CATCHWORDS

 

 

Criminal Law - Practice and Procedure - appeal against conviction - miscarriage of justice - removal of disruptive accused from Court - right of accused to be present at trial - discretion of trial judge to revoke bail - entitlement of jury to have regard to behaviour of accused throughout trial - direction from trial judge

 

 

Bail - Revocation of during trial

 

 

Abuse of process - police surveillance of accused - whether surveillance affected capacity of accused to conduct trial

 

 

Evidence - Admissibility of evidence demonstrating existence of relationship between accused and victim so as to explain act charged

 

 

Evidence - Whether fresh evidence not available at trial - whether sufficient to justify interference with verdict

 

 

Evidence - Whether evidence of good character of accused raised at trial - evidence in reply - appropriate use - discretion of Court - direction to jury

 

 

Evidence  - Relevance and public interest immunity - accused denied access to prosecution documents - whether likely to be of assistance in answering prosecution case - whether accused prevented from presenting jury with reasonable hypothesis inconsistent with guilt

 

 

Evidence - Identification evidence - admissibility - use to which hearsay evidence of non-identification could be put - evidence of voice identification - direction from trial judge - whether adequate - s.60 Evidence Act 1995 (Cth)

 

 

Evidence - Disputed confessions - admissibility of tape recordings - s.84 Evidence Act - transcript - discretion to admit - procedure adopted by trial judge in presenting evidence of recorded material to jury

 

 

Evidence - Witnesses - cross-examination - need to cross-examine on case on which reliance to be placed - rule in Browne v Dunn - criminal proceedings - parts of defence case not put - application to criminal proceedings - unrepresented accused - consequences of failure to observe rule - inferences to be drawn - appropriate direction

 

 

 

Bail Act 1992 (ACT) s 22

Evidence Act 1995 (Cth) ss 4, 48, 59, 60, 62, 83, 64, 65, 66, 67, 84, 90, 97, 110, 112, 116, 130, 135, 136, 137, 138, 192

 

 

 

Australian Law Reform Commission Report 26, Vol 1

MJ Beazley, Hearsay and Related Evidence - A New Era?

(1995) 18 UNSWLJ 39

 

 

 

Martin v Osborne (1936) 55 CLR 367

Wilson v The Queen (1970) 123 CLR 334

The Queen v Hissey (1973) 6 SASR 280

R v Bond [1906] 2 KB 389

R v Heath [1991] 2 Qd R 182

R v Vernell [1953] VLR 590

R v McHardie and Danielson [1983] 2 NSWLR 733

Attwood v R (1960) 102 CLR 353

Stirland v DPP [1944] AC 315

Hamilton (1993) 68 A Crim R 298

R v Woolcott Forbes (1944) 44 SR(NSW) 333

R v Stalder [1981] 2 NSWLR 9

Crabbe v The Queen (1984) 11 FCR 1

Fuller (1994) 74 A Crim R 415

R v Perrier (No 1) [1991] 1 VR 697

Barca v R (1975) 7 ALR 78

Peacock v R (1911) 13 CLR 619

Alister v The Queen (1984) 154 CLR 404

Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84

Cerrah v R (unreported, Victoria Full Court, 6 October 1988)

National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

In re Van Beelen (1974) 9 SASR 163

Subramaniam v Public Prosecutor [1956] 1 WLR 965

R v Welsh (unreported, NSW Court of Criminal Appeal, 6 November 1996)

R v Mrish (unreported, NSW Supreme Court, Hidden J, 4 October 1996)

Browne v Dunn (1893) 6 R 67

Peter Schneidas (No 2) (1981) 4 A Crim R 101

R v Manunta (1989) 54 SASR 17

R v Birks (1990) 19 NSWLR 677

Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219

R v Hines (1991) 24 NSWLR 737

Howson’s Case (1981) 74 Cr App R 172

R v Body (unreported, NSW Court of Criminal Appeal, 24 August 1994)

Bulejcik v R (1996) 135 ALR 517

R v Clout (unreported, NSW Court of Criminal Appeal, 1 December 1995)

R v Theos (unreported, Victoria Court of Appeal, 26 June 1996)

Davies and Cody v The King (1937) 57 CLR 170

Gallagher v The Queen (1986) 160 CLR 392

Mickelberg v The Queen (1989) 167 CLR 259

R v O’Neill [1996] 2 Qd R 326

R v Pavic (unreported, Victoria Court of Appeal, 19 December 1996)

Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180

R v Menzies [1982] 1 NZLR 40

R v Miladinovic (1992) 107 FLR 241

R v Watts [1992] 1 Qd R 214

 

 

 

 

 

 

Matter No. ACT G66 of 1995

 

DAVID HAROLD EASTMAN v THE QUEEN

 

 

 

 

 

 

 

 

 

von Doussa, O’Loughlin and Cooper JJ

Canberra

25 June 1997

IN THE FEDERAL COURT OF AUSTRALIA        )

                                                                                      )

AUSTRALIAN CAPITAL TERRITORY                 )        No ACT G66 of 1995

                                                                                      )

DISTRICT REGISTRY                                             )

                                                                                      )

GENERAL DIVISION                                               )

 

 

 

                            ON APPEAL FROM THE SUPREME COURT OF THE

                                         AUSTRALIAN CAPITAL TERRITORY

 

 

 

                                                                   B E T W E E N:

 

                                                                   DAVID HAROLD EASTMAN

                                                                                                                                        Appellant

                                                                   - AND -

 

                                                                   THE QUEEN

                                                                                                                                     Respondent

 

 

MINUTES OF ORDER

 

JUDGES MAKING ORDER                 :           VON DOUSSA, O’LOUGHLIN and                       COOPER JJ

 

WHERE MADE                                      :           CANBERRA

 

DATE ORDER MADE                           :           25 JUNE 1997

 

THE COURT ORDERS THAT:

 

1.             The appeal be dismissed.

 

 

 

 

Note: Settlement and orders are dealt with by Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA        )

                                                                                      )

AUSTRALIAN CAPITAL TERRITORY                 )        No ACT G66 of 1995

                                                                                      )

DISTRICT REGISTRY                                             )

                                                                                      )

GENERAL DIVISION                                               )

 

 

                            ON APPEAL FROM THE SUPREME COURT OF THE

                                         AUSTRALIAN CAPITAL TERRITORY

 

 

 

                                                                   B E T W E E N:

 

                                                                   DAVID HAROLD EASTMAN

                                                                                                                                        Appellant

                                                                   - AND -

 

                                                                   THE QUEEN

                                                                                                                                     Respondent

 

                                                  REASONS FOR JUDGMENT

 

 

Coram:       von Doussa, O’Loughlin, Cooper JJ

Place:         Canberra

Date:

Index

 

Introduction.................................................................................................................................. 1

Grounds 1(a) and 1(b)................................................................................................................

Grounds 1(c) and (d) and Ground 13..........................................................................................

Ground 2....................................................................................................................................

Ground 3....................................................................................................................................

Ground 4..................................................................................................................................

Ground 5..................................................................................................................................

Ground 6..................................................................................................................................

Ground 7 and Ground 12..........................................................................................................

Ground 10................................................................................................................................

Ground 11................................................................................................................................

Conclusion................................................................................................................................

 

The Court: David Harold Eastman (“the appellant”) has appealed to this Court against his conviction for the murder of Colin Stanley Winchester (“Mr Winchester”). The case for the Crown was that the appellant shot and killed Mr Winchester on 10 January 1989.

 

On 24 December 1992 the appellant was committed for trial by the Coroner following an inquest into the death of Mr Winchester that had extended over two years. The Inquest had opened in May 1989 and the hearing commenced three months later in the following August. Initially, an open finding was announced in December 1991, but in November 1992 the Inquest was reopened and further evidence was adduced. That additional evidence, which was predominantly in the form of identification evidence of a Mr Raymond Webb, led to the appellant’s committal.

 

The indictment was dated 29 March 1993 and was filed in the Supreme Court of the Australian Capital Territory on about that date. On 5 October 1993 a trial date was fixed for 5 April 1994. That date was, however, varied on a number of occasions and for a number of reasons. Ultimately, after listings for 6 February 1995 and 3 April 1995 had been vacated, the case was called on for hearing before Carruthers AJ on 2 May 1995. After hearing preliminary arguments over the succeeding two weeks, a jury was empanelled on Tuesday 16 May 1995. On 3 November 1995 the jury returned a verdict of guilty and a week later, on 10 November 1995, the appellant was sentenced to imprisonment for life.

 

During the course of the trial the Crown presented in excess of two hundred witnesses. There were almost 7000 pages of transcript and over three hundred documentary and other exhibits.

 

At the time of his death Mr Winchester was an Assistant Commissioner in the Australian Federal Police (“the AFP”) and the highest ranking police officer serving in the Australian Capital Territory. Death occurred at about 9.15 pm as the deceased was alighting from his car near his home in Lawley Street, Deakin, a suburb of Canberra. Mr Winchester was in the habit of parking his car in his neighbour’s driveway. His neighbour, a widow, found comfort in having a car on her premises pointing to the presence of occupants in her house.

 

When found by his wife shortly after the murder, the deceased was in a slumped position behind the driving wheel of his car; the driver’s door was open and his right leg was on the ground. The automatic transmission was in “park” and the car lights had been turned off. He had been shot twice at close range - once in the back of the head and once in the face on the right hand side. According to the medical evidence, the wound to the back of the deceased’s head occurred first and was likely to have caused instant death.

 

Immediately before his death, Mr Winchester had visited his brother Ken, in nearby Queanbeyan. This visit was not part of a normal routine or pattern and therefore it could not be suggested that the killer was earlier aware of the deceased’s likely movements. Mr Ken Winchester said that he had not noticed any other vehicle about when his brother left to go home.

 

Mrs Winchester said that she heard the sound of her husband’s car at about 9.15 pm and that a short time later she heard noises which she described as sounding “like sharp stones coming up on to the front of the window”. She said that there were two distinct sounds - the second following immediately upon the first. Obviously, they were the sounds of the two shots that killed the deceased. When Mr Winchester had not come into the house, Mrs Winchester went looking for him and it was then that she found his body. The Crown’s case was that the shots had been fired from a .22 calibre weapon to which a silencer had been fixed and that supersonic ammunition (such as PMC Zapper) had been used. If that be correct, the use of the silencer would have muffled the sound of the shots that were fired but not that of the bullets breaking the sound barrier. This would also account for the manner in which Mrs Winchester described the sounds that she heard.

 

Police officers who attended at the scene of the crime searched the immediate area. Two PMC cartridge cases were found but no weapon was located. Indeed, the murder weapon has never been found. Microscopic examination of the two cartridge cases by Superintendent Prior led him to form the opinion that the murder weapon was a Ruger 10/22 rifle. That conclusion was not challenged by the defence.

 

The assistance of Mr Barnes from the Victorian Forensic Science Laboratory was sought by the investigating police officers as a matter of urgency. He arrived at the scene of the crime at about 3.00 am on 11 January 1989 and commenced work in his field of expertise - the collection and interpretation of gunshot residue. Mr Barnes took stub samples from both entry wounds and from selected areas of the car. Later that morning, a police officer, Sergeant Nelipa vacuumed the ground in the immediate area of the driver’s door of the car.

 

The appellant’s car was later impounded and searched for gunshot residue on 18 January 1989. Both Mr Nelipa and Mr Barnes were involved in that search. It will be necessary to return to the subject of the identification of gunshot residue in detail at a later stage in these reasons.

 

It was the case for the Crown that the murder weapon was a Ruger 10/22 rifle that had been purchased by the appellant from a Louis Klarenbeek, and that at the time of purchase the rifle was fitted with a silencer. Mr Klarenbeek was questioned by the police and gave them a statement, but he died before the trial commenced. During the trial, the defence adduced evidence through Detective Pattenden that he had spoken to Mr Klarenbeek on 28 January 1989 and that he had, on that day, shown him a photoboard containing several photographs, one of which was of the appellant. Mr Pattenden said that Mr Klarenbeek said that he did not recognise any of the photographs.

 

The police traced the ownership of the Ruger back from Mr Klarenbeek to a Mr Noel King. Mr King had, in turn, purchased it from a Mr Caldwell. When Mr King sold the rifle to Mr Klarenbeek in October 1988 it was fitted with a telescopic sight and the barrel had been threaded so that a silencer could be fitted.

 

Mr Caldwell said that over a number of years he had spent his holidays on a particular Reserve where he and his companions had engaged in target practice and rabbit shooting. He took police to the location where, using metal detectors, the police located a number of spent .22 calibre cartridge cases. Ultimately, testing by Mr Prior revealed that nine of those cartridges resembled, very closely, the two cartridges that had been found at the scene of the crime. Mr Klarenbeek also handed police seven .22 calibre cartridge cases. He said he had recovered them from an area where he had test-fired the Ruger that he had purchased from Mr King. Four of those cartridges were identified by Mr Prior as having been fired by rifles other than a Ruger. His examination of the remaining three led him to conclude that two of them were Stirling brand and one was a CCI brand cartridge case. None of them was a PMC brand. In concentrating his examination on those three cartridge cases, Mr Prior ultimately formed the opinion that one of them had been fired from the same rifle that had fired one of the cartridge cases found at the scene of the crime. The absence of a PMC cartridge case from the samples handed over by Mr Klarenbeek can be explained as the obvious result of different brands of .22 ammunition being used on different occasions. Evidence that Mr Klarenbeek had used Stirling and CCI brands when he test fired the rifle has an additional significance that will be discussed when consideration is given to the subject of gunshot residue.

 

Mr Prior’s conclusions were independently supported by Mr Barnes, by Special Agent Richard Crum of the United States’ Federal Bureau of Investigation and by Chief Superintendent Bernard Schecter, the head of the Investigations Department, Division of Identification and Forensic Science of the Israeli National Police. Although the grounds of appeal anticipated a challenge to the expertise of Mr Barnes (which was not pressed at the hearing), no attempt was made, either during the trial or on the appeal, to question the qualifications of Mr Crum or Mr Schecter. There can be no doubt that the rifle used to kill Mr Winchester was the rifle that Mr Klarenbeek had acquired through Mr King from Mr Caldwell. However, save for the evidence of Mr Webb, which evidence is the subject of challenge in this appeal, there was no other direct evidence that Mr Klarenbeek had sold the rifle to the appellant. Further, the appellant denied on oath that he had purchased any weapon from Mr Klarenbeek; he also denied that he had ever visited Mr Klarenbeek’s premises.

 

Mr Webb gave evidence that he had seen an advertisement for the sale of various firearms that had been placed in the Canberra Times by Mr Klarenbeek on Saturday 31 December 1988. On arrival at Mr Klarenbeek’s house in Queanbeyan that day he was shown several weapons, including a Ruger 10/22 rifle. He noticed that its barrel was threaded so that a silencer could be fitted and that it had a telescopic sight. There were three silencers on the table where Mr Klarenbeek was displaying items which he had for sale. Mr Webb said that as he was leaving Mr Klarenbeek's premises another person arrived. It was necessary for Mr Webb to turn sideways so that the two men could pass on the pathway without colliding. He said he made eye contact, and the other person was not moving out of the way. He subsequently identified that person as the appellant. Mr Webb said that he returned to Mr Klarenbeek’s house on Thursday 5 January 1989 and purchased a Tof .22 rifle. He then noted that the Ruger 10/22 was no longer on display. He said that Mr Klarenbeek did not require him to produce any type of licence.

 

Shortly after the murder, following a television program in which the police appealed for information about Ruger rifles, Mr Webb contacted the police. He told them that he had seen one at Mr Klarenbeek’s house but he made no mention of the man who had arrived as he was leaving, nor did he refer to him when he gave a written statement to the police six months later on 28 August 1989. Much later in the year he saw, so he claimed, the appellant on television and recognised him as the man whom he had seen at Mr Klarenbeek’s house. In evidence-in-chief he said that he had not mentioned the other man when he first spoke to the police as he did not recall the subject being raised. However, he admitted that in his statement of 28 August he had falsely stated that whilst he was at Mr Klarenbeek’s house on 31 December 1988 “nobody else came to look at the rifle he had for sale ...”. Mr Webb also repeated that statement when giving evidence on oath at the Inquest. He offered, as his explanation, that he did not want to get involved, that he had visited Mr Klarenbeek during his working hours without his employer's permission and that he was scared for himself and his family. He also assumed that Mr Klarenbeek would have been able to identify the person who had bought the Ruger 10/22 rifle. It was not until sometime late in 1992 that Mr Webb told the police that he had identified the appellant on television some three years or so earlier. It will be necessary to return to Mr Webb’s evidence when considering the grounds of appeal.

 

The Crown led other evidence that pointed to the appellant being the person who purchased the Ruger 10/22 rifle from Mr Klarenbeek. First there was the evidence of a Mrs Mercia Kaczmarowski. She lived in the street behind Mr Klarenbeek’s house. She recalled Saturday 31 December 1988. She had a friend staying with her and was about to go away on holidays. She noticed a motor vehicle parked outside her home and was attracted to it because it had “a very interesting bumper bar” as well as “a new style of number plate for the ACT.” At the request of the police she looked through a book of photographs of different motor vehicles and picked one that she considered to be similar to the car which she had seen. The photograph happened to be one of the appellant’s car, a blue Mazda 626 sedan.

 

Next there was the evidence of a Mr Dennis Reid, the proprietor of a sports store in Queanbeyan. His evidence was that a few days before the murder of Mr Winchester a man brought a Ruger 10/22 rifle to his store, offering to sell it. Mr Reid noted that the rifle had a telescopic sight and no front sight because the end of the barrel had been threaded to fit a silencer. Mr Reid was not interested in purchasing the rifle but told the customer that he might be able to find a purchaser. However, the customer declined to identify himself saying that he would ring Mr Reid at a later time (which he did). The customer’s reluctance to leave a telephone number made Mr Reid suspicious - he thought the weapon might have been stolen. He told his son, Peter, to follow the customer but Peter was unable to note anything other than that the customer drove away in a blue sedan.

 

Mr Reid reported the incident to the police after seeing a television program dealing with the death of Mr Winchester. He was interviewed and shown a photoboard but was unable to make any positive identification. Much later, in May 1990, Detective Lawler showed Mr Reid a different photoboard and on this occasion Mr Reid tentatively identified the appellant saying that he was “reasonably sure of number 5,  probably 80 per cent, to that ability, but I couldn’t do it 100 per cent.” Later, in co-operation with the police Mr Reid waited in Petrie Plaza, a large public mall in Canberra that was frequented by the appellant. On 25 August 1990 Mr Reid saw the appellant in the plaza join a queue at an automatic teller machine. He recognised the appellant as very similar in appearance to the man who had come into his store, but was not prepared to make a positive identification. He suggested to the police that it might help if he had an opportunity to speak to the man. The police agreed and Mr Reid, on a later occasion, twice approached the appellant at the Jolimont Centre in Canberra and spoke with him. Following this, Mr Reid stated that he was certain that the appellant was the man who had come into his store. The appellant denied visiting Mr Reid's shop but he recognised Mr Reid as the man who had spoken to him at the Jolimont Centre. The appellant claimed that he had never seen Mr Reid before that occasion.

 

Although the appellant denied purchasing a rifle from Mr Klarenbeek, he did not deny that throughout 1988 he had made numerous inquiries with respect to the purchase of some form of firearm. The Crown led evidence of the appellant’s telephone records and was able to match outgoing calls to telephone numbers listed in advertisements for the sale of guns that had appeared from time to time in the Canberra Times. The appellant’s explanation was that on 17 December 1987, he had had an altercation with a neighbour, a Mr Russo, and that he was fearful that Mr Russo might attack him. He was seeking a weapon for self protection. He said that he knew that Mr Russo carried a firearm with him in his motor car (an assertion denied by Mr Russo). The appellant’s case was that Mr Russo had been the aggressor on 17 December 1987 but that he, the appellant, as the innocent victim, had unfairly been charged by the police with assaulting Mr Russo (“the Russo assault charge”). The Russo assault charge was of importance to the Crown case as it was said to play a central part in the appellant’s motive for the murder of Mr Winchester.

 

A Mr Geoffrey Bradshaw gave evidence that the appellant attended at his premises and purchased a Stirling .22 rifle fitted with a telescopic sight on 10 February 1988. During their investigations the police were able to link this weapon to the appellant as his thumbprint was detected on it. The appellant gave Mr Bradshaw a false name. When asked in cross-examination to explain why he had done that, the appellant claimed that the police would have refused him a gun licence because of the pending Russo assault charge. Shortly after completing the purchase, the appellant returned the Stirling to Mr Bradshaw, claiming that its mechanism was jamming. He did not, however, return the telescopic sight. The appellant claimed that it was broken; he said that he had smashed it and thrown it away.

 

A few days later, on 13 February 1988, the appellant purchased a Ruger 10/22 rifle from a Mr James Lenaghan (“the Lenaghan rifle”). Mr Lenaghan said that the appellant did not want a telescopic sight. The appellant walked to and from Mr Lenaghan’s house and he had no car in sight. He did not give his name. On 1 May 1988 that weapon was found secreted away in a culvert on the old Federal Highway just outside of Canberra. During cross-examination the appellant admitted to purchasing this rifle and to putting it in the drain. When asked to explain this, he said that Mr Russo had “moved out and I felt that the extreme danger, at least, was over and there was no need for me to be seriously concerned any longer”. The appellant was unable to recall when Mr Russo had left the neighbourhood - he thought it might have been a month or two after he bought the Lenaghan rifle. He claimed that because of Mr Russo’s departure he no longer had any use for the weapon.

 

At an early stage of the trial, whilst giving evidence on a voir dire hearing, the appellant had said of the Crown Prosecutor that he had, during his opening address to the jury, recited “a long litany of outrageously false accusations ... accusing me of ... acquisition of firearms which was [sic] all totally false ...”. When asked in cross-examination to explain why he had made that statement, the appellant claimed that his evidence had been misunderstood and that he had only been referring to the false accusation that he had purchased the murder weapon from Mr Klarenbeek. The Crown’s answer to this explanation was that the appellant had come to realise the strength of the Crown case that identified him as the purchaser of weapons from both Mr Bradshaw and Mr Lenaghan and that he had therefore found it necessary to modify his story and to admit to the purchase of these weapons, citing his fear of Mr Russo as his explanation. However, this did not explain why the appellant felt compelled to hide the rifle in the culvert.

 

Bearing in mind that the appellant maintained that he had secreted the Lenaghan rifle sometime before 1 May 1988 (the date of its discovery) for the reason that he no longer had any use for it, it is significant that the Crown was able to lead evidence that in June, and again in November 1988, the appellant was still searching for a firearm. The appellant’s diary had been seized during the execution of a search warrant on his flat on 18 January 1989. The numbers and words “24 Adinda Street, Waramanga” were identified as a partially erased entry in the diary. Further inquiries revealed that on 4 June and 29 October 1988, the occupant of those premises, a Mr Scott Thompson, had advertised a Ruger 10/22 rifle for sale in the Canberra Times. He recognised the appellant as the person who called at his home and either then or later tried to buy the rifle at a price lower than that advertised. He also said that the appellant wanted him to make the sale in Queanbeyan in New South Wales, to avoid the need to comply with the ACT’s gun laws for registration of firearms. Mr Ingle, Mr Thompson’s flat-mate, also identified the appellant as a person who called one evening in November 1988 to look at the rifle. Neither Mr Thompson nor Mr Ingle were asked any questions in cross-examination by counsel for the defence.

 

As he had previously done, the appellant advanced Mr Russo as the reason behind his further inquiries about the purchase of a firearm. He said, under cross-examination, that some time in June 1988 he was driving his motor car when he saw Mr Russo travelling in the opposite direction. He said that through his rear vision mirror he observed Mr Russo do a U-turn and commence to follow him for some distance. Fearful that Mr Russo intended to harm him, the appellant decided to make some further inquiries about purchasing another weapon. However, the price that Mr Thompson was asking was, presumably, too much for the appellant. He said that some other incident, the details of which he could no longer remember, caused him to make further inquiries - this time through Mr Ingle later in November 1988. However, the price remained too high. If, as he claimed, the appellant was once again fearful of Mr Russo, there was an apparent lack of urgency in his attempts to acquire a weapon to protect himself. A more likely inference is that he felt compelled to purchase a replacement rifle for the one that he had hidden in the culvert.

 

It was the case for the Crown that the appellant’s alleged fear of Mr Russo was concocted to explain away the cogent evidence that throughout 1988 the appellant was searching for a suitable firearm. The Crown was able to produce a letter written by the appellant to his German pen-friend, Ms Irene Finke, on 24 December 1987. That was a week after the altercation with Mr Russo. Although he mentioned the fight and told her that he had been charged with assault by the police, he did not suggest any fear of Mr Russo. The Crown also produced correspondence from the appellant to the Housing Trust in which he complained about Mr Russo’s conduct. Again there was no mention of him being fearful of Mr Russo; nor did he mention any fear of Mr Russo when he sought to enlist the aid of Senator Reid and the then Shadow Attorney-General, Mr Neil Brown QC. He had hoped that they might have been able to exert some influence and have the assault charge withdrawn.

 

The Crown case placed great emphasis on the appellant’s attempts to rejoin the Australian Public Service. These attempts had continued over many years. The Crown contended that setbacks which the appellant encountered along the way had caused him extreme anger about alleged injustices. The Russo assault charge was perceived by the appellant as a further injustice which also had the potential to destroy his chances of re-engagement. The Crown case was that these events caused the appellant great resentment towards the police, and in about December 1988 towards Mr Winchester in particular. In the unusual circumstances of this case, these matters provided the appellant’s motive for the murder.

 

The appellant had joined the Public Service in 1966 and from 1973 he had worked as a clerk in the Department of the Treasury. On 24 June 1977, he resigned with effect from 30 June 1977. Subsequently however, the appellant claimed that his resignation was caused through a physical or mental incapacity to perform his duties. The claim was duly accepted and, as a result, the appellant had the choice of receiving a pension or a lump sum payment. This also meant that his mode of exiting the Superannuation Scheme was officially changed from resignation to invalidity.

 

The Crown called, as part of its case, Mr Brian Lorenz, who was, at the relevant time, the Assistant Secretary of the Australian Government Retirement Benefits Office. Mr Lorenz corresponded with the appellant explaining to him that if a recipient of a pension later obtained employment, payment of the pension would cease. However, Mr Lorenz went on to explain that if that person had received a lump sum payment, no part of that sum was repayable in the event of subsequent employment being obtained. Mr Lorenz confirmed that the appellant elected by letter dated 31 January 1978 to receive a lump sum payment. The relevant section of that letter read as follows:

 

            “I have decided to select the option C referred to in your letter of 22 January 1978. That is to say, a lump sum of three and a half times accumulated base and contributions”.

 

Notwithstanding his election to receive a lump sum payment, the appellant shortly thereafter sought re-entry into the Public Service. He also sought compensation for the loss which he maintained he had suffered as a consequence of his resignation having been irregularly processed. He claimed that if the correct procedures had been followed, he would never have resigned. The appellant’s prolonged claim for compensation came to end only after some nine years or so had elapsed when it was finally rejected in 1987.

 

In the course of his campaign to gain re-entry into the Public Service, the appellant came to the conclusion that his prospects would be improved if he were receiving a pension. Mr Lorenz produced a file note in which he had recorded the following summary of a phone conversation that he had had with the appellant:

 

            “Mr Eastman explained that his consideration of an application for cancellation of his election to take a lump sum was on the basis that if he were in receipt of a pension, he would have an opportunity of being re-employed under the Superannuation Invalidity Pension Review arrangements.”

 

On 10 September 1980 the appellant applied for an extension of time to allow him “to apply to reverse an election in favour of a lump sum ...” On 21 October 1980 that application was refused. However, the appellant pursued the matter. He unsuccessfully sought a review of the decision and then appealed - this time successfully - to the Administrative Appeals Tribunal (“the AAT”). Having gained an extension of time, the appellant then presented to the Commissioner for Superannuation his substantive application to switch his lump sum payment to a periodic pension. That application failed as did a review of the Commissioner’s decision. But the appellant was again successful in the AAT. In May 1984, the appellant became entitled to receive a pension; he had thereby established a foundation for his attempt to regain employment in the Public Service.

 

It was a prerequisite to employment in the Public Service that an applicant be medically fit. Subsequently in June 1984, the appellant wrote the Commissioner for Superannuation seeking a medical review. In October 1985 the Commissioner ruled that the appellant was not medically fit for work in the Public Service. The appellant sought a reconsideration of the Commissioner's decision, but without success. Again, he appealed to the AAT, but on this occasion his appeal failed. The Tribunal in its reasons published on 4 November 1986, referred to the appellant’s history of violent behaviour, concluding that it demonstrated that he was unsuitable for appointment to the Public Service.

 

The appellant applied afresh in 1988 for a medical examination. Initially, this was rejected but on an application for review of that decision the Deputy Commissioner for Superannuation agreed on 19 July 1988 to grant the appellant a further medical review. The review, although successful, contained an important restraint. He was to have “minimal contact with other people”. By letter dated 21 December 1988, the Commissioner for Superannuation wrote the appellant saying that he was satisfied:

 

            “... that your health has been restored such as to enable you to perform duties of a clerical nature in a middle management position at the Administrative Service Officer Class 5 to 7 level, involving self-paced projects and minimal contact with other people.”

 

The Commissioner’s letter did not state the reason for imposing such unusual conditions but there can be no doubt that the appellant’s history of prior violent behaviour was the motivating factor. The Delegate of the Commissioner for Superannuation had said in par 8(iii) of his reasons that in fixing these restraints, he had had regard to “the difficulties (the appellant) has experienced in interpersonal relations”. In any event, it was the appellant’s view that his prior behaviour was being held against him for he immediately responded on 22 December 1988 to the Commissioner’s letter seeking a reconsideration of that part of the decision that imposed the conditions. He claimed that the matters that were the subject of mention in par 8(iii) of the Delegate's reasons had ceased. This was his last appeal and it was unsuccessful. It was the Crown case that this highlighted the importance to the appellant of ensuring that the Russo assault charge did not proceed.

 

Evidence was led as to the way in which the appellant reacted to adverse decisions made against him in the course of his campaign to gain re-entry into the Public Service. This evidence was led to show the intensity of his feelings. It was claimed that the appellant made threats of violence to Mr Michael Frodyma and Mr Maurice Kennedy, officers of the Department of Finance, who, in the eyes of the appellant, were perceived to have had some direct or indirect participation in the decision to reject his compensation claim in August 1987. For example, according to the evidence of Mr Frodyma, the appellant threatened “to come around with a baseball bat” and to knock his “fucking head in ...”. Mr Kennedy, who was Mr Frodyma’s immediate superior, said that he received a phone call from the appellant subsequent to the occasion when the appellant allegedly threatened Mr Frodyma with the baseball bat. According to Mr Kennedy, the appellant shouted at him saying that he (Mr Kennedy) was “... a fucking liar, deceitful, and a fucking bastard”.

 

Mr Kennedy continued in his evidence that he said to the appellant that if he did not withdraw the threat to his staff “the matter would be put in the hands of the police. He did not withdraw and told me ‘You are included’ in the threat that I understood that he’d made to Mr Frodyma”.

 

A Mr Bewley had been interviewed on television in late 1985 about his dispute with the Commissioner for Superannuation. Shortly after the broadcast, the appellant visited him and they discussed their respective disputes with the Commissioner. Mr Bewley said that the appellant became agitated and eventually said “well sometimes I just get so frustrated I could just get a gun and kill someone”. Mrs Bewley corroborated her husband's evidence. Neither Mr nor Mrs Bewley were cross-examined.

 

Another example of the threatening attitude that the appellant was provided by Ms Vick who, in 1988, was a member of the staff of Senator Haines. The appellant had approached the Senator hoping that she could assist him in his attempts to obtain re-employment in the Public Service. According to Ms Vick, she considered that the appellant was unhappy and frustrated about his lack of success. Ms Vick said that in one telephone conversation in September 1987 (shortly after the rejection of his claim for compensation), the appellant said to her: “I’ll probably have to kill someone to get the attention paid to the injustice that’s being done to me.”

 

Ms Vick said that she asked the appellant should she take him seriously. When he replied “Yes” she told him that she intended to report the matter to the police. At that stage of the trial, the accused was represented by counsel. During cross-examination, Ms Vick’s evidence about the threat was not challenged. However, she did agree that she did not feel personally concerned by the threat nor did she feel that it was directed towards Senator Haines or any member of her staff.

 

At this stage in the narrative it becomes necessary to refer, once again, to the Russo assault charge. The appellant had made several attempts to have the charge withdrawn. He had been unsuccessful and the charge had been listed for hearing on 12 January 1989, two days after the death of Mr Winchester. It was the case for the Crown that the appellant had developed an intense hatred for all members of the police force. He saw the Russo assault charge as an example of police corruption and as evidence of ill-will towards him personally. The Crown relied upon the evidence of several witnesses, including Chief Superintendent Mills and Inspector Kirk to demonstrate the scale and intensity of the appellant’s campaign and the great hostility shown by him towards the police.

 

Mr Mills had met with the appellant on 21 December 1987. According to his evidence the appellant complained that he was the victim of the Russo assault, that his complaint had not been investigated properly and that two police officers, whom he named, lacked impartiality. Mr Mills said that when he told the appellant that he would have Inspector Tomlinson investigate his complaints, the appellant replied that he “wasn't very pleased with that”. According to Mr Mills, the appellant added that he did not think that Mr Tomlinson “would be sympathetic to my concerns”. Mr Mills arranged for another officer to investigate the appellant’s complaint but later, in February 1988, the appellant rang Mr Mills complaining that the investigation was not being conducted fairly. Mr Mills had yet another officer review the matter. But still the appellant remained unsatisfied. He rang Mr Mills saying of the officer: “He is inept and on top of that he’s corrupt”.

 

Mr Kirk had interviewed the appellant in March 1988 with respect to the Russo assault, shortly after the summons had been served on the appellant. Mr Kirk recalled that he told the appellant that he had reviewed the file and that he considered that the matter should be permitted to take its course. According to Mr Kirk, the appellant replied “you are a corrupt person, you are criminally corrupt”.

 

A neighbour of the appellant, a Mrs Donna Heritage, gave evidence that the appellant had talked to her and to her husband about the Russo assault charge. Both said that the appellant had maintained his innocence. Mrs Heritage went on to say that the appellant accused the police of being corrupt, adding that the appellant said “... if it’s the last thing he does he will get back at the police”. The evidence of these witnesses, Mr Mills, Mr Kirk and Mr and Mrs Heritage was not challenged. At the time when they respectively gave their evidence the appellant was unrepresented and declined to cross-examine them.

 

According to the Crown case, the intensity of emotion displayed by the appellant both in terms of his desire to re-enter the Public Service and his ill-feeling towards the police, culminated on 16 December 1988. The appellant had earlier sought the assistance of Mr Brown QC in relation to the Russo assault charge, claiming that he was a victim of a police conspiracy. Mr Brown, recalling that the appellant had told him of his efforts to obtain re-employment in the Public Service, said in evidence, “and my general impression of what he was saying was that he wanted to have this particular matter, that is to say this matter concerning the police, cleared up, I assume because it would enhance his prospects of going back to work in the Treasury”.

 

Mr Brown said that the appellant had requested him to arrange an appointment with Mr Winchester as he was the senior police officer in the Australian Capital Territory. The appellant had said that he wanted the charge “dropped”. After some discussion, Mr Brown agreed to write Mr Winchester and was successful in obtaining an appointment to attend with the appellant on Mr Winchester on 16 December. At that meeting the appellant outlined his complaints but Mr Winchester stated, quite firmly, that he would not intervene. He said that the matter was with the Director of Public Prosecutions (“the DPP”) and that the conflicting issues should be resolved by a magistrate. According to Mr Brown, the appellant became increasingly agitated, at one stage saying to Mr Winchester: “If your hoons think they can treat me like this they’ve got another thing coming”.

 

Mr Winchester defended his officers but still said that he would write Mr Brown with his final answer. By letter dated 20 December 1988, Mr Winchester wrote Mr Brown telling him that he would not personally intervene. Mr Brown sent a copy of that letter to the appellant. It was the Crown case that this final rejection generated great emotion and anger in the appellant.

 

The appellant prevailed on Mr Brown to write to the Commissioner of Police, Mr Peter McAulay, asking him to intervene on the appellant's behalf. The Commissioner replied direct to the appellant by letter dated 9 January 1989, informing him that he would not intervene. Evidence was called from the office of the Commissioner and from Australia Post which established that this letter would have been delivered to the appellant, in the ordinary course of the mail, at about 9.30 am on 10 January 1989, the day upon which Mr Winchester was murdered.

 

It was the Crown case that the appellant perceived Mr Winchester’s attitude as further evidence of police corruption and as part of a personal campaign against him. In support of that proposition, the Crown pointed to the evidence of Inspector Craft. Mr Craft had met the appellant, accidentally, outside the police building. He was unsure of the date; he thought that it was either the third, fourth or fifth of January 1989. He had not applied his mind to the incident involving the appellant until 30 January 1989 when he made a statement setting out his recollection of the meeting. According to Mr Craft, the appellant said to him, pointing generally in the direction of Mr Winchester’s office: “The executive in this building is corrupt and has a lot to answer for.”

 

The Crown also relied on the evidence of Sergeant Coutts and Mr Ostrowski. Sergeant Coutts knew the appellant and saw him in the afternoon of the day of the murder in a car-park near the city police station. It was a car-park that was used to park police vehicles. The appellant was observed looking into several of those vehicles. Independently of these observations the Crown also led evidence that listening devices had subsequently been secretly installed in the appellant’s flat. Through those devices the appellant had been heard - presumably talking to himself- uttering words to the effect that he had visited the street where Mr Winchester lived and had noted that he was in the habit of parking his car in his neighbour’s driveway rather than his own. The Crown argued that these two pieces of evidence made it relevant that the appellant displayed an interest in police vehicles and their contents only a few hours before the death of Mr Winchester.

 

Mr Ostrowski was a friend of the appellant and an employee in the Public Service. He gave evidence of occasions when the appellant had spoken to him about his attempts to rejoin the service. He also recalled that the appellant had asked him to inquire whether there were positions available in the Department of Administrative Services where Mr Ostrowski worked. Mr Ostrowski knew that the appellant had received the necessary medical clearance to rejoin the Public Service and was also aware of the pending Russo assault charge. Mr Ostrowski claimed that he reminded the appellant that “under the Public Service Act anyone with a criminal record would be precluded from entering the Public Service”. According to Mr Ostrowski, the appellant had complained to him that he was innocent of the charge, that Mr Russo had been the aggressor and that he (the appellant) was the subject of victimisation and persecution. Mr Ostrowski was not challenged on these aspects of his evidence by counsel for the defence but the appellant, when giving evidence in chief, maintained that although he had no recollection of discussing the matter with Mr Ostrowski, he would not have taken any notice of what he had said: “... with dear respect to Mr Ostrowski, he was pretty astray in his judgment and knowledge of the public service...”.

 

Another witness, a Mr Dennis Barbara had acted as the appellant’s solicitor for a short time with respect to the Russo assault charge. He said that on an occasion in late November or early December 1988, during a discussion with the appellant and after his professional relationship had ended, the appellant had said to him “I will kill Winchester and get the Ombudsman too”.

 

On 6 January 1989 the appellant consulted his medical practitioner, Dr Dennis Roantree. The doctor, who gave evidence for the Crown, said that the appellant had told him that he was “worried about a pending assault charge”. The appellant also told him of his meeting with Mr Winchester. According to Dr Roantree, he felt that the appellant exhibited “extreme anger” and he also described the appellant as “furious”. Dr Roantree had written in his notes that the appellant said as he left: “I should shoot the bastard”.

 

However, Dr Roantree had subsequently crossed that statement out. When asked during his evidence in chief, to explain why he had done so, the witness said that he had previously told police that he was not prepared “to swear to that”. Later however, he acknowledged “that had I not recalled that accurately, I wouldn’t have ever mentioned it”. At this stage of the trial the appellant was unrepresented and declined to cross-examine Dr Roantree.

 

In the peculiar circumstances of this case, this litany of violence, aggression and hate is not merely propensity evidence. If the Crown is to prove, by circumstantial evidence, that the appellant murdered Mr Winchester, facts that are subsidiary to or connected with the act of murder must be established from which the conclusion follows as a rational inference. As Dixon J said in Martin v Osborne (1936) 55 CLR 367 at 375:

 

            “In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.”

 

Evidence of propensity is not normally admissible and his Honour went on to point out that:

 

“The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded.”

 

But, as is clear from what his Honour said, such matters, in the circumstances of a particular case may be relevant and admissible. For example, evidence on such subjects will be admissible for the purpose of demonstrating the existence of a relationship between an accused and the victim so as to explain the act charged:  Wilson v The Queen (1970) 123 CLR 334; The Queen v Hissey (1973) 6 SASR 280. In Wilson v The Queen, Barwick CJ explained how evidence of the relationship between an accused and the victim can be admissible and highly probative at 337:

 

            “Evidence of a close affectionate friendship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.”

 

Four members of the Court, Barwick CJ, Menzies, McTiernan and Walsh JJ approved the following statement of principle by Kennedy J in R v Bond [1906] 2 KB 389 at 401:

 

“The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.”

 

In The Queen v Hissey, the Full Court said at 288-289:

 

            “We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living ... When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime...”

 

 

See also R v Heath [1991] 2 Qd R 182 at 194-196 and 199-209 as another example where these principles have been applied.

 

The Crown based its case against the appellant upon a particular relationship that was said to exist between the appellant and the police force in general. It was, said the Crown, a unique relationship that centred upon his hatred for, and frustration with, the authority that the police force had come to represent. His hatred, according to the Crown, came to a climax when he realised that the Russo assault charge would not be dropped. The realisation of that fact, the Crown maintained,  then caused his hatred to focus directly upon Mr Winchester in particular. The Crown put its case upon the premise that the relationship between the appellant had transformed into a special relationship, albeit a one-sided relationship, that the appellant had with respect to Mr Winchester. In our opinion the Crown was entitled to lead evidence that established both the appellant’s general relationship with the police force and his special relationship with Mr Winchester. The particular relationship constituted the context within which the death of Mr Winchester was alleged to have occurred. Furthermore, the inclusion of this evidence was justified on the basis that it may  have enabled evidence of the offence to be be placed in a “true and realistic context, in order to assist the jury to appreciate the full significance” of what has happened:   R v Beserick (1993) 30 NSWLR 510 at 515 per Hunt CJ at CL with whom  Finlay and Levine JJ agreed.

 

Drawing the many threads together, the Crown case had, at this stage, developed into a series of propositions that may be summarised in the following terms. First, by the latter half of 1988 the appellant’s attempts to gain re-entry into the Public Service had progressed to the point where he had been granted a further medical review, and then the letter from the Commissioner for Superannuation dated 21 December 1988 offered the appellant a limited opportunity to regain employment. That was a goal that the appellant had relentlessly pursued for over ten years. Secondly, the pending Russo assault charge - a false charge in the eyes of the appellant - had the potential to destroy (or at least, impair) his chances of getting back into the workforce. Thirdly, the false charge was a manifestation of police corruption and victimization. Fourthly, the sense of frustration arising out of the appellant’s ongoing attempts to have the assault charge withdrawn reached breaking point either at his personal meeting with the deceased or, more likely, when he received the letter from Commissioner McAulay. Finally, driven by his desire to return to the workforce, and overwhelmed by his determination to avenge the injustice he felt he had suffered, the appellant focused his murderous intent on Mr Winchester.

 

The appellant was first questioned about the death of Mr Winchester on the day after the murder, 11 January 1989. Detectives Thomson and Jackson interviewed the appellant concerning his meeting with Mr Winchester on 16 December 1988 at his home in the presence of his solicitor (who was, coincidentally, at the appellant’s residence in connection with the Russo assault charge). Detective Jackson’s evidence, which was not disputed by the appellant during the course of his cross-examination was as follows:

 

 

            “I said, ‘I've been informed that at the conclusion of the meeting, you refused to shake Mr Winchester’s hand, when it was offered to you. Is that right?’

 

            He said, ‘Yes,  I did not shake his hand.’

 

            I said, ‘I’ve also heard that you said ‘I will not shake your hand until you have fixed it.’

 

            He said, ‘No, I think I said something like, It’s not a time to shake hands until it has been resolved.’

 

            I said, ‘Did the meeting you had with Mr Winchester make you feel angry towards him?’

 

            He said, ‘No, more upset than angry.’

 

            Thomson said, ‘Can you tell us what you did last night?’

 

            He said, ‘I just drove around. I go for drives quite a lot at night as it relaxes me.’

 

            Thomson said, ‘Where would you have gone to last night?’

 

            He said, ‘I don't really remember.’

 

            Thomson said, ‘Where do you think you would have gone?’

 

            He said, ‘I go out each night buy take-away food, either a hamburger or a bucket of chips or a milkshake.’

 

            I said, ‘What time do you normally go out at night?’

 

            He said, ‘Any time, depends when I am hungry. If I am hungry at 11 at night I will go out and buy a bucket of chips and a newspaper. I don't go to sleep until about two each night and I don't watch TV.’

 

            Thomson said, ‘Did you get something to east [sic]  last night?’

 

            He said, ‘I may have. I don’t remember.’

 

            Thomson said, ‘If you had bought something last night where would it have been from?’

 

            He said, ‘It could have been Lonsdale Street, sometimes I go to George’s or the Honey Bunny at Queanbeyan. It just depends where I am hungry.’

 

            I said, ‘When you drive, where do you normally go?’”

 

 

The appellant then gave a description of where he normally drove at night. When asked if he had been to any of those places the previous night he said:

 

            “‘I may have, I can’t remember.’

 

            Thomson said, ‘What time did you go out last night?’

 

            He said, ‘I don’t remember. It could have been any time.’

 

            Thomson said, ‘It is important that you try and remember what time you went out and where you went to last night.’”

 

 

The appellant recollected that it was about 10 o’clock when he got home. He thought that it could have been about 8 o'clock when he went out. The interview continued:

 

 

“Thomson said: ‘Can you remember where you went last night?’

 

            The appellant responded ‘No.’

 

            Thomson said, ‘Do you remember speaking to or seeing anyone last night?’

 

            He said, ‘No, I don’t.’”

 

 

 

It would have been quite proper for the appellant to have refused to answer any questions that the police asked him. That is a fundamental right that is available to everyone. But the accused did not exercise that right. He had the benefit of the presence of his solicitor but chose to respond to the inquiries of Detectives Thompson and Jackson by saying that he was unable to recall any detail whatsoever of his movements in the relevant two hours of the preceding evening. The appellant is a highly intelligent man. That is apparent from many aspects of his evidence and conduct at trial. A perusal of the transcript of the trial also shows that he was a very competent cross-examiner, possessed of an excellent memory. It was open to the jury to conclude, as the Crown argued, that it was wholly inconsistent with his personality, character and ability that he was unable to recall his movements in the preceding evening.

 

It was submitted by the Crown that the appellant was fearful of giving an account of his movements during the night of the murder in case he had been seen by someone; he did not know how much the police already knew but it must have concerned him that they had questioned him so quickly. The Crown submitted that the only explanation for his failure on 11 January 1989 to account for his movements during 8.00 pm to 10.00 pm in the preceding evening was that any answer may have incriminated him.

 

Although there were no eye witnesses that placed the appellant in  Lawley Street during the night of the murder, there was some evidence pointing to the appellant having been there two nights earlier. The Crown led evidence from a Mrs Newcombe who lived in the same neighbourhood as the deceased. She gave evidence that in the evening of Sunday 8 January 1989, she had been walking in Lawley Street with her mother and daughter at about 8.30 or 9.00 pm. She said that she observed a car that was parked outside the house next door to the Winchester’s. At that stage, the appellant was represented by counsel and Mrs Newcombe was allowed to say, without objection, that as she passed the car, the person seated in the driver’s “moved to position himself so that he would not be seen”. Earlier, Mrs Newcombe had explained that she “felt uncomfortable about the car being positioned there”. As she returned home from her walk, she retraced her route and she noticed that the car was in the same position. She had intended to make a note of the registration number when she returned home but was distracted by a telephone call. Later, Mrs Newcombe was able to identify the car as a Mazda 626 sedan. As to its colour, she thought that it was “sort of a turquoisey-bluey-green”. In fact, the appellant owned and drove a metallic blue Mazda 626. Mrs Newcombe’s recollection of the registration number was YPQ-038; the appellant’s registration was YMP-028. Mrs Newcombe’s memory was deficient. YPQ-038 was the registration number of a cream Mazda 323 Hatchback owned by a Ms Betty Fitzgerald. During the weekend of 7 and 8 January 1989 that car was parked in a locked garage in Yarralumla. Nevertheless, the Crown relied on Mrs Newcombe’s identification of a Mazda 626 and the similarity between the letters and numbers of the appellant’s car registration and those recalled by the witness.

 

It is now necessary to turn to the evidence that dealt with the identification of the gunshot residue. Amongst the material that had been located by Mr Nelipa when he vacuumed the driveway and surrounding area at the murder scene, were a number of greenish particles and some other particles that were described as severely charred chopped disc propellant particles (“the chopped disc particles”). Mr Barnes subsequently analysed them and identified the greenish particles as partially burnt propellant particles of PMC.22 ammunition. Interestingly, the chopped disc particles were not consistent with PMC ammunition; they were however, consistent with other types of ammunition of which CCI and Stirling brands were two. If Mr Winchester was killed as a result of two bullet wounds, and if two PMC cartridge cases were found at the murder scene, and if partially burnt propellant particles of PMC.22 ammunition were found at the scene, how does one account for the chopped disc particles that were not consistent with PMC.22 ammunition?  The Crown’s answer to that question pointed another accusing finger in the direction of the appellant.

 

A cartridge case contains a primer and propellant. The primer is exploded by impact with the firing pin and burns at extremely high temperatures. It ignites the propellant which provides most of the energy that expels the bullet from the cartridge case and the barrel of the rifle. The propellant also burns at high temperatures. The primer produces hot gases that condense as they cool producing characteristic primer particles that are made up of one or more of the original components of the primer together with, on occasions, very small quantities of material from the bullet or the cartridge case. Primer particles are extremely small and can only be seen by using a scanning electron microscope. Invariably, some part of the propellant will not be consumed by combustion and these partially burnt particles will be left in the weapon and probably on articles in close proximity to the end of the barrel. Propellant particles are larger and particles from PMC.22 ammunition can be seen, with difficulty, by the naked eye.

 

Mr Barnes undertook a very extensive examination of the various ammunition types that were available in Australia in 1989. He analysed them both before and after firing for particular compounds, shape, colour and behaviour on firing. He found that of the 151 .22 ammunition types available in Australia, PMC was unique when all these factors were considered. Mr Barnes also visited the FBI laboratories in the United States of America and located a further 23 brands of ammunition which he analysed and included in his data base; all these could be distinguished from PMC.22 ammunition. The significance of Mr Barnes’s investigations was that the presence of the greenish particles in and about Mr Winchester’s car was consistent with Mr Winchester having been murdered by the use of PMC ammunition.

 

However, other propellant particles, namely, the chopped disc particles, had been recovered from the body of the deceased and from the interior of his car. The existence of these chopped disc particles did not necessarily mean that two brands of ammunition had been used in the commission of the crime. The explanation offered by the Crown for the presence of the second ammunition type was this:  Mr Klarenbeek had test fired the Ruger 10/22 rifle before he advertised it for sale on 31 December 1988. He had subsequently recovered some of the spent cartridge cases from that exercise. Three of the seven .22 cartridge cases that Mr Klarenbeek handed in to the police on 6 February 1989 were Stirling and CCI brands and one of them had been identified as having been fired by the same rifle that was used to kill Mr Winchester. Mr Barnes gave evidence that he had conducted investigations to ascertain whether the presence of the two propellant types at the scene resulted from some form of carry-over in the weapon itself. In other words, Mr Barnes investigated whether the chopped disc particles could be explained by their having been trapped in the gun from earlier firings and whether the severe charring occurred as a result of their exposure to the heat of subsequent shots. He used rifles fitted both with and without a silencer for these tests. He found that severe charring was only ever produced when a silencer was used. A silencer is fitted with baffles that muffle the sound. Those baffles collect debris, including propellant and primer particles, that may easily be dislodged by movement, such as shaking. As subsequent shots are fired, very hot gases pass over this matter causing it to be further burnt, producing characteristic severe charring. As each further shot is fired, some of these particles are ejected from the barrel. The conclusion that the Crown sought to establish was that the weapon that had fired the two PMC bullets had earlier and recently been used to fire CCI or Stirling bullets.

 

A search of the appellant’s Mazda motor vehicle and an analysis of its results confirmed the presence of primer particles that were consistent with PMC ammunition. The same particles were also found in Mr Winchester’s vehicle and around the area of both wounds. Propellant particles from PMC ammunition were also found in the appellant’s car, in Mr Winchester’s car and in the driveway around the car. Finally, chopped disc particles (not consistent with PMC ammunition) were in Mr Winchester’s hair and in both vehicles.

 

In addition to the evidence of Mr Barnes, the Crown also called a number of independent expert witnesses with respect to the identification of the gunshot residues. They were Mr Robin Keeley, the Principal Scientific Officer of the Analytical Chemistry Services Division of the UK Metropolitan Police Forensic Science Laboratory, Dr Ari Zeichner, the head of the Toolmarks and Materials Laboratory of the Division of Visual Identification and Forensic Science of the Israeli Police, Professor Schuel Zitrin, the head of the Israeli Police laboratory dealing with explosives identification and analysis and Mr Roger Martz, the Unit Chief of the Chemistry Toxicology Unit of the FBI Laboratory in Washington DC. These experts either agreed with Mr Barnes’ conclusions and methodology or, at least, did not challenge them.

 

The final aspect of the Crown case related to recordings of the appellant speaking and whispering to himself in his bedroom throughout 1990 and 1991 and to the transcripts of those recordings. The recordings had been obtained through the use of listening devices that had been installed in the appellant’s flat by the police. The transcripts had been made after enhanced copies of the tapes had been produced by Dr Hermann Kunzel and Dr Angelika Braun. Dr Kunzel was the head of the Speaker Identification and Tape Authentication Section of the German Federal Police. His associate was Dr Braun, a forensic phonetician.

 

The qualifications of these experts and the other experts in sound or phonetics were not challenged, nor were their experience and integrity.

 

The dispute at trial was limited to the words allegedly spoken by the appellant. If his words were as alleged by the Crown, they amounted, arguably, to significant admissions of guilt. If, on the other hand, they were as alleged by the appellant, they were  innocuous.

 

The Crown also retained the services of Dr Peter French of the United Kingdom to carry out an independent evaluation of the master tapes and the enhanced tapes. Dr French compiled transcripts from the tapes and examined and verified the transcripts that had been produced by Sergeant McQuillen and Constable Lawson, the police officers who spent literally thousands of hours listening to the tapes as part of their duties in electronic surveillance, and in the preparation of the transcripts.

 

The defence called Mr CMF Mills, a Forensic Audio Consultant from the United Kingdom. Mr Mills holds a Diploma in Electrical and Electronic Engineering. He is a member of the Professional Recording Studio Association, a member of the Forensic Science Society of the United Kingdom and a member of the British Academy of Experts and an accredited Law Society expert.

 

Mr Mills explained that the word “enhanced” meant, in general terms, “to use electronic equipment or some other means to improve the quality of the recordings and hopefully improve the intelligibility of the speech within those recordings.”

 

Mr Mills rated the quality of the tapes as “somewhere between extremely poor and poor”.

 

The defence also called Dr Andrew Butcher. At the time of giving his evidence he was the Foundation Professor of Communication Disorders and the head of the Department of Speech Pathology at Flinders University in South Australia, a position that he has held since 1993.

 

Asked to express an opinion on the quality of the tapes Dr Butcher said: “I’ve been transcribing tapes for over 25 years and I cannot remember recordings of worse quality that I’ve had to deal with”.

 

Set out below are the different versions of relevant parts of the transcripts upon which the Crown relied as demonstrating a consciousness of guilt.

 

The first version is that produced by police officers McQuillen and Lawson. Then follows Dr French’s transcription, Mr Mills’ transcription and finally Dr Butcher’s transcription. Although there are many differences in the four transcriptions the Crown claims that it can draw substantial support from the similarities. In the quoted passages that appear below, the parts that are in single brackets indicate probably what was said whilst those in double brackets indicate possibly that which was said. In each case dots represent words that cannot be deciphered.

 

Police Officers McQuillen and Lawson

 

            “You drove more slow. I cannot miss him. You drove more slowly to give - to give me a better chance. In fact, the situation was that I ran out of sight. It’s pathetic. And then even when you called the first night and I’ve missed you that was a very frustrating night and I had to go back again - the next night to kill him. The poor bugger. Then all of a sudden you’re dead. That keeps hold on me. So you go back the following night in the same car, same car, the same registration number, the same driver and you’re film crew’s the same and tried to set it up again. Finally on the second night you succeed. Honest, it’s like trying to shoot miracles, miracle that I haven’t lost it. It required about 50 takes before you finally got what you wanted. I mean about the only thing you didn’t do, you didn’t provide me with a bag full of stones. [Bed creak] Killed him.”

 

 

Dr P French

 

 

            “You drove more slow (I cannot miss him). You drove more slowly to give - to give me a better chance. In fact the situation was that I ran out of sight. (Its) pathetic and even then when you called the first night (and I’ve missed you) that was a very frustrating night and I had to go back again the next night to kill him the poor bugger. Then all of a sudden your dead. That keeps (hold/on) there. So you go back the following night in the same car, the same registration number, the same driver and your film crew’s the same and tried to set it up again. Finally on the second night you succeed. Honest, it was like trying to shoot miracles ... it required about fifty takes before you finally got what you wanted. I mean about the only thing you didn’t do, you didn’t provide me with a bag full of stones. [Bed creak]  Killed him.”

 

 

Mr CMF Mills

 

 

            “You drove more slowly to give that a chance. In fact the situation was that...(sight). Pathetic. And then even (after) you call...and that was a...(I'm telling you mate)...I had to (come) back on the (following) night (to kill) the poor bugger...and I was waiting for...So you came back the following night...the same...the same registration number...the same driver and you...(all) the same...and try to get them...(finally) somehow prophesied ...you...finally...done it. I know what its like to try to shoot some.......finally got what (it) wanted. I mean about the only thing you didn’t do, you didn’t provide me with a bag full of (something).”

 

 

Dr AR Butcher

 

 

            “(But) you...you’d give me a better chance. In fact the situation was (that)...out of sight. Pathetic. And then even when you called...and (set) it up...that was a very frustrating time and I had to come back on the following night (to the kill the poor) bugger. And I was waiting for the...to come. (Fucking)...So you go back the following night the same car, the same registration number, the same driver and you...’s the same and try to set it up again. (Finally), as prophesied you succeed. I know this is like (trying to shoot) ((the))...required about ([bang] takes) before you finally got what you wanted. I mean about the only thing you didn’t provide me with a bag full of stones.”

 

 

Another sample from the tapes upon which the Crown relied and the transcriptions of the various experts appears below.

 

Police Officers McQuilln and Lawson

 

            “He was the first man I ever killed. It was a beautiful thing. One of the most beautiful feelings you’ve ever known. Beautiful feelings...Its simple. At the end of your life you will never...[Water pipe noise].”

 

 

Dr P French

 

 

            “He was the (first) man. He was the first man I ever (killed)...One of the most beautiful feelings (in a long time)...It’ simple. At the end of your life you will never believe...it’s not only that [Water pipe noise.]”

 

 

Mr CMF Mills

 

 

            “He was the first man. He was the first man I ever (killed)...one of the most beautiful feelings in my (life). It’s simple. At the end of your life you will never ((forget))...not only that...I should ((not have killed)).”

 

 

Dr AR Butcher

 

“I should ((not have killed)).”

 

Before proceeding to a consideration of the grounds of appeal it is necessary to say something about the appellant’s legal representation during the course of the trial. It would not be an exaggeration to describe it as chaotic.

 

On the first day of the trial, 2 May 1995, Mr Williams QC appeared but only to announce that his instructions and those of his junior and his instructing solicitors had been withdrawn. The appellant sought an adjournment of the trial because he was unrepresented, saying that if the adjournment was not granted he would not take part in the proceedings. The appellant informed his Honour of his reasons for withdrawing those instructions. He said that police intimidation had been “condoned” by the Court; he claimed that the Court had refused to take contempt proceedings at his request against certain police officers and he claimed that Mr Williams had refused to conduct the defence in accordance with his instructions. The application for an adjournment was refused and the matter proceeded.

 

On 15 May 1995, the fifth day of the trial, Mr Williams QC appeared, informing the Court that he had, once again, been instructed to act on behalf of the appellant. He unsuccessfully sought an adjournment of the trial and a permanent stay of the proceedings. On the next day, shortly after the jury had been empanelled, Mr Williams’ instructions were again terminated and the appellant was, once more, without legal representation.

 

On 18 May 1995, the eighth day of the trial, Mr O’Donnell announced his appearance for the appellant but on 22 May (which was the next day of the trial), he advised the Court that he had withdrawn from the case. The appellant, however, made it clear that he had terminated Mr O’Donnell’s instructions because he had allegedly walked out of a conference.

 

On 22 May, Mr Peter Baird appeared for the appellant but on the same day he sought leave to withdraw.

 

On 31 May 1995, the fifteenth day of the trial, Mr O’Loughlin announced his appearance for the appellant, informing the Court that he would be led by Mr Terracini. He sought an adjournment until 12 June to enable him and Mr Terracini to read the brief and prepare the defence. His Honour refused that application, stating that it was his opinion that the appellant had become unrepresented through his own fault. His Honour’s rulings on this aspect of the trial have not been challenged on appeal.

 

The matter proceeded with Mr O’Loughlin appearing for the defence until 5 June when he was joined by Mr Terracini. From that date until 29 June, the thirtieth day of the trial, the appellant was represented by both counsel.

 

On 29 June the appellant terminated his counsel's instructions. Thereafter, Mr Terracini and Mr O’Loughlin moved in and out of the trial as their instructions were first withdrawn and then reinstated. It cannot be said that the appellant acted with justification in so frequently dismissing his lawyers. If he were justified in terminating their instructions, why then would he have re-engaged them on so many occasions?  Any suggestion that the answer to that question rests in an acknowledgment of fault by counsel would be ridiculed by the number of times their supposed incompetence or refusal to accept instructions allegedly justified their dismissal. This is apparent from the following timetable:

 

            Day 33             10 July 1995                Re-instructed

            Day 33             10 July 1995                Instructions Terminated

            Day 34             11 July 1995                Re-instructed

            Day 36             13 July 1995                Instructions Terminated

            Day 37             14 July 1995                Re-instructed

            Day 39             18 July 1995                Instructions Terminated

            Day 39             18 July 1995                Re-instructed

            Day 39             18 July 1995                Instructions Terminated

            Day 41             20 July 1995                Re-instructed

            Day 46             27 July 1995                Instructions Terminated

            Day 48             31 July 1995                Re-instructed

            Day 50               2 August 1995            Instructions Terminated

            Day 52               8 August 1995            Re-instructed

              -                     11 August 1995            Instructions Terminated

            Day 65             31 August 1995            Re-instructed

            Day 78             25 September 1995      Instructions Terminated

            Day 80               3 October 1995         Re-instructed

            Day 84             10 October 1995         Instructions Terminated

 

 

The circumstances under which Mr Terracini’s instructions were terminated for the last time on 10 October were quite astonishing. The appellant claimed (in the absence of the jury) that he had heard Mr Terracini have a verbal altercation with a person in the Courtroom shortly before the commencement of proceedings. He claimed that he heard Mr Terracini say “Don’t you stare at me like that you flea”. It would seem that this assertion was made by the appellant in the absence of counsel after Mr Terracini had informed the Court that all instructions had been terminated, although the transcript does not record the withdrawal of counsel. The appellant told the Court that when he inquired of him, Mr Terracini said that the other person was a police officer but that he refused to disclose his identity to the appellant. The appellant, when addressing his Honour, said that “... if my counsel is distracted by a police officer in this court moments before addressing the jury it becomes of interest to me against the background of numerous such incident [sic] going on over the last six years”.

 

Later the appellant said to his Honour that he was “determined to make an issue of it”. So it was that when Mr Terracini subsequently refused to name the officer, his instructions were terminated. It was for Mr Terracini - not for the appellant - to make an assessment of the situation; he was the person who had been involved in the altercation; he was the one best able to decide what (if any) action should be taken. As his Honour said, Mr Terracini was “an experienced, responsible member of the bar” who was “well aware of his duties to his client”. In an expression of confidence in counsel, his Honour added that he had no doubt that Mr Terracini would have been satisfied that the incident did not in any way operate to the prejudice of the appellant. Regrettably, the appellant would not accept the views of his Honour; he was prepared to see his murder trial proceed without the benefit of counsel if his counsel would not submit to his unreasonable demands.

 

As from 10 October, the appellant remained without legal representation for the balance of the trial. This summary, which has not included his many changes of lawyers during the period preceding the trial, is indicative of the appellant’s inability to work in harmony with his lawyers. It is not difficult to conclude that these many changes would have been disruptive to the trial, adding to the many difficulties confronting the trial judge and the jury in a very difficult and important case.

 

To all this must be added a reference to the behaviour of the appellant throughout the course of the trial. He made vile, foul-mouthed, vituperative comments addressed to his Honour and to the Crown Prosecutor which led to the trial judge having him removed from the Courtroom for part of the trial. He was placed in a separate room with two-way video-television linkage to the Courtroom. His Honour was able to supervise the sound control so that the volume could be turned down when the appellant’s abusive language warranted such action. No doubt that would have presented difficulties to the appellant but they were of his own making. His Honour’s decision to deal with the appellant in this fashion is not the subject of a specific ground of appeal. But it is necessary to refer to the circumstances of his lack of legal representation and to his behaviour as they are relevant when considering some of the grounds of appeal.

 

Some examples of the appellant’s behaviour extracted from the transcript are set out below. They indicate, among other things, that there were occasions when the appellant was invited by the trial judge to cross-examine a witness, only to be met with a tirade of abuse. They indicate also that, even when his counsel was present, the appellant was determined to present his case in the manner that he saw fit. His abusive conduct was not put to the jury as constituting some form of propensity evidence - nor should it have been. But it had a material effect on the trial in matters such a bail and the appellant’s removal from the Courtroom. The Crown put to the jury that the appellant’s credibility was a significant part of the case and that, for the purpose of assessing his credibility, the jury was entitled to have regard to a variety of matters, one of which was the manner in which the appellant behaved throughout the course of the trial. The defence was, for its part, entitled as it did to put that the appellant was an innocent man who had been “framed” by the police and whose outbursts in Court were those of an innocent man unjustly brought to trial. The defence also led evidence that the appellant was a kind man, not given to violence. It was put on the appellant’s behalf that his frustrations with the Public Service and the Police were momentary expressions of short-lived anger. These respective submissions of the Crown and the defence were proper submissions for a jury and it was for the jury to make such use of them as they thought appropriate. In the course of its deliberations the jury was therefore entitled to have regard to the manner in which the appellant had conducted himself throughout his trial for the purpose of their evaluation of all the evidence.

 

The following extracts from the transcript are selective but they give a reasonable indication of the appellant’s behaviour in the presence of the jury.

 

 

29 May 1995:

[Constable Connelly had just been called as a witness, and sworn:]

 

            “THE ACCUSED:       Stop judicial condonation of harassment.

 

            HIS HONOUR:           Please restrain yourself, Mr Eastman. You are doing yourself no good by behaving in this fashion in front of the jury. Carry on.

 

            MR ADAMS:              Yes.

 

                                                Name rank and station?...My name is Shane Connelly ---

 

            THE ACCUSED:         Stop judicial condonation of harassment.

 

            HIS HONOUR:           Mr Eastman, you must restrain yourself.

 

            THE ACCUSED:         Your Honour, I have restrained myself. I have been very patient and your Honour has not been prepared to address a matter. I have complained to you about the presence in court of a Sheriff’s Officer who has intimidated me and you have refused to take any action.

 

            HIS HONOUR:           I did not say I refused to take any action.

 

            THE ACCUSED:         I raised it ---

 

            HIS HONOUR:           I said I would deal with it at 1 pm ---”

 

 

 

The appellant raised continuously his complaint of harassment. He perceived, in the conduct of the police and the prison authorities a form of personal victimisation. His call to “Stop judicial condonation of harassment” was an oft-repeated response to a question from his Honour. Other examples of this conduct appear during the evidence of Dr Braun:

 

24 August 1995:

 

            “MR ADAMS:             Is your name Angelika Braun?

 

            THE ACCUSED:         Stop judicial condonation of harassment by Sergeant Baldwin.”

 

 

This reaction was repeated a short time later.

 

 

            “HIS HONOUR:          Mr Eastman, do you have any questions of Dr Braun?

 

            THE ACCUSED:         I have a comment. Stop harassment by Sergeant Baldwin.

 

            HIS HONOUR:           Please, do you have any questions of Dr Braun?

 

            THE ACCUSED:         Charge Sergeant Baldwin with contempt of court.

 

            MR ADAMS:              I think that is a no, your Honour.”

 

 

More extreme examples of his behaviour were as follows:

 

18 July 1995:

 

            “HIS HONOUR:          My duty is to apply the law, I was - I am bound by my ---

 

            THE ACCUSED:         You would not know the law from a bull’s foot. You are ---

 

            HIS HONOUR:           I was bound ---

 

            THE ACCUSED:         You are a silly old man, and a rather ---

 

            HIS HONOUR:           Yes, very well. You may leave ---

 

            THE ACCUSED:         --- a rather nasty old man as well.”

 

 

24 August 1995:

 

            “MR ADAMS:             There is a specific list.

 

            THE ACCUSED:         Listen, shut up, fat arse. Shut up, you stupid fat slob.

 

            HIS HONOUR:           Look, this has got to stop. Turn the sound off. This has just got to stop. Now, you carry on with your evidence-in-chief.”

 

and

 

            “HIS HONOUR:          Yes. I consider it is relevant. There has never been any prior objection to it and I propose to allow it.

 

            THE ACCUSED:         Well, you have got an objection now.

 

            HIS HONOUR:           Yes, and I have just over-ruled it.

 

            THE ACCUSED:         You corrupt shit.”

 

and

 

            “HIS HONOUR:          Well, now, do you have any questions by way of cross-examination of the witness?

 

            THE ACCUSED:         Yes, I would like to ask your Honour why you are such a corrupt shit.”

 

and

 

            “THE ACCUSED:       Yes, I wish to ask your Honour why you are such a lying cunt.

 

            HIS HONOUR:           Yes, well, I will treat that as no. You are excused, constable.”

 

 

and

 

            “HIS HONOUR:          Very well. Do you wish to ask the constable any questions?

 

            THE ACCUSED:         Yes, your Honour. I was wondering whether all New South Wales judges are lying corrupt shits.

 

            HIS HONOUR:           I will prove [sic] that as no. You are excused, constable.”

 

 

5 September 1995:

 

 

            “MR TERRACINI:      Well, it is a difficult task.

 

            HIS HONOUR:           Well, it is not difficult. It is no different from any other case. And the Crown objects, I give a ruling and then an attempt is merely made to circumvent the ruling, which imposes a really quite intolerable strain on me, because I really do not feel that I should have to attempt---

 

            THE WITNESS:          You poor little thing. Dear, oh dear.”

 

and

 

            “THE WITNESS:         ... Well, I do not intend to be bullied to that extent. I have my rights ---

 

            MR TERRACINI:        It is now 4.05, your Honour.

 

            THE WITNESS:          --- and I am not going to continue giving evidence under duress. Now, either you put a stop to it, or I interrupt my evidence until you are prepared to do it - your duty as a judge to stop of this sort thuggery, and they are getting the clear message that it's okay with you.

 

            MR TERRACINI:        Mr Eastman, if I could just mention this. It is now five past four, your Honour, we could simply raise these matters with your Honour ---

 

            HIS HONOUR:           I think that we should carry on until 4.15, dealing with the accused’s evidence relating to the trial.

 

            MR TERRACINI:        Certainly.”

 

 

The appellant’s Amended Notice of Appeal contained thirteen grounds of appeal. Ground No 8 was abandoned during the course of the appeal. In ground No 9 it was alleged that the “conviction is unsafe and unsatisfactory”. It will not be necessary to give individual consideration to this ground of appeal. As Mr James QC, counsel for the appellant acknowledged, the appellant was not asserting that the verdict was unsafe or satisfactory in the sense that the evidence was insufficient to sustain a verdict of “guilty” or that the jury should not have brought in a conviction on the evidence. Rather, the submission was advanced upon the premise that the trial had miscarried because of the errors that are the subject of discrete reference in the other grounds of appeal. The answer to the question, whether the verdict was unsafe or unsatisfactory, will therefore be considered and reflected in the answers to the remaining grounds of appeal.

 

During the hearing of the appeal, at a time when the appellant was representing himself, he also sought and obtained leave to argue that the trial judge erred in ruling that the documents described as MFI 3A and 3B were not admissible on the ground of public interest immunity. Although he did not formulate it in express terms, either as an amendment to an existing ground or as an additional ground, it will be convenient to deal with this as an amendment to ground No 3. The grounds, therefore, with this additional amendment, were as follows:

 

             “1.       The trial procedurally miscarried due to a combination of factors, including:

 

                        (a)        the trial judge erred in revoking the appellant’s bail;

 

                        (b)        the trial judge erred in subsequently declining to grant bail;

 

                        (c)        the Crown Prosecutor’s address in respect of the appellant’s conduct during the trial;

 

                        (d)        the failure of the trial judge to direct the jury regarding the appellant’s conduct during the trial.

 

              2.       The trial judge erred in permitting cross-examination of the appellant in relation to MFI 256-260 and other material tending to disclose bad character.

 

              3.       The trial judge erred in ruling that MFI 23, and MFI 3A and 3B should not be adduced as evidence under s 130 Evidence Act 1995 (Cth).

 

 

              4.       The trial judge erred in refusing leave to the defence to re-open the defence case to call a number of witnesses (Britten, McDonald, Nelipa and Ryan).

 

 

                        (Initially this ground of appeal was abandoned by counsel. Later, however, leave was granted at the request of the appellant, to restore it but limited to the witnesses McDonald and Nelipa).

 

              5.       The trial judge erred in directing the jury that evidence that Louis Klarenbeek had said to Karl Pattenden that he could not recognise anybody from the photographs in Exhibit 73 could not be regarded as evidence of the truth of the words uttered by Klarenbeek.

 

              6.       The trial judge erred in his directions to the jury regarding the failure of the defence to cross-examine certain prosecution witnesses.

 

              7.       The trial judge erred in the directions he gave to the jury regarding identification and description evidence.

 

              8.       The trial judge erred in directing the jury as a matter of law that the evidence suggesting Mr MacIntyre might have committed the murder could not amount to a reasonable possibility negating the guilt of the appellant.

 

 

                        (This ground was abandoned).

 

              9.       The conviction is unsafe and unsatisfactory.

 

             10.      The absence of fresh evidence at the trial resulted in a miscarriage of justice.

 

 

             11.      The trial judge erred in admitting evidence of enhanced tape recordings alleged transcripts of conversation by the Appellant.

 

             12.      The trial judge erred in admitting the identification evidence of Mr Webb.

 

             13.      The inability of the Appellant to adequately prepare his defence and instruct Counsel at trial by reason of actions by the Prosecution resulted in miscarriage of justice.”

 

 

We now deal with each of these grounds.

 

 

Grounds 1(a) and 1(b)

By these grounds the appellant complains that the trial procedurally miscarried due to a combination of factors including (a) that the trial judge erred in revoking the appellant’s bail and (b) that the trial judge erred in subsequently declining to grant bail.

 

The appellant was granted bail by Higgins J while on remand awaiting the commencement of his trial for murder. That bail expired on 2 May 1995. Thereafter the trial judge granted the appellant bail from day to day to cover the period of the adjournments between sitting days.

 

On 17 May 1995 at the commencement of proceedings the appellant sought to have the conditions of his bail varied. These conditions required his attendance at court fifteen minutes prior to the commencement of proceedings and that he remain in court for fifteen minutes after the proceedings had concluded. He submitted that such conditions were discriminatory. His Honour advised the appellant that all matters relating to his bail were and would be dealt with in the absence of the jury and that the condition was to prevent accidental contact occurring between the appellant and any juror in the precincts of the Court. His Honour further advised the appellant that the existing bail arrangements were unknown to the jury and nothing adverse to him could be inferred from the conditions. The application was left on the basis that his Honour would give consideration to it. At the conclusion of the proceedings the trial judge extended bail until fifteen minutes before the commencement of proceedings on the following day. The appellant again submitted that the conditions were discriminatory because they were not applied to others standing trial in the ACT Supreme Court. However, the trial judge declined to vary the order.

 

On 23 May 1995 at the commencement of proceedings the appellant again submitted to the trial judge that the bail conditions imposed upon him were discriminatory. He made the further submission that they were impeding his ability to obtain further legal representation in that he was not able to make contact with members of the legal profession and comply with the bail conditions. The trial judge advised the appellant that he would consider the matter. When an application for an adjournment was refused, the appellant again requested that the trial judge disqualify himself for apparent bias adding as a ground that the bail arrangements were discriminatory. His Honour refused to do so.

 

On 29 May 1995 when Mr Connelly was called to the stand, the appellant began to chant “Stop judicial condonation of harassment”. This occurred in the presence of the jury. His Honour asked the appellant to restrain himself which the appellant failed to do. After an exchange between the trial judge and the appellant as to the latter’s claim that the trial judge had refused to take any action against a Sheriff’s officer who the appellant alleged had intimidated him, the jury withdrew. Thereupon his Honour warned the appellant in the following terms:

 

“HIS HONOUR:  Mr Eastman, if you continue to operate in this fashion, I will revoke whatever bail rights you have. I will have you detained in the room underneath the court, which has a video facility, and you can watch the proceedings from down there, and that is how the trial will proceed. You are doing yourself no good by behaving like this in front of the jury, and you are impeding the orderly progression of this court.”

 

 

 

After a further exchange between the trial judge and the appellant, the Sheriff’s officer voluntarily agreed to be replaced by another officer. When the jury returned his Honour directed the jury as follows:

 

“HIS HONOUR:  Members of the jury, whilst you were out one of the sheriff’s officers has asked me, of his own volition, to be replaced in this court and I have granted that request. I would ask you just to dismiss the whole incident from your minds and focus on the trial.”

 

 

On the resumption of the trial on 29 June 1995 the appellant stated to the trial judge that at 1.15 am that morning he had been menaced at an automatic teller machine by a man called Nugent who had previoiusly assaulted him and threatened to kill him in April 1995 when both were resident at the Belconnen Remand Centre. The appellant stated that the AFP would not take action to protect him and asserted that his Honour had a duty to take action for the appellant’s safety. In that context the following exchange occurred:

 

“HIS HONOUR:  Well, if you are concerned about your safety we can revoke your bail and then you can go into custody and you will not be standing at teller machines at half past one in the morning.

 

THE ACCUSED:  Well, that is - - -

 

HIS HONOUR:  Mr Eastman, I have listened to you - - -

 

THE ACCUSED:  That is really an - that is an asinine remark, really. I mean you - - -

 

HIS HONOUR:  Mr Eastman, you - please listen to - - -

 

THE ACCUSED:  You say that I have been threatened therefore I should be punished - - -

 

HIS HONOUR:  You have your rights as a citizen of this Territory to - - -

 

THE ACCUSED:  And you have your duties.

 

HIS HONOUR:  Yes, I know what my duties are - - -

 

THE ACCUSED:  And I have complained to the police, as you have been told. Now, like - I want to put it quite clearly on the record because your Honour is treating this in a flippant matter, no let it be - - -

 

HIS HONOUR:  I am not dealing in a flippant matter - - -

 

THE ACCUSED:  Let it be recorded that if I suffer any injury from Mr Nugent at any stage in the future I will be holding you criminally and legally responsible.

 

HIS HONOUR:  Yes.

 

THE ACCUSED:  Okay.

 

HIS HONOUR:  Well, thank you, that is noted.

 

THE ACCUSED:  Okay, good.

 

HIS HONOUR:  Would you bring - - -

 

THE ACCUSED:  And in the light of that - in light of your very obvious bias displayed by that ruling I make a renewed request for your disqualification.

 

HIS HONOUR:  Yes.

 

THE ACCUSED:  And unlike the way in which you suggested to Mr Terracini that such applications can be dealt with a week later the - there are numerous precedents and authorities to show that applications for disqualification should be made immediately that the person has an inkling that the judge may be biased and that the judge should dispose of the matter before proceeding in the hearing. You cannot say we will have it - - -

 

HIS HONOUR:  Well, I am disposing of this now. You have made the application and it is rejected.”

 

 

Later in the morning of 29 June 1995 at the conclusion of the evidence-in-chief of the witness Mr Marcel Kors, the appellant was asked whether he had any questions of the witness. The following exchange took place in the presence of the jury:

 

“THE ACCUSED:  In view of your Honour’s continuing condonation of police harassment and your refusal to make any order whatsoever, prohibiting illegal police bugging of my conferences with lawyers, it is quite obviously impossible - and your Honour knows this - to ask any questions of the witness and I submit that your Honour is conducting the trial in a way which is manifestly unfair to the accused.

 

HIS HONOUR:  If you keep on making statements like that, that are supported by no evidence, but seeking to get publicity as a result of them and seeking to influence the jury, I will take steps which are within my power to stop you. Now, please resume your seat - - -

 

THE ACCUSED:  Is your Honour threatening me?

 

HIS HONOUR:  You heard what I said.

 

THE ACCUSED:  Because your Honour makes reflections in front of the jury all the time. When Mr Terracini was cross-examining a witness you said, ‘I think you’ve squeezed enough juice out of that lemon’, and you were clearly trying to send a message to the jury that my counsel’s proper cross-examination of that witness was flogging a dead horse and had no merit. You - - -

 

HIS HONOUR:  I am sending two messages to you.

 

THE ACCUSED:  You were trying - - -

 

HIS HONOUR:  Just listen to me.

 

THE ACCUSED:  You were trying to influence the jury against me and against my counsel.

 

HIS HONOUR:  Members of the jury would [sic] mind retiring.”

 

In the absence of the jury the trial judge warned the appellant that his conduct was disruptive of the trial and that if the appellant did not desist from deliberately disrupting the trial he would have the appellant taken down into a room with a video link to the Courtroom.

 

After a further exchange between the trial judge and the appellant the following occurred:

 

“HIS HONOUR:  I am asking you, are you resuming your seat or are you going to persist in this?

 

THE ACCUSED:  I am not persisting in anything, your Honour. I am not showing any improper defiance to the court.

 

HIS HONOUR:  You are disrupting the trial.

 

THE ACCUSED:  I am not seeking to defy the court, I am a person genuinely concerned for my safety and I am appealing to your Honour for some protection, because I believe the Australian Federal Police have deprived me of that protection and if I get none from your Honour I may be in physical danger. That is the matter that I put to your Honour.

 

HIS HONOUR:  All right, that is it, is it?

 

THE ACCUSED:  So, what is your Honour’s response to that?

 

HIS HONOUR:  My response is I do not propose to do anything about what you are complaining about. I want to proceed with this trial, and if you continue to disrupt it you will be removed. That is my response.

 

THE ACCUSED:  So then, if I leave the court, or if I leave the office late tonight, I am in a situation where I am deprived of the normal protection of the average citizen from the Australian Federal Police. That is quite clear. I am deprived of any protection of this court. This individual has made a threat to kill, has committed an assault, and then has made a further menacing - - -

 

HIS HONOUR:  Are you going to continue with this?

 

THE ACCUSED:  - - - approach in the early hours of the morning.

 

HIS HONOUR:  Officers, will you take the accused down to the room underneath the court. His bail is revoked and he is to remain there for the remainder of certainly today.”

 

 

The appellant was placed in the separate video room. Upon the resumption of the proceedings the trial judge directed the jury as to the morning’s events and the absence of the appellant in the following terms:

 

“HIS HONOUR:  Members of the jury. I am again sorry for that delay. In the light of events which transpired this morning I have exercised my powers to have the accused placed in a room below the court which has the benefit of closed circuit television. He has a view of the courtroom and can see and hear everything that occurs. The direction which I give to you in the strongest possible terms is that for the purposes of the task which you are performing in this case, which I have mentioned to you so many times before, of deciding whether the Crown has or has not proved beyond reasonable doubt the guilt of the accused, you will totally disregard anything that happened this morning or that this procedure is taking place and draw no inferences adverse to the accused. Thank you. Yes, Mr Crown.”

 

 

At the conclusion of the evidence for the day the Crown opposed the restoration of bail for the appellant. After hearing submissions from both the Crown and the appellant as to the matters specified in s.22 of the Bail Act 1992 (ACT) his Honour confirmed his earlier revocation of bail.

 

The appellant sought leave to appeal from the refusal of the trial judge to renew his bail. That application was heard by a Full Court of this Court (Black CJ, Sheppard and Beaumont JJ) on 3 and 4 July 1995, together with other matters in respect of which the appellant was seeking leave to appeal. The appellant on the application for leave to appeal submitted that the trial judge had based the decision to refuse bail on the ground of the appellant’s disruptive conduct. He submitted that was a matter to be dealt with in accordance with the principles relating to contempt of court and was not a matter within the exclusive criteria regarding the grant of bail set out in s.22(1) of the Bail Act.

 

On 7 July 1995 the Full Court refused leave to appeal being of the view that the trial judge “...was basing his decision not upon the disruption as such but upon the disruption as a factor which he considered to be relevant to the criteria in s.22(1)(a).”

 

On 10 July 1995 the appellant was again represented by Mr Terracini. On his counsel’s application the appellant was permitted to return to the Courtroom. At the close of the evidence on that day Mr Terracini again raised the question of bail for the appellant. The appellant was given leave by the trial judge to bring the application on notice returnable on 14 July 1995. Mr Terracini then sought to have the trial adjourned until an application for special leave to appeal from the Full Court orders to the High Court of Australia was heard. In the course of the trial judge refusing the application the appellant withdrew the instructions of his counsel and himself addressed the court on why the adjournment should be granted. The application was refused.

 

On the resumption of the trial on the following day the appellant was again represented by Mr O’Loughlin and Mr Burgess of counsel. During the course of the morning Mr O’Loughlin’s instructions were withdrawn by the appellant and shortly thereafter the instructions of Mr Burgess were withdrawn.

 

On 14 July 1995 Mr O’Loughlin again appeared for the appellant and the bail application was adjourned to 21 July 1995.

 

After hearing evidence and the submissions of counsel for the appellant and the Crown and after addressing the relevant criteria contained in s.22(1) of the Bail Act, the trial judge refused bail. In his lengthy reasons he concluded :

 

“I have given very anxious consideration to all the criteria in section 22 and specifically I have reached the conclusion that there is for the reasons which I have already outlined a risk of the accused not continuing to appear in court if he were granted bail.

 

When I add to that the seriousness of the alleged offence and the circumstances under which it is alleged to have been committed, it seems to me that an overwhelming case is made for the refusal of bail. Any countervailing factors are completely submerged by the weight of those significant factors to which I have just made reference. I have, as I have already indicated, been circumspect in the way in which I have expressed these reasons, such circumspection being dictated by the stage at which this trial has reached.

 

I have a deep conviction that the accused should remain in custody and for the reasons I have given, the application for bail is refused.”

 

 

On this appeal the appellant in his written outline of argument submitted that the trial judge erred in revoking bail and in ordering that the appellant be placed in the video room. It was submitted that the trial judge thereby breached the fundamental requirement of a fair trial that the accused be offered a real opportunity to be heard and to confront his accuser. Further, it was submitted in argument that the revocation of bail was used by the trial judge as a means of coercing the appellant into stopping his protests which was an improper basis to revoke or refuse bail. Courtroom conduct, it was submitted, was properly to be controlled by dealing with a disruptive person for contempt. These latter submissions substantially repeat the submissions made to the Full Court of this Court on the application for leave to appeal from the refusal to grant bail which was refused.

 

The right of an accused to be present on his or her trial to hear the evidence and to confront his or her accuser while a paramount consideration is not without qualification and the means by which it is exercised is subject to the control of the trial judge. In R v Vernell [1953] VLR 590 (FC), Martin and O’Bryan JJ said at 596 - 597:

 

“An accused person must be given every opportunity to hear all that is alleged against him, to test any evidence by cross-examination, either by counsel or himself, to put his case and address the jury;  but if he shows, by his conduct, that not only does he not desire to avail himself of such opportunity but he is determined that the jury shall not hear the evidence against him and that the orderly procedure of a trial is not to be permitted to function, then he voluntarily abandons his rights, and it is essential that the presiding Judge have power to see that justice is not frustrated and brought to nothing by his contumacious behaviour.

 

Of course, removal of an accused person from the Court in which he is to be tried should only be ordered when all other means of ensuring decent behaviour on his part have failed. As Sir James Stephen wrote, in his note to Article 302 already quoted, ‘ ... it is obvious that in capital cases, or indeed, in any trial involving severe punishment, almost any measures, short of removing the prisoner, should be resorted to.’”

 

 

In R v McHardie and Danielson [1983] 2 NSWLR 733 (CCA) the Court (Begg, Lee and Cantor JJ) said at 739:

 

“It should also be observed that when the trial starts, the procedure of a normal criminal jury trial provides for the presentation of the Crown case in the presence and hearing of the accused, and includes the right of the accused to test the evidence by cross-examination, either by himself, or by his legal representative. It also includes the right to give evidence (or to make a statement), the right to call evidence, and the right, either by himself or his counsel, to address the jury. We think it correct to describe these procedural steps as ‘rights’, which may or may not be exercised by the accused at his option. The non-exercise of any of the accused’s rights does not vitiate the trial.

 

The accused person has no ‘right’ to be absent from his trial - subject to cases of necessity (such as illness, where the interests of fairness and justice may require the trial either to be delayed or discontinued). Conversely, the accused person has a right to be present at his trial, subject to his conduct. It seems clearly established by authorities (as it is by commonsense) that if the accused person behaves intentionally to make the continuation of the trial impossible, and if such conduct is found by the trial judge to have that effect, he may be removed from the court.”

 

 

In our view the correctness of the decision of the trial judge to order the removal of the appellant to another room is to be tested by these statements of principle. The appellant, on a review of the transcript, wilfully engaged in a course of conduct which was disruptive of the trial. He had been warned by the trial judge from the early days of the trial that his conduct, including abusive outbursts and refusals to accept the rulings of the trial judge, was unacceptable. Specifically the appellant was warned on 29 May 1995 that his chanting was impeding the orderly progression of the trial and if the appellant did not desist he was at risk of being removed to a room underneath the Court with a video facility. Thus the appellant was aware that he was at risk of being dealt with in that manner if he persisted in such disruptive conduct.

 

In our view on 29 June 1995 the conduct of the appellant was such that his Honour in the exercise of his discretion was properly entitled to take the course which he did. He had until that time given the appellant more than considerable latitude in the way in which he had conducted himself. He had more than adequately warned the appellant that his conduct was unacceptable and not in the appellant’s own best interests. The measures taken by the trial judge impeded only so far as was necessary the appellant’s opportunity to hear that which was alleged against him and to conduct his defence.

 

For so long as he was in the other room he remained able to participate in his trial by video link. During periods when he did not engage in disruptive behaviour after 29 June 1995 he was present in Court. Thus his absence from the Courtroom only occurred for such periods as his conduct in Court justified his removal. Even then his ability to effectively participate in his trial was preserved by the video link. In the course he adopted the trial judge did not deny to the appellant a fair trial. The direction given by the trial judge to the jury upon its return to the Courtroom to explain the absence of the appellant, that they should ignore the events of the morning and draw no inferences adverse to the appellant, in our view was a proper and sufficient direction.

 

Having regard to the manner in which bail was being granted at the conclusion of each day’s proceedings until a fixed time on the next sitting day of the trial, it is open to question whether or not the appellant was in fact at liberty on bail at the time the trial judge directed that the appellant be taken to the room with the video link. The statement of the trial judge on 23 May 1995 that he would “revoke whatever bail rights you have” may indicate that the revocation of bail by his Honour at this time was done out of an abundance of caution having regard to any bail rights which the appellant may have had. In our view nothing turns on the point as the direction and purported revocation did not occur in the presence of the jury and the question of bail was not canvassed by his Honour in his direction to the jury on its return.

 

The reasons of the trial judge for the refusal of bail on 29 June 1996 indicate that his Honour had formed the opinion that the circumstances of the appellant, including his frame of mind and attitude and the likely need to keep the appellant in a room separate from the Court-room, had so changed as to make his past conduct in appearing at court when required less persuasive as an indication that he would do so in the future. The refusal to grant fresh bail was not used as a coercive weapon to control the conduct of the appellant during the trial. Rather, the need to detain the appellant in a room separate from the Courtroom because of his disruptive conduct was treated by the trial judge as a circumstance likely to adversely effect the appellant’s resolve to attend his trial in the future. This was a relevant circumstance under s.22(1)(a) of the Bail Act. We see no reason to depart from the view of the Full Court of this Court, which refused leave to appeal from the refusal to grant bail, that no miscarriage of the discretion to grant or refuse bail on 29 June 1995 occurred.

 

The appellant made no submission that the trial judge was in error in his refusal on 21 July 1995 to grant bail. A consideration of his Honour’s reasons demonstrated that he limited his consideration to the relevant matters of inquiry raised by s.22(1) of the Bail Act and that his decision on the material before him and for the reasons he gave was within the range of a proper exercise of discretionary judgment to grant or refuse bail.

 

Grounds 1(a) and 1(b) are without substance.

 

Grounds 1(c) and (d) and Ground 13

These grounds complain that the trial procedurally miscarried due to a combination of factors, including the Crown Prosecutor’s address in respect of the appellant’s conduct during the trial, and the failure of the trial judge to direct the jury regarding the appellant’s conduct during the trial.

 

Ground 13 is related to the matters raised in Ground 1, and it is convenient to deal with it at this stage. Ground 13 complains that the inability of the appellant to adequately prepare his defence and instruct his counsel at trial by reason of actions by the Prosecution resulted in a miscarriage of justice.

 

Detective Sergeant Jackson was cross-examined by the appellant. During that cross-examination it was put to the witness, very firmly, that the police had deliberately and provocatively engaged in a campaign of harassment of the appellant. Mr Jackson agreed that he was aware that there had been earlier allegations of harassment by the appellant - during the Coronial Inquest for example. However Mr Jackson denied that he, or any other police officers to his knowledge, had engaged in any such campaign. When pressed to explain why the police had placed the appellant under surveillance during the identification exercise when Mr Reid approached the appellant at the Jolimont Centre, Mr Jackson replied:

 

            “I did consider you, whilst I was surveilling you, to be a threat to the public ...”

 

 

 

It would seem that this answer might have inflamed the appellant for he pursued the subject vigorously despite attempts from his Honour to persuade him that it might not be in his best interests to take the matter further. But the appellant was determined. He said:

 

            “Right. You’ve said, haven’t you officer, that in relation to your experience in this investigation, you allegedly had formed the impression that I was a threat to the general public, is that what you are saying?...Yes.

 

            In fact, you did not have a scrap of evidence for that proposition did you?...That’s incorrect, I had access to evidence which allowed me to form my belief of the nature of the risk to [sic] which you posed.”

 

 

As the appellant delved deeper into the subject, Mr Jackson ultimately revealed that a Dr Rod Milton, a consulting clinical psychiatrist, had been retained by the police to advise them generally in respect of the appellant, his character, and whether he posed a threat to the community. This advice had been tendered by Dr Milton on the basis of information that the police supplied to him but without the benefit of any form of personal consultation with the appellant. The information upon which Dr Milton relied in expressing his opinions about the appellant included such matters as the transcript of proceedings in the AAT in 1980 when the appellant applied to be superannuated, the statements of various witnesses dealing with conduct of the appellant that Dr Milton described as “significant acts of aggression and abnormal behaviour”, and tape recordings that had been made as a result of the installation of listening devices in the appellant’s flat.

 

In all, Dr Milton produced thirteen reports between February 1989 and September 1992. Mr Ninness also gave evidence with respect to the involvement of Dr Milton. He denied that surveillance of the appellant was conducted for the purpose of intimidating or harassing him. He said the appellant had been placed under surveillance from 13 January 1989 until 7 August 1990, and on two or three later occasions for short periods in 1992. He said:

 

            “Surveillance was placed on the accused to monitor his movements in an effort to possibly link him with evidence we believed in his possession would link him to the Winchester murder investigation, and much later it was put on for the purposes, or maintained for the purposes of security.”

 

 

 

Mr Ninness confirmed that he had read Dr Milton’s reports and that in “considering the nature and extent of appropriate surveillance” he had regard to the contents of these reports.

 

The Crown supplied a copy of the Milton reports to the appellant either on 17 August 1995, the day when their existence was disclosed by Mr Jackson, or the following day. In any event it was some three months or so after the trial began. At no stage did the Crown seek to rely on any part of the reports as part of the Crown case, and the reports were not admitted into evidence at the trial. These reports contained material that was highly prejudicial to the appellant in that they expressed the opinions of the author on such matters as the appellant’s stability.

 

Some of the more prejudicial statements appearing in the reports are:

 

 

            •           “The evidence presented at the Tribunal established beyond doubt that Eastman suffered from a paranoid disorder, and it is largely academic whether this was a psychosis characterised by delusions, or simply a severe form of the paranoid personality. I think the latter more likely; but the nett result is similar, with a tendency to react towards others with great suspicion, to feel entitled to use aggression and violence against them in furtherance of his aims and wishes, and to engage in endless efforts to prove himself right. I believe there was an essential similarity between the incident in which Eastman was carpeted at work for leaking information to the press, and that in which he was interviewed by Mr Winchester in the presence of the Shadow Attorney-General. It appears that during this interview Eastman became aggressive and was firmly put in his place by Mr Winchester and that there was considerable resentment at the end of the interview. Eastman refused to shake Mr Winchester’s hand on parting.” (Report of 20 February 1989).

 

 

            •           “I am advised that, in addition to maintaining surveillance of Eastman’s movements, electronic surveillance of his flat has been carried out for some time and that he speaks aloud and at length when no one else is present in the flat. I note that he lives an even more isolated existence than previously, having ended the association with the man to whom I referred in paragraph 53 of my earlier report. He no longer visits prostitutes.” (Report of 15 January 1990).

 

 

            •           “I remain largely of the opinion expressed in my earlier report, i.e. that Mr Eastman manifests at the very least a severe form of the condition as paranoid personality and is extremely dangerous in consequence. He continues to have plenty of drive and energy.

 

                        He would have been fully capable of killing Mr Winchester despite, as far as I am aware, an absence of such severely violent acts in his past history.” (Report of 15 January 1990).

 

 

            •           “The tapes indicated a further decline in Mr Eastman’s emotional state. He more rapidly becomes angry and abusive now, and seems to have less ability to contain himself that he once did. In particular, I noted that he was extremely abusive and obscene in his response to one telephonist who did not meet with his approval.

 

                        In our discussion you mentioned he assaulted a woman recently on very minor provocation, knowing at the time that he was under surveillance. He has made efforts to trap members of the surveillance team, and on a couple of occasions has thrown large stones through the windscreens of surveillance cars.

 

                        Some of the tapes have been subjected to an intensification process which reduces background noise and so makes the signal clearer. One of these contained the voice of Eastman speaking in a whisper about someone being the first person he had ever killed and what a wonderful experience this was; this was consistent with his own description of his elevated mood when he had intercourse with a prostitute some hours after Mr Winchester was killed. Another referred to him having training on the ‘Ruger’”. (Report of 20 June 1990)

 

 

            •           “Mr Eastman has remained aggressive and dangerous throughout the time I have been advising you about him. Indeed, his life is centred on conflict with others, and seeking justice and satisfaction as he perceives it. Others are always in the wrong and he is always in the right. He has never once admitted to being at fault himself.” (Report of 26 January 1992)

 

 

            •           “Mr Eastman suffers from a serious emotional disorder and it is this which underlies his aggression and hostility. His disorder is sufficiently severe as to be likely to qualify for a defence of diminished responsibility were he to face trial for Mr Winchester’s murder. The late Dr Macdonald, who treated David Eastman for a long while, considered that Mr Eastman would eventually require to be placed in an institution because of mental illness.” (Report of 26 January 1992)

 

 

 

These extracts from the psychiatric reports are representative of the ongoing assessments that were made by Dr Milton. They repetitively referred to the appellant as being “dangerous”. That was the reason for the regular recommendations that the appellant be kept under surveillance.

 

On the other hand, Dr Milton’s reports also commented on how Dr Milton thought the appellant might react in various circumstances. For example, in his report of 15 January 1990, Dr Milton expressed the opinion that if the appellant was aware that he was under surveillance by the police, it would be likely to cause him to feel “massive outrage”. It was common ground that the appellant knew that he was under surveillance and it was common ground that the police knew that the appellant  knew this fact.

 

Whilst the appellant, in the course of submissions on appeal, rejected most of Dr Milton’s assessments about him and his alleged disorders, he sought to rely on what the doctor had said would be his reaction to surveillance. It was submitted by the appellant that the police, knowing of the contents of Dr Milton’s reports, knowingly participated in a deliberate campaign of harassment, confident that it would have a destabilising effect on the appellant. It was further claimed that it could be inferred from the reports that Dr Milton was of the opinion that the appellant was a person who was susceptible to disruption and stress and that disruption and stress would be the consequences of open surveillance.

 

This argument progressed to the point where it was submitted that there had been an abuse of process that warranted the intervention of this Court. The abuse was said to arise from the deliberate conduct of the investigating authorities in placing the appellant under surveillance in such a manner that the appellant would be aware of it. The police knew that surveillance would place the appellant under such stress that he would not be able to participate properly in the presentation of his defence. It was also claimed that the appellant’s stress explained his behaviour during the course of the trial. This behaviour, which his counsel conceded had been abusive and obnoxious, was said to be a product of that “massive outrage” to which Dr Milton had referred. The appellant’s complaint concluded with the assertion that the abuse of process had been compounded by the Crown in its closing address. The Crown knew of the contents of Dr Milton’s report and the effect that surveillance would have on the appellant. Yet knowing of these matters, it was highly critical in its closing address to the jury of the appellant’s conduct throughout the trial. Finally, it was submitted that his Honour failed to correct these errors in his summing up to the jury.

 

These arguments must be rejected, principally for the reason that the appellant, through his counsel, made it clear that he did not accept that Dr Milton had made an accurate diagnosis of the appellant’s mental condition. The repudiation of the psychiatric opinions was, therefore, a contradiction of the argument that the attempt by the police to destabilise the appellant were or would have been successful. There is, however, a further reason why this ground of appeal lacks substance. There was no evidence to substantiate the appellant’s complaints that surveillance and harassment were continuing during the trial or in the period leading up to the trial. The evidence is by no means clear, but it would seem that police surveillance ceased in late 1992, some two and one half years before the commencement of the trial. It is not necessary to address the Crown’s submission that the appellant’s conduct during the course of the trial was deliberately disruptive in the hope that he would thereby obtain some advantage. It is sufficient to say that there is no material that would support the allegation that the conduct of the police in placing the appellant under surveillance between 1989 and 1992 in any way inhibited the appellant in the preparation and conduct of his defence.

 

There is simply no evidence to support the allegation that there has been an abuse of process by the prosecuting authorities. Whilst the appellant has sought to mount his arguments on Dr Milton’s reports they are not part of the evidentiary material, and, as already pointed out, the appellant denies the validity of Dr Milton’s opinions.

 

The submission that the police and the Crown Prosecutor were guilty of an abuse of process was never raised at the trial. Indeed, the learned trial judge at no stage was asked to consider Dr Milton’s reports as a basis for a claim of an abuse of process. The existence of the reports had come to the attention of his Honour during the cross-examination of Mr Jackson on 17 August 1995. The reports as a bundle were marked for identification but his Honour was at no stage invited to read them.

 

Even though the trial was well advanced when the appellant received a copy of Dr Milton’s reports, it continued for another two months or so thereafter during which time the appellant had the benefit of legal representation for part of that time. The time to raise a complaint of abuse of process was when the matter first came to the attention of the appellant at the trial or, at least, within a reasonably short time thereafter. To raise it for the first time as a ground of appeal serves only, in the circumstances of this case, to weaken, rather than strengthen the integrity of the appellant’s claims.

 

It is obvious, as counsel for the appellant acknowledged, that the defence would not have wanted the Milton reports to go to the jury. The potential for harm to the appellant would have been obvious. It would seem that a deliberate decision was made by the appellant to proceed with the trial without reference to the Milton reports. As a tactical decision that was understandable, but, in the circumstances as they have unfolded in this case, the reports cannot now be used as some basis for this Court’s intervention.

 

Ground 2

Ground 2 complains that the trial judge erred in permitting cross-examination of the appellant in relation to documents marked MFI 256 to MFI 260 and other material tending to disclose bad character.

 

At the conclusion of the appellant’s evidence in chief, the Crown sought leave pursuant to s.112 of the Evidence Act 1995 (Cth) (“the Evidence Act”) to cross-examine the appellant on matters pertaining to his character on the ground that the appellant had, in the cross-examination of Crown witnesses, and in his own evidence, raised his good character as an issue in the trial. The Evidence Act applied to the trial: see s.4(1) of the Evidence Act and s.4(1) of the Evidence (Transitional Provisions and Consequential Amendments) Act 1995 (Cth). The trial judge granted leave to cross-examine in respect of topics raised in four documents identified as MFI 256, MFI 257, MFI 258 and MFI 260. Leave was not granted to cross-examine on MFI 259. In respect of MFI 258 which referred to some ten alleged incidents of violent behaviour by the appellant between January 1985 and 4 January 1989, his Honour urged counsel for the Crown to consider confining cross-examination to avoid protracting the trial. In the result, cross-examination on matters raised in MFI 258 did not occur. It is now contended on the appellant’s behalf that the Crown should not have been permitted to cross-examine on any of the matters in MFI 256, MFI 257 and MFI 260. Further, it is contended that even if it were correct to allow the cross-examination, the evidence adduced was only admissible to negate the appellant’s assertion of good character, but the prosecutor relied on the material in his address to the jury as showing bad character and a propensity to violence. It is contended that the trial judge’s directions on character did not expressly correct this misuse of the evidence.

 

The trial judge held that the appellant had raised his good character by adducing the following evidence:

a)       At the request of the accused the Crown called as a witness a prostitute who worked at the “Touch of Class” massage parlour in Canberra. She gave evidence that at some time after 10.00 pm on 10 January 1989 and possibly into the early hours of 11 January 1989 she had provided sexual services to the appellant. This witness was cross-examined by Mr Terracini on a record of her interview with the police. The following questions and answers from the record of interview were put to her, and she agreed she had given the answers.

 

“Q. How would you describe his demeanour, generally, and by that I mean you know was he a happy go lucky fellow or serious fellow or someone you’d describe as jovial?

 

A. Mm, I don’t really remember that. All I - all I’ve really got to go on is that I felt comfortable with him so, mm, from that I can assume that you know, he wasn’t rude or aggressive and, you know, he didn’t sort of, I didn’t react to him negatively. I remember that he, you know, he seemed comfortable. That’s about the best word I can use for it.

 

Q. So you can’t - what you are saying is you can’t recall what his general demeanour was during that session?

 

A. Well, I remember I had an impression that he was reasonably intelligent. He seemed to me to be in fact a gentle sort of person.”

 

 

At the conclusion of the evidence of the witness, counsel for the Crown argued that the appellant had by this cross-examination deliberately put his good character in issue, and sought to have the penultimate sentence of MFI 260 admitted into evidence. This document is the letter dated 24 December 1987 from the appellant to Ms Finke which is discussed below. It is sufficient to note at this stage that the sentence contains material which tends strongly to rebut an assertion of good character by the appellant. The sentence had been omitted from the letter because of its prejudicial nature when other parts of the letter had earlier been tendered in the Crown case. The trial judge again refused to admit the sentence, it would seem on discretionary grounds, saying he thought it would be “too dangerous” to accede to the Crown’s application.

b)      Evidence led in cross-examination by Mr Terracini of Mr Neil Brown QC (who had been present with the appellant at the interview with Mr Winchester on 16 December 1988) that the appellant had no prior convictions. The appellant himself repeated that assertion in his evidence in chief about the meeting.

c)       Evidence given by the appellant in chief to the effect that apart from health problems and a minor assault matter arising out of a demonstration, he was of high standing within the Public Service.

d)      Evidence given by the appellant that in 1991 he did voluntary work with St Vincent de Paul and had endeavoured to assist people who were short of accommodation in the Canberra district.

e)       The following evidence given by the appellant in chief in response to a question from his counsel:

 

“And it has always been your contention that Mr Russo assaulted you, and after a period of passive resistance, you then struck back in self-defence?---That’s right. I am not a violent person. I don’t get into fights if I can avoid it and Mr Russo took me completely by surprise. He struck me a very hard blow which stunned me. I turned away and I copped another five or six punches, and it was only after about the sixth punch that I just realised, ‘well, come on, you’d better do something or you know, you could be down on the ground getting the boot put into you’. So I turned around and I started throwing punches at him. But I’ve maintained from the beginning that he assaulted me because it is the truth. He did assault me.”

 

 

 

His Honour said that he was satisfied that this answer was a deliberate assertion by the appellant to put before the jury that he was not by nature a violent person and by inference is therefore not a person who would be likely to purchase a gun for the purpose of shooting anyone including a senior police officer.

 

The trial judge held that the deliberate assertion by the appellant that he was not a violent person was in itself sufficient for him to hold that the appellant had put his good character in issue. When added to the other matters, his Honour was firmly of the view that the appellant had raised good character. His Honour then considered whether it was appropriate to give leave pursuant to s.112 to the Crown to cross-examine the appellant on his character. His Honour referred expressly to s.192 of the Evidence Act which deals generally with the exercise of a power to give leave, permission or direction. The section provides that:

 

“192(1) ...

 

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

 

(a)        the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

 

(b)       the extent to which to do so would be unfair to a party or to a witness; and

 

(c)        the importance of the evidence in relation to which the leave, permission or direction is sought; and

 

(d)       the nature of the proceeding; and

 

(e)        the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.”

 

 

His Honour did not refer expressly to ss.135, 136 or 137, each of which could have had relevance to the application. However, it is clear from his Honour’s reasons that he paid particular regard to s.192(2)(b), and held that it would not be “unfair” to the appellant within the meaning of that paragraph to allow the cross-examination. His Honour should not be criticised for not referring to the other sections. The application to cross-examine was argued on the basis that the appropriate statutory provision to consider was s.192(2)(b). A passing reference was made to s.135 in support of the proposition that there would be unfairness to a party within the meaning of s.192(2)(b) if the granting of leave would lead to the admission of evidence that might be unfairly prejudicial to the appellant such that it should be excluded under the general discretion given by s.135. In our view, in this case nothing turns on whether the consideration of fairness to the appellant was addressed under s.192(2)(b) or s.135. His Honour considered each of the topics proposed to be pursued in cross-examination. He held in each case that having regard to the evidence that had been led, and the issues in the case, the granting of leave would not be unfair to the appellant.

 

Central to the Crown case was the assertion that the appellant murdered Mr Winchester to avenge wrongs which he believed he had suffered. As proof of this motive the Crown led evidence of the appellant’s disputes with the Commissioner for Superannuation, his campaign from 1979 onwards to gain reinstatement to the Public Service, and his alleged assault on Mr Russo and the attempts which the appellant had made to have the charge against him dropped. The evidence included references to the many threats of violence to others including to Mr Winchester, to the acquisition and attempted acquisition of firearms throughout 1988, and to the use of a false name by the appellant at the time of one of the purchases.

 

Counsel for the appellant contended that the combined effect of this evidence was to portray the appellant as a person of bad character with a tendency to violent behaviour. Counsel contended that the evidence on which the ruling giving leave to cross-examine on character was based, should be characterised as a rebuttal of those parts of the Crown case to which the evidence was directed, and not as an attempt to raise good character as a separate issue.

 

At common law evidence of good character of the accused was relevant to the question of the guilt or innocence of the accused. In Attwood v R (1960) 102 CLR 353 at 359 the High Court confirmed this position:

 

“The expression ‘good character’ has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg. v. Rowton (1865) Le. & Ca. 520 [169 E.R. 1497]. Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn C.J. said: ‘The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried (1865) Le. & Ca., at p.530 [169 E.R., at p.1502].’”

 

It was assumed at trial and in argument before this Court that the expression “good character” in Part 3.8 of the Evidence Act has the meaning accorded to the expression in Attwood, and in cases decided under the legislative provisions which have their geneses in s.1 of the Criminal Evidence Act 1898 (Imp). We consider that assumption is correct. The Evidence Act does not seek otherwise to define the expression. The notion of “good character” includes disposition in addition to general good reputation: Stirland v Director of Public Prosecutions [1944] AC 315 at 324. When the accused gives evidence, as he did in this case, evidence of good character is also to be taken into account on question of the credibility of his denial that he committed the crime charged: Hamilton (1993) 68 A Crim R 298 at 299.

 

In a sense, therefore, whenever an accused person raises good character, the evidence of good character may be said to be led as evidence in rebuttal of the Crown case. However, it has long been recognised that evidence which is directed to answering a specific aspect of the Crown case may nevertheless be evidence that raises the good character of the accused as an issue in the trial: see for example R v Woolcott Forbes (1944) 44 SR (NSW) 333 at 340-341 where Jordan CJ rejected the submission that the appellant’s answers to evidence led by the Crown that he departed surreptitiously from Sydney and later absconded from bail did no more than answer the case against him. It was held that if an accused person, under the guise of offering evidence relevant to an issue, actually gives evidence which invites the inference that he is a man of good character, evidence to the contrary is admissible in reply. In R v Stalder (1981) 2 NSWLR 9 the appellant was charged with murder by shooting a stranger. He did not deny the shooting but in an unsworn statement said that he could not understand how he came to do it as he was a man of non-violent disposition. It was held that he had thereby raised his good character as an issue. Street CJ said at 21:

 

“In the present case the issue tendered by the appellant was the unlikelihood of guilt having regard to his good character, in particular absence of shooting - violent propensities in his character. The importance of this issue in the trial was real and significant. Indeed, in a practical sense, the only issue of any importance in the case was that relating to the intent which accompanied the discharge of the shotgun by the appellant. His whole defence was focused upon contesting the Crown’s assertion that his intent was such as to constitute the shooting the crime of murder.”

 

 

 

The importance to the defence case of the evidence did not alter the conclusion that the evidence raised good character so as to entitle the Crown to negate it by evidence of bad character. In Crabbe v The Queen (1984) 11 FCR 1 the accused was charged with five counts of murder by driving his truck through the wall of a motel bar. His line of defence was to deny ever forming the intent to harm anyone and to say that he could not understand how the event came about. In his evidence he said that he was not the sort of man who would be capable of doing such a dreadful thing. This evidence was central to his answer to the Crown case, but the Full Court nevertheless held that the appellant had put his good character in issue. See also Fuller (1994) 74 A Crim R 415.

 

The rhetorical question was posed by counsel for the appellant: how else is an accused person, faced with allegations about a series of incidents like those alleged against the appellant, to defend himself or herself from the inference of propensity to violence except by putting his or her character in issue?  In such a case the accused may make a defence by denying or explaining each of the incidents alleged without raising good character. But if good character is asserted by the accused, the information placed before the jury must not be misleading. If assertions of good character are made by the accused which are factually wrong, the Crown, subject to the discretionary considerations, is entitled to correct the error so that the jury is not left with a misleading picture.

 

It was submitted on the appellant’s behalf that the evidence elicited in the cross-examination of the prostitute about his demeanour on the night of the murder was led merely to rebut the suggestion in the Crown case that the appellant had been engaged that evening in the release of impulses of murderous violence which had been fulminating in him for months. But as the cases referred to above demonstrate, the evidence may nevertheless raise good character as an issue if the evidence were led with the intention of raising the likelihood that by reason of his general disposition as a gentle sort of person the appellant was not the person who committed the violent act alleged against him. In our view it cannot seriously be doubted that this was the intention of the questions asked of the witness. It cannot be argued that the relevant answers received from the witness were unexpected. The witness had been called by the Crown at the request of the appellant to enable her to be cross-examined, and the information was obtained by asking her to confirm parts of a record of her interview. In our opinion this was a premeditated course to obtain the information in exactly the terms in which it came into evidence. Standing alone, at the stage of the trial when the cross-examination occurred, the information was probably of little significance to any issue at trial and it is readily understandable that the trial judge ruled against the admission of evidence of bad character. The prejudicial effect of allowing the evidence of bad character would have been an altogether disproportionate response to the probative value of evidence that the appellant presented later on the night of the murder as a gentle sort of person. However, by the time the trial judge came to rule on the later application under s.112 the situation had changed. This evidence of good character no longer stood alone. The ruling had to be made in light of all the evidence then admitted.

 

In relation to the cross-examination of Mr Brown QC, it was contended that the evidence that the accused had no convictions was directly relevant to the appellant’s belief about his prospects for reinstatement to the public service, and to his asserted belief that the Russo charge did not loom as a barrier to reinstatement. It may be accepted that this was one of the purposes of adducing this evidence, but the evidence also gave rise to inferences that he was the sort of person whose general disposition would be against the commission of a crime of violence, and that his word was worthy of credit. The assertion that he had no convictions plainly raised his good character as an issue: Hamilton (1993) 68 A Crim R 298. Similarly the evidence from the appellant about his good standing in the Public Service raised his good character. In both situations there is no reason to doubt that the evidence was deliberately adduced for the purpose of giving the impression that he was a person of good character.

 

The evidence given by the appellant about his voluntary work with St Vincent de Paul was not given in specific answer to any part of the Crown case, and can only be understood as going to the issue of his good character.

 

The appellant’s evidence about the incident with Mr Russo was evidence which, standing alone, was in the trial judge’s opinion sufficient to support his ruling that the appellant had put his good character in issue. In our opinion his Honour was correct to so hold. The answer given by the appellant set out above was obviously intended to convey a picture of the appellant as a person who was not aggressive or disposed to respond to an adverse situation with anger and a resort to violence. That picture, if accepted, had relevance beyond the appellant’s belief in the merits of the charge of assaulting Mr Russo, and went to the issue of guilt or innocence on the charge of murdering of Mr Winchester, as well as to the appellant’s credit generally.

 

In our opinion the trial judge was correct in holding that in each of the instances relied upon the appellant had raised his good character as an issue in the trial.

 

An appeal against the grant of leave to cross-examine an accused person at trial is an appeal against the exercise of a discretion. The function of the discretion vested in the judge in a criminal trial is to ensure fairness in the trial process having regard, on the one hand to the need to protect the accused against undue prejudice and, on the other hand, to the probative significance of the evidence sought to be led by the Crown. In this respect the provisions of ss.135, 136, 137 and 192 of the Evidence Act reflect the pre-existing law.

 

In Fuller, at 422, Hunt CJ at CL delivering the judgment of the Court of Criminal Appeal (NSW) observed:

 

“A fair trial is one which is fair to both parties, the accused and the Crown - which prosecutes on behalf of the whole community. As Street CJ said in Stalder (at 21):

 

‘The trial judge, being sensitive to the atmosphere at the trial, was particularly well placed to reach a value judgment on the competing considerations of undue prejudice and legitimate probative significance. The law committed this judgment to him as a matter of discretion...’”

 

 

 

It is recognised that prejudice to the accused is inevitable from the admission of evidence of bad character, but the mere existence of that prejudice will not alone justify the discretionary exclusion of the evidence of bad character, even where it consists of convictions of crimes of the same general type as that with which the accused has been charged: Hamilton at 299, Fuller at 421. It is for the trial judge to evaluate, as a matter of discretion, whether the undoubted prejudice of the evidence tendered by the Crown was disproportionate to the legitimate importance of negating the appellant’s assertions: R v Stalder at 21.

 

It is therefore necessary for the trial judge to consider not only the assertions of good character adduced by the appellant but also the significance to the issues in the trial of the evidence sought to be adduced by the Crown. In the present case the trial judge undertook this exercise.

 

MFI 256 was the first of the documents in respect of which leave to cross-examine the appellant was given. It was a letter dated 6 December 1987 from the appellant to Ms Finke. The portion of the letter to which the leave related said, “My father died. I didn’t go to the funeral because I felt nothing. He killed all the love in me years ago.”  The Crown sought to put these statements to the appellant, not on the basis that they rebutted his assertion of good character (although coincidentally the letter might have had that effect), but because they were directly relevant to an issue that arose out of the appellant’s evidence. In relation to one of the tapes secretly recorded in the appellant’s flat, a transcription made by a Crown witness included the phrase “A bit of kiss and then make up, poor bugger”. When this was put to the appellant, he suggested that the remark could relate to his late father as he was then grieving over his death, and said that on occasions when he visited him in hospital before his death he might kiss him on the cheek. The Crown sought to have admitted the statements from the letter to rebut this explanation. The trial judge in his ruling said that in light of the appellant’s explanation about the remark in the transcription, the statements to Ms Finke “were clearly relevant”. This was undoubtedly correct. In our opinion it is marginal whether the statements to Ms Finke constituted evidence of bad character but as the jury may have considered them to be statements prejudicial to the appellant it is understandable that leave was sought from the trial judge to adduce them in cross-examination.

 

MFI 257 was the decision of the AAT dated 4 November 1986 which affirmed a decision made under the Superannuation Act 1976 (Cth) that the appellant had not been so restored to health as to enable him to perform the kind of duties that he had been performing at the time of his retirement from the Public Service. The fact of the decision had already been admitted into evidence, but the reasons for decision had not been admitted during the Crown case because of the prejudicial nature of material contained in them. Relevantly, the reasons listed a number of acts of violent behaviour towards fellow employees and threats made to various people about which evidence had been led before the AAT by the Commissioner for Superannuation. This evidence formed the basis of the decision of the AAT.

 

The Crown contended that evidence given by the appellant made the reasons for decision, based on the acts of violence and threats to others, directly relevant, not merely because they rebutted the appellant’s assertion of good character, but because they undermined the appellant’s evidence that he was held in high standing within the Public Service, and that the outstanding Russo assault charge did not present a significant obstacle to his reinstatement. The Crown contended that having read the reasons for decision of the AAT the appellant must have known that the allegations as to his past behaviour would cause those who would decide on his reinstatement to treat the charge of assault as a very serious matter. The trial judge accepted these submissions.

 

Before this Court counsel for the appellant conceded that the Crown did not seek to rely on the material in the AAT’s reasons for decision to prove bad character, but as relevant to the appellant’s perception of his chances of returning to the Public Service. Nevertheless, it was submitted on the appellant’s behalf that the material was immensely prejudicial in nature and should have been excluded on discretionary grounds.

 

MFI 260 relevantly contained the penultimate sentence of the appellant’s letter to Ms Finke dated 24 December 1987. The portion of the letter which had earlier been admitted into evidence referred to the incident with Mr Russo. It contained the statement that:

 

“To make matters worse, I was assaulted by a neighbour one week ago after an argument over a parking space. He punched me and gave me a black eye. But he has 2 friends as witnesses. They went to the Police and lied. Now I am to be charged with assaulting him. This injustice, on top of thinking about my father’s will, is driving me crazy. Now I want to kill the neighbour, his friends, and the bastard Police as well. I have been to a solicitor. Of course, he doesn’t care except that this is a chance to make some more money.”

 

 

The final sentences that had been omitted read:

 

 

“I sympathise with men who kill hundreds, thousands, millions. Now you know the truth.”

 

 

 

The penultimate sentence emphasises the depth of hatred felt by the appellant against those whom he had said earlier in the letter that he wished to kill. In this respect the sentence was directly relevant to central issues in the trial: motive and the reason for the acquisition of firearms. The trial judge, in his ruling granting leave to cross-examine, said that he had earlier ruled against the admission of the penultimate sentence as he considered it went directly to bad character rather than having any nexus to the actual fatal shooting. His Honour continued:

 

“It seems to me, however, in light of the evidence that has been given by the accused that he never really ... had any intention of carrying out any such expressions of desire (i.e. to kill) and that, in fact, he is a non-violent, gentle person, that the phrase under consideration takes on a new significance. It seems to me that the Crown is entitled, in the events which have happened, to rely upon this assertion as going directly to the state of the accused’s mind when he wrote this letter, and as an expression of a mind-set that would give fulfilment to the desires which he had earlier expressed.”

 

 

 

We agree with those reasons which express the relevance of MFI 260 to issues in the trial.

 

In each case the assertions of good character by the appellant were made so as to raise the improbability, because of the good character, that the Crown case was correct, and in particular the improbability that the motive alleged existed. If the evidence of good character stood unanswered, the jury could have been swayed against finding that the appellant had a motive for the murder, and to the view that the appellant was the kind of person who would not commit murder. The evidence to be adduced in the cross-examination pursuant to the leave granted, whilst tending to show bad character, went directly to rebut evidence adduced by the appellant relating to important issues in the case. In these circumstances sound reason existed for the trial judge to exercise his discretion in favour of granting leave to cross-examine notwithstanding the prejudicial nature of the material. We are not persuaded that the exercise of the discretion miscarried.

 

We turn to the alternative submission that the evidence of bad character adduced by the Crown was only admissible to rebut the assertions of good character, but that the prosecutor relied on the material as showing bad character and a propensity to violence - a misuse of the evidence which, it is contended, the trial judge did not correct in this charge to the jury. This submission was addressed in particular to the material about acts of violence and threats adduced by the cross-examination of the appellant on the AAT’s reasons for decision.

 

At common law, different opinions have been expressed as to the use which can be made of evidence of bad character adduced in response to an assertion of good character by an accused person: see R v Perrier (No 1) [1991] 1 VR 697 at 703-704. The present case however is governed not by the common law but by the Evidence Act. Sections 110(2) and 110(3) provide that if in criminal proceedings evidence of good character of a defendant has been admitted “the hearsay rule, opinion rule, the tendency rule and the credibility rule do not apply” to evidence adduced to prove that the defendant is not a person of good character, either generally or in a particular respect as the case may be. The sections appear to place no limitation on the use which may be made of evidence adduced under these provisions. Section 110(1) provides for a defendant to adduce evidence of his or her good character. If evidence of good character is admitted under s.110(1) it may be used as evidence directly relevant to the issue of guilt, as is the position at common law. The corresponding provisions in ss.110(2) and 110(3) are drawn in terms similar to s.110(1). It may therefore be arguable that, as a matter of consistency, if evidence adduced under s.110(1) is admissible on the issue of guilt, so too would evidence adduced under ss.110(2) or 110(3) be admissible on the issue of guilt, and not merely to rebut the evidence of good character. We note, however, the observation of Street CJ in R v Stadler at 17-18 concerning the influence of the common law on the construction of s.412 of the Crimes Act 1900 (NSW). As we consider the submission under consideration can be decided on another ground, and as the interpretation of the provisions of s.110 was not argued before us we express no view on the interpretation of that section.

 

On our review of the passages in the address of counsel for the Crown and in the charge to the jury, to which we were referred in argument, we think that the jury was left with a clear instruction that the evidence adduced pursuant to the leave granted was to be used only for limited purposes, and not as propensity evidence rendering guilt more likely.

 

Counsel for the Crown in his address referred to the reasons for decision of the AAT. He referred to the “History of Violence and Aggression” set out therein and to the Tribunal’s observation:

 

“And you might think that this is no more than common sense. The past, as is often the case, is the best guide to the future. Even in flawless conditions, the applicant (the accused) will still need to interact with somebody. He has demonstrated over and over again that he is simply unable to deal with the ordinary tracasseries of life.”

 

 

 

The Crown submitted to the jury that as the appellant had read the AAT’s reasons, his evidence about an assessment of his fitness for work by a Dr Hocking in 1988, and about his belief that the pending Russo assault charge did not present a significant obstacle to his reinstatement to the Public Service, lacked credibility and honesty. Counsel did not invite the jury to use the material in the AAT’s reasons as indicating a propensity to violence that was probative of the appellant’s guilt on the charge of murder.

 

In the charge to the jury the trial judge referred to the material in the AAT’s reasons in his directions on motive. Early in the directions on this topic his Honour twice said:

 

“The evidence of the accused’s disputes with the Public Service and his campaign to have the Russo charge dropped is only relevant to demonstrate the accused’s frame of mind at the time of Mr Winchester’s death.”

 

 

 

A little later his Honour said:

 

 

“In these circumstances, the jury are required to consider the evidence only insofar as it is relevant to the specific issue in the trial; that is, here, motive. Now, I gave you that very strong direction because of certain evidence which was given by Mr Frodyma, Mr Kennedy, Mr and Mrs Bewley and Ms Vick, upon which the Crown heavily relies because they say it demonstrates his state of mind, his intense anger as a result of his perceived unjust treatment, and so I had to direct you, and I do direct you, that it is only for that reason that you may use it and you may not use it for the purpose of leading to the conclusion that the accused possesses a disposition or propensity towards the commission of crime or crime of a particular type and that he is therefore likely to have committed the subject crime.”

 

 

 

Express reference was not made in this passage to the events recited under the heading “History of Violence and Aggression” in the AAT’s reasons, but the evidence of the witnesses named contained evidence of threats of serious violence to a number of people of a similar, though perhaps more serious nature, than those referred to by the AAT.

 

Immediately following the above passage, his Honour moved on to discuss the appellant’s campaign to obtain what he perceived to be justice from the Public Service, and made express reference to the decision of the AAT, and to Dr Hocking. His Honour said:

 

“Before I turn to those documents and the relevant oral evidence I repeat that this evidence was only led by the Crown to demonstrate what the Crown alleges was the intensity of the feelings of the accused about what he perceived to be the injustice he suffered at the hands of the Public Service and to demonstrate the Crown alleges, the importance in the mind of the accused of the possibility of the conviction on the Russo matter insofar as his re-employment in the Public Service was concerned.”

 

 

His Honour then turned to the decision of the AAT and said:

 

 

“Now, the written judgment of the Administrative Appeals Tribunal of 1986 is not before you although its relevant aspects have been raised in cross-examination by Mr Adams of the accused. The Crown says that this document is of great significance because it would have been before any prospective employing department of the accused and if a recent conviction was superimposed upon the material contained in that decision it would have serious adverse consequences for the accused of which he well knew.”

 

 

The way in which the Crown said the decision was of importance was explained, and his Honour continued:

 

“For the purposes of this case, you should not determine whether the findings of the tribunal with regard to these alleged acts of aggression or violence were, in fact, correct or incorrect. That is subject to one qualification that I will refer to later. The significance of the evidence is that it was the unanimous decision of a duly constituted tribunal which the Crown contends would carry weight with a prospective employing department. That is its relevance. The Crown says, be it right or wrong, you would expect an employing department to look at it and therefore, that made more serious for the accused the possibility of a Russo conviction.”

 

 

 

The qualification mentioned was a reference to other evidence that had been adduced about two of the incidents referred to by the AAT.

 

In our opinion the charge to the jury made it clear that the events set out in the “History of Violence and Aggression” in the AAT’s reasons, which had been made known to the jury in the cross-examination by leave of the appellant, were to be used for the limited purpose of establishing a motive, and not as evidence of a disposition or propensity.

 

It was suggested in the course of submissions relating to the material in the AAT’s reasons that it constituted tendency evidence, and should not have been allowed into evidence in the absence of reasonable notice in writing given to the appellant pursuant to s.97(1) of the Evidence Act. In our view notice was not required as the evidence was not being adduced to prove tendency as an issue in the trial. As the trial judge’s directions made clear, it was being admitted only as evidence relevant to the alleged motive.

 

The trial judge much later in his charge, which extended over several days, directed the jury on character evidence. In summarising the evidence against the assertions of good character made by the accused, his Honour referred to the evidence of many threats to various people which had been adduced in the Crown case, but not to the threats referred to in the AAT’s reasons. His Honour referred to the concluding portion of the letter of 24 December 1987 to Ms Finke. The jury was directed:

 

“It is for you to assess this evidence and to make your own decision as to whether or not the accused is a person of good character. However, I must emphasise that if you take the view that the accused is not a person of good character, that must not be used to strengthen the Crown case against him.

 

For example, you would not be entitled to say, ‘Because of his bad character, we think he is a person who is likely to have committed this crime.’  If you take the view that the accused is not a person of good character, you must put all consideration of character out of your mind in determining whether you are satisfied, beyond reasonable doubt, that the accused is guilty of the crime charged. If, on the other hand, you accept the accused is a person of good character, that fact may persuade you that the Crown’s evidence must be mistaken, because a person of good character is unlikely to have conducted himself in a way in which it is alleged here that the accused has acted.”

 

 

and a little later his Honour said:

 

 

“So, putting it in a nutshell, members of the jury, you balance the evidence of good character. You, if you accept that, against the evidence, if you accept it, of bad character. If you believe, after conducting that balancing exercise, that the accused is a person of good character, then you will use that evidence in the way in which I have just indicated. If, on the other hand, you are not satisfied, or you do not form the view is a better way to put it, that the accused is a person of good character, then you must put the question of character right out of your mind. I think that is clear enough.”

 

 

 

It is understandable that his Honour did not include amongst the evidence of threats that could count against the evidence of good character the material in the AAT’s reasons as the jury had already been directed that this material was available only for the limited purpose of considering the motive alleged. At that point in the charge it had been directed that the evidence was not available to show a disposition or propensity.

 

We do not accept the submission that the charge was deficient in failing to warn the jury against misusing the evidence adduced in cross-examination of the appellant pursuant to the leave given under s.112 of the Evidence Act.

 

Ground 2 of the appeal is not made out.

 

 

Ground 3

This ground of appeal as amended reads: “The trial judge erred in ruling that MFI 23 and MFI 3A and 3B should not be adduced as evidence under s.130 Evidence Act 1995 (Cth)”. Section 130 provides for the exclusion of evidence of “matters of state”, an expression given a wide meaning by s.130(4). The appellant contends that rulings of the trial judge based on public interest immunity prevented him from adducing into evidence material in these documents which had been given their exhibit numbers at the Inquest into the death of Mr Winchester.

 

The Coroner had made orders suppressing from publication the contents of MFI 23, and MFI 3A and 3B, and these orders had not been lifted when the appellant’s trial commenced.

 

Arguments presented during the trial by or on behalf of the appellant indicate that the general nature of the subject matter of these documents was known to him long before the trial commenced. Moreover, before the trial judge the appellant revealed that he was in possession of an unedited version of MFI 23. Furthermore, affidavit material placed before this Court discloses that amongst the boxes of Inquest papers held by the appellant’s lawyers were other documents marked respectively MFI 97 and MFI 130 which contain additional material related to the subject matter of MFI 23.

 

Much of the information contained in MFI 23 had been publicly disclosed well before the trial. MFI 23 is a long report dated 28 September 1989 prepared by Detective Commander RR McDonald entitled “Operation Peat: Suspicion of Calabrian Organised Crime Involvement in the Murder of Assistant Commissioner Colin Stanley Winchester”. Operation Peat was the AFP operational name for the investigation into the murder of Mr Winchester. MFI 3A and 3B are reports concerning an internal investigation conducted by the AFP into allegations that were made in a television broadcast on 24 April 1989 concerning alleged criminal activity in the Canberra Region surrounding the murder of Mr Winchester. In the course of that program the presenter interviewed Commander Worthy as the senior police officer responsible for the ongoing investigation into the murder. It was suggested to him that he and Mr Winchester had had a heated argument earlier in the day of the murder, and that he himself was a suspect. This led to Mr Worthy being stood down from the murder investigation whilst these allegations were investigated. At the conclusion of the investigation Mr Worthy was reinstated as the officer in charge of the investigation.

 

The appellant sought production of MFI 23 and MFI 3A and 3B contending that information in the documents would disclose the possibility that the murder was committed by someone other than himself, i.e. they would provide evidence supporting a reasonable hypothesis consistent with his innocence: cf Barca v R (1975) 7 ALR 78, Peacock v R (1911) 13 CLR 619 at 634. The appellant argued that the production of these reports was of particular importance to the fair conduct of his trial. A central theme of his defence was that the police were so preoccupied with pursuing him that other avenues of inquiry were not appropriately or sufficiently investigated, and he believed that these reports would demonstrate this.

 

The revelation in the course of argument that the appellant had been inadvertently given a copy of MFI 23, apparently at the time of the Inquest, led the Commonwealth of Australia to make application to the Supreme Court of the Australian Capital Territory against the appellant (Action 526 of 1995) seeking an order for the return of the document. These proceedings were also heard by Carruthers AJ, and became the procedural vehicle in which claims for public interest immunity by both the AFP and the National Crime Authority (“the NCA”), relating to MFI 23 and MFI 3A and 3B, were argued and ruled upon by his Honour. The rulings made in those proceedings were treated by the parties as rulings in the criminal trial.

 

It is convenient to discuss the ruling and the ground of appeal relating to MFI 23 separately from the ruling and ground of appeal relating to MFI 3A and 3B.

 

A special time had been set aside for argument in Action 526 of 1995 on 11 August 1995. On the morning of that day the appellant withdrew instructions from his lawyers, and argued the matter himself. At the conclusion of argument his Honour made final rulings in relation to some matters (including MFI 3A and 3B) but felt unable to do so in relation to MFI 23. The two main reasons for this were first, the late filing of an affidavit by Mr McDonald in support of the claim for public interest immunity, and, secondly, the lack of specific detail as to the manner in which the appellant or his counsel intended to use the material in MFI 23. At earlier hearings Mr Terracini had informed the court that he intended to use it in cross-examination, particularly in the cross-examination of Mr Ninness. On 1 August 1995 Mr Terracini said specifically that he would not be seeking to tender the document. As Mr Terracini’s instructions had since been withdrawn his Honour was not able to assess the way the information in MFI 23 could be used to assist the defence case. Rulings on MFI 23 were adjourned generally until the position regarding the future legal representation of the appellant became clearer.

 

The affidavits in which the claim for public interest immunity was made by the AFP and the NCA were not placed before this Court, but reasons given by the trial judge for his decision to defer a ruling on MFI 23 disclose that Mr McDonald had deposed that he strongly believed the release of some of the information in the document would identify one informant and result in that person’s death, and identify another informant and result in his maiming or murder.

 

By 25 August 1995 the appellant was still unrepresented. His Honour then made the following ruling:

 

“As presently advised I am not satisfied that the specific material - in respect of which public interest immunity is claimed - would be of assistance to the accused in answering the case against him. See Jarvie v Magistrates Court of Victoria, 1995, 1 VR 84 especially at 88 to 91 per Brooking J, where the relevant cases are reviewed.

 

On the material presently before me I am satisfied that the balancing exercise should be resolved in favour of the objectors and accordingly with two minor exceptions I uphold the public interest immunity claims. Specially, in so far as the Australian Federal Police are concerned I uphold the claims in relation to the following portions of ... MFI 23 ... ”

 

 

His Honour then identified specific paragraphs of MFI 23 in respect of which he upheld the public interest immunity claims of the AFP and the NCA. His Honour continued:

 

“Apart from objections soundly based on public interest immunity considerations, real questions of relevance arise in relation to certain of the abovementioned portions of the report. However, I have not found it necessary to distinguish the relevancy aspects. In view of the fact that the accused is legally unrepresented and the possibility that future cross-examination of Crown witnesses, may raise material which justifies reconsideration of certain of my present rulings, I propose not to deal at this stage with the application by the Commonwealth of Australia for the return of MFI 23.

 

The accused has unquestionably read the entire document and it seems to me, in the circumstances, fairer that he retain possession of it at this stage. It is conceivable that he may later persuade me that I should allow him to refer to certain portions of the document, in respect of which I have this morning (up)held the public interest immunity claims. Thus, I stand the Commonwealth’s notice of motion over to a date to be fixed. I vary my existing non-publication order, so that those portions of MFI 23, in respect of which no public interest immunity claim has been upheld, may be referred to by the accused in court, for the legitimate conduct of his defence.

 

Similarly, of course, they may be referred to by counsel for the Crown, if necessary, in the conduct of the prosecution case. Otherwise my non-publication order is confirmed.”

 

 

 

The “balancing exercise” to which his Honour refers is that required by s.130(1) of the Evidence Act. The trial judge must consider and weigh two competing aspects of the public interest, namely whether the public interest in admitting into evidence the material in the document that is a matter of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the material. Section 130 closely reflects the common law position: see the Australian Law Reform Commission Report 26, Vol 1, paras 864-866. Referring to the common law position, Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 at 412 said that the balancing exercise required the judge to consider whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates.

 

The administration of justice would be impaired if by withholding the documents an accused would be denied a fair trial. The question therefore arises in the balancing exercise whether the documents contain evidence material to the accused’s defence. In Alister Gibbs CJ said at 412:

 

“... the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.”

 

 

 

If the document does not contain material evidence, the need for the balancing exercise does not arise and in the public interest the documents should not be discovered.

 

As to the test to be applied in determining whether there is or is likely to be evidence which is material, Gibbs CJ in Alister said at 414:

 

“Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.”

 

 

 

The test proposed by Wilson and Dawson JJ at 438 was that the applicants for production were required to show a basis for a rational inference of a likelihood that the documents would go substantially to proof of their innocence of the charge against them. See also Brennan J at 455-456.

 

In the present case the trial judge in his ruling referred to Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84 at 88-91. In that case Brooking J applied the following passage from the judgment of Vincent J, speaking for the Full Court of Victoria in an unreported decision of Cerrah v R (Full Court, 6 October 1988): 

 

“It is, in my view, clear that before what appears to be a legitimate claim against the disclosure of the name of a police informer is rejected, the accused must demonstrate that the evidence is at the very least capable of being, if not likely to be, of some real assistance to him in answering the case made out against him. A speculative possibility of the kind for which the present applicant contends would certainly not suffice.”

 

 

 

Brooking J, at 90, added:

 

“I would respectfully suggest that the words ‘is at the very least capable of being, if not likely to be, of some real assistance to him’ should be understood as requiring it to be demonstrated that there is good reason to think that disclosure of the informer’s identity may be of substantial assistance to the defendant in answering the case against him.”

 

 

 

It is not suggested in this appeal that the test proposed by Brooking J was not in accordance with the statements of principle in Alister, or that it was not an appropriate test for the trial judge to adopt. Rather, the submission is that his Honour erred in the application of the test to the facts of the appellant’s trial.

 

The ruling of the trial judge was provisional. In light of the evidence in the Crown case, and the nature of the appellant’s defence so far as it had been disclosed at that point in the trial, his Honour considered that the paragraphs in respect of which he upheld the claim for public interest immunity would not assist the appellant in answering the case against him. On that view the balancing exercise did not really arise. The claim for public interest immunity was not countered by a consideration that unfairness to the appellant could arise from withholding the documents. The trial judge however recognised that as the trial progressed suppressed material in MFI 23 might assume a relevance that would require a reconsideration of the provisional ruling. By allowing the appellant to retain an unedited version of MFI 23, the trial judge left him in possession of the information he might wish to use in argument on a later review of the ruling.

 

As it is not suggested that the trial judge erred in law in applying the wrong test, the question for this Court is whether his Honour erred in his conclusion that the portions of MFI 23 withheld by the ruling would not be of assistance to the accused in answering the case against him.

 

It is significant that the withheld portions of MFI 23 comprised only a small part of the report - in all, some 14 pages of a 70 page report. The parts withheld are scattered through the report. The thrust of the investigation, the identity of those whose activities were under consideration, and the conclusions of the investigation were not protected by the ruling.

 

The investigation concerned events surrounding Mr Winchester’s undercover connivance at the growing of two crops of Indian Hemp by a Mafia related group of people in late 1981 through to early 1983 at Bungendore. Subsequently a number of people including a group referred to as the “Bungendore eleven” were charged with drug related offences. The investigation explored the possibility that these events caused the people concerned, or the organisation to which they belonged, to think they had been double crossed by Mr Winchester, thereby giving a motive for the murder, and the further possibility that particular individuals associated with the organisation may have committed the murder. Details of the lines of inquiry undertaken and the outcome of the investigation were set out in those parts of the report that were not withheld. The unprotected material identified two particular men who had come to Australia shortly before the murder, along with information received by the AFP from the Carabinieri Police Force in Italy which suggested that one of these men had come for the purpose of committing a murder. Unprotected information included reference to transcriptions of conversations secretly taped pursuant to a listening device warrant in which one of the men was said to have made admissions of a killing that could have been that of Mr Winchester.

 

The unprotected portions of the report said that inquiries regarding the two men identified as possible assassins were continuing, but that apart from them, information so far received inferring organised crime involvement in the murder “whilst questionable in some details and interesting in others, from an intelligence viewpoint, falls far short on the availability of tangible evidence. To date, there has been no firm evidence obtained to support the information received.”

 

Those parts of MFI 23 that were withheld contained references to police investigation methods, to informers, to information received from the Carabinieri, to the police assessment of some of the information gathered in the inquiry, and to matters unrelated to the murder investigation. We have considered the material that was withheld. Judged in the context of the trial we agree with the trial judge that the material withheld would not have assisted the appellant in answering the case against him.

 

Material in the unprotected parts of MFI 23 could have been used as a basis for questions in the cross-examination of police officers, particularly Mr Ninness to whom the report was submitted, and who had been involved in some of the investigations. The trial judge recognised a possibility that the cross-examination could identify a new issue that might make material that had been withheld relevant - but this never happened. Following the ruling no attempt was made by or on behalf of the appellant in the course of evidence to use any part of the material which had been disclosed. It is not correct to say, as the ground of appeal asserts, that the trial judge ruled that MFI 23 should not be adduced as evidence. His Honour provisionally ruled that some parts could not be referred to, but the real substance of the report was available to the appellant for use “in court, for the legitimate conduct of his defence”.

 

Even before the ruling was made, Mr Terracini had referred to the two men who had come from Italy by name, and to the investigation relating to them, in the cross-examination of Constable Spooner. Mr Terracini had foreshadowed cross-examining Mr Ninness on the report, but when Mr Ninness was recalled after the ruling was made, he was not cross-examined. The appellant at that time had withdrawn instructions from his lawyers. By the time Mr Ninness was recalled the appellant had engaged in lengthy and apparently competent cross-examinations of Constables Jackson and Lawson. When Mr Ninness was recalled the trial judge said to the appellant:

 

“Mr Eastman, do you have any questions of Commander Ninness?  Mr Eastman, I feel that I should say this to you. This is the third time that Commander Ninness has given evidence. He has not been cross-examined thus far. He was, for all intents and purposes, at all relevant times, the police officer in charge of Operation Pete [sic]. As I apprehend it, the Crown is on the brink of closing its case and this is the last opportunity you will have to ask any questions of Commander Ninness and I would like you to consider those matters. So, I will ask you one final time, do you wish to cross-examine Commander Ninness? There being no response, I will treat that as no and you are excused, Commander Ninness.

 

MR ADAMS: Your Honour, could I note for the sake of the record that your Honour gave an appreciable time for the accused to consider his position.

 

HIS HONOUR: Yes, if you wish.”

 

 

 

The significance of the ruling upon the failure of the appellant to make use of the available information in MFI 23, and to make any attempt to identify an issue at trial that would have justified the trial judge in reconsidering his provisional ruling, must be assessed in light of the existence of MFI 97 amd 130 and the fact that those documents were in the possession of the appellant, and his lawyers. Interchanges between Mr Terracini and the trial judge on 1 August 1995 make it plain that these documents were before counsel, and that it was known that MFI 130 had been released from suppression orders.

 

MFI 97 is entitled “Supplementary Report Suspicion of Calabrian Organised Crime Involvement in the Murder of Assistant Commissioner Colin Stanley Winchester”. It is dated 26 April 1990. It explains that the transcription of the tape recording referred to in MFI 23 of the man who it was thought had admitted a killing had been interpreted relatively quickly. Subsequently better equipment and techniques had been used to interpret the tape, and on reassessment the conversation did not contain such an admission. Significantly, the report said the “reassessment reveals that the product...(i.e. the taped conversation) is not sinister in any way and does not allude to any evidence or information that will assist the overall investigation of the murder”.

 

When MFI 23 and MFI 97 are read together, they show, contrary to the theme of the defence case, that lines of inquiry unrelated to the appellant had been the subject of very extensive police investigation, and had failed to produce evidence suggesting that the murder had been committed by the people or organisation the subject of the investigation.

 

Exhibit MFI 130 contained an intelligence report prepared by the Australian Bureau of Criminal Intelligence which advanced the hypothesis that members of a particular Italian organised crime group were behind the murder of Mr Winchester. The report considered intelligence in the possession of the Bureau relating to the Bungendore Indian hemp crops which was said to provide a motive for the murder by members of the crime group. On the face of the report, it did not take into account much of the information gathered in the inquiries the subject of report in MFI 23. Included in MFI 130 is a letter written by Mr Ninness to the Coroner saying that he had conferred with a senior analyst apparently concerned in the preparation of the report and that:

 

“From this meeting and from enquiries, I am satisfied no further investigations are required which would assist you. I believe there are a number of discrepancies in the report, the most prominent being that pointed out by yourself regarding Mr WINCHESTER’s association with [a named person].

 

[The Senior Analyst] was unable to expand on the report and I believe the information currently held by yourself is far more comprehensive than that depicted in the intelligence assessment report.

 

Unless you have any directions regarding this intelligence assessment report, no further enquiries will be conducted.”

 

 

 

No attempt was made to use MFI 130, or the material in it, at any stage in the trial. On the appeal the appellant argued that Mr Ninness’ letter to the Coroner shows that Mr Ninness was suppressing a line of inquiry inconsistent with the guilt of the appellant. The appellant argued that the letter provides evidence that a suspicion that someone else was the murderer was not being pursued. But this suggestion was never put to Mr Ninness, and is contrary to the information in MFI 23 and 97 which show that the hypothesis advanced by the Australian Bureau of Criminal Intelligence had been extensively investigated.

 

The appellant informed the trial judge that the possible involvement of Calabrian organised crime in the murder of Mr Winchester had been explored at length at the Inquest. That was accepted as the fact in argument during this appeal. On 22 November 1994 the DPP supplied to the lawyers then acting for the appellant all the material that was received as evidence at the Inquest except documents still subject to suppression orders. The documents supplied occupied some 44 boxes, and included 14 volumes of papers relating to the “Italian Segment”. According to the index of these papers which is before this Court, these volumes contained much of the source material on which MFI 23 was based, yet none of it appears to have been used by the appellant or his advisers in an attempt to lay an evidentiary basis for a reasonable hypothesis that someone other than the appellant was the murderer. On 22 November 1994 the appellant’s lawyers were also given by the DPP a full transcript of the Inquest proceedings although with suppressed names and references deleted.

 

Submissions made before this Court did not demonstrate a rational hypothesis inconsistent with the guilt of the appellant based on information in MFI 23, or otherwise, which could be accepted as reasonable having regard to the evidence led at trial. Barca v R was referred to in argument as a case where an appeal was allowed and a retrial ordered because a reasonable hypothesis inconsistent with the guilt of the accused was not left to the jury. But in Barca there was a basis in the evidence led at trial which gave support to the hypothesis. Here there is no evidentiary basis for such an hypothesis.

 

It is of course trite that the onus is not on an accused person to establish that some inference other than that of guilt should be drawn from the evidence or to prove particular facts that would tend to support such an inference. In a case which rests substantially on circumstantial evidence the onus is on the Crown to establish that the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. However, as was said in Barca by Gibbs, Stephen and Mason JJ at 96, the jury cannot be asked to engage in groundless speculation. In that case aspects of the prosecution case laid the basis for the hypothesis that the deceased may have been killed by his father-in-law. But here there is in the trial evidence no basis for a rational hypothesis that one of the people or the organisation referred to in MFI 23 was responsible for the murder. Furthermore, the portions of MFI 23 that were withheld from the appellant would not have provided any evidentiary base for that hypothesis. The appellant had every opportunity at trial to explore the substance of the matters reported in MFI 23 and to attempt to lay an evidential foundation for the hypothesis, but chose not to do so.

 

We turn now to MFI 3A and 3B. In respect of these documents public interest immunity was claimed by the AFP, and supported by affidavits sworn by Deputy Commissioner J D Allen. The grounds set out in the affidavits were that the information in the documents contained detailed personal and private information relating to Mr Worthy that did not bear upon the investigation of the murder of Mr Winchester, and that, for reasons given, it would not be in the public interest to disclose it. The trial judge ruled against the disclosure of these reports, with some exceptions. He said:

 

“I have read on more than one occasion, and with the utmost care, the entirety of this matter and I am absolutely satisfied that there is - with the exception of certain matters to which I am going to refer - nothing in this investigation which could conceivably, by any stretch of the imagination, assist this accused in his defence. ... Accordingly, in relation to MFI 3A and 3B, I uphold the claims for public interest immunity with the following exceptions:...”

 

 

 

His Honour then identified documents contained within the folders that he considered might have some bearing on matters raised in the trial and directed that copies of them be given to the appellant. These documents included a transcript of an interview on 4 May 1989 between Deputy Commissioner Allen and Mr Nelipa (“the Nelipa statement”) regarding events which had occurred at the scene on the night of the murder after the police and ambulance arrived. Mr Nelipa was the most senior officer from the Forensic Services Division of the AFP who attended the scene of the murder on the evening of 10 January 1989.

 

When a challenge to the ruling on MFI 3A and 3B was raised in the appeal, notice was given to the AFP and NCA who later appeared by counsel. Mr Robb QC, who appeared with Mr Erskine, sought to uphold the ruling, not on the ground that the public interest to be protected was a matter of state, but on the ground that the material protected by the ruling was irrelevant to any matter that could have assisted the appellant at his trial.

 

Mr Robb argued that although the documents had not been brought into Court by the formal procedure of a subpoena addressed to the AFP, but for convenience had been delivered into the possession of the Court by the DPP, the Court should follow the procedure in relation to documents subpoenaed from a third party proposed in National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372. At 381 Moffitt P, with whom the other members of the Court agreed, proposed a three step procedure. First, that the subpoena is obeyed by the third party bringing the documents to court. Secondly, the judge decides what preliminary use of the documents should be permitted. Thirdly, the documents are admitted in whole or in part into evidence or used in the process of evidence. It is the third step alone which provides material upon which ultimate decision in the case rests.

 

In relation to the second step Moffitt P said at 383:

 

“At this point documents are in the control of the court, pursuant to the valid order of the subpoena. As pointed out in Small’s case (1938) 38 SR (NSW) 564, at p.574; 55 WN 215 at this time the witness may state he objects to their being handed to the parties for inspection. If he states he does not object to the parties inspecting the documents, or by lack of objection is taken to have no objection, no doubt normally there would be little reason not to permit inspection by either party. However, the documents are under the control of the judge and, even if the witness has not objected, there may be good reason in the elucidation of the truth why the judge may e.g. defer inspection by one party or the other. Indeed, no doubt, he will normally defer inspection by a party who has not issued a subpoena until his opponent has an opportunity to use the documents in cross-examination. There may be good reason why he may, or indeed should, refuse inspection of irrelevant material of a private nature, concerning a party to the litigation, or, concerning some other person who is neither a party nor the witness.”

 

 

 

Mr Robb argued that the last sentence of this passage applied to MFI 3A and 3B.

 

The procedure proposed in Waind’s case would ordinarily provide an appropriate course to follow where documents are subpoenaed from a third party in a criminal trial. Where the documents are likely to be of substantial assistance to the defendant in answering the charge they will pass the test of relevance. It is difficult to envisage a case where such documents would be withheld from the accused merely because they disclosed private information that was treated as sensitive by the person producing the documents or had the potential to cause distress to others if it were made public. Normally the interests of third parties could be adequately and appropriately protected by orders restricting the manner of use and publication of the material by the parties in the trial.

 

Notwithstanding the statement by the trial judge that he upheld the claim for public interest immunity, it is plain that his decision rested on the question of relevance.

 

The parties to the appeal, and Mr Robb’s clients, were agreed that the only way for this Court to resolve the question of relevance was for the members of this Court to read the documents. This we have done. We agree with the trial judge that the material in them would not assist the accused in his defence. It is not appropriate in these reasons to disclose the content of the documents, but it is appropriate to refer to a press release - contained in the documents - that was published by Deputy Commissioner Johnson of the AFP in May 1989 at the conclusion of the investigation into allegations made in the television program. That press release, after identifying the television program and the allegation that Mr Worthy was himself a suspect said:

 

“As a consequence of this allegation, Commander Worthy was transferred to other duties and an investigation was initiated into the allegations. The investigation was undertaken by Commander Allen and Detective Superintendent Lewington of the National Criminal Investigations Branch, AFP Headquarters.

 

The investigation has now been completed and a full report has been made available to me.

 

In essence, the investigation by the AFP Headquarters officers has found:

 

·      there was no argument between Commander Worthy and Assistant Commissioner Winchester shortly before the murder;

 

·      there was no motive for Commander Worthy to take the life of Assistant Commissioner Winchester; and

 

·      At the time that Assistant Commissioner Winchester was murdered, Commander Worthy was at home with his wife and family.”

 

 

 

Counsel for the Crown contended that the appropriate remedy which the appellant should have pursued if he were dissatisfied with the rulings by the trial judge was to apply for a permanent stay of the proceedings, which he did not do. In Alister v The Queen at 431 Murphy J said:

 

“There is a public interest in certain official information remaining secret; but there is also public interest in the proper administration of criminal justice. The processes of criminal justice should not be distorted to prevent an accused from defending himself or herself properly. If the public interest demands that material capable of assisting an accused be withheld, then the proper course may be to abandon the prosecution or for the court to stay proceedings.”

 

 

 

But here, the rulings were in substance based on an evaluation of whether the material would be of assistance to the appellant in answering the case against him. As the rulings rest on this ground, and not on the overriding weight of a need to protect matters of state, no question of applying for a stay arose in consequence of the rulings.

 

In our opinion the matters argued under ground 3 do not establish any error by the trial judge, or any unfairness in the trial process.

 

The Nelipa statement was one of the documents excluded from the ruling in relation to MFI 3A and 3B. It is convenient at this point to deal with an argument addressed to the Court by the appellant in person based on the Nelipa statement as it relates to the suggestion made in the television program that Mr Worthy was a suspect. The appellant contended that the statement provides a basis for the hypothesis that Mr Worthy was the murderer, and that there has been a miscarriage of justice because that hypothesis was not placed before the jury. The appellant drew attention to statements by Mr Nelipa that were critical of senior officers including Mr Worthy for walking into the crime scene when they arrived shortly after the murder thereby risking contamination of the scene. The appellant also drew attention to statements that were critical of Mr Worthy’s authoritarian attitude towards Mr Nelipa when he asked Mr Worthy and Mr Ninness not to touch anything, and that were critical of Mr Worthy taking Mr Winchester’s office keys from the scene.

 

The appellant contends that these activities give rise to sinister inferences against Mr Worthy. It is not apparent why this is so, especially having regard to the unchallenged evidence given by Mr Ninness and Mr Worthy as to why the keys were required, and to the evidence given by many other witnesses about the movements of police officers and others at the crime scene during the early stages of the investigation. The effect of Mr Worthy’s evidence, besides confirming the conclusions of the investigation into the allegation against him as stated in Deputy Commissioner Johnson’s press release, was that he was properly conducting the inquiry at hand. If the appellant wished to challenge that evidence he had ample opportunity to do so during the Crown case.

 

Mr Worthy gave evidence early in the trial at a time when the appellant was unrepresented. The appellant did not cross-examine him. At the time the appellant said he would not participate in the trial in case he was taken to be waiving his complaint that the trial should have been adjourned until he was legally represented.

 

When Mr Terracini later appeared for the appellant the possibility of recalling witnesses who had not been cross-examined was canvassed. On 1 August 1995 the trial judge gave leave for Mr Worthy, among other witnesses, to be recalled for cross-examination. This had not occurred when the appellant again dismissed his lawyers on 11 August 1995.

 

On 28 August 1995 the DPP served on the appellant a letter listing the witnesses which Mr Terracini had asked to have recalled, and attached a copy of the relevant parts of the transcript relating to that application. The letter said that the DPP would submit to the trial judge that unless the appellant indicated his intention to cross-examine the witnesses the prosecution should not be required to recall them. Prosecuting counsel made that submission orally to the trial judge on 28 August 1995. The trial judge indicated to the appellant that he was required to indicate which witnesses were required for cross-examination.

 

The appellant did not request that any witnesses be recalled, and when Mr Ninness was recalled on 30 August 1995 the appellant declined to cross-examine him. The Crown then closed its case. The appellant had not taken the opportunity to explore in cross-examination with Mr Worthy any of the matters raised in his evidence, in the television program, or in the Nelipa statement. At the conclusion of the trial there was no evidence which could support a suggestion that Mr Worthy was a suspect, let alone to support a rational hypothesis that he was the murderer. On the contrary, the sworn evidence of Mr Worthy that negated the suggestion remained unchallenged. As the appellant had ample opportunity at trial to pursue the issues that he now seeks to agitate, there was no unfairness in the trial process. Moreover, there is nothing in the material to which the appellant has referred on the appeal which suggests that information that was likely to assist him in his defence of the charge was kept from the jury.

 

Ground 4

Ground 4 of the notice of appeal complains that the trial judge erred in refusing leave to the appellant to reopen the defence case to call certain witnesses. Although written submissions filed on the appellant’s behalf said that this ground was abandoned, in the course of argument relating to MFI 23 and MFI 3A and 3B the ground was renewed in relation to Mr McDonald and Mr Nelipa.

 

The Crown case was closed on 30 August 1995. No request had been made by the appellant or counsel on his behalf to have Mr McDonald called in the Crown case, or for Mr Nelipa, who had been cross-examined by the appellant’s counsel on 12 July 1995, to be recalled for further cross-examination.

 

On 31 August 1995 the appellant renewed his instructions to his lawyers. The trial was adjourned to 5 September 1995 when counsel opened the defence and the appellant commenced to give evidence. The evidence of the appellant was completed on 25 September 1995. Later that day the appellant again withdrew instructions to his lawyers. The appellant closed the defence case on 26 September 1995 and announced that he would not address the jury. The trial was stood over to the following week. When the trial resumed on 3 October 1995 counsel again appeared for the appellant. Mr Terracini sought to reopen the defence case and to call a number of witnesses including Mr McDonald and Mr Nelipa. The application was opposed. The trial judge heard argument as to the relevance of the evidence of each witness proposed to be called. Leave to reopen the defence case was granted for the purpose of calling some of the proposed witnesses, but leave to call Mr McDonald and Mr Nelipa was refused.

 

The appellant now contends that by the refusal of leave he was deprived of the opportunity to adduce evidence that would have substantially assisted his defence, in the case of Mr McDonald by laying the basis for a rational hypothesis that a person or organisation referred to in MFI 23 might possibly have been the murderer, and in the case of Mr Nelipa by showing that there was a lack of professionalism in the early stages of the investigation at the scene that may have caused the destruction or contamination of evidence.

 

It was submitted to the trial judge that Mr McDonald could give in evidence the material which caused him, at least at the time when MFI 23 was prepared, to have a serious suspicion that someone other than the appellant was the murderer, or alternatively could give evidence as to inquiries he made. The trial judge ruled that as the information stated in the report by Mr McDonald was hearsay upon hearsay, and even more remote sources of information, none of it could have probative value in laying the basis for the hypotheses sought to be established. On the suggested alternative basis his Honour ruled that the evidence would be of no assistance to the jury.

 

His Honour referred to the decision in In re Van Beelen  (1974) 9 SASR 163 as supporting the ruling that the information contained in MFI 23 was inadmissible, by reason of its hearsay nature, to provide a foundation for an hypothesis consistent with the innocence of the appellant. Whilst the provisions of the Evidence Act alter the common law hearsay rule considered in In re Van Beelen in relation to first-hand hearsay (see s.65(8)), the provisions of the Act do not render admissible remote hearsay and unsourced speculation of the kind reported on by Mr McDonald. The ruling of the trial judge was in our view plainly correct. Moreover, as we have already observed, when MFI 23 is considered with the later report MFI 97, the information contained in it fails to disclose evidence suggesting that the murder had been committed by a person or organisation the subject of that investigation.

 

Leave to call Mr Nelipa was refused on several grounds set out in the following reasons for the ruling of the trial judge:

 

“Sergeant Nelipa has already given evidence in this trial and been cross-examined by Mr O’Loughlin of counsel on behalf of the accused. He played a leading role in the investigation of the murder from a forensic point of view, and apparently when he arrived at the scene on the evening of 10 January 1989, he was the most senior forensic officer there. He was apparently interviewed by Detective Commander Allen on 4 May 1989, because he was concerned about the time that he took to obtain control of the site, and the fact that there was, in his view, a lack of professionalism in the investigation of the scene by other officers, prior to his arrival. And he expressed concern to Commander Allen that evidence may (sic - not?) have been available to assist police officers in the investigation of Assistant Commissioner Winchester’s death, because of this lack of professionalism. This is all spelt out in detail in the 11 pages of the document.

 

Firstly, it should be recorded that although the accused has had this document in his possession since 10 or 11 August, nothing more has been heard about it, so far as this court is concerned, until this morning, some 7 weeks later. There is reference to what certain other officers of the Australian Federal Police did on this particular evening, the vast majority, if not all of whom, were called in the Crown case. And prior to the Crown closing its case, no application was made that the Crown recall any of these persons.

 

One name that is mentioned on more than one occasion in the document is that of Commander Ninness. He was called, on 30 August shortly before the Crown closed its case, and although having been given ample opportunity to do so, [the accused] elected not to cross-examine Commander Ninness. These are not matters that can be taken lightly, because, even though at times Mr Terracini has referred to the material in this document as only being marginally relevant, he argues that it casts doubt upon the police investigation on the evening in question, and is a matter which should rightly be taken into consideration by the jury.

 

But enormous difficulties arise in this regard. Firstly, there is the fact that much of the material upon which Sergeant Nelipa relies was hearsay in that it was matter which had been told to him by other police officers when he arrived at the scene or surmised by him. Where does it leave the Crown?  Are they to seek to recall all the officers at this stage who have given evidence, much of which is wholly inconsistent with some of Sergeant Nelipa’s observations in the document itself. It must be borne in mind that this document is an expression of Sergeant Nelipa’s views. Is the jury to speculate from this material that there may have been material available to assist the accused’s case but about which they will never know?

 

Bearing in mind the events which have happened, I think it would be completely unconscionable that at this stage the accused should now have the right to call Sergeant Nelipa and seek to adduce from him the material which is contained in this document and on that basis I would reject the material. I am, however, completely satisfied in my own mind, having lived with this case for the last 20 weeks before the jury, that no real prejudice would be suffered to the accused by the exercise of my discretion in this way. The strong impression that I get from reading this document is that Sergeant Nelipa was concerned that there may have been other evidence available to implicate the accused which was forever denied to the police.

 

Indeed, when asked whether at the conclusion of the interview he had anything further to say, he said, ‘No, no, I don’t really have any more to say apart from it would be wrong to look at anyone as a suspect for this offence where there is really a - there’s a mountain of physical evidence, as far as I can see, pointing towards one individual and that is very clear to me and that person, of course, is Mr Eastman.’  Some judicious cross-examination from Mr Adams would, I think, result in this document causing more harm to the accused than any perceptible benefit to him.”

 

 

 

The defence case had been closed when the application to call Mr Nelipa was made. Had his recall been permitted to allow his concerns about aspects of the early control of the crime scene to be explored, many police witnesses who had already given evidence would have had to be recalled. To allow a procession of police witnesses to be recalled after the close of the defence case, especially on an issue where there was reason to think that the evidence would be unfavourable to the point which the appellant was seeking to make, could have seriously impaired the fairness of the trial, and worked to the prejudice of the appellant. In any event, as the trial judge noted, the concerns of Mr Nelipa did not cause him to question the strength of the evidence implicating the appellant, and the introduction of the Nelipa statement would not have assisted the appellant’s case. On the contrary it is more likely that it would have been detrimental.

 

The complaints made under ground 4 by the appellant are without substance.

 

Ground 5

Ground 5 contends that the trial judge erred in directing the jury that evidence that Mr Klarenbeek had said to Constable Pattenden that he could not recognise anybody from photographs in exhibit 73 could not be regarded as evidence of the truth of the words uttered by Mr Klarenbeek.

 

The question whether the appellant was the purchaser of the Klarenbeek Ruger 10/22 was an important issue in the trial. The appellant in his evidence denied ever meeting Mr Klarenbeek, visiting his house, or purchasing the gun from him.

 

By the time of the trial, Mr Klarenbeek had died. He had testified at the inquest but his evidence was not admissible in the trial (except by consent) as relevant provisions of applicable ACT legislation were not satisfied. On 5 and 6 June 1995, Mr Terracini in the cross-examination of Mr Pattenden adduced evidence that Mr Pattenden had spoken to Mr Klarenbeek soon after the murder in relation to the Ruger 10/22. Mr Pattenden had shown him a folder of photographs (now exhibit 73). Over objection from the Crown, Mr Terracini was permitted to cross-examine to obtain evidence that one of the photographs was of the appellant, and further that Mr Klarenbeek said he did not recognise anyone in the photographs (“the Klarenbeek representation”).

 

The Crown objected to this line of cross-examination arguing that the Klarenbeek representation was hearsay, and for that reason inadmissible to prove the truth of what Mr Klarenbeek had said. In argument in the absence of the jury, the trial judge said that he considered the evidence was admissible as relevant to the investigations conducted by the police but not as evidence of the truth of the statement. Mr Terracini said that the appellant sought “to rely on his (Mr Klarenbeek’s) observations”, that is for the hearsay purpose of proving the truth of the statement. However he also said in the course of submissions “well in the alternative, we certainly would not be cavilling with a Subramaniam sort of situation where it goes in not necessarily as to its truth but, in my submission, in the context of this case it is admissible”.

 

This submission was a reference to the often cited decision of the Privy Council in Subramaniam v Public Prosecutor [1956] 1 WLR 965, where at 970 the Board said:

 

“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.”

 

 

 

The trial judge said that he regarded the cross-examination of Mr Pattenden as permissible, but he would reserve the question of the direction he should give to the jury regarding the evidence until the evidence was complete and it was known how the appellant would develop his defence.

 

The matter was not the subject of further submissions during the course of evidence, and did not arise again until 16 October 1995 when the appellant in his address to the jury relied on the Klarenbeek representation as evidence that he was not the purchaser of the Ruger 10/22. Then on 27 October 1995 in the absence of the jury the trial judge invited submissions from the parties on the direction he should give to the jury. The appellant sought a direction that the Klarenbeek representation could be used as evidence that Mr Klarenbeek could not identify him as the purchaser of the rifle. The trial judge however ruled that the evidence was admissible as showing the course of the investigation conducted by the police, but could not be used as evidence that Mr Klarenbeek did not in fact recognise the appellant. The jury was given a general direction regarding hearsay evidence, and then directed in relation to Mr Klarenbeek’s statement in accordance with the ruling.

 

 

Part 3.2 of the Evidence Act deals with hearsay evidence. Section 59 expresses the hearsay rule: see the Dictionary to the Act. It provides:

 

“59.(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

 

(2) Such a fact is in this Part referred to as an asserted fact.”

 

 

Section 59 is in terms that reflect the common law rule that hearsay evidence is not admissible to prove the truth of the fact stated. A “representation” and a “previous representation” are defined in the Dictionary. A “representation” includes an express oral representation, and a “previous representation” means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. Division 2 of Part 3.2 of the Act provides for the admission of “first-hand” hearsay. For the purposes of that Division (comprising ss.62-68), first-hand hearsay is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact: s.62. Sections 63 and 64 provide for the admission of first-hand hearsay in civil proceedings. Section 65 provides for the admission of first-hand hearsay, as an exception to the hearsay rule, in criminal proceedings if the maker of the representation is not available, and s.66 provides for the admission of first-hand hearsay in criminal proceedings if the maker is available. Clause 4 of Part 2 of the Dictionary specifies the circumstances in which a person is taken not to be available to give evidence about a fact. Death is one of those circumstances. The exceptions to the hearsay rule in s.65(2), (3) and (8) are subject to the requirement that prior notice to the other parties to the proceeding be given: see s.67. Section 67(4) makes provision for a situation where notice is required but not given. The exceptions are also subject to the general discretions to exclude evidence, or to limit its use, contained in ss.135-138.

 

Sections 65 and 67 of the Act relevantly provide:

 

“65.(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

 

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:

 

(a)       made under a duty to make that representation or to make representations of that kind; or

 

(b)      made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

 

(c)    made in circumstances that make it highly probable that the representation is reliable; or

 

(d)       against the interests of the person who made it at the time it was made.

 

(3)      ...

(4)      ...

(5)      ...

(6)      ...

(7)      ...

 

(8) The hearsay rule does not apply to:

 

(a)      oral evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or

 

(b)     a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

 

(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that:

 

(a)       is adduced by another party; and

 

(b)       is given by a person who saw, heard or otherwise perceived the other representation being made.

 

66. ...

 

67.(1) Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.

 

(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.

 

(3) The notice must state:

 

(a)     the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and

 

(b)      if subsection 64(2) is such a provision - the grounds, specified in that provision, on which the party intends to rely.

 

(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.

 

(5) The direction:

 

(a)       is subject to such conditions (if any) as the court thinks fit; and

 

(b)       in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.”

 

 

 

In giving brief reasons for the ruling his Honour held that the evidence of Mr Klarenbeek’s statement to Mr Pattenden fell within the provisions of s.59. His Honour understood the submissions of the appellant made on 27 October 1995 to be an application under s.67(4) for a direction that the hearsay rule not apply in relation to the Klarenbeek representation despite the appellant’s failure to give notice as required by s.67(1). His Honour went on to say:

 

“No notice was ever given under s.67(1), and no application was ever made to me on behalf of the defence that my discretion should be exercised pursuant to the provisions of s.77(4) (sic - 67(4)).

 

The accused attributes this to what he says is the incompetence of his legal advisers. One of the major difficulties, however, which the accused faces is that irrespective of the cause, no such application was ever made, and no notice was ever given in relation to either Detective Pattenden’s evidence, or in relation to the evidence of other police officers. The matter rested, so far as the evidence is concerned, on what transpired on 5 and 6 June 1995. Mr Adams has put to me that had notice been given, or had an application for the waiver of such notice been given, he would have put before me evidence directed to undermining any submission that this material came within the provisions of 65(2).

 

Of course, it is out of the question at this stage of the trial that I entertain any evidence in that regard at this stage. It seems to me, therefore, that I have absolutely no alternative but to refuse the application which has been made before me by the accused nunc pro tunc this morning...”.

 

 

 

Before this Court the appellant contended that the trial judge erred in the reasons for his ruling. It was contended that the effect of s.60 of the Evidence Act in this case is that the hearsay rule did not apply, regardless of the operation of ss.65 and 67. Section 60 provides:

 

“60. The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.”

 

 

 

In the alternative, it was contended that the trial judge erred in declining to make a direction under s.67. It was submitted that the trial judge erred in treating s.65(2) as material to the ruling as s.65(8) is the relevant subsection where the evidence is to be adduced by a defendant, and s.65(8) does not require fulfilment of any of the pre-conditions contained in s.65(2).

 

When the question arose about the admissibility of the Klarenbeek representation on 5 and 6 June 1995 no attention was given to the Evidence Act which had only recently come into force. The trial judge was not referred to any of the provisions of the Act. The initial ruling was not made in the context of the Act, but by reference to common law principles.

 

The question of the application of the Evidence Act to the trial arose in relation to a later witness on 6 June 1995. The trial judge then ruled that the Act applied. There was argument about the admissibility of evidence from Mr Webb about a statement that he said Mr Klarenbeek had made to him about the sale of the Ruger 10/22 to another person, and that the purchaser did not want the telescopic sight. The trial judge ruled in favour of the Crown adducing this evidence, which had been the subject of a s.67 notice by the Crown before trial. His Honour considered s.65 and also referred to s.137 as Mr Terracini had argued that the evidence should be excluded on the ground of unfair prejudice. Whatever the state of knowledge of the appellant and his lawyers about the Evidence Act may have been up to that time, the ruling made on 6 June 1995 must have informed them about the application and operation of the hearsay evidence provisions of the Act.

 

On 27 October 1995 the appellant’s argument assumed that the hearsay rule did apply unless a direction was given under s.67(4). He did not argue that by reason of s.60 the hearsay rule did not apply. Unfortunately therefore the provisions of s.60 did not receive the attention of the trial judge.

 

Section 60 reverses the common law rule that evidence of a statement made to a witness by a person who is not called as a witness, if admitted under the Subramaniam principle to prove the fact that the statement was made, could not be used for a hearsay purpose. Under s.60 the statement is now evidence of the truth of the matter asserted, unless a direction is made under s.136 to limit the use of the evidence. In R v Welsh, (unreported, NSW Court of Criminal Appeal, 6 November 1996), Hunt CJ at CL delivering the judgment of the Court observed, at p.7:

 

“Section 60 has extraordinarily wide ramifications. Its most obvious effect is in relation to prior inconsistent statements. Before the Evidence Act, a prior inconsistent statement was admissible only to prove that the statement had been made, and so was relevant to the credit of the witness; it did not by itself prove the truth of what had been said. Once that statement is admitted for that purpose, s 60 now makes it evidence of the truth of what had been said. Evidence of complaint in sexual cases was previously admissible only to establish the complainant’s credit as a witness but not as evidence as to the truth of what was said. Section 60 now operates to make it such evidence. The effect of s 60 in other situations is fast becoming one of the real growth areas in the law.”

 

The trial judge admitted the evidence about the Klarenbeek representation on 5 and 6 June 1995 on the basis that it was relevant to the course of the police investigation. Although the implications of the Evidence Act were not appreciated at the time, once the representation was admitted for that purpose, under s.60 the hearsay rule did not apply to it. Absent any direction limiting the use to be made of that evidence, the representation was evidence of the truth of the fact asserted. So much is now conceded by counsel for the Crown, who argued that in light of the defence case as it is now disclosed by the evidence, it should be determined that the Klarenbeek representation had no relevance to any issue in the trial, and should not have been admitted for a non-hearsay purpose under s.60. Accordingly there has been no miscarriage of justice in consequence of the ruling. Further it was argued that the ruling made on 27 October 1995, which had the effect of limiting the use to be made of the evidence to a non-hearsay purpose, was appropriate in the circumstances of the case, and justified by the power in s.136.

 

In reply to this submission, Mr James argued that the adequacy of the police investigation was always an issue at trial as the appellant contended that the police had so concentrated on establishing his guilt that they had disregarded any evidence that was favourable to him. Whilst that was a line of defence pursued by the appellant, it was never related to that part of the police investigation which concerned Mr Klarenbeek. At the time when objection was taken to the Klarenbeek representation being led from Mr Pattenden, apart from the oblique statement that in the alternative the appellant would not cavil with a Subramaniam sort of situation, Mr Terracini argued that the statement should be admitted to prove the fact of non-identification, not as relevant to some aspect of the police investigation. Thereafter it was never suggested by the defence that the statement had any relevance to the case except for its hearsay purpose.

 

With the benefit of hindsight we consider that the Klarenbeek representation was not properly admitted pursuant to s.60 as it was not relevant for a purpose other than proof of the fact intended to be asserted by the representation. The erroneous reception of the evidence favoured the appellant and does not give rise to any miscarriage of justice.

 

As the Klarenbeek representation was in fact admitted for a reason which attracted the operation of s.60, theoretically it could be used for a hearsay purpose unless its use was limited by a direction under s.136. That use was not dependent upon prior notice of intention pursuant to s.67(1), and an application under s.67(4) would not have been necessary. For reasons which appear later in this section of the judgment, this was a case where a direction under s.136 to limit the use of the evidence to the non-hearsay purpose for which it was originally admitted would properly have been made on 27 October 1995 had that section been referred to in conjunction with s.60.

 

Counsel for the Crown advanced a further argument, unrelated to ss.60 and 136, in support of the correctness of the ruling and the direction to the jury. It was contended that a tactical decision had been made in the appellant’s case not to invoke provisions of the Evidence Act which would enable the Klarenbeek representation to be used for a hearsay purpose (i.e. as evidence of the fact asserted), but rather to leave the evidence as it stood at the conclusion of Mr Pattenden’s cross-examination. At that stage the jury had simply been informed of the non-identification by Mr Klarenbeek as a step in the course of the police investigation. Counsel for the Crown contended that this deliberate decision was made to give the appellant the best of two worlds: the jury would be left knowing of the non-identification even though it was not admitted for a hearsay purpose, and the Crown would be denied the opportunity of putting before the jury other evidence of previous representations by Mr Klarenbeek which had the potential to be detrimental to the appellant’s defence.

 

His Honour had been informed early in the trial that the Crown had offered to consent to the tender of Mr Klarenbeek’s evidence given at the Inquest (which included the record of interview with Mr Pattenden) but at that time had also foreshadowed that if the evidence were tendered by the appellant, the Crown would seek to adduce evidence as to why the jury ought not to accept Mr Klarenbeek’s evidence of non-identification. That offer was not taken up by the appellant or his lawyers during the trial. It is apparent from the reasons for the ruling on 27 October 1995 that his Honour appreciated that the Crown would be denied the opportunity of leading evidence upon which it desired to rely if a belated ruling were made to allow the use of the Klarenbeek representation for a hearsay purpose.

 

The Crown relied on an affidavit of Ms J A Woodward sworn on 6 March 1997. The affidavit put before this Court correspondence which had taken place at the commencement of the trial between the parties, and included Mr Klarenbeek’s evidence at the Inquest, and records of interview with police officers. The affidavit showed that all this material was available to the appellant and his lawyers throughout the trial. The Crown contended that the effect of other previous representations by Mr Klarenbeek contained in this material, would have supported the Crown case in four respects:

(a)     Mr Klarenbeek in one record of interview said that he sold the Ruger 10/22 with a silencer but without the telescopic sight. The Crown submitted that this was a significant piece of evidence because Mr Webb, in an earlier statement to the police, said that Mr Klarenbeek had told him that he sold the gun without a silencer.

(b)   Mr Klarenbeek said that the sights on the Ruger 10/22 were inaccurate. The Crown contends that this would have explained why the appellant tried to sell the rifle to Mr Reid a few days later.

(c)    Mr Klarenbeek said that the rifle was sold on Sunday 1 January 1989 to a man who had attended on the Saturday to inspect it, and who had haggled about the price. This evidence would have been relevant to the Crown case as:

          (i)           it was unlikely that a professional assassin seeking a weapon would haggle over the price, and then return to the vendor the following day.

          (ii)          the Crown led evidence that the appellant withdrew $200 from an ATM on 1 January 1989.

(d)     Evidence would be led to show that Mr Klarenbeek’s identification was unreliable as Constable Cotterill had on another occasion shown him photographs which included ones of Mr McCorry and Mr Webb, both of whom had been at Mr Klarenbeek’s place for lengthy periods of time in relation to the purchase of guns immediately following the advertisement placed by Mr Klarenbeek on 31 December 1988, and Mr Klarenbeek said that he could not identify either of them as persons who had purchased guns from him.

 

The Crown’s submission that a deliberate decision was made not to invoke provisions of the Evidence Act directs attention to s.65(9) which has been referred to as the “retaliatory” hearsay exception: see “Hearsay and Related Evidence - A New Era?” MJ Beazley (1995) 18 UNSWLJ 39 at 49. Pursuant to that subsection, if evidence of a previous representation by someone who is not available to give evidence about a matter has been adduced by the defendant in a criminal proceeding and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that is adduced by another party and is given by a person who saw, heard or otherwise perceived the other representation being made. The reference to “another party” plainly includes the Crown, and the right of the Crown to respond under s.65(9) is not limited by the preconditions that would govern the leading of first-hand hearsay evidence as part of the Crown case in chief under s.65(2): R v Mrish (unreported, Supreme Court of NSW, Hidden J, 4 October 1996) at p.5. Had an application been made by the appellant during the course of evidence to rely on s.60, or if the Klarenbeek representation had been admitted under s.65, s.65(9) would have permitted the Crown to adduce into evidence the other previous representations made by Mr Klarenbeek.

 

If the question of the admissibility and use of evidence of previous representations by Mr Klarenbeek for hearsay purposes had not received the attention and consideration of the appellant and his lawyers before 6 June 1995, the argument and ruling on that day relating to Mr Webb’s evidence of what Mr Klarenbeek said to him must have alerted them, at the least, to the operation of ss.65 and 67 and the discretionary powers to exclude or to limit the use of evidence contained in ss.135-138. Even if s.60 were, by oversight, not considered the implication of s.65(9) must have been apparent, at least to the appellant’s lawyers. If s.60 had been considered there would have been a question whether the retaliatory provisions of s.65(9) applied where evidence of a previous representation was admitted under s.60. The language of s.65(9) would appear to be wide enough to encompass that situation. And if the retaliatory exception did not apply, that would be an important consideration in favour of a direction under s.136 limiting the use of the s.60 evidence. There were issues about Mr Klarenbeek’s various statements that required a tactical decision by the appellant and his lawyers. They needed to consider whether to leave the evidence from Mr Pattenden about the Klarenbeek representation as it remained at the conclusion of his cross-examination, with the likelihood that the trial judge would direct the jury that it could not be used as evidence of the truth of the non-identification, or to run the risk that by seeking a ruling that the evidence could be used as evidence of the truth of the fact asserted, that the Crown would retaliate by leading the evidence of the other previous representations. On the information before the Court, it is not possible to tell whether a tactical decision was made, or whether the matter was simply overlooked as the trial progressed and lawyers came and went. Nor is it necessary to decide the question to dispose of the appellant’s submission. It is sufficient to note that on 5 and 6 June 1995 the evidence was in fact let in for a narrow purpose. Although the import of s.60 was not considered, the trial judge at the time did not admit the Klarenbeek representation for use as evidence of the truth of the fact asserted. An express ruling limiting the use to be made of the evidence was within the power of the Court under s.136. In reality, the trial proceeded as if such an order had been made to reflect the basis on which the evidence was admitted. The evidence having been admitted for a limited purpose, it remained for the appellant to make application to have the Klarenbeek representation admitted as evidence of its truth. One course would have been to give notice under s.67 of an intention to adduce the evidence under s.65(8). This was never done, although at least by 6 June 1995 it must have been apparent that this was the procedure required by the Evidence Act.

 

As it was, by the time the appellant applied for a direction under s.67(4) it was far too late in the trial process to permit the Crown to call retaliatory evidence. As that course was not open, the Crown would have suffered unfair prejudice if a direction were made that had the effect of allowing the Klarenbeek representation to be used as evidence of the truth of the fact asserted. That would also have been the case if the appellant had sought to call in aid s.60 at that late stage.

 

In considering the appellant’s application on 27 October 1995 the trial judge referred to s.65(2) when noting that the Crown had indicated that it had retaliatory evidence. Presumably his Honour had in mind s.65(2)(c). For reasons already given, s.65(2) was not the applicable provision. However, the question of reliability, or rather from the Crown viewpoint the unreliability, of the Klarenbeek representation, would be the same issue which the Crown would have sought to raise under s.192 had the application been considered under s.65(8).

 

The ruling on 27 October 1995 was plainly a correct ruling at the late stage in the trial when the application was made. But it remains to consider the submission of the appellant that a miscarriage of justice has occurred because the necessary steps were not taken in a timely fashion to give notice under s.67(1), or to make an application under s.67(4) to obtain a direction or ruling which would permit the Klarenbeek representation to be used as evidence of the fact asserted.

 

It will be remembered that the appellant asserts that the failure to make an application to use the representation for a hearsay purpose at an earlier stage in the trial was due to the incompetence of his lawyers.

 

The appellant’s lawyers must have been alive to the implications of the hearsay provisions of the Evidence Act on 6 June 1995 at the latest. It is possible that a deliberate decision was then made not to raise the issue of the Klarenbeek representation again. It is possible that the lawyers intended to raise the issue as the trial progressed and to confront the evidence which the Crown would lead in response, but had their instructions withdrawn in the meantime. It is also possible - indeed it seems more likely - that the matter was simply overlooked. But whatever the explanation, had the application been made at an appropriate time, before the close of evidence, in our opinion one of two things would have happened. Either by an express exercise of the discretion under s.136 the use of the evidence of the Klarenbeek representation would have been limited to a non-hearsay purpose, or the Klarenbeek representation would have been admitted for a hearsay purpose and the Crown would have been permitted to adduce the evidence of the other representations made by Mr Klarenbeek. The former situation is, effectively, what resulted from the ruling made on 27 October 1995. The latter situation would have placed before the jury evidence of the other previous representations by Mr Klarenbeek. The information before this Court about those representations suggests that the additional evidence would have been more likely to assist the Crown case than the defence. It is sufficient however for this Court to conclude, which we do, that the appellant has failed to demonstrate a miscarriage of justice, resulting from the ruling limiting the use to be made of the Klarenbeek representation.

 

Ground 6

The appellant contends that his Honour the trial judge erred in his application of the rule in Browne v Dunn (1893) 6 R 67 and in the directions he gave to the jury regarding the failure of the defence to cross-examine certain prosecution witnesses.

 

In order to understand the nature of the complaint made by the appellant under this ground it is necessary to set out the background to which it refers.

 

On 18 May 1995 when the Crown called its first witness, the appellant was represented by Mr O’Donnell of counsel. At the conclusion of proceedings on that day the trial was adjourned to Monday 22 May 1995. When the trial resumed on 22 May 1995 the appellant advised the Court that he had withdrawn Mr O’Donnell’s instructions. Later that day Mr Baird, a solicitor from Sydney, announced his appearance for the appellant. Mr Baird sought an adjournment in order to familiarise himself with the material. He advised the trial judge that Mrs Winchester, who was then giving evidence, Mr Ken Winchester, who was soon to be called, and Mr Ninness, the officer in charge of part of the murder investigation who was also expected to be called that day, were seen by the appellant as crucial witnesses whose cross-examination was crucial to the defence case and he needed to read the material and to instruct counsel to appear. Having regard to the appellant’s history of withdrawing instructions and the fact the trial judge had adjourned the trial at the luncheon adjournment on Thursday 18 May 1995 to allow Mr O’Donnell to prepare his cross-examination of these witnesses, the adjournment was refused. At the conclusion of the evidence in chief of Mrs Winchester, Mr Baird advised his Honour that he had no questions in cross-examination but reserved the right to apply at a later stage to re-call Mrs Winchester for cross-examination. Mr Baird did not seek to cross-examine Mr Ken Winchester, nor one of the attending ambulance officers, a Mr David Salvestrin. The next witness called was Mr Ninness.

 

During the evidence of Mr Ninness a question arose as to whether any objection was taken as to certain evidence proposed to be led through the witness. In part the Crown Prosecutor said:

“MR ADAMS:  Your Honour, it is not for me, of course, to tell Mr Baird what his position is but it should be made clear that the rule in Browne v Dunn operates to prevent evidence given - essentially evidence given in contradiction or qualification of a witness’ evidence unless that matter has been earlier put to the relevant witness and a response able to be given, in failure of which it may be that the Crown will succeed in having that evidence - that witness recalled in reply and it would be a matter for your Honour’s discretion at any time whether it was appropriate even with that power that contradictory evidence be sought to be led. I raise that, again, perhaps for more abundant caution, that Mr Baird and his client ought to clearly understand the - that particular rule.”

 

 

After the luncheon adjournment on that day Mr Baird advised that he had withdrawn from the case and would no longer be representing the appellant. Again unrepresented, the appellant applied for his Honour to disqualify himself from the proceedings on the grounds of apparent bias. The application was refused. At the conclusion of the evidence in chief of Mr Ninness, the appellant was asked whether or not he had any questions for the witness. The following exchange took place between the appellant and the trial judge:

“THE ACCUSED:  My previous comments apply, your Honour.

 

HIS HONOUR:  I am taking that to mean you have no questions. You are not exercising your right of cross-examination. Is that the position?

 

THE ACCUSED:  I mean, your Honour is not going to sort of - - -

 

HIS HONOUR:  No, I just want to know. You now have a right to cross-examine this witness and by declining to ask him any questions you are not exercising that right.

 

THE ACCUSED:  No, your Honour is wilfully twisting what I have said. What I do have - - -

 

HIS HONOUR:  No, I am not misconstruing what you have said. I am just indicating that that is the position.

 

THE ACCUSED:  Well, with respect, you are. What I have a right to is proper legal representation and your Honour has refused to grant me an adjournment and as I have already said, that has produced a situation where I am unrepresented and as I have already said, I do not consent to anything. I do not agree to anything. I do not go along with anything. I do not waive my rights in respect of a single thing. I do not comment, Yea or Nay in any way whatsoever while I am unrepresented because that would be most unfair.

 

HIS HONOUR:  Yes.

 

THE ACCUSED:  And I again say these proceedings should be adjourned until I am properly represented and that your Honour’s failure to do that constitutes a travesty of justice.

 

HIS HONOUR:  Yes, very well. You may leave the witness box. You are excused for the moment.”

 

 

The next witness called by the Crown was Mr Nelipa. Mr Nelipa gave evidence of what he saw when he attended at Lawley Street at about 10.00 pm on 10 January 1989 and what he did there. He also gave evidence in relation to the examination of a Mazda motor vehicle and other evidence relating to the collection, testing and identification of materials. At the conclusion of Mr Nelipa’s evidence in chief the appellant again declined to cross-examine because he was unrepresented and because he wished the witness to be “extensively and forensically cross-examined on [his] behalf”. To this end he applied to have the witness recalled for cross-examination on the following Monday or adjourned until that time. The appellant had advised the trial judge that the solicitor he had engaged would not be available until that time. The application was refused and Mr Worthy was called as the next Crown witness. At the conclusion of his evidence when asked if he wished to cross-examine the witness, the appellant stated “My previous comments apply ...”.

 

The Crown then called Sergeant Robert Hanisch who was attached to the Crime Scenes Branch of the Forensic Services Division. When asked if he wished to cross-examine this witness, the appellant replied “Your Honour, until I am represented, I obviously cannot say anything.”

 

The appellant made a similar response in relation to the evidence of Sergeant Case, Dr Richard Eggleton, Detective Sergeant Robin Bush, Mr Ian Drinnan, Mr John Crossley, Sergeant David Ashurst, Mr Nelipa when he was recalled, Detective Constable Colin Jackson and Detective Constable Phillip Thomson.

 

Although it had previously been announced by the appellant that he would be represented by solicitor and counsel on and from 29 May 1995, that did not occur. The consequence of his being unrepresented was that the appellant declined to cross-examine on the same basis as he had earlier indicated.

 

On 31 May 1995 Mr O’Loughlin of counsel again appeared for the appellant instructed by Mr Hovan, solicitor, and advised the court that he would be led by Mr Terracini. The trial was adjourned to 2.15 pm on 1 June 1995 to take the evidence of Mr Caldwell as to his ownership, use in Victoria and sale of a .22 Ruger which, on the Crown case, was the murder weapon. Mr Caldwell was cross-examined by Mr O’Loughlin on behalf of the appellant. Thereafter the trial was adjourned to 5 June 1995.

 

For the period 5 June to 26 June 1995, the appellant was represented by Mr Terracini and Mr O’Loughlin. During that time a number of witnesses were cross-examined. Mr Barnes was cross-examined on his evidence as to gunshot residue and ballistics by Mr Terracini. Mr Terracini also cross-examined Mr Martz, the FBI officer, in relation to his area of specialty, namely propellants used in ammunition, Mr Crum the FBI expert on firearms identification and toolmark identification, Mr Keely the Principal Scientific Officer of the Analytical Chemistry Services Division of the Metropolitan Police Forensic Science Laboratory in the United Kingdom, and Chief Superintendent Schechter, head of the Weapons Laboratory of the Investigations Department, Division of Identification and Forensic Science of the Israeli National Police. As well as the forensic evidence, evidence going to the identification of the appellant and to establish an association between him and the Ruger rifle which the Crown alleged was the murder weapon was called and was subject to cross-examination.

 

On the morning of 26 June 1995 upon the resumption of the trial the question of the recall of witnesses whose evidence was taken when the appellant was unrepresented was raised and the following occurred :

“MR O’LOUGHLIN:  Your Honour, I can inform the Crown as to a number, I cannot give them the full number of witnesses that we would make application to be recalled for this reason;  I had intended, over the weekend, to go through the entirety of the witnesses that had been called when Mr Eastman was unrepresented, but I only had part of the transcript, your Honour, the other part was with another counsel in this matter, but I can read onto the record this list that, in respect of which there will be an application made to have these witnesses recalled:  Gwen Winchester, Ken Winchester, Commander Ninness, Officer Nelipa, Commander Worthy, the crime scene investigator, Mr Hanisch, the crime scene investigator Case and Dr Eggleton. Your Honour, I will be in a position tomorrow morning to inform the Crown as to the remainder of the witnesses that there will be application to recall.

 

HIS HONOUR:  Well, in relation to each of those, you can have reduced to writing the grounds upon which you rely to justify my taking the exceptional course of requiring the Crown to recall them.

 

MR O’LOUGHLIN:  Does your Honour - can your Honour indicate by what time your Honour wishes that reduced to writing?

 

HIS HONOUR:  Well, when can you have it done?

 

MR O’LOUGHLIN:  Your Honour, I have got the rest of the transcript to read tonight, if I could have ‘til Wednesday to put the whole lot in writing, and I will certainly have that done.

 

HIS HONOUR:  Yes, well, there is no problem.”

 

 

At the conclusion of the proceedings for the day the appellant advised the Court that he had withdrawn the instructions of his lawyers. The appellant confirmed the withdrawal of the instructions on the commencement of proceedings on the following day.

 

The Crown called further identification evidence on 27 June 1995. The appellant refused to cross-examine these witnesses, giving as a reason: “Well, until your Honour prohibits illegal police bugging of my premises I cannot ask any questions.” It is clear from a reading of the transcript that on the morning of 27 June 1995 when he confirmed the withdrawal of instructions to his legal representatives, the appellant was aware that the Crown intended to call Mr Bewley, Mrs Bewley, Dr Thomas Oettle and Dr Roantree.

 

Mr Bewley was a former Public Servant who had had a dispute with the Australian Government Retirement Benefits Office which had gained some publicity. He gave evidence that he had been approached by the appellant for a meeting to discuss matters of mutual interest concerning the dispute. Mr Bewley gave the following evidence as to part of that conversation:

“MR ADAMS:  And did you make any other suggestions to him, so far as you can recall? --- Yes. I mean, I remember the discussion and I guess what I was doing was making suggestions following the approach that I had taken, which was to pursue a range of avenues to try and gain sympathy, support and so on. So, there was the union, the Ombudsman, the Administrative Appeals Tribunal, writing to politicians, perhaps airing the case publicly in an attempt to gain some sympathetic treatment. But none of these seemed to draw any positive reaction.

 

How did the conversation end? --- Quite, I suppose, abruptly would be the way to describe it. I think things had been talked right through and I was quite surprised the conversation finished by Mr Eastman getting up onto his feet and he said, ‘Well, sometimes I just get so frustrated I could just get a gun and kill someone.’”

 

When asked whether he had any questions the appellant replied:

“For the reasons previously stated I cannot possibly be expected to cross-examine the witness.”

 

 

Mrs Bewley gave evidence to similar effect of that given by her husband. Again the appellant declined to cross-examine her for the same reason.

 

Dr Oettle, a forensic pathologist, gave evidence of his examination of the deceased at the crime scene and of the postmortem he conducted including details of the recovery of two bullets from the deceased. The appellant again declined to cross-examine Dr Oettle for the same reason.

 

On 28 June 1995 the Crown called Dr Roantree to give evidence. Dr Roantree had been the appellant’s general practitioner for some years. He gave evidence of a consultation he had with the appellant on 6 January 1989. In part Dr Roantree said:

 

“THE WITNESS:  I inquired whether he had heard anything further from the public service about his job reinstatement which he had been hoping to have reinstated. His answer was that he hadn’t and that he would expect it to take a while but he was hopeful that there would be something come up in the near future. But he stated that he was worried about a pending assault charge that had been brought against him and he said he’d been to see the Police Commissioner with a political figure and that he hadn’t received any help there at all. In fact he said that he’d been thrown out or virtually thrown out of the office, that was his interpretation of what had happened and his last statement was that he felt like getting up and pushing the commissioner off his chair.

 

Now, I was washing my hands at the time and I made the comment, ‘You can’t do things like that. You can’t push police commissioners off their chair.’  And when I returned to my desk I felt that there was very extreme anger towards that comment. He said that he wasn’t listened to at all and he was furious. I then deflected any ongoing business there and turned to his current condition and we discussed his symptoms at the time. I examined him and I dealt with the medical side of things. And then I began to write some referrals and as I was writing referrals he - he felt - he said that he felt that he - his condition may be deteriorating. And I stated that from my observations over the last 10 years I felt that his condition was improving. Then he made the comment that the police should be taught a lesson. Every time something happens he feels - felt that he was suspected and every time he reports - reported anything he got the blame. I then talked to him about what I had written referrals for and finished the consultation and - and that was the end of the consultation.

 

MR ADAMS:  Now, as he left, did he say anything? --- Well, I believe that he said, ‘I should shoot the bastard.’”

 

 

The appellant declined to question Dr Roantree reiterating “My previous comments obviously apply”. The Crown Prosecutor then repeated that Dr Roantree was about to depart for overseas and would be absent for a period of six weeks and therefore may not be available for cross-examination at a later time.

 

On 29 June 1995 the appellant was removed from the Courtroom in the circumstances set out earlier in these reasons and his participation in much of the trial thereafter was at times via the video link. On this day expert evidence was given by Professor Schuel Zitrin of the Israeli National Police which was supportive of the methodology and results of the testing of Mr Barnes. The appellant applied to have the cross-examination of this witness stood over until after the hearing of the applications for leave to appeal to the Full Court of the Federal Court were heard on the coming Monday. The trial judge advised the appellant that Professor Zitrin was committed to return to Israel. Therefore his Honour said that it was the appellant’s last opportunity to cross-examine the witness because his Honour was going to excuse the witness who would return immediately to Israel. The appellant repeated his application for cross-examination to stand over and the witness was excused.

 

On 10 July 1995 Mr Terracini again announced his appearance with Mr O’Loughlin instructed by Mr Hovan for the appellant and resumed the conduct of the defence, including the cross-examination of witnesses. During the afternoon of 10 July 1995 the Crown called Mr Andrew Russo who gave evidence in chief concerning the alleged assault on him by the appellant on 17 December 1987. At the conclusion of his evidence in chief the jury was released until 10.00 am the next day. Such a course had been agreed between the Crown Prosecutor, Mr Terracini and the trial judge to allow Mr Terracini to take instructions from the appellant and to prepare for his cross-examination of Mr Russo. Counsel for the appellant also provided to the Crown Prosecutor and the trial judge a list of witnesses which they wished to have recalled for cross-examination. Mr Terracini then sought an adjournment of the trial pending the outcome of an application for special leave to appeal to the High Court from the refusal of the Full Court of the Federal Court to grant leave to appeal. As the trial judge was giving reasons why he would not adjourn the trial, the appellant announced that he was withdrawing instructions from his legal advisers. The appellant again pressed for an adjournment of the trial which was refused.

 

At the commencement of proceedings on 11 July 1995 Mr O’Loughlin announced that further instructions to appear had been received from the appellant. However overnight Mr Terracini had been admitted to hospital for acute surgery and was unavailable to cross-examine the witnesses which the Crown intended to call. Mr O’Loughlin stated that he was not in a position to cross-examine the witnesses and sought an adjournment until 17 July 1995 when it was thought likely that Mr Terracini would return. His Honour declined to adjourn the trial for such a length of time but agreed to adjourn to 10.00 am on the following day to allow Crown counsel and Mr O’Loughlin to work out alternative witnesses to progress the trial.

 

On 12 July 1995 the Crown re-called four of the police witnesses, Mr Nelipa, Mr Hanisch, Mr Case and Mr Ashurst, each of whom was cross-examined by Mr O’Loughlin on behalf of the appellant.

 

On 13 July 1995 at just before 11.00 am Mr O’Loughlin announced that his instructions had been withdrawn. At 11.15 am Mr Burgess sought an adjournment of the trial until the following Monday. His Honour released the jury until 10.00 am on the following Monday. Mr Burgess then announced that his instructions to appear on the appellant’s behalf had been withdrawn.

 

On Monday 17 July 1995 Mr Terracini again announced his appearance with Mr O’Loughlin and Mr Tyndall of counsel for the appellant. After the trial judge ruled that evidence given on a voir dire by Mr Barbara, the appellant’s former solicitor, that the appellant had said to him during a consultation in late 1988 or early 1989 words to the effect “I’ll kill Winchester and get the Ombudsman too” was admissible in evidence against the appellant, the appellant withdrew the instructions of those representing him “completely and permanently”. At the conclusion of the evidence in chief of Mr Barbara, before the jury the trial judge asked the appellant if he wished to cross-examine the witness. The appellant did not directly answer, but nonetheless did not cross-examine the witness who was then discharged and the Court adjourned for lunch. After the luncheon adjournment the Crown Prosecutor asked the trial judge to explain to the appellant “the effect of the rule in Browne v Dunn in relation to his refusal to cross-examine witnesses whose evidence he may later wish to qualify or contradict.”  The transcript records that the appellant was given by the Crown Prosecutor a copy of the decision of the Court of Criminal Appeal (NSW) in Peter Schneidas (No 2) (1981) 4 A Crim R 101 which dealt with the application of the rule in Browne v Dunn to criminal cases and in the particular case to the situation of an unrepresented accused on a murder count not cross-examining a witness whose evidence he later sought to impeach. Shortly thereafter the proceedings were adjourned to the next day.

 

At the commencement of proceedings on 19 July 1995 in the absence of the jury the trial judge gave the appellant a specific direction on the rule in Browne v Dunn in the following terms:

“HIS HONOUR:  I think, at this stage, Mr Eastman, bearing in mind that it appears that you may now not be represented for the rest of this trial, that I say the following things to you:  so far as is presently relevant to your position, Mr Eastman, I must tell you that it is a principle of law that if a prosecution witness’s evidence is to be impeached, that is to say, contradicted, challenged or brought into question in any way by material put forward by the defence, the prosecution witness should be given full notice in cross-examination that there is an intention of impeachment to the credibility of the story which the witness is telling.

 

Thus, for example, Mr Eastman, if the Crown witness says you made a certain statement to that witness and you wish to challenge or contradict that assertion in the defence case by a witness, you may call, or by your own evidence or unsworn statement, then you must put the defence version of evidence in cross-examination to the prosecution witness. Otherwise, you could well be prohibited from leading that contradictory material in the defence case, or I make comment on your failure to cross-examine the prosecution witness in my summing up. The reason behind this principle is that it is considered to be essential to the proper conduct of a trial, that where it is intended to suggest that a witness is not speaking the truth, the witness’s attention should be directed to that fact by some question put in cross-examination.

 

And not take the witness’s evidence and pass it by as a matter all together unchallenged and then later, when it is impossible for the witness to explain why his or her evidence should be believed, to suggest that the story that the witness told ought not to be believed or to argue that the witness is unworthy of credit. Thus, Mr Eastman, you must apply your mind to this principle when you have the opportunity to cross-examine prosecution witnesses, and as I have said before, if you decline to cross-examine, then you do so at your peril.”

 

 

There can be no doubt having regard to the terms of the direction given by his Honour and the terms of the judgment of the Court in Peter Schneidas (No 2) at 110-111, of which the appellant had a copy, that the appellant by 19 July 1995 at the latest was made aware of his obligation to give full notice to a witness in terms of the direction given if he intended to impeach the witness’s evidence by later evidence and the consequences which the appellant may suffer in the conduct of his defence if he breached the rule.

 

Notwithstanding the direction given to him when invited to cross-examine a succession of witnesses called on that day, he failed to do so and merely stated “My previous comments apply.”

 

On 24 July 1995 Mr Russo was recalled to give evidence. The appellant was at this time again legally represented and Mr Russo was cross-examined by Mr Terracini. At no stage was it put to Mr Russo that after he ceased residing at Jerilderie Court he had had encounters with the appellant which included an incident where he followed the appellant in his vehicle one night after a chance encounter. The failure to do so was a matter of submission to the jury by the Crown Prosecutor.

 

On 1 August 1995 Mr Terracini sought to have recalled a substantial number of witnesses: Mrs Winchester, Mr Ken Winchester, Mr Raymond, Mr Cotterill, Mr Peter Ross, Mr Worthy, Commander Mills, Dr Roantree, Mr Barbara and Mrs Heritage. Subject to questions of the availability of Dr Roantree, the health of Mr Barbara, and the cost of bringing the witnesses back to Canberra, the trial judge granted the application.

 

Thereafter a number of witnesses were recalled and cross-examined. However not all were recalled. Dr Roantree and Mr Barbara were not available. Others were not recalled before the instructions of counsel were again withdrawn on 11 August 1995.

 

By letter dated 28 August 1995 delivered to the appellant, the Crown advised that it did not propose to recall any further witnesses for further cross-examination in the absence of an application in that behalf made by the accused. The Crown case closed on 30 August 1995 without such an application being made.

 

The issue of the recall of witnesses arose on 5 September 1995 when Mr Terracini again appeared on behalf of the appellant and sought the recall of a number of witnesses including Mr Ninness, Mr Cotterill, Dr Roantree, Mr Ross, Mrs Heritage, Mr Barbara, Mr Worthy and Mr Fisher. The application was made on the basis that the accused should have “a full opportunity whilst being legally represented to put his case.”  This application was made of course after the close of the Crown case. It was submitted by Mr Terracini that having regard to the fact that the appellant was not legally represented at the time he received the letter of 28 August 1995, he was under no obligation to comply with it. The Crown opposed the application that either it be invited by his Honour to re-open the Crown case and to call these witnesses for cross-examination or for his Honour to himself call the witnesses to enable them to be cross-examined on the appellant’s behalf. The Crown declined to re-open its case pointing out that Dr Roantree and Dr French were then overseas and unavailable. The trial judge refused to call witnesses on his own motion.

 

The appellant, when he gave evidence in the defence case, was cross-examined as to why he withdrew instructions from his legal representatives and why he failed to cross-examine certain witnesses who gave evidence which was adverse to his interests. As appears from the following exchange in cross-examination of the appellant he made the decision consciously for a purpose:

“MR ADAMS:  You sacked them because you wanted to make submissions to the judge yourself personally;  rather than through counsel?-- On some occasions that was the case, yes. But the - such differences as might have arisen with lawyers from time to time were not such as wouldn’t be capable of being resolved within the normal solicitor/client relationship, had it not been for the whole situation being made stressful and tense by not knowing whether we’re being bugged all the time - couldn’t get the judge even to make an order prohibiting bugging. Not knowing whether I was going to be harassed with phone calls when I got home, or at the remand centre. Not knowing whether officers would misbehave in the foyer of the court, and unable to get the judge to take any of these matters seriously or even superficially.

 

On 11 July you reinstructed Mr Terracini and those supporting him, but Mr Terracini went to - was in hospital? -- I recall Mr Terracini having to go to hospital, I think, for an appendix operation at some stage, yes.

 

On 13 July you withdrew instructions once more? -- Well, I don’t recall dates.

 

On 14 July you reinstructed counsel for a short time, but then, again, withdrew instructions on that day, 14 July? -- I don’t recall the dates.

 

On 17 July Mr Terracini and his juniors appeared. And on 18 their instructions were withdrawn, after a short adjournment, reinstated, and then withdrawn again? -- Well, I don’t recall the dates. But if these dates are correct there’s a perfectly good reason all along. And you know what the reason is, Mr Adams. I’ve already referred to it.

 

No, I’ve put the reason to you? -- No, I - - -

 

This was a device to obstruct the trial? -- No. This - - -

 

It also had another purpose - - -? -- No, I’m answering that question. Don’t cut off the answer, please. It was not a device to obstruct the trial. It was an attempt to get the judge to do his duty to prevent other persons from interfering with the trial and trying to interfere with the administration of justice; those same persons who’ve shown an arrogant disregard for the administration of justice throughout this case, and who’ve stated to me that they run this town. They think they run the courts as well. It was an attempt to get the judge to make it clear to them that they don’t run this town and they don’t run the courts.

 

It was also a device by you so that you would have an excuse for not cross-examining crucial witness [sic]? -- Well, that’s absolute rubbish. You’re [sic] so-called crucial witnesses in many cases can thank their lucky stars that the police officers were conducting harassment which caused me to suspend cross-examination. Because they - any number of instances - Commander Ninness being the prime one, to whom and [sic] enormous amount of material, extremely and acutely embarrassing chapter and verse, going on for years could’ve been quoted to them - has nothing whatsoever to do with me trying to achieve any machiavellian advantages you’re suggesting.

 

You always had - - -? -- It’s absolute rubbish.

 

- - - in relation to Mr Ninness at least a week’s notice that he was going to be called, didn’t you? -- No, I cannot recall that. You say that. It may be true. It may not. I don’t recall specifically in the case of Commander Ninness. There were certainly occasions when you sprung witnesses on with no notice at a time when you knew that I was unrepresented. And on some occasions you tell the judge, ‘he’s just an innocent little witness and he’s got to catch a plane or something. Could we slip him in now, please, your Honour?’  And then the - - -

 

It only occurred once and at that time you were represented? -- No.

 

And his evidence in fact was relatively trivial? -- You - no, that’s not true. You, yourself, took advantage on several occasions of the fact that I was unrepresented to reorganise the order or [sic] witnesses.”

 

 

The demand by the appellant that the trial judge make an order prohibiting surveillance of the appellant by listening devices was one made throughout the trial. There was no evidence that the appellant was under surveillance by listening device during the trial;  the evidence was that use of listening devices had ceased about two and one half years prior to the trial. There was no factual or rational basis for the trial judge to make any order of the type demanded by the appellant. The refusal of the trial judge to make such an order does not provide a reasonable or rational basis for the appellant to dismiss his lawyers or to refuse to cross-examine Crown witnesses when the occasion to do so arose.

 

The appellant’s failure to cross-examine certain Crown witnesses especially Mr Ninness, yet cross-examine other Crown witnesses was a matter of comment by the trial judge when Mr Terracini sought to lead from the appellant, notwithstanding the rule in Browne v Dunn, evidence of conversations between Mr Ninness and the appellant. The submissions of Mr Terracini are important because he invited the Crown to adopt the course it did in its address to the jury on the operation of the rule in Browne v Dunn and the failure to cross-examine Mr Ninness. When objection was taken to the evidence being led, the following submissions were made:

“MR TERRACINI:  Well, your Honour, I assume that the objections based on the normal principles associated with Browne v Dunn and the authorities that flowed from that. The difficulty the accused has is:  (1) he did not cross-examine the other party to this conversation, and the Crown has objected to reopening so that certain matters can be put to the witness. In my submission, he should be permitted to give his account of that conversation and a number of other conversations that he had with Commander Ninness.

 

HIS HONOUR:  But why?  You see, I literally begged him to cross-examine Commander Ninness. He had had no difficulty cross-examining Detective Jackson. He had no problem cross-examining Ms Lawson and I begged him to consider cross-examining Commander Ninness because I perceived this difficulty would arise. And he just flatly refused to do it. And it is not as though [he] was incapable of putting questions because he formulated the questions very skilfully. I cannot actually - of all the questions he asked - I cannot really ever think of one where one could object to it because of the form in which it was phrased. He did it - if I may be forgiven for saying so - better than some members of the bar.

 

MR TERRACINI:  That is true.

 

HIS HONOUR:  So that why should the Crown now have this problem presented to them?

 

MR TERRACINI:  Well, your Honour, they are quite entitled to comment on the accused’s failure to cross-examine Detective Ninness. They are quite entitled to avail themselves of the consequences that flow from a failure to adhere to Browne v Dunn, and the accused in actual fact is in a position where he cannot do anything about that. But despite the fact that on the occasions where he has cross-examined witnesses and been able to get his point of view across, that is not to say that he was aware of certain rules similar to the rule in Browne v Dunn.

 

HIS HONOUR:  He has floated Browne v Dunn before me on countless occasions.

 

MR TERRACINI:  Yes, I know that he mentioned it, your Honour. A mere cursory reference to it, in my submission, should not bind him to a full understanding of how strict certain procedural rules are adhered to. Now, the Crown is quite entitled to address at length on the failure of the accused to put certain matters to any witnesses. And that is a consequence that flows from the stance taken by the accused. But, the accused, if he does not articulate some of these conversations is going to be in a position where he will be unable to explain certain actions taken by him. Now, the officer in charge of the case obviously plays a fairly pivotal role in any investigation. And the accused - bearing in mind the penalty that I am doubtful is going to be imposed upon him by the Crown in its address, or in cross-examination or both is something that he is able to deal with in his own way. He will have to give an explanation no doubt as to why he chose not to cross-examine Commander Ninness.

 

HIS HONOUR:  The trouble is, why should the Crown be penalised at all?  Three times they presented Commander Ninness for cross-examination. On the third occasion, the judge solemnly warned the accused about his position. Then why should the Crown be in a position where they suffer any detriment at all. They put him in the witness box, they said, ‘Cross-examine’, he said, ‘No, I won’t’.

 

MR TERRACINI:  Well, in my submission, your Honour, they are not penalised at all because they can avail themselves of their entitlements under the rule of Browne v Dunn. Plus because he is readily available and on most days either present in the precincts or close by, they can call him in reply to negative these sorts of matters if they want to, and that could not obviously be contested. Nobody with any experience at all is going to suggest that they cannot call him to rebut anything that falls from the accused, in the context of this trial. So not only are they able to comment on the failure to cross-examine and the failure to put any of this material in accordance with Browne v Dunn, and your Honour, from the accused’s point of view regrettably, but your Honour would be quite entitled to tell the jury what the rules means [sic] and the significance of it, and no objection to that could be taken, with respect.

 

Not only do they have that available to them, but they have available the right to call him in reply, and we are not talking about a lay witness who is going to be concerned with the stress and rigours of being recalled yet again. I concede that it may be inconvenience [sic] in relation to his other duties, but in the context of this case, it is not something that one would take too seriously, and the accused is at least able to put his point of view.”

 

 

We do not accept that the appellant did not have a full understanding of the rule in Browne v Dunn. It had been explained to him by the trial judge in a careful direction when he stated that he had irrevocably withdrawn instructions to his counsel. He had also been provided with a copy of the Court of Criminal Appeal (NSW) decision in Peter Schneidas (No 2) (1981) 4 A Crim R 101.

 

Notwithstanding that the alleged conversations between Mr Ninness and the appellant had not been put to the police officer, the trial judge allowed the appellant to give evidence in relation to them.

 

Similarly, the appellant gave evidence of encounters with Mr Russo after Mr Russo had left Jerilderie Court, including evidence that Mr Russo followed the appellant in his car late one night notwithstanding that none of this evidence was put to Mr Russo in cross-examination by Mr Terracini.

 

Although the appellant did not cross-examine certain witnesses he either gave in evidence or in his closing address to the jury a specific reason for failing to cross-examine. Those reasons were brought together by the trial judge in his summing up to the jury.

 

As to the evidence of Mrs Heritage, his Honour said:

“HIS HONOUR:  The accused dealt with - may I say that Mrs Heritage was not cross-examined and the accused dealt with her evidence in his submissions at 6061. We then come to the question of the evidence given by Mrs Heritage:

 

            Now, Mrs Heritage gave evidence that I had allegedly said - first of all she gave evidence that I had had some sort of association, a fairly innocuous social how-do-you-do sort of association with her and her husband which according to her had pre-dated the murder of Assistant Commissioner Winchester and she said, or words to this effect that I had said something like I was going to get back at the police, if it was the last thing that I ever did.

 

            Now, you will recall that she was not cross-examined by Mr Terracini on that and that is the state of the transcript, she was not cross-examined, and the rules are that I cannot tell you what questions I would have asked or what answers I believe I might have got had questions been asked but you might come to the conclusion that his failure to ask that very obvious question would have been amongst the reasons why I sacked Mr Terracini. It would be a pretty obvious question to ask, would it not, but we do not know what question would have been asked and we do not know what answer would have been give [sic] and the rules say that I am not allowed to speculate or invite you to speculate because the question was not asked and we are stuck with the transcript as it is.

 

            But, if you look at the answer, how credible is it?  ‘Get back at the police.’ Now, you have heard me speaking, now, in this case for quite a period of time, including the time that I gave evidence in the box. Is that the sort of expression that I would use?  Does it sound the sort of style of English phrase that I would use or does it sound more like the sort of English that Mr and Mrs Heritage would employ and having seen Mr and Mrs Heritage in the box you might have thought that they and I were like chalk and cheese, any way. You might have thought it was somewhat strange that I was having any conversations with them, that is as much [sic] I could say. That is as far as the transcript goes, given the lack of questioning put to Mrs Heritage by Mr Terracini.”

 

 

As to the evidence of Mr Barbara, his Honour said:

“HIS HONOUR: ...The accused dealt with Mr Barbara’s evidence at 6062. There was cross-examination of him by Mr Adams, both in relation to the evidence of Mr Barbara and Mrs Heritage. The relevant parts of that were referred to you by Mr Adams and I will not repeat that but I will remind you what the accused said at 6062.

 

            Mr Barbara told us that in - I think it was either October or November 1988 that I had had some contact with him with a view to him possibly representing me in the Russo assault matter and he said that I allegedly said something to the effect of I ought to kill or I ought to shoot - I forget what the words were - Winchester and the Ombudsman - those were the words. He then gives evidence that he thought nothing more about the matter until - and this is where I am groping for precise dates and I hope I do not guess wrongly but I think he said that it was something like a week or two weeks after the murder when the penny sort of dropped as to where he thought he had heard this name Winchester before but it meant nothing to him at the time.

 

            In other words, it could have been Winchester and the Ombudsman, it could have been - like Simon and Garfunkel or Jones and Brown, it did not mean anything to him at all, so it was just in his memory in general. It was not tagged as to who this person might be. And some months later because we were talking at least from November to January, maybe, I am not sure whether it is October to January but at least the gap of time seems to be a couple of months and then some period after the murder itself has occurred the penny supposedly drops by which stage, of course, the name Winchester has been repeated so many times in Canberra, on a daily basis through the media, hundreds of times, we had almost been bombarded with the word ‘Winchester’ and then Mr Barbara then believes that he recollects the mention of this name some months previously, even though it did not mean anything to him at the time, if he heard it at all.

 

     And this is against a background when Mr Barbara himself gives evidence that the professional relationship ended on less than a pally basis. I think he said, basically, ‘I gave him his file and told him to clear off.’ Again, he was not cross-examined and I was representing myself at that stage. We cannot speculate what questions might have been asked or what answers may have been given, had I elected to cross-examine him and the reasons for my not doing that were stated many times and members of the jury are aware that I said it was undesirable, in principle, that an unrepresented person should attempt to represent themselves in a complex trial.

 

He said:

 

            I am departing from that now for obvious reasons, because it is the conclusion of the trial. If I do not make this address, no-one will be making it. But at that stage, I saw fit not to cross-examine Mr Barbara, so we are left with his evidence as it is. ...”

 

 

His Honour went on to repeat to the jury the observation the appellant made to it as to the worth of the evidence of Mr Barbara and his submission that “Mr Barbara’s evidence you will conclude, I suggest, is perplexing, ambiguous and it does not seem to make any sense, and the possibility of a reconstructed memory, reconstructed erroneously is very much there ...”.

 

As to the failure of the appellant to cross-examine Dr Roantree, his Honour recalled to the jury that the witness had not been cross-examined and read to it the submissions of the appellant as to how Dr Roantree’s evidence should be treated.

 

His Honour said as to the evidence of Mrs Heritage, Mr Barbara and Dr Roantree:

“HIS HONOUR:  ...The evidence of the letter of 24 December 1987, the evidence of Mrs Heritage, the evidence of Mr Barbara and the evidence of Dr Roantree are matters upon which the Crown rely very heavily in this particular case. Because, the Crown argues, that they either constitute an expression of desire to do harm to the police in general, or alternatively, when Mr Winchester’s name was harmed [sic], the desire to do harm to him personally.

 

You would take into account that each of them is what is referred to in law as an independent witness in the sense that they have no links with either side insofar as the death of Mr Winchester is concerned or insofar as the investigation into the death of Mr Winchester is concerned. The Crown puts to you that this evidence is extraordinarily important in the overall case and therefore it is necessary for you to consider the evidence with care.

 

None of the witness [sic] was cross-examined and you will recall the explanations which Mr Eastman gave for that situation arising although at the time of Mrs Heritage giving evidence the accused was represented by Mr Terracini. You will bear in mind when considering this evidence the submissions which were put to you by the accused and which I have read to you in full to refresh your memory of those submissions so that they will still clearly be before you when you consider the reliability or otherwise of this particular evidence.

 

So that is a category of evidence that is to be looked at in the light of the totality of the evidence but raises questions of importance for you as to the weight which you can attach to each or all of the witnesses who were called in relation to these alleged threats. ...”

 

The Crown Prosecutor in his address to the jury made comment on the failure of the appellant to cross-examine Mr Barbara, Dr Roantree and his counsel’s failure to cross-examine Mrs Heritage or to put to Mr Russo the incidents arising after Mr Russo left Jerilderie Court which the appellant relied upon as creating a fear sufficient for him to seek to obtain another firearm, or to put to Mr Bradshaw that the telescopic sight supplied by him with the rifle which the appellant purchased was cheap plastic and broken and not returned by the appellant when he returned the rifle as defective. The failure of the appellant’s counsel to put to the police officer the appellant’s later assertion that the gunshot residues were planted in his car was commented upon by the Crown Prosecutor in the following terms:

“On 20 January 1989, Constable Stoewer - 3012, 3013 - vacuumed the boot well under the cloth trim. The material collected by him was placed in another labelled box, again, taken back to Weston, and again secured with the other boxes. All these boxes were identified in this court. The defence had complete access to them. Mr Terracini cross-examined Sergeant Hanisch and Constable Stoewer, and Mr O’Loughlin cross-examined Sergeant Nelipa. They did not, at any time, suggest that any of these boxes were not kept secure, let alone that there was any possibility of either tampering with or contamination of the material that they contained. The evidence is quite clear and categorical on this point. You may be certain, both from the evidence led by the prosecution and the fact that it was not attacked either expressly or implicitly by the defence, that the material examined by the forensic officers and ultimately by Mr Barnes was in fact the material and only the material that had been gathered from the car in the way that the witnesses describe.

 

Now the accused, himself, does not deny that this material was in the car. He says, 5468, he does not know how it got there. The Crown says the fact is he cannot deny that it was there and it is impossible to accept that he does not know how it got there. If he did not put it there then he must know that. If he did not put it there then someone else must have just like someone else could have forged the letters in his own handwriting. This scenario is simply preposterous. Let us not play wink, wink, nudge, nudge. The accused cannot hide behind his refusal to cross-examine. The implication that this evidence was or might have been planted you might think was so completely fundamental and basic to his case, that the accused and those who represented him simply had to put it to the relevant witnesses.

 

He knew - because he had been told by the trial judge - that he could not make an allegation of this kind in his case without so doing. The accused is on trial for murder. The most serious crime in the criminal calendar. The alternatives, ladies and gentlemen, are stark. Either the propellant, including the heavily charred, largely consumed, chopped disks came to be in his car from a weapon used by him or it did not. Either the accused had purchased and used PMC ammunition or he did not. If he was not the source, who was?  Taking refuge in the failure to cross-examine in these circumstances is just flim flam. Is he shy?  Does he baulk at asking embarrassing questions or making serious allegations?

 

He was quite prepared to call his Honour, in your presence, names, which I will not repeat again, yet he just could not bring himself to put to any police officer, including Commander Ninness, an absolutely essential part of his case for the reason he suggests that he might not have been able to get the questions just right. Members of the jury, you will dismiss this claim as utterly dishonest and all you need to do is to look at those witnesses whom he did in fact cross-examine. Well, we say that the allegation was not put to the police because it could not be put without demonstrating that it was absurd. Take, for example, the accused’s suggestion that Mr Ninness planted this material. Aside from knowing what even Mr Barnes had not yet discovered in relation to the use of the silencer and the identification of PMC, why does Mr Ninness confine himself to the Mazda?

 

Why do we not find PMC propellant in the accused’s clothes, in his wardrobe, in his shoes?  Putting it in the car always had a problem. From a policeman’s point of view, someone else might have had access to the car and they could not exclude the possibility. So the trouble with that is that, as with other statements, that proves too much. If he was prepared to put it into the boot why didn’t we have it sprinkled throughout the accused’s own premises?  There is an even greater problem. How could Mr Ninness have got access to the boot of the accused’s car? There is absolutely no evidence that he was able to do so. Where is the cross-examination when the accused was represented, that fairly and squarely put the suggestion to any police officer that there was an opportunity to interfere either with the Mazda or with the exhibits?”

 

 

Two specific parts of his Honour’s address to the jury are complained of by the appellant. His Honour said early in his summing up:

“... During the course of addresses there was, in relation to this question of cross-examination, reference to a rule of practice concerning the challenging of the credibility of a witness, and perhaps it would be as well therefore if I give you this rule in its precise form. It is known as the rule in Browne v Dunn, and that is [sic] been mentioned to you on a number of occasions during the course of this trial.

 

The principle is this;  that if in the course of a case it is intended by counsel to suggest that a witness is not speaking the truth upon a particular point, the witness’ attention must be directed to that fact by cross-examination showing that the imputation is intended to be made so that the witness may have an opportunity of giving an explanation which is open to him or her. I shall repeat that. If in the course of a case it is intended by counsel to suggest that a witness is not speaking the truth upon a particular point, the witness’ attention must be directed to the fact by cross-examination showing that the imputation is intended to be made so that the witness may have an opportunity of giving any explanation which is open to him or her.

 

That, you may think, is only a basic rule of fairness. If counsel is going to attack the credibility of a witness in relation to a particular matter it is only fair that the witness should have been given the opportunity during cross-examination by counsel to offer any explanation the witness may have that relates to that matter. Now, members of the jury, during the course of the trial you have heard Mr Adams object on more than one occasion when Mr Terracini sought to lead evidence, and Mr Adams objected upon the basis that the evidence which Mr Terracini was seeking to lead was contrary to evidence that a Crown witness had given, but it was never suggested to the Crown witness that his or her witness evidence would be challenged by subsequent evidence from the defence.

 

On more than one occasion during the course of this trial I relaxed the rule in Browne v Dunn to allow evidence to be given by the accused, although there had not been a compliance with the rule in Browne v Dunn. That is a discretion which is vested in the trial judge. I explain that to you because you may have pondered at times how it came about that such a situation arose.”

 

 

Later in his directions his Honour said:

“HIS HONOUR:  Members of the jury, I shall give you certain directions in relation to a matter that was raised on a number of occasions by Mr Adams when he was addressing you, and that relates to witnesses who were not cross-examined who had been called by the Crown. In a number of cases, Crown witnesses were not cross-examined by the accused when he was representing himself, or indeed by counsel at those times when the accused was legally represented. Of course, as has been said so many times in this trial, it is for you and for you alone to determine what weight you give to the evidence of any particular witness, irrespective of whether the witness was or was not cross-examined.

 

However, if the evidence of a witness is not challenged by cross-examination, that is obviously a factor in your determining whether you accept all or any particular part of that witness’ evidence. Similarly, in the case of witnesses who were cross-examined, and this applies to both Crown witnesses and defence witnesses, the same considerations apply to those parts of the witness’ evidence which were not challenged by cross-examination. The right to cross-examine is a vital part of the whole trial process and is intended, of course, to give the party against whom the witness is called the right to test or challenge the credibility of that person’s evidence.

 

I should also add that counsel cross-examine upon instructions, and therefore if a witness’ evidence or some part of that evidence is not challenged by counsel, the inference is that they are the instructions of the client, or that is consistent with the instructions of the client. That is the general principle, but of course barristers being only human, lapses do occur. Indeed, on more than one occasion, as I recall it, the accused has said to you that there was failure to cross-examine in respect of particular parts of the evidence which was inconsistent with his instructions, and that is something you would bear in mind.

 

You would also continually bear in mind that there is no onus on the accused to prove anything. However, as I have indicated it is a factor which you should take into account in the way in which I have described it. ...”

 

 

It was submitted by the appellant that these directions were inadequate because there were other explanations than ones adverse to the defence in a failure to cross-examine and in the leading of evidence of facts or circumstances not put to a Crown witness. It was further submitted that the directions did not advert at all to the failure of the appellant himself to cross-examine. In support of this submission reliance was placed on a statement of King CJ in R v Manunta (1989) 54 SASR 17 where his Honour said at 23:

“It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. ...”

 

 

The view of King CJ was adopted by Gleeson CJ with whom McInerney J agreed in R v Birks (1990) 19 NSWLR 677 at 691. Gleeson CJ also dealt with the operation of the rule in Browne v Dunn as to the drawing of inferences by a tribunal of fact. His Honour said at 690-691:

“ ... It is important, in the interests of accuracy, to consider the substance of the comment to which reference is made. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person’s counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, eg, R v Robinson [1977] Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution.”

 

 

In the context of a lengthy summing up, some of which has been reproduced in these reasons, his Honour put the specific reasons given by the appellant for the failure on his part to cross-examine when unrepresented and as to the failure of his counsel to cross-examine on issues in respect of which he later gave evidence, especially his evidence in relation to Mr Russo and Mr Ninness. The appellant put the failure of counsel to cross-examine down to the incompetence of his counsel to put his instructions. Where the appellant, either in evidence or in his conduct of the trial or in his submissions to the jury, gave specific reasons for his failure to cross-examine and for the failure of his counsel to cross-examine or to put the appellant’s instructions, it was not in our view, incumbent upon the trial judge to attempt to find other explanations favourable to the defence and to put them to the jury as alternatives to the explanation in fact advanced by the defence. The directions of the trial judge in the atmosphere of this particular trial were totally consistent with the observations in R v Manunta and R v Birks to which we were referred. The jury was not left without an explanation which may have called for a direction along the lines of that indicated by King CJ in R v Manunta.

 

Nor can the appellant contend that the comments of the Crown Prosecutor in his final address to the jury on the failure of the appellant to cross-examine witnesses, and on the failure to put a version of events the appellant would seek to lead in the defence case, were not reasonably open on the facts or permitted under the rule in Browne v Dunn. The course taken by the Crown Prosecutor was precisely the course Mr Terracini acknowledged was available and would be taken by the Crown to ameliorate the consequences following the conduct of the defence case from the failure to cross-examine. It was the basis put by Mr Terracini to justify an exercise of discretion by the trial judge to allow the appellant to give the Ninness and Russo evidence. In our view the inferences put to the jury by the Crown Prosecutor as capable of being drawn were available to be drawn and were fairly put. The reasons for not drawing such inferences were put to the jury by Mr Terracini during so much of the final address to it as was made by him, and by the appellant when he took over the address from Mr Terracini and completed it.

 

On the hearing of the appeal counsel for the appellant widened the attack on the trial judge’s use of the rule in Browne v Dunn to submit that in a criminal case the operation of the rule ought to be applied, if at all, with caution and that different responses may be called for in the criminal jurisdiction from that which may apply in the civil jurisdiction and depending upon whether or not an accused is represented. It was submitted that the response of the trial judge was inappropriate having regard to the appellant’s lack of representation and his perceptions of harassment and bias against him in the conduct of the trial.

 

Browne v Dunn (1893) 6 R 67 was a civil case in which arose an issue of whether or not a document was genuine or a sham. The signatories to the document, although called at trial, were never questioned to suggest the document was other than genuine. Lord Herschell LC at 70-71 said:

“ ... it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him;  and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue;  but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

 

 

Statements to similar effect were made by Lord Halsbury, at 76, by Lord Morris, at 79 and Lord Bowen, at 80. Lord Morris added the qualification, at 79:

“... But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box.”

 

 

The rule is one designed to achieve procedural fairness. It is therefore in its content and application neither fixed nor inflexible. This was recognised by Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 where his Honour said, at 236-237:

“... Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness’ evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. ...”

 

 

So too in R v Birks Gleeson CJ, after referring to the judgments in Browne v Dunn, said at 688:

“It is plain that their Lordships, whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created.”

 

 

The Chief Justice later in his reasons cites with approval the observations of Mahoney JA above.

 

While recognising that a criminal trial, having regard to the serious consequences to an accused of a conviction, cannot be conducted in the same way as a civil trial, and that the trial judge in a criminal trial has a paramount duty to ensure that the accused is fairly treated, nonetheless procedural fairness is to be accorded to the Crown as representing the public interest in the conduct of the proceedings and the rule in Browne v Dunn is to be applied in the Crown’s favour as appropriate to ensure that the administration of justice is not impeded: R v Hines (1991) 24 NSWLR 737 at 743;  Howson’s Case (1981) 74 Cr App R 172 at 179;  R v McHardie and Danielson [1983] 2 NSWLR 733 at 745;  R v Peter Schneidas (No 2) (1981) 4 A Crim R 101 at 110;  R v Body (unreported, NSW Court of Criminal Appeal, 24 August 1994) at 9.

 

In the instant case the trial judge did not approach the Browne v Dunn issue in an inflexible way. Where witnesses had not been cross-examined during periods when the appellant was unrepresented, he allowed those witnesses to be recalled where they were available in order that they be cross-examined by counsel on behalf of the appellant. That this procedure did not see all of those witnesses cross-examined was due to the conduct of the appellant in withdrawing the instructions of his lawyers before they could finish the cross-examination of these witnesses. It is not a matter of which the appellant can now complain. His Honour allowed evidence to be lead from the appellant which was not put to Mr Russo, Mr Bradshaw or Mr Ninness which evidence was central to the defence case as to the reason he was at the relevant time seeking to acquire a rifle, as to why he failed to return the telescopic sight to Mr Bradshaw, and as to his allegation that the gunshot residues from the murder weapon were planted in his vehicle by Mr Ninness or some other person in order to incriminate him in the crime.

 

To the extent that his Honour would not invite the Crown to re-open its case to allow all or any of the witnesses sought to be recalled by Mr Terracini for cross-examination or to call those witnesses on his own motion before the defence opened its case, in the context of the way the trial had been conducted by the appellant, the length of the trial, the unavailability of some witnesses and the likelihood that the Crown would have to recall a substantial number of witnesses in reply, cannot be said in our view to have amounted to a miscarriage of justice. In fact, as we have noted above, his Honour allowed the appellant to lead the evidence not put to Mr Russo, Mr Bradshaw or Mr Ninness which was an important part of the defence case in answer to the circumstantial Crown case.

 

In our view the appellant has failed to demonstrate any error on the part of his Honour to appreciate the content of the rule in Browne v Dunn or in his application of it in the context of a long and unusual trial where the trial judge was required to secure both a fair trial to the appellant and procedural fairness to the Crown. This, the trial judge was required to do in circumstances where the appellant consciously and for his own particular purposes continually withdrew the instructions of his legal representatives and refused to cross-examine witnesses at the conclusion of their evidence in chief. The conduct of the appellant in this regard was not dictated by a lack of understanding of the consequences of his conduct or his inability to cross-examine a witness or to articulate an objection or argument. A perusal of the transcript demonstrates that the appellant was acutely aware of what he was doing, was a person of some intellect and was capable of making decisions and conducting the trial in what he believed were his best interests.

 

Ground 6 is without substance.

 

Ground 7 and Ground 12

Ground 7 complains that the trial judge erred in the directions which he gave to the jury regarding identification and description evidence. The submissions made in support of this ground alleged first, a failure by the trial judge to give any direction to the jury on voice identification even though the evidence of Mr Reid indicated that he had relied to some extent on the sound of the appellant’s voice, and secondly, that directions given on the evidence of description of cars seen near the residences of Mr Klarenbeek and Mr Winchester (by Mrs Kaczmarowski and Mrs Newcombe respectively) were in error.

 

A summary of Mr Reid’s evidence is set out in the introduction to these reasons. Mr Reid failed to identify a photograph of the appellant in the first photo board shown to him, but in May 1990 when shown a different photo board he tentatively identified a photograph of the appellant, saying he was “reasonably sure ... 80 per cent.”  Then, on 25 August 1990 after he had seen the appellant in Petrie Plaza he gave evidence that “I was around about 80 per cent sure that it was him, but I wasn’t quite 100 per cent sure at the time because I couldn’t get a face on view”. It was then that Mr Reid suggested that it might help if he had an opportunity to speak to the man. This occurred in the Jolimont Centre on 28 August 1990. Mr Reid in evidence said that after that encounter:

 

“I was 100 per cent sure then it was him because I’d spoken to him. He had that soft voice and it was the same as on the telephone and the soft mannerism in the shop and I am prepared to make a 100 per cent identification that that was the same fellow that was in the shop.”

 

and in cross-examination he was asked, and answered:

 

“Q: Well, put aside those conversations with your wife before [sic - because] she never saw the man, what has jogged your memory about what he looked like, as opposed to what you saw, or what you discussed with your wife, what has jogged your memory in what he looks like since the December-January 88-89 and today?

 

A: The way that I described in the - earlier there that he’d - he had a very educated manner about him, the look about him and clean shaven, the high boofey forehead, the - just the way he spoke, the soft voice, like, you know, I - I’ve got a fairly rugged sort of a voice, I suppose it comes across that way because that’s what I’ve got, he’s got a soft one, that’s what he’s got and just - just his whole mannerism, the - I just - I just know it was him in the shop.”

 

 

 

Mr Reid was not cross-examined to challenge the voice aspect of his identification. What was put to him was that he had honestly mistaken the appellant and someone who looked like him who had come into his shop in January 1989.

 

The question of the identification of the appellant made by both Mr Webb and Mr Reid were important aspects of the Crown case. Their evidence was the subject of detailed and careful direction by the trial judge as required by s.116 of the Evidence Act. The jury was reminded that the identifications were vigorously contested by the accused, and it was given a strong warning on the general dangers of convicting on disputed evidence of identification. The jury was then taken by the judge through the evidence first of Mr Webb and then of Mr Reid. After reminding the jury of the evidence, the arguments of the Crown and the appellant in relation to the evidence were summarised, and the judge pointed out the features of the evidence of each of the witnesses that might reasonably be regarded as undermining the reliability of their identification evidence. No complaint is made about those directions, save that the trial judge did not refer specifically to the reliance in part by Mr Reid on the voice of the appellant, or give any separate warning of the risk of mistaking one voice for another. Brennan CJ said in Bulejcik v R (1996) 135 ALR 517 at 522 that the sufficiency of a warning of such a risk is not to be assumed by reference to a formula nor by postulating a hypothetical warning against risks of which a reasonable jury would be as well aware as the trial judge. In the present case the risks generally of mistaken identity had been very fully explained, and the trial judge had identified the aspects of Mr Reid’s evidence that had been identified by the appellant’s case as indicating unreliability in the identification. In the circumstances we do not consider any further warning was required.

 

In relation to the evidence of Mrs Kaczmarowski and Mrs Newcombe the trial judge directed the jury that there was a distinction between evidence of similarity, and evidence of identification, and that their evidence was of the former kind. The jury was reminded of their evidence and instructed that “the weight you give that evidence is, of course, a matter for you, but that is just part of the circumstantial evidence as distinct from this very direct evidence of identification” (i.e. as distinct from the evidence of Mr Webb and Mr Reid) “that is put to you purely as circumstantial evidence and not positive identification evidence of the accused’s car”.

 

We do not consider any further direction was required.

 

The Crown’s reliance on the evidence of Mrs Kaczmarowski and Mrs Newcombe that they saw a car the description of which was similar to the car used by the appellant as part of the circumstancial evidence distinguishes this case from ones like R v Clout (unreported, NSW Court of Criminal Appeal, 1 December 1995) and R v Theos (unreported, Victoria Court of Appeal, 26 June 1996) where the evidence of identification of an inanimate object is a critical issue in the proof of the Crown case.

 

It is convenient to deal next with Ground 12 which complains that the trial judge erred in admitting the identification evidence of Mr Webb. This is not a complaint as to the warnings which were given by the trial judge to the jury about Mr Webb’s evidence. His Honour’s warnings drew the jury’s attention to inconsistencies and omissions between out of court statements made to the police and Mr Webb’s evidence at the trial. The warnings also explained the risk of displacement. It is a complaint that the evidence of Mr Webb purporting to identify the appellant as the person he saw at Mr Klarenbeek’s residence on 31 December 1988 should not have been admitted at all. Davies and Cody v The King (1937) 57 CLR 170 is relied on to support the submission that because Mr Webb observed the appellant for about three seconds only, his evidence could not amount to a sufficient identification. In Davies and Cody the High Court said at 182:

 

“... if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial.”

 

 

 

The appeal was allowed as evidence of identification where the accused had been shown alone as a suspect to the witness was left to the jury without warning as to the dangers associated with that method of identification.

 

In the present case Mr Webb had no previous familiarity with the appellant, he had seen the person at Mr Klarenbeek’s residence whom he later said was the appellant only briefly, and then later identified him when he saw the appellant’s image on television. But Davies and Cody does not hold that in such circumstances the evidence is necessarily inadmissible. The Crown case did not rest mainly, or even substantially, on the identification of the appellant by Mr Webb. Nor was Mr Webb’s identification of the appellant as the purchaser of the Ruger 10/22 from Mr Klarenbeek without support from other circumstantial evidence. There was other evidence that the appellant had been looking to acquire a Ruger, that the purchaser who acquired the rifle did not want the telescopic sight, that Mrs Kaczmarowski had seen a car similar to the appellant’s near Mr Klarenbeek’s residence, that the appellant withdrew $200 from his ATM the following day, and the evidence of Mr Reid.

 

In our opinion the evidence of Mr Webb’s identification was rightly admitted. Once it was admitted it required careful direction as to the general and specific dangers that the identification may be mistaken, and as to how the evidence should be weighed with other evidence in this case. These directions were given.

 

This ground of appeal is not made out.

 

Ground 10

Ground 10 contended that the absence of fresh evidence at the trial resulted in a miscarriage of justice. On the hearing of the appeal counsel for the appellant sought to file and read an affidavit of Dr James Wallace. Dr Wallace is a forensic scientist from the United Kingdom who had been flown to Australia to confer with Dr Hilton Kobus, another forensic scientist in Adelaide. Both Dr Kobus and Dr Wallace had been retained by the appellant’s lawyers prior to and during his trial. However they were not called to give evidence.

 

On the first day of the appeal we were advised by counsel for the appellant that tests were being undertaken in Adelaide with a view to filing an affidavit in support of Ground 10 based on fresh evidence attacking the forensic evidence of Mr Barnes at the trial.

 

On the third day of the appeal counsel for the appellant sought to read and file the affidavit of Dr Wallace. It was objected to by the Crown. After hearing argument we ruled that the affidavit should not be accepted into evidence for the purpose of the appeal and advised that reasons for the rejection would be given at a later date. Those reasons appear below.

 

In Gallagher v The Queen (1986) 160 CLR 392 Gibbs CJ said at 395-396:

 

“The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429, at p.439, as follows:

 

‘A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.’”

 

 

See also the like remarks of Mason and Deane JJ at 400-403, Brennan J at 408-409 and Dawson J at 421.

 

The relevant principles applicable to the reception of fresh evidence were again considered by the High Court in Mickelberg v The Queen (1989) 167 CLR 259 at 273, 274, 301-302. In a joint judgment of Toohey and Gaudron JJ which was generally agreed in by the other members of the Court, their Honours said at 301-302:

 

“The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see, e.g., Gallagher v The Queen (1986) 160 CLR 392, at pp 395, 402, 410. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen (1974) 131 CLR 510, at pp 516-517, per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen (1979) 142 CLR 659, at pp 666, 675-677.

 

There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be ‘credible’, ‘cogent’, ‘relevant’, ‘plausible’: see, e.g., Gallagher (1986) 160 CLR, at pp 395-396, 401-402, 408-409; Craig v The King (1933) 49 CLR 429, at p 439; Ratten (1974) 131 CLR, at pp 519-520; Lawless (1979) 142 CLR, at pp 671, 676-677. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (Gallagher (1986) 160 CLR, at p 410, per Brennan J) or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the [accused]’ (Gallagher (1986) 160 CLR, at p 399, per Gibbs CJ and per Mason and Deane JJ (1986) 160 CLR, at p 402). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless (1979) 142 CLR, at pp 676-677, per Mason J, and Gallagher (1986) 160 CLR, at p 410, per Brennan J, but cf. Barwick CJ in Ratten (1974) 131 CLR, at pp 519-520.”

 

 

The affidavit of Dr Wallace does not raise any matter of fresh evidence. It does not contain any material as to the results of the testing undertaken with Dr Kobus in Adelaide which was foreshadowed at the commencement of the appeal. What the affidavit does reveal is that Dr Wallace was available to be called at the trial and was in contact with the appellant’s then lawyers although the various messages he received as to his attendance were contradictory. Mr Barnes in his evidence had said that some of the primer and propellant material found in the appellant’s car and at the murder scene were from the same type of ammunition, ie PMC brand .22 calibre. Dr Wallace, in paragraph 6 of his affidavit, said that there was “associative evidence to support that conclusion.”

 

The balance of the affidavit contains observations as to other possible explanations of the findings of Mr Barnes or attempts to cast doubt on them. The contrary opinions of Dr Wallace are not based in fact save in paragraph 7 where it is postulated that a .22 calibre Stirling rifle which had misfired had been carried in the boot of the appellant’s car. This is contrary to the appellant’s evidence that the Bradshaw rifle, to which this paragraph obviously refers, had jammed.

 

Dr Wallace makes no reference to the testing and data accumulated by Mr Barnes which led Mr Barnes to the conclusion that some of the particles found at the murder scene and in the appellant’s car were produced by firing through a silencer. The opinion expressed by Dr Wallace as to other explanations also ignores the substantial forensic evidence called from experts from around the world which was corroborative of Mr Barnes’ test methodology and the conclusions based on those results.

 

There is nothing in the affidavit of Dr Wallace in terms of his professional opinion which was not available, or could not with reasonable diligence have been available on the trial. On the authorities although this does not automatically and inflexibly exclude receipt of the evidence, it is a circumstance telling heavily against its reception. What is required in such a situation is evidence of sufficient strength to justify interference with the verdict. In the present case, the bare opinions of Dr Wallace, when considered against the evidence of Mr Barnes, the other substantial forensic evidence called on the trial, and the other circumstantial evidence linking the appellant with the murder weapon and the crime scene, lack the cogency to support a conclusion that the jury would have been likely to entertain a reasonable doubt about the guilt of the appellant if the evidence of Dr Wallace had been before it.

 

Unless the material contained in the affidavit of Dr Wallace satisfied the tests for the admission of evidence as fresh evidence on the appeal, no useful point would be served by its reception. For the above reasons, it did not satisfy the tests and its reception was rejected.

 

Ground 11

Ground 11 complains that the trial judge erred in admitting into evidence the enhanced tape recordings and the transcripts of conversation compiled by witnesses called by the Crown.

 

At trial, when the Crown sought to tender evidence of the utterances recorded on the tapes, an objection was made on the appellant’s behalf. The grounds of objection then stated challenged the legality of the placement and use of a listening device in the appellant’s flat, and the voluntariness of the utterances, it being asserted that a significant portion of the recorded utterances which the Crown sought to adduce into evidence may have been made whilst the appellant was asleep, or at least made whilst he was in bed late at night. It was also asserted that the recordings were made at a time when the appellant considered he was being harassed by the police. In the course of submissions the trial judge was asked to exercise the discretion contained in s.90(b) of the Evidence Act which empowers the Court to exclude an admission on the ground that its use would be unfair to the accused. The delay before the tapes and the transcripts were provided to the appellant in about mid 1993 was raised as an additional consideration. It was submitted that having regard to the poor quality of the recording, some of which was indecipherable, it was unfair that the appellant should be required to try and recollect what he might have been saying and thinking some three years previously.

 

The trial judge was satisfied that the listening device was lawfully placed and used pursuant to warrants duly issued for that purpose. The question of legality was ultimately conceded, and that conclusion was not challenged on appeal.

 

In support of the submissions relating to voluntariness and harassment the appellant gave evidence in the voir dire. He said he was aware that his premises had been bugged, and for that reason at times he made taunting statements directed to the police. He described being under constant surveillance, and receiving nuisance phone calls. He said police “thuggery” was causing him fear and affecting his sleep pattern. He gave evidence that someone threw rocks through his bedroom window in August and October 1992, and made a further attack in 1993 (these are dates well after those on which the recordings were made). He suggested that an attempt on his life had been made in an incident when he was involved in a rear end motor vehicle collision sometime in 1989.

 

At the time of the voir dire, the existence of Dr Milton’s reports had not been disclosed to the defence or to the Court. The allegations of harassment were supported only by the appellant’s evidence. The trial judge, whilst saying he was reluctant to express views on credibility in the course of a long trial nevertheless said: “I am constrained to say that the evidence adduced by the accused falls far short of establishing any reasonable inference that the car incident was a consequence of a calculated attempt by anyone to ... either murder him or cause him serious harm”. His Honour referred to a hearing which had occurred before Jenkinson J when the allegations of police harassment had been ventilated by the appellant in support of an application for a stay of the trial. His Honour noted that, significantly, the appellant had not obtained medical treatment or advice in relation to stress, although apparently he underwent some stress counselling by someone presumably with some expertise in the field.

 

The trial judge referred to his own assessment of the enhanced tapes which he had listened to in the course of argument, with the benefit of the transcripts proposed to be tendered by the Crown. His Honour concluded that the evidence should be admitted, saying that the matters raised by the appellant as to why the alleged admission of the tapes should be rejected could be raised before the jury. His Honour pointed out that the tapes and transcripts had been available to the appellant since 1993, and he did not consider the delay in disclosing that material to the appellant justified their exclusion in the exercise of the discretion.

 

On the appeal, the first contention advanced on the appellant’s behalf was that in exercise of the statutory discretion contained in s.138 of the Evidence Act to exclude evidence that is obtained improperly or in consequence of an impropriety the evidence should not have been admitted as the utterances of the appellant were made and recorded at a time when he was subject to an oppressive surveillance operation which the police knew or had reason to believe would be likely to cause the appellant to exhibit behaviour attributable to stress and to the “massive outrage” predicted as a likelihood by Dr Milton.

 

No express reference to s.138 of the Evidence Act was made in argument before the trial judge, although the challenge to the lawfulness of the use of the listening device plainly came within that section. Short of unlawfulness, it was not suggested that the evidence should have been rejected on the ground that it was improperly obtained. That argument is raised on appeal for the first time, and is now said to be supported by the fact that the police at the time had Dr Milton’s reports.

 

This argument must suffer the same fate as those raised under grounds 1(c) and (d) and 13. The appellant whilst denying the validity of Dr Milton’s opinions as to his mental condition at the time, cannot rely on them to allege that the police acted improperly.

 

Even if the opinions of Dr Milton as to the appellant’s mental condition were correct, the allegation of impropriety must still fail as those opinions amply justified the surveillance activities that were in place around the time when the relevant utterances of the appellant were recorded. No element of trickery was involved causing the appellant to make the utterances. He was aware that his premises were bugged. Even if he were, to the knowledge of the police, experiencing “massive outrage”, the conduct of the police was not such that it should attract curial disapproval. The police were engaged in the investigation of a murder, and in addition had reason to be concerned about the safety of some members of the police force and public. In an investigation in circumstances of this kind the public interest in detecting and punishing crime, and protecting the public, outweigh social nicety: see R v O’Neill [1996] 2 Qd R 326 at 422, 423 and 429; and R v Pavic (unreported, Victoria Court of Appeal, 19 December 1996).

 

On the information placed before the Court on the voir dire the trial judge was not satisfied by the evidence of alleged harassment that the making of the admissions which the Crown alleged were recorded on the tapes was influenced by oppressive conduct. Section 84 of the Evidence Act  relevantly provides that evidence of an admission is not admissible unless the Court is satisfied that the admission and the making of the admission were not influenced by violent, oppressive, inhuman or degrading conduct towards the person who made the admission. Although s.84 of the Evidence Act was not referred to by counsel in argument, or by the trial judge when delivering his ruling, it is clear, in our view, that the issue of voluntariness raised by s.84 was the issue which his Honour considered and decided against the appellant. The conclusion of the trial judge has not been shown to be wrong. On the contrary, in our view the evidence failed to suggest any cogent link between the acts of harassment alleged by the appellant and the making of the utterances by him when alone within the four walls of his flat.

 

Next it was submitted that the procedure adopted by the trial judge by which the recorded utterances and the transcripts prepared by Crown witnesses were placed before the jury led to a miscarriage of justice. It was said that the trial judge erred in allowing the jury to receive evidence from Mr McQuillen as to his interpretation of sounds reproduced by playing the enhanced tapes, and transcripts setting out his interpretation, before it listened to the tapes. It was submitted that the jury should have first listened to the tapes unaided by the transcript or Mr McQuillen’s evidence, and only then been given the transcripts as an aide-memoire for use thereafter in deciphering the tapes. It was submitted that the trial judge failed to follow the procedure approved for the admission and use of tape recorded conversation by the High Court in Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180.

 

In Butera a tape recording of conversations implicating the accused was admitted into evidence. The conversations were in Punjabi, and translations into English were made by interpreters who gave oral evidence of their translations and verified the transcript of them. The transcripts were taken into the jury room when the jury retired. By a majority decision the High Court held that the transcripts had been properly admitted into evidence and it was appropriate for the jury to have had them in the jury room.

 

The headnote to the decision in the Commonwealth Law Reports says, in part, “Per Mason CJ, Brennan and Deane JJ. (1) A tape recording is not admissible evidence of its contents unless it is first played over. Accordingly a transcript is not admissible on the basis of its ability to inform the court of the contents of the tape.”

 

We do not understand the decision to require, either as a precondition to the admission of evidence as to the contents of the recorded sounds, or as a matter of invariable procedure, that the tape must be played over first to the jury in the manner contended for by the appellant. The point of principle identified by the majority judgments was that a transcript was not a copy of the tape, but a written record of what has been heard. Therefore, prima facie, the issue whether the recorded conversation took place should be proved by playing the tape in Court, not by tendering evidence, whether written or oral, of what the witness heard when the tape was played: see Butera at 185.

 

The High Court recognised that at times the sounds recorded on a tape may be indistinct and difficult to decipher. In these circumstances a transcript of conversation contained in the recording may provide a useful aid to the jury in its perception and understanding of the evidence tendered by playing the tape. Mason CJ, Brennan and Deane JJ said at 187:

 

“Although evidence derived from a tape recording is not subject to some of the frailties of human testimony, it may exhibit deficiencies from which human testimony is usually free. A tape recording which is indistinct may not yield its full content to the listener on its first playing over. It may need to be played over repeatedly before the listener’s ear becomes attuned to the words or other sounds recorded. This situation has led courts to receive transcripts not as evidence of the conversation or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape. In Williams v. The Queen [1982] Tas. R. at p.274, Neasey J. cited with approval a Canadian case Reg. v. MacLean and MacLean [No. 1] (1979) 49 C.C.C. (2d) 399 in which a trial judge held:

 

‘...that he would not permit the transcripts to be used as evidence of the contents of the recording, but did admit them for the use of ‘the trier of the facts, after being properly instructed in that regard, for the sole purpose of following the playing of the tape in court and to assist the trier of the facts in determining what is in fact recorded thereon.’’

 

Where the quality of the recording is such that the provision of a transcript for the use of the jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation.”

 

 

 

Mason CJ, Brennan and Deane JJ cited with approval from the judgment of Cooke J in R v Menzies [1982] 1 NZLR 40 at 49, where his Honour said:

 

“The problem is how best to enable a jury to assess the contents of a tape, in the light of those aims. It is a problem sui generis and not automatically answered by settled principles.

 

If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the Judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused.”

 

 

 

The judgment of Mason CJ, Brennan and Deane JJ continues at 188:

 

 

“The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in understanding what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape.”

 

 

 

In the present case that direction was given in clear terms by the trial judge to the jury before any of the evidence of the contents of the tapes was adduced, and it was repeated in the summing up.

 

The evidence of the witnesses on this topic disclosed that the tape recordings upon which the Crown sought to rely are in many places indistinct, and extremely difficult to decipher. The master tapes were run at a slow speed when the recordings were made, and this added to the difficulties in later deciphering the recorded sounds. The tapes were transferred to a digital form of electronic recording, and then enhanced. Mr McQuillen and Ms Lawson listened to the tapes for thousands of hours and became qualified ad hoc in interpreting the utterances of the appellant that were audible. It was common ground between all the witnesses on this topic that the transfer of the recordings to digital form and the enhancement process did not produce artefacts. The jury, when it heard the recordings, listened to enhanced tapes rather than the original master tapes. This was done without objection, and the master tapes were tendered in evidence so that they could have been played had that been requested.

 

The poor quality of recording would have made it very difficult for the jury to have comprehended the recorded utterances if it had listened to the tapes unaided by the transcript prepared by Mr McQuillen. It seems to us that it would have been a largely pointless exercise to have required this, and one that would have been immediately followed by what in fact occurred, namely that the jury was informed of Mr McQuillen’s interpretation of the sounds, and then the tapes were played whilst the jury had Mr McQuillen’s transcript before it as an aid. The procedure followed in this case was the procedure approved in R v Miladinovic (1992) 107 FLR 241 at 248 and R v Watts [1992] 1 Qd R 214 at 222.

 

Moreover, s.48(1)(c) of the Evidence Act authorised the reception of the transcripts as evidence in the case. That paragraph reads:

 

48(1)   “A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:

 

          ...

                        (c)if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)-tendering a document that is or purports to be a transcript of the words.”

 

 

 

The definition of “document” includes a record of information from which sounds can be reproduced. As the transcripts were admissible under s.48(1)(c) as evidence of the contents of the tapes, the procedure followed by the trial judge could not affect the admissibility of the tape recordings. As it was, the transcripts were received into evidence as an aide-memoire, and the jury was instructed to treat the transcripts only as an aid. Where, on the evidence adduced in a particular case, there is doubt or disagreement whether the transcript, or part of it, accurately deciphers the sounds captured on the tape, it seems to us that this should be the role of the transcript, notwithstanding the provisions of s.48(1)(c) of the Evidence Act. In the present case, the transcript verified by Mr McQuillen, and later by Ms Lawson, and the transcript prepared by Dr French were admissible for the purpose of assisting the jury.

 

The appellant himself addressed a further argument to the Court that the tape recordings should not have been admitted into evidence because of the “degradation” of the tapes. As presented, the appellant’s argument was rather one that his counsel had failed him because advice had been received by the defence from an expert in phonetics that the Crown witnesses should be asked three questions relating to the quality of the tapes and the tape speed at which the recordings were made. This argument is difficult to follow as the appellant was representing himself at the time when the relevant Crown witnesses as to the tape recordings gave evidence. But in any event, when the defence expert witnesses, Mr Mills and Dr Butcher, gave their evidence they did not refer to the speed at which the recordings were made as a relevant factor. There is no evidentiary base for the appellant’s particular submission. The quality of the recordings of sound captured in the tapes was reflected directly in the difficulties which were encountered in deciphering the utterances of the appellant. These difficulties were considered by the trial judge when the admissibility of the tape recordings was argued. His Honour listened to the tapes, and he was aware that there was disagreement between experts in phonetics who had been instructed by the Crown and the defence. The trial judge took the quality of the tapes into account as one of the factors to be considered in the exercise of his discretion whether to exclude the tapes on the ground of unfairness. His Honour said:

 

“...having listened to the tapes and read concurrently the transcripts of them I must say that with some exceptions which may well have been irrelevant it was, I thought, not difficult to comprehend with the benefit of the transcripts what was being said. In some rare cases it is possible to detect what is being said without reliance upon the transcript itself...”

 

 

 

It was not suggested that this was an erroneous assessment of the tapes. The trial judge ruled that he should not exercise his discretion to exclude the evidence on the ground “that it would be dangerous to go to the jury”. His Honour was referring in this respect to the general discretion, now embodied in s.137 of the Evidence Act, to exclude evidence in a criminal trial if its probative value is outweighed by the danger of unfair prejudice to the defendant.

 

It was in the context of the exercise of the same discretion that the question of delay between the time when the recordings were made and the disclosure of the transcripts to the appellant fell to be considered by the trial judge. As the High Court observed in Butera, at 187, evidence from tape recordings is not subject to some of the frailties of human testimony. What was recorded in 1990 remained the same in 1993. The delay did not affect the quality or the accuracy of the recording. The delay was relevant only to the appellant’s recollection of his conduct at the time when the recordings were made. In this regard the recordings themselves should have provided an aid for him to refresh his memory.

 

In these circumstances, and as the tapes, as deciphered by Mr McQuillen, Ms Lawson and Dr French, contained statements which the jury would be justified in treating as incriminating in the absence of evidence from the appellant which raised, at least as a possibility, an innocent explanation, there is no merit in the challenge to the exercise of the discretion by the trial judge.

 

In the course of submissions on this ground of appeal counsel for the appellant criticised the quality of the evidence of the witnesses for the Crown who had prepared transcripts from the tapes, contending that as Mr McQuillen, Ms Lawson and other police officers who had become qualified ad hoc in deciphering the appellant’s voice had conferred together over the interpretations, and as their agreed transcripts had been placed before Dr French who was engaged to verify them, there was the potential for contamination upon contamination. It was submitted that in the result the accuracy of the transcripts must be suspect; they could be dangerously wrong and had so great a risk of inaccuracy that they could not safely be used in evidence. This submission in our view does not give appropriate recognition to the fact that Mr McQuillen and Ms Lawson had each spent enormous periods of time working on deciphering the tapes and swore that they independently arrived at the interpretations reflected in their transcript, and to the fact that Dr French, a highly qualified expert in phonetics, also made an independent evaluation of the tapes. Nor does it give appropriate recognition to the fact that insofar as the interpretation of the sounds was to be challenged by the appellant, the jury itself could listen to tapes. Unlike evidence of an out of court identification by a witness, this evidence was capable of independent evaluation by the jury by listening to the tapes itself.

 

In our opinion the challenge to the admission of the enhanced tape recordings and transcripts fails.

 

Conclusion

In our opinion the appellant has not made out any of the grounds of appeal. As pointed out earlier in the judgment, the allegation in Ground 9 of the Notice of Appeal which pleads that the conviction is unsafe and unsatisfactory was dependent on the appellant making out one or more of the other grounds of appeal.

 

It was conceded during the hearing of the appeal that there was evidence upon which a jury, properly instructed, could convict. We would add that in our opinion the Crown case established a very strong circumstantial case against the appellant. Whilst in the appeal he has attacked aspects of the Crown case, the attack did not address the strength of the other aspects of the Crown case, in particular the strength of the forensic evidence about the gunshot residues, and the force of the coincidence of so many strands of evidence that combine to point the finger of guilt at him.

 

We consider that the appeal should be dismissed.

 

 

I certify that this and the preceding 174     pages are a true copy of the Reasons for Judgment of the Court

 

 

Associate:  Christopher Withers

 

 

Dated: 25 June 1997

 

 

Counsel for the appellant                                    :  Mr G. James QC

                                                                            Mr S. Odgers

 

Solicitor for the appellant                                    :  Bernard Collaery and Associates

 

Counsel for the respondent                                 :  Mr M. Adams QC

                                                                            Mr T. Game SC

                                                                            Mr J. Ibbotson

 

Solicitor for the respondent                                :  Director of Public Prosecutions (ACT)

 

Date of hearing                                                  :  10-14, 18-21 March 1997