing a cell in Goulburn Gaol. The appellant initially told Collins that he had picked up a prostitute in Sydney who had given him oral sex. He told him that she said she wanted more money for heroin so he lent her $40 and took her jewellery as security. He said that she had left her false teeth behind as she went off to buy heroin, and they were later found by police. Collins said that the appellant referred to the prostitute as a “missing person” using gestures to indicate that this was intended ironically and told him that he had been with her a number of times. The appellant also said that on the night she was said to have disappeared, he was visiting his sister and so had an alibi. The appellant was transferred to the hospital at Long Bay for a number of weeks and when he returned he told Collins that he “did it”, referring to the murder and said it was not likely that the body would ever be found.
12 Collins was released on 28 May 1993 and four months later contacted police to tell them what he knew about the appellant. He met a Detective Lennon, who was in charge of the investigation, and agreed to assist police. He had, in the meantime, been keeping contact by letter with the appellant, who was in Goulburn Gaol.
13 Listening devices were installed in Collins’s home and in a vehicle supplied by him. When the appellant was released from gaol, Collins met him in the vehicle and he came to Collins’s home where he shared the house with Collins and others. Whilst there, the appellant met Amelia Pasic, who was a girlfriend of Collins. She and Collins were both on a local methadone programme. In due course the appellant, who had expressed a liking for Ms Pasic, suggested a plan to Collins involving abducting and drugging her, taking her to a hotel in the country, taking turns in “doing whatever we wished with her, that would include taking photos and having sex with her”. He said after that, “we would have to kill her and dig a hole and bury the bones”. Collins pretended to the appellant that he would be willing to participate in such a plan, which continued to be discussed over the following weeks. On 14 May 1994 a listening device was attached to Collins’s body who then drove with the appellant to Patonga where they discussed the plan involving Ms Pasic. The appellant made certain inculpatory statements concerning the murder, mutilation and burial of Jodie Larcombe, containing a number of gruesome details. These conversations were recorded by listening devices on Collins himself and in the vehicle.
14 The Crown submitted that the appellant had made admissions to Collins, capable of being accepted by the jury as true, in substance, that he had murdered Jodie Larcombe, mutilated and disposed of her body and describing how he had done this. Those admissions, however, were made as part of a discussion involving also the proposed abduction, murder and disposal of the body of Ms Pasic.
15 The first ground of appeal concerns the admissibility of much of the conversation as concerns Ms Pasic. It is in the following form -
Ground 1: The trial Judge erred in admitting into evidence conversations between the appellant and Bob Collins relating to or concerned with any plan to either assault, abduct, sexually assault or kill Amelia Pasic.

16 The trial Judge admitted edited versions of the transcripts of tape recordings as Exhibits AAA, AAB, AAC and AAD. These were conversations between the appellant and the informant, Bob Collins, on 14 May 1994. The Crown Prosecutor initially sought to have the conversations admitted as similar fact evidence under Pt 3.6 of the Evidence Act 1995 but also submitted that evidence of the conversations was admissible as containing admissions by the appellant.
17 It was not disputed that the conversations contained statements by the appellant capable of being regarded by the jury as admissions by him concerning what he had done in relation to the deceased, Jodie Larcombe, provided that what the appellant said could be linked to Jodie Larcombe. A global objection was maintained as to the admission of that material. In a Report to this Court the trial Judge stated (at 2) -
I held that evidence of the conversations was not admissible as ‘similar fact’ evidence but that evidence of parts at least of the conversations was admissible as containing admissions of various kinds by the accused about what he did in relation to Jodie Larcombe. What the accused said could be linked to Jodie Larcombe, because she is referred to by name in parts of the conversations and can clearly be identified as the person being referred to in other parts of the conversations.
I considered that the probative value of the evidence of admissions in the conversations was very great. It would be difficult for the accused to dispute that he said what he was recorded as saying. A jury could clearly be satisfied not only that he said what he was recorded as saying but that what he said was true. There were numerous admissions. The admissions ranged from outright admissions of the crime charged to admissions of some part of what the Crown alleged had happened.”
18 Outright admissions of the crime charged included, “So now you know I knocked her” (Exhibit AAA, page 22) and “I am guilty … and still got out of it” (Exhibit AAA, page 23). There were numerous references in Exhibits AAA and AAB to the body being dug up by wild animals and to trying to dig up the body. The appellant referred to taking the deceased through the suburbs. In Exhibit AAC (page 7) the appellant said -
But I’ve got away with fucken murder, they’ll never get away with murder (referring to Sladden and others) … I’m laughing at McCann’s bullshit and the coppers because they know I’ve done it and can’t prove it. … Her parents know I’ve done it and they can’t prove it.
19 What we have set out above is only a very small part of the conversations. Quite clearly, if accepted by the jury, those conversations were admissions relating to the death of Jodie Larcombe.
20 His Honour went on to say in his Report (at 2) -
I accepted that if any evidence of what was said by the accused to Bob Collins on 14 May 1994 was admitted as containing admissions, then it was inevitable that evidence of the circumstances or context in which it was said would have to be admitted, including that it had been said in the course of a discussion between the accused and Bob Collins, who had recently been in prison together, of a proposal to abduct a young woman named Amelia.
21 An example of the inextricable link between some of the conversation concerning Amelia and the admissions concerning Jodie Larcombe is the following -
Appellant: ...DNA on either one, either one can...the ground...get my drift?
Collins: How do you mean?
Appellant: well, if you have bones in the head, bones in the feet, bones in the hand...DNA on bones and..
Collins: trace it back to a person or whatever.
Appellant: Yeah, yeah.
Collins: get rid of the bottom as well.
Appellant: If they can find a body and it will be exactly the same as the head...[and later on]
Appellant: Yeah, right, so what I was thinking, right, fucken we’ll do both at once. Like there’s no use doing one fucken part and not the other. Do you know what I mean, get the drift? Because of the DNA can be fucken...
Collins: Yeah right.
Appellant: Yeah, if we get rid of the old lot and put the new lot there, if ever the new lot gets discovered and they do a DNA there, it’s not going to match with the fucken...
Collins: Yeah, yeah.
Appellant: do you follow?
(From p 1742) -
Appellant: Yeah. I’m not worried about mine. What I’m saying is this. Mine will come after the other, right..
Collins: Yeah I just thought yeah, kill 2 birds with one stone is what I thought
Appellant: Yeah well, mine w’will come after the other,
Collins: Yeah right. But get her out of the fucken way anyhow, I don’t I don’t want to know where or any of that you know what I mean,
Appellant: You’re gonna have to fucken know, because she’ll go in the same hole
Collins: Two in the one hole,
Appellant: You might as well fucken
Collins: Yeah
Appellant: keep the same space,
Collins: Yeah, yeah um on the way of taking the that means well...
Appellant: See, I might pick up the same skeleton out of mine put her there without the fucken at
Collins: head
Appellant: without the head,
Collins: Yeah
Appellant: Right
Collins: Yeah
Appellant: say, and say for argument’s sake they do fucken, won’t but say for argument’s sake they fucken, in trouble, fucken, in, in like years to come, they do a DNA on it, it’s a different DNA to the parent’s
Collins: Yeah
Appellant: follow, so it’s not, not the one they they’re looking for is it
Collins: Yeah, but with Amelia right
Appellant: yeah,
Collins: Fucken um yeah there not they’re going to have to work out, firstly who it is or what the fuck happened
Appellant: They will immediately assume that it’s fucken Jodie, Jodie Larcombe,
Collins: Amelia?
Appellant: Yeah,
Collins: Amelia
Appellant: Right
Collins: How are we going to put the other one or something like that
Appellant: that’s right,
Collins: Alright see mate like you’re the teacher, I’m the pupil
Appellant: Can you follow what I mean now?
22 Mr Norrish of Queen’s Counsel on behalf of the appellant referred to such cases as R v Carusi (1997) 92 A Crim R 52 and R v Singh-Bal (1997) 92 A Crim R 397. In Singh-Bal, Hunt CJ at CL (at 403) made it clear (if it needed to be made clear) that the question of whether an admission of guilt was made is entirely one for the jury once the alleged admission has been admitted on the basis that it is capable of being so regarded. Hunt CJ at CL pointed out (at 403) -
This Court has held that the power of the trial judge to exclude evidence in accordance with the Christie direction does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness (or witnesses) upon which the Crown case depends. The trial judge can exclude the evidence only where, taken at its highest, its probative value is outweighed by its prejudicial effect ….
23 His Honour said further that if the jury accepted that the admissions were made there was no relevant prejudice to the appellant.
24 In Carusi, where the identification of photographs was in issue, Hunt CJ at CL made similar comments to the comments he made in Singh-Bal (at 66).
25 Mr Norrish QC submitted that the evidence in respect to the proposal to kidnap, drug and sexually assault Amelia Pasic could only be admissible as propensity evidence and that it could not be admissible as evidence of the appellant’s guilt of the particular offence. It is submitted that the prejudicial effect of the evidence concerning the conversations about what was proposed to be done with Amelia, compounded by the calling of Amelia later in the trial, was so great that it ought not to have been allowed unless the evidence was admissible by way of tendency evidence. As we have pointed out, his Honour did not receive it for that purpose and made it quite clear in his summing-up to the jury that it was not admissible from that point of view.
26 His Honour set out at page 3 of his Report why he had admitted the evidence. He went on to say (at 3) -
A jury would be well able to determine whether what the accused said was, or might be, merely ‘gaol talk’ or ‘fantasising nonsense’ because the jury would be able to play and replay the tape recordings, thereby listening to the accused actually saying the words and listening to the conversational context in which the accused said the words. I considered that there was no other ground on which I should uphold counsel for the accused’s objection to the admission into evidence of any part of the conversations (for example, that the evidence was in some way improperly obtained) and no other ground was argued by counsel. I accordingly rejected counsel for the accused’s objection to evidence of any part of the conversations being admitted.
27 In our view the jury could not have been in a position properly to evaluate the truthfulness or otherwise of the appellant’s statements about Jodie Larcombe, whether explicit or implicit, without having such of the context as was admitted by his Honour, even though that context involved proposals concerning Ms Pasic. This was especially so because of the nature of the conversation which switched back and forth between the two plans in a dynamic narrative flow.
28 This ground must fail.
Ground 1A: The learned trial Judge erred in admitting into evidence alleged admissions made by the appellant to Bob Collins and Satirios Christofis.

29 In order to understand this ground it is necessary to briefly set out some further history of the matter. On 3 April 1989 the appellant was charged with the murder of Jodie Larcombe and remained in custody except whilst an escapee between 19 April and 23 April and after granted bail on 16 May 1990. He had been committed for trial but in October 1990 the Director of Public Prosecutions found no bill. It was after this that the appellant, whilst living in Goulburn, made the admissions to Mr and Mrs Watt, to which we have adverted. In 1992, he was back in prison on unrelated matters and hence came to associate with the fellow inmate, Bob Collins, whose evidence as to conversation with the appellant has been already discussed. On 2 June 1994 the appellant was rearrested on the charge of murdering Ms Larcombe and, whilst in custody at Long Bay Gaol, allegedly made admissions to one Satirios Christofis, a former prison officer with convictions for drug dealing and dishonesty, who was also a prisoner. It appeared that on 24 August 1994, Mr Christofis informed the police of these alleged admissions by the appellant in an interview with Detective Sergeant Lennon at Long Bay. That interview was instigated by Christofis, who was then on remand and shortly after dealt with for an offence of demanding money ($2,000) by menaces, to which charge he pleaded guilty and in respect of which sentence was deferred. In addition to other admissions more directly connected to the crime,(including that he was depressed by the case and might plead guilty to get it over and done with), Christofis alleged that the appellant complained about Bob Collins agreeing to be fitted with a listening device and, accordingly, allowing his conversations with Collins about Jodie Larcombe to be recorded and that he had concocted an explanation for what he had told Collins. Objection was taken to Christofis’ evidence essentially, upon the ground, that although strictly admissible, it should be excluded under s 137 of the Evidence Act 1995, because its probative value was outweighed by the danger of unfair prejudice to the appellant.
30 It appears that on his arrest, the appellant declined to be interviewed. When he had been arrested in 1989 he had also declined to be interviewed.
31 This ground of appeal arises, in part, from R v Swaffield; Pavic v R (1997-98) 151 ALR 98. In the former case, Swaffield had been charged with a number of offences and had declined to be formally interviewed by police in respect of them. On the date set for hearing of a committal proceedings, the police offered no evidence against him and he was discharged. During a subsequent undercover operation, of which he was one of the targets, he spoke to an undercover police officer about the facts forming the foundation for one of the charges in respect of which the police had offered no evidence and made admissions. As a result of these admissions, fresh charges were laid and the prosecution relied on them for the purpose of securing his conviction. Objection had been taken to the evidence on the ground that the Judges’ Rules had been disregarded, the undercover police officer, naturally, not having first cautioned the suspect. In Pavic’s case, he was interviewed by police in connection with the suspected murder of one Andrew Astbury. Following his being cautioned in conventional terms, he maintained his right not to answer any questions and he was released from custody although police informed him that they nevertheless believed that he had murdered Astbury. Shortly after releasing Pavic, police obtained a statement from a Lewis Clancy, who was a close friend of his. Police believed that they now had sufficient evidence to charge Pavic with murder but suggested to Clancy that he, on behalf of the police, should speak with Pavic and for that purpose carry a recording device. Clancy agreed to the proposal and spoke to Pavic, who made admissions of his involvement in Astbury’s murder. These conversations were adduced, over objection, by the prosecution at Pavic’s trial.
32 Although the Court was divided as to the disposition of the appeal in Pavic, (Kirby J dissented) it seems that the whole Court accepted that the appropriate approach was “to think of inadmissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards” (see 151 ALR at 121 per Toohey, Gaudron and Gummow JJ, Brennan CJ at 122, Kirby J at 137).
33 Toohey, Gaudron and Gummow JJ were of the view that the privilege against self-incrimination should be considered by looking “to the accused’s freedom to chose to speak to the police and the extent to which that freedom has been impugned” (151 ALR 98 at 127). Their Honours go on to say -
Where the freedom has been impugned the Court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the Court may consider that, having regard to the mode by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the Court but it does not prevent the development of rules to meet particular situations.
34 Their Honours accepted that nothing which the undercover police officer did in relation to his conversation with Swaffield could have been said to be illegal. However, there was the broader question of whether what he did was in violation of Swaffield’s right to chose whether or not to speak to the police, to which must be added the question whether there had been a breach of the Judges’ Rules, Rule 2 of which requires a police officer who had made up his mind to charge a person with any crime to first caution that person before asking him any questions. In the circumstances, it was found that a police officer had made up his mind to charge Swaffield, he having been charged well before the conversation with the undercover police officer. No caution was administered by the latter officer before the conversation. However, that fact alone did not dictate exclusion of the conversation. Their Honours concluded that the appropriate test should be applied “by reference to Swaffield’s right to chose whether or not to speak to the police”, and noted, with apparent approval, the approach of the Canadian Supreme Court, which “regards the use of a subterfuge to obtain a statement as likely to be in violation of a choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude” (151 ALR at 128).
35 It was therefore concluded that, in the circumstances of Swaffield’s case, “the admissions were elicited by an undercover police officer, in clear breach of Swaffield’s right to chose whether or not to speak” and, accordingly, that the conversation was inadmissible (151 ALR 128).
36 Kirby J found that whilst the fact that the conversations were with an undercover police officer was not itself decisive, he “did not speak to the accused as an acquaintance might have done, neutrally or indifferently...[but instead] he actively sought to elicit critical information - such that the exchange is properly to be characterised as akin to police interrogation” and, therefore, there was an unfair derogation from Swaffield’s free choice to speak or be silent. His Honour considered that the resulting confessional statements should have been excluded in the exercise of the Court’s residual discretion. Brennan CJ stated the arguments both for and against admission at some length but concluded that much could be said for either view and, because the decision in the Court of Appeal had not been demonstrated to proceed on an erroneous principle or to be otherwise manifestly wrong, he would dismiss the appeal.
37 In Pavic’s case, the majority of the Court (Kirby J dissenting) considered that there was no sufficient reason to interfere with the trial Judge’s refusal to exclude the evidence. The Chief Justice said (151 ALR at 144) -
In Pavic’s case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy’s consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the security of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman’s code of fair play (Bunning v Cross (1979) 141 CLR 54 at 75; 19 ALR 651 per Stephen and Aickin JJ). Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity “to invent plausible falsehoods” (R v Lee 1950 83 CLR 133 at 152).
The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions.
38 Toohey, Gaudron and Gummow JJ noted (151 ALR at 128-9) that, as in the case of Swaffield, there was no illegality; it was not suggested in Pavic’s case that the Judges’ Rules were applicable, although no caution was administered by Clancy, this was hardly surprising; Clancy “must be regarded as an agent of the State” but, on the other hand, the “meeting was not directly set up by the police, Clancy however speaking with Pavic at the request of the police who equipped him with a recording device”. Applying the test posited in R vBroyles [1991] 3 SCR 595, their Honours considered that the next question was “whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation”, that is to say, “was there an interrogation by Clancy?” Pavic’s argument, that he was mislead by Clancy into making the admissions by Clancy’s expressed (but false) fear that he might be wrongly charged with the offence was noted but it was accepted that the trial Judge approached the exercise of his discretion upon the basis that the admission could not “be said to be the result of, or inextricably linked to” it. Accordingly, their Honours considered that, in all the circumstances, there was not sufficient reason to interfere with the trial Judge’s admission of the conversation into evidence.
39 Here, the initial contact with the police was instigated by Collins, not the police. In relation to Christofis, the police were informed of statements made by the appellant to Christofis when they were in gaol together. Christofis was not acting on the part of the police when the conversations occurred. Applying the general test enunciated in Swaffield as we have set it out above, should the Court consider that “having regard to the mode by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards?” As we see it, the significant factors to be borne in mind in this case are the following: firstly, there was a considerable body of evidence comprising both objective material and statements by the appellant to a number of persons, including Collins, which pointed strongly to his responsibility for or, at least, involvement in, the death of Jodie Larcombe; secondly, he had already made confessional statements to Collins, in circumstances where they must be attended with a high degree of scepticism, but which, at least, indicated the real likelihood that he might voluntarily disclose further relevant facts; thirdly, the conversations with Collins, considered as a whole, do not smack of interrogation; although there was a deception, it was not such as to place any pressure on the appellant to confess his involvement, if any, with the death of Jodie Larcombe; fourthly, the means adopted were not motivated by a desire on the part of the police to avoid the Judges’ Rules which, at all events, do not have the same status in New South Wales as they are apparently accorded in Queensland (Swaffield 151 ALR at 158); and fifthly, the police were investigating an extremely serious crime.
40 We are of the view that to admit the recorded conversations upon the ground that they derogated from the appellant’s right to silence or privilege from self-incrimination would, in all the circumstances of this case, be very far from seriously offending prevailing community standards. In saying this, however, we wish to point out that the reference by the High Court, as by this Court, to community standards in this respect is not to any notion of populist public opinion. Rather, this refers to community standards concerning the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement.
41 We do not see that admitting the evidence is unfair to the appellant. There was no unlawful or improper conduct on the part of law enforcement officers (see Cleland (1982) 151 CLR 1 at 18). Nor do we see that any real question of unreliability arises, to the extent that it is a significant factor tending to exclusion, although the conclusion that what was said on the tape recorded conversations is true, is very much a matter of judgment: (Cleland (1982) 151 CLR 1 per Dawson J at 36). We do not consider that here there were principles “governing the interrogation of suspects” which mitigated against the propriety of the approach taken in this case so that it is necessary to consider whether the statements “would not have been made or not have been made in the form in which they were made” (see Van der Meer (1988) 82 ALR 10, per Mason CJ at 20).
42 It was also submitted on behalf of the appellant that the prejudicial effect of the evidence might have exceeded its probative value and it should have been excluded on this basis.
43 In BD (1994) A Crim R 131, which concerned the use of a complaint in a sexual case, Hunt CJ at CL said (at 139):
The phrase ‘unfairly prejudicial’ or the cognate phrase ‘unfair prejudice’ is also used in ss 135 and 137, and the meaning to be given to each of those phrases must logically be the same in each section - whether or not a weighing exercise is contemplated. The prejudice to which each of the sections refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.
44 In Harriman v The Queen (1988-89) 167 CLR 590 Dawson J (at 598) referred with approval to the opinion of Lord Herschell LC in Makin v Attorney-General (NSW) [1894] AC 57 (at 65) where two propositions were set out. Dawson J said -
On the other hand, if the categories which Lord Herschell mentions are merely illustrative of the way in which propensity evidence can display such a high degree of relevance that its probative value outweighs its prejudicial effect, then the passage is consistent with the view that propensity evidence is not irrelevant as such, but is excluded for reasons of policy unless it has sufficient probative force. …
The forbidden or inadmissible chain of reasoning to which Lord Hailsham refers (in R v Boardman [1975] AC 421) is that which involves attributing relevance to propensity evidence as such, so as to draw an inference from the accused’s disposition as to the likelihood of his having committed the crime in question. The requirement that there should be some other relevant probative purpose is a requirement that to be admissible the evidence should fit within some category of relevance independent of propensity.
45 If, therefore, it can be shown that the evidence intended to be relied upon could have been accepted by the jury as admissions, quite clearly it was relevant regardless of whether it was suggestive of propensity evidence. The trial Judge directed the jury (SU-57) -
Finally, you are not entitled to use the evidence of conversations as the basis of what might be called a propensity argument. It might be that you think that in the conversations the accused and Bob Collins discuss a scheme to abduct a young woman, Amelia Pasic, and that the scheme seems similar in some respects to what the Crown says the accused did in relation to Jodie Larcombe. However, you are not entitled to reason as follows: the accused is the sort of person who abducts, sexually molests and kills young women and that makes it more likely that he did what the Crown alleges that he did in relation to Jodie Larcombe.
46 His Honour went on to set out a number of reasons why the evidence could not be used in that fashion (SU-58).
47 In Pfennig v The Queen (1994-95) 182 CLR 461, Mason CJ, Deane and Dawson JJ said (at 480) -
...it was accepted that propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged. But it was accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition. It was also accepted that, in order to be admissible, propensity evidence must possess ‘a strong degree of probative force’ or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity.
48 In our view, the evidence was relevant quite apart from the unpleasant propensity (to say the least) that it demonstrated of the appellant. It is unquestionable that the evidence of the conversations had substantial probative value. His Honour correctly applied the law in exercising his discretion to admit or reject the evidence. It was open to the jury to accept that the appellant was admitting to the killing of Jodie Larcombe. It is particularly relevant having regard to the appellant’s denial that he had anything whatsoever to do with her death.
49 Of course, a distinction must be made between the problems arising from the admissibility of the initial conversations between Collins and the appellant, which were not recorded, and those which were. It is clear that the latter were not, and could not seriously be suggested to have been, fabricated. In respect of the unrecorded admissions, however, the risk of fabrication was real. Even so, when one considers the evidence as a whole, the material in the recorded conversations very strongly supports the accuracy and reliability of the alleged unrecorded conversations. This adds further justification for admitting these conversations. His Honour correctly weighed their probative worth, having regard to the risk of fabrication, with the risk of unfair prejudice and, in our view, rightly admitted them into evidence.
50 Having regard to these considerations, we do not think that the Collins’ material should have been excluded pursuant to s 90 or s 138 of the Evidence Act 1995.
51 The Christofis’ material is somewhat different in character to the Collins’ material. The circumstances in which the conversations allegedly occurred, together with Christofis’ character, created a question mark about their reliability. Since Christofis did not have any conversations with the appellant at the instance or, indeed, with the knowledge of the police the issue of the appellant’s right to silence does not arise. Christofis was, however, plainly an unreliable witness. We consider, however, that it was appropriate to place this material before the jury, together with the rest of the evidence, for their evaluation.
52 It had been submitted by counsel for the appellant to his Honour the learned trial Judge that the knowledge of the appellant’s case apparently displayed by Christofis, could have been obtained by watching a television programme about the case and by his having access to the appellant’s papers which were in the cell that they shared. Christofis conceded that some of the details concerning mutilation of the body came from the appellant’s reading of a document referring to his conversation with Collins. However, taking this conversation together with the others in the case, the jury were entitled, in our view, to consider that the appellant had, in effect, adopted what he had told Collins as true and was attempting to invent an explanation. We consider that his Honour’s approach of admitting the evidence but giving appropriate warnings to the jury about how they should approach it in determining its weight was the appropriate course. His Honour, who read on the voir dire the opening pages of the transcript of the interview with Christofis taken by the police, said “that the witness displays the sort of familiarity with the accused’s case which could more readily explained from hearing the accused talk at length about the case than from watching some television programme or reading some documents”. His Honour concluded that the probative value of the evidence outweighed the danger of any unfair prejudice to the accused. We consider that this opinion was correct.
53 No complaint is made about his Honour’s directions to the jury as to the way in which they should approach this evidence either in respect of the Collins’ or the Christofis’ material.
54 Accordingly, this ground must fail.
Ground 2: The trial Judge failed to adequately direct the jury in respect of the issue of circumstantial evidence as it was relevant to either the issue of whether there was jurisdiction available for the giving of a general verdict and as it was relevant to the issue of guilt on the charge of murder.

55 The basis of this ground of appeal is that as the case against the appellant was in the main circumstantial, the jury should have been directed that they had to be satisfied that the only rational inference they could draw from the circumstances was not only that the appellant killed the deceased but that he did so with the necessary intent.
56 In order to determine whether his Honour correctly directed the jury on the element of the appellant causing the deceased’s death with intent to kill, it is necessary to examine his Honour’s directions as a whole. His Honour first came to this matter at SU-17 when he said -
An inference is a conclusion of fact rationally drawn from a combination of other proven facts. If (a), (b) and (c) are established as facts, then it may be that one can rationally conclude from that combination of proven facts that (d) is also a fact, even though there may not be any direct evidence that (d) is a fact.
Inferences, of course, may be valid or invalid, justified or unjustified.
In a criminal trial, you must be satisfied of the guilt of the accused beyond reasonable doubt before you can find him guilty. Amongst other things, that means that you should be careful about drawing any inferences adverse to the accused. You should examine any possible inference to determine whether it is a justifiable inference.
In a criminal trial where proof of the offence charged is required beyond reasonable doubt, you should not draw any inference from the direct evidence to the existence of an element of the crime charged unless it is the only rational inference in the circumstances.
What inferences you may rationally draw is important in the present case. In the present case there is no direct evidence that Jodie Larcombe is dead. No body has been found. No part of any body has been found.
There is no evidence from any person who knew Jodie Larcombe who says that he or she has viewed a dead body and identified it as being the body of Jodie Larcombe.
There is no evidence from any pathologist who conducted a post mortem examination of such a body.
In the present case there is no direct evidence that the accused killed Jodie Larcombe, in the sense that there is no evidence from any person who says that he or she saw the accused do an act which caused Jodie Larcombe to die. I will return to the subject of drawing inferences when I deal with the elements of the crime of murder and the elements of the crime of manslaughter and how the Crown seeks to prove those elements.
57 In those remarks, the trial Judge gave a direction that adequately accorded with that in Peacock v The King (1911) 13 CLR 610 at 630. His Honour went on (SU-21) -
…The crime of murder contains a number of elements or ingredients. I am using the word ‘element’ and the word ‘ingredient’ as meaning the same thing. The onus is on the Crown to prove beyond reasonable doubt every element of the offence. If the Crown fails to prove beyond reasonable doubt any element of the offence, then you must find the accused not guilty of murder. The elements of the crime of murder can be variously stated, depending on how the elements are combined or separated.
In the present case I state the elements as follows:
(1) The death of the victim named in the indictment, Jodie Larcombe.
(2) An act of the accused causing the death of the victim.
(3) That the act of the accused causing the death of the victim was done with an intent to kill Jodie Larcombe.
I will repeat those …
In the present case the body of Jodie Larcombe has not been found, nor has any part of her body been found. It is, of course, not essential to a conviction for murder that the body of the alleged victim should have been found or that there be such direct evidence of the death of the alleged victim as the kinds of evidence I have just referred to.
The law would be truly absurd if a person who had in fact committed murder could ensure that he escaped conviction by the simple expedient of successfully concealing or destroying the body of the victim.
Nevertheless, in every murder trial the Crown has the onus of proving, and proving beyond reasonable doubt, that the alleged victim is dead.
In the present case, it seems to me that the evidence which the Crown relies on to prove the death of Jodie Larcombe, that Jodie Larcombe is dead, can be conveniently divided into two classes.
One class of evidence is evidence which, the Crown says, shows that the accused killed Jodie Larcombe and which necessarily would also show that Jodie Larcombe is dead.
58 His Honour directed the jury as follows at SU-26 -
The second element of the crime of murder which the Crown must prove beyond reasonable doubt is that the accused did an act causing the death of Jodie Larcombe. I told you earlier in the summing-up that in this trial there is no direct evidence that the accused did an act causing the death of Jodie Larcombe, that is, that the accused killed Jodie Larcombe, in the sense that there is no evidence from any person who says that he or she was present and saw the accused do an act which caused Jodie Larcombe to die.
I tell you that an act causing death can in law either be a single act or a combination of connected acts. It is not unusual at a criminal trial for the Crown to be unable to produce any witness who gives direct evidence that he or she saw the accused commit the crime charged. Many crimes are committed in situations where only the offender and the victim are present. If the crime committed is the crime of murder, then obviously the victim will be unavailable as a witness for the Crown and the Crown has to try and prove the commission of the crime otherwise than by direct evidence by an eye witness.
In the present case not only is the Crown unable to produce any witness who can give direct evidence that he or she saw the accused kill Jodie Larcombe but the Crown is unable to specify what it alleges was the act, or what was the combination of acts, which the accused did which caused the death of Jodie Larcombe. This difficulty is partly due to the fact no body has been found which could be subjected to a post mortem examination.
What the Crown says is that by doing some act, the nature of which the Crown is unable to specify, the accused caused the death of Jodie Larcombe. The Crown case in broad outline is that on the night of 25/26 December 1987, in about the middle of the night, the accused met Jodie Larcombe in the streets of Melbourne; that he administered sedative depressant drugs to her so that she became incapable, or less capable, of resisting him; that he abducted her in the four wheel drive Toyota vehicle on a long drive from Melbourne to New South Wales; that he sexually abused her and that on or about 27 December he killed her to prevent her disclosing what had happened and that he subsequently buried her body.
I will deal with the chronology advanced by the Crown in more detail when I review some of the submissions the Crown Prosecutor made to you. The Crown seeks to prove the second element of the crime of murder, that the accused did an act causing the death of Jodie Larcombe, by a combination of a number of pieces of circumstantial evidence and a number of pieces of evidence of things said by the accused to such persons as Bob Collins, Sotirios Christofis, Shirley Sutton, Brett Sutton, Susan Watt and Wayne Watt, which the Crown says amount to admissions by the accused of the commission of the crime or at least of some part of the criminal enterprise in which the Crown says the accused engaged.
A little later in this summing-up I will consider in some detail the circumstantial evidence sought to be relied on by the Crown and the evidence of alleged admissions sought to be relied on by the Crown. If, after considering the evidence which the Crown says shows that Jodie Larcombe is dead, both classes of evidence that I have referred to, you are not satisfied beyond reasonable doubt of the first element of the crime of murder, that is, that Jodie Larcombe is dead, you must find the accused not guilty. If you are not satisfied beyond reasonable doubt that the Crown has proved the second element of the crime of murder, that is, that the accused did an act causing the death of Jodie Larcombe, as part of the Crown scenario I have outlined to you, then you must find the accused not guilty of murder.
If you are satisfied beyond reasonable doubt of the first and second elements of the crime of murder, you should proceed to the third element of the crime of murder. The third and last element of the crime of murder is that the act causing death was done by the accused with the intention of killing Jodie Larcombe.
…
In the present case the Crown says that if you accept the Crown case as outlined by him, and are satisfied beyond reasonable doubt that Jodie Larcombe is dead and that the accused did an act causing the death of Jodie Larcombe, you will readily be satisfied beyond reasonable doubt that he did that act with the intention of killing her, with the intention of silencing her.
If you are satisfied beyond reasonable doubt of all three elements of the crime of murder, then you should find the accused guilty of murder. If you are not satisfied beyond reasonable doubt of all three elements of the crime of murder, then you must find the accused not guilty of murder.
59 His Honour then directed the jury in relation to manslaughter (SU-30-32).
60 In essence it is submitted by Mr Norrish QC that the question of the act of the appellant which caused the death of the deceased with an intent to kill was not properly brought home to the jury. He submitted that in respect to this aspect of the matter, namely, the intent to kill, there was no direct evidence and, thus, his Honour should have given a circumstantial direction to the effect that in order to convict the appellant the Crown had to satisfy the jury that the only rational inference from the strands of evidence was that the appellant in some manner killed the deceased with an intent to do so. It is submitted that the jury were not adequately directed as to this matter.
61 As we understand the argument at the trial, no general circumstantial directions were sought by the appellant’s very experienced counsel, Dr Woods QC. What was sought was a Peacock direction that the burial or re-burial of the body was an intermediate link in the chain rather than a strand in the cable and thus required those facts to be proved beyond reasonable doubt. This is said to be in reliance of the remarks in Shepherd v The Queen (1990) 170 CLR 573.
62 Certain written submissions were handed up by Dr Woods QC to the trial Judge and were apparently marked for identification. They contained submissions that the supposed mentions of burial and re-burial on the tapes are matters which are essential to the Crown version of events. However, despite inquiries, they were not provided to this Court.
63 We should add that the Crown did not agree with Dr Woods’ proposition. His Honour noted (SU-127) -
I am asked to give a direction that if the jury wishes to use the alleged admissions regarding burial and re-burial as part of their reasoning in the case, they cannot do so unless they are satisfied beyond reasonable doubt that the accused did in fact bury and re-bury Jodie Larcombe’s body as the Crown alleges and that if the jury are not so satisfied.
64 Dawson J said (Shepherd 170 CLR at 585) -
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. I should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.
65 It is submitted that proof of the elements in this case required that the direction referred to in Shepherd be given. It is submitted there was no statement from the appellant which enabled the jury to conclude that the deceased died from an act of the accused done with an intent to kill; indeed, a number of statements were inconsistent with that. Furthermore, it is said, the burying of the body after the event was equally consistent with manslaughter because if the deceased had gone with the appellant under threat and there had been a sexual assault it was important for the appellant to cover up those facts.
66 In the circumstances of this case, Mr Norrish QC submitted, there was a need for a direction specifically directed towards the question of the Crown establishing an intent to kill and that the only manner in which this could have been done was by giving a Peacock direction as to this issue.
67 The Crown, on the other hand, submitted that this was by no means a purely circumstantial evidence case: there was a volume of evidence of admissions made by the appellant as to his guilt. The Crown referred, in particular, to the evidence of Collins (at T480-482) that the appellant is alleged to have conceded that he “did it”, namely, that he killed the deceased.
68 If one accepts Collins, a deal of what he had been told was corroborated by other evidence: the evidence in relation to the false teeth; the fact that the deceased was a prostitute and the appellant picked her up and had sex with her on a few occasions; the use of the word “missing”; and the question of how it was that the deceased’s false teeth came to be in the appellant’s possession, in particular what the appellant said in his statement to the jury (T955 and 965) which is consistent with what Collins alleged the appellant told him.
69 The Crown submitted that no Peacock direction was sought in the manner in which it is now sought and that leave is required to argue this ground. The Crown referred to the fact that the general Peacock direction had been given and submitted that what the trial Judge said in his summing-up it was adequate, relying on what was said in Shepherd, namely, that such a direction is not always required and is no more than saying “you have to be satisfied beyond reasonable doubt”.
70 Evaluating the whole of the trial Judge’s summing up, in our view, it has not been established that his Honour did not properly bring home to the jury the fact that it was an essential element of the Crown case not only that the appellant killed the deceased but did so with the necessary intent. In this respect, his Honour made it clear that the onus was on the Crown to prove every element of the offence beyond reasonable doubt. We consider that the jury would have been well aware of the necessity to have been satisfied beyond reasonable doubt that the Crown had established that the appellant both killed and intended to kill Ms Larcombe. We note that Dr Woods QC did not seek any redirection on this aspect. His Honour’s summing up brought to the jury’s attention those parts of the appellant’s conversations that amounted to denials of any intentional killing of Ms Larcombe.
71 This ground must fail.
Ground 3: The trial Judge failed to adequately direct the jury as to the issue of “territoriality” of the count of murder or the jurisdiction it had to return a verdict in respect of the charge of murder.

Ground 4: The Crown failed to establish that the Court had jurisdiction to try the accused on the charge of murder.

72 This aspect of the case required the application of s 3A of the Crimes Act 1900, in particular sub-sections (3) and (4). Mr Norrish QC now concedes that the onus is on the appellant to rebut the presumption of territoriality contained in s 3A(3) on the balance of probabilities.
73 In our view, the trial Judge correctly directed the jury on how they were to determine this issue, and no valid criticism is made of his summing-up in this regard.
74 This ground must fail.
Ground 5: The trial Judge erred in admitting into evidence Exhibit V and/or failed to adequately or properly warn the jury as to the reliability of purported identification of personal items alleged to belong to the deceased.

75 This ground is not pressed.
Ground 6: Evidence has become available in the nature of “new” or “fresh” evidence which establishes that the verdict of guilty constitutes a miscarriage of justice or that the trial was conducted in circumstances that constitute a miscarriage of justice.

76 It is submitted by Mr Norrish QC in support of this ground that from the material now available from the Royal Commission into the New South Wales Police Service, which was not available at the time of the appellant’s trial, there has emerged a different picture to that presented at the trial in relation to Detective Sergeant Lennon’s dealings with the police informers Collins, Sladden and Christofis, their relationship with one another, the potential for their evidence to be tainted by suggestion or information from other sources and as to the conduct of the police in the investigation of the matter. It is submitted that information was deliberately withheld from the defence. It is submitted that this information about Collins, Sladden and Christofis was not properly aired at the trial, in particular the relationship between Detective Sergeant Lennon and these three informers, especially Collins.
77 Before we embark upon an analysis of the submissions in support of this ground, there are some principles that should be enunciated. We have already pointed out that the appellant had been questioned on a previous occasion in respect to this murder. When being interviewed by the police, he exercised his right to silence and the charge did not proceed further for lack of evidence.
78 In September 1993, Collins informed the Woy Woy Police that he had information about a murder (as it turns out the murder of Jodie Larcombe). This contact was initiated by Collins. He was then handed over to Detective Sergeant Lennon and Collins told him that the appellant had admitted the crime. The police then set out to obtain evidence by “wiring” Collins. It was proper, and indeed mandatory, to obtain reliable support, if reasonably possible, for the allegations made by Collins.
79 In general, the evidence of prison informers is considered to be unreliable unless it is supported by evidence independent of the informer. Detective Sergeant Lennon set about obtaining such evidence, and, because he did so, he is criticised.
80 Mr Norrish QC referred in argument to the decision of Ridgeway (at 36-37). The facts in that case are far removed from the facts in the instant case. In Ridgeway, an undercover operation was organised between the Australian Federal Police and the Royal Malaysian Police Force with the specific aim of apprehending the appellant who had initiated and arranged an importation through a person who had previously become a registered informer for the Royal Malaysian Police Force. The heroin was flown to Australia in the physical possession of a member of the Royal Malaysian Police Force for the purpose of entrapping the appellant. By contrast, in the present case the crime had in fact been committed. Mason CJ, Deane and Dawson JJ said (at 37) -
The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community.
81 That applies with greater force to circumstances where there is a strong suspicion that a person has committed the serious crime of murder but there is insufficient evidence to charge the person with that offence.
82 Of course, had the appellant been innocent, it may well have been that his conversation with Collins would have demonstrated that and, incidentally, that Collins had invented his allegations of the prison cell confession. The undoubted advantage, from the point of view of the investigation, was that significant material might have been obtained on the one hand implicating but on the other possibly exculpating the prime suspect. And, of course, that material in the circumstances was not reasonably capable of being fabricated.
83 In considering the evidence of the two informers, Collins and Christofis, who were called to give evidence at the trial, the trial Judge gave the jury emphatic directions as to the approach they should take having regard especially to the background of those witnesses (SU15) -
I warn you that the evidence of a prison informer, such as Bob Collins, may be unreliable and you must exercise considerable caution in determining whether to accept the evidence of Bob Collins and in determining what weight you should give to such evidence as you accept. …
The reasons for the potential unreliability of evidence given by prison informers as a class, include: that the prison informer is likely to be of bad character; the prison informer will have a motive for concocting false evidence, for telling lies about another person because he knows that if he assists in the prosecution of any prisoner by coming forward with evidence of admissions of criminality allegedly made by the other prisoner, he, the prison informer, may himself receive some benefit. For example, he may receive a more lenient sentence in future, because the assistance he has rendered by informing will be drawn to the attention of a future sentencing judge as a matter meriting some leniency in the sentence to be passed.
Prisons are a peculiar, closed environment with peculiar pressures and values, and prisoners in gaol, or after getting out of gaol, are much less likely to have respect for such notions as truth and honesty and respect for the rights of others, than people living in the community who have never been in gaol.
In the present case Bob Collins has a substantial criminal history dating back to 1976, including convictions for armed robbery and offences involving dishonesty. He has been addicted to drugs; he was aware of the benefits which might accrue to him if he gave evidence against the accused. Sergeant Lennon has in fact sent letters describing the assistance Bob Collins has furnished in this matter to courts which have sentenced Bob Collins subsequent to June 1994. Bob Collins received some money from the police, although according to the police evidence this amount totalled only about $2,000 and was to reimburse Bob Collins for expenses in relation to the car in which Bob Collins was driving the accused around. Bob Collins thought there might be a monetary reward for providing information about the disappearance of Jodie Larcombe.
…
In his statement the accused took you at some length through the tape recorded conversations of 14 May 1994 but did not dispute that he had said what he is recorded as saying. … In regard to the other alleged conversations between the accused and Bob Collins where there is no tape recording, there is a real issue whether the accused said what he is alleged to have said and in determining whether the accused said what he is alleged to have said by Bob Collins, you must have regard to the warning I have given you.
84 His Honour directed the jury (SU61) -
In regard to Christofis’ evidence, you will have to determine the three questions:
1. Are you satisfied that the accused said what Christofis alleges he said?
2. If you are satisfied that the accused said what Christofis alleges that he said, are you satisfied that what the accused said is true or was seriously intended?
3. If you are satisfied that the accused said what Christofis alleges that the accused said, and you are satisfied that what the accused said is true, or was seriously intended, does it in your view amount to an admission?
You might think in regard to Christofis’ evidence that the most important question is the first question. … Christofis is a classic instance of a prison informer, a witness who gives evidence of what he says was said by an accused person while he and the accused person were in prison together.
85 His Honour then went on to give the jury a similar warning in relation to the evidence of Christofis that he gave in respect to the evidence of Collins. He went on (SU62) -
There is no tape recording of any conversation between the accused and Christofis, and there is no independent corroboration that any of the conversations alleged by Christofis occurred.
…Christofis has a criminal history. He has been a heroin addict. He has been convicted of both using and supplying heroin. At the time he gave evidence he was waiting to be sentenced for demanding money with menaces from his brother, that is blackmail. He had threatened to tell his brother’s wife and children that his brother had molested him. He expected to be sentenced on 11 July and he expected Sgt Lennon to provide a letter to the sentencing judge describing the assistance he has given in this case.
As a former prison officer, he was particularly vulnerable and in need of any preferential treatment he could get. He might be able to get preferential treatment by informing on a fellow prisoner.
86 The jury were carefully directed by his Honour as to the matters they were required to attend to in determining whether to accept this evidence. No doubt the appellant’s counsel would have emphasised these matters in his address to the jury.
87 A number of matters relied upon by Mr Norrish QC as fresh evidence were also before the jury. For example, Collins was cross-examined quite extensively about certain of the matters referred to in the affidavit of Mr Theo Voros, the solicitor for the appellant, upon which the appellant relies.
88 It is submitted (para 6.10(vi) of the appellant’s outline of submissions) -
That (Collins) had throughout the entire operation been very keen to get to know whether there was money in it for him and whether Detective Lennon would support an application for reward.
89 Collins agreed that when he went to the police in the first instance he was partly motivated by interest in a financial reward (T591-592). He had been told by another prisoner that there was a $100,000 reward in relation to the appellant. Collins said he did not believe that was ludicrous but he thought he might get less than that.
90 Para 6.10(vii) -
That Detective Lennon was aware that Bob Collins had threatened on a number of occasions to ‘reneg’ on his undertaking to give evidence. One factor in this was concern with his monetary problems.
91 It was suggested to Collins that he had borrowed money from the appellant but he said he could not recall that (T537). His source of income was from social security out of which he was paying rent. He said he was getting approximately $100 per week from Detective Sergeant Lennon to pay for a car. It is quite obvious that Collins was short of money.
92 Para 6.10(ix) -
That Detective Lennon had covered up the commission of an offence of armed robbery upon the appellant and Bob Collins by an informer (Sladden) that occurred on 9 April 1994 and that (Sladden) who committed that offence was relied upon as an informant in the prosecution of the appellant.
93 It should be pointed out that whilst Sladden gave evidence at the committal proceedings, he did not give evidence at the appellant’s trial. There is no doubt that the appellant was aware of the robbery; indeed, he was one of the persons who was held up by Sladden. Evidence was given about this incident (T534-541). The appellant referred to it in his statement (T1014-1015).
94 Para. 6.10(x) -
That Detective Lennon had declined to properly investigate the commission of an offence of breaking, entering and stealing which resulted in a stolen motor vehicle being deposited at the home of Bob Collins on or about 14 April 1994.
95 Collins was cross-examined about this incident (T542). He alleged that shortly after the appellant commenced to live with him the police arrived and asked questions about a stolen vehicle. They were both taken to the police station but neither was charged. Collins gave evidence that the stolen vehicle was driven down the side and into the back yard of the house. He said (T548)-
When I went to the police station, when they got hold of Daryl and the other fellow, they were throwing the onus back on me because the car was in my backyard. When I got to the police station I did a record of interview just saying that somebody brought the car round. They wanted to use my backyard to store it and they were paying $20 per week to leave it there. When I brought the recording back to Daryl I didn’t think there was anything wrong then.
I rang Mr Lennon and he arranged for the police to come and take the car back so they knew I only got the tape made up to take the - stop - not to make it look suspicious to Daryl and the other fellow as to why I wasn’t charged.
96 The circumstances of the finding of the stolen vehicle were known to the appellant since he told the jury of them in his statement (T1016-1017). He said (T1017) -
It was quite a while, one hour to one and a half hours and he arrives, plays his tapes, and it only goes for a short period of time and no charges on him. … that’s a bit suspicious. If he is not charged with stealing the vehicle, he should have been charged at least with goods in custody on the property because he has not given an explanation on his tape that he played to us - he refused to answer because his solicitor wasn’t present - no charge. Something funny there.
97 The main material relied upon relates to an alleged break, enter and steal at the premises occupied by Collins and his de facto wife on the Central Coast which is alleged to have occurred in July/August 1994. Prior to that, in June 1994 a cover note was taken out in respect to the contents of the house in which they were living. It is alleged that Collins’ de facto wife took out the cover note for the purpose of burglary insurance. A claim was thereafter made in respect to the said break, enter and steal, and it is Detective Sergeant Lennon’s involvement in this matter which is said to constitute the fresh evidence relied upon.
98 It is submitted that Detective Sergeant Lennon purported to support what he accepted was a false claim because Collins had threatened not to give evidence in the upcoming murder trial of the appellant if the insurance company did not allow the claim. This matter took some considerable time at the Royal Commission. There are three volumes of material. It is not appropriate to deal with all the material concerning this investigation. It is submitted that this investigation shows a relationship that Detective Sergeant Lennon had with the informants which puts a new light on their relationship and that that it might give further weight to the unreliability of the evidence of Collins and Christofis.

99 It should be pointed out that initially, for a considerable period in 1994 when the claim was made, Detective Sergeant Lennon informed the insurance company that he did not believe the claim was genuine. He agreed he had suggested that it “may be a bit sus”. He made references to the insurance company to Collins’ de facto wife believing that she was owed a living. It is to be noted also that the cover note over the contents was only issued shortly before the break in.
100 Detective Sergeant Lennon is severely criticised for in January 1995 having informed the insurance company that he believed the claim was genuine, that the crime was done as retribution and he then supported the claim. He agreed he had been suspicious but he later believed what they were telling him. He is also criticised for executing a search warrant of the insurance company’s file. It is said that he did this without consultation with a Ms Clarke who held the file, but there is material to suggest that it was she who suggested that a search warrant be issued. Detective Sergeant Lennon said he believed there might be sensitive material in the file which might assist in the further investigation of the murder of Jodie Larcombe. A considerable amount of evidence was directed towards whether this was a genuine search warrant and whether it was necessary. As far as we can gather, there is now no suggestion that it was not a genuine search warrant. In any event, we fail to see why Detective Sergeant Lennon should be criticised for attempting to view the file. Ms Clarke said the file was an unusual one in that there were witnesses who were on the witness protection programme and murder was being spoken about.
101 There does not seem to be any dispute (nor did Detective Sergeant Lennon deny it) that the fact they were potential witnesses influenced his decision to help them. One must bear in mind at all times that Collins was a very material witness in this murder trial, and it seems to us that Detective Sergeant Lennon should not be criticised because he attempted to assist him, providing that the assistance was honestly put forward.
102 There is no doubt that at some point of time Detective Sergeant Lennon changed his opinion. It has to be established that by doing so he acted dishonestly. As far as we are aware, there is no evidence which goes to that extent. Even if the suggestion might have been made, it was so far from the real issues in the trial, that it could have no significant bearing on the verdict.
103 Mr Hervey who investigated the claim on behalf of NRMA Insurance said he was told by Detective Sergeant Lennon that Collins was on protection, that he was an important witness in a murder trial, and that he believed if the claim was not met Collins may not give evidence.
104 Although the insurance company did not believe the claim was genuine, an ex gratia payment was made. This appears from annexure “E”, the statement of John Barton, the Claims Legal Manager of NRMA Insurance. The initial claim was in the order of $10,000 and an ex gratia payment of $3,000 was made. The ex gratia payment was made in full knowledge of the facts. In submitting that he believed it was a genuine claim, Detective Sergeant Lennon made it clear that he had no further material to put before the insurance company.
105 Other problems arose because when the claim was refused by the insurance company, Collins’ de facto wife referred the matter to the Insurance Council of Australia in order for it to dispute the decision not to pay the claim. Whilst Mr Hervey said he would not reverse the decision, he was then contacted by Detective Sergeant Lennon who asked why the claim had been refused. Mr Hervey was informed that Collins was on the witness protection programme which was in fact a truthful comment.
106 The background material supplied by Detective Sergeant Lennon is completely accurate. He referred to retribution. It is also clear that at this particular time, in June 1994, the assistance that Collins had given to the police was known to the appellant, and no doubt he was revengeful. The news of his arrest probably spread through the criminal milieu in Gosford and possibly wider and it must be considered there was a likelihood that they would retaliate.
107 Detective Sergeant Lennon referred to other matters including damage to a rear door being consistent with a forced entry. He went on to say he could not comment on the property list given to him by Collins’ de facto wife. He said he had no reason to doubt it but he had no further information to put before the insurance company.
108 In annexure “D”, Ms Clarke stated that when she was contacted by Detective Sergeant Lennon he said the claim might be genuine, the file may contain some sensitive material, and he did not want too many people reading it. That would be quite obvious. Ms Clarke said she did not have the file and promised to retrieve it. She later read the file and she was somewhat concerned about it because it referred by name to police officers, to code names, and to persons on the witness protection programme, and to the fact that Collins was a witness to murder. It made her concerned. She rang Detective Sergeant Lennon and told him it was unlikely that the decision could be overturned. He asked if it would help if he could intervene. He suggested that he come and look at the file. He arrived and viewed the file. He gave her a background to the murder inquiry and she was told about Collins’ part in the case. She was told that the appellant had been arrested and he knew that Collins had informed on him and that both Collins and his de facto wife were immediately whisked out of the house. He said he thought it was genuine and that it may have been retaliation. He said they were both single and had moved in together and that would be a reason why they would have two of certain items.
109 Ms Clarke referred to the fact that there was a lot of investigation about the search warrant. We see nothing adverse, as stated earlier, about Detective Sergeant Lennon’s conduct in that respect. In any event, why would he go to the trouble of obtaining a search warrant if he was invited to inspect the file, particularly as there is evidence that Ms Clarke said that Detective Sergeant Lennon could get a search warrant or a subpoena?
110 Attempts were also made to establish that the search warrant was not executed properly and complaints were made to the police about that matter.
111 It is submitted that the motivation of Collins was very material and whether in relation to the conversation on 14 May he was an agent provocateur or encourager and whether the story was that of Collins rather than that of the appellant. There was sufficient material in the taped evidence that was put before the jury to determine that issue. This additional material would not assist. If there was other material on the tapes that could have assisted in the determination of this issue then the defence could have insisted on it being put before the jury.
112 It is also submitted that Detective Sergeant Lennon deliberately made a false report to the NRMA so that Collins could be rewarded in a way that he could not otherwise have been at least until the trial had concluded. In our opinion the evidence does not justify such an allegation. Nor is any relevant impropriety demonstrated in connection with the execution of a search warrant on the NRMA files.
113 It is said that in addition to the NRMA matter another matter was kept from the appellant, which Mr Norrish QC submitted was of great significance in the trial, namely that on 17 September 1993 Collins was arrested and charged with break, enter and steal at a doctor’s surgery and the theft of drugs. On the same day he was spoken to by the police. It was initially submitted by Mr Norrish QC that when he was spoken to about this robbery on 17 September when he was charged he told the police that he had information about a murder. That is incorrect, as was later acknowledged by Mr Norrish QC. He had in fact contacted the police at Woy Woy Police Station on 13 September, four days before the above offences were committed. He was acquitted of the offences. So it cannot be said that he first made this allegation when he was arrested by the police for the purpose of obtaining police assistance. This is clear from annexure “U”, the statement of the investigating police officer, Constable Hungerford.
114 Mr Norrish QC, however, attempted to gain something out of the debris by submitting that Collins was released from gaol in July 1993 and did not come forward until September 1993. This cannot affect the question of fresh evidence as that fact was known to the defence and inferentially to the jury. Collins is criticised because when arrested he volunteered certain information about his knowledge of the murder. It is submitted that there is a link between his provision of the information and his arrest on a charge about which the defence had not been informed. The answer to that is that it was the first time any police officer had taken the trouble to speak to him about the information. We do not accept the submission that it was significant that he volunteered a greater amount of information when he was arrested in order to assist in obtaining amelioration of his sentence. It is submitted an inference can be drawn that Collins intended to become involved in criminal conduct and his telephoning the police was a type of insurance. There is no evidence of that and, at all events, having regard to the recorded conversations, we do not see that this material is cogent.
115 Then there is the question of Sladden robbing Collins and the appellant and the failure of Detective Sergeant Lennon to do anything about that matter. That was known to the jury at the time and indeed there was some cross-examination about it. The appellant himself was robbed, and it goes without saying that he knew about it.
116 Mr Norrish QC submitted in relation to the significance of the tapes that there was never any occasion prior to 14 May that any admissions were made by the appellant that he was involved in the death of Jodie Larcombe. He submitted that no tape recordings were produced for the period February to early March 1994 of any discussion about Jodie Larcombe. If any of that material assisted the defence it could have been insisted on and would have been admitted. In any event, that information was known to the jury.
117 Submissions concerning Detective Sergeant Lennon’s relationship with another informer who had been issued in an attempt to procure recorded conversations with the appellant were said to be material since they reflected on the use of Collins for the same reason. We regard this matter as too peripheral to be of any significance.
118 As Mr Rowling on behalf of the Crown submitted, what is really being sought in this case is an opportunity to further cross-examine Detective Sergeant Lennon on issues that largely go to his credit in order to attack Collins’ credit. As Mr Rowling pointed out, it is hard to understand how Collins’ credit could be attacked and diminished further than it was at the trial.
119 Mr Norrish QC submitted that the unavailability of this evidence has caused a miscarriage of justice, and of course he must go that far in order to have the conviction set aside. This court will conclude that the unavailability of such evidence at the time of the trial involved a miscarriage of justice, only if it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before the jury: Gallagher v The Queen (1985-86) 160 CLR 392. Gibbs CJ (at 396) approved the remarks of Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429 at 439 -
…The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.
120 It was the fact that Collins, not being under arrest at the time, volunteered information to the police concerning his knowledge of the murder of Jodie Larcombe. It is not his fault that the police failed to act on that information before he was arrested and charged with the crime of which he was acquitted. A considerable amount of the material relied upon as fresh evidence goes merely (and unconvincingly) to the credit of Detective Sergeant Lennon and there are collateral factual issues which would have to be determined if any such attack were to be made good. It seems to us that these collateral factual issues should not have been allowed to have been litigated at the trial (ss 103, 135(c)).
121 It was made quite clear to the jury at the trial that the credibility of Collins and Christofis was under heavy attack. As stated earlier, his Honour gave the jury careful directions on the dangers of accepting this evidence. It would have been clear to the jury that Collins and Christofis were persons with significant criminal records. Collins sought a reward for giving evidence and was given money and Detective Sergeant Lennon gave evidence on his behalf. The jury were well aware of these matters. Moreover, the jury were aware of the importance to the Crown case that they give evidence.
122 We fail to see how this material removes the certainty of, let alone raises any reasonable doubt, about the appellant’s guilt. Collins’ attempts to have the appellant speak about Jodie Larcombe and the police involvement in this aspect of the matter were clearly before the jury. We see no reason why such conduct should be condemned by this Court. This was a serious offence and the police were doing no more than their duty in attempting to have the appellant talk to Collins about the murder.
123 This ground must fail.
Ground 7: The verdict of the jury is unsafe and unsatisfactory and represents a miscarriage of justice.

124 It is submitted that on a proper examination of all the evidence the verdict of guilty of murder was unreasonable because it was not reasonably open to the jury to be satisfied that the alleged deceased died either as a result of an act of the appellant or more particularly that any such act of the appellant that may have caused the death of the deceased was done with the intention to kill.
125 It is submitted that there were irregularities in the conduct of the trial that require this Court to set aside the verdict of guilty of murder and either order a new trial or alternatively determine that “territoriality” had not been established: Gipp v The Queen (1998) 72 ALJR 1012.
126 It is submitted that the “new” or “fresh” evidence raises critical issues that go to the reliability of evidence relied upon by the Crown to establish that the appellant had caused the death of the deceased and if so had done so with the requisite intent as alleged by the Crown.
127 We have already referred to the inculpatory statements made by the appellant to Mr and Mrs Watt and Mrs Sutton, Collins and Christofis. It is correct that amongst those statements are remarks that, in effect, deny the appellant’s responsibility for Ms Larcombe’s death. However, taking the conversations as a whole, together with the other evidence in the case, we are in no doubt that their substance amounted to truthful admissions of both killing Ms Larcombe and intending to do so.
128 In addition, Mr Brett Sutton, Mrs Sutton’s son, spoke about a visit the appellant made to his home in January 1998. When he arrived he saw a shovel in the appellant’s utility which had what appeared to be wet blood on it. Mr Sutton asked the appellant if he had killed someone and he said, “Yes”. It was suggested to Mr Sutton that he had made this up. We cannot understand how the blood on the shovel could have related in any way to the deceased. But the appellant’s admission that he had killed someone could have done so.
129 Further inculpatory statements were made to Christofis and Collins, as has already been outlined. The appellant himself admitted being in Melbourne at the time of Ms Larcombe’s disappearance and in her company. Some of her property, including a dress and her dental plate, was found on his premises. His explanations concerning these items were completely unconvincing.
130 Very important evidence was given by Mr James Wembridge. We are somewhat mystified that this evidence and what it conveyed was not given greater prominence at the trial. Mr Wembridge was the local mail contractor whose run included Wyarama Station. He first met the appellant on 23 October 1987 when the appellant asked him if he could obtain a road map of the area. He was unable to obtain it immediately and it was requested again. Eventually it was delivered to the appellant on 27 October 1987.
131 He said he received a telephone call from the appellant on 8 December 1987 and the appellant told him he was going to Melbourne because his niece had been involved in a road accident and she was in Intensive Care. Mr Wembridge did not deliver mail to Wyarama until he heard that the appellant had returned. We understand that the appellant was the only occupant of the property.
132 Mr Wembridge particularly remembers 27 December 1987 as the christening of his niece took place on that day. He gave evidence that he received two telephone calls, the first at about 10am and the second at 2.30pm, and at about 5 or 6pm the appellant arrived at his premises at Wentworth. The appellant told Mr Wembridge that he had two flat tyres and his vehicle was on the Arumpo Road. The appellant asked Mr Wembridge if he would go with him and get the vehicle going again. Mr Wembridge accompanied the appellant to Arumpo Road at a point 15 kilometres north of its junction with the Silver City Highway. The road was unsealed. The appellant’s vehicle was on the correct side of the road facing south. Mr Wembridge drew a sketch of the position of the vehicle on the road and he drew a cross-section of the road showing the levels of the road.
133 One of the tyres of the vehicle was completely destroyed and Mr Wembridge formed the view that it had been driven on whilst it was flat. The doors of the vehicle were closed. He noticed what appeared to be paint drop sheets and some clothing and a travel bag which were piled high on the passenger’s seat four to six inches above the back of the seat. Mr Wembridge went to open the passenger door to find a jack but the appellant said something to him and as a result he did not open the door but used his own jack.
134 After fixing the vehicle, they drove back to Wentworth and had a meal. Mr Wembridge asked the appellant what he had been doing on Arumpo Road and he said he had been to Top Hut and that he got lost and asked for directions. He then decided to head south because he had forgotten to call in and wish the Wembridges a happy Christmas. Mr Wembridge said the rear off side tyre was completely destroyed. He was of the view that it had been driven on flat for 20-30 kilometres.
135 On 30 December 1997 Mr Wembridge did a mail run to Wyarama and he saw the appellant washing his vehicle. He noticed that the seats were wet and inside the vehicle had been completely hosed out and water was dripping from the roof. This was corroborated by this witness’ brother, Mr Alan Wembridge, who went on this mail run with his brother. So much water had been used that the vehicle had become bogged.
136 The significance of the appellant being on the Arumpo Road does not seem to have been highlighted in the trial. In our view, however, it was a most significant piece of evidence.
137 The appellant’s explanation as to how he came to be on Arumpo Road does not make sense. In his statement to the jury he said (T953) -
Now the main road that Eddy’s talking about going past the property is dirt road, twisted up in some parts, and it only gets graded twice a year. …
I thought I’d try the Arumpo Road and do the turn off on Exhibit 3 off the Arumpo Road where it’s highlighted in yellow. Because, to my mind, that’s a shorter cut than going through Wentworth.
138 The map (Exhibit A) shows that that is absolute nonsense. Taking the Arumpo Road would not have obviated the need to drive from Pooncarie to Wyarama because the Arumpo Road is south of Pooncarie whilst Wyarama is to the north. That would mean that he drove on the Arumpo Road, which he described as a “dirt track” and “pretty deserted” (T959), avoiding the bitumen road. It is by no means a short cut. It is significant to note that the appellant asked Mr Wembridge for a map of the area which was eventually given to him.
139 The appellant alleged in his statement to the jury that he left Melbourne on the morning of 27 December 1987. He said it was 560 kilometres from Melbourne to Mildura. He filled up with petrol at Kyneton, at Ouyen and at Buronga. He said that the fuel he purchased at Buronga together with two 20 litre drums on the back of his vehicle was sufficient to get him to Wyarama. He said (T959) -
I didn’t even get to the turn off of the Arumpo Road, the road going from Arumpo Road to Pooncarie, when I realised I hadn’t seen Jamie, the postie. …
Before I got to the turn-off from Arumpo Road to the Pooncarie Road I realised I hadn’t called in to see Jamie and his family for Christmas and the New Year, so I turned around. How close, to be honest, I don’t know, to the turn-off road I was but I turned around and I must have been driving for a while and I realised I had got a puncture.
… I went through Arumpo and right up to Top Hut, so I pulled over wherever it was, wherever it is marked, and I sat in the truck for a while until somebody went past, and I pulled them up and asked them could they take a message to Jamie, or phone a message to Jamie and let him know where I was and what was wrong.
They agreed, so I went to the truck and opened the glove box to get a note book out and I was hunting around in all the rubbish, I suppose, you keep in the glove box and I come across Jodie’s teeth she had left and had forgotten about, and I had forgotten about the day before. So I put those on the seat and was still looking for my note book. I got it and just wrote Jamie’s phone number and where I am, and that I needed a spare wheel.
…
What Top Hut is, to be honest, I don’t know if it is a town or a station. I have never been there. … If I was coming from Top Hut, why would I need directions when I could ask the people there directions?
…
They have been given the message and I am waiting at the truck - no response - so after about an hour, an hour and a half when the next truck, vehicle has come past - I think it was a utility - I asked them if they could give me a lift to the T-intersection at the Arumpo Road and the Silver City Highway which goes up to Wentworth.
So I left the truck on the side of the road and I got a lift to the Silver City Highway. Now I did ring the Wembridges from Buronga and tole (sic) them I was coming. …
I walked for a while and I got a lift to Wentworth to Jamie’s place. … I seen Jamie and I told him the trouble I was in with the spare wheel and everything, and I needed a complete wheel and tyre. …
When we got to the truck it was raining. …
I remember saying to Jamie, ‘Don’t worry about you giving me a hand, sit in the car’. I said, ‘It’s no good the two of us getting wet when only one of us should get wet’ and he agreed and he sat in the car.
140 Of course, Mr Wembridge said that when he went to open the passenger door the appellant stopped him. Mr Wembridge also referred to the fact that when he asked him why he was on the Arumpo Road he said he had been up to Top Hut. Why the appellant chose to drive on a rough dirt road instead of driving along a bitumen road is hard to fathom, unless he drove along that road at some point of time to dispose of the body. It is interesting to note that the police searched Wyarama Station but no-one thought to search the Top Hut area.
141 Furthermore, it seems to have been assumed that the appellant had the body in the vehicle when it was parked on the side of the road. It is likely, however, that he would have disposed of the body before he asked Mr Wembridge for assistance. The likelihood of the body being discovered in the front seat of the car would have been extremely high. The appellant went on to say in his statement that Mr Wembridge sat in the front seat of the car. The appellant’s explanation does not make sense and the jury were entitled to reject it.
142 The appellant attempted to explain away the presence of some of the items located at Wyarama such as a bangle and a necklace by saying that he had lent the deceased money and he had those items as security. We have referred to the evidence that the deceased was insistent about wearing her denture. The appellant’s explanation for his possession of the denture simply beggars belief. As we have said, the appellant was unable to explain the presence of other items belonging to the deceased which were located at Wyarama. The jury were entitled to rely, also, on the evidence of the appellant’s niece that he had attempted to get her to lie about the dress and the deoderant.
143 The explanation concerning the note and that, though he left Melbourne some time on the morning of 27 December 1987 he was able to get a telephone message through at about 2pm, to the club where she worked from time to time to tell her about the dental plate, in our view, is incredible, bearing in mind the distance he had to travel.
144 What was said to be alibi evidence was given by the appellant’s sister, Mrs Sutton, and her son David Sutton. Mrs Sutton’s evidence was to the effect that it was her 60th birthday on 26 December 1987 and a number of her family were present at her home which was situated in the north eastern suburbs of Melbourne. She alleged that on 26 December 1987 they were going to Templestowe to celebrate her birthday. The appellant arrived at her house at about 10am. He did not go with them to Templestowe but left at about midday.
145 Her evidence is somewhat confusing. She said she arrived home from the party late at night and she did not see the appellant. The next morning, however, her daughter, Diane, told her that she thought the appellant’s truck was outside. Mrs Sutton went outside and saw the appellant asleep in the front seat of his truck. This was between 7.30 and 8.30am. She said there was no other person in the truck. He went inside and had a cup of tea. He left between 10.30 and 11am.
146 If that evidence is correct, then he would not have been anywhere near Wyarama or Arumpo Road on the afternoon of 27 December 1989. Mr Wembridge was quite clear that he saw him on that day.
147 It appears that when Mrs Sutton was first spoken to she said she had seen the appellant on Boxing Day and that he had dropped in on Christmas Day. She said she must have made a mistake or got the date mixed up. She said she remembered giving him some ham and cake but he was not there for Christmas. She said, “I must have thought that it was Christmas Day” (T1179).
148 Mr David Sutton said he believed he saw the appellant’s vehicle outside his mother’s premises on the morning of 27 December. He did not see the appellant.
149 The jury were entitled to reject the evidence of Mrs Sutton and her son. They were related to the appellant. The evidence of Mr Wembridge was that he saw the appellant on 27 December. It was open to the jury to accept his evidence in preference to the evidence of these two witnesses.
150 Whilst it is suggested that some of the witnesses invented their evidence, it must be borne in mind that the jury were entitled to take into account the appellant’s making of an unsworn statement and failure to lead evidence contradicting the witnesses who gave evidence for the Crown, not to draw any inference against him, but in order to evaluate the strength of the evidence of those witnesses.
151 The absence of such evidence given by or on behalf of an appellant will frequently prove to be a serious obstacle to the success of the “unsafe and unsatisfactory” ground of appeal: Gordon & Gordon (1991) 57 A Crim R 413 per Hunt CJ at CL. See also Blade (unreported, Court of Criminal Appeal, 1 May 1991). As Hunt CJ at CL pointed out in Gordon (at 418) -
… the right of an accused to give evidence is well known to jurors. … Because of the prohibition contained in s 407, it is simply left to juries to draw whatever inference may arise in their minds from an accused’s failure to give evidence, without any guidance being allowed to be given as to how they should approach the situation. … Common sense, however, dictates that it could hardly escape the attention of a jury that a challenge by an accused to the evidence of a complainant has not been backed up or supported by sworn evidence which has been tested by cross-examination. The absence of such evidence given either by or on behalf of an appellant will frequently prove to be a serious obstacle to the success of the increasingly popular ‘unsafe and unsatisfactory’ ground of appeal.”
152 In our view, there was more than ample evidence to satisfy the jury beyond reasonable doubt that the deceased was dead. The jury were entitled to find in all the circumstances that by some means or other the deceased was killed by the appellant and to accept that the killing took place in New South Wales where she was buried, possibly in the Top Hut area, which was not searched by the police.
153 This ground must fail.
Ground 8: The learned trial Judge erred in sentencing the applicant pursuant to s.19A Crimes Act 1900; alternatively if it was appropriate to sentence the applicant pursuant to that section, the sentence imposed was manifestly excessive.

154 The appellant was sentenced by James J to penal servitude for life pursuant to s 19A of the Crimes Act 1900 which is in the following terms -
(1) A person who commits the crime of murder is liable to penal servitude for life.
(2) A person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person’s natural life.
(3) Nothing in this section affects the operation of section 442 (which authorises the passing of a lesser sentence than penal servitude for life).
(4) This section applies to murder committed before or after the commencement of this section.
(5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply.
155 Thus the sentence imposed is to be served for the term of the appellant’s natural life.
156 It is submitted by Mr Norrish QC that the appellant should have been sentenced under the existing s19A of the Crimes Act which was introduced in May 1982.
157 It was conceded by both counsel at the sentencing proceedings that the sentencing of the appellant was governed by s19A of the Crimes Act, even though the appellant had been charged with the murder of Jodie Larcombe on 3 April 1989 and the committal proceedings were instituted but abandoned before the commencement of s19A. The appellant was again charged with the murder in June 1994 and further committal proceedings were held in February 1995.
158 Despite that concession by both counsel, it is now submitted that the provisions of s 19A did not apply. Reliance is placed on s55(1) of the Interpretation Act 1987 which provides -
If an Act or statutory rule increases the penalty for an offence, the penalty as increased applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.
159 Section 5(2) of the Interpretation Act provides:
This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned”.
160 Quite clearly, the contrary intention appears in s 19A(4).
161 It is further submitted that the committal proceedings were commenced in 1989 before the commencement of s 19A. These proceedings were discontinued. The relevant committal proceedings commenced when the applicant was charged in June 1994 after the commencement of s19A. In our view, his Honour was correct when he sentenced the appellant pursuant to s 19A.
162 We do not understand Mr Norrish QC to submit that if s 19A applied it was not open to his Honour to determine that this crime came within the worst category of murder.
163 This ground must fail.
164 In the result, the appeal is dismissed.