R v Walker - [2000] NSWCCA 130

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v WALKER [2000] NSWCCA 130

FILE NUMBER(S):
60455/98

HEARING DATE(S): 23 March 2000

JUDGMENT DATE: 23/03/2000

PARTIES:
Regina
Michael Shand Walker

JUDGMENT OF: Spigelman CJ Ireland J Simpson J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 70081/95

LOWER COURT JUDICIAL OFFICER: Sully J

COUNSEL:
J V Agius SC (Appellant)
D C Frearson (Crown)

SOLICITORS:
Jeffreys & Associates (Appellant)
S E O'Connor (Crown)

CATCHWORDS:
EVIDENCE
criminal trial
confessions and admissions
discretion to exclude
reliability
whether there was a miscarriage of justice
Evidence Act 1995, s90, s138
Criminal Appeal Act 1912, s6
EVIDENCE
criminal trial
confessions and admissions
discretion to exclude
restrictions on appellate court review
CRIMINAL LAW
appeal against conviction
whether verdict was "unsafe and unsatisfactory"
"unreasonable"
Criminal Appeal Act 1912, s6(1)

LEGISLATION CITED:
Criminal Appeal Act 1912
Evidence Act 1995
Listening Devices Act 1984

DECISION:
Appeal dismissed.

JUDGMENT:

- 34 -

IN THE COURT OF
CRIMINAL APPEAL
60455/98

SPIGELMAN CJ
IRELAND J
SIMPSON J
Thursday 23 March 2000

REGINA v Michael Shand WALKER
JUDGMENT

SPIGELMAN CJ: The Appellant was convicted by a jury of murder. He was sentenced by Sully J in the Supreme Court of New South Wales to serve a minimum term of fourteen years penal servitude, and an additional term of five years. The appeal is against his conviction.
The Appellant shot and killed a taxi driver, Wendy Bell, on 4 May 1995. At his trial, the issue was whether or not the fatal shot was the result of a deliberate act of the Appellant, with intent to kill or to inflict grievous bodily harm.
In murder, the elements of a deliberate act and of an intention may be separate, but in the way the case was run below, and in this Court, those two elements overlapped considerably in terms of a defence of an accidental discharge.
In the trial below manslaughter by an unlawful dangerous act was also left to the jury. However, the jury convicted of murder.
There are two grounds of appeal. First, the Appellant submits that certain evidence of a police informer concerning alleged conversations with the Appellant should not have been admitted into evidence. Secondly, the Appellant asserts that having regard to certain matters, the verdict of guilty of murder was "unsafe and unsatisfactory".
On 4 May 1995, the Appellant hailed a taxi at Manly. He sat in the rear of the taxi which took him to various points in the vicinity. At one point during the course of the drive, the deceased taxi driver activated an alarm which indicated that the driver felt that she was under threat. The taxi was then in Dee Why in the vicinity of a police station. Near the police station, the revolver that the Appellant was holding wrapped in a towel discharged and the taxi driver was shot in the back. One shot was fired from the Appellant's revolver. The shot passed through the back of the taxi driver's seat and into the body of the driver. The shot fired by the Appellant was fatal. These basic facts were not in issue at the trial. The Appellant's case was that the shooting of the deceased had been accidental. It will be necessary to refer in more detail to the evidence when considering the second ground of appeal.
The first ground of appeal was that his Honour erred in admitting the evidence of the witness who was a fellow prisoner of the Appellant. The admissibility of the evidence was contested at trial. After an extensive voir dire, the trial judge admitted the conversations into evidence. Before his Honour, and in this Court, the objection was based on s90 (the unfairness discretion) and s138 (the impropriety discretion) of the Evidence Act 1995. Reliance was not placed on s137 (the unfair prejudice discretion).
There were three pertinent conversations about which the prison informer gave evidence. I will set them out as they are also material to the second ground of appeal.
The first conversation occurred prior to any contact between the prisoner and the police in the presence of a third prisoner. The evidence was:
"It was a conversation amongst all of us. We were all talking and another inmate happened to say to Walker, ‘How does it feel knowing that you have killed someone?' He then said (that is to say Walker said to the other inmate), 'What's today?' And the other inmate replied, 'Its Tuesday.' He replied, 'That's how it feels.' Some time later I had a conversation with him again and he told me that the police were going down path A and which really there was a path B."
According to the evidence of the prison informer it was this conversation which struck him as being cold and callous, and which gave him the idea that he could improve his own position by becoming an informer. He originally gave evidence to the effect that he had proposed to come forward out of some altruistic motive, but his Honour did not accept that evidence. The prisoner's position at that stage was that he had been arrested for a series of offences, including five armed robberies and one larceny of a motor vehicle. These offences had been committed while he was on parole from a prior conviction. The prisoner was facing a substantial sentence, something in excess of four years for the remaining period of which he was parolled for the original convictions, to which would have to be added the additional offences.
The second conversation was given in a somewhat different version in the voir dire from that which ultimately emerged before the jury. In the version that was given on the voir dire, the second conversation included the following reference:
"He decided to take the woman for a dummy ride. ....
He said that 'I needed a vehicle for my scam anyway. I could plug her off anyway - I ended up driving to Warringah Medical Centre after the Mona Vale Cemetery', and I can't recall everything what he said your Honour".
"Yes, when I was in the cab with her, I heard her speaking on the microphone saying something like, 'I'm outside Dee Why Police Station'. I noticed a cab go past. I thought I was going to get caught, and that's when I fired the gun."
The third conversation about which the prison informer gave evidence extended over approximately five pages of transcript. It is unnecessary to set out the whole of the conversation. During this conversation, the Appellant is alleged to have explained to the informer the nature of a plan he had to shoot a male taxi driver, to make it appear that it was in fact the Appellant, so that the Appellant would be able to collect something in excess of $700,000 on a life insurance policy. As will presently appear, a scheme of this general character was contained in a document found in the Appellant's possession on the night of the killing.
According to the prison informer the Appellant explained to him that he had intended to shoot a male taxi driver, disfigure his body in order to make it unrecognisable, place various items of jewellery, wallet, clothes and other items which would lead to the identification of the body as his own. He explained that he had left a will with a solicitor and appointed an “Uncle George”, who lived in Scotland, as his trustee. He anticipated that he would be able to collect monies from that uncle in due course.
With respect to the occasion on which the killing occurred, the evidence of the conversation included the following:
"Yes I asked him … ‘How come it was a female taxi driver’. He said: ‘Well I fucked up and it was supposed to be a man’. I said: ‘What happened?’ He said:
‘What I done I went to a Manly taxi rank, just down the road from the police station. I seen a station wagon taxi with a male in it. That's the cab I wanted to get. As I got close to the cab, an old lady beat me to it, so I had to get the next cab. I got inside the taxi. From the outside it looked like a bloke but once I was in there I realised it was really a woman. I thought what the hell, I'm here now. I may as well take her for a dummy ride.
I told her to take me to Mona Vale Cemetery. I had been to Mona Vale Cemetery before and checked it out. ... That's where I planned to kill the driver.
While we driving along I had a conversation with the lady taxi driver. I told her that I hadn’t been down this way for a while. I was visiting an old relative and told her some bogus story while I was having a conversation with her. She then told me that she didn't have any family and that she knew what it was like. I then thought because she's got no family, no-one would miss her, I may as well go ahead with my scam anyway and plug her off, I've got the opportunity, with the cab now. I need a vehicle for my scam. I can always get a body somewhere else. I may as well go ahead with the scam. So I then asked her, because it has been a long time since I have been down this way, if she knew where there was a florist. … She said "yes" we then drove to a florist. … I went inside bought some flowers went back to the cab. We drove to Mona Vale Cemetery.
Because I knew the lay out of the cemetery, there's a dip in the road and I even checked out a headstone. From where the dip in the road is, where the headstone is, no-one would be able to see the cab. That's where I could plug her. We got to the headstone, where I directed her. I told here that I might be a bit emotional and that I would like to get a towel out of my brief case. I sat the brief case on my knees and I opened it in a way where she wouldn't be able to see it. I grabbed the yellow towel which had a gun in it. I put the flowers down and I pretended to wipe my face with a towel. I had my hand on the gun.
As I started walking towards the cab, when I was just about to plug her, you wouldn't believe it, a fucking hearse drives past. There's this funeral going on, so I can't do her there.
I get back in the cab and I told her that I was feeling sick and could she take me to Warringah Medical Centre. Just outside the cemetery I told her I was feeling sick and would she pull over. She pulled over. I got out of the cab and I pretended to be sick on the side of the road. I got back into the cab but this time I got in the back seat, right behind her. I told her that because I had just been sick I didn't want to breathe all over her. That's why I got in the back seat. She then drove me to Warringah Medical Centre.”’
Two aspects of this particular extract were the subject of comment in the Appellant's submissions on the basis of unreliability.
First, was the reference in the passage I have just quoted to the assertion that the taxi driver had said that she didn't have any family. It was in that connection that, according to the prison informer, the Appellant had said to him, "that's when I thought she's got no family, no-one will miss her." This assertion was wrong. The evidence before the trial Judge on the voir dire and before the jury, was that she did have a family who would miss her.
The second aspect which was said to go to unreliability, was the reference to the hearse driving past. According to the evidence below there was no funeral at that time at that cemetery. Accordingly there could not have been a hearse driving past.
Further evidence was given about the visit to the medical centre and according to the prison informer the Appellant said that he had shown to the taxi driver his card from the Metway Bank. The evidence continued:
"She was arguing about the fare and that's when he produced the Metway Card and she said that there were 'no banks around here that would take that card.' He said he cocked the hammer back of the gun and then he went on to show me how, with a towel in my cell, he had the gun wrapped in the towel.
…
He went on to tell me that the gun he had was a five shot ex-police revolver. 'The gun had no safety on it so I used to leave the first chamber empty. That was my safety, but once you cock the hammer back, the barrel spins and the gun is ready to go.' He said: 'I cocked the gun back and at that stage I fired, but the hammer got caught in the towel and the gun didn't go off. She then took off.
The next thing I know, she is out of the front of the police station and I heard her say something on the microphone in the cab that 'I'm out the front of Dee Why Police Station'. And I also seen a taxi go past too. I thought then I was gone. I was going to get caught. They'll find the gun so that's when I fired.
I got out of the back seat opened her front door up but I fucked up because the car was still put in drive not park, and when I tried to push her over her foot slipped on the accelerator and the car took off. I was holding onto the steering with my right hand and I was getting dragged along beside the car. I thought if I let go I would get run over.
The next thing we smashed into the police station and I nearly got knocked out. I broke my toe. I was trying to push her over to get into the driver's side and drive away. There was police all standing around me and then I was taken into the police station.'"
In his reasons of 12 March 1998 on the admissibility of the prison informer's evidence Sully J referred to his rejection, after an earlier voir dire, of certain evidence proposed to be given by investigating police with respect to a conversation with the Appellant on 13 May 1995. His Honour had found that on that day the police had clearly understood that the conversation which had occurred with them as police officers was a conversation which the Appellant was not prepared to repeat in a formal interview, and that he was not prepared to have any formal interview until after he had spoken to and taken advice from a lawyer.
The first conversation between the prison informer and the Appellant occurred on 16 May. The police had had no involvement of any character with the prison informer with respect to this matter prior to that date.
The prison informer had contact with the police officer in charge of his own case on 17 May in which he indicated his willingness to speak to the police investigating the case involving the Appellant. On 17 May the prison informer had the second conversation to which I have referred.
On 18 May the prison informer discussed his contact with the Appellant with the investigating police of the case now before the Court.
It was on 20 May, after the prison informer had been moved into the same cell as the prisoner, that the lengthy and detailed conversation to which I have referred as the third conversation occurred. On 22 and 23 May investigating police took detailed statements from the prison informer.
Sully J noted the fact that the prison informer was at risk of having to serve in excess of four years by reason of the breaches of his parole and also was facing substantial additional sentences for the further offences that he had committed whilst on parole. He found that the prisoner was actuated by a perception that he might be able to exploit his access to the accused so as to enlist some police support for his own forthcoming sentencing.
His Honour made findings of fact as to the conduct of the investigating police officer, Inspector Byrnes, as follows:
(i)        From the time of his first contact with the prisoner, Inspector Byrnes was aware that some form of assistance with the prison informer's sentencing would be involved.
(ii)       In the letter of commendation to the District Court in connection with the prisoner's sentencing in November 1995, Inspector Byrnes had said, "I know that he held out some hope of receiving assistance but he did not mention it ... when I became aware of the totality of the prisoner's evidence I advised his solicitor that I would provide a letter to his Honour." (His Honour found that the expression "held out" was meant in the sense of "held").
(iii)      He noted that at the time of first contact the prisoner "had very little information but was confident that if Inspector Byrnes was interested he could cement a friendship with (the accused) and elicit that evidence".
(iv) That Inspector Byrnes had let the prisoner know that he would definitely be interested in any information the prisoner might be able to draw out of the Appellant and if the prisoner was able to advance the police case against the accused then Inspector Byrnes would do what he could to help the prisoner, but without making any particular promises.
(v) Inspector Byrnes was well aware from the time of the conclusion of his meeting on 13 May with the Appellant, that the Appellant was not prepared to talk on the record until he had first seen a lawyer.
(vi) That as at 17 May Inspector Byrnes believed that he could not obtain judicial authorisation for the use pursuant to the Listening Devices Act 1984 for a listening device in any attempt to record inculpatory statements made unwittingly by the accused.
These findings of fact listed as (i) to (vi) are not challenged in this appeal.
His Honour's attention was directed to the most recent authority recently delivered with respect to the various discretions at common law: The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159. Of particular relevance to the case was the decision of Cox J in R v Pfennig (No 1) (1992) 57 SASR 507, on which the Appellant relies in this appeal, and also the decision of the English Court of Appeal in R v Bailey & Smith (1993) 97 Cr App R 365. It is the case that the decision in Pfennig bears some resemblance to the present case. His Honour's attention was not drawn to another case, that of R v Lowe [1997] 2 VR 465.
In submissions to this Court, the Appellant did not identify any wrong decision on any question of law that arose with respect to the admission of this evidence. In terms of s6 of the Criminal Appeal Act 1912 the Appellant relies on the proposition that by reason of the admission there was a miscarriage of justice. In the case of each of s90 and s138, findings of fact must be made and discretions are reposed in the trial judge. There are well known restrictions on an appellate court reviewing findings of fact and interfering with the exercise of a discretion at first instance.
His Honour made certain findings of fact which were open to his Honour and which have not been challenged on appeal. In order to establish a miscarriage of justice within s6, the Appellant must do more than simply convince an appellate court that it may have exercised a discretion in a manner different from the way in which the judge at first instance exercised that discretion.
Section 90 is in the following terms:
“90     In a criminal proceeding, the court may refuse to admit evidence of an admission, or to refuse to admit the evidence to prove a particular fact, if:
(a)      the evidence is adduced by the prosecution; and
(b)      having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”
In submissions, Mr Agius SC, counsel for the Appellant, drew attention to particular aspects of the unreliability of the evidence of the prison informer.
Firstly, the word is used in the sense of an element of unreliability about the making of the confession itself. Secondly, there is a question of reliability that may be seen to arise as to whether or not the words, said to be a confession, were said at all. In this case a good deal of the doubt associated with the evidence is concerned with the motive of the prison informer to make up a confession. This goes to the question of the reliability of the evidence to be used to establish the confession, rather than the reliability of a confession that has been made. Many of the references in the Authorities, particularly most recently Swaffield, to which reference was made in the submissions, particularly paragraphs [16], [17], [27], [28], [36], [66] and [126], were references to reliability in the sense of reliability of a confession, rather than reliability of the evidence.

Nevertheless, there is a point about the reliability of the confession, in the context in which it was made here associated with what Kirby J referred to in the following passage in Swaffield:
"Within a criminal subculture, false boasts of criminal behaviour, bravado and false accusations against others may be common and perhaps even considered necessary in certain circumstances.” [126]
The circumstances of each of the conversations being between prisoners gives rise to an element of unreliability in that sense.
In my opinion the decision by his Honour to find that the evidence of the admission would not be unfair to the defendant, was a finding that was open to his Honour, and not one with which I am disposed to interfere.
His Honour distinguished the case of Pfennig in which elements of the fairness discretion and elements of the s138 impropriety discretion overlapped. I will presently refer to his Honour's comments about Pfennig in the latter regard. In many respects the accused accepted the prison informer's version of the contents of the conversation, and how the conversations had come about. In his evidence, however, the accused denied that the terminology relied upon by way of admission had been used by him.
Nevertheless, there was no real dispute that the conversations were freely engaged in, and included some discussion with respect to the killing, namely, the exculpatory assertion that what had been said was to the effect that the discharge had been accidental. However, in this situation there was no evidence suggesting that the prison informer had held out any form of inducement, or made any threat, or engaged in any form of trickery with respect to engaging in the conversations. The issue was the content of the conversations.
The Appellant submitted in this Court, as he appears to have done before Sully J, that Pfennig was indistinguishable. It was submitted, as in Pfennig, the police had in fact made the prison informer their agent, and that the informal interrogation of the accused on behalf of the police would come under the same condemnation as a formal interrogation by the police would have attracted. As Cox J said in Pfennig at 514:
"The police set a trap for the accused of an impermissible kind".
This was said to go both to the question of unfairness in the circumstances, but, alternatively, was said to constitute an element of impropriety and also went to the balancing exercise between the undesirability of admitting evidence obtained in that way and the desirability of admitting evidence, for the purposes of s138. These aspects of police conduct were put on the basis that they went to both s90 and s138. It is convenient to treat them together.
Sully J distinguished Pfennig on a number of bases. First, he noted it was the prisoner who made the first approach to Inspector Byrnes and not vice versa. I agree that this is a material point of distinction, and at this stage it cannot be said that the "police set a trap", in the words of Cox J in Pfennig. Nor can it be said that the police had made the prison informer their "agent". This is obvious with respect to the first conversation which was of some material significance in the case and with respect to which there was no police involvement of any character.
In this case there is, in this respect, some analogy with the facts in Lowe. That case also involved conversations between two prisoners. There had been a number of such conversations between the prisoners, Lowe and Reid. Indeed Reid had acknowledged in his evidence that he had tricked Lowe into believing that he was working for a "bent lawyer" who would be prepared to take up Reid's case. Those conversations continued for a considerable period, prior to Reid first making contact with police. After he made contact with the police, Reid continued to speak to Lowe for the purpose of getting more information, and from time to time he would pass on that information to the police officers. Indeed, after a certain period of time, on three occasions, the police fitted Reid with a tape recorder.
The grounds of appeal were similar to the grounds in this case albeit arising under the discretions at common law. The trial judge had made the following findings of fact, which are set out by the Court of Appeal at 476. They include:
"It is demonstrable that thereafter Reid encouraged Lowe to speak; it is demonstrable that Reid set Lowe up; it is demonstrable that Reid told lies and adopted stratagems towards Lowe. But the police officers did none of that. Nor did police officers cause it to be done; they did not have any control over the situation, nor did they have any sanction to operate in relation to it. It thus seems to me to be plain that it was not the police officers who were ‘effectively interviewing’ Lowe as has been submitted. Rather there were two prisoners talking voluntarily together … It seems to me, in the circumstances, that the police did nothing illegal, nor did they do anything improper by being the beneficiaries of what occurred - initially at Lowe’s instigation and which was then encouraged by Reid - in the prison.”
The Court of Appeal of the Supreme Court of Victoria, in a joint judgment of Winneke P, Brooking JA and Southwell AJA, said, at 477 to 478:
"We can see no valid reason for concluding that the learned trial judge was in error in determining, as he did, that Reid was not acting as ‘an agent’ or ‘tool’ of the police in obtaining the admissions which the applicant sought to exclude. The role played by the police was a question of fact and degree which had to be determined by the trial judge upon the evidence before him and upon an evaluation of the circumstances which that evidence exposed. The belief which Reid himself might have held was not determinative of the question. The judge considered all the evidence placed before him on the voire dire and came to the view that, for relevant purposes, Reid was not acting as ‘an agent’ of the police. It is clear from the tenor of his Honour’s ruling that he was satisfied by the material before him that it was the applicant, and not Reid, who was the initiator of the conversations which occurred and that he needed little or no prompting by Reid to unburden himself. In our view his Honour was entitled to find, as he did, that this was not a case of a trap being set by police to induce a confession from a reluctant talker, but rather a case where the police were the beneficiaries of information which one prisoner was willingly giving to another. The learned trial judge was entitled to accept, as he did, the evidence of Sergeant Bartsch that no ‘coaching’ was given to Reid, and no instructions given as to questions to be asked but rather to ‘keep making conversation and see what comes’.”
Their Honours went on to say in a passage which I respectfully adopt at 479,
"The line between what is permissible and what is impermissible might, in some cases, be a fine one. Whether such line has been crossed will, in most instances, depend upon the view of the circumstances taken by the trial judge in the particular case. The trial judge in this case was clearly not satisfied on the material before him that the police officers had crossed that line. Indeed he was, to the contrary, positively persuaded by that material that the officers had adopted a neutral role and had not, in any way, controlled the conversations between the applicant and Reid. We can discern no basis for interfering with his Honour’s conclusions.”
I have set out above the findings of fact that his Honour, Sully J, made with respect to the police involvement in the attaining of this evidence. In general terms, it appears to me to be of the same character as that referred to in Lowe.
In the present case, Sully J noted that there were significant limits upon police conduct in a situation such as that which faced Inspector Byrnes. But as his Honour put it:
"I cannot see why within properly guarded, non specific and non contractual limits Inspector Byrnes was prevented from acknowledging what both he and the prisoner knew to be the relevant facts of life, namely, that the prisoner needed police assistance and was prepared in order to get it to run the risks inherent in giving assistance to police investigations of a murder."
His Honour also contrasted the facts in Pfennig, when he found that the prisoner did not do anything to trick the accused into confiding in him. As his Honour found:
"The questions asked by the prisoner so far as the evidence discloses them seem to me to have been few, non-leading and generally innocuous, except in the sense that they keep on foot a conversation in which the accused was quite willingly taking part.”
His Honour went on to say that he rejected the submission that the circumstances in which the prison informer drew the accused out in conversation made the statements of the accused, taken as a whole, unreliable.
He identified the fact that there was one detail given by the accused which was demonstrably incorrect, and another detail he found, at the time of the voir dire, to be arguably incorrect. His Honour went on to say:
"It is however in my opinion unacceptably artificial to deduce from one plain error and one other possible error occurring in the course of a very discursive narrative that the remainder of what is said is so clearly unreliable as to make it unfair to permit the entirety of the consideration to be given in evidence before the jury.”
The word “consideration” as appearing in that passage is, probably a reference to “conversation”.
His Honour concluded that for these reasons he had not been persuaded, on the probabilities, that he should refuse in the exercise of his discretion under s90, to admit the evidence in accordance with the submission. In my view his Honour was entitled to form that opinion. I do not see any basis upon which the Court should interfere on the exercise of this discretion.
His Honour went on to consider the parallel submission made pursuant to s138, which provides:
“138(1)          Evidence that was obtained:
(a)      improperly or in contravention of an Australian law; or
(b)      in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way the evidence was obtained.”
With respect to s138 of the Act, his Honour proceeded on the basis that the onus was upon the Appellant to establish on the balance of probabilities a relevant impropriety. If that were done then it was for the Crown to demonstrate on the balance of probabilities that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence that had been obtained in the way in which the evidence had been obtained.
His Honour found that the accused had not discharged its onus of establishing that the evidence was obtained improperly or in contravention or in consequence of any such impropriety or contravention. His Honour further held that, if he had found that the Appellant had discharged his onus, then he would have found that the Crown had made out its onus of establishing that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way.
In this regard his Honour no doubt intended to refer to the findings of fact that I have outlined above, enumerated (i) to (vi), as the factual findings upon which he based both aspects of the judgment. When I say both aspects, I refer to the reliance placed on s90 and s138.
Both before his Honour, and in this Court, particular attention was directed to the findings of fact that his Honour made, and which his Honour numbered, and I have numbered (vi) above, namely, that at the relevant time Inspector Byrnes believed that he would not have been able to obtain approval to fit a listening device to the prison informer at the relevant time. His Honour found that this did not constitute a relevant impropriety.
The evidence adduced in cross-examination of Inspector Byrnes was to the effect that on 17 May, he had told the prison informer that he would "weigh up what he gave me in relation to the case and I would then see what assistance could be given to him". The Appellant submitted that this constituted a representation to the effect that the more incriminating the conversation that he was able to report, the more assistance the prison informer would receive from the police with his own sentencing matters. I do not believe that this is a reasonable construction of the evidence of Inspector Byrnes. If such a construction could be placed on the conversations then there may have been a relevant impropriety in that regard.
The finding of Sully J that both parties to the conversation, the prison informer and Inspector Byrnes, knew that some form of assistance may be forthcoming with respect to the prisoner's sentencing was an understanding which did not constitute an element of impropriety, or any contravention, or a consequence of any impropriety or contravention of law, within the meaning of s138.
I agree with Sully J that for purposes of s138, the nature of the police involvement did not constitute any impropriety or contravention in the relevant sense. I also agree with Sully J that, had I to do so, the evidence would not have convinced me, as it did not convince Sully J, that balancing the desirability of admitting evidence against the undesirability of admitting evidence obtained in that way, the discretion should be exercised in favour of refusing to admit the evidence. For those reasons I would reject ground one of the appeal.
The second ground of appeal was that the jury's verdict should be set aside as unreasonable. It was submitted that having regard to the evidence, the verdict could not be supported. An alternative formulation in the Appellant's written submissions was that the verdict was not reasonably open.
The Appellant used the terms of "unsafe and unsatisfactory" which have traditionally been used in this State to identify both a ground for appeal and also to found a submission that the Court should direct a verdict of acquittal, rather than an order for a new trial. As the High Court noted in Fleming v The Queen [1998] HCA 68; (1998) 73 ALJR 1; (1998) 158 ALR 379; (1998) 103 A Crim R 121 at [12], the phrase, "unsafe and unsatisfactory" is "potentially confusing". It is important, as the Appellant has done here, to direct attention to the particular terminology in s6(1) of the Criminal Appeal Act 1912 on which the Appellant relies. This the Appellant has done by using the particular words of s 6(1) that the verdict of the jury "is unreasonable".
Following the decision of the High Court in Fleming, this Court has emphasised that an Appellant should identify a ground of appeal in the terms of the statute (see R v Giam [1999] NSWCCA 53; (1999) 104 A Crim R 416 especially at [43] to [44]). The other work hitherto done by the “unsafe and unsatisfactory” ground of appeal should be the subject of a separate heading in submissions with respect to the order sought. In many cases the orders sought under what was referred to as the unsafe and unsatisfactory ground, is a verdict of acquittal. Attention does need to be directed to the inter-relationship between subs 6(2) and subs 8(1) of the Criminal Appeal Act. (See R v Johnston (1998) 45 NSWLR 362 especially at 380; R v Giam supra at [31]-[46], R v Brownlee [1999] NSWCCA 57; (1999) 105 A Crim R 214 at [31]-[34].
In many cases the order sought is the verdict of acquittal which is the default order under s6(2). In the present case, the Appellant's position was to seek the Court to substitute the alternative verdict of manslaughter.
The relevant test with respect to the “unsafe and unsatisfactory” ground is still that articulated by the majority of the High Court in M v The Queen (1994) 181 CLR 487 at 493:
"... the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
This remains the test notwithstanding the abandonment of the phrase "unsafe and unsatisfactory". See Jones v The Queen (1997) 191 CLR 439 at 450-452. The reasoning of the High Court in M at 493-494 remains appropriate when determining whether the verdict of a jury should be set aside "on the ground that it is unreasonable" within s6(1) of the Criminal Appeal Act. See also Jones v The Queen supra at 450-452.
The basic submission of the Appellant in this regard was that the Crown had not negated the likelihood that the shooting was an accident. It was submitted that there was evidence as to the operation of the revolver to the effect that there was a possibility that a cylinder might locate itself in a position different from that intended by the handler. Particular reliance was placed on the types and quantity of drugs that had been prescribed for the Appellant and the expert evidence as to the possible effects of those drugs.
Particular emphasis was given to the absence of a motive for the killing. There was a body of evidence with respect to the insurance fraud which the Appellant had planned, but the sex of the intended deceased was a crucial part of that plan. It was submitted that there was no basis for a conclusion of an intent to kill a woman. Mr Agius acknowledged that motive was not a necessary element of an offence, however, he submitted, that where the defence relied on accident, the absence of a motive was of significance.
The basic issue at the trial and on this appeal was whether or not the fatal shot was caused by some deliberate act of the accused or with the requisite intention. It is pertinent to outline the relevant evidence on the issue of intent.
It was common ground that at some point of time the Appellant had a plan to murder a taxi driver in aid of a plan to defraud an insurance company. The idea was to disfigure the body and also to plant various matters on the body which would tend to identify it as that of the Appellant. Indeed, in the briefcase which the Appellant had with him on the night of the killing, there was a document, that became Exhibit U in the proceedings, that set out in great detail the various steps which the Appellant proposed to take in pursuance of this plan.
In the period up to 21 April, the Appellant had bought the gun, had changed his will, had left requisite documents with his solicitor. At the time after his arrest there was found in his room a mallet, a machete, hand cutter and surgical gloves which were relevant to the proposal to disfigure a body.
Of course, it was an essential component of this plan that the taxi driver be male. The circumstance that the Appellant happened to encounter a woman taxi driver was relied upon by the Appellant as inconsistent with the implementation of the planned murder. The Crown case, however, was that the original intention having been foiled, the Appellant had formed the intent to carry out the killing in some way as a "dummy run" for the plan itself.
The Appellant's case was that he had abandoned the plan some considerable time before, and indeed before 21 April. However, on 21 April he bought the gun and he also left the relevant documents with his solicitors including sealed instructions as what to do upon his death. Nevertheless, he maintained a position that he had abandoned the plan some time prior to this date. All of this was before the jury for the purposes of assessment. Given the acts of 21 April, and his possession on the night in question of the check list that became Exhibit U, and also his possession at that time of relevant equipment, it was plainly open to the jury to decide that as at 4 May, when the killing occurred, he was pursuing this particular plan. He had made some attempts in his evidence to explain his conduct in this regard.

However, apart from it being open to the jury to reject his version in the case, there is the second aspect of the evidence on which the Crown relied. Certain admissions had been made to the police. Some occurred prior to the formal record of interview. Others are contained in the records of interview. The evidence was not entirely clear as to the extent to which the Appellant confessed in the conversation prior to the record of interview.
The Inspector's evidence included the following:
"I said, ‘I saw a hole through the driver's seat of the taxi. Did you shoot the female taxi driver through the back of the driver's seat?' The accused appeared sullen and he paused and then he said 'Yes'. He also acknowledged with a nod of his head and he raised his right hand up to about abdomen height, extended his right hand with his fingers in that fashion appearing to emulate the gun."
and
"As he did this he said 'Initially I hadn't intend to fire the gun but then I did and I don't know why I did it.'"
The evidence as to how the Appellant raised his hand and emulated a gun at about abdomen height is, of course, inconsistent with the evidence that he gave and to which I will presently refer as to the circumstances of the allegedly accidental discharge of the weapon.
In the first record of interview the questions and answers that occurred, to which I have just referred in the evidence of Inspector Burns, were referred to in the following way:
"Q. Do you agree that you also told me that initially you hadn't intended to fire the gun?
A. Correct.
Q. And you went, do you agree, that you went on to say that you had fired the gun and you don't know why you did it?
A. ...my hand, my finger, I think she moved forward slightly in the traffic, I think my finger slipped, no, I, there was no intention to fire the weapon. I was simply trying to keep it out of her sight while I got my wallet. Yes, I agree with what I said to you earlier."
In the course of the first record of interview the following question and answer occurred:
"Q. What happened when you got to the set of lights just on the intersection of St Davids Avenue and Fisher Road?"
and I am omitting certain parts,
"A. I asked her to...find me a...teller machine so that I could use my auto keycard...because I noted she didn't have one in the car, a lot of the Manly taxis do. And...while I was fumbling around, cause as I say I have these dizzy spells and...hence why I don't carry anything in my pockets...and I was searching in my case for my keycard and...told her I needed a State Bank or a St George, cause I have a Queensland account but it works at various other banks and she said there would be one at the Mall...so I was just fumbling around in that. I tried to move the towel with the revolver in it...'cause it was in the way of me closing it and it...went off."

Subsequently in the record of interview he said:
"I had it by the butt and my finger on the gun, not on the trigger, and I know it was only a few minutes ago but it seems you know it happened so fast...the gun was cocked albeit empty chamber so ...no it was. I think there was but I had my finger not on the trigger on the shield in front of the trigger the curved bit while I was, yeah, I really wasn't paying attention to this hand. I was paying attention to getting my wallet and stuff out."

He was asked about the conversation prior to the shooting and the Appellant said:
"We've been chatting about a couple of things, she was telling me when she was gunna knock off, she was gunna go down to the club and um I said I had to get the scripts filled and I'd be going back home to rest and ‘cause I wasn't feeling the greatest...certainly then we were having a normal conv, as I said, that's why I moved over ah...so I could hear her better cause of the...my bad hearing and...I did I got closer to her."
The following also transpired in the first record of interview:
"Did you have any arguments or...disagreements?
A. Oh, no.
Q. ...with her...?
A. No.
Q. During the course of your trip?
A. No, she was a very congenial...kind of person."
The Appellant also gave evidence that he was holding the firearm in the towel on his lap so that it wouldn't fall while he was getting his keycard. He also said the following in response to questions as to whether or not he pulled the trigger.
"I pulled it but I don't remember it as a conscious act. I didn't turn around and point it at her and, and take it out of its covering or... no, I didn't, there was no forethought there, if that's..."
The evidence as to admissions had to be assessed by the jury in a context in which there was a body of uncontested evidence about the events immediately prior to the killing. The killing occurred about twenty minutes past midday. Evidence about the period of five to ten minutes before that moment was available to the jury for it to consider. This included the following.
The deceased activated an alarm from the taxi to her base, known as a M13 alarm. This was described as the “ultimate alarm” that a driver would press “if they felt they were in trouble” (T36). The effect of that alarm is to open up the microphone in the taxi so that the radio room supervisor can hear what is occurring.

On this occasion the radio room supervisor first heard “quiet voices in the car”. The radio room supervisor then placed a call to the taxi about which she gave the following evidence:
"'Taxi 1654, do you have an M13 situation?' She said 'No'. Then she said 'Yes'. I said 'Where are you?' She told me 'the corner of Warringah and Pittwater Road.' I said 'Which direction are you heading?' She said 'I am trying to get to Dee Why Police Station.'"
The radio room supervisor said, in answer to a question about what sort of voice the deceased had: "very quiet, very unlike her".
According to two witnesses in the radio room, it was at this point that the deceased started to scream for help. According to one witness:
"I heard her say before she screamed that she didn't need the situation, she didn't want the situation. I really can't remember the words she used but the situation, she didn't need it."
Evidence was given that when an M13 alarm is sounded, this opens a clear channel to other taxis so that they can also hear what is happening inside the taxi. There is also evidence that it was common practice for a driver who had activated an M13 alarm to also put on hazard lights whilst driving. Another taxi driver gave evidence that the deceased's taxi was weaving in and out of traffic with its hazard lights on, at about that time.
The M13 alarm, the use of the hazard lights, the weaving in and out of traffic at some speed, about which there was evidence, and the particular conversation immediately before the scream to the effect that she “did not need the situation”, or words of that character, indicate a level of fear on the part of the taxi driver that is not consistent with the nature of the Appellant's case as to a discussion concerning an ability to pay with a particular form of card.
This was all evidence before the jury available for it to assess the evidence of the Appellant and also the other confessional evidence both in the conversation with the police and in conversation with the police informer.
In my view the assessment of that body of evidence was a matter for the jury. There was evidence upon which the jury could reasonably convict.
The Appellant also relied, in his submissions in this Court, on evidence concerning the possibility with respect to the mechanism of the particular firearm, i.e., that the cylinder with a live round in it could have located itself in a position other than that intended by the Appellant. The Appellant's case was that, as some kind of safety measure, he loaded the five-shot revolver with only four live rounds. His intent was that the empty cylinder would be located in line with the hammer. There was evidence to the effect that the operation of the revolver could act in such a way as to locate this cylinder in a manner other than that intended. It was a matter to be assessed by the jury in coming to its own conclusion as to the deliberate quality of the act and the intent with which the act was performed. Whether the accused's evidence as to how he loaded the gun should be accepted was a matter for the jury.
There was a body of evidence as to the accused's medical condition and practice with respect to prescription drugs. There was evidence from Dr Hornibrook, an ophthalmologist, who treated the Appellant for double vision. The Appellant placed particular reliance on the extraordinary variety of drugs he was taking at the time.
There was evidence from a treating doctor, an independent expert and a pharmacist about the scale of drug taking and the effects of the particular drugs and their combination. This evidence was clearly and accurately summarised for the jury in Sully J’s summing-up. No criticism has been directed to any part of that summing-up.
Much of the evidence was of a theoretical character, namely, what kind of effect could this habit of drug usage have on a person's ability to perform a deliberate act or to form the requisite intent.
As appeared during the course of the trial, and was clearly indicated in the summing-up, the jury had a particular form of evidence which it could use to assess the applicability of this theoretical evidence in the circumstances of this particular case. I refer to the first electronically recorded interview. Within forty minutes of the relevant incident a video recording was made of the Appellant. This video recording is of significance for the assessment of the expert evidence. In particular, both the treating doctor, Dr Nelson, and the independent expert, Professor Starmer, were asked questions based on the appearance of the Appellant in the video. Both agreed that they could not see evidence of confusion.
This, of course, was also a matter which the jury could observe for itself.
Professor Starmer did not see the three videos in full, as the jury did. The issue of whether or not the drug taking by the Appellant was of such a character as to mean that the Crown had not negated the likelihood that the shooting was an accident was quintessentially a jury question. It was left to the jury in a manner which the Appellant does not criticise in terms of the summing-up, some of which I have outlined above.
In my view there was evidence before the jury, including the evidence of the prison informer, notwithstanding the attack on the reliability of that evidence. I should note, additionally, no challenge has been made to the direction the trial judge gave with respect to the way the jury should approach the evidence of the prison informer.
The second count on the appeal, that the jury verdict was unsafe and unsatisfactory, in my view should be rejected.
In my opinion the appeal should be dismissed.

100 IRELAND J: I agree.

101 SIMPSON J: I also agree.

102 SPIGELMAN CJ: The appeal is dismissed.

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LAST UPDATED: 16/05/2000