The King v ZT

[2024] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S38 of 2024

B e t w e e n -
THE KING
Appellant
and
ZT
Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 NOVEMBER 2024, AT 9.59 AM

MS S.C. DOWLING, SC: Your Honours, I appear with MS E.S. JONES and MR J. STYLES for the appellant. (instructed by Solicitor for Public Prosecutions (NSW))

MR D.G. DALTON, SC: If the Court pleases, I appear with MR P.R. COADY, SC for the respondent. (instructed by Nyman Gibson Miralis)

GAGELER CJ: Thank you, Mr Dalton. Ms Dowling.

MS DOWLING: Thank you, your Honours. Your Honours, the appellant’s argument in this case centres on the proposition that in circumstances where the majority of the Court of Criminal Appeal has failed to watch or listen to the exhibit that comprised the bulk of the Crown case, in finding that the jury had no relevant or no significant advantage over the appellate court, the majority failed to give full regard to the consideration:

that the jury is the body entrusted with the primary responsibility of determining guilt –

as well as the consideration that the jury has had the benefit of having seen and heard the witnesses, as described by this Court in M v The Queen and Pell v The Queen. As the joint judgment in SKA held at paragraph 13, the jury’s role and advantage is:

The starting point in the application of s 6(1) –

of the Criminal Appeal Act 1912 (NSW). Whether that involves a staged approach to the task required by M – that is, that the appellate court conducts its independent assessment of the evidence – and only if it experiences a reasonable doubt does it then turn to consider the nature and quality of the jury’s advantage and whether that is capable of resolving that doubt, or whether a more integrated approach is correct, as is perhaps suggested in the judgment of the Court in Pell at 38 to 39 – the purpose of the appellate court’s independent assessment of the evidence to answering that ultimate question of whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.

GAGELER CJ: Ms Dowling, do you say that Justice Kirk should have, himself, listened to the recordings before deciding whether he had a doubt? Or do you say that he should have, having experienced a doubt, gone on to ask whether the jury listening to the transcripts might have made a difference?

MS DOWLING: We say either approach would have been acceptable. The staged approach, which is the approach adopted by Justice Kirk in this case, was to conduct that review on the transcripts and then to consider the question of whether the jury had an advantage and whether, if they did, it was capable of resolving the doubt. That was the staged approach. Whereas Justice Kirk, as your Honours will see from his assessment of each of the individual pieces of evidence in the case, took an integrated approach, he was ‑ ‑ ‑

GORDON J: You mean Justice Fagan.

MS DOWLING: I am sorry. Justice Fagan, thank you, your Honour. Justice Fagan took the approach that your Honour Chief Justice Gageler has just put to me in that he was assessing each piece of evidence by reference to the jury’s natural advantage.

EDELMAN J: It is all the one record, so there cannot be no right answer to the way you approach the record, can there?

MS DOWLING: That is the position of the Crown here. We do not suggest that it is not consistent with the decision in M to conduct a staged approach. The critical factor is that there is that consideration given to whether the jury had an advantage and the nature and quality of that advantage, if they did, and then how that should be taken into account – whether that is capable of resolving the doubt that the appellate court has formed.

BEECH-JONES J: Even on your approach, Justice Fagan was in error, was he not? Because Justice Fagan only listened to parts of the recordings for the limited purpose of identifying or confirming that the jury would have had an advantage.

MS DOWLING: We adopt the approach that is taken by Justice Fagan, in that it is enough that sufficient of the material was listened to and watched.

BEECH-JONES J: For what purpose, though?

MS DOWLING: In order to ascertain the nature and quality of the jury’s advantage.

EDELMAN J: Ultimately, it comes down to the facts of this case, and it is because you say it is because that was such a crucial part of the case as a whole – the issues of demeanour, meaning and so on.

MS DOWLING: Yes, there will be cases where it is apparent on the face of the record that there must be a doubt and it is incapable of resolution by either listening to the evidence or deferring to the natural advantage of the jury, but that is not this case. As your Honour Justice Edelman has just suggested, the extent of the advantage and the way in which it may or may not be capable of resolving the doubt will depend on the facts and issues in the particular case.

GORDON J: So, just so I am clear, you are not suggesting that it is required that they go through every single transcript and listen to every single bit, because that is not the purpose of the inquiry?

MS DOWLING: Correct. And as this Court stated in SKA and Pell, it depends on the issues. It depends on the nature of the doubt that stands to be resolved. In this case it was a doubt about the credibility of the respondent when he was making these admissions in the phone calls and ultimately in the recorded interviews. So, what had to happen was that there was sufficient of the material watched and listened to for the appellate court to make a decision about whether that was capable of resolving the doubt.

GORDON J: So, it is two inquiries? Did they have an advantage, and then the nature and extent of that advantage relevant to the issues in dispute.

MS DOWLING: Yes.

GORDON J: Thank you.

BEECH‑JONES J: That is in a case where – it is not one of those cases where the parties say, look, you need to watch or listen to that particular bit to understand what was going on or what was being said because of some hand movement or gesticulation of something of that kind demonstrating that.

MS DOWLING: No, it is – in this case, it was a broader impression that was required to be formed because of the bulk and scope of the admissions.

GAGELER CJ: Is it meaningful to talk about an advantage in this context where it is just a matter of listening to the tape; the judge can listen to the tape in the same way as the jury can listen to the tape? There may be other ways of describing it, but “advantage” seems odd in this circumstance.

MS DOWLING: The only additional aspect to the listening to the tapes and watching the videos is that this evidence comprised nine hours of recorded material that was played over four days at the trial, and the jury were in the room with the accused when that was played.

EDELMAN J: It is the advantage in the Fox v Percy sense, not just of demeanour issues but also of issues of time, consideration, having the whole of the record, having submissions made on far more less controversial matters and so on.

MS DOWLING: The province of the jury, the whole of what is included in what is the province of the jury.

GLEESON J: But you could reason to that without listening to any of the transcripts at all, could you not?

MS DOWLING: Reason – I am sorry, I am not sure I follow.

GLEESON J: To a conclusion that the jury is likely to have a meaningful advantage without listening to any of the transcripts.

MS DOWLING: Yes. In fact, his Honour Justice Fagan does do that. Although he listened to some of the materials, he also found that the jury did have that advantage.

GORDON J: I was going to ask about that. So, he, in a sense, did a three stage process – maybe not three stage – but his Honour looked at the transcripts, absent listening to them, and formed the view that the jury would not have had the doubt and then, in effect, confirmed that view by taking into account the advantages the jury had.

MS DOWLING: Yes. His Honour correctly identified that it is not really possible to understand the transcript of the first recorded interview without listening to it because in the course of that interview the police play a number of the telephone intercepts, but they do not identify which ones or which point in the telephone intercepts they are playing back to the respondent. So, his Honour listened to it for that purpose, and when he did that, he heard – as is observed in his reasons – he noted and observed and remarked upon the difference in tone between the telephone intercept conversations and the interactions between the respondent and the investigating police.

GLEESON J: But the Crown in the appeal put the argument about jury advantage without suggesting that it was necessary to look at the transcripts. What was wrong with that?

MS DOWLING: Your Honours, the Crown – actually I might take your Honours at this point to the argument in the CCA. This is at the respondent’s book of further materials.

EDELMAN J: This is point 3 of your outline?

MS DOWLING: I am sorry?

EDELMAN J: Is this point 3 of your outline?

MS DOWLING: It may be, your Honour, I will have to check with my junior. Yes, thank you. It is the respondent’s book of further materials at 127, commencing at line 5 on page 127, where his Honour Justice Fagan asks Mr Dalton, who appeared at trial, about his submission on the advantage of the jury. His Honour Justice Fagan at line 20 puts to Mr Dalton that the jury have had “a significant advantage” over the appellate court. That is at line 29. Then at line 43, counsel for the respondent says:

your Honours, I’m afraid should listen to the tapes because they’re available as has been set out in the process –

of the judgments in this Court:

in Dhansi and Pell.

And his Honour Justice Kirk asked how that was consistent with the decision in Pell.

BEECH‑JONES J: And you say that concern is misconceived.

MS DOWLING: We say that the decision in Pell leaves it open that if there is a particular forensic issue which requires that consideration, then that should be done.

BEECH‑JONES J: But do you draw a distinction between witnesses and exhibits?

MS DOWLING: The consideration in this case is largely the same, because there were credit issues relating to the credit of the respondent, who was, of course, the accused person. Usually the exhibits, as your Honours are aware, will be CCTV footage – I mean, telephone intercept material is common, but it does not usually have such clear admissions in it – triple‑0 calls. In the quite unusual circumstances of this case, we say there is little difference there.

However, there is a difference in that with witness testimony, the issues are framed by reference to the rules of evidence, the fact that irrelevant material is not permitted to be led in‑chief, it is tested in cross‑examination – there is a rigor to the presentation of that evidence at trial that perhaps makes the transcript a more easily understood document that better distils the quality of that evidence that is lacking with the type of material that was in this case, the free form discussions in the telephone intercepts in particular. Your Honours, at the respondent’s further materials at 128, line 10, Mr Dalton submits that if the CCA had:

a concern that that might make a difference in relation to the determination of this appeal, then that should take place –

That is, the listening to the tapes. Your Honours, then there is a discussion in the middle of the page, and at the bottom of the page, at line 40, the Crown starts his oral submissions, and at line 50, at page 128, first up addresses that the jury has:

the advantage of all of this material –

having heard and watched the recorded material and seeing the witnesses in the witness box, including the assessment of [Witness 1], amongst other witnesses. While we are here, at page 129, at line 20, the Crown Prosecutor reminds the court that a “piecemeal” approach to the consideration of the evidence would be wrong.

GAGELER CJ: What was the Crown’s answer to whether the court or the judges of appeal should be listening to the transcript? Really, nothing was said, was it?

MS DOWLING: It was not pursued. But in my submission, that issue needs to be considered by reference to the test in M, which both parties have put in their written submissions and which the Crown assumed would be adopted by the appellate court, namely, if the court reached the view, on its assessment of the transcripts, that there was a reasonable doubt, that it would then turn to meaningfully engage with the issue of whether the jury had an advantage and what the nature and quality of that was, and whether it was capable of resolving the doubt. And once you got to that point, then the court should have engaged in that task, in looking at sufficient of the recorded material to resolve that question.

BEECH-JONES J: Just to be clear, was the effect of the Crown’s submission to the CCA not to say you can ascertain the scope of that advantage without necessarily listening to the tapes? Because later on, I think the Crown referred to “tone” and so forth, but never actually said: you should listen.

GORDON J: It is page 131 at line 36 and following, where there is reference to, I think:

the jury with the advantage of hearing all this and assessing the tone and bearing in mind –

the timing of the conversations.

MS DOWLING: Yes, that is the passage, I think, that is reproduced in the judgment of Justice Kirk at paragraph 129, which is core appeal book page 188.

GORDON J: This really comes back to my earlier question. In a sense, that is what Justice Fagan did. He took your primary submission – or that submission – assessed it, and then went and in effect confirmed the jury advantage by listening to them – aspects of the recordings.

MS DOWLING: Yes, yes. Your Honours will see throughout the reasons of Justice Fagan, consideration of each piece of evidence, and of the whole of the Crown case, is done quite consciously and expressly by reference to the test in M – the question of whether it was open to the jury to make a particular finding. That was not ultimately supportive of the Crown case, but that discipline of restating the test repeatedly throughout the reasons, we say, was particularly beneficial because it assisted Justice Fagan to take into account that natural advantage repeatedly and to remind himself of the fact that the role of the jury should not be overlooked.

BEECH-JONES J: But just in terms of the obligations and all the errors in the majority, could they have then inferred what the advantage that the jury enjoyed was, simply from the knowledge of the matters that were put to them by the Crown – that is, the length of the interview and what was done and who the characters were – or did they actually have to listen to the tapes to ascertain the advantage, or to confirm the advantage?

MS DOWLING: Perhaps I could answer it in this way. To find that there was no advantage, they would have had to listen to the tape.

BEECH-JONES J: I see.

JAGOT J: Sufficient of the tapes.

MS DOWLING: Sufficient of the tapes, not the entirety of the tapes.

GORDON J: I just have one more question. You have taken us to some passages of the Crown’s submission to the Court of Appeal. I have not read all of it, but is it right that in relation to particular aspects of the admissions that the advantage was a subject of submission in relation to most of them? So, for example, if you go to pages 134, and then there is two more at 140, is it right that – I do not know that it is the same submission in relation to each, but it was put on the basis that the jury had the advantage of having seen and/or heard the relevant tape.

MS DOWLING: Yes. As your Honours are aware, the respondent was convicted after a trial by jury of the murder of William Chaplin. The Crown case was advanced on the basis that the respondent participated with [the Principal] in an agreement to kill the deceased, with an alternative basis of extended joint criminal enterprise or as a principal in the second degree. That is an important aspect to bear in mind because what the Crown was required to establish beyond reasonable doubt was the existence of an agreement and participation in acts in furtherance of that agreement.

As his Honour Justice Fagan noted in the judgment at paragraph 136, which is core appeal book page 190, to convict the respondent it was sufficient that the jury was satisfied to the criminal standard that the respondent:

and [the Principal] reached an agreement . . . that together they would kill William Chaplin and that while their agreement or understanding remained on foot they carried out between them . . . such acts as were necessary to kill him. The jury did not have to be satisfied beyond reasonable doubt of the means by which death was caused –

Or in relation to the joint criminal enterprise:

who –

out of [the Principal] or the accused:

performed the causative acts.

As I have already noted, while this case is a circumstantial case, it is a somewhat unusual one in that it depended so heavily on a series of admissions made by the respondent, recorded in intercepted telephone conversations he had with family and friends and in two lengthy police interviews.

The circumstances, other than the admissions, and in which context the admissions stood to be assessed, included – and your Honours I do not propose to give references but if your Honours would like them, please let me know. So, those circumstances were that [the Principal] was the orchestrator of the killing and admitted that he had murdered Chaplin. The respondent was very close to [the Principal]. As Justice Kirk described it, the respondent was “under [the Principal]’s thrall” and it was plausible that he would act at his direction. [The Principal] was a violent person who had been violent towards the respondent and towards other people in the presence of the respondent, including assaulting his wife, [Witness 1] – who was a Crown witness – in the presence of the respondent.

The respondent had been involved in other violence together with [the Principal]. The respondent was present with [the Principal] at the property before, during and after the murder of Chaplin. It was conceded by defence, in closing, that the respondent was present and, at a minimum, witnessed [the Principal] murder Mr Chaplin. That is referred to at judgment 146, core appeal book, 195. It was also part of the circumstances that the respondent was involved in assisting [the Principal] in disposing of Chaplin’s body by burning the body in a bonfire.

[Witness 1]’s evidence that the respondent did not react or say anything when [the Principal] showed her Chaplin’s body in the round yard the day after the murder – the fact that the body had possible injuries consistent with having been stabbed or hit at around the time of death. The evidence of [Witness 2] that the respondent told her that he had helped [the Principal] “sort out some guy who’d been messing with” their daughter, and the respondent’s lies to police in the first ERISP that were relied upon as consciousness of guilt, and they were that he did not know what police wanted to speak to him about, he did not know William Chaplin at all and that he did not know that Chaplin was missing.

As I already adverted to, the admissions the focus of the appeal were contained in telephone intercepts and recorded police interviews which amounted to about nine hours of recordings. We outline in our written submissions, at paragraph 14, some of the clearest admissions made on the phone calls which I would like to briefly take the Court to. They are in the appellant’s book of further materials, starting at page 18.

This is the first recorded call between the respondent and his mother. She first tells the respondent the police have been asking her about his involvement in the disappearance of Chaplin. At page 20, about point 2 – the very first entry on AFM 20 – the respondent’s mother says:

Somewhere along the line, you’ve been implicated, your name’s come up.

And the respondent says:

How the fuck (sounds like) yeah I killed him. Fuck me. Um, I love you.

And then the next entry for V2, which is the respondent, says:

Oh we found him one night (sighs) Mum.
. . .
We found him one night touching [the child], all right?
. . .
[the child] was about two years old at the time, so I took him out to the round yard and cut his ‑ ‑ ‑

BEECH‑JONES J: Madam Crown, does that name need to be suppressed in the transcript? Is there any restriction on that?

MS DOWLING: Yes, thank you, your Honour, for reminding me of that.

GAGELER CJ: There is a restriction?

MS DOWLING: Yes, there is a statutory restriction.

GAGELER CJ: The name will be struck from the transcript.

MS DOWLING: Thank you, and I will not refer to it again. Thank you, your Honour. The child:

was about two years old at the time, so I took him out the round yard and cut his throat and then we burnt the body.

In relation to that telephone intercept, Justice Kirk notes at judgment 55 that:

this is a critical admission –

by the respondent to his having participated in the killing of the deceased. If I can take you on further in this book to page 217. This is the respondent’s first recorded conversation with his father on the topic of Chaplin.

At page 219, the respondent’s father starts talking to him about inquiries by police. At 220 they start talking about the fact that Mr Chaplin is missing, and the suggestion is made at 221 that Mr Chaplin had been interfering with [the child]. Then, at page 222, the second entry on page 222, the respondent says:

No boils, boils back to me.

Then he says:

Oh, I was around, somewhere –

His father then says, at about point 6:

as long as you don’t do shit.

And the respondent says:

Well I did, kind of.

The discussion then returns at 224, 225 to what Mr Chaplin may have done. At 225 there is an exchange that Justices Kirk and Fagan have different construction on; that is to what the respondent was talking about when he says, at the bottom of the page:

yeah I witnessed the lot.

BEECH-JONES J: Do you know which two paragraphs? Take it on board, if you could.

MS DOWLING: Yes, excuse me, I will just ask my junior to pull those up for me. Justice Kirk interprets that as him saying that he witnessed Chaplin interfering with the child, whereas Justice Fagan interprets them as speaking at cross purposes and the respondent talking about having witnessed the murder. That is a classic credibility issue, really. The references for that in the reasons for Justice Kirk are at paragraphs 62 and paragraph 115, and in Justice Fagan’s reasons at paragraph 182. At appellant’s book 228 there is the statement or the agreement by the respondent in the middle of the page. His father says:

Right, you and someone else made this person disappear.

And the respondent says:

Yeah.

And over the page, at 229 he says:

There’s no evidence, there’s nothing.

And throughout the rest of this conversation, he comes back to the proposition that there is no evidence. This was a particularly significant admission that was the subject of quite a lot of attention in the reasons of both the majority and the dissenting judgments and, in particular, the meaning of the respondent’s agreement to the proposition that he made someone “disappear” and how that should be understood in the context of the later comments that there was no evidence.

Staying in this book, your Honours, at page 300, this is another conversation between the respondent and his father. The conversation starts at page 295 and the conversation fairly quickly turns to discussion of the deceased. At page 300, at the bottom of the page, the respondent’s father says:

I want to know your involvement in this shit.

And the respondent says:

I am involved in it.

At 301, his father says:

Right. How deep?

And the respondent replies:

The whole thing.

He is asked:

V2:Right. Did you take him out?
V1:I did.
V2:How?
V1:I cut his throat.

And he makes that assertion of having cut his throat again at page – it is referred to, then, by his father at page 311.

BEECH-JONES J: So, as I understand it, the evidence did not support a finding that the deceased had a cut throat.

MS DOWLING: Because of the deterioration of the quality of the corpse after it had been burned and then through the effluxion of time, the forensic evidence was it equivocal in relation to that issue. There were marks on the vertebrae, I think it was C5 and 6, that could have been consistent with a knife, but the evidence of [Witness 1] is that when she looked at the body she did not see any injuries to the neck.

Justice Fagan’s approach to that aspect of the evidence was to find that it was open to the jury to prefer the admissions to having cut the throat to that of [Witness 1]’s eyewitness observations when she looked at the body. That is at paragraph 169 of the judgment. Justice Fagan noted that on her evidence, the body had been lying in the round yard:

between 12 and 18 hours.

She said in evidence that she was confident she “would have seen” or noticed a wound to the neck, and his Honour makes the point that it is possible that:

Any knife damage done by the applicant may not have been significant or conspicuous. The jury were not bound to regard [Witness 1]’s evidence as a definitive contradiction of the applicant’s –

in this case, the respondent’s:

admission and they may have found the admission more compelling than [Witness 1]’s observations.

On the other hand, [Witness 1]’s observations were found to be highly persuasive to the majority.

BEECH-JONES J: Do you say that throws up an issue about the jury advantage in assessing [Witness 1]’s evidence?

MS DOWLING: Yes, and that was a point made by the Crown at the hearing before the CCA.

Your Honours, at the appellant’s book of materials at 434 there is a conversation that takes place between the respondent and his father shortly before the first recorded interview; that conversation starts at 429. If I can take you to 434, the respondent told his father, at the top of the page there, In response to exhortation by his father that:

You’re going to have to come forward.

This is at 433:

What was your involvement in it?

He says:

Nothing.

And then at the top of page 434, he says:

[the Principal] gave me a – it was this one random night with, I was chilling, or not, and um, basically [the Principal] gave me, he told me to go wait, go wait in the Paddock, he’ll be out there in a minute. They both rocked up there –

that is, the deceased and [the Principal]:

and basically [the Principal] said, “You’ve got two choices. You either fight and kill or you die now.”

Then he gives an account, in that conversation, of his involvement in the killing of Mr Chaplin. In the first recorded interview, which is summarised by Justice Fagan at paragraph 243 of the judgment, that is at core appeal book 234, this is dealt with in detail in Justice Fagan’s reasons, but they are summarised at 243 – the respondent, as his Honour phrases it:

progressed through stages of retreat –

At the beginning and before he had the benefit of hearing the telephone intercepts, he completely denied any knowledge of Mr Chaplin’s death, but by the end of that interview he admits that he was there. So, he initially denied any knowledge of Mr Chaplin’s death, saying that he left the house before it happened. He then, when the telephone intercepts were put to him, he explains those admissions to his mother as being what [the Principal] had told him to tell people. By the end of the first interview, he said that he was present during the murder, but that he did not participate, and then he admitted to being present when the body was burned the next day.

The second interview took place about 24 hours after the first interview, after the respondent had been in custody for that period. In that interview he admitted that he killed Chaplin, but he claimed that he had been “forced” to do so by [the Principal] – that is referred to at paragraph 244 of Justice Fagan’s judgment at core appeal book page 235.

If I could take your Honours to paragraph 138 of Justice Fagan’s judgment, at the bottom of core appeal book 191. Justice Fagan noted that in the nine hours of recordings:

there was an essential consistent vein of admissions against interest in a number of the applicant’s –

respondent’s:

statements on the phone and in his second police interview to the effect that he did assist [the Principal] in some manner to kill William Chaplin pursuant to an agreement between them that they would do so in concert –

Then his Honour reminds himself again of the test in M:

The question is whether it was reasonably open to the jury to have drawn that vein of admissions from the applicant’s phone calls and from his second police interview and to rely upon it as a fundamental acknowledgement that proved the Crown case against him –

GAGELER CJ: Ms Dowling, if we can just look at Justice Kirk’s conclusion at paragraphs 123, 124 and 125.

MS DOWLING: Yes.

GAGELER CJ: Methodologically, is there anything wrong with those three paragraphs?

MS DOWLING: Yes, thank you, your Honour. The first proposition is, at paragraph 123, the suggestion that:

None of the witness evidence points in any material way to a conclusion that the applicant was a party to the murder, as opposed to having been an accessory after the fact.

We disagree, we think that that is an oversimplification of the other circumstances that I have already referred the Court to. At 124, his Honour, taking that staged approach, states that he has a reasonable doubt. Then at 125, there is the reference to Dansie at 17 – and in particular the observation of this Court in Dansie that, by reference to the evidence in that case:

where the prosecution case was circumstantial –

and:

the evidence . . . was largely uncontested –

and there were:

transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage –

of the jury:

must be slight.

We say that Justice Kirk’s reliance on that conclusion in Dansie was inapt, with respect, in this case. At paragraph 126, Justice Kirk notes that:

The passage resonates in this case. The case here was circumstantial and much of the evidence was not contested.

The reference to “not contested”, we assume, is because it was recorded, but in reality the meaning of those admissions was highly contested between the parties, and was in the CCA as well. The evidence in this case is much more analogous to that considered by this Court in Baden‑Clay, where the accused gave evidence and the appeal court was required to assess the credibility of his testimony. And as this Court noted in Dansie at paragraph 14, in Baden‑Clay:

the jury had the distinct –

what was described by this Court as:

the distinct advantage –

over the appeal court:

of having seen and heard the evidence of the accused.

In our respectful submission, his Honour fell into error in preferring the characterisation in Dansie at 17 over that of Baden‑Clay, and the earlier characterisation in Dansie at 14 of that advantage of the jury in Baden‑Clay – sorry, that was a bit confused.

GAGELER CJ: No, that is all right. So, if we go back to 124, the way his Honour states that conclusion there, you accept to be consistent with M, I think.

MS DOWLING: Yes.

GAGELER CJ: He then asks the question, in the first sentence of paragraph 125, whether his:

doubt can be explained away by reference to the natural advantages of the jury.

You accept to be consistent with M.

MS DOWLING: Yes.

GAGELER CJ: And you are really saying, in the circumstances of this case, his Honour gave the wrong answer to that question.

MS DOWLING: To the next – to the second and third questions posed by M.

GAGELER CJ: Yes.

STEWARD J: Can I ask you a question, Ms Dowling. At paragraph 128, Justice Kirk, his reasoning turns on the fact that his Honour takes the view that:

the versions of events given by the applicant –

was:

replete with falsehoods and lies.

Just so I can understand your case, why would listening to a selection of the interviews and telephone interceptions lead Justice Kirk to reach a different conclusion based on that reasoning?

MS DOWLING: It may not alter that aspect, that conclusion, but it was agreed that it also considered – all of those telephone intercepts and ERISPs also contained admissions that were supported.

STEWARD J: Well, let me put it another way. One of the statements in the telephone interceptions was when ZT said, “I witnessed the lot”, and I think you made the point that there was some dispute about what that meant and how you would interpret it, and I understand that that might lead you to conclude that you should have left it to the jury. How would listening to that passage make any difference to your reasoning on that issue?

MS DOWLING: Because of the tone and the phrasing of that.

STEWARD J: But how would the tone or phrasing tell you what he meant when he said, “the lot”?

MS DOWLING: Well, there are a lot of euphemisms used throughout these telephone intercepts, and the way in which those conversations unfold orally – there is a great deal of meaning to be derived from the way in which those conversations take place. To use the language of Fox v Percy, the cold words on the page can only take you so far.

STEWARD J: Is it put that he perhaps sounds like he is a guilty man by the way he is saying it? Is that how it is put?

MS DOWLING: I do not know that – it was not put in that way, your Honour.

STEWARD J: No.

MS DOWLING: However, the opportunity that the jury had that the appellate court denied itself was to listen to it, to listen to the pauses, to listen to the differences in tone, in pitch, to listen to the alacrity with which certain answers are given and the pauses which preceded other answers. There is the cadence and speed of the language of their speech as they are speaking and, in particular, as they are addressing different topics within the telephone intercepts, and to contrast that also with the manner of delivery that the respondent displayed in his recorded interviews with police, and that is something that is remarked upon by Justice Fagan with the benefit of just listening to the parts of the phone calls that he listened to when he watched the ERISP.

STEWARD J: But do you say that Justice Fagan’s listening to that selection was decisive to his Honour’s reasoning, or was it simply something that added to it?

MS DOWLING: I think in that case it added to it. He appears to have concluded that it was open to the jury to have been satisfied beyond reasonable doubt on the basis of the transcript. However, he found that he could not understand the transcript without watching it because of the ambiguity of what the respondent was responding to in the record of interview when parts of the transcript were – parts of the telephone intercepts were played to him.

EDELMAN J: At trial, the Crown relied heavily upon two of the recordings over the other recordings. Was there also a case put at trial in the terms that Justice Fagan expressed it that at a sort of higher level of generality, there was a consistent vein of admission that ran through all of the recordings?

MS DOWLING: Yes, it perhaps was not put as eloquently as Justice Fagan does in the judgment, but the theme of general admissions was made in the Crown closing, and I will find that reference for you in a moment, if I may.

EDELMAN J: So, the distinction, then, between the majority and the minority in the Court of Appeal is one which depends upon the degree of particularity to which one descends when we are looking at the recordings?

MS DOWLING: Yes. There are various points in the consideration of the – in the conduct of the task required by M where that could have stepped in. There could have been an automatic or a recognised deference to the advantage of the jury in a case of this kind that perhaps would have obviated the need to listen to the tapes. Alternatively, there could have been – the appellate court could have decided, well, I am unsure as to whether there is an advantage and to resolve that question I am going to look at the evidence; and then the final question of, if you do find that there was an advantage, what was the nature and quality of that advantage, and was it sufficient to resolve the doubt?

BEECH-JONES J: You were taken to paragraph 128 by Justice Steward. The third sentence beginning “However”, is that consistent with M?

MS DOWLING: We say not, unless you read that as a statement that only refers back to the first part of the test in M.

BEECH-JONES J: In other words, that is not a way of explaining away the need to consider the full allowance to the jury by your own reasoning that has you there in the first place?

MS DOWLING: I would respectfully agree with that.

BEECH-JONES J: All right.

GORDON J: Can I ask a question which builds on that – and that is, in effect, the prior step. At paragraph 122, at the end his Honour says:

It was for the Crown to establish beyond reasonable doubt that the admissions made were sufficiently reliable –

MS DOWLING: We say that that is wrong. What was required for the Crown to prove beyond reasonable doubt was whether the evidence supported a finding that that there was an agreement between respondent and [the Principal] to kill the deceased, and that [the Principal] participated in it. This was not a link in the chain case where any one admission was required to be proven beyond reasonable doubt.

GORDON J: Thank you.

BEECH-JONES J: Or even an admission as to a particular method of killing.

MS DOWLING: That is right. Just before we leave, his Honour Justice Kirk’s reasoning at 123 to 128 – it is our submission that his Honour erred there in the judgment, in finding that the jury had no relevant or significant advantage without watching or listening to any part of the recorded evidence. The reason for that is, as identified by Justice Fagan, there was a real forensic purpose for the appellate court to have some regard to the exhibits themselves.

Your Honours, before I turn on to the next broad topic, if I may just quickly deal with the reasons of her Honour Justice Sweeney, which is at paragraph 266 of the judgment, core appeal book 243. In our respectful submission, it is not clear whether her Honour listened to or watched any part of the exhibits. Her Honour states at line 4, or the second sentence of her judgment, that:

mindful of the jury’s advantage –

But then her Honour goes on to adopt Justice Kirk’s reasoning which, of course, had as a critical element that there was no relevant advantage. Her Honour does not explain the nature or extent of the jury advantage of which she was mindful or why it was inadequate to resolve her reasonable doubt. For the purposes of our submissions, as you have seen and heard, we are just approaching Justice Kirk’s reasons as those of the majority.

As we have outlined in our written submissions, a proper independent assessment of the evidence in this case did depend on things that were able to be seen and heard on the recordings, and they include the respondent’s intended meaning of a number of his admissions that were contested. For example, when he said:

I don’t know if he went missing –

Whether he was being disingenuous, and what he meant when he told his father he was involved in making him disappear. The references for these are in our written submissions at paragraphs 34 to 35.

As his Honour Justice Fagan found at paragraph 256 of his judgment, there were marked differences in the respondent’s tone and manner, and the significantly different qualities of the telephone conversations with his parents in which the admissions were made and his police interviews. These were matters which could have affected the majority’s view of the evidence that could only be discerned visually or by sound and which should have been considered by the majority once they considered that they had a reasonable doubt.

As we set out in our written submissions, between paragraphs 37 and 43, the assessment of whether, in the phone calls, the respondent was rehearsing false exculpatory accounts was something that really stood to be resolved – or could have been assisted – by being the subject of listening to the phone calls.

GAGELER CJ: Ms Dowling, I am not quite sure I am following your argument. In asking the first question, do I have a doubt, was the court required to listen to the recordings?

MS DOWLING: Not necessarily. This is in conducting the whole of the independent assessment – this is the submission.

GAGELER CJ: “Not necessarily” is your answer.

MS DOWLING: Not necessarily, but once a doubt is formed, at least – if one is adopting the staged approach, the classic staged approach from M, then at the latest by the time a reasonable doubt is formed, then the necessity in this case arose to have consideration to the exhibits.

GAGELER CJ: For the purpose of asking, did the jury have an advantage? That is the purpose of ‑ ‑ ‑

MS DOWLING: And the next question of whether, if they did have an advantage – the three questions: did they have an advantage, what was the nature and quality of that advantage, and was that sufficient to resolve the doubt?

GAGELER CJ: Thank you.

MS DOWLING: Your Honours, one of the things that consideration of the recorded material was ‑ ‑ ‑

EDELMAN J: Just before you move on, could the listening to the recordings not potentially resolve the doubt, other than by a reasoning process that says that the jury has an advantage. It might – maybe not in this case but in other cases – resolve the doubt because the tone, demeanour, manner, inflection, is something which might appear to resolve any uncertainty that the judge has.

MS DOWLING: Yes, yes, we would agree with that.

GORDON J: So, that is what Justice Fagan did.

MS DOWLING: Yes.

GORDON J: Justice Fagan said – as I understand it, in your submission, before you get to the analysis you have just put to the Chief Justice – in that undertaking the exercise of considering the evidence as a whole, I cannot actually do that because I do not understand it without taking the further step.

MS DOWLING: Yes.

GORDON J: So, that is a different category of analysis.

MS DOWLING: It is, that is the integrated approach.

GORDON J: I do not even know if it is integrated. It is saying, my task under M is to actually consider the evidence as a whole and I cannot do that because I do not know what the transcripts are referring to because of the way in which they have either been structured or created, and the transcript does not, on its face, demonstrate to me actually what is being asked.

MS DOWLING: Correct.

GORDON J: It is a different inquiry.

MS DOWLING: It may be, in another case, that an appellate court would consider that it is not possible to do that task without listening to the tapes, however, it does depend on the forensic issues and the nature of the evidence in the particular case.

EDELMAN J: Do you rely on both approaches here or the first? In other words, do you just say that if a structured approach was taken and the judge experienced doubt that listening to the transcripts would have resolved that doubt only by revealing that that doubt is just a product of something that the jury had an advantage over, or do you also say that it might potentially have resolved any doubts because the references that disappear and are missing, the context, and the inflection and so on had the potential of resolving any uncertainties or concerns?

MS DOWLING: We say that the approach adopted by Justice Fagan, which was to consider the advantage at every step, every piece of evidence that was being considered, is less likely to be productive of error in the performance of the task required by M.

BEECH‑JONES J: But his Honour did not do that by listening to each bit of the transcript – by watching the ERISP or listening to the intercept as he went, did he? His Honour was mindful of the advantage ‑ ‑ ‑

MS DOWLING: Of the advantage.

BEECH‑JONES J: ‑ ‑ ‑ as he went through.

MS DOWLING: That is right.

BEECH‑JONES J: It was only at the end ‑ ‑ ‑

MS DOWLING: That he confirmed that advantage.

BEECH‑JONES J: ‑ ‑ ‑ that he confirmed that advantage.

MS DOWLING: Yes.

BEECH‑JONES J: But you say, look, it was open to any of the judges to actually listen as they went, if they wanted to, but it would not have necessarily been an error to do so.

MS DOWLING: Yes. In my respectful submission, the test as described in M and affirmed in the subsequent decisions of this Court is not so prescriptive as to require an appellate court to do one or the other. However, it does require, at the last possible point in time before you act on your reasonable doubt, that you, the appellate court, assess that advantage, find whether there is one and what the nature of it is and whether that is capable of resolving the doubt. However, that needs to be done on the facts of the particular case, and it may be, as multiple authorities indicate, that you can do that without listening to the tapes, depending on what type of doubt you are experiencing, and the doubt identified in the decision of Pell is a good example of that.

If I can just come back to your Honour Justice Edelman’s question about the Crown closing on the generalised admissions, that is found in the respondent’s book of further materials at page 36, lines 41 to 50, where the Crown said:

The Crown also relies on the accounts given by the accused himself in the telephone intercepts and in the interviews with police, including his attempts to manufacture an exculpatory version.

The respondent:

doesn’t get to pick and choose what is the truth and what is not from what he told police and others. Everything that is reasonably possible could be the truth. Even though his versions are inconsistent, the Crown say that those accounts are powerful evidence of the accused’s direct involvement in the intentional killing of William Chaplin.

At page 40 of the respondent’s further materials, line 35, it is a rather broad jury submission, your Honours, but the Crown says at line 35:

We don’t know what happened in that round yard. Only three people know. One of them isn’t speaking. One of them has a real difficulty telling the truth and the other one is dead. Lying doesn’t make you a murderer. But telling people that you are involved in a killing does.

BEECH-JONES J: Sorry, what page is this, please?

MS DOWLING: This line 39 of page 40. The Crown was clearly inviting the jury to rely on the broad admissions of involvement there, bearing in mind it was not incumbent upon the Crown to prove beyond reasonable doubt the act or even who committed the act that was causative of death.

BEECH-JONES J: Did the trial judge give a direction to the jury about that?

MS DOWLING: About?

BEECH-JONES J: Not having to prove a particular act or acts.

MS DOWLING: Yes, and I will find that reference.

EDELMAN J: That would be the standard joint enterprise direction.

MS DOWLING: Yes. There is no suggestion that any particular admission needed to be proven beyond a reasonable doubt. Your Honours, at judgment paragraph 121 – just before I leave the admissions – this is at core appeal book 186, Justice Kirk found that no:

reliable admission to involvement –

could be drawn:

from all or any –

of the admissions in the telephone intercepts because of the respondent’s:

clear propensity . . . to tell lies and fantasies –

and his Honour made a global assessment of the respondent’s credibility that we say could not really safely or appropriately have been made solely on the basis of the transcripts, and certainly not dispositive of the appeal, without listening to the original evidence.

We say that that was an assessment was a credibility assessment that fell squarely within the province of the jury as a clear analogue to the jury’s assessment of witness testimony, and that was a matter that formed part of the jury’s advantage and should have been so identified by his Honour Justice Kirk, contrary to finding that we have already looked at, at paragraph 127 of the judgment. By declining to consider ‑ ‑ ‑

GORDON J: Putting it in neutral terms, your submission made both in front of the jury by the Crown as well as in the Court of Appeal was there are multiple inconsistent statements, there are multiple versions, and yet, despite all of that, the jury convicted him. They had an advantage and that advantage was the matters you have identified.

MS DOWLING: Yes.

GORDON J: Is it any higher than that, and that is what had to be assessed – the nature and extent of it?

MS DOWLING: We say it is a fairly routine process. And I would agree with your Honour, with respect – your Honour’s distillation of the task. As I will address in relation to the treatment of the circumstantial case, the process became unnecessarily complicated by the division up of each of the circumstances and each of the admissions, and the artificial consideration of those without the holistic approach that is required to be brought to bear when considering a circumstantial case.

Your Honours, we say in declining to consider the exhibits, the majority wrongly assumed that what could be heard and seen in the recordings was incapable of impacting its reasoning, and so the majority was not fully equipped to discharge its appellate function as described in M, in that it did not recognise and could not pay full regard to the jury’s advantage. The conclusion of the majority that the respondent was “fantasising”, “story telling”, “big‑noting himself” are classic assessments of credibility, and they are the type of assessment that cannot be confidently be done on the basis of transcripts alone. I refer your Honours generally to the observations of Justice Fagan at judgment 191 and 253, and his characterisation of the way in which the respondent was different in his responses to family and to police.

The jury was not bound to find that nothing could be taken from the respondent’s admissions because he was entirely incapable of belief, as his Honour Justice Kirk suggests at paragraphs 116 and 121 of the jury. It was open to the jury to find that “consistent vein of admissions against interest” that permeates all of the telephone intercepts, and it cannot be assumed that the majority would have maintained that assessment if their Honours had had the benefit of hearing and seeing the appellant’s tone and manner when making the admissions. As this Court has recently explained in the decision of Pell at paragraph 37 and 38:

the jury’s “advantage” –

is:

“capable of resolving a doubt experienced by –

an appellate court not only for the practical reason that the jury saw and heard all the evidence, but also because of the jury’s role, its:

province . . . as representative of the community.

The majority’s assessment in this case and the finding that the jury had no relevant or significant advantage erroneously underestimated that advantage in both respects. And it follows that the basis for the conclusion that the doubt experienced by the majority was not capable of being explained away by the natural advantage of the jury was flawed.

We do not submit that the assessment of the respondent’s admissions was a jury question beyond the scope of the independent assessment to be conducted by the CCA. However, we do say that the majority ought to have examined the exhibits comprising those admissions before conclusively determining whether it experienced a doubt as to the respondent’s guilt, and examining the exhibits would have enabled the majority to appreciate the full extent of the jury advantage.

If I can turn now to the way in which the majority assessed the circumstantial case. Both Justices Kirk and Fagan found that the recorded material contained perplexing inconsistencies. However, as we develop in our written submissions, the majority failed to consider the Crown case holistically, as is required with every circumstantial case and in light of the question posed by this Court in M.

In a circumstantial case, the appeal court is required to weigh all of the circumstances in deciding whether it was open to the jury to draw the ultimate inference from all the evidence, namely, whether guilt has been proven beyond reasonable doubt. This Court has repeatedly observed in authorities such as Hillier, Coughlan and Lang that a circumstantial case is not to be considered piecemeal and it is erroneous to consider pieces of evidence in isolation from the whole.

In this case, there was also the additional consideration which is observed by Justice Fagan at paragraph 258 to 259, which is at core appeal book 241, and that is the special quality of admissions. At 258 and 259 his Honour Justice Fagan notes that admissions by accused persons require “different considerations” than other types of evidence, in that “a general admission” by an accused person as to participation in an offence may be sufficient proof of that fact:

because of the probative value inherent in an admission against interest –

That is something that we say is quite lacking in the reasoning of the majority. Instead of taking the holistic approach and bearing in mind the special quality of admissions, Justice Kirk first dispatched from further consideration all circumstances other than the admissions on the basis that they were equally consistent with an admission to having been involved in the disposal of the body rather than the murder. In paragraph 50 of the judgment, his Honour concluded that:

none of the witness evidence, including the forensic evidence, points in any material way to a conclusion that –

the respondent:

was a party to the murder.

We say that that was wrong. Each of the circumstances that I referred to earlier in my oral submissions was consistent with the respondent having been involved in the murder. They did point in a material way to his involvement, albeit that they were insufficient on their own to support the verdict. That is always the case in a circumstantial case: none of the circumstances on their own, generally, will support a verdict of guilty.

BEECH‑JONES J: Sorry, other than the admissions, what pointed towards involvement as opposed to disposal?

MS DOWLING: We say, with respect, that is the wrong question. The question is to look at all of the evidence and once, holistically to ask whether all of the evidence pointed to the murder as opposed to the disposal of the body.

BEECH‑JONES J: So, when you say that Justice Kirk was wrong at paragraph 50, it was not that that was a wrong summary, it was a wrong question to ask?

MS DOWLING: It was a wrong conclusion that it did not point in a material way to his involvement in the murder.

BEECH‑JONES J: I see.

MS DOWLING: It may have also pointed to his involvement in the disposal of the body, but just because it may have been incapable of distinguishing between those two offences does not mean that it no longer had probative force in relation to the question of whether, together with the admissions, it supported the verdict of guilty in relation to the murder.

EDELMAN J: This is all in relation to your second ground of appeal now.

MS DOWLING: Yes.

EDELMAN J: In a way, is the second ground almost anterior to the first ground? Because if you are right about the second ground, and a holistic approach to all of the evidence might have required, in the circumstances of this case, either a structured approach, or at some stage in the process to have listened to at least key parts of the recordings or watched key parts of the police interviews, then the jury advantage question would be reduced very, very, substantially, would it not?

MS DOWLING: Yes. The two grounds are related, and it may well be that by conducting this very disjointed, piecemeal analysis, that that was what caused the error the subject of the first ground of appeal.

The approach that his Honour Justice Kirk took to the admissions was a similar approach that his Honour took to the other circumstances, in that his Honour analysed each one separately and asked himself whether each admission sufficiently reliable. Bearing in mind that what the Crown was required to prove was the participation in the agreement, the majority’s approach was not the correct one to either the non‑admission circumstances or to the admissions.

Rather than asking whether it was open to the jury to accept the “consistent vein of admissions against interest” that can clearly be seen in the telephone intercept material and the recorded interview, his Honour Justice Kirk instead looked for reasons to reject the admissions. We say that is an inversion of the manner in which the test from M requires an appellate court to approach its task when assessing a circumstantial case, and, of course, that is clear from the language that the court is to ask itself whether it was open to the jury. That can be starkly seen in the judgment in his Honour Justice Kirk’s reasons at paragraph 122.

GAGELER CJ: That is the passage we have been to, is it not?

MS DOWLING: It is the passage above. It is on page 187 of the core appeal book. Yes, it is the one that we went to in terms of the standard of reliability. In contrast, could I draw to your Honours’ attention Justice Fagan’s reasoning at paragraph 136 and following, which is at core appeal book 190.

At paragraphs 136 and 137, we say that his Honour Justice Fagan’s expression of the question for the appellate court more correctly reflected the task to be performed by the CCA. In particular, as his Honour identifies in those two paragraphs, his Honour identifies the things that the jury did not have to be satisfied beyond reasonable doubt, and the conclusion expressed halfway through paragraph 137, which is core appeal book 191 that:

It was open to the jury to be satisfied to the criminal standard that the applicant provided material assistance to [the Principal] in furtherance of a joint enterprise of killing William Chaplin if they found that the applicant had reliably admitted, in general terms, that he took part with [the Principal] in the commission of the murder, albeit that they must have found his varying claims as to precisely what he did inconsistent with and contradictory of each other and therefore unreliable as to specifics.

In the following paragraph, your Honours – 138 – his Honour Justice Fagan really, in our submission, identifies the error in the approach advocated for by the respondent in the CCA, and which was adopted by his Honour Justice Kirk, insofar as Justice Fagan states at core appeal book 192:

The question is whether it was reasonably open to the jury to have drawn that vein of admissions from the applicant’s phone calls and from his second police interview and to rely upon it as a fundamental acknowledgement that proved the Crown case against him –

In my view, it was reasonably so open. In our submission, by seeking to individually identify which of the respondent’s different accounts could be accepted as sufficiently reliable, and by failing to consider – to then step back and consider the circumstances, including the admissions as a whole, the majority depreciated the force of the Crown’s circumstantial case and failed to engage with the test from M in that they overlooked that it was open to the jury to accept that the respondent had repeatedly admitted his involvement of the murder of Mr Chaplin. Of course, that approach is contrary to the approach mandated by this Court in cases such as Hillier and Baden‑Clay. In so doing, we say the majority failed to give full regard to the role of and the advantage enjoyed by the jury in this case.

Your Honours, those are the submissions of the Crown, unless there is anything else that I can assist your Honours with.

GAGELER CJ: Thank you, Ms Dowling. At this stage the Court will take the morning adjournment.

AT 11.21 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.35 AM:

MS DOWLING: Your Honours, just before my learned friend steps up, may I very briefly give your Honours some page references to the summing‑up. The summing‑up is in the core appeal book. At page 15 of the core appeal book, the direction as to the elements of – the fact that the Crown need only prove the elements of the offence is given.

At page 26, the jury are directed as to the fact that it was the recordings that were the evidence rather than the transcripts. The transcripts were provided only as an aide, and the jury are given some direction on how to approach that evidence. Then, at core appeal book pages 51 through to 53, there is a further exposition of the elements of joint criminal enterprise, extended joint criminal enterprise. Thank you.

GAGELER CJ: Ms Dowling, while you are on your feet, a number of names are mentioned in the transcripts that you took us to. Would it be possible to get from you a list of those names that have been supressed and the reasons for the suppression?

MS DOWLING: Yes.

GAGELER CJ: Thank you.

MS DOWLING: Thank you, your Honours, and I apologise for any inconvenience caused by my speaking the child’s name.

GAGELER CJ: Thank you. Mr Dalton.

MR DALTON: If your Honours please. Our submissions are very much based upon what we submit is a very comprehensive exercise that was conducted by the majority in the Court of Criminal Appeal, focused on the elements. The argument that is urged upon the Court by the appellant, and, indeed, was the approach taken by Justice Fagan, was one that revolved around an all‑or‑nothing approach.

It was that the respondent was guilty of a joint criminal enterprise involving killing, and the lies and admissions otherwise that the Crown relied upon was argued could demonstrate a constancy of guilt or an acceptance of guilt in relation to that premise of joint criminal enterprise. My learned friend took your Honours a little while ago to paragraphs 136 and 137 of Justice Fagan’s findings. That is where he starts and that is where he finishes. He does not consider anything in between.

Your Honours, our arguments also – as adopted by Justice Kirk, what Justice Kirk said in his judgment – relate to the elements with respect to a joint criminal enterprise, or extended joint criminal enterprise, or indeed an accessory after the fact. The arguments at trial and in the Court of Criminal Appeal was that the lies by that respondent – and indeed everything that he said – could not be accepted unless it was independently corroborated.

As far as being accessory after the fact was concerned, in assisting to help dispose of the body, he is corroborated in that regard by the evidence of [Witness 1]. My learned friend said it was a live issue at trial whether [Witness 1]’s evidence could be accepted but, in our submission, that was not the case. Her evidence was accepted at trial as being credible and reliable.

Your Honours, the other important aspect that we would seek to make early in our submissions is this, is that this is not a single‑actor case, and it is our oral argument points. The manner in which the appellant is urging the court to apply the law in this regard would definitely be applicable in a single‑actor case, as the court has dealt with previously. They have deal with that situation in Baden‑Clay, they dealt with that situation in Lang, and they dealt with that situation in Dansie.

It is a very different matter where there is only one actor at play and a series of falsehoods are told, and indeed other conduct that is consistent with a consciousness of guilt is performed. It is therefore within the realm of the jury – and, we say, also an appellate court that is reviewing that – to determine that there was in fact a consciousness of guilt available and that related to the actual offence charged, which is a very important consideration in the subject circumstances of this case in our submission to the Court.

That is the approach of the majority, we submit, who paid very careful attention to what were the necessary elements in relation to the various charges at play. In relation to that, there was Justice Kirk at paragraphs 90 to 93 at core appeal book 177, and this is early in his – and we say – comprehensive analysis of the whole of the case. At 90 he says:

In relation to joint criminal enterprise, it was accepted that it was necessary for the Crown to prove beyond reasonable doubt that there was an agreement between the applicant and [the Principal] to kill or inflict grievous bodily harm upon the deceased. Such an agreement need not be expressed and can be inferred from words and conduct.

At 91, he goes to the requisite elements for an:

extended joint criminal enterprise –

And sets that out there, and that is in relation to, at least, there being an agreement to assault and with that would go the necessity for the foreseeing of, at least, grievous bodily harm being caused and that might in fact be inflicted, even if the person was not agreeing with that on an extended joint criminal enterprise grounding. Then in 92, his Honour notes that:

Both Crown theories thus require some agreement between [the Principal] and the applicant that they would at the least assault the deceased. In the circumstances of this case both also involved the applicant being present during the murder.

Your Honours, it was the case at trial, and on appeal, and indeed in this Court, that [name redacted] was the principal. He was the orchestrator of the offence, he was the person who actually inflicted the fatal blow on the Crown case and that the respondent was a minor participant, at best. It is through that fulcrum, in our submission, that it is necessary to view the arguments propounded by the appellant in these proceedings. Perhaps, more eloquently than I, this point can be made by reference to Justice Fagan’s analysis of [the Principal]’s admissions to the witnesses. This is at core appeal book 242, paragraphs 261 and, in particular, 262.

The portion in 262 – because the evidence was that [the Principal] had admitted to three people that he had killed the deceased, and there was no mention of anyone else being involved; in particular, the respondent. What his Honour Justice Fagan says in that regard – and, we say, quite logically – is that:

In acknowledging the murder to the three witnesses it is plausible that [the Principal] may have thought it superfluous to mention that the applicant, a mere boy of 16 years at the relevant time, took part. He may not have regarded the applicant’s contribution as significant. He may have sought to project himself as more intimidating and dangerous by not disclosing that he had help.

Then, most significantly, is this observation, with which we concur:

[the Principal] is unlikely to have had any understanding of joint criminal enterprise liability and may not have considered that relatively minor participation by the applicant could render him liable.

A totally appropriate and logical analysis of [the Principal]’s circumstances. Now, with respect to these lies – and if your Honours would not mind just going a moment again back to 136, my learned friend has quoted this. You can see at 136 and 137 that Justice Fagan – and this is at the beginning of his judgment, referring to the basis of criminal liability alleged against the applicant – says, at the bottom of core appeal book 190, in paragraph 136:

It was sufficient if the jury found that the elements of joint enterprise liability for the murder were proved at a general level; that is, that the applicant and [the Principal] reached an agreement or understanding, by some means spoken or unspoken, that together they would kill William Chaplin and that while their agreement or understanding remained on foot they carried out between them, pursuant to and in accordance with the agreement, such acts as were necessary to kill him.

Then in the final sentence of that paragraph:

It was open to the jury to find that those elements of liability, expressed in their general terms, had been proved beyond reasonable doubt by the admissions of the applicant, understood by the jury at their general or fundamental level of meaning.

EDELMAN J: Mr Dalton, what troubles me a little is that the conclusion that is reached by the majority must have been based on doubts that there was a consistency that underlay the different and inconsistent admissions, but that the majority must have reached that conclusion as to – the way you are putting it – the general basis of the admissions, without having seen or heard the admissions themselves, or the key parts of the admissions.

MR DALTON: I understand, your Honour. Our submission in relation to that is – and his Honour Justice Kirk said this, as such – that he could not see how listening to them was going to assist in that process, because what was being contended is that most things he was saying were either lies or unreliable in their detail.

To accept even that he was saying, in overall terms, that he was hiding an involvement in the illegal activity, you could not separate out that involvement with respect to being an accessory after the fact, in the mind of a 16‑year‑old at the time, and a 26‑year‑old at the time that he is speaking on those phone calls and being interviewed by police, which, in our submission, is totally logical and appropriate in the circumstances; not so if it was a single act or situation, which is why I referred to those other cases a moment ago. It is because there were two actors, and he is – even on the Crown case and all the other evidence – the minor player.

That is why, in our submission, when actually applying oneself logically to this process, the argument of the course of conduct of lying is the way that I have sought to describe it in the oral arguments. No actual direction was given in relation to that aspect at the trial, because it was not sought to be relied upon in those terms. I believe your Honour Justice Edelman asked my learned friend about that.

BEECH‑JONES J: Do you mean there was no lies direction?

MR DALTON: There were four lies, your Honour. Four specific lies that were referred to, I think, that Justice Kirk refers to at 106 and 107 of his judgment, not the overall course of conduct. And there was a submission made to the effect that, given all these lies – and my learned friend did refer the Court to that – that the overall impression from the lies could ground a finding of guilt.

But in the terms that his Honour Justice Fagan has analysed that, that would be to a joint enterprise to kill the deceased without any other evidence to that effect and without any discrimination between a more minor role, which might have been in respect to extended joint criminal enterprise; or a more minor role again, which may have been to unlawful and dangerous act; manslaughter, by way of being involved in an agreement to assault; or as an accessory after the fact, in assisting to dispose of the body. That was the reasoned approach, we submit, by the majority in the circumstances.

In that regard, I have taken your Honours to the opening finding by Justice Kirk, with whom Justice Sweeney agreed, in relation to those portions, but importantly, thereafter, his Honour, after going through all the evidence in respect to the forensic evidence, in respect to the other witnesses, and, indeed, then a careful analysis of all of the telephone intercepts and the ERISP, his Honour then – the criticism is made of his approach, or the majority’s approach, that they dealt with it piecemeal. In our submission, they did not.

His Honour went through, very carefully, all of that evidence and then came to some determinations. That is best referred to, to begin with, at paragraph 107. This is the “reliability of admissions”. I will come to the Crown’s point – or the appellant’s point – in relation to that in a moment. But having gone through a detailed analysis of all the evidence, then his Honour refers to:

the various versions of his involvement given by the applicant the most plausible, by some measure, is that he cut the throat of the deceased. He told this to each of his parents, separately, nine days apart. This occurred soon after he learned of the investigation. His admission to his mother occurred in the phone call where he appeared first to learn of the investigation. He had no apparent reason to lie . . . and it might readily be concluded that he would be prepared to confide in them. When he made these statements he did not appear concerned about the possibility of phone intercepts.

Then his Honour remarks, or finds:

As indicated above, these admissions would provide a compelling basis for finding the applicant guilty but for one thing: they probably were not true, as the Crown itself accepted below. [Witness 1] was clear that she did not notice any damage, cut or bruising to his neck, nor blood on his neck.

Then his Honour refers to the timing of the observation and so forth, but then says:

That delay does not undermine the fact that she said she was positive that she saw no cuts to the throat, and that she was sure that if the deceased’s throat had been cut she would have seen it. Nor can this evidence be explained away by saying we do not know how close she got to the body. She was close enough to say that she saw a small nick above the right eye of the deceased and that his eyes were open and staring up.

In relation to the forensic evidence, there was a question of my learned friend in that regard, because Justice Fagan allowed for the possibility that the jury would prefer the evidence of the admissions in relation to the cutting of the throat to that of [Witness 1]. That was not the Crown case at trial and it was not the Crown case on appeal. The Crown case on appeal was that [Witness 1]’s evidence was credible and reliable.

In relation, your Honours, to the forensic evidence, that is at core appeal book 164 to 165, paragraphs 41 to 47, and that is in Justice Kirk’s analysis of all the evidence. In our submission, it is not just that the evidence was ambiguous in relation to these cuts, as my learned friend – or these “defects”, the anthropologist referred to them as – to C5 and C6. They were to the rear of the neck, and the anthropologist Dr Donlon could not determine whether they were peri‑ or post‑mortem. So, there was nothing that could be relied upon, in regards to that evidence, to support a suggestion that [Witness 1]’s evidence should be excluded on that point. Very importantly, going on, at 109 his Honour says:

As addressed above, the various other versions put by the applicant are also problematic.

Then, at 110, his Honour ‑ with whom Justice Sweeney agreed, and said she did so explicitly with respect to his reasons, and that is at 266 ‑ at 110 his Honour deals with the evidence “taken as a whole”, in other words, admission evidence, and he says there:

The Crown submitted both below and on appeal that it was open to the jury to find that the various accounts given by the applicant “taken as a whole, despite the inconsistencies, were ‘powerful evidence of the accused’s direct involvement in the intentional killing of [the deceased]’”. This submission seems to invite the drawing of some generalised inference that taken together the various admissions manifest his participation in the murder. I have some concern about drawing such a generalised inference, which it appears to involve consciousness of guilt reasoning without seeking to meet the standard of such reasoning.

Significantly, in that regard, it is our submission his Honour is referring to an Edwards direction, approved in this Court in relation to Lang and other cases, to the effect that the lies or the course of conduct has be deliberate, but it also has to demonstrate a consciousness of guilt of the offence charged, and a jury should also be directed that there may be other reasons that a person might lie or adopt a deceitful course of conduct. In relation to this case, it was important, when analysing it carefully, to put ‑ ‑ ‑

BEECH-JONES J: Mr Dalton, I understood Justice Fagan to really say, look, not that lies about how the killing may have happened were a consciousness of guilt because they were part of some strategy to deflect blame or something, but that if you would conclude that they were lies told for some reason like that, that was a reason why you would differentiate between them and the underlying acceptance that he was involved in the killing. That is, as I understood it, the gravamen of what Justice Fagan was trying to use this material. Is that not right?

MR DALTON: I agree with your Honour’s assessment of what he did and, in our submission, it was wrong in the circumstances. That is our simple response to that, because, logically, it needed to discriminate between the available elements for the various forms of criminality that could have applied in the circumstances. In other words, joint criminal enterprise, as I said before; extended joint criminal enterprise; manslaughter, be that by agreement with respect a dangerous, unlawful act, to assault and, indeed, accessory after the fact.

BEECH-JONES J: Did he need to distinguish between joint criminal enterprise and extended joint criminal enterprise? Is murder not good enough, no matter what the basis?

MR DALTON: Your Honour, it is not just the Edwards position that we are submitting was required in the circumstances; it is also the approach to the circumstantial case. And the proper approach to a circumstantial case is that a hypothesis consistent with innocence, as I know the Court all knows, should be excluded and excluded beyond reasonable doubt.

EDELMAN J: Your submission then, as I understand it, is essentially that if one wants to engage in this generalised reasoning, the vein of evidence at a high level of generality‑type argument, it is necessary to that process to discount the denials, and the only way to discount the denials at that generalised level is by a consciousness of guilt‑type reasoning. Is that right?

MR DALTON: Exactly, your Honour. And that is exactly what his Honour Justice Kirk, with whom Justice Sweeney agreed, in the process – and he goes on in 111 to say:

In any event, the argument still relies on the admissions of the applicant being reliable to the extent of indicating his involvement in the murder by indicating that there was some agreement between [the Principal] and the applicant that they would at the least assault the deceased with the applicant present. I have significant doubts about their reliability.

In our submission, when he talks about “reliability”, that is a normal fact‑finding exercise and he is referring, clearly, to the impact – what inferences can be drawn from the facts that were known – they were on tape and on audiovisual exhibits – whether those inferences could be properly drawn to find the relevant elements for murder by either joint criminal enterprise or extended joint criminal enterprise, and exclude, in the proper process of dealing with a circumstantial case, a hypothesis consistent with innocence – innocence of murder, I would stress – being that he was an accessory after the fact, and guilty of assisting in the disposal of the body.

That is the way his Honour has carefully applied himself, by reference to analysis of the individual telephone intercepts and the police interviews. Then he has also dealt with it on a global basis, which is what is dealt with at 110 and 111. Then, your Honours, he goes on at 121 and 122 – and I know that your Honour Justice Gordon raised this with my learned friend in respect to whether his Honour was referring to the need for the facts themselves to be established beyond reasonable doubt, given the final sentence in paragraph 122 – but also it is our submission he was in fact referring to the inferences that could be drawn from those facts. He further refers to that in paragraph 131, at core appeal book page 189, when he says:

In sum, the admissions made by the applicant – on which the Crown case depends – are not reliable enough to found a solid conclusion that he was involved in the murder in the manner alleged.

Your Honours, that is why – and I should not neglect, and I know that this has been the subject of some interchange with my learned friend – the paragraphs that follow, where your Honours will see, in our submission, his Honour ‑ ‑ ‑

GORDON J: Which paragraphs are following?

MR DALTON: I beg your pardon – 121 and 122.

GORDON J: You mean the paragraphs that follow 121 and 122?

MR DALTON: Yes, your Honour.

GORDON J: Thank you.

MR DALTON: In relation to the determination of the jury’s advantage – and your Honours, in that regard, his Honour has quoted the very important passage in Dansie at 17 – and we have referred to that – and it is in the joint book of authorities; there is also the important passage at 16 in relation to that that approach. Paragraph 16 says:

Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.

We adopt that approach. The qualifying paragraph that his Honour refers to follows, in 17, that he has quoted at 125. He notes that it also applies to the jury in 126, and he says or finds at 127:

None of my reasoning turns on doubting witness testimony in a manner inconsistent with the Crown case. The jury had no relevant advantage, thus, in that respect.

I note, at the beginning of 128:

The jury listened to the telephone intercepts and watched the two police interviews. I have not done so. However, I do not consider that any part of my reasoning depends in any material way on what impression would have been conveyed by what the jury heard and saw in that regard. Consistently with the Crown case, I regard the versions of events given by the applicant in the ERISPs as replete with falsehoods and lies. I do not see how watching the interviews would be likely to alter that conclusion.

Which is an exposition of the argument that I was making, or seeking to make, a little while ago, to the effect that – because, if he had lied all the way through to cover up his involvement in some way in the murder, that would include assisting after the fact with respect to disposing of the body. If that could not be excluded beyond reasonable doubt, then he would have to be be acquitted. That is ultimately the process by which his Honour and Justice Sweeney followed, in our submission to the Court. Then, he refers to the Crown submission – that is at the Court of Appeal, at 129, and then says at 130:

Yet there is no dispute that much of what he said on those calls was probably not true including, critically, his core admissions to his parents of having cut the throat of the deceased. The Crown did not suggest to the jury that that claim should be regarded as bragging and it would be perverse to regard it as such. As to the point about the mother suggesting the applicant was being dramatic, to the extent that has any relevance to my conclusion it relates to the tendency of the applicant to tell stories and lies.

His Honour is referring there to, on the numerous occasions during the course of the telephone intercepts, a matter which can be determined by reading the transcript. The parents – the mother suggesting that he is lying at times, but also the father, quite specifically, and his brother, and they actually say, “You’re full of shit,” which are the words that were, in fact, used – and we do not know whether to accept you.

So, there was evidence before the court from the mother, who was called, who gave evidence regarding his history of confabulating and lying, and that is what was being referring by Justice Kirk there, and, indeed, in his earlier appraisal. He says:

I have set out a series of examples of that above. My examples are consistent with how the Crown put the case at trial. And the mother’s evidence in cross‑examination that the applicant had always been prone to making up stories, twisting the truth and telling lies was not challenged in re‑examination. I do not consider that listening to the intercepts gave the jury any significant advantage in assessing their significance to the case.
In sum, the admissions made by the applicant – on which the Crown case depends – are not reliable enough to found a solid conclusion that he was involved in the murder in the manner alleged. My view is not capable of being explained away by the natural advantages of the jury. I do not think it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. There is a significant possibility that the applicant is innocent of the offence charged. Given that conclusion, he is entitled to be acquitted of the murder charge.

Justice Fagan adopts an entirely different approach, in our submission. He does not adopt a different approach insofar as he certainly analyses the evidence in the same way that Justice Kirk did, certainly – and in particular – the evidence that relates to the telephone intercepts and the police interviews. I have already read to your Honours the starting point. For Justice Fagan, it is all or nothing. It is a joint criminal enterprise by way of an agreement to kill the deceased, or it is nothing, except perhaps the accessory after the fact, which was corroborated by [Witness 1]. It is in 136 and 137 that he commences in that regard.

Just excuse me a moment, your Honours. I will take you to, if I can, his further findings in relation to this aspect of the analysis that he adopts. At 169, page 202 of the core appeal book – if I can, I will move past that your Honours, because I have just lost my place in regards to that particular portion. His Honour again refers to – if my recollection is correct – the approach that he is adopting in relation to these matters. Then at 255 to 257, he refers to his approach to listening to a portion of the first ERISP. I think Justice Beech‑Jones raised this with my learned friend earlier this morning, that he did not in fact listen to all of the electronic material that was some nine hours in length.

In that regard, your Honours, I note that my learned friend took you to a portion in the oral submissions before the Court of Criminal Appeal where I did suggest to Justice Kirk that the appeal court review that material – listen to it or watch it – and that was because of a concern raised in that regard just a moment before by Justice Fagan. I raised that in this sense. In Pell, at 36, it said that it is not normal, and you would not expect an appellate court to have to review lengthy material in that kind – it was the recorded evidence of witnesses – but I understand my learned friend – and if I have misunderstood that – is not making a point of distinction between that and exhibits. In any event, I note that exhibits were not watched or listened to in Lang and it would appear to also be the case in Dansie, quite appropriately so, and those two cases went different ways. Be that as it may, that is the normal approach.

What Pell thereafter says, if there is a particular matter that is raised for which there is a reason to listen to and/or watch the telephone intercept material or audiovisual material, then that is a matter that might be appropriate in the particulars of a certain case which should be raised by the parties. We do not suggest that an appellate court cannot raise that for themselves.

EDELMAN J: It might have been necessary, even on your submission, for the majority to do it themselves. If, for example, they, accepting your submissions, had not reached the force of conviction about the appellant being such a liar and a fantabulist and a confabulist and had not accepted with a fair bit of force [Witness 1]’s evidence about her observations and the injury, if they had not reached those conclusions with such a degree of conviction, then it may have been necessary, even on your submission, I think.

MR DALTON: Exactly so, your Honour, and I note your Honour’s determination with Justice Gordon in Hofer. It is a slightly different situation because it is dealing with the evidence of an accused. Here, we are dealing with the interviews and the telephone intercept material with respect to an accused. I know your Honour the Chief Justice went on to agree, in a sense, but made further comments in relation to the – sorry, I think Justice Gordon might have been dissenting in that matter. I apologise for that. I think your Honour did find that there had been a miscarriage of justice but did not find that the proviso should apply in the circumstances.

I am hoping I am right that Justice Edelman, and perhaps it was Justice Gleeson, in relation to that determination found that the evidence had to be excluded because the improbabilities were glaringly obvious. In our submission, they were glaringly obvious in the subject circumstances of the analysis of these tapes, of the telephone intercepts and the police interviews, which was the finding of such conviction, as your Honour put it, by the majority in the circumstances. Yes, I do accept, your Honour, that if they were not so firm in their conviction about that raising the doubt that it did, then they may have seen a need to actually listen to and view the material.

The point that I was also going to make, though, is Justice Kirk said to me in response to my submission in that regard, that is not right in accordance with Pell, and the Crown did not seek to correct him in that regard. So, his Honour Justice Beech‑Jones ‑ ‑ ‑

EDELMAN J: That exchange, at least as I read it, was an exchange where the remark that you had made might have been interpreted as suggesting that in almost every case one would need to watch the recordings or listen to the recordings, whereas the response is saying, well, Pell says kind of the opposite. It is the exceptional case.

MR DALTON: That is entirely right. And if what I said, had that been that it was wrong ‑ ‑ ‑

BEECH‑JONES J: Except Pell was talking about witnesses and their constitutional function.

MR DALTON: That is right. Yes, your Honour.

BEECH‑JONES J: And we are talking about being careful about types of exhibits because they can vary, as you know, dramatically – from surveillance, which you might have to look at, because it is very hard to sum up and describe it – but it is hard. Ultimately, it depends on the nature of the doubt and the nature of the evidence that has been reviewed to give rise to the doubt, does it not?

MR DALTON: Yes, your Honour, it does. In the subject’s circumstances, if it was being argued that dealing with these telephone intercepts and ERISPs overall gives rise to an assessment whereby an inference can be drawn beyond reasonable doubt that the hypothesis consistent with innocence, being that he was only an accessory after the fact, could be excluded, that is suggesting, without particular portions being referred to, the whole of it should be listened to and/or watched. That was not the position of the Crown or respondent in the Court of Criminal Appeal. That was the only point that I sought to make in regard to that aspect.

GAGELER CJ: It is a strange forensic contest. So, you are saying to the Court of Appeal, listen and you will have a doubt; Justice Kirk was effectively saying, I have a doubt without needing to listen.

MR DALTON: With respect, your Honour, my response was to this effect: it will not resolve any doubt that you have.

GAGELER CJ: I see.

MR DALTON: Yes, please listen to it if you are concerned; listening to it may assist in that regard. Although I said it poorly, that was really what I meant by way of my submissions.

BEECH‑JONES J: I think your opponent is saying, yes, we agree, maybe. As in, they should have agreed with what you said.

MR DALTON: And they did not.

BEECH‑JONES J: And they did not. And now the Crown says, you were right.

MR DALTON: Yes, your Honour. If they had a doubt. As Justice Edelman said, the majority were so firm in their conviction that they had a doubt, they did not see a need to go to the listening and watching of the telephone intercept material and the audiovisual material. Logically, when looked through the proper fulcrum of concentrating on the elements – which is what Justice Kirk did – with respect to a joint criminal enterprise or, at minimum, an extended joint criminal enterprise to sustain his guilt of murder, then listening to them and/or watching them was not going to help in that regard.

BEECH‑JONES J: But what we do not see is Justice Kirk analysing the type of advantage the jury might have had and assessing that against his doubt. What we see is Justice Kirk saying, my reasoning does not involve a doubt. So, his Honour does not identify – perhaps, without looking at the tapes, he does not identify the possible advantages the jury might have had.

MR DALTON: In our submission, your Honour, there is no doubt in certain circumstances that there may be nuances in a way things are said or the way someone presents in a telephone intercept or in an interview that will affect the interpretation in that regard. Our point, though, is that is not these circumstances because it is not capable of distinguishing between the various levels of liability, and most importantly, the hypothesis consistent with innocence as far as murder is concerned that he was an accessory after the fact.

EDELMAN J: Well, it might be these circumstances, but your submission is that, on the approach of the majority, it was not these circumstances.

MR DALTON: Yes, your Honour, and that was appropriate and available in the circumstances, and the Crown did not suggest otherwise in the Court of Criminal Appeal. There is no criticism, in a sense, of Justice Fagan for going to listen to some of the materials – a small portion of the material, he says – but it was not actually raised with him and with the court by the Crown that they should be doing that to be able to make that determination, which is now a very much important part of the argument that is brought to this court, and, in our submission, does not survive proper analysis of the approach of the majority in the Court of Criminal Appeal.

GORDON J: Your short point is, one has regard to the elements for joint criminal enterprise and extended joint criminal enterprise, listening or viewing the recordings was not going to assist in identifying those elements, and it does not answer the negating of the hypothesis of innocence consistent with accessory after the fact.

MR DALTON: That is exactly right, your Honour; the point being that he was lying. It was generally accepted at trial, and in the Court of Appeal, that he was lying throughout the course of these various communications, and they were, therefore, unreliable. So, he was hiding something.

GORDON J: Does the context change when there is an admission that he was an accessory after the fact?

MR DALTON: The admissions in relation to being an accessory after the fact comes subtly during the course of telephone intercepts, where he is talking to his father about how a sheep can go missing in a fire, and then subsequently in the later interviews with the police.

GORDON J: I thought that it was in acceptance at trial that he was an accessory after the fact.

MR DALTON: Absolutely, your Honour. That comes from [Witness 1].

GORDON J: That is what I am asking, I thought that at trial it was accepted by defence counsel that he was an accessory after the fact.

MR DALTON: It certainly was, your Honour.

GORDON J: Thank you.

STEWARD J: I was just going to ask you, when you say listening would have made no difference, is that – like the example I gave to the Director, that when he said, “I witnessed the lot”, listening to that as distinct from reading from it will not tell you what “the lot” is.

MR DALTON: We agree entirely with your Honour in that regard. I do remember your Honour asking that question, and we support that interpretation in the circumstances.

BEECH-JONES J: Mr Dalton, I think, based perhaps on what I read in Justice Fagan’s judgment, there was no dispute that your client was present at the time of the killing, is that right?

MR DALTON: Your Honour, it was not put in dispute. There was no evidence that he was present, but it was not put in dispute. I note in that regard that my learned friends have suggested that him being an accessory after the fact, and perhaps being present, it is only a short step thereafter to him being implicit or complicit in a murder. In my submissions – and his Honour Justice Kirk dealt with this in his analysis, that he being present does not mean that he knew what was about to happen.

Presence, even combined with the accepted assistance that he gave after the event under threat – as per the evidence of [Witness 1], they were both under threat, including the respondent being scared and she was scared – from the principal that those two things are not sufficient to constitute even extended joint criminal enterprise, and his Honour made that point quite appropriately and logically so.

In our submission – and this is dealt with in the appellant’s submissions in reply in the last three paragraphs – it is not appropriate to characterise that as a short step. I do not mean to toy with the words, but it is a significant, a very significant, step thereafter to find that there was an inference available that he in fact agreed to assault the victim with the principal with the requisite foreseeing that it was going to be – that it could be grievous bodily harm and that would occur, and/or, even more seriously, that he agreed with the principal to kill him in the absence of any evidence other than what is suggested to be a generalised basal inference from all the lies.

Your Honours, I think those matters are covered also in our outline of oral submissions, and they are our submissions.

GAGELER CJ: Thank you. Ms Dowling, do you have reply?

MS DOWLING: Just briefly, your Honours, thank you. In relation to the suggestion that all of the telephone intercepts and all of the representations were lies, even his Honour Justice Kirk accepted that some of the representations were true, and as the discussion ended up just then, there was acceptance that he was present during the murder, and there was acceptance by him that he was involved in the disposal of the body.

In response to the point that your Honour Justice Edelman made about the suggestion that if the appellate court was going to engage in generalised reasoning, or reasoning as to the general admission, then it is necessary to discount the denials and one must do so by reason of consciousness of guilt reasoning. In our respectful submission, it is not necessary to go to that extra end point. It is possible to leave some of the denials – I did not know Chaplin, you know, I was not there, or whatever the denial happened to be – as simply not true. It is not necessary in every case to say, and they were told out of consciousness of guilt.

In relation to the denials that were relevant for the analysis that were consistent with the consciousness of guilt, the largest category of those is the working up the basis of exculpation. The most general category of that was the duress proposition that ultimately was run at trial. As his Honour Justice Fagan found, that was quite inconsistent with the finding by Justice Fagan that he was big‑noting himself all the time. Similarly, the denials or the differences and inconsistencies that Justice Fagan characterised as the staged retreat, or of the:

inept casting about for a story that would deny or minimise his own part.

acknowledging that the reason for those inconsistencies does not detract from his admission of involvement in the killing. It does not make all of his statements incapable of belief. In the context of cases like this, this was an incredibly complex set of representations. Some were true – they were proven to be true – some were admitted or not disputed by the respondent at trial, some were plainly untrue and that was a difficult task for the jury to conduct.

This is, in my respectful submission, quite unlike the situation that was considered by this Court in Hofer, in which the account of the accused in that case was found to be “glaringly improbable”, for the reason that I have just addressed upon – that there was such a diversity of representations, many of which we know were true because he did accept that he was there and he was involved in the disposal of the body, and a lot of those telephone intercepts and a large part of the ERISPs addressed that part of his conduct.

There was some criticism of the way in which the Crown closed its case in relation to the use of corroboration and the suggestion that the

Crown put to the jury that everything was a lie, and nothing could be accepted were it not corroborated. In my respectful submission, that submission put the Crown’s position at trial too high. The Crown’s submission on the use of corroboration was limited to the proposition that the jury would not accept the respondent’s statements unless they were corroborated about at a discrete series of topics.

The topics were [the Principal]’s violence towards the respondent – I will just refer you to the respondent’s book of further materials at 22 and 38 – [the Principal]’s sexual involvement with the respondent – the page reference for that is the respondent’s book of further materials at page 38 – [the Principal]’s background as a bikie assassin, that is in the respondent’s book of further materials at 38 to 39.

Also, I would just like to remind your Honours that there was some positive corroboration in the skeletal injuries that was consistent with the respondent’s admissions about the knife. They are, of course, the marks to the back of the vertebrae which – as his Honour Justice Fagan appears to have considered – may not be inconsistent with [Witness 1]’s evidence. That evidence is referred to in the respondent’s further materials at 34.

Those are the matters that I wish to address in reply. Thank you, your Honours.

GAGELER CJ: And you will provide us with that note by when?

MS DOWLING: By the end of the day, your Honour.

GAGELER CJ: Yes, thank you. Thank you, Ms Dowling. The Court will consider its decision in this matter and will adjourn until 10.00 am on Monday, 25 November.

AT 12.27 PM THE MATTER WAS ADJOURNED

[2024] HCATrans 82

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