Scott Alan May v Regina - [2012] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Scott Alan May v Regina [2012] NSWCCA 111
Hearing dates: 20 October 2011
Decision date: 31 May 2012
Before: Bathurst CJ at [1]; Simpson J at [342]; Harrison J at [417]
Decision:
(1) Appeal against conviction allowed, conviction quashed.
(2) Verdict of acquittal entered.

Catchwords: CRIMINAL LAW - appeal - conviction - evidence - whether verdict unreasonable on evidence
CRIMINAL LAW - appeal - conviction - joint criminal enterprise - whether misdirection in summing up to jury - whether extended joint criminal enterprise alternative should have been left to jury
CRIMINAL LAW - appeal - conviction - whether misdirection in summing up to jury - whether evidence capable of verifying key witness's account
CRIMINAL LAW - appeal - conviction - joint criminal enterprise - whether manslaughter alternative should have been left to jury
Legislation Cited: Criminal Appeal Act 1912 s 5
Criminal Appeal Rules r 4
Criminal Code (Cth) s 11.5
Director of Public Prosecutions Act 1986 s 19
Evidence Act 1995 Pt 3 Div 7
Listening Devices Act 1984
Surveillance Devices Act 2007
Cases Cited: Conway v R [2002] HCA 2; (2002) 209 CLR 203
Gillard v R [2003] HCA 64; (2003) 219 CLR 1
Handlen v R [2011] HCA 51; (2011) 283 ALR 427
Johns v R [1980] HCA 3; (1980) 143 CLR 108
M v R [1994] HCA 63; (1994) 181 CLR 487
MacAuliffe v R [1995] HCA 37; (1995) 183 CLR 108
MFA v R [2002] HCA 53; (2002) 213 CLR 606
Osland v R [1998] HCA 75; (1998) 197 CLR 316
R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527
R v LK [2010] HCA 17; (2010) 241 CLR 177
R v Mills [1963] 1 QB 522; (1962) 47 Cr App Rep 49
R v Milton [2004] NSWCCA 195
R v Ngo [2003] NSWCCA 82
R v Tangye (1997) 92 A Crim R 545
R v Taufahema [2006] NSWCCA 152; (2006) 162 A Crim R 152
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
RR v R [2011] NSWCA 235
SI v R [2007] NSWCCA 181
SKA v R [2011] HCA 13; (2011) 243 CLR 400
Category: Principal judgment
Parties: Scott Alan May (Appellant)
Regina (Crown)
Representation: Mr T Game SC; Mr D Barrow (Appellant)
Mr D Arnott SC; Ms T Smith (Crown)
The Law Practice (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2007/4832
Decision under appeal

Date of Decision:

2008-06-04 00:00:00

Before:

Rothman J

File Number(s):

2007/4832

Judgment

BATHURST CJ: On 7 May 2008, Scott May ("the appellant") was indicted on a charge that on 2 May 2003 at Rozelle he did murder Andrew John Heavens ("the deceased"). As an alternative count he was charged with being an accessory after the fact to the murder of the deceased by Mr Ryan Burnes ("Mr Burnes"). The indictment was an ex officio indictment, the appellant having been charged for the same offences on 20 September 2006 but discharged on committal.

Following a trial by a jury the appellant was convicted of the murder on 4 June 2008. He was sentenced to a term of imprisonment comprising a total period of 36 years commencing on 16 January 2007 with a non-parole period of 27 years.

By Notice of Appeal dated 29 November 2010, the appellant sought leave to appeal against both conviction and sentence. Leave was necessary to appeal against conviction at least for the reason the appeal was out of time. No objection was taken to the grant of leave and it should be granted.

The appeal against conviction

Four grounds of appeal were relied upon:

1The conviction of the appellant was unreasonable and cannot be supported by the evidence.

2The directions (both in writing and orally) given on the question of extended joint criminal enterprise were erroneous and occasioned a miscarriage of justice.

3His Honour's directions as to evidence available to "verify independently" evidence of Ryan Burnes occasioned a miscarriage of justice.

4The learned trial judge erred in law in failing to leave the offence of manslaughter as an alternative verdict for the jury's consideration.

Having regard to the nature of the grounds of appeal it is necessary to deal with the evidence as it emerged at the trial in some detail. I will adopt the language used by the witnesses where possible. The parties were able to reach agreement in respect of certain matters and produced an agreed chronology, which has to some extent assisted in the determination of the appeal. Production of such chronologies is to be encouraged particularly in areas where it is alleged that the verdict was unreasonable.

A copy of the agreed chronology forms an attachment to this judgment.

Grossly over-simplified the Crown case was that the appellant and deceased were drug dealers. The appellant sought to take over the deceased's business. On the evening of 2 May 2003, the appellant and the deceased in the company of Mr Burnes drove to Callan Park, Rozelle. The appellant agreed with Mr Burnes that if he (the appellant) gave a pre-arranged signal, Mr Burnes would shoot the deceased. At approximately 10.15pm at Callan Park Mr Burnes shot and killed the deceased. The Crown's primary case was that it occurred following a pre-arranged signal given by the appellant to Mr Burnes. Alternatively the Crown stated that it occurred in the course of a joint criminal enterprise as a consequence of which the appellant along with Mr Burnes was guilty of the murder.

Having regard to the agreed chronology there appears to be no issue that the deceased was killed at around 10.15pm on 2 May 2003. A number of witnesses gave evidence that around that time they heard what was variously described as three bangs or gunshots. All of them stated that they heard three bangs. Most stated there was one and then there was a pause before the second and third bangs.

There was evidence from a number of persons who observed the body of the deceased. Constable Barrett said that there was a cigarette butt between his two fingers on his left hand where the ash had burned down. Constable Hellessey gave the same evidence. He also stated that he found a large amount of cash on the deceased and two plastic lolly containers commonly used in the drug trade. Senior Constable Reilly gave similar evidence. She also stated that she saw two projectiles which were consistent with having entered the ground at an angle of 90 degrees. A Christiaan Pieterse who was described without objection as an expert in ballistics gave evidence. He stated he examined the deceased's body and observed three entry and three exit wounds. He stated they were probably discharged from the same gun, although he could not be 100 percent certain.

Detective Sergeant Kristina O'Hagan, an expert in the examination of firearms and ammunition, stated that she examined the ejection marks on the spent cartridges. She stated they were capable of being caused by a Colt 1911. Dr Botterill, a pathologist, stated the direct cause of death was the three gunshot wounds. The most serious was the first, but all three had caused damage because of what had occurred to the tissue of the lungs.

DN, who described himself as a heroin user, gave evidence. He stated he met the deceased, known as Al, approximately six months before 2 May 2003. He also knew Al's girlfriend, LM. DN gave evidence that he came to assist the deceased in the distribution of drugs. He stated that he and another man met the deceased at Circular Quay and the deceased gave each of them a mobile phone and some heroin. The heroin was in two lots; one for $100 deals and one for $50 deals.

About a week before the deceased was murdered DN said he had a discussion with Sean Rafferty. Mr Rafferty told him he could get a constant supply of good quality heroin.

On the day of the murder DN said he met the deceased at Circular Quay. He was given two M&M containers. He saw him later in the day with a scooter. He gave the telephones back to the deceased together with $3,200 to $3,400. He heard the deceased have a number of telephone conversations, including one with LM. In a different conversation than the one with LM, DN knew from what the deceased said that he (the deceased) was being delayed "because he [the deceased] had to go somewhere and do something".

DN said he went home at about 8.30pm. He got a call from Mr Rafferty. He said thereafter he met Mr Rafferty near Central Station and they drove to DN's house in Paddington. They arrived there around 1.00am. Mr Rafferty showed him three mobile phones. DN said that he had seen them before with the deceased. He said Mr Rafferty gave him heroin and a blue Siemens mobile phone with a SIM card to put in it.

DN said he knew the phone numbers of the deceased and tried to ring them. The phone was answered by Mr Rafferty. He asked where the deceased was. Mr Rafferty said "we are just runners and we will be sweet".

DN said he commenced to work for Mr Rafferty the day following the murder. Mr Rafferty told him he had to make what the deceased was going to make the other guy, being $11,000 per day.

In cross-examination DN agreed that when the police first spoke to him he went to great lengths to suggest he did not know Mr Rafferty. He was asked about a statement he made to the police in the course of which he said that about a week before the death of the deceased he received a call from a customer, Cass, who requested him to leave the deceased's employ and go and work for him. He agreed what he said was a lie and the person was really Mr Rafferty.

DN also said that he had known Mr Rafferty for some time. He said he was given a new number by Mr Rafferty about a week before the deceased was killed which he was to give to certain people.

In cross-examination DN said he saw the telephones in the car in which he and Mr Rafferty drove from Central to Paddington in the early hours of 3 May 2003. He said he was shown them whilst they were both seated in the parked car near his home at Paddington.

As pointed out in the agreed chronology the telephone records tendered at the trial show the following phone calls:

(a)A call from the deceased to DN at 6.19pm on 2 May 2003.

(b)A call from Mr Rafferty to DN at 8.57pm on 2 May 2003.

(c)A call from DN to Mr Rafferty at 9.01pm on 2 May 2003.

(d)A call from Mr Rafferty to DN at 11.43pm on 2 May 2003. The tower location which picked up the call was at the corner of Wattle Street and Pyrmont Bridge Road.

(e)A call from Mr Rafferty to DN at 12.47am on 3 May 2003. The tower location which picked up the call was Elizabeth/Hunter Street in Sydney CBD.

(f)A call from Mr Rafferty to DN at 0.55am on 3 May 2003. The tower location which picked up the call was South Sydney adjacent to "Erskineville 2".

(g)A call at 1.07am from DN to Mr Rafferty on 3 May 2003 from an unknown location.

(h)Calls on the blue Siemens phone (the phone DN said was given to him by Mr Rafferty) to the phone number previously used by the deceased as a drug phone. These calls took place at 9.47am, 9.49am and 10.02am on 3 May 2003.

Mr Sean Rafferty was called to give evidence. He admitted he knew the appellant, Scott May. He denied he knew the deceased. He denied that he received three mobile phones from the appellant, or that the appellant said to him "You'll be starting tomorrow. Here's your phones" on the night of 2 May. He denied he received a call from a person who thought he was Al on 3 May, or a call on that day from a person whom he thought was Al's wife.

He was asked about evidence that he had given to the Police Integrity Commission. It was put to him that he told the Commission he met the appellant either at his place or down the road. He said he could not recall telling the Police Integrity Commission this and then denied saying it. It was then put to him that he told the Police Integrity Commission that the appellant said to him "You'll be starting tomorrow. Here's your phones" and that he then told "Steve" (an alias for DN). It was also suggested to him that he told the Police Integrity Commission that he met Steve at Michel's Patisserie, the appellant having dropped him off, and that they went back to his (Mr Rafferty's) house and made the caps and sold them. He said he could not remember suggesting this to the Police Integrity Commission.

It was then suggested to him that he told the Police Integrity Commission that the appellant told him that the phones he (the appellant) gave to him were work phones, that there were three and that he tried them the next day. He said he did not recall saying this but he always lied when he was on heroin and would have done anything to "get out".

He denied he told the Police Integrity Commission that he had answered the phone and the callers thought he was the deceased. He denied that he said to the Police Integrity Commission that the deceased used to get a ferry across to the city.

That part of the video of Mr Rafferty's evidence to the Police Integrity Commission which was put to him was shown to him. He admitted it was a video of him giving evidence.

He admitted he made a statement to the police in July 2003, but says he was threatened that he would be charged with Andrew Heavens' murder. He said that at the time he did not know who Mr Heavens was. He said what he told the Police Integrity Commission was untrue and that the appellant, Scott May, was his mate.

I have already referred to the telephone calls between Mr Rafferty and DN. In addition, the telephone records in evidence indicate Mr Rafferty called the appellant at 7.26pm on the evening of 2 May 2003 and sent an SMS to him at 8.54pm. The records further indicate that at 8.55pm the appellant called Mr Rafferty. The tower which picked up the call was located at the Carslaw Building close to the University of Sydney. The records also indicated that a further call was made by the appellant to Mr Rafferty at 10.44pm. The tower location which picked up the call was Regent Street, Chippendale.

SM, who was DN's partner in 2003, gave evidence that DN provided drugs on "Al's behalf". She gave evidence that sometimes she would go to Circular Quay where they met Al who would supply DN with M&M containers containing drugs, and mobile phones. She was aware that Al was the deceased.

She said that she and DN met with the deceased around 7.00pm on the evening of 2 May. She observed the deceased had a scooter. She heard the deceased making a phone call to someone saying he would be late. She said she recalled that DN gave the mobile phones he had back to the deceased.

She said she went home and woke up in the early hours of the following morning around 2 or 3 o'clock. She said that Mr Rafferty and DN were there discussing heroin dealing.

In cross-examination she agreed that DN and Mr Rafferty had discussed going into a drug dealing business together on a number of occasions. She also stated she rang DN from time to time on the drug phones.

LM who was the partner of the deceased at the time of his death, gave evidence the deceased commenced to sell heroin in about March 2003. She said he used to buy it from the appellant whom she had met. She said the deceased first was into selling himself but as the business increased he employed two runners. She said that he used two mobile phones in the conduct of his business.

LM said that the deceased told her that the appellant had a conversation with him (the deceased) in which the appellant was saying he wanted the SIM cards because the appellant had given the deceased a start in the business. She said the deceased did not want to give them to him but she believed that they had come to an arrangement whereby the appellant would have one and the deceased would keep the other.

She said that on the day of the murder, the deceased left home at about 7.30am to drop off some heroin to his runners. He came home and he left again at about 4.00pm. She said he was carrying mini M&M containers which had the heroin, and a Nintendo Gameboy. He had the phones for his runners and probably his own phone.

LM said she spoke to the deceased twice, possibly three times, and that the last time was at 8.30pm. She said the deceased had told her that Scott was running a bit late and he was going to be home later on. She said that by Scott he meant the appellant, Scott May, and that the deceased said he was going to meet the appellant at Rozelle, Balmain.

She said she woke up in the morning and rang the hospitals and Central Police Station and no one had heard of the deceased. She said at about 8.30am she received a call from the appellant asking where the deceased was and that he had not showed up last night.

She said that a couple of days before the deceased's death, the deceased had told her that the appellant had said he wanted the "big fella" to come and work for him. She said the deceased was not very happy, but could not do much about it because the appellant had been asking for the SIM cards, and he, the deceased, wanted to keep on good relations with the appellant. She understood the "big fella" to be Steve (DN).

She said that she did not speak to the appellant again until August. She said she told the appellant that he was the deceased's best mate. She said the appellant responded, "But I'm not". She said she told the appellant "Well Andrew saw you that way. He saw you as a close mate, even though you were doing business together". She said that the appellant told her that what he felt was different. He also said that they (the police) have "got nothing on me, they can come and search my house, it's sweet".

She said the deceased smoked Winfield Blue cigarettes.

She said that when the deceased left home on the morning of 3 May 2003 he had the Gameboy and $16,000 to buy two ounces of heroin from the appellant.

In cross-examination she agreed that DN had worked for the deceased pretty much regularly for some weeks. She agreed she made a statement to the police on 3 May 2003 and that in that statement she gave to the police three telephone numbers, one of which was used for the runner known as Steve (DN).

She agreed that in that statement she told the police that the deceased got heroin from a person called "Matey". She agreed that she said in her statement that the reason he was called that was to ensure that if she was spoken to by the police she would not know his identity. She agreed that she said in her statement that she had never spoken to "Matey" on the phone.

She also agreed that in her statement of 3 May she said nothing about the appellant. She said she believed that the appellant and the deceased were friends.

LM agreed that she made a further statement to the police on 5 May 2003. She agreed she said in that statement that on the evening of 30 April 2003 the deceased told her that he was going to meet the person "Matey" and said "You know what? Matey thinks the SIM cards are his?" and, "we've had words. Nothing serious but I let him know he can own half".

She agreed that in her statement of 5 May she said that on 1 May the deceased told her "Matey" wanted Steve (DN) to work for him.

She said that from what the deceased told her the appellant wanted the deceased to have a four week break from selling drugs so either Steve (DN) or Sean (Mr Rafferty) could work for him.

She said that in her statements of 3 and 5 May she did not hold anything back but referred to the appellant as "Matey". She agreed that she said "Matey", not Scott May, when she spoke to police on 7 May.

She agreed she told police on 7 May that when she last saw the deceased on 2 May he had a large amount of cash with him, at least $8,000. She said she agreed she said $16,000 in her evidence but said she meant at least $8,000.

She agreed that the first time she told the police that she knew the appellant and that he was giving heroin to the deceased was on 9 May. She explained her early statements by saying that she was traumatised and out of her depth. She reiterated "Matey" was the appellant, Scott May, and said that in her earlier statements she did not want to point the finger at anyone.

Telephone records show that the deceased called LM at 7.59pm on the evening of 2 May and that she called the deceased's drug phone at 11.24am the next day in an attempt to locate him. The latter call is consistent with the evidence of Mr Rafferty to the Police Integrity Commission to the effect that he received a call from the deceased's wife on the morning of 3 May asking what had happened to him.

The phone records referred to in the agreed chronology also show that the appellant called LM at 7.48pm on the evening of 3 May whilst LM was at The Rocks Police Station.

A Mr Jamie Knipe gave evidence. He said he knew "Al". He said he broke into the window of an Audi vehicle at an underground carpark at Pyrmont and took a satchel bag. He said the bag had tablets in it which he gave to Al and received $3,000 in exchange. He said that some time later he gave the deceased a scooter. Subsequently in his evidence, he said that this occurred on 2 May.

He said he tried to ring the deceased on 3 May but to no avail. He said he found out the deceased had been murdered on the Sunday.

He agreed in cross-examination that he believed the pills were ecstasy tablets and he was worried about having them.

A Mr David Herr gave evidence. He lived in the same premises as the deceased and LM. He said he was with LM on 2 May around 6.30pm. He said that after about an hour she received a call from the deceased saying that he was going to be late.

He said that LM told him the next morning that the deceased had not returned. He went to the city with her. Whilst there she rang the deceased's phone but spoke to someone else. He said that he and LM ended up at the Union Hotel at Paddington where he met a person who was introduced as Steve.

Mr Herr said that the deceased had told him (he did not say when) that he (the deceased) had some ecstasy tablets.

A Ms Maria Papageorgiou gave evidence. She indicated that in 2003 she was a user of heroin and that she had a number for a particular dealer. She said as a result of using the number she would meet persons known as Al, Steve, J and later Phil, in the city centre near Broadway.

She said she met Al, the deceased, twice. She learnt that he was killed within a few days of him being shot.

Ms Papageorgiou said that the last time she had spoken to him before he was shot was on the Thursday or Friday when she asked him if he could wait round for her but he said he couldn't because he had to go and see his boss at Newtown.

She said she continued to meet Steve (DN). She had been given a different number to contact him by phone a fortnight before the death of the deceased.

The critical witness was Mr Ryan Burnes. Mr Burnes had pleaded guilty to the murder of the deceased and had been sentenced by Justice Fullerton.

Mr Burnes gave evidence that he first met the appellant when he was 13, that they became friends and that he lived in the appellant's home when he was 15 for about two to three years. He said he regarded the appellant as his best mate.

Mr Burnes said he spent New Year's Eve 2002/2003 in the company of the appellant. They went to the Unity Hotel where an argument started and the appellant was king hit. He said the appellant was upset and he and the appellant with other persons left the hotel and went to the appellant's home at Alexandria/Erskineville. Mr Burnes stated he went to the appellant's bedroom where he saw a magazine, a gun clip from a magazine and a couple of bullets on the bed. He said that the appellant had hurt his thumbs in the fight so he helped him put the bullets in the magazine. He stated that the gun was a 1911 Colt and the bullets were of a small copper bronze shape with a marking 45ACP on the bottom.

He stated that he continued to see the appellant in subsequent months. In April or May he stated the appellant came to his home and asked him whether he would do something for the appellant. He stated that the appellant asked "if I would go all the way for him". Mr Burnes said that the appellant was pretty agitated. He said that the appellant said he would ring the next day.

Mr Burnes said he next spoke to the appellant the day after that whilst he was at his girlfriend's mother's house. He claimed the appellant said to him "I will meet you out the front in about 10 minutes". He said he met the appellant in the front at about 9.30pm and the appellant told him that they were going to pick someone up, referring to him as Matey. Mr Burnes said that the appellant told him to look under the seat and he did and felt a gun wrapped in a shirt. He said he leant forward and got it from under the seat and identified it as the same gun he saw on New Year's Eve.

Mr Burnes said that the appellant said to him that "If I say I am going back to get me wallet out of the car" that was the signal to shoot.

Mr Burnes said that he went with the appellant to Market Town, Leichhardt and saw the deceased. He said the deceased jumped into the front seat. He also said that the deceased had a scooter with him and two phones.

Mr Burnes said he did not listen to the conversation between the deceased and the appellant but they ended up at Callan Park. He said that everyone got out of the car and the appellant told the deceased to put all the phones and everything else into the car.

Mr Burnes said that when he got the gun from under the seat he had placed it in the front of his pants and the gun was in the front of his pants when they got out of the car. He said that he did not hear the conversation that took place between the appellant and the deceased after they had got out of the car and whilst they were walking down the hill. He said it was normal until they stopped walking, after which there was a point where the conversation escalated and there was some sort of disagreement.

He recalled the deceased pulling out a smoke and offering him one. He said the deceased was smoking with his left hand.

Mr Burnes said that the appellant turned around and looked at him and said "I am going back to the car to get my wallet". Mr Burnes said he took that to mean to shoot. He said he shot the deceased. He said he pulled out the gun, unlocked the safety, shot him once and the deceased fell to the ground. Mr Burnes said he proceeded to walk away but he could hear him so he went back and stood over the top of him and shot him two more times. He said the gun was pointing straight down.

He said that thereafter he ran up the hill, jumped into the car with the appellant and drove off. The appellant said something like "I knew you would do it".

The appellant asked him if he wanted the phones and they were in the glove box. He said he opened the glove box and noticed there was two wads of money. Mr Burnes said he did not want the phones. There was a Gameboy there and he took the Gameboy and one of the wads of cash. He said he remembered the Gameboy was purple and there was about $4,000 worth of cash.

He identified the cigarette that the deceased had offered him as a Winfield Blue.

Mr Burnes was asked if he spoke to the appellant about what had occurred subsequently. He said the appellant cut him off and asked "What are you talking about?"

In cross-examination Mr Burnes stated that he understood he got a 25 percent discount on sentence for future assistance in relation to the prosecution of the appellant and that he was aware that if he did not give assistance he faced the prospect of his sentence being increased by a number of years. However, he denied it was the only reason he gave the evidence.

In cross-examination he said he was in fact 14 when he first met the appellant. He denied he told his de facto wife that his mother left him as a toddler at a bus stop and the appellant's mother found him and took him home and raised him.

Mr Burnes agreed that from age 12 he had been a patient in psychiatric hospitals diagnosed as schizophrenic and had psychotic episodes on a regular basis. He said the last one was four or five years ago. He agreed that he said at the committal hearing that even in September 2007 he still heard voices in his head. He said he heard voices all the time but it did not necessarily mean he was psychotic. He stated that he was on anti-depressants but he stopped taking anti-psychotic medication a couple of months before the time when he gave his evidence. He agreed he had been on anti-psychotic medication from time to time since he was a teenager.

Mr Burnes was cross-examined about conversations he had with a Dr Garside when he was a patient at a psychiatric institution, Redbank House. He stated that he did not recall telling Dr Garside that he had killed a number of people. He said he did not deny it but just could not recall it and said that if he had told Dr Garside that he, Mr Burnes, would have believed it to be true. He agreed he told Dr Garside he did not have any close friends at the age of 15.

Mr Burnes said that when he was discharged from Redbank House he went to live with his godmother at Enmore. He occasionally stayed with his own mother.

Mr Burnes agreed that he had some scars on his forearms from burn marks which he inflicted on himself. He said he did not recall telling Dr Garside that each one was for a past murder he committed. He subsequently denied he said that. He also said he did not recall telling Dr Garside that he had burnt down an entire school, although he did not deny he said it. He agreed he told Dr Garside that his father was killed in an accident and said the same thing to a friend of his, JM.

Mr Burnes had a number of conversations with JM whilst JM was wearing a listening device. Mr Burnes acknowledged in his evidence that he was now aware that the conversations he had with JM were being recorded by the police.

Mr Burnes agreed that one of the things he told JM was that his father in fact was not killed in a motor accident but he was someone who went by the name of Butchy Burnes who was one of the most notorious underworld characters in Sydney and was shot dead by Roger Rogerson. He stated he believed it to be true. He said that JM put the idea into his head and he believed it. Mr Burnes then said he was told it by other people, namely his aunties and uncles and that he knew that it was not rubbish.

Mr Burnes agreed that in 2006 he told justice health workers he was having panic attacks on a daily basis. He remembered describing the voices he heard as a running commentary. He agreed that he may have told a justice health worker that he had a special relationship with God and was an instrument of God.

Mr Burnes stated that he was admitted to psychiatric units because of schizophrenia not psychotic episodes. He was asked about a conversation he had with a Dr McClure in June 2006 and agreed that he told him he worried that he caused negative events, accidents and murders which were somehow related to him and were his fault.

He agreed he told JM he shot a person at Rozelle Hospital and that he might have said it did not worry him because he had been killing people since he was 14. He stated, however, that he was clearly "off my face" at the time of making the statement.

Mr Burnes stated he did not recall telling JM he had a tattoo on his shoulder that said "Hitman" but agreed that he had one since 1995 or 1996.

Mr Burnes agreed that from a young age he had used illicit drugs. He stated that he had smoked pot since he was 12 and that he was a regular consumer of cocaine, ice, heroin and benzodiazepam. However, he denied he went to Shellharbour Psychiatric Unit in 2005 because of his drug taking. Mr Burnes agreed that he told police that JM gave him copious amounts of drugs. He said he gave him drugs in February 2006 and that he was popping 20 "benzoes" pills a day.

Mr Burnes was further cross-examined about various fantasies he had. He said that at one stage he believed his children were being eaten alive and that there was a time when he had real difficulty in telling the difference between reality and what was going on in his head.

Mr Burnes agreed that he was interviewed by the police on 16 August 2006 at Surry Hills Police Station, the interview being with a Detective Morfoot and Detective McGregor. Mr Burnes agreed that he first told the police on that day that he was living at Nowra. He stated he was trying to deceive them. He also agreed he was trying to deceive them when he said he was living at Annandale. He stated that he did not want to bring the appellant into the interview. He said he was trying to keep the appellant out of the bad parts and to make the police think that he did not have any contact with the appellant after the murder of the deceased. He said there was some point in the interview when he decided to tell the truth. Mr Burnes also said he was not telling the police the truth when he claimed that because of the amount of drugs he pumped into his system, he had trouble remembering last week.

Mr Burnes said that he and the appellant started using the drugs at the same time but the appellant had got off them. He said he was aware that the appellant had gone onto a methadone programme.

Mr Burnes agreed he never said a word to the police about going to the appellant's apartment on New Year's Eve and finding a gun. He said that that was before he found out that the deceased had children. However, he agreed that at least six months before the interview he had been told by somebody, possibly JM, that the deceased had children.

Mr Burnes insisted that he did not mention the gun because of his displaced sense of loyalty. He agreed that in early May 2003 he was using cocaine and heroin but that it was a bit of an exaggeration when he told the police that in May 2003 he was doing drugs every day. He agreed that what he told the police about his drug use was deceitful.

Mr Burnes agreed that he was aware that there was nine years taken off his sentence for his agreement to give evidence against the appellant. He denied that he told ME, who is the girlfriend of JM, that his mother left him at a bus stop. However, he again said that he was left at the bus stop at the age of six and he went and lived with his godmother. Although he agreed he was living with his mother when he was about 12 or 13.

He said when he first knew the appellant he only stayed at his house on an occasional basis. He agreed he never told any psychiatric institution or hospital that he lived with the appellant saying that he did not want to get them into any trouble by saying he lived there.

Mr Burnes was further cross-examined on his conversations with JM. He agreed he told JM at the end of 2003 that he shot a person in Callan Park. He also agreed that in late 2003 he said to JM that someone was trying to set him up.

In cross-examination he did say he discussed the murder with the appellant. He said the appellant told him he was getting a bit of heat from the coppers. He said that was a couple of months after the murder. He said it was after this conversation that the appellant said "What are you talking about?" whenever he brought up the murder. He said it was like saying "Don't bring it up. Don't want to talk about it".

Mr Burnes was asked about a conversation he had with JM on 26 December 2003. He said he did not recall JM saying words to the effect "Tell me what the fuck happened" and him (Mr Burnes) saying "One night I spoke to Scott on the phone and he picked me up in his car. We drove to Callan Park. I got out of the car, walked up to him and shot him. I aimed at him and shot him." It was suggested to Mr Burnes that whilst he did that, he used both his hands as if he was firing a shotgun or a rifle. Mr Burnes subsequently stated that he did recall telling JM that he shot the deceased but he did not make any hand gestures.

Mr Burnes agreed that it was fair to say that from September 2005 he felt resentment towards the appellant because he was able to get off drugs. He agreed it was fair to say he suffered from extreme paranoia at the time.

Mr Burnes agreed that on 1 and 21 September 2005 he had lunch with JM at a hotel called "Dick's Hotel". He agreed that JM was suggesting to him that the appellant would be an informer to the police and that he (JM) was putting that idea into his head.

He was then asked about a conversation with JM on 21 December 2005. He agreed that at that time he said to JM that he was a person of interest in relation to the investigation of the death of the deceased and that he asked JM "Do you know the only one that can link it?" and that JM said "I think it's Scotty, and he will".

Mr Burnes agreed in that context that he was a person who, for many years, had suffered from extensive paranoia and that what JM said had the effect of him becoming quite concerned that the appellant would inform on him.

Mr Burnes was asked about the meeting he had with JM on 13 February 2006. He denied that on that day he pointed out to JM where he shot the deceased. He said he was not in Callan Park on that day but on the other side of Iron Cove Bridge.

Mr Burnes said he had heard of the deceased prior to him being shot in the context of him being someone who sold drugs. He stated he was pretty sure he met him in 2001 or2002. He said he was just a bloke named Al. He said that he met him just for five seconds through a car window. He agreed that he told the police in the first interview he had no recollection of seeing a scooter. This was amended in his second and third statements.

Mr Burnes agreed that the first time he ever said anything to JM about there being a signal to kill the deceased was in the conversation of 13 February 2006. It was put to him he said the signal was "I've got to go to get my wallet, all right, and that's for no, all right. If he said it, but he didn't say that. He started walking up the street so that was the go". Mr Burnes said "No, it would have been the other way around because going back to the car to get my wallet was the signal for the go". When it was suggested to him that what was said was in the recording, Mr Burnes stated that he was probably confused when he said it.

Mr Burnes agreed that to make the gun fire you would have to slide the barrel back to cock it and said he must have done so. He agreed he never mentioned to anybody about cocking the gun by sliding the barrel. He agreed he told JM "I pulled it up, clicked the safety off, he's heard the click. He's gone to turn around like that. Boom through here. He went down and he's gasping, he's trying to say something but I don't remember what he said and then, fucking, I just walked over the top of him and just, fucking, boom, boom". Mr Burnes said that what he said to JM was "One in the neck, two in the chest", bur he then said "That's my style, bro. One in the head, two in the chest. I was trying to get him in the fucking head, bro, but as soon as he heard that safety clip off". Mr Burnes said that he said that to JM because he was trying to impress him.

He agreed he told JM that the deceased said "Why? Why?" after the first shot and that Mr Burnes then said "sorry, bro, but boom boom". He said that was the truth. He said he still had no recollection of walking through the grounds of Rozelle Hospital on 13 February 2006 with JM and he did not remember pointing out any area where he said the shooting of the deceased occurred. He agreed he told him that the first shot hit the deceased in the neck.

He agreed that he told JM he still had the gun that shot the deceased and that was a lie which was "pill driven". He also said that when he told JM he had a 20 gauge shotgun which was his wife's and she liked the 45, it was all rubbish.

He agreed he told JM he shot his first person when he was 14 and had shot eight people in total.

Mr Burnes agreed that in April 2002 he used the appellant's name to pretend he was the appellant when arrested by the police. He said the police would have found out who it was the next day.

He was asked questions about a conversation he had with JM on 13 June, when JM had a Nintendo Gameboy. He agreed he said to JM "Matey had one of these", meaning the deceased and that he also said "And, fucking, he had a scooter as well. Pranged the scooter. Mel wanted to give it to her daughter" and that he told JM "They reckon that was the missing link, the scooter, so we just fucked it off".

He agreed that he told the police in August 2006 that he had no recollection of the scooter.

He also said he had no recollection of telling JM that he played the Gameboy for a couple of months and then took it to a "hock shop". He said he recalls saying he gave it to Mel (his girlfriend's) nephew.

He agreed he said to JM in this conversation that he took the two phones. Immediately after that he said he did not remember saying he took the two phones but that there were two phones and that he did not take the two phones.

Mr Burnes agreed he lied to JM when he said on 14 February 2006 he had ammunition for a 45. He said he was off his face on 14 February 2006.

Mr Burnes agreed he never mentioned to police in his first interview that he had seen the gun previously. He said it in a statement a couple of weeks later. He agreed he said in his statement to the police of 16 August 2006 that he had never seen the gun before and that he said "It was a handgun, I'm not sure what type", and then "I don't know I think it was a Colt". He denied he was aware that 1911 was printed on the side of every Colt 45 type gun. He said that before the night of the deceased's murder he had never held a handgun before.

He agreed that in his statement of 30 August 2006 to the police he stated he remembered seeing the gun at the appellant's place on New Year's Eve. He told the police that the appellant was wearing a shoulder holster on New Year's Eve. He agreed this was never mentioned in response to the Crown's questions.

He stated that the version he gave to the police on 30 August 2006 was wrong. He said he saw the gun on New Year's Eve once in the bedroom when the appellant asked him to put the bullets into the clip and then he hid it. He said he had about five minutes to look at the gun, contrary to his evidence at the committal proceedings when he said he saw it for a few seconds.

He agreed that he said to the prosecutor at the committal proceedings that he had seen a 45 prior to New Year's Eve, but said it was in shows and movies.

He denied that the first time he said he had any discussion with the appellant concerning the murder was in his evidence, saying he remembered telling the police that. He was then asked further about his interview of 16 August where he told the detective that the appellant would say every time he approached him "I don't know what you're talking about". It was suggested to him he said something similar in the interview of 31 August 2006.

Mr Burnes admitted that when he told the police that the appellant asked him to "knock" the deceased off and gave him details in his car the statement that they then "stopped at a few placed, one of which was a shop to get a drink" was dishonest. Mr Burnes said he said that because he had never done interviews and did not want to get anyone into trouble, he was very confused and very upset.

He said his recollection was that it was a two-door hatchback he got into, however his statement to police said that he got into the passenger side back door. He said the person who took the statement down must have been confused when he referred to the back door.

He agreed that in his interview of 30 August 2006 with the police he again said he got into the back passenger side door. He said that when he told the police in that interview "We just stopped at a set of lights, a set of lights at an intersection, bloke jumped in the front", he panicked, he wasn't being totally honest. He agreed that in the interview with the police he said he did not remember the route he drove to Callan Park. He said that all he remembered was getting picked up, stopping at Market Town and then going and parking at Rozelle.

He agreed that in the interview of 30 August he said "I don't remember shooting him. I don't even remember having a gun. I just had this feeling like I was going to die, I wasn't going to see anyone ever again". He stated that when he said this he was attempting to be truthful with the police.

He agreed he said to the police in the interview of 30 August "One minute he was having a smoke and then he was just making these sounds" and that he told the police that the appellant was in the car at the time. He said when he told the police the appellant was in the car at the time, he was not saying what he believed to be the truth because he was trying to block it out.

He agreed he told the police that the appellant sped out of the hospital grounds.

Mr Burnes reiterated that he got a call from the appellant at his partner's mother's house in Waterloo, and that it took place about ten minutes before he was picked up. He stated that the call came through on a landline.

He said on the night of the murder he was wearing black tracksuit pants. He agreed that he said at the committal hearing that the black tracksuit pants did not have a drawstring in them and that he needed to use one of his hands to hold the pants up so they would not fall down.

He stated he recollected holding the gun in his right hand. He agreed he stated at the committal hearing the gun stayed in his pants until he shot the deceased.

He stated without the weight of the gun pushing down on his pants he did not need to pull them up and he kept them up by holding on to the gun. He stated that if he held on to the top of the butt his pants stayed as they were.

Mr Burnes said he held the cigarette in his left hand while still holding the gun in his right hand in his pants. He said the deceased offered him a cigarette after the appellant said he was going back to the car to get his wallet. He said that when the deceased offered him a cigarette he was facing him and that he was right handed. He said that he still had the cigarette in his left hand when he shot the deceased.

He agreed he told the Crown Prosecutor in a conference that he had one glove on and acknowledged that he had not given any evidence about that. He agreed he told the Crown Prosecutor that "when I felt down the car for the gun that's when I put the gloves on". He said he had another gun in his pocket and he did it because of fingerprints. He said he could not recall saying earlier that he had wiped down the gun but said he would have wiped it down because he had touched it with his ungloved hand.

He reiterated that once he, the appellant and the deceased got out of the car the appellant said to the deceased "leave phones and the money in the car". He said they threw down their phones and the deceased put the money in the glove box.

Mr Burnes said that he did not see him put the money in his glove box but he must have done so. He said he saw him throw the phones on the seat.

He agreed that in the interview with the police on 16 August 2006 he told the police that he saw the deceased put money in the glove box but stated he did not actually see him put money in the glove box but he saw him put something in the glove box and throw his phones on the seat.

He agreed he told the police in the interview of 16 August 2006 that he did not remember how many phones there were. He said he was not being truthful at that time. He said that it was all new to him, he was panicking, he was scared, he did not know what was going to happen. He said he was concerned because the SIM cards out of that phone were getting used the next day. He said he knew that was happening because he was with someone in the city when it occurred.

He agreed that he told the police that after the murder the appellant gave him some money. It was a couple of thousand, about $5,000. He said that in saying that he was mistaken.

He agreed that he told the police on 16 August that he did not remember the appellant taking the money out of the glove box but just remembered having it on him. He said he did not know what he meant when he said that.

He was then asked further questions about his conversation with JM of 13 February 2006 when he told JM that he was going to be paid $40,000 in the next two weeks. He stated he thought he was in psychosis and he was just putting on a front for JM. He agreed that he told the police that it was not true he was going to receive $40,000.

He agreed that when he told the police on 16 August that he did not take anything of the deceased's he understood that they were suggesting that a Nintendo and Super Mario game had been pawned in the name of his girlfriend. He stated he held back because he was being dishonest. He said he was confused and very shocked.

Mr Burnes agreed that the police conducted a further interview on 18 January 2007. He agreed that on that day he gave the police a different version of events telling the police the shooting of the deceased was something he did off his own back and nothing to do with the appellant. On that occasion he agreed he told the police the appellant did not say "we got to kill this bloke" but rather "we've got to sort it out. Sort it out meaning, we got to talk to him... had to convince him". He said he was only there to backup the appellant. He agreed that he told the police in that interview that the conversation about a signal was "all bullshit... that was just confusion". He said he misconstrued the appellant saying "going back to the car" as a signal.

He explained that what he said in that interview was all out of misplaced loyalty. He decided to save the appellant. He decided to lie through his teeth.

He agreed he told the police that the last words the appellant said were "I'm going back to the car to get my wallet brother" and that that was the last real thing the appellant had to do with the situation. He agreed he told the police he then started to talk to the deceased and he came across all wrong. He said "We [the deceased and Mr Burnes] raised our voices, the deceased started having a smoke and turned his back on me". Mr Burnes told the police that he said "'Don't turn your back on me' and when he turned around he had his hand in his pocket and then bang I shot him". He agreed he told the police that as soon as he said "Don't turn your fucking back on me" the deceased turned around and he was expecting the deceased to swing a punch. He agreed he told the police the deceased came around with his hand in his pocket and "I jumped back and shot him". He agreed he told the police he could hear the deceased gurgling and gasping. He said it was all weird in his mind. He agreed he told the police that when he heard the gurgling it dawned on him that he had shot the deceased. He agreed he told the police that it dawned on him that if it was him on the ground he would not want to be lying there bleeding out and gurgling and he would want it finished.

Mr Burnes said he gave this version of events out of a misplaced sense of loyalty to the appellant.

Mr Burnes was then asked about an interview he had with a psychiatrist, Dr Westmore, on 16 March 2007. He agreed that he told Dr Westmore the truth of what happened to the best of his knowledge. He agreed he told Dr Westmore that the appellant approached him about two days before the murder and told him that he (the appellant) was in a bad situation that he could not get out of and the appellant asked him if he could sort things out. He said he understood the appellant to mean "Talk to the bloke, tell him to back up".

Mr Burnes agreed he told Dr Westmore he could not remember all the specific details of what occurred because he was "coked up and popping pills to calm down". However, he told Dr Westmore that the deceased and the appellant were talking nicely at first but then they started arguing. He said that the appellant then gave the deceased a "look, sort him out, talk to him".

He agreed that he then told Dr Westmore that he and the deceased commenced to argue. He stated that although he told Dr Westmore that, it was in fact untrue. They had never had an argument but rather the appellant and the deceased had argued.

He agreed that he told Dr Westmore that the deceased said "to mind your own business" and that he and Mr Burnes became agitated but later he had a cigarette with the deceased to try and settle him down. He acknowledged that was not the truth although they had a cigarette. He said he did not recall telling Dr Westmore that he had a gun with him, but he was not disputing it. He agreed that what he said to Dr Westmore is that all he knew of the deceased was that he was a big drug dealer, "he was abusing me and going off at me. He had his hand in his pocket and I shot him".

He agreed that there was no point in trying to deceive Dr Westmore.

Mr Burnes was then asked about the evidence he gave on sentencing before Justice Fullerton. He agreed he told her Honour that the deceased "brushed me off. Like he's [the deceased] giving me the sign, like, as if fuck off, you don't know what you're talking about, and he's turned around like that and then I sort of - sort of, like, went to grab him to say, like, don't turn your fucking back on me, you know what I mean, like". He also agreed he said in his evidence before Justice Fullerton that the deceased had his hand in his pocket which frightened him. He said he was paranoid and scared.

Mr Burnes said it was the truth when he told the Crown Prosecutor at the sentencing hearing that he got angry with the deceased but said "that was after I got the order to shoot. I wasn't going to shoot him in the back".

Mr Burnes went on to say "I said sorry when I shot him". It was suggested to him that he had never said that before and he said that he had.

Mr Burnes agreed he told the Crown Prosecutor at the sentencing hearing he expected to find a weapon under the seat of the car but did not know what it was going to be until he picked it up.

Mr Burnes then reiterated that if he did not get a signal he was not going to shoot the deceased. He said "It was never one hundred percent certain me jumping in that car that someone was going to die that night". He said he had no idea who he and the appellant were going to meet and why they were going to meet them. He said all he knew was what he was being told to do.

Mr Burnes went on to say that on the night of the murder he went with a man called Ivan to Redfern and bought drugs. He agreed that it was the first time he had said this but said no one had ever asked him before. He said that out of the $4,000 he took he gave the appellant $1,000 to mind for him because he knew he would spend it. He agreed he never gave that evidence previously.

Mr Burnes gave evidence that a week or two after the murder he and his de facto wife moved to Annandale and it was there the appellant came round and they had a chat about the whole thing and then after that it was never mentioned again. He agreed he had never given that evidence before.

Mr Burnes agreed that sometimes he had trouble saying what he meant and that he accepted at the committal hearing that when he was young he had trouble identifying fact from fantasy. He said that he still hears voices to this day and that he sometimes heard them in the witness box. He agreed it was true when he told the police in September 2007 that he really could not remember what happened on 2 May 2003 but said he remembered now because he was made to remember. He agreed that he thought on the day that the deceased might kill him.

Mr Burnes also agreed that he read certain things about the murder and heard about them on the street prior to speaking to JM or the police speaking to him.

Finally in cross-examination it was put to Mr Burnes that he did not shoot the deceased at all but just told JM he did to big note himself. He denied this. It was then suggested to him that if he did shoot the deceased the appellant was not there and he replied "Bloody oath he was". In re-examination Mr Burnes said that during the conversation at Annandale the appellant said for him to "keep his mouth shut" as he (the appellant) had just been "pulled over by some copper".

In re-examination leave was given under s 108 of the Evidence Act 1995 to put prior consistent statements to Mr Burnes. In that context he was referred to his statement of 30 August 2006 in which he made the following statement:

"I've gone into the room and Scottie's sitting on the end of the bed. I sat down next to him. He was trying to put some bullets into a clip. By clip I mean the clip that goes in a gun. He was holding the clip in his left hand and his thumb was straight. I saw the clip was black and bullets were like brass or copper coloured. ... He said: 'put these in'.

When I was doing that I saw on the back of the bullet on the flat bottom bit it said 45 ACP."

Mr Burnes also said in that statement he felt the gun under the bed and looked at it closely. "It had like a long barrel. It had a hammer at the end of it. There was no clip inside it. I put the clip I had with the two bullets in it into the handle".

Mr Burnes was also referred to his statement of 30 August when he said he remembered the car was a hatch. He stated that when he said in that statement he fired at a horizontal angle when the deceased was on the ground, he meant "straight down", and later agreed that this was vertical.

He was also referred to his statement of 31 August 2006 where he said he held the gun so that it was pointing at the deceased downwards, still in his right hand. "I looked at his face and saw his eyes open and said: 'Sorry bro'. I pulled the trigger and heard two more bangs". Mr Burnes said that was the truth.

Mr Burnes was also referred to his interview of 16 August 2006 where he said he did not stop anywhere else but Callan Park and said that was true. Finally Mr Burnes was referred to his 30 August 2006 statement where he said he heard a phone call and the appellant said "Meet you out the front in ten minutes". He stated that was true.

A medical record from Royal Prince Alfred Hospital in relation to attendance by the appellant on 1 January 2003 with a cut lip and pain in his thumb was tendered.

There was no record of any phone call from the appellant to Mr Burnes around 9.00 or 9.30pm on the evening of 2 May. However, on the following day between 5.39pm and 6.47pm there were four unsuccessful attempts made to call the appellant from a phone booth on Elizabeth Street, very near where Mr Burnes was then living. That was the booth from which the appellant had sought to call LM.

JM was then called to give evidence. He stated that he first met the appellant when the appellant was 10 and he was 13 or 14. He said he did not meet Mr Burnes until 2003 or 2004.

JM said he saw the appellant in company with Mr Burnes and that he (JM) and Mr Burnes smoked cannabis together.

JM said Mr Burnes told him that he was the person who shot the deceased at Callan Park. JM said he responded that he did not want to hear anything about it and wanted nothing to do with it. JM claims Mr Burnes said "he wanted me to more or less try and get people to put the bounce on Scott to get money out of him, and I said I didn't want nothing to do with it". JM said Mr Burnes claimed he had been ripped off.

JM said that on Christmas Day 2003 he had lunch with Mr Burnes and their respective girlfriends. He said he recalls watching the movie "Blue Murder" and Mr Burnes said the gun in the show was the same type of gun he used at Callan Park.

JM said he saw Mr Burnes the day after Christmas Day but he did not mention the appellant. JM said Mr Burnes had already mentioned the appellant and every time he brought it up he (JM) cut him off.

JM stated that Mr Burnes told him the appellant drove him (Mr Burnes) into Callan Park and the appellant "left something or grabbed something out of the car, and shoot, shoot Andrew Heavens". JM said that Mr Burnes told him the appellant picked him up and took the gun off him.

JM said Mr Burnes told him he was picked up in a car from Balmain and was driven to Callan Park.

JM said that he agreed to co-operate with police by wearing a concealed listening device when conversing with Mr Burnes. In cross-examination JM agreed that when he was an inmate at Silverwater Metropolitan Regional Remand Centre he told a police officer he was sick of Mr Burnes bragging about it. He said he first took Mr Burnes as a "bullshitter". He said Mr Burnes had told him his father was a man called Butchy Burnes who had been shot dead by Roger Rogerson.

JM agreed that he sold drugs to Mr Burnes from time to time.

JM was cross-examined on his first statement to the police of 17 March 2005. He agreed that in that statement he said that on Boxing Day of the previous year Mr Burnes said to him "I've spoken to Scott. Everything's been sorted out". He agreed he said "What are you talking about?" and Mr Burnes said "The money they owe me". JM added that Mr Burnes said he was fixed up with some kids' clothes and stuff like that, and never mentioned any money.

JM was referred to his statement to the police which recorded that Mr Burnes had told him there was a motorised scooter which was taken from the deceased, kept by somebody and was seized by the police in a raid. He stated that the person in question was not the appellant.

JM agreed that he met Mr Burnes at "Dicks Hotel" on 1 September 2005 and on 21 December 2005. He said he also met him on 13 February 2006 when he and Mr Burnes ended up going to fish underneath the Iron Cove Bridge.

He agreed that on those occasions he was fitted with a listening device.

JM said on 13 February 2006 he and Mr Burnes walked from his house at Petersham, along Balmain Road and into the grounds of Rozelle Psychiatric Hospital. He said that Mr Burnes said before they reached the park "Do you want me to show you where it happened?" He said that Mr Burnes pointed to a place where he said he killed the deceased.

JM agreed that on 13 February 2006 Mr Burnes said something about a signal he was given by the appellant in relation to the shooting of the deceased. He agreed that Mr Burnes told him that if the appellant said he was going to get his wallet that all was okay but that if he did not say that then that was the go to shoot him. JM also agreed that Mr Burnes told him that he still had the gun with which he shot the deceased but that he did not recall him saying that his girlfriend liked the gun.

JM agreed that Mr Burnes had told him that he burnt himself to say he had killed some people and that he had been dumped by his mother at a bus shelter and raised by the appellant's mother.

JM was shown a DVD recording of an occasion when he was with detectives showing them where he and Mr Burnes had walked through the hospital grounds and where he had indicated certain things to them. He confirmed that what he told the police on that day was the truth in terms of what Mr Burnes had told him.

Following this evidence the Crown was given leave under s 38 of the Evidence Act to cross-examine JM. In that cross-examination JM gave evidence that Mr Burnes told him he moved the body the same night after he shot the person within a minute or two of the shooting taking place. JM then agreed that the deceased never actually said that but said he shot him in one place, then pointed to another place within a couple of minutes. He agreed there was nothing about this in the recorded conversations. He said there were other conversations he had had with Mr Burnes which were not on tape.

JM agreed he made a statement on 20 February 2006 containing an account of the fishing trip. He agreed that he said in his statement: "Ryan talked to me about something to do with the signal that Scotty had given Ryan to do it. Ryan said that the signal that Scotty gave to him was something to do with his wallet".

JM affirmed that the following part of his statement was pretty accurate:

"Ryan told me that when the guy heard the click of the gun he turned his head towards Ryan, and Ryan missed his head and shot him near the throat or neck. I said something to him about whether or not the guy he'd shot was gasping or gurgling. Ryan then said 'nuh', and something about the guy trying to talk. I asked him: 'What did he say?' Ryan said that he couldn't talk, but he thought he was trying to say: 'Why?' Ryan said something about the guy falling to the ground, and he then walked as if he, as if re-living what had happened around an imaginary spot on the ground. Ryan appeared to lean forward and with one of his hands pointed at the ground with two fingers extended in the face - in the shape of a gun and said something similar to: 'Bang, bang, two in the chest.'"

JM agreed that Mr Burnes said nothing about a second spot and nothing about moving a body or dumping a body, during the walk down to the fishing spot. JM said that he could not remember whether that in fact was said or not. He agreed there was nothing about it in his statements and he could not recall any untaped conversations in which Mr Burnes told him about moving the body.

ME was called. She gave evidence that in 2003 she was in a relationship with JM and that towards the end of 2003 she met Ryan Burnes and his girlfriend Melissa Riley.

She recalled Mr Burnes and Ms Riley talking about a person named Scott. Mr Burnes sometimes referred to him as being his brother.

ME stated that at some point when Mr Burnes was at her house, she understood from a conversation that she overheard that Mr Burnes claimed to have killed a person at Callan Park and that he still had the gun. She remembered hearing that his girlfriend Melissa Riley liked the gun.

ME stated that when Mr Burnes and Melissa Riley came round after Christmas 2003 they appeared to be smashed on drugs.

The next witness called was a Mr John Collins. He was a heroin user who knew a dealer by the name of Al. He did not know him by any other name.

Mr Collins agreed he commenced to work for Al. He met him at Circular Quay where he gave Mr Collins drugs in an M&M container which he sold for Al.

He met another man doing the same thing whose name was Steve.

Mr Collins said that Al gave him a phone to use. He also noticed that Steve had a mobile phone. He stated that Al gave him the phone at 7am and he would hand it back to him at 8pm at night with the money and the unsold drugs.

On Saturday 3 May 2003, Mr Collins went to Circular Quay and waited. Al did not turn up so he rang the mobile phone he was usually given. He said someone answered and stated "This is not Al's business any more".

Mr Collins said that he saw Steve on the street about a week later selling heroin. In cross-examination he agreed he subsequently learned that the person he knew as Al was Andrew Heavens.

In cross-examination Mr Collins agreed he worked as a runner for Al for ten days straight until the Friday he had the day off which was the day before he found out that Al had died. He agreed that before working for him he went to Circular Quay and met Al and met Steve as well who was with his girlfriend. He agreed that Steve asked him "What are you doing here?" and that he, Mr Collins, replied "I am here as Al's runner" and Steve said "Well, so am I". He agreed that Al said he would pay "$350 a day cash and $200 worth of gear".

Mr Collins stated that while he was working for the deceased, the deceased told him he had bought 5,300 tablets of ecstasy from a street kid named Jamie. He did not say when exactly he obtained that ecstasy, or from whom they were stolen.

Mr Collins also gave evidence that a few days before Al's death, Al told him that Steve was only going to be working for him for a couple more days, and then he was going to be working for someone else. He agreed that he said to Steve after the deceased's death: "The cops will find out who's done it." His recollection was that Steve said he had nothing to do with it.

Melissa Riley, the partner of Ryan Burnes at the time, was called to give evidence. She said she knew the appellant and his partner, Selina. She said that Mr Burnes did not talk about the appellant very much.

She said that she remembered going to a pub on New Year's Eve 2002 and that someone hit the appellant and that Mr Burnes hit that person.

Ms Riley agreed that around the start of 2003 she and Mr Burnes lived with her mother at Waterloo. She denied remembering seeing a Nintendo Gameboy at the home and denied taking it to a local pawnshop and pawning it. She identified photocopies of her Centrelink card and Medibank card but repeated she did not pawn the Gameboy.

She agreed in cross-examination that she was asked whether she recognised the signature on pieces of paper apparently used to pawn the Gameboy and she stated she did not. She agreed she told Detective McGregor that someone may have taken her cards.

Detective Sergeant Kerfoot attended the crime scene. He gave evidence that that afternoon he met LM with Mr Herr. He heard LM take a phone call and say "Hi Scott. Scott, no, he's dead. Scott, he's dead. They found him at Callan Park". Detective Sergeant Kerfoot said that he did not tell LM how the deceased had been killed.

Detective Sergeant Kerfoot stated he searched the Manly apartment shared by Mr Burnes and LM with LM's consent. He recalled LM saying that the person Scott she had been speaking to was a really close friend of Andrew. She said that Scott and his partner had recently moved to the Leichhardt area.

Detective Sergeant Kerfoot said that LM told him that the deceased was using two runners, persons named Steve and Shane Bourke. He said she told him that the deceased was getting heroin from a person called "Matey" but she never knew who "Matey" was.

A statement obtained from the appellant on 7 May 2003 was read to the jury. So far as relevant it stated as follows:

"I first met Andrew Heavens about a year and a half ago. We first met at Clinic 36 which is in Regent Street, Chippendale. This is a Methadone Clinic. ...

I know that Andrew lived with his girlfriend [LM] in Manly before he died. I have never been to their place in Manly. Before that he used to live in Annandale on Booth Street, just up the road from me where I lived in the Annandale Lodge on Johnson Street.

I used to see Andrew two or three times a week, sometimes more. That was usually at the clinic. ...

The last time I saw Andrew was last Wednesday night, 30 April 2003. Earlier that day at the clinic I had spoken to Andrew about getting some State of Origin tickets off him. We arranged to meet later that night at Newtown. No price had been mentioned at this time. He wasn't sure what price or how many he could get, what seats they were, et cetera.

I met Andrew that night at Newtown around 6 to 7pm. We met near the RPA Hospital near a little reserve on the main road. He had about half a dozen tickets on him. He wanted $150 for each general admission ticket. I only wanted two ... but the price was too much for me. ...

Andrew did ring me after that, but not until Friday 2 May 2003. He rang on my mobile phone about 5pm. I was at home. He said: 'Mate, I need to catch up with you I need to have a chat'. I said: 'Yep, no worries. I can't see you until about 8.30pm tonight at the markets'. He said: 'No worries'. That was the end of the call. Andrew never mentioned what he wanted to see me about. ...

The markets are the fruit markets next to Leichhardt Market Town. ... I left home alone about 8.15pm and drove to the markets. On the way Andrew called me as I was running late. I was meant to be there at 8.30pm. Andrew said: 'How far are you?' I said: 'I'll be there soon.' He hung up. I got there about five to ten minutes later and Andrew wasn't there. It was my understanding that Andrew was going to be there by himself ... I waited for him for about five minutes but he wasn't there. I drove around the block around the shopping centre a couple of times looking for him ... Before I left I rang him once on the mobile but his phone came back as uncontactable. This could have meant there was no reception. I then drove straight back home and got there around 9.15pm. I didn't try calling him again. ...

The next day Saturday 3 May 2003, I called Andrew on his mobile phone about lunchtime. The phone came back with the same message as the night before, that it was uncontactable. ... I hadn't heard from Andrew all day so I called [LM], his girlfriend, on her mobile phone. That was after dark, sometime after dinner. I said: 'Can I speak to Drew?'. She said: 'I'm at the police station because Drew's been murdered'. I said: 'No, you're joking, are you all right?'. She said: 'I'm in the middle of talking to the police'. I said 'Well, you've got my number call me'. I then hung up.

[LM] hadn't rung me back since then ...

About a month ago I heard on the street from a bloke named Craig at Clinic 36 that Andrew had either bought or got a big bag of Ecstasy tablets off some junkie who had broken into a car and found these tablets and stolen them. I don't know where or when this was supposed to have happened. I didn't hear any price paid for these.

I have also heard that Andrew was involved with some heavy people. By heavy I mean connected criminally. That is all I can think of."

Detective Sergeant O'Keefe gave evidence that he executed a search warrant at premises in Rosebery which he understood to be where Mr Rafferty lived. He found one Siemens brand mobile phone with an IMEI number of 3[XXXXX XXXXX XX]5.

A statement of Mr Stephen Pitty was read. He said he lived near Rozelle Hospital. He heard what he interpreted to be gunshots and went outside and saw a car travelling at a speed faster than normal. He said it was within 30 seconds of the shooting. The car was plain white in colour, a four door hatch. He saw three persons in the car. The two in front were definitely male. He was not sure about the person in the rear.

A Detective Senior Constable Glen Morfoot gave evidence. He stated that on 16 June 2003 LM gave him a proof shot containing some photographic images and she told him that those images were photographs of the appellant, Mr May. He said she told him that the person depicted in those photographs was the person in the earlier statement she had referred to as "Matey".

She identified a person called Selina as being with the appellant in some of those photographs.

Detective Morfoot said he executed a search warrant on an entity called Fast Money in Redfern in relation to a Nintendo Gameboy. He stated that four documents were seized and he identified them as pawn slips relating to a Gameboy and Super Mario game in the name of Melissa Riley. They were pawned on 15 May and 14 June 2003.

Detective Morfoot stated that the person who pawned them provided identification by way of a Centrelink card and Medicare card. Those cards in the name of Melissa Riley were subsequently located by police and photographed. The pawnbroker documents were submitted to an expert along with specimens of Ms Riley's signature. The handwriting expert said it was likely but not certain that the signature on the pawnbroker documents was that of Ms Riley.

Detective Morfoot gave evidence that the following matters relevant to the murder were not the subject of any public statement. First, the calibre of the ammunition used. Second, the fact that the bullets could have been fired by a 1911 model 45 calibre Colt handgun. Third, that the deceased was shot once in the left shoulder area and twice while lying on the ground. Fourth, that the deceased when found had his right hand in his jacket pocket, that a cigarette butt was found in the left hand of the deceased with some ash still attached when the police initially got there and that a packet of Winfield Blue cigarettes was found on the deceased.

Detective Morfoot also gave evidence that on 23 July 2003 a listening device was placed at the premises then occupied by the appellant and his de facto wife Selina Markos. An extract of a recording of 7 August 2003 was tendered in which the following statements were made:

"... I've already made a fucken statement, you know what I mean, I'm just fucken you know, like just fuck off, I've done what I fucken had to do for youse mate, you know. I wish I hadn't even done it now, you know what I mean? (indecipherable) hassle me ...

I haven't fucked up, you know what I mean, but I just fucked up by making a statement ..."

Detective Morfoot gave evidence that on 13 June 2006 the appellant and Mr Burnes were placed in a room at Parramatta Police Station and their conversation was monitored. An extract of what was recorded was tendered in evidence. In the course of it the appellant is recorded as saying that Mr Rafferty had "buckled ... He was talking shit, mate. About this, a bit of this, a bit of that, you know what I mean?" He was also recorded as saying that Mr Rafferty was "starting rumours ... People just have to keep their mouth shut". It also records the appellant saying that Mr Rafferty "caused me much fucken headaches and drama and shit for me that I've got nothing to do with".

Detective Morfoot also gave evidence that all that was found at the search of the scene was a body located at a particular place, cartridges near to it, and three bullets, two of which were immediately underneath the body of Mr Heavens or where his body had been and one which was nearby.

Detective Morfoot also said that, from the information he had received from sources, a scooter the deceased had on him on the night of his death was not motorised.

Detective Senior Constable McGregor gave evidence. She stated the first volume of the brief of evidence was served on Mr Burnes' legal representatives on 17 October 2006.

Ground 2 of the Notice of Appeal

It is convenient to deal first with the second ground of appeal, namely, that the directions (both in writing and orally) given on the question of extended joint criminal enterprise were incorrect and occasioned a miscarriage of justice.

The submissions leading to the directions on joint criminal enterprise

In his opening address, the Crown made the following remarks in relation to the charge of murder against the appellant:

"You will see, members of the Jury, that the first charge says that Mr May, on 2 May 2003, did murder Andrew Heavens. The prosecution case, on that charge, is not that Mr May actually personally killed Mr Heavens, rather, the charge is that he caused another man, Ryan Burnes, to kill Mr Heavens. He asked Mr Burnes to do it, encouraged Mr Burnes to do it, he took Mr Burnes to the place where the murder occurred and he provided him with the firearm which Mr Burnes used to do the killing. That, in a very brief one-liner, is the prosecution case on the first charge."

The accused was also charged in the alternative of being an accessory to the murder. The Crown in opening explained that charge in the following fashion:

"The possibility which the second charge relates to is that, if you are not satisfied beyond reasonable doubt that Mr Burnes was acting at the request or direction of Mr May when he killed him but was possibly acting for some motive of his own, independent of any command or request by the accused when he killed the deceased. But knowing that, Mr May then still drove him away from the scene of the murder to protect Mr Burnes from getting caught for the murder.

So it is an act of assistance to a murderer to escape the consequences of what he did. That is the alternative charge. You would only go to that alternative charge if you were not satisfied, beyond reasonable doubt, that it was actually Mr May who, to use a shorthand word for it, commissioned the murder but you were satisfied that he was there, he was present and he drove Mr Burnes away."

Prior to closing addresses and the trial judge's summing-up, there was extensive discussion between the Crown, counsel for the appellant and the trial judge, as to the appropriate form of directions to be given. Although not ultimately relevant to the determination of the validity of the jury directions, the exchange illuminates the nature of the difficulty in this case.

In that context the Crown initially said (T969) that if the jury thought that what Mr Burnes said was substantially true but that he had misunderstood the signal, the accused would not be guilty of murder. However, on the following day the Crown changed its position. In that context the following exchange occurred (from T972):

"HIS HONOUR: My understanding of the way in which you were putting the case against Mr May in relation to the first charge, forget the second charge, is that, if you like, there was a common purpose, that is, a joint criminal enterprise between Mr May and Mr Burnes.

CROWN PROSECUTOR: Yes.

HIS HONOUR: Have I got that wrong?

CROWN PROSECUTOR: No. That's correct.

HIS HONOUR: You are not suggesting accessorial liability for murder in that sense on the first charge?

CROWN PROSECUTOR: No. They were engaged in a joint enterprise.

HIS HONOUR: So that would mean even if Mr Burnes was, say, for example, by reason of mental defect not guilty of murder, Mr May would be?

CROWN PROSECUTOR: Yes.

It was central to the Crown case, and not in dispute, that both Mr Heavens and the appellant were heroin dealers, and that the appellant supplied drugs to Mr Heavens for the purpose of on-sale to customers. Mr Heavens' heroin selling business flourished, and he received larger quantities from the appellant, to the point that he himself employed "runners". One of the runners was a man who has come to be known as "DN", who used the alias "Steve". DN gave evidence that a dispute arose between the appellant and Mr Heavens, concerning control of the business. From the evidence of DN, it would appear that this dispute was resolved. Mr Heavens' then partner, known as "LM", gave evidence to similar effect concerning a dispute, although, on her evidence, the dispute was not resolved so amicably. With this background, I turn to the critical evidence of Mr Burnes.

In evidence in chief Burnes gave, so far as can be gauged from a reading of the transcript, a concise and coherent account.

Although I have given above a brief précis of the Crown case, I consider it would be helpful to refer, in a little more detail, to the evidence given by Burnes in chief.

He said that he had known the appellant since he was about 13 years old, having met him when both were students at a school called "Edgeware". He had, in fact, lived for a time in the appellant's home. There was then a period when he had no contact with the appellant, but contact was resumed in about 2002. He said that he spent New Year's Eve 2002 in the company of the appellant, eventually at a Balmain hotel. There a fracas ensued, in which the appellant was involved, and was "king hit" by another person. He suffered an injury to his lip. He and the appellant, and others, then left the hotel and went to the appellant's home at Alexandria or Erskineville. The appellant was upset by what had occurred. When leaving the hotel the appellant reached for a railing, causing injury to his thumb. Later, Burnes went into the appellant's bedroom (where the appellant was with his de facto wife). There Burnes saw a gun clip from a magazine from a gun and a couple of bullets on the bed. The appellant had a gun, into which he was attempting to insert the bullets. The gun was a 1911 Colt. Because of the injury to his thumbs, the appellant was unable to insert the bullets, and Burnes did so (at the appellant's request) for him. Burnes said that they then hid the gun. He said that the appellant and his de facto wife left the house, saying that they were going to have the injury to the appellant's lip attended to. (This evidence was not directly relevant to the Crown case that the appellant was involved in the murder of Mr Heavens. It is evidence of a corroborative nature, as to detail, to which I referred earlier. Its significance will become apparent in due course.)

Burnes then said that in late April or early May of 2003 the appellant visited Burnes at Burnes' de facto's mother's premises in Waterloo. He appeared to be "pretty agitated", "visibly upset about something". He did not explain his upset but:

"He just asked me if I would go all the way for him." (T 382)

The appellant did not explain this request.

Two days later the appellant telephoned Burnes, and arranged to meet him out the front of the Waterloo house where Burnes was staying. This was about 9.00 or 9.30 pm. Burnes did not regard this as unusual.

The appellant did pick up Burnes, in a two door hatch back vehicle. Burnes sat in the back seat. The appellant told him they were going to pick up somebody to whom the appellant referred to as "Matey". Burnes had the impression that the appellant did not want him to know who "Matey" was. (Burnes later learned that "Matey" was Mr Heavens.) The appellant told Burnes to look under the seat. Burnes did so and:

"... I felt a gun in the shirt."

The gun was under the passenger seat. Burnes took the gun from under the seat and placed it down the front of his pants. Burnes then gave this evidence:

"He [the appellant] said, 'If I say I am going to get me wallet out of the car', that was a signal to shoot." (T385)

He said that the subject of shooting someone had been mentioned earlier, when he first entered the car with the appellant.

The appellant then drove to Marketown at Leichhardt and pulled over. Mr Heavens was waiting, and entered the car and sat in the front seat. Burnes did not know Mr Heavens.

The appellant drove to Callan Park (a location Burnes knew) and drew up in a small car park. All three men alighted from the car. The appellant told Mr Heavens to put all their telephones in the car, and the three walked down to a grassed area. Burnes was about two or three metres behind the other two.

The appellant and Mr Heavens were talking but Burnes did not hear any of the conversation. After a little while they stopped. Burnes thought that they had begun a disagreement. Mr Heavens took out a cigarette and offered one to Burnes. Mr Heavens was smoking his cigarette using his left hand. The cigarettes were Winfield Blue.

Burnes then gave this evidence:

"They lowered, like the voices they calmed down a bit, kept talking for about another 30 seconds. Then [the appellant] turned around, looking at me, said 'I am going back to the car to get my wallet' and he walked off."

Burnes took that to mean that he was to shoot Mr Heavens, and he did so. He said:

"Um, pulled the gun out the front of my pants, unlocked the safety, shot him once, he fell to the ground. I proceeded to walk away. I could hear him and so I went back."

He said that Mr Heavens was "gasping and gurgling". Burnes therefore:

" ... went back and stood over the top of him and shot him two more times."

At this time, the gun was pointing straight down.

Burnes ran back and joined the appellant in the car and they drove off. Initially, there was no conversation about what had happened, but, later, the appellant said:

" ... just something like, he knew I would do it."

He:

"called me a mad cunt or something like that."

At some point Burnes wiped down the gun and returned it to its place under the seat.

The appellant drove Burnes home. He asked if Burnes wanted the phones that were in the glove box. (Burnes did not.) He saw there were two "wads of money", of which he took one, and also a Game Boy that was in the glove box.

That concluded Burnes' evidence in chief.

He was cross-examined at considerable length, and to considerable effect. The attack on the Crown case consists largely in an analysis of the damage said to have been done to Burnes' credibility as a result of the cross-examination. In evaluating the evidence adduced, it is important to remember that Burnes was no more than a witness in the prosecution case (although a crucial one). The provisions of Part 3, Division 7 of the Evidence Act 1995 applied. Prima facie, although he could be cross-examined, within the limits prescribed by s 103, as to credibility, evidence with respect to his credibility could not be adduced (s 102).

It is apparent from the structure of the cross-examination that defence counsel had access to a very large volume of material relevant to Burnes' credit. This was put to Burnes systematically and logically. It makes, however, for a cross-examination that is not easy to follow, even on paper. I have no doubt that it was difficult for the jury to follow.

Some propositions put to Burnes he accepted. Others he rejected. At times he appeared to accept (or reject) a proposition, and then take the opposite position. In respect of some propositions it is impossible to be sure what his response was intended to be. What is clear to me is that his evidence lacked, to a considerable degree, the reliability necessary to found a criminal conviction. In reaching this view, I have, to some extent, taken a somewhat liberal, or flexible, approach to the analysis of Burnes' evidence. I have, for example, assumed (where the transcript permits that reasonably to be done) that defence counsel had material in his possession to support the propositions contained in his questions. In what follows I have endeavoured to make clear where I have taken that course.

Burnes has given accounts of his asserted involvement in the murder of Mr Heavens on a number of occasions. The first, it is to be noted, was on 16 August 2006 - more than three years after the murder. He was then interviewed by police, and the interview recorded. The interview was a lengthy one. He was interviewed again, over two days, on 30 and 31 August of that year. This resulted in lengthy statement. On 18 January 2007 he was again interviewed, this time with the protection of an undertaking that any disclosure made by him would not be used in evidence against him (see Director of Public Prosecutions Act 1986 s19), resulting in an "induced" record of the interview. Although Burnes was cross-examined from the records of these interviews none of the records was itself in evidence.

In addition, on 16 March 2007, Burnes gave an account to Dr Westmore, a psychiatrist, presumably to be used in his sentence proceedings.

The next account given by him of which there was evidence was given in committal proceedings of the appellant, on 3 September 2007. Finally, on 8 June 2007, he gave evidence in the Supreme Court in his own sentencing proceedings.

Of some importance in the cross-examination, also, were transcripts of conversations with a witness whose identity has been suppressed and who can be known as JM, in and around February 2006. These were recorded pursuant to warrants issued under the Listening Devices Act 1984 (now repealed and replaced by the Surveillance Devices Act 2007).

Also available to defence counsel were medical records, some dating back to 1995, when Burnes was 15 years of age, and others made by Justice Health employees, while Burnes was in custody in June 2006. (In what circumstances he was then in custody does not emerge.)

Also available to defence counsel were notes of a conference held by the Crown Prosecutor and his instructing solicitor with Burnes on 28 March 2008. It appears that these may have been made available to the defence in a commendable recognition by prosecution lawyers of their duty of fairness.

Cross-examination of Burnes began with the proposition that he gave evidence in chief in the terms he did in order to preserve the reduction in sentence he had obtained by reason of his promise to assist in the prosecution of the appellant.

He denied that proposition. His denial received a substantial boost in re-examination, when he gave his reason for giving the evidence that he had. He is recorded as saying:

"I've been coming to gaol all my life. All right. I've done a lot of bad things in my life. This is the worse [sic], by far, and it wasn't even my shit. He knew I'd do anything for him, and I did it. Now I'm going to be in gaol until my forty [sic] my son will 18. My daughter will be 16 and that's it. For what? I don't know what. I was just did it [sic] and he knew I would do anything for him."

However, from the Crown point of view, that was probably the high point of Burnes' evidence. Defence counsel asked Burnes, at length, about his psychiatric history.

He said that he had first met the appellant when they were both enrolled in the school (Edgeware) to which he had earlier referred. He said that this was:

" ... a behavioural school for kids who muck up at school so like your last chance."

The cross-examination that followed established that Burnes was a witness whose psychiatric stability was severely compromised. He was born in June 1980. On his evidence, he was diagnosed at the age of 12 (in about 1992 as schizophrenic). He gave a history, to which I will come in more detail, of prolonged illicit drug use and multiple psychiatric hospital admissions. By the time he gave evidence (in May 2008) he had been in custody for almost two years (he was arrested on 16 August 2006). He had, until shortly before giving evidence, been treated with anti-psychotic medication.

He agreed that, at least from the age 12, he had had psychotic episodes on a regular basis. He said, however, that he had not had a psychotic episode "for a long time", and that the last was about "four to five years ago", that is, four to five years before May 2008, when he gave evidence against the appellant. However, he agreed that, in the committal proceedings of the appellant, he had accepted a proposition that at that time (September 2007) he still heard voices in his head from time to time. He said:

"That's the downfall of being schizophrenic, you hear voices all the time, but that doesn't necessarily mean that I'm psychotic.

This was not the only time that Burnes drew a distinction between schizophrenia and psychotic episodes. Whether, medically speaking, this is a valid distinction does not appear on the evidence. He was asked whether, when he had psychotic episodes, he heard voices in his head, telling what he should do, or what he should have done; he replied "sort of".

Moreover, he agreed that, in June 2006 (before he was aware that he was suspected of involvement in the murder of Mr Heavens) he described, to Justice Health employees, the voices in his head as "a running commentary". He denied, however, referring to the voices as "a committee". But at a different point in the cross-examination, he agreed that, in the committal proceedings, the following evidence had been given:

"Q:And the voices have told you things in a way where you have believed them or you have said to psychiatrists over the years that you believe there is a committee of people or beings that put messages into your head, you have told doctors that over the years, haven't you?

A:Yeah.

Q:And that this is also to do with something from outer space or whatever?

A:Yeah, I don't know about that, but, yeah the committee thing.

Q:Do you believe the committee put ideas on your head to tell you to do things, correct?

A:Yeah."

Burnes agreed that, over his lifetime, he had been institutionalised in psychiatric institutions about six times, either in hospital, or in the prison system. As an adolescent he had come under the care of Dr Garside, a psychiatrist. It was put to him by counsel (apparently on the basis of psychiatric records) that he had told Dr Garside that he had killed a number of people, including by kicking them to death. He did not deny having said that, although he did not recall doing so; he said that he had not kicked anybody to death, but that if he had told Dr Garside that he had, then at the time he probably would have believed it; he would not have said it if he did not.

For the purposes of the present exercise I am prepared to act on the basis that the psychiatric records are as encapsulated in the questions asked of Burnes in cross-examination, and that Dr Garside did indeed record assertions by Burnes to the above effect.

Burnes was then asked about burn marks on his arms, which were self-inflicted. It was put to him, again clearly on the basis of medical records, that he had told Dr Garside that each scar represented a murder that he had committed in the past. He denied any recollection of giving such a history to Dr Garside. After further cross-examination, Burnes denied having made such statements to Dr Garside. Again, since the questioning was clearly based on medical records (and no objection was taken by the Crown Prosecutor, who, the transcript reveals, was assiduous in ensuring accuracy and fairness in the questions put to Burnes) I am prepared to act on the assumption that the records did contain material to the effect of the propositions contained in the questions put to Burnes. Burnes pointed out that he was 15 years old at the time he was treated by Dr Garside. At a later point in the cross-examination, when being asked about what he had told Dr Garside, he said:

"I was disturbed, a young kid. I wouldn't have been in hospital otherwise."

Again, reference was made to evidence given by Burnes in the committal proceedings. This evidence was there given:

"QJust going back to the suggestion you were making to certain people over the years that you had killed a number of people, do you recall saying to any of those doctors or the person [JM] for example, or anyone else that at one point you felt that those burns you had inflicted on yourself were a memorial for each of the persons you had killed?

A:I probably said that, yeah."

In the trial, he said of that evidence:

"Under the influence of some heavy drugs I might have [said that], yeah I don't remember half the conversations that were recorded with [JM]."

He expressly did not dispute that those conversations had taken place.

Burnes agreed that he "may have" told Justice Health employees (in 2006) that he had a special relationship with God, that he heard God's voice telling him that he cared about Burnes, and that God was the only one who did. He agreed that he then said that:

" ... everyone was out to get me all the time."

He agreed that, on the same date, he told another psychiatrist, Dr McClure, that he worried that he caused negative events, accidents and murders, and that they somehow related to him and were his fault. He was asked what other murders (apart from that of Mr Heavens) he thought he had caused. His reply is recorded as:

"It wasn't; it was just how bad, like from what I said after I shot Andrew I thought that I had like a massive dose of bad karma coming to me so anything I'd see that was going wrong around me, whether it be on television or my family or whatever, I thought it was because of the karma I was bringing around."

He could not remember telling doctors such as Dr Garside that he had been killing people since he was in his early teens. He did agree that, at 16, he had told a social worker of a four-year history of "voices and screaming inside his head" and that he suffered "paranoid delusions" of being stalked and attacked because of his "bad deeds". He agreed that, when he was quite young, the voices in his head had told him to kill his younger brother, and that in response he had taken his brother into the laundry, poured turpentine on the floor and set it alight. He said that he did this because he did not want his brother to experience voices in his head, or suffer from schizophrenia.

It was put to Burnes that he had told JM (in February 2006) that he was unconcerned about the murder of Mr Heavens because he had been killing people since he was 14 years of age. It is, and was, apparent that this question was taken directly from the listening device recording of Burnes' conversations with JM. He said:

"I might have said something about that. If you refer to the tapes and you listen to them you can clearly tell I was off my face."

Burnes agreed that at one time he believed that his children were being eaten alive. A moment later, however, he denied that he had actually thought that this was so. This was in spite of evidence he had given in the committal proceedings that he had in fact held that belief.

I have referred to the lengthy interview of Burnes that took place over two days in August 2006 (30 and 31). It seems, from a number of answers given by Burnes in the trial, that, initially in this interview, he did not implicate the appellant in the murder. He therefore did not mention, in the interview, the incident of which he had given evidence, following the fracas at the hotel on New Year's Eve when he had returned to the appellant's home and had seen the gun in the bedroom. Burnes said that, in that interview, he gave a number of untruthful answers (concerning, for example, where he had been living in May 2003) because he was being "deceitful". He said that in the initial stage of the interview he was attempting not to implicate the appellant. He said that "there was some point" in the interview when he decided to tell the truth. This was because he learned (possibly during the course of the interview) that Mr Heavens had children. He said that his protection of the appellant was also out of "misplaced sense of loyalty".

In the induced record of interview of January 2007, however, Burnes told the detectives that the shooting of Mr Heavens was something he had done "off [his] own bat" and had nothing to do with the appellant. He said that the meeting with Mr Heavens was "just to sit down and talk" and that his earlier account concerning a signal to shoot Mr Heavens (which, it may be inferred, he had given in one of the earlier interviews) was "all bullshit"; there was no "preordained signal to shoot". In the interview, Burnes said that anything that he had previously said to the effect that there was such an arrangement was said out of confusion on his part. In the trial, Burnes explained having given those answers to police on 18 January as "misplaced loyalty". It is apparent from this part of the cross-examination that, in the interview of 16 August 2006, he had implicated the appellant in a plan to murder Mr Heavens; in the January interview, he denied that, and said that the plan had been merely "to sort things out", and that this was to be achieved by talking to Mr Heavens. He said that what he had previously spoken of as the signal to shoot Mr Heavens was a misconstruction on his part, emanating from his own "fucked-up brain".

Littered throughout the cross-examination of Burnes were references to his history of drug use. He said that he began using "pot" when he was 12, and that he had been a regular consumer of cocaine, amphetamines, heroin and benzodiazepine. He had been told that use of these drugs had exacerbated his mental health issues. He agreed that the amphetamine known as "ice" (which he used) has a much stronger effect than other amphetamines, and causes hallucinations. In late 2002 and early 2003, he had used a very strong amphetamine known as "oxblood". He agreed that "there was a time" when he had "real difficulty" telling the difference between reality and what he thought was reality.

He agreed that, in the interview of 16 August 2006, he had said, referring to early 2003:

"I was on the drugs, man, you know, I, I, the amount of shit that I pumped into my system I, I have trouble remembering last week let alone year, you know what I mean."

He agreed that this was so when he was under the influence of drugs. However, he immediately said that, when he gave that answer, he was not telling the truth. He agreed that, in the same interview (again referring to late April early May of 2003):

"I don't really remember. I think I was pretty fucked up on drugs."

He had then been using cocaine and heroin.

Although he said that, prior to Mr Heavens' murder, he had been using drugs "off and on, not every day", he also agreed that, in the record of interview, he had said:

"I had been using drugs, cocaine and heroin, things like that, I just, that whole year was just a bad, bad year,"

and that, at that time, he had been using drugs almost every day all day. Specifically in reference to 2 May 2003, he said (in that interview):

"Oh, I think I had my first shot of coke about 8 in the morning as I woke up. I went and got some methadone, and, um, went down to have some more coke."

He agreed that, in the record of interview, he had had said, in reference to the murder of Mr Heavens:

"I just blanked the whole night, it was just, didn't know what was going on, just, just, I was psychosin' it, I didn't know who was around, I didn't know what was going on, I was, yeah, just off the planet, I just wasn't with it. I just, before I knew it, we were all out of the car, they were walking, um, in this park, it was like a park, it was, there was a building there, I think there was a building there, I just remember this bloke lookin' at me, he was starin' at me, I felt this feeling like I was, I wasn't going to leave that park."

However, he said that that answer was "deceitful" and that, although he was under the effect of drugs:

" ... I wouldn't say I was psychosin' it."

A critical piece of evidence given by Burnes concerned the signal to be given by the appellant, indicating that he intended Burnes to shoot Mr Heavens. It will be recalled that this signal was:

" ... I am going back to me wallet out of the car."

If that signal were given, Burnes was to shoot Mr Heavens.

In a conversation with JM on 13 February 2006, recorded pursuant to a listening device warrant, Burnes said:

"The signal was, um, I've got to go to get my wallet, all right, and that's for no, if he said it, but he didn't say that. He started walking up the street so that was the go."

Burnes' explanation in the trial for reversing the signal was that he was "probably confused" when he said that to JM. His evidence in this respect was quite unsatisfactory. He said:

"I said I was probably scared, I was confused ... "

He then denied having said that (although he had seen the transcript of the conversation from which counsel was cross-examining). He then said that he had been mistaken in his conversation with JM.

There was a good deal more in the cross-examination of Burnes, but it is unnecessary to recount it. It is quite apparent that he was seriously psychiatrically unstable. For that reason alone, it would be difficult to place reliance on his evidence in a conviction for murder. Associated with his psychiatric state, and compounding it, was the acknowledged influence of his self-confessed use of drugs. It is plain that he has given various contradictory accounts of the appellant's asserted involvement in the murder of Mr Heavens: from an account incriminating him (apparently along the lines given by him in evidence in the trial) on 16 August 2006, to an apparently evasive and then incriminating account in the interview of 30-31 August, followed by an entirely exculpatory account given on 17 January 2007.

Although in the trial (and, apparently, in the interview of 16 August 2006) Burnes was firm that the arrangement with the appellant was that he would shoot Mr Heavens if the pre-arranged signal were given (and that signal was given), in the recorded conversation with JM, he reversed that position, saying that the agreed words signified that he was not to shoot, and that the words were not spoken.

As I have indicated, I find it quite impossible to conceive that a conviction could be upheld on Burnes' uncorroborated evidence alone.

The Crown, however, relied on some disparate items of evidence that provided some support for Burnes' account. For example, there was evidence that, on 1 January 2003, the appellant attended the Emergency Department of the Royal Prince Alfred Hospital at Camperdown, where he was treated for a laceration to his lip, which he attributed to an altercation the previous evening. He also complained of thumb pain. This evidence was corroborative of Burnes' account of the events at the hotel, and of the reason Burnes gave for the appellant's inability to load the gun.

There was also evidence that Mr Heavens had in his clothing a packet of Winfield cigarettes, and that a partly smoked cigarette was in his left hand. This was also corroborative of a minor detail in Burnes' account.

There was evidence that Burnes' partner, Melissa Riley, had, 13 days after the murder, pawned a Game Boy of the same kind and colour that Burnes said he had taken from the appellant's car.

There was evidence from Mr Heavens' then partner, LM, that Mr Heavens had arranged to meet the appellant on the afternoon of 2 May 2003, for the purpose of purchasing two ounces of heroin. Mr Heavens had left their home at Manly at either 2.00 pm or 4.00 pm in order to do so. This evidence of LM was supported by that of Ms Maria Papageorgio, who had begun purchasing heroin from Mr Heavens. Ms Papageorgio said that on either the Thursday or Friday (2 May) she spoke to Mr Heavens, obviously with the intention of obtaining heroin. He told her that he could not wait to meet her, as "he had to go and see his boss at Newtown". Telephone records indicate that that call was in fact made at 8.36 pm on 2 May.

LM also gave evidence that, at about 8.30 pm, Mr Heavens telephoned her to say that the appellant was running a bit late, and that he (Mr Heavens) would be home later. Mr Heavens' side of this conversation as recounted by LM was partially corroborated by Sarah Murphy, who said she was in the company of her partner, DN, and Mr Heavens, when Mr Heavens received a call from a person she deduced to be LM. LM said that Mr Heavens told the caller that he was going to have to wait until later in the evening to obtain heroin. Evidence to similar effect was given by DN.

On 7 May 2003, the appellant made a statement to police. He gave an account of having first met Mr Heavens in a methadone clinic. He said that he had last seen Mr Heavens the previous Wednesday, 30 April. He said that Mr Heavens had rung him at about 5.00 pm on Friday, 2 May, wanting to see him. They arranged to meet at 8.30 that evening at the Leichhardt Markets. He said that he drove to the appointed meeting place, that he was late, and Mr Heavens had phoned him on the way. When the appellant arrived, Mr Heavens was not there. He waited for about five minutes but Mr Heavens did not turn up. He became annoyed and went home, arriving at about 9.15 pm. He attempted to call Mr Heavens once on his mobile phone, but could not establish contact. He had dinner at home and did not go out again that night. He said that he attempted to phone again the following day, but again could not establish contact. He therefore telephoned LM. She told him that she was at the police station, and Mr Heavens had been murdered.

The appellant also told police that about a month earlier he had heard that Mr Heavens had obtained a large quantity of stolen ecstasy tablets, and that he had heard that Mr Heavens was connected with some "heavy" criminals. It may be that this last was inserted in order to plant a suspicion that Mr Heavens had been murdered as a result of his criminal activity, or criminal connections, by others.

One thing that is, for the purposes of present analysis, significant about the appellant's statement is that, on his own account, he had had an arrangement to meet Mr Heavens at the Leichhardt markets. This was partially - and significantly - consistent with Burnes' account (although, on the appellant's account, the arranged meeting was about one hour earlier than in Burnes' account).

The appellant's account of the telephone call to LM is inconsistent with her evidence, which was that the appellant had called her at about 8.30 or 9.00 am in the morning, when she was at home at Manly, and asked where Mr Heavens was, saying that he had not shown up the previous evening.

Another interesting piece of evidence was given by LM. She had on occasions accompanied Mr Heavens in his dealings with the appellant. She recounted one occasion on which the three drove to "somewhere near Darling Harbour" and the appellant and Mr Heavens left the car, leaving their mobile phones in the car. She said that Mr Heavens had told her the reason they left their phones in the car was because the appellant's friend had been "busted by the police through his mobile phone" and the appellant was very paranoid. This piece of evidence fits nicely with the evidence of Mr Burnes concerning the appellant's directions at Callan Park to leave the mobile phones in the car.

Notwithstanding these various items of evidence that provide some support to the Crown case, dependent as it was on the evidence of Burnes, I cannot be satisfied to the requisite degree that the jury ought not to have experienced a reasonable doubt. As I have indicated above, while there was sufficient evidence to enable the jury to accept Burnes' account that he had been the murderer, and there were various items of the detail in his account that corresponded with those given by other witnesses, none of that evidence went directly to the circumstances of the meeting between Burnes' and the appellant, or their meeting with Mr Heavens at Leichhardt, and none was remotely near the evidence of the murder itself or any request by the appellant to Burnes to kill Mr Heavens.

In my opinion the appeal ought to be allowed, the conviction quashed, and a verdict of acquittal entered. In reaching this conclusion I have, of course, applied the well known tests stated in M v The Queen [1994] HCA 63; 181 CLR 487 and MFA v The Queen [2002] HCA 53; 213 CLR 606.

HARRISON J: I have had the considerable benefit of reading the draft judgments of both the Chief Justice and Simpson J. I am of the opinion that the jury's verdict of guilty was unreasonable and cannot be supported by the evidence.

I am unable to accept that any advantage that may have been enjoyed by the jury in this case, in seeing and hearing the evidence, is capable of resolving the doubt that emerges from, and which is highlighted by, the reasoning and analysis in the judgment of Simpson J. Mr Burnes emerges as a wholly incredible and unreliable witness. His evidence lacks credibility for reasons that are not explained by the manner in which that evidence was given, and because of the manifold inconsistencies and contradictions that it contains. It is not relevantly corroborated by evidence otherwise given in the trial that resolves the doubt that I consider exists. The evidence is in my view wholly lacking in any probative force and I am led to conclude that there is a significant possibility that an innocent person has been convicted. It was not in my view open to the jury in this case to be satisfied beyond reasonable doubt upon the whole of the evidence that the appellant was guilty.

It follows in my opinion that Ground 1 ought to succeed, that the conviction should be quashed and that a verdict of acquittal should be entered.

**********

SCHEDULE

Decision last updated: 18 October 2013

Medium Neutral Citation:	Scott Alan May v Regina [2012] NSWCCA 111
Hearing dates:	20 October 2011
Decision date:	31 May 2012
Before:	Bathurst CJ at [1]; Simpson J at [342]; Harrison J at [417]
Decision:	(1) Appeal against conviction allowed, conviction quashed. (2) Verdict of acquittal entered.
Catchwords:	CRIMINAL LAW - appeal - conviction - evidence - whether verdict unreasonable on evidence CRIMINAL LAW - appeal - conviction - joint criminal enterprise - whether misdirection in summing up to jury - whether extended joint criminal enterprise alternative should have been left to jury CRIMINAL LAW - appeal - conviction - whether misdirection in summing up to jury - whether evidence capable of verifying key witness's account CRIMINAL LAW - appeal - conviction - joint criminal enterprise - whether manslaughter alternative should have been left to jury
Legislation Cited:	Criminal Appeal Act 1912 s 5 Criminal Appeal Rules r 4 Criminal Code (Cth) s 11.5 Director of Public Prosecutions Act 1986 s 19 Evidence Act 1995 Pt 3 Div 7 Listening Devices Act 1984 Surveillance Devices Act 2007
Cases Cited:	Conway v R [2002] HCA 2; (2002) 209 CLR 203 Gillard v R [2003] HCA 64; (2003) 219 CLR 1 Handlen v R [2011] HCA 51; (2011) 283 ALR 427 Johns v R [1980] HCA 3; (1980) 143 CLR 108 M v R [1994] HCA 63; (1994) 181 CLR 487 MacAuliffe v R [1995] HCA 37; (1995) 183 CLR 108 MFA v R [2002] HCA 53; (2002) 213 CLR 606 Osland v R [1998] HCA 75; (1998) 197 CLR 316 R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527 R v LK [2010] HCA 17; (2010) 241 CLR 177 R v Mills [1963] 1 QB 522; (1962) 47 Cr App Rep 49 R v Milton [2004] NSWCCA 195 R v Ngo [2003] NSWCCA 82 R v Tangye (1997) 92 A Crim R 545 R v Taufahema [2006] NSWCCA 152; (2006) 162 A Crim R 152 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 RR v R [2011] NSWCA 235 SI v R [2007] NSWCCA 181 SKA v R [2011] HCA 13; (2011) 243 CLR 400
Category:	Principal judgment
Parties:	Scott Alan May (Appellant) Regina (Crown)
Representation:	Mr T Game SC; Mr D Barrow (Appellant) Mr D Arnott SC; Ms T Smith (Crown) The Law Practice (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2007/4832
Decision under appeal	Date of Decision: 2008-06-04 00:00:00 Before: Rothman J File Number(s): 2007/4832