Regina v Joyce
[2000] NSWCCA 259
•24 July 2000
CITATION: Regina v Joyce [2000] NSWCCA 259 FILE NUMBER(S): CCA 60415/99 HEARING DATE(S): 14 June 2000 JUDGMENT DATE:
24 July 2000PARTIES :
REGINA v Norman William JOYCEJUDGMENT OF: Giles JA at 1; Dunford J at 148; Greg James J at 149
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S) : 70127/91 LOWER COURT JUDICIAL
OFFICER :Loveday J
COUNSEL : J C Papayanni - Appellant
M Grogan - CrownSOLICITORS: Jeffreys & Associates - Appellant
S E O'Connor - CrownCATCHWORDS: The appellant was found guilty of two murders. On a petition under s 474B of the Crimes Act 1900, pursuant to s 474C(1)(b) of that Act the case was referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. Whether leave to appeal as to questions of fact or grounds of appeal as to which appropriate objection had not been taken at the trial referred to but not decided: R v Johns (1999) NSWCCA 286 referred to. Numerous grounds of appeal were considered, almost all specific to the facts in the appeal. Pollitt v The Queen (1992) 174 CLR 558 and R v Clough (1992) 64 A Crim R 451 considered in relation to instructing the jury to consider specific matters which could reasonably be regarded as undermining the credibility of a prison informer. Pollitt v The Queen referred to in relation to corroboration where there is a possibility of joint fabrication. Ireland v The Queen (1971) 126 CLR 321 referred to in relation to admissibility of an interviewing police officer's statements to the person being interviewed of his beliefs and opinions. The Court declined to receive further written submissions delivered without leave after judgment was reserved. DECISION: Appeal dismissed.
THE SUPREME COURT
CCA 60415/99
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
SC 70127/91
DUNFORD J
GILES JA
GREG JAMES J
Monday 24 July 2000
R v Norman William JOYCEJUDGMENT1 GILES JA: In October 1992 the appellant was tried on two charges of murder. He was found guilty and was sentenced on each charge to a minimum term of 15 years penal servitude to date from 12 November 1990 with an additional term of 5 years thereafter. On a petition under s 474B of the Crimes Act 1900, and pursuant to s 474C(1)(b) of that Act, on 19 July 1999 the Attorney-General referred the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.
2 The notice of appeal as filed contained 13 grounds of appeal, in the terms -
“1. His Honour erred in law in not rejecting the admission of the Record of Interview with the Applicant.
2. His Honour erred in law in misdirecting and/or failing to direct the jury as to the Record of Interview (pp 27-28 of S.U)
3. His Honour erred in law in misdirecting and/or failing to direct the jury as to the evidence of Geoffrey Alan Thomas (pp 43-46)
4. The failure of the Crown to disclose the existence of the two letters from Anthony James Sharp to Thomas and provide copies of those letters at a reasonable time before the trial resulted in a miscarriage of justice. (pp. 427, 437, 443 of transcript)
5. His Honour erred in law in failing to direct the jury as to the significance of Sharp’s evidence particularly in relation to the evidence of Det. Sgt. Freeman, Thomas and Sally Miles.
6. His Honour erred in law in failing to direct the jury adequately or properly as to corroboration of Det. Sergeant Freeman, Geoffrey Thomas and Sally Miles. (pp 28 , 38 and 43)
7. His Honour erred in law in failing to direct that each of the above persons (Ground 5) could not corroborate the others. (p 53 of the S.U.)
8. His Honour erred in law in directing directing [sic] the jury:
“that the two persons were murdered by either the accused or by Sally Miles or by both of them in concert.”
(pp 13, 24 of S.U.)
9. His Honour erred in law in reversing the onus of proof -
(a) as to the blood being identified as the accused’s; (p 11 S.U.) and
(b) as to the clothing (p 12 of S.U.)
10. His Honour erred in law in not directing that the following evidence was not of any relevance and should be ignored -
(a) the belief and conviction of Det. Sergeant Freeman (p 134T)
(b) the magazine (p 8 of S.U)
(c) the watch and ring
(d) the handbag
(e) blood on joggers (p 11 of S.U)
(f) blood under fingernails (p. 11 S.U.)
11. His Honour misdirected and/or failed to direct properly or adequately as to there being no dispute about the Sportco, the cartridges and the magazine. (pp 7-8 S.U.)
12. There was a miscarriage of justice in that the verdict of the jury was unsafe and unsatisfactory.
13. His Honour erred in law in not putting the defence case fully and/or as an entity.”
3 The written submissions filed in support of the appeal in some respects confused rather than expounded the grounds of appeal, and the oral submissions at times bore little relationship to either the grounds of appeal or the written submissions and were themselves not easy to comprehend. In what follows I address what I believe to have been the substance of the matters put in support of the appeal.
4 There was brief reference to leave in relation to the appeal. The appellant suggested that there could be no question of leave because the statutory direction that the case be dealt with as an appeal required that it be assumed that all necessary leave had been granted.
5 By s 474L of the Crimes Act the Court is to deal with the case referred “in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly”. By r 78 of the Criminal Appeal Rules, on a referral pursuant to s 474C(1) the person convicted “shall be deemed an appellant who has obtained the leave of the Court to appeal”. In R v Johns (1999) NSWCCA 206 it was said that s 474L and r 78 displaced the need for leave as to a ground of appeal which involved a question of fact (Criminal Appeal Act s 5(1)(b)) and a ground of appeal where appropriate objection was not taken at the trial (Criminal Appeal Rules r 4). With respect, I am not persuaded of that. The matter was not the subject of argument before us, and it is not necessary to express a concluded view. As will appear, quite apart from any question of leave I do not think that the appeal should be upheld.
6 Much reliance was placed by the appellant on the letters from Anthony Sharp to Geoffrey Thomas referred to in ground 4, which were said to have had significance to the admission of the record of interview and some of the directions to the jury. It is convenient first to provide an outline of material facts and describe the part played by the letters at the appellant’s trial. Some amplification of the facts will be necessary when going to particular grounds of appeal.
7 The charges were that the appellant murdered Ves Milicevic, also known as Vince Miles, and Joan Yvonne French. Vince Miles had married Sally Miles, and they had had a daughter, Jessica. Vince Miles and Sally Miles had become estranged and had separated. The appellant and Sally Miles had formed a de facto relationship, and Vince Miles and Joan French had also formed a de facto relationship.
8 The appellant and Sally Miles lived in a caravan on the property of Bruce and Tanya Lasham near Mudgee. Vince Miles and Joan French lived in the former Miles matrimonial home at Cook’s Gap near Mudgee. Joan French owned her own home nearby. Jessica, then aged 9, lived with the appellant and Sally Miles, and the appellant and Sally Miles had a baby son, William, aged about 5 months.
9 Sally Miles had suffered ill-treatment at the hands of Vince Miles before their separation, and there had been ongoing disputes thereafter concerning a property settlement and some aspects of the custody of Jessica. There was abundant evidence that both the appellant and Sally Miles had shown animosity towards Vince Miles, and that they had talked of “bumping off” Vince Miles, of having him “knocked off”, and of “getting him” one day and having someone kill him. This included evidence from the Lashams and from friends of the appellant and Sally Miles, the McKees. It also included evidence from Sally Miles, who was called by the Crown, that a few days before Vince Miles and Joan French were killed Vince Miles offered by way of property settlement $20,000 and an old Mercedes car, and that the appellant was very angry about the offer and said to her, “We should bump him off”.
10 Very early on the morning of 12 November 1990 a fire at the Cook’s Gap tip was reported. A burnt out utility was found containing the remains of two bodies, with an empty petrol container nearby. It was identified as Vince Miles’ utility. When the police went to the house occupied by Vince Miles and Joan French they found a .22 calibre short cartridge case on the front verandah outside the main bedroom window; the fly screen hanging lose from the frame of the window; what were later established as two small holes in the screen towards the bottom of the frame consistent with .22 calibre bullet holes; blood splash patterns on the wall within the bedroom; bedding missing from the bedroom; a large bloodstain on the carpet of the lounge room just inside the front door; next to the blood stain a .22 calibre long cartridge case; and drag marks of blood from the front door of the house along the front verandah to the driveway.
11 Subsequent forensic investigation established that one of the bodies in the utility was a male and the other was a female. Both bodies were partially destroyed by fire. The state of the body of the female was such that the cause of death could not be determined. A .22 calibre bullet was found in the head of the body of the male, with an entry point on the right side a little beneath the eye and a track through to the upper left side of the skull. There was evidence that Vince Miles had left his shift work shortly before 11 pm on 11 November 1990, and would have reached the house about 20 minutes later. Neither he nor Joan French was seen thereafter. It was not in dispute at the appellant’s trial that the bodies were those of Vince Miles and Joan French, that they had been shot with a .22 calibre weapon, that they had been taken to the tip in Vince Miles’ utility, and that petrol had then been poured over the utility and it had been set on fire.
12 On the afternoon of 12 November 1990 the police went to the Lasham’s property where the appellant and Sally Miles lived in the caravan. There was some dispute over what took place.
13 The senior police officer was Detective Sergeant Freeman, from Mudgee police station. He gave evidence that he told the appellant that he had a warrant to search the caravan, that the appellant told him to go ahead, that the appellant said that a warrant was not necessary as he had nothing to hide, and that the appellant said that he did not kill anybody. The caravan was searched and rifles and ammunition were found. A .22 calibre rifle was not found, although ammunition for a .22 calibre weapon was found. The appellant was asked whether he had ever owned a .22 rifle, to which he replied that he had but he had sold it to a mate. The appellant was then taken to Mudgee police station. He was cautioned more than once during this time. The evidence of the other police officers present, although not all covering the same ground, was to the same effect.
14 According to the appellant, who gave evidence on the voir dire in relation to the admission of the record of interview and later made an unsworn statement, he asked to see the search warrant, but Detective Sergeant Freeman told him that he did not need to see it. The police then proceeded to “tear the caravan apart”. The appellant was asked if he had any weapons, to which he replied that he had. The appellant said that he was not cautioned. He also said that during this time he cut up meat and fed his pet eagle, and that his hands were clawed by the eagle causing bleeding.
15 There was greater dispute over what took place at Mudgee police station on the afternoon and evening of 12 November 1990. In the result, a record of interview was signed by the appellant in which he admitted killing Vince Miles and Joan French, and the appellant was charged with their murders.
16 Detective Sergeant Freeman gave evidence that, after again cautioning the appellant, he asked him about his movements on the previous night. The appellant said that he was at home watching a John Travolta movie. Detective Sergeant Freeman told the appellant that he believed that the appellant had gone out of the caravan with a rifle, and the appellant then said that he had gone outside for an hour or so to shoot kangaroos.
17 Detective Sergeant Freeman then told the appellant that he believed the appellant was involved in the murders, outlining why he had that belief and saying that he wanted to know the reasons behind the murders. The appellant replied that if he told Detective Sergeant Freeman about it he would “go away forever”. Detective Sergeant Freeman asked him where the rifle he used was, to which the appellant replied that it was under the cushions on the lounge in the annex to the caravan. The appellant then admitted killing Vince Miles and Joan French, saying, “Sally was getting nothing when she should have had a house. They’ve got two, she’s got none, and we’re living like pigs in a caravan. What sort of life is that for the kids or me or Sal?”
18 Police officers were sent back to the caravan. They found a .22 calibre Sportco rifle in the place described by the appellant. According to the evidence of the police officers involved, their search of the caravan earlier in the day had not included searching that place.
19 A formal record of interview was then taken, in the course of which the police officers returned with the Sportco rifle. The appellant told of earlier confrontations with Vince Miles and Joan French, particularly Vince Miles. He said that on the night of 11 November 1990 he left the caravan at approximately 8.45 pm with his rifle and walked to the house of Vince Miles and Joan French. He could hear Joan French snoring. He crouched at the open window of the bedroom and shot her through the fly screen with “two .22 calibre shots”, and then pushed the rifle through the screen and tore it and climbed in. The Sportco rifle was identified as the weapon. He closed the window and the curtains. He knew that Vince Miles would not be home at that time because he had a roster showing Vince Miles’ shifts, and he waited for about 20 minutes for Vince Miles to come up the driveway. When Vince Miles came through the front door he shot Vince Miles in the head, he thought above the right eye, with a “twenty two long”. He wrapped Joan French in the bedclothing and dragged her to the utility. He took Vince Miles by the feet and dragged him along the verandah to the utility. He drove the utility to the tip, poured petrol over it and lit it. He then walked home.
20 According to the record of interview, when invited to say anything more he wished to tell about the matter the appellant said -
“Like I told you before, I was sick of it. I wanted something done about it so I did something about it. If I wouldn’t have done something about it the trouble would have kept goin on, I just wanted to get out of the van for Sally and the kids. He was stuffin around with the settlement and I wanted somewhere for the kids to live. We intended to get out of the area cause all of the trouble my parents had been causin us. Once we had the settlement we were gonna move to Queensland away from everyone and start a new life on our own.”
21 Other police officers were present with the appellant and Detective Sergeant Freeman at the police station from time to time, including, Constable Robinson who remained after bringing in the Sportco rifle. Another police officer, Constable Murphy, was present almost throughout, and took the record of interview on a typewriter. The other police officers gave evidence of what occurred consistent with that of Detective Sergeant Freeman.
22 Detective Sergeant Kuiters was from Wellington police station, not Mudgee. He saw the appellant to obtain confirmation that the appellant adopted the record of interview. Detective Sergeant Kuiters had not been with the appellant and Detective Sergeant Freeman, but had been involved in the investigation in that he had originally searched the caravan annex (he said that he did not look under the cushions on the lounge) and had thereafter interviewed Sally Miles.
23 All this is according to the Crown evidence. Going to the appellant’s evidence on the voir dire and in his unsworn statement, he denied that he had been cautioned at the police station, and said that the record of interview had been fabricated and that he had signed it only under duress. According to the appellant, Detective Sergeant Freeman had hit him on the head about six times, breaking his glasses and making a mark on the side of his head; had said that he (Detective Sergeant Freeman) was a police officer and could do what he liked; had said that the appellant should make a record of interview as they were all tired and wanted to go home; and had then dictated not only the questions but also, after the first few formal questions, the answers in the record of interview. The appellant said that he was told to read and sign the record of interview, that he refused, but that eventually he signed it as Detective Sergeant Freeman said that if he did not he would “start hurting Sally and my son”. Detective Sergeant Kuiters then came into the room and signed the record of interview. The appellant was then allowed to see Sally Miles.
24 The appellant was charged late on 12 November 1990. He was taken before a magistrate on 13 November 1990, and thereafter was in custody. His time in custody was related, in the manner later to be explained, to the letters from Mr Sharp to Mr Thomas. Before describing the part played by the letters at the appellant’s trial, an understanding of some other matters in the trial is desirable.
25 As I have said, Sally Miles gave evidence for the Crown. She gave the evidence that the appellant had said just before the murders that Vince Miles should be bumped off, which she said she did not take the appellant to be saying seriously, and the more general evidence about talk of killing Vince Miles. She gave evidence that the appellant went out about 9.30 pm on 11 November 1990, and that when she saw him next morning he said “It’s done”: she said she thought at the time the appellant was talking about feeding the pet eagle. Later in the day, according to Sally Miles, the appellant stopped their car and picked up a handbag lying in the bushes at the side of the road; he told her it belonged to Joan French, and then burned and buried it. She gave evidence about a magazine clip, to which I will come. Specifically as to the record of interview, Sally Miles gave evidence that when she saw the appellant at Mudgee police station on the night of 12 November 1990 there was no damage to his glasses and he was uninjured, but that the next day the appellant said that Detective Sergeant Freeman had hit him on his face and asked her to tell somebody.
26 In his unsworn statement the appellant blamed Sally Miles for the murders. He said that she told him on the morning of 12 November 1990 that she had taken one of his rifles, gone to the house, and shot Vince Miles and Joan French. He said that she directed his driving to where the handbag was picked up and then she burned and buried it. Later in the day, he said, she told him she had driven the bodies to the tip and set fire to them, and that she was happy that Vince Miles wouldn’t be able to do anything to her again. The statement included that the appellant told Sally Miles that he would do his best to keep her out of gaol “because William, our son, needed her”.
27 The appellant’s counsel at the trial objected to what was described as “the confessional material”, meaning not only the record of interview but also the admissions to Detective Sergeant Freeman shortly before the taking of the record of interview. The bases for the objection as outlined to the trial judge were first, that no caution was administered; secondly, that apart from the early formal questions the record of interview was a fabrication; thirdly, that the appellant only signed the record of interview under duress and because of inducement, having been assaulted by Detective Sergeant Freeman and having been threatened with harm to Sally Miles and his son; and fourthly, that Detective Sergeant Kuiters’ role had involved infringement of the Judges' Rules. The appellant’s counsel submitted to his Honour that there was also a general discretion to exclude the confessional material.
28 The trial judge received evidence on the voir dire from Detective Sergeant Freeman, Constable Murphy, Constable Robinson and Detective Sergeant Kuiters for the Crown, and from the appellant and Mr Sharp for the appellant. He accepted the evidence of the police officers to the effect that the appellant was cautioned on a number of occasions. He observed that the assertion that the record of interview was a fabrication was really a question for the jury, although it was related to whether there had been a “voluntary confession”, but said that for his part he accepted the evidence of the police officers that the answers in the record of interview were the appellant’s answers. As to voluntariness, after referring to the evidence in some detail his Honour said that the appellant’s story was “incredible”, even allowing for the appellant’s situation, and that he accepted the evidence of the police officers in preference to that of the appellant. He found that the Crown had discharged its burden of proof, and “that the record of interview and the oral admissions were made voluntarily and that there was no inducement, threat or assault by the police officers or any person so as to cause him to make those admissions”. He rejected the submission to do with the Judges’ Rules. He declined to exclude the confessional material in the exercise of his discretion, saying that “the question of balancing probative value and prejudice clearly comes down in favour of the Crown in relation to this record of interview”.
29 Mr Sharp gave evidence in the voir dire inquiry that he was in custody at Mudgee police station towards the end of 1991, that Detective Sergeant Freeman spoke to him about the matter with which he was charged, and that there was reference to the appellant. Accordingly to Mr Sharp, he said to Detective Sergeant Freeman, “To me Norman Joyce had no motive for the killing of these people, why would he make a record of interview? He told me that you had beaten him up”; and Detective Sergeant Freeman replied, “Look, that’s bullshit, he was being a smart arse to me. I hit him once. Other than that I never laid a hand on him.”
30 This had been put to Detective Sergeant Freeman in his evidence in the voir dire inquiry. He had agreed that he had spoken to Mr Sharp about the appellant’s involvement in the murders, but had said that Mr Sharp’s response was that he (Mr Sharp) did not want to become involved. He had denied the exchange about beating the appellant up or hitting him.
31 The cross-examination of Mr Sharp in the voir dire inquiry elicited that he had shared a cell with the appellant, which had not been expressly made known in Mr Sharp’s evidence in chief, and had also shared a cell with Mr Thomas. It also elicited that Mr Sharp and Detective Sergeant Freeman had talked about Mr Thomas, including -
“Q. Let me suggest this to you, that what Sgt Freeman is [sic] discussing with you was whether you were able to confirm that Norman Joyce had told Geoffrey Thomas some things about the killing of Vince Miles and Joan French?
A. I told Det Freeman that the statement was not true and I would not be backing it up.
Q. You agree with me, do you not, that the sergeant was talking to you about some statement that Geoffrey Thomas had made concerning Norman Joyce? (No answer)
Q. That is right, is it not?
A. I think I would have to speculate about that because -
Q. Did you read the statement?
A. That Geoffrey Thomas made?
Q. Yes?
A. At the reception prison Geoffrey Thomas told me about the statement.
Q. Let me get back to you talking to Freeman?
A. Yes, I didn’t read it at the police station.
Q. Did Freeman show you the statement?
A. No
Q. Did Freeman tell you that Geoffrey Thomas had made a statement about some things Norman Joyce had said to him?
A. No, I already knew about the statement.
Q. Was there some conversation with Sgt Freeman when he was asking you whether you were able to confirm what Geoffrey Thomas was saying about Norman Joyce?
A. No, I said it wasn’t true and I wouldn’t be backing it up.
Q. But you are agreeing with me that Sgt Freeman was talking to you as to what you could say about Geoffrey Thomas’ allegations?
A. No.
Q. That is right, isn’t it?
A. No.
Q. That is what he was talking about?
A. No, that’s not right, sir.
Q. Haven’t you just said you told Sgt Freeman that what Thomas was saying was not true?
A. Yes.
Q. Well, you were talking to Sgt Freeman, then were you not, about whether or not what Geoffrey Thomas was saying was the truth?
A. He asked me a lot - he asked me questions. I answered those questions. The statement was not really raised. It was only raised by me when I said it wasn’t true and I would not be backing it up.
Q. But you appreciated, did you not, the purpose of him speaking to you was to see whether you could back up what Geoffrey Thomas was saying or not?
A. No. He came to me and talked to me about my case first and then started asking me questions about Norman Joyce, whether he asked me questions about his case or not - “32 Underlying this was that Mr Thomas had given a statement to the police “about some things [the appellant] had said to him”, and Mr Sharp knew about the statement. The cross-examiner was putting to Mr Sharp a reason for Detective Sergeant Freeman speaking to him, namely, to see whether Mr Sharp could confirm what was in the statement. As will appear, because within a short time Mr Thomas gave evidence in the Crown case against the appellant, the statement was as to conversations in which the appellant admitted to Mr Thomas that he had killed Vince Miles and Joan French. Mr Sharp’s answers included that what was in the statement was not true and he would not be “backing it up”.
33 Following the ruling as to the admissibility of the confessional material Detective Sergeant Freeman gave evidence before the jury, including of the admissions shortly before the taking of the record of interview and as to the taking of the record of interview. He was cross-examined at length, in the course of which the appellant’s case that the record of interview was a fabrication, that he had assaulted the appellant, and that the record of interview had resulted from threatened harm to Sally Miles and the appellant’s son was fully put to Detective Sergeant Freeman and was denied. The exchange with Mr Sharp about beating the appellant up or hitting him was put to Detective Sergeant Freeman, and was denied. In re-examination the Crown elicited that Detective Sergeant Freeman had spoken to Mr Sharp as a person who might have assisted the police enquiries in relation to the murders, following an interview with Mr Thomas in Long Bay gaol who “told [Detective Sergeant Freeman] certain things”. That was where it was left.
34 There was then further evidence in the Crown case, including from Constables Robinson and Murphy and Detective Sergeant Kuiters as to the taking of the record of interview, and in due course from Mr Thomas.
35 Mr Thomas gave evidence that he had shared a cell with the appellant on different occasions, sometimes with Mr Sharp also occupying the cell, and that in several conversations the appellant “had explained to me how he had shot the people and the circumstances leading up to why it happened”. Mr Thomas went through the conversations in some detail, recounting that initially the appellant denied his own involvement and blamed Sally Miles and numerous other persons (including Detective Sergeant Freeman) for his predicament but later gave descriptions of what he, the appellant, had done and why he had done it. The descriptions given by the appellant as recalled by Mr Thomas were quite full, and were generally consistent with the events recorded in the record of interview, although Mr Thomas said that “the story had changed on several occasions as to what had happened”. In connection with the different stories, he said that the appellant went “from denial to confession as if he needed a friend to talk to … “, sometimes saying it was Sally Miles’ fault, “she did it”, or somebody else’s fault. The evidence included that on an occasion when Sally Miles visited the appellant in prison he had heard her say to the appellant, “We said we’d do it. Now its done”, and that with reference to a magazine clip Sally Miles had said, “They’ll never find it because I’ve still got it”.
36 The cross-examination of Mr Thomas on this evidence, which I will refer to as the in gaol confession, was to the effect that he had made it up. It was not expressly put to Mr Thomas that his evidence was brought about by contact with Detective Sergeant Freeman, nor was any reason suggested to him for his making up his evidence. The closest the cross-examiner came was that it was put to Mr Thomas that he “may have got a lot of this conversation you have been telling us about” from Toni Swan, a visitor to Mr Thomas whom he understood to be a friend of the appellant and Sally Miles. He did not agree.
37 In re-examination, Mr Thomas was asked about his contact with Detective Sergeant Freeman. He said that after the appellant’s admissions in the conversations he (Mr Thomas) had telephoned Detective Sergeant Freeman and had told him of the conversations, because the conversations had included threats against Detective Sergeant Freeman and his children at the times when Detective Sergeant Freeman was blamed by the appellant for the appellant’s predicament. Mr Thomas said that the statement he gave was given to somebody other than Detective Sergeant Freeman, and that he did not get its contents from any source other than the conversations with the appellant.
38 In further cross-examination it was put to Mr Thomas that he had looked through papers of the appellant in the cell, which he denied.
39 After some relatively formal matters, that was the close of the Crown case. The appellant gave his unsworn statement. Some witnesses in the appellant’s case were called, and then Mr Sharp was called. He gave evidence in chief to the same effect as the evidence he had given on the voir dire, in substance evidence that Detective Sergeant Freeman had acknowledged hitting the appellant at the time of the record of interview.
40 The cross-examination of Mr Sharp was quite lengthy. It began with putting to him that the conversation in which Detective Sergeant Freeman acknowledged hitting the appellant had not occurred, and that he was lying in order to help the appellant. He denied this. Shortly thereafter Mr Sharp was asked to give the whole of the conversation with Detective Sergeant Freeman “that related to Norman Joyce”. His answer included -
“He first of all asked me if I had been sharing a cell with him at Goulburn Gaol and I said ‘No’. He then asked me if he talked to me about his case at all, I said ‘Just a bit. He doesn’t talk about it much.’ He then said ‘What has he told you about it?’ I then said “Bits and pieces. I think he is covering up for someone’ and I told him that Geoffrey Thomas’ statement was not true, I wouldn’t be backing it up. He then said he didn’t need Geoffrey Thomas any more because Sally Miles had been arrested and that she was going Crown witness against him.”
41 It was then put to Mr Sharp that Detective Sergeant Freeman had asked him whether he had heard the appellant saying to Mr Thomas “that he had killed these two people”, which he denied; and that Detective Sergeant Freeman was asking what Mr Sharp was prepared to say about any conversations between the appellant and Mr Thomas, with which he disagreed. It was put to Mr Sharp that his response to Detective Sergeant Freeman had been that he did not want to get involved. He denied this, saying that his response had been that he “wouldn’t be backing it up”.
42 As the cross-examination continued, Mr Sharp agreed that he became aware that Mr Thomas had made a statement to the police “about what he had heard [the appellant] say to them”. It was suggested to him that he himself had heard the appellant tell Mr Thomas about the shooting and killing the two people, that when he became aware of Mr Thomas’ statement to the police he felt himself in a difficult position and did not know which side he should take, and that he “sought to act as a go-between between [the appellant] and Mr Thomas”. Mr Sharp agreed that he was “in a little bit of a position actually … ”, but said that Mr Thomas had told him that Mr Thomas’ statement to the police was untrue. According to Mr Sharp, he had been told by Mr Thomas that the statement had been given to the police because Toni Swan’s children had been threatened by Sally Miles. It was then put to Mr Sharp that, acting as a go-between, he had put Mr Thomas up to saying that the statement was untrue, acting as a go-between in order to help the appellant. Mr Sharp denied this.
43 It seems that matters had evolved in this way. In the evidence before the jury the appellant had not gone beyond Mr Sharp’s account of an exchange about beating the appellant up or hitting him, but had led that evidence as part of his challenge to the confessional material. The Crown had thought it necessary to explain why Detective Sergeant Freeman was speaking to Mr Sharp about the appellant’s case, which he acknowledged he had done. The explanation was left in general terms in the re-examination of Detective Sergeant Freeman, but with the evidence of Mr Sharp it was though necessary to go further. The explanation put to Mr Sharp was, as foreshadowed in the voir dire inquiry, that Detective Sergeant Freeman wanted to know whether Mr Sharp could confirm what was in Mr Thomas’ statement, that is, whether Mr Sharp had heard the same or a similar in gaol confession. But going further and putting the explanation to Mr Sharp brought the response that Mr Sharp had been told by Mr Thomas that the statement was not true. There was a snowball effect. Rather than have Mr Thomas’ evidence under a cloud, the Crown thought it necessary to challenge the response, by putting to Mr Sharp that the response was not correct but rather he had endeavoured to have Mr Thomas go back on the statement. All this occurred without relevant objection from the appellant’s counsel.
44 Mr Sharp did not accept the challenge to the response, and so came the two letters from Mr Sharp to Mr Thomas, one dated 18 July 1991 and the other dated 16 August 1991. They were used in the further cross-examination of Mr Sharp to support the matters which he had denied or only partially accepted, namely that he considered himself in a difficult position and did not know which side to take, that he had put Mr Thomas up to saying that the statement was untrue, and that he had done so as a go-between in that (as Mr Sharp eventually agreed) he was “trying to work out things between them” (meaning the appellant and Mr Thomas). The passages from the letters put to Mr Sharp provided substantial support for those propositions. As will appear, the second of the letters included the Toni Swan explanation for giving a false statement, and it included saying to Mr Thomas, “I think you should drop your statement or do something”, and that Mr Sharp did not want to get involved.
45 The further cross-examination was conducted, with the use of the letters, without relevant objection from counsel for the appellant, save when objection was taken to cross-examination going beyond drawing Mr Sharp’s attention to passages in the letters allegedly inconsistent with his evidence. A direction to the jury was requested, and the direction given with the apparent concurrence of counsel for the appellant was that -
“ … this witness is being cross-examined with a view to seeing whether he has previously made inconsistent statements with his statements in letters or orally different from the evidence he has given in court, or which somehow reflect on that. I will be giving you other directions at a later stage, of course, but it is appropriate at this stage that I should tell you the nature of the purpose of the Crown’s cross-examination and what you can deduce from it. You, of course, can observe the witness and his reactions, and that is all important in your general assessment of the witness and whether you will accept his evidence in whole or in part.”
46 The transcript recorded, in the middle of the cross-examination and at the end of a day, that the Crown would provide counsel for the appellant with a copy of one of the letters provided the contents did not become known to the appellant until the completion of the cross-examination. Counsel for the appellant agreed. The appeal was conducted on the basis that, as this would suggest, the appellant’s legal representatives were unaware of the letters until they were raised in cross-examination.
47 The letters were not tendered at the trial, and were not put before us on the appeal. Their contents are known only from what was put to Mr Sharp in the course of the cross-examination. As the objection earlier mentioned shows, there must have been more in the letters. It was the appellant’s contention that the letters showed or tended to show that Mr Thomas had lied in his evidence of the in gaol confession. The oral evidence of Mr Sharp did include, as already noted, that Mr Thomas had told him that the statement to the police was untrue, but so far as their contents emerged in the course of the cross-examination the letters did not record any such statement. The letters so far as their contents are known are in fact to the contrary.
48 In the letter of 28 July 1991 Mr Sharp made plain that the appellant knew that Mr Thomas had made the statement, and took the position that he (Mr Sharp) did not know the truth and wanted to “sort this out” between the appellant and Mr Thomas. He wrote -49 There was no answer from Mr Thomas to this letter. In the letter of 16 August 1991 Mr Sharp wrote -
“By the way, I am letting Norm read everything I write to you so he does not think I am hiding anything from him. I told him you only made the statement because you did not want kids to be hurt or put at risk and that you don’t want Sally to doublecross Norm and fuck him. That’s right, isn’t it? Please write back and tell me if this is all true. If you have any qualms about it just tell me. Sound reasonable or what?”
“Actually Norm does not have a very high regard for you at the moment, mate. He hates you. Look, he wants me to write a statutory declaration saying that you went Crown against him because Toni Swan told you that Sally was going to hurt the kids. He wants me to help him get Sally out. I told him that I’m not going to do anything until I get a reply from you about the letter I sent on 31/7/91. I also said that I will not doublecross you unless I’m 100 per cent positive that you are lying and trying to get time off. Geoff, I’m 100 per cent positive that you aren’t but I need you to write to me and tell me what the fuck to do. I can’t keep stalling him for ever. I’m in the middle and I don’t like it. I don’t want to get involved. I have got enough on my plate, for goodness sake, but Norm thinks I’m being slack if I know something that could help him and I don’t. I think it is too but I have not heard from you and I won’t do anything until I do. I promise you that, mate.”
50 Mr Sharp was saying that he was positive that Mr Thomas was not lying, that is, that the statement to the police was true. This can not stand with his evidence that Mr Thomas had told him that the statement to the police was untrue. But he was caught in the middle, it seems because the appellant wanted him to give an untrue statutory declaration, and he was not prepared to do so unless Mr Thomas made it true (as it were) by going back on the statement. So later in the letter Mr Sharp said, “I think you should drop your statement or do something. Please let me know what’s going on because I have got [the appellant] on my back all the time.”
51 There was no answer from Mr Thomas to this letter either.
Ground 1: Error in law in not rejecting the record of interview
52 I take the ground of appeal to extend to all the confessional material. I have described the ruling that it was admissible. The appellant accepted in his written submissions on the appeal that “[t]here was nothing remarkable to suggest at that time that the evidence should not have been admitted as the disputes were matters for the jury”.
53 The argument on appeal in the written submissions was that, following the disclosure of the letters from Mr Sharp to Mr Thomas, the admission of the confessional material should have been revisited and there should have been a new ruling that the confessional material was inadmissible. This should have been done, according to the written submissions, because the significance of the letters and the evidence of Mr Sharp and Mr Thomas was such that “it would have been clear that the authenticity of the record of interview would have been thrown into such doubt as to have warranted its exclusion …”. The reasoning in the argument is not self-evident, and the oral submissions did little to explain it. The trial judge was not asked to withdraw the confessional material from the jury, or to revisit it for some other purpose such as discharge of the jury.
54 So far as the explanation went, it did not seem to rest upon the letters, save that it seemed to assume that, if the letters had been known to the appellant’s legal representatives at the time of the voir dire, all the evidence of Mr Thomas and Mr Sharp to which the letters were material would have been taken into account in ruling on the admissibility of the confessional material. That is an unjustified assumption.
55 Even if it be assumed that the greater mass of evidentiary material is taken into account on the admissibility of the confessional material, why would or might it have led to a different ruling? As I understand it, the reasoning was something like this. Mr Sharp’s evidence of the exchange as to beating up the appellant or hitting him, if accepted, would have led to rejection of the confessional material The acceptance of that evidence would have been assisted by evidence supporting fabrication of the record of interview other than that led before the trial judge for the ruling on the voir dire. The later evidence of Mr Thomas and Mr Sharp, including that brought out through the letters, supported fabrication of the record of interview. It did so because if Mr Thomas’ statement was untrue there was a possibility of concoction between the police and Mr Thomas, and “that in itself would throw into doubt whether a genuine record of interview did in fact take place”.
56 Quite apart from the flawed starting-point that Mr Thomas’ statement was untrue - although Mr Sharp had given evidence that Mr Thomas had said it was, as has been seen that was not consistent with the letters - I do not think that the reasoning rises above speculation, and it would not have warranted exclusion of the confessional material.
57 The oral submissions in relation to this ground of appeal seemed to go further. In his evidence before the jury Detective Sergeant Freeman was asked in re-examination, after the cross-examination to the effect that the record of interview was a fabrication, to identify in the record of interview the material of which he had no knowledge otherwise than from the appellant. He did so - for example, that Joan French had been killed with “two .22 shorts” when only one short cartridge had been found, and that Vince Miles had been shot above the right eye when the bullet wound was not known until later forensic examination. The thrust of the submissions appeared to have been that the later evidence showed that Detective Sergeant Freeman did have knowledge of some of this material. But then -58 Submissions were then put apparently intended to make good that Detective Sergeant Freeman’s lack of knowledge did not hold water, eventually degenerating to the assertion that he “would have” known the material from his enquiries but “if he is making up something that it does not seem obvious that he did have this knowledge, but then he is lying for some reason”. Even speculation would be too strong a word for this.
‘DUNFORD J: Your case is that it emerged from other evidence in the trial, not that he might have known about these matters or that he should have known about these matters but that he did know about these matters, is that right?
PAYAYANNI: Didn’t.
DUNFORD J: Did?
PAYAYANNI: Didn’t. There is no specific evidence. The whole point about it, I can’t point to any specific evidence.
DUNFORD J: So why should the Judge have excluded the record of interview in the light of the answers given in re-examination, they were not proved to be false?
PAPAYANNI: What I am putting here is the unfairness of it. In re-examination, when he could not be cross-examined about it - no objection was made, I agree - and didn’t ask to cross-examine again on these matters.
I agree with all that but the unfairness of it, that a number of matters here were put by the detective sergeant to show that he had no knowledge which did not hold water.”
Ground 2: Error in law in misdirecting or failing to direct the jury as to the record of interview59 There seemed to be two aspects to this ground of appeal in the written submissions. It was said that although a direction generally in accordance with McKinney v The Queen (1990) 171 CLR 468 had been given, it was deficient in that (i) the jury had not been told that they must be satisfied beyond reasonable doubt that the confessions in the confessional material were made and were true and (ii) a clear direction was not given as to the way in which the evidence going to fabrication and voluntariness might be treated. As to the second aspect, it was said that there was no reference to what was described in the written submissions as “the most significant matter which brought the reliability of the confessional evidence into question”, meaning it seems the evidence of Mr Thomas and Mr Sharp to be taken into account as described in relation to ground of appeal 1.
60 In the oral submissions it was said that the jury should have been told that if they believed there had been any assault or threats “that question then would be relevant to the reliability and the truth of the confession”; at another point, that there should have been a direction “in relation to the alleged threats and the alleged assaults and so on in relation to the reliability and the truth or correctness of it”. It was said that this was a case “where you have the question of concoction involved”.
61 The directions in relation to the confessional material extended over many pages, and the jury can have been in no doubt about the appellant’s contentions that he had been assaulted and threatened and that the record of interview was a fabrication. The jury had the unsworn statement in typed form, and the trial judge read to them the appellant’s account of events at Mudgee police station.
62 His Honour when later referring to the evidence of Mr Thomas warned of the unreliability of the evidence of prison informants, and at that time referred specifically to the evidence of Mr Sharp. He read out Mr Sharp’s evidence to the effect that Detective Sergeant Freeman admitted hitting the appellant, and after referring to another element in the evidence unhelpful to the appellant said -
“In any event you heard Mr Sharp cross-examined at some length about some letters he had previously written. The Crown asks you to regard him as a most unreliable witness. It is a matter for you,. The accused [counsel for the appellant] says, well, at the least, he casts some doubts on Mr Thomas’ evidence.”
63 I do not accept that, as I understand to have been the underlying argument, the jury should have been invited to embark on the reasoning described in relation to ground of appeal 1 as relevant to the confessional material. Not only would that have been inviting the jury to abandon legitimate reasoning, it may well have emphasised to the potential detriment of the appellant the unreliability of Mr Sharp and the weight which could be attached to the in gaol confession. I do not think there was any error in the directions concerning the evidence going to the confessional material.
64 The appellant supported the submission that the jury should have been told that they must be satisfied beyond reasonable doubt that the confessions in the confessional material were made and were true by reference to the judgment of Brennan J in McKinney v The Queen at 480. The support is wanting: on the contrary, his Honour accepted at 481 that there is no universal rule that, in every case where uncorroborated police evidence of a confession was tendered and challenged, a warning was necessary of the danger of convicting on that evidence. While the majority in that case favoured a rule of practice that the jury should be warned of convicting on such evidence alone, that also does not support the submission presently under consideration.
65 In the present case the confessional evidence was no doubt an important integer in the Crown case, but there was much other evidence of guilt. There was a reasonably strong case against the appellant apart from the confessional material. Apart from the McKinney direction, the jury was fully directed as to the need to be satisfied on the appellant’s guilt beyond reasonable doubt. As I have said, the contest as to fabrication and voluntariness of the confessional material would have been clear to the jury. I do not think a particular direction was required that it was necessary to be satisfied beyond reasonable doubt that the confessions had been made and were true.
66 Two other matters were referred to in the written submissions in relation to ground of appeal 2, although in truth not falling within it.
67 The first was that it was said that the trial judge had misdirected the jury in saying that no one other than Mr Thomas had mentioned that the appellant had walked home after disposing of the bodies at the tip. The direction was as to something which might be thought to support the evidence of the in gaol confession. In fact the record of interview included that the appellant had walked home, and the connection with ground of appeal 2 seems to have been that, in the appellant’s eyes, the congruity supported fabrication on the reasoning earlier described. The trial judge was incorrect, but the lack of significance of the error is indicated by the absence of any request for a correction. Unless someone was assisting the appellant, he had to walk home. The jury was firmly directed as to the care with which they were to consider the evidence of Mr Thomas, as to the unreliability of prison informants, and as the danger of convicting on Mr Thomas’ evidence without substantial confirmation by independent evidence. I am unable to see that the error occasioned a miscarriage of justice.
68 Secondly, according to the record of interview the appellant fired two .22 calibre short cartridges at Joan French but only one short cartridge case was found. This in some way was said to cast doubt on the authenticity of the record of interview. I think it was suggested that, faced with two bullet holes in the fly screen but only one cartridge case, in the fabrication of the record of interview two shots were included, and the police were caught out when they could not later find the other cartridge case. In fact the evidence was that the presence of two holes in the fly screen was established after the record of interview. I am unable to see anything of assistance to the appellant in the discrepancy between the two holes and the one short cartridge case but, whatever the significance, it was a matter for the jury.69 In R v Clough (1992) 64 A Crim R 451 there was consideration of the reliability of the evidence of prison informants, with particular reference to the judgments in Pollitt v The Queen (1992) 174 CLR 558. Hunt CJ at CL referred to the warnings which should be given, which he said had to be moulded to fit the circumstances of the particular case and not follow any set formula, and added (at 462) -
Ground 3: Error in law in misdirecting or failing to direct the jury as to the evidence of Geoffrey Thomas
“The judge must as well instruct the jury to consider any specific matters which could reasonably be regarded as undermining the credibility of the witness.
On the other hand, the judge should also draw to the jury’s attention any matters which could reasonably be regarded as confirming the evidence of the prisoner informant. Finally, the judge should direct the jury that, notwithstanding the absence of corroboration of the fact that the confession was made, they may nevertheless convict the accused upon the evidence of the prisoner informant if, after taking all of those warnings into account, they remain satisfied by that evidence beyond reasonable doubt of the guilt of the accused.”
70 The appellant founded the ground of appeal on the first sentence in this passage. It must be put in context. In Pollitt v the Queen there was consideration of directions in cases of prisoner informers because the normal direction as to corroboration, where there would almost certainly be other evidence against the accused providing corroboration, could give undue weight to a prison informers’ evidence: as was said by Dawson and Gaudron JJ (at 601), with whose reasons Mason CJ agreed, it might “lend a semblance of reliability to what is essentially unreliable evidence”. Two members of the Court referred to drawing the jury’s attention to matters which might make the evidence of the prison informer unreliable (Toohey J at 606; McHugh J at 617), but not as an absolute requirement (“ordinarily” at 606; “where appropriate” at 617). Deane J said (at 589) that it would have been “preferable” to direct the jury as to certain reasons why the prison informer’s evidence in that case was “potentially unreliable”. All members of the Court, however, considered that in that case the potential unreliability of the prison informer’s evidence had been sufficiently conveyed to the jury although that had not been done.
71 Three considerations are evident in Pollitt v The Queen. First, the instruction to consider any specific matters which could reasonably be regarded as undermining the credibility of the witness need not always be given: in some circumstances it can be omitted. Secondly, consistently with the reasoning underlying the instruction, one circumstances in which it might be inappropriate to give it is where the effect might be to give undue weight to the prison informer’s evidence by otherwise attributing to it a semblance of reliability. Thirdly, the case illustrates that important to whether there was error in failing to give the instruction is that the accused’s counsel did not seek any relevant further directions: see Deane J at 589, McHugh J at 617. The accused’s counsel, as Deane J says, would have been “conscious of the conduct of the trial and the content of counsels’ closing addresses”, and counsel would have been able to make an informed assessment of the effect of giving the instruction on justice to the accused.
72 The trial judge referred to Mr Thomas’ evidence that, when they were sharing a cell, the appellant confided in him, and continued -73 His Honour then went through a number of matters falling within the last paragraph just set out, saying often that it was for the jury to reach its own conclusion. One of the matters was the appellant’s walking home already referred to. He concluded this part of the summing up -
“Before I take you to that evidence let me say to you that the experience in these courts has demonstrated that evidence from prison informants is potentially unreliable. You may think that is a fairly obvious statement. There are many reasons. First of all, the fact that he is in prison makes the witness a person who is likely to be of bad character; secondly, a confession in prison is easily concocted and can only be answered by a denial to benefit the person who is giving the evidence or, at the least, there are all sorts of pressures that are placed upon any person in prison in the course of the prison environment.
So that it is necessary to scrutinise, to look most carefully at the evidence of prisoner informants. Indeed, it is dangerous to convict on that evidence without substantial confirmation provided by independent evidence that the confession was in fact made, and generally, in any event, you cannot attach too much importance to this type of evidence.
But in relation to Mr Thomas’ evidence the Crown says, look at it, look at the detail, look at the reason he sets out for coming forward and assess the witness in the light of those circumstances and in the light of the manner in which he gave his evidence.”
“Well, it may seem to you that you can place no reliance whatsoever on Mr Thomas’s evidence. It may be that you feel there is quite a deal in his evidence that rings true. As I say, I’m not going to go through it all because you have a full transcript of that evidence. Please bear in mind the warnings I have given you about prison informants and please bear in mind also the submissions made to you by [counsel for the appellant].”
74 The appellant submitted that, while the trial judge had instructed the jury as to matters which might confirm the reliability of Mr Thomas, he did not instruct the jury as to specific matters which might undermine his credibility. The general instruction to bear in mind the submissions made by the appellant’s counsel, it was said, was inadequate, and the summing up in this respect was one sided “and did not give a balanced view of the evidence and matters which otherwise should have been clearly set out in respect of this witness”.
75 The address to the jury by the appellant’s counsel was not before us, and we do not know what specific matters, if any, were suggested as undermining the credibility of Mr Thomas. The appellant principally relied in the appeal, as I understand it, on what was said to have emerged from the cross-examination of Mr Sharp, said to have been that Mr Thomas had lied in his evidence of the in gaol confession. There was particular confusion in the submissions as to this, including overlap with ground of appeal 4.
76 Although Mr Sharp had given evidence that Mr Thomas had told him that the statement to the police was not true, the letters are to the contrary. The appellant suggested that the absence of a reply to the letters meant that Mr Thomas admitted that the statement was untrue, but I do not think the terms of the letters or the circumstances in which they were written could possibly permit that conclusion. In the end, therefore, the submission had to be that, despite its manifest unacceptability, the trial judge should have directed the jury that they could take account of the evidence of Mr Sharp, that Mr Thomas had told him that the statement to the police was untrue, as a specific matter undermining the credibility of Mr Thomas.
77 As has been seen, his Honour did in general terms draw attention to Mr Sharp’s evidence. The passage bears repeating, and must be seen together with the clear warning that Mr Thomas’ evidence had to be looked at most carefully and that it was dangerous to convict on that evidence without substantial confirmation by independent evidence -
“In any event you heard Mr Sharp cross-examined at length about some letters he had previously written. The Crown asks you to regard him as a most unreliable witness. It is a matter for you. The accused, [counsel for the appellant], says, well, at the least, he casts some doubt on Mr Thomas’ evidence”.
78 Counsel for the appellant does not seem to have regarded the part of the evidence of Mr Sharp presently in question as a matter undermining the credibility of Mr Thomas as to which a specific direction was appropriate. He seems to have been reticent in relying on Mr Sharp’s evidence to cast doubt on Mr Thomas’ evidence, and for good reason. It is far from clear that, taken with the cross-examination as a whole, the evidence could truly be described as evidence undermining the credibility of Mr Thomas, but if it could there was good reason for the course taken by counsel for the appellant. Specific instruction as now suggested may well have contributed to the jury concluding that Mr Sharp’s evidence that Mr Thomas had told him that the statement to the police was untrue was not acceptable, and that the reliability of Mr Thomas’ evidence was enhanced; it may have caused the jury to give thought to the appellant’s role in Mr Sharp’s endeavours to have Mr Thomas go back on the statement. It is to be noted that the appellant’s counsel did not ask for a further direction. I do not think there was error, but if there was it did not bring about a miscarriage of justice in this respect.
79 In his oral submissions the appellant put forward a number of other matters ostensibly as specific matters which could have undermined the credibility of Mr Thomas. He took passages in Mr Thomas’ evidence and suggested that the jury should have been given particular directions as to that evidence.
80 Some of the matters were relatively precise. Mr Thomas gave evidence that the appellant had said he knew when to go to the house because Sally Miles had Vince Miles’ work roster on the refrigerator. It was said that the jury should have been told that there was no other evidence of a work roster on the refrigerator. There was no other evidence of that, although Sally Miles had given evidence that she kept Vince Miles’ work roster on the sideboard so she would know when to pick up Jessica and the record of interview had included that the appellant “got a roster programme of what shift his [sic] on”. MrThomas gave evidence that on some occasions Mr Sharp was present when the appellant was telling him what the appellant had done. It was said that the jury should have been told that Mr Sharp had denied being present on such an occasion, as he had. It was said that the jury should have been told that Sally Miles had not given evidence of her saying to the appellant, “We said we’d do it. Now its done.” Mr Thomas gave evidence of Sally Miles joking to the appellant about the killings (the detail does not matter for present purposes), and it was said that the jury should have been told that Sally Miles had not given evidence of that either.
81 Other of the matters were of a different kind. For example, Mr Thomas had given evidence that the appellant had complained that his shoulder hurt him when he lifted weights in prison, and it was said that the jury should have been reminded of this evidence. As I understand it, this was thought to count against the appellant’s commission of the offences because of the lifting or dragging of the bodies, although so far as appears the point had not been part of the defence case at the trial.
82 Other of the matters again were in truth manifestations of or elements of other grounds of appeal. It was said, that the jury should have been told that the magazine to which (according to Mr Thomas) Sally Miles had referred was “of no relevance to the crime itself” (for reasons later given, I do not think it was of no relevance). It was said that Mr Thomas’ evidence of the in gaol confession was similar to the confession in the record of interview, and that the jury should have been told to consider whether Mr Thomas had had access to the record of interview in the cell or had been shown it or told of its contents. It was said that the jury should have been told to consider whether Mr Thomas had mixed up threats made by Sally Miles against Toni Swan’s children with threats made by the appellant against Detective Sergeant Freeman’s children. Perhaps the ultimate instances were that, because Mr Thomas gave evidence that he had met Detective Sergeant Freeman, the jury should have been told to consider why the police wanted to have evidence of an in gaol confession, and should have been invited to conclude that if Mr Thomas had lied then the record of interview was a fabrication.
83 Some of these matters bordered on the fanciful. It must have been clear to the jury that the defence case was that Mr Thomas had made up his evidence of the in gaol confession, and that his contact with Detective Sergeant Freeman had brought a motive for him to do so (although what it was was not brought out) and the information with which to do so. To the extent to which, in the matters put forward by the appellant on the appeal, there were aspects of the evidence for the jury to take into account when reaching their verdict, it was not necessary for the trial judge to give judicial authority to every evidentiary point or argument available to the appellant: R v Clarke (1993) 71 A Crim R 58 at 72, a case of identification evidence but the principle is the same. Still less should the judge lay before the jury hypotheses for which there is no evidentiary foundation or acceptable basis in reasoning. The purpose is objectively to draw attention to matters which warrant the jury’s consideration of which they might otherwise be unaware. A line must be drawn, and as well the judge must take account of the circumstances of the particular case when deciding how and to what extent to go into matters possibly relevant to the reliability of a prison informer’s evidence.
84 The appellant’s then counsel did not ask for directions of the kind now said to have been necessary. As with the matter on which I understand the appellant principally relies, there was good reason not specifically to instruct the jury as to the other matters now put forward. To identify those matters as undermining Mr Thomas’ credibility when they did not truly do so or were of minor or far-fetched significance would be likely to be against the appellant’s interests. Clear directions that the evidence of prison informers is unreliable, that it must be scrutinised carefully, that “in any event, you cannot attach too much importance to this kind of evidence”, and that in the end the jury might think it could place no reliance whatsoever on Mr Thomas’ evidence, were in the circumstances of this case an appropriate course. Having considered all the matters now in question put forward by the appellant on the appeal, I do not think there was error in failing to give the directions now suggested as necessary as to the evidence of Mr Thomas.
Ground 4: Failure to disclose the letters resulting in a miscarriage of justice
85 In the written submissions it was said that in failing to inform the appellant’s legal representatives of the letters and provide copies at an earlier time the Crown had acted unfairly, and that its unfairness had “so affected or permeated the trial, as to result in a denial of the right to a fair trial: R v Whitehorn (1983) 152 CLR 656 at 664 per Deane J”. It was asserted in those submissions, without real explanation, that “the manner in which these letters were introduced and used, seriously prejudiced the Defence and otherwise prevented their legitimate forensic or other use by the Defence, whether in the cross-examination of Thomas or otherwise”.
86 The nature of the argument in the oral submissions appears from what has been said in relation to ground of appeal 3. It was founded on the proposition that Mr Sharp said in the letters that Mr Thomas had told him that Mr Thomas had lied in his statement to the police. So it was said in the oral submissions that the letters would have been used to put to Mr Thomas that he had told this to Mr Sharp, in particular to put to Mr Thomas that he had not replied to the letters because they were in that respect correct. As has been seen, however, the fundamental proposition is incorrect, and the letters were to the contrary. Any attempt to use the letters in the manner suggested would very likely have highlighted for the jury that, possibly with the participation of the appellant, it was suggested to Mr Thomas that he go back on the statement and give a spurious reason for having lied to the police.
87 Mr Sharp gave evidence, even before the letters arose, that Mr Thomas had told him that the statement to the police was untrue. It is likely that the appellant’s then legal representatives had been told of this in conferring with Mr Sharpe - his evidence included that he had always known that Mr Thomas was lying. If so, they could have cross-examined Mr Thomas as to that fact, but they could not have cross-examined him on the letters because they were not his letters.
88 I have described the way in which the letters came to be used in the trial by the Crown. I do not think that the Crown was obliged to disclose the letters to the appellant’s legal representatives at an earlier time, or that in the circumstances there was unfairness. I do not think that there was either departure from the standards referred to in R v Whitehorn or denial of a fair trial (see R v Heuston (1996) 90 A Crim R 223 at 226).
89 It is not without relevance that the appellant’s then counsel did not relevantly object to the Crown’s late disclosure, nor did he make an application for the recall of Mr Thomas, the discharge of the jury, or otherwise on the ground of prejudicial unfairness. Indeed, the appellant’s counsel seemed to think that the letters were not helpful to his case, because he sought to limit their disclosure to and use before the jury. Counsel’s perception at the time appears to have been otherwise than as the appellant’s present argument requires, and in my opinion was correct.
Ground 5: Error in law in failing to direct the jury as to the significance of Mr Sharp’s evidence
90 In the ground of appeal the particular significance was said to have been to the evidence of Detective Sergeant Freeman, Mr Thomas and Sally Miles. In the written submissions it was said that the jury should have been directed that if they were satisfied that Mr Thomas had lied as to the in gaol confession, or had reasonable doubt as to the making of the confession, “this would affect the reliability of the fact that the Record of Interview was made by the Appellant”. In the explanation then given the reasoning appeared to be similar to that earlier described in relation to ground of appeal 1, that if Mr Thomas had lied he must have been put up to giving false evidence of an in gaol confession by the police with the police providing information consistent with the record of interview, and that if this were done in order to concoct an in gaol confession the record of interview itself was likely to have been a concoction. So it was said that “[a] direction as to possible concoction was essential to the Appellant’s defence”.
91 The oral submissions really rested on the earlier submissions, although specifically linking the ground of appeal to the letters. The argument was said to come down to the argument that “if the letters had been available to the defence, it might have suggested the record of interview had been concocted and Thomas’ testimony had also been concocted”. The Crown’s response to the written submissions was that a direction as suggested would have been erroneous because it would have invited speculation about matters without evidentiary basis. For reasons which by now will be apparent, I do not think that there was relevant deficiency in the trial judge’s directions. Again, it is not without relevance that no direction as now suggested was sought at the trial.
Ground 7: Error in law in failing to direct that each of these persons could not corroborate the others.
Ground 6: Error in law in failing to direct the jury adequately or properly as to corroboration of Detective Sergeant Freeman, Geoffrey Thomas and Sally Miles.
92 The appellant’s submissions were more confined than the statements of these grounds suggested. A direction as to corroboration had been requested, and the submissions were founded on the failure to give the direction requested.
93 When coming to the evidence of Sally Miles the trial judge said -
“Let me pass to the next hotly disputed evidence. That is the evidence of Sally Miles. There is evidence on which you could find that Sally Miles was an accomplice in relation to the crime with which the accused is charged. Indeed you will recall [counsel for the appellant] has submitted to you that she either did it, that is committed the murders, or she knows who did, so she is more than an accomplice, she is the actual principal criminal in the commission of the crimes, or she knows who is.
Certainly on the Crown case Sally Miles was originally charged with being an accessory to the crimes, and we know she has been dealt with in relation to concealing knowledge of the commission of the murders. We also know that a number of Crown witnesses - I have already referred to them: Mr and Mrs McVee, Mr and Mrs Lashm - have testified to her saying that she wanted Vince Miles killed; and she herself said in her evidence that she told a number of people that “I wanted to bump him off”, but she also added that “I did not mean it”.
In any event, you may certainly conclude that she was an accomplice - just to what extent may not be clear to you - and if you do conclude that she is an accomplice, then it is my duty to warn you, if warning be necessary - and you may think it hardly is - that it is dangerous to act on her uncorroborated evidence. It would be dangerous to convict on Sally Miles’ evidence alone. And I say that for obvious reasons. Sally Miles herself has admitted that she has told lies; she said she told lies to protect Norman Joyce. She has been criticised - you may think quite justly - by [counsel for the appellant] in all sorts of ways, suggesting she is not being frank. There is a lot more she could tell about this than she has said before you - before anyone else. You may think, as I say, that she knows a lot more about this than she says. So it is not idle to say it would be dangerous to act on her uncorroborated evidence.
However, in this case, the Crown does rely on a great deal of material in addition to Sally Miles’ evidence, material which could constitute corroboration. Corroboration, in law, is evidence not only that the crime was committed but that the accused committed the crime.”
94 His Honour went on to refer to evidence given by Sally Miles. He did not specifically direct the jury as to the material which could constitute corroboration of her evidence. When he came to the evidence of Mr Thomas, the trial judge gave the warning as to the evidence of prison informants earlier set out, including that it was dangerous to convict on such evidence “without substantial confirmation provided by independent evidence that the confession was in fact made”.
95 At the conclusion of the summing-up, in the absence of the jury counsel for the appellant implicitly requested a direction, and there was discussion in the terms -96 When the jury returned a further direction was given -
“BLACK: I respectfully submit the evidence of Thomas cannot corroborate an accomplice.
HIS HONOUR: That is just what Pollitt did not say. Pollitt said just the opposite. Indeed in Pollitt they were - they attacked Toohey JA and Gaudron JA, I think it was, attacked Hester and Kilburn and all these other cases where it has been laid down that one accomplice cannot corroborate another but they pointed out that rule was only because of the tendency to get together. There is no question here of Sally Miles getting together with Thomas, is there.
BLACK: According to him, they spoke together.
HIS HONOUR: Yes, but that is not because they were - there is no rule of law.
BLACK: No.
HIS HONOUR: There is no rule of law.
BLACK: No, but I am saying -
HIS HONOUR: Anyway you are protected. You want me to direct them that he could not corroborate the accomplice so that the accomplice could not corroborate him. Is that what you are putting?
BLACK: Yes.
HIS HONOUR: sally Miles could not corroborate Thomas in relation to the making of the confession to Thomas?
BLACK: That is right.
HIS HONOUR: Not the other way round.
BLACK: I just make my point. I say in relation to Thomas, as the Crown earlier conceded, there is no corroboration at all of a confession being made.
HIS HONOUR: Well, that is a question of corroboration. It is, as Pollitt points out, not a particularly good word for some of these things, but I think the best thing to do is to say you are protected. If I am wrong, I am wrong.”
“The other thing is when I was talking to you about accomplices, and that is Sally Miles, I omitted to tell you that corroboration has to be independent evidence; that is if it is to be true corroboration it has to be independent evidence which confirms or tends to confirm that the crime was not only committed but the accused committed it. And that is why I mention [sic] a number of possible areas of corroboration. I do not propose to go over those.”
97 The appellant’s written submissions began that the further direction given was not as requested, the direction as requested being described as a direction “that Sally Miles could not corroborate Thomas or vice versa as they had got together.” In the absence of the direction, it was then said, the jury was left to range at will, and “the facts relied upon as corroboration” should have been particularised.
98 There were difficulties in the way these submissions were put. First, the direction requested was perhaps unclear, but seemed to be a direction that Sally Miles could not corroborate Mr Thomas in relation to the in gaol confession. The concern of counsel for the appellant was to establish that “there was no corroboration at all for a confession being made”, meaning the in gaol confession, although that Sally Miles could not be corroborated by Mr Thomas would follow if the reason for the direction was the position as to Sally Miles corroborating Mr Thomas or vice versa. Particularising facts capable of being corroboration was a different matter. It assumed that there were corroborative facts other than in the evidence of Sally Miles or Mr Thomas. No direction was requested as to the facts which could corroborate Sally Miles, and as appears from the discussion earlier set out counsel for the appellant considered that there were no facts corroborative of Mr Thomas.
99 In the oral submissions a rather different position was taken. It was suggested to the appellant’s counsel on the appeal that an enumeration of all the matters the Crown relied on for corroboration would have been devastating for the appellant. He did not agree. He then vacillated between saying there was a lot of material capable of being corroboration of Sally Miles and that there was no such material, while remaining firm that there was no material capable of being corroboration of Mr Thomas. He seemed to end with the position that the jury should have been told that there was no corroboration of either.
100 So far as the grounds of appeal involved failure to direct the jury that Sally Thomas could not corroborate Mr Thomas, or vice versa, I do not think there was error.
101 In Pollitt v The Queen Dawson and Gaudron JJ said (at 600, footnotes omitted) -
“The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimising their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. It is for this reason that a direction is given that accomplices cannot corroborate each other. Thus, if there is no possibility of joint fabrication, as, for example, where the witness was an accomplice in other offences and is called to give similar fact evidence, a direction to this effect is not required. Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration. But there was no basis for any suggestion of joint fabrication in this case and, thus, there was no need for a direction that Denning and Jones could not corroborate each other.”
The question is whether there is the possibility of joint fabrication. Sally Miles and Mr Thomas were not accomplices with each other, although (as was made plain) Sally Miles could have been regarded as an accomplice of the appellant. Nor was there evidence on which it could reasonably have been thought that Sally Miles and Mr Thomas had conspired together to give a false account, and we were not taken in the appeal to any evidence in support of the asserted getting together. Mr Thomas did give evidence of overhearing conversations between the appellant and Sally Miles when they were together on prison visits, but they would hardly have been the occasions for Sally Miles and Mr Thomas to conspire against the appellant, and all that Mr Thomas said was that he had “spoken to Sally on a few occasions”. The trial judge was correct in declining to give the direction requested.
102 So far as the grounds of appeal involved failure to direct the jury as to the facts which could corroborate Sally Miles, as I have noted no such direction was requested. The appellant in the appeal ended up with the position that there were no such facts. If correct, that was destructive of this as part of the ground of appeal.
103 There was available corroboration of some parts of Sally Miles’ evidence, quite apart from any corroboration available from the evidence of Mr Thomas and from the confessional material. She gave evidence of the appellant speaking of bumping off Vince Miles, and similar expressions, which was corroborated by the Lashams and the McVees. The McVees corroborated her evidence in relation to the magazine. This would have been apparent to the jury. There was no direct corroboration of other parts of Sally Miles’ evidence: that the appellant left the caravan on the night of 11 November 1990, that he said “It’s done” the next morning, and as to the burning and burying of the handbag. But if the confessional material and the evidence of the in gaol confession were accepted by the jury, they provided compelling corroboration of her evidence in these respects, in that they were admissions of guilt consistent with it. Again, this would have been apparent to the jury.
104 It is understandable that the appellant’s then counsel would not have requested that the evidence capable of corroborating Sally Miles be detailed by the trial judge in the summing-up, but would have been content with the initial general reference to the Crown relying on a great deal of material which could constitute corroboration and, in the further direction apparently thought appropriate by the trial judge, with the general reference to a number of possible areas of corroboration. It would indeed have been devastating to the appellant’s case if a particularisation had been given as now suggested. I do not think it was called for, and in any event I do not think that there was a miscarriage of justice in failure to provide it.
Ground 8: Error in law in a direction about murder “by either the accused or by Sally Miles or by both of them in concert”
105 Early in the summing-up the trial judge went through a number of matters as to which he said there was no dispute between the Crown and the appellant. They included that Vince Miles and Joan French had been shot with a .22 calibre weapon, that their bodies had been taken to the tip in Vince Miles’ utility, and that petrol had been poured over the utility and it had been set on fire. A number of further matters were stated.
106 His Honour then said -107 At a break in the summing-up his Honour invited counsels’ suggestions, and the transcript records (perhaps not entirely accurately) -
“I think those are the main matters that you may find useful to consider when you are considering these questions of fact that you have to consider because that would seem to indicate - it is a matter for you of course - that the two persons were murdered by either the accused or by Sally Miles or by both of them in concert. Because they were murdered by the rifle which was the accused’s rifle, which was later found in the annex under the cushions.
Indeed, [counsel for the appellant], does not shrink from that, and as I recall his address to you, he said that the accused, his client, did not do it. Sally Miles is lying; she either did it or knows who did.”
“BLACK: I think your Honour said that I accepted that it might have been Sally and the accused that carried it out.
HIS HONOUR: If I said that I did not mean to.
BLACK: No, I am sure you did not because that would be no help to ---
HIS HONOUR: I directly said that. You accepted - I did say you accepted something. Perhaps I did not make it as clear as I could. I do not want to have any misunderstanding with the jury. If it was not as clear to you as it might have been, then it might not have been to the jury.
BLACK: I have a concern about that.
HIS HONOUR: Page 266, did not accept that Sally Miles and the accused could have done it, did do it.
BLACK: My suggestion to Sally -
HIS HONOUR: Is there any particular way you would like me to put it?
BLACK; The way I have been attempting to express it is that either she did it or she did it with someone else, or she knows who did it. Now, technically, if she did it and he thereafter helped, that would not make him guilty of murder.
HIS HONOUR: No, I did not put it that way. I put it that her helping him would not be of assistance to him.
BLACK: It might be worth checking in due course.”
108 The reference to p 266 was to the cross-examination of Sally Miles, in which counsel for the appellant said that he would be suggesting to her that she told the appellant that she had killed Vince Miles and Joan French and “that what you told him was true, or that you know who did, and it was not him”.
109 When the jury returned his Honour said -
“If I may just say something in relation to what I was talking to you about before the adjournment. First of all I said, very inelegantly, words to the effect that because the two persons were murdered by the rifle, which was the accused’s rifle found in the annex, that would seem to indicate that the two persons were murdered by either the accused or by Sally Miles or by both of them in concert. Well, I do not wish to alter that. That is only a suggestion.
However, I went on to say that Mr Black, counsel for the accused, does not shrink from that and I said, “As I recall his address to you he said that the accused, his client, did not do it. Sally Miles is lying. She either did it or knows who did.”
Just in case there is any confusion about the matter, Mr Black certainly does not put as his case that the deceased were murdered either by the accused or by Sally Miles or by both of them in concert. What he puts, as I said to you, is that his client did not do it. Sally Miles is lying. She either did it or knows who did. And all I was trying to say, as I say inelegantly, was he does not shrink from the fact that the two deceased persons were murdered by the rifle which was found in the annex.”
110 The appellant submitted that there was misdirection, in that the jury was left thinking that the appellant would be guilty of the murders even if he did not commit them. According to the submission, the trial judge’s reference to the two persons being murdered “by either the accused or by Sally Miles or by both of them in concert” amounted to a direction that the appellant was guilty if Sally Miles committed the murders, and the error was repeated rather than corrected in the further direction.
111 I do not think this fairly came from the trial judge’s initial reference to the two persons being murdered “by either the accused or by Sally Miles or by both of them in concert”. At that point in the summing-up his Honour was dealing with what he suggested was common ground, while making it plain that it was a matter for the jury. The facts did point to murder by one or the other of the appellant and Sally Miles or by both of them in concert. But this was not a direction as to the appellant’s guilt - it was for the jury to determine, out of those alternatives, whether or not the first had been established beyond reasonable doubt. His Honour had earlier clearly stated that the jury had to be satisfied beyond reasonable doubt that the Crown had established, as to each killing, “that the accused did the act which cause the death and that the act was done with intention to kill the person concerned”, and that “If in fact it was the accused who fired the gun, then it does not matter whether he was organised by Sally Miles or whether he was assisted by Sally Miles, encouraged by her or anything else”. And he had said, after referring to some evidence that the appellant had spoken of getting someone called Copper Top to “do something with” Vince Miles -
“Well, Copper Top has been mentioned a number of times but no one has produced Copper Top. I do not know whether you may think that Copper Top has got very much to do with it. It does not really matter if Copper Top assisted in some way or did not assist. The question for you is whether the accused is guilty, and it does not really assist him in answering the charge if you accept or believe or suspect that he might have got some assistance, either from Copper Top or from Sally Miles, or from anyone in carrying out the crime if, in fact, he committed the crime himself.”
112 The concern of counsel for the appellant, when responding to his Honour’s invitation, was not that there had been a misdirection in the words now complained of. It was that the appellant’s position had not been correctly put, in that it had been said that he accepted that “it might have been Sally and the accused that carried it out”. His Honour had not said that, but had correctly recounted the appellant’s position that Sally Miles “either did it or knows who did”. In any event, the appellant’s position was correctly stated after the jury returned.
113 The question then clearly restated for the jury was, on the one hand, whether the appellant “did it”, and, on the other hand, whether Sally Miles “either did it or knows who did”. At the conclusion of the summing-up the trial judge again posed the question, saying that the Crown case was that the appellant “did it” and, while emphasising that the appellant did not have to prove it, that the defence case was that Sally Miles did it or knew who did. In the summing-up as a whole I do not think the jury could have been left with the impression that the appellant was guilty if Sally Miles committed the murders.
Ground 9: Error in law in reversing the onus of proof as to blood and clothing
114 There was evidence that human blood was found on the joggers worn by the appellant when he was taken to Mudgee police station. There was also evidence that the blood group could not be established, so it was not known whether the blood could have been that of the appellant, Vince Miles, Joan French, or anyone else. No objection was taken to the leading of this evidence, all in the Crown case. In going through the matters as to which he said there was no dispute between the Crown and the appellant the trial judge referred to this evidence, and said (referring to the joggers), “No dispute they are his and that the attempts to group the blood were unsuccessful so that no one could identify it as being the accused’s blood”.
115 As I understand it, the argument was that this reversed the onus of proof because it was implicit that it was for the appellant to prove that the blood was his blood, and that in the absence of such proof the jury might more readily have taken it to have been the blood of Vince Miles or Joan French.
116 However, the evidence had been led without objection, and it was appropriate to remind the jury that the blood group, and so the source of the blood, could not be identified. The trial judge could have done so by saying that the blood could not be identified as that of Vince Miles or Joan French. He did so by saying that the blood could not be identified as that of the appellant. Whoever was referred to, the message was the same: the blood led nowhere. In my view it is reading too much into a few words to find an onus cast upon the appellant, and the absence of complaint from the appellant’s then counsel to my mind supports that there was no cause for concern and no miscarriage of justice.
117 The trial judge also said -
“And it is also undisputed that there was no blood on the shirt or trousers of the accused when he was examined by Sergeant Hobson on the Monday when he was interviewed by the police. You will recall that Detective Sergeant Freeman said there was a spot on the shirt which he thought was blood but Sergeant Hobson dismissed that, and you will remember [counsel for the appellant] referred to that, but may I remind you that there is also no evidence that the clothes, that is the shirt and trousers that the accused was wearing on the Monday, was the same clothing that he had on on the previous day, Sunday. There is no evidence that any blood-stained clothing was found.
You remember there was police evidence of a search but I think it is fair to the accused to say that there would have been opportunity for him to have disposed of that clothing if it had some bloodstains on it. Of course, the police did not come to the caravan area until the Monday afternoon approximately.”
118 Sergeant Hobson was a police forensic investigator. The argument again was that this reversed the onus of proof because, as I understand it, it suggested that it was for the appellant to prove that he was wearing the same clothes as he had worn the previous day and that he had not disposed of bloodstained clothing. It was said that Sally Miles could have given evidence in the Crown case as to the appellant’s clothing.
119 What his Honour said, however, was correct and relevant to the jury’s fact-finding, and I do not think it imposed a burden of proof on the appellant. The jury had been firmly and appropriately directed that the burden of proof beyond reasonable doubt lay upon the Crown, and again there was no complaint from the appellant’s then counsel. In the context of the trial, no reversal of the onus of proof can have been perceived, and I do not think there can have been a miscarriage of justice.120 There were a number of items or areas of evidence, and they should be considered separately.
Ground 10: Error in law in not directing that certain evidence was irrelevant and should be ignored
121 I have earlier said that, at Mudgee police station, Detective Sergeant Freeman told the appellant that he believed the appellant was involved in the murders, outlining why he had that belief and saying that he wanted to know the reasons behind the murders. The disclosure of the place where the Sportco rifle was found and the confessional material followed.
(a) The belief and conviction of Detective Sergeant Freeman
Detective Sergeant Freeman’s evidence was -
“I said, ‘I believe that you had a part in the deaths of these two people. I believe that you went from the caravan with a .22 rifle and went to the house in Winchester Crescent and killed them. What do you say about that?’ He said, ‘No, I didn’t. I want a drink of water.’ I said, ‘I am now going to make some enquiries. I want you to think about your involvement in this matter as I would like to conduct a record of interview with you about that.’
Const Murphy then left the room and obtained a glass of water. I carried out a number of enquiries and about half an hour later I said to the accused, ‘Look, I’m convinced that you are involved in this matter. You had a .22 calibre rifle, you had a reason to want to get the people, you were out of the caravan at the time when they may have been killed. You had an amount of blood on your shoes and shirt. I believe that the blood samples that we took from under your fingernails will show your involvement. I would like to talk to you about the murders and have you tell me the reasons behind them so that we can all try to understand what happened and why. You understand that?’ He said, ‘Yeah, but if I tell you I’ll go away forever’. I said, ‘I don’t know about that, but I want you to tell me about it. …”.
122 The appellant submitted, citing Ireland v The Queen (1971) 126 CLR 321 at 327, that these beliefs and opinions were inadmissible, and that the evidence should have been rejected or a direction should have been given to ignore it. No objection to the evidence was taken at the time, nor was a direction to ignore it sought. Indeed, Detective Sergeant Freeman was cross-examined to the effect that he was overbearing the appellant, and was “driving facts at him to make him feel hopeless”. When asked what was the point of saying the things starting with “You had a .22 calibre rifle …”, he said that he “thought it only fair and equitable that [the appellant] should know what I knew and I felt it was most fair to inform him of that “.
123 In Ireland v The Queen the account of the questioning of the accused, which included putting to him the police officer’s opinion that for stated reasons he had committed the offence, was held to be not relevant. The accused had consistently declined to answer, and so there was no relevance because of his responses. It was nonetheless accepted that in some circumstances such an account could be admissible, even when the accused had declined to answer, if communicating information where the fact information was communicated was relevant. In that context, Barwick CJ said at 327 that the police officer’s opinion was not relevant.
124 However, in the present case there was relevance in the communication of Detective Sergeant Freeman’s beliefs and opinions, because it resulted in the appellant’s admissions. They were part of the explanation of how he came to make them and to some extent assisted to give content to the oral confession. They were relevant to the defence case that Detective Sergeant Freeman had overborne the appellant. There may have been a discretion to exclude the evidence, but the trial judge was not asked to exclude it, and nothing was said about a discretion on appeal. In my view the evidence in question was admissible.
(b) The magazine
125 Sally Miles gave evidence of finding a magazine in a cupboard in the caravan some months after the murders. It contained both long and short .22 calibre cartridges, identical to those found at the house. According to expert evidence, the magazine was designed for use with the Sportco rifle, and only that rifle. There were no markings indicating that the magazine had been used in the Sportco rifle, or that the cartridges in the magazine had been chambered in the Sportco rifle, but relevant markings would not necessarily have been made.
126 The appellant submitted that the evidence about finding the magazine had no relevance, as I understand it for two reasons. One was that, given this expert evidence, it could not be said that the magazine had been used in the Sportco rifle. The other was that it was said that other evidence was to the effect that if both short and long cartridges were used (as had occurred when Vince Miles and Joan French were shot) the cartridges had to be fed into the rifle manually. And the appellant further submitted that the trial judge had made things worse by saying in the summing-up that the magazine and the Sportco rifle “go together”.
127 The magazine and the Sportco rifle did go together, in that the magazine was designed for use in the Sportco rifle, and his Honour was saying no more than that. Use of the magazine in the Sportco rifle was not excluded by the expert evidence, and the appellant’s submission misunderstood the effect of the evidence concerning use of both short and long cartridges. It does not matter, because the relevance of the magazine was that it was found in the caravan in the annex where the Sportco rifle was found, and contained cartridges of the same kind as those used for the murders. The evidence of Sally Miles saying to the appellant with reference to a magazine clip that “they’ll never find it because I’ve still got it” should also be recalled. I do not accept that the evidence in question was irrelevant - and the appellant’s then counsel did not object to it - or that the jury should have been directed to ignore it.
(c) The watch and ring
128 There was evidence from Sally Miles that, at a time after the killings, she saw Jessica with a watch which she thought at the time was Joan French’s watch. There was evidence from her that, when she went to pick up clothes from the house after the killings, she found a wedding ring on the dressing table in the main bedroom, which she took and later gave to Mrs McVee. Mrs McVee gave evidence of seeing Jessica with the watch, and of being with Sally Miles when she took the ring and later getting it. Mrs McVee said that the watch was left at her home, and that much later she gave it and the ring to the police.
129 The Crown acknowledged in the appeal that “it does not appear that either item had ultimate relevance”. Nothing more was said of them in the evidence, and no direction to ignore the evidence was sought. The evidence can not have affected the jury’s determination - the appellant did not suggest how or even that it might have. I do not think it was necessary to tell the jury of their ultimate irrelevance, or that failure to tell the jury brought a miscarriage of justice.130 The extraordinary submission was made that the handbag had no relevance to the appellant. If the evidence of Sally Miles were accepted, it was relevant, because if the appellant knew of the presence of the handbag at the side of the road, or recognised it, and destroyed the handbag, he was linked with the killing of Joan French. According to the appellant in his unsworn statement, Sally Miles was the killer and disposed of the handbag. The handbag did not cease to have relevance to the appellant because on his case Sally Miles disposed of it.
(d) The handbag
(e) Blood on joggers
131 I have earlier referred to this. The appellant submitted, as I understand it, that because the blood could not be shown by blood group to have been that of Vince Miles or Joan French, the evidence of blood on the joggers was irrelevant.
132 The evidence did not of itself add weight to the Crown case against the appellant. But it had been led without objection, and it was not inappropriate that, the presence of blood on the joggers having been observed and been referred to in the evidence (see Detective Sergeant Freeman’s beliefs and convictions preceding the record of interview), an explanation of the investigation should be given. In the interests of the appellant, it was proper to lead evidence that the blood grouping could not establish the source of the blood. I do not think there was any error in the admission of the evidence, and when the direction was in substance that the blood on the joggers did not add weight to the Crown case I do not think more was required.
(f) Blood under fingernails
133 There was evidence that blood was observed under the appellant’s fingernails (that was one of the matters to which Detective Sergeant Freeman referred), that scrapings were taken and analysed, and that it could not be said whether the blood was human blood or animal blood. It will be recalled that the appellant said in his unsworn statement that he cut up meat and fed his pet eagle, and that he was clawed by the eagle causing bleeding.
134 The trial judge referred in his summing-up to all this evidence, including that the species type could not be established. In similar manner to the blood on the joggers, it was a matter for the jury whether the blood under the fingernails was of assistance in their decision, but the evidence had been led without objection and it was not inappropriate that the jury be informed that the blood under the fingernails could not be shown to be human blood. No further direction was required.
Ground 11: Misdirection or failure to direct properly or adequately as to the Sportco rifle, the cartridges and the magazine
135 It was particularly difficult to appreciate the argument in support of this ground. A number of the things referred to in the written submissions seemed to be repetition of other grounds of appeal, or parts thereof; others seemed to lead nowhere. In oral submissions the essential point, as I understand it, was that when going through the matters as to which he said there was no dispute, the trial judge referred to evidence concerning the Sportco rifle, the cartridges found at the house, and the magazine, and that this gave “a false view of the evidence” because it was not necessarily the case that the Sportco rifle had been used in the shootings.
136 I have carefully considered the relevant part of the summing-up together with the appellant’s written and oral submissions in relation to this ground of appeal. It is, I think, sufficient to say that I can see no mis-statement in what his Honour said, and no ground for concluding that a relevantly false view of the evidence was presented. As I have said in relation to other grounds of appeal, the appellant’s then counsel did not seek a direction or directions to meet perceived error, or controvert his Honour’s statement that none of the matters was challenged by that counsel. In my opinion, no miscarriage of justice is to be found.
Ground 12: Miscarriage of justice in that the verdict was unsafe and unsatisfactory
137 The ground is now better framed in the language of s 6(1) of the Criminal Appeal Act. The question is whether the verdict of the jury was unreasonable or could not be supported having regard to the evidence: Fleming v R (1998) ALR 379 at 383, 392.
138 The appellant submitted that the Crown case rested on (a) ownership of the Sportco rifle; (b) the use of the Sportco rifle to shoot Vince Miles and Joan French; (c) the record of interview (which I take includes the other confessional material); (d) the evidence of Mr Thomas; and (e) the evidence of Sally Miles. He submitted that if there was reasonable doubt about (c) and/or (d) there should have been an acquittal, particularly when the evidence of Sally Miles could not be regarded as reliable and did not directly support the appellant’s guilt. He then submitted that the evidence of Mr Thomas “has been shown to be untrue or at the very least, to raise a reasonable doubt”, and that it was “the same situation” as to the record of interview.
139 The submissions took up what has already been considered in relation to preceding grounds of appeal: as the appellant’s counsel said in relation to this ground and ground of appeal 13, “I think I put it as I went through”. I do not accept that the evidence of Mr Thomas or the integrity of the record of interview has been so impugned in this appeal that the verdict was unreasonable or not supportable.
140 There was in my opinion a strong Crown case, even a circumstantial case if the confessional material and the in gaol confession be put aside. There was clear evidence of the appellant’s dislike of Vince Miles and Joan French, to use a fairly mild word, and of references to bumping off Vince Miles (or similar language) and reasons for doing so. There was a sound foundation for the use of the appellant’s Sportco rifle to shoot them. There was information in the record of interview, as was brought out in the re-examination of Detective Sergeant Freeman, which the police could not have made up, of which a good example is the shooting of Vince Miles in the head: this was later confirmed as accurate.
141 It was open to the jury to conclude that the confessional material was genuine and voluntary, and to accept the evidence of Mr Thomas and of Sally Miles as providing support for the appellant’s guilt. I do not think this ground of appeal should be upheld.142 The appellant’s written submissions said -
Ground 13: Error in law in not putting the defence case fairly and/or as an entity
“The Crown case was put at some length but there was no attempt to put the arguments of the defence case other than to refer to the statements of the Appellant and the defence evidence and comments from time to time as to some aspects of the evidence (p 49 of S.U.) (p 51 of S.U.) ( Zorad (1990) 47 A Crim R at 223).”
143 Nothing was added to this in the oral submissions. R vZorad (1990) 47 A Crim R 211 at 223 does not deal with it, but it may be accepted that it was necessary to put the defence case fairly and adequately.
144 The deficiencies in putting the arguments of the defence case were not identified by the appellant: as I have said, he relied generally on what has been considered in relation to preceding grounds of appeal. The jury had a typescript of the appellant’s unsworn statement, and reading of the summing-up shows that there were frequent references to the submissions of counsel for the appellant. The appellant’s then counsel does not seem to have perceived imbalance or deficiency in this regard in the summing-up, because no application was made. I do not think “there was failure to put the defence case fairly” or adequately, and I am not satisfied that there was the error asserted in this ground of appeal.
General
145 Five days after judgment was reserved in the appeal, the appellant’s counsel delivered further written submissions. No leave had been given, and there was no indication that the submissions were delivered with the concurrence of the Crown. A few days later responsive written submissions from the Crown were delivered. The introduction to the appellant’s submissions requested that they be taken into consideration “due to the restriction of time”, apparently but incorrectly suggesting that the appellant’s counsel had been restricted in time on the hearing of the appeal.
146 In my opinion, when the appellant’s further written submissions were delivered without leave the Court should decline to receive them. Declining to receive them is confirmed when, considering their content, they present little rational argument and are at times unintelligible. It seems that the submissions were intended to support the proposition in their last sentence, “The evidence points to a plan that two persons committed the crimes but not the appellant and Sally Miles together”. I do not think there is anything in the submissions calling for addition or alteration to these reasons, and to the extent to which they could have been taken into account they provide no basis for upholding the appeal.
147 In my opinion the appeal should be dismissed.
148 DUNFORD J: I agree with Giles JA.
149 GREG JAMES, J: I am indebted to Giles, JA. for his statement of the relevant evidence and events at the trial.
150 I too do not consider it necessary in the present case to consider whether the reference to this court obviated the necessity for leave.
151 I agree with the order proposed and his Honour's reasons therefor._________
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