ZT v The King - [2023] NSWCCA 241

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ZT v R [2023] NSWCCA 241
Hearing dates: 11 August 2023
Date of orders: 29 September 2023
Decision date: 29 September 2023
Before: Kirk JA at [1];
Fagan J at [133];
Sweeney J at [266]
Decision:
(1) Grant leave to appeal and appeal upheld.
(2) Quash the appellant’s conviction and a judgment of acquittal be entered in its place.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Joint criminal enterprise and extended joint criminal enterprise — Where admissions were made by the applicant against own interests — Where admissions are inconsistent — Whether admissions sufficiently reliable to found a guilty verdict — Whether jury had a natural advantage in hearing phone intercepts and viewing police interviews
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle

Cases Cited:
Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Sinclair v The King (1946) 73 CLR 316

Category: Principal judgment
Parties: ZT (Applicant)
Rex (Respondent)
Representation:
Counsel:
D Dalton SC (Applicant)
G Newton SC and J Styles (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/266663
Publication restriction: The identities of the applicant ZT and of certain of the witnesses (who are identified only by initials) are protected by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

09 December 2021

Before:

Walton J

File Number(s):

2019/266663

HEADNOTE

[This headnote is not to be read as part of the judgment]

William Chaplin was murdered in 2010, orchestrated by a Paul Watson. The applicant in this appeal was also charged with that murder. He had been 16 years old at the time, and living with Watson and Watson’s wife. The Crown’s case against him involved the doctrines of joint criminal enterprise or extended joint criminal enterprise, alleging an agreement between the applicant and Watson to at the least assault the deceased.

Ms Watson had pleaded guilty to being an accessory after the fact by assisting to dispose of the body of the deceased. The applicant was not charged with that offence, although there was evidence from Watson’s wife directly implicating him in doing so.

The Crown’s evidence of the applicant’s involvement in the murder itself was comprised of various witness testimonies, forensic evidence and alleged admissions made by the applicant in intercepted phone calls and two police interviews. The applicant’s admissions contained various inconsistencies and untruths. He confessed to each of his parents over the phone that he had cut the throat of the deceased. The Crown accepted below that that was probably untrue, based on Ms Watson’s observations of the body.

The applicant was found guilty of murder following a trial by jury in the Supreme Court, convicted, and sentenced to imprisonment for 12 years with a non-parole period of 8 years.

The applicant sought leave to appeal from his conviction on the sole ground that the guilty verdict was unreasonable or could not be supported having regard to the evidence.

The Court upheld the appeal by majority (per Kirk JA, Sweeney J agreeing, Fagan J dissenting):

Per Kirk JA (Sweeney J agreeing):

1. The witness evidence does not point to a conclusion that the applicant was a party to the murder, as opposed to having been an accessory after the fact. The case against the applicant is founded on admissions, particularly those he made in intercepted phone calls: at [50] and [123]. The Crown’s case relies on the admissions of the applicant being reliable to the extent of indicating his involvement in the murder: at [111]. Those admissions are of suspect reliability: at [123].

2. The intercepted calls manifest the tendency of the applicant to say things which were not true and on occasions when he had no apparent cause to lie, suggesting that what he says is suspect even when against interest: at [81] and [112]. The needless lies told by the applicant are suggestive of someone who is either or both a compulsive liar or a fantasist: at [116].

3. The police interviews were aptly described as “a series of rambling falsehoods”, that there may have been some truth woven into them, but “on the whole they were totally unreliable unless corroborated by independent material”: at [86].

4. For lies to be evidence of consciousness of guilt, the reason for the lie must be that he feared that the truth would implicate him in the commission of the offence. The lies relied on in that way are equally explicable as manifesting a concern that the truth would implicate the applicant in being an accessory after the fact and do not necessarily implicate him in involvement in the murder: at [106].

5. None of the reasoning turns on doubting witness testimony in a manner inconsistent with the Crown case. The jury had no relevant advantage in that respect: at [127].

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, considered.

6. Proof of the accused’s direct involvement in the murder based on evidence “taken as a whole, despite the inconsistencies” draws some generalised inference and appears to involve consciousness of guilt reasoning without seeking to meet the standard of such reasoning: at [110].

7. The admissions made by the applicant are not reliable enough to found a solid conclusion that he was involved in the murder in the manner alleged. It was not reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: at [131].

Per Fagan J, dissenting:

8. It was open to the jury to find that the applicant’s admissions to his parents in intercepted phone conversations and to police in his second interview established beyond reasonable doubt that he had participated in the murder of William Chaplin pursuant to a joint criminal enterprise with Watson: at [138], [252].

9. In accordance with settled principles of joint criminal enterprise liability, it was not necessary for the Crown to prove beyond reasonable doubt particulars of the part played by the applicant in the murder or the cause of death or what causative acts were carried out by the applicant and/or Watson. The jury were therefore not bound to acquit on the basis that the applicant’s conflicting versions of those particulars, as given in his police interviews, gave rise to a doubt about the particulars: at [136]-[137].

10. The jury were not bound to feel reasonable doubt about the whole of the applicant’s admissions, including his basal confession that he had participated in the murder with Watson, because of the inconsistencies in his statements about particulars of the commission of the crime. Where the critical evidence consisted of admissions rather than testimony of an accusatory witness, it was open to the jury to accept the basal admission of culpability notwithstanding that the applicant’s statements regarding particulars were unreliable. The jury’s decision in that respect was subject to different considerations from those that might cause a jury to reject the whole of an accusatory witness’ testimony if such a witness were significantly inconsistent with respect to detail: at [258]-[260].

11. The applicant’s statements in the intercepted phone calls were made in different circumstances from those in the police interviews and the applicant’s manner of speaking exhibited different characteristics in the two types of communications, respectively. The jury had the advantage of listening to the whole of those recordings, replayed at the trial over many hours. They were able to resolve any reasonable doubt that appellate judges might feel based only on the transcripts: at [255]-[257].

JUDGMENT

KIRK JA: The applicant was found guilty of having been a party to murder. The case against him was founded upon a series of admissions he had made as to his involvement in the killing. However, his accounts are numerous and inconsistent. The version which on its face is most believable and damning is probably not true. The core question is whether the admissions are sufficiently reliable to establish his guilt beyond reasonable doubt. In my view, in the extraordinary circumstances of this case, they are not.
The applicant was charged with the murder of a 25 year old man, William Chaplin, between 30 March 2010 and 31 May 2010, at a property in a town called Gerogery just north of Albury. There is no dispute that Mr Chaplin was murdered by Paul Watson. The murder was only uncovered when Watson made admissions to a person with whom he was sharing a prison cell whilst serving a term of imprisonment in Victoria for the sexual abuse of his own children.
The applicant was 16 years old at the time and living with Watson and Watson’s then wife, Samone Watson. He was clearly under the influence of Watson; at times felt threatened by him; and says that Watson had had sex with him on a number of occasions. The Crown case involved the doctrines of joint criminal enterprise or extended joint criminal enterprise. The applicant’s trial was held separately from the trial of Watson. The applicant was convicted by the jury on the 13^th day of the trial after only 50 minutes of deliberation.
The applicant sought leave to appeal on one ground: that the verdict was unreasonable. On the morning of the hearing the applicant sought to raise another ground relating to directions the trial judge had given with respect to the doctrine of extended joint criminal enterprise. The Crown did not oppose that ground being raised. The Court granted leave to add the new ground, made orders for the exchange of written submissions, heard argument on the first ground and reserved judgment on that issue. The application to rely on the second ground was subsequently withdrawn. This judgment only addresses the unreasonable verdict ground.
The law to be applied in relation to an unreasonable verdict ground is well-established. It was summarised by the High Court in Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [7]-[15], by reference in particular to the decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The question which the appeal court must ask itself is whether it thinks that upon the whole of the evidence it was open to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact which the court must decide by making its own independent assessment of the evidence. The court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. In answering that question the court must take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses. However, it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appeal court that the court may conclude that no relevant miscarriage of justice has occurred.
Here, evidence by Samone Watson directly implicated the applicant in having been involved with her in moving then burning the body of Mr Chaplin. She had pleaded guilty to a charge of being an accessory after the fact to the murder. Senior counsel for the applicant effectively accepted the conclusion that the applicant had been involved in that offence. But the applicant was charged only with murder. Neither the evidence of Ms Watson, nor the evidence of any other witness of fact, nor the forensic evidence, directly implicates the applicant in being involved in the murder itself. The case against him is founded on admissions made by the applicant. There is no real basis to choose between the numerous different accounts given by him, and the most reliable admissions made by him – to his parents on the phone – were accepted by the Crown to probably be untrue. The core question is whether there is enough in his admissions for it to have been open to the jury to be satisfied beyond reasonable doubt that, whatever precisely happened, he was involved in Watson’s murder of Mr Chaplin in one of the ways alleged by the Crown.
Having reviewed all of the evidence, I have a doubt – which I consider to be reasonable – that the applicant was involved in the murder of Mr Chaplin as alleged. The admissions made by the applicant are not reliable enough to found a sufficiently solid conclusion that he was involved. I do not consider that my doubt is resolved by reference to the natural advantages of the jury. There is, in my view, 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.
In what follows I will first outline the key evidence given by the other witnesses of fact and the forensic evidence, then summarise the various admissions and accounts made by the applicant, before turning to consider the reliability of the admissions and whether it was open to the jury to be persuaded beyond reasonable doubt of the case made by the Crown.

The witness evidence

Watson’s admissions

The police investigation into the disappearance of Mr Chaplin – nine years after the event – was sparked by a report of an honest inmate in a Victorian prison where Watson was incarcerated. Watson told his cellmate, Mr Sacha Priest, that “I murdered someone” and then went into detail about what he did, why he did it, and where the body was. He said that he burnt the body and buried it on a farm where he had lived. He did not say how he murdered the deceased.
Watson’s admission to murdering the deceased was made in the singular, saying that “I murdered someone” not that “we murdered someone”, suggesting that he acted alone in the murder of the deceased. In the course of Mr Priest’s examination-in-chief, the following exchange occurred consistently with that understanding:

Q. When Paul Watson described to you - when he told you that he’d murdered somebody and burned and buried the body did he mention anybody else?
A. That his wife knew about it and, yeah.
Q. Did he tell you anything about anybody else apart from his wife?
A. No, he didn’t.
Q. Did he tell you what his wife - what her involvement was rather than that she just knew about it?
A. No, nothing.

Another witness, JB, had lived near the Watsons’ house and on one occasion asked Watson about what had happened to Mr Chaplin after witnessing a separate incident involving a crashed car. Watson replied, “I killed him because he tried to rape [my] daughter”. This is consistent with Priest’s evidence that Watson claimed sole responsibility for the murder of the deceased.
The involvement of Ms Watson in disposing of the deceased’s body is described immediately below. Her evidence was that Watson told her that he killed Mr Chaplin because he had found him in the room with the Watsons’ two year old daughter in a compromising position. She indicated the words he used were “I killed him”. Further, Watson never said anything to her about the applicant being involved in killing the deceased.
Consistently with Ms Watson’s evidence in court, Ms Watson had earlier told Watson’s mother that Watson had confessed to her that he had killed the deceased.
The Crown’s case against the applicant was that Watson was the “orchestrator” of the killing. At least as Watson’s own admissions are concerned, there is no suggestion the applicant was involved.

Applicant’s involvement

Witness evidence about the applicant’s involvement in the murder of the deceased was given primarily by Ms Watson who, as noted above, pleaded guilty to being an accessory after the fact to murder by helping to burn the body of the deceased. Relevant evidence was also given by SD, who had been a neighbouring young person, and Ms Sharryn Wallace, who is Ms Watson’s mother.

Samone Watson

Ms Watson and her then husband resided together in Gerogery, where they lived until around 2011. The applicant had been living in the town with his mother, LT. LT’s sister Belinda lived with her husband next door to the Watsons. The applicant’s father lived in Culcairn, a small town not far from Gerogery. LT and the applicant moved to Townsville in 2007. Around late 2009 or early 2010 the applicant moved back to live with his father in Culcairn. The applicant turned 16 in October 2009.
The Crown’s case relied on the closeness of the relationship formed between the applicant and Watson as part of the circumstantial evidence of his involvement in the murder. Watson befriended the applicant whilst the latter was living in Gerogery, before moving to Townsville. The acquaintance was renewed when the applicant returned to the area. He would come to the Watsons’ house – which had an adjoining paddock – to help with the horses owned by them. The applicant went to their house with increasing frequency, nearly every night after school, and sometimes spent the night there. At some point the applicant moved in with the Watsons having had a falling out with his father.
Ms Watson described the relationship between the applicant and Watson as “very good friends”. They would “hang around together”, and talked and smoked marijuana. By around late 2009, when the applicant had moved into the Watsons’ home, he rarely went to school. Prior to the deceased being killed the applicant had lived in the Watson’s home for approximately four to five months. Mr Chaplin was also living in the house by early 2010.
On a day in early 2010 Ms Watson had an argument with Watson. She left in the afternoon to stay with her mother-in-law overnight. The murder of Mr Chaplin took place while she was staying with her mother-in-law.
The next day Ms Watson called her husband to see if she could go home, and he said that he needed an hour to clean up. She arrived some time between 11:30am and 12:30pm. Watson asked her if she wanted to be shown something which she agreed to, not knowing what it was. Watson made jokes in the presence of the applicant about it being a lovely day for sunbaking, in apparent reference to Mr Chaplin’s corpse.
She followed them to the “round yard” which was about 50-100 metres from the house’s back fence. The round yard was a circular enclosure with a wall constructed out of old tyres and a gate. It was used with the horses on the property.
A tarp with a bulge in it lay on the ground in the round yard. Watson went into the round yard and pulled the tarp back and Ms Watson saw the deceased’s body lying there. Watson had pulled the tarp back to above the hips or waist of the deceased. He was lying with his arms by his sides, his eyes were open and he was staring up. He had a small nick above his right eye. Ms Watson did not notice any damage, cut or bruising to his neck. She did not see any blood on his neck. She confirmed in cross-examination that she had earlier told police she was positive she saw no cuts to the throat. She had told the police that she was sure that if the deceased’s throat had been cut she would have seen it.
The applicant was present when the tarp was pulled back. She did not notice anything about his demeanour and did not remember him saying anything. However, she later said the applicant did appear scared. The tarp was then replaced and everyone went back to the house. Watson said to both her and the applicant “don’t say anything otherwise we’re in the same position”.
Ms Watson gave evidence that when they returned to the house Watson had told her that the reason he had killed the deceased was because Watson had walked in on the deceased with his daughter and her nappy was half undone, suggesting the deceased had or intended to sexually abuse the child. The applicant was there when that was said. Watson said to her and the applicant that “no one else was to know of this, and to tell no one”. She understood this to mean that if either of them said anything about it Watson was likely to kill them.

Later that evening Watson indicated to both her and the applicant that they needed to dispose of the body. She did so out of fear of being killed by Watson if she did not assist. Watson was violent and manipulative; he had hit and kicked her on a number of prior occasions; and he had regularly threatened to kill her. (He later threatened her on a phone call from prison suggesting, with reference to the deceased, that she would go to prison and experience what he was experiencing.)
She went with Watson to an area on the property near some trees. The deceased’s body was moved by Watson and the applicant to the round yard. There was already a shallow grave there, and Watson started to cover the body with bits of wood, before indicating that she and the applicant should help him. They gathered wood and covered the body, before Watson set it alight. The fire lasted for about 2-3 days and Ms Watson helped add timber during that time. She said that the applicant left for Townsville between 1-12 months later.
None of the evidence of Ms Watson directly inculpates the applicant as having been involved in the murder. It does place him at the scene when she returned after the murder had occurred, and clearly indicates he, like her, was involved in disposing of the body.

SD

SD was a young person who lived in Gerogery at the relevant time. He was friends with the applicant. There was an occasion when SD was at Watson’s house with the applicant and the three of them were smoking cannabis. Watson said he was proud of the applicant, he had “stepped up and helped him take care of some business”, although he did not say what that business was. When this was said the applicant had a “little bit of a smirk on his face”.
SD laughed at the remark. Watson got annoyed, pulled out a large hunting knife, held it to SD’s throat and said something like “do you think we’re talking shit, you want to be, do you want to go next”. Watson also moved his head towards the applicant, who then got up and stood next to the door. The knife was held to SD’s throat for five to ten seconds, then he was released, and he left a short time later. Afterwards SD asked the applicant “why you didn’t jump him”, referring to Watson, and the applicant responded “I was too scared”.
This episode is weak evidence that the applicant had helped Watson with something illegal, that being what was implied by “some business”. But that business could have been disposing of the body of the deceased, or something else. Watson’s threat “do you want to go next” is suggestive he was prepared to kill, but that still does not tie the applicant in to involvement in the killing of the deceased. The apparent preparedness of the applicant to assist Watson threaten his friend by standing by the door indicates that the applicant was under Watson’s thrall, likely because of fear. Again, that does not tie him to having been involved in the murder. The evidence of smirking has to be understood in the context of the relationship between the applicant and Watson, which is discussed further below.

Watson’s mother

Sharryn Wallace is Ms Watson’s mother who met the applicant in 2017 after Watson had been incarcerated for sexually abusing his children. Ms Wallace and the applicant had a conversation where the applicant effectively told her that he and Watson “had to sort out some guy who’d been messing with [the Watsons’] daughter”. In cross-examination, however, she clarified that it was possible the applicant told her that Watson “had to sort this bloke out” and that the applicant had to help him after that.
Obviously enough, this evidence does not tie the applicant to having been involved in the murder, as opposed to having been an accessory after the fact.

Ms Waldron

Ms Joanne Waldron, Watson’s first wife, was contacted by the applicant after the police investigation commenced. She gave evidence that he told her that he could tell police both where the murder weapon is and where the body was buried. This evidence indicates he knew about the murder. It does not point to his having been involved in undertaking it.

Applicant’s relationship with Watson

As the Crown put in closing address, Watson is “a child molester, he’s a wife-basher, he’s also, the Crown say a murderer”, adding that there “is no doubt he’s a violent man who will resort to violence”. Ms Watson described him as highly manipulative and SD called him very manipulative.
The relationship between the applicant and Watson started when the applicant was an early teenager, and he moved into the Watsons’ house having fallen out with his father. There was a significant age difference – Watson was aged around 39 at the time of the murder, when the applicant was 16.
The applicant told the police that Watson had required him to have sex with Watson on a number of occasions, and also to have a threesome with both of the Watsons. Ms Watson gave evidence that she never saw Watson engage in sexual conduct with the applicant, and the applicant never told her of any such conduct, and denied that she had had sex with the applicant. Given that Watson engaged in predatory sexual behaviour with a range of children of both genders, including teenage girls, the suggestion that there was a sexual element to Watson’s relationship with the applicant is entirely plausible.
Ms Watson gave evidence that she had never personally witnessed Watson threaten or assault the applicant or the deceased. She had never seen Watson assault anyone in the presence of the applicant, except for SD. On that occasion, Ms Watson had come home to find Watson was “flogging into” SD. Ms Watson herself had been assaulted by Watson in the presence of the applicant four or five times, including once when he had had her in a choke hold and Watson called out to the applicant to grab the Watsons’ daughter who was standing in the kitchen watching. The applicant himself told the police about regularly being threatened by Watson. As explained below, the reliability of what the applicant told the police is highly suspect. Even so, it is clear that the applicant was exposed to Watson’s violent tendencies and it is reasonably likely he at least felt threatened by those tendencies.
As already noted, Ms Watson testified that the applicant seemed scared when she was shown the body of the deceased, and she understood that Watson threatened both of their lives if they were to tell anyone about it.
Ms Waldron gave evidence that Watson hung around the bikie gang the Gypsy Jokers. Watson had told her that he had someone watching her and the house for protection. The applicant’s interviews with the police contain numerous references to Watson being involved with that gang, along with other reasons he claimed he was fearful of Watson. Whatever the truth or otherwise of those claims, there is no reason to doubt that the applicant had good reason to be fearful of Watson and, at least at times, very likely was in fear of him.
The unbalanced, probably abusive and fearful relationship between the applicant and Watson renders plausible the allegation that the applicant was prepared to act under the direction of Watson. But it does not point to him doing so by being involved in the murder, as opposed to assisting Watson dispose of the body of the deceased. There is no evidence from any witness that Watson requested that the applicant assist him assault or murder the deceased. In any event, the relationship does provide some context informing how the applicant reacted to remarks made by Watson about the deceased, such as smirking when Watson praised him.

Forensic evidence

Skeletal remains of the deceased were found by the police, buried in the round yard on the property that had belonged to the Watsons, in August 2019. Dr Denise Donlon, a forensic anthropologist, examined the remains in September 2019, over nine years after the murder. Four defects were found on the skeletal remains, which included the skull and various other bones.
The first defect was that for the hyoid (a very small bone just under the lower jaw) the usually attached greater horns were not found, having become unfused. Dr Donlon gave evidence that it probably occurred post-mortem but did not form an opinion whether or not that defect could have been caused by a blunt object, a sharp object or something else.
Secondly, one of the deceased’s right ribs had the appearance of a puncture mark on the posterior surface but it was not clear if it occurred perimortem (at or near to the time of death) or post-mortem. It did not show any healing, which is consistent with it having occurred perimortem. Dr Donlon did not proffer any view on what the cause of the puncture mark was, although in cross-examination agreed that it could be consistent with a stabbing motion or have been caused by something pointed.
Thirdly, there were also possible perimortem cut marks on two lower cervical vertebrae in the neck. One vertebrae had a hinged defect on the left side of the lamina measuring 12x5mm. Dr Donlon could not say what would have done that, but it could have been a cut to the bone. Another cervical vertebrae had what might have been a cut mark. She could not tell if these marks to the vertebrae were caused before or after death.
Fourthly, there were defects in the deceased’s fibula (from the shin). A number of these were heat related fractures, which is consistent with the evidence that the body had been burnt. There was one fracture that was angled which was a bit different but she drew no particular conclusions from this.
There were no defects found in the skull.
This evidence tends to confirm that the deceased’s corpse was burnt. There were other defects which could have been caused at or near to the time of death by stabbing or hitting, but Dr Donlon was not prepared to conclude that that was the likely explanation.

Summary of the relevant witness evidence

The following key points emerge from the relevant witness evidence:

Watson’s admissions indicated that he undertook the murder of the deceased and did not indicate that the applicant had any involvement.

Ms Watson’s evidence indicated that the applicant was involved in moving and then disposing of the body. It also indicates that he was present when she came home after the murder and, implicitly, seemed to know about it. But none of her evidence points to him having been involved in the murder itself, as opposed to being an accessory after the fact.

The evidence of Ms Watson, along with Ms Waldron and SD, indicates the violent and manipulative character of Watson, and that both Ms Watson and the applicant were in fear of him.

The evidence of SD and Ms Watson’s mother, Ms Wallace, does not tie the applicant to having been involved in the murder, as opposed to having helped burn the body of the deceased.

The forensic evidence, taken at its highest, is consistent with the deceased being stabbed in the chest. But the evidence does not point to the cause of death.

The officer in charge, Detective Sergeant Neil Wallace, also gave evidence of his investigation, but his testimony did not go directly to whether or not the applicant was involved in the murder. Nor did the evidence of other witnesses.
Put simply, thus, none of the witness evidence, including the forensic evidence, points in any material way to a conclusion that the applicant was a party to the murder. The case against the applicant is founded on admissions he made in intercepted phone calls and in two interviews he conducted in Townsville with the investigating New South Wales police.

The applicant’s accounts

The New South Wales police commenced investigations into the murder of Mr Chaplin in around July 2019 after Mr Priest gave a statement to the Victorian and then the New South Wales police about the Watson’s disclosure of murder to him. Ms Watson was interviewed by New South Wales police on 14 August 2019 about her involvement in the murder. In due course she pleaded guilty to a charge of being an accessory after the fact to the murder. She agreed to cooperate with police by speaking to the applicant concerning his involvement in the murder.
The police also spoke to the applicant’s mother, LT, by phone on that day. They asked her about the deceased, the Watsons and the applicant. Shortly thereafter she rang the applicant to tell him this, thus giving him notice for the first time that a police investigation into the disappearance of the deceased was underway. It seems the applicant’s telephone calls began to be intercepted by the police from 15 August 2019.

Admissions in telephone intercepts

Key admissions were made by the applicant to each of his parents about his involvement in the murder of the deceased.
LT called the applicant on the evening of 15 August 2019, which began with her saying “I’ve just got the fright of my life. Who the fuck is Will Chaplin?”. His mother told him of her recent phone call with Albury detectives. This call between the applicant and his mother was briefly interrupted as the applicant took a call from his partner, MP, who had just spoken to the applicant’s mother. When the call resumed, and after his mother told him a little more of what the detectives had said, the applicant said “yeah I killed him…”, “we found him one night touching” the Watsons’ daughter, who was aged two, “so I took him out to the round yard and cut his throat and then we burnt the body”. He added that “[f]unnily enough, your sister came to the bonfire”.
It seems he was not aware at this time of the possibility that his phone conversations were being intercepted by the police. He had no apparent incentive to lie to his mother, or later his father, about his involvement. Self-evidently, this is a critical admission to participating in – indeed effecting – the murder of William Chaplin. Yet the suggestion that the deceased was killed by cutting of his throat is inconsistent with the evidence of Ms Watson.
On 16 August 2019 Ms Watson called the applicant. Ms Watson and the applicant had remained in touch over the years. Some time before 2019 the applicant had lived in a house owned by Ms Watson, although it seems that occupation ended somewhat acrimoniously. In any event, the phone call was cordial. They discussed the police investigation.
Ms Watson rang Detective Wallace immediately after her call to tell him that she had rung the applicant. Amongst other things he asked her to ask the applicant how the killing happened.
In a phone call on 16 August the applicant said to his mother, amongst other things: “There’s no body. There’s no murder weapon. There’s nothing”. That amounts to an admission as to knowledge of the events, but not participation in them.
Ms Watson called the applicant again on 18 August 2019. As suggested by Detective Wallace, she asked him “who actually did it”. The applicant said “He did”. When asked how, he said: “I don’t know. I came inside.” Later in the call he stated “[a]ll I remember is it was happening in the round yard”. This version is inconsistent with what he had told his mother. Ms Watson said, consistently with her later account in court, that “I wasn’t involved other than, you know, the end”, to which the applicant responded “I know”. It is worth noting at this point that there is no reason to doubt the credibility of the evidence Ms Watson gave. The Crown placed great reliance on it in closing address.
In this phone call the applicant said “we’ll see where this goes and, if worst comes to worst, if you’re happy to do it I’m blowing it back on him”. The Crown started and ended the closing address referring to this point, as part of a repeated theme that the applicant was a liar seeking to deflect blame.
On 22 August 2019 the applicant rang the Albury police station and ended up speaking to Detective Wallace. He claimed not to remember the name William Chaplin but then admitted to knowing a person nicknamed “Too Tall” (which was the deceased’s nickname). He implicitly denied knowing where he was.
In an intercepted call with his father, ST, on 22 August 2019 they discussed the police investigation. His father asked the applicant if the missing person “deserved to go missing” to which the applicant responded “he might’ve, ah, yeah … he might have touched a kid, I don’t know”. A bit later in the call the applicant said the deceased “was caught in the act” touching “the wrong little girl”. The father, sceptical, queried the evidence for this. The applicant said “I seen it with my own eyes … I witnessed the lot”. This claim is highly doubtful, and likely illustrates the applicant’s propensity to make things up. There is no other evidence that the applicant saw the deceased sexually abusing the Watsons’ daughter. Indeed, the Crown case was that Watson’s motive for murder was likely that the deceased had caught Watson sexually abusing his own daughter.
Later in the same call the father asked whether the applicant made the person disappear. The applicant initially responded “no comment”. His father asked whether more people had been involved in making him disappear, to which the applicant said “yeah”. The father said “[o]h there was a few people”, to which the applicant responded “[t]here was one”, and subsequently agreed when his father said “you and someone else made this person disappear”.
The Crown submits that this exchange is a compelling admission that he was referring to himself and Watson having agreed to murder the deceased. However, agreeing that he helped make some “disappear” is also consistent with assisting to dispose of the body. I do not regard it as a compelling admission to murder.
At the end of this call to his father the applicant for the first time manifests an awareness that his phone calls might not be safe, and his father said “don’t talk anymore on the phone”. In a call the next day to his mother the applicant said “I don’t know if my phone’s hot or not”. However that same day the applicant rang his father, who said “I can’t talk to you about anything ‘cause you might be bugged”, with the applicant responding “no I changed my phone”. The number that is recorded on the intercept transcripts is the same. It may be that the applicant changed his physical phone, keeping the SIM, based upon the misunderstanding that a phone tap would be something on the actual phone device. In this and subsequent phone calls the applicant does not seem to be talking in a guarded way based upon a fear of being recorded.
In that conversation, incidentally, his father told him that he did not know if what the applicant was saying was the truth, and that “you always been full of shit”. In the same call the applicant implied that what he had “done” to this person (the deceased) he had in fact done to “people”, that is, “[m]ore than one”. There is no evidence to support this claim, which has the ring of fantasy.
In a text message to his father on 23 August 2019 he said “this time I fucked up bad”. That admission is consistent with being involved in murder. However, it is also consistent with being involved in other ways.
In a phone call with his father the next day on 24 August 2019, his father asked the applicant what his involvement was in the death of Chaplin. The following exchange occurred:

Father: I want to know your involvement in this shit.
Applicant: I am involved in it.
Father: Right. How deep?
Applicant: The whole thing.
Father: Right. Did you take him out?
Applicant: I did.
Father: How?
Applicant: I cut his throat.
Father: Yeah, righto. You’re full of shit.
Applicant: No, I’m not. I cut this throat and the …
…
Father: Who done the cut and who done the holdin?
Applicant: Huh?
Father: Who held him while you’re cutting?
Applicant: Never mind.
…
Father: … you admitted to something just then to me.
Applicant: I didn’t admit to anything.
Father: Mm. You just said you cut his throat.
Applicant: Dad.
Father: Think about what you just said to me. I’m not stupid.

…
Applicant: Yeah, I know what I said … But I haven’t admitted to anything, have I?
…
Father: Yeah, well, what you’re saying and what even your mother thinks … we don’t know whether to believe you or not sometimes, you know?

Thus, critically, the applicant again confessed to having participated in the murder of the deceased by having cut his throat. As can be seen, his father’s reaction was sceptical. This was the same version he had told his mother on 15 August 2019.
However, three days later the applicant subsequently seemed to deny to his mother that he had told his father this. In a call with his mother on 27 August 2019 she asked why he told his father he had cut the deceased’s throat, he replied: “I didn’t tell him anything like that. I told him … that it was done quick, painless like a sheep, okay?” He goes on to say that “youse don’t need to know how it was really done”. Suffice it to say that this is an odd exchange, clearly inconsistent with what he had told his father. He went to say that his father “thinks I’m a liar and … I’m doing it all for attention … I’d rather him believe that than know the truth”. He goes on to say to his mother that “it was hard enough telling you the truth”.
In a phone call with his brother on 26 August 2019 the applicant stated that he knew where the murder weapon was, namely in the dam on the property. Earlier in the call the brother had expressed scepticism about what the applicant was saying, explaining “[b]ecause the detectives are looking for you, so you’re big noting about it”.
On 31 August 2019 the applicant told his mother, based upon reading some media articles, that the police suspected the deceased was murdered. He said “I’m scared of what [Watson would] do mum. I’m fully prepared to tell them what happened and what he did”, and “I’m scared of what he’ll do if he finds out that I’ve told on him”. He discussed speaking to the police to give evidence against Watson. He strategised with his mother to tell the police that he was fearful of Watson in order to cover for what his mother describes as being “made to do stuff”. He responded “no I’m not going to tell them I did anything”.
He then called Ms Watson on the same day explaining his strategy above and that “I’m gonna have your back in this if you have mine ... let’s take [Watson] down”.
In a call with his father on Sunday 1 September 2019, after wishing his father happy father’s day, he told him that “[u]nfortunately I’m the main suspect”. It is not apparent what the basis for this understanding was. When his father asks what his involvement was in the murder, he replied “nothing”. But upon further elaboration, he explained to his father that: “it was this one random night with, I was chilling, or not, and, um, basically Paul … told me to go wait … in the paddock, he’ll be out there in a minute”, then Watson and the deceased “rocked up there and basically Paul said, ‘You’ve got two choices. You either fight and kill or you die now’”. He later told his father in that same conversation that Watson “pulled a nine mill Glock on me” and said “[k]ill or be killed. You got two options”. None of this had been recounted in the earlier version of events he told his father about cutting the throat of the deceased. In this recitation he did not mention cutting the throat, although this version is not necessarily inconsistent with him having done so.
Later in the call he said “I did the wrong thing”, and later still said that “[i]t’s always sat there on the back of me mind”. The following exchange occurred between the applicant’s father and the applicant in which the applicant accepts that he had killed the deceased:

Applicant’s father: If you didn’t kill that cunt, he was going to kill you. Think about it.
Applicant: I know. I have.
Applicant’s father: All right.
Applicant: That is all I’ve thought about, dad.
Applicant’s father: It wasn’t premediated. It wasn’t planned.
Applicant: No.
Applicant’s father: It just happened really quick. He had a gun to your head.
Applicant: This is, this is what’s been on my mind ever since we, this started. I haven’t slept much.

In the course of the call the applicant told his father that Watson was a hitman for the Gypsy Jokers, and also that Watson was the one who “got me started on gear”.
Soon afterwards the applicant called his mother and told her he was going to “hand myself in”; that Watson “used to shoot me up” (with drugs); that his drug addiction goes back before he and his partner MP got together; and “I’m going to get high before I go in”, and “the only reason I can stay calm is if I have a shot”.
He then called Albury police. As it was a Sunday Detective Wallace was not available, but another detective rang him back. Near the beginning of the call the applicant asked for protection from Watson “for me and my family” in return for providing information about the deceased’s murder. The officer told the applicant “I am not in a position to offer you any protection”. The applicant told the officer a version of events which involved lies, including that he could not tell the officer where the deceased was. Later, when he inquired about Watson, and whether he was still locked up, the officer told him that “I can’t divulge any information in regards to him”. They ended the conversation with the officer telling the applicant to give the police a call if he thought of anything else.
Immediately after this call, he called his partner and told her he had spoken to the police. In the short phone call he told her five lies: that “they will supply [protection]”; that they told him that Watson “won’t be getting out”; that “they’re not currently looking at me right now” (which had not been said); that “[t]hey’re taking all the information into consideration and they’ll let me know in about ten, fifteen minutes”; and that “they’re going to tell me everything that they know”. The first three lies are perhaps understandable as an attempt to assuage concerns of his partner. The latter two lies are bizarre, serving no apparent purpose. He then called Ms Watson and told her a different version of the ringing back lie, saying that the police was going to “ring me back in like an hour”. These pointless lies suggest there is something compulsive about him saying untrue things.
Towards the end of that day he spoke to his father again where his father discussed telling the rest of the family of his involvement in the murder of the deceased. He told his father, untruthfully, that the police were working on getting protection for him. The applicant asked “are you going to tell [my sister] that I did it?” His father responded “No, I’m going to say that you were involved”. Later the father asked if there was only one knife involved, which the applicant confirmed. The applicant agreed that the police could not prove who pushed the knife, adding that “they can’t even prove the knife was used”. This exchange involves the applicant implicitly acknowledging his involvement in the murder through the use of a knife. At the end of the call the applicant said “all I want to do is go and have a fucking mad shot ... a fucking big fat shot”. He plainly is referring to using drugs; it is not clear if he was suggesting a suicidal intent, although his father’s reaction suggests he may have understood it that way.
The two, not necessarily inconsistent, accounts by the applicant of what occurred based on the phone intercepts were: (1) the applicant cut the deceased’s throat (told to each of his parents); and (2) it was a fight to the death, perhaps whilst being threatened with a pistol (told to his father). Beyond that, the calls indicate that the applicant was involved in making the deceased “disappear”, that there was a knife involved, and that he had felt guilty about his involvement ever since. However, the calls also manifest the tendency of the applicant to say things which were not true, where there was no apparent reason for him to do so.
Even so, but for the evidence of Ms Watson along with questions about reliability of the admissions (addressed below), these transcripts provide compelling evidence suggesting the applicant was involved in the murder of the deceased.

Police interviews

On Monday 2 September 2019 Detective Wallace phoned the applicant and asked to speak to him in person. A meeting was provisionally arranged for later in the week, to occur in Townsville (where the applicant was living). It occurred on Thursday 5 September 2019. It seems that prior to the interview commencing the applicant was placed under arrest by Queensland police. The interview was conducted by Detective Wallace and another New South Wales detective, Detective Glynn. The interview was recorded by video in the usual way in an ERISP. It occurred over about 3.5 hours, including breaks. It was conducted fairly. Relatively early in the interview the applicant was told that the police had recordings of his phone conversations.
After the interview the applicant was charged with murder. The next day he was taken before a court in Queensland for an extradition order. The applicant then told the two detectives certain things, which led to them conducting a further interview that day, 6 September 2019. This interview started with the applicant saying that “I was forced to kill William” and that “I strangled him [with] fishing line”, although that story, too, changed over the course of the interview.
There is little point in reciting much of what the applicant said in the two interviews. Early in the first interview he stated that “I didn’t know he was missing until you guys turned up and started asking questions to my family”, and that “I didn’t know he was murdered until … about 15 minutes ago”, which were lies. Over the course of the interviews he told various versions of events. Some of his answers were long and rambling. The trial judge observed in his remarks on sentence that “the fabrications engaged in by the offender were so feeble and obvious that doubts may properly remain about the existence of an intellectual disability”. There is no evidence of intellectual disability, and that suggestion can be set aside, but his Honour’s characterisation of the fabrications is apt.
Similarly, in cross-examination Detective Wallace agreed that the two ERISPs were “a series of rambling falsehoods”, that there may have been some truth woven into them, but “on the whole they were totally unreliable unless corroborated by independent material”. This evidence was not objected to, although its relevance is doubtful. As it happens, though, it is also an apposite characterisation.
The applicant had an obvious incentive to lie to the police. At first, he was seeking to avoid being found to have any involvement. As the interviews progressed, he was flailing around with different versions of events. Apart from showing that the applicant was entirely prepared to lie when it suited him, little reliance can be placed on any details given in the interviews. It is perhaps notable that he denied having cut the throat of the deceased, even when the calls where he had admitted doing so were replayed.
The nature of the interviews do raise a question about whether the applicant had taken drugs before, at least, the first interview. As noted above, he had told his mother that he planned to do so. During the course of the interview he said that he was addicted to the drug ice and that he had “had a shot this mornin”. Detective Wallace gave evidence that in his opinion the applicant had not exhibited any signs of intoxication, but fairly agreed that sometimes addicts are capable of covering up their drug addiction. To my mind it does not greatly matter whether or not the applicant had taken ice on the morning of his first interview; either way, it was, as Detective Wallace said, a series of rambling falsehoods.

The Crown’s case

The Crown identified two ways the accused may be involved in the crime of murder: joint criminal enterprise and extended joint criminal enterprise. At the request of the applicant, a third variant was also put to the jury involving manslaughter. The applicant was found guilty of murder and it is not necessary to consider that variant here. Considering it would make no difference in any event, where any such case still depended on the Crown establishing the involvement of the applicant in Watson’s attack.
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 Watson 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.
In relation to extended joint criminal enterprise, it was accepted that it was necessary for the Crown to prove beyond reasonable doubt that the applicant and Watson agreed to assault the deceased, and that the applicant foresaw or knew of the possibility that during the assault Watson might kill or inflict grievous bodily harm, with the intent to do so.
Both Crown theories thus require some agreement between Watson 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.
In this Court the Crown emphasised that it was not required to prove the specific manner in which the applicant was killed or the applicant’s precise involvement in the deceased’s death: see eg The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. That may be accepted.
As outlined above, no witness evidence points in any material way to a conclusion that the applicant was a party to the murder, in the sense of having participated in it in some way or having agreed to doing so. There is no specific evidence of any pre-death agreement at all. The Crown’s case rises or falls on the significance of the various admissions made by the applicant himself.
In closing address to the jury the Crown summarised seven variations of the applicant’s involvement as described by him:

The first was that he did not know anything about the murder. This was said in the first ERISP and implied in some earlier phone calls. It can be accepted that this version was a lie.

The applicant told his mother and father that he cut the deceased’s throat.

“Fight and kill or you die now”, as told to his father on 1 September 2019. This version involved him being threatened by Watson with the 9mm Glock pistol.

Early in the first ERISP the applicant said Watson told him he had caught the deceased molesting his daughter, and said the applicant had three choices: “You leave my house right now, never speak a word of it, you help me with a job, or I put you where I’m, in the same spot”. The Crown said to the jury that he knew very well what Watson was talking about.

In the second ERISP the applicant said it was Ms Watson that wanted Watson to kill the deceased. He said she yelled out to them “[d]o it already, it’s taking too long”.

In the first ERISP, towards the end of the interview, he said that Watson shot the deceased. This occurred after the applicant had an argument, Watson threatened the applicant with a knife, and the deceased stood up for the applicant. The applicant then got his 9mm pistol and shot the deceased in the neck.

In both ERISPs the applicant told police that fishing line was used to kill the deceased. In the first interview at one point he suggested Watson used this to kill the deceased, having told the applicant to fetch it. At a later point in the interview he said he was sent to fetch it but Watson then shot the deceased. The second interview was held because it seems that the applicant had told the detectives that he had strangled the deceased himself with fishing line. That evolved to the applicant grabbing the decease and strangling him (it was not clear if this involved fishing line or a headlock), and that Watson considered this was taking too long so stabbed the deceased in the chest.

That the first version was a lie does nothing to establish his involvement in the murder. Of the second version – cutting the throat – the Crown said “[w]hile this version is possible, it’s unlikely … due to what Samone Watson told the police about the lack of any obvious injury or blood around William Chaplin’s neck”. The third version involved the applicant being threatened with a gun. The Crown put to the jury that talk of the 9mm Glock was “probably a lie”, there being no other evidence that Watson had such a gun. The fifth version – that the murder was sought by Ms Watson – is inconsistent with her evidence and seems ridiculous. That is so, at least, on the premise that Ms Watson was a credible witness, which was very much the Crown’s position. The sixth version also involved use of the Glock. Further, the accused said on this version that there was “blood everywhere” and with Ms Watson being inside in the house at the time. Both of those aspects are inconsistent with Ms Watson’s evidence.
The Crown thus focused on the fourth and seventh versions, tending to amalgamate them. The Crown’s case at trial was summarised in the closing submissions as follows:

Paul Watson had told the accused that he had caught William Chaplin sexually interfering with … his daughter. Paul Watson told the accused that William Chaplin “had got to go”. Paul Watson must have told [the applicant] what he was going to do to William Chaplin because, although [the applicant] told police he had nothing to do with William Chaplin’s murder, he said, “I knew what was going to happen.” That, the Crown says, is [the applicant] telling the police that he knew that Mr Chaplin was going to be killed.
Mr Watson offered him choices; leave, take part or end up with Mr Chaplin. [The applicant] had heard Watson and William Chaplin arguing in the house. [The applicant] chose to take part. Mr Watson told [the applicant] to go to the shed, get some fishing line and then wait for him and William Chaplin in the round yard. He was to sit on the tyres and he was to wait. That’s what he did. He went to the round yard, got on the tyres and waited. When Paul Watson and William Chaplin arrived, when he was told to do so [the applicant] jumped from where he’d been sitting and took William Chaplin to the ground so that Watson could stab him.

The Crown representative also said the following in his closing submissions (emphasis added):

[The applicant] 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 says that those accounts are powerful evidence of the accused’s direct involvement in the intentional killing of William Chaplin.

The italicised sentence is an odd and problematic thing to say. It is not entirely clear what was meant but it carries a flavour of undermining the standard of proof. In any event, the point is irrelevant to this Court’s undertaking its task of assessing guilt beyond reasonable doubt.
The applicant submitted to this Court that the Crown had arbitrarily, in the absence of evidentiary support, combined the fourth and seventh versions and presented it as accurately describing the applicant’s involvement in the deceased’s murder. There is force in this submission.
It is significant that the fourth and seventh versions arose out of the two police interviews. As explained above, what was said in those interviews would not readily be accepted as reliable. Senior counsel appearing for the Crown on appeal sought to put the case at a higher level of generality than focusing on these various versions, noting that it was not necessary to identify the manner in which the murder was carried out. Accepting that, it remains the case that the Crown case is founded on the admissions of the applicant. What must be found in those admissions is evidence sufficient to prove beyond reasonable doubt that there was some agreement between Watson and the applicant that they would at the least assault the deceased, with the applicant being present during the murder.

The Crown also put the following to the jury:

If you accept any of the versions that include [the applicant] being in the round yard with Mr Paul Watson, then you would find that there was an agreement between he and Paul Watson to kill, to inflict grievous bodily harm or to seriously assault William Chaplin. After all, what was [the applicant] doing in the round yard if not going along with what Paul Watson asked him to do?

This submission, too, is problematic. There was certainly evidence that the applicant was potentially under the influence of Watson. If it was found that the applicant was present when the deceased was killed, that gives some basis for arguing that there may have been an agreement between them. But it is certainly not conclusive of it. The applicant may have been directed by Watson to have been present. The applicant may have stood by whilst the brutal act was done. Those facts of themselves would not suffice to make him a party to the murder. They do not establish that he knew what was going to occur, let alone that he had agreement to participate in (at least) an assault.
As noted above, the Crown made much of comments by the applicant that if the worst came to the worst he would be “blowing it back” on Watson. This submission, also, was overstated. There is no doubt that Watson was, in the Crown’s words, the “orchestrator of the death of William Chaplin”. There was, thus, a lot to pin on him on any view. That the applicant would seek to blame Watson was justifiable. That does not necessarily exculpate the applicant. But nor does it necessarily inculpate him. Consistently with that understanding, at least one of the “blow it back” remarks was made to Ms Watson suggesting that they both take that approach. Yet the Crown’s case was that Ms Watson was only involved as an accessory after the fact. If she might want to blow it back on Watson though she was only an accessory so, too, might the applicant. The Crown said below that the applicant saw “a way out by painting Paul Watson as that monster and claiming that he was forced into whatever he did to William Chaplin by Paul Watson”. But Paul Watson was a monster. Painting him as such was not inculpatory.
One other point should be noted before addressing the reliability of the admissions. A strong theme of the Crown’s address – to a fault – was to emphasise all the lies that the applicant had told. That he had told so many lies completely undermined his credibility. Yet, except insofar as the lies could be used as evidence of the applicant’s consciousness of guilt, they did nothing to establish his involvement in the murder. The Crown did put to the jury that four identified lies could be used in that way:

in telling the police in a phone call early in the investigation that “I just want to know what the hell is going on”, when he knew what was going on;

in saying something similar to Detective Wallace in a phone call on 22 August 2019;

further lies to the Albury detective to whom he spoke on Sunday 1 September 2019;

lies told during the first ERISP that he had not known until recently that the deceased was missing and had been murdered.

As was correctly identified at the trial, in order for lies to be evidence of consciousness of guilt one of the requirements the jury had to be satisfied of was that the reason for the lie was because he feared that the truth would implicate him in the commission of the offence. Thus the Crown said that the applicant “tells these lies because he knows that if he tells the truth about any of them, it may inculpate him in the murder of William Chaplin”. The problem with this submission is that the lies are equally explicable as manifesting a concern that the truth would implicate the applicant in being an accessory after the fact. These lies do not necessarily implicate him in involvement in the murder.

Reliability of admissions

Of 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 to his parents 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.
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. Ms Watson was clear that she did not notice any damage, cut or bruising to his neck, nor blood on his neck. It is true that on her evidence she saw the body about midday when the deceased had perhaps been dead for many hours (she had left the previous afternoon). 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.
As addressed above, the various other versions put by the applicant are also problematic.
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.
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 Watson and the applicant that they would at the least assault the deceased with the applicant present. I have significant doubts about their reliability.
To begin with, the fact that he would tell such a lurid and inculpatory version to his parents when it was probably not true, on occasions when he had no apparent cause to lie, suggests that what he says is suspect even when against interest. This applicant is extraordinary in this regard.
Another remarkable example is that he told Ms Waldron, Watson’s first wife, that he had “actually stabbed” Watson before. When this was queried, he said “I stabbed him in the stomach and somehow I missed all the main arteries”. There is no evidence that any such assault occurred. This was explicitly contradicted by Ms Watson’s evidence that she was not aware of any such stabbing, despite having lived with Watson for the whole relevant time (going beyond when the applicant left that house). No reason is apparent why the applicant would tell Ms Waldron this remarkable fabrication.
There was evidence that the applicant was prone to story telling. His mother gave evidence that since the time the applicant was very young, he used to make up stories, twist the truth and tell lies. As noted above, in a call with his father on 23 August 2019, his father told him that he did not know what the applicant was saying was the truth, and that “you always been full of shit”, a point he reiterated when the applicant said the next day that he had cut the throat of the deceased. The father in that call, referring to himself and the applicant’s mother, “we don’t know whether to believe you or not sometimes”. As explained above at [71], the applicant’s brother also doubted what he was being told. As regards the admissions about having cut the throat of the deceased, oddly the applicant later denied to his mother that he had said this to the father, even though he had said it to both of them (see above at [70]).
On a series of other occasions the applicant said things which appear not to be true and where there was no apparent reason for him to have lied:

He told his mother her sister was at the bonfire where the body was burnt. There is no evidence of that and it seems most unlikely (see above at [54]).

He told his father he had caught the deceased abusing the Watsons’ child, which appears most unlikely (see [62]).

He told Ms Watson that he had a New South Wales gun licence when explaining to her how he thought the police managed to contact his family. Detective Wallace gave evidence that the applicant never held a New South Wales gun licence.

He said in the first ERISP that he held a security license. He did not.

Immediately after speaking to the police by phone on 1 September 2019 he lied to his wife about the nature of the conversation that he had and told yet a different account to Ms Watson (see above at [79]).

He indicated to his father in their first recorded phone call that he had “done” this – that is, what he had done to the deceased – to more than one person (see above at [66]). There is no evidence to support this, and it seems unlikely.

All these needless lies are suggestive of someone who is either or both a compulsive liar or a fantasist.
The Crown also suggested to the jury that the applicant had likely lied about Watson having a 9mm Glock pistol. It is perhaps understandable why the applicant would make this claim to the police. It is somewhat less understandable that he would say it to his father, as he did on 1 September 2019.
Another theme of the applicant was that a knife – sometimes described as the murder weapon – was disposed of in the dam on the property. The dam was searched and no knife was found. The Crown put to the jury that the claim that he had put it in the dam was a lie.
Watson told SD and the applicant that he was a hitman and he killed people for a living. SD thought that Watson was just big-noting himself to impress them. It seems that the applicant may have believed him as he said it to each of his parents and to Ms Waldron. He told the police the same, and that Watson had been in the Army, and that Watson had killed 56 people. Watson had not been in the army. The Crown said this to the jury:

Paul Watson isn't some Mr Big that anyone has an interest in protecting. He’s a nobody wannabe who tells lies to big-note himself; that is, if you can believe what [the applicant] says he was told. He was never in the Army. The idea that he’d murdered 56 people and gotten away with it is just ludicrous.

There seems a real possibility that the applicant did believe that Watson was some kind of killer for hire, having said this to his parents. That he may have believed this when SD did not, and the Crown ridiculed the claim, suggests that the applicant may have been credulous. That characteristic would be consistent with his tendency to fabulise.
In this context, the admissions made by the applicant are not sufficiently reliable in my view to prove beyond reasonable doubt that there was some agreement between Watson and the applicant that they would at the least assault the deceased with the applicant present. The clearest and most inculpatory admissions, about having cut the throat of the deceased, are probably not true. That makes this case extraordinary. So, too, does the clear propensity of the applicant to tell lies and fantasies with no apparent reason to do so. In my view one cannot draw out some reliable admission to involvement from all or any of the various versions of events described by the applicant. Clearly there is a real possibility that the applicant was involved in the murder. But that does not suffice.
The Crown submitted to this Court that if the applicant’s arguments were accepted it would “tend to suggest that an admitted killer might throw doubt on their own liability simply by making an increasing number of varied and inconsistent confessions as to the manner of the killing, so as to escape liability for the crime that had been committed”. That submission fails to grapple with the particular facts of this case. The conclusion I have reached does not depend upon the fact that the applicant told so many different, improbable versions of his involvement in the two police interviews. Rather, fundamentally the Crown’s case was founded on admissions. It was for the Crown to establish beyond reasonable doubt that the admissions made were sufficiently reliable to establish guilt beyond reasonable doubt. In my view they are not.

Conclusion

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. The case against the applicant is founded on admissions, particularly those he made in intercepted phone calls. Those admissions are of suspect reliability.
Having reviewed all of the evidence given at trial I have a doubt that the applicant is guilty of murder as charged. The reasons given above illustrate that that doubt is a reasonable one.
The question, then, is whether my doubt can be explained away by reference to the natural advantages of the jury. The High Court said the following in Dansie at [17]:

The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.

Although that passage is directed to a trial judge in a judge-alone trial, the points made are equally applicable to a jury. The passage resonates in this case. The case here was circumstantial and much of the evidence was not contested.
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.
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.
As regards the phone intercepts, the Crown made the following submission to this Court:

[W]ith the benefit of considering all of the evidence of listening to the tone of his voice when he said certain things and he said other things. I mean, one of the things the mother says to him that’s interesting is that she’s almost sort of accuses him of kind of being dramatic and so forth. And that would be a classic example of where the advantage that the jury had would come in. Because the tone of the voice, for example, when he’s talking about making somebody disappear and he’s even being quite sort of restrained in the way that he’s talking. It would be open for them to say, “Well look at times he gets into this sort of mode where he’s bragging.”

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. 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.

Orders

The orders of the Court should be as follows:

Grant leave to appeal and appeal upheld.

Quash the appellant’s conviction and a judgment of acquittal be entered in its place.

FAGAN J: The applicant’s appeal ground, that the jury’s verdict against him is “unreasonable, or cannot be supported, having regard to the evidence”, is advanced upon the basis that the Crown case critically depended upon admissions made by the applicant in intercepted phone conversations with family members and associates and in recorded interviews with police. The applicant contends that those admissions were internally inconsistent and contrary to other evidence, to such an extent that the jury could not, on the basis of the admissions, reasonably have found the charge of murder proved to the criminal standard.

The basis of criminal liability alleged against the applicant

Assessment of this ground must commence with consideration of how the Crown formulated its case and what the jury had to be satisfied of in order to return their verdict. In opening, the prosecutor put the Crown case in the following terms:

Paul Watson elicited the aid of his friend the accused to help him kill William Chaplin and [the accused] did help him willingly.

The opening included the following acknowledgement:

The Crown does not know precisely when or how William Chaplin was murdered.

Thus, the basis of criminal liability was said to be a joint criminal enterprise of Paul Watson (to whom I will refer as “Watson”) and the applicant to kill the deceased, in the execution of which the accused participated so that the lethal acts, whatever they may have been and whether perpetrated by Watson or by the applicant, were attributable to the applicant. In summing up the case was left to the jury in those terms and on the alternative bases of extended joint criminal enterprise and aiding and abetting at the scene of the crime as a principal in the second degree. Manslaughter was left on the basis of either joint criminal enterprise or extended joint criminal enterprise to commit an unlawful and dangerous act.

What the jury could draw from the applicant’s admissions

The Crown did not adduce evidence from which the jury could find beyond reasonable doubt that any particular words were spoken between Watson and the applicant to constitute an agreement that William Chaplin be killed. For a verdict of guilty to be returned it was not necessary that the jury should have been satisfied beyond reasonable doubt that particular words were spoken. Nor did they have to be satisfied to the criminal standard as to any particular acts of the applicant that would have implicitly signified to Watson his agreement in the enterprise of murder, or any particular acts that constituted his participation in carrying out the enterprise. 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 Watson 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. The jury did not have to be satisfied beyond reasonable doubt of the means by which death was caused or who, of the applicant and Watson, performed the causative acts. 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.

It was open to the jury to reject the applicant’s claim that he was threatened by Watson on the evening of the murder, at a time when Samone was present in the house. The jury may have found it highly improbable that, if Watson had been threatening to kill the applicant that evening and if he had remained violently hostile towards the applicant after the latter had witnessed the murder of William Chaplin, Watson would then have allowed a wooden door in his own home to stand in his way. The jury were entitled to prefer the evidence of Samone that she was not at the house on the night of the murder and that when she returned the next day relations between Watson and the applicant appeared normal, as did the demeanour of each.
At A650 the applicant provided further and inconsistent detail of the circumstances in which he claimed that Watson had shot William Chaplin in the round yard. He said the relevant events commenced with Watson kicking “the shit out of me” in the house and then lunging with a knife and cutting the applicant’s wrist. He said that William Chaplin and Watson then had a fist fight in the lounge room. The narrative continued as follows:

A650 William went to his van and Paul went out about 20, 25 minutes later and then […] all of a sudden he came inside, he told me that, Meet me in the round yard in 5 minutes, we're gunna do William over. And I went out to the round yard, but William was already waiting there for me. And William said, I'm here to finish you, you're here to finish me. And then Paul came out with a gun. He had the 9 millimetre pistol in his hand. […] Paul pulled the gun on me and told William to get the fuck out of the way. Instead, William stood in front of me, […] and had a fight with Paul again and grabbed the gun. And Paul overpowered William […] and pulled the trigger and shot him in the neck. And then Paul told me to run inside and grab the knife, and so I did, scared that he was gunna shoot me in the back. […] And then, and Simone was inside. Simone was in the house the whole time.

Again, it was open to the jury to discard this variation as not representing a reasonably possible version of what occurred. The jury could have found it unbelievable that at the round yard William Chaplin would have confronted the applicant with the statement, “I'm here to finish you, you're here to finish me” after both of them had shortly beforehand been in physical conflict with Watson in the lounge room. In this respect, the account is irreconcilable with the applicant’s claims at A644 that he and William Chaplin had each been told by Watson that he was going to shoot the other. At A644 there was no mention of William Chaplin and the applicant each attempting, mutually, to “finish” the other. Further the jury would have been entitled to reason that the applicant would not have told his parents that he took part in the killing of William Chaplin and would not have described to his father a “kill or be killed” ultimatum from Watson if the description of events at A650 was true.
At A691 and in a number of other answers the applicant asserted that a knife was thrown in the dam, either by Watson or by the applicant at Watson’s direction, so that if the death of William Chaplin was ever investigated “the knife in the dam would either come back on me or Simone”. It was open to the jury to conclude that that assertion was never developed or explained in a way that made it coherent or plausible.
At Q655 and Q672 the applicant said that William Chaplin was shot in the neck. In yet another purported detail, at Q719 and 724, the applicant said that after an altercation between Watson and William Chaplin in the house, Watson had instructed the applicant to go to the shed in the backyard of the property and cut off about 2 feet or a metre of fishing line that was attached to a fishing rod stored there. The applicant said this:

A719 Paul told me to go get fishing line and we’re gunna, we were gunna hit him with the fishing line.
A721 We were gunna strangle him with the fishing line.

The applicant said that he fetched the fishing line and took it to the round yard where William Chaplin was already present. He said that Watson then arrived and instead of the fishing line being used, William Chaplin was shot.

In summary, over the course of the first police interview the applicant’s attempts to exculpate himself progressed through stages of retreat, as follows:

He commenced by denying knowledge of William Chaplin’s death.

The applicant then said that he knew William Chaplin had been killed but only because Watson had told him so and had directed him to claim responsibility.

The applicant then said that Watson had directed him to say that William Chaplin had gone to Western Australia.

Still maintaining that he knew of William Chaplin’s death only through Watson telling him about it, the applicant said that Watson had directed him to claim that either he or Samone had committed the murder.

The applicant next said that he knew of the murder because he was an eye witness, not merely through Watson telling him about it. The applicant said Watson had aimed a Glock 9mm pistol in his direction but William Chaplin had hit Watson on the head with a rock and then Watson shot Mr Chaplin instead.

Second police interview, 6 September 2019

On the morning after the first interview the applicant was taken before a magistrate and remanded in custody. Later in the watchhouse the applicant told the detectives some further things about what he had said in the first interview. The officers commenced a second interview and asked him to confirm what he had told them that morning, to which he responded as follows:

A38   That I was forced to kill William.
Q39   What else did you tell us?
A   That I strangled him [with] fishing line.
A42   I said that I, I was asked to get a fishing line from the shed, I was then also instructed to go the … where William was murdered. I was forced by Paul at knifepoint, it was either William or me, one of us, one of us was going to die that night, um, I grabbed William, strangled him, it was taking too long, instead of the knife going into my back Paul plunged the knife into William's chest. Um, Simone was at the house, she knew everything, um, the fact that the matter was, Simone gave the go ahead for Paul to do it, um, the whole conversation with Simone was probably 20 minutes before everything happened. Paul told Simone what was going to happen, either me or William were going to die that night. Um, and it was, Simone thought it was fine. […] And I was told to either throw it back onto Paul or myself. Simone was never meant to be involved with anything but Paul never did anything without Simone's permission. Ever.
A44   Paul rammed the knife into William's chest and after that I ran […] inside, um, Paul came in about half an hour later and was covered in blood, he got in the shower, went to bed, um, and I tried to leave that night, Simone told me not to otherwise it would cause problems and Paul would go after my family, hunting me down. So I stuck around for about 2 days um, we did burn William's body and after that I left, I got out of there, because Simone said that Paul was talking about doing me next.

At A119, 120, 131 and 156-160 in this interview the applicant said that Watson instructed him to go with the fishing line to the round yard and to climb up on the tyre wall. He said that he followed this instruction. William Chaplin was already at the yard when he arrived. Watson followed and commenced an argument with William Chaplin, accusing him of having molested Watson’s daughter. William Chaplin denied this. The applicant said that the argument “got a bit wrestley”, that Samone come out from the house and said to Watson, “Just do it” and went back inside. The applicant said that Watson then instructed him to jump down on William Chaplin and “put him on the ground”.
The applicant gave the following answers as to the part then played by himself and Watson in killing William Chaplin:

Q166   So what did you do?
A166   Dropped down onto William's back and then had him in a headlock until he dropped to the ground. And then I let him go, I didn't have the, I didn't have the strength to hold him down by myself.
A167   And then Paul basically threw the knife, plunged the knife into his chest and twisted, and that's when I heard the crunch sound and I ran, I got out from behind William and I ran like fuck. […]
[…]
Q188   So you held William while Paul stabbed him?
A   By the time Paul had fully plunged the knife in and gone for the, put the knife into his chest I was out from behind ... Paul was sitting on top of William's legs holding him down, yes.
Q189   And how, describe that, how, how was he doing that, sitting on him?
A   Ah, facing forward, so William was laying down, I was out from behind him, Paul was holding William down by the mouth um, sitting on his legs and that's when he put the knife into his chest. William gasped and then Paul put it further in with two hands, and I ran.
[…]
Q358   [… Do] you agree just before the recording went on um, you mentioned something to me about Paul having a knife to your back.
A   Yes.
Q359   And he was forcing you to strangle Too Tall.
A   Yes.
Q360   Can you describe that because --
Q361   -- you've kind of missed that part?
A   - it wasn't, it wasn't theoretically to my back but basically if I didn't help Paul I probably would've been the next one to go. Basically if I didn't do it he would've done me over anyway. Or if I didn't do what Paul had told me to do at any time he used to flog me anyway.
Q362   OK. So let's talk about what Paul told you to do.
A   He didn't, all he told me to do was drop when I was sitting on top of the tyres. He told me to get him now, that's when I jumped, dropped down and grabbed Too Tall by the throat and I was hanging on his back because William was about 6 foot something and I was only short and I couldn't reach the ground while hanging on his back. And then he dropped to his knees and then it all started.
Q363   So how do you know Paul had a knife to your back if you couldn't see behind ...
A   Like I said he didn't theoretically have it to my back, I was more worried about getting bashed by Paul for not doing as, when he told me to do something. So there was no theoretical knife to my back, it was more I was afraid to get flogged, I was afraid, basically I was more scared of, to get flogged from Paul than do anything. Theoretical knife to my back is more him kickin' the shit out of me for not doin' as I'm told. Which happened on more occasions than one.

At A168, 173 and 175 the applicant said, variously that he dropped the fishing line between the tyres before seizing hold of William Chaplin, or otherwise that he could not remember whether or not he used the fishing line on the deceased. At A185 and 186 the applicant was asked about the 9mm Glock pistol that he had said in his first interview was the murder weapon. He now said that it was not used and he did not know why.
It was reasonably open to the jury to accept so much of the second interview as consisted of the applicant’s admission that he was present, by arrangement with Watson, when William Chaplin was killed and that he assisted Watson, in some manner, to bring about the death. This represented yet a further stage of the applicant’s retreat from his attempts to deny responsibility. In this final version the applicant narrowed his ground of exculpation to duress, which he raised so belatedly and in such inconsistent terms that the jury would have been entitled to exclude it beyond reasonable doubt.

The jury’s assessment of the police interviews as a whole

In cross examination of DS Wallace he agreed with defence counsel’s propositions that the applicant’s answers during the two recorded interviews on 5 and 6 September 2019 were “a series of rambling falsehoods”, that “there may be some truth woven into them” but that “on the whole they are totally unreliable unless corroborated by independent material”. Understandably, in his closing address counsel quoted that evidence from the detective back to the jury and referred to it many, many times. The jury, however, were not bound to act upon the officer’s view that the answers in the interviews were “totally unreliable unless corroborated”. It was open to the jury to conclude that the “truth woven into them” included, as the lowest common denominator of the applicant’s answers in the second interview, that he had assisted Watson in killing William Chaplin by some means and that he did so in circumstances that bespoke an understanding or agreement with Watson amounting to a joint criminal enterprise to commit homicide.
Counsel’s closing address emphasised the variations and inconsistencies in the applicant’s answers under police questioning. Counsel sought to dissuade the jury from accepting the Crown’s argument that identified parts of what the applicant had said could be relied upon. The Crown’s approach was criticised as one of unjustifiable selectivity. Similarly, on the hearing of the leave application in this Court counsel for the applicant criticised the Crown’s approach. However, it was legitimate for the prosecution to submit to the jury that some of the applicant’s answers to the police, or parts thereof, were dependable and probative. It was open to the jury to be satisfied beyond reasonable doubt that unless the applicant had played an active part with Watson in killing the deceased he would not have given answers that described such a role, as in the second interview.
The jury could find compelling the applicant’s admissions against interest, both to his parents and in the second police interview, to the extent that he admitted having taken part in the murder with Watson. It was open to them to find that in both interviews his inconsistent particulars of how William Chaplin was killed arose from his initial denial of direct knowledge of the homicide, followed by admissions of his presence at the scene of the crime, then of his physical involvement. As the applicant progressively abandoned his attempts to distance himself from the killing, so he varied the details by which he sought to put himself in a minimally culpable light. That process culminated in the duress narrative, as he had discussed with his father on the phone, when he finally admitted to police that he had taken part in the homicide.

Assessment of the entirety of the evidence at trial

Making my own assessment of the whole of the evidence I am left with no reasonable doubt concerning the applicant’s guilt. On the basis of the phone intercept transcripts, alone, the applicant’s consistent admissions to his parents were sufficient to prove the charge beyond reasonable doubt. The transcribed contents of the phone conversations have a realism about them that is absent from the blather and spurious detail that the applicant provided to the interrogating police.
Three features of the admissions in the phone conversations are particularly significant. First, they were directed to the applicant’s parents, with whom it could be expected that he would be frank about a matter as serious as his participation in a murder, however loose he may have been with the truth on other subjects at other times. Secondly, the applicant’s statements to his parents were in many cases oblique and guarded. They bear no indication of boasting or fantasising. The applicant’s reticence on the phone is inconsistent with him making a false claim of responsibility in order to inflate his own importance or, as he told police, to protect Watson. Thirdly, the phone conversations are replete with discussion of an alibi, of the pretence of not knowing what became of William Chaplin, of having acted under duress and of passing blame onto Watson. The exploration of these routes for escape from criminal liability gives authenticity to the applicant’s admissions to both parents that he took part in the murder.
In contrast with the phone conversations, the applicant’s answers to police questioning were made in circumstances where one would not expect frankness, given that the applicant had three weeks’ notice that he was a person of interest and given that he had explicitly discussed with his parents the terms in which he would try to mislead the investigators. In contrast with his brevity and guardedness when speaking to his parents, the applicant’s denials and claims of exculpation in the police interviews are long winded, manipulative and ever-changing. However, even those answers culminate in admissions of participation, in the second interview.
Irrespective of my satisfaction as to the guilt of the applicant, the case is one in which the advantages enjoyed by the jury enabled them to resolve any doubt that might be felt by appellate judges. The jury had the advantage of listening to nearly two hours of the applicant’s conversations with his mother, about one hour with his father, one hour with Samone and a few minutes with his brother. The jury listened to nearly five and a half hours of the applicant’s police interviews. It is not the function of this Court to attempt to replicate the jury’s experience of the evidence at trial. However, in my view it is a necessary part of the Court’s obligation to consider the entire trial record that sufficient of the phone conversations and of the police interviews should be listened to for the purpose of discerning whether there were characteristics of the ways in which the applicant spoke on each occasion that the jury could reasonably have taken into account in deciding which, if any, of his statements were reliable.
I have listened to short passages of the first recorded interview in order to identify the phone conversations that were played back to the applicant, to which his answers to subsequent questions by the interrogating police relate. The interview recording picks up parts of the phone intercept recordings. The brief portions that I have heard for that purpose show that there is a very marked difference between the applicant’s tone and manner when speaking with his parents, on the one hand, and his tone and manner when providing his verbose and discursive answers to the police. It was within the jury’s province to have regard to those characteristics when determining the weight to be given to the applicant’s various admissions and assertions, respectively.
For the purpose of determining the sole ground that the verdict is unreasonable, it is sufficient for this Court to be aware that the phone conversations and the police interviews, respectively, took place under significantly different circumstances and have about them significantly different qualities, which the jury were in a position to evaluate, giving the jury a significant advantage over this Court in determining which of the applicant’s statements could be relied upon.

Jury not bound to find core admissions unreliable

Just as jurors may accept parts of the testimonial evidence of a witness and reject other parts, so it was open to the jury in this case to accept as reliable the applicant’s generalised admissions of having participated in the crime while rejecting many of his statements as to the detail of that involvement. If the multiple inconsistent particulars given by the applicant in his police interviews had instead been given by an accusatory witness, there would have been strong ground for the jury to have discounted the entire testimony of the witness. Such rejection would be on the basis that if an accusatory witness cannot give a single account of how a homicide unfolded, consistent in all material particulars at each retelling, then there must be a reasonable doubt whether the witness observed the events described at all or, at least, a doubt whether critical parts of the witness’ account are reliable.
In the case of admissions by an accused, different considerations apply. Jurors may reason that, even if conflicting particulars are given of the cause and circumstances of death, a general admission by the accused that he participated may still be reliable proof because of the probative value inherent in an admission against interest, a consideration that is absent from the evaluation of an accusatory witness. In Sinclair v The King (1946) 73 CLR 316 at 334., Dixon J said:

Confessions, like other admissions out of Court, are received in evidence as narrative statements made trustworthy by the improbability of a party's falsely stating what tends to expose him to penal or civil liability.

Any tribunal of fact is entitled to regard an acknowledgement of involvement in serious wrongdoing as powerful evidence against the person making the admission. In the present case it was open to the jury to consider that the reliability of the basal admission was unaffected by variations and contradictions in the applicant’s provision of particulars, the latter arose under police questioning when the applicant attempted to recant from his admissions to his parents.

Watson’s admissions to three witnesses

Kirk JA has referred to the fact that when Watson admitted to each of Samone, Sacha Priest and JB that he had killed William Chaplin, he spoke in the first person singular and did not assert that the applicant had been concerned in the murder. Watson did not expressly deny to those witnesses that the applicant had assisted him. Consistently with the applicant having been involved there were a variety of reasons why Watson may not have mentioned that fact to the three witnesses.
It was common ground that Watson was the prime mover and that the crime was committed to serve his purposes, either to avenge William Chaplin’s sexual touching of his child or to eliminate William Chaplin as a potential witness to his own misconduct. In acknowledging the murder to the three witnesses it is plausible that Watson 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. Watson 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. Additionally or alternatively, Watson may have wished not to implicate the applicant. On any of those bases it was open to the jury not to view Watson’s admissions as an implicit positive assertion that the applicant was not involved. Watson was not called and could not be cross-examined.
In all of those circumstances, the terms in which Watson admitted his guilt to the three witnesses do not cause me to feel any doubt about the applicant’s involvement, as admitted by him to his parents on the phone and to police in his second interview. It was open to the jury, likewise, to attribute no significant weight to the terms of Watson’s admissions to the three witnesses and to view them is not raising any reasonable doubt about the applicant’s guilt.

Lies as consciousness of guilt

I do not find it necessary to consider the lies told by the applicant that the Crown relied upon as demonstrating consciousness of guilt of the crime of murder. There is no ground of appeal impugning the directions pursuant to which those lies were left to the jury’s consideration. The verdict was open without reliance upon the lies and on no construction of them could they detract from the weight that the jury was entitled to attribute to the applicant’s fundamental admissions.

Proposed orders

I propose the following orders:

Grant leave to appeal.

Dismiss the appeal.

SWEENEY J: I have had the considerable benefit of reading in draft the judgments of Kirk JA and Fagan J. I gratefully adopt their Honours’ detailed account of the evidence in the trial. Having considered that evidence, and being mindful of the jury’s advantage, I have a reasonable doubt about the applicant’s guilt of the offence of murder, which the jury should also have had, for the reasons explicated by Kirk JA. I am of the view the jury’s verdict was unreasonable.
I therefore agree with the orders proposed by Kirk JA, and with his Honour’s reasons.

**********

Decision last updated: 29 September 2023

Medium Neutral Citation:	ZT v R [2023] NSWCCA 241
Hearing dates:	11 August 2023
Date of orders:	29 September 2023
Decision date:	29 September 2023
Before:	Kirk JA at [1]; Fagan J at [133]; Sweeney J at [266]
Decision:	(1) Grant leave to appeal and appeal upheld. (2) Quash the appellant’s conviction and a judgment of acquittal be entered in its place.
Catchwords:	CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Joint criminal enterprise and extended joint criminal enterprise — Where admissions were made by the applicant against own interests — Where admissions are inconsistent — Whether admissions sufficiently reliable to found a guilty verdict — Whether jury had a natural advantage in hearing phone intercepts and viewing police interviews CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle
Cases Cited:	Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Sinclair v The King (1946) 73 CLR 316
Category:	Principal judgment
Parties:	ZT (Applicant) Rex (Respondent)
Representation:	Counsel: D Dalton SC (Applicant) G Newton SC and J Styles (Respondent) Solicitors: Nyman Gibson Miralis (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2019/266663
Publication restriction:	The identities of the applicant ZT and of certain of the witnesses (who are identified only by initials) are protected by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: N/A Date of Decision: 09 December 2021 Before: Walton J File Number(s): 2019/266663