Rusterholz v Tasmania

[2017] TASCCA 27

[2017] TASCCA 27

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                Rusterholz v Tasmania [2017] TASCCA 27

PARTIES:  RUSTERHOLZ, Marco Daniel
  v
  STATE OF TASMANIA

FILE NO:  CCA 377/2015
DELIVERED ON:  22 December 2017
DELIVERED AT:  Hobart
HEARING DATE:  6 June 2017
JUDGMENT OF:  Wood, Estcourt and Brett JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence – Appeal dismissed – Two counts of murder – Circumstantial evidence and evidence of admissions – Sufficiency of circumstantial evidence – Factors impacting on reliability of witnesses giving evidence of admissions – Admissions corroborated by circumstantial evidence – Jury entitled to accept appellant had admitted his guilt and admissions were true.

M v The Queen (1994) 181 CLR 487 and Chidiac v The Queen (1991) 171 CLR 432, followed.
Aust Dig Criminal Law [3476]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Misdirection or non-direction –Evidence of admissions made by witness to the murders – Direction as to consequences if the jury was satisfied that the admissions were made and that they were true – Direction given in terms requested by defence counsel – Argued on appeal that direction contrary to standard and onus of proof – Direction to be considered within context of entire summing up – Direction did not result in miscarriage of justice.

RPS v The Queen [2000] HCA 3, 199 CLR 620; Hadchiti v The Queen [2016] NSWCCA 63; R v Ayoub [2014] NSWCCA 209; R v Yates [1970] SASR 302, referred to.

Aust Dig Criminal Law [3470]

REPRESENTATION:

Counsel:
             Appellant:  F Cangelosi
             Respondent:  J Ransom
Solicitors:
             Appellant:  Simmons Wolfhagen
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2017] TASCCA 27
Number of paragraphs:  89

Serial No 27/2017
File No CCA 377/2015

MARCO DANIEL RUSTERHOLZ v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
ESTCOURT J
BRETT J
22 December 2017

Order of the Court

Appeal dismissed.

Serial No 27/2017

File No CCA 377/2015

MARCO DANIEL RUSTERHOLZ v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
22 December 2017

1. I agree with the conclusions of Estcourt J that neither ground of appeal has been made out and the appeal should be dismissed. I agree with his Honour's reasons in relation to ground one. In relation to ground 2, I agree with the reasoning of Brett J in its entirety. I wish to expressly note my agreement with Brett J that the circumstantial case against the appellant, without the evidence of the admissions alleged to have been made by the appellant, was not sufficient to support a verdict of guilty against the appellant on either count.  Aside from the contrary views expressed by Estcourt J on this point, I agree with the balance of his Honour's reasons.  

2. The central issue raised by ground 2 was whether the testimony of the witnesses concerning the admissions was so unreliable as to render the verdicts unsafe, when considered in the context of the whole of the evidence.  The evidence of the admissions made by the appellant to the relevant witnesses, Matthew Coventry, Sally Maher, Brett Imlach and Elisa Knight is conveniently set out by Estcourt J at [35], [33], [34] and [36] respectively, in quoting from the learned trial judge's summing up.  

3. In my independent assessment of the whole of the evidence, I have considered carefully the nature and quality of the evidence of each witness in question, as well as the evidence bearing on their reliability and credibility.  I have taken into account considerations advanced on the appellant's behalf at the trial, as well as on appeal as to the unreliability of these witnesses and their evidence.  However, I am satisfied that it was reasonably open to the jury to accept the evidence as reliable accounts of what was said by the appellant and, further, to accept the evidence as truthful admissions of his guilt.  For the reasons given by Estcourt and Brett JJ, it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant with respect to both counts.

   File No CCA 377/2015

MARCO DANIEL RUSTERHOLZ v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J
22 December 2017

The appeal

1. On 1 May 2015, the appellant, Marco Daniel Rusterholz, was convicted by Pearce J of the murder of Angela Hallam and Joshua Newman after being found guilty of those crimes by a jury at the conclusion of a long trial. He has appealed against those convictions on two grounds. They are that:

   "1     the learned trial judge erred in law when directing the jury with respect to evidence of admissions made by Matthew John Coventry, in that:

   (a)his Honour directed the jury 'if you are satisfied that what Mr Coventry said was an admission that he'd committed the murders, and that was true, then it obviously follows that you must have a reasonable doubt about Mr Rusterholz's guilt'; and

   (b)by doing so, his Honour erred in failing to direct the jury that the State of Tasmania had the burden of excluding the reasonable possibility that Matthew John Coventry had made an admission to having committed the crimes and that the admission was true.

   2      the verdict is unreasonable and cannot be supported having regard to the totality of the evidence."

The summing-up of the real issue

1. The real issue on the trial, as was very clearly identified by the learned trial judge to the jury in his summing-up, was whether the State had proved beyond reasonable doubt that it was the appellant, and not some other person or persons, who had committed what was undoubtedly a double murder.

2. Early on in his charge the learned trial judge squarely identified the defence case for the jury. His Honour said:

   "Now in this case the defence contends that the State has not proved Mr Rusterholz's guilt beyond reasonable doubt because it has not excluded the reasonable possibility that someone else was responsible.  The defence says that the evidence about Mr Rusterholz's involvement and the potential involvement of others is not sufficient to exclude that scenario, that is, that he's not the person responsible."**  (Emphasis added and single and double and triple starred passages from his Honour's summing up are notations by me for later reference.)

3. He went on:

   "Now the State has a very different contention.  It contends that you can safely conclude that there is no other reasonable explanation open to you than that Mr Rusterholz was the person responsible.  It says that the evidence against Mr Rusterholz is so compelling that you can be safely satisfied to the high standard required in a criminal trial.  And in advancing that contention it relies of course, not only what may be referred to as the pure circumstantial evidence, but more evidence as well, and it's important that you bear this in mind. 

   The State contends that after committing the murders Mr Rusterholz not only acted as if he were guilty, but he told other people what he'd done.  In other words, the State contends that he admitted the crimes.  There is evidence from a number of witnesses that he or she, those witnesses, heard Mr Rusterholz admit to committing the crimes.  Now from a legal point of view it's not at all clear whether admissions are in fact a species of circumstantial evidence, but it doesn't really matter from your point of view, whether we have that debate or not.  But the State does rely on those statements which it says you should find Mr Rusterholz made after the crime to add to the other circumstantial evidence that it relies upon. 

   For two reasons.  First of all, if you are satisfied that Mr Rusterholz did in fact admit the crimes to one or more people that you've heard evidence from, and you are satisfied that what he said was true, then that without more is capable of proving his guilt. 

   Secondly, you are entitled to take into account the evidence of what Mr Rusterholz is alleged to have said after the murders in assessing all of the other evidence as part of the overall picture.  This includes, of course, the evidence of each of the other witnesses who say things were said to them, so no evidence is to be considered in isolation, it's to be considered in light of all of the other evidence. 

   So what's the summary of what I've just said to you.  You cannot find Mr Rusterholz guilty of either murder unless you are satisfied of his guilt beyond reasonable doubt.  If you think that there is a reasonable explanation for all of the evidence which is consistent with his innocence, a reasonable scenario consistent with his innocence, then that must give rise to a reasonable doubt.  If, however, taking into account all of the circumstantial evidence, and your assessment of the evidence about what happened after the crimes, what he said to other people and what he did, you are satisfied that there is no reasonable explanation other than his guilt, then you can properly find him guilty.  So is that clear enough?  If you have any questions about that later you had better let me know." *(Emphasis added.)

4. His Honour then reiterated:

   "So in summary what the State says is this. That Mr Rusterholz had the means to commit the murders. He had the motive to commit the murders. He had the opportunity to commit the murders. That he admitted to what he had done to Matthew Coventry, Sally Maher [also known as Sally McGuire] and Brett Imlach.  That he acted as if he was guilty by going to Kingston to destroy evidence.  That he acted as if he was guilty by arranging for the destruction of the car.  That he acted as if he was guilty by lying to the police in his interview.  And that you should not believe what he said to the police in the interview.  So that's what the State's case is.

   I will just run over that again.  He had the means, the motive, the opportunity to commit the murders, he made admissions, that he acted as if he were guilty and that you shouldn't believe what he said to the police in the interview.

   Now the defence refers in the context of whether or not there is a scenario consistent with Mr Rusterholz's innocence to the prospect that other people may be guilty of these murders.  Mr Coventry, Mr Morgan, Jamie Smith, but it doesn't have to be confined to those people, it might be any other unidentified person."*

5. The jury had largely uncontroversial evidence that the appellant had the motive, means and opportunity to have murdered Ms Hallam and Mr Newman between the hours of 9.30pm and 10.50pm on the night of Wednesday, 15 August 2012, at Unit 25, 40 Pioneer Parade, in the Launceston suburb of Ravenswood. Before I turn to what the learned trial judge said to the jury about that evidence I will mention what his Honour said about the potential for others to have committed the murders, which possibility was, as pointed out by his Honour, relied upon by the appellant in his defence.

6. On the evidence, two other people in particular had a motive to have murdered Ms Hallam, namely Matthew Coventry and David Morgan, although other possibilities were alluded to by the defence. His Honour said:

   "What the State says about that is this.  It says that you can exclude Mr Coventry as the murderer because his movements are accounted for, and I might say a little bit more about that to you tomorrow.  But at this stage I will mention again the issue that you raised with me some time ago as a question about why David Morgan wasn't called, because that seems to me to be relevant to this question.

   As I've already explained to you, you must not speculate about what he would have said had he been called, and I've attempted to explain to you the reasons for that.  You must decide this case only the evidence that you've heard.  You should not draw any inference one way or another from the fact that you've to (sic) heard from Mr Morgan.  There are many potential explanations for why persons who (sic) do not give evidence in a criminal trial.  Many explanations for that.  And in this case you heard evidence very early on in the trial from Det Sgt Turner that Mr Morgan had been charged as a result of these events. 

   That evidence does not disclose what he was charged with, why he was charged or what his involvement, if any, was concerning these events.  What is important for you at this stage to clearly understand is that whether a person has been mentioned as possibly involved, is not really the question that you must address.  The question for you and the only question for you is whether taking into account the evidence that you have heard, whether the State has proved beyond reasonable doubt that Mr Rusterholz is guilty of the crimes that he's charged with.* 

   As to Mr Morgan do not speculate about his involvement or non-involvement.  The State contends that the evidence against Mr Rusterholz is such that it is consistent only with his guilt.  If you are satisfied about that then you can convict.  If you are satisfied that there's a scenario not consistent with his guilt, which is reasonably open to you, then the appropriate verdict is not guilty."* (Emphasis added.)

Observations on the defence case

1. In my view, on all of the available evidence the jury could not have rationally entertained a reasonable doubt about the guilt of the appellant on the basis that the State had not excluded the reasonable possibility that a person or persons other than Mr Coventry or Mr Morgan committed the murders.

2. If the jury did not entertain a reasonable doubt on the basis of the evidence concerning those two men, then, on my analysis of the totality of the evidence, they could not permissibly have done so on the basis that someone else other than either of them or other than the appellant did so. Such a course of reasoning would have had to have been founded on pure speculation to the extent that it might have related to allusions to the named persons Jamie Smith (who at a time prior to the murders had allegedly said that he would kill Angela Hallam but only if he could kill Sally Maher, "a two for one deal" as it was described, but who had apparently disappeared as at the date of the murders); A J Graham (tenuously connected to the case by his presidency of a motorcycle gang whose premises were fleetingly visited by the appellant and Mr Coventry); the unnamed person or persons in a silver or grey Commodore reported as seen outside the unit (about whom nothing more was said); or the unnamed person in a "hoodie" with some keys who was said to have been seen running up and down the street outside Ms Hallam's unit when the fire brigade attended (about whom nothing was known beyond that).

3. In my view there was no reasonable deduction available from the evidence that the murders were committed by any of those persons. Any hypothesis along those lines would be so tenuous or untenable (particularly in light of all of the evidence as to the motive and opportunity of the appellant and Mr Coventry and Mr Morgan to have committed the murders), as to be conjecture having for its essence a mere guess, see Jones v Great Western Railway Co [1930] 144 LT 194 at 202, All E Rep 830 (HL) at 842 and East v Repatriation Commission (1987) 16 FCR 517 at 532 (approved in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414).

4. As to Mr Coventry and Mr Morgan, the possibilities were more realistic. Mr Coventry, who admitted to having been convicted of being an accessory after the fact to murder in June 2002, allegedly made admissions to having murdered Ms Hallam and Mr Newman. As to Mr Morgan, a match for his DNA was detected on a fuel container found in the appellant's locked shed at 4 Daphne Court on 17 August 2012 by police, which container was found to have what was apparently human blood on it that yielded DNA which matched Mr Newman's DNA. A match for Mr Morgan's DNA was also found on taps in Ms Hallam's unit on which was found no other DNA apart from other minor and mixed profiles from which no reliable DNA conclusions could be drawn.

5. Assuming, without the necessity to decide that it was open to the jury to find that Mr Coventry and Mr Morgan each had the opportunity to commit the murders (notwithstanding that meta data from Mr Coventry's mobile phone would appear to place him at locations consistent with him travelling from Launceston towards Hobart from about 9.45pm or 10.00pm on the night in question, and mobile phone records suggesting that Ms Hallam was alive at 9.30pm), then if the evidence against the appellant went no further than establishing motive, means and opportunity, a jury acting reasonably on all of the evidence would, in my view, have been bound to acquit the appellant. The evidence of the appellant's guilt did not however stop there.

The summing-up of the circumstantial case

1. I will turn first to what the learned trial judge said to the jury about the appellant's motive, means and opportunity to have committed the murders. To do this, particularly in view of the second ground of appeal which asserts that the verdicts were unreasonable and unsupportable, it is necessary to set out a long extract from his Honour's summing-up. He said:

   "All right.  What I intend to do is to work through each of those parts of the Crown case which I listed for you and make some comments about each of them.  First of all motive.  The State contends that Mr Rusterholz had a motive to murder Ms Hallam and indeed before the murders he expressed a desire to harm her.  Now the State has no obligation to prove to you that Mr Rusterholz had a reason to kill Ms Hallam.  And I am referring to Ms Hallam, in particular, I haven't lost sight of the fact that Mr Newman obviously was also killed, again it's a matter for you, it seems to me that this case has revolved around whether or not the murderer went there intending to kill Ms Hallam and Mr Newman happened to be there at the same time, so I will direct a lot of my remarks to Ms Hallam.

   As I said the State doesn't have to prove that Mr Rusterholz had a reason to kill her.  It's not an element of the crime that the Crown must prove.  But evidence of motive is relevant because it follows from ordinary human experience that people are more likely to be killed by somebody who has a reason to kill them, than by someone who doesn't.  And motive doesn't prove the Crown case but it can be relevant evidence. 

   All right, so what's the State's case about this.  It contends that there was a level of ill-feeling between Sally Maher and Angela Hallam.  Now the State suggested to you that you could find that Sally Maher understated this when she came to court to give her evidence.  But the State contends that this may well have led to a situation in which Mr Rusterholz wished to harm Ms Hallam to please Ms Maher.  On the State's case that is one possible motive. 

   Secondly, you heard evidence from Matthew Coventry that he and Ms Hallam both trafficked drugs, morphine, for Mr Rusterholz.  Initially Mr Coventry at least said he did this for free drugs, but that eventually down the track he and Ms Hallam decided to take their cut.  And he said that at page 833 of the transcript.  And he said that this was two weeks before her death.  He said that even before that they had been ripping Mr Rusterholz off by helping themselves to other drugs and selling them and telling Mr Rusterholz the police had taken them and this is all about page 833 or so of the transcript.

   Now there is no evidence as far as I can see that Mr Rusterholz knew about this if it were true.  But if he did on the State's case it may give rise to ill-feeling towards Ms Hallam. 

   Mr Coventry also said that on the last time he visited Ms Hallam's house she told him she wanted to get out of the drug business and he said that he thought Mr Rusterholz remained infatuated with her and continued to contact her and he was dirty because she wanted her key back.  That's what he said.

   Now Brett Imlach said that about two weeks before the murder he spoke to Mr Rusterholz about Angela Hallam.  His evidence was that Marco said that she owed him money and if she didn't pay it he was going to do her in.  He said that at page 1097. 

   Amy Prior gave evidence that Angela Hallam was her good friend.  She had met Mr Rusterholz who she said came to her house a couple of days before the murders.  She said that she didn't observe any violence or argument between Ms Hallam and Mr Rusterholz.  Did not see or hear anything on that day except that Angela told her that Mr Rusterholz had grabbed her by the throat.  She said that at page 1630.

   It's important that you remember while I'm mentioning these aspects of the evidence that all of this was the subject of challenge by defence.  All of this evidence.  And this evidence from Ms Prior was challenged because it was suggested to her that she'd never said anything like that before, either to the police or in the preliminary proceedings.

   Felicity O'Rourke gave evidence that about two weeks before Ms Hallam died Angela was visited by Mr Rusterholz at 5 Dumas Place where she was staying with Ms O'Rourke and Ben Fama.  Mr Rusterholz knocked on the door she said, barged in and went to the bedroom and slammed the door.  But Ms O'Rourke did not say that she heard arguing or raised voices or observed any violence. 

   Dana Smith was a resident at 9 Treherne Street, Mayfield.  You've heard evidence that she was previously in a relationship with Matthew Coventry.  They had a child together.  They have a child together.  She gave evidence that approximately two months prior to the murders, the accused, Mr Coventry, and a man named, Jamie Lee Smith, were at her house.  She said that Jamie had offered to do a two for one, that he would kill Angela and Sally.  She said that she wasn't party to the conversation so she couldn't remember whether anything was said by the accused prior to that offer being made, but she thought Mr Rusterholz responded with, 'no way'.  And that he loved Sally. 

   When she was questioned – when Ms Smith was questioned about this later she agreed that the accused may have asked Mr Smith – have I got that name right, yes, Jamie Smith, I think, to kill Angela and that instigated Mr Smith to offer the two for one deal.  But her evidence about that was strongly challenged by the defence. 

   Dana Smith was also questioned about the 14th of August, that is, the day before the murders.  Her evidence was that she went to the accused's house, Mr Rusterholz's house on that day, to detail a car.  She said that she overheard a conversation between Marco Rusterholz and David Morgan.  Mr Rusterholz had been talking on the phone and after he hung up Mr Morgan started shouting saying that he should have done it the other night, 'I should have blood (sic) done it the other night, fucking slut'.  But that she didn't hear Mr Rusterholz's reply because she was vacuuming a car.  Now of course that's only evidence of what Mr Morgan said, nothing about what Mr Rusterholz said. 

   Jessica Jarman was a bar attendant at the Riverside Hotel.  She gave evidence that on the 16th of August, the day after the murders, she thinks between 12 and 1 she was outside having a smoke during her lunch break.  She had a conversation with a man she later learned had been in room 220, and the State contends that that was David Morgan.  He said to her that the people in the fire were murdered.  She said that the words that man expressed to her was 'It was drug related, she stole $50,000 that was in a bum bag and had been caught doing it'. 

   Now, of course, the defence contends in respect of that evidence that it doesn't contain any express reference to Mr Rusterholz at all. 

   The State also points to a series of text messages sent between Mr Rusterholz and Mr Morgan at pages 2 to 6 in Mr Ercole's telecommunications chart.  The State's case is that these exchanges indicate a tension between the accused and Ms Hallam and indicate an intention to do her harm.  Now both Mr Ransom and Mr Hughes have taken you in detail through that series of text messages and I don't propose to do so again, but only to point out to you that it's part of the State's case that they evince – those text messages evince motivation on the part of Mr Rusterholz to do harm to Ms Hallam.  The defence, of course, disputes that.  It's a matter for you to determine what inference you might draw from that.

   Now even if you accept some or all of this evidence, that Mr Rusterholz may have had a reason to harm Ms Hallam, you should nevertheless bear in mind that if he had such a motive it doesn't prove that he committed the crimes.  Many people have powerful motives to do the wrong thing, to commit crimes, and never do so.  Even expressing an intention to act does not constitute proof of an involvement in the crimes.  These are merely items of evidence, circumstantial evidence that you may use along with all of the other evidence.  So that's what I wanted to say about the evidence concerning the alleged motive Mr Rusterholz had.

   The State also says that Mr Rusterholz had the means to commit the murders.  This is the second aspect of the case.  It points to Dr Ritchey's evidence about the nature of the wounds inflicted on the two victims and his opinion about the type of instrument which is capable of causing such injuries.  He referred, although I have to say not with any particular degree of confidence, to a single bladed boat-shaped knife, but he did seem fairly firm in his view that whatever sort of implement that it was, had to have some weight and had to be very sharp. 

   Now you, of course, can use your own common sense and experience from that.  You can draw your own inferences from your observations of the injuries in the photographs that you've seen. 

   It is to be borne in mind of course that the State does not assert that it has the murder weapon, that it's identified the murder weapon.  You heard evidence about knives at Mr Rusterholz's home and the knives that he purchased on eBay, but it seems to me at least that that simply demonstrates that he may have had access to the type of knife, the style of knife which is consistent with the type of implement that Dr Ritchey said might have been used to inflict these wounds. 

   But, of course, it also tends to demonstrate that if he had access to knives of that type then it probably wasn't that hard for anybody to have access to such a knife.  So the fact that Mr Rusterholz had means to commit – to inflict wounds if he had a knife like that – doesn't necessarily mean – prove that he did so, because anybody else could have had access to the same sort of knife.  But again it's an aspect of the evidence.

   One of the issues which is – I am about to move on to the notion of opportunity to commit the crimes.  And my remarks about this relate to Mr Rusterholz, not to anybody else, Mr Rusterholz.  One of the issues which has occupied a lot of time in this trial is whether or not Mr Rusterholz had the opportunity to commit the crimes.  A lot of time has also, a great deal of time has also been spent on whether Mr Coventry had the opportunity to commit the crimes but I would ask you just for the moment to put that issue aside.  What I am saying to you now is directed towards Mr Rusterholz.

   The State suggests, and it doesn't seem to be the subject of strong disagreement, that the murders must have been committed between about 9:30pm and sometime before 10:52pm on the 15th of August.  Now that earlier time is the last text message sent by Ms Hallam to Felicity O'Rourke about the money that she owed on the evening of the 15th of August.  Now the later time is the time recorded on the Tasmania Fire Service records as the time the triple-0 call was received.  So by that time the State would ask you to infer, and again it doesn't seem to be the subject of much dispute, that the fire was alight, somebody had told the Fire Service about it, by 10:52. 

   All right, so what's the evidence of Mr Rusterholz's whereabouts between those two times during that period.  It seems to me to come from three sources.  First of all what Mr Rusterholz told the police in his interview.  He told them that from 8:30 onwards he was at home in company with his wife asleep on the couch.  Whether he was asleep or not he was on the couch at home with his wife from 8:30 onwards. 

   Now on the version he gave to the police he intended that night to travel to Hobart to see Sally Maher and he intended in fact to leave earlier he said, be (sic) he fell asleep, didn't leave until he said 10:30, although he said he didn't wear a watch and I think he said he relied on his wife for the time of that.  So that's his version to the police.

   Secondly, you have evidence from Matthew Coventry.  He gave evidence that after he'd been along the North-West Coast with Mr Rusterholz, or not with Mr Rusterholz, but he met Mr Rusterholz in Burnie, he returned to Launceston texting as he went, remember with the phone wedged in the steering wheel.  He said that when he arrived in Launceston he was not sure whether he went to Mr Rusterholz's home to drop off the cash he'd collected for drugs in Burnie or to Dana Smith's house to drop his son, Joey, off.  The evidence is that their homes are not very far from one and other.  He said, that is Coventry said, that while at Mr Rusterholz's house they had a conversation and decided to go to Hobart to Sally Maher's birthday party. 

   Mr Coventry said that when he left Mr Rusterholz's house, Mr Rusterholz followed him out of the court he lived in, Daphne Court it must be, and when Coventry turned off either to go to Dana Smith's house or to the service station, Mr Rusterholz flashed his lights at him.  Now Coventry's evidence about that is at the transcript page 845 to 846. 

   Now it seems to me that given that he said he was not sure in which order he attended either Dana Smith's house or the service station, the time of this is difficult to establish. Some indication of the time arises if you are satisfied that it was Mr Coventry at the service station and you are satisfied of the time shown on the DVD recording taken at the service station.  If you are satisfied of that. 

   The defence of course has a different version about the times, he says that – the defence contends that Mr Coventry may well have been earlier than that, but if you accept that evidence wherever Mr Coventry went first, if you accept the evidence that the State would have you accept, that suggests that Mr Rusterholz was not at home as he said and was instead out on the road at an earlier time. 

   The State contends that he had time to go to Ms Hallam's house, commit the murders and return to his house, all when he told the police he was at home asleep on the couch. 

   If it's the case that Mr Coventry went to Dana Smith's house first, then it may be that there was even more time.

   Ms Smith gave evidence about the night of the 15th of August.  Her evidence is at 960 on the transcript.  She said that Matthew Coventry came to visit her sometime after teatime to drop their son off.  He left saying he was going to Marco's and then to Hobart for Sally's birthday.  He left and then she later had a conversation with him over the phone, she said.  He told her that he was sitting outside Marco's house waiting for him, that he would call back in and then he'd be on the way to Hobart.  Again the order of this is a little bit uncertain.  Then he called back in she said and stayed for 10 or 15 minutes and then left again.  She said that she had further contact with Mr Coventry through Facebook and text message about their child being unwell. 

   So the point of me mentioning all that evidence is that it is a source of evidence about Mr Rusterholz's whereabouts at the time or leading up to the time which the State contends the crimes were committed so as to enable you to judge, if you accept that evidence, whether Mr Rusterholz had the opportunity to commit the crimes. 

   Now the third indication of Mr Rusterholz's whereabouts comes from his arrival time in Hobart it seems to me.  The State contends that the evidence discloses he arrived after Mr Coventry and even in the version that Mr Rusterholz gave to the police he says that it was about 1:30 or so when he arrived because he stopped for some shut-eye on the way, he said.  So even on Mr Rusterholz's version he didn't leave for Hobart until 10:30 or so

   Now the witnesses in Hobart gave various versions of the time that Mr Rusterholz arrived.  It's up to you to assess that evidence, I am just talking about the possible sources of evidence which might account for Mr Rusterholz's movements on that night." (Emphasis added.) 

1. I next set out what his Honour went on to say towards the end of the first day of his summing-up specifically as to the defence position on the issues of motive, means and opportunity and the reasonable possibility or chance that someone other than the appellant was the killer. He said:

   "There's only one other thing that I want to say to you this afternoon, ladies and gentlemen, before we finish, and that's to make some comments to you about the defence position on motive, means and opportunity.  As to motive the defence would contend or does contend that even if you find that Mr Rusterholz had some motive to harm Ms Hallam, he wasn't on his own in respect to that.  The defence contends that there's ample evidence that others had a reason to dislike Angela.  You have evidence from many people including Matthew Coventry, from Angela's friend, Samantha Banks, Amy Prior and Felicity O'Rourke, that she owed people money which she didn't pay back.  You have evidence that she was selling drugs, involved in the drug community.  She associated with people in that community who you might infer be prone to violence.  She was according to some of the evidence willing to take advantage, I think the term scammer was used.  To take advantage of others if she had the opportunity to do so.  One of the witnesses even said that she had a price on her head.

   I mention all of that because you may well consider that there would be other people who have a motive to cause her harm as well.  She told others that she left Hobart to escape trouble she was already in.  So that's as to motive.

   As to means, it's obvious from what I have already said that knives capable of inflicting the wounds may have been available, not only to Mr Rusterholz, but to other people as well. 

   And as to opportunity, even if you accept that Mr Rusterholz had the opportunity to commit the crimes it doesn't prove that he did so.  May be (sic) people had the opportunity to commit the crimes, some we've heard from and some we haven't.  Evidence of motive means and opportunity, sometime strengthen a Crown case, to a significant extent.  It's for you to consider that evidence, you should bear in mind however that to the extent it relies only on circumstantial evidence and motive, opportunity and means are only ever circumstantial evidence.  It cannot establish guilt beyond reasonable doubt unless any reasonable scenario consistent with his innocence is excluded by the State's case.** 

   So in other words even if the evidence against Mr Rusterholz concerning those issues is consistent with his guilt, he can't be convicted on that evidence alone if it's also consistent with his innocence.  The defence contends that that evidence that I've mentioned so far does not exclude the scenario that somebody else committed the murders.**  In other words, you shouldn't accept that Mr Rusterholz had a motive or the opportunity to kill Ms Hallam, but if you do accept that, it's not sufficient to establish his guilt because he was by no means the only one who may have wished to harm her and had the means and the opportunity to do so." (Emphasis added.)

Some observations

1. It is important to observe that to this point no complaint or request for any additional direction or redirection, or for any amendment or addition to the summing-up was made by either counsel when they were specifically invited to do so by his Honour when the jury was affirmed out for the day. Apart from a minor slip of the tongue as to the name of a witness to whom he was referring his Honour's charge to the jury was thus far, in my view, unimpeachable as to accuracy and adequacy and was, with respect, a model of fairness.

2. Now, referring back to my earlier remarks about the content of the State's case, I repeat that the evidence against the appellant did not stop with the evidence about his motive, means and opportunity. The learned trial judge epitomised the further evidence in his summing-up, namely the evidence that the appellant admitted what he had done to Matthew Coventry, Sally Maher and Brett Imlach; that he acted as if he was guilty by going to Kingston to destroy evidence; that he acted as if he was guilty by arranging for the destruction of the car he drove on the night of the murders, and that he acted as if he was guilty by lying to the police in his interview, in particular by claiming that the car had been stolen.

3. To that list I would add, as his Honour later did, that notwithstanding that a match for Mr Morgan's DNA was found on a fuel can, that container, which revealed a probable DNA match for Mr Newman which was derived (sensibly and clearly it seems) from human blood, was found in the appellant's securely locked shed by police on 17 August and not insignificantly also revealed a probable match for the appellant's DNA on it. There was of course clear evidence on the trial that the bodies of the two deceased and the unit were set on fire, and that petrol was used as an accelerant. And I add for completeness that the appellant had not returned to Launceston after he went to Hobart about 10.30pm or 10.45pm on 15 August until 17 August, on which day he was pulled over by police and placed in the cells.

4. I set out below what the learned trial judge said to the jury about these matters, the observations he made about the evidence (which he was entitled to make pursuant to s 371(j) of the Criminal Code) and his summaries of the defence case and that of the State.

The summing-up of the defence case

1. Before I do that however it is necessary to again set out a long extract from the commencement of the second day of his Honour's summing-up dealing with the central tenet of the defence case that the murders were committed by someone other than the appellant. Given what his Honour said as to the necessity for the State to exclude the reasonable possibility of Mr Coventry having committed the murders, this extract is of particular relevance to the appellant's first ground of appeal. His Honour said:

   "I finished yesterday with directions about circumstantial evidence that Mr Rusterholz had the motive and the means and the opportunity to commit the murders.  And I remind you that you are entitled to use all of that evidence in your consideration of whether guilt's been proved, but it may only prove Mr Rusterholz's guilt without more if you consider that the only reasonable conclusion to be drawn from it, is that Mr Rusterholz committed the murders.  And I told you that I would go on to remind you about the other evidence that the State contends is to be taken into account in addition to that sort of evidence that I have already referred to, which it contends is sufficient to prove guilt. 

   Before I do that, however, I want to comment about the defence contention that it is open for you to conclude that a different person is responsible for the murders.  The defence position is in other words that if you think it is a reasonable possibility that someone else may be the murderer, then you must have a reasonable doubt about Mr Rusterholz's guilt. **

   Now the chance that someone else may have committed these crimes is a circumstance relevant to whether the State has proved that Mr Rusterholz is guilty.  But as I explained to you yesterday, you should not be diverted from the central question about whether Mr Rusterholz's guilt has been proved.  There's nobody else on trial here apart from Mr Rusterholz.The relevance of the chance that somebody else is guilty is relevant only in your assessment of whether the State has proved Mr Rusterholz's guilt. 

   The defence refers principally to Matthew Coventry and David Morgan but also others and I just want to deal with Mr Coventry first.  As to him the State asserts that you can be satisfied that he could not have committed these crimes.  The defence says that you can't be satisfied of that.  Now if you consider, as I've said, that Mr Coventry could have committed the murder, if there's a reasonable possibility that he could have committed the murders, you couldn't be satisfied that Mr Rusterholz committed the murders, beyond reasonable doubt.  So what the State must do is exclude that as a reasonable scenario. ***

   Now in considering that issue you consider not only the evidence concerning Mr Coventry but also of course the strength of the other evidence against Mr Rusterholz.  In other words, the stronger the case against Mr Rusterholz, the less chance there is that someone else is guilty. 

   Now in summary the evidence about the chance Mr Coventry committed the murders seem to me, and it's a matter for you, to think what you think is important about this, but these things occur to me.  Firstly, the defence points to Mr Coventry as having a violent past, also involving crimes concerning fire, and that he had the motive and the opportunity to kill Ms Hallam and to conspire with Sally Maher to incriminate Mr Rusterholz.  I've wrapped a lot up into that paragraph but that's really in summary what's put.  That he is the type of person who could have committed a crime like this and the defence says that you can't be satisfied he didn't have the opportunity to do it. 

   The defence contends that he bragged about committing the murders to others.  Sally Maher said that he used to go around – this is after the murders – around the house and say, 'Oh yeah just another one, yep', were her words.  But she didn't believe him.

   Lisa Knight gave evidence about this as well and the exchange with her in the evidence is at page 1332 of the transcript.  And this is what – she was being asked about a statement that she'd made at the preliminary proceedings in December 2013.  She was asked: 

   And when you said to me back in December of 2013 I suggest to you that the reply was:

   'Yeah he was bragging about it.'

   Do you recall saying that?.....Yep.

   Question:

   Yes he was bragging about – Mr Coventry was bragging to you about having murdered Angela Hallam, correct?

   Answer: 

   He was bragging to everyone because he was a compulsive fucking liar.

   Question:

   And it wasn't the only time he bragged to you about murdering Angela Hallam did he?

   Answer:

   And he also bragged that didn't do it – do you get that as well that he's a compulsive liar.

   Elisa Knight also accepted the proposition that she'd said when she was cross-examined in those preliminary proceedings in December 2013 that Mr Coventry told her that Angela Hallam's last words were, 'Help me'. 

   So it's up to you to determine whether Ms Knight said that.  Whether it was true that Mr Coventry said those things and even if you accept that Mr Coventry might have said that, whether you think that there's a chance that it was true that he'd killed Angela Hallam and was bragging about it. So it's up to you to judge that evidence.***

   The State suggests however that you can be satisfied, as I've already explained, that the murders must have been committed between 9:30 and sometime before 10:52.  Now the State's case is that Mr Coventry is shown as at the BP Newnham on the film at 9:40pm and that he left from there to go to Hobart.

   Now the defence position about that is that you can't rely on the time shown on the recording because no-one checked it.  And other phone evidence suggests that he may have been there at an earlier time, an hour earlier. 

   Now I remind you of the evidence of Mr Gelfe about the caution to be used when considering the GPRS evidence which is the basis of at least part of the submission for the defence about that.  Mr Gelfe said, he's the Telstra person, it could not be relied upon.  So it's for you to weigh up and consider all of that evidence.

   But in any event the State contends that the phone tower evidence, while not being as accurate as a GPS, corroborates Mr Coventry's account of his movements throughout the day and confirms that he left Launceston at a time which is consistent with the time on the service station video being accurate.  Now again these are matters for you to consider.  You can look at the times progressively shown on the journey south on the telecommunications evidence, and draw your own conclusions about whether they tend to corroborate Mr Coventry's version of when he said he left and whether that's consistent with the time on the BP Service Station video being accurate. 

   The defence contention about that is that the evidence doesn't support the level of accuracy which is required.  It says that Mr Coventry and Dana Smith's evidence about the times that things happened, taken together, suggest that he could have been around earlier than the time shown on the surveillance footage.  That submission seems to me, you might think, to depend upon the footage from BP Newnham being wrong.  That it may be wrong at least.  And the State says that you shouldn't accept that contention and in any event the other evidence is inconsistent with Mr Coventry being in a position to commit the crimes after 9:30.  That he did travel to Hobart and there's other evidence from other witnesses about when he arrived in Hobart.

   So I've mentioned some of the evidence about Mr Coventry to explain to you that it seems to me to be relevant as to whether there was a chance that he was the person responsible for the murders.*** 

   Of course, Mr Coventry is not the only one that the defence points to, it also points to the prospect that Mr Morgan was a person who may have been responsible for the murders.  And they point to the same text exchanges with Mr Rusterholz to illustrate that he had ill-feeling towards Ms Hallam.  There's also evidence from Mr Coventry that at the conversation at lunchtime in Burnie, Mr Morgan had commented that Angela, sorry he said that 'Dave was going on about 10 pound of dope that Ang had stolen'.  And the defence points to that as evidence that Mr Morgan might have had a motive to harm Ms Hallam. 

   The defence points to a series of text messages between Mr Morgan and Ms Hallam which leave it open to you to conclude that Mr Morgan may even have already been at the unit that night and may have returned.  The defence draws your attention to the fact that – to the evidence that Mr Morgan went to Victoria after the crimes were committed and that's evidence of guilty conduct. 

   Now I will talk to you later about guilty conduct, but conduct after an offence can only be used as evidence of guilt if certain conditions are satisfied.  And the one that I want to mention here is that if you think that there might be some other reason that Mr Morgan might have returned to Victoria, and we know very little about this, but if it's possible that there's some other reason other than that he's guilty of these crimes that he went back to Victoria, then it's not – it can't really be used as evidence of guilt. 

   The defence also made mention of the fact that DNA matching Mr Morgan's was found on the taps in the kitchen at Pioneer Parade.  I would remind you members of the jury about Dr Griffiths' evidence about DNA. That is, evidence if you are satisfied that that was in fact a sample of Mr Morgan's DNA.  You will remember, and I will refer to this later, Dr Griffiths' evidence about how DNA evidence is expressed.  He doesn't say that that's Mr Morgan's DNA.  He says it matches Mr Morgan's DNA and the chance of another person randomly chosen in the community also matching is expressed as a certain percentage.  I think this is one in a hundred billion.  And the defence would ask you to infer that Mr Morgan was the source of that DNA directly.

   But Dr Griffiths also made clear that while he could determine the presence of DNA, he could not by his evidence explain how or why or when that DNA came to be placed.  When it was deposited.  It may be that there's an innocent explanation for Mr Morgan's DNA, if it was his DNA, on the taps in the kitchen.  If you conclude that he'd been there already that night for an innocent purpose then that's a possible explanation.  There's already evidence that Mr Morgan lived at the unit for a period before the murders. 

   The defence, however, contends that you may infer from the fact that his DNA was on the taps that when other people were using the taps that it suggests that his DNA was recently deposited.  It's a matter for you, you might think that there's really very little evidence one way or another which would enable you to draw that inference. 

   Again in respect of the suggestion that Mr Morgan was a potential culprit for these murders, it seems to me it's a matter for you, but you might think that really whether that's possible depends very much on your assessment of the strength of the case against Mr Rusterholz in other respects.  If you are satisfied beyond reasonable doubt that Mr Rusterholz must have been guilty then that in a way excludes the chance that anybody else was guilty.  But the chance that somebody else may have committed the murders, if you think that exists, is very relevant evidence in assessing the strength of the case against Mr Rusterholz.*  It's almost a circular argument but at the end of the day I remind you that you must consider all of the evidence of all natures and consider the case against Mr Rusterholz.

   The defence also referred to Jamie Smith as a possible culprit.  He's not been found.  It was suggested that he might have had a motive to murder Ms Hallam.

   Now Jarryd Slater gave evidence on the 15th of April during this trial, I don't know whether you remember him or not.  He was a young man whose girlfriend lived at Pioneer Parade in August 2012 and he spent some time there and when he came to court his evidence was that he couldn't remember anything about what happened on the night of the 15th of August.  But when he was cross-examined he agreed that on the 5th of September when he was interviewed – 5th of September 2012, when he was interviewed by the police he told them something, that he saw a silver or grey Commodore with two men in it parked outside the unit.  Now he agreed that he told the police this. 

   While the vehicle was still running, lights off, I noticed a person get out of the front passenger seat of the car and walk across the front of the car towards the rear fence to the unit.  The male stood near the fence closest to the unit and threw a bag over the fence to an area where the Austar dish is located.  The bag appeared to be plastic that was tied in a ball-type shape.  He threw it over his shoulder.  That person then walked across the front of the car and go back into the passenger seat.  At about the same time a person appeared to come from the front of the unit and walk behind the car then got into the rear left passenger seat.  The car then drove off south on Pioneer Parade.  I wouldn't be able to recognise the people again.  All I could say is that they weren't large build.

   Now Mr Slater you remember couldn't remember any of that when he came to court.  All the evidence is that that's what he said to the police when he was interviewed after the murders.  It's a matter for you to determine whether that has any, and if so, what relevance to this trial.  Whether it may or may not suggest that a person was involved that we haven't heard about.  It's up to you what to make of that evidence but I point it out to you. 

   Tania Reid, one of the other neighbours, also gave evidence of seeing a grey Commodore sedan around the area over a period of a couple of weeks, including on the 15th. 

   Now it's up to you again to assess that evidence.  The Crown doesn't rely on any of it.  The defence says that it raises the possibility that some person other than the accused was at the unit that night behaving suspiciously. 

   Again, and I am sorry to repeat myself, but the question for you about all of this evidence is that you are not here to consider whether some other person is guilty of these crimes.  This evidence is to be considered in the context of your consideration of the fundamental question, 'Has the State proved Mr Rusterholz's guilt?'  If the evidence about these other possibilities raises a reasonable doubt in your mind about Mr Rusterholz's guilt, then you should acquit.  However, as I said to you yesterday the State says that the evidence that it has produced against Mr Rusterholz is so compelling that you can be satisfied of his guilt and you can dismiss these alternative theories.  And that's why careful consideration of the other evidence that the State relies upon is important to both the Crown and the defence case, and that's what I will turn to now. 

   Now before I mention the evidence it's important that when you listen to what I'm about to say you also bear in mind the defence position about all of the evidence. 

   Now the defence points to the almost complete absence – it would say complete absence – of any physical or forensic evidence connecting the crime to Mr Rusterholz.  It points to the absence of any forensic evidence whether DNA evidence or otherwise from Mr Rusterholz at the scene of the crimes despite the violent nature of the crime and what's likely to have occurred during its commission. 

   The defence points also to the absence of any forensic evidence other than the fuel container, which I will mention again later, of the crime at Mr Rusterholz's home despite the prosecution case that he went there after having committed the murders and despite the violent nature of the crime and the amount of blood that it must have involved.

   The defence points to the absence of any injury to Mr Rusterholz, despite the violent nature of the crime, and the evidence of Joshua Newman's fitness and skill as a boxer, apart from the disputed evidence of the cut to the back of his neck, which he says occurred when he was shaving. 

   And the defence points also to the absence of any surveillance evidence which indicates Mr Rusterholz's guilt despite the evidence that surveillance was conducted after the crimes, especially at 466 Brooker Avenue, where Sally Maher was living and where they were together on and off for about a month before he was arrested in September 2012."  (Emphasis to the text of his Honour's remarks other than passages of quotation have been added.)

Defence counsel's input to the summing-up

1. I observe that I have compared all that his Honour said in that long extract from his summing-up with the matters raised with the jury on behalf of the appellant in the closing address of his counsel, Mr Hughes. In my view it quite simply cannot be said that the learned trial judge failed to adequately make the jury aware that it was for the State to exclude the reasonable possibility that Mr Coventry, or for that matter Mr Morgan or anyone else, committed the murders. It is to the contrary in my assessment. As can be seen, his Honour felt constrained at one point to apologise for repeating himself on this subject. Moreover, I note that after Mr Hughes had made careful submissions to the learned trial judge at the close of the evidence as to the matters the defence wished to be included in his Honour's charge and, as will be seen, after his lengthy request for amendment and addition to the summing-up at the conclusion of his Honour's charge, Mr Hughes made no further request when provided with the opportunity to do so by his Honour at the conclusion of his supplementary and lengthy summing-up dealing with the matters complained of by Mr Hughes.

2. I will set out the sequence of events as to this. First, at the conclusion of all of the evidence on the trial (I infer in deference to the requirements of Practice Direction 2 of 2013 entitled "Jury Directions"), the learned trial judge asked counsel for the State and counsel for the defence for submissions as to matters they wished his Honour to refer to in his summing-up. I set out the practice direction because it is also relevant to the question of whether any miscarriage of justice ought be now inferred from the matters complained of by the appellant when, as noted, no complaint was made at the trial by the appellant's counsel, notwithstanding the fullest opportunity to do so. The practice direction includes the following paragraphs:

   "3   After the matters in issue have been identified in accordance with paragraph 2 hereof, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of—

   a) any matters in issue; and

   b) the evidence in the trial relevant to the matters in issue.

   4     Counsel are reminded of what was said by Bowen CJ and Forster J in Chamberlain v R (1983) FLR 1 at 13 as follows;

   'We should mention that when asked by his Honour at the end of the summing up, 'Is there any further direction?', senior counsel for the appellants answered, 'No, I have no submissions'. It should also be pointed out that the summing up as a whole was favourable to the appellants as was conceded by senior counsel for the appellants before us, who was not the same counsel as appeared at the trial. The failure of counsel at the trial to seek a redirection, some amendment or addition to the summing up and his failure to object to the admissibility of evidence, cannot lead inevitably to the dismissal of an appeal based on alleged imperfections in the summing up or the wrongful admission of evidence. It is nevertheless a relevant factor to be considered. If experienced senior counsel at the trial is not moved to seek redirection or to object to the admissibility of evidence, his failure to do so carries a strong suggestion that in the atmosphere of the trial at which he was present, no miscarriage of justice occurred or was likely to occur because of matters later complained of.'

   5      In a similar vein Gleeson CJ observed in Doggett v R (2001) 208 CLR 343 at [2]-[3];

   '2    The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.

   3     When an accused person has been convicted, and appeals, there is often an attempt to present the defence case in a new way. This appeal provides an example of the necessity, when evaluating criticisms of a trial judge's directions to a jury, to relate those criticisms to the manner in which the trial was conducted.'" (Emphasis added.)

3. Both counsel made submissions at that stage of the trial, and as far as I can ascertain, the learned trial judge accommodated in his summing-up the distillation of the matters agreed with by counsel in discussion at that time to be included in the charge. The importance however, for present purposes, of the authorities referred to in that part of the practice direction set out above is that at the conclusion of his summing-up his Honour again, as is customary of course, asked both counsel if there were any matters they wished to raise with him. Senior counsel for the appellant, Mr Hughes replied:

   "I will be quite some considerable time and I seek that the jury be stood down until 2.15."

4. After the jury were then affirmed out, counsel for the State, Mr Ransom, raised a very short matter involving a slip of the tongue by his Honour in referring at one point to Mr Imlach's evidence as that of Mr Coventry. Mr Hughes however, as he was entitled to do, raised a large number of matters in respect of which he requested redirections or further directions and amendments and additions to the summing-up. In view of the number and content of the matters addressed at that point by Mr Hughes, a very experienced and senior criminal counsel, and in view of his earlier submissions at the close of the evidence, his lack of any further request when afforded the opportunity to do so by his Honour at the conclusion of his supplementary summing-up, and his failure to raise any further or other matters of complaint at that stage of the trial, carry a strong suggestion, as was said in Chamberlain (above), that no miscarriage of justice occurred or was likely to have occurred because of matters now complained of on appeal by the appellant's counsel, Mr Cangelosi, in relation to the first ground of appeal.

5. Indeed, as will be seen, in seeking the direction now complained of by the first ground of appeal, Mr Hughes was seeking to secure the appearance of forensic parity for the appellant by having the learned trial judge give a direction as to the characterisation of evidence of alleged admissions as to the murders made by Mr Coventry that was the same as that made in relation to alleged admissions made by the appellant. And at the earlier point of the close of all the evidence, Mr Hughes was acutely aware of maximising any forensic advantage as can be seen from the following extract of the exchange between him and his Honour at that juncture. He said:

   "… I also submit that the conduct of Elisa Knight during the course of her evidence warrants some direction with respect of her conduct.  The jury would be invited to assess a person's evidence based not just on what they say, but how they present it, and it's a common–

   HIS HONOUR:  I had in mind to talk to them about that.  That doesn't necessarily mean that they reject her evidence, of course.

   MR HUGHES:  Indeed.  But it's a matter that they can take into account when assessing that credit and I submit that ought come from the bench, in terms of her conduct in your Honour's court. 

   The State has sought that the direction – well, the – that your Honour's direction to the jury, in terms of being criminally concerned – I'm using those words but obviously your Honour's formulating something somewhat more sophisticated than that – extends to her and also Dana Smith.  I, with respect to Knight, I agree, but with respect to Dana Smith – yes, no, actually, no, I do accept that that would be appropriate because Dana Smith was in possession of the key that was ultimately found to be placed – belonging to the unit at 25/40 Pioneer Parade, so her evidence somewhat might be considered to be falling within a similar category, in the sense of her connection with Mr Coventry.

   HIS HONOUR:  I must confess that I hadn't thought this through with Dana Smith.  What do you say I should say to the jury about – well, first of all, what evidence are you thinking of in her case.  She says she had a key which she gave to the police.  What have you got in mind in respect of what I should say to the jury about her evidence?

   MR HUGHES:  Actually no, I'm not going to pursue that, because there's – in terms of our case, there's nothing that Dana Smith said that we submit warrants warning.  I'm content with it extending to Elisa Knight and Dana Smith not being included within that.  She – her evidence sat – I'm not seeking warning with respect to her, because, with respect to what her evidence was, it sat with our case effectively, so I'm not seeking to have a direction be given in relation to her.  I don't know whether my learned friend might take a different view, but that's my submission." (Emphasis added.)

The supplementary summing-up

1. In order that the nature and extent of the amendments and additions to the summing-up requested by Mr Hughes when the learned trial judge had finished his principal charge (which were in the main accommodated by the learned trial judge) can be understood, and so that the particular direction complained of in the first ground of appeal can be placed in its context, I will jump forward in the trial to that point and set out in full what his Honour said to the jury in his supplementary summing-up. It is as follows:

   "Members of the jury part of the role of the judge in summing up a case to the jury is to not only give them directions about the law but to summarise what I perceived were the important parts of the Crown case factually, and the important factual elements of the defence case.  I explained to you when I was summing up that I did not intend to refer to all of the evidence, we'd be here for another six weeks otherwise, and so that it's part of your role to assess what you consider to be important.  And it's for you to draw what inferences from the evidence that you consider ought to be drawn and to making findings about the evidence. 

   But it is important that I in summarising the case refer to the important parts of the defence and the Crown contentions and so as a result of that there are a couple of more things that I am going to mention to you about the evidence just for the sake of ensuring that those important things are mentioned to you. 

   The first is about admissions which or statements which you might find may be admissions made by Mr Coventry, and a couple of the aspects of the evidence that I want to refer to.***  I didn't mention before but I mention now another piece of evidence from Sally Maher about this.  At page 1089 of the transcript she was asked about a conversation that apparently took place at a hotel somewhere:

   Did Mr Coventry tell you that he would do a video confession?…..Yes, he did.

   A video confession to what?…..Killing Ange.

   Could it been that Elisa Knight was present with you at that time?…..Yes.

   That he would make a recording on video that he was responsible for the death of Angela Hallam and/or Joshua Newman.  Correct?…..Correct.

   So that's a statement that Mr Coventry had made according to Ms Maher that arose in the course of her cross-examination, which I draw your attention to. 

   I also said in my summing up to you that in her evidence-in-chief Sally Maher said she didn't believe what Mr Coventry said to her when he first made comments that he'd admitted killing Angela Hallam.  But she went on to give some other evidence that, as a result of other things that were said, she – her belief about that was – I think this is a summary – challenged and I infer from that that's why that she – led her to ask Mr Rusterholz about it. 

   It's also the case that there was evidence from Ananda Hamilton, whose evidence I didn't mention earlier, that Mr Coventry said something to her after the murders had been committed:  'It won't be long before they' – referring to the police – 'come and get me'.  Now it's up to you to decide whether that's an admission that he was guilty of a crime, it's open to you to make that inference, and admissions as I've explained to you are important if you find they're made because as with Mr Rusterholz if you are satisfied that what Mr Coventry said was an admission that he'd committed the murders, and that was true, then it obviously follows that you must have a reasonable doubt about Mr Rusterholz's guilt.

   I didn't mention Ananda Hamilton's evidence, you should think back to her evidence, you can assess her demeanour when she gave evidence to accept and make the same assessments of her evidence as you do of the other witnesses. 

   As I attempted to explain to you this morning you cannot convict Mr Rusterholz of these crimes unless you are satisfied that his guilt is the only reasonable scenario consistent with all of the evidence.  It follows from that that unless you can exclude as a reasonable possibility that another person may be responsible for the crime, then you must have a reasonable doubt about the fundamental question.***  And that's why the evidence about Mr Coventry's movements was emphasised by counsel for the defence in his closing to you. Because the defence position is that Mr Coventry is not excluding (sic) by the prosecution case as a person who may have committed these murders.**

   And there are a few items of evidence which I just want to refer to or repeat if I didn't mention them this morning.  The defence referred to a GPRS entry item on the chart from Mr Ercole at the same time as the BP Newnham – sorry, go back, that's not right.  I think it was 8:41 or thereabouts and the defence relied upon the apparent coincidence between the time of that entry, that GPRS entry, and what it says that the possibility that the DVD surveillance time was out by an hour. 

   But that's not all.  Mr Coventry's own evidence, I was reminded, was that he went – after returning from the North West Coast went to Daphne Court at 8:15 or 8:30, and if his estimate of that time is correct then that's inconsistent with him being there at a later time. 

   I remind you also about the limitation of the usefulness of the evidence of the tower – the telecommunication tower evidence.  I said to you this morning that it's not – nobody said it was as accurate as for example a GPS, that the tower that's linked to is the one which uses the strongest signal from the phone, not necessarily the closest one, so it doesn't give a very accurate indication of time.  So there is a limitation on the extent to which you can use that evidence as corroboration of Mr Coventry's evidence about – or the State's case about when Mr Coventry went to Hobart. 

   And again I emphasise to you that unless you can exclude him as a person who may have committed the crime, then that would lead you to have a reasonable doubt.***

   I referred to–

   MR RANSOM:  Your Honour

   HIS HONOUR:  Sorry, go back – Mr Ransom?

   MR RANSOM:   I don't want to hold your Honour up–

   HIS HONOUR:  No.

   MR RANSOM:  The GPS evidence, sorry the evidence in relation to the cell towers isn't about time, it's about location and your Honour just said time to the jury.

   HIS HONOUR:  Oh I see.  Location, I think – hopefully the jury understood what I said about that.  It's about location, but – yes.  All right, so we are clear about that, I hope. 

   The next aspect of this is my summing up to you this morning about Mr Rusterholz's evidence – DNA being on the fuel container.  Now the Crown do not rely upon the presence of Mr Rusterholz's DNA on the fuel container as part of the State's case.  Mr Ransom said to you in his closing address that if – you would expect his DNA to be on a fuel container that was found in his shed.  But the point that I am trying to make to you is that it's the presence of the container in the shed that's relied upon by the State, but not Mr Rusterholz's DNA on it. 

   The next point is just to remind you in respect to DNA and Mr Morgan.  Mr Morgan's DNA on that container.  There is no evidence explaining to you how Mr Morgan's DNA got onto that container.  I think I attempted to explain to you that there may be a range of explanations consistent both with his guilt and his innocence about how his DNA got on there, but the fact is that there is no evidence at all of how his DNA came to be on that fuel container. 

   I am asked to remind you also in respect of the DNA on the taps at the unit that there is no evidence of DNA matching Mr Newman or Ms Hallam on the taps in the kitchen at the unit.  The defence of course would rely on the fact that you expect their DNA to be there if that's where they were living at the time.  But the only DNA from those taps that was found was that consistent – matching Mr Morgan. 

   In my summing up I mentioned to you the evidence of Jarryd Slater.  He was the person whose girlfriend lived next door and said that he'd seen – told the police that he'd seen something on the night.  And apparently there was some noise at a critical time when I was reading out what he said to you, so I just wanted to repeat that if I can find it.  Sorry ladies and gentlemen I know it's here somewhere.  Yes.  I read quite a passage from what he said to the police but the last sentence of it was:

   All I could say is that they weren't large build.

   Now remember he couldn't remember anything when he came to court but he told the police that he'd seen a car and some people on the evening of the 15th of August and the last sentence was:

   All I could say is that they weren't large build.

   The next thing I want to say is just to refer again to the evidence about the hair colour.  Remind you that Dr Ritchey's report was that the hair that he observed, he recorded as being brown hair.  He took what he referred to as a pulled hair scalp sample, and the defence on a couple of occasions referred to my Associate's hair colour as being what the witness' referred to as being blonde hair just so that – to avoid any misapprehension about what was referred to as blonde hair.  And so I would make those points to you to clarify what I said to you about hair this morning. 

   The next point that I wanted to clarify for you is the evidence about Sally Maher's conversations with Mr Rusterholz after the crimes were committed. I said that between the 17th of August and when she made her police statement on the 25th – I think I might have said October, it should have been September.  25th of September that she spoke to Mr Rusterholz again about the matter.  In fact her evidence was that she didn't begin talking to Mr Rusterholz again about the matter for a couple of weeks after the 17th of August, so that would put it towards the end of August until the 25th of September, and just to remind you that that's the time where there was surveillance – audio surveillance of the property at 466 Brooker Highway during that time. 

   I gave you some directions about how you can consider prior inconsistent statements of witnesses.  There's often evidence in cases that people say different things to the police or in the preliminary proceedings and then compare that with the evidence that they give in court.  And I postulated to you that there might be a range of explanations for that.  But I'm asked also to remind you that there were some specific explanations given by witnesses in this trial explaining why they said different things earlier which may be relevant to your assessment of their credit.

   Elisa Knight suggested that the police had fabricated or adjusted her statement. Ms Maher said that the police effectively took her to the police station, held her against her will and intimidated her and you will recall the conversation with Mr Rusterholz that there was evidence about seeking legal advice about how she had been treated.  But she also said that there were certain things that she'd forgotten, that she'd later said in court. 

   Now where there is a specific explanation given by a witness about why they said differently on an earlier occasion, and there may other examples of this, it's open to you to take that explanation into account in deciding whether you believe them or not. 

   I told you that there was – the next point is about the ashes.  Mr Imlach and the ashes.  I told you that I thought there was some doubt about when the evidence disclosed that Mr Imlach had actually gone and collected those ashes.  It's been pointed out to me that it seems to be the evidence that he at least had them in his control by the 19th of September when he spoke to the police.  Earlier in his evidence when he was being asked questions by counsel for the Crown he said that once he found out about these murders he collected – he went to collect the ashes and he gave them to the police, and this was within a day or two of the crimes. 

   Now it seems at least that he didn't give them to the police until the 25th of September.  The evidence doesn't precisely allow you to conclude when he actually went and got them, if he did in fact get them.  But it seems on the evidence that the evidence is that he had them in his control by the 19th of September. 

   As to those ashes I think I said to you this morning, but I'm asked to remind you again that those ashes when they were produced to the police, I think I said they had other rubbish in them, and I referred to a bottle and I corrected myself, there was a piece of glass in there, but there was also other rubbish, that's what the evidence was, including a can.  So I am asked to remind you about that as well. 

   Mr Imlach's version is that the metal item that was found in that rubbish was a boot cap, the inference being that that was the boot cap from the shoe that he said was in the bags that were burned.  There is no reason that it is in fact a boot cap.  It's a matter for you to consider.  The police did nothing to try and establish whether it was a boot cap or not or whether it was capable of being connected to Mr Rusterholz.  So you only have Mr Imlach's word for that.

   I want to make it clear to you that the defence relies on the relationship between Mr Imlach and Ms Maher and Mr Coventry in various ways, some of which we may not even know about, as supporting an inference that they have concocted or fabricated a story incriminating Mr Rusterholz.  You have evidence that Mr Imlach and Ms Maher spent time together after the murders.  Obviously had conversations during that time.  And there is a prospect – there was opportunity for them to concoct a story about seeing the hair. 

   I am not saying to you that that's what happened.  I am asked to remind you that there was an opportunity for that to occur and there's also connections that you've heard of between Mr Coventry and those two other persons, particularly Ms Maher, including contact between them relative – or right up until the time of the trial. 

   I summed up to you this morning in respect of the account that Mr Imlach had given to the police that Mr Rusterholz told him that Ms Hallam had been stabbed underneath the ribs.  I am asked to remind you that he also in cross-examination accepted that he described this to the police as her being stabbed in her side.  Now that's relied upon for two reasons by the defence.  First of all it's a different account again – well the defence says of what was said.  But, secondly, also it's contended that that's inconsistent with the physical evidence in the way that I attempted to explain to you this morning. 

   Now one relatively minor thing, I think I said to you this morning that Mr Rusterholz had arranged with Det Plumpton to present himself to the police in Launceston.  I don't think that's right, I think what the situation is that he spoke to Mr Plumpton on the phone on the 16th of August and then an arrangement was made, I think the evidence is, with his lawyer for him to present himself.  So it's a minor difference but it's important that I be accurate about that.

   Now there are only two other matters.  When I was summing up to you about the trip to Kingston, I suggested to you that you might consider why Mr Rusterholz would go with Mr Imlach to Kingston after he arrived in Hobart.  Now that was not – that was a suggestion that came from me inviting you to think about that.  It was not something that the Crown relied upon or placed emphasis on.  Mr Rusterholz's explanation for that in the police interview was that he went to look at the clubhouse with Mr Imlach, and of course you have evidence from Mr Imlach that joining the Rebels Motorcycle Club was something that was very important to him, that he may wish to impress Mr Rusterholz by showing him the clubhouse. 

   Now I have been at pains to you from the start of my summing up to point out to you that anything I say about the facts or inferences to be drawn from the facts, you can disregard or ignore if of course they don't coincide with your own view about the facts.  This is an example of that, it's a comment from me about the evidence.  You can disregard it, ignore it, if you wish to do so, it wasn't something the Crown raised, or relied upon, it was something that came from (sic), so I make that comment about it. 

   The Crown relies upon evidence that the car was burnt as evidence of conduct by Mr Rusterholz which is evidence of his guilt.  Now the defence position about that is that you should accept Mr Rusterholz's explanation for what happened to the car, and that there is other evidence which suggests that that's likely to be true, because there is no evidence that that car was used in the commission of the crime.  No evidence of being seen at the – near the Pioneer unit.  And no evidence of any obvious sign of it being contaminated by evidence which might incriminate Mr Rusterholz, for example, when Sally Maher or Brett Imlach travelled in it. 

   And so in considering whether or not Mr Rusterholz did in fact have the car burnt and he did so because of a guilty mind that that's evidence you can also take into account.  Of course, the defence position goes further than that.  It is that why would he remove items from a car before it was burnt which may themselves be contaminated.  Why would he act in that way at all.  But again I express no view to you about that.  These are matters for you to take into account. 

   Ladies and gentlemen just before I conclude I wonder if you would go into the jury room just for a moment and I can double check whether there is anything else that I need to raise with you." (Emphasis to the text of his Honour's remarks apart from passages of quotation have been added.)

Summing-up the case beyond the circumstantial

1. I now go back in time in the trial to return to the learned trial judge's coverage in his principal summing-up dealing with the evidence over and above the evidence of motive, means and opportunity.

2. First, his Honour dealt with the evidence of the absence of any forced entry into Ms Hallam's unit. He observed as follows:

   "So what other evidence is it that the State relies upon.  It seems to me it falls into three categories.  The first is, and it wasn't expressed by either counsel in these terms to you, that there was no evidence before you of any forced entry to the unit.  Now on the State's case that is a circumstance which suggests that the killer either had a key or was let in by Ms Hallam. 

   Now during the defence closing it was suggested that it's possible some unknown person came in through the laundry window, that that's a possibility.  Whether you consider that's possible or likely is a matter for you.  You heard quite a bit of evidence throughout the trial about whether Mr Rusterholz and others had access to a key to the unit.  You can assess that evidence, you may think that it's significant or not, it's up to you. 

   But the State would point out to you also however that if you infer that if Mr Rusterholz or indeed Mr Coventry or Mr Morgan had knocked on the door of the unit that night, the probability is you might find that whether they had a key or not they would have been let in. 

   So the existence of a key, who had a key, may or may not you think be of significance.  But as I say the State would say that the evidence does not seem to suggest – sorry, go back.  The State would say, I think it's impliedly asking you to infer from all of this evidence, that whether there was a key or not, all of the evidence suggests that the murderer was a person known to Ms Hallam, either because they had a key or that she would have let them in."

3. Next, his Honour turned to the fuel container found in the appellant's locked shed and the DNA extracted from it. He observed as follows:

   "Now the second category of evidence I can deal with relatively quickly and that's the fuel container.  Now this is the evidence of course of the presence of the fuel container in the shed at Mr Rusterholz's home at Daphne Court.  It was located by the police during their search on the 17th of August, which was two days after the crime.  And the evidence suggests that Mr Rusterholz had not been home again after travelling to Hobart before that search. 

   The State contends that Mr Newman's DNA was found on the fuel container.  You heard evidence and I am not going to go over it in detail from Ms McHoul, Ms McMahon and Dr Griffiths about the sampling procedures and the nature of DNA evidence.  I've already referred to you how the experts refer to the probability of DNA coming from another source.  The expert evidence is not that this is Mr Newman's DNA, and not Mr Newman's blood, the evidence is not expressed in those terms.  Dr Griffiths' evidence is in terms that the sample does not, when it is compared with Mr Newman's DNA, exclude it being that of Mr Newman, that is, that it matches on his comparison, Mr Newman's DNA, and the chance of another person in the community also matching is one in one hundred billion. 

   A number of swabs taken from that fuel container, which is in evidence, produced a match with Mr Newman to that probability.  So that's – I have just fallen into the same trap that I told you not to.  A match with Mr Newman and it is expressed in terms that the chance of it matching somebody else is one in a hundred billion.  One of those swabs taken in the second round of testing in November of 2013 confirmed the presence of human blood at the site of the swab. 

   The State contends that you can safely infer from this evidence that the source of the DNA was Mr Newman and that the source of the DNA from that particular swab was Mr Newman's blood.  The Crown suggests to you that the presence of DNA so strongly matching that of Mr Newman, should lead you to infer that there was contact between the container and Mr Newman.  That is, that in the absence of any other explanation it's strong evidence that the container came into contact with Mr Newman's blood, and what the Crown asks you to find is that this was the container used to pour fuel at the crime scene. 

   Now the State contends that that evidence links Mr Rusterholz to the crimes for two reasons.  First, because it was found in his shed.  Now as to that the defence contends that you can't be satisfied that it was Mr Rusterholz who put it there.  The defence suggests that having taken so much trouble to conceal any other evidence of his involvement if it was him that was the culprit, it's inherently unlikely that he would leave a container with blood on it where it can easily be found.  The defence says that you cannot exclude the prospect that another person put the container there, perhaps even as part of a plan to incriminate Mr Rusterholz. 

   As to those contentions the Crown would point, however, that the shed was locked when the police went there.  There was no evidence of forced entry.  It had to be opened with bolt cutters and this is on the 17th of August.  So to execute a plan to put it there the person, on the State's case, would either have had to have a key to the shed, or been able to get in there without any apparent sign of forced entry. 

   The second reason that the Crown contends that the container links Mr Rusterholz to the crime, is that on the Crown case analysis of a sample taken from the lower rear side of the container by Forensic Services Tasmania in November of 2013, was consistent with Mr Rusterholz's DNA being on that container.  Correctly expressed it doesn't exclude Mr Rusterholz and the chance of another person in the community also matching that sample was expressed as one in one hundred billion. 

   Now as I said the presence of that DNA was disclosed in the later report, the later FSST report in November 2013, which was dated the 29th of November 2013. 

   Of course you must first be satisfied that the source of the DNA is in fact Mr Rusterholz.  If you are satisfied of that then the State would contend that you should find that this is strong evidence of contact between Mr Rusterholz and the container and excludes the possibility that somebody else has purchased a new can or brought along a can which wasn't Mr Rusterholz's and used it to commit the crime and then planted it in Mr Rusterholz's shed.

   Now the defence contends that there is a chance that this DNA did not result from direct contact between Mr Rusterholz and the container.  Rather it suggests his DNA may have been transferred onto the container without direct contact from Mr Rusterholz, either by being contaminated by the searching police officers, that's why we had so much testing of the police officers about the way the search was conducted, or while it was in the custody of the various testing branches of FSST. 

   Now you heard extensive cross-examination of both the police and the FSST people about their systems for search, their systems for analysis.  I don't wish to go over it now.  It's for you to judge whether you think that this may explain why Mr Rusterholz's DNA on the Crown case was shown to be present on the fuel container.  Of course, his DNA could have been there for a perfectly innocent reason.  The presence of DNA, as I've already explained, doesn't explain when it came to on there.  In a way if it was his container, in his shed, you'd expect his DNA to be on there.  In fact the defence says that if it was his container, in his shed, you'd expect more of his DNA to be on there. 

   The Crown does not contend that Mr Rusterholz's DNA on that container goes as far as establishing that he was the person who had the container in his hand when the crime was committed, because the Crown accepts that DNA evidence does not establish that.  What it says is that the presence of Mr Rusterholz's DNA on that container establishes a link between the container and him.  It's a piece of circumstantial evidence to be considered along with all of the other evidence.  [This was later corrected by his Honour at the request of counsel for the State and the presence of the appellant's DNA on the fuel container, as well as that of Mr Morgan, was described as neutral]

   You've also heard that DNA matching that of Mr Morgan was on the fuel container.  Now I make the same comments to you about what the expert evidence discloses about this.  That evidence does not disclose how or why or when that DNA came to be present.  It may be present for an innocent reason.  It may be present for a sinister reason.  But there is plenty of evidence of an association between Mr Rusterholz and Mr Morgan before the crime.  Mr Morgan may have handled that container for a perfectly innocent reason arising from his association with Mr Rusterholz.  But again it's another piece of evidence to be considered in light of all of the evidence."

4. The third item of additional evidence his Honour referred to was the appellant's alleged post-offence conduct. He made the following observations to the jury:

   "Now the third category of evidence relied upon by the State, and this is something that I will need to spend a little time on, I am sorry, is that it contends that after committing the murders Mr Rusterholz told people what he had done.  And that he acted in a way which is consistent with, and evidence of, his guilt. 

   Now evidence has been given that the accused, Mr Rusterholz, said things to other people which amount to admissions.  Now admissions are statements or acts which are adverse to the result of the proceedings.  That is, that they suggest that he's guilty.  If somebody goes – the usual form of admission we think about is a confession to the police.  You go along to the police and you say, 'Yes I did it'.  Now that's not what is alleged here, at least a confession to the police. 

   What is relied upon by the State is the statements alleged by Mr Rusterholz to have been made when he arrived at 466 Brooker Highway in the early hours of the 16th of August and on some other later occasions.  Now we heard evidence from other people about what they say was said to them by Mr Rusterholz. 

   Now first of all there is a general comment that I will make about evidence of this type.  You will recall that it is not evidence of what people heard and saw themselves.  It's evidence of what someone else said to them about what happened.  So it's not evidence, for example, of Ms Maher being present at the scene and seeing Mr Rusterholz doing things.  All she is saying is 'Mr Rusterholz said this to me'. 

   Now normally in a criminal trial evidence of what someone was told by somebody else is not permitted, because it's what we call hearsay evidence.  But the law provides for certain exceptions to the hearsay evidence rule, and one of those exceptions is admissions.  It permits evidence of admissions even though it's hearsay.  And evidence of what was said, if it's accepted by you, can be used by you as evidence of the truth of what was said by the other person. 

   Now hearsay evidence can sometimes be unreliable because it depends on you finding not only what was said, but also the meaning that the person who said the words intended to convey by them, and then finally that what was said was actually true.  And I will go through that in each case with you and give you some examples of it. 

   Now it's important for you to bear in mind that when I am referring to this evidence that you remember that it's all the subject of very strong challenge by the defence.  The defence says that you should not accept any evidence from any witness about these admissions.  The defence contends, sorry go back.  The defence argument that you shouldn't accept these witness' evidence of admissions, relates not only to each of them individually, but collectively as well. 

   It seems to me, and it's a matter for you, that you might find that the defence contention that you can accept none of the evidence depends at least in part on their being some association between all of these witnesses.  Perhaps some motivation to get their heads together and lie for reasons which we may not even have heard about in this trial.  That is, the defence suggests that there's at least a possibility that they jointly conspired to lie, to incriminate Mr Rusterholz. 

   Now I'll mention the evidence of each of them about what they say Mr Rusterholz said to them but when I go through this evidence just bear what I've already said in mind.  Now as I've explained to you in dealing with admissions there are two questions that you have to consider.  First of all, was an admission made, what was said and what did it mean.  What was said and what did it mean.  And once you are satisfied of what was said and what it meant, the second question is was it true.  And the main issue in this case, as I understand it, is the first question, that is, whether you should be satisfied that any admissions were made at all. 

   In considering that question you're not only to consider the evidence of the person who said that they heard those words but all of the evidence.  You may take into account your assessment of their honesty and reliability as I explained to you yesterday.  Whether their evidence is supported, either in whole or in part by other evidence.  You must consider whether the evidence may be fabricated.  An attack was made on the truthfulness and the reliability of each of these witnesses.  So it's up to you to decide whether the State's evidence or part of it is true or may not be true. 

   If you are satisfied that some or all of these things were said then the next question is whether they were true.  As I've said the fact that something was said doesn't necessarily make it true.  If somebody says something to you two weeks ago you can tell me what was said but it doesn't make it true at the time.  But in relation to admissions you might think that a person would not usually admit to committing a crime unless that was true.  There may be situations where a person may make a false admission.  For example, if Mr Rusterholz had found out about the murders from some other source and then boasted about them to big note himself.  That's what's said about Mr Coventry by the State in this case.

   One of the ways you have to decide whether Mr Rusterholz said something in all of these things is to determine whether what was said disclosed some knowledge of the murders or some aspects of them.  And this is what the State contends in respect to what Mr Imlach says he was told.  And I'll explain that further to you in a moment. 

   If an admission was made whether it's then true, that is the second question, is in fact really the ultimate question for you.  That is guilt or innocence.  If you are satisfied that what Mr Rusterholz said was an admission that he committed the crime, and you are satisfied that that's true, it seems to me that that's enough on its own to be satisfied of his guilt.  If you are satisfied that he admitted the crime, and that what he said was true, then it must follow that you are satisfied of his guilt.  But in determining that, again you must take into account all of the evidence, the circumstantial evidence, in deciding whether you are satisfied beyond reasonable doubt. 

   Now the evidence that I am going to mention comes from Sally Maher, Matthew Coventry, Brett Imlach and Elisa Knight, that will take me a little while to work through all of that, so we might just have a break for five or ten minutes before I do it.  Yes all right, thank you."

5. The learned trial judge broke this exercise down on a witness by witness basis. The first witness he dealt with was Sally Maher:

   "… the first witness I want to deal with is Sally Maher.  There was evidence that she met Mr Rusterholz in February or early March of 2012 and they entered into a sexual relationship after they'd been together for a few weeks according to her.  She said that she agreed to that only after having spoken with Mrs Rusterholz, that's Rebecca Rusterholz.  She was a heavy drug user.  She agreed that she was an excessive user of amphetamines.  She had she said since her first or second meeting with Mr Rusterholz in March 2012 been selling morphine and Xanax supplied by him.  She was a drug dealer.  Initially she did so without profit but before long she would buy boxes of pills from Mr Rusterholz and sell them individually and she was making somewhere between at times $1000 and $5000 a day. 

   She said that she knew Angela Hallam but they weren't close.  She said that in August 2012 Marco Rusterholz told her that 'Angela Hallam wasn't going to be my problem anymore', that she understood to mean that he would walk away from his relationship with her, that's what she said. 

   Now her birthday was on the 4th of August, or is on the 4th of August.  There was a gathering at her house at Brooker Highway on the 15th of August.  She said Mr Rusterholz arrived – later arrived at Brooker Highway.  I think from memory she was comparing that with when Mr Coventry arrived.  'Later arrived at Brooker Highway around midnight, I believe'.  You can, of course, decide whether she might be mistaken about the time she gave.  She said she couldn't be exact with the time because she was pretty intoxicated.  When he arrived, that is Mr Rusterholz, she was inside but he asked her to go down to the front of unit block with him.  It was just her and him, she said, and this is what she said at page 1005 of the transcript:

   He had a green plastic bag with him and he said that he'd done it.  I didn't quite understand what he was talking about and I said, 'Done what?'  He said, 'I killed her.'  I said, 'Killed who?'  And he said, 'Ange.'  And I laughed because I didn't believe him and I was just like, 'Yeah, right.'  And which – so, he produced – he held out the green bag and opened it and I glanced at the bag and I could see a mop of blonde hair.  He said it was her ponytail.  I shrugged my shoulders as – I didn't believe – believe any of it and with that I scoffed at him and laughed and walked off.

   She said this bag was a green biodegradable supermarket-type shopping bag.  That's at page 1006.  I am telling you about this transcript page references, ladies and gentlemen, it's entirely a matter for you whether you want to look at the transcript or not.  You may remember all of this evidence.  You don't have to go looking for it.  She leant over the bag, this is Sally Maher's evidence, she leant over the bag, didn't touch it, but saw sort of an amount of blonde hair or what looked to be blonde hair.  She went back inside and Mr Rusterholz asked her to go for a drive with him as he wanted to get rid of the hair.  She said she asked Brett Imlach who was at the party if he could go for a drive with Marco.  She said in her evidence that at this point she did not believe that Mr Rusterholz had harmed Angela Hallam in any way.  She thought that he was just big-noting himself.  That she woke up the next morning and Mr Rusterholz was beside her.  And her girlfriend came in and read out that there had been two deaths in Launceston with a house fire. She believed or they believed foul play had taken place and it was Angela Hallam and Josh Newman.

   After that her evidence was that she tried to avoid Mr Rusterholz as much as she could.  He stayed another night.  That's the night of the 16th/17th.  She said she was in shock at the situation and was extremely scared.  She said that on the 16th Mr Rusterholz drove the car, that is, the Hyundai, about a hundred metres down the road to the house of her friend, Michelle Dean, and left the car there.  The little white car.  She didn't say Hyundai, they were my words.  She said the little white car. 

   Her evidence was that between the 17th of August and when she made her statement to the police on the 25th of October she spoke again with Mr Rusterholz about the matter and her evidence about this is at 1011.  She said this:

   I did ask a couple of questions on you know did he do the murder on his own or was there others involved specifically Matthew Coventry.  I asked him–

   – that is, Mr Rusterholz-

   – was Matthew involved in the murders and he replied that Matthew had nothing at all to do with them.   He said that he'd stabbed her and kicked her to the face to the point where the kick was that hard it lifted her off the ground and I asked if his wife had any involvement in it and he said that she had burnt his clothes after the fact of killing Ange.

   That's what Ms Maher said in her evidence that Mr Rusterholz said to her.  She asked Mr Rusterholz about Joshua Newman and her evidence was that he said:

   Other than he said he didn't know him but he was an innocent person involved and that he was there on the wrong day.

   She said some more about Mr Coventry's involvement.  She asked Mr Rusterholz:

   Because there'd been idle gossip throughout the house because of Covo's past involvement in a murder.  That he'd done it and he used to go around the house saying 'oh yeah just another one yep'.

   That's what she said Mr Coventry was saying.  She said:

   I asked Marco did Matthew play a part – a role at all in the murder of Ange and he said, 'no, he had nothing at all to do with it' were his exact words.

   That's what she said. 

   Now the defence position above her evidence is that you should not accept it.  And it advances a number of reasons for this.  She admitted that she was a heavy drug user, had been taking drugs when the events occurred at least on the 15th and 16th, that she told you about.  The defence contends that her claim to be scared of Mr Rusterholz after being told that he'd murdered Angela Hallam and Joshua Newman is inconsistent with how she behaved towards him between then and his arrest.  And then in her dealings with him after her arrest, sorry, his arrest. 

   The defence contends that she described seeing blonde hair which is inconsistent with Dr Ritchey's description of the colour of the hair. 

   Now as to hair colour this is a matter for you to assess.  I would just comment at this stage, again these are my comments, you are free to agree with them or not, but it's your job to do this.  But it seems to me at least that a description of hair colour is a very subjective one.  It may depend very much on the conditions in which the hair is viewed.  What conditions the hair being viewed has been exposed to.  Light conditions.  Size and bulk of the hair being observed.  Whether the hair is from the ends or near the roots.  The hair that Dr Ritchey observed had been exposed to the fire in the unit.  You can use your common experience about these matters to judge this evidence. 

   You will recall the evidence from Dr Griffiths about the difficulties matching hair even for scientists.  I'm pretty sure my wife wouldn't rely on me to be an accurate judge of hair colour. 

   Ms Maher's description of the bag in which the hair was contained the defence contends is inconsistent with Mr Imlach's description of the bags he said the hair was contained in.  The defence also argues that Ms Maher's mention of the pony tail was first made in her evidence in court and she'd not mentioned that in earlier versions she had given either to the police or when she was examined in the preliminary proceedings. 

   The defence claim that her claim that Mr Rusterholz told her that he kicked Ms Hallam to the face to the point where the kick was that hard it lifted her off the ground, is not supported by the evidence of Dr Ritchey who didn't observe any injury to her face or skull. 

   And finally it is contended by the defence that she has a possible motive to lie about Mr Rusterholz for reasons related to the drug trade.  Her association with other persons who move in those circles.  Personal animosity towards Mr Rusterholz.  Or for some other underlying reason that we may have heard no evidence about. 

   The Crown says that you can accept her evidence.  That you having observed her giving her evidence can accept her as a witness of the truth and that her evidence is corroborated by other witnesses.  Remember you are to consider her evidence in light of all of the other evidence, not just in isolation.  Those are matters for you."

1. The State squarely asserted its case on the basis that the appellant personally committed the acts which constituted the murders. It was not essential to the State's case that he was alone or without assistance when the crimes were committed, but it was asserted that he was the principal actor in respect of both counts of murder. As Estcourt J has pointed out, the evidence presented by the prosecution fell into two categories. Firstly, there was the evidence of admissions made by the appellant to Sally Maher, Matthew Coventry and Brett Imlach. These admissions were, in effect, explicit claims by the appellant that he had committed the murders. There was also the related evidence of Elisa Knight concerning a comment made by Sally Maher to the appellant in the bathroom of Ms Maher's house on the night of the murder, during the course of an argument, which suggested that they had been discussing Ms Hallam and the events earlier in the night in Launceston. Ms Knight also gave evidence that the appellant had showed her, during the course of the night, a large mark on the back of his head.  Secondly, there was a body of circumstantial evidence.  Some of the circumstantial evidence related to motive (evidence concerning his relationship with Ms Hallam, her involvement in assisting the appellant to traffic drugs, and the suggestion, from Matthew Coventry, that she had been stealing drugs from the appellant), means (evidence concerning the appellant's access to knives), and opportunity (telecommunications evidence, particularly that concerning the appellant's trip to Hobart on the night of the murder, evidence as to the approximate time that he arrived in Hobart, and the evidence concerning his access to Ms Hallam's house). There was also evidence which connected the appellant with the circumstances in which the murders were committed (the discovery of the fuel container in a locked shed on the appellant's property two days after the murders, and the detection of DNA on the container which matched the appellant and one of the victims), and evidence which supported the cogency of the circumstances in which the admissions were made (the burnt Hyundai motor vehicle and the location of a metal object, which the jury were invited to infer was the steel cap of a boot, in ashes delivered to the police by Mr Imlach).

2. On appeal, counsel for the appellant, Mr Cangelosi, submitted that, in the absence of the evidence of the admissions, the circumstantial evidence was not sufficient to support verdicts of guilt on either count.  Counsel frankly conceded that the evidence of the admissions, if accepted, would be capable of supporting such verdicts.  However, he submitted that the witnesses who gave evidence of the admissions were so unreliable, and their evidence so discredited, that a jury, acting reasonably, must have entertained a reasonable doubt concerning the guilt of the appellant.  Hence, the appellant's argument, in respect of ground 2, focussed on two essential propositions:

   (a)that without the evidence of the admissions, the circumstantial evidence was not sufficient to support a verdict of guilty against the appellant on either count; and

   (b)that notwithstanding that the jury had been adequately and appropriately warned of the danger of acting on the evidence of the witnesses to whom the admissions were allegedly made, because of various aspects of unreliability associated with their testimony, such testimony was so unreliable that no jury, acting reasonably, could act on that evidence to return a verdict of guilt in respect of either count.

3. I agree with Mr Cangelosi's submission that, if the evidence concerning the admissions is left completely out of account, the circumstantial case against the appellant could not have supported findings of guilt beyond reasonable doubt.  Whilst the circumstantial evidence established motive, means and opportunity, the only evidence which directly linked the appellant to the circumstances of the crimes was the location of the fuel container in his locked shed.  There were separate traces of DNA on the container, which had a high degree of probability of having come from the appellant and Mr Morgan respectively.  However, as the prosecutor, in his closing address, correctly conceded, all that this established is that the appellant and Mr Morgan may have had contact with the fuel container at some point in time, but not necessarily on the night of the murders. More cogent evidence was the location of biological material which strongly supported a conclusion that the fuel container had on it the blood of the victim, Joshua Newman. This connection to a victim of the crimes was compelling evidence which supported the appellant's involvement in the murders.

4. Despite this evidence, without the evidence of the admissions, it would have been strongly arguable that the prosecution could not exclude the reasonable possibility, consistent with innocence, that the murders had been committed by somebody else. The fact that the circumstantial evidence suggested that the appellant had been involved in, or even present during, the commission of the crimes, was not adequate to support, beyond reasonable doubt, a conclusion that he had struck the fatal blows. The prosecution had clearly asserted its case on that basis. Among other things, the defence pointed to the following aspects of the evidence:

   ·     Although the fuel container was located on 17 August in a shed secured by a padlock, there was no evidence as to the state of the shed prior to then, and, in particular, when the fuel container was placed there. The murders had been committed almost two days earlier.  The defence suggested that the container could have been put in the shed by somebody else.

   ·     The evidence located at the scene of the crimes, and the injuries inflicted on the victims, suggested that the commission of the murders had involved a significant struggle.  The extent of the struggle was emphasised by the fact that Mr Newman had experience and skill as a boxer.  Despite this, there was no forensic evidence, such as DNA, which placed the appellant at the scene of the crime.  On the other hand, the DNA of Mr Morgan had been found on a tap.  Of course, as Estcourt J has pointed out, there was evidence that the murderer's DNA may have been destroyed by the fire, but it remains the position that, apart from the fuel container, there was an absence of evidence which linked the appellant to the crime scene.

   ·     There was evidence which suggested that others also had motive and opportunity to commit the murders.  In particular, there was evidence which pointed towards Mr Coventry and Mr Morgan.  The evidence which tended to exculpate Mr Coventry (CCTV footage placing him at a service station at Newnham during the window of time within which the murders were committed, and telecommunications evidence which tended to establish that he was travelling to Hobart during the later stage of that window) was imprecise. In respect of the CCTV footage, in particular, the accuracy of the times displayed on the footage had not been independently checked and confirmed. In relation to Mr Morgan, there was evidence that he had been exchanging text messages with the appellant in the days leading up to the murders. The contents of those communications suggested that he had a wish to cause harm to Ms Hallam.  There was evidence that he was present at Ms Hallam's address earlier in the day, he had access to the premises and his DNA had been found on the taps in the kitchen of the premises and on the fuel container.  There was other evidence that he was present in Launceston on the relevant night, and travelled to Hobart, arriving at Sally Maher's residence shortly after the arrival of the appellant. There was also evidence that he had travelled to Victoria after the commission of the crimes. There was no evidence which excluded his involvement in the murders.

5. Accordingly, I accept Mr Cangelosi's submission that the evidence of and concerning the admissions made by the appellant after the murders was crucial to proof of his guilt.  However, once the jury accepted that the appellant had made the admissions contained in the testimony of Matthew Coventry, Sally Maher and Brett Imlach, or indeed any of those admissions, then the case against the appellant was compelling.  The admissions were explicit.  According to their testimony, he told each of the said persons that he had killed Ms Hallam and another young man, clearly Mr Newman.  According to Mr Imlach, the appellant provided details, which could only have been known by persons present at the time of the killings.  These details were confirmed by forensic evidence, which included evidence of the pattern of bloodstains, the location of those bloodstains, and the injuries to the victims.  There is also the evidence that, on the night of the killings, the appellant showed Sally Maher a bag which contained hair. Mr Imlach's evidence is that, at a later time in the evening, the appellant showed him a bag which contained hair and a black and grey steel capped hiking boot and then enlisted his assistance in burning the contents of the bag. The possession by the appellant of the hair and the boot was consistent with those items being taken from the bodies of the victims at the time of the killings. Mr Imlach said that he was shown the bag while the appellant was making detailed admissions to him concerning the murders. I reiterate that the probative force of this evidence, if accepted as true, was conceded by counsel for the appellant.

6. The real issue raised on appeal, therefore, was whether the testimony of the witnesses concerning the admissions, when considered in the context of the whole of the evidence, was so unreliable as to render the verdicts unsafe. 

7. There is no question that there are circumstances relating to each of the relevant witnesses that had the potential to affect the reliability of their respective testimony.  As a result, the evidence of each witness was the subject of a significant set of warnings by the trial judge as to the use that the jury could make of the evidence, the need to exercise caution before accepting the evidence, and in determining the weight to be given to it.  The appellant makes no complaint concerning the adequacy of these warnings.

8. Some of the matters which affected the reliability of the evidence are as follows:

   (a)Mr Coventry had a very significant criminal history including conviction for the crime of being an accessory after the fact to murder.  His record of offending also included a significant history of crimes of dishonesty. In cross-examination, he estimated that he had 75 prior convictions for such crimes. He admitted having previously lied under oath, and frankly conceded that he was a dishonest person. He agreed that he was heavily addicted to amphetamine and other drugs at the time of the murders. There was also evidence that he was heavily entrenched in trafficking illicit drugs, including morphine, as a "middle man" on behalf of the appellant. He conceded in cross-examination that Ms Hallam had stolen from him in the past. He agreed with defence counsel that he had made the claim that the appellant had made an explicit admission to him of having committed the murders for the first time at the trial before the jury, and had not said this in prior statements made to police.  Further, there was evidence that he had made admissions to others that he had, in fact, committed the murders, although he denied in his evidence, that he had made such admissions.

   (b)Mr Imlach also had a significant criminal history which included crimes of dishonesty and one prior conviction for perverting justice.  There was some evidence that he had made a request to police for money, property and the discontinuance of prosecution in exchange for giving evidence against the appellant.

   (c)In relation to Ms Maher, there were asserted inconsistencies between prior statements made by her to police and her evidence in court.  She had a significant drug habit and was using drugs on the day in question. There was also evidence that she was engaged in selling illicit drugs on behalf of the appellant.

9. The question for an appellate court considering a ground of appeal asserting that a verdict ought be set aside because it is unsafe and unsatisfactory is to determine, on its own independent assessment of the evidence, whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  As was explained in M v The Queen (1994) 181 CLR 487 and restated in MFA v The Queen [2002] HCA 53, 213 CLR 606, the question does not depend on whether, as a matter of law, there is evidence to support the verdict, but rather whether the jury ought to have entertained a reasonable doubt. In M, Mason CJ, Deane, Dawson and Toohey JJ said:

   "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." [Footnote omitted.]

10. The High Court confirmed again the need for the appellate court to conduct its own independent assessment of the evidence in SKA v The Queen [2011] HCA 13, 243 CLR 400.

11. However, in M, the plurality made it clear that in conducting its own assessment of the evidence, the appeal court must pay due regard to the advantage of the jury "of having seen and heard the witnesses".  At 494-495 their Honours said:

    "It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

12. The independent assessment of the quality of evidence, taking into account the inherent unreliability of a witness, in the context of a ground of appeal asserting that the verdict was unsafe and unsatisfactory, was the subject of the High Court's consideration in Chidiac v The Queen (1991) 171 CLR 432. Mason CJ said:

    "In resolving that question the court must necessarily recognize that issues of credibility and reliability of oral testimony are matters for the jury. For that reason, if for no other, an appellate court will infrequently set aside a conviction as being unsafe because the evidence of a vital Crown witness lacked reliability or credibility. Nonetheless, occasions do arise when a jury proceeds to a conviction when the Crown case rests upon oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree. Then the appellate court must discharge its responsibility to set aside the conviction as one which is unsafe. When that happens the court is not substituting its view of credibility for that of the jury; the court is giving effect to its conclusion that, notwithstanding the jury's apparent willingness to accept the particular witness or witnesses as credible, the evidence was, having regard to its nature and quality, insufficient to satisfy a reasonable jury of the accused's guilt according to the criminal standard of proof."

13. His Honour then went on to list a number of examples of cases in which verdicts had been set aside because of the unreliability of prosecution evidence, notwithstanding that the prosecution case was, in law, sufficient to sustain the charge.  The impugned evidence in Chidiac was from two accomplices of the accused.  The trial judge had warned the jury that it was dangerous to convict on their evidence, unless it was corroborated, because they were accomplices as well as "down and out villains" and "self confessed perjurers and liars".  In fact, his Honour had made a comment to the jury that "you will look very carefully at what they said before you would hang a dog on their evidence".  In the High Court, the justices all delivered separate judgments but were unanimous in their view that it was open to the jury to return the verdicts of guilt.  The common rationale for this conclusion was that, despite the unreliable nature of the witnesses, it was apparent on an independent assessment of the evidence, that their evidence was corroborated to a significant extent by other evidence.

14. In R v Charles [1994] 1 Qd R 597, Fitzgerald P and Leigh J considered Chidiac, and commented that:

    "Other than in the exceptional circumstances to which reference has been made in which background circumstances are sufficient in themselves to disqualify testimony from being a satisfactory basis for conviction, the ultimate focus must be on the evidence given by the critical witness at the trial. Any inherent improbabilities, contradictions, inconsistencies or lack of detail in evidence may be given added significance by the general background of the witness. It is deficiencies in the nature and quality of the evidence given at the trial, set in the context of the background circumstances, which must ordinarily provide the justification if an appellate court is to interfere."

15. This passage was referred to with approval by Slicer J in Rudman v The Queen [1997] TASSC 16.

16. In this case, the jury had ample opportunity to see and hear the testimony of the witnesses in question, and to assess the reliability of that evidence.  Each was subjected to detailed and competent cross-examination. The matters said to affect the reliability of the evidence were explored in considerable depth, and were the subject of appropriate warnings from the trial judge. I have read the transcript of the testimony of each witness carefully. Apart from establishing the surrounding circumstances which impacted on the objective reliability of the witness in question, it is a fair assessment that the crucial testimony of each was not significantly undermined in cross-examination, and was not clearly inconsistent with other circumstances established by the evidence. Further, it is of considerable importance that the guilt of the appellant was supported by the circumstantial evidence discussed above. The evidence concerning the fuel container, and the content of the text message exchanges in the days leading up to the murders between the appellant and Mr Morgan, provided particularly cogent support for the truth of the admissions. As already noted, this evidence, taken alone, also implicates Mr Morgan, but when considered together with the evidence of the admissions of the appellant, provides significant corroboration of the truth of those admissions, and consequently, the guilt of the appellant. Further, there was some specific corroboration of the fact that the admissions had been made at all.  This evidence included:

    ·     The blood pattern evidence of Debra McHoul which matched in a general way the circumstances of the murders, which Brett Imlach said had been explained to him by the appellant.

    ·     The location of a metal object in ashes delivered by Brett Imlach to a police officer, Sgt Jordan.  The relevant material was said to be the remains of property burnt by the appellant in the presence of Mr Imlach. The jury was invited to infer, particularly from its shape, that the metal object was a steel cap from the boot that Mr Imlach said had been shown to him by the appellant, in a bag which also contained hair, while the appellant was making admissions to him concerning the murders.

    ·     The appellant drove a Hyundai motor vehicle to Hobart on the night of the murder.  He told police in an interview that he had parked the motor vehicle in the street at Moonah on the evening of 16 August, had gone for a walk, and when he returned the vehicle was gone. However, Mr Imlach's evidence was that the appellant had told him that the car had to be burnt.  It was subsequently discovered in a burnt out condition.  There was evidence from Elisa Knight that on the night that the vehicle disappeared, the appellant had arranged for it to be cleaned out.  This evidence strongly suggested that the appellant had arranged for the car to be burnt and had lied to the police about that.  This evidence was consistent with a consciousness of guilt on the part of the appellant in that he had burnt the car in an effort to hide evidence, and then lied to the police about having done so. It also provided support for the evidence of Mr Imlach and Mr Coventry. In Mr Coventry's case, it resonated with evidence he had given that the appellant had told him that his car had been "blown up by Mr Krispy".

1. I am satisfied upon an assessment of the whole of the evidence, that it was open to the jury to return verdicts of guilty.  When the evidence of the admissions is considered in combination with the circumstantial evidence, the case against the appellant was strong.  The fact that the evidence did not necessarily exclude an involvement by Mr Morgan in the murders, in particular, does not lessen the weight of the evidence inculpating the appellant as the person who struck the fatal blows. The State did not assert that the appellant was alone when the murders were committed, and nor did the trial judge leave the case to the jury on that basis. The State case was, however, that it was the appellant who had committed the murders in the sense of striking the fatal blows with the intention of causing the death of the victims.  Ultimately, the jury was entitled to accept that the appellant had admitted his guilt about this, and that those admissions were true.  The ground of appeal asserting that the verdicts of guilt are unsafe and unsatisfactory is without merit.

2. I would dismiss the appeal.